before the iowa industrial commissioner
 
         ____________________________________________________________
 
                   :
 
         PAUL D. LONGFELLOW, :
 
                   :
 
              Claimant, :
 
                   :
 
         vs.       :
 
                   :      File No. 872842
 
         GREENFIELD EQUIPMENT CO.,     :
 
                   :        A P P E A L
 
              Employer, :
 
                   :      D E C I S I O N
 
         and       :
 
                   :
 
         FEDERATED INSURANCE,     :
 
                   :
 
              Insurance Carrier,  :
 
              Defendants.    :
 
         ___________________________________________________________
 
         The record, including the transcript of the hearing before the 
 
         deputy and all exhibits admitted into the record, has been 
 
         reviewed de novo on appeal.  The decision of the deputy filed May 
 
         10, 1990 is affirmed and is adopted as the final agency action in 
 
         this case. 
 
         Claimant shall pay the costs of the appeal, including the 
 
         preparation of the hearing transcript.
 
         Signed and filed this ____ day of September, 1991.
 
         
 
         
 
         
 
         
 
                   ________________________________
 
                            BYRON K. ORTON
 
                        INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. C. R. Hannan
 
         Attorney at Law
 
         215 South Main Street
 
         P.O. Box 1016
 
         Council Bluffs, Iowa 51502
 
         
 
         Mr. Frank T. Harrison
 
         Attorney at Law
 
         2700 Grand Ave., Suite 111
 
         Des Moines, Iowa 50312
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
            9998
 
            Filed September 17, 1991
 
            Byron K. Orton
 
            DRR
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            PAUL D. LONGFELLOW, :
 
                      :
 
                 Claimant, :
 
                      :
 
            vs.       :
 
                      :      File No. 872842
 
            GREENFIELD EQUIPMENT CO.,     :
 
                      :        A P P E A L
 
                 Employer, :
 
                      :      D E C I S I O N
 
            and       :
 
                      :
 
            FEDERATED INSURANCE,     :
 
                      :
 
                 Insurance Carrier,  :
 
                 Defendants.    :
 
            ___________________________________________________________
 
            
 
            9998
 
            
 
                 Summary affirmance of deputy's decision filed May 10, 
 
            1991.
 
            
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         PAUL D. LONGFELLOW,
 
         
 
              Claimant,
 
         
 
         VS.
 
         
 
                                               File No. 872842 
 
         GREENFIELD EQUIPMENT CO.,
 
                                               A R B I T R A T I 0 N 
 
              Employer,
 
                                               D E C I S I 0 N 
 
         and
 
         
 
         FEDERATED INSURANCE,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              This is a proceeding in arbitration brought by claimant 
 
         Paul D. Longfellow against defendant employer Greenfield 
 
         Equipment Company and defendant insurance carrier Federated 
 
         Insurance to recover benefits under the Iowa Workers, 
 
         Compensation Act as the result of an injury sustained on December 
 
         .28, 1987.  This matter came on for hearing before the 
 
         undersigned in Council Bluffs, Iowa, on June 26, 1989.  The cause 
 
         was considered fully submitted at the close of hearing.
 
         
 
              The record in the proceeding consists of claimant's 
 
         exhibits A through E, defendants' exhibits A through F, both 
 
         inclusive, and the testimony of claimant, Anita Longfellow, and 
 
         Dennis Derr.
 
         
 
                                      ISSUES
 
         
 
              Pursuant to the prehearing report submitted by the parties 
 
         and approved at hearing, the following issues have been 
 
         stipulated: that an employment relationship existed between 
 
         claimant and employer on December 28, 1987; that claimant 
 
         sustained an injury on December 28, 1987, arising out of and in 
 
         the course of that employment; that the injury caused temporary 
 
         disability; that if claimant has sustained permanent disability, 
 
         it is an industrial disability to the body as a whole; that 
 
         affirmative defenses are waived; that the fees charged for 
 
         medical services and supplies are fair
 
         
 
         
 
         
 
         LONGFELLOW v. GREENFIELD EQUIPMENT CO.
 
         Page 2
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         and reasonable and the expenses were incurred for reasonable and 
 
         necessary medical treatment; that defendants voluntarily paid 
 
         19.429 weeks of compensation at the rate of $200.14 per week 
 
         prior to hearing.
 
         
 
              Issues presented for resolution include: whether the work 
 
         injury caused permanent disability; the extent of claimant's 
 
         entitlement to compensation for temporary and permanent 
 
         disability and the commencement date of the latter; the rate of 
 
         compensation (although the parties stipulated to gross weekly 
 
         earnings of $311.00, a marital status of married and four 
 
         exemptions); the extent of claimant's entitlement to medical 
 
         benefits and whether the same are casually connected to the work 
 
         injury and authorized by defendants; taxation of costs.
 
         
 
                              REVIEW OF THE EVIDENCE
 
         
 
              Claimant, age 48, testified that he had never sought 
 
         medical help or missed work with respect to back problems prior 
 
         to the subject injury.  He described the injury as occurring when 
 
         he was putting field cultivators together and picking up a shank; 
 
         while attempting to put one shank on a frame, he suffered a 
 
         "catch" in his back from a bending position.  Claimant lay down 
 
         for approximately five minutes, but felt no better and had 
 
         trouble getting up.  He immediately made an appointment with a 
 
         chiropractor, Dr. Katio, but felt no better.  Thereafter, 
 
         claimant was seen and/or treated by a succession of physicians, 
 
         including John L. Hoyt, M.D., Wayne Madden, D.C., S. Randy 
 
         Winston, M.D., Michael J. Morrison, M.D., Leonard E. Weber, M.D., 
 
         and 46 Maurice P. Margules, M. D.
 
         
 
              Claimant eventually underwent surgery at the hands of Dr. 
 
         Margules.  He has not sought work since and indicated that he is 
 
         unable to participate in heavy lifting, farm work or riding long 
 
         distances in a vehicle.
 
         
 
              Claimant agreed that he advised an insurance adjuster that 
 
         he had thrown his back out eight years before.  However, he 
 
         testified that Dr. Margules was incorrect in making a chart note 
 
         that claimant's back began hurting in September, 1987 when riding 
 
         in a truck.
 
         
 
              Claimant insisted that he has advised all of his physicians 
 
         that he suffered numbness and tingling in his legs, except 
 
         perhaps during the first months following his injury when he was 
 
         laid up from pain.
 
         
 
         
 
         
 
         LONGFELLOW v. GREENFIELD EQUIPMENT CO.
 
         Page 3
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              Anita Longfellow, claimant's wife, testified that she was 
 
         aware of no specific incident between March and July, 1988, that 
 
         exacerbated claimant's back condition.
 
         
 
              Dr. Katio's surgeon's report of January 22, 1988, reflects 
 
         that claimant was treated by spinal manipulation on December 29, 
 
         1987.  Although his handwriting is difficult for this reader, it 
 
         appears that he diagnosed lumbar strain complicated by lumbar 
 
         facet syndrome.  Claimant was advised to seek further help 
 
         elsewhere to complete his care as Dr. Katio was leaving on 
 
         vacation.
 
         
 
              John L. Hoyt, M.D., reported seeing claimant on January 5, 
 
         1988.  His objective findings were of possible degenerative disc 
 
         disease, but no overt signs of herniated disc as yet.  He noted 
 
         that there was no radiation down either leg, although claimant 
 
         had aggravation of back pain on cough and was in obvious 
 
         distress, suffering muscle spasm and pain.  He reported further 
 
         on January 8, 1988, that CT scan showed no bulging.
 
         
 
              Wayne J. Madden, D.C., saw claimant on January 12, 1988 and 
 
         treated him with spinal manipulation.  His findings were of acute 
 
         severe lumbosacral strain.
 
         
 
              S. Randy Winston, M.D., reported on January 26, 1988 that 
 
         claimant had injured himself experiencing some pain on the left 
 
         side adjacent to the L4-5 level, and that he had a little 
 
         radiation to the left hip and buttocks that had improved over the 
 
         last several weeks with treatment.  A review of a CAT scan of the 
 
         lumbar spine was negative with respect to nerve root impingement, 
 
         but he did identify a chip, new or old, at the lumbosacral joint 
 
         on the left.
 
         
 
              Dr. Winston reported on April 20, 1988 that claimant 
 
         suffered pain in the back and both legs to the knees, left more 
 
         than right.  Straight leg raising was negative.  His impression 
 
         was of chronic recurrent strain.
 
         
 
              On July 15, 1988, Dr. Winston reported claimant's complaint 
 
         of numbness to the left lower extremity, worse now with walking 
 
         and standing.  On July 18, he reported to Dr. Madden that an MRI 
 
         had been performed and showed a massive herniation at the L3-4 
 
         level.  Dr. Winston finally reported on October 3, 1988 that 
 
         claimant needed.a lumbar laminectomy and was to have had surgery 
 
         on July 28, 1988, but responsibility was denied by the workers' 
 
         compensation insurance carrier.
 
         
 
              Maurice P. Margules, M.D., testified by deposition on 
 
         October 19, 1988 that he first met claimant on July 20,
 
         
 
         
 
         
 
         LONGFELLOW v. GREENFIELD EQUIPMENT CO.
 
         Page 4
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         1988.  Claimant was hospitalized at Jennie Edmundson Memorial 
 
         Hospital on July 21, 1988 and underwent surgery on July 27, being 
 
         discharged on August 2. Dr. Margules' discharge summary reflected 
 
         that claimant stated he was free of any problems until September, 
 
         1987, when he was driving a truck with an uncomfortable seat, and 
 
         that he thereafter was suddenly seized with extremely severe pain 
 
         in the lumbar region with pain and paresthesia in both lower 
 
         extremities on December 29, 1987.  He noted that MRI imaging was 
 
         interpreted to show evidence of a massive disc herniation at L3-4 
 
         as well as some degenerative disc problem at L4-5.
 
         
 
              X-rays read by Creed Abell, M.D., on July 21, 1988, showed 
 
         lumbar disc spaces to have a normal appearance.  However, a 
 
         myelogram performed on July 22, 1988 and read by C. Morris, M.D., 
 
         showed a defect at L3-L4 and changes consistent with essentially 
 
         central disc herniation at that level.  A CT lumbar spine read 
 
         the same day by Dr. Morris indicated a herniated L3-L4 disc with 
 
         prominent effacement of the thecal sac.
 
         
 
              Dr. Winston had previously ordered magnetic resonance 
 
         imaging on July 11, 1988.  Radiologist Dr. Disbrow noted a 
 
         massive central and left-sided herniated nucleus pulposis at L3-4 
 
         resulting in significant spinal stenosis with U-shaped deformity 
 
         of the thecal sac measuring 2.5 millimeters.  Disc degeneration 
 
         with noncompressive disc bulge was seen at L4-L5.  Dr. Winston's 
 
         notes of July 27, 1988 concurred with this reading.
 
         
 
              Claimant was seen for evaluation by Michael J. Morrison, 
 
         M.D., on April 5, 1988.  Dr. Morrison's letter of the following 
 
         day noted no evidence of nerve root irritation in the form of 
 
         muscle weakness or atrophy, reflex changes or straight leg 
 
         raising findings.  He believed that claimant had reached maximum 
 
         medical recovery and could return back to his job duties within 
 
         3-4 weeks following a program of weight reduction, muscle 
 
         rehabilitation and stretching exercises to the lower back 
 
         supplemented with bicycle riding and/or swimming and a program of 
 
         anti-inflammatory medication.  His permanency was expected to be 
 
         "quite minimal to none."
 
         
 
              Claimant was also seen for evaluation by Leonard E. Weber, 
 
         M.D., on April 5, 1988.  Dr. Weber's letter of April 8 noted his 
 
         impression of lumbosacral strain, resolving, with objectively 
 
         normal neurologic examination.
 
         Computerized tomographic scanning did not show any evidence of 
 
         disc herniation.  Possible diagnoses included muscle strain, 
 
         ligamentous strain or a tear in the annulus fibrosis of a disc, 
 
         without overt herniation.  Dr.. Weber found
 
         
 
         
 
         
 
         LONGFELLOW v. GREENFIELD EQUIPMENT Co.
 
         Page 5
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         claimant to be around the point of maximum medical recovery from 
 
         a "practical standpoint."  He believed that claimant could resume 
 
         job activities at that time, but that limitations might be the 
 
         avoidance of lifting more than 20 pounds frequently or 40 pounds 
 
         occasionally, all lifting to be done from a squat position.  
 
         After a month or so, weight limitations could be dropped, but 
 
         claimant should still concentrate on proper lifting techniques.  
 
         Dr. Weber found no permanent impairment.
 
         
 
              In his deposition, Dr. Margules testified that claimant's 
 
         history was of pain in the lumbar region and the lower 
 
         extremities posteriorly, left more severe than right.  Claimant 
 
         was described as "very specific" as to the onset of his problems, 
 
         noting the truck incident of September, 1987.  The December 29 
 
         lifting incident was of sudden seizure with extremely severe pain 
 
         in the lumbar region and paresthesia in both lower extremities; 
 
         prior thereto pain was located in the lumbar region, but 
 
         radicular pain and paresthesia in the lower extremities occurred 
 
         at and after the time of the subject injury.  Past history was 
 
         described as totally noncontributory to the onset of the problem 
 
         in September, 1987.
 
         
 
              Based on claimant's history, Dr. Margules testified that 
 
         the December 29, 1987 incident was the event that caused the 
 
         acute herniation of his disc between the third and fourth lumbar 
 
         vertebrae.  The pain in claimant's lower extremities was caused 
 
         by the compression of the nerve root by the disc herniation.  At 
 
         page 15 of his deposition, Dr. Margules stressed that paresthesia 
 
         in the lower extremities was the important clinical manifestation 
 
         of the herniation, because that symptom would not normally appear 
 
         as the result of a sprain.
 
         
 
              The following exchange occurred on cross-examination:
 
              
 
              Q. If a computed tomography procedure was carried out in 
 
              January which showed no disc herniation, would that be 
 
              strong evidence that something happened after January that 
 
              would more than slightly have aggravated his condition?
 
              
 
              A. January of--
 
              
 
              Q. '88.
 
              
 
              A.--of '88? Well, yes, I must, though, say that we would--we 
 
              were speaking of a computed tomography performed without 
 
              contrast media.  Yes, I'm sure it is.  Because it's not used 
 
              usually.
 
         
 
         
 
         
 
         LONGFELLOW v. GREENFIELD EQUIPMENT CO.
 
         Page 6
 
         
 
         
 
              yes, it would be of some--indicating that maybe something 
 
              occurred after that.
 

 
              
 
 
 
 
 
 
 
 
 
 
 
              
 
              Q. All right.  You haven't seen the report or the tomography 
 
              that was done in January?
 
              
 
              A. No, I haven't.
 
         
 
         (Dr.  Margules deposition, page 21, line 21 through page 22, line 
 
         11)
 
         
 
              Dr. Margules also indicated that he did not consider 
 
         computerized tomography without contrast media to be a reliable 
 
         study and that he would not diagnose or undertake surgery on that 
 
         basis.
 
         
 
              Dr. Margules was unable to rate claimant's impairment at 
 
         the time of his deposition, but in a letter of April 26, 1989, 
 
         opined that claimant had sustained a 15 percent permanent partial 
 
         impairment of the body as a whole as a result of the subject 
 
         injury.
 
         
 
              Dr. Morrison, a board-certified orthopaedic surgeon, 
 
         testified by deposition on May 24, 1989.  Dr. Morrison saw 
 
         claimant on April 5 and again on July 26, 1988.
 
         
 
              In April, Dr. Morrison found that claimant walked without a 
 
         limp, had normal toe-heel gait, no list or spasm in the back, no 
 
         gross muscle weakness in either extremity, normal knee and ankle 
 
         jerk reflexes and negative bilateral straight leg raising.  He 
 
         felt these findings were significant as not showing any weakness 
 
         in either lower leg or significant pain that might cause limping.  
 
         Claimant complained at examination of pain in the lower back with 
 
         radiation (not paresthesia) to the leg.  Dr. Morrison found no 
 
         objective evidence of nerve root irritation on April 5, 1988.  
 
         Impairment was minimal to none based on the fact that ,there were 
 
         no objective physical findings.
 
         
 
              However, claimant's condition had changed rather 
 
         dramatically when he was next seen on July 26, 1988.  Claimant 
 
         had significant evidence of nerve root irritation with straight 
 
         leg raising, some spasm and some inability to stand erect.
 
         
 
              Dr. Morrison testified that he reviewed the January 5, 1988 
 
         CT scan and found no evidence of disc herniation or bulging of 
 
         the disc at the levels examined.  Dr. Morrison further testified 
 
         that if the findings of the July magnetic resonance imaging test 
 
         (massive central and left-sided herniated nucleus pulposis) had 
 
         been the.case in April, he
 
         
 
         
 
         
 
         LONGFELLOW v. GREENFIELD EQUIPMENT CO.
 
         Page 7
 
         
 
         
 
         would have expected the clinical picture in that,month to have 
 
         been different.  His conclusion was that claimant's injury 
 
         carried some potential of causing a disc rupture, but that CT 
 
         scans were not inconclusive for disc herniation and in April 
 
         claimant showed no objective evidence of nerve root irritation 
 
         and a negative CT scan; he concluded that claimant did not 
 
         rupture a disc at the time of injury, but had strained his lower 
 
         back.  When he presented in July, 1988, claimant's picture was 
 
         quite different and he obviously had a rather severe disc 
 
         herniation requiring surgical intervention.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Dr. Morrison also noted that the CT scan of January, 1988 
 
         was of acceptable quality and the radiologist that read it at 
 
         that time was very qualified.  He also stated that if the 
 
         findings of the magnetic resonance imaging test in July had been 
 
         present in January, "that easily could have been detectable on 
 
         the CAT scan."
 
         
 
              Dr. Morrison testified that it was possible that the work 
 
         injury had perhaps stretched or torn a ligament and led to the 
 
         earlier incipient stages of a disc bulging or herniation, but 
 
         there was no way to objectively document that injury until the 
 
         disc becomes a bulging injury or an actual herniation.  
 
         Claimant's condition in July could even have resulted from an 
 
         injury the day before, although there was no history of any 
 
         traumatic incident during the interim period.
 
         
 
              Leonard E. Weber, M.D., a board-certified neurologist, also 
 
         testified by deposition on May 24, 1989.  Dr. Weber saw claimant 
 
         for evaluation on April 5, 1988.  Dr. Weber discussed muscular 
 
         and ligamentous strains and disc herniations in some detail.  He 
 
         noted that many of the symptoms can be identical.  For example,.a 
 
         herniated disc might not press onto nerve roots or the spinal 
 
         canal and would have no symptoms of pain, numbness or weakness 
 
         and could only be diagnosed on radiological evidence.  Likewise, 
 
         a muscle strain or ligament strain can cause referred pain into 
 
         the lower extremities.  The presence of radiculopathy or 
 
         root-type syndromes makes a disc injury more.likely, but the 
 
         absence is not necessarily helpful one way or the other.
 
         
 
              When claimant was seen, he gave a history of some past back 
 
         discomfort and had some discomfort, on examination, but there had 
 
         been approximately a 2-3 week period without the discomfort 
 
         previously described.  The doctor found claimant to have normal 
 
         station, gait, and gait on heels and toes will full strength in 
 
         all extremities.  The significance is that the converse would 
 
         suggest there had been a nerve root injury.  Claimant had normal 
 
         tone, no atrophy and no
 
         
 
         
 
         
 
         LONGFELLOW v. GREENFIELD EQUIPMENT CO.
 
         Page 8
 
         
 
         
 
         fasciculations and sensory examination was normal.  Again, a 
 
         change in sensation that corresponds to the territory supplied by 
 
         a particular nerve root is an indication there has been an injury 
 
         to that nerve root.
 
         
 
              Dr. Weber understood that claimant had discomfort on the 
 
         back of both thighs which sometimes goes down to the back of the 
 
         calves like a muscle spasms that would occur on a daily basis 
 
         with certain movements (e.g., getting in or out of a car), but he 
 
         did not understand this "discomfort" to be pain or numbness.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Deep tendon reflexes were normal, claimant had no 
 
         pathological reflexes, and had full range of motion in the back 
 
         except forward flexion.  Extension was normal except for some 
 
         midline discomfort at L4-L5.  Claimant's lumbosacral paraspinous 
 
         muscles were normal in tone.  Dr. Weber's impression was of 
 
         lumbosacral strain that was apparently resolving; neurologic 
 
         examination was objectively normal except for some mild 
 
         limitation of motion on forward flexion and some mild discomfort 
 
         of the low back on extension.  There was nothing clinical in the 
 
         examination that would indicate pathology beyond that of a 
 
         lumbosacral strain.
 
         
 
              With respect to the January CT scan, Dr. Weber indicated 
 
         that he has not been formally trained in radiology and defers to 
 
         the radiologist.
 
         
 
              On cross-examination, the following exchange occurred:
 
              
 
              Q. He also had radicular pain, I believe you said, into the 
 
              hips and extending down the thighs.
 
              
 
              A. No that's not true.  He had pain extending to those 
 
              areas, but not necessarily radicular since we know that 
 
              muscle strain or ligament strain can refer an identical pain 
 
              down to the hips.  In fact, when you have pain going to both 
 
              thighs and not going below the thighs, simply on one side, 
 
              it's more likely this is a referred pain of muscular 
 
              ligamentous nature--unless you have a severe central 
 
              herniation.
 
         
 
         (Dr. Weber deposition, page 27, lines 14 through 23)
 
         
 
              With respect to the July 11 MRI finding the massive central 
 
         and left-sided herniated nucleus pulposis, Dr. Weber indicated 
 
         that these findings were inconsistent with his April examination 
 
         because of the relative lack of symptoms on the earlier occasion.
 
         
 
         
 
         
 
         LONGFELLOW v. GREENFIELD EQUIPMENT CO.
 
         Page 9
 
         
 
         
 
              With respect to Dr. Margules' history and findings, Dr. 
 
         Weber found some significant differences, particularly of 
 
         paresthesia in both lower extremities at the time of the pain in 
 
         the lumbar region on December 29.  The following exchange 
 
         occurred:
 
         
 
              Q. Is there anything in that history occurring after the 
 
              December 29th date that indicates that there is another 
 
              causative factor?
 
              
 
              A. Well, the report of the magnetic resonance imaging 
 
              scanning showing what is interpreted as massive disc 
 
              herniation at L3-4 certainly is a finding that would suggest 
 
              a different diagnosis at this time.
 

 
              
 
 
 
 
 
 
 
 
 
 
 
              
 
              Q. A different diagnosis, Doctor, but a different causative 
 
              factor?
 
              
 
              A. Of the symptoms that he was having at that time?
 
              
 
              Q. Yes, sir.
 
              
 
              A. That's what I'm saying.  The CT scan not showing evidence 
 
              of central disc herniation and the examination being 
 
              essentially normal except for some limitation of motion of 
 
              forward flexion and extension at the time of my examination, 
 
              there are several things that this could be.  It could be a 
 
              disc tear, it could be a muscle strain, or it could be a 
 
              ligamentous strain.  The examination of Dr. Margules on July 
 
              21st of 1988 with paresthesia provoked by straight leg 
 
              raising and the findings of magnetic scan with central disc 
 
              herniation would lead him to the diagnosis that the 
 
              paresthesia and the pain that he would be having at that 
 
              time would likely be due to the disc herniation itself.
 
              
 
              Q. Okay.
 
              
 
              A. So Dr. Margules and I would differ in our conclusions at 
 
              different points in time.
 
         
 
         (Dr. Weber deposition, page 39, line 5 through page 40, line 6)
 
         
 
         
 
         
 
         LONGFELLOW v. GREENFIELD EQUIPMENT CO.
 
         Page 10
 
         
 
         
 
              And:
 
              
 
              Q. Doctor, if Mr. Longfellow had had a massive central and 
 
              left-sided herniated nucleus pulposus resulting in 
 
              significant spinal stenosis with a U-shaped deformity of the 
 
              thecal sac measuring 2-1/2 millimeters on April 5th, 1988, 
 
              would you have expected his symptom picture to be different 
 
              when he saw you?
 
              
 
              A. Yes, sir.
 
         
 
         (Dr. Weber deposition, page 44, lines 19 through 25)
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              As has been seen, the parties have stipulated that claimant 
 
         sustained an injury arising out of and in the course of his 
 
         employment on December 28, 1987.  It is not truly disputed that 
 
         claimant eventually found himself in such a condition that back 
 
         surgery was required in July, 1988.  The fighting issue in this 
 
         case is whether claimant has established the requisite casual 
 
         nexus between the work injury and his condition some seven months 
 
         later.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              The claimant has the burden of proving by a preponderance 
 
         of the evidence that the injury of December 28, 1987 is casually 
 
         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 casual 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 casual 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).
 
         
 
         
 
         
 
         LONGFELLOW v. GREENFIELD EQUIPMENT CO.
 
         Page 11
 
         
 
         
 
              There is a difference in medical opinion on this crucial 
 
         issue.  Dr. Margules was the treating physician, at least insofar 
 
         as claimant's surgical procedure.  However, it is not necessarily 
 
         the case that a treating physician's testimony is to be given 
 
         more weight than that of a physician who examines claimant only 
 
         in anticipation of litigation.  Rockwell Graphics Systems, Inc. 
 
         v. Prince, 366 N.W.2d 187 (Iowa 1985).  Factors such as 
 
         education, compensation, experience, the date of the examination 
 
         and certification may go to the value of an individual 
 
         physician's testimony as a question of fact, not law.  A 
 
         physician's experience may accord his or her testimony greater 
 
         weight.  Reiland v. Palco, Inc., 32nd Biennial Report of the 
 
         Industrial Commissioner 56 (1975).
 
         
 
              As has been seen, claimant was first seen by a practitioner 
 
         of chiropractic, Dr. Katio.  Dr. Katio diagnosed lumbar strain, 
 
         but there is no indication in this record as to the extent of 
 
         claimant's complaints on the day of injury, particularly whether 
 
         he immediately suffered radicular pain or paresthesia.  Dr. Hoyt 
 
         is the first physician to note of record what claimant's initial 
 
         complaints may have been and specified that there was no 
 
         radiation down either leg.  His impression was of possible 
 
         degenerative disc disease, but he saw no overt signs of herniated 
 
         disc.  His view of the initial CT scan was that there was no 
 
         evidence of bulging.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Dr. Winston found that claimant had a little radiation to 
 
         the left hip and buttocks that had improved over the last several 
 
         weeks, but found claimant's CT scan and neurologic examination to 
 
         be negative with respect to nerve root impingement.  It was only 
 
         in July that Dr. Winston found the MRI to indicate a massive 
 
         herniation at L3-4.
 
         
 
              Claimant was also treated by Dr. Madden, whose records do 
 
         not show any discussion of radicular symptoms.  Dr. Madden found 
 
         claimant to suffer an acute severe lumbosacral strain.
 
         
 
              Claimant was seen for evaluation by a board-certified 
 
         neurologist, Leonard Weber, and a board-certified orthopaedic 
 
         surgeon, Michael Morrison, on April 5, 1988.  Dr. Winston 
 
         diagnosed resolving lumbosacral strain and Dr. Morrison had an 
 
         impression of lumbar strain.  Both physicians found claimant's 
 
         neurological examination to be normal.  Neither physician found 
 
         evidence of a disc herniation.  When Dr. Weber eventually 
 
         reviewed the CT scan done in January, 1988, he agreed that it did 
 
         not indicate any herniation or disc bulging.  Asked about 
 
         radicular pain, Dr. Weber noted that claimant had pain extending 
 
         into the
 
         
 
         
 
         
 
         LONGFELLOW v. GREENFIELD EQUIPMENT CO.
 
         Page 12
 
         
 
         
 
         lower extremities, but not necessarily radicular in nature since 
 
         muscle strain or ligament strain can refer an identical pain down 
 
         to the hips.  He stated that when an individual has pain going to 
 
         both thighs and not below, it is more likely to be a referred 
 
         pain of muscular or ligamentous nature unless a severe central 
 
         herniation exists.  Dr. Weber testified that it would surprise 
 
         him that surgery was done unless there was some sort of 
 
         exacerbation and new findings on examination or by radiographic 
 
         testing.
 
         
 
              Of course, there were new findings by radiographic testing.  
 
         Magnetic resonance imaging of July 27, 1988 showed a massive 
 
         central and left-sided herniated nucleus pulposis resulting in 
 
         significant spinal stenosis with a 2.5 millimeter U-shaped 
 
         deformity of the thecal sac.  Dr. Weber further testified that 
 
         findings of such significance should have appeared on the January 
 
         CT scan if they had existed at that time.  It was on July 15 
 
         that-claimant returned to see Dr. Winston complaining of numbness 
 
         in the left lower extremity, worse now with walking and standing.
 
         
 
              Dr. Margules opined that claimant's herniation did occur at 
 
         the time of the work injury.  This was based on claimant's 
 
         history, particularly including paresthesia since that date and 
 
         continuing.  The record evidenced does not convince this observer 
 
         that such was the case.  Dr. Morrison demonstrated that claimant 
 
         had no paresthesia when seen on April 5 and believed that 
 
         claimant's clinical condition had changed dramatically between 
 
         then and when he was seen again in July, there being on the 
 
         latter date significant evidence of nerve root irritation.  
 
         Similarly, Dr. Morrison did not believe the January CT scan 
 
         showed evidence of disc herniation (relying on the interpretation 
 
         of the radiologist) and believed that the clinical picture 
 
         claimant presented in April would have been different if a 
 
         herniation existed at that time.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              This writer finds the opinions of Dr. Morrison and Dr. 
 
         Weber to be more persuasive than that of Dr. Margules in that the 
 
         history relied upon by Dr. Margules appears inaccurate and the 
 
         clinical findings of Drs. Morrison and weber indicate that 
 
         claimant did not suffer from a herniated disc in April, 1988.  He 
 
         certainly did thereafter, but it is unclear how this exacerbation 
 
         came to pass.
 
         
 
              Where a work injury has been established, the employer is 
 
         liable for all consequences that naturally and proximately flow 
 
         from the original accident.  Oldham v. Scofield & Welch, 222 Iowa 
 
         764, 266 N.W. 480 (1936).  That is to say, naturally occurring 
 
         sequelae of an original injury are compensable.  However, it 
 
         cannot be said on the
 
         
 
         
 
         
 
         LONGFELLOW v. GREENFIELD EQUIPMENT Co.
 
         Page 13
 
         
 
         
 
         state of this record that claimant's eventual disc herniation has 
 
         been shown to be a naturally occurring sequela of the original 
 
         injury.  Claimant has failed to establish by his burden of proof 
 
         that his condition in July, 1988 was caused by the original work 
 
         injury.
 
         
 
              Drs. Morrison and Weber found that claimant had sustained 
 
         either minimal or no permanent impairment as of April, 1988, 
 
         before the manifestation of his disc herniation.  This is the 
 
         best evidence as to his level of impairment resulting from the 
 
         work injury.  It is therefore held that claimant has failed to 
 
         establish that he sustained permanent disability resulting from 
 
         the subject work injury.
 
         
 
              The parties have stipulated that claimant sustained 
 
         temporary disability by reason of the work injury.  Under Iowa 
 
         Code sections 85.33 and 85.32, temporary total disability is 
 
         payable until the employee has returned to work or is medically 
 
         capable of returning to employment substantially similar to that 
 
         in which he was engaged at the time of injury, whichever first 
 
         occurs.  In this case, claimant has never returned to work.  The 
 
         best evidence, that of Drs. Morrison and Weber, is that claimant 
 
         could have returned to unrestricted work 3-4 weeks following 
 
         April 5, 1988.  Using the four-week alternative as more 
 
         realistically allowing the greater leeway, it is held that 
 
         claimant's period of temporary total disability began on December 
 
         28, 1987 and extended through May 3, 1988, a total of 18 weeks, 
 
         zero days.
 
         
 
              The parties stipulated to a gross average weekly wage of 
 
         $311.00, a marital status of married, and an entitlement to four 
 
         exemptions.  A review of the "Guide to Iowa Workers' Compensation 
 
         Claim Handling" published by this agency and effective July 1, 
 
         1987 indicates that an individual so situated is entitled to a 
 
         benefit rate of $208.85.  Therefore, claimant is entitled to 
 
         temporary total disability benefits totalling $3,759.30.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Medical expenses are also at issue.  A review of the 
 
         medical bills submitted indicates that they either relate to care 
 
         and treatment after the herniation that is found not casually 
 
         related to the original injury, or were not authorized 
 
         (Nebraska-Iowa Radiology Consultants, Inc., exhibit B4; Creston 
 
         Medical Clinic, exhibit B5; Dr. Madden, exhibit B6).  A failure 
 
         of authorization for medical treatment is a defense.  Jeffrey v. 
 
         Jack A. Schroeder Inc., 32nd Biennial Report of the Industrial 
 
         Commissioner 121 (1974).  All the medical bills submitted either 
 
         lack a casual nexus to the original work injury or have not been
 
         
 
         
 
         
 
         LONGFELLOW v. GREENFIELD EQUIPMENT CO.
 
         Page 14
 
         
 
         
 
         shown to be authorized.  Therefore, medical benefits shall not be 
 
         awarded under Iowa Code section 85.27.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              THEREFORE, based on the evidence presented, the following 
 
         ultimate facts are found:
 
         
 
              1. As stipulated, claimant sustained an injury arising out 
 
         of and in the course of his employment on December 28, 1987.
 
         
 
              2. Claimant's injury has not been shown to be other than a 
 
         lumbar strain or sprain which was expected to completely resolve, 
 
         although claimant later in an unknown fashion exacerbated his 
 
         back condition, suffering a herniated disc at L3-L4.
 
         
 
              3. Claimant was disabled from work by reason of his 
 
         stipulated work injury from December 28, 1987 through May 3, 1988 
 
         (18 weeks).
 
         
 
              4. Although claimant eventually underwent surgery for his 
 
         herniated disc, he has not shown that this exacerbation bears a 
 
         casual relationship to the original work injury.
 
         
 
              5. As stipulated, claimant had gross weekly earnings of 
 
         $311.00, was married and had four exemptions at the time of the 
 
         work injury.
 
         
 
              6. Various medical expenses claimed in this case either 
 
         were unauthorized or have not been shown to bear a casual 
 
         relationship to the work injury.
 
         
 
              7. As stipulated, defendants voluntarily paid claimant 
 
         19.429 weeks of compensation at the rate of $200.14 per week 
 
         prior to hearing.  This totals $3,888.52, which is in excess of 
 
         claimant's entitlement.
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
                                CONCLUSIONS OF LAW
 
         
 
              WHEREFORE, based on the principles of law previously cited, 
 
         the following conclusions of law are made:
 
         
 
              1. By reason of his stipulated work injury of December 28, 
 
         1987, claimant is entitled to temporary total disability benefits 
 
         from that date through May 3, 1988 (18 weeks, zero days).
 
         
 
              2. Claimant has failed to establish by his burden of proof 
 
         that he sustained permanent industrial disability by
 
         
 
         
 
         
 
         LONGFELLOW v. GREENFIELD EQUIPMENT CO.
 
         Page 15
 
         
 
         
 
         reason of the work injury, although he later suffered an 
 
         exacerbation of unknown etiology.
 
         
 
              3. Claimant's appropriate rate of compensation is $208.85 
 
         per week.
 
         
 
              4. Claimant is not entitled to medical benefits under Iowa 
 
         Code section 85.27 because incurred expenses either were 
 
         unauthorized or lack a casual relationship to the work injury.
 
         
 
              5. Defendants have voluntarily paid claimant temporary 
 
         total disability benefits in excess of his entitlement.
 
         
 
                                      ORDER
 
         
 
              IT IS THEREFORE ORDERED:
 
         
 
              Claimant shall take nothing from this proceeding.
 
         
 
              Costs of this action shall be assessed to defendants 
 
         pursuant to Division of Industrial Services Rule 343-4.33.
 
         
 
              Signed and filed this 10th day of May, 1990.
 
         
 
         
 
         
 
         
 
         
 
         
 
                                               DAVID RASEY
 
                                               DEPUTY INDUSTRIAL 
 
         COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. C. R. Hannan
 
         Attorney at Law
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         215 South Main Street
 
         P.O. Box 1016
 
         Council Bluffs, Iowa  51502
 
         
 
         Mr. Frank T. Harrison
 
         Attorney at Law
 
         Suite 111, Terrace Center
 
         2700 Grand Avenue
 
         Des Moines, Iowa 50312
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                                               1402 40
 
                                               Filed May 10, 1990
 
                                               DAVID RASEY
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         PAUL D. LONGFELLOW,
 
         
 
              Claimant,
 
         
 
         VS.
 
         
 
                                               File No.  872842
 
         GREENFIELD EQUIPMENT CO.,
 
                                         A R B I T R A T I 0 N
 
              Employer,
 
                                               D E C I S I 0 N 
 
         and
 
         
 
         FEDERATED INSURANCE,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         1402.40
 
         
 
              Claimant suffered stipulated back injury, but had no 
 
         immediate ' complaints of radicular pain or paresthesia.  CT scan 
 
         showed no defect.  Three months later, two boardcertified 
 
         physicians diagnosed only resolving lumbar strain.  Three months 
 
         after that, claimant developed severe symptoms and was found to 
 
         have suffered a massive disc herniation at L3-4.
 
         
 
              Surgeon opined that casual relationship existed, but based 
 
         opinion on inaccurate history. opinions of evaluating physicians 
 
         were accepted as consistent with history and clinical findings.
 
         
 
              Herniation found to be of unknown etiology and not proven 
 
         to be sequela of injury.  No. permanency was awarded.
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            BARBARA STEELE,               :
 
                                          :
 
                 Claimant,                :
 
                                          :        File No. 873175
 
            vs.                           :
 
                                          :
 
            MORSE RUBBER PRODUCTS COMPANY,:     A R B I T R A T I O N
 
                                          :
 
                                          :        D E C I S I O N
 
                 Employer,                :
 
                                          :
 
            and                           :
 
                                          :
 
            FIREMAN'S FUND INSURANCE CO., :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 This case came on for hearing on September 5, 1990, in 
 
            Burlington, Iowa.  This is a proceeding in arbitration where 
 
            claimant seeks compensation for permanent partial disability 
 
            benefits as a result of an alleged injury occurring on 
 
            January 12, 1988.  The record in the proceeding consists of 
 
            the testimony of claimant and Joyce Patterson; and joint 
 
            exhibits A, B, D through H, and 1 through 45.  (The parties 
 
            marked exhibits as each party's individual exhibits but, in 
 
            fact, agreed they all should be joint.)
 
            
 
                 At the time of this hearing on September 5, 1990, the 
 
            attorneys referred to a prior case of Barbara Steele (File 
 
            No. 816371) which was heard in February of 1990 by another 
 
            deputy.  The parties requested that the undersigned deputy 
 
            take official notice of said decision and referred to it as 
 
            exhibit 42 but mentioned that said decision had not yet been 
 
            written.  It was the belief of all concerned that it would 
 
            be expeditious and advisable to wait, if possible, on the 
 
            decision of the prior case as that decision may affect the 
 
            party and the case herein under consideration.  The 
 
            undersigned has waited for that decision to be filed.  That 
 
            decision has now been filed as of October 30, 1990, and the 
 
            undersigned will take official notice of that decision.
 
            
 
                          
 
            
 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            issues
 
            
 
                 The issues for resolution are:
 
            
 
                 1.  Whether claimant's January 12, 1988 injury arose 
 
            out of and in the course of her employment;
 
            
 
                 2.  Whether claimant's alleged disability is causally 
 
            connected to her January 12, 1988 injury; and,
 
            
 
                 3.  The nature and extent of claimant's disability and 
 
            entitlement to disability benefits.
 
            
 
                                 findings of fact
 
            
 
                 The undersigned deputy having heard the testimony and 
 
            considered all the evidence, finds that:
 
            
 
                 Claimant testified at the hearing and by way of her 
 
            deposition on August 6, 1990.  Claimant is 56 years old and 
 
            completed the eleventh grade and does have her GED.  Her 
 
            work history has mainly been in production and factory work.  
 
            Claimant has worked 15 years for defendant employer.  
 
            Claimant related her February 11, 1986 work injury which 
 
            went to hearing and is represented by the decision in File 
 
            No. 816371 filed October 30, 1990.  In that decision, 
 
            claimant was awarded 25 percent industrial disability as a 
 
            result of a 15 percent permanent impairment to her body as a 
 
            whole due to an injury to her lower back.  Claimant had been 
 
            released to return to work with no restrictions as a result 
 
            of the 1986 injury.
 
            
 
                 Claimant related a 1987 injury in which she slipped and 
 
            fell on a rowing machine and cut her Achilles tendon in two.
 
            
 
                 Claimant contends she does little housework and says 
 
            she can hardly bend over, carry, lift, sweep, vacuum, or do 
 
            any work which would require her to reach because of her 
 
            injuries and medical condition.  Claimant contends she was 
 
            not able to do all the above after her 1986 injury, but she 
 
            said she is more limited now because of her January 12, 1988 
 
            injury.  Claimant acknowledged she could not do much of the 
 
            above after her 1986 injury and contends she and can't do 
 
            them now.
 
            
 
                 Claimant related her work history.  Claimant has worked 
 
            for defendant employer over a period of approximately 15 
 
            years beginning in 1973.  She described the various jobs she 
 
            has done for defendant employer.
 
            
 
                 Claimant incurred a decompressive laminectomy at L4-5 
 
            on June 16, 1986.  Claimant eventually returned to full-time 
 
            work on December 23, 1987 with the approval of Jerry L. 
 
            Jochims, M.D.  At that time, claimant had a 20 to 30 pound 
 
            weight restriction.  Claimant had gradually worked up to 
 
            this return to full-time work by working limited hours, 
 
            basically 20 hours per week.  Prior to claimant's return to 
 
            work, claimant also had a cut Achilles tendon in May 1987 
 
            that kept her off work until October 1987.  Since the 
 
            holiday season and the defendant employer's two week 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            shutdown was in effect during this period when she returned 
 
            to work, claimant actually worked three to four days 
 
            full-time until she got hurt on January 12, 1988, while 
 
            bending over and pounding the doffers (Joint Exhibit B, p. 
 
            35).  Claimant hurt so bad she was taken to the hospital and 
 
            put in traction.  She was treated by Dr. Jochims, who was 
 
            the treating doctor during her first injury in 1986.  He 
 
            kept her off work and she never has worked since.  Claimant 
 
            contends she could never again do the same work she was 
 
            doing at the time of this January 12, 1988 injury.
 
            
 
                 Claimant described a doffer as a piece of equipment 
 
            that is in a cotton picker.  It is a small rubber on a metal 
 
            piece weighing one to one and one-half pounds which are 
 
            stacked 100 in a box.  In order to stack them, a person must 
 
            bend over the box and use a mallet to pound them in the box 
 
            so they fit.
 
            
 
                 Claimant acknowledged she has not been without pain and 
 
            has hurt a lot since her 1986 injury, but indicated she 
 
            could tolerate it.  She indicated she couldn't tolerate the 
 
            pain after her January 12, 1988 injury (Jt. Ex. B, p. 37).
 
            
 
                 Claimant testified that just prior to returning to work 
 
            full-time December 23, 1987, she was working twenty hours 
 
            per week and was in pain and agony but emphasized she could 
 
            not financially afford to be on a twenty hour work week no 
 
            matter how bad she hurt (Jt. Ex. B, p. 41).  Claimant said 
 
            she has pain in the same location now as she had after her 
 
            first injury in 1986.  Claimant refused to tell her weight 
 
            during her testimony but admitted she is heavier now than 
 
            she has ever been.  She said she uses the TENS unit a lot.  
 
            This unit was prescribed on February 17, 1988 (Jt. Ex. 21) 
 
            by William A. Roberts, M.D., an orthopedic surgeon.
 
            
 
                 Claimant has not worked since her January 12, 1988 
 
            injury at defendant employer and did apply for unemployment 
 
            and received some benefits.  She was later requested to 
 
            return her benefits.  Claimant contends she did look for 
 
            some jobs but it appears she was not very industrious about 
 
            it.  Claimant hasn't looked for work since early 1988 (Jt. 
 
            Ex. B, p. 48).  She said she does not intend to work unless 
 
            her condition improves.  She is receiving social security 
 
            benefits which are now $507 per month.  Social security 
 
            benefits originally began in March 1988.  Claimant also 
 
            receives $130 per month disability from defendant employer.  
 
            Claimant said she has a bad heart and has had heart trouble 
 
            for 20 years.
 
            
 
                 The parties submitted numerous exhibits which were 
 
            obviously a part of claimant's February 8, 1990 hearing 
 
            (File No. 816371).  The undersigned is not going to look 
 
            behind the decision findings of Deputy Industrial 
 
            Commissioner David Rasey regarding the above decision and 
 
            hearing on February 8, 1990.  The undersigned will take 
 
            official notice of the decision of Deputy David Rasey.  The 
 
            undersigned, for purposes of this current decision, is 
 
            presuming Deputy Rasey's decision will stand up under any 
 
            appeal proceedings.
 
            
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
                 The parties have not done a good job of numbering 
 
            exhibits.  The parties submitted all the exhibits as joint 
 
            exhibits even though they may be marked otherwise.  
 
            Defendant's exhibit D shows that all the employees were 
 
            terminated by defendant employer on July 15, 1988 because 
 
            the company's assets were sold.
 
            
 
                 The notes of William A. Roberts, M.D., dated April 13, 
 
            1988, reflects claimant's functional capacity test showed a 
 
            lifting limitation and the doctor set a "no repetitive 
 
            lifting of greater than 15 lbs." and "no repetitive bending, 
 
            stooping or reaching" restriction.  The doctor said claimant 
 
            reached maximum recovery March 23, 1988 (Jt. Ex. 20, p. 96).  
 
            On February 23, 1990, Dr. Roberts opined in his report that 
 
            claimant had a 9 percent permanent partial impairment to her 
 
            body as a whole.  He indicated he reviewed the claimant's 
 
            prior medical records but he would not address how her 
 
            restrictions or impairments would have varied between 
 
            claimant's 1986 and 1988 injuries (Jt. Ex. 40).  Dr. Roberts 
 
            testified by way of his deposition on March 13, 1990 (Jt. 
 
            Ex. 43).  His first contact with claimant was on January 20, 
 
            1988.
 
            
 
                 The doctor opined that, based on claimant's medical 
 
            history, claimant did aggravate a preexisting condition on 
 
            January 12, 1988, and that some undetermined amount of 
 
            permanent impairment resulted from this aggravation (Jt. Ex. 
 
            43, p. 9).
 
            
 
                 Although the doctor could not determine the division of 
 
            any degree of permanent impairment, it is obvious that if he 
 
            had known of claimant's 1986 injury and impairment, he would 
 
            not attribute all of the 9 percent to the alleged January 
 
            12, 1988 injury.  Since he had no vocal point as to the 
 
            February 13, 1986 injury and her healing and status from 
 
            that injury as of January 11, 1988, he could not determine 
 
            the extent of additional, if any, permanent partial 
 
            impairment from the alleged January 12, 1988 injury.
 
            
 
                 There appears no change in the restrictions Dr. Roberts 
 
            gave claimant in April 1988.  In his testimony, he said he 
 
            would not change those restrictions from what he now knows.
 
            
 
                 Claimant had a 20 to 30 pound lifting restriction and a 
 
            15 percent impairment as a result of claimant's February 13, 
 
            1986 injury.  This rating was by Dr. Jochims.  Dr. Jochims 
 
            referred claimant to Dr. Roberts as to claimant's January 
 
            12, 1988 injury.  There is only one impairment rating from 
 
            this 1988 injury.  The undersigned finds that the greater 
 
            weight of medical evidence shows claimant materially 
 
            aggravated, lighted up and worsened a preexisting low back 
 
            condition that resulted from the 1986 injury.  It is of 
 
            great interest and concern that the doctor treating claimant 
 
            for the 1986 injury opined a 15 percent permanent partial 
 
            impairment and after a further aggravation has been found 
 
            herein by the undersigned, claimant's impairment now is 9 
 
            percent according to Dr. Roberts, who was the treating 
 
            specialist for claimant's 1988 injury.  Dr. Roberts could 
 
            not divide the impairment between the 1986 and 1988 
 
            injuries.  Notwithstanding the record indicating claimant 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            has less impairment now than she did after her 1986 injury, 
 
            the undersigned believes claimant does have a more severe 
 
            medical problem and condition now than she did prior to 
 
            January 12, 1988, as evidence by the increased medical 
 
            restrictions.
 
            
 
                 The parties stipulated claimant was off work January 
 
            13, 1988 to and including April 13, 1988.  The undersigned 
 
            finds claimant incurred a material aggravation of her 
 
            previous existing low back condition which arose out of and 
 
            in the course of claimant's employment on January 12, 1988, 
 
            and that this injury resulted in a healing period beginning 
 
            January 13, 1988 to and including April 13, 1988, which 
 
            totals 13.143 weeks payable at the parties' stipulated rate 
 
            of $104.80 per week.  The undersigned further finds that 
 
            claimant's low back aggravation was caused by claimant's 
 
            January 12, 1988 injury.
 
            
 
                 Claimant hasn't worked since his January 12, 1988 work 
 
            injury.  The undersigned questions claimant's motivation and 
 
            yet it is understandable that pain and low back problems can 
 
            be very debilitating, and particularly to one whose back and 
 
            lifting ability are very important in performing the work 
 
            she was doing at the time of the injury and to which she has 
 
            been accustomed.
 
            
 
                 Claimant has an increased weight restriction from 20 to 
 
            30 pounds now down to 15 pounds.  She is already in a light 
 
            duty work threshold.  Claimant had only worked approximately 
 
            three and no more than five days full-time before she 
 
            incurred her 1988 aggravation injury.  Her testimony 
 
            indicates she seemed to question her ability to return 
 
            full-time in December 1987 but needed the money.  The doctor 
 
            released her to work full-time at that time.  She seems to 
 
            have had much agony and pain still resulting from her 1986 
 
            injury at the time of her return to work.
 
            
 
                 Claimant said she is now disabled for social security 
 
            purposes.  Social security has for the most part different 
 
            criteria for determining disability entitlement.  Also, the 
 
            record doesn't show what was considered.  It appears 
 
            claimant has had problems that are not connected with her 
 
            1988 injury.
 
            
 
                 The current record indicates claimant has not made a 
 
            meaningful effort to find a job.  It is understandable that 
 
            her motivation is reduced to nothing because her obtaining a 
 
            job would affect her entitlement to social security benefits 
 
            and most likely her disability benefits from defendant 
 
            employer.
 
            
 
                 Claimant is 56 years old and appears to be of average 
 
            intelligence.  She has no real readily transferable skills 
 
            considering her impairment and medical condition.  Extensive 
 
            retraining at her age is not very feasible.  Claimant does 
 
            have an increased loss of earning capacity due to her 
 
            increased restrictions.  She has not worked since her 1988 
 
            injury, but if claimant put in the effort she put in to 
 
            return to work after her 1988 injury and need for financial 
 
            resources, there would be a better test of her loss of 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            income.  As mentioned above, other factors have now affected 
 
            her motivation.
 
            
 
                 Taking into consideration claimant's age, education, 
 
            preexisting injury and impairment, her total medical and 
 
            work history, her healing period and other factors used in 
 
            determining one's industrial disability, the undersigned 
 
            finds claimant has a 50 percent industrial disability.  
 
            Claimant's January 12, 1988 work injury caused an increase 
 
            in industrial disability to claimant.  Assuming claimant's 
 
            25 percent industrial disability found as a result of her 
 
            February 13, 1986 injury (File No. 816371) withstands any 
 
            further appeals, claimant is entitled to 25 percent more 
 
            industrial disability as a result of her January 12, 1988 
 
            injury.  It is to be kept in mind that the undersigned has 
 
            found that claimant has a 50 percent industrial disability.  
 
            Therefore, if for any reason the disability found in case 
 
            file No. 816371 is increased or decreased by further agency 
 
            or court action, then the extent of industrial disability 
 
            found in this current case will be affected accordingly.  In 
 
            other words, regardless of what might ultimately be 
 
            determined through appeal in the prior injury case, that 
 
            does not change the undersigned's opinion that at the time 
 
            this current case was heard claimant had a total industrial 
 
            disability of 50 percent.
 
            
 
                                conclusions of law
 
            
 
                 Claimant has the burden of proving by a preponderance 
 
            of the evidence that she received an injury on January 12, 
 
            1988 which arose out of and in the course of her employment.  
 
            McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); 
 
            Musselman v. Central Telephone Co., 261 Iowa 352, 154 
 
            N.W.2d 128 (1967). 
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury of January 12, 
 
            1988 is causally related to the disability on which she now 
 
            bases her claim.  Bodish v. Fischer, Inc., 257 Iowa 516, 133 
 
            N.W.2d 867 (1965).  Lindahl v. L. O. Boggs, 236 Iowa 296, 18 
 
            N.W.2d 607 (1945).  A possibility is insufficient; a 
 
            probability is necessary.  Burt v. John Deere Waterloo 
 
            Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955).  The 
 
            question of causal connection is essentially within the 
 
            domain of expert testimony.  Bradshaw v. Iowa Methodist 
 
            Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). 
 
            
 
                 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.
 
            
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
                 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.
 
            
 
                 Our supreme court has stated many times that a claimant 
 
            may recover for a work connected aggravation of a 
 
            preexisting condition.  Almquist v. Shenandoah Nurseries, 
 
            218 Iowa 724, 254 N.W. 35 (1934).  See also Auxier v. 
 
            Woodward State Hosp. Sch., 266 N.W.2d 139 (Iowa 1978); Gosek 
 
            v. Garmer and Stiles Co., 158 N.W.2d 731 (Iowa 1968); Barz 
 
            v. Oler, 257 Iowa 508, 133 N.W.2d 704 (1965); Olson v. 
 
            Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251 
 
            (1963); Yeager, 253 Iowa 369, 112 N.W.2d 299; Ziegler v. 
 
            United States Gypsum Co., 252 Iowa 613, 106 N.W.2d 591 
 
            (1960).
 
            
 
                 An employee is not entitled to recover for the results 
 
            of a preexisting injury or disease but can recover for an 
 
            aggravation thereof which resulted in the disability found 
 
            to exist.  Olson, 255 Iowa 1112, 125 N.W.2d 251; Yeager, 253 
 
            Iowa 369, 112 N.W.2d 299; Ziegler, 252 Iowa 613, 106 N.W.2d 
 
            591 (1960).  See also Barz, 257 Iowa 508, 133 N.W.2d 704; 
 
            Almquist v. Shenandoah Nurseries, 218 Iowa 724, 254 N.W. 35 
 
            (1934).
 
            
 
                 If claimant has an impairment to the body as a whole, 
 
            an industrial disability has been sustained.  Industrial 
 
            disability was defined in Diederich v. Tri-City Railway Co., 
 
            219 Iowa 587, 593, 258 N.W.2d 899, 902 (1935) as follows: 
 
            "It is therefore plain that the legislature intended the 
 
            term `disability' to mean `industrial disability' or loss of 
 
            earning capacity and not a mere `functional disability' to 
 
            be computed in the terms of percentages of the total 
 
            physical and mental ability of a normal man."
 
            
 
                 Iowa Code section 85.34(1) provides that if an employee 
 
            has suffered a personal injury causing permanent partial 
 
            disability, the employer shall pay compensation for a 
 
            healing period from the day of the injury until (1) the 
 
            employee returns to work; or (2) it is medically indicated 
 
            that significant improvement from the injury is not 
 
            anticipated; or (3) until the employee is medically capable 
 
            of returning to substantially similar employment.
 
            
 
                 Functional impairment is an element to be considered in 
 
            determining industrial disability which is the reduction of 
 
            earning capacity, but consideration must also be given to 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            the injured employee's age, education, qualifications, expe
 
            rience and inability to engage in employment for which he is 
 
            fitted.  Olson v. Goodyear Service Stores, 255 Iowa 1112, 
 
            125 N.W.2d 251 (1963).  Barton v. Nevada Poultry, 253 Iowa 
 
            285, 110 N.W.2d 660 (1961).
 
            
 
                 A finding of impairment to the body as a whole found by 
 
            a medical evaluator does not equate to industrial disabil
 
            ity.  This is so as impairment and disability are not syn
 
            onymous.  Degree of industrial disability can in fact be 
 
            much different than the degree of impairment because in the 
 
            first instance reference is to loss of earning capacity and 
 
            in the latter to anatomical or functional abnormality or 
 
            loss.  Although loss of function is to be considered and 
 
            disability can rarely be found without it, it is not so that 
 
            a degree of industrial disability is proportionally related 
 
            to a degree of impairment of bodily function.
 
            
 
                 Factors to be considered in determining industrial dis
 
            ability include the employee's medical condition prior to 
 
            the injury, immediately after the injury, and presently; the 
 
            situs of the injury, its severity and the length of healing 
 
            period; the work experience of the employee prior to the 
 
            injury, after the injury and potential for rehabilitation; 
 
            the employee's qualifications intellectually, emotionally 
 
            and physically; earnings prior and subsequent to the injury; 
 
            age; education; motivation; functional impairment as a 
 
            result of the injury; and inability because of the injury to 
 
            engage in employment for which the employee is fitted.  Loss 
 
            of earnings caused by a job transfer for reasons related to 
 
            the injury is also relevant.  These are matters which the 
 
            finder of fact considers collectively in arriving at the 
 
            determination of the degree of industrial disability.
 
            
 
                 There are no weighting guidelines that indicate how 
 
            each of the factors are to be considered.  There are no 
 
            guidelines which give, for example, age a weighted value of 
 
            ten percent of the total value, education a value of fifteen 
 
            percent of total, motivation - five percent; work experience 
 
            - thirty percent, etc.  Neither does a rating of functional 
 
            impairment directly correlate to a degree of industrial 
 
            disability to the body as a whole.  In other words, there 
 
            are no formulae which can be applied and then added up to 
 
            determine the degree of industrial disability.  It therefore 
 
            becomes necessary for the deputy to draw upon prior 
 
            experience, general and specialized knowledge to make the 
 
            finding with regard to degree of industrial disability.   
 
            See Peterson v. Truck Haven Cafe, Inc., (Appeal Decision, 
 
            February 28, 1985); Christensen v. Hagen, Inc., (Appeal 
 
            Decision, March 26, l985).
 
            
 
                 It is further concluded that:
 
            
 
                 Claimant incurred an injury on January 12, 1988 which 
 
            arose out of and in the course of her employment and which 
 
            injury caused a material worsening and acceleration and 
 
            lightening of a preexisting low back condition, which 
 
            preexisting condition had already resulted in an impairment 
 
            and industrial disability to the claimant.
 
            
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
                 Claimant had a 15 percent permanent partial impairment 
 
            to her body as a whole as a result of a prior February 13, 
 
            1986 injury.
 
            
 
                 Claimant had a permanent 20 to 30 pound weight 
 
            restriction prior to her January 12, 1988 work injury.
 
            
 
                 Claimant's January 12, 1988 work injury caused an 
 
            additional permanent weight restriction of no repetitive 
 
            lifting of greater than 15 pounds and no repetitive bending, 
 
            stooping or reaching.
 
            
 
                 Claimant incurred a healing period beginning January 
 
            13, 1988 to and including April 13, 1988, amounting to 
 
            13.143 weeks payable at a rate of $104.80 as a result of her 
 
            January 12, 1988 work injury.
 
            
 
                 Claimant has a greater loss of earning capacity due to 
 
            her January 12, 1988 work injury.
 
            
 
                 Claimant has a combined 50 percent industrial 
 
            disability as the result of claimant's January 12, 1988 and 
 
            February 13, 1986 injuries.
 
            
 
                                      order
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 That defendants shall pay unto claimant healing period 
 
            benefits at the rate of one hundred four and 80/100 
 
            ($104.80) per week for the period beginning January 13, 1988 
 
            to and including April 13, 1988, amounting to thirteen point 
 
            one four three (13.143) weeks.
 
            
 
                 That defendants shall pay unto claimant one hundred 
 
            twenty-five (125) weeks of permanent partial disability 
 
            benefits at the rate of one hundred four and 80/100 dollars 
 
            ($104.80), beginning April 14, 1988.  This is in addition to 
 
            the one hundred twenty-five (125) weeks awarded in case No. 
 
            816371.
 
            
 
                 That defendants shall pay accrued weekly benefits in a 
 
            lump sum and shall receive credit against the award for 
 
            weekly benefits previously paid.  The parties stipulated 
 
            that claimant has previously been paid twenty-three (23) 
 
            weeks of benefits at one hundred four and 80/100 dollars 
 
            ($104.80) per week.
 
            
 
                 That defendants shall pay interest on benefits awarded 
 
            herein as set forth in Iowa Code section 85.30.
 
            
 
                 That defendants shall pay the costs of this action, 
 
            pursuant to Division of Industrial Services Rule 343-4.33.
 
            
 
                 That defendants shall file an activity report upon 
 
            payment of this award as required by this agency, pursuant 
 
            to Division of Industrial Services Rule 343-3.1
 
            
 
                 Signed and filed this _____ day of November, 1990.
 
            
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          BERNARD J. O'MALLEY
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies to:
 
            
 
            Mr James P Hoffman
 
            Attorney at Law
 
            Middle Rd
 
            P O Box 1066
 
            Keokuk IA 52632
 
            
 
            Mr Richard G Book
 
            Attorney at Law
 
            500 Liberty Bldg
 
            Des Moines IA 50309
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                      5-1100; 5-1108.50; 1803
 
                      Filed November 14, 1990
 
                      Bernard J. O'Malley
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            BARBARA STEELE,               :
 
                                          :
 
                 Claimant,                :
 
                                          :        File No. 873175
 
            vs.                           :
 
                                          :
 
            MORSE RUBBER PRODUCTS COMPANY,:     A R B I T R A T I O N
 
                                          :
 
                                          :        D E C I S I O N
 
                 Employer,                :
 
                                          :
 
            and                           :
 
                                          :
 
            FIREMAN'S FUND INSURANCE CO., :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            5-1100
 
            Found claimant's injury arose out of and in the course of 
 
            her employment.
 
            
 
            5-1108.50
 
            Found claimant's permanent partial disability causally 
 
            connected to her work injury.
 
            
 
            1803
 
            Found claimant has a 50% industrial disability of which 25% 
 
            is related to a January 12, 1988 injury, assuming a prior 
 
            decision filed October 30, 1990 of another deputy involving 
 
            a February 13, 1988 injury which found a 25% industrial 
 
            disability withstands appeals, if any.  Therefore, as an 
 
            example, if the industrial disability in the October 30, 
 
            1990 decision is reduced on an appeal to 20%, then the 
 
            January 12, 1988 injury would result in a 30% industrial 
 
            disability and vice versa.