BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         RAYMOND MORTIMER,
 
         
 
              Claimant,                              File No. 878988
 
         
 
         vs.                                      A R B I T R A T I O N
 
         
 
         KAST KEOKUK, STEEL CASTINGS                 D E C I S I O N
 
         CO., INC.,
 
         
 
              Employer,                                 F I L E D
 
         
 
         and                                           DEC 19 1989
 
         
 
         BITUMINOUS INSURANCE COMPANIES,       IOWA INDUSTRIAL COMMISSIONER
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              This is an arbitration proceeding brought by Raymond 
 
         Mortimer, claimant, against Keokuk Steel Castings Co., Inc., 
 
         employer, and Bituminous Insurance Company, insurance carrier, 
 
         defendants.  The case was heard by the undersigned in Burlington, 
 
         Iowa on September 21, 1989.
 
         
 
              The record consists of the testimony of claimant.  The 
 
         record also consists of joint exhibits 1-9.
 
         
 
                                    ISSUES
 
         
 
              As a result of the prehearing report and order submitted and 
 
         approved on September 21, 1989, the issues presented by the 
 
         parties are:
 
         
 
              1.  Whether claimant received,an injury which arose out of 
 
         and in the course of employment;
 
         
 
              2.  Whether there is a causal relationship between the 
 
         alleged injury and the disability; and,
 
         
 
              3.  Whether, claimant is entitled to temporary 
 
         disability/healing period benefits or permanent partial or total 
 
         disability benefits.
 
         
 
                                   STIPULATIONS
 
         
 
              Prior to the hearing, the parties entered into a number of 
 
         stipulations.  The.stipulations are as follows:
 
         
 
                                                
 
                                                         
 
              1.  The existence of an employer-employee relationship 
 
         between claimant and employer at the time of the alleged injury;
 
         
 
              2.  That the type of permanent disability, if the injury is 
 
         found to be a cause of permanent disability, is stipulated to be 
 
         a scheduled member disability to the second finger on the right 
 
         hand under section 85.34(2)(c); and,
 
         
 
              3.  That in the event of an award of weekly benefits, the 
 
         rate of weekly compensation is stipulated to be $156.51 per 
 
         week.
 
         
 
                               FACTS PRESENTED
 
         
 
              Claimant testified he commenced his employment with 
 
         defendant in 1987 and that approximately three months after he 
 
         started, he sustained an injury to his second or middle finger.  
 
         Claimant, during direct examination, maintained he notified the 
 
         foreman of the injury.  Specifically, claimant indicated he would 
 
         use his right hand to exert pressure on a 90 pound grinder.  
 
         Claimant stated that after exerting pressure, his "middle finger 
 
         would pop up," and his finger would swell and stiffen and his arm 
 
         would cramp.
 
         
 
              Medical records indicate claimant was sent to Gary M. Crank, 
 
         D.C., by the company nurse, Linda Leppler.  Claimant's first 
 
         office visit was on May 20, 1988.  Claimant continued treatment 
 
         with Dr. Crank through August 31, 1988.
 
         
 
              In his report of the thirty-first, Dr. Crank wrote:
 
         
 
              As of 08-31-88 the above patient was released from care with 
 
              no signs/symptoms and no work restrictions.  All R.O.M. was 
 
              within normal limits with no pain.
 
         
 
              CONCLUSION:
 
              On 08-31-88 patient was released from care with no work 
 
              restrictions
 
         
 
              Dr. Crank referred claimant to Felix M. Martin, M.D., a 
 
         neurologist.
 
         
 
              Dr. Martin, in his report of July 19, 1988, opined:
 
         
 
              I was not able to detect any musculoskeletal or neurological 
 
              deficit....
 
         
 
              I have no other suggestions at this time.  In my opinion I 
 
              cannot correlate his complaints to his work.
 
         
 
              Medical records indicate claimant's personal physician was 
 
         Robert R. Kemp, M.D., P.C.  Dr. Kemp was contacted by defendant 
 
         insurance company relative to this action.  The physician wrote 
 
         in his letter of August 30, 1988:
 
         
 
                                                
 
                                                         
 
              We cannot find anything on this patient in the Keokuk Steel 
 
              Casting folder for February and April, 1988.  He was seen in 
 
              out office in February and April for other causes.  If you 
 
              would like a copy of that record, please send us an 
 
              authorization signed by the patient so we can release the 
 
              information to you.
 
         
 
              Thank you.
 
         
 
              Dr. Kemp's office notes for February 24, 1988, reflect the 
 
         following notations:
 
         
 
              24-88 Middle.finger right hand swollen this A.M.
 
              2/24/88 Hand stiff in mornings.  Is a grinder...
 
         
 
              Dr. Crank testified by way of deposition.  He stated he 
 
         diagnosed claimant as having a trigger finger problem and that 
 
         the problem was causally related to claimant's work injury.  Dr. 
 
         Crank stated that claimant's condition, without surgery, was 
 
         permanent. Dr. Crank also indicated he was not qualified to 
 
         assess an impairment rating.  However, Dr. Crank indicated 
 
         claimant's finger did lock up on periodic occasions.  Dr. Crank 
 
         also stated he disagreed with Dr. Martin.  Dr. Crank did not 
 
         believe claimant's condition was work related.  Dr. Crank 
 
         indicated claimant's condition did improve after chiropractic 
 
         treatments.
 
         
 
                                APPLICABLE LAW
 
         
 
              Claimant has the burden of proving by a preponderance of the 
 
         evidence that he received an injury on February 1, 1988, 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).
 
         
 
              The injury must both arise out of and be in the course of 
 
         the employment.  Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 
 
         402, 68 N.W.2d 63 (1955) and cases cited at pp. 405-406 of the 
 
         Iowa Report.  See also Sister Mary Benedict v. St. Mary's Corp., 
 
         255 Iowa 847, 124 N.W.2d 548 (1963) and Hansen v. State of Iowa, 
 
         249 Iowa,1147, 91 N.W.2d 555,(1958).
 
         
 
              The  words."out of" refer to the cause or source of the 
 
         injury.  Crowe, 246 Iowa 402, 68 N.W.2d 63 (1955).
 
         
 
              The words "in the course of" refer to the time and place and 
 
         circumstances of the injury.  McClure v. Union et al. Counties, 
 
         188 N.W.2d 283 (Iowa 1971); Crowe, 246 Iowa 402, 68 N.W.2d 63 
 
         (1955).
 
         
 
              "An injury occurs in the course of the employment when it is 
 
                                                
 
                                                         
 
         within the period of employment at a place the employee may 
 
         reasonably be, and while he is doing his work or something 
 
         incidental to it."  Cedar Rapids Comm. Sch. Dist. v. Cady, 278 
 
         N.W.2d 298 (Iowa 1979), McClure, 188 N.W.2d 283 (Iowa 1971); 
 
         Musselman, 261 Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury of February 1, 1988, is causally 
 
         related to the disability on which he now bases his claim.  
 
         Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).  
 
         Lindahl v. L. O. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945).  A 
 
         possibility is insufficient; a probability is necessary.  Burt v. 
 
         John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 
 
         (1955).  The question of causal connection is essentially within 
 
         the domain of expert testimony.  Bradshaw v. Iowa Methodist 
 
         Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960).
 
         
 
              However, expert medical evidence must be considered with all 
 
         other evidence introduced bearing on the causal connection.  
 
         Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion of experts need 
 
         not be couched in definite, positive or unequivocal language.  
 
         Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974).  However, 
 
         the expert opinion may be accepted or rejected, in whole or in 
 
         part, by the trier of fact.  Id. at 907.  Further, the weight to 
 
         be given to such an opinion is for the finder of fact, and that 
 
 
 
                                
 
                                                         
 
         may be affected by the completeness of the premise given the 
 
         expert and other surrounding circumstances.  Bodish, 257 Iowa 
 
         516, 133 N.W.2d 867.  See also Musselman, 261 Iowa 352, 154 
 
         N.W.2d 128 (1967).
 
         
 
              The right of a worker to receive compensation for injuries 
 
         sustained which arose out of and in the course of employment is 
 
         statutory.  The statute conferring this right can also fix the 
 
         amount of compensation to be paid for different specific 
 
         injuries, and the employee is not entitled to compensation except 
 
         as provided by the statute.  Soukup v. Shores Co., 222 Iowa 272, 
 
         268 N.W. 598 (1936).
 
         
 
                                 ANALYSIS
 
         
 
              The first issue to address is whether claimant sustained an 
 
         injury which arose out of and in the course of his employment. 
 
         There is the testimony of claimant that he experienced problems 
 
         with his finger while he was grinding metal for six or seven 
 
         hours per day.  Claimant stated he began having difficulties 
 
         about two or three months after he commenced his employment with 
 
         defendant.
 
         
 
              There is also the testimony of Dr. Crank.  Dr. Crank 
 
         recorded claimant's history.  The medical history is consistent 
 
         with claimant's testimony.  The medical history, as reported by 
 
         Dr. Crank was:
 
         
 
              A  He said basically five months prior to coming into our 
 
              office, he was grinding all day long and his signs and 
 
              symptoms gradually increased with time.
 
         
 
         (Exhibit 9, page 5, lines 8-10)
 
         
 
              Therefore, it is the determination of the undersigned that 
 
         claimant's injury arose out of and in the course of his 
 
         employment on February 1, 1988.
 
         
 
              The second issue to discuss is whether there is a causal 
 
         relationship between the alleged injury and the disability.  Dr. 
 
         Crank, the treating chiropractor, causally connected claimant's 
 
         condition to his work situation.  Dr. Crank treated claimant on 
 
         approximately 27 separate occasions.  He had ample opportunity to 
 
         determine whether claimant's condition was work related.  Dr. 
 
         Martin, on the other hand, only examined claimant on one 
 
         occasion. Dr. Martin maintained claimant's condition was not work 
 
         related. However, more weight is given to Dr. Crank's opinion 
 
         since he successfully treated claimant for a trigger finger 
 
         problem and claimant was eventually released to return to work 
 
         without any restrictions.  It is the determination of the 
 
         undersigned that claimant's condition is causally related to his 
 
         work injury.
 
         
 
              The third issue in question is whether claimant is entitled 
 
         to temporary disability/healing period benefits or permanent 
 
                                                
 
                                                         
 
         partial or total disability benefits.  The evidence 
 
         overwhelmingly demonstrates there is no permanent partial 
 
         disability.  Dr. Crank determined claimant's range of motion was 
 
         normal as of August 31, 1988.  On that date, claimant was 
 
         released to work without restrictions.  Dr. Crank determined he 
 
         was not qualified to do impairment ratings, but he was able to 
 
         treat claimant "to make him pretty well functional."  (Ex. 9, p. 
 
         8, 1.5)  Dr. Martin, as of July 19, 1988, was not able to detect 
 
         any musculoskeletal or neurological problems.  Dr. Martin opined 
 
         there was no functional impairment. claimant was able to return 
 
         to work.
 
         
 
              Likewise, in the instant case, there is no temporary total 
 
         disability.  Claimant testified he only missed one day because of 
 
         his work injury.  Section 85.32 of the Iowa Code governs the time 
 
         when compensation begins.  The section reads:
 
         
 
              Except as to injuries resulting in permanent partial 
 
              disability, compensation shall begin on the fourth day of 
 
              disability after the injury.
 
         
 
              If the period of incapacity extends beyond the fourteenth 
 
              day following the date of injury, then the compensation due 
 
              during the third week shall be increased by adding thereto 
 
              an amount equal to three days of compensation.
 
         
 
              Since claimant only missed one day of work, he is not 
 
         entitled to temporary total disability benefits.
 
         
 
              The final issue in dispute is whether claimant is entitled 
 
         to medical benefits under section 85.27.  This section provides 
 
         in relevant portion:
 
         
 
              The employer, for all injuries compensable under this 
 
              chapter or chapter 85A, shall furnish reasonable surgical, 
 
              medical, dental, osteopathic, chiropractic, podiatric, 
 
              physical rehabilitation, nursing, ambulance and hospital 
 
              services and supplies therefor and shall allow reasonably 
 
              necessary transportation expenses incurred for such 
 
              services.  The employer shall also furnish reasonable and 
 
              necessary crutches, artificial members and appliances but 
 
              shall not be required to furnish more than one set of 
 
              permanent prosthetic devices.
 
         
 
                 ...
 
         
 
              For purposes of this section, the employer is obliged to 
 
              furnish reasonable services and supplies to treat an injured 
 
              employee, and has the right to choose the care.  The 
 
              treatment must be offered promptly and be reasonably suited 
 
              to treat the injury without undue inconvenience to the 
 
              employee.  If the employee has reason to be dissatisfied 
 
              with the care offered, the employee should communicate the 
 
              basis of such dissatisfaction to the employer, in writing if 
 
              requested, following which the employer and the employee may 
 
                                                
 
                                                         
 
                   agree to alternate care reasonably suited to treat the 
 
              injury.  If the employer and employee cannot agree on such 
 
              alternate care, the commissioner may, upon application and 
 
              reasonable proofs of the necessity therefor, allow and order 
 
              other care.  In an emergency, the employee may choose the 
 
              employee's care at the employer's expense, provided the 
 
              employer or the employer's agent cannot be reached 
 
              immediately.
 
         
 
              This division has held that it is inconsistent to deny 
 
         liability and the obligation to furnish care on one hand, and at 
 
         the same time, to claim a right to choose the care.  Therefore, a 
 
         denial of liability precludes an employer from selecting the 
 
         medical care.  Lewis E. Jones v. R. M. Boggs Company, Inc., File 
 
         No. 655193 (Arbitration Decision - July 22, 1986); Kindhart v. 
 
         Fort Des Moines Hotel, (Appeal Decision, March 27, 1985); 
 
         Barnhart v. MAQ Incorporated, I Iowa Industrial Commissioner 
 
         Report 16 (Appeal Decision 1981).
 
         
 
              In the case at hand, it is the determination of the 
 
         undersigned that the following expenses have been incurred for 
 
         reasonable and necessary medical treatment causally related to 
 
         claimant's condition.  It is the determination of the undersigned 
 
         that defendants are liable for the following medical charges:
 
         
 
                    Dr. Crank                 $818.50
 
                    Dr. Martin                  50.00
 
                    Keasling's Drug             33.75
 
                                   Total      $902.25
 
         
 
                    FINDINGS OF FACT AND CONCLUSIONS OF LAW
 
         
 
              Finding 1.  Claimant sustained an injury to his second 
 
         finger on his right hand as a result of a work injury on February 
 
         1, 1988..
 
         
 
              Conclusion A.  The work injury of February 1, 1988, arose 
 
         out of and in the course of claimant's employment
 
         
 
              Finding 2.  Claimant only missed one day of work as a result 
 
         of his work injury on February 1, 1988.
 
         
 
              Finding 3.  Claimant sought medical attention and care for 
 
         the injury which occurred to his finger on February 1, 1988.
 
         
 
              Conclusion B.  Defendants are liable for reasonable and 
 
         necessary medical care as follows:
 
         
 
                    Dr. Crank                 $818.50
 
                    Dr. Martin                  50.00
 
                    Keasling's Drug             33.75
 
                                   Total      $902.25
 
         
 
              Finding 4.  Claimant returned to work without restrictions.
 
         
 
                                                
 
                                                         
 
              Finding 5.  Claimant only,missed one day of work because of 
 
         his work injury on February 1, 1988.
 
         
 
              Finding 6.  No impairment ratings were given to claimant.'s 
 
         second finger.
 
         
 
              Conclusion C.  Claimant did not sustain a temporary or 
 
         permanent disability as a result of his work injury on February 
 
         1, 1988.
 
         
 
                                     ORDER
 
         
 
              Defendants are to pay the following medical expenses:
 
         
 
                   Dr. Crank                $818.50
 
                   Dr. Martin                 50.00
 
                   Keasling's Drug            33.75
 
                                    Total   $902.25
 
         
 
              Costs of this action are assessed against defendants 
 
         pursuant to Division of Industrial Services Rule 343-4.33.
 
         
 
              Defendants shall file a claim activity report upon payment 
 
         of this award.
 
         
 
         
 
              Signed and filed this 19th day of December, 1989.
 
         
 
                                     
 
                                                         
 
                                            MICHELLE A. McGOVERN
 
                                            DEPUTY INDUSTRIAL 
 
                                            COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. James P. Hoffman
 
         Attorney at Law
 
         Middle Rd
 
         PO Box 1066
 
         Keokuk IA  52632
 
         
 
         Ms. Vicki L. Seeck
 
         Attorney at Law
 
         600 Union Arcade Bldg.
 
         Davenport IA  52801
 
 
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                            1801; 5-2209; 5-2500
 
                                            Filed December 19, 1989
 
                                            MICHELLE A. McGOVERN
 
         
 
                  BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         RAYMOND MORTIMER,
 
         
 
              Claimant,
 
         
 
         vs.
 
                                                     File No. 878988
 
         KAST KEOKUK, STEEL CASTINGS
 
         CO., INC.,                               A R B I T R A T I 0 N
 
         
 
              Employer,                              D E C I S I 0 N
 
         
 
         and
 
         
 
         BITUMINOUS INSURANCE COMPANIES,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         5-2209
 
         
 
              Claimant did not sustain a permanent partial disability to 
 
         his right middle finger after sustaining a cumulative trauma.
 
         
 
         1801
 
         
 
              Claimant did not sustain any temporary total disability 
 
         benefits since claimant only missed one day of work.
 
         
 
         5-2500
 
         
 
              Claimant is entitled to medical benefits which are 
 
         reasonable and necessary.
 
 
 
         
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         CARL G. SOUTHWICK,
 
         
 
              Claimant,
 
         
 
                                         File No. 878996
 
         VS.
 
         
 
                                         A R B I T R A T I 0 N
 
         MARILYN GARNER,
 
         d/b/a GARNER WELDING,             D E C I S I 0 N
 
         
 
              Employer,
 
              Defendant.
 
         
 
                                   INTRODUCTION
 
                                        
 
              This is a proceeding in arbitration brought by Carl G. 
 
         Southwick against Marilyn Garner, d/b/a Garner Welding, his 
 
         former employer.  The case was heard and fully submitted at Des 
 
         Moines, Iowa on August 14, 1989.  The record in the proceeding 
 
         consists of testimony from Carl G. Southwick and claimant's 
 
         exhibits A, B, C and D.
 
         
 
                                      ISSUES
 
         
 
              Southwick alleges that he sustained a burn injury to his 
 
         eyes as a result of welding that he performed for the employer.  
 
         He seeks compensation for one day of lost wages and payment of 
 
         medical expenses incurred in treating the injury.  He makes no 
 
         claim for permanent disability.
 
         
 
                               SUMMARY OF EVIDENCE
 
         
 
              Carl G. Southwick testified that he has been a resident of 
 
         Lucas County, Iowa for three years.  Southwick stated that he was 
 
         hired by Garner Welding through the Job Service office located in 
 
         Oskaloosa, Iowa.  Southwick testified that Garner Welding is a 
 
         business which was owned by Marilyn Garner and managed by her 
 
         son, Dave Garner.  Claimant stated that the business was located 
 
         in Clarke County, Iowa.
 
         
 
              Southwick stated that he is a certified welder and was hired 
 
         to weld hay rings for Garner Welding.  Claimant stated that he 
 
         worked eight hours per day, forty hours per week, and was paid 
 
         weekly with a check which was written on the Garner Welding 
 
         business account by Dave Garner.  Southwick stated that taxes 
 
         were withheld from his pay.  He stated that he earned $200 for a 
 
         full week or $40.00 per day.
 
         
 
              Southwick testified that, on December 1, 1987, he 
 
         experienced a flash burn in his eyes.  He stated that the 
 
         condition is one which is more symptomatic a few hours after the 
 
         burn occurs than it is at the time when the actual burn occurs.  
 
         Southwick
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         SOUTHWICK V. MARILYN GARNER 
 
         Page 2
 
         
 
         
 
         stated that he welded in a room with other welders and that he 
 
         believes exposure to the arcs made by other welders actually 
 
         produced the burn.  Southwick testified that he told Dave Garner 
 
         he thought he had burned his eyes and that Garner acknowledged 
 
         the report.
 
         
 
              Southwick testified that, by approximately 9:00 p.m. that 
 
         evening, December 1, 1987, his third work day, he had developed a 
 
         terrible burning in his eyes and could not see.  He sought 
 
         medical treatment at the Lucas County Health Center, the Chariton 
 
         hospital, where both eyes were bandaged (exhibit A).  Southwick 
 
         testified that the following morning he phoned Marilyn Garner to 
 
         report that he would not be in to work.  She told him that she 
 
         would see him the following morning.  On December 2, 1987, 
 
         claimant also saw Eugene C. Honeywell, D.O., at the Family Clinic 
 
         of Chariton where the bandage was removed from one eye.  Claimant 
 
         stated that the doctor told him to remove the other bandage in 
 
         approximately four more days.
 
         
 
              Claimant testified that, on December 3, 1987, he went to 
 
         work and worked with the patch on his eye.  He stated that he 
 
         continued to work thereafter working all day every day.  He 
 
         stated that December 2 was the only day he missed from work on 
 
         account of the burn.
 
         
 
              Claimant testified that he did not return to the doctor, but 
 
         removed the patch himself.  He stated that the eye recovered and 
 
         that he has no noticeable permanent injury or permanent loss of 
 
         vision as a result of the injury.
 
         
 
              Southwick stated that exhibit B is the bill from the 
 
         hospital in the amount of $127.50 which represents the charges 
 
         made for treating the burn to his eyes.  Claimant stated that 
 
         exhibits C and D are charges from Dr. Honeywell which were 
 
         incurred while treating his eyes.  Exhibits C and D total $93.00.
 
         
 
              Claimant testified that he remained employed by Garner 
 
         Welding for approximately a month, but that when he sought 
 
         payment for the medical bills, Dave Garner told him that the 
 
         employment was terminated.  Claimant stated that he has provided 
 
         the bills to Marilyn Garner, but that she has not paid them.
 
         
 
              The agency file contains a proof of service showing that the 
 
         original notice and petition was served on Marilyn Garner, d/b/a 
 
         Garner Welding, at Rural Route 5, Osceola, Iowa on July 7, 1988.  
 
         Marilyn Garner has not answered or otherwise participated in 
 
         these proceedings.  The agency file does contain certified mail 
 
         return receipts which show that she received an order issued by 
 
         the agency on February 7, 1989 and also a notice of telephone 
 
         prehearing conference, which notice was filed April 12, 1989. 
 
         Other materials which have been mailed by certified mail have 
 
         been returned as unclaimed, although they were mailed to the same 
 
         address as those for which a receipt was signed and returned to 
 
         this agency.  It is therefore determined that the employer is in 
 
         default for failing to answer and for
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         SOUTHWICK V. MARILYN GARNER 
 
         Page 3
 
         
 
         
 
         otherwise failing to appear and defend in this proceeding.  The 
 
         employer was ordered to provide a court reporter for the hearing, 
 
         but failed to do so.  The failure to do so constitutes a waiver 
 
         of the normal requirement for a verbatim record.  The claimant 
 
         stipulated and agreed that the proceeding be conducted without a 
 
         court reporter and without a verbatim record or transcript.
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              Claimant has the burden of proving by a preponderance of the 
 
         evidence that he received an injury on December 1, 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).
 
         
 
              Claimant appeared and testified at hearing that he suffered 
 
         burns to his eyes while welding in the Garner Welding building.  
 
         His testimony is corroborated by exhibit A, the records from the 
 
         Chariton Hospital.  It is therefore determined that claimant did 
 
         sustain an injury which arose out of and in the course of his 
 
         employment on December 1, 1987 as he alleges.
 
         
 
              Claimant seeks to recover wages for the one day that he 
 
         missed work.  He also makes no claim and submitted no substantial 
 
         evidence for any permanent disability.  Iowa Code sections 85.32 
 
         and 85.33 therefore govern.  Since claimant's loss of time from 
 
         work is less than three days, he is not entitled to recover any 
 
         temporary total disability compensation or other award through 
 
         this agency for lost earnings.
 
         
 
              All the medical expenses and bills which have been submitted 
 
         are sufficiently itemized to establish that they were incurred in 
 
         obtaining treatment for the burns to Southwick's eyes.  
 
         Southwick's testimony corroborates the receipt of the medical 
 
         services and the charges made.  The amounts charged on exhibits 
 
         B, C, and D are in line with the amounts commonly charged for 
 
         similar services and are therefore determined to be fair and 
 
         reasonable.  The course of treatment which claimant described was 
 
         likewise reasonable treatment for the injury that he had 
 
         sustained.  It is therefore found and concluded that the employer 
 
         is responsible for payment of the medical expenses which total 
 
         $220.50.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              1. Carl G. Southwick sustained burns to his eyes as a result 
 
         of exposure to welding flashes on December 1, 1987 at the Garner 
 
         Welding business in Clarke County, Iowa.  Southwick was.working 
 
         for Garner Welding as a welder at the time of the injury.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              2. The services and treatment which Southwick received at 
 
         the Lucas County Health Center and at the Family Clinic of 
 
         Chariton constitute reasonable treatment for the burn injury.  
 
         The charges made for that treatment are likewise fair and 
 
         reasonable.
 
         
 
         
 
         
 
         SOUTHWICK V. MARILYN GARNER
 
         Page 4
 
         
 
         
 
              3. Southwick missed only one day from work due to the burn 
 
         injury.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              1. This agency has jurisdiction of the subject matter of 
 
         this proceeding and its parties.
 
         
 
              2. Claimant is not entitled to recover any temporary total 
 
         disability compensation or other form of compensation for his one 
 
         day of lost wages.
 
         
 
              3. Claimant is entitled to recover $220.50 under the 
 
         provisions of Iowa.Code section 85.27 for the following charges:
 
         
 
              Lucas County Health Center (Chariton Hospital)                     $127.50
 
              Family Clinic of Chariton                         93.00
 
              Total                                           $220.50
 
          
 
                                      ORDER
 
         
 
              IT IS THEREFORE ORDERED that the employer pay claimant two 
 
         hundred twenty and 50/100 dollars ($220.50).
 
         
 
              IT IS FURTHER ORDERED that the costs of this action are 
 
         assessed against the employer pursuant to Division of Industrial 
 
         Services Rule 343-4.33.
 
         
 
              Signed and filed this 16th day of August, 1989.
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
                                         MICHAEL G. TRIER
 
                                         DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Robert L. Stuyvesant
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         Attorney at Law
 
         720 Highway 5
 
         P.O. Box 517
 
         Carlisle, Iowa 50047
 
         
 
         Garner Welding
 
         Ms. Marilyn Garner
 
         RR 5
 
         Osceola, Iowa   50213
 
         CERTIFIED AND REGULAR MAIL
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
                                                 
 
 
 
 
 
 
 
 
 
 
 
                                                 51801, 52501
 
                                                 Filed August 16, 1989
 
                                                 MICHAEL G. TRIER
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         CARL G. SOUTHWICK,
 
         
 
              Claimant,
 
                                                 File No. 878996
 
         VS.
 
                                                 A R B I T R A T I 0 N
 
         MARILYN GARNER,
 
         d/b/a GARNER WELDING,                     D E C I S I 0 N
 
         
 
              Employer,
 
              Defendant.
 
         
 
         
 
         51801, 52501
 
         
 
              Claimant was a welder who burned his eyes due to welding 
 
         flash.  He missed one day of work and incurred treatment expenses 
 
         in the amount of $220.50. The employer was apparently uninsured.  
 
         Claimant was not entitled to recover any wages since he missed 
 
         only one day, but was awarded the medical. expenses.
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         PAMELA J. FOWLER,
 
         
 
              Claimant,
 
                                                  File No. 879053
 
         VS.
 
                                               A R B I T R A T I O N
 
         TOY NATIONAL BANK,
 
                                                  D E C I S I O N
 
              Employer,
 
                                                 
 
         and                                          F I L E D
 
         
 
         ROYAL INSURANCE COMPANY,                    NOV 9 1989
 
                                                           
 
              Insurance Carrier,                INDUSTRIAL SERVICES
 
              Defendants.
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding in arbitration brought by the claimant, 
 
         Pamela J. Fowler, against Toy National Bank, employer, and Royal 
 
         Insurance Company, insurance carrier, to recover benefits as a 
 
         result of an alleged injury sustained on or about October 13, 
 
         1987.  This matter came on for a hearing before the deputy 
 
         industrial commissioner in Sioux City, Iowa on November 1, 1989. 
 
         The record consists of the testimony of the claimant and Linda 
 
         Thoma; joint exhibits 1 through 37; and claimant's exhibits 38 
 
         through 47.
 
         
 
                                      ISSUES
 
         
 
              The issues the parties set out in the prehearing report for 
 
         resolution are:
 
         
 
              1.  Whether claimant's injury arose out of and in the course 
 
         of her employment.
 
         
 
              2.  Whether claimant's disability is causally connected to 
 
         her injury.
 
         
 
              3.  The nature and extent of the claimant's disability.
 
              
 
              4.  Whether claimant is entitled to benefits under 85.27.
 
         
 
                              REVIEW OF THE EVIDENCE
 
         
 
              Claimant testified that prior to her employment with 
 
         defendant employer in 1985, and since her high school graduation, 
 
         she has held various jobs involving general office work, light 
 
         typing, filing and washing dishes at a nursing home.  Claimant 
 
         said she experienced no leg swelling to any degree nor any health 
 
         problems prior to her 1975 employment at Toy National Bank except 
 
         during her pregnancy in 1968.  Claimant contends this swelling 
 
         during her pregnancy was strictly water retention due to the 
 
         pregnancy only.  Claimant stated her duties at defendant 
 
         employer, from 1975 to her last day of work on or around October 
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         13, 1987, were basically the same.  She indicated they involved 
 
         filing, answering the phone, going through checks, processing 
 
         cashier's checks and signature cards and microfilming.  Claimant 
 
         testified that during her 7 to 4 p.m. work day, she sits 
 
         approximately 6 hours and stands approximately 2 hours during the 
 
         day with a morning and afternoon coffee break and one hour for 
 
         lunch. Claimant described her work station (chekveyer and 
 
         return), which is shown in joint exhibit 9, except return (3 
 
         drawer portion) is on the left side rather than on the right.  
 
         Claimant emphasized she had approximately 14 inches for her legs 
 
         when she sat at the chekveyer.  Claimant acknowledged that she 
 
         did have to get up to answer or use the phone, do the required 
 
         check microfilming and certain other duties that went with her 
 
         job.  Claimant stated she couldn't recall when she first began 
 
         having leg swelling problems, but indicated she sought medical 
 
         services in 1981 or 1982 for a left leg problem to determine why 
 
         it was swelling.  Claimant said she saw a H. Norton Hirsch, M.D., 
 
         regularly prior to 1982 for her leg problems.  Claimant said she 
 
         had tests at the hospital and it was determined thrombophlebitis 
 
         was the cause.  Claimant indicated she was told it would not 
 
         clear up and she must learn to live with that condition.  
 
         Claimant testified she then returned to work 1982 to October 13, 
 
         1987.  Claimant said she noticed that the swelling continued 
 
         during this five year period when she would sit continuously for 
 
         long periods of time.  Claimant said that the first part of 
 
         October 1987 the left leg was swelling again and she saw Dr. 
 
         Hirsch October 5, 1987.  Claimant was on vacation October 5, 1987 
 
         to October 13, 19887.  Claimant testified she was unable to 
 
         return to work on October 13, 1987.  She described her swollen 
 
         lower leg as having a little pin hole in it and the hole was 
 
         getting bigger and bigger.  Claimant said the doctor told her she 
 
         could not return to work.  Claimant testified she was prescribed 
 
         medicine that didn't work and she kept her leg elevated as much 
 
         as possible.  Claimant said she was referred to Paul Johnson, 
 
         M.D., a general surgeon, in December 1987.  Claimant said her 
 
         treatment was not working so Dr. Johnson did a debridement in 
 
         December 1987 which involved going in and cleaning out her left 
 
         lower leg.  This left a hole or depression in her lower left leg.  
 
         Claimant said the skin failed to grow on the wound.  In February 
 
         1988 a skin graft was performed on claimant's left leg with skin 
 
         taken from her thigh.  Claimant said the skin graft did not take 
 
         hold and she got a streptococcus infection in this area and was 
 
         placed in the hospital in May 1988 as she was unable to walk and 
 
         was in extreme pain.  Claimant stated that after 13 days in the 
 
         hospital the skin graft began to take hold but her lower left leg 
 
         area is discolored, indented and has black spots resulting 
 
         therefrom.  She indicated this condition is the same today.  
 
         Claimant showed her lower left leg to the deputy.  Claimant said 
 
         she is required to soak her left leg once a week, elevate the leg 
 
         as much as possible and was told by Dr. Johnson that she could 
 
         not return to work. Claimant has not worked since October 12, 
 
         1987.  Claimant said she cannot any longer have a garden as she 
 
         is not to get any dirt in her left leg due a possible 
 
         reoccurrence of her infection. Claimant indicated she could not 
 
         walk any great distance or ride in a car for over a 100 miles 
 
         because of her October 13, 1987 injury.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Claimant said she searched for employment and made 
 
         applications at the telephone company and Wal Mart but received 
 
         no reply.  Claimant acknowledged she listed her disability of not 
 
         being able to stand or sit for long periods.  Claimant contends 
 
         it is not possible to find a job as no employer would allow her 
 
         to elevate her leg.  Claimant acknowledged that when she applied 
 
         for a job with defendant employer in 1975 (Jt.  Ex. 7), she 
 
         indicated on her application that she could not stand a lot.
 
         
 
              Claimant could not explain why Dr. Hirsch (Jt. Ex. 14) or 
 
         Dr. Johnson (Jt. Ex. 21) placed in her history that claimant had 
 
         a long history of leg swelling since age 20-22-21 respectively.
 
         
 
              Claimant could not explain why (Jt. Ex. 29) dated July 27, 
 
         1989 from Marian Health Center indicated claimant stated she had 
 
         trouble the past 5 to 6 years with swelling in the left leg. 
 
         Claimant acknowledged that after the bank closed in November 1987 
 
         she received unemployment compensation and indicated she was able 
 
         and willing to work.
 
         
 
              Linda Thoma testified that she was claimant's immediate 
 
         supervisor the last two years of claimant's working for defendant 
 
         employer and was claimant's indirect supervisor for the three 
 
         years prior to that time.  Thoma described claimant's work 
 
         station and duties.  Thoma indicated the longest period of time 
 
         claimant would be seated continuously at her job would have been 
 
         one and one half hours, around 1 to 2:30 p.m. each work day.  She 
 
         said on the other occasions, claimant's job duties would require 
 
         her to get up to answer or use the phone, do microfilming or take 
 
         something to another department.  Thoma said that (Jt. Ex. 8) 
 
         reflects claimant's job duties.  Thoma said the defendant 
 
         employer closed business on November 30, 1987 and was taken over 
 
         by Norwest Bank.  She acknowledged claimant's job would be 
 
         considered a sedentary job.
 
         
 
              Dr. Paul Johnson, a licensed general surgeon, testified on 
 
         August 29, 1989 through a deposition that he first saw claimant 
 
         on December 11, 1987 through a referral of Dr. Norton Hirsch, for 
 
         a evaluation of a chronic leg ulcer condition.  Dr. Johnson said 
 
         his diagnosis at that time was "an ulcer of the medial leg lower 
 
         leg and she has swelling of the left leg secondary to what I felt 
 
         was a result of venostasis."  (Jt. Ex. 2, p. 8)  He described 
 
         venostasis is as "venous blood pooling in the leg." (Jt. Ex. 2. 
 
         p. 8)  Dr. Johnson said that condition is caused by improper 
 
         functioning valves which is caused most likely by 
 
         thrombophlebitis which can be caused by many things like 
 
         inactivity, Aids, malignancy, varicose veins and obesity.  The 
 
         doctor described his treatment of claimant which eventually 
 
         involved debriding the ulcer and use of antibiotics.  He said 
 
         that ultimately a skin graft was performed in February 1988.  Dr. 
 
         Johnson said claimant has always had an enlarged leg, but it 
 
         became more enlarged with the infection.  He thought claimant's 
 
         problems was venostasis and also a degree of lymphatic.  Dr. 
 
         Johnson said the ulcer healed by October 1988 and he has not seen 
 
         claimant since January 10, 1989. He indicated claimant reached 
 
         maximum recovery on January 10, 1989 and has permanent damage to 
 
         the veins and probably to the lymphatic vessels.  Dr. Johnson 
 
         opined that the cause of claimant's condition was the swelling 
 
         and thrombophlebitis she had in 1983.  The doctor was unable to 
 
         answer whether claimant's problems were caused by her job at 
 
         defendant employer.  The doctor said he was not familiar nor had 
 
         the claimant or anyone else told him her job duties.  Dr. Johnson 
 
         said the impairment to the claimant's left leg results more from 
 
         claimant's thrombophlebitis than from her 1987 ulcer.  Dr. 
 
         Johnson acknowledged that claimant was unable to work from his 
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         first contact with her on December 11, 1987 through January 10, 
 
         1989.  Dr. Johnson's office notes on December 1, 1987 reflect the 
 
         following:
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
                   The patient is a 43-year-old female, who relates a long 
 
              history of swelling of the left leg beginning at about the 
 
              age of 21.  This continued since and she did have 
 
              exacerbation of it at the age of 23 when she had her child. 
 
              At the age of 31, she was admitted for evaluation of the 
 
              swelling and she was told that it was due to 
 
              thrombophlebitis.  She has had no history of any 
 
              anticoagulant use or treatment and essentially had no 
 
              treatment for the swelling.  She wears compressive stockings 
 
              to control the swelling and the swelling does get less at 
 
              night when she is lying down and increased after she is up. 
 
              She describes brownish discoloration of the lower part of 
 
              her leg, which has been increasing and last October noted a 
 
              small blackish area on her skin on the medial lower anterior 
 
              calf on her left leg.  This began to enlarge in size and 
 
              start draining and eventually developed into an 
 
              approximately 10 cm ulcer in the leg.  This was debrided 
 
              surgically on 12/14/84 and has been treated with 
 
              conservative therapy since with peroxide dressing changes.  
 
              She has since developed granulation tissue and at this point 
 
              is ready for grafting of the left leg.
 
         
 
              ...
 
         
 
              FINAL IMPRESSION:
 
         
 
              1.  Ulcer, left lower leg.
 
              2.  History of thrombophlebitis with chronic edema
 
              of the leg leg.
 
              3.  Pap examination
 
         
 
         (Jt. Ex. 21)
 
         
 
              Dr. Johnson's notes on February 18, 1988 indicate:
 
         
 
                   Patient is a 43 year old female with a history of 
 
              having a small sore on the medial portion of the lower leg 
 
              last fall.  This enlarged into a large subcutaneous 
 
              infection of approximately 8 cm in diameter.  After surgical 
 
              debridement conservative therapy to promote granulation was 
 
              instituted. Granulation tissue at this point appears to be 
 
              adequate for grafting.  Patients etiology of her ulcer is 
 
              probably due to varicose veins.
 
         
 
         (Jt. Ex. 22)
 
         
 
              On December 8, 1988 Dr. Johnson wrote on behalf of the 
 
         claimant for her to get a handicap parking permit the following:
 
         
 
                   Pam Fowler has a condition called chronic venous stasis 
 
              of the left lower leg.  This has resulted in her having 
 
              repeated infections in the leg, and also repeated 
 
              ulcerations.  Extended standing and ambulation exacerbates 
 
              this condition.  In her case this is a permanent disability.
 

 
              
 
 
 
 
 
 
 
 
 
 
 
         
 
         (Jt. Ex. 25)
 
         
 
              On July 11, 1989 Dr. Johnson wrote:
 
         
 
                   The patient's physical impairment of the left leg is a 
 
              permanent disability, and she has no chance of improving 
 
              this condition.  As far as her ability to work, she should 
 
              have no job which would require her to do any significant 
 
              standing or walking.  I think that any full-time job is out 
 
              of the question for Mrs. Fowler, although a job with short 
 
              duration which did not require sitting may be possible for 
 
              her as long as she is able to elevate her leg after several 
 
              hours.
 
         (Jt. Ex. 27)
 
              On August 10, 1989 Dr. Johnson wrote:
 
                   After reviewing the American Medical Associations 
 
              guides to permanent impairment, Mrs. Fowler would be placed 
 
              in a class IV (70 to 85% impairment) with respect to her 
 
              left lower extremity.  This classification is on page 72 of 
 
              the Third Edition of the AMA's "Guide to The Evaluation of 
 
              Permanent Impairment".  The reason she falls into this class 
 
              IV, is because she has marked edema of her left leg that 
 
              cannot be controlled by elastic supports.
 
         
 
         (Jt. Ex. 28)
 
         
 
              Dr. Rubenstein of the Marian Health Center reflects in his 
 
         note on August 4, 1982:
 
         
 
                   Mrs. Fowler is a 37 year old female who was admitted 
 
              for evaluation of left leg swelling.  The patient relates to 
 
              me that she has longstanding history dating back 
 
              approximately 15 years where she has noted swelling in her 
 
              left leg.  It has become progressively worse over the course 
 
              of the last few years.  She could not relate any particular 
 
              event in her life, such as pregnancy, whereupon she noted 
 
              that the symptoms began.  She states she took birth control 
 
              pills until age 33 or 34.  She began taking birth control 
 
              pills prior to her pregnancy which she had at age 23.  She 
 
              has one child who is in good health.
 
         
 
              ...
 
         
 
              IMPRESSION:  1.  Chronic post-phlebitic syndrome, left leg.
 
                          2.     Exogenous obesity.
 
                          3.     Chronic tobacco abuse.
 
         
 
              RECOMMENDATIONS:  I discussed the problem with the patient 
 
              and have advised her of the following:
 
         
 
              1.  Avoid standing for long periods of time.  Keep legs 
 
              elevated when possible.
 
              2.  Use heavy support stockings for the left leg.
 
              3.  Weight reduction.
 

 
              
 
 
 
 
 
 
 
 
 
 
 
              4.  Stop cigarette smoking, if possible.
 
         
 
         (Jt. Ex. 32)
 
         
 
              Dr. H. N. Hirsch's notes reflect the following:  On May 13, 
 
         1982, left leg edema; July 27, 1982, venous stasis left lower 
 
         leg; post phlebitis; February 8, 1983, legs don't hurt so much 
 
         but are swollen; October 5, 1987, stasis ulcer mid side left 
 
         lower leg, grade III edema left leg & foot, elevate foot.  (Jt. 
 
         Ex. 11)
 
         
 
              Dr. Hirsch's notes on July 27, 1982 at the Marian Health 
 
         Center reflect:
 
         
 
              CHIEF COMPLAINT:  Edema of the left lower leg, foot and 
 
              ankle.
 
         
 
              PRESENT ILLNESS:  This patient states that over the past 
 
              couple of years she has had an everincreasing edema of the 
 
              left lower leg, ankle and foot and now it swells 
 
              considerably to where she has approximately grade III 
 
              pitting edema of the lower leg, ankle and foot.  Gave her a 
 
              trial course of diuretic therapy and this helped it to some 
 
              extent, but it did not completely clear the problem.  The 
 
              swelling does go down at night when she is in bed and it 
 
              gets increasingly worse as the day progresses.  She has no 
 
              change in bowel habits.  She has no other symptoms.  No 
 
              change in urinary habits.  She had a normal delivery 13 
 
              years ago and she had a tubal ligation in 1978.
 
         
 
         (Jt. Ex. 12)
 
         
 
              Dr. Hirsch's Marian Health Center notes on August 4, 1982 
 
         reflect:
 
         
 
                   I told the patient that she has a venous stasis in the 
 
              left lower leg, probably as a result of earlier phlebitis at 
 
              one time and that we will have to continue to use diuretics 
 
              and supportive hose to keep it as well under control as 
 
              possible.  She was seen in consultation by Dr. Rubenstein 
 
              who also, after examination and review of the chart, agrees 
 
              with this diagnosis.
 
         
 
         (Jt. Ex. 13)
 
         
 
              Dr. Hirsch's notes at the St. Luke's Regional Medical Center 
 
         on February 16, 1988 reflect the following:
 
         
 
                   The patient's past history is essentially negative.  
 
              She has had no severe medical problems in the past.  She has 
 
              had a long history of problems with her left lower leg which 
 
              began at about 20 or 22 years of age.  She continued to have 
 
              some swelling in her left leg for about 10 years except when 
 
              she had a child.  When she was 31, she was admitted to the 
 
              hospital for evaluation of the swelling and it was felt that 
 
              she probably had some chronic infection of the veins in the 
 
              lower leg.  She does wear TED hose or that type of hose for 
 
              the swelling and over the years she found that the swelling 
 
              decreases when she is in bed at night but increases during 
 
              the day, particularly when she works, as her jobs requires 
 
              her to sit down most all day.  Four or five months ago she 
 
              developed an ulcer in the medial aspect of the left lower 
 
              leg which was debrided in this hospital 6 to 8 weeks ago.  
 
              She now enters the hospital for a graft of the left lower 
 
              leg.
 

 
              
 
 
 
 
 
 
 
 
 
 
 
         
 
         (Jt. Ex. 14)
 
         
 
              On October 9, 1989 Dr. Hirsch wrote to claimant's attorney 
 
         the following:
 
         
 
                   Mrs. Fowler worked at the Toy National Bank for 
 
              approximately twelve years as a file clerk.  I feel strongly 
 
              that her working conditions that consisted of sitting most 
 
              of the day were very contributory factors both to her deep 
 
              vein thrombosis and the status ulcers of her left lower leg.
 
         
 
                   We also know that her lower legs swelled because of the 
 
              continuous long hours in this position.  We know that people 
 
              who sit for a long period of time each day can get various 
 
              degrees of venous occlusion; which lets the blood to the 
 
              heart.
 
         
 
         (Jt. Ex. 19)
 
         
 
              The Marian Health Center notes of July 27, 1982 reflect the 
 
         following:  "...left leg swelling.  States has had trouble with 
 
         the swelling for past 5-6 yrs but had recently gotten worse.  
 
         Some brownish discoloration on lower calf & calf is hard."  (Jt. 
 
         Ex. 29) On August 4, 1982 Marian Health Center notes reflect:  
 
         "venous stasis L leg, past phlebitis."  (Jt. Ex. 31)
 
         
 
                                  APPLICABLE LAW
 
         
 
              Claimant has the burden of proving by a preponderance of the 
 
         evidence that she received an injury on October 13, 1987 which 
 
         arose out of and in the course of her employment.  McDowell v. 
 
         Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. 
 
         Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
              The supreme court of Iowa in Almquist v. Shenandoah 
 
         Nurseries, 218 Iowa 724, 254 N.W. 35 (1934) at 731-32, discussed 
 
         the definition of personal injury in workers' compensation cases 
 
         as follows:
 
         
 
              While a personal injury does not include an occupational 
 
              disease under the workmen's Compensation Act, yet an injury 
 
              to the health may be a personal injury [Citations omitted.] 
 
              Likewise a personal injury includes a disease resulting from 
 
              an injury....The result of changes in the human body 
 
              incident to the general processes of nature do not amount to 
 
              a personal injury.  This must follow, even though such 
 
              natural change may come about because the life has been 
 
              devoted to labor and hard work.  Such result of those 
 
              natural changes does not constitute a personal injury even 
 
              though the same brings about impairment of health or the 
 
              total or partial incapacity of the functions of the human 
 
              body.
 
         
 
                  ....
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              A personal injury, contemplated by the Workmen's 
 
              Compensation Law, obviously means an injury to the body, the 
 
              impairment of health, or a disease, not excluded by the act, 
 
              which comes about, not through the natural building up and 
 
              tearing down of the human body, but because of a traumatic 
 
              or other hurt or damage to the health or body of an 
 
              employee.  [Citations omitted.]  The injury to the human 
 
              body here contemplated must be something, whether an 
 
              accident or not, that acts extraneously to the natural 
 
              processes of nature and thereby impairs the health, 
 
              overcomes, injures, interrupts, or destroys some function of 
 
              the body, or otherwise damages or injures a part or all of 
 
              the body.
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury of October 13, 1987 is causally 
 
         related to the disability on which she now bases her claim.  
 
         Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).  
 
         Lindahl v. L.O. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945).  A 
 
         possibility is insufficient; a probability is necessary.  Burt v. 
 
         John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 
 
         (1955).  The question of causal connection is essentially within 
 
         the domain of expert testimony.  Bradshaw v. Iowa Methodist 
 
         Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960).
 
         
 
              However, expert medical evidence must be considered with all 
 
         other evidence introduced bearing on the causal connection.  
 
         Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion of experts need 
 
         not be couched in definite, positive or unequivocal language.  
 
         Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974).  However, 
 
         the expert opinion may be accepted or rejected, in whole or in 
 
         part, by the trier of fact.  Id. at 907.  Further, the weight to 
 
         be given to such an opinion is for the finder of fact, and that 
 
         may be affected by the completeness of the premise given the 
 
         expert and other surrounding circumstances.  Bodish, 257 Iowa 
 
         516, 133 N.W.2d 867.  See also Musselman 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.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).
 
         
 
              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 section 555(17)a.
 
         
 
                                     ANALYSIS
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              This 45 year old claimant has had a long history of lower 
 
         left leg swelling and other problems with this leg.  Claimant 
 
         downplayed any problems prior to her October 13, 1987 injury. 
 
         Claimant didn't deny, but couldn't recall telling Dr. Hirsch and 
 
         Dr. Johnson that she had left leg problems over 20 to 22 years. 
 
         Claimant indicated she didn't know why those comments were in the 
 
         doctor's history taken from the claimant.  At this point, the 
 
         undersigned began questioning the claimant's credibility.
 
         
 
              The only indication of a possible causation tie-in between 
 
         claimant's disability and her injury is Dr. Hirsch's letter to 
 
         claimant's attorney (Jt. Ex. 19).  This letter indicates that 
 
         claimant's working condition of sitting most of the day was a 
 
         very contributory factor to claimant's deep vein thrombosis and 
 
         left lower leg ulcer.  There is considerable direct and cross 
 
         examination testimony as to how much claimant sat and stood and 
 
         how much was continuous.  The claimant tried to convey that she 
 
         sat six hours a day and most of it was continuous.  It is obvious 
 
         that she conveyed this to Dr. Hirsch.  The undersigned believes 
 
         the greater weight of evidence shows claimant had considerable 
 
         interruptions in her daily sitting and standing routines that 
 
         resulted in claimant not having to sit continuous for more than 
 
         one and one half hours on any one day without the opportunity to 
 
         stand, walk, perform other duties or functions or take a break. 
 
         Dr. Johnson, a specialist, to whom Dr. Hirsch sent the claimant 
 
         did not causally connect her disability to a work injury but 
 
         related her problem to thrombophlebitis claimant had in 1983 and 
 
         her problem over the many years prior thereto.  Under McKeever 
 
         Custom Cabinets vs. Smith 379 N.W.2d 368, Iowa 1985, a 
 
         preexisting condition must be materially aggravated, light up or 
 
         worsened by a work injury before a claimant can recover for 
 
         preexisting condition.  The undersigned finds claimant's 
 
         preexisting left lower leg condition was not materially 
 
         aggravated or worsened by any single traumatic injury or 
 
         cumulative injury.  The undersigned finds that the claimant's 
 
         current condition and impairment resulted through the natural 
 
         buildup and tearing of the human body and not because of any 
 
         occupational hurt or trauma.  The undersigned finds claimant's 
 
         injury on October 13, 1987 did not arise out of or in the course 
 
         of claimant's employment nor is claimant's disability causally 
 
         connected to her alleged injury on or around October 13, 1987.
 
         
 
              All of the other issues are therefore moot.  The undersigned 
 
         feels sorry for the claimant but sympathy is not the law.  The 
 
         claimant carries a burden of proof and claimant's failure to 
 
         carry this burden results in claimant taking nothing from this 
 
         proceeding.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              Claimant failed to prove that she received a cumulative work 
 
         injury to her left lower leg on or around October 13, 1987.
 
         
 
              Claimant failed to prove that her disability is a result of 
 
         a work related injury on or about October 13, 1987.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Claimant had a preexisting left lower leg condition for 
 
         approximately 21 years which has flared up over the years due to 
 
         the natural buildup and tearing down of the human body and not 
 
         because of one traumatic or cumulative injury on or about October 
 
         13, 1987 to the claimant.
 
         
 
              Claimant has failed to prove an impairment to her left lower 
 
         leg as a result of a cumulative injury on or about October 13, 
 
         1987.
 
         
 
              Claimant has not worked since October 12, 1987.
 
         
 
                                   CONCLUSIONS
 
         
 
              Claimant's left lower leg injury did not arise out or in the 
 
         course of her employment on or about October 13, 1987.
 
         
 
              Claimant's disability is not causally connected to her left 
 
         lower leg injury on or about October 13, 1987.
 
         
 
              Claimant has a preexisting left lower leg condition which 
 
         was not materially aggravated, light up or worsened as a result 
 
         of any work related injury on or about October 13, 1987.
 
         
 
              Claimant has no impairment to her left lower leg as a result 
 
         of a work related injury on or about October 13, 1987.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, it is ordered:
 
         
 
              Claimant takes nothing from these proceedings.
 
         
 
              Defendants shall pay the costs of this action pursuant to 
 
         Division of Industrial Services Rule 343-4.33.
 
         
 
              Signed and filed this 9th day of November, 1989.
 
         
 
         
 
         
 
         
 
         
 
         
 
                                            BERNARD J. O'MALLEY
 
                                            DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Ms. Alice S. Horneber
 
         Attorney at Law
 
         400 1st Nat'l Bank Bldg.
 
         P.O. Box 1768
 
         Sioux City, Iowa  51102
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         Mr. Roger L. Carter
 
         Attorney at Law
 
         Jackson Plaza Ste. 300
 
         P.O. Box 327
 
         Sioux City, Iowa  51102
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
                                            
 
 
 
 
 
 
 
 
 
 
 
                                            51100 51108 51400
 
                                            Filed November 9, 1989
 
                                            BERNARD J. O'MALLEY
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         PAMELA J. FOWLER,
 
         
 
              Claimant,
 
                                                   File No. 879053
 
         vs.
 
         
 
         TOY NATIONAL BANK,                     A R B I T R A T I 0 N
 
         
 
              Employer,
 
                                                   D E C I S I 0 N
 
         and
 
         
 
         ROYAL INSURANCE COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
         51100 - 51400
 
         
 
              Claimant failed to prove her injury arose out of and in the 
 
         course of her employment.
 
         
 
         51108 - 51400
 
         
 
              Claimant failed to prove her disability is causally 
 
         connected to her alleged injury.  Claimant awarded no benefits.
 
         
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            CHRISTINE R. MADREN,          :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 879260
 
            UNIVERSITY PARK HOLIDAY INN,  :
 
                                          :    A R B I T R A T I O N
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            AMERICAN MOTORISTS INSURANCE, :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                 
 
            
 
                 This is a proceeding in arbitration brought by 
 
            Christine R. Madren (claimant) commenced with the filing of 
 
            a petition on December 13, 1989 against University Park 
 
            Holiday Inn (Holiday Inn), employer, and American Motorist 
 
            Insurance (AMI), (collectively defendants), Holiday Inn's 
 
            insurer for worker's compensation benefits as a result of an 
 
            alleged injury to claimant's back occurring on February 21, 
 
            1988.  On February 28, 1991, the matter came on for hearing 
 
            in Des Moines, Iowa.  The parties appeared as follows:  the 
 
            claimant in person and by her counsel Gregory Hulse of Adel, 
 
            Iowa and Holiday Inn and AMI by their counsel Paul Thune of 
 
            Des Moines, Iowa.  
 
            
 
                 The record in this proceeding consisted of the 
 
            following:
 
            
 
                 1.  The live testimony of the claimant, Jason Madren, 
 
            Donna L. Anderson and Katherine Murphy.  
 
            
 
                 2.  Joint exhibits 1-11.
 
            
 
                 3.  Defendants' exhibits A-C.
 
            
 
                 At the close of all evidence, the case was deemed fully 
 
            submitted.
 
            
 
                                   stipulations
 
            
 
                 The parties stipulated to the following matters at the 
 
            time of the hearing:
 
            
 
                 a.  An employer-employee relationship existed between 
 
            claimant and employer at the time of the alleged injury.
 
            
 
                 b.  The claimant sustained an injury on February 21, 
 
            1988, which arose out of and in the course of employment.
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
                 c.  The alleged injury is a cause of temporary 
 
            disability.
 
            
 
                 d.  The alleged injury caused a permanent disability.
 
            
 
                 e.  The parties agreed that claimant's time off work 
 
            began on February 22, 1988.
 
            
 
                 f.  The type of permanent disability, if the injury is 
 
            found to be a cause of permanent disability, is industrial 
 
            disability to the body as a whole.
 
            
 
                 g.  The rate of compensation, in the event of an award, 
 
            is $87.26 per week.(1)  At the time of the injury claimant was 
 
            married.  She is entitled to two exemptions.
 
            
 
                 h.  All of the requested medical benefits have been or 
 
            will be paid.
 
            
 
                 i.  Defendants have paid 43 weeks of workers' 
 
            compensation benefits to claimant at the rate of $87.88 per 
 
            week prior to hearing and are entitled to a credit for those 
 
            payments.
 
            
 
                 j.  There are no bifurcated claims.
 
            
 
                 k.  The parties have agreed on the amount of the costs 
 
            to be assessed in the event of an award.
 
            
 
            Issue
 
 
 
                 The only issue for resolution is as follows:
 
            
 
                 1.  Whether a causal relationship exists between 
 
            claimant's claimed injuries and the claimed industrial 
 
            disability and the nature and extent of any entitlement to 
 
            benefits, if any.
 
            
 
                     
 
            
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
            (1).  The rate stipulated to does not exist.  The correct 
 
            rate, based on a gross weekly wage of $121.44 is $87.26.  
 
            See, Division of Industrial Services, Guide to Iowa Workers' 
 
            Compensation Claim Handling, p. 13 (July 1, 1987).  The 
 
            undersigned is not bound by a stipulated rate that does not 
 
            exist since such a stipulation is contrary to law.  Larson 
 
            v. Eichleay Corp, File No. 701560 Slip Op. at 2 (Iowa Ind. 
 
            Comm'r App. July 30, 1990).
 
            
 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            FINDINGS OF FACT
 
            
 
                 After considering all of the evidence and the arguments 
 
            of counsel, the undersigned makes the following findings of 
 
            fact and conclusions of law.
 
            
 
                 1.  Claimant was 19 at the time of her injury.  She was 
 
            22 at the time of the hearing.  Claimant attended school in 
 
            her hometown of Adel, Iowa until the 9th grade.  She left 
 
            school at age 15 and began working part time at Kentucky 
 
            Fried Chicken in Des Moines.  Claimant has had no other 
 
            formal training.  She obtained her GED in 1988.  Claimant 
 
            worked for Kentucky Fried Chicken for two years as a cashier 
 
            and food preparer.  She left that employment when the man 
 
            she was living with died.  She returned to Adel to live with 
 
            her parents.  
 
            
 
                 2.  Claimant's next series of jobs were primarily 
 
            manual labor, minimum wage jobs.  Claimant worked as a 
 
            nurses aide for 8 months, a cashier for a dry cleaner, and a 
 
            cashier at Mennards.  The wage range for all of these jobs 
 
            was between $3.35 per hour to $4.00 per hour.  
 
            
 
                 3.  On February 4, 1988, claimant made application for 
 
            a job with Holiday Inn for a room attendant position.  
 
            Claimant was hired on February 9, 1988.  Claimant was hired 
 
            at the rate of $3.50 per hour.  Claimant was not hired as a 
 
            full time housekeeper.  Room attendants are hired as part 
 
            time employees and then given work on an as needed basis 
 
            depending on the level of occupancy in the hotel.  Claimant 
 
            worked 24.90 hours during the week of February 12, 1988, she 
 
            worked 50.75 hours for the two week pay period ending on 
 
            February 26, 1988 with 13.78 hours of overtime during the 
 
            pay period.  Claimant worked 36.59 hours during the last 
 
            week of June when she returned to work after her injury and 
 
            before she quit her employment with Holiday Inn.
 
            
 
                 4.  Claimant's job duties included general cleaning, 
 
            dusting, vacuuming, changing the bed, wiping down the 
 
            bathroom, replacing the amenities and generally 
 
            straightening up the room for the next guest.  Generally, 
 
            claimant was assigned between 8-16 rooms per day.  Claimant 
 
            was trained by a trainer to perform these tasks.  The 
 
            training took about two weeks.  On February 21, 1988, after 
 
            claimant had started cleaning rooms by herself, she bent 
 
            over and heard a pop in her back and felt immediate pain.  
 
            She was taken to the Iowa Methodist Medical Clinic in West 
 
            Des Moines.  She was then referred to the Sports Medicine 
 
            Clinic and saw David Berg, M.D.  Dr. Berg then referred her 
 
            to David J. Boarini, M.D., for further treatment.  She was 
 
            taken off work as of February 22, 1988.  
 
            
 
                 5.  After a course of conservative treatment which 
 
            included physical therapy, Dr. Boarini performed a 
 
            hemilaminotomy on the left at L4-5 and excision of 
 
            intervertebral disc on April 19, 1988.  Dr. Boarini saw 
 
            claimant on several occasions after the surgery.  The last 
 
            time that Dr. Boarini saw claimant before she returned to 
 
            work was on June 15, 1988.  In a letter to Dr. Berg on July 
 
            12, 1988, Dr. Boarini advised that he had given a work 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            release date of July 27, 1988 to claimant.  Claimant was 
 
            released to return to work with no restrictions.  Dr. 
 
            Boarini set up a follow up appointment for early July but 
 
            claimant did not keep the appointment.  On September 28, 
 
            1988, Dr. Boarini indicated that based upon the June 
 
            examination he felt that claimant had a five percent 
 
            functional impairment as a result of the lumbar laminectomy 
 
            with no residual neurological deficit.  
 
            
 
                 6.  On October 17, 1988, Dr. Boarini saw claimant 
 
            again.  He recommended some physical therapy before 
 
            returning to full time work.  At the time of claimant's 
 
            October examination, she was complaining of low back pain 
 
            with occasional left lower extremity paresthesia.  Before 
 
            claimant could begin physical therapy, she had an emergency 
 
            laparoscopy on October 25, 1988.  Claimant's physical 
 
            therapy treatment started on November 7, 1988 and ended on 
 
            November 22, 1988.  Claimant was seen on three other 
 
            occasions between these dates.  On December 23, 1988, Dr. 
 
            Boarini indicated that claimant should have returned to full 
 
            time work.  Again, she was released with no restrictions.
 
            
 
                 7.  During the time that claimant was off work, both 
 
            before and after her surgery, Holiday Inn maintained contact 
 
            with claimant through correspondence and in person 
 
            conversations claimant had with Katherine Murphy when she 
 
            picked up her benefit check.  Prior to claimant's surgery, 
 
            Ms. Murphy had broached the subject of light duty work for 
 
            claimant.(Exhibit B, page 13)  However, because Dr. Boarini 
 
            indicated on April 11, 1988 that claimant was not ready to 
 
            return, (Ex. 1, p. 2), the light duty work program was 
 
            abandoned.
 
            
 
                 8.  On Monday July 27, 1988, claimant returned to work 
 
            at Holiday Inn.(2)  Claimant returned to full duty since she 
 
            had been released with no restrictions.  Claimant did not 
 
            have a light duty slip from Dr. Boarini when she returned to 
 
            work.  Claimant did not contact Dr. Boarini to obtain a 
 
            light duty work slip during the week that she worked for 
 
            Holiday Inn.  On the first day of her return, claimant was 
 
            given between 15 and 20 rooms to clean.  Claimant was able 
 
            to complete her work assignment, but her back was aching by 
 
            the end of the day.  Claimant worked the rest of the week 
 
            and had back pain each day.  She was scheduled to work 
 
            Saturday and Sunday, be on call Monday and then work again 
 
            on Tuesday, July 5, 1988.  Claimant did not report for work 
 
            on Saturday July 2, 1988.  She did not call in nor did she 
 
            appear in person to discuss the problems that she was having 
 
            with her back or to request light duty.  Nor did claimant 
 
            make contact with Dr. Boarini regarding her continuing back 
 
            pain.(3)  Claimant sought no medical assistance for the pain 
 
            in her back.
 
            
 
                 9.  Claimant returned to Holiday Inn on July 8, 1988 to 
 
            formally resign her position as a room attendant, pick up 
 
            her last paycheck and fill out an exit interview form.  In 
 
            the exit interview, claimant indicated to Ms. Murphy that 
 
            the reason she was leaving was because she had too many 
 
            hours.  At the time of the exit interview, claimant and Ms. 
 
            Murphy discussed the possibility of claimant working in the 
 
            (2).  At the time of the hearing, claimant was confused as to 
 
            the days that she worked at Holiday Inn after her return.  
 
            Reference to a June 1988 calendar reveals that June 27, 1988 
 
            fell on a Monday.  The week ended on Friday July 1, 1988.
 
            (3).  Claimant indicated during the hearing that she had 
 
            received a letter indicating that her benefits were 
 
            terminating and this is the reason that she did not return 
 
            to see Dr. Boarini.  She did not want to incur the office 
 
            charge of $65.00.   However, claimant received another 
 
            letter dated November 7, 1988 indicating that her weekly 
 
            benefits would be terminated with the last payment on 
 
            December 18, 1988.  There was no mention in this letter that 
 
            medical benefits had been terminated.  Claimant received 
 
            medical care after this date in the form of an examination 
 
            by Dr. Boarini and physical therapy treatments. (Ex. 7, p. 
 
            5,).  Claimant did not pay for this treatment and she was 
 
            not billed for the medical services rendered.  The first 
 
            letter was not available at the time of the hearing and 
 
            became the subject of a post hearing motion by the claimant 
 
            to consider further evidence.  The motion was denied.
 
            
 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            laundry area.  Claimant was not interested in this position.  
 
            Claimant also indicated at the time of her exit interview, 
 
            that she had a new job.  Claimant did not have a new job 
 
            however.  Claimant did not work during the remainder of 
 
            July.  Sometime in August, claimant went to work for Casey's 
 
            as a cook.  Claimant earned $3.75 per hour while working for 
 
            Casey's.  She worked there for six months and then quit 
 
            because she could not do the work due to her back and 
 
            because she had a better offer of employment with Kentucky 
 
            Fried Chicken.  However, claimant did not seek medical help 
 
            for her back at the time she left her employment with 
 
            Casey's.   
 
            
 
                 10. Claimant's next post injury employment was with 
 
            Kentucky Fried Chicken at one of the stores in the Des 
 
            Moines area.  She worked part time as a cashier 20 to 35 
 
            hours per week.  Claimant was paid $4.00 per hour.  Claimant 
 
            apparently experienced no difficulty with her back at this 
 
            job.  Claimant became pregnant sometime in the late fall or 
 
            early winter of 1988.  On January 31, 1989, claimant 
 
            experienced problems with her pregnancy.  She had first 
 
            trimester bleeding that resolved spontaneously.  She was 
 
            ordered home on bedrest.  At that point, her employment 
 
            ended with Kentucky Fried Chicken.
 
            
 
                 11. After claimant's child was born in July of 1989, 
 
            claimant began to work as a telemarketer for Clover Ridge in 
 
            Panora.  However, this employment was short lived when 
 
            claimant discovered that she was not earning enough to pay a 
 
            baby-sitter and buy the gas it took to get to her job.  
 
            After leaving this job, claimant has not looked for work.  
 
            She indicated at the hearing that it is easier to stay home 
 
            and take care of her daughter than to look for work.  
 
            
 
                 12. On December 19, 1989, claimant was examined by 
 
            Herbert Rosen, D.O., for a physical examination and a 
 
            comprehensive muscular-skeletal evaluation.  Dr. Rosen is a 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            board certified general practioner with specialities in 
 
            family practice and occupational medicine.  Dr. Rosen found 
 
            that claimant could bend over easily with no restrictions.  
 
            He found that she could touch her toes and hyperextend her 
 
            back.  Claimant had no evidence of spasm and pain.  Dr. 
 
            Rosen also had claimant do side bending to the right and 
 
            left, flexion of the head and neck, and all were within 
 
            normal ranges of motion with no restrictions, no pain, no 
 
            stiffness and no impairment.  Dr. Rosen could find no 
 
            trigger points for pain.  Based on this examination, Dr. 
 
            Rosen found that claimant had no objective impairment, but 
 
            did suffer from chronic low back pain syndrome and post 
 
            lumbar laminectomy syndrome (Ex. 10, p. 15).  Dr. Rosen felt 
 
            that the functional impairment rating given by Dr. Boarini 
 
            was correct.  However, Dr. Rosen would not confirm that the 
 
            pain symptoms that claimant was suffering from at the time 
 
            of his examination, were due to claimant's February 1988 
 
            injury.  Dr. Rosen indicated it was possible the symptoms 
 
            were related.  (Ex. 10, p. 23).  Dr. Rosen also felt that 
 
            based on his knowledge of maid work, that claimant was not 
 
            entirely foreclosed from returning to this occupation if the 
 
            job were appropriately structured.  He did think that 
 
            claimant would benefit from some type of retraining.  At the 
 
            conclusion of his examination Dr. Rosen did not recommend 
 
            any restrictions for claimant.
 
            
 
                 13. At the time of the hearing, claimant was not taking 
 
            any prescribed pain medication.  Claimant identified certain 
 
            activities that bother her back.  She is not foreclosed from 
 
            doing these activities, however.  These activities are 
 
            listed in deposition exhibit 1 of exhibit 10.  These 
 
            limitations are self imposed.  Claimant did indicate that 
 
            she needs to work to assist in the support of the family.  
 
            
 
                 14. Claimant is seeking reimbursement for mileage in 
 
            the amount of $336.00 for various trips to medical 
 
            professionals (Ex. 11).
 
            
 
                    
 
            
 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            conclusions of law
 
            
 
                 1.  Whether a causal relationship exists between 
 
            claimant's claimed injuries and the claimed industrial 
 
            disability and the nature and extent of any entitlement to 
 
            benefits, if any.
 
            
 
                 The essence of the dispute between claimant and 
 
            defendants is the level of benefits that claimant is entitle 
 
            to receive as a result of her injury.  Specifically, the 
 
            parties have placed in issue the length of the healing 
 
            period, the commencement date for the award and the amount 
 
            of industrial disability that the claimant is entitled to 
 
            receive.
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury of February 
 
            21, 1988, is causally related to the disability on which she 
 
            now bases her claim.  Bodish v. Fischer, Inc., 133 N.W.2d 
 
            867, 868 (Iowa 1965);  Lindahl v. L. O. Boggs, 18 N.W.2d 
 
            607,613-14 (Iowa 1945).  A possibility is insufficient; a 
 
            probability is necessary.  Burt v. John Deere Waterloo 
 
            Tractor Works, 73 N.W.2d 732, 738 (Iowa 1955).  The question 
 
            of causal connection is essentially within the domain of 
 
            expert testimony.  Bradshaw v. Iowa Methodist Hospital, 101 
 
            N.W.2d 167,171 (Iowa 1960). 
 
            
 
                 Expert medical evidence must be considered with all 
 
            other evidence introduced bearing on the causal connection.  
 
            Burt, 73 N.W.2d at 738.  The opinion of the experts need 
 
            not be couched in definite, positive or unequivocal 
 
            language.  Sondag v. Ferris Hardware, 220 N.W.2d 903, 907 
 
            (Iowa 1974).  Moreover, the expert opinion may be accepted 
 
            or rejected, in whole or in part, by the trier of fact.  
 
            Sondag, 220 N.W.2d at 907.  Finally, 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 material circumstances.  Bodish, 133 N.W.2d 
 
            at 870; Musselman, 154 N.W.2d at 133.  The Supreme Court has 
 
            also observed that greater deference is ordinarily accorded 
 
            expert testimony where the opinion necessarily rests on 
 
            medical expertise.  Sondag, 220 N.W.2d at 907
 
            
 
                 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., 
 
            258 N.W.2d 899, 902 (Iowa 1935) as 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 person.  The essence of an earning 
 
            capacity inquiry then, is not how much has the claimant been 
 
            functionally impaired, but whether that impairment, in 
 
            combination with the claimant's age, education, work 
 
            experience, pre and post injury wages, motivation and 
 
            ability to get a job within her restrictions, if any 
 
            restrictions have been imposed, have caused a loss of 
 
            earning capacity.  Olson v. Goodyear Service Stores, 125 
 
            N.W.2d 251, 257 (Iowa 1963); Diederich v. Tri-City Railway 
 
            Co., 258 N.W. 899, 902 (Iowa 1935);  Peterson v. Truck Haven 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            Cafe, Inc., 1 Iowa Industrial Comm'r Dec. No. 3, 654, 658 
 
            (1985); Christening v. Hague, Inc., 1 Iowa Industrial Comm'r 
 
            Dec. No. 3, 529, 534-535 (1985).  A finding of impairment to 
 
            the body as a whole found by a medical evaluator does not 
 
            equate to industrial disability.  This is so as impairment 
 
            and disability are not synonymous.  The 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.
 
            
 
                 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 the total, motivation five percent of the total, 
 
            work experience thirty percent of the total etc.  Neither 
 
            does a rating of functional impairment directly correlate to 
 
            the 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 to the body as a whole.  It therefore becomes 
 
            necessary for the deputy or commissioner to draw upon prior 
 
            experience, and general and specialized knowledge to make 
 
            the finding with regard to the degree of industrial 
 
            disability.  See, Peterson v. Truck Haven Cafe, Inc., File 
 
            No. 420539, slip op. at 16-17 (Iowa Ind. Comm'r Appeal Dec. 
 
            February 28, 1985); Christensen v. Hagen, Inc., File No. 
 
            643434, slip op. at 2-23 (Iowa Ind. Comm'r Appeal Dec. March 
 
            26, 1985)
 
            
 
                 In this instance, claimant has sustained a permanent 
 
            injury that Dr. Boarini has rated at five percent.  Dr. 
 
            Rosen did not disagree with that rating.  Claimant has a 9th 
 
            grade education with a GED.  Claimant has worked at minimum 
 
            wage jobs during her brief foray into the competitive labor 
 
            market.  Claimant has never held a full-time job.  Claimant 
 
            has no restrictions from her treating or evaluating 
 
            physician.  Claimant had found work as a cashier at Kentucky 
 
            Fried Chicken after her injury and surgery, but could not 
 
            perform that work due to her problem pregnancy rather than 
 
            her work injury.  Claimant has worked briefly since her 
 
            child was born, but has determined for economic reasons that 
 
            she could not continue that employment rather than for 
 
            reasons attributable to her back injury.  Claimant is 
 
            slightly motivated to go back to work.  She agreed that with 
 
            a two-year-old at home, it is easier for her to stay home 
 
            than work.  The only limiting factor identified by claimant 
 
            in her search for work is pain in her back.  There is 
 
            insufficient evidence to link the pain in her back to the 
 
            work injury.  Dr. Rosen reached that conclusion.  Pain that 
 
            is not supported by clinical findings is not a substitute 
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            for impairment.  Waller v. Chamberlain Manufacturing, II 
 
            Iowa Industrial Commissioner Report 419, 425 (1981); 
 
            Fernandez v. Good Samaritan Nursing Center, No. 856640, 
 
            Slip op. at 15 (Iowa Ind. Comm'r Arb. February 27, 1991).  
 
            Claimant's age is in her favor.  Claimant was 19 years old 
 
            at the time of the injury and 22 years old at the time of 
 
            the hearing.  Due to her young age, her industrial 
 
            disability is not as serious as it would be for an older 
 
            employee.  Becke v. Turner-Busch, Inc., Thirty-fourth 
 
            Biennial Report of the Industrial Commissioner 34 (Appeal 
 
            Decision  1979); Walton v. B & H Tank Corp., II Iowa 
 
            Industrial Commissioner Report 426 (1981); McCoy v. 
 
            Donaldson Company, Inc., file numbers 782670 & 805200 
 
            (Appeal Decision April 28, 1989).
 
            
 
                 Based upon the foregoing factors, all of the factors 
 
            used to determine industrial disability, and employing 
 
            agency expertise, it is determined that claimant sustained a 
 
            7 percent industrial disability.
 
            
 
                 In making a judgment regarding claimant's healing 
 
            period benefits, several cases are instructive.  Healing 
 
            period benefits may be characterized as that period during 
 
            which there is a reasonable expectation of improvement of a 
 
            disabling condition and ends when maximum medical 
 
            improvement is reached. Armstrong Tire and Rubber Co. v. 
 
            Kubli, 312 N.W.2d 60, 65 (Iowa Ct. App. 1981).  In 
 
            discussing the concept of healing period as contemplated by 
 
            Iowa Code Section 85.34(1) (1991) the Kubli Court observed 
 
            that recuperation refers to that condition in which healing 
 
            is complete and the extent of the disability can be 
 
            determined.  Kubli, 312 N.W.2d at 65.  The healing period 
 
            generally terminates at the time the attending physician 
 
            determines that the employee has recovered as far as 
 
            possible from the effects of the injury.  Kubli, 312 N.W.2d 
 
            at 65.  When a permanent rating is given, it indicates that 
 
            the physician does not expect the claimant to improve and 
 
            this conclusion meets the criteria of Iowa Code section 
 
            85.34(1) and Thomas v. William Knudson & Sons, Inc., 349 
 
            N.W.2d 124, 126 (Iowa App. 1984).
 
            
 
                 In this instance, Dr. Boarini gave his impairment 
 
            rating in September of 1988.  The reason that the rating was 
 
            given at that time was due to the fact that claimant did not 
 
            keep a scheduled appointment in July, the time that Dr. 
 
            Boarini released claimant to return to work.  Dr. Boarini 
 
            based his impairment rating on the June 15, 1988 
 
            examination.  Consequently, claimant's healing period ended 
 
            when she returned to work.  Smith v. FDL Foods, [File No. 
 
            837625, Slip Op. at 14 (Iowa Ind. Comm'r Arb. September 27, 
 
            1989)].  Even though claimant had subsequent treatment in 
 
            November of 1988, the physical therapy was to alleviate pain 
 
            symptoms and not to improve claimant's condition.  Dr. Rosen 
 
            found that the permanency rating had not changed at the time 
 
            he did his examination in December of 1989.  Medical 
 
            treatment designed to relieve claimant's persistent 
 
            complaints of pain does not prove entitlement to additional 
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
            healing period benefits. Phillips v. Iowa Methodist Medical 
 
            Center, File No. 765826, Slip Op. at 7 (Iowa Ind Comm'r 
 
            Appeal  July 30, 1990).
 
            
 
                 Regarding claimant's request for payment for mileage is 
 
            justified.  All of the accumulated mileage was necessary to 
 
            complete her medical care.
 
            
 
                                      Order
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 1.  University Park Holiday Inn and American Motorists 
 
            Insurance shall pay to claimant healing period benefits for 
 
            the period of time beginning on February 22, 1988 and ending 
 
            on July 27, 1988 at the rate of eighty-seven and 26/100 
 
            dollars ($87.26).  As these benefits have accrued, they 
 
            shall be paid in a lump sum together with statutory interest 
 
            thereon pursuant to Iowa Code section 85.30 (1991).
 
            
 
                 2.  University Holiday Inn and American Motorist 
 
            Insurance shall pay to claimant permanent partial disability 
 
            benefits in the amount of seven percent (7%) with payment 
 
            commencing on July 28, 1988 at the rate of eighty-seven and 
 
            26/100 dollars ($87.26) per week.  As these benefits have 
 
            accrued, they shall be paid in a lump sum together with 
 
            statutory interest thereon pursuant to Iowa Code section 
 
            85.30 (1991).
 
            
 
                 3.  University Holiday Inn and American Motorist 
 
            Insurance shall pay claimant's mileage totaling three 
 
            hundred thirty-six dollars ($336.00).
 
            
 
                 4.  University Holiday Inn and American Motorist 
 
            Insurance shall have a credit in the amount of forty-three 
 
            (43) weeks against any amounts owed.
 
            
 
                 5.  The costs of this action shall be assessed to 
 
            University Holiday Inn and American Motorist Insurance 
 
            pursuant to rule 343 IAC 4.33.
 
            
 
                 6.  University Holiday Inn and American Motorist 
 
            Insurance shall file claim activity reports as required by 
 
            rule 343 IAC 3.1.
 
            
 
                 Signed and filed this ____ day of July, 1991.
 
            
 
            
 
            
 
            
 
                                          
 
            ________________________________
 
                                          ELIZABETH A. NELSON
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr Gregory A Hulse
 
            Attorney at Law
 
            1009 Main Street
 

 
            
 
            Page  11
 
            
 
            
 
            
 
            
 
            Adel Iowa 50003
 
            
 
            Mr Paul C Thune
 
            Attorney at Law
 
            218 6th Avenue Ste 300
 
            PO Box 9130
 
            Des Moines Iowa 50306
 
            
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                      5-1803 - 5-1802
 
                      Filed July 12, 1991
 
                      ELIZABETH A. NELSON
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            CHRISTINE R. MADREN,     :
 
                      :
 
                 Claimant, :
 
                      :
 
            vs.       :
 
                      :      File No. 879260
 
            UNIVERSITY PARK HOLIDAY INN,  :
 
                      :    A R B I T R A T I O N
 
                 Employer, :
 
                      :      D E C I S I O N
 
            and       :
 
                      :
 
            AMERICAN MOTORISTS INSURANCE, :
 
                      :
 
                 Insurance Carrier,  :
 
                 Defendants.    :
 
            ___________________________________________________________
 
            
 
            5-1803
 
            Claimant, 22 years old at the time of hearing, post lumbar 
 
            laminectomy, with a GED and very little motivation and no 
 
            restrictions was awarded 7 percent industrial disability.
 
            
 
            5-1802
 
            Claimant's healing period ended when she returned to work.  
 
            Even though she saw her treating physician later in the fall 
 
            of 1988, the year of her injury and surgery, she was seen 
 
            for maintenance and pain relief treatment only.  There was 
 
            no improvement in her condition.szzewnm7