before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            DENNIS HILL,   :
 
                      :   
 
                 Claimant, :   
 
                      :   File Nos. 881074/842646
 
            vs.       :
 
                      :         A P P E A L
 
            OSCAR MAYER FOODS CORP., :
 
                      :       D E C I S I O N
 
                 Employer, :
 
                 Self-Insured,  :
 
                 Defendant.     :
 
            ___________________________________________________________
 
            
 
            The record, including the transcript of the hearing before 
 
            the deputy and all exhibits admitted into the record, has 
 
            been reviewed de novo on appeal.  The decision of the deputy 
 
            filed September 12, 1989 is affirmed and is adopted as the 
 
            final agency action in this case. 
 
            Defendant shall pay the costs of the appeal, including the 
 
            preparation of the hearing transcript.
 
            Signed and filed this ____ day of June, 1991.
 
            
 
            
 
            
 
            
 
                      ________________________________
 
                               CLAIR R. CRAMER
 
                       ACTING INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Wayne H. McKinney, Jr.
 
            Attorney at Law
 
            P.O. Box 209
 
            Waukee, Iowa 50263-0209
 
            
 
            Mr. Harry W. Dahl
 
            Attorney at Law
 
            974 73rd St., Suite 16
 
            Des Moines, Iowa 50312
 
            
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
            9998
 
            Filed June 28, 1991
 
            Clair R. Cramer
 
            BJO
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            DENNIS HILL,   :
 
                      :   
 
                 Claimant, :   
 
                      :   File Nos. 881074/842646
 
            vs.       :
 
                      :         A P P E A L
 
            OSCAR MAYER FOODS CORP., :
 
                      :       D E C I S I O N
 
                 Employer, :
 
                 Self-Insured,  :
 
                 Defendant.     :
 
            ___________________________________________________________
 
            
 
            
 
            9998
 
            
 
                 Summary affirmance of deputy's decision filed September 
 
            12, 1989.
 
            
 
 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         DENNIS HILL,
 
                                                     File Nos. 881074
 
              Claimant,                                        842646
 
         
 
         vs.                                      A R B I T R A T I O N
 
         
 
         OSCAR MAYER FOODS CORP.,                    D E C I S I O N
 
         
 
              Employer,                                 F I L E D
 
              Self-Insured,
 
              Defendant.                               SEP 12 1989
 
         
 
                                               IOWA INDUSTRIAL 
 
         COMMISSIONER
 
         
 
         
 
                                   INTRODUCTION
 
                                        
 
              This is a proceeding in arbitration brought by the claimant, 
 
         Dennis Hill, against Oscar Mayer Foods Corp., self-insured 
 
         employer, to recover benefits as a result of alleged injuries 
 
         sustained on August 19, 1986 and September 30, 1986.  This matter 
 
         came on for hearing before the deputy industrial commissioner in 
 
         Des Moines, Iowa, on July 10, 1989.  The record consists of the 
 
         testimony of claimant and Arthur Sorenson; claimant's exhibits A 
 
         through F; and defendant's exhibits 1 through 9 and 11 through 
 
         14.
 
              
 
                                      ISSUES
 
                                        
 
              The issues for resolution are the same for both injuries, 
 
         namely:
 
              
 
              1.  Whether claimant is barred by the notice requirements of 
 
         Iowa Code section 85.23;
 
              
 
              2.  Whether claimant's alleged injuries on August 19, 1986 
 
         and September 30, 1986 arose out of and in the course of his 
 
         employment;
 
              
 
              3.  The nature and extent of claimant's disability; and
 
              
 
              4.  Claimant's entitlement to 85.27 and 85.39 medical 
 
         benefits.
 
              
 
                              REVIEW OF THE EVIDENCE
 
                                        
 
              Dennis Hill testified that he graduated from high school in 
 
         1973.  He said that after a couple of manual labor jobs, he began 
 
         working for defendant employer in July 1974.  Claimant stated he 
 
         was laid off after five months.  Claimant said that after a 
 
         couple of manual labor jobs, he was rehired by defendant employer 
 
         in September 1986 and worked until the employer closed its plant 
 
         in February 1989.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              
 
              Claimant testified he had no injuries prior to August 19, 
 
         1986 except for an automobile accident in 1972.  Defendant later 
 
         acknowledged that he slipped and fell in December 1985 in the 
 
         company's parking lot but that he had no leg or hip problems 
 
         until August 19, 1986.  Claimant stated that he had bruised his 
 
         hip and had missed no work from this fall.  Claimant said this 
 
         automobile accident resulted in two broken legs, a broken jaw and 
 
         skull fractures.  Claimant emphasized that these injuries healed 
 
         soon thereafter and that he did not injure his back.
 
              
 
              Claimant said he passed his Oscar Mayer physical in 1976. 
 
         Claimant stated he began his work in 1976 as a night cleanup 
 
         person and then as a lard scraper until he started cutting cheek 
 
         meat off of hog heads in 1977 until February 1989.  Claimant 
 
         described his cheek meat job.  Claimant said he processed 
 
         approximately 1000 heads per day from 1976 to August 1986. 
 
         Claimant said the hog heads weighed 10 pounds and he was required 
 
         to reach, twist, lift and bend while doing his job.  Claimant 
 
         stated that every break, three times a day, he was required to 
 
         lift a barrel of meat.  Claimant indicated that if the barrel was 
 
         full, it weighed up to 250 pounds.  Claimant contends a pole at 
 
         every work station made his job harder because he had to work 
 
         around it at times when reaching for the hog heads.  Claimant 
 
         testified that the conveyor belt would break down or shut down at 
 
         times resulting in an increase in reaching to process the hog 
 
         heads.
 
              
 
              Claimant said he reported pain in his hip and low back to 
 
         the company nurse on August 19, 1986.  Claimant said he told the 
 
         nurse he did not have any specific accident.  Claimant stated he 
 
         continued to do this same job until September 1986, at which time 
 
         he called the company nurse because of the pain in his low back 
 
         and leg.  Claimant stated he went to the company doctor, Kurt 
 
         Klise, M.D., on September 24, 1986, who indicated that claimant's 
 
         condition was not work related.  Claimant said the company nurse 
 
         also told him it was not work related since there actually was 
 
         not an accident.  Claimant testified he did not work on September 
 
         30, 1986 because his leg and back pain were so bad he could not 
 
         stand. Claimant emphasized he never experienced pain or problems 
 
         to this extent before that date.
 
              
 
              Claimant indicated he returned to work one hour on October 
 
         24, 1986, but was unable to continue working because of his pain. 
 
         Claimant stated he saw Douglas A. Sande, D.C., and Marvin 
 
         Dubansky, M.D., several times and returned to work November 17, 
 
         1986 with no restrictions.  Claimant stated he was able to 
 
         perform his job but that his back still bothered him.  Claimant 
 
         continued to work until February 1989 when the plant closed.
 
              
 
              Claimant stated he had a workers' compensation complaint one 
 
         time prior to the 1986 incident but gave no date.  Claimant 
 
         indicated that Oscar Mayer modified his job which resulted in the 
 
         conveyor felt running more smoothly, the barrel lid being 
 
         lighter, and the heavy barrel running on its own conveyor belt.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              
 
              Claimant said he has not taken any medications for his 
 
         problems since 1986.  Claimant emphasized he has had no other 
 
         injuries since the August or September 1986 incidents.  Claimant 
 
         admitted he told the company nurse on February 4, 1987 that he 
 
         wanted to report his injury from the prior fall as a gradual 
 
         injury.  He said he had talked to the union representative at 
 
         that time but had not yet talked to an attorney.  Claimant also 
 
         acknowledged that he told the company nurse on February 9, 1987 
 
         that he did not know what caused his problem, but felt it came on 
 
         gradually.
 
              
 
              Claimant testified that he received retraining and 39 weeks 
 
         of unemployment benefits due to Oscar Mayer's closing, in 
 
         addition to pension money and "stay-pay bonus," since he stayed 
 
         until the plant's closing.  Claimant said he is being trained 
 
         under a United Way program and with Job Service help.  Claimant 
 
         stated he enrolled for a 21 month computer electronics course.
 
              
 
              Arthur Sorenson testified that he was the assistant 
 
         personnel manager at Oscar Mayer from June 1986 to April 1988 and 
 
         personnel manager in Perry, Iowa, from April 1988 to March 1989.  
 
         He stated he was also the safety manager.  Sorenson said the 
 
         video film shown (defendant's exhibit 2) represents the cheek 
 
         meat line in 1986 and after the return from the earlier shutdown 
 
         except for the third conveyor belt.  He said there were only two 
 
         conveyor belts in 1986.  Sorenson emphasized that there were no 
 
         union safety complaints about reaching around the pole when 
 
         processing the hog heads.  He emphasized there are 12 to 13 union 
 
         members on the committee handling any safety complaints.  
 
         Sorenson did not dispute the claimant had to reach around a pole 
 
         at times and lift hog heads.
 
              
 
              On February 24, 1972, claimant was in an automobile accident 
 
         and his admission record reflects:
 
              
 
                 This 17-year-old Caucasian male was admitted via an 
 
              ambulance after allegedly being involved in an accident at 
 
              an intersection on a rural road sometime the afternoon f 
 
              admission.  In that accident he sustained severe multiple 
 
              trauma.
 
                 
 
                 He sustained a skull fracture with a contusion to the 
 
              right orbit and eye, a large transverse laceration of his 
 
              forehead, bilateral fractured femurs with the left fractured 
 
              femur being open medially, and fractured facial bones 
 
              including a floating mandible.
 
                 
 
         (Defendant's Exhibit 7, page 1)
 
         
 
              Claimant had additional surgery on March 13, 1972 involving 
 
         "Open reduction and internal fixation with ASIF compression plate 
 
         and screw."  On June 26, 1972, claimant was admitted to the 
 
         hospital and his medical records reflect:
 
              
 

 
         
 
 
 
 
 
 
 
 
 
 
 
                 This 17-year-old boy was admitted with bilateral hip 
 
              spica case on for healing fractures of his femurs sustained 
 
              in a auto accident several months ago.
 
                 
 
                 He was taken out of his casts and x-rays show the 
 
              fractures to be healing in fairly good position and he has 
 
              gone on physical therapy.  He had a moderate amount of knee 
 
              restriction motion.
 
                 
 
         (Def. Ex. 7, p. 4)
 
         
 
              In June 1976, claimant's medical records reflect he incurred 
 
         a left thumb fracture resulting in a 50 percent impairment to 
 
         claimant's thumb, as opined by Sinesio Misol, M.D.
 
              
 
              The office notes of Marvin H. Dubansky, M.D., an orthopedic 
 
         surgeon, reflect on August 19, 1987:
 
              
 
                 At this time, I feel that the patient probably had a 
 
              herniated disc, which has mostly resolved.  He still has 
 
              some residual impairment as a result, however, at this 
 
              particular time, I do not feel any other treatment would be 
 
              necessary.
 
                 
 
                 As it's well known, there could be further problems or 
 
              he could stay the same or could cure up completely but I 
 
              have no way of 100% predicting what the future may bring but 
 
              he has done very well at this time and I would hope that he 
 
              continues the same way.
 
                 
 
         (Def. Ex. 3, p. 14)
 
         
 
              On October 29, 1987, Dr. Dubansky opined:  "Basically, using 
 
         the AMA Guide to Physical Impairment, I feel that Mr. Hill has 
 
         approximately 5% impairment of the back due to limited motion and 
 
         the pain when he stands long periods of time and has to work 
 
         overtime."  (Def. Ex. 3, p. 3)  On December 14, 1987, Dr. 
 
         Dubansky opined:
 
         
 
              I feel that he does have some permanent impairment as a 
 
              result of probably having a herniated disc.  I would 
 
              estimate this at about 5% or less.  Whether this is due to 
 
              his auto accident, hormone changes, or what, I cannot say 
 
              definitely as he does not give history of any new 
 
              instigating cause at the time he started having trouble.  He 
 
              said he just started hurting.
 
              
 
         (Def. Ex. 3, p. 4)
 
         
 
              Jerome G. Bashara, M.D., evaluated claimant on March 15, 
 
         1988 at the request of claimant's attorney.  His evaluation 
 
         reflects the following:
 
         
 
              X-RAYS:     ....
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
                         CT Scan dated 10-11-86, he has a herniated
 
                         lumbar disc at L5-S1 central and to the
 
                         left.
 
                         
 
              DIAGNOSIS:  Herniated lumbar disc, related to his
 
                         work at Oscar Meyer [sic] in the fall
 
                         of 1986, secondary to repetitive bending,
 
                         twisting, and lifting.
 
                         
 
                         I would give this patient 10% permanent partial 
 
                         physical impairment of his body as a whole 
 
                         related to his disc injury with some mild 
 
                         persistent restriction of motion and absent left 
 
                         ankle jerks.
 
                         
 
         (Claimant's Exhibit D, page 3)
 
         
 
              Dr. Dubansky testified in a deposition on August 17, 1988 
 
         that claimant's left leg was shortened one-half inch as a result 
 
         of claimant's 1972 auto accident.  Dr. Dubansky said an inch or 
 
         so is an acceptable variance and probably may not give claimant 
 
         back symptoms.  Dr. Dubansky referred to the history discrepancy 
 
         claimant gave him.  The doctor had the impression that claimant 
 
         had to lift the hog heads on the belt and put them down and trim 
 
         them.  Dr. Dubansky noticed in the video (def. ex. 2) that 
 
         claimant did not have to lift the heads, but just slide the heads 
 
         around to make the cuts.  The doctor said:  "Well, just sliding 
 
         the heads around, to me it sounds like it's no load, no stress, 
 
         no nothing.  It's just a matter of an individual standing.  (Def. 
 
         Ex. 4, p. 16)  Dr. Dubansky was asked:
 
              
 
              Q.  And it appears that also you estimated that he has five 
 
              percent permanent physical impairment of the body as a whole 
 
              as rated by physicians; is that correct?
 
              
 
              A.  The point is, if somebody has had a herniated disc and 
 
              has basically no difficulty as a result and they recovered, 
 
              I feel that is probably a five percent impairment of the 
 
              body as a whole.
 
              
 
              Q.  Are you relating the five percent permanent physical 
 
              impairment of the body to any specific episode, or is this 
 
              just what you found to exist based upon your examination and 
 
              knowledge that he had apparently this disc problem?
 
              
 
              A.  I feel he probably had a ruptured disc and he recovered 
 
              without symptoms at the last time I saw him, and based upon 
 
              that fact, the relationship that he probably had one even 
 
              though now he has no symptoms, that it is not a normal back.
 
              
 
                  Now, what caused the ruptured disc or the herniated 
 
              disc, that I'm not prepared to say because I really don't 
 
              know.
 
              
 
         (Dubansky Deposition, pp. 18-19)
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Dr. Dubansky later commented:
 
              
 
                  Now, not everybody who -- in fact, the majority of 
 
              people that have herniated or ruptured discs do not give a 
 
              history of a specific episode.  It's just something that 
 
              comes on as an aging type thing, so I don't know whether his 
 
              job had anything to do with it, and I don't think anybody 
 
              can prove one way or the other whether his job had anything 
 
              to do with it because, as I say, a disc that ruptures is a 
 
              degenerated disc.  I've seen people wake up with it, 
 
              coughing, going to the toilet, and just getting in the car 
 
              and pushing on the gas, regular activities.
 
              
 
                  Now, when I saw this man, at no time did he give me 
 
              anything out of the ordinary or unusual.  He had been doing 
 
              this job fourteen years and he had a problem and he went 
 
              back to it.  So to me, I don't know whether this was an 
 
              episode in his life, and the relationship to his job I don't 
 
              think had very much to do with it.
 
              
 
         (Dubansky Dep., Def. Ex. 4, pp. 28-29)
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
                                        
 
              Iowa Code section 85.23 provides:
 
         
 
                 Unless the employer or the employer's representative 
 
              shall have actual knowledge of the occurrence of an injury 
 
              received within ninety days from the date of the occurrence 
 
              of the injury, or unless the employee or someone on the 
 
              employee's behalf or a dependent or someone on the 
 
              dependent's behalf shall give notice thereof to the employer 
 
              within ninety days from the date of the occurrence of the 
 
              injury, no compensation shall be allowed.
 
                 
 
              Claimant has the burden of proving by a preponderance of the 
 
         evidence that he received injuries on August 19, 1986 and 
 
         September 30, 1986 which arose out of and in the course of his 
 
         employment.  McDowell v. Town of Clarksville, 241 N.W.2d 904 
 
         (Iowa 1976); Musselman v. Central Telephone Co., 261 Iowa 352, 
 
         154 N.W.2d 128 (1967).
 
              
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injuries of August 19, 1986 and September 
 
         30, 1986 are causally related to the disability on which he now 
 
         bases his claim.  Bodish v. Fischer, Inc., 257 Iowa 516, 133 
 
         N.W.2d 867 (1965).  Lindahl v. L.O. Boggs, 236 Iowa 296, 18 
 
         N.W.2d 607 (1945).  A possibility is insufficient; a probability 
 
         is necessary.  Burt v. John Deere Waterloo Tractor Works, 247 
 
         Iowa 691, 73 N.W.2d 732 (1955).  The question of causal 
 
         connection is essentially within the domain of expert testimony.  
 
         Bradshaw v. Iowa Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167 
 
         (1960).
 
              
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              However, expert medical evidence must be considered with all 
 
         other evidence introduced bearing on the causal connection.  
 
         Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion of experts need 
 
         not be couched in definite, positive or unequivocal language.  
 
         Sondag v. Ferris Hardware 220 N.W.2d 903 (Iowa 1974).  However, 
 
         the expert opinion may be accepted or rejected, in whole or in 
 
         part, by the trier of fact.  Id. at 907.  Further, the weight to 
 
         be given to such an opinion is for the finder of fact, and that 
 
         may be affected by the completeness of the premise given the 
 
         expert and other surrounding circumstances.  Bodish, 257 Iowa 
 
         516, 133 N.W.2d 867.  See also Musselman, 261 Iowa 352, 154 
 
         N.W.2d 128.
 
              
 
              While a claimant is not entitled to compensation for the 
 
         results of a preexisting injury or disease, the mere existence at 
 
         the time of a subsequent injury is not a defense.  Rose v. John 
 
         Deere Ottumwa Works, 247 Iowa 900, 908, 76 N.W.2nd 756, (1956).  
 
         If the claimant had a preexisting condition or disability that is 
 
         aggravated, accelerated, worsened or lighted up so that it 
 
         results in disability, claimant is entitled to recover.  Nicks v. 
 
         Davenport Produce Co., 254 Iowa 130, 115 N.W.2d 812, (1962).
 
              
 
              When an aggravation occurs in the performance of an 
 
         employer's work and a causal connection is established, claimant 
 
         may recover to the extent of the impairment.  Ziegler v. United 
 
         States Gypsum Co., 252 Iowa 613, 620, 106 N.W.2d 591, (1960).
 
              
 
              The Iowa Supreme Court cites, apparently with approval, the 
 
         C.J.S. statement that the aggravation should be material if it is 
 
         to be compensable.  Yeager v. Firestone Tire & Rubber Co., 253 
 
         Iowa 369, 112 N.W.2d 299 (1961); 100 C.J.S. Workmen's 
 
         Compensation section 555(17)a.
 
              
 
              Our supreme court has stated many times that a claimant may 
 
         recover for a work connected aggravation of a preexisting 
 
         condition.  Almquist v. Shenandoah Nurseries, 218 Iowa 724, 254 
 
         N.W. 35 (1934).  See also Auxier v. Woodward State Hospital 
 
         Sch., 266 N.W.2d 139 (Iowa 1978); Gosek v. Garmer and Stiles 
 
         Co., 158 N.W.2d 731 (Iowa 1968); Barz v. Oler, 257 Iowa 508, 133 
 
         N.W.2d 704 (1965); Olson v. Goodyear Service Stores, 255 Iowa 
 
         1112, 125 N.W.2d 251 (1963); Yeager, 253 Iowa 369, 112 N.W.2d 
 
         299; Ziegler v. United States Gypsum Co., 252 Iowa 613, 106 
 
         N.W.2d 591 (1960).
 
              
 
              An employer takes an employee subject to any active or 
 
         dormant health impairments, and a work connected injury which 
 
         more than slightly aggravates the condition is considered to be a 
 
         personal injury.  Ziegler, 252 Iowa 613, 620, 106 N.W.2d 591, and 
 
         cases cited.
 
              
 
              As a claimant has an impairment to the body as a whole, an 
 
         industrial disability has been sustained.  Industrial disability 
 
         was defined in Diederich v. Tri-City Railway Co., 219 Iowa 587, 
 
         593, 258 N.W. 899, 902 (1935) as follows:  "It is therefore plain 
 
         that the legislature intended the term 'disability' to mean 
 
         'industrial disability' or loss of earning capacity and not a 
 
         mere 'functional disability' to be computed in the terms of 
 
         percentages of the total physical and mental ability of a normal 
 
         man."
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              
 
              It is not necessary that claimant prove his disability 
 
         results from a sudden unexpected traumatic event.  It is 
 
         sufficient to show that a disability developed gradually or 
 
         progressively from work activity over a period of time.  McKeever 
 
         Custom Cabinets v. Smith, 379 N.W.2d 368 (Iowa 1985).  The 
 
         McKeever court also held that the date of injury in a gradual 
 
         injury case is the time when pain prevents the employee from 
 
         continuing to work.  In McKeever the injury date coincides with 
 
         the time claimant was finally compelled to give up his job.  This 
 
         date was then utilized in determining rate and the timeliness of 
 
         the claimant's claim under Iowa Code section 85.26 and notice 
 
         under Iowa Code section 85.23.
 
              
 
              Claimant is a 34 year old high school graduate.  He worked 
 
         for defendant approximately 13 years until defendant closed its 
 
         plant in February 1989.
 
              
 
              Claimant was involved in a serious automobile accident in 
 
         1972 which did not affect claimant's back.  The accident resulted 
 
         in claimant's left leg being one-half inch shorter than his right 
 
         leg. Dr. Dubansky said a one-half inch or so difference is 
 
         acceptable and probably may not give difficulty.  Claimant passed 
 
         a pre-employment physical in 1976.  Defendant hired claimant 
 
         thereafter. Claimant has performed the same type of work on the 
 
         hog cheek meat line for approximately twelve years.  The evidence 
 
         shows claimant has had no specific traumatic injury since 1976 to 
 
         the present except in December 1985 when he slipped in 
 
         defendant's parking lot. It appears claimant sustained a bruised 
 
         thigh and missed no work.
 
              
 
              Claimant alleges two repetitive injuries on August 19, 1986 
 
         and September 30, 1986 which involved basically the same area of 
 
         claimant's body.  The greater weight of evidence shows that if 
 
         claimant incurred a repetitive injury, there is only one.  It 
 
         appears claimant filed two petitions to cover himself from a 
 
         technicality.  Claimant filed pro se initially alleging a 
 
         September 30, 1986 injury.  Claimant's attorney later filed a 
 
         petition on behalf of claimant alleging an August 19, 1986 
 
         injury.
 
              
 
              Under the McKeever case, the court held that the date of 
 
         injury in a gradual injury case is the time when pain prevents 
 
         the employee from continuing to work.  The parties stipulated 
 
         claimant was off work from September 30, 1986 up to and not 
 
         including November 17, 1986.  Claimant saw Dr. Klise on September 
 
         24, 1986. Dr. Klise referred claimant to Dr. Dubansky on October 
 
         14, 1986. Dr. Klise indicated claimant did not think on September 
 
         24, 1986 that his condition was work related.  Obviously, 
 
         claimant knew he had a medical problem.  That is why he went to a 
 
         doctor.  Claimant is not expected to know the particulars of a 
 
         law as to what a cumulative injury is.  Claimant did not receive 
 
         a specific trauma and therefore obviously could not pinpoint any 
 
         one particular event.  The employer obviously did not want to 
 
         acknowledge a work-related incident.  Claimant notified the 
 
         company nurse in August 1986 of his pain.  Since he could not 
 
         determine an exact injury date, defendant determined for the 
 
         claimant that he did not have a workers' compensation injury.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              
 
              The undersigned determines that claimant's repetitive trauma 
 
         over the years began surfacing through increased pain in August 
 
         1986.  On September 30, 1986, claimant's pain became so severe he 
 
         was not able to work.  The undersigned finds that defendant had 
 
         actual notice of claimant's September 30, 1986 alleged injury. 
 
         Claimant had talked to the company nurse on September 24, 1986 
 
         about his problems and the nurse said it was not work related.  
 
         The company doctor also knew about claimant's condition.
 
              
 
              The undersigned finds that claimant did not incur a 
 
         cumulative injury on August 19, 1986.  Any cumulative injury 
 
         claimant received occurred on September 30, 1986.  The 
 
         undersigned's finding of no injury on August 19, 1986 makes moot 
 
         any further issue involving that date.  Hereafter, in this 
 
         analysis, the undersigned will be discussing the remaining issues 
 
         as to the alleged September 30, 1986 cumulative injury.
 
              
 
              Claimant performed his job for many years without physical 
 
         interruption until his present symptoms began surfacing in August 
 
         1986 and became severe in September 1986.  A video tape was shown 
 
         by defendant attempting to depict the nature of claimant's job.  
 
         On the surface, it did not appear to be heavy duty work, but it 
 
         was obviously repetitious for several hours each day.  Claimant 
 
         contends that it did not accurately depict claimant's entire 
 
         daily duties, particularly the lifting required.  Defendant 
 
         devoted 99.9 percent of the video in the actual cutting of the 
 
         cheek meat and the sliding or pushing or throwing the cut meat 
 
         into a plastic barrel.  Only a brief diversion shows the large 
 
         plastic barrel into which the meat was placed.  It is obvious 
 
         some person ultimately must lift and move this barrel of meat.  
 
         It would have helped if defendant had presented the whole picture 
 
         on tape.  Claimant said he had to move this barrel three times a 
 
         day.  Claimant said the barrel weighed up to 250 pounds when 
 
         full.  The undersigned believes the claimant.
 
              
 
              Claimant has a herniated disc.  This condition appears to 
 
         have been in part due to claimant's preexisting degenerative disc 
 
         condition.  Over time, a person's body naturally degenerates.  
 
         The older one gets, the more evidence of this degenerative 
 
         process. Obviously, in claimant it began early.  This process can 
 
         be aggravated and accelerated by repetitive traumas.  Claimant's 
 
         occupation is one in which cumulative traumas are prone to occur. 
 
         Some people are more susceptible than others.  Defendant takes an 
 
         employee as they are.  Claimant passed his company physical in 
 
         1976.
 
              
 
              Dr. Dubansky opined that claimant probably has a herniated 
 
         disc and a 5 percent or less impairment to his body as a whole.  
 
         He could not causally connect claimant's impairment to his injury 
 
         of September 30, 1986.  Dr. Dubansky saw the video that has been 
 
         marked defendant's exhibit 2.  He saw no lifting and concluded 
 
         claimant does no lifting.  The undersigned believes this video 
 
         distorted the true picture of claimant's work activity.  Dr. 
 
         Dubansky also stated that "[a]ny time I say that somebody has a 
 
         herniated disc, I don't think it's due as a result of their 
 
         occupation."  (Def. Ex. 4, p. 42)  The undersigned does not 
 
         accept that statement as accurate.  It is obvious that Dr. 
 
         Dubansky is not familiar with the cumulative injury under 
 
         workers' compensation law.  Dr. Dubansky did say "that people 
 
         that do this type of work; twisting, standing and lifting may be 
 
         ore prone to develop these problems."  (Def. Ex. 3, p. 12)
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              
 
              Dr. Bashara opined a 10 percent permanent partial impairment 
 
         to claimant's body as a whole related to claimant's disc injury 
 
         with some minor persistent restriction of motion and absent left 
 
         ankle jerks.  He causally connected claimant's herniated lumbar 
 
         disc injury in the fall of 1986 to claimant's work at Oscar Mayer 
 
         secondary to repetitive bending, twisting and lifting.  It 
 
         appears claimant did not give Dr. Bashara the information 
 
         concerning his 1972 automobile accident, but the undersigned 
 
         finds this did not sufficiently flaw the doctor's opinion since 
 
         the 1972 injury did not involve an injury to claimant's back or 
 
         any specific disc. Claimant had a degenerative disc condition 
 
         which was materially and substantially aggravated, accelerated or 
 
         worsened by his September 30, 1986 cumulative injury, resulting 
 
         in a herniated disc at L5-S1.
 
              
 
              The undersigned finds that claimant's cumulative injury on 
 
         September 30, 1986 arose out of and in the course of claimant's 
 
         employment and that claimant's current disability is causally 
 
         connected to his cumulative low back injury on September 30, 
 
         1986. The undersigned finds claimant to have an 8 percent 
 
         permanent partial impairment to his body as a whole.  Claimant is 
 
         entitled to healing period benefits during the period in which 
 
         the parties stipulated that claimant was off work, namely 
 
         September 30, 1986 up to and not including November 17, 1986.  
 
         Claimant went back to work on November 17, 1986 at the same wages 
 
         and job he was performing on September 30, 1986.  Claimant's job 
 
         was terminated in February 1989 when defendant voluntarily closed 
 
         its plant.  Claimant is being retrained under a program set up to 
 
         find jobs for those who lost their jobs at this particular plant.  
 
         Claimant has enrolled in a 21 month electronics course.  
 
         Claimant's opportunity to return to work in a packing company has 
 
         been affected by his low back injury on September 30, 1986.  
 
         There has been no showing of the extent of claimant's loss of 
 
         income which is only one of the several factors to be considered 
 
         in determining claimant's industrial disability. Taking into 
 
         consideration claimant's age and all those other factors in 
 
         determining claimant's industrial disability, the undersigned 
 
         finds claimant has a 15 percent industrial disability.
 
              
 
              Defendant denied liability.  Claimant incurred certain 
 
         medical bills for his treatment and evaluation.  Defendant shall 
 
         pay all of those bills, including the $375 bill of Dr. Bashara 
 
         who evaluated claimant pursuant to an 85.39 application.  
 
         Claimant's 85.39 application was ordered in the assignment for 
 
         this meeting.
 
              
 
                                 FINDINGS OF FACT
 
                                        
 
              1.  Claimant failed to prove he received a cumulative injury 
 
         on August 19, 1986.
 
              
 
              2.  Claimant received a work-related cumulative injury to 
 
         his low back on September 30, 1986.
 
              
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              3.  Claimant incurred an L5-S1 herniated disc as a result of 
 
         his cumulative injury on September 30, 1986.
 
              
 
              4.  Claimant's current disability is the result of his 
 
         cumulative injury on September 30, 1986.
 
              
 
              5.  Claimant incurred a healing period beginning September 
 
         30, 1986 up to and including November 16, 1986, totaling 6.857 
 
         weeks.
 
              
 
              6.  Claimant has an 8 percent permanent partial impairment 
 
         to his body as a whole as a result of his September 30, 1986 
 
         cumulative injury.
 
              
 
              7.  Claimant has a preexisting degenerative disc condition 
 
         at L5-S1 which was materially and substantially aggravated, 
 
         accelerated and worsened as a result of his September 30, 1986 
 
         cumulative injury.
 
              
 
              8.  Claimant has a 15 percent reduction in earning capacity.
 
              
 
              9.  Claimant is entitled to have his medical bills incurred 
 
         as a result of his September 30, 1986 cumulative injury paid by 
 
         defendant.
 
              
 
                                   CONCLUSIONS
 
                                        
 
              Claimant's injury on August 19, 1986 did not arise out of 
 
         and in the course of his employment.
 
              
 
              Claimant's cumulative low back injury on September 30, 1986 
 
         arose out of and in the course of his employment.
 
              
 
              Claimant's disability is causally connected to his 
 
         cumulative work-related low back injury on September 30, 1986.
 
              
 
              Claimant is entitled to a healing period beginning September 
 
         30, 1986 and up to and including November 16, 1986, totaling 
 
         6.857 weeks.
 
              
 
              Claimant has a preexisting degenerative disc condition at 
 
         L5-S1 which materially and substantially aggravated, accelerated 
 
         and worsened as a result of his September 30, 1986 cumulative 
 
         injury.
 
              
 
              Claimant has a 15 percent industrial disability.
 
              
 
              Claimant shall pay claimant's medical bills incurred as a 
 
         result of claimant's September 30, 1986 cumulative injury.
 
              
 
                                      ORDER
 
                                        
 
              THEREFORE, it is ordered:
 
              
 
              That claimant is entitled to seventy-five (75) weeks of 
 
         permanent partial disability benefits at the weekly rate of two 
 
         hundred twenty-five and 75/100 dollars ($225.75) beginning 
 
         November 17, 1986.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              
 
              That defendant shall pay healing period benefits beginning 
 
         September 30, 1986 up to and including November 16, 1986, 
 
         totaling six point eight five seven (6.857) weeks at the rate of 
 
         two hundred twenty-five and 75/100 dollars ($225.75) per week.
 
              
 
              That defendant shall receive credit for the eight hundred 
 
         eighty-two dollars ($882.00) sick pay that the parties stipulated 
 
         claimant received.
 
              
 
              That defendant shall pay accrued weekly benefits in a lump 
 
         sum and shall receive credit against the award for weekly 
 
         benefits previously paid, if any.
 
              
 
              That defendant shall pay the medical bills incurred by 
 
         claimant as a result of his September 30, 1986 cumulative injury, 
 
         namely:
 
              
 
                 Dallas County Hospital                     $ 61.03
 
                 Douglas Sande, D.C.                         176.00
 
                 Orthopaedic Associates                      120.00
 
                 American Prosthetics                        128.00
 
                 Heartland Family Health Association          60.00
 
                 
 
              If claimant paid any of these directly, defendant shall 
 
         reimburse claimant for same.  Any amounts not already paid by 
 
         claimant shall be paid directly to the particular provider of the 
 
         services referred to above.
 
              
 
              Defendant shall pay interest on benefits awarded herein as 
 
         set forth in Iowa Code section 85.30.
 
              
 
              Defendant shall pay the costs of this action pursuant to 
 
         Division of Industrial Services Rule 343-4.33.
 
              
 
              Defendant shall file an activity report upon payment of this 
 
         award as requested by this agency pursuant to Division of 
 
         Industrial Services Rule 343-3.1.
 
              
 
              Signed and filed this 12th day of September, 1989.
 
              
 
              
 
              
 
              
 
              
 
                                            BERNARD J. O'MALLEY
 
                                            DEPUTY INDUSTRIAL COMMISSIONER
 
              
 
         Copies To:
 
         
 
         Mr. Wayne H. McKinney, Jr.
 
         Mr. Robert E. McKinney
 
         Attorneys at Law
 
         480 6th St.
 
         P.O. Box 209
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         Waukee, IA  50263
 
              
 
         Mr. Harry W. Dahl
 
         Attorney at Law
 
         974 73rd St.
 
         Suite 16
 
         Des Moines, IA  50312
 
         
 
              
 
              
 
              
 
         
 
              
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
                                                                                                                    
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
                                                                                       
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
                                            
 
 
 
 
 
 
 
 
 
 
 
                                            5-1100; 5-1108.50; 5-1400
 
                                            5-1803; 5-2206
 
                                            Filed September 12, 1989
 
                                            Bernard J. O'Malley
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         DENNIS HILL,
 
         
 
              Claimant,
 
                                                    File Nos. 881074
 
         vs.                                                  842646
 
         
 
         OSCAR MAYER FOODS, CORP.,               A R B I T R A T I O N
 
         
 
              Employer,                             D E C I S I O N
 
              Self-Insured,
 
              Defendant.
 
         
 
         
 
         5-1400
 
         
 
              Claimant failed to prove he received a cumulative injury on 
 
         August 19, 1986.
 
         
 
         5-1108.50; 5-1100
 
         
 
              Claimant proved he received a work-related cumulative injury 
 
         on September 30, 1986 resulting in a L5-S1 herniated disc.
 
         
 
         5-2206
 
         
 
              Claimant had a preexisting degenerative disc condition at 
 
         L5-S1 which was materially and substantially aggravated, 
 
         accelerated and worsened by his September 30, 1986 injury.
 
         
 
         5-1803
 
         
 
              Claimant incurred a 15 percent industrial disability.
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
                                                                                                                    
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
                                                                                       
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         ROBERT K. HOWE,
 
         
 
              Claimant,                               File No. 881075
 
         
 
         vs.                                       A R B I T R A T I O N
 
         
 
         DES MOINES PUBLIC SCHOOLS,                   D E C I S I O N
 
         
 
              Employer
 
                                                         F I L E D
 
         and
 
                                                        AUG 8 1989
 
         EMPLOYERS MUTUAL
 
                                               IOWA INDUSTRIAL 
 
         COMMISSIONER
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
                                   INTRODUCTION
 
                                        
 
              This is a proceeding in arbitration brought by claimant, 
 
         Robert K. Howe, against Des Moines Public Schools, employer, and 
 
         Employers Mutual, insurance carrier, defendants, to recover 
 
         benefits under the Iowa Workers' Compensation Act for an alleged 
 
         injury on July 31, 1987.  This matter was scheduled to come on 
 
         for hearing at 1:00 p.m. on August 7, 1989, at the industrial 
 
         commissioner's office in Des Moines, Iowa.
 
              
 
              The undersigned was present.  Neither claimant nor 
 
         defendants appeared.
 
              
 
                             SUMMARY OF THE EVIDENCE
 
                                        
 
              Claimant failed to present any evidence in support of the 
 
         allegations found in his original notice and petition.  At the 
 
         time of hearing, neither an agreement for settlement nor a 
 
         request for continuance was on file.
 
              
 
              Claimant has the burden of proving by a preponderance of the 
 
         evidence that he sustained an injury which arose out of and in 
 
         the course of his employment.  McDowell v. Town of Clarksville, 
 
         241 N.W.2d 904 (Iowa 1976).
 
              
 
                                 FINDINGS OF FACT
 
                                        
 
              WHEREFORE, it is found:
 
              
 
              1.  Neither claimant nor defendants appeared at the 
 
         scheduled time and place of hearing.
 
              
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              2.  The undersigned deputy industrial commissioner was 
 
         present and prepared to proceed to hearing.
 
              
 
              3.  At the time of the hearing, neither an agreement for 
 
         settlement nor a request for continuance was on file with the 
 
         industrial commissioner.
 
              
 
              4.  Claimant failed to present any evidence to support 
 
         allegations of a compensable work injury.
 
              
 
                                      ORDER
 
                                        
 
              THEREFORE, IT IS ORDERED:
 
              
 
              Claimant has failed to meet his burden of proof that he 
 
         sustained an injury which arose out of and in the course of his 
 
         employment.
 
              
 
              Claimant takes nothing from this hearing.
 
              
 
              Costs are taxed to the claimant pursuant to Division of 
 
         Industrial Services Rule 343-4.33.
 
              
 
              Signed and filed this 8th day of August, 1989.
 
              
 
              
 
              
 
              
 
              
 
                                            LARRY P. WALSHIRE
 
                                            DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Ms. Kathleen Nutt
 
         Mr. Ross A. Walters
 
         Attorneys at Law
 
         1800 Financial Center
 
         Des Moines, Iowa  50309
 
         
 
         Mr. R. Mark Cory
 
         Attorney at Law
 
         100 Court Ave.
 
         Des Moines, Iowa  50309
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
                                                                                                                    
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
                                                                                       
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
                                            
 
 
 
 
 
 
 
 
 
 
 
                                            51400; 51402
 
                                            Filed August 8, 1989
 
                                            LARRY P. WALSHIRE
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         ROBERT K. HOWE,
 
         
 
              Claimant,
 
                                                      File No. 881075
 
         vs.
 
                                                   A R B I T R A T I O N
 
         DES MOINES PUBLIC SCHOOLS,
 
                                                      D E C I S I O N
 
              Employer,
 
         
 
         and
 
         
 
         EMPLOYERS MUTUAL,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         51400; 51402
 
         
 
              Neither claimant nor counsel appeared at the hearing.  No 
 
         evidence in support of allegations of a compensable work injury 
 
         was presented and claimant therefore failed to meet his burden of 
 
         proof.
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
                                                                                                                    
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
                                                                                       
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            GREGORY T. SEYDEL,            :
 
                                          :
 
                 Claimant,                :         File No. 881083
 
                                          :
 
            vs.                           :      A R B I T R A T I O N
 
                                          :
 
            JERRIE ROGERS,                :         D E C I S I O N
 
                                          :
 
                 Employer,                :
 
                 Defendant.               :
 
            ____________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding in arbitration upon the August 22, 
 
            1988 petition of claimant Gregory T. Seydel against his 
 
            alleged employer, Jerrie Rogers, seeking benefits under the 
 
            Iowa Workers' Compensation Act as the result of an injury 
 
            sustained on August 26, 1986.  The cause came on for hearing 
 
            in Cedar Rapids, Iowa, on August 30, 1990.  The record 
 
            consists of claimant's exhibits 1 through 32, defendant's 
 
            exhibit A and the testimony of the following witnesses:  
 
            claimant, Margaret Seydel, Charles Clarahan, Dorothy Rogers 
 
            and Jerry Barnes.
 
            
 
                                      issues
 
            
 
                 Issues presented for resolution include:
 
            
 
                 1.  Whether an employment relationship existed between 
 
            claimant and defendant on August 26, 1986;
 
            
 
                 2.  Whether claimant sustained an injury arising out of 
 
            and in the course of that employment on August 26, 1986;
 
            
 
                 3.  Whether there exists a causal relationship between 
 
            the injury and any resulting temporary or permanent 
 
            disability;
 
            
 
                 4.  The nature and extent of claimant's disability, if 
 
            any; and,
 
            
 
                 5.  Whether claimant is entitled to medical benefits 
 
            under Iowa Code section 85.27.
 
            
 
                     
 
            
 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            findings of fact
 
            
 
                 The undersigned deputy industrial commissioner, having 
 
            heard the testimony and considered all of the evidence, 
 
            finds:
 
            
 
                 Gregory T. Seydel, born September 20, 1962, was 27 
 
            years of age on the date of hearing.  He is a 1981 high 
 
            school graduate, but has no further education.
 
            
 
                 Claimant worked as a dishwasher for a restaurant in 
 
            1981 and as a seasonal laborer during the summers of 1982 
 
            and 1983 for a gas and electric utility.  During the summers 
 
            of 1985 and 1986, he was employed by Jerrie Rogers 
 
            Construction as a carpenter.  He has since worked as a 
 
            laborer for a concrete company, a seasonal laborer for a 
 
            construction company, a laborer for another concrete 
 
            business, a production employee for a manufacturing concern, 
 
            and is now again employed as a carpenter.
 
            
 
                 Claimant commenced a typical employment relationship 
 
            with Jerrie Rogers Construction in May 1985.  Jerrie Rogers 
 
            for approximately 20 years has been a general contractor on 
 
            relatively small projects, including kitchen remodeling, 
 
            house framing and the like.  Claimant provided a few hand 
 
            tools, such as his hammer, but major tools were provided by 
 
            Rogers.  Claimant was supervised by Rogers or his foreman, 
 
            Jerry Barnes.  He was at all times paid an hourly wage.  
 
            Claimant never held himself out to the public as an 
 
            independent contractor, did not sub-bid his own work, did 
 
            not take other work, supervised no one, did not have the 
 
            right to hire his own employees, did not control the manner 
 
            in which the work was done or the quality thereof, did not 
 
            supply working materials and supplies, and in general 
 
            enjoyed a classic employment relationship as a carpenter.
 
            
 
                 Claimant was rehired for the 1986 summer season on 
 
            precisely the same conditions.  However, some 2-3 weeks 
 
            later, Jerry Barnes (apparently a close friend of Rogers and 
 
            a long-time employee) advised him that he was now to be 
 
            considered an "independent contractor" and that it would be 
 
            necessary to arrange his own disability insurance.  Payroll 
 
            taxes were no longer withheld.
 
            
 
                 Other than the fact that claimant was now to be called 
 
            an independent contractor rather than an employee, there was 
 
            no change whatsoever in the relationship between these 
 
            parties.
 
            
 
                 On August 26, 1986, a rainy, muddy morning, Jerrie 
 
            Rogers called claimant and advised him to proceed to a 
 
            residential construction site to perform certain specified 
 
            duties.  Claimant did so, but was the only worker at that 
 
            site.  Part of his duties included carrying siding down to 
 
            the basement on a 4- to 5-foot plywood sheet set on an angle 
 
            as a ramp.  While descending, claimant's foot slipped, 
 
            causing him to fall, striking his head and shoulders on the 
 
            landing above.  Claimant briefly lost consciousness and 
 
            awoke with sharp pain in the right shoulder and neck.  He 
 
            returned to work, but the condition worsened.  A few hours 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            later, he presented at Mercy Hospital in Iowa City and came 
 
            under the care of Richard F. Neiman, M.D.  Dr. Neiman is a 
 
            board-certified neurologist and testified by deposition on 
 
            August 1, 1990.  Claimant was admitted to Mercy Hospital on 
 
            August 26 and discharged on September 3.  Discharge 
 
            diagnosis was of cervical strain and possible cervical cord 
 
            contusion and right shoulder contusion with possible stretch 
 
            injury to the brachial plexus.  Michael Durkee, M.D., saw 
 
            claimant in consultation and concurred with this diagnosis.
 
            
 
                 Claimant returned to work on September 22, 1986.
 
            
 
                 Unfortunately, Mr. Seydel's complaints have continued.  
 
            He suffers residual soreness in the neck and right shoulder, 
 
            a loss of strength in the right arm, and frequent 
 
            occurrences of numbness in the right arm.  These episodes 
 
            range from once a week up to two or even three times per 
 
            day.  As a result, claimant does not enjoy some of his 
 
            previous recreational activities (for example, he complains 
 
            that he cannot draw his archery bow) and on one occasion, a 
 
            hammer slipped from his hand and broke a window when his arm 
 
            went numb.  However, his current wage as a carpenter is 
 
            slightly higher than his former wage with defendant.  He has 
 
            also shingled roofs on a self-employment basis.
 
            
 
                 There are few objective measures of impairment.  A 
 
            myelogram and magnetic resonance imaging were essentially 
 
            normal, as have been repeated x-rays.  However, an EMG 
 
            performed on January 4, 1989 was abnormal with mild to 
 
            moderate denervating changes involving the nerve roots at C7 
 
            and C8.  Dr. Neiman considered this consistent with a 
 
            contusion to the spinal cord.
 
            
 
                 Mark Ross, M.D., of the University of Iowa Hospitals 
 
            and Clinics (Department of Neurology) found EMG studies 
 
            normal on August 16, 1990 and concluded that there was no 
 
            objective evidence of neurologic dysfunction.  Dr. Ross 
 
            found no explanation for complaints of episodic right arm 
 
            weakness and numbness.  However, Dr. Neiman is the treating 
 
            physician and has been shown to be board certified; his 
 
            opinion is found more persuasive.
 
            
 
                 Dr. Neiman believes that claimant has sustained 
 
            approximately a 20 percent loss of strength to the right 
 
            upper extremity.  He attributes this to the subject work 
 
            injury.  His current diagnosis is of central cervical cord 
 
            contusion with resultant weakness involving the C7 and C8 
 
            nerve roots, causally related to the work injury.  He 
 
            believed at the time of his deposition that claimant would 
 
            suffer his current level of impairment on a permanent basis 
 
            and that his loss of function to the body as a whole is 
 
            between 20-25 percent.  Dr. Neiman used both the American 
 
            Medical Association Guides to the Evaluation of Permanent 
 
            Impairment and the Manual for Orthopaedic Surgeons in 
 
            evaluating functional impairment.  As to restrictions, Dr. 
 
            Neiman testified:
 
            
 
                 Q.  Do you have an opinion to a reasonable degree 
 
                 of medical certainty as to what limitations Greg 
 
                 Seydel has because of the impairment, the 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
                 permanent impairment, caused by the fall of August 
 
                 26, 1986?
 
            
 
                 A.  He's not as strong as far as the right upper 
 
                 extremity.  He mentions if he uses the hand 
 
                 repetitively, he gets some numbness involving the 
 
                 right hand.  I would think it would be very 
 
                 difficult for him to be in work which he is 
 
                 required to work above his neck level.  If he 
 
                 hyperextends the neck, if he has to work in things 
 
                 up above his neck level, if he has to hyperextend 
 
                 the neck, raise the arm upwards, he has 
 
                 difficulties using the arm.
 
            
 
                 He mentioned the fact that the hammer will fly out 
 
                 of his hand in uncontrolled fashion.  So I think 
 
                 he is restricted to some degree as far as the 
 
                 previous construction work that he was doing.  I 
 
                 certainly think he can certainly continue to do 
 
                 his work as a supervisor and do some moderately 
 
                 heavy work.  At the time I think if he probably 
 
                 exceeds what he should do, he'll probably pay for 
 
                 it with some increasing discomfort.
 
            
 
            (Dr. Neiman deposition, page 35, line 24 through page 36, 
 
            line 23)
 
            
 
                 Claimant appeared to be of at least average 
 
            intelligence, and certainly seems well suited to potential 
 
            retraining.
 
            
 
                    
 
            
 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            conclusions of law
 
            
 
                 It is first necessary to consider whether claimant has 
 
            established an employment relationship with Jerrie Rogers.  
 
            This is his burden of proof.  Nelson v. Cities Serv. Oil 
 
            Co., 259 Iowa 1209, 146 N.W.2d 261 (1967).  Five factors 
 
            should be considered in determining whether there is an 
 
            employment relationship in existence:
 
            
 
                 1.  The right of selection or to employ at will;
 
            
 
                 2.  Responsibility for the payment of wages by the 
 
                 employer;
 
            
 
                 3.  The right to discharge or terminate the 
 
                 relationship;
 
            
 
                 4.  The right to control the work; and,
 
            
 
                 5.  Is the party sought to be held as the employer 
 
                 the responsible authority in charge of the work or 
 
                 for whose benefit the work is performed?
 
            
 
            Hjerleid v. State, 229 Iowa 818, 295 N.W. 139 (1940); Funk 
 
            v. Beacons Van Lines Co., I Iowa Industrial Commissioner 
 
            Report 82 (App. Decn. 1980).
 
            
 
                 The overriding issue is the intention of the parties.  
 
            Caterpillar Tractor Co. v. Shook, 313 N.W.2d 503 (Iowa 
 
            1981); Augustine v. Bullocks, Inc., I-3 Iowa Industrial 
 
            Commissioner Decisions 502 (1985).
 
            
 
                 In Mallinger v. Webster City Oil Co., 211 Iowa 847, 234 
 
            N.W. 254 (1929), the court set forth an eight-part test to 
 
            determine whether an independent contractor relationship 
 
            existed:
 
            
 
                 An independent contractor, under the quite 
 
                 universal rule, may be defined as one who carries 
 
                 on an independent business, and contracts to do a 
 
                 piece of work according to his own methods, 
 
                 subject to the employer's control only as to 
 
                 results.  The commonly recognized tests of such a 
 
                 relationship are, although not necessarily 
 
                 concurrent, or each in itself controlling:  (1) 
 
                 the existence of a contract for the performance by 
 
                 a person of a certain piece or kind of work at a 
 
                 fixed price; (2) independent nature of his 
 
                 business or of his distinct calling; (3) his 
 
                 employment of assistants, with the right to 
 
                 supervise their activities; (4) his obligation to 
 
                 furnish necessary tools, supplies, and materials; 
 
                 (5) his right to control the progress of the work, 
 
                 except as to final results; (6) the time for which 
 
                 the workman is employed; (7) the method of 
 
                 payment, whether by time or by job; (8) whether 
 
                 the work is part of the regular business of the 
 
                 employer.  If the workman is using the tools or 
 
                 equipment of the employer, it is understood and 
 
                 generally held that the one using them, especially 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
                 if they are of substantial value, is a servant.
 
            
 
            Id. at 851.
 
            
 
                 Although no one factor is controlling in the test of 
 
            whether the relationship is that of employer-employee or 
 
            that of an independent contractor, the first inquiry is to 
 
            which party has the right to control the physical conduct of 
 
            the service being performed.  D & C Express, Inc. v. Sperry, 
 
            450 N.W.2d 842 (Iowa 1990).  Other factors may include 
 
            responsibility for payment of the wages, intention of the 
 
            parties and such things as withholding of federal, income 
 
            and Social Security taxes.
 
            
 
                 A review of the Mallinger and Nelson standards 
 
            convincingly demonstrates that an employment relationship 
 
            existed between claimant and Jerrie Rogers on August 26, 
 
            1986.  There are, of course, significant financial 
 
            advantages to a putative employer if the relationship 
 
            actually be that of independent contractor and principal.  
 
            In fact, Rogers (in his deposition) and Dorothy Rogers 
 
            forthrightly conceded that tax and insurance advantages were 
 
            the motivating factor in changing the name of the 
 
            relationship between the business and claimant.  However, if 
 
            an employment relationship could be magically transformed 
 
            into an independent contractor/principal relationship merely 
 
            by calling it that, the Iowa work force would be peopled 
 
            primarily by independent contractors with perhaps only a 
 
            smattering of admitted employees here and there.  The 
 
            assertion that claimant was an independent contractor is 
 
            ludicrous; the purported change to an independent contractor 
 
            arrangement in 1986 was purely a sham.  Claimant has 
 
            overwhelmingly met his burden of proof in establishing the 
 
            existence of an employment relationship.
 
            
 
                 Defendant concedes that claimant suffered an incident 
 
            such as he claims in a fall on August 26, 1986.  However, 
 
            causal connection to temporary or permanent disability is 
 
            disputed.
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury of August 26, 
 
            1986 is causally related to the disability on which he now 
 
            bases his claim.  Bodish v. Fischer, Inc., 257 Iowa 516, 133 
 
            N.W.2d 867 (1965).  Lindahl v. L. O. Boggs, 236 Iowa 296, 18 
 
            N.W.2d 607 (1945).  A possibility is insufficient; a 
 
            probability is necessary.  Burt v. John Deere Waterloo 
 
            Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955).  The 
 
            question of causal connection is essentially within the 
 
            domain of expert testimony.  Bradshaw v. Iowa Methodist 
 
            Hosp., 251 Iowa 375, 101 N.W.2d 167 (1960). 
 
            
 
                 However, expert medical evidence must be considered 
 
            with all other evidence introduced bearing on the causal 
 
            connection.  Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion 
 
            of experts need not be couched in definite, positive or 
 
            unequivocal language.  Sondag v. Ferris Hardware, 220 N.W.2d 
 
            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 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            an opinion is for the finder of fact, and that may be 
 
            affected by the completeness of the premise given the expert 
 
            and other surrounding circumstances.  Bodish, 257 Iowa 516, 
 
            133 N.W.2d 867.  See also Musselman v. Cent. Tel. Co., 261 
 
            Iowa 352, 154 N.W.2d 128 (1967).
 
            
 
                 The chronology of events and Dr. Neiman's testimony 
 
            establish a causal nexus between the injury and resultant 
 
            disability.
 
            
 
                 Under Iowa Code section 85.34(1), healing period is 
 
            compensable beginning on the date of injury and until the 
 
            employee has returned to work, it is medically indicated 
 
            that significant improvement from the injury is not 
 
            anticipated, or until the employee is medically capable of 
 
            returning to substantially similar employment, whichever 
 
            first occurs.  Claimant returned to work on September 22 
 
            following his injury.  He is therefore entitled to healing 
 
            period benefits from August 26 through September 21, 1986, 
 
            totalling three weeks, six days.
 
            
 
                 The parties have stipulated that, if permanent 
 
            disability was caused by the subject injury, claimant has 
 
            sustained an industrial disability to the body as a whole.
 
            
 
                 Functional impairment is an element to be considered in 
 
            determining industrial disability which is the reduction of 
 
            earning capacity, but consideration must also be given to 
 
            the injured employee's age, education, qualifications, expe
 
            rience and inability to engage in employment for which he is 
 
            fitted.  Olson v. Goodyear Service Stores, 255 Iowa 1112, 
 
            125 N.W.2d 251 (1963).  Barton v. Nevada Poultry, 253 Iowa 
 
            285, 110 N.W.2d 660 (1961).
 
            
 
                 A finding of impairment to the body as a whole found by 
 
            a medical evaluator does not equate to industrial disabil
 
            ity.  This is so as impairment and disability are not syn
 
            onymous.  Degree of industrial disability can in fact be 
 
            much different than the degree of impairment because in the 
 
            first instance reference is to loss of earning capacity and 
 
            in the latter to anatomical or functional abnormality or 
 
            loss.  Although loss of function is to be considered and 
 
            disability can rarely be found without it, it is not so that 
 
            a degree of industrial disability is proportionally related 
 
            to a degree of impairment of bodily function.
 
            
 
                 Factors to be considered in determining industrial dis
 
            ability include the employee's medical condition prior to 
 
            the injury, immediately after the injury, and presently; the 
 
            situs of the injury, its severity and the length of healing 
 
            period; the work experience of the employee prior to the 
 
            injury, after the injury and potential for rehabilitation; 
 
            the employee's qualifications intellectually, emotionally 
 
            and physically; earnings prior and subsequent to the injury; 
 
            age; education; motivation; functional impairment as a 
 
            result of the injury; and inability because of the injury to 
 
            engage in employment for which the employee is fitted.  Loss 
 
            of earnings caused by a job transfer for reasons related to 
 
            the injury is also relevant.  These are matters which the 
 
            finder of fact considers collectively in arriving at the 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            determination of the degree of industrial disability.
 
            
 
                 There are no weighting guidelines that indicate how 
 
            each of the factors are to be considered.  There are no 
 
            guidelines which give, for example, age a weighted value of 
 
            ten percent of the total value, education a value of fifteen 
 
            percent of total, motivation - five percent; work experience 
 
            - thirty percent, etc.  Neither does a rating of functional 
 
            impairment directly correlate to a degree of industrial 
 
            disability to the body as a whole.  In other words, there 
 
            are no formulae which can be applied and then added up to 
 
            determine the degree of industrial disability.  It therefore 
 
            becomes necessary for the deputy or commissioner to draw 
 
            upon prior experience, general and specialized knowledge to 
 
            make the finding with regard to degree of industrial dis
 
            ability.  See Peterson v. Truck Haven Cafe, Inc., (Appeal 
 
            Decision, February 28, 1985); Christensen v. Hagen, Inc., 
 
            (Appeal Decision, March 26, 1985).
 
            
 
                 Claimant has some limitation of function, particularly 
 
            in that he has lost strength in his dominant right arm and 
 
            suffers periodic episodes of numbness.  Fortunately, these 
 
            episodes do not appear to date to have interfered 
 
            substantially with his earning capacity.  Witness that his 
 
            hourly wage is now higher (although inflationary pressures 
 
            during the interim no doubt account for much of the 
 
            increase).  Dr. Neiman finds that he has sustained between a 
 
            20-25 percent functional impairment of the body as a whole.  
 
            However, the medical restrictions imposed by Dr. Neiman are 
 
            somewhat imprecise.  It would be "difficult" for claimant to 
 
            work above neck level and claimant must be "restricted to 
 
            some degree" as far as his previous construction work.  Dr. 
 
            Neiman does not set forth what specific activities are so 
 
            restricted, except noting that claimant may have increased 
 
            discomfort if he exceeds his physiologic capacity.
 
            
 
                 Claimant continues to work as a carpenter, but it is 
 
            foreseeable that he may be less attractive as a prospective 
 
            employee to at least some potential employers by reason of 
 
            the work injury, particularly if he continues to let hammers 
 
            fly when his arm goes numb.  Working above neck level is 
 
            also to be expected of a carpenter.  Nonetheless, claimant 
 
            appears bright and is suitable for retraining should he 
 
            elect to leave his present occupation.  Considering then 
 
            these factors in specific and the record otherwise in 
 
            general, it is held that claimant has sustained an 
 
            industrial disability equivalent to 15 percent of the body 
 
            as a whole, or 75 weeks.
 
            
 
                 The parties have stipulated to a weekly rate of 
 
            $131.70.
 
            
 
                 Claimant set forth certain medical expenses totalling 
 
            $6,435.07 in an attachment to the prehearing report.  
 
            Defendant stipulates that the fees charged were fair and 
 
            reasonable and incurred for reasonable and necessary 
 
            treatment, but disputes causal connection to the work 
 
            injury.  Causal connection has been established pursuant to 
 
            the foregoing analysis.  Claimant shall be awarded those 
 
            expenses under Iowa Code section 85.27.
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            
 
                                      order
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 Defendant shall pay unto claimant three point eight 
 
            five seven (3.857) weeks of healing period benefits at the 
 
            stipulated rate of one hundred thirty-one and 70/100 dollars 
 
            ($131.70) per week commencing August 26, 1986 and totalling 
 
            five hundred seven and 97/100 dollars ($507.97).
 
            
 
                 Defendant shall pay unto claimant seventy-five (75) 
 
            weeks of permanent partial disability benefits at the 
 
            stipulated rate of one hundred thirty-one and 70/100 dollars 
 
            ($131.70) per week commencing September 22, 1986 and 
 
            totalling nine thousand eight hundred seventy-seven and 
 
            50/100 dollars ($9,877.50).
 
            
 
                 All accrued weekly benefits shall be paid in a lump sum 
 
            together with statutory interest thereon pursuant to Iowa 
 
            Code section 85.30.
 
            
 
                 Defendant shall pay medical expenses totalling six 
 
            thousand four hundred thirty-five and 07/100 dollars 
 
            ($6,435.07) pursuant to the attachment to the prehearing 
 
            report directly to those medical service providers, except 
 
            that claimant shall be reimbursed directly to the extent he 
 
            has actually paid those expenses out of pocket.
 
            
 
                 Defendant shall file a first report of injury within 
 
            thirty (30) days of the filing of this decision.
 
            
 
                 Defendant shall file claim activity reports as 
 
            requested by this agency pursuant to rule 343 IAC 3.1.
 
            
 
                 The costs of this action are assessed to defendant 
 
            pursuant to rule 343 IAC 4.33.
 
            
 
                 Signed and filed this ______ day of ____________, 1991.
 
            
 
                 
 
            
 
                 
 
                 
 
                                          ______________________________
 
                                          DAVID RASEY
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Paul J. McAndrew Jr.
 
            Attorney at Law
 
            122 South Linn Street
 
            Iowa City, Iowa  52240
 
            
 
            Mr. J. Patrick White
 
            Attorney at Law
 
            150 East Court Street
 
            Iowa City, Iowa  52240
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                           1402.10; 1504; 2002
 
                           Filed February 27, 1991
 
                           DAVID RASEY
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            GREGORY T. SEYDEL,            :
 
                                          :
 
                 Claimant,                :         File No. 881083
 
                                          :
 
            vs.                           :      A R B I T R A T I O N
 
                                          :
 
            JERRIE ROGERS,                :         D E C I S I O N
 
                                          :
 
                 Employer,                :
 
                 Defendant.               :
 
            ____________________________________________________________
 
            
 
            1402.10; 1504; 2002
 
            Claimant was seasonally employed as a carpenter.  He was 
 
            informed by defendant that from now on he would be an 
 
            independent contractor, but all other facets of a classic 
 
            employment relationship remained unchanged.  Claimant was 
 
            found to be an employee.
 
            
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            HARVEY REYNOLDS,              :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :         File No. 881142
 
            PRAIRIE FARMS DAIRY,          :
 
                                          :      A R B I T R A T I O N
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            NATIONAL UNION FIRE,          :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding in arbitration brought by Harvey 
 
            Reynolds against his employer, Prairie Farms Dairy, based 
 
            upon a stipulated injury of March 18, 1988.  Claimant seeks 
 
            compensation for healing period, permanent partial 
 
            disability and payment of medical expenses.  The primary 
 
            issues to be determined are the extent of claimant's 
 
            entitlement to healing period, temporary total and permanent 
 
            partial disability compensation; whether the medical 
 
            expenses the claimant seeks to recover were fair and 
 
            reasonable, incurred for reasonable treatment and whether 
 
            their payment is barred by lack of authorization.
 
            
 
                 The case was heard at Des Moines, Iowa, on August 23, 
 
            1991.  The evidence consists of testimony from Harvey 
 
            Reynolds and Arthur H. Wilson.  The record also contains 
 
            joint exhibits 1 through 19 and claimant's exhibit A.
 
            
 
                                 findings of fact
 
            
 
                 Having considered all the evidence received, together 
 
            with the appearance and demeanor of the witnesses, the 
 
            following findings of fact are made.
 
            
 
                 Harvey Reynolds is a 51-year-old man who lives at 
 
            Ankeny, Iowa.  He is a high school graduate, but was not a 
 
            particularly good student.  The bulk of his work life has 
 
            been spent in the occupation of truck driving.  He commenced 
 
            his employment with Prairie Farms Dairy in 1975 as a 
 
            transport driver.  He remained in that same work at the time 
 
            of hearing.
 
            
 
                 Harvey's prior medical history is remarkable for a 1971 
 
            accident in which he fractured his left hip.  Though he 
 
            testified at hearing that he had no residual problems from 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
            
 
            that accident, the medical records in evidence show some 
 
            muscle atrophy and neurological abnormalities in his left 
 
            leg.  In 1981, he fell from the back of a trailer, injured 
 
            his back and was off work for approximately one week 
 
            (exhibit 3, page 43).  In 1985, he was severely injured in a 
 
            boating accident, though it does not appear that the 
 
            injuries affected his lower back (exhibit 4, pages 45 and 
 
            45; exhibit 10, page 100).
 
            
 
                 On March 18, 1988, Harvey was unloading milk at the 
 
            Hy-Vee Store in Chariton, Iowa, when he felt something give 
 
            in his back.  He completed his route, but sought medical 
 
            treatment at the Kirksville, Missouri hospital while in the 
 
            course of making his deliveries.  Harvey returned to Des 
 
            Moines, saw his family physician Lawrence R. Gray, M.D., and 
 
            was taken off work.
 
            
 
                 Dr. Gray referred Harvey to neurosurgeon S. Randy 
 
            Winston, M.D., who felt that claimant had a mechanical back 
 
            problem with underlying spinal stenosis.  He recommended 
 
            that Harvey lose weight, obtain a lumbosacral support and 
 
            participate in an ongoing wellness program (exhibit 2, page 
 
            42; exhibit 9, page 91).
 
            
 
                 When Harvey did not improve, he was referred to 
 
            orthopaedic surgeon William R. Boulden, M.D., and advised 
 
            that Dr. Boulden was the only source of authorized medical 
 
            treatment (exhibit 18, page 255).  Dr. Boulden initially 
 
            provided conservative treatment and also an epidural 
 
            injection which considerably improved Harvey's leg pain and 
 
            somewhat improved his back pain (exhibit 10, page 94).  
 
            Harvey participated in therapy and, in October 1988, started 
 
            a work conditioning program.  The program was discontinued 
 
            due to his pain complaints (exhibit 10, page 96).  Harvey 
 
            was then placed in a water therapy program (exhibit 10, page 
 
            97).  By February 27, 1989, it was reported that Harvey had 
 
            plateaued in his work hardening effort, that he had reached 
 
            maximum medical improvement, and that his healing period had 
 
            ended.  On March 6, 1989, Dr. Boulden assigned a ten percent 
 
            permanent impairment rating due to degenerative changes.  He 
 
            restricted claimant against bending, twisting or lifting 
 
            with his back.  He advised that he avoid prolonged sitting 
 
            or standing in one position for a duration of more than 45 
 
            minutes (exhibit 10, pages 98 and 99).  On March 30, 1989, 
 
            Dr. Boulden reported that claimant did not put forth a good 
 
            effort in the work hardening program and also that the cause 
 
            of the degenerative condition is a gradual cumulative 
 
            effect, due in part to his job (exhibit 10, page 100).
 
            
 
                 While being treated by Dr. Boulden, Harvey chose to 
 
            seek other treatment at the Minneapolis Clinic of Neurology, 
 
            Ltd.  He was first seen there on November 17, 1988.  The 
 
            reports indicate that he had excellent treatment in the 
 
            past, but that it was discontinued too soon.  It was 
 
            recommended that he continue water exercise for three months 
 
            and continue with mobilization therapy and home traction.  
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            
 
            
 
            It was also recommended that he lose weight and exercise 
 
            (exhibit 12, pages 115 and 116).  Claimant's second visit to 
 
            the clinic was on January 23, 1989, at which point he 
 
            reported no change in his condition.  He was diagnosed as 
 
            having mechanical low back pain with a stable neurologic 
 
            examination (exhibit 12, page 124).
 
            
 
                 Claimant's physical performance for a functional 
 
            capacity evaluation conducted on January 23, 1989, was 
 
            characterized submaximal and further recommended that he 
 
            could be released to return to work with restrictions 
 
            (exhibit 14, pages 148 and 149).  The restrictions 
 
            recommended were to avoid deep bending, overhead work, 
 
            frequent bending and twisting.  He was authorized to perform 
 
            occasional weight lifting of up to 30 pounds.
 
            
 
                 On March 14, 1989, Harvey attended the Mayo Clinic for 
 
            an examination and evaluation.  The initial impression was 
 
            that he had right peroneal nerve irritation (exhibit 13, 
 
            pages 135 and 136).  In April 1989, the impression was 
 
            changed to chronic low back strain without evidence of 
 
            radiculopathy (exhibit 13, page 136).  In May, facet 
 
            injections were performed, but they did not provide any 
 
            benefit and indicated that Harvey's problem probably did not 
 
            have its basis in his facet joints (exhibit 12, pages 139 
 
            and 141).  On June 27, 1989, the notes indicate that 
 
            claimant had slowly resolving back pain across his low 
 
            lumbar area.  He was diagnosed as having chronic lumbar 
 
            strain without radiculopathy, chronic right calf pain and 
 
            musculoskeletal deconditioning (exhibit 13, page 143).  When 
 
            seen on December 12, 1989, a functional capacity evaluation 
 
            was performed which showed that he could perform light to 
 
            medium work.  It was recommended that he participate in six 
 
            more weeks of weight loss and exercise therapy and was then 
 
            released to return to full-duty work effective January 22, 
 
            1990.  It was reported that he had reached maximum medical 
 
            improvement and had a five percent permanent impairment of 
 
            the whole body (exhibit 13, page 146).
 
            
 
                 While Harvey was off work, he was provided services 
 
            from Rehabilitation Professionals, Inc., with rehabilitation 
 
            consultant Karen L. Stricklett being assigned to his case.  
 
            The general aptitude test battery showed claimant to be 
 
            average for spatial, clerical, motor coordination and manual 
 
            dexterity skills, but below average for general learning, 
 
            verbal aptitude, numerical aptitude, reading and spelling.  
 
            His test results were not above average in any category.  It 
 
            was recommended that he perform bench work or repair 
 
            activities (exhibit 15).  A labor market survey showed small 
 
            engine repair as a potential field of work.  The starting 
 
            wages were shown to range from $4.00 to $4.50 per hour.  
 
            Wages for an experienced person could range from $7.00 to 
 
            $9.00 per hour (exhibit 15, pages 165-167).  Harvey was not 
 
            interested in small engine repair and declined an 
 
            opportunity to commence work in that field.  It had been 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            
 
            
 
            arranged for him to start on November 6, 1989 (exhibit 15, 
 
            pages 168-174).  Claimant chose to attempt to return to 
 
            truck driving rather than move into the lower paying field 
 
            of small engine repair.
 
            
 
                 In a report dated March 16, 1990, Joshua D. Kimelman, 
 
            D.O., an orthopaedic surgeon, reported that he had examined 
 
            Harvey on June 20, 1989, found complete sacralization of the 
 
            L5-S1 joint, significant degenerative changes with stenosis 
 
            at the L3-4 level of his spine with possible disc 
 
            protrusion.  He assigned a ten percent permanent impairment 
 
            rating (exhibit 16).
 
            
 
                 In a report dated January 30, 1990, Dr. Boulden 
 
            reported that truck driving would definitely aggravate 
 
            claimant's underlying degenerative condition and symptoms.  
 
            He recommended that claimant not return to work as a truck 
 
            driver (exhibit 10, page 101).
 
            
 
                 There was some delay in accomplishing claimant's return 
 
            to work.  The actual return was on February 15, 1990, due to 
 
            obtaining a DOT physical examination from the company 
 
            physician.  Claimant now earns $11.06 per hour and has the 
 
            full range of Teamster Union contract fringe benefits.  His 
 
            rate of pay is the same as it would be if he had not been 
 
            injured.  Claimant reported that he still has pain while 
 
            working and is never free from pain.  He wears an elastic 
 
            belt at night and exercises regularly.  He described his 
 
            physical problems as being stable and reportedly uses better 
 
            body mechanics when lifting than he had practiced prior to 
 
            the injury.  He apparently suffered a minor back injury on 
 
            August 5, 1991, but has not missed any work as a result of 
 
            that incident and does not expect to.  He has undergone 
 
            surgery on his hands and elbows since returning to work.
 
            
 
                 This case presents a perplexing, convoluted factual 
 
            situation with regard to determining which physician's 
 
            assessment of the case is correct.  The assessment of the 
 
            physician from the Mayo Clinic is strongly corroborated by 
 
            the fact that the claimant has been able to resume his 
 
            former employment as a truck driver.  The assessment from 
 
            Dr. Boulden regarding the issue of maximum medical 
 
            improvement is corroborated by Dr. Kimelman and the 
 
            functional capacity evaluation performed January 23, 1989.
 
            
 
                 It is found that Harvey Reynolds does have a 
 
            degenerative condition and spinal stenosis in his spine 
 
            which was partly caused by his employment and that, on March 
 
            18, 1988, his work activities caused a flare-up of the 
 
            symptoms of that underlying condition.  Those symptoms were 
 
            sufficiently severe to temporarily disable Harvey from 
 
            performing the normal duties of his employment as a truck 
 
            driver.  The symptoms were slow to resolve and required 
 
            extensive ongoing therapy and exercises.  It is found that 
 
            the assessment of the case made by the physician from the 
 
            Mayo Clinic is correct.  The fact that Harvey was able to 
 
            resume his former occupation as a truck driver convinces the 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            
 
            
 
            undersigned that the treatment provided was reasonable and 
 
            effective.  It is found that the condition was one which 
 
            required an unusually long amount of time within which to 
 
            resolve.  The record does not disclose any permanent 
 
            activity restrictions having been imposed by the Mayo Clinic 
 
            physician.
 
            
 
                 The treatment provided by the Mayo Clinic was provided 
 
            at a time subsequent to the time when Dr. Boulden released 
 
            claimant and offered no further treatment.  As previously 
 
            indicated, that treatment is found to have been successful 
 
            in resolving the claimant's complaints and has reduced the 
 
            degree of his disability.  The treatment at the Minneapolis 
 
            Clinic of Neurology, Ltd., appears to duplicate that which 
 
            was being performed by Dr. Boulden.  It is not reasonable to 
 
            obtain the same treatment from two separate sources.
 
            
 
                 The charge of $105 from McFarland Clinic dated January 
 
            5, 1990, was not incurred in obtaining treatment of the 
 
            injury.  It was a charge for a DOT physical, a charge which 
 
            professional truck drivers are periodically subjected to 
 
            paying regardless of whether or not they have been injured.
 
            
 
                 The record does not establish, by a preponderance of 
 
            the evidence, that any permanent industrial disability has 
 
            resulted from the March 18, 1988 injury, even though there 
 
            is some permanent impairment.
 
            
 
                                conclusions of law
 
            
 
                 Since it has been found that the injury did not produce 
 
            any permanent disability, claimant is entitled to recover 
 
            temporary total disability pursuant to section 85.33 of The 
 
            Code.  That temporary disability entitlement commences March 
 
            18, 1988, and runs through January 22, 1990, a span of 96 
 
            weeks, 4 days.
 
            
 
                 The record in this case does not show Harvey Reynolds 
 
            to be disabled from working in his normal occupation of a 
 
            truck driver.  Though he has a five percent permanent 
 
            impairment, it appears as though that rating is due to the 
 
            degenerative condition rather than the injury itself.  He 
 
            has no work or activity restrictions and has not experienced 
 
            any reduction in his actual rate of earnings.  It is 
 
            concluded that he is not entitled to recover any 
 
            compensation for permanent partial disability.  Bearce v. 
 
            FMC Corp., 465 N.W.2d 531 (Iowa 1991).  While the claimant's 
 
            subjective complaints were sufficient to warrant an 
 
            extension of temporary total disability compensation to the 
 
            extent that they were corroborated by the physician from the 
 
            Mayo Clinic in providing continued treatment, his complaints 
 
            of continuing pain and discomfort are not sufficient, absent 
 
            medical corroboration in the nature of activity 
 
            restrictions, to establish the existence of permanent 
 
            disability.  The appearance and demeanor of the claimant is 
 
            a factor in reaching this determination.
 
            
 
                 While claimant's treatment at the Mayo Clinic was not 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            
 
            
 
            authorized, it was provided at a time when the authorized 
 
            physician was recommending no further treatment and the 
 
            treatment was successful in enabling the claimant to return 
 
            to work.  Under those circumstances, the claimant is 
 
            entitled to recover the expenses of that treatment.  
 
            Richards v. Dep't of Gen. Services, 1-3 State of Iowa 
 
            Industrial Commissioner Reports 684 (App. 1985); 2 Larson 
 
            Workmen's Compensation Law, section 61.12(a) and (e).
 
            
 
                 The Mayo Clinic is a well-known, well-regarded facility 
 
            with an excellent reputation.   Based upon agency expertise 
 
            and familiarity with the Mayo Clinic, the treatment which 
 
            was rendered there is found to be reasonable and its charges 
 
            are likewise determined to be reasonable.  There is an 
 
            inference that, whenever treatment is provided by a licensed 
 
            physician, the treatment is reasonable for the condition 
 
            being treated.  Simpson v. Burlington Basket Co., File No. 
 
            921025 (Arb. May 10, 1991); Brown v. Spurlin, File No. 
 
            916776 (Arb. April 1, 1991).  It is a manifestation of the 
 
            physician's professional opinion of what treatment is 
 
            appropriate.  Claimant is therefore entitled to recover his 
 
            expenses with the Mayo Clinic in the total amount of 
 
            $3,649.20.  He is also entitled to recover his travel 
 
            expense to the Mayo Clinic in the amount of $554.40.  He is 
 
            entitled to recover his motel expenses while at the Mayo 
 
            Clinic in the amount of $266.17 and meal expenses as 
 
            requested at the rate of $4.00 per meal for $96.00.  The 
 
            total recovery for medical and transportation expenses is 
 
            $4,565.77.  Claimant's claim for other expenses as shown in 
 
            exhibit A is denied.  The charges from the Minneapolis 
 
            Clinic of Neurology and Fitness Associates are unauthorized 
 
            and duplicate those being provided by the authorized 
 
            physician at that time.  The McFarland Clinic charge for a 
 
            DOT physical does not constitute treatment of the work 
 
            injury in this case.
 
            
 
                 The parties stipulated that 97 and 5/7 weeks of 
 
            compensation had been paid prior to hearing.  This results 
 
            in an overpayment of 1 and 1/7 weeks.  The overpayment 
 
            cannot be applied toward satisfying the medical expenses 
 
            awarded to the claimant in this decision.  Comingore v. 
 
            Shenandoah Artificial Ice, Power, Heat & Light Co., 208 Iowa 
 
            430, 226 N.W. 124 (1929); Beeler v. Union Elec. Co., III 
 
            Iowa Industrial Commissioner Report 22 (App. 1983).
 
            
 
                                      order
 
            
 
                 IT IS THEREFORE ORDERED that defendants pay Harvey 
 
            Reynolds ninety-six and four-sevenths (96 4/7) weeks of 
 
            compensation for temporary total disability payable at the 
 
            stipulated rate of four hundred five and 75/100 dollars 
 
            ($405.75) per week commencing March 18, 1988.  Defendants 
 
            are entitled to credit for the ninety-seven and 
 
            five-sevenths (97 5/7) weeks previously paid.  This results 
 
            in an overpayment and no additional weekly compensation is 
 
            due.
 
            
 
                 IT IS FURTHER ORDERED that defendants pay claimant 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            
 
            
 
            three thousand six hundred forty-nine and 20/100 dollars 
 
            ($3,649.20) for the expenses incurred at the Mayo Clinic and 
 
            nine hundred sixteen and 57/100 dollars ($916.57) for 
 
            transportation, motel and meal expenses incurred in 
 
            obtaining treatment at the Mayo Clinic.
 
            
 
                 IT IS FURTHER ORDERED that the costs of this action are 
 
            assessed against defendants pursuant to rule 343 IAC 4.33.
 
            
 
                 IT IS FURTHER ORDERED that defendants file claim 
 
            activity reports as requested by this agency pursuant to 
 
            rule 343 IAC 3.1.
 
            
 
                 Signed and filed this ______ day of ____________, 1991.
 
            
 
                 
 
            
 
                 
 
                 
 
                                          ______________________________
 
                                          MICHAEL G. TRIER
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Dennis L. Hanssen
 
            Attorney at Law
 
            Suite 111, Terrace Center
 
            2700 Grand Avenue
 
            Des Moines, Iowa  50312
 
            
 
            Ms. Dorothy L. Kelley
 
            Attorney at Law
 
            500 Liberty Building
 
            Des Moines, Iowa  50309
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
                           1801; 2501; 2503; 3700
 
                           Filed November 12, 1991
 
                           MICHAEL G. TRIER
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            HARVEY REYNOLDS,              :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :         File No. 881142
 
            PRAIRIE FARMS DAIRY,          :
 
                                          :      A R B I T R A T I O N
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            NATIONAL UNION FIRE,          :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
            1801; 2501; 2503; 3700
 
            
 
                 Claimant awarded approximately two years of temporary 
 
            total disability where he was released to return to work 
 
            without restrictions with only a five percent permanent 
 
            impairment rating and no reduction of actual earnings.  The 
 
            injury itself was a chronic strain which eventually resolved 
 
            after extended conservative treatment.
 
            
 
                 Defendants ordered to pay expenses incurred by 
 
            physician who was not authorized.  The authorized physician 
 
            had found maximum medical improvement to have ended, imposed 
 
            restrictions and released the claimant to return to work 
 
            other than his former occupation.  The additional 
 
            unauthorized treatment was provided at a time when the 
 
            authorized physician had nothing further to offer and was 
 
            successful in avoiding what might have otherwise been a 
 
            quite large disability award.
 
            
 
                 It was recognized that an inference exists that 
 
            treatment provided by a licensed physician is reasonable for 
 
            the condition being treated in the absence of any evidence 
 
            to the contrary.  The fact it was provided is a 
 
            manifestation of expert opinion that it is appropriate.
 
            
 
                 Expenses charged by a major medical facility, in this 
 
            case the Mayo Clinic, with a good reputation, when combined 
 
            with agency expertise consisting of having observed charges 
 
            made by other facilities when treating similar conditions, 
 
            was held to be sufficient to support a finding that the 
 
            charges made were reasonable in the absence of any evidence 
 
            to the contrary.
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
                 Overpaid temporary total disability was not allowed as 
 
            a credit against section 85.27 benefits.
 
            
 
                 Care provided at the same time as care was being 
 
            provided by the authorized physician and which duplicated 
 
            that provided by the authorized physician was found to be 
 
            unreasonable.
 
            
 
 
         
 
        
 
         
 
         
 
               
 
         
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         _________________________________________________________________
 
                     
 
         MARY RUCKER,     
 
                     
 
              Claimant,   
 
                     
 
         vs.         
 
                                                File No. 881149
 
         OVERDOORS OF IOWA, INC.,   
 
                                                  A P P E A L
 
              Employer,   
 
                                                D E C I S I O N
 
         and         
 
                     
 
         EMPLOYERS MUTUAL INS. CO.,      
 
                     
 
              Insurance Carrier,    
 
              Defendants.      
 
         _________________________________________________________________
 
         The record, including the transcript of the hearing before the 
 
         deputy and all exhibits admitted into the record, has been 
 
         reviewed de novo on appeal.  
 
         
 
         Although claimant's credibility was attacked by defendants, 
 
         claimant's version of his injury is accepted.  Claimant's injury 
 
         was not witnessed, but this alone of course does not mandate a 
 
         finding that the injury did not occur.  Claimant's description of 
 
         the garage door falling, his resulting back pain, 
 
         unconsciousness, etc., are credible.  The fact that claimant 
 
         described propping the front garage door open in order to crawl 
 
         out underneath is not negated by the fact that the garage in 
 
         question had a side door also.  Similarly, claimant's failure to 
 
         remember how he got home after the injury does not indicate the 
 
         injury did not occur.  The mere fact that claimant's recollection 
 
         of this traumatic event is less than 100 percent accurate does 
 
         not necessarily cast doubt on his credibility.  This is 
 
         especially true considering that claimant was unconsciousness for 
 
         a time, and also in light of the testimony in the record that 
 
         claimant is otherwise a truthful and honest person.  Claimant's 
 
         version of the event is accepted as true.
 
         
 
         However, claimant has failed to show that his present condition 
 
         is causally connected to the work injury.  The medical evidence 
 
         shows that claimant's present back pain is due to a degenerative 
 
         condition.  Dr. Boulden testified that this condition predated 
 
         claimant's injury, and was a condition that developed over many 
 
         years.  Dr. Boulden specifically opined that claimant's condition 
 
         was not caused by his injury.  Rather, claimant's preexisting 
 
         degenerative condition was temporarily
 
         
 
         
 
         Page   2
 
         
 
               
 
           
 
         
 
         aggravated by the injury.  The other physicians in the record 
 
         also diagnosed degenerative disc disease, and there is no 
 
         contrary opinion on causation.  Claimant has failed to show that 
 
         his present condition is caused by the work injury instead of the 
 
         preexisting disc disease.
 
         
 
         Even if claimant had carried his burden to show a causal 
 
         connection, claimant has not shown any disability caused by the 
 
         work injury.  Claimant was able to return to his job.  He is no 
 
         longer employed by the employer not because of his work injury, 
 
         but because he became dissatisfied with the method of 
 
         compensation.  Although claimant has ratings of impairment of 
 
         seven percent and 23 percent of the body as a whole, there is no 
 
         showing that these are attributable to his work injury, rather 
 
         than his degenerative disease.  All tests showed the absence of a 
 
         herniated disc.  Dr. Boulden stated claimant had no permanent 
 
         work restrictions as a result of his work injury.  Claimant's 
 
         loss of income is due to his voluntary decision to leave the 
 
         employer's employment for reasons unrelated to his injury.  
 
         The parties, at the time of the prehearing report, stated that 
 
         the "pink sheet" attached to the prehearing report set forth the 
 
         times that claimant was off work, that claimant had been paid for 
 
         these periods, and that these payments would constitute 
 
         claimant's entitlement to temporary total disability benefits if 
 
         such were awarded.  Thus, claimant is entitled to temporary total 
 
         disability benefits for the periods indicated in the prehearing 
 
         report and attachment, and defendants are entitled to a credit 
 
         for any temporary total disability benefits previously paid.
 
         The prehearing report attachment also set forth a total figure 
 
         for medical expenses, and the transcript contains a statement 
 
         that all medical expenses as of the date of the hearing had been 
 
         paid.  (Transcript, page 7)  Claimant is entitled to the medical 
 
         expenses related to his temporary aggravation of his back 
 
         condition.  Claimant is not entitled to medical benefits for 
 
         future treatment of his back condition unless such treatment is 
 
         shown to be causally connected to claimant's March 9, 1988 
 
         aggravation injury and not causally connected to claimant's 
 
         underlying degenerative condition.
 
         
 
         WHEREFORE, the decision of the deputy is reversed.
 
         
 
                                    ORDER
 
         
 
         THEREFORE, it is ordered:
 
         
 
         That defendants shall pay to claimant temporary total disability 
 
         benefits and medical benefits to the extent set forth in the 
 
         attachment to the prehearing report, at the rate of compensation 
 
         contained therein.
 
         
 
         That defendants are to be given credit for benefits previously 
 
         paid.
 
         
 
         That defendants shall pay the costs of the appeal, including the 
 
         preparation of the hearing transcript.
 
         
 
         Signed and filed this ____ day of May, 1993.
 
         
 
         
 
         
 
         
 
                  
 

 
         
 
         Page   3
 
         
 
         
 
         
 
         
 
         
 
         
 
                                           -------------------------
 
                                                BYRON K. ORTON
 
                                           INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Philip F. Miller
 
         Attorney at Law
 
         309 Court Ave., Ste 200
 
         Des Moines, Iowa 50309
 
         
 
         Mr. D. Brian Scieszinski
 
         Attorney at Law
 
         801 Grand, Ste 3700
 
         Des Moines, Iowa 50309
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                 1108
 
                                                 Filed May 27, 1993
 
                                                 BYRON K. ORTON
 
            
 
                      BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                      
 
            MARY RUCKER,   
 
                      
 
                 Claimant, 
 
                      
 
            vs.       
 
                                               File No. 881149
 
            OVERDOORS OF IOWA, INC., 
 
                                                 A P P E A L
 
                 Employer, 
 
                                               D E C I S I O N
 
            and       
 
                      
 
            EMPLOYERS MUTUAL INS. CO.,    
 
                      
 
                 Insurance Carrier,  
 
                 Defendants.    
 
            ___________________________________________________________
 
            
 
            
 
            1108
 
            Claimant's version of injury accepted as truthful on appeal 
 
            and an injury was found.  However, claimant failed to show 
 
            that his back condition was caused by the accident, where 
 
            the medical evidence showed a pre-existing degenerative 
 
            condition and the only physician expressing an opinion on 
 
            causal connection stated claimant's condition was not caused 
 
            by the injury.