Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            PAT KOCH,                     :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :         File No. 883532
 
            LAND O'LAKES,                 :
 
                                          :      A R B I T R A T I O N
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            KEMPER INSURANCE GROUP,       :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding in arbitration brought by Pat Koch 
 
            against Land O'Lakes, his employer, and its insurance 
 
            carrier, Kemper Insurance Group.  Claimant seeks 
 
            compensation for healing period, permanent partial 
 
            disability and payment of expenses of medical treatment 
 
            under Iowa Code section 85.27.  The issues to be determined 
 
            are whether Koch sustained an injury on or about May 10, 
 
            1988, whether the injury is a proximate cause of any 
 
            temporary or permanent disability, determination of Koch's 
 
            entitlement to compensation for temporary total disability 
 
            or healing period compensation, determination of Koch's 
 
            entitlement to compensation for permanent partial 
 
            disability, assessment of medical expenses for which the 
 
            defendants are liable, determination of the employer's 
 
            credit under section 85.38(2), and determination of the rate 
 
            of compensation.
 
            
 
                 The case was heard at Waterloo, Iowa on July 27, 1990.  
 
            The evidence in the case consists of testimony from Pat 
 
            Koch, Mike Bown and Elliott Culp.  The record also contains 
 
            joint exhibits 1 through 18 and claimant's exhibits A and P.  
 
            Claimant's exhibits B through O are in the record as an 
 
            offer of proof only.  They were not considered when deciding 
 
            the case.
 
            
 
                     
 
            
 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            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.
 
            
 
                 Pat Koch is a 35-year-old high school graduate who 
 
            attended but did not complete college.  He is married with 
 
            two children.
 
            
 
                 Throughout his life, Koch has held a variety of jobs.  
 
            He worked as a laborer for a company that installed water 
 
            lines.  He insulated sidewalls of buildings, supervised in a 
 
            grocery store and maintained a vending machine route. He has 
 
            worked at Land O'Lakes since February, 1981.  Much of his 
 
            work there has involved operating machines which play part 
 
            in the manufacturing process of making and packaging 
 
            margarine for retail sales.  The work required lifting of 
 
            moderate weights, some overhead reaching, some bending and 
 
            twisting.  One of Koch's additional duties included lifting 
 
            bags of salt which could weigh from 50-80 pounds and dumping 
 
            them into an auger at chest height.
 
            
 
                 At the start of the night shift on May 9, 1988, 
 
            claimant was assigned to work on a line which was packaging 
 
            50-pound containers of bulk margarine.  The job required 
 
            that he carry a container a distance of two or three steps 
 
            and place it on a conveyor at the rate of two and one-half 
 
            containers per minute.  Koch testified that while doing so, 
 
            at approximately 11:00 p.m., he felt a popping in the back 
 
            of his neck and extreme pain which ran into his arms and 
 
            hands.  He reported the injury to his supervisor, was placed 
 
            on another job, took a break, but then finally went home at 
 
            approximately 1:00 a.m. on May 10, 1988.  Claimant did not 
 
            resume work until July 16, 1988.  Thereafter, claimant 
 
            continued working until August 14, 1989 but then ceased work 
 
            and remained off work through November 2, 1989.
 
            
 
                 When he initially went off work, claimant was diagnosed 
 
            as having bilateral C7-8 radiculopathy in his cervical spine 
 
            (exhibits 3, 4 and 5).  He was treated conservatively and 
 
            has not undergone surgery.  The diagnosis was assisted by 
 
            EMG studies.  Subsequently, while off work, additional EMG 
 
            studies were conducted which were interpreted as showing 
 
            that the cervical radiculopathy had improved and returned to 
 
            normal.  He was also diagnosed, however, with having mild 
 
            bilateral ulnar nerve neuropathy (exhibits 3, 6 and 10).  
 
            When discussing the ulnar nerve problem, M. Eyad Dughly, 
 
            M.D., stated that the problem itself did not have its origin 
 
            in the work injury which claimant had experienced on May 10, 
 
            1988, but that it had resulted from mechanical stress which 
 
            was most likely secondary to pressure.  He recommended that 
 
            claimant avoid pressure on his elbows (exhibit 3).  Hosung 
 
            Chung, M.D., a neurosurgeon, also reported that claimant had 
 
            gradual onset of his radiculopathy on both sides and that 
 
            the incident of May 10, 1988 might have aggravated the 
 
            condition (exhibit 5).  A subsequent myelogram taken June 2, 
 
            1988 was negative (exhibit 9).
 
            
 
                 The state of the record at the time of hearing was such 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            that no physician has provided any rating of permanent 
 
            impairment for Pat Koch and no physician has imposed any 
 
            permanent activity restrictions.  Koch appeared at hearing 
 
            wearing splints on his arms, but he stated that he does not 
 
            wear them when performing his work or other recreational 
 
            activities.  He wears them primarily at home.
 
            
 
                 The employer's group plan is in evidence as exhibit 14.  
 
            Exhibit 15 seems to constitute an agreement to provide the 
 
            statutory credit which would exist under Code section 
 
            85.38(2) in the event that Koch receives an award in this 
 
            case.  The record does not contain sufficient information in 
 
            order to make a computation of what the amount of any credit 
 
            should be.  It is specifically noted that exhibit 14 at page 
 
            2 indicates that the group disability benefits can be used 
 
            to supplement workers' compensation benefits.  The formula 
 
            for making the determination of how much of which type of 
 
            benefit is payable is not in evidence and cannot be 
 
            determined.
 
            
 
                 Claimant did not submit any medical bills or expenses 
 
            in order to receive reimbursement.
 
            
 
                 Exhibit A shows that during the 13 full calendar weeks 
 
            preceding May 10, 1988, the week in which the injury 
 
            occurred, claimant had worked a total of 570.25 hours.  His 
 
            base rate of pay was $10.65 per hour which makes his gross 
 
            average weekly earnings $535.16 (exhibit A).  As previously 
 
            indicated, claimant is married with four exemptions.
 
            
 
                 Claimant complains that if he makes a fist he cannot 
 
            always bring in the little finger due to a 1986 injury.  He 
 
            expressed concerns of a very reduced grip in his left hand.
 
            
 
                 When claimant returned to work on July 15, 1988, he was 
 
            assigned custodial work.  It required a lot of arm movement 
 
            and lifting, but it was far less repetitious than the other 
 
            job he held with Land O'Lakes.  Since resuming work, 
 
            claimant has received all normal pay raises which are 
 
            provided to the rest of the workers in the employer's plant.  
 
            He is currently performing a job which he is capable of 
 
            doing on a long-term basis.
 
            
 
                 Koch feels that his condition is worsening.  He stated 
 
            that his hands are getting numb, cramping and locking more 
 
            than previously.  He complained of reduced range of motion 
 
            for his wrists, back and neck.  He blames repetitive 
 
            activity for his problems, despite the fact that his 
 
            symptoms have improved quite a bit through the treatment 
 
            that has been provided to him.
 
            
 
                 According to claimant, he was in excellent health prior 
 
            to this injury.  He had been an athlete while in high school 
 
            and maintained his athletic abilities through recreational 
 
            sports up to the time of injury.  His leisure activities 
 
            have not changed a great deal.  He now plays on two 
 
            nighttime softball leagues rather than only one as he had 
 
            done prior to the injury.
 
            
 
                 Michael L. Bown, the third shift production supervisor 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            at Land O'Lakes, stated that he has supervised claimant 
 
            since 1987.  Bown stated that the bags of salt currently 
 
            weigh 50 pounds, though they had weighed 80 pounds each at 
 
            the time claimant was originally hired.  Bown indicated that 
 
            over the years claimant had expressed interest in farming 
 
            and in farm operations.  Bown agreed that the machines have 
 
            been altered since 1988 to the extent that filling many of 
 
            the containers is now automated and they operator merely 
 
            shuts off the machine when the containers are filled.  Bown 
 
            confirmed that claimant is now working and displays no 
 
            problems.
 
            
 
                 Elliott Culp, the Land O'Lakes plant manager, stated 
 
            that when claimant resumed work he would have been paid his 
 
            normal earnings until the date of February, 1990 when 
 
            company policy changed and the amount to be paid to the 
 
            employee was limited to the pre-injury weekly job rate.
 
            
 
                 Having observed the claimant's appearance and demeanor, 
 
            it is found to be less than totally convincing.  It is 
 
            expected that while claimant does have symptoms, they are 
 
            not as severe as he urges.  He has been able to perform his 
 
            job, apparently to the satisfaction of his employer.  
 
            Claimant's complaints are deemed to be somewhat exaggerated.
 
            
 
                 The record in this case shows that claimant has some 
 
            type of a condition affecting his cervical spine, and also 
 
            affecting his ulnar nerves.  At the time of hearing, the 
 
            cervical spine condition appeared to be dormant and 
 
            asymptomatic.  Claimant was still expressing difficulty 
 
            regarding the ulnar nerve problems which affect his hands.  
 
            The physicians have not attributed claimant's physical 
 
            ailments to his work, although they have indicated that the 
 
            work could aggravate those conditions.  The conditions of 
 
            which claimant complained at hearing are compensable, most 
 
            likely as an aggravation of a preexisting condition.  It is 
 
            specifically noted that Dr. Dughly, in his August 31, 1988 
 
            report, stated that claimant's ulnar nerve problem was not 
 
            related to the incident which had caused the cervical 
 
            symptoms.  Dr. Dughly did not deny that the condition was 
 
            work related.
 
            
 
                                conclusions of law
 
            
 
                 Claimant has the burden of proving by a preponderance 
 
            of the evidence that he received an injury on May 10, 1988 
 
            which arose out of and in the course of his employment. 
 
            McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa 
 
            1976); Musselman v. Central Telephone Co., 261 Iowa 352, 154 
 
            N.W.2d 128 (1967). 
 
            
 
                 Claimant's testimony regarding the events that occurred 
 
            on May 10, 1988 and the onset of his symptoms are accepted 
 
            as being correct.  The injury is found to have been an 
 
            injury to his cervical spine as was diagnosed by the EMG's 
 
            which were conducted.  The injury is specifically found to 
 
            have not included injury to his ulnar nerves as that 
 
            condition had been diagnosed by James J. Mueller, M.D., 
 
            prior to May 10, 1988 (exhibit 1).  Dr. Chung declined to 
 
            place the onset of claimant's cervical problems at the May 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            10, 1988 incident, although he agreed that the incident 
 
            could have aggravated them.
 
            
 
                 The record contains no evidence from any physician that 
 
            the cervical spine injury was in any manner permanent.  To 
 
            the contrary, the evidence from Dr. Dughly in his August 31, 
 
            1988 report is to the effect that the cervical problem had 
 
            improved and returned to normal (exhibits 3, 6 and 11).  
 
            Also, as indicated by Dr. Dughly, the ulnar nerve condition 
 
            was not related to the work injury which had caused the 
 
            cervical problem.  It was rather related to mechanical 
 
            stress and pressure.
 
            
 
                 The record reflects that claimant was off work from May 
 
            11, 1988 through July 15, 1988 and again from August 14, 
 
            1989 through November 2, 1989.  The first of those two 
 
            periods is found to be a period of recuperation from the 
 
            cervical spine injury that occurred on May 10, 1988.  It 
 
            entitles claimant to recover nine and three-sevenths weeks 
 
            of compensation for temporary total disability.  Normally, 
 
            such a period of disability commences on the date of injury, 
 
            but in this case, in view of the stipulation made by the 
 
            parties in the prehearing report, the benefits will be 
 
            ordered to commence on May 11, 1988.
 
            
 
                 The evidence in this case fails to prove, by a 
 
            preponderance of the evidence, that the injury was permanent 
 
            and no compensation for permanent partial disability is 
 
            payable.
 
            
 
                 The parties, by consent, tried the ulnar nerve injury 
 
            claim.  It was both asserted by the claimant and defended by 
 
            the employer and its insurance carrier.  The condition 
 
            appears to be one of long-standing origin since it was 
 
            diagnosed as early as April 27, 1988 by Dr. Mueller.  Its 
 
            presence has been documented by EMG tests.  The record does 
 
            not, however, contain any direct evidence of impairment 
 
            rating or activity restrictions with regard to claimant's 
 
            arms other than the statement in the August 31, 1988 report 
 
            from Dr. Dughly that claimant needs to avoid pressure on his 
 
            elbows.  Apparently, claimant was off work from August 14, 
 
            1989 through November 2, 1989, but the evidence in the 
 
            record in this case does not contain any medical records 
 
            showing the treatment, if any, that was provided, by whom it 
 
            was provided or which identifies the condition which was 
 
            being treated.  Under these circumstances, no award of 
 
            temporary total disability or healing period can be made for 
 
            that period of time.
 
            
 
                 Claimant has splints which he wears, though he does not 
 
            wear them when working or engaging in strenuous activities.  
 
            He apparently wears them only when engaging in sedentary 
 
            activities at his home.  Throughout the years, claimant has 
 
            engaged in athletic pursuits.  The nature of his work does 
 
            not appear to be particularly exertional.  There is no 
 
            definite medical opinion which relates the problem in 
 
            claimant's arms to his employment.  Mechanical stress on the 
 
            elbows from engaging in sports is as likely a cause of 
 
            claimant's problems as his work.  For these further reasons, 
 
            it is determined that Pat Koch has failed to prove by a 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            preponderance of the evidence that his ulnar nerve problems 
 
            are related to his employment.
 
            
 
                 From exhibit 14, it would appear as though respondents 
 
            are entitled to credit for group disability income payments, 
 
            but the plan documents submitted do not provide a formula 
 
            from which a computation of the amount of the credit can be 
 
            made.  If the parties are unable to come to the correct 
 
            amount through their own computations, it will be necessary 
 
            for a subsequent contested case proceeding to be commenced.
 
            
 
                 According to exhibit A, claimant's earnings during the 
 
            13 weeks immediately proceeding May 10, 1988 total 
 
            $6,073.16.  The average gross weekly earnings are therefore 
 
            $467.16 under Iowa Code section 85.36(6).  Since claimant 
 
            was married with two children, he is entitled to four 
 
            exemptions.  Under the 1987 Benefit Schedule, his rate of 
 
            compensation is $298.76 per week.
 
            
 
                                      order
 
            
 
                 IT IS THEREFORE ORDERED that defendants pay Pat Koch 
 
            nine and three-sevenths (9 3/7) weeks of compensation for 
 
            temporary total disability at the rate of two hundred 
 
            ninety-eight and 76/100 dollars ($298.76) per week payable 
 
            commencing May 11, 1988.
 
            
 
                 IT IS FURTHER ORDERED that claimant's claim for 
 
            additional temporary total disability, healing period or 
 
            permanent partial disability is denied.
 
            
 
                 IT IS FURTHER ORDERED that the costs of this action are 
 
            assessed against defendants pursuant to 343 IAC 4.33.
 
            
 
                 Signed and filed this ______ day of ____________, 1990.
 
            
 
                 
 
            
 
                 
 
                 
 
                                          ______________________________
 
                                          MICHAEL G. TRIER
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. John E. Behnke
 
            Attorney at Law
 
            Box F
 
            Parkersburg, Iowa  50665
 
            
 
            Mr. Joseph M. Bauer
 
            Attorney at Law
 
            309 Court Avenue
 
            Suite 500 
 
            Des Moines, Iowa  50309
 
            
 
            Mr. Michael A. McEnroe
 
            Attorney at Law
 
            3151 Brockway Road
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            P.O. Box 810
 
            Waterloo, Iowa  50704
 
            
 
            
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                           5-1701; 5-1801
 
                           Filed December 4, 1990
 
                           MICHAEL G. TRIER
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            PAT KOCH, :
 
                      :
 
                 Claimant, :
 
                      :
 
            vs.       :
 
                      :         File No. 883532
 
            LAND O'LAKES,  :
 
                      :      A R B I T R A T I O N
 
                 Employer, :
 
                      :         D E C I S I O N
 
            and       :
 
                      :
 
            KEMPER INSURANCE GROUP,  :
 
                      :
 
                 Insurance Carrier,  :
 
                 Defendants.    :
 
            ____________________________________________________________
 
            
 
            5-1801
 
            Claimant, who had no impairment rating and no activity 
 
            restrictions, was held to have proven an entitlement to 
 
            temporary total disability, but no permanent partial 
 
            disability.
 
            
 
            5-1701
 
            The group plan documents did not provide a formula for 
 
            determining how much credit would be applied.  None was 
 
            therefore ordered.
 
            
 
 
         
 
 
 
 
 
 
 
 
 
                      BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         _________________________________________________________________
 
         BRUCE HONABACH,       
 
                     
 
              Claimant,   
 
                     
 
         vs.         
 
                                                 File No. 883536
 
         PUCCI'S MEXICAN FOOD AND   
 
         FINE PIZZA,      
 
                                                  A P P E A L
 
              Employer,   
 
                                                D E C I S I O N
 
         and         
 
                     
 
         UNITED STATES FIDELITY AND      
 
         GUARANTY COMPANY,     
 
                     
 
              Insurance Carrier,    
 
              Defendants.      
 
         _________________________________________________________________
 
         The record, including the transcript of the hearing before the 
 
         deputy and all exhibits admitted into the record, has been 
 
         reviewed de novo on appeal.  The decision of the deputy filed 
 
         January 17, 1992 is affirmed and is adopted as the final agency 
 
         action in this case.
 
         Claimant shall pay the costs of the appeal, including the 
 
         preparation of the hearing transcript.
 
         Signed and filed this ____ day of October, 1992.
 
         
 
         
 
         
 
         
 
                                    ________________________________
 
                                             BYRON K. ORTON
 
                                        INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Daniel P. Wilson
 
         Attorney at Law
 
         P.O. Box 367
 
         Centerville, Iowa 52544
 
         
 
         Ms. Iris J. Post
 
         Attorney at Law
 
         P.O. Box 10434
 
         Des Moines, Iowa 50306
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                               9998
 
                                               Filed October 29, 1992
 
                                               Byron K. Orton
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER            
 
            ____________________________________________________________
 
            BRUCE HONABACH,       
 
                        
 
                 Claimant,   
 
                        
 
            vs.         
 
                                              File No. 883536
 
            PUCCI'S MEXICAN FOOD AND   
 
            FINE PIZZA,      
 
                                               A P P E A L
 
                 Employer,   
 
                                            D E C I S I O N
 
            and         
 
                        
 
            UNITED STATES FIDELITY AND      
 
            GUARANTY COMPANY,     
 
                        
 
                 Insurance Carrier,    
 
                 Defendants.      
 
            ____________________________________________________________
 
            
 
            9998
 
            
 
                 Summary affirmance of deputy's decision filed January 
 
            17, 1992.
 
            
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         CLIFFORD D. JONES,
 
         
 
              Claimant,
 
         
 
         VS.                                      File Nos. 883552
 
                                                            883553
 
         YOUNG RADIATOR COMPANY,
 
                                               A R B I T R A T I 0 N
 
              Employer,
 
                                                 D E C I S I 0 N
 
         and
 
         
 
         FIREMAN'S FUND INSURANCE
 
         COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              This decision resolves two proceedings in arbitration 
 
         brought by Clifford D. Jones against Young Radiator Company and 
 
         its workers' compensation insurance carrier.  File number 883552 
 
         alleges an injury of November 1, 1986 while file number 883553 
 
         alleges an injury of August 10, 1987.  Jones seeks compensation 
 
         for healing  period, permanent disability and payment of medical 
 
         and transportation expenses.  The cases were consolidated and 
 
         heard at Des Moines, Iowa on November 20, 1989.  The record in 
 
         this proceeding consists of jointly offered exhibits 1 through 
 
         10, claimant's exhibits 11, 12, 13 and 14, and testimony from 
 
         Clifford D. Jones, Martha Jones and Patricia Brown.
 
         
 
                                      ISSUES
 
         
 
              The issues presented for determination are whether claimant 
 
         sustained injury which arose out of and in the course of his 
 
         employment on either of the two dates alleged; determination of 
 
         claimant's entitlement to weekly compensation for disability 
 
         resulting from the alleged injuries; and, determination of 
 
         claimant's entitlement to benefits under Code section 85.27.  It 
 
         was stipulated that defendants were entitled to credit for 
 
         benefits paid by their group carrier under Code section 85.38(2).  
 
         The rate of compensation for the 1987 injury was stipulated to be
 
         
 
         
 
         
 
         JONES v. YOUNG RADIATOR COMPANY
 
         Page 2
 
         
 
         
 
         $231.56 per week, but the rate for the 1986 injury is disputed.  
 
         Defendants assert that the 1986 injury claim is barred due to 
 
         lack of notice under Code section 85.23.  Claimant asserts that 
 
         he is permanently, totally disabled, but does not rely upon the 
 
         odd-lot doctrine.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
                                 FINDINGS OF FACT
 
         
 
              Clifford D. Jones is a 27-year-old married man who lives at 
 
         Mystic, Iowa with his wife Martha and their two minor children.  
 
         Jones left high school in 1979 after completing the ninth grade 
 
         and worked as a laborer until 1982. According to him, the jobs 
 
         required bending, lifting and repetitive bending. He then worked 
 
         as a tree trimmer for three years.  He worked construction in 
 
         1985 and early 1986.  Jones denied having any back injury or pain 
 
         while on any of those jobs.  Jones began his employment with 
 
         Young Radiator Company in August, 1986 after passing the 
 
         employer's pre-employment physical examination.
 
         
 
              Jones recalled having some low back pain in 1983 for 
 
         approximately two days, but stated that it did not disable him 
 
         from his work as a laborer.  The records of his family 
 
         practitioner, Paul D. Poncy, D.O., show that claimant was treated 
 
         with medication for low back pain on March 3, 1983 (exhibit 9-8,  
 
         page 57).  Subsequent records from Dr. Poncy show claimant to 
 
         have been treated for low back pain on March 11, 1986 and June 
 
         11, 1986.  Records from St. Joseph Mercy Hospital indicate that 
 
         claimant was seen on June 26, 1986 with complaints of low back 
 
         pain and of being unable to walk.  The diagnosis made was acute 
 
         lumbar instability with a muscle tear (exhibit 9-6, page 50)   
 
         X-rays taken on  March 11, 1986, June 26, 1986, August 23, 1986 
 
         and April 21, 1988 were interpreted as being normal (exhibit 9-1, 
 
         page 9; exhibit 9-6, pages 51 and 52; exhibit 9-11, page 68).
 
         
 
              Jones tested radiators for Young Radiator Company.  This 
 
         required that he pick up the radiator, place it on a test table, 
 
         cork the openings, fill it with air, submerge it in water to 
 
         check for leaks, remove it from the water, remove the plugs and 
 
         hang it on a paint line.  If leaks were found, he was responsible 
 
         for repairing them.  On a typical work day, approximately 
 
         one-third of the radiators would weigh in the range of 15 pounds, 
 
         another one-third would weigh from 25-35 pounds, and the 
 
         remaining radiators would weigh approximately 250 pounds and were 
 
         moved with a hoist.  The normal work day was ten hours.  In a 
 
         typical day, claimant would handle approximately 75 radiators.
 
         
 
         
 
         
 
         JONES v. YOUNG RADIATOR COMPANY
 
         Page 3
 
         
 
         
 
              According to claimant, he began to experience sharp pains in 
 
         his chest and back in November 1986, but continued working until 
 
         July and August of 1987 while his pain worsened.  According to 
 
         claimant, by July of 1987, he needed assistance from coworkers in 
 
         order to perform his job and from his wife in order to get 
 
         dressed and undressed.  Claimant stated that when his condition 
 
         became so  bad that he was unable to work any longer, he sought 
 
         treatment from Dr. Poncy.  Dr. Poncy's records show claimant to 
 
         have sought treatment for chest pain starting December 20, 1986.  
 
         The first report of low back pain is noted on February 16, 1987 
 
         (exhibit 9-8, page 58).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Claimant did not recover and sought treatment at the 
 
         University of Iowa Hospitals and Clinics.  When claimant was 
 
         initially seen, the cause for his back pain was uncertain 
 
         (exhibit 9-1, page 1).  One of his primary physicians was Richard 
 
         R. Olson, M.D.  On August 6, 1987, Dr. Olson reported that 
 
         claimant needed to be off work for two weeks in order to be 
 
         evaluated (exhibit 1, page 22; exhibit 9-1, page 6).  According 
 
         to the insurance claim forms confirmed by claimant's employer, 
 
         his last day of work was August 6, 1987 (exhibit 1, pages 3 and 
 
         23).  On September 4, 1987, Dr. Olson reported that claimant has 
 
         a chronic mechanical back pain syndrome which is made worse by 
 
         heavy lifting and that he should avoid lifting in excess of ten 
 
         pounds (exhibit 1, pages 3 and 31; exhibit 9-1, page 7).  On 
 
         September  28, 1987, Dr. Olson reported that claimant appeared to 
 
         have a spondyloarthropathy which would explain his upper back 
 
         pain and sacrollitis.  The note indicates that claimant was given 
 
         information concerning his disease and vocational rehabilitation.  
 
         His medication was changed and he was scheduled for a return 
 
         visit in three months (exhibit 9-1, page 2).
 
         
 
              In the meantime, Dr. Poncy had reported to claimant's 
 
         employer and group disability insurance carrier that claimant's 
 
         condition was a chronic mechanical back pain syndrome which had 
 
         resulted from repetitive lifting, twisting and side bending which 
 
         claimant performed at work.  Dr. Poncy indicated that it was 
 
         unknown as to when claimant might return to work (exhibit 1, 
 
         pages 33 and 41; exhibits 11, 12 and 14).
 
         
 
              In a subsequent report, Dr. olson.has indicated that 
 
         claimant could return to work if he avoids heavy lifting (exhibit 
 
         1, page 4)
 
         
 
              Records dated September 28, 1987 indicate that claimant's 
 
         pain is worsened by walking, standing or lying in
 
         
 
         
 
         
 
         JONES v. YOUNG RADIATOR COMPANY
 
         Page 4
 
         
 
         
 
         bed, that it came on six weeks earlier after running and has 
 
         progressively worsened (exhibit 9-1, page 2).  On December 1, 
 
         1987, Dr. Olson reported as follows:
 
         
 
              He is a 24-year-old man with ankylosing
 
              spondylitis diagnosed in 9/87.  His initial
 
              symptoms referable to this  disease began in
 
              approximately 11/86.  Ankylosing spondylitis is an
 
              inflammatory disease of the spine which typically
 
              results in back pain and stiffness.  It is a
 
              chronic disorder for which there is no known cure.
 
              Anti-inflammatory medications are used to control
 
              symptoms.  Mr. Jones is currently receiving
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              Indomethacine 50 mg 4 times daily.  He has also
 
              been advised to maintain a regular physical
 
              therapy program for his back.  The patient has
 
              been advised to avoid prolonged or heavy lifting
 
              and to consider this restriction in vocational
 
              planning.  The overall outlook for this condition,.
 
              though chronic, is generally quite good given
 
              proper medical therapy, physical therapy and
 
              avoidance of adverse activities.
 
         
 
         (Exhibit 9-1, page 8)
 
         
 
         This report indicates the end of any recuperative process.
 
         
 
              Claimant was subsequently examined by Des Moines orthopaedic 
 
         surgeon Peter D. Wirtz, M.D., who found claimant to have no 
 
         restriction of the function of his lumbar spine.  He felt that 
 
         claimant's diagnosis of ankylosing spondylitis should be further 
 
         evaluated (exhibit  9-9, pages 60-63).
 
         
 
              Claimant was evaluated by Des Moines orthopaedic surgeon 
 
         Jerome Bashara, M.D. Dr. Bashara diagnosed claimant as having 
 
         ankylosing spondylitis of the entire spine.  He also diagnosed a 
 
         thoracolumbar strain as a result of claimant's work at Young 
 
         Radiator Company.  He felt claimant had a 13 percent permanent 
 
         impairment, of which 10 percent was due to the spondylitis and 3 
 
         percent was due to the employment-related strain (exhibit 9-10, 
 
         pages 65-67).
 
         
 
              Claimant's testimony regarding his medical history and lack 
 
         of any prior significant back problems is contradicted by the 
 
         medical records.  It is determined that his testimony regarding 
 
         lack of prior significant back problems is deemed to be 
 
         exaggerated.  The diagnosis and activity restrictions recommended 
 
         by Dr. Olson in his reports are accepted as being correct.  The 
 
         diagnosis is confirmed by Drs. Wirtz and Bashara.  Dr. Bashara's 
 
         impairment rating which relates a
 
         
 
         
 
         
 
         JONES v. YOUNG RADIATOR COMPANY
 
         Page 5
 
         
 
         
 
         three percent impairment to a strain from claimant's employment 
 
         is rejected as neither Dr. Olson nor Dr. Wirtz has attributed 
 
         claimant's condition to anything other than the spondylitis 
 
         disease.  The December 1, 1987 report from Dr. Olson is fully 
 
         accepted as being a correct assessment of this case.
 
         
 
              It is found that claimant's work activities at Young 
 
         Radiator Company aggravated his underlying  disease.  The 
 
         aggravation produced disability from performing the  normal 
 
         duties of his employment commencing August 7, 1987 and running 
 
         through September 28, 1987, a span of 7 and 4/7 weeks.  The 
 
         aggravation did not permanently change or alter the normal course 
 
         of the underlying disease process.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              Claimant has the burden of proving by a preponderance of the 
 
         evidence that he received injuries on November 1, 1986 and August 
 
         10, 1987 which arose out of and in the course of his employment.  
 
         McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); 
 
         Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 
 
         (1967).
 
         
 
              The words "arising out of" refer to the cause or source of 
 
         the injury. McClure v. Union County, 188 N.W.2d 283, 287 (Iowa 
 
         1971); Crowe v. DeSoto Consol. Sch. Dist., 246  Iowa 402, 68 
 
         N.W.2d 63 (1955).  The "arising out of" requirement is satisfied 
 
         by showing a causal relationship between the employment and the 
 
         injury.  Sheerin v. Holin Co., 380  N.W.2d 415, 417 (Iowa 1986).
 
         
 
              While claimant may have experienced symptoms on November 1, 
 
         1986, the record fails to establish the occurrence of any injury 
 
         or the onset of any disability on that date.  According to the 
 
         record made in this case, claimant is afflicted with the chronic 
 
         inflammatory disease of ankylosing spondylitis which began in 
 
         November 1986.  It is a condition which is worsened or aggravated 
 
         by heavy lifting or activity.  It is a condition which would be 
 
         susceptible to aggravation by work of the type which claimant 
 
         performed at Young Radiator Company.
 
         
 
              Aggravation of a preexisting condition is one form of 
 
         compensable injury.  While a claimant is not entitled to 
 
         compensation for the results of a preexisting injury or disease, 
 
         the mere existence at the time of a subsequent injury is not a 
 
         defense.  Rose v. John Deere Ottumwa Works, 247 Iowa 900, 908, 76 
 
         N.W.2d 756, 760-61 (1956).  If the claimant had a preexisting 
 
         condition or disability that is
 
         
 
         
 
         
 
         JONES v. YOUNG RADIATOR COMPANY
 
         Page 6
 
         
 
         
 
         aggravated, accelerated, worsened or lighted up so that it 
 
         results in disability, claimant is entitled to recover.  Nicks v. 
 
         Davenport Produce Co., 254 Iowa 130, 115 N.W.2d 812, 815 (1962).
 
         
 
              Dr. Bashara's opinion that a permanent strain had occurred 
 
         has been found to be incorrect.  It is determined, however, that 
 
         claimant did sustain an injury on August 6, 1987 in the nature of 
 
         an aggravation of a preexisting condition.  It should be noted 
 
         that the date of injury is established by Dr. Olson's report that 
 
         claimant needed to be off work for evaluation and by the group 
 
         insurance claim applications, all of which stated that claimant's 
 
         last day of work was August 6, 1987.  The first day of disability 
 
         is therefore August 7, 1987.  Under the cumulative trauma rule, 
 
         August 6, 1987 is the correct date of injury, not August 10, 
 
         1987.  McKeever Custom Cabinets v. Smith, 379 N.W.2d 368 (Iowa 
 
         1985).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Claimant is entitled to recovery temporary total disability 
 
         compensation running from August 7, 1987 until he recuperated 
 
         from the injury since he did not return to work.  The record does 
 
         not contain any express statement from any physician regarding 
 
         when recuperation occurred.  On September 4, 1987, Dr. Olson 
 
         imposed activity restrictions for claimant to follow and those 
 
         restrictions have not since been substantially changed.  By 
 
         September 28, 1987, a diagnosis had been made and it was reported 
 
         that claimant had been given information concerning his disease 
 
         and also on vocational rehabilitation.  His next medical 
 
         treatment was scheduled for three months later (exhibit 9-1, page 
 
         2).  It is determined that September 28, 1987 marks the end of 
 
         claimant's period of recuperation and entitlement to temporary 
 
         total disability compensation.  This computes to 7 and 4/7 weeks.  
 
         The difference between temporary total disability compensation 
 
         and the weekly accident and sickness benefit which was paid to 
 
         claimant is $26.12 per week.  Claimant is therefore entitled to 
 
         recover an additional sum of $197.75 plus interest pursuant to 
 
         Code section 85.30 computed upon $26.12 per week from each week 
 
         that temporary total disability compensation was payable until 
 
         the date of actual payment of the amount which is awarded in this 
 
         decision.
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury of August 6, 1987 is causally 
 
         related to the disability on which he now bases his claim.  
 
         Bodish v. Fischer, Inc., 257 Iowa  516, 133 N.W.2d 867 (1965). 
 
         Lindahl v. L. 0. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945).  A 
 
         possibility is insufficient; a
 
         
 
         
 
         
 
         JONES v. YOUNG RADIATOR COMPANY
 
         Page 7
 
         
 
         
 
         probability is necessary.  Burt v. John Deere Waterloo Tractor 
 
         Works, 247 Iowa 691, 73 N.W.2d 732 (1955).  The question of 
 
         causal connection is essentially within the domain of expert 
 
         testimony. Bradshaw v. Iowa Methodist Hospital, 251 Iowa 375, 101 
 
         N.W.2d 167 (1960).
 
         
 
              However, expert medical evidence must be considered with all 
 
         other evidence introduced bearing on the causal connection.  
 
         Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion of experts need 
 
         not be couched in definite, positive  or unequivocal language.  
 
         Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974).  However, 
 
         the expert opinion may be accepted or rejected, in whole or in 
 
         part, by the trier of fact.  Id. at 907.  Further, the weight to 
 
         be given to such an opinion is for the finder of fact, and that 
 
         may be affected by the completeness of the premise given the 
 
         expert and other surrounding circumstances.  Bodish, 257 Iowa 
 
         516, 133 N.W.2d 867.  See also Musselman v. Central Telephone Co.
 
         , 261 Iowa 352, 154 N.W.2d 128 (1967).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              It has previously been found that the only compensable 
 
         injury is a temporary aggravation of a preexisting condition and 
 
         no compensation for permanent disability, either partial or 
 
         total, is warranted.
 
         
 
              Claimant is entitled to recover medical expenses and 
 
         transportation expenses under Code section 85.27.  He did not 
 
         provide any itemized list of what expenses were claimed as had 
 
         been required by the hearing assignment order.  The undersigned 
 
         is unable to make any determination with regard to the amount of 
 
         expenses incurred.  It is determined that the expenses with Dr. 
 
         Poncy which were incurred on December 20, 1986, February 16, 
 
         1987, February 17, 1987, March 2, 1987, and September 8, 1987 are 
 
         all the responsibility of defendants.  Claimant's charges at the 
 
         University of Iowa Hospitals and Clinics incurred between August 
 
         3, 1987 and September 28, 1987 are all the responsibility of 
 
         defendants.  Defendants are likewise responsible for payment of 
 
         claimant's transportation expenses to the University of Iowa 
 
         Hospitals and Clinics between those same dates.  The precise 
 
         amount of the defendants' liability, the credit under section 
 
         85.38(2), and any remaining unpaid amounts cannot be determined 
 
         from the record made.
 
         
 
              It is therefore concluded that Clifford D. Jones sustained 
 
         an injury which arose out of and in the course of his employment 
 
         on August 6, 1987.  The nature of the injury is a temporary 
 
         aggravation of the underlying ankylosing spondylitis disease 
 
         process and that as a result thereof he is entitled to recover 7 
 
         and 4/7 weeks of compensation for
 
         
 
         
 
         
 
         JONES v. YOUNG RADIATOR COMPANY
 
         Page 8
 
         
 
         
 
         temporary total disability under the provisions of Code section 
 
         85.33.  It is further concluded that he is entitled to recover 
 
         medical expenses under the provisions of Code section 85.27 
 
         arising from that aggravation but the amount thereof cannot be 
 
         determined.  It is further concluded that the employer's credit 
 
         under Code section 85.38(2) against the temporary total 
 
         disability award is $1,555.39, leaving an unpaid balance of 
 
         $197.75 plus interest.
 
         
 
              Whether claimant's condition was a result of injury from his 
 
         employment or merely a manifestation of his preexisting condition 
 
         was fairly debatable.  There is no basis to award additional 
 
         compensation under the fourth unnumbered paragraph of Code 
 
         section 86.13.  Dolan v. Aid Ins. Co., 431 N.W.2d 790 (Iowa 
 
         1988); Kimberly-Clark Corp. v. Labor & Industry Review 
 
         Comm'n, 405 N.W.2d 685 (Wisc. App. 1987); Anderson v. Continental 
 
         Ins. Co., 271 N.W.2d 368 (Wisc. 1978).
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
                                      ORDER
 
         
 
              IT IS THEREFORE ORDERED that defendants pay claimant seven 
 
         and four-sevenths (7 4/7) weeks of compensation for temporary 
 
         total disability at the stipulated rate of two hundred thirty-one 
 
         and 56/100 dollars ($231.56) per week payable commencing August 
 
         7, 1987.
 
         
 
              IT IS FURTHER ORDERED that defendants receive credit against 
 
         the award at the rate of two hundred five and 44/100 dollars 
 
         ($205.44) per week under the provisions of Iowa Code section 
 
         85.38(2).  The difference is twenty-six and 12/100 dollars 
 
         ($26.12) per week which computes to one hundred ninety-seven and 
 
         75/100 dollars ($197.75) for the entire period.
 
         
 
              IT IS FURTHER ORDERED that defendants pay claimant interest 
 
         on the unpaid twenty-six and 12/100 dollars ($26.12) per week 
 
         pursuant to Code section 85.30 from the date each weekly payment 
 
         came due until the date of actual payment.
 
         
 
              IT IS FURTHER ORDERED that, after receiving credit for all 
 
         group medical payment benefits, defendants pay the remaining 
 
         balance of the expenses incurred at the University of Iowa 
 
         Hospitals and Clinics between:August 3, 1987 and September 28, 
 
         1987.  Defendants shall also pay claimant's transportation 
 
         expenses at the rate of fifty-six and 70/100 dollars ($56.70) for 
 
         each time he was required to travel from his home to the 
 
         University of Iowa Hospitals and
 
         
 
         
 
         
 
         JONES v. YOUNG RADIATOR COMPANY
 
         Page 9
 
         
 
         
 
         clinics for medical treatment between the dates of August 3, 1987 
 
         and September 28, 1987.
 
         
 
              IT IS FURTHER ORDERED that defendants pay the unpaid 
 
         expenses claimant incurred with Dr. Poncy on December 20,1986, 
 
         February 16, 1987, February 17, 1987, March 2, 1987, and 
 
         September 8, 1987, after receiving credit for amounts paid by the 
 
         group medical insurance carrier.
 
         
 
              IT IS FURTHER ORDERED that the costs in file number 883553 
 
         are assessed against defendants and the costs in file number 
 
         883552 are assessed against claimant, all pursuant to Division of 
 
         Industrial Services Rule 343-4.33.
 
         
 
              IT IS FURTHER ORDERED that defendants file claim activity 
 
         reports in file number 883553 as requested by this agency 
 
         pursuant to Division of Industrial Services Rule  343-3.1.
 
         
 
              Signed and filed this 9th day of May, 1990.
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
                                         MICHAEL G. TRIER
 
                                         DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         
 
         
 
         
 
         
 
         
 
         Copies To:
 
         
 
         Mr. Philip F. Miller
 
         Attorney at Law
 
         309 Court Avenue, Suite 200
 
         Des Moines, Iowa  50309
 
         
 
         Mr. Richard G. Book
 
         Attorney at Law
 
         500 Liberty Building
 
         Des Moines, Iowa  50309
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                                         5-1108, 5-1402.30, 5-2206
 
                                         Filed May 9, 1990
 
                                         MICHAEL G. TRIER
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         CLIFFORD D. JONES,
 
         
 
              Claimant,
 
         
 
         VS.                                       File Nos. 883552
 
                                                             883553
 
         YOUNG RADIATOR COMPANY,
 
                                                 A R B I T R A T I 0 N
 
              Employer,
 
                                                    D E C I S I 0 N
 
         and
 
         
 
         FIREMAN'S FUND INSURANCE
 
         COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         5-1108, 5-1402.30, 5-2206
 
         
 
              Claimant, who had an underlying disease, successfully proved 
 
         that his work temporarily aggravated the condition, but failed to 
 
         prove any permanent disability resulting from the aggravation.
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            CLIFFORD D. JONES,            :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :         File Nos. 883552
 
                                          :                   883553
 
            YOUNG RADIATOR COMPANY,       :
 
                                          :      A R B I T R A T I O N
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            FIREMAN'S FUND INSURANCE      :
 
            COMPANY,                      :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 This decision resolves two proceedings in arbitration 
 
            brought by Clifford D. Jones against Young Radiator Company 
 
            and its workers' compensation insurance carrier.  File 
 
            number 883552 alleges an injury of November 1, 1986 while 
 
            file number 883553 alleges an injury of August 10, 1987.  
 
            Jones seeks compensation for healing period, permanent 
 
            disability and payment of medical and transportation 
 
            expenses.  The cases were consolidated and heard at Des 
 
            Moines, Iowa on November 20, 1989.  The record in this 
 
            proceeding consists of jointly offered exhibits 1 through 
 
            10, claimant's exhibits 11, 12, 13 and 14, and testimony 
 
            from Clifford D. Jones, Martha Jones and Patricia Brown.
 
            
 
                                      issues
 
            
 
                 The issues presented for determination are whether 
 
            claimant sustained injury which arose out of and in the 
 
            course of his employment on either of the two dates alleged; 
 
            determination of claimant's entitlement to weekly 
 
            compensation for disability resulting from the alleged 
 
            injuries; and, determination of claimant's entitlement to 
 
            benefits under Code section 85.27.  It was stipulated that 
 
            defendants were entitled to credit for benefits paid by 
 
            their group carrier under Code section 85.38(2).  The rate 
 
            of compensation for the 1987 injury was stipulated to be 
 
            $231.56 per week, but the rate for the 1986 injury is 
 
            disputed.  Defendants assert that the 1986 injury claim is 
 
            barred due to lack of notice under Code section 85.23.  
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            Claimant asserts that he is permanently, totally disabled, 
 
            but does not rely upon the odd-lot doctrine.
 
            
 
                                 findings of fact
 
            
 
                 Clifford D. Jones is a 27-year-old married man who 
 
            lives at Mystic, Iowa with his wife Martha and their two 
 
            minor children.  Jones left high school in 1979 after 
 
            completing the ninth grade and worked as a laborer until 
 
            1982.  According to him, the jobs required bending, lifting 
 
            and repetitive bending.  He then worked as a tree trimmer 
 
            for three years.  He worked construction in 1985 and early 
 
            1986.  Jones denied having any back injury or pain while on 
 
            any of those jobs.  Jones began his employment with Young 
 
            Radiator Company in August, 1986 after passing the 
 
            employer's preemployment physical examination.
 
            
 
                 Jones recalled having some low back pain in 1983 for 
 
            approximately two days, but stated that it did not disable 
 
            him from his work as a laborer.  The records of his family 
 
            practitioner, Paul D. Poncy, D.O., show that claimant was 
 
            treated with medication for low back pain on March 3, 1983 
 
            (exhibit 9-8, page 57).  Subsequent records from Dr. Poncy 
 
            show claimant to have been treated for low back pain on 
 
            March 11, 1986 and June 11, 1986.  Records from St. Joseph 
 
            Mercy Hospital indicate that claimant was seen on June 26, 
 
            1986 with complaints of low back pain and of being unable to 
 
            walk.  The diagnosis made was acute lumbar instability with 
 
            a muscle tear (exhibit 9-6, page 50).  X-rays taken on March 
 
            11, 1986, June 26, 1986, August 23, 1986 and April 21, 1988 
 
            were interpreted as being normal (exhibit 9-1, page 9; 
 
            exhibit 9-6, pages 51 and 52; exhibit 9-11, page 68).
 
            
 
                 Jones tested radiators for Young Radiator Company.  
 
            This required that he pick up the radiator, place it on a 
 
            test table, cork the openings, fill it with air, submerge it 
 
            in water to check for leaks, remove it from the water, 
 
            remove the plugs and hang it on a paint line.  If leaks were 
 
            found, he was responsible for repairing them.  On a typical 
 
            work day, approximately one-third of the radiators would 
 
            weigh in the range of 15 pounds, another one-third would 
 
            weigh from 25-35 pounds, and the remaining radiators would 
 
            weigh approximately 250 pounds and were moved with a hoist.  
 
            The normal work day was ten hours.  In a typical day, 
 
            claimant would handle approximately 75 radiators.
 
            
 
                 According to claimant, he began to experience sharp 
 
            pains in his chest and back in November 1986, but continued 
 
            working until July and August of 1987 while his pain 
 
            worsened.  According to claimant, by July of 1987, he needed 
 
            assistance from coworkers in order to perform his job and 
 
            from his wife in order to get dressed and undressed.  
 
            Claimant stated that when his condition became so bad that 
 
            he was unable to work any longer, he sought treatment from 
 
            Dr. Poncy.  Dr. Poncy's records show claimant to have sought 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            treatment for chest pain starting December 20, 1986.  The 
 
            first report of low back pain is noted on February 16, 1987 
 
            (exhibit 9-8, page 58).
 
            
 
                 Claimant did not recover and sought treatment at the 
 
            University of Iowa Hospitals and Clinics.  When claimant was 
 
            initially seen, the cause for his back pain was uncertain 
 
            (exhibit 9-1, page 1).  One of his primary physicians was 
 
            Richard R. Olson, M.D.  On August 6, 1987, Dr. Olson 
 
            reported that claimant needed to be off work for two weeks 
 
            in order to be evaluated (exhibit 1, page 22; exhibit 9-1, 
 
            page 6).  According to the insurance claim forms confirmed 
 
            by claimant's employer, his last day of work was August 6, 
 
            1987 (exhibit 1, pages 3 and 23).  On September 4, 1987, Dr. 
 
            Olson reported that claimant has a chronic mechanical back 
 
            pain syndrome which is made worse by heavy lifting and that 
 
            he should avoid lifting in excess of ten pounds (exhibit 1, 
 
            pages 3 and 31; exhibit 9-1, page 7).  On September 28, 
 
            1987, Dr. Olson reported that claimant appeared to have a 
 
            spondyloarthropathy which would explain his upper back pain 
 
            and sacroilitis.  The note indicates that claimant was given 
 
            information concerning his disease and vocational 
 
            rehabilitation.  His medication was changed and he was 
 
            scheduled for a return visit in three months (exhibit 9-1, 
 
            page 2).
 
            
 
                 In the meantime, Dr. Poncy had reported to claimant's 
 
            employer and group disability insurance carrier that 
 
            claimant's condition was a chronic mechanical back pain 
 
            syndrome which had resulted from repetitive lifting, 
 
            twisting and side bending which claimant performed at work.  
 
            Dr. Poncy indicated that it was unknown as to when claimant 
 
            might return to work (exhibit 1, pages 33 and 41; exhibits 
 
            11, 12 and 14).
 
            
 
                 In a subsequent report, Dr. Olson has indicated that 
 
            claimant could return to work if he avoids heavy lifting 
 
            (exhibit 1, page 4).
 
            
 
                 Records dated September 28, 1987 indicate that 
 
            claimant's pain is worsened by walking, standing or lying in 
 
            bed, that it came on six weeks earlier after running and has 
 
            progressively worsened (exhibit 9-1, page 2).  On December 
 
            1, 1987, Dr. Olson reported as follows:
 
            
 
                 He is a 24-year-old man with ankylosing 
 
                 spondylitis diagnosed in 9/87.  His initial 
 
                 symptoms referable to this disease began in 
 
                 approximately 11/86.  Ankylosing spondylitis is an 
 
                 inflammatory disease of the spine which typically 
 
                 results in back pain and stiffness.  It is a 
 
                 chronic disorder for which there is no known cure.  
 
                 Anti-inflammatory medications are used to control 
 
                 symptoms.  Mr. Jones is currently receiving 
 
                 Indomethacine 50 mg 4 times daily.  He has also 
 
     
 
            
 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
                 been advised to maintain a regular physical 
 
                 therapy program for his back.  The patient has 
 
                 been advised to avoid prolonged or heavy lifting 
 
                 and to consider this restriction in vocational 
 
                 planning.  The overall outlook for this condition, 
 
                 though chronic, is generally quite good given 
 
                 proper medical therapy, physical therapy and 
 
                 avoidance of adverse activities.
 
            
 
            (Exhibit 9-1, page 8)
 
            
 
            This report indicates the end of any recuperative process.
 
            
 
                 Claimant was subsequently examined by Des Moines 
 
            orthopaedic surgeon Peter D. Wirtz, M.D., who found claimant 
 
            to have no restriction of the function of his lumbar spine.  
 
            He felt that claimant's diagnosis of ankylosing spondylitis 
 
            should be further evaluated (exhibit 9-9, pages 60-63).
 
            
 
                 Claimant was evaluated by Des Moines orthopaedic 
 
            surgeon Jerome Bashara, M.D.  Dr. Bashara diagnosed claimant 
 
            as having ankylosing spondylitis of the entire spine.  He 
 
            also diagnosed a thoracolumbar strain as a result of 
 
            claimant's work at Young Radiator Company.  He felt claimant 
 
            had a 13 percent permanent impairment, of which 10 percent 
 
            was due to the spondylitis and 3 percent was due to the 
 
            employment-related strain (exhibit 9-10, pages 65-67).
 
            
 
                 Claimant's testimony regarding his medical history and 
 
            lack of any prior significant back problems is contradicted 
 
            by the medical records.  It is determined that his testimony 
 
            regarding lack of prior significant back problems is deemed 
 
            to be exaggerated.  The diagnosis and activity restrictions 
 
            recommended by Dr. Olson in his reports are accepted as 
 
            being correct.  The diagnosis is confirmed by Drs. Wirtz and 
 
            Bashara.  Dr. Bashara's impairment rating which relates a 
 
            three percent impairment to a strain from claimant's 
 
            employment is rejected as neither Dr. Olson nor Dr. Wirtz 
 
            has attributed claimant's condition to anything other than 
 
            the spondylitis disease.  The December 1, 1987 report from 
 
            Dr. Olson is fully accepted as being a correct assessment of 
 
            this case.
 
            
 
                 It is found that claimant's work activities at Young 
 
            Radiator Company aggravated his underlying disease.  The 
 
            aggravation produced disability from performing the normal 
 
            duties of his employment commencing August 7, 1987 and 
 
            running through September 28, 1987, a span of 7 and 4/7 
 
            weeks.  The aggravation did not permanently change or alter 
 
            the normal course of the underlying disease process.
 
            
 
                                conclusions of law
 
            
 
                 Claimant has the burden of proving by a preponderance 
 
            of the evidence that he received injuries on November 1, 
 
            1986 and August 10, 1987 which arose out of and in the 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            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 words "arising out of" refer to the cause or source 
 
            of the injury.  McClure v. Union County, 188 N.W.2d 283, 287 
 
            (Iowa 1971); Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 
 
            402, 68 N.W.2d 63 (1955).  The "arising out of" requirement 
 
            is satisfied by showing a causal relationship between the 
 
            employment and the injury.  Sheerin v. Holin Co., 380 N.W.2d 
 
            415, 417 (Iowa 1986).
 
            
 
                 While claimant may have experienced symptoms on 
 
            November 1, 1986, the record fails to establish the 
 
            occurrence of any injury or the onset of any disability on 
 
            that date.  According to the record made in this case, 
 
            claimant is afflicted with the chronic inflammatory disease 
 
            of ankylosing spondylitis which began in November 1986.  It 
 
            is a condition which is worsened or aggravated by heavy 
 
            lifting or activity.  It is a condition which would be 
 
            susceptible to aggravation by work of the type which 
 
            claimant performed at Young Radiator Company.  
 
            
 
                 Aggravation of a preexisting condition is one form of 
 
            compensable injury.  While a claimant is not entitled to 
 
            compensation for the results of a preexisting injury or 
 
            disease, the mere existence at the time of a subsequent 
 
            injury is not a defense.  Rose v. John Deere Ottumwa Works, 
 
            247 Iowa 900, 908, 76 N.W.2d 756, 760-61 (1956).  If the 
 
            claimant had a preexisting condition or disability that is 
 
            aggravated, accelerated, worsened or lighted up so that it 
 
            results in disability, claimant is entitled to recover.  
 
            Nicks v. Davenport Produce Co., 254 Iowa 130, 115 N.W.2d 
 
            812, 815 (1962).
 
            
 
                 Dr. Bashara's opinion that a permanent strain had 
 
            occurred has been found to be incorrect.  It is determined, 
 
            however, that claimant did sustain an injury on August 6, 
 
            1987 in the nature of an aggravation of a preexisting 
 
            condition.  It should be noted that the date of injury is 
 
            established by Dr. Olson's report that claimant needed to be 
 
            off work for evaluation and by the group insurance claim 
 
            applications, all of which stated that claimant's last day 
 
            of work was August 6, 1987.  The first day of disability is 
 
            therefore August 7, 1987.  Under the cumulative trauma rule, 
 
            August 6, 1987 is the correct date of injury, not August 10, 
 
            1987.  McKeever Custom Cabinets v. Smith, 379 N.W.2d 368 
 
            (Iowa 1985).
 
            
 
                 Claimant is entitled to recovery temporary total 
 
            disability compensation running from August 7, 1987 until he 
 
            recuperated from the injury since he did not return to work.  
 
            The record does not contain any express statement from any 
 
            physician regarding when recuperation occurred.  On 
 
            September 4, 1987, Dr. Olson imposed activity restrictions 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            for claimant to follow and those restrictions have not since 
 
            been substantially changed.  By September 28, 1987, a 
 
            diagnosis had been made and it was reported that claimant 
 
            had been given information concerning his disease and also 
 
            on vocational rehabilitation.  His next medical treatment 
 
            was scheduled for three months later (exhibit 9-1, page 2).  
 
            It is determined that September 28, 1987 marks the end of 
 
            claimant's period of recuperation and entitlement to 
 
            temporary total disability compensation.  This computes to 7 
 
            and 4/7 weeks.  The difference between temporary total 
 
            disability compensation and the weekly accident and sickness 
 
            benefit which was paid to claimant is $26.12 per week.  
 
            Claimant is therefore entitled to recover an additional sum 
 
            of $197.75 plus interest pursuant to Code section 85.30 
 
            computed upon $26.12 per week from each week that temporary 
 
            total disability compensation was payable until the date of 
 
            actual payment of the amount which is awarded in this 
 
            decision.
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury of August 6, 
 
            1987 is causally related to the disability on which he now 
 
            bases his claim.  Bodish v. Fischer, Inc., 257 Iowa 516, 133 
 
            N.W.2d 867 (1965).  Lindahl v. L. O. Boggs, 236 Iowa 296, 18 
 
            N.W.2d 607 (1945).  A possibility is insufficient; a 
 
            probability is necessary.  Burt v. John Deere Waterloo 
 
            Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955).  The 
 
            question of causal connection is essentially within the 
 
            domain of expert testimony.  Bradshaw v. Iowa Methodist 
 
            Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). 
 
            
 
                 However, expert medical evidence must be considered 
 
            with all other evidence introduced bearing on the causal 
 
            connection.  Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion 
 
            of experts need not be couched in definite, positive or 
 
            unequivocal language.  Sondag v. Ferris Hardware, 220 N.W.2d 
 
            903 (Iowa 1974).  However, the expert opinion may be 
 
            accepted or rejected, in whole or in part, by the trier of 
 
            fact.  Id. at 907.  Further, the weight to be given to such 
 
            an opinion is for the finder of fact, and that may be 
 
            affected by the completeness of the premise given the expert 
 
            and other surrounding circumstances.  Bodish, 257 Iowa 516, 
 
            133 N.W.2d 867.  See also Musselman v. Central Telephone 
 
            Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
            
 
                 It has previously been found that the only compensable 
 
            injury is a temporary aggravation of a preexisting condition 
 
            and no compensation for permanent disability, either partial 
 
            or total, is warranted.
 
            
 
                 Claimant is entitled to recover medical expenses and 
 
            transportation expenses under Code section 85.27.  He did 
 
            not provide any itemized list of what expenses were claimed 
 
            as had been required by the hearing assignment order.  The 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            undersigned is unable to make any determination with regard 
 
            to the amount of expenses incurred.  It is determined that 
 
            the expenses with Dr. Poncy which were incurred on December 
 
            20, 1986, February 16, 1987, February 17, 1987, March 2, 
 
            1987, and September 8, 1987 are all the responsibility of 
 
            defendants.  Claimant's charges at the University of Iowa 
 
            Hospitals and Clinics incurred between August 3, 1987 and 
 
            September 28, 1987 are all the responsibility of defendants.  
 
            Defendants are likewise responsible for payment of 
 
            claimant's transportation expenses to the University of Iowa 
 
            Hospitals and Clinics between those same dates.  The precise 
 
            amount of the defendants' liability, the credit under 
 
            section 85.38(2), and any remaining unpaid amounts cannot be 
 
            determined from the record made.
 
            
 
                 It is therefore concluded that Clifford D. Jones 
 
            sustained an injury which arose out of and in the course of 
 
            his employment on August 6, 1987.  The nature of the injury 
 
            is a temporary aggravation of the underlying ankylosing 
 
            spondylitis disease process and that as a result thereof he 
 
            is entitled to recover 7 and 4/7 weeks of compensation for 
 
            temporary total disability under the provisions of Code 
 
            section 85.33.  It is further concluded that he is entitled 
 
            to recover medical expenses under the provisions of Code 
 
            section 85.27 arising from that aggravation, but the amount 
 
            thereof cannot be determined.  It is further concluded that 
 
            the employer's credit under Code section 85.38(2) against 
 
            the temporary total disability award is $1,555.39, leaving 
 
            an unpaid balance of $197.75 plus interest.
 
            
 
                 Whether claimant's condition was a result of injury 
 
            from his employment or merely a manifestation of his 
 
            preexisting condition was fairly debatable.  There is no 
 
            basis to award additional compensation under the fourth 
 
            unnumbered paragraph of Code section 86.13.  Dolan v. Aid 
 
            Ins. Co., 431 N.W.2d 790 (Iowa 1988); Kimberly-Clark Corp. 
 
            v. Labor & Industry Review Comm'n, 405 N.W.2d 685 (Wisc. 
 
            App. 1987); Anderson v. Continental Ins. Co., 271 N.W.2d 368 
 
            (Wisc. 1978).
 
            
 
                                      order
 
            
 
                 IT IS THEREFORE ORDERED that defendants pay claimant 
 
            seven and four-sevenths (7 4/7) weeks of compensation for 
 
            temporary total disability at the stipulated rate of two 
 
            hundred thirty-one and 56/100 dollars ($231.56) per week 
 
            payable commencing August 7, 1987.
 
            
 
                 IT IS FURTHER ORDERED that defendants receive credit 
 
            against the award at the rate of two hundred five and 44/100 
 
            dollars ($205.44) per week under the provisions of Iowa Code 
 
            section 85.38(2).  The difference is twenty-six and 12/100 
 
            dollars ($26.12) per week which computes to one hundred 
 
            ninety-seven and 75/100 dollars ($197.75) for the entire 
 
            period.
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
                 IT IS FURTHER ORDERED that defendants pay claimant 
 
            interest on the unpaid twenty-six and 12/100 dollars 
 
            ($26.12) per week pursuant to Code section 85.30 from the 
 
            date each weekly payment came due until the date of actual 
 
            payment.
 
            
 
                 IT IS FURTHER ORDERED that, after receiving credit for 
 
            all group medical payment benefits, defendants pay the 
 
            remaining balance of the expenses incurred at the University 
 
            of Iowa Hospitals and Clinics between August 3, 1987 and 
 
            September 28, 1987.  Defendants shall also pay claimant's 
 
            transportation expenses at the rate of fifty-six and 70/100 
 
            dollars ($56.70) for each time he was required to travel 
 
            from his home to the University of Iowa Hospitals and 
 
            Clinics for medical treatment between the dates of August 3, 
 
            1987 and September 28, 1987.
 
            
 
                 IT IS FURTHER ORDERED that defendants pay the unpaid 
 
            expenses claimant incurred with Dr. Poncy on December 20, 
 
            1986, February 16, 1987, February 17, 1987, March 2, 1987, 
 
            and September 8, 1987, after receiving credit for amounts 
 
            paid by the group medical insurance carrier.
 
            
 
                 IT IS FURTHER ORDERED that the costs in file number 
 
            883553 are assessed against defendants and the costs in file 
 
            number 883552 are assessed against claimant, all pursuant to 
 
            Division of Industrial Services Rule 343-4.33.
 
            
 
                 IT IS FURTHER ORDERED that defendants file claim 
 
            activity reports in file number 883553 as requested by this 
 
            agency pursuant to Division of Industrial Services Rule 
 
            343-3.1.
 
            
 
                 Signed and filed this ______ day of ____________, 1990.
 
            
 
                 
 
            
 
                 
 
                 
 
                                          ______________________________
 
                                          MICHAEL G. TRIER
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Philip F. Miller
 
            Attorney at Law
 
            309 Court Avenue, Suite 200
 
            Des Moines, Iowa  50309
 
            
 
            Mr. Richard G. Book
 
            Attorney at Law
 
            500 Liberty Building
 
            Des Moines, Iowa  50309
 
            
 
            
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            JOSEPH E. MILLER, SR.,        :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :         File No. 883560
 
                                          :
 
            SWIFT INDEPENDENT PACKING     :      A R B I T R A T I O N
 
            COMPANY,                      :
 
                                          :         D E C I S I O N
 
                 Employer,                :
 
                                          :
 
            and                           :
 
                                          :
 
            TRANSPORTATION INSURANCE      :
 
            COMPANY/CNA, c/o CRAWFORD &   :
 
            COMPANY,                      :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding in arbitration brought by Joseph 
 
            E. Miller, Sr., against his former employer, Swift 
 
            Independent Packing Company, and its insurance carrier based 
 
            upon an alleged injury of September 30, 1986.  Claimant 
 
            seeks compensation for permanent total disability and 
 
            payment of medical expenses based upon chronic obstructive 
 
            pulmonary disease.  The primary issues to be determined are 
 
            whether the disease is an injury which arose out of and in 
 
            the course of employment or an occupational disease.  In the 
 
            event of a finding of liability, claimant seeks payment of 
 
            medical expenses and permanent total disability 
 
            compensation.
 
            
 
                 The case was heard and fully submitted at Des Moines, 
 
            Iowa on August 30, 1990.  The record consists of joint 
 
            medical exhibits 1 through 34, except for exhibits 9, 10 and 
 
            21 which were withdrawn.  The record also contains 
 
            claimant's exhibits 1, 5 through 8, 12 and 13.  The record 
 
            also contains testimony from Nicholas Carl, Jack L. 
 
            Thompson, Joelle Miller, Fred W. Miller, Janet S. Miller, 
 
            Joseph E. Miller, Sr., Barbara Cobb, Georgia Flater, Cecelia 
 
            O'Brien and Barry Carl.
 
            
 
                     
 
            
 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
            
 
            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.
 
            
 
                 Joseph E. Miller, Sr., is clearly afflicted with 
 
            moderately severe chronic obstructive pulmonary disease 
 
            which greatly limits his physical capabilities.  The 
 
            controlling question in this case is whether or not that 
 
            disease was proximately caused by exposure to caustic 
 
            chemicals or lye water from his employment.
 
            
 
                 Claimant has a family history of pulmonary problems.  
 
            He smoked for 17 years until 1959.  He then quit smoking for 
 
            several years, but resumed in approximately 1975 through 
 
            1977.  It is further likely that he smoked on occasion at 
 
            work subsequent to 1977, although the extent of any such 
 
            smoking is perceived as having been intermittent and 
 
            minimal.
 
            
 
                 Claimant has received medical treatment for his 
 
            condition from a number of sources.  He has frequently 
 
            asserted his opinion that the condition is related to 
 
            exposure to the fumes from the lye water.  From the record 
 
            made, it is clear that such an exposure did in fact occur.  
 
            It is likewise clear that hot lye water of the type claimant 
 
            used in his employment has the capability of producing 
 
            caustic burns (joint exhibit 1; exhibit 16, exhibit 3, pages 
 
            32-40).
 
            
 
                 Two board-certified internists and pulmonary disease 
 
            specialists have addressed the issue of causation.  They are 
 
            John Frederick Fieselmann, M.D., a pulmonologist at the 
 
            University of Iowa Hospitals, and Tamarisan Narayan, M.D.  
 
            Dr. Narayan is clearly of the opinion that claimant's 
 
            chronic obstructive pulmonary disease is solely related to 
 
            cigarette smoking (exhibit 11, pages 105A-C; exhibit 31, 
 
            pages 9-18 and 23-26).  Dr. Fieselmann expressed the opinion 
 
            that the severity of claimant's disease was so extensive 
 
            that it was unlikely for it to be related only to the 
 
            history of cigarette smoking which he had received.  Based 
 
            upon the absence of some other identifiable cause, Dr. 
 
            Fieselmann attributed claimant's disease to lye water 
 
            exposure (exhibit 33, pages 13-16).  Dr. Fieselmann went on 
 
            to state that, if claimant had smoked after 1959, his 
 
            opinion would not be as strong because the history and 
 
            pulmonary studies are consistent with the results of smoking 
 
            and that claimant's condition could possibly be entirely due 
 
            to smoking (exhibit 33, pages 18-22).  It should be noted 
 
            that the medical history relied upon by Dr. Fieselmann was 
 
            that claimant's symptoms began in 1980.  It is noted that in 
 
            exhibit 2 at page 19, a record dated November 17, 1986, 
 
            claimant gave a history of having shortness of breath on 
 
            exertion for the preceding 15 years.  The history relied 
 
            upon by Dr. Fieselmann has also been found to be incorrect 
 
            in view of claimant's smoking since 1959, even though the 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            
 
            
 
            extent of the smoking was not as great as that which he 
 
            performed prior to 1959.
 
            
 
                 It is noted that both physicians searched medical 
 
            literature, but were unable to find a single reported case 
 
            where lye water had produced the type of disease which 
 
            afflicts this claimant (exhibit 33, page 12; exhibit 31, 
 
            page 18).
 
            
 
                 Axel T. J. Lund, D.O., reported in 1987 that inhaling 
 
            fumes could possibly cause scarring, but he declined to 
 
            express an opinion regarding whether or not claimant's 
 
            pulmonary disease was due to his employment (exhibit 6, page 
 
            88).  The physicians at the Veterans Administration 
 
            Hospitals have not expressed any clear opinion regarding 
 
            causal connection of claimant's pulmonary condition to his 
 
            employment.
 
            
 
                 It is found that the assessment made in this case by 
 
            Dr. Narayan is entitled to more weight than that from Dr. 
 
            Fieselmann because the history relied upon is more accurate.  
 
            The opinion from Dr. Fieselmann was, by his own admission, 
 
            weakened by any smoking the claimant performed after 1959.  
 
            It is found to be possible, though not probable, that the 
 
            claimant's exposure to lye water at his place of employment 
 
            was a substantial factor in producing the chronic 
 
            obstructive pulmonary disease which currently afflicts him.
 
            
 
                                conclusions of law
 
            
 
                 Claimant has the burden of proving by a preponderance 
 
            of the evidence that he received an injury which arose out 
 
            of and in the course of his employment. McDowell v. Town of 
 
            Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. Cent. 
 
            Tel. Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
            The words "arising out of" refer to the cause or source of 
 
            the injury.  McClure v. Union County, 188 N.W.2d 283, 287 
 
            (Iowa 1971); Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 
 
            402, 68 N.W.2d 63 (1955).  The "arising out of" requirement 
 
            is satisfied by showing a causal relationship between the 
 
            employment and the injury.  Sheerin v. Holin Co., 380 N.W.2d 
 
            415, 417 (Iowa 1986).
 
            The supreme court of Iowa in Almquist v. Shenandoah 
 
            Nurseries, 218 Iowa 724, 731-32, 254 N.W. 35, 38 (1934) 
 
            discussed the definition of personal injury in workers' 
 
            compensation cases as follows:
 
            While a personal injury does not include an occupational 
 
            disease under the Workmen's Compensation Act, yet an injury 
 
            to the health may be a personal injury.  [Citations 
 
            omitted.]  Likewise a personal injury includes a disease 
 
            resulting from an injury....The result of changes in the 
 
            human body incident to the general processes of nature do 
 
            not amount to a personal injury.  This must follow, even 
 
            though such natural change may come about because the life 
 
            has been devoted to labor and hard work.  Such result of 
 
            those natural changes does not constitute a personal injury 
 
            even though the same brings about impairment of health or 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            
 
            
 
            the total or partial incapacity of the functions of the 
 
            human body. 
 
               ....
 
                 
 
                 A personal injury, contemplated by the Workmen's 
 
                 Compensation Law, obviously means an injury to the 
 
                 body, the impairment of health, or a disease, not 
 
                 excluded by the act, which comes about, not through the 
 
                 natural building up and tearing down of the human body, 
 
                 but because of a traumatic or other hurt or damage to 
 
                 the health or body of an employee.  [Citations 
 
                 omitted.]  The injury to the human body here 
 
                 contemplated must be something, whether an accident or 
 
                 not, that acts extraneously to the natural processes of 
 
                 nature, and thereby impairs the health, overcomes, 
 
                 injures, interrupts, or destroys some function of the 
 
                 body, or otherwise damages or injures a part or all of 
 
                 the body.
 
            Aggravation of a preexisting condition is one form of 
 
            compensable injury.  While a claimant is not entitled to 
 
            compensation for the results of a preexisting injury or 
 
            disease, the mere existence at the time of a subsequent 
 
            injury is not a defense.  Rose v. John Deere Ottumwa Works, 
 
            247 Iowa 900, 908, 76 N.W.2d 756, 760-61 (1956).  If the 
 
            claimant had a preexisting condition or disability that is 
 
            aggravated, accelerated, worsened or lighted up so that it 
 
            results in disability, claimant is entitled to recover.  
 
            Nicks v. Davenport Produce Co., 254 Iowa 130, 115 N.W.2d 
 
            812, 815 (1962).
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the exposure to caustic 
 
            chemicals and lye water at his place of employment is a 
 
            cause of the chronic obstructive pulmonary disease and 
 
            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 
 
            an opinion is for the finder of fact, and that may be 
 
            affected by the completeness of the premise given the expert 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            
 
            
 
            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 standard of proof is probability based upon a 
 
            preponderance of the evidence.  It is determined that 
 
            claimant has failed to carry that standard of proof.  He has 
 
            shown it to be only possible, rather than probable, that his 
 
            chronic obstructive pulmonary disease was caused or 
 
            permanently aggravated, in whole or in part, by any exposure 
 
            he experienced at his place of employment.
 
            
 
                 It is therefore concluded that claimant is not entitled 
 
            to any recovery in this proceeding.
 
            
 
                                      order
 
            
 
                 IT IS THEREFORE ORDERED that claimant take nothing from 
 
            this proceeding.
 
            
 
                 IT IS FURTHER ORDERED that the costs of this action are 
 
            assessed against the claimant pursuant to rule 343 IAC 4.33.
 
            
 
                 Signed and filed this ______ day of ____________, 1991.
 
            
 
                 
 
            
 
                 
 
                 
 
                                          ______________________________
 
                                          MICHAEL G. TRIER
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Theodore R. Hoglan
 
            Attorney at Law
 
            Fairall Building
 
            34 South First Avenue
 
            Marshalltown, Iowa  50158
 
            
 
            Mr. Michael R. Hoffmann
 
            Attorney at Law
 
            Breakwater Building
 
            3708 75th Street
 
            Des Moines, Iowa  50322
 
            
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                           5-1402.30
 
                           Filed January 18, 1991
 
                           MICHAEL G. TRIER
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            JOSEPH E. MILLER, SR.,   :
 
                      :
 
                 Claimant, :
 
                      :
 
            vs.       :         File No. 883560
 
                      :
 
            SWIFT INDEPENDENT PACKING     :      A R B I T R A T I O N
 
            COMPANY,  :
 
                      :         D E C I S I O N
 
                 Employer, :
 
                      :
 
            and       :
 
                      :
 
            TRANSPORTATION INSURANCE :
 
            COMPANY/CNA, c/o CRAWFORD &   :
 
            COMPANY,  :
 
                      :
 
                 Insurance Carrier,  :
 
                 Defendants.    :
 
            ____________________________________________________________
 
            
 
            5-1402.30
 
            Claimant introduced evidence showing it to be possible, 
 
            though not probable, that his chronic obstructive pulmonary 
 
            disease was caused by his employment.
 
            
 
 
         
 
         Page   1
 
         
 
         
 
         
 
         
 
         before the iowa industrial commissioner
 
         ____________________________________________________________
 
                   :
 
         LESLIE R. REXROAT,  :
 
                   :
 
              Claimant, :
 
                   :
 
         vs.       :
 
                   :      File No. 883562
 
         MIDWEST MFG. CO.,   :
 
                   :        A P P E A L
 
              Employer, :
 
                   :      D E C I S I O N
 
         and       :
 
                   :
 
         SENTRY INSURANCE,   :
 
                   :
 
              Insurance Carrier,  :
 
              Defendants.    :
 
         ___________________________________________________________
 
         
 
          The record, including the transcript of the hearing before the 
 
         deputy and all exhibits admitted into the record, has been 
 
         reviewed de novo on appeal.  The decision of the deputy filed 
 
         December 15, 1989 is affirmed and is adopted as the final agency 
 
         action in this case. 
 
         Claimant shall pay the costs of the appeal, including the 
 
         preparation of the hearing transcript.
 
         Signed and filed this ____ day of December, 1990.
 
         
 
         
 
         
 
         
 
                   ________________________________
 
                            CLAIR R. CRAMER
 
                    ACTING INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Dennis L. Hanssen
 
         Attorney at Law
 
         2700 Grand Ave., Suite 111
 
         Des Moines, Iowa 50312
 
         
 
         Mr. Harry W. Dahl
 
         Attorney at Law
 
         974 73rd St., Suite 16
 
         Des Moines, Iowa 50312
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
            9998
 
            Filed December 21, 1990
 
            BJO
 
            Clair R. Cramer
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            LESLIE R. REXROAT,  :
 
                      :
 
                 Claimant, :
 
                      :
 
            vs.       :
 
                      :      File No. 883562
 
            MIDWEST MFG. CO.,   :
 
                      :        A P P E A L
 
                 Employer, :
 
                      :      D E C I S I O N
 
            and       :
 
                      :
 
            SENTRY INSURANCE,   :
 
                      :
 
                 Insurance Carrier,  :
 
                 Defendants.    :
 
            ___________________________________________________________
 
            
 
            9998
 
            
 
                 Summary affirmance of deputy's decision filed December 
 
            15, 1989.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            STEPHEN DUECKER,              :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :         File No. 883563
 
            MAPLE VALLEY COMMUNITY        :
 
            SCHOOL DISTRICT,              :      A R B I T R A T I O N
 
                                          :
 
                 Employer,                :         D E C I S I O N
 
                                          :
 
            and                           :
 
                                          :
 
            EMPLOYERS MUTUAL CASUALTY     :
 
            CO.,                          :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding in arbitration brought by Stephen 
 
            Duecker against Maple Valley Community School District, his 
 
            alleged employer, and its workers' compensation insurance 
 
            carrier, Employers Mutual Casualty Company, based upon an 
 
            alleged injury of October 9, 1986.  Claimant seeks 
 
            compensation for permanent partial disability and payment of 
 
            medical expenses, including travel expenses.  No claim is 
 
            made for healing period or temporary total disability.  The 
 
            employer seeks credit for amounts paid by the group 
 
            insurance carrier.  Both parties seek to recover the costs 
 
            of the action.  The primary issues to be determined are 
 
            whether Duecker sustained an injury which arose out of and 
 
            in the course of his employment on October 9, 1986 and 
 
            determination of his entitlement to compensation for 
 
            permanent partial disability and benefits under section 
 
            85.27 of The Code.
 
            
 
                 The case was heard at Sioux City, Iowa on February 23, 
 
            1990.  The evidence in the case consists of testimony from 
 
            Stephen Duecker, Darlis Duecker and Mike Minnihan, 
 
            claimant's exhibits 1 through 9 and 11 through 22, and 
 
            defendants' exhibits B, C, E and F.
 
            
 
                                 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.
 
            
 
                 The witnesses who testified are all fully credible.  
 
            Stephen Duecker's description of the manner in which he was 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
            
 
            injured on October 9, 1986 and of his continuing symptoms 
 
            thereafter are accepted as being true and correct.
 
            
 
                 Stephen Duecker is a 42-year-old married man who 
 
            graduated from college in 1971 with a major in physical 
 
            education and a minor in biology.  He was employed at Maple 
 
            Valley Community School from 1971 through 1989 as a junior 
 
            high science teacher.  He also coached wrestling, track and 
 
            football.  Duecker had wrestled and played football while in 
 
            high school and wrestled at the college level.  He injured 
 
            his neck while wrestling in college, but recovered from that 
 
            injury and resumed his former state of good health.
 
            
 
                 Duecker had no problems with his neck until October 9, 
 
            1986 when he injured it while demonstrating the use of the 
 
            blocking sled to the seventh grade portion of the junior 
 
            high football team.  He was filling in at the time for the 
 
            assistant coach who was absent.  After practice, Duecker 
 
            reported the injury to the head junior high football coach, 
 
            Ron Clough.
 
            
 
                 When Duecker's discomfort did not resolve with a few 
 
            days of rest and self-treatment, he sought medical attention 
 
            from John S. Sinnott, D.O., in Ida Grove, Iowa.  Dr. Sinnott 
 
            treated claimant conservatively with medication, 
 
            manipulation and eventually referred him to physical therapy 
 
            (exhibit 2, page 1).  The physical therapy was successful at 
 
            reducing claimant's symptoms, but it did not completely 
 
            resolve them (exhibits 3 and 4).  The physical therapy 
 
            treatment was ended on January 6, 1987.  On January 9, 1987, 
 
            Dr. Sinnott noted that claimant's neck was much better with 
 
            physical therapy.  As indicated by Des Moines orthopaedic 
 
            surgeon Peter D. Wirtz, M.D., claimant reached maximum 
 
            improvement from the injury on January 9, 1987 (exhibit B, 
 
            page 30).
 
            
 
                 Claimant's symptoms have remained substantially 
 
            unchanged since January 9, 1987.  He has constant pain on 
 
            the right side of his neck and right shoulder.  He has 
 
            numbness and tingling in the little and ring fingers of his 
 
            right hand.  The severity of his symptoms varies.  The 
 
            incidents which occurred on September 15, 1987, October 19, 
 
            1987 and April 18, 1989 did not materially change the 
 
            long-term course of claimant's condition.
 
            
 
                 Claimant has been evaluated by two orthopaedic 
 
            surgeons, namely, Peter D. Wirtz, M.D., of Des Moines and 
 
            Richard P. Murphy, M.D., of Omaha, Nebraska.  They are in 
 
            agreement that claimant's diagnosis is degenerative disc 
 
            disease of the cervical spine, sometimes referred to as 
 
            spondylosis (exhibit 6; exhibit 9; exhibit B, page 5; 
 
            exhibit C, page 8).  Dr. Wirtz indicated that the condition 
 
            is a naturally occurring degeneration which can be 
 
            aggravated.  He stated that the condition preexisted 1986 
 
            and was not caused by any traumatic incident (exhibit B, 
 
            pages 6, 16 and 19).  Dr. Wirtz expressed the opinion that 
 
            the blocking sled incident did not permanently aggravate 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            
 
            
 
            claimant's condition and that, while it could have produced 
 
            some changes which could be seen on normal x-rays, it was 
 
            his opinion that it had not done so (exhibit B, pages 17, 
 
            28-36 and 51).  Dr. Wirtz based his opinion upon a medical 
 
            history which included claimant having a complete recovery 
 
            in January of 1987 from the October, 1986 injury (exhibit B, 
 
            pages 28-32, 52 and 53).  Dr. Wirtz felt that claimant had a 
 
            5 percent permanent impairment of the body as a whole based 
 
            upon his degenerative condition, but none from the incident 
 
            with the blocking sled (exhibit 9; exhibit B, page 20).  He 
 
            stated that claimant's continuing symptoms are likewise not 
 
            causally connected with the October 9, 1986 injury and that 
 
            there is no reason to restrict claimant's activities as a 
 
            teacher or coach (exhibit B, pages 20 and 21).
 
            
 
                 Dr. Murphy felt that claimant's continuing symptoms 
 
            were caused by the October 9, 1986 blocking sled incident 
 
            (exhibit 6; exhibit C, page 12).  He based his opinion upon 
 
            the assumption that claimant's symptoms have continued since 
 
            1986 (exhibit C, page 24).  Dr. Murphy rated claimant as 
 
            having a 14 percent permanent impairment of the body as a 
 
            whole, of which approximately 5 percent was due to the fact 
 
            that claimant had symptoms from the degenerative condition 
 
            and the balance to the condition itself (exhibit C, pages 13 
 
            and 26).  Dr. Murphy stated that claimant could work as a 
 
            science teacher with his condition and that he had not 
 
            imposed any activity restrictions.  He stated that claimant 
 
            could, however, expect to experience pain with vigorous use 
 
            of the neck and right upper extremity (exhibit C, pages 13, 
 
            24 and 25).  Dr. Sinnott agreed with the assessment of the 
 
            case made by Dr. Murphy (exhibit 8).  The assessment of this 
 
            case made by Dr. Wirtz is defective because claimant did not 
 
            completely recover from the October 9, 1986 incident and 
 
            claimant had previously been symptom-free.  A close analysis 
 
            of Dr. Wirtz's evidence indicates that he felt claimant 
 
            merely suffered a temporary aggravation of a preexisting 
 
            condition on October 9, 1986 and that it had resolved by 
 
            January 9, 1987.  That evidence is contradicted by 
 
            claimant's credible testimony of continuing symptoms, 
 
            continuing exercises and treatment on his own and continued 
 
            use of the prescribed medication.  The three subsequent 
 
            traumas identified in the record likely aggravated that 
 
            preexisting condition, but are not shown to have altered its 
 
            course.  The October 9, 1986 incident did alter the course 
 
            of the condition as it caused it to become chronically 
 
            symptomatic.
 
            
 
                 Duecker continued to work as a science teacher and 
 
            coach for two years after the injury.  The injury did not 
 
            compel him to leave the teaching profession.  He is 
 
            currently earning at a level somewhat commensurate with what 
 
            he would be earning if he had remained in the teaching 
 
            profession.  Duecker does, however, have limitations upon 
 
            some of his activities.  It would certainly be 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            
 
            
 
            contraindicated for him to wrestle with students whom he was 
 
            coaching or to otherwise place stress upon his neck.  This 
 
            does limit his effectiveness somewhat as a coach.  It limits 
 
            his ability to a small degree to work as a guide and 
 
            naturalist.  It restricts him from many jobs which require 
 
            somewhat vigorous use of the upper extremities.  Many 
 
            teachers leave teaching to enter other occupations.  In view 
 
            of the nature of the injury and its minimal impact upon 
 
            Duecker's ability to work in his customary occupation of 
 
            teaching and his recent occupation as a naturalist, it is 
 
            found that the reduced physical capabilities which have 
 
            resulted from the October 9, 1986 injury are responsible for 
 
            only a 10 percent reduction in Duecker's earning capacity.
 
            
 
                 Duecker's condition is one which is subject to 
 
            recurrent aggravations.  Sometimes the aggravations are a 
 
            result of some exertion or activity, but at other times no 
 
            particular cause or incident is identifiable.  The very 
 
            nature of the condition is such that the severity of the 
 
            symptoms is expected to vary.  There is considerable 
 
            likelihood that, at some point in time, the preexisting 
 
            degenerative condition would have become symptomatic, even 
 
            if the blocking sled incident had never occurred.  The 
 
            injury in this case is an aggravation of a preexisting 
 
            condition.  It accelerated and permanently altered the 
 
            course of the previously latent degenerative condition in 
 
            Duecker's neck.
 
            
 
                 It is found to be probable that the October 9, 1986 
 
            injury was no longer a substantial causative factor for the 
 
            symptoms and expenses of treatment for those symptoms which 
 
            have occurred since January 1, 1988.  Any subsequent 
 
            symptoms, treatment and medical expenses are found to be 
 
            related to recurring temporary aggravations of the original 
 
            preexisting degenerative condition.
 
            
 
                 It is found that claimant's travel to Drs. Wirtz and 
 
            Murphy was conducted for the purpose of evaluations, rather 
 
            than treatment.
 
            
 
                                conclusions of law
 
            
 
                 Claimant has the burden of proving by a preponderance 
 
            of the evidence that he received an injury on October 9, 
 
            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). 
 
            
 
                 "An injury occurs in the course of the employment when 
 
            it is within the period of employment at a place the 
 
            employee may reasonably be, and while he is doing his work 
 
            or something incidental to it."  Cedar Rapids Comm. Sch. 
 
            Dist. v. Cady, 278 N.W.2d 298 (Iowa 1979), McClure v. Union 
 
            et al. Counties, 188 N.W.2d 283 (Iowa 1971); Musselman v. 
 
            Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967). 
 
            
 
                 The words "arising out of" refer to the cause or source 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            
 
            
 
            of the injury.  McClure v. Union County, 188 N.W.2d 283, 287 
 
            (Iowa 1971); Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 
 
            402, 68 N.W.2d 63 (1955).  The "arising out of" requirement 
 
            is satisfied by showing a causal relationship between the 
 
            employment and the injury.  Sheerin v. Holin Co., 380 N.W.2d 
 
            415, 417 (Iowa 1986).
 
            
 
                 It was clearly part of the recognized, authorized work 
 
            for coaches at Maple Valley Community School District to 
 
            fill in for each other.  Since claimant was engaged in the 
 
            activity of filling in for Coach Minnihan, he was clearly 
 
            acting in the course of his employment at the time the 
 
            injury with the blocking sled occurred.
 
            
 
                 The supreme court of Iowa in Almquist v. Shenandoah 
 
            Nurseries, 218 Iowa 724, 731-32, 254 N.W. 35, 38 (1934) 
 
            discussed the definition of personal injury in workers' 
 
            compensation cases as follows:
 
            
 
                 While a personal injury does not include an 
 
                 occupational disease under the Workmen's 
 
                 Compensation Act, yet an injury to the health may 
 
                 be a personal injury.  [Citations omitted.]  
 
                 Likewise a personal injury includes a disease 
 
                 resulting from an injury....The result of changes 
 
                 in the human body incident to the general 
 
                 processes of nature do not amount to a personal 
 
                 injury.  This must follow, even though such 
 
                 natural change may come about because the life has 
 
                 been devoted to labor and hard work.  Such result 
 
                 of those natural changes does not constitute a 
 
                 personal injury even though the same brings about 
 
                 impairment of health or the total or partial 
 
                 incapacity of the functions of the human body. 
 
            
 
                    ....
 
                 
 
                 A personal injury, contemplated by the Workmen's 
 
                 Compensation Law, obviously means an injury to the 
 
                 body, the impairment of health, or a disease, not 
 
                 excluded by the act, which comes about, not through the 
 
                 natural building up and tearing down of the human body, 
 
                 but because of a traumatic or other hurt or damage to 
 
                 the health or body of an employee.  [Citations 
 
                 omitted.]  The injury to the human body here 
 
                 contemplated must be something, whether an accident or 
 
                 not, that acts extraneously to the natural processes of 
 
                 nature, and thereby impairs the health, overcomes, 
 
                 injures, interrupts, or destroys some function of the 
 
                 body, or otherwise damages or injures a part or all of 
 
                 the body.
 
            
 
                 Aggravation of a preexisting condition is one form of 
 
            compensable injury.  While a claimant is not entitled to 
 
            compensation for the results of a preexisting injury or 
 
            disease, the mere existence at the time of a subsequent 
 
            injury is not a defense.  Rose v. John Deere Ottumwa Works, 
 
            247 Iowa 900, 908, 76 N.W.2d 756, 760-61 (1956).  If the 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            
 
            
 
            claimant had a preexisting condition or disability that is 
 
            aggravated, accelerated, worsened or lighted up so that it 
 
            results in disability, claimant is entitled to recover.  
 
            Nicks v. Davenport Produce Co., 254 Iowa 130, 115 N.W.2d 
 
            812, 815 (1962).
 
            
 
                 The injury which Stephen Duecker sustained was clearly 
 
            an aggravation of a preexisting condition.  In view of such, 
 
            it is concluded that he did sustain an injury on October 9, 
 
            1986 which arose out of and in the course of his employment 
 
            with Maple Valley Community School District.
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury of October 9, 
 
            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 
 
            Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). 
 
            
 
                 However, expert medical evidence must be considered 
 
            with all other evidence introduced bearing on the causal 
 
            connection.  Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion 
 
            of experts need not be couched in definite, positive or 
 
            unequivocal language.  Sondag v. Ferris Hardware, 220 N.W.2d 
 
            903 (Iowa 1974).  However, the expert opinion may be 
 
            accepted or rejected, in whole or in part, by the trier of 
 
            fact.  Id. at 907.  Further, the weight to be given to such 
 
            an opinion is for the finder of fact, and that may be 
 
            affected by the completeness of the premise given the expert 
 
            and other surrounding circumstances.  Bodish, 257 Iowa 516, 
 
            133 N.W.2d 867.  See also Musselman v. Central Telephone 
 
            Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
            
 
                 An employee is not entitled to recover for the results 
 
            of a preexisting injury or disease but can recover for an 
 
            aggravation thereof which resulted in the disability found 
 
            to exist.  Olson v. Goodyear Service Stores, 255 Iowa 1112, 
 
            125 N.W.2d 251 (1963); Yeager v. Firestone Tire & Rubber 
 
            Co., 253 Iowa 369, 112 N.W.2d 299 (1961); Ziegler v. United 
 
            States Gypsum Co., 252 Iowa 613, 106 N.W.2d 591 (1960).  See 
 
            also Barz v. Oler, 257 Iowa 508, 133 N.W.2d 704 (1965); 
 
            Almquist v. Shenandoah Nurseries, 218 Iowa 724, 254 N.W. 35 
 
            (1934).
 
            
 
                 If claimant has an impairment to the body as a whole, 
 
            an industrial disability has been sustained.  Industrial 
 
            disability was defined in Diederich v. Tri-City Railway Co., 
 
            219 Iowa 587, 593, 258 N.W.2d 899, 902 (1935) as follows: 
 
            "It is therefore plain that the legislature intended the 
 
            term `disability' to mean `industrial disability' or loss of 
 
            earning capacity and not a mere `functional disability' to 
 
            be computed in the terms of percentages of the total 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            
 
            
 
            physical and mental ability of a normal man."
 
            
 
                 Functional impairment is an element to be considered in 
 
            determining industrial disability which is the reduction of 
 
            earning capacity, but consideration must also be given to 
 
            the injured employee's age, education, qualifications, 
 
            experience and inability to engage in employment for which 
 
            he is fitted.  Olson v. Goodyear Service Stores, 255 Iowa 
 
            1112, 1121, 125 N.W.2d 251, 257 (1963).
 
            
 
                 Industrial disability or loss of earning capacity is a 
 
            concept that is quite similar to impairment of earning 
 
            capacity, an element of damage in a tort case.  Impairment 
 
            of physical capacity creates an inference of lessened 
 
            earning capacity.  The basic element to be determined, 
 
            however, is the reduction in value of the general earning 
 
            capacity of the person, rather than the loss of wages or 
 
            earnings in a specific occupation.  Post-injury earnings 
 
            create a presumption of earning capacity.  The earnings are 
 
            not synonymous with earning capacity and the presumption may 
 
            be rebutted by evidence showing the earnings to be an 
 
            unreliable indicator.  Carradus v. Lange, 203 N.W.2d 565 
 
            (Iowa 1973); Holmquist v. Volkswagon of America, Inc., 261 
 
            N.W.2d 516 (Iowa App. 1977) A.L.R.3d 143; Michael v. 
 
            Harrison County, 34th Biennial Report, 218 (1979); 2 Larson 
 
            Workmen's Compensation Law, sections 57.21 and 57.31.
 
            
 
                 The evidence in this case shows the long-term effects 
 
            of the injury to have had only a small impact on claimant's 
 
            earning capacity.  A 10 percent reduction of earning 
 
            capacity entitles claimant to recover 50 weeks of 
 
            compensation under the provisions of Iowa Code section 
 
            85.34(2)(u).  The normal commencement date for injuries 
 
            producing permanent partial disability is the end of the 
 
            healing period.  In this case, however, there was no loss of 
 
            time and no healing period as such, despite the fact that 
 
            claimant was recuperating until January 9, 1987.  There is 
 
            precedent to the effect that compensation for permanent 
 
            partial disability does not become payable until it is 
 
            discoverable, in the exercise of reasonable diligence, that 
 
            a complete recovery from the injury is unlikely and that 
 
            some degree of permanency will result.  Schwarz v. Des 
 
            Moines Metro. Transit Auth., file number 664461 (App. Decn., 
 
            November 25, 1986).  The commissioner recently reversed that 
 
            precedent, however, and held that, when there is no healing 
 
            period, permanent partial disability compensation, and 
 
            interest thereon, is payable commencing on the date of 
 
            injury.  Brincks v. Case Power & Equipment, file number 
 
            843233 (App. Decn., April 18, 1990).  Claimant's entitlement 
 
            to recover weekly compensation for permanent partial 
 
            disability therefore commences on October 9, 1986 and draws 
 
            interest pursuant to Iowa Code section 85.30 accordingly.
 
            
 
                 With regard to medical expenses under section 85.27, 
 
            claimant is entitled to recover for the office visits with 
 
            Dr. Sinnott on October 13, 1986, October 21, 1986, November 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            
 
            
 
            18, 1986 and January 9, 1987 in the total amount of $66.00 
 
            (exhibit 16).  Claimant is entitled to recover the expenses 
 
            for physical therapy at Horn Memorial Hospital in the total 
 
            amount of $336.00 (exhibit 16, pages 4 and 5).  According to 
 
            exhibit 22, all of claimant's prescriptions for Fiorinal 
 
            were obtained prior to January 1, 1988.  Accordingly, based 
 
            upon the previously-made findings of fact, defendants are 
 
            responsible for the entire cost of the Fiorinal in the 
 
            amount of $639.60.  The record does not indicate a precise 
 
            prescription or recommendation from a physician for 
 
            Ibuprofen, a moist heating pad or an orthopaedic pillow.  
 
            Those claims therefore are not allowed.  Claimant is 
 
            entitled to recover mileage at the rate of $.21 per mile 
 
            (Division of Industrial Services Rule 343-8.1).  When the 
 
            travel to Drs. Wirtz and Murphy is excluded, the balance is 
 
            1,260 miles which entitles claimant to receive $264.60.  
 
            Claimant's total recovery under Iowa Code section 85.27 is 
 
            therefore $1,306.20.  Defendants are entitled to credit 
 
            against that amount for sums paid by the group carrier in 
 
            the amount of $51.20.  The balance payable to claimant is 
 
            therefore $1,255.00.
 
            
 
                 Claimant also seeks to recover costs pursuant to 
 
            Division of Industrial Services Rule 343-4.33.  He is 
 
            entitled to recover the filing fee in the amount of $65.00, 
 
            transcription fees for the deposition of Dr. Murphy since it 
 
            was received into evidence in the amount of $86.24 and an 
 
            expert witness fee for Dr. Murphy in the amount of $150.00 
 
            as limited by Iowa Code section 622.72.  The total costs 
 
            recoverable by claimant are therefore $301.24.
 
            
 
                                      order
 
            
 
                 IT IS THEREFORE ORDERED that defendants pay Stephen 
 
            Duecker fifty (50) weeks of compensation for permanent 
 
            partial disability at the stipulated rate of three hundred 
 
            thirty-five and 69/100 dollars ($335.69) per week payable 
 
            commencing October 9, 1986.
 
            
 
                 IT IS FURTHER ORDERED that defendants pay Stephen 
 
            Duecker interest pursuant to section 85.30 of The Code at 
 
            the rate of ten percent (10%) per annum from the date each 
 
            weekly payment came due until the date of actual payment.
 
            
 
                 IT IS FURTHER ORDERED that defendants pay Stephen 
 
            Duecker under the provisions of Iowa Code section 85.27 the 
 
            sum of one thousand two hundred fifty-five and 00/100 
 
            dollars ($1,255.00).
 
            
 
                 IT IS FURTHER ORDERED that defendants pay the costs of 
 
            this action to claimant in the amount of three hundred one 
 
            and 24/100 dollars ($301.24) pursuant to Division of 
 
            Industrial Services Rule 343-4.33.
 
            
 
                 IT IS FURTHER ORDERED that defendants file claim 
 
            activity reports as requested by this agency pursuant to 
 
            Division of Industrial Services Rule 343-3.1.
 
            
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            
 
            
 
                 Signed and filed this ______ day of ____________, 1990.
 
            
 
                 
 
            
 
                 
 
                 
 
                                          ______________________________
 
                                          MICHAEL G. TRIER
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Theodore E. Karpuk
 
            Attorney at Law
 
            400 First National Bank Bldg.
 
            P.O. Box 1768
 
            Sioux City, Iowa  51102
 
            
 
            Mr. Frank T. Harrison
 
            Attorney at Law
 
            Suite 111, Terrace Center
 
            2700 Grand Avenue
 
            Des Moines, Iowa  50312
 
            
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                               5-1402.30, 5-1803, 5-2206
 
                                               Filed August 2, 1990
 
                                               MICHAEL G. TRIER
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            STEPHEN DUECKER,              :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :         File No. 883563
 
            MAPLE VALLEY COMMUNITY        :
 
            SCHOOL DISTRICT,              :      A R B I T R A T I O N
 
                                          :
 
                 Employer,                :         D E C I S I O N
 
                                          :
 
            and                           :
 
                                          :
 
            EMPLOYERS MUTUAL CASUALTY     :
 
            CO.,                          :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
            5-1402.30, 5-1803, 5-2206
 
            Claimant, a school teacher and coach who aggravated a 
 
            preexisting but latent degenerative condition, awarded 10 
 
            percent permanent partial disability and medical expenses.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
		                      :
 
            NANCY SANDERSON,	      :
 
		                      :
 
                 Claimant,	      :
 
		                      :
 
		            vs.       :
 
                		      :   File Nos. 883564/910527
 
            K-PRODUCTS, INC.,         :
 
		                      :          A P P E A L
 
                 Employer,	      :
 
		                      :        D E C I S I O N
 
		            and       :
 
                		      :
 
            GENERAL CASUALTY INSURANCE,:
 
		                      :
 
                 Insurance Carrier,   :
 
                      		      :
 
		            and       :
 
                		      :
 
            SECOND INJURY FUND,       :
 
                      		      :
 
                 Defendants.          :
 
            ___________________________________________________________
 
            
 
            The record, including the transcript of the hearing before 
 
            the deputy and all exhibits admitted into the record, has 
 
            been reviewed de novo on appeal.  The decision of the deputy 
 
            filed January 18, 1991 is affirmed and is adopted as the 
 
            final agency action in this case. 
 
            Defendants, K-Products and General Casualty Insurance, shall 
 
            pay the costs of the appeal, including the preparation of 
 
            the hearing transcript.
 
            Signed and filed this ____ day of October, 1991.
 
            
 
            
 
            
 
            
 
                      ________________________________
 
                               BYRON K. ORTON
 
                           INDUSTRIAL COMMISSIONER
 
            
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            Copies To:
 
            
 
            Mr. Theodore E. Karpuk
 
            Attorney at Law
 
            First National Bank Bldg., Ste 400
 
            P.O. Box 1786
 
            Sioux City, Iowa 51102
 
            
 
            Mr. Frank T. Harrison
 
            Attorney at Law
 
            2700 Grand Ave., Ste 111
 
            Des Moines, Iowa 50312
 
            
 
            Mr. Charles S. Lavorato
 
            Assistant Attorney General
 
            Tort Claims Division
 
            Hoover State Office Bldg.
 
            Des Moines, Iowa 50319
 
            
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
            9998
 
            Filed October 21, 1991
 
            Byron K. Orton
 
            DRR
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
		                      :
 
            NANCY SANDERSON,          :
 
		                      :
 
                 Claimant, 	      :
 
		                      :
 
		            vs.       :
 
                 		      :   File Nos. 883564/910527
 
            K-PRODUCTS, INC.,         :
 
		                      :          A P P E A L
 
                 Employer,	      :
 
		                      :        D E C I S I O N
 
		            and       :
 
                		      :
 
            GENERAL CASUALTY INSURANCE,:
 
		                      :
 
                 Insurance Carrier,   :
 
                      		      :
 
 		            and       :
 
                 		      :
 
            SECOND INJURY FUND,       :
 
                      		      :
 
                 Defendants.          :
 
            ___________________________________________________________
 
            
 
            9998
 
            
 
                 Summary affirmance of deputy's decision filed January 
 
            18, 1991.
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                           1803; 2502; 2901; 2907
 
                           Filed January 18, 1991
 
                           DAVID RASEY
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            NANCY SANDERSON,              :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :         File Nos. 883564
 
                                          :                   910527
 
            K-PRODUCTS, INC.,             :
 
                                          :      A R B I T R A T I O N
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            GENERAL CASUALTY INSURANCE,   :
 
                                          :
 
                 Insurance Carrier,       :
 
                                          :
 
            and                           :
 
                                          :
 
            SECOND INJURY FUND,           :
 
                                          :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
            1803
 
            Thirty-three-year-old high school graduate, intelligent, was 
 
            given restrictions against repetitive motion of the arms 
 
            after suffering carpal tunnel syndrome, thoracic outlet 
 
            syndrome, and probable herniated cervical disc.  Entire work 
 
            history was with defendant employer as seamstress.  Awarded 
 
            25 percent body as a whole.
 
            
 
            2502; 2901; 2907
 
            Claimant was not awarded charges of evaluating physician 
 
            since 85.39 was not listed as an issue on hearing assignment 
 
            order.  However, $150 of his report fee was assessed as 
 
            costs under 622.72.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            THERESA ROBINSON,             :
 
                                          :
 
                 Claimant,                :
 
                                          :        File No. 883571
 
            vs.                           :
 
                                          :
 
            WELLS MANUFACTURING           :     A R B I T R A T I O N
 
            CORPORATION,                  :
 
                                          :        D E C I S I O N
 
                 Employer,                :
 
                                          :
 
            and                           :
 
                                          :
 
            CNA INSURANCE COMPANIES,      :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This is a proceeding in arbitration wherein the 
 
            claimant seeks compensation for permanent partial disability 
 
            benefits as a result of an alleged injury occurring on 
 
            December 17, 1986.  This case was heard in Des Moines, Iowa, 
 
            on July 17, 1990.  The record in the proceeding consists of 
 
            the testimony of the claimant, Cecil Samuel, Mike Duszynski, 
 
            Dale Thomas, and Kathryn Crump; and claimant's Exhibits 1 
 
            through 10, and defendants' Exhibits A through E.
 
            
 
                                      issues
 
            
 
                 The issues for resolution are:
 
            
 
                 1.  Whether claimant's alleged December 17, 1986 injury 
 
            arose out of and in the course of her employment;
 
            
 
                 2.  Whether claimant's alleged disability is causally 
 
            connected to her December 17, 1986 injury;
 
            
 
                 3.  The nature and extent of claimant's disability and 
 
            entitlement to disability benefits; and,
 
            
 
                 4.  Who is responsible for the payment of costs.
 
            
 
                     
 
            
 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            findings of fact
 
            
 
                 The undersigned deputy having heard the testimony and 
 
            considered all the evidence, finds that:
 
            
 
                 Claimant is 43 years old and prior to beginning work 
 
            for defendant employer on March 13 or 14, 1986, she worked 
 
            as a manager and bookkeeper for a recreational resort 
 
            campground and recreational vehicle park.  Her work history 
 
            prior to that time is not important in this decision.
 
            
 
                 Claimant's job with defendant employer at the time of 
 
            her alleged December 17, 1986 injury involved packaging 
 
            smaller parts which were sent to K-Mart and Sears, lifting 
 
            light items to a conveyor belt and building boxes.  The 
 
            performance of her job required a certain amount of standing 
 
            and twisting.  This basically was not heavy work.
 
            
 
                 Claimant stated she developed back pain when she lifted 
 
            a box of cables.  These boxes contained 5 to 100 cables 
 
            depending on the size of the cables.  Claimant continued 
 
            working and the pain became worse around Christmas 1986.  
 
            Claimant did not work the usual company inventory taking 
 
            which usually occurred after the Christmas break.  Claimant 
 
            contends she did not have any severe back or other pains 
 
            prior to December 17, 1986 but did acknowledge a bowling 
 
            incident in September 1986 which resulted in claimant having 
 
            trouble standing.  Claimant downplayed this indicating she 
 
            had a hip-muscle injury even though the medical records 
 
            (Defendants' Exhibit A, page 13) indicates low back strain.  
 
            Claimant did eventually acknowledge her leg went numb.  
 
            
 
                 Claimant did not recall any specific injury on December 
 
            17, 1986.  Claimant later indicated she couldn't say for 
 
            sure that she picked up something at work to cause her 
 
            injury.  Contrary to claimant's original claim that she 
 
            picked up a box of cables, she seemed to indicate on 
 
            cross-examination that she incurred a cumulative injury.  
 
            Claimant was off work various periods between December 26, 
 
            1986 through June 11, 1987, amounting to 17.3 sporadic 
 
            weeks.  Claimant contends this was healing period and 
 
            defendants contend that claimant did not have an injury that 
 
            arose out of and in the course of her employment on December 
 
            17, 1986, but did pay 17.3 weeks of benefits to claimant 
 
            during the above period on a voluntary basis.
 
            
 
                 Claimant testified that Stephen Jewett, M.D., and John 
 
            T. Bakody, M.D., told her to find different employment.  
 
            Claimant quit work with defendant employer in December 1987, 
 
            contending Marc E. Hines, M.D., suggested she quit (Cl. Ex. 
 
            4, p. 7).  Defendant employer previously had moved claimant 
 
            to a very light duty detail job within the company which was 
 
            one of the company's least physically demanding jobs.
 
            
 
                 Claimant was making $208 per week on the date of her 
 
            alleged injury.
 
            
 
                 Claimant is currently working for Continental 
 
            Recreation USA (CRUSA), Tama, Iowa, as a resort and 
 
            campground manager, having begun with this company on March 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            12, 1990.  This is a seasonal job.  This job involves mainly 
 
            public relations, visiting with people, planning activities, 
 
            etc.  There is no heavy work or maintenance involved except 
 
            for an occasional trimming around the premises.  Claimant is 
 
            currently making $400 per week.  Prior to this current job, 
 
            claimant worked at Old McDonald's Farm, a private 
 
            campground, from May 26, 1988 through October 16, 1988, when 
 
            they closed for the season.  It never reopened the following 
 
            year.
 
            
 
                 Claimant and her live-in boyfriend, Mr. Samuel, 
 
            testified at length as to the many activities claimant can't 
 
            do now that she did before the alleged December 17, 1986 
 
            injury.  These activities involved extensive snowmobiling, 
 
            and fishing in a boat at Lake Rathbun, which lake he 
 
            described as a rough lake.  Mr. Samuel indicated that he and 
 
            the claimant fished 400 to 600 hours in 1986.
 
            
 
                 Although claimant basically discounted her medical 
 
            problems prior to December 17, 1986, her medical records 
 
            reflect claimant has had shoulder and upper back strain and 
 
            cervical problems in 1980 and continuing to various extents 
 
            up to and beyond the date of her alleged December 17, 1986 
 
            injury.  Of particular note is the notation on September 18, 
 
            1986 indicating low back strain.  On December 31, 1986, 
 
            claimant's records show she has an acute myofascitis.  
 
            Claimant contends this condition which continues is work 
 
            related and so indicated to the medical personnel she 
 
            eventually saw after December 17, 1986.
 
            
 
                 It does not appear that any doctor she saw after 
 
            December 1986, particularly anyone who rendered a report or 
 
            impairment rating, knew of her bowling incident in September 
 
            1986.  Whenever claimant gave a history to the doctor, it 
 
            was void of any information concerning this event or any 
 
            medical attention prior to that time.  Claimant appeared to 
 
            assume in relating her history that her alleged injuries 
 
            occurred at work while lifting too much.  Claimant does not 
 
            assume nor does she allow her medical doctors to determine 
 
            what effect, if any, her total medical history may have on 
 
            her current condition and, particularly, the bowling 
 
            incident that happened in September 1986.
 
            
 
                 Claimant had a normal lumbar CT scan in March 1987 and 
 
            shortly thereafter a normal myelogram.  Mercy medical 
 
            reports indicate on April 28, 1987, "Impression: normal 
 
            myelogram with light disc bulge L4-5." (Def. Ex. A, p. 23)  
 
            Claimant also eventually had an EMG which was basically 
 
            normal.
 
            
 
     
 
            
 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            Claimant went to University of Iowa Hospitals and Clinics in 
 
            August 1989.  In their summary (Jt. Ex. A, p. 2), they 
 
            state:
 
            
 
                 [It] was difficult to get an accurate testing of 
 
                 your true physical strength and endurance, as we 
 
                 did not feel that we had a full effort from you.  
 
                 However, your medical examination indicates that 
 
                 you have essentially totally healed from the 
 
                 injury sustained in December of 1986.  While you 
 
                 do have continuing chronic pain, we feel that your 
 
                 back is stable and solid and that no surgery or 
 
                 other intervention is indicated at this time.  You 
 
                 will likely continue to experience some pain, but 
 
                 you will not be harming your back by increasing 
 
                 your activities.
 
            
 
            (Jt. Ex. A, p. 25)
 
            
 
                 It seems obvious that the University of Iowa Hospitals 
 
            and Clinic has no idea of claimant's September 1986 bowling 
 
            injury or incident.  They presumed what claimant told them, 
 
            namely, she was injured lifting some battery cables in 
 
            December 1986 was a correct history.  Defendants' Exhibit A, 
 
            page 11 also reflects that claimant did not put forth her 
 
            best effort.  Dr. Bakody, in his May 11, 1987 report (Cl. 
 
            Ex. 5, p. 9) causally connects claimant's condition to 
 
            claimant's December 1986 incident but the undersigned finds 
 
            Dr. Bakody had no prior medical history, as reflected in 
 
            defendant's Exhibit A, p. 13, 14 and 15, and relied only on 
 
            what claimant told him.  If claimant only gave Dr. Bakody 
 
            Exhibit 3, page 16 and 17, this would have left out an 
 
            important part of claimant's medical history.  The 
 
            undersigned likewise is concerned about part of the exhibits 
 
            provided by the claimant.  At the time of the hearing, the 
 
            parties basically indicated there was little duplication of 
 
            exhibits.  It appears defendants' Exhibit A, pages 13, 14 
 
            and 15 are the same as claimant's Exhibit 3, pages 16 and 
 
            17, except claimant left out an important page reflecting 
 
            the period of June 6, 1980 through December 31, 1986.  
 
            Hopefully, the missing page was unintentional but this fact 
 
            is disturbing to the undersigned.
 
            
 
                 It appears claimant has a bulging lumbar disc problem.  
 
            Although it appears to the undersigned that claimant is 
 
            exaggerating the limitation of her activities, claimant has 
 
            the burden of proof by the preponderance of the evidence to 
 
            show a causal connection between her alleged condition and 
 
            the alleged December 17, 1986 injury.
 
            
 
                 Claimant quit her job with defendant employer.  Her 
 
            contention is that this was because of her doctor's advice.  
 
            The undersigned finds that claimant voluntarily quit her job 
 
            and that defendant employer did everything to accommodate 
 
            claimant because of her physical complaints.  The 
 
            undersigned also finds that the job claimant had, 
 
            particularly at the time she quit her job, complied with and 
 
            accommodated her physical problems and that claimant quit 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            her job for reasons other than circumstances at her 
 
            employment.  This finding is further supported by 
 
            defendants' Exhibit A, page 11, in which Dr. Hines commented 
 
            in a January 8, 1988 report that:  "She apparently does not 
 
            have to work, and therefore even though she would like to 
 
            she is not going to return to work at this time."  (Def. Ex. 
 
            A, p. 11)
 
            
 
                 There is a dispute whether claimant had ridden her 
 
            motorcycle in 1987, or at any time since December 1986, and, 
 
            also, whether claimant went boating in rough waters in 1987.  
 
            Claimant could not recall whether she boated and contends 
 
            she did not go motorcycle riding in June of 1987, but has 
 
            tried riding off and on since December 1986.  The 
 
            undersigned notices Exhibit E, page 27, dated June 11, 1987, 
 
            in which Dr. Jewett said claimant was unable to ride a 
 
            motorcycle or dance.  Claimant could not recall riding a 
 
            snowmobile in January 1987 but has ridden it since her 
 
            alleged December 1986 injury.  It appears claimant and her 
 
            boyfriend go to the Black Hills in South Dakota every year 
 
            for seven days to ride their snowmobiles as a member of a 
 
            snowmobile club.
 
            
 
                 There is considerable testimony concerning the amount 
 
            of weight claimant may have to lift and whether help is 
 
            available at her place of employment.  The undersigned finds 
 
            that claimant exaggerated as to the extent of weight and 
 
            hours of lifting various weights, which information she gave 
 
            to her doctor who used it to render an opinion.
 
            
 
                 Mike Duszynski, claimant's supervisor with defendant 
 
            employer, is familiar with claimant and her job.  He 
 
            recalled claimant being put on light duty due to her bowling 
 
            injury.  He said claimant did not report a December 1986 
 
            injury until 1987 and understood claimant contends she hurt 
 
            herself after Christmas 1986.
 
            
 
                 Dale Thomas recalled claimant being injured in 
 
            September 1986 while bowling.  He said claimant came to work 
 
            bent over and indicated she hurt her low back and was put on 
 
            light duty restrictions.  He also acknowledged that claimant 
 
            was put on light duty in December 1986 and early 1987.  He 
 
            said claimant was not aware that claimant hurt herself 
 
            moving a box of cables until he heard claimant testify in 
 
            court.
 
            
 
                 Kathryn Crump, personnel insurance clerk for defendant 
 
            employer who handles workers' compensation claims, 
 
            investigated claimant's claim.  She said she was never given 
 
            a definite date by claimant as to claimant's alleged 
 
            December 1986 injury.  She said claimant told her on more 
 
            than one occasion that she injured her low back while 
 
            bowling in September 1986.  Ms. Crump said she observed 
 
            claimant walking without problems to the warehouse and then 
 
            after entering the first door, she would walk as if she were 
 
            hurt.
 
            
 
                 Dr. Hines testified by way of deposition on September 
 
            16, 1989 (Cl. Ex. 10).  The undersigned finds that claimant 
 
            gave an inaccurate history to Dr. Hines and, also, an 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            inaccurate job description.  Dr. Hines seemed to have no 
 
            knowledge of claimant's pre-December 1986 injury or medical 
 
            history involving her back.  His conclusions regarding 
 
            claimant's alleged injury and working conditions were 
 
            affected by claimant's contention she was lifting objects 
 
            weighing 100 pounds for about eight hours a day.  It is 
 
            obvious the doctor thought claimant was doing heavy manual 
 
            labor  (Cl. Ex. 10, pp. 4 & 11).  Dr. Hines specifically 
 
            testified that claimant told him she had no prior back 
 
            complaints (Cl. Ex. 10, p. 26 & 27)
 
            
 
                 The undersigned finds that the University of Iowa 
 
            Hospitals and Clinics did not have a complete and accurate 
 
            medical history of claimant.  They could not establish 
 
            causal connection of claimant's condition to her alleged 
 
            injuries.  Additionally, they made it clear that claimant 
 
            was not giving her best effort.  A true evaluation was not 
 
            obtained.
 
            
 
                 The doctors could not find the cause of claimant's 
 
            problems although they are not denying she does not have 
 
            pain.  Claimant has had pain over the years.  There is no 
 
            concrete evidence that claimant injured herself on December 
 
            17, 1986, or that she incurred an injury that substantially 
 
            accelerated or worsened a preexisting condition.  Claimant 
 
            has been in many physical activities including but not 
 
            necessarily limited to motorcycling, snowmobiling, 
 
            bicycling, dancing, and fishing in a boat on rough waters.
 
            
 
                 Claimant has the burden of proof that her alleged 
 
            injury on December 17, 1986 arose out of and in the course 
 
            of her employment.  The undersigned finds claimant has 
 
            failed to carry her burden.
 
            
 
                 Claimant has an obligation to show that her alleged 
 
            disabilities are causally connected to her alleged December 
 
            17, 1986 injury.  The undersigned finds that claimant has 
 
            failed to prove any causal connection.
 
            
 
                 The undersigned further finds that any preexisting back 
 
            condition that claimant may have had prior to December 17, 
 
            1986 was not materially aggravated, accelerated, worsened or 
 
            lightened up as to cause claimant's alleged disability or 
 
            impairment.
 
            
 
                 The undersigned further finds that claimant did not 
 
            give an accurate and credible history to the medical 
 
            personnel who performed services on her, nor did she give a 
 
            correct and credible job description resulting in the 
 
            medical opinions and impairment ratings of the doctors being 
 
            tainted and not based on accurate information.
 
            
 
                                conclusions of law
 
            
 
                 Claimant has the burden of proving by a preponderance 
 
            of the evidence that she received an injury on December 17, 
 
            1986 which arose out of and in the course of her employment.  
 
            McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); 
 
            Musselman v. Central Telephone Co., 261 Iowa 352, 154 
 
            N.W.2d 128 (1967). 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury of December 
 
            17, 1986 is causally related to the disability on which she 
 
            now bases her claim.  Bodish v. Fischer, Inc., 257 Iowa 516, 
 
            133 N.W.2d 867 (1965).  Lindahl v. L. O. Boggs, 236 Iowa 
 
            296, 18 N.W.2d 607 (1945).  A possibility is insufficient; a 
 
            probability is necessary.  Burt v. John Deere Waterloo 
 
            Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955).  The 
 
            question of causal connection is essentially within the 
 
            domain of expert testimony.  Bradshaw v. Iowa Methodist 
 
            Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). 
 
            
 
                 However, expert medical evidence must be considered 
 
            with all other evidence introduced bearing on the causal 
 
            connection.  Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion 
 
            of experts need not be couched in definite, positive or 
 
            unequivocal language.  Sondag v. Ferris Hardware, 220 N.W.2d 
 
            903 (Iowa 1974).  However, the expert opinion may be 
 
            accepted or rejected, in whole or in part, by the trier of 
 
            fact.  Id. at 907.  Further, the weight to be given to such 
 
            an opinion is for the finder of fact, and that may be 
 
            affected by the completeness of the premise given the expert 
 
            and other surrounding circumstances.  Bodish, 257 Iowa 516, 
 
            133 N.W.2d 867.  See also Musselman, 261 Iowa 352, 154 
 
            N.W.2d 128.
 
            
 
                 While a claimant is not entitled to compensation for 
 
            the results of a preexisting injury or disease, the mere 
 
            existence at the time of a subsequent injury is not a 
 
            defense.  Rose v. John Deere Ottumwa Works, 247 Iowa 900, 
 
            908, 76 N.W.2d 756, 760-61 (1956).  If the claimant had a 
 
            preexisting condition or disability that is aggravated, 
 
            accelerated, worsened or lighted up so that it results in 
 
            disability, claimant is entitled to recover.  Nicks v. 
 
            Davenport Produce Co., 254 Iowa 130, 115 N.W.2d 812, 815 
 
            (1962).
 
            
 
                 It is further concluded that claimant did not incur an 
 
            injury on December 17, 1986 which arose out of and in the 
 
            course of her employment.
 
            
 
                 Claimant's current disability and impairments, if any, 
 
            are not causally connected to claimant's alleged injury on 
 
            December 17, 1986.
 
            
 
                                      order
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 That claimant take nothing from these proceedings.
 
            
 
                 That claimant shall pay the costs of this action, 
 
            pursuant to Division of Industrial Services Rule 343-4.33.
 
            
 
                 Signed and filed this _____ day of August, 1990.
 
            
 
            
 
            
 
            
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          BERNARD J. O'MALLEY
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies to:
 
            
 
            Mr Daniel P Wilson
 
            Attorney at Law
 
            303 W State St
 
            Centerville IA 52544
 
            
 
            Ms Dorothy L Kelley
 
            Attorney at Law
 
            500 Liberty Bldg
 
            Des Moines IA 50309
 
            
 
            
 
                 
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                          5-1100; 5-1108.50
 
                                          Filed August 6, 1990
 
                                          Bernard J. O'Malley
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            THERESA ROBINSON,             :
 
                                          :
 
                 Claimant,                :
 
                                          :        File No. 883571
 
            vs.                           :
 
                                          :
 
            WELLS MANUFACTURING           :     A R B I T R A T I O N
 
            CORPORATION,                  :
 
                                          :        D E C I S I O N
 
                 Employer,                :
 
                                          :
 
            and                           :
 
                                          :
 
            CNA INSURANCE COMPANIES,      :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            5-1100
 
            Claimant failed to prove her injury arose out of and in the 
 
            course of her employment.
 
            
 
            5-1108.50
 
             Claimant failed to prove her alleged disability and 
 
            impairment was causally connected to her December 17, 1986 
 
            injury.
 
            Claimant's medical doctor's opinions were tainted by 
 
            claimant's incorrect and inadequate medical history and job 
 
            description.
 
            Claimant took nothing from these proceeding.