Page   1
 
            
 
            
 
            
 
            
 
                      BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
            
 
            JOYCE SCHROEDER,    
 
                      
 
                 Claimant, 
 
                      
 
            vs.       
 
                                               File No. 894119
 
            WELLS' MANUFACTURING     
 
            CORPORATION,   
 
                                                A P P E A L
 
                 Employer, 
 
                                               D E C I S I O N
 
            and       
 
                      
 
            CNA INSURANCE COMPANIES, 
 
                      
 
                 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 August 10, 1990 is affirmed and is adopted as the 
 
            final agency action in this case with the following 
 
            additional analysis:
 
            
 
            There is no statutory authority to order defendants to pay a 
 
            late payment penalty or fee imposed by claimant's medical 
 
            providers.  That portion of the order contained in the 
 
            arbitration decision filed August 10, 1990 which ordered 
 
            defendants to pay a late penalty is reversed.  All other 
 
            aspects of the arbitration decision filed August 10, 1990 
 
            are affirmed.
 
            
 
            Defendants shall pay the costs of the appeal, including the 
 
            preparation of the hearing transcript.
 
            
 
            Signed and filed this ____ day of June, 1992.
 
            
 
            
 
                             
 
                                     ________________________________
 
                                            BYRON K. ORTON
 
                                      INDUSTRIAL COMMISSIONER
 
            
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            Copies To:
 
            
 
            Mr. Gregory J. Siemann
 
            Attorney at Law
 
            801 North Adams
 
            Carroll, Iowa 51401
 
            
 
            Mr. Claus H. Bunz
 
            Attorney at Law
 
            206 Main Street
 
            Manning, Iowa 51455
 
            
 
            Mr. Michael P. Jacobs
 
            Attorney at Law
 
            300 Toy Bank Bldg.
 
            Sioux City, Iowa 51101
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                               9999
 
                                               Filed June 30, 1992
 
                                               Byron K. Orton
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
            
 
            JOYCE SCHROEDER,    
 
                      
 
                 Claimant, 
 
                      
 
            vs.       
 
                                               File No. 894119
 
            WELLS' MANUFACTURING     
 
            CORPORATION,   
 
                                                 A P P E A L
 
                 Employer, 
 
                                                D E C I S I O N
 
            and       
 
                      
 
            CNA INSURANCE COMPANIES, 
 
                      
 
                 Insurance Carrier,  
 
                 Defendants.    
 
            ____________________________________________________________
 
            
 
            
 
            9999
 
            Summary affirmance of deputy's decision filed August 10, 
 
            1990, with short additional analysis.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            JOYCE SCHROEDER,              :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :
 
            WELLS' MANUFACTURING          :         File No. 894119
 
            CORPORATION,                  :
 
                                          :      A R B I T R A T I O N
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            CNA INSURANCE COMPANIES,      :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding in arbitration brought by Joyce 
 
            Schroeder, claimant, against Wells' Manufacturing 
 
            Corporation, employer (hereinafter referred to as Wells'), 
 
            and CNA Insurance Company, insurance carrier, defendants, 
 
            for workers' compensation benefits as a result of an alleged 
 
            injury on October 15, 1987.  On May 9, 1990, a hearing was 
 
            held on claimant's petition and the matter was considered 
 
            fully submitted at the close of this hearing.
 
            
 
                 The parties have submitted a prehearing report of con
 
            tested issues and stipulations which was approved and 
 
            accepted as a part of the record of this case at the time of 
 
            hearing.  Oral testimony and written exhibits were received 
 
            during the hearing from the parties.  The exhibits offered 
 
            into the evidence are listed in the prehearing report.
 
            
 
                 According to the prehearing report, the parties have 
 
            stipulated to the following matters:
 
            
 
                 1.  Claimant's rate of weekly compensation in the event 
 
            of an award of weekly benefits from this proceeding shall be 
 
            $131.84.
 
            
 
                 2.  The medical bills submitted by claimant at hearing 
 
            were fair and reasonable and causally connected to the 
 
            medical condition upon which the claim is based but that the 
 
            issue of their causal connection to the work injury remained 
 
            at issue to be decided.
 
            
 
                                      issues
 
            
 
                 The parties submitted the following issues for determi
 
            nation in this proceeding:
 
            
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
                   I.  Whether claimant received an injury arising out 
 
            of and in the course of employment;
 
            
 
                  II.  Whether the claim is barred as untimely under 
 
            Iowa Code section 85.26 or barred for untimely notice under 
 
            Iowa Code section 85.23;
 
            
 
                 III.  The extent of claimant's entitlement to disabil
 
            ity benefits; and,
 
            
 
                  IV.  The extent of claimant's entitlement to medical 
 
            benefits.
 
            
 
                                 findings of fact
 
            
 
                 Having heard the testimony and considered all the 
 
            evidence, the deputy industrial commissioner finds as 
 
            follows:
 
            
 
                 A credibility finding is necessary to this decision as 
 
            defendants place claimant's credibility at issue during 
 
            cross-examination.  From her demeanor while testifying, 
 
            claimant is found credible.
 
            
 
                 Claimant worked for Wells' from October 1985 until the 
 
            plant in Manning, Iowa closed in January 1990 and operations 
 
            moved to Mexico.  Initially, claimant was in assembly where 
 
            she was required to hand torque parts.  In December 1986, 
 
            claimant was transferred to the job of material handler. In 
 
            this job she moved parts and materials to and from assembly 
 
            lines.  This job required considerable amount of lifting 
 
            boxes weighing approximately 54 pounds from conveyors and 
 
            pushing and pulling hand carts weighing approximately 200 
 
            pounds.  Also, claimant was required to move pallets with a 
 
            pallet jack and load and unload ovens with 50 pound racks.  
 
            Much of this work involved over head use of her arms.  
 
            Claimant said that between August 1987 and June 1988, her 
 
            work load greatly increased when a fellow materials handler 
 
            was assigned to other duties.
 
            
 
                 On December 1, 1989, claimant injured both her right 
 
            and left arms by developing a condition known as bilateral 
 
            carpal tunnel syndrome to the extent that she needed 
 
            surgery.  Claimant's job as a material handler at Wells' was 
 
            a significant precipitating factor to these conditions.  The 
 
            date of December 1, 1989, was used as the injury date as 
 
            this was the first time claimant was absent from her work 
 
            for a significant period of time to obtain surgery and 
 
            relief from her pain.  Claimant was to have surgery on the 
 
            left side immediately following the right arm surgery.  
 
            Claimant's bilateral carpal tunnel injury developed gradu
 
            ally over time and was not the result of any single accident 
 
            or event.  As soon as claimant learned of her condition from 
 
            an EMG test in March of 1988, claimant immediately reported 
 
            the injury to her supervisors at Wells'.  Claimant had expe
 
            rienced problems in 1985 as an assembler but claimant did 
 
            not at that time think the problems to be serious and no 
 
            treatment was sought.
 
            
 
                 The above finding of a causal connection between bilat
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            eral carpal tunnel syndrome to claimant's work at Wells' was 
 
            made despite the fact that claimant also worked as a 
 
            part-time hair dresser in addition to her employment at 
 
            Wells'.  The primary treating orthopedic surgeon, Philip 
 
            Myer, D.O., opined in his deposition that claimant's lifting 
 
            at work as a material handler was a significant 
 
            precipitating factor in causing the carpal tunnel syndrome 
 
            and the need for his treatment.  He further opined that the 
 
            use of claimant's hands in her hair dressing business did 
 
            not appear to be a significant causative factor.
 
            
 
                 The finding that the bilateral carpal tunnel syndrome 
 
            to both the right and left arm occurred at the same time is 
 
            also based upon the deposition testimony of Dr. Myer which 
 
            is uncontroverted in the record.
 
            
 
                 Claimant had surgery to the right arm on December 1, 
 
            1989.  It was also recommended that claimant receive after 
 
            this surgery, surgery on her left arm.  Both the surgery to 
 
            the right arm and the recommended surgery to the left arm 
 
            occurred following a period of unsuccessful conservative 
 
            treatments by Dr. Myer and others.  The need for such surg
 
            eries were confirmed by EMG testing conducted by David L. 
 
            Friedgood, D.O., a neurologist, who also diagnosed bilateral 
 
            carpal tunnel syndrome in March of 1988.  Although Dr. Myer 
 
            recommended surgery to the left arm, no surgery has been 
 
            performed.  Delay in claimant's receipt of surgery on the 
 
            right arm and the continuing delay in left arm surgery is 
 
            the result of defendants' denial of liability  for any work 
 
            injury to either arm.
 
            
 
                 Claimant has not as yet reached maximum medical recov
 
            ery from either her right or left carpal tunnel syndrome as 
 
            significant improvement in her condition is expected from 
 
            further treatment.  This finding is based upon the uncontro
 
            verted opinions of Dr. Myer.  Although he opines that 
 
            claimant suffers from a 10 percent "disability" to the right 
 
            arm due to her right carpal tunnel syndrome, Dr. Myer said 
 
            that this could be reduced from further treatment.
 
            
 
     
 
            
 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            Until claimant reaches maximum improvement, no finding can 
 
            be made as to claimant's permanent partial impairment or 
 
            permanent partial disability to either the right or left 
 
            arm.
 
            
 
                 In July 1988, claimant suffered an injury to her neck, 
 
            back and shoulders from her material hand over job.  This 
 
            condition also developed gradually over time as a result of 
 
            claimant's work at Wells'.  These problems are currently 
 
            diagnosed as thoracic and cervical myalgia.  Claimant had 
 
            similar back problems before her employment at Wells' in 
 
            1977.  Claimant's neck, back and shoulder conditions are a 
 
            separate and distinct problem unrelated to claimant's carpal 
 
            tunnel problems.  Claimant first noticed back and shoulder 
 
            problems in October of 1987.  However, the injury date of 
 
            July 1988, was chosen as the most proper injury date for 
 
            this cumulative trauma as this was the time of claimant's 
 
            last injurious exposure to work which led to a specific 
 
            diagnosis and treatment of the condition by Dr. Myer.  
 
            Again, all of these above findings with reference to the 
 
            neck, back and shoulder conditions are based upon the 
 
            reports and uncontroverted opinions of Dr. Myer.  Claimant 
 
            failed to prove that her neck, back and shoulder injury of 
 
            July 1988, is a cause of temporary or permanent impairment 
 
            or that such an injury requires further treatment.
 
            
 
                 Although claimant continues to work as a part-time hair 
 
            dresser, she has not returned to the job she was doing at 
 
            the time of injury nor has she returned to any similar work 
 
            since the plant closing on January 1, 1990.  Claimant was 
 
            recovering from the right hand surgery at the time the plant 
 
            closed and recovery from that surgery would have been six to 
 
            eight weeks.  However, claimant was scheduled to have imme
 
            diate left hand surgery following this recovery.  Therefore, 
 
            even if the plant had not closed, claimant would not have 
 
            been able to return to work at Wells' until after her left 
 
            hand surgery.  Claimant's work at Wells' irreversibly aggra
 
            vated both the right carpal tunnel syndrome and the 
 
            untreated left carpal tunnel syndrome.  For that reason, 
 
            claimant was not physically able to continue work at Wells' 
 
            until completion of both surgeries.  To date, claimant has 
 
            never been offered left hand surgery by defendants.
 
            
 
                                conclusions of law
 
            
 
                   I.  Claimant has the burden of proving by a prepon
 
            derance of the evidence that claimant received an injury 
 
            which arose out of and in the course of employment.  The 
 
            words "out of" refer to the cause or source of the injury.  
 
            The words "in the course of" refer to the time and place and 
 
            circumstances of the injury.  See Cedar Rapids Community 
 
            Sch. v. Cady, 278 N.W.2d 298 (Iowa 1979); Crowe v. DeSoto 
 
            Consol. Sch. Dist., 246 Iowa 402, 68 N.W.2d 63 (1955).  An 
 
            employer takes an employee subject to any active or dormant 
 
            health impairments, and a work connected injury which more 
 
            than slightly aggravates the condition is considered to be a 
 
            personal injury.  Ziegler v. United States Gypsum Co., 252 
 
            Iowa 613, 620, 106 N.W.2d 591 (1960) and cases cited 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            therein.
 
            
 
                 It is not necessary that claimant prove that her dis
 
            ability results from a sudden unexpected traumatic event.  
 
            It is sufficient to show that the disability developed grad
 
            ually and progressively from work activity over a period of 
 
            time.  McKeever Custom Cabinets v. Smith, 379 N.W.2d 368 
 
            (Iowa 1985).  The McKeever court also held that the date of 
 
            injury in gradual injury cases is the time when pain pre
 
            vents the employee from continuing to work.  In McKeever, 
 
            the injury date coincides with the time claimant was finally 
 
            compelled to give up her job.  This date was then utilized 
 
            in determining the rate and timeliness of the claim under 
 
            Iowa Code section 85.26 and notice under Iowa Code section 
 
            85.23.
 
            
 
                 This agency may chose an injury date in cumulative 
 
            trauma cases different from those alleged in the petition.  
 
            McCoy v. Donaldson Company, Inc., case no. 752670, Appeal 
 
            Decision filed April 28, 1989.
 
            
 
                 In the case sub judice, two separate cumulative 
 
            injuries were found.  As claimant was not compelled to per
 
            manently leave her work due to either injury prior to the 
 
            closure of the plant, the injury dates that were chosen were 
 
            those that were most consistent with the McKeever case.  
 
            Both of these injury dates were different from the date 
 
            alleged in the petition.
 
            
 
                  II.  Defendants raised the affirmative defense that 
 
            claimant's claim was not filed within the prescribed period 
 
            of time allowed under Iowa Code section 85.26.  Generally, 
 
            claims for benefits must be filed within two years of the 
 
            date of injury or within three years of the date of the last 
 
            payment of weekly benefits.  An injured employee is permit
 
            ted to file a workers' compensation claim after the pre
 
            scribed periods under the so-called "discovery rule."  In 
 
            Orr v. Lewis Cent. Sch. Dist., 298 N.W.2d 256 (Iowa 1980), 
 
            the Iowa Supreme Court held that the two year period to file 
 
            a claim does not start to run until a worker discovers or in 
 
            the exercise of reasonable diligence should have discovered 
 
            the nature, seriousness and probable compensable character 
 
            of the injury.
 
            
 
                 Defendants have also raised the issue of the lack of 
 
            timely notice of the work injury within 90 days from the 
 
            date of the occurrence of the injury under Iowa Code section 
 
            85.26.  Lack of such notice is an affirmative defense.  
 
            DeLong v. Highway Commission, 229 Iowa 700, 295 N.W. 91 
 
            (1940).
 
            
 
                 As discussed above with reference to cumulative trauma 
 
            under the McKeever case, the date used for cumulative trauma 
 
            governs the issues of timeliness under both Iowa Code sec
 
            tions 85.26 and 85.23.  For both injuries found in this 
 
            case, defendants were given clear notice within the appro
 
            priate statutory times given the dates of injury that were 
 
            found.  Also, on the whole record, it is rather clear that 
 
            both defendants in this case have been aware of claimant's 
 
            condition and its work relatedness long before any recommen
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            dation of surgery was made.  Both claimant and defendants 
 
            learned of the diagnosis of carpal tunnel syndrome at the 
 
            same time, March 1, 1988.  Dr. Myer's diagnosis of shoulder, 
 
            neck and back problems were contained in reports specifi
 
            cally directed to defendants in conjunction with his report
 
            ing on claimant's carpal tunnel syndrome problems.  
 
            Furthermore, there is no indication on the record as to when 
 
            the last payment of benefits had been made.  Therefore, the 
 
            assertion that the claims were untimely must be and is 
 
            denied.
 
            
 
                 III.  Claimant is entitled to temporary total disabil
 
            ity or healing period benefits under Iowa Code sections 
 
            85.33(1) and 85.34(1) from the first day of disability until 
 
            claimant returns to work; until claimant is medically capa
 
            ble of returning to substantially similar work to the work 
 
            she was performing at the time of injury; or, until signifi
 
            cant improvement for medical treatment is no longer antici
 
            pated, whichever occurs first.  It was found that claimant's 
 
            current right arm disability can be improved with further 
 
            treatment in the opinion of the treating physician and that 
 
            claimant is still in need of left arm surgery to treat her 
 
            left carpal tunnel syndrome.  The need for further treatment 
 
            for the shoulder, neck and back has not been shown.  Also, 
 
            it was found that claimant's bilateral carpal tunnel syn
 
            drome problems are worsened from work similar to the work 
 
            she was performing at Wells' in the opinion of the treating 
 
            physician.  Therefore, claimant is not able to return to 
 
            substantially similar work that she has done until comple
 
            tion of her treatment.  Claimant, therefore, is entitled to 
 
            a running award of temporary total disability or healing 
 
            period benefits until such time as claimant reaches maximum 
 
            healing and a final permanent partial impairment rating can 
 
            be made for an award of scheduled member benefits under Iowa 
 
            Code section 85.34(2)(s).
 
            
 
                  IV.  Pursuant to Iowa Code section 85.27, claimant is 
 
            entitled to payment of reasonable medical expenses incurred 
 
            for treatment of a work injury.  In the case at bar, 
 
            claimant is requesting the expenses set forth in exhibits 12 
 
            through 18.  It was stipulated that these were causally con
 
            nected to the condition upon which her claim is based.  Only 
 
            the causal connection of that injury was disputed.  As both
 
            
 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            the bilateral carpal tunnel syndrome and the shoulder, neck 
 
            and back problems are found work related, the expenses will 
 
            be awarded.
 
            
 
                                      order
 
            
 
                 1.  Defendants shall pay to claimant temporary total 
 
            disability or healing period benefits from December 1, 1989, 
 
            at the rate of one hundred thirty-one and 84/l00 dollars 
 
            ($131.84) per week for an indefinite period of time until 
 
            the criteria for ending such benefits occurs as set forth in 
 
            Iowa Code sections 85.33(1) or 85.34(1), whichever section 
 
            is applicable.
 
            
 
                 2.  Defendants shall pay the medical expenses listed in 
 
            the prehearing report.  Claimant shall be reimbursed for any 
 
            of these expenses paid by him.  Otherwise, defendants shall 
 
            pay the provider directly along with any lawful late payment 
 
            penalties imposed upon the account by the provider.  Also, 
 
            defendants shall provide further care as recommended by P. 
 
            L. Myer, D.O.
 
            
 
                 3.  Defendants shall pay accrued weekly benefits in a 
 
            lump sum and shall receive credit against this award for all 
 
            benefits previously paid.
 
            
 
                 4.  Defendants shall pay interest on weekly benefits 
 
            awarded herein as set forth in Iowa Code section 85.30.
 
            
 
                 5.  Defendants shall pay the cost of this action pur
 
            suant to Division of Industrial Services Rule 343-4.33.
 
            
 
                 6.  Defendants shall file activity reports on the pay
 
            ment of this award as requested by this agency pursuant to 
 
            Division of Industrial Services Rule 343-3.1.
 
            
 
            
 
            
 
                 Signed and filed this ____ day of August, 1990.
 
            
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          LARRY P. WALSHIRE
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Claus H. Bunz
 
            Attorney at Law
 
            206 Main St
 
            Manning  IA  51455
 
            
 
            
 
            
 
            
 
            
 
            Mr. Gregory J. Siemann
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            Attorney at Law
 
            801 North Adams
 
            Carroll  IA  51401
 
            
 
            Mr. Michael P. Jacobs
 
            Attorney at law
 
            300 Toy Nat'l Bank Bldg
 
            Sioux City  IA  51101
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                               1802
 
                                               Filed August 10, 1990
 
                                               LARRY P. WALSHIRE
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            JOYCE SCHROEDER,              :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :
 
            WELLS' MANUFACTURING          :         File No. 894119
 
            CORPORATION,                  :
 
                                          :      A R B I T R A T I O N
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            CNA INSURANCE COMPANIES,      :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            1802
 
            
 
                 Running award of healing period benefits was given as 
 
            claimant clearly had not reached maximum healing in the 
 
            uncontroverted opinion of the treating physician.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            LINDA SCHNEIDER,              :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :         File No. 894126
 
            WHEATLAND MANOR,              :
 
                                          :      A R B I T R A T I O N
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            IOWA HEALTH CARE ASSOCIATION  :
 
            (CONSTITUTION STATE SERVICE   :
 
            CO.),                         :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding in arbitration brought by Linda 
 
            Schneider against her employer, Wheatland Manor, and its 
 
            insurance carrier, Iowa Health Care Association, based upon 
 
            an alleged injury on July 23, 1988.  She seeks compensation 
 
            for healing period, permanent partial disability and payment 
 
            of medical expenses.  The disputed issues include whether or 
 
            not Linda sustained an injury on July 23, 1988 which arose 
 
            out of and in the course of her employment; whether the 
 
            alleged injury is a cause of any temporary or permanent 
 
            disability and, if so, the extent of permanent disability.  
 
            The dates for which she was off work on account of the 
 
            condition which is the basis for this claim are established 
 
            by stipulation.  The rate of compensation was stipulated to 
 
            be $129.48 per week.  However, a review of the Guide to Iowa 
 
            Workers' Compensation Claim Handling effective July 1, 1988 
 
            shows that a married individual with two exemptions and a 
 
            gross weekly wage of $190.00 is entitled to a weekly 
 
            compensation rate of $130.05.  The only issues with regard 
 
            to the medical expenses incurred are causation and liability 
 
            of the employer.
 
            
 
                 The record in this proceeding consists of testimony 
 
            from Linda Schneider, Sueann Van Daale and Susan Klaas.  The 
 
            record also consists of exhibits 1 through 38.
 
            
 
                                 findings of fact
 
            
 
                 Having considered all the evidence received, together 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            with the appearance and demeanor of the witnesses, the 
 
            following findings of fact are made.
 
            
 
                 Linda Schneider is a 49-year-old married woman who 
 
            lives at Toronto, Iowa.  She obtained a GED in 1972.  Linda 
 
            was described by her present supervisor, Susan Klaas, as an 
 
            excellent, honest and trustworthy employee.  Sueann Van 
 
            Daale, her former supervisor, expressed similar high regard 
 
            for Linda.  Linda Schneider is found to be an impeccably 
 
            credible witness, despite the variance in the medical 
 
            histories which appears in the records of this case.  The 
 
            sequence of events which she described at hearing is found 
 
            to be accurate and correct.  The variance in the medical 
 
            histories is attributed to her lack of medical expertise in 
 
            knowing what does or does not cause herniated discs, the 
 
            pain which she was experiencing and the pain medication 
 
            which had been administered to her.  It is specifically 
 
            found that Linda was struck on the back five times on July 
 
            23, 1988, that the blows caused severe pain, and that the 
 
            pain subsided somewhat, but never completely resolved during 
 
            the following days leading up to August 9, 1988 when 
 
            claimant was hospitalized for severe pain in her leg.  It is 
 
            found that the incident of falling with the bicycle did not 
 
            injure claimant's back and produced only an abrasion type 
 
            injury on her leg.
 
            
 
                 Following hospitalization on August 9, 1988, Linda was 
 
            diagnosed as having a herniated intervertebral disc.  
 
            Surgery was performed.  After recuperating, she returned to 
 
            work with restrictions.  It was later determined that the 
 
            surgery had not completely removed all the disc material and 
 
            a second surgery was necessary.  Following that surgery, 
 
            claimant's symptoms markedly improved and she returned to 
 
            work at Wheatland Manor Nursing Home.  She has now resumed 
 
            what is essentially full-duty employment, although she 
 
            follows a 60-pound lifting restriction and does not lift 
 
            patients without assistance.  Since returning to work 
 
            following the surgeries, Linda has received the maximum pay 
 
            raises available.  The injury has not caused any reduction 
 
            in her actual rate of earnings.  It has been medically 
 
            indicated that claimant should not lift more than 50 pounds 
 
            without assistance, but could lift patients weighing up to 
 
            125 pounds with assistance.  She has been assigned an eight 
 
            percent permanent partial impairment rating (exhibit 33).  
 
            Claimant is performing her job to the satisfaction of her 
 
            employer.  She finds that work fatigues her, but she has 
 
            been able to perform her work.  At the time of hearing, she 
 
            was off work due to a recent incident which was not related 
 
            to this claim.
 
            
 
                 The only physician to express an opinion on the cause 
 
            for claimant's herniated disc is Jerald W. Bybee, M.D.  In 
 
            his deposition, exhibit 34, and also in exhibit 1, he 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            explained that a herniated disc normally involves some 
 
            underlying or preexisting deterioration and degeneration and 
 
            that claimant's being struck in the back by a patient could 
 
            quite possibly have been the ultimate event which caused her 
 
            disc to rupture.  Dr. Bybee also explained that being struck 
 
            in the back is not a common or routine history which is seen 
 
            in patients with a herniated disc, but that it is certainly 
 
            conceivable that it could be the cause.  Dr. Bybee was 
 
            unwilling to state within a reasonable degree of medical 
 
            probability, however, that the blows on the back are what 
 
            caused this claimant's disc to herniate.  He stated that he 
 
            would defer to an orthopaedic specialist in that regard.  He 
 
            expressed the opinion that he did not hold sufficient 
 
            expertise to express an opinion on causation (exhibit 34, 
 
            pages 19-26).
 
            
 
                 Claimant denied having any significant back problems 
 
            prior to July 23, 1988.  The medical records do not indicate 
 
            any significant prior back problems.
 
            
 
                                conclusions of law
 
            
 
                 Claimant has the burden of proving by a preponderance 
 
            of the evidence that she received an injury on July 23, 1988 
 
            which arose out of and in the course of her employment. 
 
            McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa 
 
            1976); Musselman v. Cent. Tel. Co., 261 Iowa 352, 154 N.W.2d 
 
            128 (1967). 
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury of July 23, 
 
            1988 is causally related to the disability on which she now 
 
            bases her claim.  Bodish v. Fischer, Inc., 257 Iowa 516, 133 
 
            N.W.2d 867 (1965).  Lindahl v. L. O. Boggs, 236 Iowa 296, 18 
 
            N.W.2d 607 (1945).  A possibility is insufficient; a 
 
            probability is necessary.  Burt v. John Deere Waterloo 
 
            Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955).  The 
 
            question of causal connection is essentially within the 
 
            domain of expert testimony.  Bradshaw v. Iowa Methodist 
 
            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 
 
            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).
 
            
 
                 There is sufficient evidence to support an award where 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            the medical opinion testimony states that a causal 
 
            connection is possible and other facts exist which indicate 
 
            the existence of a causal connection.  Becker v. D & E 
 
            Distrib. Co., 247 N.W.2d 727 (Iowa 1976).
 
            
 
                 Dr. Bybee's reluctance to consider himself an expert 
 
            for purposes of issuing an opinion is not controlling.  His 
 
            status as a licensed physician gives him the level of 
 
            expertise which makes his opinions helpful to the trier of 
 
            fact.  Iowa Rule of Evidence 702.  Despite his reluctance to 
 
            characterize himself as an expert in comparison to an 
 
            orthopaedic surgeon, he is, nevertheless, an expert in 
 
            comparison to a lay person.  His testimony is accepted as 
 
            expert testimony, though the weight given to it is not as 
 
            great as the weight which would be given to that of a 
 
            well-qualified orthopaedic surgeon who would have a higher 
 
            level of expertise than a family practitioner.
 
            
 
                 In this case, it is determined that the opinion of Dr. 
 
            Bybee which shows the causal connection to be possible and 
 
            the claimant's history as related at hearing are sufficient 
 
            to support a finding of proximate cause between the July 23, 
 
            1988 incident of being struck in the back and the herniated 
 
            disc which became fully manifest on August 9, 1988, a span 
 
            of little more than two weeks later.  In making this 
 
            determination, it is recognized, pursuant to section 
 
            17A.14(5) of The Code that the onset of severe symptoms does 
 
            not always immediately follow the precipitating trauma, that 
 
            claimant had no significant history of prior back problems, 
 
            and that she did have continuing back pain of a lesser 
 
            degree ever since being struck on July 23, 1988.  The 
 
            testimony from Sueann Van Daale and the incident report, 
 
            exhibit 30, clearly show that claimant experienced severe 
 
            pain at the time she was struck in the back.  It is 
 
            therefore determined that the herniated disc which afflicted 
 
            Linda Schneider was the result of the injury of July 23, 
 
            1988 which arose out of and in the course of her employment 
 
            with Wheatland Manor.
 
            
 
                 According to the prehearing report, claimant's 
 
            entitlement to healing period compensation under Iowa Code 
 
            section 85.34(1) runs from August 9, 1988 through January 8, 
 
            1989 and again from May 1, 1989 through June 23, 1989.  The 
 
            first period covers 21.857 weeks while the second covers 
 
            7.714 weeks for a total of 29.571 weeks of healing period 
 
            compensation.
 
            
 
                 The parties stipulated that claimant's permanent 
 
            partial disability entitlement is payable commencing June 
 
            24, 1989.  That stipulation will not be disturbed, even 
 
            though January 9, 1989 could be the correct commencement 
 
            date.
 
            
 
                 If claimant has an impairment to the body as a whole, 
 
            an industrial disability has been sustained.  Industrial 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            disability was defined in Diederich v. Tri-City Railway Co., 
 
            219 Iowa 587, 593, 258 N.W.2d 899, 902 (1935) as follows: 
 
            "It is therefore plain that the legislature intended the 
 
            term `disability' to mean `industrial disability' or loss of 
 
            earning capacity and not a mere `functional disability' to 
 
            be computed in the terms of percentages of the total 
 
            physical and mental ability of a normal man."
 
            
 
                 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, Thirty-fourth Biennial Report of the 
 
            Industrial Commissioner 218 (1979); 2 Larson Workmen's 
 
            Compensation Law, sections 57.21 and 57.31.
 
            
 
                 The physical restrictions which Linda Schneider 
 
            presently follows are not extreme.  She has suffered no 
 
            actual loss of earnings.  She seems to be able to perform 
 
            her job to the satisfaction of her employer.  She is at an 
 
            age where extremely heavy work would not normally be a 
 
            chosen occupation for someone of her physical stature.  Her 
 
            few medical restrictions have been accommodated by her 
 
            employer.  When all the material factors of industrial 
 
            disability are considered, it is determined that Linda 
 
            Schneider sustained a 15 percent permanent partial 
 
            disability under Iowa Code section 85.34(2)(u).  This 
 
            entitles her to receive 75 weeks of compensation for 
 
            permanent partial disability.
 
            
 
                 Since the employer has been found to be liable for 
 
            claimant's herniated disc, it is responsible for the 
 
            expenses of medical treatment as itemized in exhibit 38.  
 
            Counsel stipulated that they would reach agreement 
 
            concerning the correct amount.
 
            
 
                                      order
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
                 IT IS THEREFORE ORDERED that defendants pay Linda 
 
            Schneider twenty-nine and four-sevenths (29 4/7) weeks of 
 
            compensation for healing period at the rate of one hundred 
 
            thirty and 05/100 dollars ($130.05) per week with twenty-one 
 
            and six-sevenths (21 6/7) weeks thereof payable commencing 
 
            August 9, 1988 and the remaining seven and five-sevenths (7 
 
            5/7) weeks payable commencing May 1, 1989.
 
            
 
                 IT IS FURTHER ORDERED that defendants pay Linda 
 
            Schneider seventy-five (75) weeks of compensation for 
 
            permanent partial disability at the rate of one hundred 
 
            thirty and 05/100 dollars ($130.05) per week payable 
 
            commencing June 24, 1989.
 
            
 
                 IT IS FURTHER ORDERED that all amounts of weekly 
 
            compensation which are past due and accrued shall be paid to 
 
            claimant in a lump sum together with interest computed 
 
            pursuant to Iowa Code section 85.30 from the date each 
 
            payment came due until the date of actual payment.
 
            
 
                 IT IS FURTHER ORDERED that defendants pay claimant's 
 
            medical expenses as set forth in exhibit 38.
 
            
 
                 IT IS FURTHER ORDERED that the costs of this action are 
 
            assessed against defendants pursuant to 343 IAC 4.33.
 
            
 
                 IT IS FURTHER ORDERED that defendants file claim 
 
            activity reports as requested by this agency pursuant to 343 
 
            IAC 3.1.
 
            
 
                 Signed and filed this ______ day of ____________, 1990.
 
            
 
                 
 
            
 
                 
 
                 
 
                                          ______________________________
 
                                          MICHAEL G. TRIER
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Michael W. Liebbe
 
            Attorney at Law
 
            116 East 6th Street
 
            P.O. Box 339
 
            Davenport, Iowa  52805-0339
 
            
 
            Ms. Vicki L. Seeck
 
            Attorney at Law
 
            600 Union Arcade Building
 
            111 East Third Street
 
            Davenport, Iowa  52801
 
            
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                           1402.20; 1402.30; 1803
 
                           Filed December 18, 1990
 
                           MICHAEL G. TRIER
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            LINDA SCHNEIDER,    :
 
                      :
 
                 Claimant, :
 
                      :
 
            vs.       :
 
                      :         File No. 894126
 
            WHEATLAND MANOR,    :
 
                      :      A R B I T R A T I O N
 
                 Employer, :
 
                      :         D E C I S I O N
 
            and       :
 
                      :
 
            IOWA HEALTH CARE ASSOCIATION  :
 
            (CONSTITUTION STATE SERVICE   :
 
            CO.),     :
 
                      :
 
                 Insurance Carrier,  :
 
                 Defendants.    :
 
            ____________________________________________________________
 
            
 
            1402.20; 1402.30
 
            Where claimant was found to be an impecably credible 
 
            witness, the varying medical histories did not prevent her 
 
            from establishing her claim.
 
            
 
            1803
 
            Forty-nine-year-old claimant, who worked as a nurse's aide, 
 
            suffered a herniated disc and returned to work without any 
 
            loss of actual earnings and was awarded 15 percent permanent 
 
            partial disability.
 
            
 
 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         RICHARD W. HOUSTON,
 
         
 
              Claimant,                              File No. 894129
 
         
 
         vs.                                           A P P E A L
 
         
 
         IOWA MEN'S REFORMATORY,                     D E C I S I O N
 
         
 
              Employer,
 
                                                        F I L E D
 
         and
 
                                                       NOV 30 1989
 
         STATE OF IOWA,
 
                                              IOWA INDUSTRIAL COMMISSIONER
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
                              STATEMENT OF THE CASE
 
                                        
 
              Claimant appeals from a ruling on motion to dismiss denying 
 
         claimant's cause of action.
 
              
 
              The record on appeal consists of claimant's petition, 
 
         defendants' motion to dismiss and the ruling on the motion to 
 
         dismiss.  Both parties filed briefs on appeal.
 
              
 
                                      ISSUE
 
                                        
 
              Claimant states the issue on appeal is whether the deputy 
 
         industrial commissioner erred in sustaining defendants' motion to 
 
         dismiss.
 
              
 
                              REVIEW OF THE EVIDENCE
 
                                        
 
              The ruling on the motion to dismiss filed February 3, 1989 
 
         adequately and accurately reflects the pertinent evidence and it 
 
         will not be reiterated herein.
 
              
 
                                  APPLICABLE LAW
 
                                        
 
              The citations of law in the ruling on the motion to dismiss 
 
         are appropriate to the issues and evidence.
 
              
 
                                     ANALYSIS
 
                                        
 
              The analysis of the evidence in conjunction with the law in 
 
         the ruling on the motion to dismiss is adopted.
 
              
 
                                 FINDINGS OF FACT
 
                                        
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              1.  Claimant was injured July 16, 1986 while an inmate at 
 
         the Iowa Men's Reformatory.
 
              
 
              2.  Claimant's original petition seeking arbitration and 
 
         medical benefits was filed with the industrial commissioner's 
 
         office on December 19, 1988.
 
              
 
                                CONCLUSIONS OF LAW
 
                                        
 
              Deputy industrial commissioner did not err in sustaining 
 
         defendants' motion to dismiss.  Claimant failed to file his 
 
         original petition for arbitration and medical benefits within the 
 
         two year statutory time limit as required by Iowa Code sections 
 
         85.59 and 85.26.  While the deputy industrial commissioner went 
 
         outside of the pleadings to determine whether an acknowledgment 
 
         of compensability was on file, it was done for the claimant's 
 
         benefit and in no way prejudiced the claimant.
 
              
 
              Defendants' failure to file an acknowledgment of 
 
         compensability pursuant to Iowa Code section 85.59 does not 
 
         extend the statute of limitations beyond two years.  The 
 
         acknowledgment of compensability satisfies the notice of injury 
 
         requirement, Iowa Code sections 85.59 and 85.23.  Defendants' 
 
         failure to file an acknowledgment of compensability does not 
 
         affect the statute of limitations.
 
              
 
              WHEREFORE, the ruling of the deputy is affirmed.
 
              
 
                                      ORDER
 
                                        
 
              THEREFORE, it is ordered:
 
              
 
              That the motion to dismiss is sustained, claimant has failed 
 
         to state a claim upon which relief may be granted.
 
              
 
              Signed and filed this 30th day of November, 1989.
 
              
 
              
 
              
 
              
 
              
 
                                               DAVID E. LINQUIST
 
                                            INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. James P. Hoffman
 
         Attorney at Law
 
         Middle Road
 
         P.O. Box 1066
 
         Keokuk, Iowa  52632-1066
 
         
 
         Ms. Joanne Moeller
 
         Assistant Attorney General
 
         Tort Claims Division
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         Hoover State Office Bldg.
 
         Des Moines, Iowa  50319
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
                                                                                                                    
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
                                                                                       
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
                                            
 
 
 
 
 
 
 
 
 
 
 
                                            2301 - 2402
 
                                            Filed November 30, 1989
 
                                            DAVID E. LINQUIST
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         RICHARD W. HOUSTON,
 
         
 
              Claimant,
 
                                                      File No. 894129
 
         vs.
 
                                                        A P P E A L
 
         IOWA MEN'S REFORMATORY,
 
                                                      D E C I S I O N
 
              Employer,
 
         
 
         and
 
         
 
         STATE OF IOWA,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         2301 - 2402
 
         
 
              Claimant in this matter was injured while an inmate.  The 
 
         appeal decision affirmed deputy's decision sustaining defendants' 
 
         motion to dismiss for lack of subject matter jurisdiction. 
 
         Claimant failed to file an original petition within the two year 
 
         statute of limitation.  Defendants' failure to file an 
 
         acknowledgment of compensability does not affect the statute of 
 
         limitations beyond two years.
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
                                                                                                                    
 
         
 
         
 
         
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
                                                                                       
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            ELMER TOLSON,  :
 
                      :
 
                 Claimant, :      File No. 894134
 
                      :
 
            vs.       :        A P P E A L
 
                      :
 
            JOHN DEERE DES MOINES WORKS,  :      D E C I S I O N
 
                      :
 
                 Employer, :
 
                 Self-Insured,  :
 
                 Defendant.     :
 
            ___________________________________________________________
 
            The record, including the transcript of the hearing before 
 
            the deputy and all exhibits admitted into the record, has 
 
            been reviewed de novo on appeal.  The decision of the deputy 
 
            filed January 28, 1991, is affirmed and is adopted as the 
 
            final agency action in this case. 
 
            Claimant shall pay the costs of the appeal, including the 
 
            preparation of the hearing transcript.
 
            Signed and filed this ____ day of September, 1991.
 
            
 
            
 
            
 
            
 
                      ________________________________
 
                               BYRON K. ORTON
 
                           INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. James Lawyer
 
            Attorney at Law
 
            West Towers Office
 
            1200 35th Street Ste 500
 
            West Des Moines, Iowa 50265
 
            
 
            Mr. Roger Ferris
 
            Attorney at Law
 
            1900 Hub Tower
 
            699 Walnut Street
 
            Des Moines, Iowa 50309
 
            
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                      9998
 
                      Filed September 27, 1991
 
                      BYRON K. ORTON
 
                      MAM
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            ELMER TOLSON,  :
 
                      :
 
                 Claimant, :      File No. 894134
 
                      :
 
            vs.       :        A P P E A L
 
                      :
 
            JOHN DEERE DES MOINES WORKS,  :      D E C I S I O N
 
                      :
 
                 Employer, :
 
                 Self-Insured,  :
 
                 Defendant.     :
 
            ___________________________________________________________
 
            
 
            9998
 
            
 
                 Summary affirmance of deputy's decision filed January 
 
            28, 1991.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            ELMER TOLSON,  :
 
                      :        File No. 894134
 
                 Claimant, :
 
                      :     A R B I T R A T I O N
 
            vs.       :
 
                      :        D E C I S I O N
 
            JOHN DEERE D.M. WORKS,   :
 
                      :
 
                 Employer, :
 
                 Self-Insured,  :
 
                 Defendant.     :
 
            ___________________________________________________________
 
            
 
            statement of the case
 
            This is a proceeding in arbitration upon the petition of 
 
            claimant, Elmer Tolson, against his employer, John Deere Des 
 
            Moines Works, self-insured defendant.  The case was heard on 
 
            April 18, 1990, in Des Moines, Iowa at the office of the 
 
            industrial commissioner.  The record consists of the 
 
            testimony of claimant, and the testimony of the safety 
 
            director, Gary Higbee.  Additionally, the record consists of 
 
            joint exhibits 1-15.
 
            issues
 
            The issues to be determined are:  1) whether claimant 
 
            sustained an injury which arose out of and in the course of 
 
            his employment; 2) whether there is a causal relationship 
 
            between the alleged injury and the disability; and 3) 
 
            whether claimant is entitled to temporary total or permanent 
 
            partial disability benefits.
 
            findings of fact
 
            The deputy, having heard the testimony and considered all 
 
            the evidence, finds:
 
            Claimant was 61 years old when he began experiencing 
 
            difficulties with his lower extremities.  He felt burning in 
 
            his legs with some numbness and tingling.  Primarily the 
 
            burning was felt at night.  Physical activities did not 
 
            aggravate his complaints.
 
            Claimant had been employed at John Deere in Des Moines since 
 
            May 18, 1959.  He had held various positions including 
 
            janitor and shear helper.  For the past 19 years claimant 
 
            had worked as a fork truck operator.  His duties included 
 
            taking rotary holes off the line, placing the material onto 
 
            pallets, picking up the pallets and stacking the pallets.  
 
            He drove the fork lift truck approximately 6 1/2 hours per 
 
            day.
 
            The fork lift truck had hard rubber tires.  The forks were 
 
            on the front and the back was weighted to insure balance.  
 
            Claimant testified the ride was rough and the floor was not 
 
            smooth.
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            Claimant, a diabetic, sought medical attention for his 
 
            burning sensation.  He went to his family physician, an 
 
            internist, Mayank K. Kothari, M.D.  Dr. Kothari treated 
 
            claimant for his diabetes and for the burning sensation.  
 
            The physician diagnosed claimant as:
 
            His diagnosis at this time was myelopathy as a result of 
 
            degeneration to the spinal cord as a result of aggrevation 
 
            [sic] of his injury by his regular job of forklifting 
 
            methods.  The aggrevation [sic] stems from the jolting and 
 
            jarring he experiences during the forklifting maneuvers.  A 
 
            myelogram as well as a CAT scan of the lumbar spine was 
 
            ordered and this revealed some narrowing along the lumbar 
 
            spine.
 
            Dr. Kothari referred claimant to Alfredo D. Socarras, M.D., 
 
            a neurologist who examined claimant on March 9, 1987.  
 
            Various medical tests were conducted.  Dr. Socarras, in his 
 
            deposition of April 12, 1990, opined:
 
            In summary, the neurological examination showed no 
 
            significant deficit and the electromyogram that I performed 
 
            on May 25th, 1989 was also normal.  I expressed in that 
 
            letter to Doctor Kothari that I did not have the answer for 
 
            Mr. Tolson's problem, that I could not explain this 
 
            satisfactorily.  I raised the question of restless leg 
 
            syndrome, but this is usually something that occurs at 
 
            night.  The patient will complain of discomfort in both 
 
            lower extremities, will have to move and walk in order to 
 
            get some relief and the cause or etiology is obscure.  We 
 
            don't know why this happens, but it happens.  So that was 
 
            the last time I saw Mr. Tolson and that was my conclusion.
 
            
 
            (Exhibit 2, page 16, lines 7-19)
 
            Dr. Kothari also referred claimant to an orthopedic surgeon, 
 
            Scott Neff, D.O.  Dr. Neff examined claimant.  In his 
 
            deposition, Dr. Neff testified:
 
            So with the history we know of at least 9 or 10 years, it 
 
            would seem very reasonable, and it would be my opinion, that 
 
            that type of activity would contribute to repetitive 
 
            cyclical loading of hundreds and hundreds of times per day, 
 
            which would, indeed, produce spinal stenosis at a greater or 
 
            more rapid rate than he would be genetically predisposed to 
 
            have occur.
 
                 Q.  Do you believe that that work activity as I 
 
            described was a substantial contributing factor to his onset 
 
            of symptoms that you treated him for?
 
                 A.  Yes.
 
            
 
            (Ex. 1, pp. 16-17, ll. 20-6)
 
            Dr. Neff also opined that claimant had a 20 percent 
 
            permanent partial impairment, with 10 percent attributable 
 
            to claimant's repetitive work activities.  Dr. Neff 
 
            restricted claimant from heavy repetitive cyclical loading 
 
            of the lumbar spine, bouncing in the seated or standing 
 
            position, avoiding shoveling, repetitive twisting or 
 
            turning, jumping, bending over or long-term walking on a 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            hard surface.  He opined that claimant's bouncing around on 
 
            a fork lift contributed to the development of spinal 
 
            stenosis.
 
            Dr. Kothari also referred claimant to a neurosurgeon, Randy 
 
            Winston, M.D.  Dr. Winston examined claimant on April 10, 
 
            1987.  The physician testified that claimant's disease was 
 
            still in doubt.  Dr. Winston did not believe that claimant's 
 
            disease was caused by his work activities, or that it was 
 
            traumatically related.
 
            Dr. Neff referred claimant to the University of Iowa for 
 
            additional testing.  Matthew Rizzo, M.D., a neurologist, 
 
            examined claimant.  Dr. Rizzo opined in his report of July 
 
            29, 1987.
 
            The patient did not appear to have any surgical obstruction 
 
            of the spinal cord or nerve roots to account for his 
 
            symptoms.  We referred the patient to neurosurgery who 
 
            agreed with this impression.  It is possible that the 
 
            patient has a small fiber sensory neuropathy related to 
 
            diabetes to account for the burning in his legs.  Such a 
 
            problem would not show up on EMG or nerve conduction 
 
            testing.  It is unclear what the relationship of this 
 
            patient's previous injury has to his current symptoms.  In 
 
            view of the patient's complaints after a trial of Elavil to 
 
            75 mg PO q.h.s. (he did not feel well at 100 mg PO q.h.s.).  
 
            We would recommend the trial of another medication such as 
 
            Tegretol or a nonsteroidal anti-inflammatory agent to treat 
 
            this patient's dysesthesias.  Control of his diabetes is 
 
            also important.  Please let us know if you have any further 
 
            questions.
 
            Claimant was off work from May 17, 1987.  He retired on 
 
            April 1, 1988.
 
            conclusions of law
 
            Claimant has the burden of proving by a preponderance of the 
 
            evidence that he received an injury on May 17, 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). 
 
            An employee is entitled to compensation for any and all 
 
            personal injuries which arise out of and in the course of 
 
            the employment.  Section 85.3(1).
 
            The injury must both arise out of and be in the course of 
 
            the employment.  Crowe v. DeSoto Consol. Sch. Dist., 246 
 
            Iowa 402, 68 N.W.2d 63 (1955) and cases cited at pp. 405-406 
 
            of the Iowa Report.  See also Sister Mary Benedict v. St. 
 
            Mary's Corp., 255 Iowa 847, 124 N.W.2d 548 (l963) and Hansen 
 
            v. State of Iowa, 249 Iowa 1147, 91 N.W.2d 555 (1958).
 
            The words "out of" refer to the cause or source of the 
 
            injury.  Crowe, 246 Iowa 402, 68 N.W.2d 63 (1955). 
 
            The words "in the course of" refer to the time and place and 
 
            circumstances of the injury.  McClure v. Union et al. 
 
            Counties, 188 N.W.2d 283 (Iowa 1971); Crowe, 246 Iowa 402, 
 
            68 N.W.2d 63 (1955).
 
            "An injury occurs in the course of the employment when it is 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            within the period of employment at a place the employee may 
 
            reasonably be, and while he is doing his work or something 
 
            incidental to it."  Cedar Rapids Comm. Sch. Dist. v. Cady, 
 
            278 N.W.2d 298 (Iowa 1979), McClure, 188 N.W.2d 283 (Iowa 
 
            1971); Musselman, 261 Iowa 352, 154 N.W.2d 128 (1967). 
 
            The claimant has the burden of proving by a preponderance of 
 
            the evidence that the injury of May 17, 1987, is causally 
 
            related to the disability on which he now bases his claim.  
 
            Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 
 
            (1965).  Lindahl v. L. O. Boggs, 236 Iowa 296, 18 N.W.2d 607 
 
            (1945).  A possibility is insufficient; a probability is 
 
            necessary.  Burt v. John Deere Waterloo Tractor Works, 247 
 
            Iowa 691, 73 N.W.2d 732 (1955).  The question of causal 
 
            connection is essentially within the domain of expert 
 
            testimony.  Bradshaw v. Iowa Methodist Hospital, 251 Iowa 
 
            375, 101 N.W.2d 167 (1960). 
 
            However, expert medical evidence must be considered with all 
 
            other evidence introduced bearing on the causal connection.  
 
            Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion of experts 
 
            need not be couched in definite, positive or unequivocal 
 
            language.  Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 
 
            1974).  However, the expert opinion may be accepted or 
 
            rejected, in whole or in part, by the trier of fact.  Id. at 
 
            907.  Further, the weight to be given to such an opinion is 
 
            for the finder of fact, and that may be affected by the 
 
            completeness of the premise given the expert and other 
 
            surrounding circumstances.  Bodish, 257 Iowa 516, 133 N.W.2d 
 
            867.  See also Musselman, 261 Iowa 352, 154 N.W.2d 128 
 
            (1967).
 
            In the case at hand, claimant has failed to prove by a 
 
            preponderance of the evidence that his condition is causally 
 
            related to the duties he performed at work, specifically the 
 
            repetitive riding on a fork lift.  The medical cause of 
 
            claimant's condition is unknown.  Drs. Socarras, Winston and 
 
            Rizzo could not relate claimant's problems to his work 
 
            situation.  Nor could they determine the probable cause of 
 
            claimant's condition.  As Dr. Socarras so aptly put it:  "I 
 
            still am not able to be certain of the etiology or the cause 
 
            of his symptoms."  (Ex. 2, p. 19).
 
            Only Dr. Kothari and Dr. Neff related claimant's injury to 
 
            his work environment.  However, Dr. Kothari's opinion was 
 
            outside his practice of internal medicine.  Consequently, 
 
            his opinion was not accorded the weight that was given to 
 
            the opinions of Drs. Socarras, Winston and Rizzo who did 
 
            testify within the confines of their respective disciplines.
 
            Finally, there was the opinion of Dr. Neff.  He causally 
 
            related claimant's condition to excessive bouncing in a fork 
 
            lift truck over many years.  However, testimony from Gary 
 
            Higbee was produced which established that fork lift driving 
 
            was not that rough and that driving a fork lift truck was 
 
            considered a lighter duty position.
 
            Claimant has failed to meet his burden of proof.
 
            order
 
            THEREFORE, IT IS ORDERED:
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            Claimant takes nothing further from these proceedings:
 
            Each party shall pay his/its own costs pursuant to rule 343 
 
            IAC 4.33.
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
                 Signed and filed this ____ day of January, 1991.
 
            
 
            
 
            
 
            
 
            
 
                      ______________________________               
 
            MICHELLE A. McGOVERN
 
                      DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. James Lawyer
 
            Attorney at Law
 
            West Towers Office
 
            1200 35th St  STE 500
 
            West Des Moines  IA  50265
 
            
 
            Mr. Roger Ferris
 
            Attorney at Law
 
            1900 Hub Tower
 
            699 Walnut
 
            Des Moines  IA  50309
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                           5-1108
 
                           Filed January 28, 1991
 
                           MICHELLE A. McGOVERN
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            ELMER TOLSON,  :
 
                      :        File No. 894134
 
                 Claimant, :
 
                      :     A R B I T R A T I O N
 
            vs.       :
 
                      :        D E C I S I O N
 
            JOHN DEERE D.M. WORKS,   :
 
                      :
 
                 Employer, :
 
                 Self-Insured,  :
 
                 Defendant.     :
 
            ___________________________________________________________
 
            
 
            
 
            
 
            5-1108
 
            Claimant failed to prove by a preponderance of the evidence 
 
            that he sustained a cumulative trauma injury to his back.
 
            
 
 
         
 
         Page   1
 
         
 
         
 
         
 
         
 
         before the iowa industrial commissioner
 
         ____________________________________________________________
 
                                         :
 
         PHYLLIS J. FOWLER,              :
 
                                         :
 
              Claimant,                  :
 
                                         :
 
         vs.                             :
 
                                         :      File No.  894136
 
         J. B. HUNT TRANSPORT,           :
 
                                         :  A R B I T R A T I O N
 
              Employer,                  :
 
                                         :      D E C I S I O N
 
         and                             :
 
                                         :
 
         FIDELITY AND CASUALTY COMPANY,  :
 
                                         :
 
              Insurance Carrier,         :
 
              Defendants.                :
 
         ___________________________________________________________
 
         INTRODUCTION
 
         This is a proceeding in arbitration brought by claimant,       
 
         Phyllis J. Fowler, against J B Hunt Transport, employer and 
 
         Fidelity and Casualty Company, insurance carrier, defendants, to 
 
         recover benefits under the Iowa Workers' Compensation Act for an 
 
         alleged injury on February 2, 1987.  This matter was scheduled to 
 
         come on for hearing at 1:00 p.m., August 7, 1990, in the 
 
         Industrial Commissioner's Office at Des Moines, Iowa.
 
         The undersigned was present.  Neither claimant nor defendants 
 
         appeared.
 
         summary of the evidence
 
         Claimant failed to present any evidence in support of the 
 
         allegations found in his original notice and petition.  At the 
 
         time of the hearing, neither an agreement for settlement nor a 
 
         request for continuance was on file.
 
         Claimant has the burden of proving by a preponderance of the 
 
         evidence that he sustained an injury which arose out of and in 
 
         the course of his employment.  McDowell v. Town of Clarksville, 
 
         241 N.W.2d 904 (Iowa 1976).
 
         findings of fact
 
         WHEREFORE, it is found:
 
         1.  Neither claimant nor defendants appeared at the scheduled 
 
         time and place of hearing.
 
         2.  The undersigned deputy industrial commissioner was present 
 
         and prepared to proceed to hearing.
 
         3.  At the time of the hearing, neither an agreement for 
 
         settlement nor a request for continuance was on file with the 
 
         industrial commissioner.
 
         4.  Claimant failed to present any evidence to support 
 
         allegations of a compensable injury.
 
         order
 
         THEREFORE, IT IS ORDERED:
 

 
         
 
         Page   2
 
         
 
         
 
         
 
         
 
         Claimant has failed to meet his burden of proof that he sustained 
 
         an injury which arose out of and in the course of his employment.
 
         Claimant take nothing from this hearing.
 
         Costs are taxed to the claimant pursuant to Division of 
 
         Industrial Services Rule 343-4.33
 
         
 
              Signed and filed this ____ day of August, 1990.
 
         
 
         
 
         
 
         
 
                                       ______________________________
 
                                       WALTER R. McMANUS, JR.
 
                                       DEPUTY INDUSTRIAL COMMISSIONER    
 
         
 
         Copies to:
 
         
 
         Mr. Jacob J. Peters
 
         Attorney at Law
 
         233 Pearl Street
 
         PO Box 1078
 
         Council Bluffs, Iowa  51502
 
         
 
         Mr. Michael Hoffmann
 
         Attorney at Law
 
         Breakwater Bldg.
 
         3708 75th St
 
         Des Moines, Iowa  50322
 
         
 
         
 
         
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
                                          51400; 51402
 
                                          Filed  August 7, 1990
 
                                          Walter R. McManus, Jr.
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                            :
 
            PHYLLIS J. FOWLER,              :
 
                                            :
 
                 Claimant,                  :
 
                                            :
 
            vs.                             :
 
                                            :      File No.  894136
 
            J B HUNT TRANSPORT,             :
 
                                            :  A R B I T R A T I O N
 
                 Employer,                  :
 
                                            :      D E C I S I O N
 
            and                             :
 
                                            :
 
            FIDELITY AND CASUALTY CO.,      :
 
                                            :
 
                 Insurance Carrier,         :
 
                 Defendants.                :
 
            ___________________________________________________________
 
            
 
            51400; 51402
 
            Neither claimant nor counsel appeared at the hearing.  No 
 
            evidence in support of allegations of a compensable work 
 
            injury was presented and claimant, therefore, failed to meet 
 
            his burden of proof.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            ROBERT HAULK,                 :
 
                                          :         File Nos. 881096
 
                 Claimant,                :                   894140
 
                                          :                   900519
 
            vs.                           :
 
                                          :      A R B I T R A T I O N
 
            ROADWAY EXPRESS, INC.,        :
 
                                          :         D E C I S I O N
 
                 Employer,                :
 
                 Self-Insured,            :
 
                 Defendant.               :
 
            ____________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 This decision concerns three proceedings in arbitration 
 
            brought by Robert Haulk against his former employer, Roadway 
 
            Express, Inc., based upon alleged injuries of February 1, 
 
            1988, November 8, 1988 and January 16, 1989.  The primary 
 
            issues to be determined are whether claimant sustained 
 
            injury which arose out of and in the course of employment on 
 
            the dates alleged, determination of claimant's entitlement 
 
            to compensation for healing period or temporary total 
 
            disability for the November 8, 1988 injury, and compensation 
 
            for permanent disability for all three injuries.  Claimant 
 
            seeks medical expenses under the provisions of Iowa Code 
 
            section 85.27 for all three injuries.  Defendant has 
 
            asserted a defense in the nature of lack of subject matter 
 
            jurisdiction under section 85.71.  Defendant has also 
 
            asserted lack of notice as a defense in case number 881096.
 
            
 
                 The case was heard and fully submitted on March 15, 
 
            1990 at Davenport, Iowa.  The evidence in the case consists 
 
            of testimony from Robert Haulk, claimant's exhibits 1 
 
            through 15 and defendant's exhibits 1 through 10.
 
            
 
                                 findings of fact
 
            
 
                 Robert Haulk is a 56-year-old man who had been a truck 
 
            driver for 35 or 40 years.  The last day he worked was 
 
            January 16, 1989.  Haulk has an eighth grade education and 
 
            now lives on a pension.  He fishes for recreation.  Haulk 
 
            stated that he is unable to lift, stand or sit very long.  
 
            He was not aware of anything he could do in the way of 
 
            employment.
 
            
 
                 Haulk stated that he has pain which goes up and down 
 
            his right arm from the hand to the pit of his shoulder.  He 
 
            stated that his neck and low back give him continuous pain 
 
            which is like a tooth ache.  He stated that chiropractic 
 
            treatments provide temporary relief.  Haulk feels that he 
 
            had more years of work left in him if his back had not 
 
            gotten bad.  Claimant has not sought work.
 
            
 
                 Claimant testified that he injured his back on February 
 
            1, 1988 while hooking up or taking apart a set of double 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            bottom trailers at Walcott, Iowa.  He stated that he was 
 
            moving the "jiff lock" when he experienced the onset of 
 
            pain.  Claimant testified that he reported the incident to 
 
            the dispatcher, but was not offered any medical treatment.  
 
            Claimant stated that he went to Thomas A. Brozovich, D.C., 
 
            Dennis D. Burkhardt, D.C., and William J. Dougherty, M.D.  
 
            Dr. Burkhardt's records show that claimant received 
 
            treatments on January 29, 1988 and February 9, 1988.  
 
            Neither makes any mention of any history of accident or 
 
            injury (claimant's exhibit 1, page 16).  Claimant's records 
 
            with Dr. Brozovich show regular treatments from April 22, 
 
            1988 through October 14, 1988 and then a gap in treatments 
 
            until January 23, 1989.  The notes from the 1989 visits make 
 
            no reference to any report of any particular recent injury.  
 
            The note of January 25, 1989 refers to a "since last 
 
            exacerbation," but at no point is that exacerbation 
 
            identified (claimant's exhibit 4, pages 19-21 and 31).  The 
 
            records do indicate that claimant was authorized by Dr. 
 
            Brozovich to be absent from work on several occasions 
 
            running from June 3, 1988 through January 3, 1989 
 
            (claimant's exhibit 4, pages 34-43).
 
            
 
                 On July 31, 1989, Dr. Brozovich issued a six-page 
 
            report in which he discussed injuries of April 27, 1984, 
 
            July 21, 1987, February 25, 1988 and January 16, 1989.  The 
 
            report does not make any reference to injuries of February 
 
            1, 1988 or November 8, 1988.
 
            
 
                 Hyman S. Lans, M.D., issued a written report on 
 
            November 25, 1988.  In it, he relates a history of injury in 
 
            1984 and then experiencing pain in the low back and numbness 
 
            in both legs on February 1, 1988.  The doctor concludes that 
 
            claimant has a 22 percent functional impairment of the whole 
 
            man as a result of an injury.  The report does not indicate 
 
            whether the impairment is due to the 1984 injury or whatever 
 
            occurred while claimant was driving on February 1, 1988 
 
            (claimant's exhibit 2).
 
            
 
                 Claimant's exhibit 6 indicates that claimant was in 
 
            physical therapy from September 20, 1988 until October 31, 
 
            1988 under the direction of Dr. Dougherty.  On October 31, 
 
            1988, claimant was authorized six weeks' rental of a TENS 
 
            unit.
 
            
 
                 Claimant was seen by Dr. Dougherty on May 17, 1984 with 
 
            a report of injury on April 25, 1984.  Claimant was noted to 
 
            have a spondylolysthesis of the first degree with some disc 
 
            space narrowing at L4-5 and L5-S1.  A CT scan showed no 
 
            abnormalities (claimant's exhibit 7, pages 1 and 2).  Dr. 
 
            Dougherty reevaluated claimant on July 30, 1986.  X-rays 
 
            were interpreted as showing some progression of the disc 
 
            space narrowing (claimant's exhibit 7, page 3).  On January 
 
            19, 1987, claimant again reported increased back pain.  A CT 
 
            scan of the lumbar spine was taken on January 21, 1987 and 
 
            interpreted as showing no change in comparison to the 1984 
 
            CT scan (claimant's exhibit 7, pages 4 and 5).  On September 
 
            20, 1988, Dr. Dougherty reported that claimant has 
 
            established degenerative disc disease and that he has had a 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            flare-up of the condition (claimant's exhibit 7, pages 6 and 
 
            7).
 
            
 
                 Barry Lake Fischer, M.D., evaluated claimant on October 
 
            6, 1988.  The history taken referred to the onset of pain in 
 
            his low back and numbness in both legs while driving on 
 
            February 1, 1988 and a previous low back injury in 1984.  
 
            The diagnosis included a bilateral lumbosacral strain 
 
            injury.  Dr. Fischer rated claimant as having a functional 
 
            impairment of 25 percent of the man as a whole as a result 
 
            of an injury.  The report does not specify whether the 
 
            impairment is from the 1984 injury or the 1988 injury 
 
            (claimant's exhibit 5).
 
            
 
                 On November 8, 1988, Haulk was making a delivery at 
 
            Mount Joy, Iowa when he slipped and hit his right elbow.  He 
 
            continued to work that day, but on the next day was seen at 
 
            the Moline Public Hospital.  X-rays disclosed no abnormality 
 
            (claimant's exhibit 8, pages 2 and 7).  He was taken off 
 
            work until November 14, 1988 (claimant's exhibit 8, pages 3, 
 
            4 and 9).  Claimant was also seen by R. D. Retz, M.D., who 
 
            indicated that claimant was released to return to work on 
 
            November 18, 1988 (claimant's exhibit 8, page 8).  Jeffrey 
 
            C. Allgood, M.D., issued releases which authorized claimant 
 
            to return to work on November 15, 1988, November 16, 1988, 
 
            November 17, 1988 and November 18, 1988 (claimant's exhibit 
 
            9).  Claimant was seen by William R. Whitmore, M.D., on 
 
            December 16, 1988.  A steroid injection was administered 
 
            (claimant's exhibit 10).  According to claimant, relief from 
 
            the injection lasted only a couple weeks.  When Dr. Whitmore 
 
            saw claimant on January 19, 1989, it was noted that claimant 
 
            had retired.  There was no mention made of any recent back 
 
            injury.
 
            
 
                 James F. Dupre', M.D., evaluated claimant.  He found no 
 
            objective evidence of abnormalities other than the 
 
            spondylolysthesis (defendant's exhibit 5).
 
            
 
                 Claimant has had back problems since 1984.  They have 
 
            worsened since that time.
 
            
 
                 The record in this case fails to contain any 
 
            corroboration for claimant's testimony of a February 1, 1988 
 
            back injury.  It is therefore found that claimant has failed 
 
            to introduce evidence showing it to be probable that he 
 
            sustained any injury or became disabled on February 1, 1988.
 
            
 
                 The evidence indicates that claimant's back problems 
 
            had been quite symptomatic during much of the last six 
 
            months of 1988.  He was seeing a chiropractic physician 
 
            regularly.  He received physical therapy and a TENS unit.  
 
            He was off work frequently.  The records fail to show that 
 
            claimant sought any medical treatment for the alleged 
 
            January 16, 1989 injury at or about the time it allegedly 
 
            occurred.  To the contrary, the record indicates that 
 
            claimant chose to retire.  Claimant may have experienced an 
 
            increase in his symptoms or a flare-up of his symptoms due 
 
            to activities he engaged in on January 16, 1989, but the 
 
            record fails to show that anything that might have occurred 
 
            on that date produced any temporary or permanent disability.  
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            In view of claimant's well documented degenerative 
 
            condition, it is quite believable that most any activity 
 
            could increase his symptoms or produce discomfort.  Claimant 
 
            has failed to introduce evidence showing it to be probable 
 
            that he was injured or became disabled on January 16, 1989.
 
            
 
                 It is found that Robert Haulk did injure his elbow as 
 
            he alleged on November 8, 1988.  Since he worked all of that 
 
            day, the disability from the injury commenced on November 9, 
 
            1988 and ran through November 17, 1988, the date he was last 
 
            examined by Dr. Retz.  Since Dr. Retz was an authorized 
 
            treating physician, his assessment in that regard will be 
 
            accepted as being correct.  November 18, 1988 was the day 
 
            that claimant returned to work, not the last day of 
 
            disability resulting from that injury (claimant's exhibit 8, 
 
            page 8).  The record fails to show any evidence of permanent 
 
            disability affecting claimant's right elbow or arm.  The 
 
            total period of disability from the elbow injury is nine 
 
            days.
 
            
 
                 Claimant's exhibit 11 contains bills from Dr. 
 
            Brozovich.  All appear to deal with claimant's back.  None 
 
            appear to deal with his elbow injury.
 
            
 
                 Claimant's exhibit 12 also appears to deal with 
 
            claimant's back.  The dates of services are January 19, 1987 
 
            and September 20, 1988.  Claimant's exhibit 13 is $90.00 in 
 
            charges for x-ray consultation.  This also appears to relate 
 
            to claimant's back and the reports found in evidence as 
 
            claimant's exhibit 3.  Claimant's exhibit 14 deals with the 
 
            physical therapy for claimant's back which is shown in 
 
            claimant's exhibit 6.
 
            
 
                 Claimant's exhibit 15 is charges from Dr. Whitmore who 
 
            treated claimant's elbow.  The charges total $122.50.
 
            
 
                                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 on each of the three 
 
            dates alleged.  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). 
 
            
 
                 It is concluded that claimant sustained an injury to 
 
            his right arm which arose out of and in the course of his 
 
            employment on November 8, 1988.  It is further concluded 
 
            that claimant has failed to prove, by a preponderance of the 
 
            evidence, that he sustained any injury on February 1, 1988 
 
            or January 16, 1989.
 
            
 
                 Defendant's defense of lack of jurisdiction under 
 
            section 85.71 is without merit.  The injury occurred in 
 
            Mount Joy, Iowa.  Schmidt v. Pittsburgh Plate Glass Co., 243 
 
            Iowa 1307, 55 N.W.2d 227 (1952).
 
            
 
                 Claimant was disabled for a period of nine days as a 
 
            result of that elbow injury.  Under Iowa Code sections 85.32 
 
            and 85.33, he is therefore entitled to recover temporary 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            total disability compensation for six days.  According to 
 
            the stipulation made by the parties, the rate of 
 
            compensation is $432.96 per week.
 
            
 
                 Since the defendant's have been found to be responsible 
 
            for the elbow injury, they are also responsible for the 
 
            expenses of medical treatment, including the charges in the 
 
            amount of $122.50 with Dr. Whitmore.
 
            
 
                 It is concluded that claimant has failed to prove, by a 
 
            preponderance of the evidence, any entitlement to recover 
 
            any additional medical expenses in this proceeding since he 
 
            has failed to prove that there were injuries which arose out 
 
            of and in the course of employment on either February 1, 
 
            1988 or January 16, 1989.
 
            
 
                                      order
 
            
 
                 IT IS THEREFORE ORDERED that defendant pay claimant 
 
            six-sevenths (6/7) weeks of compensation for temporary total 
 
            disability at the rate of four hundred thirty-two and 96/100 
 
            dollars ($432.96) per week payable commencing November 12, 
 
            1988.  The entire amount thereof is past due and owing and 
 
            shall be paid in a lump sum together with interest pursuant 
 
            to Iowa Code section 85.30 computed from the date the weekly 
 
            compensation benefits were due and payable until the date of 
 
            actual payment.
 
            
 
                 IT IS FURTHER ORDERED that defendant pay claimant's 
 
            medical expense with Dr. Whitmore and Orthopaedic Surgery 
 
            Associates, P.C., in the amount of one hundred twenty-two 
 
            and 50/100 dollars ($122.50).
 
            
 
                 IT IS FURTHER ORDERED that the costs of this proceeding 
 
            are assessed against defendant pursuant to Division of 
 
            Industrial Services Rule 343-4.33.
 
            
 
                 IT IS FURTHER ORDERED that defendant file claim 
 
            activity reports 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. Peter M. Soble
 
            Attorney at Law
 
            505 Plaza Office Building
 
            Rock Island, Illinois  61201
 
            
 
            Mr. John A. Hoekstra
 
            Mr. John C. McAndrews
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            Mr. Peter C. Fieweger
 
            Attorneys at Law
 
            200 Plaza Office Building
 
            P.O. Box 3250
 
            Rock Island, Illinois  61204-3250
 
            
 
            
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                               5-1402.20, 5-1801
 
                                               Filed August 10, 1990
 
                                               MICHAEL G. TRIER
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            ROBERT HAULK,                 :
 
                                          :         File Nos. 881096
 
                 Claimant,                :                   894140
 
                                          :                   900519
 
            vs.                           :
 
                                          :      A R B I T R A T I O N
 
            ROADWAY EXPRESS, INC.,        :
 
                                          :         D E C I S I O N
 
                 Employer,                :
 
                 Self-Insured,            :
 
                 Defendant.               :
 
            ____________________________________________________________
 
            
 
            5-1402.20, 5-1801
 
            Claimant proved injury to his right elbow, but failed to 
 
            prove two alleged back injuries.  He was awarded six days of 
 
            temporary total disability benefits.