Page   1
 
            
 
            
 
            
 
            
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
            _____
 
                                          :
 
            JULIE MOSES,                  :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 900554
 
            IOWA NORTHLAND REGIONAL       :
 
            COUNCIL OF GOVERNMENTS,       :
 
                                          :        A P P E A L
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            AETNA CASUALTY & SURETY,      :
 
                                          :
 
                 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 July 8, 1991 is affirmed and is adopted as the final 
 
            agency action in this case with the following additional 
 
            analysis:
 
            Claimant indicated in her testimony (transcript, pages 54 
 
            and 57) that she returned to work after her injury of April 
 
            23, 1987.  Her eligibility for temporary total disability 
 
            benefits would end when she returned to work.  See Iowa Code 
 
            section 85.33(1).  Claimant returned to work prior to the 
 
            time she eventually terminated her employment in September 
 
            1988.  The question of entitlement to temporary total 
 
            disability benefits is for the period subsequent to 
 
            September 26, 1988.  Because claimant had returned to work 
 
            prior to that date she is not entitled to temporary total 
 
            disability benefits after that date.
 
            Claimant has the burden of proving entitlement to benefits 
 
            for the alleged closed head injury and for the alleged 
 
            aggravation of her preexisting psychological condition.  The 
 
            evidence in this case does not demonstrate that claimant had 
 
            a closed head injury.  Numerous medical reports made shortly 
 
            after the injury of April 23, 1987 do not mention symptoms 
 
            of a head injury.
 
            Claimant must prove that an aggravation of a preexisting 
 
            condition is a material aggravation if it is to be 
 
            compensable.  Doctors Boarini, Taylor, and Rizzo, all 
 
            medical doctors, had access to and reviewed the medical 
 
            records of claimant.  (Dr. Rizzo's deposition is Exhibit 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            CCC.)  These doctors were of the opinion that claimant's 
 
            psychological problems were long standing.  The opinions of 
 
            Dr. Verduyn can be given little weight as he had an 
 
            incomplete history.  Neither Kenneth Wernimont nor John 
 
            Bayless are medical doctors and therefore cannot give 
 
            medical opinions.  Dr. Akbar's statement that claimant's 
 
            chronic depressive disorder started since the injury (see 
 
            Exhibit CC, p. 20) appears to be a recitation of the history 
 
            given to him rather than his opinion.  In addition, it does 
 
            not appear that Dr. Akbar was aware of the medical evidence 
 
            which shows that claimant's psychological problems predated 
 
            the fall of April 23, 1987.  Therefore, Dr. Akbar's opinion, 
 
            if any, can be given little weight.  Claimant has not proved 
 
            that the work incident on April 23, 1987 was a material 
 
            aggravation of a preexisting condition.  It should be noted 
 
            that claimant's argument in her appeal brief indicates that 
 
            this case involves an alleged psychological condition 
 
            arising from a physical injury (the so-called 
 
            physical-mental injury).
 
            Claimant shall pay the costs of the appeal, including the 
 
            preparation of the hearing transcript.
 
            Signed and filed this ____ day of December, 1991.
 
            
 
            
 
            
 
            
 
                      ________________________________
 
                               BYRON K. ORTON
 
                          INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Jay P. Roberts
 
            Attorney at Law
 
            620 Lafayette St.
 
            P.O. Box 178
 
            Waterloo, Iowa 50704
 
            
 
            Mr. James E. Walsh, Jr.
 
            Mr. Bruce L. Gettman, Jr.
 
            Attorneys at Law
 
            P.O. Box 596
 
            Waterloo, Iowa 50704
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
            5-1108.50  5-2204
 
            Filed December 26, 1991
 
            Byron K. Orton
 
            MAM
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
            _____
 
                                          :
 
            JULIE MOSES,                  :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 900554
 
            IOWA NORTHLAND REGIONAL       :
 
            COUNCIL OF GOVERNMENTS,       :
 
                                          :        A P P E A L
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            AETNA CASUALTY & SURETY,      :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            _____
 
            
 
            5-1108.50
 
            Claimant's alleged closed head injury was not causally 
 
            related to claimant's work injury on April 23, 1987.
 
            
 
            5-1108.50
 
            Claimant failed to prove that her psychological condition 
 
            was aggravated by a physical injury.  Claimant's 
 
            psychological problems predated her fall at work and her 
 
            psychological conditions and symptoms were not materially 
 
            aggravated by her injury.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            JULIE MOSES,                  :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :         File No. 900554
 
            IOWA NORTHLAND REGIONAL       :
 
            COUNCIL OF GOVERNMENTS,       :      A R B I T R A T I O N
 
                                          :
 
                 Employer,                :         D E C I S I O N
 
                                          :
 
            and                           :
 
                                          :
 
            AETNA CASUALTY & SURETY,      :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This is a proceeding in arbitration upon the petition 
 
            of claimant, Julie Moses, against her employer, Iowa 
 
            Northland Regional Council of Governments, and its insurance 
 
            carrier, Aetna Casualty and Surety Company, defendants.  The 
 
            case was heard on October 2, 1990, in Waterloo, Iowa at the 
 
            Black Hawk County Courthouse.  The record consists of the 
 
            testimony of claimant.  The record also consists of the 
 
            testimonies of:  Kenneth Wernimont, clinical social worker; 
 
            Sharon Winberg, former director of housing; David Moses, 
 
            spouse of claimant; Jeremy Green, son of claimant; John 
 
            David Bales, clinical psychologist; Dr. Michael Taylor, 
 
            M.D., psychiatrist; Patricia Neighbors, bookkeeper; and, 
 
            Sharon Juan, Executive Director of INRCOG.  The record also 
 
            consists of the following exhibits:  A-Z, AA-ZZ and AAA-FFF.
 
            
 
                 Attorneys for the parties are herein advised they 
 
            submitted medical records for a woman by the name of Sheri 
 
            Swanson.  Obviously, the attorneys did not review the 
 
            documents for their relevancy.  Finally, many of claimant's 
 
            records were duplicated.  This duplication resulted in 
 
            unnecessary time being spent reviewing the record.  The 
 
            record was extensive in and of itself.  It took many hours 
 
            to review the same.  In the future, the attorneys are 
 
            counseled to peruse their evidence before offering it to the 
 
            deputy.  Both briefs were read and reviewed by the 
 
            undersigned.  Defendants' motion for a protective order is 
 
            denied.
 
            
 
                                      issues
 
            
 
                 The issues to be determined are:  1) whether claimant 
 
            received an injury which arose out of and in the course of 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            employment; 2) whether there is a causal relationship 
 
            between the alleged injury and the disability; 3) whether 
 
            claimant is entitled to temporary disability/healing period 
 
            benefits or permanent partial disability benefits; and, 4) 
 
            whether claimant is entitled to certain benefits pursuant to 
 
            section 85.27.
 
            
 
                                 findings of fact
 
            
 
                 The deputy, having heard the testimony and considered 
 
            all the evidence, finds:
 
            
 
                 Claimant was 36 years old at the time of the hearing.  
 
            She had commenced her employment with INRCOG on October 7, 
 
            1985.  INRCOG was a planning agency for city, county, state 
 
            and federal agencies.  Claimant worked as an administrative 
 
            assistant/ secretary and was required to perform routine 
 
            secretarial duties for the executive director of INRCOG and 
 
            for other program people.
 
            
 
                 On April 23, 1987, claimant was preparing to post the 
 
            office afternoon mail.  She was walking down three flights 
 
            of stairs at the Russel Lamson Building in Waterloo when she 
 
            slipped on the stairs.  There were no actual witnesses to 
 
            the accident.  However, Paul Karnatz, an employee working at 
 
            the front desk of the building, testified he saw claimant on 
 
            the steps immediately after the fall.
 
            
 
                 The next day claimant sought medical attention from 
 
            Robert D. Buckles, M.D.  According to Dr. Buckles' records, 
 
            claimant indicated she had fallen down three stairs and 
 
            landed on her left side, injuring her back, hip and elbow.  
 
            There was no mention of any head injury at that time.  
 
            X-rays of the pelvis and spine were taken but they were 
 
            negative.
 
            
 
                 On April 27, 1987, claimant again sought medical 
 
            attention from Dr. Buckles.  He reported in his notes:  
 
            "Pain in occiput & behind the eyes.  She didn't hit her head 
 
            when she fell."  (Exhibit P7)
 
            
 
                 Claimant again saw Dr. Buckles on May 4, 1987.  She 
 
            reported stiffness in her shoulder, wrist and elbow.  She 
 
            attributed the stiffness to her typing.  Nearly three months 
 
            later, claimant returned to Dr. Buckles.  She reported she 
 
            bent over on July 30, 1987 and felt something snap in her 
 
            back.  Several weeks later, claimant had surgery for a cyst 
 
            on her left ovary.  The surgery was totally unrelated to her 
 
            fall.
 
            
 
                 Concurrently with her visits to Dr. Buckles, claimant 
 
            also treated with William Peterson, D.C., claimant's 
 
            treating chiropractor since 1983.  Dr. Peterson treated 
 
            claimant on April 24, 1987.  He treated claimant for the 
 
            same spinal problems as before her fall at the Russel Lamson 
 
            Building.  On that date, claimant completed an accident 
 
            report for Dr. Peterson.  She indicated she had fallen down 
 
            three steps.  Claimant made no mention of any injury to her 
 
            head.  The only new injury she expressed was an injury to 
 
            the left elbow.  Otherwise, all other complaints had been 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            complaints voiced on prior occasions by claimant to her 
 
            treating chiropractor.
 
            
 
                 In his deposition of March 8, 1990, Dr. Peterson 
 
            declined to provide claimant with an impairment rating.  He 
 
            testified:
 
            
 
                   A.  I don't feel that I'm in a position to state 
 
                 whether or not she would be suffering any 
 
                 permanent impairment due to this accident in 
 
                 question.  However, I do feel as though 
 
                 emotionally the tension, stress factor has greatly 
 
                 been increased since the accident in question.
 
            
 
            (Ex. VV, page 55, line 23 - page 56, line 3)
 
            
 
                 In February of 1988, Dr. Buckles referred claimant to 
 
            Roswell M. Johnston, D.O., an orthopedic specialist.  Dr. 
 
            Johnston examined and treated claimant.  He prescribed 
 
            physical therapy.  In his report of February 12, 1988, Dr. 
 
            Johnston related claimant's work injury as:
 
            
 
                 [S]he had gone down one flight of stairs and was 
 
                 coming around the landing and was about to go down 
 
                 the next flight of stairs when suddenly she 
 
                 slipped.  She doesn't know exactly what happened 
 
                 other than she just had her feet go out from 
 
                 underneath her and she landed flat on her back on 
 
                 top of the stairs with her right leg hooked behind 
 
                 and underneath her and she struck her left elbow 
 
                 on apparently one of the stairs.  She also caught 
 
                 her ribs as well....
 
            
 
            (Ex. S4)
 
            
 
                 Dr. Johnston diagnosed claimant's condition as:
 
            
 
                 My impression is that she suffered multiple 
 
                 contusions from a significant injury when she 
 
                 fell, however, there appears to be nothing of any 
 
                 permanent damage and nothing that needed to be 
 
                 fixed or repaired as it were.  I have encouraged 
 
                 her to continue with the physical therapy, 
 
                 emphasizing shoulder girdle strengthening exer
 
                 cises and if, at some point in time, her 
 
                 trochanteric bursitis becomes more symptomatic 
 
                 then one may consider an injection of this area.  
 
                 Otherwise, most of her injuries are time dependent 
 
                 and may continue to hurt anywhere from several 
 
                 months to upwards to a year or longer.
 
            
 
            (Ex. S5)
 
            
 
                 Dr. Johnston continued to treat claimant 
 
            conservatively.  In his report of January 9, 1990, Dr. 
 
            Johnston provided a permanent partial impairment rating for 
 
            claimant.  Dr. Johnston opined:
 
            
 
                 In response to your question number one, you will 
 
                 notice in the sentence before I state that she 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
                 suffered multiple contusions from a significant 
 
                 injury when she fell.  Stating that there appeared 
 
                 to be nothing of any permanent damage was a poor 
 
                 choice of words on my part.  That was meant to 
 
                 imply that there was nothing injured that needed 
 
                 to be operated on.  It was not to imply that she 
 
                 was not going to have a degree of impairment or 
 
                 permanent problems.
 
            
 
                 In response to your question number two; my 
 
                 opinion remains that she has a permanent, partial 
 
                 impairment of 5% of the whole person. I have no 
 
                 occasion to render impairment ratings when I 
 
                 dictate a consultation to another referring 
 
                 physician; and that was not what I did in the 
 
                 letter to Dr. Buckles on February 12, 1989, as I 
 
                 indicate above.  The rating rendered, is based on 
 
                 my experience and judgment as well as the AMA 
 
                 Guidelines and the Minnesota rules governing 
 
                 workmen's compensation practices and procedures.
 
            
 
                 With regard to your third inquiry; I do not notice 
 
                 any significant changes in the patients [sic] 
 
                 exam, except she showed improvement with regard to 
 
                 her elbow and the injury to her ribs.
 
            
 
                 The patient's rating is based primarily upon the 
 
                 subjective complaints as outlined in my notes.
 
            
 
                 Julie continued to get stiff quite easily after 
 
                 sitting for prolonged periods which she described 
 
                 as anywhere from one to two hours, at which time 
 
                 she would begin to get muscle cramping into her 
 
                 lower back.  I do not think she would be a 
 
                 candidate for any type of job which involved 
 
                 repetitive bending and stooping or any degree of 
 
                 heavy lifting.  I think she should be able to 
 
                 handle general secretarial type of activities, if 
 
                 she is able to get up and move about every one to 
 
                 two hours.  This opinion, of course, is based 
 
                 primarily upon my evaluation and notes from 
 
                 approximately a year and a half ago.
 
            
 
                 (Ex. S25 & S26)
 
            
 
                 Dr. Johnston testified by deposition on February 19, 
 
            1990.  He could not state with a reasonable degree of 
 
            medical certainty that claimant's injuries were causally 
 
            related to her fall.  He testified that claimant had not 
 
            complained of headaches or other problems with her head.  
 
            Dr. Johnston diagnosed claimant as having contusions over 
 
            the trochanter.  He noted claimant continued expressing 
 
            complaints which showed no significant improvement.  He also 
 
            noted claimant expressed a pain response to palpation in the 
 
            area of her contusions.  Dr. Johnston opined claimant 
 
            reached maximum medical improvement as of July 27, 1988.  He 
 
            also opined claimant was capable of performing secretarial 
 
            duties so long as she was allowed to move about the office.
 
            
 
                 Claimant received additional medical evaluation and/or 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            treatment.  One of the physicians included W. H. Verduyn, 
 
            M.D.  He examined claimant on various occasions between 
 
            March 7, 1989 and February 26, 1990.  At his initial 
 
            examination, claimant indicated she suffered from chronic 
 
            pain.  Dr. Verduyn did not have a complete medical history 
 
            for claimant.  He did not request any medical records prior 
 
            to the fall at work.  However, after his initial 
 
            examination, Dr. Verduyn diagnosed claimant as having:
 
            
 
                 IMPRESSION
 
            
 
                 Fall on 4/23/87 causing:
 
              1)  Post traumatic syndrome.
 
              2)  Severe headaches.
 
              3)  Memory problems.
 
              4)  Concentration problems.
 
              5)  Probable partial complex seizures.
 
              6)  Organic depression due to traumatic brain 
 
            injury.
 
            
 
            (Ex. Z4)
 
            
 
                 Dr. Verduyn order an MRI of claimant's head.  The test 
 
            was negative.  Dr. Verduyn also requested a twenty-four hour 
 
            EEG.  Marc E. Hines, M.D., reviewed the EEG in his report of 
 
            March 20, 1989.  Dr. Hines wrote:
 
            
 
                 TECHNICAL SUMMARY:  This patient's EEG shows no 
 
                 abnormality which cannot be explained on the basis 
 
                 of muscle or other artifact except for brief 
 
                 periods of three to four seconds in which there is 
 
                 sudden onset of slowing of the background rhythm 
 
                 activity down to 0.5-2.0 Hertz slow activity of 
 
                 moderate to low voltage.  There appears to be some 
 
                 flattening of the background record other than the 
 
                 slowing at these times.  These occur repeatedly 
 
                 during the EEG not associated with any specific 
 
                 events in the diary.  There are no other 
 
                 paroxysmal or lateralizing findings which cannot 
 
                 be explained on the basis of muscle or other 
 
                 artifact.
 
            
 
                 IMPRESSION:  These periods of slow activity are 
 
                 nonspecific and certainly are most consistent with 
 
                 sudden onset of bilateral cerebral dysfunction- 
 
                 the etiology of which cannot be determined from 
 
                 this recording but has been seen to occur in some 
 
                 individuals with cerebrovascular insufficiency.  
 
                 Occasionally, this can be due to diffuse cerebral 
 
                 dysfunction during a cardiac arrhythmia or other 
 
                 such event causing rather diffuse hypoxia and 
 
                 ischemia.  The exact etiology here, however, is 
 
                 not possible to tell from the EEG.  Unfortunately, 
 
                 given the montage of the 24-hour ambulatory EEG, 
 
                 one cannot make any certain statement since it is 
 
                 primarily a frontal temporal montage, there are no 
 
                 posterior areas to observe during the EEG 
 
                 recording.  There were no other abnormalities.
 
            
 
            (Ex. R1)
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            
 
                  Dr. Verduyn also referred claimant to John D. Bayless, 
 
            Ph.D., licensed psychologist for neuropsychological testing.
 
            
 
                 TEST RESULTS AND INTERPRETATION:
 
                 She scored in the average range on a battery 
 
            of intelligence tests (WAIS IQ = 92, at the 30th 
 
            percentile), which is clearly beneath expectations 
 
            given her educational and occupational 
 
            achievement.  While her capacity for abstract 
 
            reasoning and immediate recall of digits was near 
 
            normal, calculations were extremely spotty, and 
 
            her reasoning and judgement performances were 
 
            affected by vague responses.  Her fund of 
 
            knowledge was also erratic.
 
                 In the nonverbal subtests, constructional 
 
            praxis and visuomotor coordination were adequate 
 
            but logical sequencing of picture stories was 
 
            significantly impaired.  Dichotic listening, 
 
            facial perception, and judgement of line direction 
 
            were normal, however.
 
                 Conversational speech was generally fluent, 
 
            well articulated, and nonparaphasic, and the 
 
            patient performed quite well in a word finding 
 
            task.  Reading and spelling were generally 
 
            adequate as well, at the 32nd and 79th 
 
            percentiles, respectively.
 
                 Erratic performances were also noted in 
 
            memory functioning.  Recall of geometric designs 
 
            was adequate, but earlier assessment of memory for 
 
            paragraph length material was grossly impaired.  
 
            Recall of word pairs was weak as well.  However, 
 
            the patient was temporally oriented, and mental 
 
            tracking performances were surprisingly adequate.
 
                 In order to get some idea of her capacity for 
 
            initiative, planning, and plan execution, the 
 
            Tinkertoy Test was administered.  The resulting 
 
            construction was somewhat vaguely named, but the 
 
            overall complexity score was within normal limits.
 
                 She generated an MMPI profile that appears to 
 
            be a reliable one, yet very abnormal one.  The 
 
            profile suggests very atypical and bizarre 
 
            thinking and experience, as well as multiple 
 
            somatic complaints, coupled with a high need for 
 
            attention.  Depression, anxiety, suspiciousness, 
 
            and frustrations were all very notable components.  
 
            In contrast, this patient's acceptance of 
 
            stereotypically feminine attitudes and interests 
 
            suggest considerable emotional constriction.
 
            
 
                 IMPRESSION:
 
                 Grossly erratic cognitive performances, with 
 
            clear evidence of impairments in attention, 
 
            concentration, and motivation.  There is little 
 
            doubt that the patient's emotional distress 
 
            clearly colored her test performances.  As a 
 
            result, her emotional turmoil may well serve to 
 
            mask more subtle bonafide cognitive deficits.  The 
 
            MMPI suggested major turmoil with somatic 
 
            overconcern and unusual thinking and experience.  
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            At the same time, such globally elevated profiles 
 
            are often seen in persons with underlying epilep
 
            tiform disorder.  It is impossible to determine 
 
            whether the patient's current mental status 
 
            difficulties were secondary to brain dysfunction 
 
            or emotional disturbance.  Certainly, the 
 
            patient's report of satisfactory educational, 
 
            occupational, and family life prior to her injury 
 
            could raise the question of a mild closed head 
 
            injury.  It is equally reasonable to assume that 
 
            the patient's emotional difficulties clearly 
 
            contributed to her erratic test performances.
 
            
 
            (Ex. AA2 & AA3)
 
            
 
                 Dr. Verduyn was questioned in his deposition of October 
 
            25, 1989, whether he agreed with the opinion of Dr. Bayless 
 
            that it was impossible to determine whether claimant's 
 
            medical problems were secondary to brain dysfunction or 
 
            emotional disturbances.  Dr. Verduyn determined both 
 
            secondary brain dysfunction and emotional disturbances 
 
            played a roll in claimant's condition.  One cause fed into 
 
            the other.  Dr. Verduyn treated claimant for partial complex 
 
            seizures with medication.  Claimant's headaches improved.  
 
            Dr. Verduyn opined claimant sustained a brain injury and 
 
            that it was very likely that claimant had struck her head 
 
            when she fell down the stairs.  However, he did acknowledge 
 
            that it was possible that claimant's emotional difficulties 
 
            contributed to her poor test performance.
 
            
 
                 Claimant was also examined and tested by M. Eyad 
 
            Dughly, M.D., a neurologist.  Dr. Dughly conducted an EEG.  
 
            He interpreted the report as a normal one.  In his report of 
 
            September 20, 1989, Dr. Dughly wrote:
 
            
 
                 (1)  Yes, Mrs. Moses did specifically indicate 
 
                 that she fell down three stairs in the initial 
 
                 intake history in our office.
 
            
 
                 (2)  Mrs. Moses did not tell us, during her 
 
                 initial examination or any of her follow up 
 
                 visits, that she struck her head when she fell 
 
                 down the stairs.  She reports that she was dazed 
 
                 but did not lose consciousness.
 
            
 
                 (3)  No, there were no objective signs that had 
 
                 indicated that Mrs. Moses had struck her head when 
 
                 she had fallen down the stairs.
 
            
 
                 (4)  Although there were no objective signs that 
 
                 Mrs. Moses had sustained any type of head injury 
 
                 from the fall down the stairs, she did report a 
 
                 significant increase in headaches since the 
 
                 accident.  It is known in the neurological 
 
                 literature that head trauma may precipitate or 
 
                 significantly worsen vascular headaches.  Although 
 
                 she did report mood changes, sleep impairment and 
 
                 cognitive changes, all of these are subjective com
 
                 plaints.
 
            
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
                 (5)  As previously stated, Mrs. Moses did not 
 
                 report during her initial history or in follow up 
 
                 visits that she had lost consciousness during the 
 
                 fall down the stairs, but, in the last visit, she 
 
                 reported that she did lose consciousness for an 
 
                 uncertain amount of time.
 
            
 
            (Ex. Y35)
 
            
 
                 Claimant was seen by a neurological surgeon on March 5, 
 
            1990, pursuant to a request by defendants.  Dr. Boarini 
 
            opined in his report of March 20, 1990:
 
            
 
                 Upon examination, this patient had an extremely 
 
                 flat affect.  She had a normal gait, but refused 
 
                 to cooperate with part of the examination 
 
                 including walking on her heels and toes, stating 
 
                 that she could not do those things.  This appeared 
 
                 to be quite inconsistent with her ability to 
 
                 otherwise move.  She had a normal range of motion 
 
                 in the neck in all directions and normal flexion 
 
                 in the lower back.  Romberg testing was normal and 
 
                 there was no evidence of any dysmetria or ataxia.  
 
                 Strength testing was normal in all groups.  
 
                 Funduscopic examination was normal.  The cranial 
 
                 nerves showed normal external ocular motility in 
 
                 all directions with no nystagmus.  Hearing was 
 
                 grossly intact.  Facial movement and sensation 
 
                 were normal.  Palate and tongue moved normally.  
 
                 The patient did complain of decreased sensation 
 
                 over the left face and leg, but said she could not 
 
                 tell whether there was decreased sensation in the 
 
                 left arm.  Interestingly, the patient split sensa
 
                 tion to a tuning fork over the midline including 
 
                 the skull and spine repeatedly.  This is clearly 
 
                 not a physiological finding and indicates either 
 
                 malingering or a psychological component to the 
 
                 complaint.  The patient's arms and forearms 
 
                 measured symmetrically.  Deep tendon reflexes were 
 
                 symmetric and physiologic in biceps, triceps, 
 
                 knees and ankles.  Plantar reflexes were downgoing 
 
                 bilaterally.
 
            
 
                 In summary, this patient had a fall in 1987 which 
 
                 is difficult to document precisely but there is no 
 
                 evidence as best I can tell that she has suffered 
 
                 any significant head injury.  She has an extremely 
 
                 long history of hard to treat headaches and a 
 
                 history of depression.  She has an entirely normal 
 
                 neurological examination at the present time.  I 
 
                 have reviewed CT scans from 1986 and an MRI scan 
 
                 of the head from 1989.  These are normal.  
 
                 Thoracic and lumbosacral spine films done in 1987 
 
                 are also normal.
 
            
 
                 I can find no evidence that there was a 
 
                 significant head injury at any time or that any of 
 
                 this patient's symptoms are related to the 1987 
 
                 incident.  There are strong functional overtones 
 
                 to her examination as well as an extremely flat 
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
                 affect, lack of cooperation, a history of 
 
                 clinically significant depression.  In terms of 
 
                 her injury in 1987, there is no basis for 
 
                 assigning an impairment rating or any work 
 
                 restrictions related to that.
 
            
 
            (Ex. V6)
 
            
 
                 Also, pursuant to a request from defendants, claimant 
 
            was examined on February 2, 1990, by Michael Taylor, M.D., a 
 
            psychiatrist.  At the hearing, Dr. Taylor testified:
 
            
 
                    Q.  What's your assessment, first of all?
 
            
 
                    A.  I did not see any abnormality of mental 
 
                 status examination at the time that I talked with 
 
                 her.  You need to understand that when I say 
 
                 mental status examination, I'm talking only about 
 
                 how she appeared on that day when I spoke with 
 
                 her.
 
            
 
                    Q.  Okay.  And what was your diagnosis then, 
 
                 Doctor, based upon your visit with her and her 
 
                 husband and your review of all the information?
 
            
 
                    A.  Somatization disorder.
 
            
 
                    Q.  And can you tell us in laymen's terms what 
 
                 that is?
 
            
 
                    A.  It is a disorder which starts usually in 
 
                 late adolescence or less frequently in early 20s, 
 
                 which is characterized by a fluctuating course 
 
                 that sometimes symptoms are more severe, sometimes 
 
                 symptoms are less severe, and the symptoms are a 
 
                 wide variety of medical complaints or somatic 
 
                 complaints which cause the person to seek medical 
 
                 attention and for which any organic cause is not 
 
                 found.
 
            
 
                      And the additional criteria is that these com
 
                 plaints have to involve a number of different 
 
                 organ symptoms rather than being just focused on 
 
                 one particular organ system.
 
            
 
                    Q.  This somatization disorder, is that the 
 
                 same or similar to hypochondria?
 
            
 
                    A.  No.  It is similar in that it's generally 
 
                 listed in the same section of the DSM-III, which 
 
                 is the way we categorize psychiatric disorders, 
 
                 but it is a much better researched and studied 
 
                 diagnostic entity than would be hypochondria, 
 
                 which is really more a lay term.
 
            
 
                    Q.  In your opinion, Doctor, based upon the 
 
                 various records that you reviewed, the depositions 
 
                 that you reviewed, and your meeting with Mr. and 
 
                 Mrs. Moses, in your opinion, how long had Julie 
 
                 Moses suffered from this disorder?
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
            
 
                    A.  Well, certainly since the early 1970s, but 
 
                 it's impossible to assess exactly when it started.  
 
                 She had a hospitalization at age five for what at 
 
                 that time was diagnosed as a catatonic state.  
 
                 There's very little information in the medical 
 
                 record about that.
 
            
 
                      The attending doctor was originally concerned 
 
                 about schizophrenia, and then -- which is a severe 
 
                 psychiatric illness, and then later when she was 
 
                 discharged attributed the so-called catatonic 
 
                 state to anxiety.  So it could well be that we 
 
                 were seeing early manifestations of this that far 
 
                 back.
 
            
 
                    Q.  Are there certain factors or elements that 
 
                 you look at to determine if a person has this 
 
                 disorder?  Is there a checklist or something of 
 
                 that nature?
 
            
 
                    A.  There is a checklist, and it's also 
 
                 important to have as much medical information as 
 
                 possible because these patients frequently don't 
 
                 like to accept the fact that this might be an 
 
                 emotional disorder rather than a physical 
 
                 disorder, so they're inclined to minimize some 
 
                 difficulties, and it's helpful to have as much 
 
                 outside information for that reason as possible.
 
            
 
                    Q.  Okay.  And you testified there is a 
 
                 particular checklist for this disorder.  How many 
 
                 factors are there that you look for?
 
            
 
                    A.  Well, the criteria -- the diagnostic 
 
                 criteria from the Diagnostic and Statistical 
 
                 Manual of the American Psychiatric Association, 
 
                 Edition Three Revised, has two main categories, 
 
                 but then the actual checklist is 35 symptoms 
 
                 involving seven different organ symptoms.  And in 
 
                 order to meet the criteria, 13 of the 35 symptoms 
 
                 must be met.
 
            
 
                    Q.  And from your review of Julie Moses' 
 
                 medical records before April 1987, how many of 
 
                 those symptoms did she in fact meet?
 
            
 
                    A.  Eighteen.
 
            
 
            (Partial Transcript, p. 10, line 10 through p. 13, line 11)
 
            
 
                 Dr. Taylor testified he saw no signs of a closed head 
 
            injury.  He opined that claimant's symptoms would improve 
 
            over time.  He also opined that claimant would not have been 
 
            any different on the date of the hearing even if she had not 
 
            fallen on April 23, 1987.  The basis for Dr. Taylor's 
 
            opinion is detailed in the transcript at pages 16-17 of the 
 
            partial transcript.  There Dr. Taylor testified:
 
            
 
                    A.  Well, the pattern of Julie Moses' somatic 
 

 
            
 
            Page  11
 
            
 
            
 
            
 
            
 
                 concerns or somatic complaints was well 
 
                 established long before the incident in April of 
 
                 1987.  The symptoms that she was experiencing now 
 
                 aren't significantly different from the symptoms 
 
                 she's experienced in the past.  I just can't 
 
                 conceive of any way that we could attach any 
 
                 significance to whatever it was that happened on 
 
                 April 23, 1987.  The situation has not changed her 
 
                 way of dealing with situations.  Dealing with 
 
                 stress has not changed from what it was before.
 
            
 
                    Q.  Doctor, are your opinions within a 
 
                 reasonable degree of medical certainty?
 
            
 
                    A.  Yes.
 
            
 
            (P.T., p. 16, l. 22 - p. 17, l. 10)
 
            
 
                 Dr. Taylor related the aforementioned 18 factors in his 
 
            testimony.  He stated:
 
            
 
                    A.  Vomiting other than during pregnancy, 
 
                 abdominal pain other than when menstruating, 
 
                 nausea other than motion sickness, diarrhea, pain 
 
                 in extremities, back pain, pain during urination, 
 
                 other pain excluding headache, shortness of breath 
 
                 when not exerting oneself, dizziness, amnesia or 
 
                 memory problems, difficulty swallowing, loss of 
 
                 voice, blurred vision, trouble walking, urinary 
 
                 retention or difficulty urinating, burning 
 
                 sensation in sexual organs or rectum other than 
 
                 intercourse, painful menstruation.
 
            
 
            (P.T., p. 23, l. 19 - p. 24, l. 4)
 
            
 
                 After her fall on April 23, 1987, claimant missed some 
 
            work.  It was impossible to determine from exhibit MM-18 
 
            which days were allocated to her workers' compensation 
 
            claim.  Claimant terminated her employment with 
 
            defendant-employer on September 26, 1988.  After her 
 
            termination, claimant was not employed, nor had she sought 
 
            employment.
 
            
 
                                conclusions of law
 
            
 
                 Claimant has the burden of proving by a preponderance 
 
            of the evidence that she received an injury on April 23, 
 
            1987, which arose out of and in the course of her 
 
            employment.  McDowell v. Town of Clarksville, 241 N.W.2d 904 
 
            (Iowa 1976); Musselman v. Central Telephone Co., 261 Iowa 
 
            352, 154 N.W.2d 128 (1967). 
 
            
 
                 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. 
 

 
            
 
            Page  12
 
            
 
            
 
            
 
            
 
            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 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 opinions of experts need not be couched in 
 
            definite, positive or unequivocal language.  Sondag v. 
 
            Ferris Hardward, 220 N.W.2d 903 (Iowa 1974).  An opinion of 
 
            an expert based upon an incomplete history is not binding 
 
            upon the commissioner, but must be weighed together with the 
 
            other disclosed facts and circumstances.  Bodish v. Fischer, 
 
            Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).  The expert 
 
            medical evidence must be considered with all other evidence 
 
            introduced bearing on the causal connection between the 
 
            injury and the disability.  Burt v. John Deere Waterloo 
 
            Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955).  In 
 
            regard to medical testimony, the commissioner is required to 
 
            state the reasons on which testimony is accepted or 
 
            rejected.  Sondag, 220 N.W.2d 903 (1974).
 
            
 
                 The claimant must prove by a preponderance of the 
 
            evidence that her injury arose out of and in the course of 
 
            her employment.  Musselman, 261 Iowa 352, 154 N.W.2d 128 
 
            (1967). 
 
            
 
                 In the course of employment means that the claimant 
 
            must prove her injury occurred at a place where she 
 
            reasonably may be performing her duties.  McClure, 188 
 
            N.W.2d 283 (Iowa 1971).
 
            
 
                 Arising out of suggests a causal relationship between 
 
            the employment and the injury.  Crowe, 246 Iowa 402, 68 
 
            N.W.2d 63 (1955).
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury of April 23, 
 
            1987, is causally related to the disability on which she now 
 
            bases her claim.  Bodish, 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, 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). 
 
            
 
                 While a claimant is not entitled to compensation for 
 

 
            
 
            Page  13
 
            
 
            
 
            
 
            
 
            the results of a preexisting injury or disease, the mere 
 
            existence at the time of a subsequent injury is not a 
 
            defense.  Rose v. John Deere Ottumwa Works, 247 Iowa 900, 
 
            908, 76 N.W.2d 756, 760-61 (1956).  If the claimant had a 
 
            preexisting condition or disability that is aggravated, 
 
            accelerated, worsened or lighted up so that it results in 
 
            disability, claimant is entitled to recover.  Nicks v. 
 
            Davenport Produce Co., 254 Iowa 130, 115 N.W.2d 812, 815 
 
            (1962).
 
            
 
                 When an aggravation occurs in the performance of an 
 
            employer's work and a causal connection is established, 
 
            claimant may recover to the extent of the impairment.  
 
            Ziegler v. United States Gypsum Co., 252 Iowa 613, 620, 106 
 
            N.W.2d 591, 595 (1960).
 
            
 
                 The Iowa Supreme Court cites, apparently with approval, 
 
            the C.J.S. statement that the aggravation should be material 
 
            if it is to be compensable.  Yeager v. Firestone Tire & 
 
            Rubber Co., 253 Iowa 369, 112 N.W.2d 299 (1961); 100 C.J.S. 
 
            Workmen's Compensation sec. 555(17)a.
 
            
 
                 Our supreme court has stated many times that a claimant 
 
            may recover for a work connected aggravation of a 
 
            preexisting condition.  Almquist v. Shenandoah Nurseries, 
 
            218 Iowa 724, 254 N.W. 35 (1934).  See also Auxier v. 
 
            Woodward State Hosp. Sch., 266 N.W.2d 139 (Iowa 1978); Gosek 
 
            v. Garmer and Stiles Co., 158 N.W.2d 731 (Iowa 1968); Barz 
 
            v. Oler, 257 Iowa 508, 133 N.W.2d 704 (1965); Olson v. 
 
            Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251 
 
            (1963); Yeager, 253 Iowa 369, 112 N.W.2d 299 (1961); 
 
            Ziegler, 252 Iowa 613, 106 N.W.2d 591 (1960).
 
            
 
                 An employer takes an employee subject to any active or 
 
            dormant health impairments, and a work connected injury 
 
            which more than slightly aggravates the condition is 
 
            considered to be a personal injury.  Ziegler, 252 Iowa 613, 
 
            620, 106 N.W.2d 591 (1960), and cases cited.
 
            
 
                 An employee is not entitled to recover for the results 
 
            of a preexisting injury or disease but can recover for an 
 
            aggravation thereof which resulted in the disability found 
 
            to exist.  Olson , 255 Iowa 1112, 125 N.W.2d 251 (1963); 
 
            Yeager, 253 Iowa 369, 112 N.W.2d 299 (1961); Ziegler, 252 
 
            Iowa 613, 106 N.W.2d 591 (1960).  See also Barz, 257 Iowa 
 
            508, 133 N.W.2d 704 (1965); Almquist, 218 Iowa 724, 254 N.W. 
 
            35 (1934).
 
            
 
                 If claimant has an impairment to the body as a whole, 
 
            an industrial disability has been sustained.  Industrial 
 
            disability was defined in Diederich v. Tri-City Railway Co., 
 
            219 Iowa 587, 593, 258 N.W.2d 899, 902 (1935) as follows: 
 
            "It is therefore plain that the legislature intended the 
 
            term `disability' to mean `industrial disability' or loss of 
 
            earning capacity and not a mere `functional disability' to 
 
            be computed in the terms of percentages of the total 
 
            physical and mental ability of a normal man."
 
            
 
                 Functional impairment is an element to be considered in 
 
            determining industrial disability which is the reduction of 
 

 
            
 
            Page  14
 
            
 
            
 
            
 
            
 
            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, 255 Iowa 1112, 125 N.W.2d 251 (1963).  
 
            Barton v. Nevada Poultry, 253 Iowa 285, 110 N.W.2d 660 
 
            (1961).
 
            
 
                 A finding of impairment to the body as a whole found by 
 
            a medical evaluator does not equate to industrial disabil
 
            ity.  This is so as impairment and disability are not syn
 
            onymous.  Degree of industrial disability can in fact be 
 
            much different than the degree of impairment because in the 
 
            first instance reference is to loss of earning capacity and 
 
            in the latter to anatomical or functional abnormality or 
 
            loss.  Although loss of function is to be considered and 
 
            disability can rarely be found without it, it is not so that 
 
            a degree of industrial disability is proportionally related 
 
            to a degree of impairment of bodily function.
 
            
 
                 Factors to be considered in determining industrial dis
 
            ability include the employee's medical condition prior to 
 
            the injury, immediately after the injury, and presently; the 
 
            situs of the injury, its severity and the length of healing 
 
            period; the work experience of the employee prior to the 
 
            injury, after the injury and potential for rehabilitation; 
 
            the employee's qualifications intellectually, emotionally 
 
            and physically; earnings prior and subsequent to the injury; 
 
            age; education; motivation; functional impairment as a 
 
            result of the injury; and inability because of the injury to 
 
            engage in employment for which the employee is fitted.  Loss 
 
            of earnings caused by a job transfer for reasons related to 
 
            the injury is also relevant.  These are matters which the 
 
            finder of fact considers collectively in arriving at the 
 
            determination of the degree of industrial disability.
 
            
 
                 There are no weighting guidelines that indicate how 
 
            each of the factors are to be considered.  There are no 
 
            guidelines which give, for example, age a weighted value of 
 
            ten percent of the total value, education a value of fifteen 
 
            percent of total, motivation - five percent; work experience 
 
            - thirty percent, etc.  Neither does a rating of functional 
 
            impairment directly correlate to a degree of industrial 
 
            disability to the body as a whole.  In other words, there 
 
            are no formulae which can be applied and then added up to 
 
            determine the degree of industrial disability.  It therefore 
 
            becomes necessary for the deputy or commissioner to draw 
 
            upon prior experience, general and specialized knowledge to 
 
            make the finding with regard to degree of industrial dis
 
            ability.  See Peterson v. Truck Haven Cafe, Inc., (Appeal 
 
            Decision, February 28, 1985);  Christensen v. Hagen, Inc., 
 
            (Appeal Decision, March 26, l985).
 
            
 
                 Claimant has sustained her burden of proving that she 
 
            had a work related injury which arose out of and in the 
 
            course of her employment.  She fell down three steps at the 
 
            Russel Lamson Building on April 23, 1987.  Claimant was in 
 
            the course of her employment when she tripped.  She was 
 
            leaving the building in order to post the daily mail for 
 
            defendant-employer.  Clearly, she sustained a work related 
 
            injury.
 

 
            
 
            Page  15
 
            
 
            
 
            
 
            
 
            
 
                 The next issue to address is whether claimant's claimed 
 
            injuries are causally related to her work injury of April 
 
            23, 1987.  Claimant alleges she has sustained injuries to 
 
            her neck, shoulders, lower back and that she has also 
 
            suffered a closed head injury.  There is no question 
 
            claimant has had a plethora of illnesses.  The medical 
 
            evidence is overwhelming.  Since age five, claimant has had 
 
            both physical and emotional difficulties.  Defendants cite 
 
            the following exhibits as indicative of claimant's prior 
 
            complaints:
 
            
 
                 D1 dated 12-13-78, F4 dated 1-27-84; F10 dated 
 
                 9-28-83; P3, P7 dated 12-5-86 and 12-30-86; CC1 
 
                 dated 8-30-76; CC2 dated 9-8-76; CC4 dated 9-23-76 
 
                 and 10-6-76; P2 dated 12-5-86, 12-9-86 and 
 
                 12-22-86; P7 dated 12-29-86; P5 dated 12-29-86; 
 
                 K11 dated 12-6-82; M28 dated 5-20-84; B1 dated 
 
                 1-29-74; B4 dated 2-9-87; C3 dated 11-30-82; C4 
 
                 dated 6-1-83 & 2-2-84: C5 dated 10-3-84; 11-1-84 & 
 
                 2-17-86; C7 dated 6-2-86; C3 dated 12-21-82 & 
 
                 12-28-82; A2 dated 4-12-83 & 4-15-83.
 
            
 
                 and,
 
            
 
                 L4-L9 dated 5-16-60; L20-23 dated 11-4-71; CC11 
 
                 dated 12-12-87; CC12 dated 12-28-87 & 1-29-88; P9 
 
                 dated 7-17-87; P12-14 dated 8-4-87; CC17 dated 
 
                 2-20-89; C4 dated 2-2-84; C5 dated 11-1-84; M3 
 
                 dated 5-21-84; P12-14 dated 8-4-87; BB4 dated 
 
                 11-19-87; BB5 dated 6-14 & 6-17-88.
 
            
 
                 Claimant, on cross-examination, had agreed she had seen 
 
            more than 30 medical practitioners prior to 4-23-87.  
 
            Between January 1985 and November 1985, claimant had seen 
 
            her chiropractor on 19 occasions.  From January 16, 1987 to 
 
            April 17, 1987, claimant had visited Dr. Peterson nine 
 
            times.  Claimant's post-injury complaints have encompassed 
 
            chronic pain complaints of all of the aforementioned body 
 
            parts plus complaints of left elbow pain.
 
            
 
                 With respect to claimant's left elbow injury this 
 
            injury is directly attributable to claimant's fall on April 
 
            23, 1987.  The day after the injury, claimant was given a 
 
            sling to wear on her left upper extremity.  A causal 
 
            connection exists between the left upper extremity injury 
 
            and the work injury on April 23, 1987.
 
            
 
                 With respect to the injuries involving the lower back, 
 
            shoulders, neck, hip and left lower extremities, there was 
 
            an aggravation of a pre-existing condition.  According to 
 
            Dr. Buckles' records for April 24, 1987, claimant sustained 
 
            "multiple contusions & sprains."  Dr. Buckles also noted 
 
            "lower thoracic soreness."  Dr. Johnston later confirmed Dr. 
 
            Buckles' diagnosis of "multiple contusions."  Dr. Buckles 
 
            and Dr. Johnston prescribed physical therapy for claimant's 
 
            "multiple contusions."  Dr. Peterson also treated claimant 
 
            for the same area both pre and post-injury.  However, Dr. 
 
            Peterson noted there was a different level of intensity 
 
            after the work injury.  He testified :
 

 
            
 
            Page  16
 
            
 
            
 
            
 
            
 
            
 
                    A.  I would have to answer that that there was 
 
                 a different level of intensity.  I do not have 
 
                 this marked as such.  I am going on the spasticity 
 
                 that she had when we first saw her the day of the 
 
                 24th, so I would have to answer that at that 
 
                 initial period of time, that there would have been 
 
                 an exaggeration of her level of intensity as far 
 
                 as her pain as compared to when she had come in 
 
                 prior to for just more or less general checkups.
 
            
 
            (Ex. VV, p. 57, ll. 11-19)
 
            
 
                 Dr. Peterson, in his testimony, later testified:
 
            
 
                    Q.  How long, in your opinion, Doctor, would it 
 
                 have taken -- did it take Julie to get back 
 
                 physically, her physical problems, back and 
 
                 cervical, to the point where she was at least 
 
                 before the time of the accident?
 
            
 
                    A.  I would say that on a fall such as she 
 
                 took, again, as I had stated before, that there 
 
                 was definitely an aggravation at a different level 
 
                 of intensity, and the fact that the areas we 
 
                 worked on she didn't really produce any new 
 
                 subluxation complex, she just aggravated her old 
 
                 condition, so I would say probably within a period 
 
                 of maybe 12 to 14 treatments that she was probably 
 
                 structurally physically back to about the same 
 
                 level as far as the neuromuscular involvement 
 
                 goes.
 
            
 
                    A.  What about the pain she was complaining of 
 
                 when she came in, did that tend to linger longer 
 
                 than prior to the accident?
 
            
 
                    Q.  Initially I would say that she probably had 
 
                 a little more intensity, but probably going back, 
 
                 again, when she came in prior to the accident, 
 
                 there were days when her pain threshhold [sic] she 
 
                 expressed quite a bit of pain; there were other 
 
                 times when it wasn't so bad.  Generally speaking 
 
                 we probably ran about that same pattern after the 
 
                 accident, although probably initially the first 
 
                 week or two she did express probably more pain at 
 
                 that time because of the aggravation of the 
 
                 tissues involved.
 
            
 
            (Ex. VV, p. 62, l. 17 - p. 63, l. 20)
 
            
 
                 It is the determination of the undersigned that 
 
            claimant aggravated her back, neck, shoulder, hip and leg 
 
            condition.
 
            
 
                 The next issue to address is whether there is a nexus 
 
            between the work injury and claimant's alleged closed head 
 
            injury and/or alleged psychological condition.  Claimant, in 
 
            her brief, alleges she sustained a closed head injury or, in 
 
            the alternative, that if "it is not a head injury something 
 

 
            
 
            Page  17
 
            
 
            
 
            
 
            
 
            occurred to Julie Moses to change the course of her life."
 
            
 
                 It is the decision of this deputy that claimant did not 
 
            sustain a closed head injury on April 23, 1987.  On the day 
 
            after the work injury, claimant told her treating physician 
 
            she had not hit her head in the fall.  The medical records 
 
            for April 24, 1987, do not reveal any bumps or bruises on 
 
            claimant's head.  Claimant did not relate to Dr. Buckles 
 
            that she had lost consciousness.  While claimant experienced 
 
            headaches post-injury, it is quite evident she had 
 
            experienced severe migraine headaches prior to her injury on 
 
            April 23, 1987.  The prior headaches were so painful 
 
            claimant required pain pills from her physicians for the 
 
            headaches.  Pre-injury, she even required emergency room 
 
            care for herself because of her headaches.
 
            
 
                 It is acknowledged that Dr. Verduyn diagnosed claimant 
 
            as having a closed head injury.  However, at the time of the 
 
            diagnosis, Dr. Verduyn had not had a complete medical 
 
            history for claimant.  He was only vaguely aware that 
 
            claimant had experienced previous headaches.  He was unaware 
 
            that claimant had encountered prior problems with blurred 
 
            vision.  He was not informed that claimant had previous 
 
            bouts of depression or anxiety problems.  Dr. Verduyn was 
 
            not aware of prior problems with dizziness, vertigo and 
 
            nausea.  He was not informed that on October 17, 1982, 
 
            claimant had fallen at home, struck her head and was 
 
            rendered unconscious.  His opinion is not accorded much 
 
            weight in light of the inaccurate medical history.
 
            
 
                 Then there is the April 5, 1980 report of Dr. Bayless.  
 
            He writes:
 
            
 
                 IMPRESSION:
 
                 Grossly erratic cognitive performances, with 
 
            clear evidence of impairments in attention, 
 
            concentration, and motivation.  There is little 
 
            doubt that the patient's emotional distress 
 
            clearly colored her test performances.  As a 
 
            result, her emotional turmoil may well serve to 
 
            mask more subtle bonafide cognitive deficits.  The 
 
            MMPI suggested major turmoil with somatic 
 
            overconcern and unusual thinking and 
 
            experience....
 
            
 
                 Dr. Bayless testified it was impossible to determine 
 
            whether claimant's mental difficulties were secondary to 
 
            brain dysfunction or emotional problems.  Additionally, Dr. 
 
            Bayless, like Dr. Verduyn, had an incomplete medical history 
 
            for claimant.  Dr. Bayless was told "there were no previous 
 
            closed head injuries."  He was not informed of the 1982 
 
            injury where claimant had lost consciousness, after striking 
 
            her head.  Moreover, Dr. Bayless was not provided with 
 
            claimant's pre-injury medical records prior to Dr. Bayless' 
 
            examination and testing.  Claimant described herself as 
 
            emotionally stable even though she had encountered prior 
 
            emotional problems which necessitated counseling.  It seems 
 
            Dr. Bayless, like Dr. Verduyn, had an inaccurate picture of 
 
            claimant.  The testimony of Dr. Bayless is considered less 
 
            than accurate since he had an inaccurate medical history.
 

 
            
 
            Page  18
 
            
 
            
 
            
 
            
 
            
 
                 A treating physician's testimony is not entitled to 
 
            greater weight as a matter of law than that of a physician 
 
            who later examines claimant in anticipation of litigation.  
 
            Weight to be given testimony of physician is a fact issue to 
 
            be decided by the industrial commissioner in light of the 
 
            record the parties develop.  In this regard, both parties 
 
            may develop facts as to the physician's employment in 
 
            connection with litigation, if so; the physician's 
 
            examination at a later date and not when the injuries were 
 
            fresh; his arrangement as to compensation; the extent and 
 
            nature of the physician's examination; the physician's 
 
            education, experience, training, and practice; and all other 
 
            factors which bear upon the weight and value of the 
 
            physician's testimony.  Both parties may bring all this 
 
            information to the attention of the fact finder as either 
 
            supporting or weakening the physician's testimony and 
 
            opinion.  All factors go to the value of the physician's 
 
            testimony as a matter of fact not as a matter of law.  
 
            Rockwell Graphic Systems, Inc. v. Prince, 366 N.W.2d 187, 
 
            192 (Iowa 1985).
 
            
 
                 Next, there is the opinion of Matthew Rizzo, M.D., a 
 
            board certified neurologist.  Dr. Rizzo examined claimant on 
 
            May 10, 1990.  Prior to rendering an opinion, Dr. Rizzo 
 
            reviewed all of claimant's medical records.  He opined 
 
            claimant had a normal neurological examination but that the 
 
            results of two of the tests were consistent with either 
 
            hysteria or malingering.  In his deposition, Dr. Rizzo 
 
            testified he saw no evidence of a closed head injury.
 
            
 
                 Likewise, there is the psychiatric examination.  There 
 
            is the testimony of Michael Taylor, M.D.  He found no 
 
            evidence of a closed head injury.
 
            
 
                 Finally, there is the fact that claimant did not 
 
            mention any possible closed head injury until after her 
 
            brother had suffered the same type of injury in a tragic 
 
            motorcycle accident.  This fact coupled with the fact that 
 
            the alleged closed head injury was not raised for many 
 
            months after the April fall, raises a question in this 
 
            deputy's mind whether claimant is entirely credible.  
 
            Claimant did not sustain a closed head injury as a result of 
 
            her April 23, 1987 work injury.
 
            
 
                 As mentioned previously, claimant, in her brief 
 
            contends if she did not sustain a closed head injury, 
 
            "something occurred to Julie Moses to change the course of 
 
            her life."  It is not clear to the undersigned what claimant 
 
            means by this statement.  Claimant does not come out and 
 
            state she is alleging a psychological claim as a result of 
 
            her injury on April 23, 1987.  Nor does claimant meet her 
 
            burden of proof with respect to a claim for psychological or 
 
            emotional injury.  Claimant has not proven that she has 
 
            sustained some type of post traumatic stress disorder.  Dr. 
 
            Bayless raised this as a possible cause for her poor cogni
 
            tive performance.  However, Dr. Taylor, a psychiatrist, 
 
            rather than a psychologist, refutes this possibility.  Dr. 
 
            Taylor opined claimant suffered from somatization disorder 
 
            which is totally unrelated to any fall on April 23, 1987.  
 

 
            
 
            Page  19
 
            
 
            
 
            
 
            
 
            More weight is given to the opinion of Dr. Taylor, a medical 
 
            doctor rather than to the opinion of Dr. Bayless, who is not 
 
            medically trained.
 
            
 
                 This deputy acknowledges claimant has some type of 
 
            emotional or psychological difficulty.  However, given 
 
            claimant's psychological problems since age 5, this deputy 
 
            can find no evidence that the problems were the direct 
 
            result of claimant's fall on April 23, 1987.  Rather, 
 
            claimant's difficulties seem to relate to her family or 
 
            marital situations.  Therefore, it is the decision of the 
 
            undersigned that claimant has not sustained a psychological 
 
            or emotional injury because of her fall on April 23, 1987.
 
            
 
                 Claimant did not incur any permanent injuries to the 
 
            body as a whole or to the left upper extremity.  There were 
 
            no objective findings to substantial any permanent partial 
 
            impairment.  Dr. Peterson declined to rate claimant as 
 
            having a permanent impairment.  Initially, Dr. Johnston 
 
            opined there was no permanency involved.  Only later did Dr. 
 
            Johnston provide a permanent impairment rating of five 
 
            percent.  Even then, his rating was based upon claimant's 
 
            subjective complaints as well as upon her responses to 
 
            touch.  Claimant's only restrictions were to refrain from 
 
            wearing high heeled shoes and to have a job where she was 
 
            able to freely move from position to position.  She had no 
 
            other restrictions.  Claimant did not sustain a permanent 
 
            partial disability.
 
            
 
                 In the pre-hearing report, the parties agreed that 
 
            while the issue of temporary total disability or healing 
 
            period benefits was in dispute, the parties stipulated the 
 
            time off work was from September 26, 1988.  Claimant is 
 
            unable to substantiate that she is entitled to temporary 
 
            total disability benefits from this date on since Dr. 
 
            Johnston, the treating orthopedic surgeon, opined claimant 
 
            had reached maximum medical improvement as of July 27, 1988.  
 
            Therefore, claimant has no temporary total disability ben
 
            efits due to her.
 
            
 
                 The final issue to address is whether claimant is 
 
            entitled to medical benefits pursuant to section 85.27.  
 
            This section provides in relevant portion:
 
            
 
                 The employer, for all injuries compensable under 
 
                 this chapter or chapter 85A, shall furnish 
 
                 reasonable surgical, medical, dental, osteopathic, 
 
                 chiropractic, podiatric, physical rehabilitation, 
 
                 nursing ambulance and hospital services and 
 
                 supplies therefor and shall allow reasonably 
 
                 necessary transportation expenses incurred for 
 
                 such services.  The employer shall also furnish 
 
                 reasonable and necessary crutches, artificial 
 
                 members and appliances but shall not be required 
 
                 to furnish more than one set of permanent 
 
                 prosthetic devices.
 
            
 
                     ...
 
            
 
                 For purposes of this section, the employer is 
 

 
            
 
            Page  20
 
            
 
            
 
            
 
            
 
                 obliged to furnish reasonable services and 
 
                 supplies to treat an injured employee, and has the 
 
                 right to choose the care.  The treatment must be 
 
                 offered promptly and be reasonably suited to treat 
 
                 the injury without undue inconvenience to the 
 
                 employee.  If the employee has reason to be 
 
                 dissatisfied with the care offered, the employee 
 
                 should communicate the basis of such 
 
                 dissatisfaction to the employer, in writing if 
 
                 requested, following which the employer and the 
 
                 employee may agree to alternate care reasonably 
 
                 suited to treat the injury.  If the employer and 
 
                 employee cannot agree on such alternate care, the 
 
                 commissioner may, upon application and reasonable 
 
                 proofs of the necessity therefor, allow and order 
 
                 other care.  In an emergency, the employee may 
 
                 choose the employee's  care at the employer's 
 
                 expense, provided the employer or the employer's 
 
                 agent cannot be reached immediately.
 
            
 
                 This division has held that it is inconsistent to deny 
 
            liability and the obligation to furnish care on one hand, 
 
            and at the same time, to claim a right to choose the care.  
 
            Therefore, a denial of liability precludes an employer from 
 
            selecting the medical care.  Lewis E. Jones v. R. M. Boggs 
 
            Company, Inc., File No. 655193 (Arbitration Decision - July 
 
            22, 1986); Kindhart v. Fort Des Moines Hotel, (Appeal 
 
            Decision, March 27, 1985); Barnhart v. MAQ Incorporated, I 
 
            Iowa Industrial Commissioner Report 16 (Appeal Decision 
 
            1981).
 
            
 
                 Only certain medical expenses which were incurred by 
 
            claimant are causally related to claimant's work injury of 
 
            April 23, 1987.  They are as follows:
 
            
 
                 Dr. Robert D. Buckles                          $   
 
            654.00
 
                 915 W. 4th St., W'loo                        Pd.   
 
            602.00
 
                 7/17/87 through 2/29/88                      Due    
 
            52.00
 
            
 
                 CNS Management and Rehab, P.C.                 $ 
 
            1,061.00
 
                 Dr. W. H. Verduyn                            Pd.   
 
            268.80
 
                 2051 Kimball Ave., W'loo                     Due   
 
            792.20
 
                 3/7/89 through 6/8/89
 
            
 
                 Orthopaedic Specialists                        $   
 
            398.00
 
                 Dr. Roswell M. Johnston                      Pd.   
 
            329.00
 
                 Ste. 330 Schoitz Med. Arts Ctr.              Due    
 
            69.00
 
                 2055 Kimball Ave., W'loo
 
                 2/12/88 through 5/30/90
 
            
 
                 Waterloo Physical Therapy Clinic, Inc.         $ 
 

 
            
 
            Page  21
 
            
 
            
 
            
 
            
 
            2,034.00
 
                 Dr. Buckles                                  Pd. 
 
            2,034.00
 
                 277 E. San Marnan Dr., W'loo                 Due     
 
            0.00
 
                 7/31/87 through 3/3/89
 
            
 
                 Covenant Medical Center                           
 
            unknown
 
                 for 4/24/87 emergency room only
 
            
 
                 Evansdale Chiropractic                         $ 
 
            2,395.44
 
                 office                                       Pd. 
 
            1,491.48
 
                 4/24/87 through 9/23/89                      Due   
 
            903.96
 
            
 
                 Clinical Radiologists, P.C.                       
 
            unknown
 
                 4/24/87, 5/5/87
 
                                                    Total          
 
            unknown
 
            
 
            
 
                                      order
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 Defendants are responsible for the payment of medical 
 
            bills as aforementioned in an unknown amount.
 
            
 
                 Defendants are responsible for the following costs of 
 
            claimant pursuant to rule 343 IAC 4.33:
 
            
 
                                   Witness Fees
 
                                        
 
                 1.  Northeastern Psych Clinic; Ken Wernimont         
 
            78.00
 
                 2.  Dr. John Bayless                                
 
            150.00
 
                 3.  Dr. Michael Taylor                              
 
            150.00
 
            
 
                              Deposition Transcripts
 
                                        
 
                 1.  Julie Moses 8/1/89                               
 
            37.95
 
                 2.  Julie Moses 8/18/89                              
 
            36.80
 
                 3.  Julie Moses 9/19/89                              
 
            33.35
 
                 4.  Dr. Roswell M. Johnston 2/19/90                  
 
            43.70
 
                 5.  Dr. Peterson 3/8/90                              
 
            83.95
 
            
 
            
 
                 Defendants shall file a claim activity report as 
 
            required by this division pursuant to rule 343 IAC 3.l.
 

 
            
 
            Page  22
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
                 Signed and filed this ____ day of July, 1991.
 
            
 
            
 
            
 
            
 
            
 
            
 
                                          ______________________________               
 
            MICHELLE A. McGOVERN
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 

 
            
 
            Page  23
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            Copies To:
 
            
 
            Mr. Jay P. Roberts
 
            Attorney at Law
 
            620 Lafayette St
 
            P O Box 178
 
            Waterloo  IA  50704
 
            
 
            Mr. James E. Walsh, Jr.
 
            Mr. Bruce L. Gettman, Jr.
 
            Attorneys at Law
 
            River Plaza Bldg
 
            10 W 4th St
 
            P O Box 596
 
            Waterloo  IA  50704
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                           5-1108.50
 
                           July 8, 1991
 
                           MICHELLE A. McGOVERN
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            JULIE MOSES,                  :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :         File No. 900554
 
            IOWA NORTHLAND REGIONAL       :
 
            COUNCIL OF GOVERNMENTS,       :      A R B I T R A T I O N
 
                                          :
 
                 Employer,                :         D E C I S I O N
 
                                          :
 
            and                           :
 
                                          :
 
            AETNA CASUALTY & SURETY,      :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
            5-1108.50
 
            Claimant's alleged closed head injury was not causally 
 
            related to claimant's work injury on April 23, 1987.
 
            
 
 
            
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
            DENNIE FIELDS,   
 
                        
 
                 Claimant,   
 
                        
 
            vs.                                  File Nos. 900561
 
                                                           900562
 
            GENUINE PARTS COMPANY,     
 
                                                  A P P E A L
 
                 Employer,   
 
                                                D E C I S I O N
 
            and         
 
                        
 
            TRAVELERS INSURANCE COMPANY,    
 
                        
 
                 Insurance Carrier,    
 
                 Defendants.      
 
            ____________________________________________________________
 
            The record, including the transcript of the hearing before 
 
            the deputy and all exhibits admitted into the record, has 
 
            been reviewed de novo on appeal.  The decision of the deputy 
 
            filed November 27, 1991 is affirmed and is adopted as the 
 
            final agency action in this case.
 
            Defendants shall pay the costs of the appeal, including the 
 
            preparation of the hearing transcript.
 
            Signed and filed this ____ day of November, 1992.
 
            
 
            
 
            
 
            
 
                                    ________________________________
 
                                            BYRON K. ORTON
 
                                       INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. R. Ronald Pogge
 
            Attorney at Law
 
            2700 Grand Avenue  STE 111
 
            Des Moines, Iowa  50312
 
            
 
            Mr. James E. Thorn
 
            Attorney at Law
 
            P O Box 398
 
            Council Bluffs, Iowa  51502-0398
 
            
 
 
            
 
 
 
 
 
 
 
 
 
                                             9998
 
                                             Filed November 25, 1992
 
                                             Byron K. Orton
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
            DENNIE FIELDS,   
 
                        
 
                 Claimant,   
 
                        
 
            vs.                                   File Nos. 900561
 
                                                            900562
 
            GENUINE PARTS COMPANY,     
 
                                                   A P P E A L
 
                 Employer,   
 
                                                 D E C I S I O N
 
            and         
 
                        
 
            TRAVELERS INSURANCE COMPANY,    
 
                        
 
                 Insurance Carrier,    
 
                 Defendants.      
 
            ____________________________________________________________
 
            
 
            9998
 
            
 
                 Summary affirmance of deputy's decision filed November 
 
            25, 1992.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            DENNIE FIELDS,                :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          : File Nos.  900561 & 900562
 
            GENUINE PARTS COMPANY,        :
 
                                          :    A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            TRAVELERS INSURANCE COMPANY,  :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding in arbitration brought by Dennie 
 
            Fields, claimant; against Genuine Parts Company, employer; 
 
            and Travelers Insurance Company, insurance carrier; 
 
            defendants, to recover benefits on account of one or more 
 
            alleged injuries.  This matter came on for hearing before 
 
            the undersigned deputy industrial commissioner July 11, 
 
            1990, in Council Bluffs, Iowa, and was considered fully 
 
            submitted at the close of the record.  The record in this 
 
            case consists of the testimony of Dennie Fields, claimant; 
 
            Sandra Fields, his wife; Gary Rosenbohm; Angeline Rome; and 
 
            joint exhibits 1 through 38, inclusive.  Claimant submitted 
 
            an excellent trial brief.  The deputy ordered a transcript 
 
            of the hearing.  Claimant submitted an excellent posthearing 
 
            supplemental brief.  Defendants did not submit a trial brief 
 
            or a posthearing brief.
 
            
 
                                      issues
 
            
 
                 Pursuant to the prehearing report and order submitted 
 
            and approved on July 11, 1990, the following issues are 
 
            presented for resolution:
 
            
 
                 1.  Whether the claimant sustained an injury arising 
 
            out of and in the course of employment between March 20, 
 
            1988 and April 1, 1988 (file number 900561) and/or a 
 
            cumulative injury on May 21, 1988 (file number 900562);
 
            
 
                 2.  Whether the injury or injuries are the cause of the 
 
            disability on which claimant now bases his claim;
 
            
 
                 3.  Claimant's entitlement to weekly benefits, if any;
 
            
 
                 4.  Claimant's entitlement to medical expenses under 
 
            Iowa Code section 85.27; and
 
            
 
                 5.  Whether claimant provided notice as mandated in 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            Iowa Code section 85.23.
 
            
 
                 It should be noted that claimant initially pled an 
 
            injury date of March 1, 1988, in file number 900561.  At the 
 
            time of the hearing, claimant amended the injury date 
 
            without objection from defendants and with consent of the 
 
            undersigned to sometime between March 20, 1988 and April 1, 
 
            1988 (transcript page 38).
 
            
 
                 The issue of Iowa Code section 85.38(2) credits was 
 
            withdrawn by the parties because they agreed it could be 
 
            worked out between themselves (tr. pp. 6-8).
 
            
 
                                 findings of fact
 
            
 
                 The undersigned deputy industrial commissioner, having 
 
            heard the testimony and considered all of the evidence finds 
 
            that:
 
            
 
                 Claimant began employment with defendant employer in 
 
            April 1963.  His only previous employment was that of an 
 
            upholsterer.  With defendants, claimant worked as a stock 
 
            clerk, order puller, back order clerk, field representative, 
 
            assistant to the stock room manager, and as a branch store 
 
            manager at the time of the alleged injuries.  Claimant last 
 
            worked on or about May 20, 1988.
 
            
 
                 In 1975, claimant was injured at work when a 400-lb 
 
            barrel fell on him.  Claimant underwent lumbar surgery 
 
            performed by Maurice Margules, M.D.  Claimant returned to 
 
            work without significant problems and remained essentially 
 
            problem-free until 1988.  (Claimant did experience some 
 
            problems in 1977 which required a short-term traction 
 
            therapy.  Claimant experienced intermittent problems with 
 
            stiffness thereafter, but sought no further medical care.)
 
            
 
                 Sometime in late March 1988 (claimant could only relate 
 
            the injury date to the opening of baseball season in Kansas 
 
            City) claimant described that he "pulled a battery, set it 
 
            on the shelf -- or on the counter and realized it was the 
 
            wrong one, so I started to the back of the store to grab 
 
            another one and I was going to the back, the phone rang and 
 
            I turned and that's when something popped." (tr. p. 35).  
 
            Claimant experienced pain in his lower back and down through 
 
            his leg which progressively became worse.  Claimant 
 
            continued to work until May 21, 1988, when the pain "just 
 
            got to the point where it was hurting bad enough that I knew 
 
            something was wrong so I went to see -- get it fixed." (tr. 
 
            p. 40).  
 
            
 
                 Claimant went to see a chiropractor on the advise of 
 
            Bill Perkins, manager of defendants' main counter in Omaha.  
 
            Claimant continued to experience pain and eventually went 
 
            back to see Dr. Margules on May 26, 1988.  Claimant was 
 
            hospitalized and Dr. Margules performed a neurolysis of the 
 
            L5 nerve root (removal of scar tissue) on the right on June 
 
            3, 1988, and was released from the hospital June 9, 1988.  
 
            Dr. Margules noted considerable scarring about the nerve and 
 
            that the dissection was somewhat difficult.  Claimant 
 
            continued to have problems and believes he has become worse 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            since the surgery.  Mrs. Fields believed claimant "went 
 
            downhill" after surgery.  Claimant was readmitted to the 
 
            hospital July 5, 1988 through July 16, 1988, for recurrent 
 
            back pain.  No treatment has eased claimant's symptoms and 
 
            pain.
 
            
 
                 Claimant has been seeing and/or treated by Daniel 
 
            McKinney, M.D., neurosurgeon; Robert Hacker, M.D., 
 
            neurosurgeon; John C. Van Gilder, M.D., professor of 
 
            neurosurgery at the University of Iowa Hospitals and 
 
            Clinics; and is currently under the medical care of John W. 
 
            Marshall, M.D., internal medicine.
 
            
 
                 Dr. McKinney offered a diagnosis of:
 
            
 
                    I thought Mr. Fields had suffered from a 
 
                 radiculopathy, which is an irritation of a nerve 
 
                 root, which was probably caused when he made his 
 
                 turn and the nerve root was encased in scar tissue 
 
                 and unable to have normal mobility and, thus, it 
 
                 was irritated.  I also thought he was suffering 
 
                 from a degenerative lumbar disc of longstanding.
 
            
 
            (joint exhibit 38, page 8)
 
            
 
                 Dr. McKinney acknowledged that what occurred at work in 
 
            March of 1988 did not cause the scarring which would have 
 
            resulted from the 1975 surgery.  However, Dr. McKinney 
 
            stated that while scarring is a normal part of healing, 
 
            "Some people do develop more than others and I think that 
 
            usually it doesn't bother unless there is some other injury 
 
            involved." (ex. 38, p. 15).  Dr. McKinney went on to explain 
 
            that although he did not totally disagree with Dr. Margules' 
 
            diagnosis that claimant's condition was caused by the scar 
 
            tissue:
 
            
 
                    I think that certainly the perineural scar 
 
                 tissue set up the -- set up the -- set the picture 
 
                 for the patient's complaints.  I think that had he 
 
                 not had that, he probably wouldn't have had any 
 
                 difficulty when he turned to answer the phone.  So 
 
                 I -- but I think that, you know, the onset of his 
 
                 symptoms, I think there must have been some 
 
                 torsion or stretching of the nerve root to cause 
 
                 this type of intractable pain which he complained 
 
                 about.
 
            
 
            (joint exhibit 38, page 22)
 
            
 
                 Dr. Hacker, who evaluated claimant on November 14, 
 
            1988, found:
 
            
 
                    He described a back injury occurring in 1975 
 
                 that was treated with lumbar disc surgery.  
 
                 Recurrent symptoms occured [sic] while lifting and 
 
                 twisting in March of 1988.  Pain in the lowback 
 
                 [sic] and diffusely about the right leg was his 
 
                 problem and unfortunately this problem did not 
 
                 improve with conservative therapies and 
 
                 chiropractic treatment.  A repeat operation was 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
                 performed in June of 1988, and he was told that 
 
                 scar tissue was found without disc being evident.  
 
                 His right leg pain apparently was worse and 
 
                 despite conservative therapies with medication and 
 
                 physical therapy his symptoms have not improved.
 
            
 
                 ...
 
            
 
                 I expect that Mr. Fields has a chronic lumbar pain 
 
                 problem due to lumbar disc surgery, scarification 
 
                 and I presume lumbar arachnoiditis.  In my 
 
                 experience these problems can be quite disabling 
 
                 with pain and immobility the result.
 
            
 
            (joint exhibit 17)
 
            
 
                 Dr. Van Gilder, who saw claimant September 20, 1988, 
 
            diagnosed arachnoiditis at L5 and recommended conservative 
 
            treatment stating that "perhaps with prolonged physical 
 
            therapy he may demonstrate some improvement in his 
 
            symptomatology." (ex. 10, p. 2).  
 
            
 
                 Claimant is in constant pain, has difficulty sitting 
 
            and standing, can only walk short distances, has used a cane 
 
            since July of 1988 and on occasion uses a wheelchair.  
 
            Claimant eats his meals while lying in a recliner and cannot 
 
            do his previous job with defendant employer.  
 
            
 
                 Defendant employer asserts claimant failed to provide 
 
            notice of the alleged injury as required by statute.  Sandra 
 
            Fields recalled contacting Angie Rome when claimant first 
 
            began seeing a chiropractor to inquire whether the bills 
 
            would be covered by insurance.  Mrs. Fields specifically 
 
            recalled telling the personnel director that claimant was 
 
            injured when he turned to answer the phone at work.  Ms. 
 
            Rome has no specific recollection of any such conversation 
 
            and asserted the first time she was aware that claimant was 
 
            claiming an injury arising out of and in the course of 
 
            employment was when she received a letter from defendants' 
 
            counsel dated August 30, 1988.  
 
            
 
                 Gary Rosenbohm, who took over as store manager and had 
 
            worked with claimant prior to claimant's leaving employment 
 
            May 21, 1988, recalled that claimant told him he injured his 
 
            back when he twisted to answer the phone and that Angie 
 
            Rome, when claimant was in the hospital the first time, 
 
            called and asked him how claimant got hurt.  Rosenbohm 
 
            testified that he told her claimant injured his back while 
 
            twisting to answer the telephone immediately after lifting a 
 
            battery (tr. pp. 19 & 20).  Ms. Rome denied any such call 
 
            occurred.  (tr. p. 72).  
 
            
 
                 First reports of injury were filed with the industrial 
 
            commissioner on March 9, 1989.  The report filed in file 
 
            number 900561 indicates an injury date on or about March 1, 
 
            1988, a commencement of disability on May 13, 1988, and that 
 
            the employer first knew of the condition May 21, 1988.  The 
 
            injury in this file on the first report of injury is 
 
            described as "twisted around to answer telephone while 
 
            walking down aisle."  File number 900562 reflects an injury 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            date of May 21, 1988, with the same date used to report when 
 
            the employer first knew of the condition.  Neither report is 
 
            signed nor dated.
 
            
 
                          CONCLUSIONS of law and analysis
 
            
 
                 Before any other issue is discussed it is first 
 
            necessary to determine whether claimant provided notice to 
 
            defendant employer as provided by Iowa Code section 85.23.
 
            
 
                 Section 85.23 requires an employee to give notice of 
 
            the occurrence of an injury to the employer within 90 days 
 
            from the date of the occurrence, unless the employer has 
 
            actual knowledge of the occurrence of the injury.
 
            
 
                 The purpose of the 90-day notice or actual knowledge 
 
            requirement is to give the employer an opportunity to timely 
 
            investigate the facts surrounding the injury.  The actual 
 
            knowledge alternative to notice is met when the employer, as 
 
            a reasonably conscientious manager, is alerted to the 
 
            possibility of a potential compensation claim through 
 
            information which makes the employer aware that the injury 
 
            occurred and that it may be work related.  Dillinger v. City 
 
            of Sioux City, 368 N.W.2d 176 (Iowa 1985); Robinson v. Dep't 
 
            of Transp., 296 N.W.2d 809 (Iowa 1980).  The time period for 
 
            giving notice does not begin to run until the claimant as a 
 
            reasonable person, should recognize the nature, seriousness 
 
            and probable compensable character of the injury.  The 
 
            reasonableness of claimant's conduct is to be judged in 
 
            light of claimant's education and intelligence.  Claimant 
 
            must know enough about the condition or incident to realize 
 
            that it is both serious and work connected.  Positive 
 
            medical information is unnecessary if information from any 
 
            source gives notice of the condition's probable 
 
            compensability.  Robinson, 296 N.W.2d at 812.
 
            
 
                 Failure to give notice is an affirmative defense which 
 
            the employer must prove by a preponderance of the evidence.  
 
            DeLong v. Highway Comm'n, 229 Iowa 700, 295 N.W. 91 (1940).
 
            
 
                 As noted above, the burden of proof of failure to give 
 
            notice is upon the employer.  The undersigned concludes that 
 
            that burden has not been met in this case.
 
            
 
                 The undersigned finds convincing the testimony of Gary 
 
            Rosenbohm (who told Angie Rome in May that claimant injured 
 
            his back answering the telephone at work) and Sandra Fields 
 
            (who explained to Angie Rome how claimant injured his back 
 
            when inquiring about the payment of chiropractic bills just 
 
            as claimant began seeing the chiropractor May 21, 1988.)  
 
            Ms. Rome appeared to the undersigned to be a concerned 
 
            personnel manager who kept abreast of all that was going on 
 
            in the company with employees as well as with their 
 
            families.  It seems inconsistent that she would have been 
 
            aware of medical treatment without inquiring as to the 
 
            reasons for that treatment.  The undersigned does not mean 
 
            to cast doubt on Ms. Rome's credibility because of her lack 
 
            of recollection.  However, it is concluded that such 
 
            conversations did take place.  As these phone calls occurred 
 
            well within 90 days from the time claimant answered the 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            telephone and initially injured his back, notice cannot be 
 
            an issue.
 
            
 
                 Finally, although not conclusive on the issue of 
 
            notice, both first reports of injury filed in these cases, 
 
            show that the employer was aware on May 21, 1988, that 
 
            claimant was alleging an injury arising out of and in the 
 
            course of employment.  Again, the defense of notice under 
 
            Iowa Code section 85.23 must, therefore, fail.
 
            
 
                 Attention is thus turned to whether, and when, claimant 
 
            sustained an injury arising out of and in the course of his 
 
            employment.
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the alleged injury 
 
            actually occurred and that it arose out of and in the course 
 
            of employment.  McDowell v. Town of Clarksville, 241 N.W.2d 
 
            904 (Iowa 1976); Musselman v. Cent. Tel. Co., 261 Iowa 352, 
 
            154 N.W.2d 128 (1967).  The words "arising out of" refer to 
 
            the cause or source of the injury.  The words "in the course 
 
            of" refer to the time, place and circumstances of the 
 
            injury.  Sheerin v. Holin Co., 380 N.W.2d 415 (Iowa 1986); 
 
            McClure v. Union County, 188 N.W.2d 283 (Iowa 1971).
 
            
 
                 Claimant asserts a cumulative trauma occurring May 21, 
 
            1988.  
 
            
 
                 When the disability develops gradually over a period of 
 
            time, the "cumulative injury rule" applies.  For time 
 
            limitation purposes, the compensable injury is held to occur 
 
            when because of pain or physical disability, the claimant 
 
            can no longer work.  McKeever Custom Cabinets v. Smith, 379 
 
            N.W.2d 368 (Iowa 1985).
 
 
 
                 The evidence does not establish claimant's condition 
 
            which led to his disability developed gradually over a 
 
            period of time.  Rather, the act which precipitated 
 
            claimant's condition occurred when he turned to answer the 
 
            phone.  Claimant did not gradually experience pain until it 
 
            became disabling.  Claimant was fine until a traumatic 
 
            event, the turning to answer the phone, occurred.
 
            
 
                 The mere fact that claimant continued to work after the 
 
            traumatic event does not give rise to a cumulative injury.  
 
            Claimant did not become disabled from the traumatic event 
 
            until May 21, 1988.  Simply because claimant left work on 
 
            May 21, 1988, does not allow the undersigned to conclude 
 
            that any new injury occurred on that date.  Claimant's 
 
            condition came about as a result of turning to answer the 
 
            phone.  Therefore, it is concluded (1) that claimant's 
 
            injury occurred as alleged in file number 900561 and (2) 
 
            that no injury arising out of and in the course of 
 
            employment as alleged in file number 900562 occurred on May 
 
            21, 1988.
 
            
 
                 "An injury occurs in the course of the employment when 
 
            it is within the period of employment at a place the 
 
            employee may reasonably be, and while he is doing his work 
 
            or something incidental to it."  Cedar Rapids Comm. Sch. 
 
            Dist. v. Cady, 278 N.W.2d 298 (Iowa 1979), McClure, 188 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            N.W.2d 283; Musselman, 261 Iowa 352, 154 N.W.2d 128. 
 
            
 
                 The record establishes that the claimant's actions of 
 
            answering the phone meet the tests cited above.
 
            
 
                 The words "out of" refer to the cause or source of the 
 
            injury.  Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 402, 
 
            68 N.W.2d 63 (1955). 
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury is a proximate 
 
            cause of the disability on which the claim is based.  A 
 
            cause is proximate if it is a substantial factor in bringing 
 
            about the result; it need not be the only cause.  A 
 
            preponderance of the evidence exists when the causal 
 
            connection is probable rather than merely possible.  
 
            Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa 
 
            1980); Holmes v. Bruce Motor Freight, Inc., 215 N.W.2d 296 
 
            (Iowa 1974).
 
            
 
                 The question of causal connection is essentially within 
 
            the domain of expert testimony.  The expert medical evidence 
 
            must be considered with all other evidence introduced 
 
            bearing on the causal connection between the injury and the 
 
            disability.  The weight to be given to any expert opinion is 
 
            determined by the finder of fact and may be affected by the 
 
            accuracy of the facts relied upon by the expert as well as 
 
            other surrounding circumstances.  The expert opinion may be 
 
            accepted or rejected, in whole or in part.  Sondag v. Ferris 
 
            Hardware, 220 N.W.2d 903 (Iowa 1974); Anderson v. Oscar 
 
            Mayer & Co., 217 N.W.2d 531 (Iowa 1974); Bodish v. Fischer, 
 
            Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).
 
            
 
                 There can be no dispute that claimant suffered from a 
 
            preexisting condition.  Claimant had had prior back problems 
 
            which had resulted in surgery and had continuing problems in 
 
            1977.  No allegation is made, nor could it be made, that the 
 
            act of turning to answer the phone caused the scar tissue to 
 
            form.  Defendants' counsel pointed out in Dr. McKinney's 
 
            testimony that, notwithstanding this incident, scar tissue 
 
            had formed as a result of the previous surgery.  However, 
 
            the fact that claimant suffered from a preexisting condition 
 
            does not prevent the finding of a compensable injury.
 
            
 
                 While a claimant is not entitled to compensation for 
 
            the results of a preexisting injury or disease, its mere 
 
            existence at the time of a subsequent injury is not a 
 
            defense.  Rose v. John Deere Ottumwa Works, 247 Iowa 900, 76 
 
            N.W.2d 756 (1956).  If the claimant had a preexisting 
 
            condition or disability that is materially aggravated, 
 
            accelerated, worsened or lighted up so that it results in 
 
            disability, claimant is entitled to recover.  Nicks v. 
 
            Davenport Produce Co., 254 Iowa 130, 115 N.W.2d 812 (1962); 
 
            Yeager v. Firestone Tire & Rubber Co., 253 Iowa 369, 112 
 
            N.W.2d 299 (1961).
 
            
 
                 As previously stated, claimant had prior back surgery.  
 
            However, from 1975 until 1988, with the exception of a brief 
 
            period in 1977, claimant worked regularly, had little pain 
 
            and was able to perform satisfactorily all of the 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            responsibilities of a store branch manager.  While the scar 
 
            tissue had built up around the surgery site since the time 
 
            of the surgery, this condition was not disabling and did not 
 
            affect claimant's abilities to maintain his employment at an 
 
            acceptable level until the occurrence of the traumatic 
 
            event.  While this condition made claimant more susceptible 
 
            to injury, 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.
 
            
 
                 Dr. McKinney clearly relates claimant's actions in 
 
            answering the phone to his current disability when he 
 
            testified:
 
            
 
                 Q. [I]s it still your opinion within a reasonable 
 
                 degree of medical certainty that the symptoms for 
 
                 which you examined Mr. Fields are compatible with 
 
                 the type of incident he described when he turned 
 
                 and felt the immediate pain in his back and down 
 
                 his legs?
 
            
 
                 A. Yes.
 
            
 
                 Q.  Okay.  And, Doctor, from the operative report 
 
                 and the other records you've studied and your 
 
                 examination of Mr. Fields, do you have any reason 
 
                 to believe that if he had not turned at that 
 
                 moment that he would have felt pain anyway?
 
            
 
                 A.  I don't think that he would have.  There is a 
 
                 possibility he might have.
 
            
 
            (joint exhibit 38, page 26)
 
            
 
                 Finally, although it has already been concluded 
 
            claimant did not sustain a new injury on May 21, 1988, the 
 
            fact that claimant continued to work following the original 
 
            incident is further evidence of a continual aggravation of 
 
            the preexisting condition.  Clearly, claimant's actions in 
 
            continuing to work during this period of time could not have 
 
            made his back any better.
 
            
 
                 It is concluded that claimant has established that the 
 
            injury is the cause of the disability on which he now bases 
 
            his claim.  While claimant suffered from the preexisting 
 
            condition, the same did not become symptomatic until the 
 
            time of the traumatic event.  It was the traumatic event 
 
            which gave rise to the second surgical procedure from which 
 
            claimant has not and is not expected to recover to his 
 
            presurgical level of activity.  Causal connection has been 
 
            established through both expert and lay testimony.  
 
            
 
                 Since the parties have stipulated and agreed that, if 
 
            the injury is found compensable, they can agree on medical 
 
            expenses pursuant to Iowa Code section 85.27 both past and 
 
            future and credits for each, that issue will not be 
 
            specifically addressed herein (tr. pp. 6-8).  
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            
 
                 The final issue for resolution is the extent of 
 
            claimant's disability.  
 
            
 
                 Since claimant has an injury to the body as a whole, an 
 
            industrial disability has been sustained.  Industrial 
 
            disability was defined in Diederich v. Tri-City Ry. Co., 219 
 
            Iowa 587, 258 N.W.2d 899 (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, motivation, loss of earnings, severity and situs 
 
            of the injury, work restrictions, inability to engage in 
 
            employment for which the employee is fitted and the 
 
            employer's offer of work or failure to so offer.  Olson v. 
 
            Goodyear Serv. Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963); 
 
            McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980); 
 
            Barton v. Nevada Poultry Co., 253 Iowa 285, 110 N.W.2d 660 
 
            (1961).
 
            
 
                 The evidence in this case clearly establishes that 
 
            claimant is totally incapacitated by pain.  Dr. McKinney, 
 
            when he saw claimant on July 11, 1988, found claimant unable 
 
            to work and provided a guarded prognosis on the basis that 
 
            conditions such as the claimant finds himself are difficult 
 
            to treat and often do not respond to usual types of 
 
            treatment.  (See joint exhibit 38, page 11, lines 16 through 
 
            18).
 
            
 
                 No physician has provided any treatment nor recommended 
 
            any treatment which might alter for the better claimant's 
 
            condition.  On July 7, 1989, John Marshall, M.D., who is 
 
            claimant's treating doctor, reported:
 
            
 
                 My impression of Mr. Fields situation is of 
 
                 chronic low back pain which seems to be 
 
                 essentially incapacitating, partially as it 
 
                 relates to his physique and general size.  It is 
 
                 unlikely that he will have any significant 
 
                 improvement over the years.  I sincerely doubt 
 
                 that he will ever be functional to the point that 
 
                 he was prior to his back pains that he was 
 
                 admitted for on the 20th of May in 1988.  I know 
 
                 Mr. Fields has been trying to obtain disability, 
 
                 but apparently has been turned down.  I quite 
 
                 honestly do not see how Mr. Fields will have any 
 
                 hopes of significant rehabilitation or promise for 
 
                 meanful employment given his current condition.  I 
 
                 also doubt there will be significant improvement 
 
                 in the immediate future.  As far as Mr. Fields' 
 
                 restrictions, I feel that he will be limited to 
 
                 sitting for short periods of time or lying and 
 
                 that prolonged standing, sitting, and walking will 
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
                 be quite uncomfortable for him.  I'm unsure as to 
 
                 whether any of these positions will risk further 
 
                 injury, however, I feel he will have a significant 
 
                 amount of discomfort which would prevent him from 
 
                 being gainfully employed.
 
            
 
            (joint exhibit 19, page 2)
 
            
 
                 Claimant had no significant problems prior to this 
 
            injury.  Although claimant had sustained a prior injury to 
 
            his back, it did not prevent him from gainful employment and 
 
            specifically did not prevent him from returning to his 
 
            regular employment.  Apportionment under such circumstances 
 
            is inappropriate and unavailable.  Bearce v. FMC 
 
            Corporation, 465 N.W.2d 531 (Ia. App. 1991).  Claimant is 
 
            incapable, as a result of this injury, from seeking and 
 
            maintaining any type of gainful employment.  Claimant is, 
 
            therefore, entitled to permanent total disability benefits 
 
            commencing May 21, 1988.
 
            
 
                                      order
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 Defendants shall pay unto claimant permanent total 
 
            disability benefits at the rate of three hundred 
 
            thirty-seven and 12/100 dollars ($337.12) per week as 
 
            stipulated to by the parties commencing May 21, 1988, and 
 
            continuing for the period of disability.
 
            
 
                 All benefits that have accrued shall be paid to 
 
            claimant in a lump sum together with statutory interest 
 
            thereon pursuant to Iowa Code section 85.30.
 
            
 
                 Defendants shall pay all medical expenses pursuant to 
 
            Iowa Code section 85.27 as stipulated and agreed to by the 
 
            parties on the record at the hearing (tr. pp. 6-8).
 
            
 
                 Costs of this action are assessed against defendants 
 
            pursuant to Iowa Code section 86.40.
 
            
 
                 Signed and filed this ____ day of November, 1991.
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          WALTER R. McMANUS, JR.
 
                                          DEPUTY INDUSTRIAL COMMISSIONER    
 
            
 
            Copies to:
 
            
 
            Mr. R. Ronald Pogge
 
            Attorney at Law
 
            2700 Grand Ave, STE 111
 
            Des Moines, IA  50312
 
            
 
            Mr. James Thorn
 
            Attorney at Law
 
            310 Kanesville Blvd.
 

 
            
 
            Page  11
 
            
 
            
 
            
 
            
 
            PO Box 398
 
            Council Bluffs, IA  51502
 
            
 
                 
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
                                          51106 51108.50 51401 51402.20 
 
                                          51402.30 52206 52209 1402.40 
 
                                          51804 52401 52803
 
                                          Filed November 27, 1991 
 
                                          Walter R. McManus, Jr.
 
            
 
                           before the iowa industrial 
 
                                   commissioner
 
            ____________________________________________________________
 
                                          :
 
            DENNIE FIELDS,                :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          : File Nos.  900561 & 900562
 
            GENUINE PARTS COMPANY,        :
 
                                          :    A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            TRAVELERS INSURANCE COMPANY,  :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            51106 51108.50 51401 51402.20 51402.30 52206 52209
 
            It was found that claimant did sustain an injury arising out 
 
            of and in the course of employment when he turned to answer 
 
            the telephone at work and scar tissue from a lumbar 
 
            laminectomy in 1975 that had entrapped the nerve root caused 
 
            an aggravation of a preexisting condition.
 
            It was determined there was no cumulative injury on a second 
 
            date alleged by claimant approximately one month after the 
 
            traumatic injury described in the foregoing paragraph.
 
                 
 
            1402.40 51804
 
            Claimant awarded permanent total disability benefits.  
 
            Several doctors said he was unemployable.  There was no 
 
            controverting medical or other evidence to the contrary.
 
            
 
            52401 52803
 
            Claimant gave proper notice through his wife.  Also, 
 
            employer had actual notice through a coemployee of claimant.  
 
            Also, the first reports of injury showed actual notice 
 
            within 90 days of the injury.
 
            
 
 
         
 
         Page   1
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         ____________________________________________________________
 
                                       :
 
         TIMOTHY J. PARSON,            :
 
                                       :
 
              Claimant,                :
 
                                       :
 
         vs.                           :
 
                                       :      File No.  900577
 
         MARTIN ENGINEERING CO.,       :
 
                                       :    A R B I T R A T I O N
 
              Employer,                :
 
                                       :      D E C I S I O N
 
         and                           :
 
                                       :
 
         LIBERTY MUTUAL INSURANCE CO., :
 
                                       :
 
              Insurance Carrier,       :
 
              Defendants.              :
 
         ___________________________________________________________
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding in arbitration brought by Timothy J. 
 
         Parson, claimant, against Martin Engineering Company, employer 
 
         and Liberty Mutual Insurance Company, insurance carrier, 
 
         defendants, for benefits as the result of an alleged injury which 
 
         occurred on March 28, 1988.  A hearing was held in Davenport, 
 
         Iowa, on July 31, 1990, and the case was fully submitted at the 
 
         close of the hearing.  Claimant was represented by Mike Kane.  
 
         Defendants were represented by Greg A. Egbers.  The record 
 
         consists of the testimony of Timothy J. Parson, claimant; Lou 
 
         Gutierrez, assistant manager; Larry Goldbeck, manager engineering 
 
         systems and services; and the rebuttal testimony of Chris Babcock 
 
         and claimant.   The written exhibits admitted into evidence are 
 
         defendants' exhibits A through I.  Defendants objected to 
 
         claimant's exhibit 1, and it was excluded, because it was not 
 
         served within 15 days prior to the hearing as required by 
 
         paragraph seven of the hearing assignment order.  Defendants also 
 
         objected to the testimony of Chris Babcock for the reason that a 
 
         witness list had not been served on defendants within 15 days 
 
         prior to the hearing.  The objection was sustained and Babcock 
 
         was not allowed to testify during claimant's case in chief; he 
 
         was allowed to testify, without objection, as a rebuttal witness 
 
         within a limited rebuttal scope.  Defendants ordered a transcript 
 
         of the hearing and offered to supply a copy to the industrial 
 
         commissioner's file.  Defendants counsel attached a description 
 
         of disputes to the prehearing report.  Defendants' attorney 
 
         submitted posthearing briefs.  Claimant's attorney did not file a 
 
         brief.
 
         
 
                                   STIPULATIONS
 

 
         
 
         Page   2
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
              The parties stipulated to the following matters:
 
         
 
              That an employer-employee relationship existed between 
 
         claimant and employer at the time of the alleged injury.
 
         
 
              That the type of permanent disability, if the injury is 
 
         found to be a cause of permanent disability, is industrial 
 
         disability to the body as a whole.
 
         
 
              That the rate of compensation is $291.95 per week.
 
         
 
              That the fees charged for medical services and supplies are 
 
         fair and reasonable.
 
         
 
              That the causal connection of the expenses to treatment for 
 
         a medical condition upon which claimant is now basing his claim 
 
         is admitted, but that the causal connection of this condition to 
 
         a work injury remains an issue to be decided by these 
 
         proceedings.
 
         
 
              That defendants make no claim for credit for employee 
 
         nonoccupational group health plan benefits or workers' 
 
         compensation benefits paid to claimant prior to hearing.
 
         
 
              That there are no bifurcated claims.
 
         
 
              That defendants were no longer asserting a jurisdiction 
 
         defense as was indicated in the prehearing report.  Furthermore, 
 
         jurisdiction was not designated as a hearing issue on the hearing 
 
         assignment order.
 
         
 
                                      ISSUES
 
         
 
              The parties submitted the following issues for determination 
 
         at the time of the hearing:
 
         
 
              Whether claimant sustained an injury on March 28, 1988, 
 
         which arose out of and in the course of employment with employer.
 
         
 
              Whether the injury was the cause of either temporary or 
 
         permanent disability.
 
         
 
              Whether claimant is entitled to either temporary or 
 
         permanent disability benefits.
 
         
 
              Whether claimant is entitled to medical benefits under Iowa 
 
         Code section 85.27.
 
         
 
              Whether claimant gave proper notice, as required by Iowa 
 
         Code section 85.23, was asserted as an affirmative defense by 
 
         defendants.
 
         
 
                                 FINDINGS OF FACT
 
         
 
                                      INJURY
 
         
 

 
         
 
         Page   3
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
              Claimant did sustain an injury on March 28, 1988, which 
 
         arose out of and in the course of employment with employer.
 
         
 
              Claimant testified that he was hired by employer on March 
 
         28, 1988.  Coincidentally, this was claimant's first, last and 
 
         only day of work for employer.  Claimant was to perform welding 
 
         work on a coal hopper.  The area was covered with fly ash.  The 
 
         work area was wetted down with water to prevent a fire from the 
 
         welding.  This made the work area slippery.  While climbing on 
 
         the equipment, carrying a torch head and hose, claimant slipped, 
 
         got his foot tangled up in the hose, fell backward about five 
 
         feet and struck a railing with his back.  He immediately 
 
         experienced severe pain in his lower back.  The pain then 
 
         subsided to a serious ache.  Claimant testified that he finished 
 
         working out that day, but during the night developed severe lower 
 
         back pain and got up and went home from the work site at 
 
         approximately 2 a.m. the following day, March 29, 1988.
 
         
 
              At home, claimant saw his personal physician, Thomas F. 
 
         Garland, M.D., on March 29, 1988.  Dr. Garland's office notes 
 
         verify that claimant saw him on that date after sustaining a fall 
 
         at work.  Dr. Garland reported, "Evidently slipped and fell over 
 
         backwars [sic] on angle iron, and not only hit his back but 
 
         strained it, and kind of doubled over and hyperextended his 
 
         back." (exhibit C, p. 4).  Babcock testified that he did not see 
 
         claimant fall, but did find where his foot had slipped and found 
 
         him lying down after the fall.  
 
         
 
              Dr. Garland referred claimant to Anthony J. Piasecki, M.D., 
 
         an orthopedic surgeon.  Claimant also saw Paul F. Koob, D.O., for 
 
         an independent medical examination.  Both of these doctors 
 
         proceeded on the history of the fall that was related by claimant 
 
         and expressed no reason to dispute the history given by claimant 
 
         (ex. C, pp. 61-63; ex. H, pp. 1 & 2). 
 
         
 
              Gutierrez, claimant's supervisor, testified that he was at 
 
         the work site and that claimant did not report any kind of a work 
 
         injury to him on March 28, 1988.   
 
         
 
              Babcock testified that there was conversation the following 
 
         morning, March 29, 1988, in the hotel when Gutierrez was present 
 
         and it was discussed that claimant had hurt himself on the 
 
         preceding day and gone home.
 
         
 
              Claimant's testimony, Babcock's testimony, Dr. Garland's 
 
         testimony, and Dr. Koob's testimony concerning the occurrence of 
 
         an injury was not rebuted, controverted, contradicted or refuted.
 
         
 
              Therefore, it is determined that claimant did sustain an 
 
         injury on March 28, 1988, which arose out of and in the course of 
 
         employment with employer when he fell and injured his lower back.
 
         
 
                TEMPORARY DISABILITY-CAUSAL CONNECTION-ENTITLEMENT
 
         
 
              Dr. Garland reported on March 31, 1988, on a workers' 
 
         compensation report that claimant would require treatment for a 
 
         few weeks, but as far as permanent disability, none was 
 

 
         
 
         Page   4
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         anticipated (ex. A, p. 1).  The doctor clearly reported to the 
 
         insurance carrier on July 1, 1988, that claimant had sustained a 
 
         back injury on March 28, 1988, which resulted in radicular 
 
         symptoms to the right leg also.  Dr. Garland stated, "He was last 
 
         seen on June 29, 1988.  His pain was almost resolved completely.  
 
         I anticipate that we will release him for work on July 12, 1988." 
 
         (ex. B).  The office note of Dr. Garland on March 28, 1988, 
 
         clearly shows that claimant was taken off work at that time (ex. 
 
         C, p. 5).  On June 29 the doctor's notes indicate, "Will continue 
 
         with Physical Therapy.  See him back on July 11th, and at that 
 
         time will target him for release for work.  He agrees with this." 
 
         (ex. C, p. 10).  
 
         
 
              The physical therapist noted on July 5, 1988, that claimant 
 
         was feeling substantially better, had no new complaints and it 
 
         was anticipated that he would be discharged from the physician's 
 
         care the following week (ex. D, p. 6).
 
         
 
              Therefore, it is determined that claimant was temporarily 
 
         disabled from March 29, 1988 to July 12, 1988 and is entitled to 
 
         permanent disability benefits for this period of time, a 
 
         temporary period of 15.143 weeks.
 
         
 
              Claimant had a flare-up of his back, and right hip and leg 
 
         pain in November of 1988.  He received additional treatment from 
 
         Dr. Garland and additional physical therapy.  Claimant did not 
 
         prove that this period of disability was caused by the injury of 
 
         March 28, 1988.  Even though the doctor said that claimant was 
 
         completely disabled in November and December of 1988, the doctor 
 
         did not say that the disability was caused by the injury of March 
 
         28, 1988.  On the contrary, Dr. Garland said that claimant 
 
         suffered from a severe chronic back disorder which was 
 
         exacerbated by minimal work and that this has been his history in 
 
         the past.  Moreover, he added that his history certainly suggests 
 
         that his back problem has been long-standing and is exacerbated 
 
         by minimal physical activity (ex. C, pp. 58 & 59).
 
         
 
              Claimant testified and the medical reports demonstrate by an 
 
         abundance of evidence that claimant suffered a compression 
 
         fracture of T-11 and L-2 in October 1984 when he was pinned under 
 
         a tractor on his private residence.  He saw Dr. Garland and the 
 
         veteran's administration several times for low back and right hip 
 
         and leg pain after this tractor accident.  He had even applied 
 
         for social security disability benefits, but was denied benefits.  
 
         
 
              Therefore, it is determined that the recurrence of back and 
 
         right leg pain which Dr. Garland records on November 23, 1988 was 
 
         not caused by the injury of March 28, 1988.
 
         
 
                PERMANENT DISABILITY-CASUAL CONNECTION-ENTITLEMENT
 
         
 
              It is determined that the injury of March 28, 1988, was not 
 
         the cause of permanent disability and that claimant is not 
 
         entitled to permanent disability benefits.
 
         
 
              Claimant testified that he was able to work after July 11, 
 
         1988, but employer told claimant that no work was available.  
 

 
         
 
         Page   5
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         Claimant understood this to be correct because he was only hired 
 
         for a period of a short period of time on a very temporary job 
 
         that was to last less then a month.  Claimant further 
 
         acknowledged that the area of his back problem is the same area 
 
         that gave him trouble after the tractor accident in October 1984; 
 
         however, after that accident he was still able to lift, but now 
 
         he is not able to lift.
 
         
 
              Claimant agreed with the list of jobs shown on his 
 
         employment history (ex. I).  The history shows that he has had 
 
         several jobs for short periods of time and that there are 
 
         significant gaps where he was not employed at all.  Claimant 
 
         admitted that he was not currently seeing a doctor; he was not 
 
         taking any medications; and he was not receiving physical 
 
         therapy.  He agreed that he last received physical therapy in 
 
         January 1989.  Claimant testified that his back continued to hurt 
 
         him at a subsequent employment to this injury when he had to 
 
         reach to put product in baskets about shoulder height.  Claimant 
 
         also acknowledged that on this subsequent employment application 
 
         he indicated that he did not have any physical limitations.  He 
 
         further granted that the doctor prohibited him from heavy lifting 
 
         after the tractor accident in October 1984.
 
         
 
              S.W. Williams, D.O., told the Veteran's Administration on 
 
         May 9, 1985, that claimant sustained a compression fracture of T-
 
         11 and L-1 or L-2 as earlier said and that he was unable to lift 
 
         more than five pounds at the time claimant applied for a 
 
         veteran's administration pension disability.  Claimant testified 
 
         that he did not receive a pension benefit.  Claimant applied for 
 
         social security disability benefits after the tractor accident 
 
         and again after this injury, but was declined benefits on both 
 
         applications.  Claimant acknowledged that he applied for and 
 
         received a handicapped parking status prior to the current injury 
 
         (ex. C, pp. 2 and 26).
 
         
 
              Defense counsel pointed out that claimant was diagnosed as 
 
         having arthritis when he continued to have back and right hip 
 
         complaints after the tractor accident (ex. C, p. 1).  Claimant, 
 
         who was six feet tall and weighed approximately 297 pounds, 
 
         admitted that he had been advised to lose weight by Dr. Piasecki, 
 
         but that he had been unable to do so (ex. C, pp. 8 & 61-63).  
 
         Defendants' counsel pointed out that Dr. Garland noted on July 
 
         11, 1988, "He has minimal discomfort left, and, in fact, he 
 
         describes the pain he has left as that which he started work 
 
         with." (ex. C, p. 10).  Claimant admitted that when Dr. Garland 
 
         had arranged another CT scan for him in March 1989, that he 
 
         canceled the scan stating that his leg pain was gone (ex. F, p. 
 
         2).
 
         
 
              In none of his reports did Dr. Garland state that claimant's 
 
         injury was the cause of permanent disability (ex. A, p. 1; ex. B, 
 
         p. 1; ex. C, pp. 36, 56 and 58).  On the contrary, Dr. Garland 
 
         indicates that claimant's back problems have been long-standing 
 
         and chronic (ex. C, p. 58) which are due to repeated injuries to 
 
         his back (ex. C, p. 56).
 
         
 
              Dr. Piasecki said that plain x-rays showed some degeneration 
 

 
         
 
         Page   6
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         at different levels in claimant's back and that the CT scan from 
 
         L-3 to the sacrum was negative (ex. C, p. 62).  Dr. Piasecki 
 
         diagnosed a contusion of the low back with radicular symptoms, 
 
         possibly a disc syndrome.  He did not recommend surgery, but 
 
         rather conservative therapy.  He found a lack of significant 
 
         neurological findings.  He did not give a permanent impairment 
 
         rating.  He did not issue any restrictions or limitations (ex. C, 
 
         p. 63).
 
         
 
              Dr. Koob, claimant's independent medical examiner, 
 
         diagnosed, "Back injury exact etiology cannot be determined with 
 
         a single exam.  I think he does have definite restriction in his 
 
         range of motion.  How much is due to injury and how much is due 
 
         to his weight and poor physical condition a little hard to say." 
 
         (ex. H, p. 2).  Dr. Koob did not make a specific finding of 
 
         causal connection to any disability caused by the injury of March 
 
         28, 1988.  He did not award a permanent impairment rating.  He 
 
         did not recommend any restrictions or limitations.
 
         
 
              It is determined that the injury of March 28, 1988 was not 
 
         the cause of permanent disability and that claimant is not 
 
         entitled to permanent disability benefits.
 
         
 
                             
 
         
 
         
 
         Page   7
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         MEDICAL
 
         
 
              Claimant requested medical bills totaling $336.50 for his 
 
         treatment with Dr. Garland from March 29, 1988 through May 9, 
 
         1988 (ex. G, pp. 1-3).  The parties stipulated that these medical 
 
         expenses are fair and reasonable.  It is now determined that they 
 
         were caused by this injury.
 
         
 
                          NOTICE-IOWA CODE SECTION 85.23
 
         
 
              Defendants did not prove the affirmative defense of lack of 
 
         notice.  Claimant testified that he reported the injury to 
 
         Gutierrez when it first occurred and that he reported it to him 
 
         again later in the day.  Gutierrez claims that claimant did not 
 
         report an injury at any time on March 28, 1988.  Babcock stated 
 
         that on the following morning when claimant was missing that it 
 
         was mentioned in the presence of Gutierrez that claimant hurt his 
 
         back and probably went home.  Claimant further testified that he 
 
         called employer a week later and talked to a lady when he 
 
         reported that the doctor told him that he was to stay off work.  
 
         Claimant further stated that he asked for worker's compensation 
 
         at that time and was told that he was not entitled to workers' 
 
         compensation.  This last testimonial point was not contradicted 
 
         by defendants even though Barb Zalewski, personnel director, was 
 
         present in the court room at the time of the hearing.  Babcock's 
 
         rebuttal testimony indicated that employer either knew or should 
 
         have known that claimant was injured on March 28, 1988.
 
         
 
              It is noted that all of Dr. Garland's office notes for 
 
         several entries after March 29, 1988, have written in the name 
 
         and address of employer and the entry for March 29, 1988, is 
 
         marked, "worker's [sic] comp." (ex. C, p. 4).
 
         
 
              It is determined that claimant's testimony, which was 
 
         corroborated by Babcock, established that he did report this 
 
         injury on the day that it occurred.  Claimant testified he 
 
         reported it again one week later to the office of the employer.  
 
         This testimony along with the doctor's entries that claimant did 
 
         report a work injury, is determined to be the weight of the 
 
         evidence.
 
         
 
              It is determined that defendants did not prove that claimant 
 
         failed to give notice as required by Iowa Code section 85.23.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              Wherefore, based on the evidence presented and the foregoing
 
         
 
         
 
         Page   8
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         and following principles of law, these conclusions of law are 
 
         made:
 
         
 
              That claimant sustained the burden of proof by a 
 
         preponderance of the evidence that he sustained an injury on 
 
         March 28, 1988, which arose out of and in the course of 
 
         employment with employer.  Iowa Code section 85.3; McDowell v. 
 
         Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. 
 
         Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
              Claimant sustained the burden of proof by a preponderance of 
 
         the evidence that the injury was the cause of temporary 
 
         disability from March 29, 1988 to July 12, 1988.  Bodish v. 
 
         Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965); Lindahl v. 
 
         L.O. Boggs Co., 236 Iowa 296 18 N.W.2d 607 (1945).
 
         
 
              Claimant sustained the burden of proof by a preponderance of 
 
         the evidence that he is entitled to 15.143 weeks of temporary 
 
         total disability benefits.  Iowa Code section 85.33(1).
 
         
 
              Claimant did not sustain the burden of proof by a 
 
         preponderance of the evidence that the injury was the cause of 
 
         permanent disability and therefore, claimant is not entitled to 
 
         permanent disability benefits.  Iowa Code section 85.34(2)(u).
 
         
 
              That claimant is entitled to medical benefits in the amount 
 
         of $336.50.
 
         
 
              That defendants did not sustain the burden of proof by a 
 
         preponderance of the evidence that claimant failed to give 
 
         notice.  Iowa Code section 85.23.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              That defendants pay to claimant fifteen point one four three 
 
         (15.143) weeks of workers' compensation temporary total 
 
         disability benefits at the rate of two hundred ninety-one and 
 
         95/100 dollars ($291.95) per week in the total amount of four 
 
         thousand four hundred twenty-one dollars ($4,421) commencing on 
 
         March 29, 1988.
 
         
 
              That all accrued benefits are to be paid in a lump sum.
 
         
 
              That interest will accrue pursuant to Iowa Code section 
 
         85.30. 
 
         
 
              That defendants pay to claimant or the provider of medical 
 
         services, Dr. Garland, $336.50, in medical expenses.
 
         
 
              That the costs of this action, including the cost of the 
 
         transcript, are charged to defendants pursuant to Division of 
 
         Industrial Services Rule 343-4.33.
 
         
 
              That defendants file claim activity reports as requested by 
 
         this agency pursuant to Division of Industrial Services Rule 
 

 
         
 
         Page   9
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         343-3.1.
 
         
 
              That defendants file a first report of injury.
 
         
 
              Signed and filed this ____ day of August, 1990.
 
         
 
         
 
         
 
         
 
                                       ______________________________
 
                                       WALTER R. McMANUS, JR.
 
                                       DEPUTY INDUSTRIAL COMMISSIONER    
 
         
 
         Copies to:
 
         
 
         Mr. Mike Kane
 
         Attorney at Law
 
         213 E Platt
 
         Maquoketa, Iowa  52060
 
         
 
         Mr. Greg A. Egbers
 
         Attorney at Law
 
         600 Union Arcade Bldg
 
         111 E 3rd St
 
         Davenport, Iowa  52801-1596
 
         
 
         
 
 
            
 
            PARSONS V. MARTIN ENGINEERING
 
            
 
            
 
            
 
            
 
            
 
                                          51106; 51401; 51402.20;
 
                                          51402.30; 51402.40; 51402.60
 
                                          51801; 51803; 52401, 52801;
 
                                          52802; 52803; 52501; 52602;
 
                                          52700
 
                                          Filed August 22, 1990
 
                                          Walter R. McManus, Jr.
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            TIMOTHY J. PARSON,            :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :       File No.  900577
 
            MARTIN ENGINEERING CO.,       :
 
                                          :    A R B I T R A T I O N
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            LIBERTY MUTUAL INSURANCE CO., :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            51106; 51401; 51402.20; 51402.30; 51402.40; 51402.60
 
            
 
                 Claimant did prove an injury arising out of and in the 
 
            course of his employment on his first, last and only day of 
 
            work for this employer when he fell while working on a coal 
 
            hopper and injured his back.
 
            
 
            51801
 
            
 
                 Claimant awarded temporary total disability benefits 
 
            for the period he proved he was off work caused by this 
 
            injury from March 29, 1988 to July 12, 1988.  The other 
 
            times off work were not proven to be caused by this injury.
 
            
 
            51803
 
            
 
                 Claimant did not prove that the injury was the cause of 
 
            any permanent disability and he was not awarded permanent 
 
            disability benefits.
 

 
            
 
            PARSONS V. MARTIN ENGINEERING
 
            
 
            
 
            
 
            
 
            
 
            52401; 52801; 52802; 52803
 
            
 
                 Defendants did not prove claimant failed to give 
 
            notice.  There were numerous indications that defendants had 
 
            notice in several ways.
 
            
 
            52501; 52602; 52700
 
            
 
                 Claimant attached a list of medical expenses to the 
 
            prehearing report which listed only the provider and the 
 
            total due each provider.  The parties stipulated that the 
 
            medical expenses were reasonable but did not stipulate that 
 
            they were reasonable and necessary treatment for this injury 
 
            or that they were caused by this injury.  Claimant's 
 
            exhibits, which may have contained itemized bills, were 
 
            excluded from evidence because they were not served 15 days 
 
            prior to hearing as required by paragraph 7 of the hearing 
 
            assignment order.  Some bills for the treating physician 
 
            were found in defendants' evidence and claimant was allowed 
 
            these expenses.  No other medical expenses were allowed.