BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
           
 
            ROCKY L. MILLER,      
 
                        
 
                 Claimant,   
 
                        
 
            vs.         
 
                                             File No. 901189
 
            MIKE VANDERPOOL CONSTRUCTION,   
 
            INC.,       
 
                                               A P P E A L
 
                 Employer,   
 
                                              D E C I S I O N
 
            and         
 
                        
 
            HAWKEYE-SECURITY 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.
 
            
 
                                     ISSUES
 
            
 
            The dispositive issue on appeal is whether claimant has 
 
            proved that his alleged disability is causally connected to 
 
            a work injury on November 7, 1988.
 
            
 
                               FINDINGS OF FACT
 
            
 
            The findings of fact contained in the proposed agency 
 
            decision filed November 10, 1992 are adopted as set forth 
 
            below.  Segments designated by asterisks (*****) indicate 
 
            portions of the language from the proposed agency decision 
 
            that have been intentionally deleted and do not form a part 
 
            of this final agency decision.  Segments designated by 
 
            brackets ([ ]) indicate language that is in addition to the 
 
            language of the proposed agency decision.
 
            
 
                 Claimant is 32 years old and received credits up into 
 
            the tenth grade but does not have a GED.  Claimant described 
 
            his work history beginning with construction work at age 16.  
 
            Claimant's work ***** involved manual labor.  He has worked 
 
            in construction, brick masonry, as a truck, tractor and auto 
 
            mechanic involving several jobs up until he became employed 
 
            with defendant employer in the fall of 1987.  Claimant has 
 
            also been self-employed in the photography and handyman 
 
            carpentry business.
 
            
 
                 Claimant described the nature of defendant employer's 
 
            business which involved excavating and laying pipe.  
 
            Claimant indicated he ***** did the trench work which 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            involved the laying of the pipe, shoveling, digging ditches 
 
            and concrete work.
 
            
 
                 Claimant related prior injuries.  Sometime in 1978 he 
 
            was involved in an auto accident having been hit broadside 
 
            and received low back and shoulder injuries from which he 
 
            indicated he recovered, returned to work and had no 
 
            restrictions or impairment.  He also related a 12 foot fall 
 
            in which he incurred no restrictions or impairments.  He did 
 
            not relate the date of this fall but both of these events 
 
            were prior to claimant's November 1988 alleged injury.
 
            
 
                 Claimant related that on November 7, 1988, he was 
 
            getting ready to begin work when he went to lift an intake 
 
            grate from a storm sewer to load into the back of a truck.  
 
            He indicated that he hurt his back while doing this but kept 
 
            on working.  He estimated the grate weighed about 200 
 
            pounds.  He finished the day but indicated his back was 
 
            hurting and he was unable to shovel.  He indicated the next 
 
            day after the accident he went to Jeffery A. Butler, D.O., 
 
            and described his treatment.  He also related he saw Dr. 
 
            Butler on November 14, relating that his nephew jumped on 
 
            his back and that he had pain on the front of his leg.  
 
            Claimant contends that this incident did not cause him any 
 
            new problems.
 
            
 
                 Claimant testified that Joshua D. Kimelman, D.O., told 
 
            him to go back to work full duty but that when he went to 
 
            work, Mr. Vanderpool did not have any work as the 
 
            construction season was ending.  This appeared to relate to 
 
            the year 1988.  Claimant then indicated that on March 5, 
 
            1989, Kimelman released him and claimant indicated he would 
 
            have gone to work but apparently at that time there still 
 
            wasn't any work available.
 
            
 
                 Claimant related an automobile accident on April 5, 
 
            1989 while driving to his parents.  He said he lost control 
 
            of the vehicle, rolled it and ended up in a ditch.  He 
 
            indicated that his neck and arm hurt as a result of this 
 
            accident but his low back was not hurting and he couldn't 
 
            recall pain anywhere else.  
 
            
 
                 Claimant related his medical treatment with the various 
 
            doctors he had seen and what he understood was a history he 
 
            had given them.  Claimant acknowledged he has no 
 
            restrictions but that the doctor indicated he should use his 
 
            own judgment.  The impression he left was that if claimant 
 
            felt he thought he should be restricted from doing something 
 
            he should use his own judgment.  Claimant indicated he has a 
 
            TENS unit which he uses when he needs it from time to time.  
 
            Claimant is currently self-employed but indicated he is not 
 
            capable of doing the work he was doing at defendant 
 
            employer.  He testified that sometimes he will be unable to 
 
            work for two or three days because his back and legs bother 
 
            him and sometimes his neck.  He stated that bending and 
 
            lifting bothers him sometimes.  He related that his work at 
 
            defendant employer was strenuous and he couldn't do it 
 
            today.  He said that some weeks he works 40 hours and others 
 
            only 10 hours and that it takes him longer to do things now, 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            such as painting, remodeling or carpentry work.  He 
 
            indicated he has hired out jobs he couldn't do because of 
 
            his medical condition.  Claimant related that he enjoys 
 
            working and being his own boss but that he is unable to work 
 
            for another at the rate of 40 hours per week five days a 
 
            week.  His income with defendant employer was $10 per hour 
 
            and now he is not doing well and is making half of what he 
 
            did while working for defendant employer.
 
            *****
 
            
 
                 Claimant was questioned as to defendants' exhibit C, 
 
            the investigating officer's report concerning his April 15, 
 
            1989 injury.  He acknowledged that he received severe 
 
            multiple injuries.  It appeared from this accident that he 
 
            broke his neck.
 
            *****
 
            
 
                 Claimant acknowledged that he built a garage and that 
 
            he hired two other people to help him, one to do the roof.  
 
            This was after his November 7, 1988 alleged injury.  He 
 
            indicated that he is able to paint; hang sheet rock; he 
 
            wears a nail apron around his waist that weighs 
 
            approximately 15 pounds; he can carry trim boards 15 at a 
 
            time that weigh a total of 40 to 50 pounds.  He said he 
 
            built the garage from scratch and that he handled the 10 x 
 
            10 trusses and 2 x 4's.  He indicated he used a sledgehammer 
 
            to drive stakes.  *****
 
            
 
                 Beverly Miller is claimant's live-in friend and 
 
            formerly claimant's wife.  They have been back together for 
 
            several years and although they consider themselves husband 
 
            and wife, they have never gotten married again.  Claimant is 
 
            not claiming any common-law wife situation or an exemption 
 
            for Beverly.  She indicated claimant's work history that he 
 
            related was accurate.  She also reiterated that claimant's 
 
            intellectual capability is deficient when it comes to 
 
            reading, writing and spelling and that he is not average.  
 
            She indicated claimant is good in mechanics.  She indicated 
 
            claimant has good days and bad days and that he works most 
 
            of the time but sometimes needs to take two days off and 
 
            stays in bed.
 
            
 
                 Mike Vanderpool, a co-owner with his wife of Vanderpool 
 
            Construction Company, relates that he has been a utility 
 
            contractor for approximately 25 years and his work involves 
 
            mainly grading and installing sanitary water mains.
 
            
 
                 He testified that claimant was a pipe layer and did 
 
            back fill.  He said that claimant was a good worker.  He 
 
            said claimant called him in March 1989 and said he was 
 
            released to return to work but that the Vanderpool Company 
 
            was not busy and did not need anyone in March.  He indicated 
 
            that the company was just trying to get going again for a 
 
            new season and that this is a wet time of the year for his 
 
            work. *****
 
            
 
                 Joshua D. Kimelman, D.O., an orthopedic surgeon, 
 
            testified through his deposition on September 2, 1992.  He 
 
            first saw claimant on March 2, 1989, at the request of the 
 
            insurance carrier.  He related the history claimant gave 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            him.  [It should be noted that the injury date was 
 
            erroneously sometimes referred to as November 7, 1989 rather 
 
            than the correct injury date of November 7, 1988 in Dr. 
 
            Kimelman's deposition.]
 
            *****
 
            
 
                 The doctor indicated that the claimant reported he 
 
            injured his back six or seven years before when he fell 25 
 
            feet landing on his back and fracturing it while working at 
 
            a tire store.  He reported that it had healed and he has not 
 
            had any problems since that time.  The doctor did 
 
            acknowledge that the claimant did not tell him of a lumbar 
 
            injury as a result of an auto accident in the late 1970's; a 
 
            back injury while lifting a tire on July 11, 1983; 
 
            complaints of low back pain and treatment for pain getting 
 
            out of bed on April 6, 1985; and a low back injury when he 
 
            fell from a tire rack on June 29, 1985.  He said the 
 
            claimant did tell him about the November 7, 1988 lifting 
 
            incident but did not tell him that his back condition was 
 
            improving after this November injury until his nephew jumped 
 
            on his back on November 13, 1988.  He also indicated that he 
 
            had pain down the right leg and not the left leg and 
 
            initially he did have pain radiating in the right leg but 
 
            that it had stopped and was not a problem as of the March 2, 
 
            1989 visit (Defendants' Exhibit F, pages 6-8).
 
            
 
                 The doctor said that, as is his practice, he sent to 
 
            the claimant prior to his appointment in March a diagram to 
 
            fill out to indicate the location of his pain.  The doctor 
 
            indicated that in this diagram filled out by claimant there 
 
            was nothing to indicate claimant had pain in the leg.  The 
 
            doctor related as to the nature of his examination of 
 
            claimant and what he would expect to have found if claimant 
 
            had a herniated disc on the left side at L5-S1.
 
            
 
                 The doctor indicated that claimant did not have any 
 
            symptoms of a herniated disc and that he did have a chance 
 
            to review the x-rays of Dr. Rosenfeld's office regarding 
 
            claimant's injury when he fell off a tire rack some years 
 
            earlier.  He indicated those x-rays showed a healed fracture 
 
            of the anterior superior margin at L4 which would go along 
 
            with this previous injury six or seven years before.  The 
 
            doctor diagnosed claimant's condition in March of 1989 as a 
 
            back strain without neurological deficit and he did not 
 
            diagnose a herniated disc.  He then indicated he recommended 
 
            that claimant return to work and did not place him on job 
 
            restrictions (Def. Ex. F, pp. 15, 16).  The doctor again was 
 
            asked regarding the doctor's report of December 5, 1988, as 
 
            to whether the doctor diagnosed a herniated disc in 
 
            claimant's back as of December 1988.  He said that the 
 
            diagnosis would not indicate that.
 
            
 
                 The doctor was then asked concerning claimant's 
 
            automobile accident on April 15, 1989, in which his car 
 
            flipped over and he was seen at Mercy Hospital by another 
 
            member of Dr. Kimelman's medical staff, namely, a Dr. 
 
            Flapan.  Dr. Kimelman indicated there was nothing in the 
 
            report that indicated complaints of low back pain or any 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            type of neurological deficit relating to the low back area 
 
            of the legs.  He indicated that there was a complete 
 
            neurological exam done according to the report.  The doctor 
 
            then was referred to the University of Iowa Hospitals.  A 
 
            clinical note on claimant's admission in May of 1989 stated 
 
            that there was no abnormality in the neurological tests that 
 
            would indicate a disc problem in the low back area (Def. Ex. 
 
            F, p. 21).  The doctor then was asked concerning another 
 
            neurological report done on May 24, 1989, another on May 26, 
 
            1989, a follow-up examination on June 29, 1989, and another 
 
            follow-up on June 27, 1989.  The doctor indicated there was 
 
            no evidence of problems in the low back area.  He indicated 
 
            the May neurological reports indicated a problem with the 
 
            right arm involving decreased triceps reflex on the right 
 
            which he said would involve the neck and not the low back.
 
            
 
                 The doctor acknowledged that on September 7, 1989, 
 
            claimant visited the neurosurgery clinic at the University 
 
            of Iowa and there was a note that claimant had some low back 
 
            pain and right leg sciatica and that they were going to look 
 
            into it the next time.  The claimant did have an appointment 
 
            on November 16, 1989, at which time there was no indication 
 
            of low back pain (Def. Ex. F, p. 26).
 
            
 
                 The doctor then was referred to a CT scan which was 
 
            done May 9, 1990, at the University of Iowa, which showed a 
 
            commuted fracture of the anterior superior aspect of the L4 
 
            vertebral body of an uncertain age and a left paramediam 
 
            disc herniation at L5-S1 (Def. Ex. E, p. 27).  After further 
 
            questioning, the doctor then opined that it was very 
 
            unlikely that claimant had disc herniation as a result of an 
 
            injury in November of 1988.  The doctor also opined that it 
 
            was very unlikely that claimant had disc herniation when the 
 
            doctor saw him in March of 1989 and that in his opinion any 
 
            disc herniation in the claimant occurred subsequent to March 
 
            of 1989.  The doctor further opined that claimant did not 
 
            suffer any permanent injury as a result of an alleged 
 
            lifting incident in November of 1988 while working for 
 
            defendant employer (Def. Ex. F, p. 31).
 
            
 
                 *****
 
            
 
                 Christopher M. Loftus, M.D., testified through his 
 
            deposition on August 13, 1992, represented by claimant's 
 
            exhibit A.  Dr. Loftus is a ***** [neurosurgeon] at the 
 
            University of Iowa and his subspecialty would be cerebral 
 
            vascular neurosurgery.  He indicated that he was not a real 
 
            disc expert [as it relates to the biomechanics of "loading 
 
            injury"] (Claimant's Exhibit A).  The doctor was referred to 
 
            an April 22, 1991 letter he wrote to claimant's attorney, 
 
            Mr. Bracken.  He indicated that claimant had come to the 
 
            University of Iowa after he had a bad cervical fracture that 
 
            had been evaluated initially in Des Moines and had been 
 
            transferred to Iowa City.  He indicated there was no 
 
            evidence reflected in his notes that claimant had any injury 
 
            to his lumbar spine.  He emphasized it only referred to his 
 
            cervical spine (Cl. Ex. A, pp. 14, 15).  He said his 
 
            examination, done at the time of the admission, was further 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            evidence of no problems except in the cervical spine.  The 
 
            doctor indicated that September 7, 1989 was the first 
 
            indication that claimant additionally had a complaint of 
 
            some low back pain and right sciatica and he was going to do 
 
            a lumbar sacral CT at that time.  Dr. Loftus indicated that 
 
            when claimant was seen in the neurosurgery clinic on May 10, 
 
            1990, he continued to be troubled by low back pain and a CT 
 
            scan showed a large disc at L5-S1.  Dr. Loftus operated on 
 
            claimant on October 10, 1990 and performed a left L5-S1 
 
            hemilaminotomy, diskectomy and foraminotomy.  The doctor 
 
            explained the nature of his surgery and what he did.  He 
 
            also indicated that claimant had an old commuted fracture of 
 
            the anterior superior aspect of the L4 vertebral body.  He 
 
            was uncertain as to when that occurred but it did show on 
 
            the CT report.
 
            
 
                 In answer to a question concerning whether claimant 
 
            could have pain in the low back area resulting from a child 
 
            jumping in the middle of his back, the doctor said he would 
 
            have no way of knowing, that it depends on certain things 
 
            but it is conceivable.  He emphasized that he was not able 
 
            to give them an answer as he had no idea what the injury was 
 
            nor did he have a chance to examine claimant at that time.  
 
            The doctor said that in his records from the clinic, he has 
 
            absolutely no history as to the cause of claimant's low back 
 
            pain.  Claimant indicated he had back pain and the doctor 
 
            started to treat him for it.  The doctor then indicated that 
 
            based on his understanding, he concluded that claimant's 
 
            disc disease was substantially contributed to by claimant's 
 
            incident at work on November 7, 1988 (Cl. Ex. A, p. 33).  
 
            The doctor acknowledged that there are several ways that 
 
            could cause a herniated disc, including an automobile 
 
            accident; someone falling from a ladder; twisting, bending 
 
            or the wrong type of lifting; sneezing; getting out of bed; 
 
            and someone jumping on your back (Cl. Ex. A, pp. 38 and 39).
 
            
 
                 On cross-examination, the doctor acknowledged that he 
 
            wrote a letter on April 22, 1991, in which he indicated he 
 
            did not find any mention of low back complaints by Douglas 
 
            Koontz, M.D., or any other consultant.  Radiologic studies 
 
            done on the lumbar spine and the examination did not 
 
            indicate any lumbar problems (Cl. Ex. A, p. 42).  The doctor 
 
            also acknowledged that when claimant was admitted on May 23, 
 
            1989, the history taken indicated no major problems except 
 
            low back eight years since the motor vehicle accident.  The 
 
            doctor also agreed that when another motor examination was 
 
            performed on May 24, 1989, there was no problems with the 
 
            lower extremities.
 
            
 
                 The doctor acknowledged that in a summary letter of 
 
            June 12, 1989 to Dr. Koontz, he confirmed, in regards to 
 
            claimant's hospitalization stay that began in May of 1989, 
 
            that there was a normal neurological examination of the 
 
            lower area and that the only deficit was one referable to 
 
            the cervical spine fracture which dealt with the neck (Cl. 
 
            Ex. A, p. 45).
 
            
 
                 The doctor agreed that in a letter he sent to 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            claimant's attorney on April 22, 1991, he had concluded that 
 
            claimant's disc disease that he treated at the University of 
 
            Iowa was related to his employment with defendant employer 
 
            and, specifically, an incident at work in November of 1988.
 
            
 
                 The doctor also acknowledged that claimant never did 
 
            tell him about his automobile accident in which he injured 
 
            his back in the late 1970's, that he injured his back 
 
            picking up a tire in the early 1980's, that he injured his 
 
            back falling off a ladder approximately nine to ten feet in 
 
            the early 1980's, that he had injured his back trying to 
 
            lift some object at defendant employer's company, and that 
 
            he injured his back when a child jumped on his back after 
 
            his November 7, 1989 alleged work injury (Cl. Ex. A, p. 65).
 
            
 
                 Jeffery A. Butler, D.C., testified on July 30, 1992, 
 
            through his deposition, represented by defendants' exhibit 
 
            E.  He testified that he first saw claimant on November 8, 
 
            1988, with a complaint of low back pain resulting from the 
 
            claimant lifting an intake grate at work.  Dr. Butler 
 
            acknowledged that on the patient's introductory card, the 
 
            claimant answered "no" as to whether he had ever had any 
 
            falls, auto accidents or injuries.  Dr. Butler testified as 
 
            to the approximately four or five tests he performed on 
 
            claimant and concluded that claimant was not suffering from 
 
            a herniated or ruptured disc (Def. Ex. E, p. 7).
 
            
 
                 The doctor related claimant's November 14, 1988 
 
            incident in which his history indicated that claimant's 
 
            nephew jumped into the middle of his back.  He said the 
 
            nephew weighed 40 pounds.  The claimant told him that he 
 
            then began getting pains down the front of his leg and was 
 
            starting with his knee and going down to his ankle and the 
 
            pain became constant after this incident.  The doctor 
 
            indicated that at that point the claimant seemed to stop 
 
            responding to his care but up to that point he had been 
 
            improving (Def. Ex. E, p. 7 and 8).
 
            
 
                 The doctor then related a November 25, 1988 incident 
 
            claimant related to him in which the doctor's records 
 
            indicate that the claimant was doing pretty well over the 
 
            week and had two days, Tuesday and Thursday, in which his 
 
            low back hurt after shoveling feed and helping his brother 
 
            work on his house.  The doctor then indicated he referred 
 
            claimant to Martin S. Rosenfeld, D.O., because he felt the 
 
            claimant was not progressing as fast as he should.  He 
 
            indicated Dr. Rosenfeld's diagnosis was a resolving lumbar 
 
            strain and that this diagnosis was not one of a herniated or 
 
            ruptured disc.
 
            
 
                 The doctor opined that on November 7, 1988, claimant 
 
            suffered a lumbosacral strain sprain with attendant 
 
            sciatica. He also opined that he felt claimant's November 7 
 
            accident may have been a contributing factor but the turning 
 
            point, he felt, was the accident claimant suffered at home 
 
            with a nephew jumping into the middle of his back (Def. Ex. 
 
            E, p. 12).  The doctor also opined that claimant's November 
 
            7, 1988 lifting episode did not give him or cause a 
 
            herniated or ruptured disc (Def. Ex. E, pp. 12 and 13).  He 
 

 
            
 
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            also could not conclude whether claimant suffered a 
 
            permanent injury.
 
            
 
                 Carl Lundahl, D.C., testified through his deposition on 
 
            June 23, 1992, represented by defendants' exhibit D.  The 
 
            doctor related certain treatment or records he had 
 
            concerning certain accidents or incidents claimant had 
 
            around 1978, 1983 and 1985, which involved his low back.  
 
            X-rays taken showed claimant had a compression fracture but 
 
            not a ruptured or herniated disc in 1983.  The last time he 
 
            saw claimant was on April 17, 1985.
 
            *****
 
                               CONCLUSIONS OF LAW
 
            
 
            The conclusions of law contained in the proposed agency 
 
            decision filed November 10, 1992 are adopted as set forth 
 
            below.  Segments designated by asterisks (*****) indicate 
 
            portions of the language from the proposed agency decision 
 
            that have been intentionally deleted and do not form a part 
 
            of this final agency decision.  Segments designated by 
 
            brackets ([ ]) indicate language that is in addition to the 
 
            language of the proposed agency decision.
 
            
 
                 Claimant has the burden of proving by a preponderance 
 
            of the evidence that he received an injury on November 7, 
 
            1988, which arose out of and in the course of his 
 
            employment. McDowell v. Town of Clarksville, 241 N.W.2d 904 
 
            (Iowa 1976); Musselman v. Central Telephone Co., 261 Iowa 
 
            352, 154 N.W.2d 128 (1967). 
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury of November 7, 
 
            1988, is causally related to the disability on which he now 
 
            bases his claim.  Bodish v. Fischer, Inc., 257 Iowa 516, 133 
 
            N.W.2d 867 (1965).  Lindahl v. L. O. Boggs, 236 Iowa 296, 18 
 
            N.W.2d 607 (1945).  A possibility is insufficient; a 
 
            probability is necessary.  Burt v. John Deere Waterloo 
 
            Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955).  The 
 
            question of causal connection is essentially within the 
 
            domain of expert testimony.  Bradshaw v. Iowa Methodist 
 
            Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). 
 
            
 
                 However, expert medical evidence must be considered 
 
            with all other evidence introduced bearing on the causal 
 
            connection.  Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion 
 
            of experts need not be couched in definite, positive or 
 
            unequivocal language.  Sondag v. Ferris Hardware, 220 N.W.2d 
 
            903 (Iowa 1974).  However, the expert opinion may be 
 
            accepted or rejected, in whole or in part, by the trier of 
 
            fact.  Id. at 907.  Further, the weight to be given to such 
 
            an opinion is for the finder of fact, and that may be 
 
            affected by the completeness of the premise given the expert 
 
            and other surrounding circumstances.  Bodish, 257 Iowa 516, 
 
            133 N.W.2d 867.  See also Musselman, 261 Iowa 352, 154 
 
            N.W.2d 128.
 
            
 
                 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. 
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            Workmen's Compensation sec. 555(17)a.
 
            The issue to be decided on appeal is whether claimant has 
 
            proved that his alleged disability is causally connected to 
 
            a work injury on November 7, 1988.  Ultimately what must be 
 
            decided is whether claimant has proved that his work injury 
 
            caused a herniated disc in his lower back.  There can be 
 
            little question claimant suffered a work injury on November 
 
            7, 1988.  He had a lifting episode for which he sought 
 
            immediate medical care.  He was off work and was 
 
            compensation for a temporary disability.  There is no 
 
            apparent dispute that claimant was entitled to temporary 
 
            disability benefits.
 
            
 
            In order to receive permanent disability benefits (and 
 
            payment for medical treatment of his herniated disc) 
 
            claimant must prove that his work injury was the probable 
 
            cause of a herniated disc.  Claimant sought immediate care 
 
            from Dr. Butler who did not think claimant had a herniated 
 
            disc at that time.  Claimant was referred to Dr. Rosenfeld 
 
            on December 5, 1988 who diagnosed a resolving lumbar strain.  
 
            Claimant was referred to Dr. Kimelman on March 2, 1989 whose 
 
            impression was back strain without neurologic deficit (Jt. 
 
            Ex. 5, p. 41) and did not think claimant had a herniated 
 
            disc.  (Def. Ex. F, p. 16)  Dr. Loftus treated claimant and 
 
            noted a complaint of lower back pain on September 7, 1989.  
 
            Dr. Loftus diagnosed a herniated disc on May 9, 1990.  Dr. 
 
            Loftus stated the probable cause of claimant's herniated 
 
            disc was his work injury.  Between November 7, 1988 and May 
 
            9, 1990 claimant had several intervening events which may 
 
            have affected his lower back.  These events were the event 
 
            where his nephew jumped on his back (November 1988) and the 
 
            automobile accident (April 1988).
 
            
 
            The troubling aspect of this case is that despite care by 
 
            several different doctors, claimant's disc herniation was 
 
            not diagnosed until May 1990 approximately 18 months after 
 
            the work injury.  The doctor who diagnosed the herniation 
 
            did say that the injury was the probable cause of the 
 
            herniation.  However, he does not adequately explain why it 
 
            took so long for the diagnosis to be made.  Likewise, his 
 
            opinion cannot be reconciled with other doctors who thought 
 
            there was no herniation when they treated claimant shortly 
 
            after the work injury.  Claimant must prove that his work 
 
            injury was the probable cause of his disc herniation.  While 
 
            it is possible that there is a causal connection between the 
 
            work injury and the herniation, a possibility is 
 
            insufficient to meet claimant's burden of proof.  Dr. 
 
            Loftus' opinion, when considered with all the other evidence 
 
            (e.g., lack of temporal relationship between the injury and 
 
            the diagnosis and differing medical opinion from several 
 
            doctors), is insufficient to carry claimant's burden of 
 
            proof.  Claimant has not proved that the probable cause of 
 
            his disc herniation was a work injury on November 7, 1988.
 
            *****
 
            WHEREFORE, the decision of the deputy is affirmed.
 
            
 
                                   ORDER
 

 
            
 
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            THEREFORE, it is ordered:
 
            
 
                 That claimant takes nothing further from these 
 
            proceedings.
 
            That claimant shall pay the costs of the appeal including 
 
            the transcription of the hearing.  All other costs shall be 
 
            shared equally. 
 
            
 
            Signed and filed this ____ day of September, 1993.
 
            
 
            
 
            
 
            
 
                                    ________________________________
 
                                             BYRON K. ORTON
 
                                       INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Andrew J. Bracken
 
            Attorney at Law
 
            100 Court Ave.,  Ste 600
 
            Des Moines, IA 50309
 
            
 
            Mr. Thomas Henderson
 
            Attorney at Law
 
            317 Sixth Ave.,  Ste 1200
 
            Des Moines, IA 50309
 
            
 
 
            
 
 
 
 
 
           
 
 
 
                                            5-1402.30; 5-1804
 
                                            Filed September 24, 1993
 
                                            BYRON K. ORTON
 
            
 
                       BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
           
 
            ROCKY L. MILLER,      
 
                        
 
                 Claimant,   
 
                        
 
            vs.         
 
                                              File No. 901189
 
            MIKE VANDERPOOL CONSTRUCTION,   
 
            INC.,       
 
                                                A P P E A L
 
                 Employer,   
 
                                              D E C I S I O N
 
            and         
 
                        
 
            HAWKEYE-SECURITY INSURANCE      
 
            COMPANY,    
 
                        
 
                 Insurance Carrier,    
 
                 Defendants.      
 
            ____________________________________________________________
 
            
 
            
 
            5-1402.30; 5-1804
 
            Claimant failed to prove that a work injury was the probable 
 
            cause of a herniated disk in his lower back.  Medical 
 
            opinion differed as to when the herniation occurred.  Also, 
 
            the herniation was not diagnosed until nearly eighteen 
 
            months after the work injury.  In the intervening eighteen 
 
            months claimant's nephew had jumped on claimant's back and 
 
            claimant was involved in an automobile accident.
 
            
 
 
            
 
            
 
            
 
            
 
            
 
            
 
                      BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            ROCKY L. MILLER,              :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 901189
 
            MIKE VANDERPOOL CONSTRUCTION, :
 
            INC.,                         :
 
                                          :     A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            HAWKEYE-SECURITY INSURANCE    :
 
            COMPANY,                      :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This case came on for hearing on October 13, 1992, at 
 
            Des Moines, Iowa.  This is a proceeding in arbitration 
 
            wherein claimant seeks compensation for permanent partial 
 
            disability benefits as a result of an alleged injury 
 
            occurring on November 7, 1988.  The record in the proceeding 
 
            consists of the testimony of claimant and Mike Vanderpool; 
 
            claimant's exhibits A and B and defendants' exhibits A 
 
            through G; and, joint exhibits 1 through 14.
 
            
 
                                      ISSUES
 
            
 
                 The issues for resolution are:
 
            
 
                 1.  Whether claimant's alleged November 7, 1988 injury 
 
            caused claimant to incur any temporary or permanent 
 
            disability;
 
            
 
                 2.  The nature and extent of claimant's disability and 
 
            entitlement to disability benefits; and,
 
            
 
                 3.  Claimant's entitlement to Iowa Code section 85.27 
 
            medical benefits, the issue within this being causal 
 
            connection and authorization as to bills after March 5, 1989 
 
            to the present.
 
            
 
                     
 
            
 
            
 
            Page   2
 
            
 
            
 
                                  FINDINGS OF FACT
 
            
 
                 The undersigned deputy, having heard the testimony and 
 
            considered all the evidence, finds that:
 
            
 
                 Claimant is 32 years old and received credits up into 
 
            the tenth grade but does not have a GED.  Claimant described 
 
            his work history beginning with construction work at age 16.  
 
            Claimant's work basically involved manual labor.  He has 
 
            worked in construction, brick masonry, as a truck, tractor 
 
            and auto mechanic involving several jobs up until he became 
 
            employed with defendant employer in the fall of 1987.  
 
            Claimant has also been self-employed in the photography and 
 
            handyman carpentry business.
 
            
 
                 Claimant described the nature of defendant employer's 
 
            business which involved excavating and laying pipe.  
 
            Claimant indicated he basically did the trench work which 
 
            involved the laying of the pipe, shoveling, digging ditches 
 
            and concrete work.
 
            
 
                 Claimant related prior injuries. Sometime in 1978 he 
 
            was involved in an auto accident having been hit broadside 
 
            and received low back and shoulder injuries from which he 
 
            indicated he recovered, returned to work and had no 
 
            restrictions or impairment.  He also related a 12 foot fall 
 
            in which he incurred no restrictions or impairments.  He did 
 
            not relate the date of this fall but both of these events 
 
            were prior to claimant's November 1988 alleged injury.
 
            
 
                 Claimant related that on November 7, 1978, he was 
 
            getting ready to begin work when he went to lift an intake 
 
            grate from a storm sewer to load into the back of a truck.  
 
            He indicated that he hurt his back while doing this but kept 
 
            on working.  He estimated the grate weighed about 200 
 
            pounds.  He finished the day but indicated his back was 
 
            hurting and he was unable to shovel.  He indicated the next 
 
            day after the accident he went to Jeffery A. Butler, D.O., 
 
            and described his treatment.  He also related he saw Dr. 
 
            Butler on November 14, relating that his nephew jumped on 
 
            his back and that he had pain on the front of his leg.  
 
            Claimant contends that this incident did not cause him any 
 
            new problems.
 
            
 
                 Claimant testified that Joshua D. Kimelman, D.O., told 
 
            him to go back to work full duty but that when he went to 
 
            work, Mr. Vanderpool did not have any work as the 
 
            construction season was ending.  This appeared to relate to 
 
            the year 1988.  Claimant then indicated that on March 5, 
 
            1989, Kimelman released him and claimant indicated he would 
 
            have gone to work but apparently at that time there still 
 
            wasn't any work available.
 
            
 
                 Claimant related an automobile accident on April 5, 
 
            1989 while driving to his parents.  He said lost control of 
 
            the vehicle, rolled it and ended up in a ditch.  He 
 
            indicated that his neck and arm hurt as a result of this 
 
            accident but his low back was not hurting and he couldn't 
 
            recall pain anywhere else.  
 
            
 

 
            
 
            Page   3
 
            
 
            
 
                 Claimant related his medical treatment with the various 
 
            doctors he had seen and what he understood was a history he 
 
            had given them.  Claimant acknowledged he has no 
 
            restrictions but that the doctor indicated he should use his 
 
            own judgment.  The impression he left was that if claimant 
 
            felt he thought he should be restricted from doing something 
 
            he should use his own judgment.  Claimant indicated he has a 
 
            TENS unit which he uses when he needs it from time to time.  
 
            Claimant is currently self-employed but indicated he is not 
 
            capable of doing the work he was doing at defendant 
 
            employer.  He testified that sometimes he will be unable to 
 
            work for two or three days because his back and legs bother 
 
            him and sometimes his neck.  He stated that bending and 
 
            lifting bothers him sometimes.  He related that his work at 
 
            defendant employer was strenuous and he couldn't do it 
 
            today.  He said that some weeks he works 40 hours and others 
 
            only 10 hours and that it takes him longer to do things now, 
 
            such as painting, remodeling or carpentry work.  He 
 
            indicated he has hired out jobs he couldn't do because of 
 
            his medical condition.  Claimant related that he enjoys 
 
            working and being his own boss but that he is unable to work 
 
            for another at the rate of 40 hours per week five days a 
 
            week.  His income with defendant employer was $10 per hour 
 
            and now he is not doing well and is making half of what he 
 
            did while working for defendant employer.
 
            
 
                 Claimant was questioned concerning the doctors he saw 
 
            and the history he allegedly gave them.  He emphasized that 
 
            he told them the truth and was honest with them yet it is 
 
            obvious claimant withheld facts from the doctors regarding 
 
            his past medical history.
 
            
 
                 Claimant was questioned as to defendants' exhibit C, 
 
            the investigating officer's report concerning his April 15, 
 
            1989 injury.  He acknowledged that he received severe 
 
            multiple injuries.  It appeared from this accident that he 
 
            broke his neck.
 
            
 
                 Claimant was also questioned as to defendants' exhibit 
 
            6, the notice of claim for unemployment benefits filed March 
 
            6, 1989, in which claimant indicated that he was on layoff 
 
            and ready to return to work.  This exhibit indicates that 
 
            claimant received the benefits from March 4, 1989 through 
 
            July 5, 1989.  He acknowledged that after he broke his neck 
 
            he could not work and was recuperating during that summer 
 
            but still received the unemployment benefits.  He didn't 
 
            think he was doing anything wrong receiving benefits even 
 
            though it appeared he wasn't eligible because of his medical 
 
            condition.  Claimant indicated that if Chirstopher M. 
 
            Loftus, M.D., indicated claimant had no back pain after his 
 
            neck injury from the auto accident it would be in error as 
 
            claimant said he did tell the doctor he had back pain after 
 
            the auto accident in April 1989.
 
            
 
                 Claimant acknowledged that he built a garage and that 
 
            he hired two other people to help him, one to do the roof.  
 
            This was after his November 7, 1988 alleged injury.  He 
 
            indicated that he is able to paint; hang sheet rock; he 
 
            wears a nail apron around his waist that weighs 
 
            approximately 15 pounds; he can carry trim boards 15 at a 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            time that weigh a total of 40 to 50 pounds.  He said he 
 
            built the garage from scratch and that he handled the 10 x 
 
            10 trusses and 2 x 4's.  He indicated he used a sledgehammer 
 
            to drive stakes.  Claimant was questioned as to whether he 
 
            had ever consulted a vocational rehabilitation person and he 
 
            indicated he is content as to what he is doing now.  When 
 
            asked if a rehabilitation person could get him a job full 
 
            time, claimant indicated that he was content doing what he 
 
            is now doing so he doesn't need help.
 
            
 
                 Beverly Miller is claimant's live-in friend and 
 
            formerly claimant's wife.  They have been back together for 
 
            several years and although they consider themselves husband 
 
            and wife, they have never gotten married again.  Claimant is 
 
            not claiming any common-law wife situation or an exemption 
 
            for Beverly.  She indicated claimant's work history that he 
 
            related was accurate.  She also reiterated that claimant's 
 
            intellectual capability is deficient when it comes to 
 
            reading, writing and spelling and that he is not average.  
 
            She indicated claimant is good in mechanics.  She indicated 
 
            claimant has good days and bad days and that he works most 
 
            of the time but sometimes needs to take two days off and 
 
            stays in bed.
 
            
 
                 Mike Vanderpool, a co-owner with his wife of Vanderpool 
 
            Construction Company, relates that he has been a utility 
 
            contractor for approximately 25 years and his work involves 
 
            mainly grading and installing sanitary water mains.
 
            
 
                 He testified that claimant was a pipe layer and did 
 
            back fill.  He said that claimant was a good worker.  He 
 
            said claimant called him in March 1989 and said he was 
 
            released to return to work but that the Vanderpool Company 
 
            was not busy and did not need anyone in March.  He indicated 
 
            that the company was just trying to get going again for a 
 
            new season and that this is a wet time of the year for his 
 
            work. Mr. Vanderpool indicated that claimant then filed for 
 
            unemployment and he did not contest it.  He said claimant 
 
            never did tell him about the auto accident of April 1989.  
 
            He let claimant use his benefits and they ran the course 
 
            before he knew of the accident.  Mr. Vanderpool said that if 
 
            claimant came back with no restrictions he would hire him 
 
            but if claimant cannot lift more than 40 or 50 pounds, he 
 
            would check with the doctor but that he has no light work.  
 
            Mr. Vanderpool acknowledged that claimant was a good worker 
 
            and worked a little over a year and was never disciplined 
 
            for substandard work.  Claimant would do the job he was 
 
            hired to do.
 
            
 
                 Joshua D. Kimelman, D.O., an orthopedic surgeon, 
 
            testified through his deposition on September 2, 1992.  He 
 
            first saw claimant on March 2, 1989, at the request of the 
 
            insurance carrier.  He related the history claimant gave 
 
            him.
 
            
 
                 The undersigned notes that defendants' attorney in 
 
            taking the deposition referred to a November 7, 1989 injury 
 
            date on more than one occasion.  It is obvious from the 
 
            deposition and from the facts of this case that the attorney 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            and doctor meant November 7, 1988, otherwise, the time 
 
            consequences would not make sense.  The undersigned 
 
            therefore will refer to the November 7, 1988 rather than 
 
            November 7, 1989, when reporting any testimony of the doctor 
 
            in his deposition.
 
            
 
                 The doctor indicated that the claimant reported he 
 
            injured his back six or seven years before when he fell 25 
 
            feet landing on his back and fracturing it while working at 
 
            a tire store.  He reported that it had healed and he has not 
 
            had any problems since that time.  The doctor did 
 
            acknowledge that the claimant did not tell him of a lumbar 
 
            injury as a result of an auto accident in the late 1970's; a 
 
            back injury while lifting a tire on July 11, 1983; 
 
            complaints of low back pain and treatment for pain getting 
 
            out of bed on April 6, 1985; and a low back injury when he 
 
            fell from a tire rack on June 29, 1985.  He said the 
 
            claimant did tell him about the November 7, 1988 lifting 
 
            incident but did not tell him that his back condition was 
 
            improving after this November injury until his nephew jumped 
 
            on his back on November 13, 1988.  He also indicated that he 
 
            had pain down the right leg and not the left leg and 
 
            initially he did have pain radiating in the right leg but 
 
            that it had stopped and was not a problem as of the March 2, 
 
            1989 visit (Defendants' Exhibit F, pages 6-8).
 
            
 
                 The doctor said that, as is his practice, he sent to 
 
            the claimant prior to his appointment in March a diagram to 
 
            fill out to indicate the location of his pain.  The doctor 
 
            indicated that in this diagram filled out by claimant there 
 
            was nothing to indicate claimant had pain in the leg.  The 
 
            doctor related as to the nature of his examination of 
 
            claimant and what he would expect to have found if claimant 
 
            had a herniated disc on the left side at L5-S1.
 
            
 
                 The doctor indicated that claimant did not have any 
 
            symptoms of a herniated disc and that he did have a chance 
 
            to review the x-rays of Dr. Rosenfeld's office regarding 
 
            claimant's injury when he fell off a tire rack some years 
 
            earlier.  He indicated those x-rays showed a healed fracture 
 
            of the anterior superior margin at L4 which would go along 
 
            with this previous injury six or seven years before.  The 
 
            doctor diagnosed claimant's condition in March of 1989 as a 
 
            back strain without neurological deficit and he did not 
 
            diagnose a herniated disc.  He then indicated he recommended 
 
            that claimant return to work and did not place him on job 
 
            restrictions (Def. Ex. F, pp. 15, 16).  The doctor again was 
 
            asked regarding the doctor's report of December 5, 1988, as 
 
            to whether the doctor diagnosed a herniated disc in 
 
            claimant's back as of December 1988.  He said that the 
 
            diagnosis would not indicate that.
 
            
 
                 The doctor was then asked concerning claimant's 
 
            automobile accident on April 15, 1989, in which his car 
 
            flipped over and he was seen at Mercy Hospital by another 
 
            member of Dr. Kimelman's medical staff, namely, a Dr. 
 
            Flapan.  Dr. Kimelman indicated there was nothing in the 
 
            report that indicated complaints of low back pain or any 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            type of neurological deficit relating to the low back area 
 
            of the legs.  He indicated that there was a complete 
 
            neurological exam done according to the report.  The doctor 
 
            then was referred to the University of Iowa Hospitals.  A 
 
            clinical note on claimant's admission in May of 1989 stated 
 
            that there was no abnormality in the neurological tests that 
 
            would indicate a disc problem in the low back area (Def. Ex. 
 
            F, p. 21).  The doctor then was asked concerning another 
 
            neurological report done on May 24, 1989, another on May 26, 
 
            1989, a follow-up examination on June 29, 1989, and another 
 
            follow-up on June 27, 1989.  The doctor indicated there was 
 
            no evidence of problems in the low back area.  He indicated 
 
            the May neurological reports indicated a problem with the 
 
            right arm involving decreased triceps reflex on the right 
 
            which he said would involve the neck and not the low back.
 
            
 
                 The doctor acknowledged that on September 7, 1989, 
 
            claimant visited the neurosurgery clinic at the University 
 
            of Iowa and there was a note that claimant had some low back 
 
            pain and right leg sciatica and that they were going to look 
 
            into it the next time.  The claimant did have an appointment 
 
            on November 16, 1989, at which time there was no indication 
 
            of low back pain (Def. Ex. F, p. 26).
 
            
 
                 The doctor then was referred to a CT scan which was 
 
            done May 9, 1990, at the University of Iowa, which showed a 
 
            commuted fracture of the anterior superior aspect of the L4 
 
            vertebral body of an uncertain age and a left paramediam 
 
            disc herniation at L5-S1 (Def. Ex. E, p. 27).  After further 
 
            questioning, the doctor then opined that it was very 
 
            unlikely that claimant had disc herniation as a result of an 
 
            injury in November of 1988.  The doctor also opined that it 
 
            was very unlikely that claimant had disc herniation when the 
 
            doctor saw him in March of 1989 and that in his opinion any 
 
            disc herniation in the claimant occurred subsequent to March 
 
            of 1989.  The doctor further opined that claimant did not 
 
            suffer any permanent injury as a result of an alleged 
 
            lifting incident in November of 1988 while working for 
 
            defendant employer (Def. Ex. F, p. 31).
 
            
 
                 After considerable cross-examination, the doctor 
 
            indicated that he believed that claimant injured his back 
 
            but he did not believe that he herniated his disc in 
 
            November of 1988 (Def. Ex. F, p. 60).
 
            
 
                 Christopher M. Loftus, M.D., testified through his 
 
            deposition on August 13, 1992, represented by claimant's 
 
            exhibit A.  Dr. Loftus is a neurologist at the University of 
 
            Iowa and his subspecialty would be cerebral vascular 
 
            neurosurgery.  He indicated that he was not a real disc 
 
            expert (Claimant's Exhibit A).  The doctor was referred to 
 
            an April 22, 1991 letter he wrote to claimant's attorney, 
 
            Mr. Bracken.  He indicated that claimant had come to the 
 
            University of Iowa after he had had a bad cervical fracture 
 
            that had been evaluated initially in Des Moines and had been 
 
            transferred to Iowa City.  He indicated there was no 
 
            evidence reflected in his notes that claimant had any injury 
 
            to his lumbar spine.  He emphasized it only referred to his 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            cervical spine (Cl. Ex. A, pp. 14, 15).  He said his 
 
            examination, done at the time of the admission, was further 
 
            evidence of no problems except in the cervical spine.  The 
 
            doctor indicated that September 7, 1989 was the first 
 
            indication that claimant additionally had a complaint of 
 
            some low back pain and right sciatica and he was going to do 
 
            a lumbar sacral CT at that time.  Dr. Loftus indicated that 
 
            when claimant was seen in the neurosurgery clinic on May 10, 
 
            1990, he continued to be troubled by low back pain and a CT 
 
            scan showed a large disc at L5-S1.  Dr. Loftus operated on 
 
            claimant on October 10, 1990 and performed a left L5-S1 
 
            hemilaminotomy, diskectomy and foraminotomy.  The doctor 
 
            explained the nature of his surgery and what he did.  He 
 
            also indicated that claimant had an old commuted fracture of 
 
            the anterior superior aspect of the L4 vertebral body.  He 
 
            was uncertain as to when that occurred but it did show on 
 
            the CT report.
 
            
 
                 In answer to a question concerning whether claimant 
 
            could have pain in the low back area resulting from a child 
 
            jumping in the middle of his back, the doctor said he would 
 
            have no way of knowing, that it depends on certain things 
 
            but it is conceivable.  He emphasized that he was not able 
 
            to give them an answer as he had no idea what the injury was 
 
            nor did he have a chance to examine claimant at that time.  
 
            The doctor said that in his records from the clinic, he has 
 
            absolutely no history as to the cause of claimant's low back 
 
            pain.  Claimant indicated he had back pain and the doctor 
 
            started to treat him for it.  The doctor then indicated that 
 
            based on his understanding, he concluded that claimant's 
 
            disc disease was substantially contributed to by claimant's 
 
            incident at work on November 7, 1988 (Cl. Ex. A, p. 33).  
 
            The doctor acknowledged that there are several ways that 
 
            could cause a herniated disc, including an automobile 
 
            accident; someone falling from a ladder; twisting, bending 
 
            or the wrong type of lifting; sneezing; getting out of bed; 
 
            and someone jumping on your back (Cl. Ex. A, pp. 38 and 39).
 
            
 
                 On cross-examination, the doctor acknowledged that he 
 
            wrote a letter on April 22, 1991, in which he indicated he 
 
            did not find any mention of low back complaints by Douglas 
 
            Koontz, M.D., or any other consultant.  Radiologic studies 
 
            done on the lumbar spine and the examination did not 
 
            indicate any lumbar problems (Cl. Ex. A, p. 42).  The doctor 
 
            also acknowledged that when claimant was admitted on May 23, 
 
            1989, the history taken indicated no major problems except 
 
            low back eight years since the motor vehicle accident.  The 
 
            doctor also agreed that when another motor examination was 
 
            performed on May 24, 1989, there was no problems with the 
 
            lower extremities.
 
            
 
                 The doctor acknowledged that in a summary letter of 
 
            June 12, 1989 to Dr. Koontz, he confirmed, in regards to 
 
            claimant's hospitalization stay that began in May of 1989, 
 
            that there was a normal neurological examination of the 
 
            lower area and that the only deficit was one referable to 
 
            the cervical spine fracture which dealt with the neck (Cl. 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            Ex. A, p. 45).
 
            
 
                 The doctor agreed that in a letter he sent to 
 
            claimant's attorney on April 22, 1991, he had concluded that 
 
            claimant's disc disease that he treated at the University of 
 
            Iowa was related to his employment with defendant employer 
 
            and, specifically, an incident at work in November of 1988.
 
            
 
                 The doctor also acknowledged that claimant never did 
 
            tell him about his automobile accident in which he injured 
 
            his back in the late 1970's, that he injured his back 
 
            picking up a tire in the early 1980's, that he injured his 
 
            back falling off a ladder approximately nine to ten feet in 
 
            the early 1980's, that he had injured his back trying to 
 
            lift some object at defendant employer's company, and that 
 
            he injured his back when a child jumped on his back after 
 
            his November 7, 1989 alleged work injury (Cl. Ex. A, p. 65).
 
            
 
                 Jeffery A. Butler, D.C., testified on July 30, 1992, 
 
            through his deposition, represented by defendants' exhibit 
 
            E.  He testified that he first saw claimant on November 8, 
 
            1988, with a complaint of low back pain resulting from the 
 
            claimant lifting an intake grate at work.  Dr. Butler 
 
            acknowledged that on the patient's introductory card, the 
 
            claimant answered "no" as to whether he had ever had any 
 
            falls, auto accidents or injuries.  Dr. Butler testified as 
 
            to the approximately four or five tests he performed on 
 
            claimant and concluded that claimant was not suffering from 
 
            a herniated or ruptured disc (Def. Ex. E, p. 7).
 
            
 
                 The doctor related claimant's November 14, 1988 
 
            incident in which his history indicated that claimant's 
 
            nephew jumped into the middle of his back.  He said the 
 
            nephew weighed 40 pounds.  The claimant told him that he 
 
            then began getting pains down the front of his leg and was 
 
            starting with his knee and going down to his ankle and the 
 
            pain became constant after this incident.  The doctor 
 
            indicated that at that point the claimant seemed to stop 
 
            responding to his care but up to that point he had been 
 
            improving (Def. Ex. E, p. 7 and 8).
 
            
 
                 The doctor then related a November 25, 1988 incident 
 
            claimant related to him in which the doctor's records 
 
            indicate that the claimant was doing pretty well over the 
 
            week and had two days, Tuesday and Thursday, in which his 
 
            low back hurt after shoveling feed and helping his brother 
 
            work on his house.  The doctor then indicated he referred 
 
            claimant to Martin S. Rosenfeld, D.O., because he felt the 
 
            claimant was not progressing as fast as he should.  He 
 
            indicated Dr. Rosenfeld's diagnosis was a resolving lumbar 
 
            strain and that this diagnosis was not one of a herniated or 
 
            ruptured disc.
 
            
 
                 The doctor opined that on November 7, 1988, claimant 
 
            suffered a lumbosacral strain sprain with attendant 
 
            sciatica. He also opined that he felt claimant's November 7 
 
            accident may have been a contributing factor but the turning 
 
            point, he felt, was the accident claimant suffered at home 
 
            with a nephew jumping into the middle of his back (Def. Ex. 
 
            E, p. 12).  The doctor also opined that claimant's November 
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            7, 1988 lifting episode did not give him or cause a 
 
            herniated or ruptured disc (Def. Ex. E, pp. 12 and 13).  He 
 
            also could not conclude whether claimant suffered a 
 
            permanent injury.
 
            
 
                 Carl Lundahl, D.C., testified through his deposition on 
 
            June 23, 1992, represented by defendants' exhibit D.  The 
 
            doctor related certain treatment or records he had 
 
            concerning certain accidents or incidents claimant had 
 
            around 1978, 1983 and 1985, which involved his low back.  
 
            X-rays taken showed claimant had a compression fracture but 
 
            not a ruptured or herniated disc in 1983.  The last time he 
 
            saw claimant was on April 17, 1985.
 
            
 
                 Claimant's exhibits 1 through 14 are various doctor and 
 
            hospital reports.  In many of these instances, the doctors 
 
            either referred to them or had these reports available when 
 
            they gave their depositions.  The undersigned does not feel 
 
            it is necessary to go through those and point out any 
 
            particular thing as it would be duplicative as to the facts 
 
            already set out herein.
 
            
 
                 The claimant has the burden of proof to show that he 
 
            incurred an injury on November 7, 1988, that resulted in his 
 
            current complaints, his alleged permanency and his surgery 
 
            on October 10, 1990 (Cl. Ex. 9).
 
            
 
                 The parties have stipulated and the undersigned finds 
 
            that claimant did incur a temporary disability on November 
 
            7, 1988, that arose out of and in the course of his 
 
            employment and, as stipulated by the parties, healing period 
 
            was paid from November 8, 1988 through March 5, 1989.  Dr. 
 
            Kimelman released claimant to work on March 2, 1989 (Cl. Ex. 
 
            5, p. 42).
 
            
 
                 Claimant had an incident in which his nephew jumped on 
 
            his back on November 14, 1989, approximately seven days 
 
            after his alleged injury at defendant employer.  Dr. Butler 
 
            testified that he treated claimant right after his November 
 
            7, 1988 injury and that he was doing better until the 
 
            November 14, 1988 incident involving claimant's nephew 
 
            jumping on claimant's back.  Claimant then started to get 
 
            worse and Dr. Butler did not feel that he was able then to 
 
            properly care for claimant's condition and referred him to 
 
            Dr. Rosenfeld.
 
            
 
                 Claimant's surgery in October 1990 was for a herniated 
 
            disc.  There is no credible evidence that claimant incurred 
 
            a herniated disc as a result of his November 7, 1988 injury.  
 
            There are several incidents that occurred after that date, 
 
            all of which could have separately or cumulatively caused 
 
            claimant to have a herniated disc.  The overwhelming medical 
 
            evidence shows that the claimant's medical condition from 
 
            which he complains and wants compensation was not caused by 
 
            nor was it materially and substantially contributed to by 
 
            claimant's November 7, 1988 injury.
 
            
 
                 Also, the evidence shows from the various medical 
 
            depositions that claimant did not disclose all of the 
 
            incidents that he suffered during his life and, 
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
            particularly, after November 7, 1988, that would be 
 
            important for a doctor to draw a medical conclusion or to 
 
            have a full history so as to make the best medical opinion 
 
            after having all the facts.
 
            
 
                 The undersigned does not feel it is necessary to go 
 
            into any more detail as to the record and the deficiency and 
 
            lack of proof and the failure of claimant to carry his 
 
            burden to show that, in fact, he has any permanency 
 
            resulting from his November 7, 1988 injury.
 
            
 
                 The undersigned finds that claimant has not proven any 
 
            causal connection as to his alleged permanency and his 
 
            alleged healing period of November 10, 1990 through April 
 
            12, 1991, nor any medical bills after claimant's release of 
 
            March 2, 1989 to the present.  The undersigned finds that 
 
            claimant has no healing period or temporary total disability 
 
            other than what has already been stipulated to by the 
 
            parties and that he has no permanency and that defendants 
 
            are not responsible for the medical bills after March 5, 
 
            1989.  The medical bills submitted in the record under the 
 
            issue of 85.27 are only those bills after that date.  The 
 
            undersigned therefore finds that defendants are not 
 
            responsible for payment of those bills.  The undersigned 
 
            finds that claimant's November 7, 1988 injury did not 
 
            materially or substantially aggravate, light up or heighten 
 
            any prior back injury condition that claimant may have had.  
 
            The undersigned finds that there were several other 
 
            incidents of such nature that they could have individually 
 
            caused claimant to incur the permanency he now alleges he 
 
            has, the surgery incurred on October 10, 1990, the healing 
 
            period connected therewith, and the bills incurred after 
 
            March 5, 1989.
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                 Claimant has the burden of proving by a preponderance 
 
            of the evidence that he received an injury on November 7, 
 
            1988, which arose out of and in the course of his 
 
            employment. McDowell v. Town of Clarksville, 241 N.W.2d 904 
 
            (Iowa 1976); Musselman v. Central Telephone Co., 261 Iowa 
 
            352, 154 N.W.2d 128 (1967). 
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury of November 7, 
 
            1988, is causally related to the disability on which he now 
 
            bases his claim.  Bodish v. Fischer, Inc., 257 Iowa 516, 133 
 
            N.W.2d 867 (1965).  Lindahl v. L. O. Boggs, 236 Iowa 296, 18 
 
            N.W.2d 607 (1945).  A possibility is insufficient; a 
 
            probability is necessary.  Burt v. John Deere Waterloo 
 
            Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955).  The 
 
            question of causal connection is essentially within the 
 
            domain of expert testimony.  Bradshaw v. Iowa Methodist 
 
            Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). 
 
            
 
                 However, expert medical evidence must be considered 
 
            with all other evidence introduced bearing on the causal 
 
            connection.  Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion 
 
            of experts need not be couched in definite, positive or 
 
            unequivocal language.  Sondag v. Ferris Hardware, 220 N.W.2d 
 

 
            
 
            Page  11
 
            
 
            
 
            
 
            
 
            903 (Iowa 1974).  However, the expert opinion may be 
 
            accepted or rejected, in whole or in part, by the trier of 
 
            fact.  Id. at 907.  Further, the weight to be given to such 
 
            an opinion is for the finder of fact, and that may be 
 
            affected by the completeness of the premise given the expert 
 
            and other surrounding circumstances.  Bodish, 257 Iowa 516, 
 
            133 N.W.2d 867.  See also Musselman, 261 Iowa 352, 154 
 
            N.W.2d 128.
 
            
 
                 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.
 
            
 
                 It is further concluded that:
 
            
 
                 Claimant incurred an injury that arose out of and in 
 
            the course of his employment on November 7, 1988, which 
 
            resulted in a temporary disability in which claimant 
 
            incurred a healing period of November 8, 1988 through March 
 
            5, 1989, which has been paid by the defendants.
 
            
 
                 That claimant did not incur any permanent disability as 
 
            a result of his November 7, 1988 work injury.  Claimant's 
 
            surgery on October 10, 1990, and any medical bills incurred 
 
            after March 5, 1989 were not caused by claimant's November 
 
            7, 1988 work injury.
 
            
 
                 Claimant's November 7, 1988 work injury did not 
 
            materially or substantially aggravate or light up any 
 
            preexisting condition claimant may have had.  The 
 
            undersigned isn't finding that claimant had a preexisting 
 
            condition that was or could have been lighted up or 
 
            aggravated by claimant's November 7, 1988 injury.
 
            
 
                                      ORDER
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 That claimant takes nothing further from these 
 
            proceedings.
 
            
 
                 That the costs are to be paid equally by the parties.
 
            
 
     
 
            
 
            
 
            Page  12
 
            
 
            
 
            
 
            
 
            Signed and filed this ____ day of November, 1992.
 
            
 
            
 
            
 
                                          ______________________________
 
                                          BERNARD J. O'MALLEY
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            Copies to:
 
            
 
            Mr Andrew J Bracken
 
            Attorney at Law
 
            100 Court Ave  Ste 600
 
            Des Moines IA 50309
 
            
 
            Mr Thomas Henderson
 
            Attorney at Law
 
            317 Sixth Ave  Ste 1200
 
            Des Moines IA 50309
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                           5-1100; 5-1108; 5-1801.1
 
                                           5-1804; 5-2303
 
                                           Filed November 10, 1992
 
                                           Bernard J. O'Malley
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            ROCKY L. MILLER,              :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 901189
 
            MIKE VANDERPOOL CONSTRUCTION, :
 
            INC.,                         :
 
                                          :     A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            HAWKEYE-SECURITY INSURANCE    :
 
            COMPANY,                      :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            5-1100; 5-1108; 5-1801.1
 
            Found claimant incurred a temporary disability that arose 
 
            out of and in the course of claimant's employment for which 
 
            he was already paid benefits and was causally connected.
 
            
 
            5-1100; 5-1108; 5-1804
 
            Found claimant did not incur permanent disability that arose 
 
            out of and in the course of his  employment nor was any 
 
            permanency caused by claimant's work injury.
 
            
 
            5-2303
 
            Found claimant's medical bills that were in dispute are not 
 
            the responsibility of defendants for reasons above.
 
            
 
 
            
 
                 
 
            
 
             
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            SHARON LARSON,                :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :      File Nos. 901235
 
                                          :                985416
 
            MEREDITH CORPORATION,         :
 
                                          :   A R B I T R A T I O N
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            CNA INSURANCE COMPANY,        :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This decision concerns two proceedings in arbitration.  
 
            The first, file number 901235, deals with an admitted 
 
            bilateral carpal tunnel injury of December 27, 1988.  The 
 
            second, file number 985416, deals with an admitted thoracic 
 
            outlet syndrome with an agreed injury date of May 1, 1989.  
 
            In both cases the parties have stipulated that the correct 
 
            rate of weekly compensation is $162.51 per week and that 
 
            healing period or temporary total disability entitlement is 
 
            no longer in dispute.  The only claim made is for benefits 
 
            for permanent partial disability compensation.  A principle 
 
            issue in the case is whether the disability is to be 
 
            compensated industrially or as a scheduled disability.  
 
            
 
                 The case was heard and fully submitted at Des Moines, 
 
            Iowa, on July 1, 1993.  The record consists of testimony 
 
            from Sharon Larson, Ron Larson, Diane McGuire, Kent Jayne, 
 
            and Mark Huddlestone.  The record also contains claimant's 
 
            exhibits 1 through 13 and defendants' exhibits A through E 
 
            and H.  
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 Sharon Larson developed bilateral carpal tunnel 
 
            syndrome as a result of the nature of the work she performed 
 
            for her employer Meredith Corporation.  She was off work for 
 
            a period of time running from approximately December 5, 1988 
 
            through April 16, 1989.  The last two weeks of that period 
 
            she actually worked on a part-time basis.  She then resumed 
 
            full-time work on April 17, 1989.  The initial indications 
 
            were that she had a good result from her carpal tunnel 
 
            release surgeries.  
 
            
 
                 After working for a few weeks, Sharon began to develop 
 
            problems with her left arm.  Medical consultations led to a 
 
            diagnosis of thoracic outlet syndrome.  After conservative 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            treatment failed to resolve the complaints, she underwent 
 
            surgery (exhibit 4, page 10).  She was released to return to 
 
            work following the surgery on or about November 9, 1989 (ex. 
 
            4, p. 15).  
 
            
 
                 During the summer of 1990 Sharon began a home based 
 
            data entry work program for Meredith Corporation.  She 
 
            continued in that position until October 1991 when she was 
 
            laid off.  
 
            
 
                 Sharon continued to make complaints involving her left 
 
            hand.  Nerve conduction velocity studies conducted by 
 
            Licensed Physical Therapist Thomas Bower on June 5, 1989 
 
            showed mildly prolonged median sensory latency at the left 
 
            wrist (ex. 1, p. 26).  
 
            
 
                 Claimant came under the care of Kevin Smith, M.D., in 
 
            early 1990.  Nerve conduction velocity studies conducted on 
 
            February 26, 1990, also showed slowing of the left median 
 
            nerve at the wrist (ex. 6, p. 5).  On or about October 5, 
 
            1990, Dr. Smith rated Sharon as having a 12 percent 
 
            permanent impairment of her left upper extremity based upon 
 
            residual loss of strength with residual nerve involvement 
 
            producing numbness and tingling in the hand.  He found no 
 
            permanent impairment of the right upper extremity or hand.  
 
            Dr. Smith made no rating of permanent impairment based upon 
 
            the thoracic outlet syndrome or surgery (ex. 6, pp. 12-16).  
 
            When deposed he was unable to state if any of the 12 percent 
 
            permanent impairment was from thoracic outlet surgery or if 
 
            it was all from the carpal tunnel syndrome condition.  He 
 
            confirmed that all the problems which he rated were located 
 
            in the left wrist (ex. 13, pp. 23, 42).  Dr. Smith also 
 
            stated in his deposition that the rating does not include 
 
            the right wrist complaints voiced by claimant in November 
 
            1990.  The impairment rating was based upon the October 5, 
 
            1990 evaluation.  It was not based upon an evaluation 
 
            performed at our about the time the report was issued.  The 
 
            report is dated January 21, 1991 (ex. 13, pp. 36, 39 & 40).
 
            
 
                 Sharon's increasing complaints involving her right hand 
 
            led her back to Scott Neff, D.O., the orthopedic surgeon who 
 
            had originally performed her carpal tunnel release 
 
            surgeries.  EMG and nerve conduction studies were conducted 
 
            of her right hand and were interpreted as showing recurrent 
 
            median nerve involvement in the right wrist (ex. 13, p. 9; 
 
            ex. 1, pp. 29-31).  On April 21, 1992, a revision of the 
 
            right carpal tunnel syndrome was performed by Dr. Neff (ex. 
 
            1, p. 33).  Dr. Neff felt that her recuperation from the 
 
            surgery was completed on July 27, 1992 (ex. 1, p. 35).  He 
 
            released her to return to work but restricted her to work 
 
            which included light office or secretarial work.  He 
 
            recommended that she avoid vibrating tools, exposure to 
 
            extreme cold and working with the wrist in a constant flexed 
 
            position.  He recommended a padded splint if she did any 
 
            work which involved an impact.  He recommended a wrist 
 
            splint or keyboard splint if she were to be doing 
 
            repetitious keyboard work (ex. 1, p. 25).  
 
            
 
                 On October 15, 1992, Sharon was evaluated by David R. 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            Archer, M.D., a fellow of the American Academy of Disability 
 
            Evaluating Physicians.  Dr. Archer found Sharon to have a 15 
 
            percent permanent impairment of each upper extremity as a 
 
            result of the residuals of her carpal tunnel syndrome.  He 
 
            translated that into an 18 percent whole person impairment.  
 
            He did not provide any impairment rating based upon the 
 
            thoracic outlet syndrome or its surgery (ex. 7).  
 
            
 
                 In early 1993 Sharon was evaluated by Dr. Neff and 
 
            Therapist Bower for purposes of determining permanent 
 
            impairment ratings.  Dr. Neff disputed the impairment 
 
            ratings assigned by Drs. Smith and Archer (defendants' ex. 
 
            E).  After testing was conducted by Therapist Bower, Dr. 
 
            Neff reported that Sharon does not have any specific 
 
            impairment as a result of carpal tunnel syndrome.  He 
 
            reported that her median nerve function was normal 
 
            bilaterally (ex. F).  
 
            
 
                 The information upon which Dr. Neff appears to base his 
 
            report comes from Therapist Bower.  In his report of May 24, 
 
            1993, it appears that he felt that the claimant's stated 
 
            complaints of pain were unreasonably high.  He found a 33 
 
            percent deficit of right side grip when compared to the 
 
            left.  The right also showed a deficit when compared to the 
 
            left in key pinch, palmar pinch and tip pinch.  Bower 
 
            concluded, however, that five of 16 validity criteria were 
 
            failed indicating submaximal effort and partially 
 
            invalidated the test results.  He felt that there was a high 
 
            indication of symptom exaggeration.  Bower's report 
 
            indicates that repeat nerve conduction studies were 
 
            performed.  He found the right median nerve function to be 
 
            extremely normal.  No comment is made directed to the 
 
            function of the left median nerve (ex. D).  It is noted that 
 
            the strength percentile rankings shown on the test were 
 
            extremely low bilaterally.  Sharon's best performance was 
 
            the left hand grip of 60 pounds which ranked at the 59th 
 
            percentile (ex. D, p. 4).  The record presented to the 
 
            undersigned does not contain the nerve conduction velocity 
 
            test performed by Bower in May 1993.  It is not possible to 
 
            know whether or not he conducted the test on both sides or 
 
            only focused on the right side.  It is noted that such tests 
 
            have always shown abnormality for the left side in the past.  
 
            No explanation appears in the record for why there would 
 
            have been improvement in the left side during the same time 
 
            as the right had worsened to the point of requiring repeat 
 
            surgery.
 
            
 
                 The impairment ratings in the record of this case are 0 
 
            percent bilaterally from Dr. Neff, 15 percent bilaterally 
 
            from Dr. Archer and 12 percent on the left but 0 percent on 
 
            the right by Dr. Smith.  Dr. Smith's 0 percent impairment 
 
            rating on the right appears to have been made at a time 
 
            before the recurrence of the right carpal tunnel syndrome 
 
            became evident.  Revision surgery on the right was 
 
            subsequently conducted.  Accordingly, his 0 percent 
 
            impairment rating on the right side is sufficiently removed 
 
            from the present point in time to be afforded little weight.  
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            No further treatment has been performed on the left side, 
 
            however.  If the condition is in fact permanent, it would be 
 
            expected that it would remain relatively constant.  Dr. 
 
            Archer's impairment rating on the left side is consistent 
 
            with that provided by Dr. Smith.  His rating for the right, 
 
            however, is irreconcilable with that provided by Dr. Neff.  
 
            At this point it must be noted that there is no nerve 
 
            conduction velocity report in the record of this case since 
 
            1989 which shows the function of the left median nerve at 
 
            the wrist to be completely normal.  The only indication that 
 
            it is normal comes from nonspecific statements in the recent 
 
            report from Therapist Bower and statements made by Dr. Neff 
 
            based upon that nonspecific report.  At hearing claimant 
 
            testified to Bower using a different type of testing 
 
            procedure than what had previously been used for prior EMG 
 
            and nerve conduction tests.  The records in this case 
 
            neither confirm nor controvert the claimant's testimony in 
 
            that regard.  Much of Bower's conclusions seem to be based 
 
            upon his perception that Sharon was exaggerating her 
 
            symptoms.  Having observed Sharon's appearance and demeanor 
 
            at hearing and considered it in light of the other evidence 
 
            in the case and in view of agency knowledge and experience 
 
            concerning the range of results typically occurring 
 
            following carpal tunnel surgery the possibility of symptom 
 
            exaggeration cannot be summarily dismissed.  On the other 
 
            hand, however, the fact that symptoms are exaggerated does 
 
            not mean that there are no bona fide symptoms.  It is only a 
 
            matter of degree.  It is not at all uncommon for individuals 
 
            how have undergone carpal tunnel surgery to have residual 
 
            symptoms of the type Sharon described.  Some individuals are 
 
            prone to development of scarring at the surgical site and 
 
            those individuals typically tend to have greater symptoms 
 
            than individuals who do not develop scarring.  As is clearly 
 
            shown by the repeat surgery at claimant's right hand she 
 
            appears to be one of those unfortunate individuals who is 
 
            susceptible to development of scarring at the surgical site.  
 
            Dr. Neff bases his report of 0 impairment bilaterally on the 
 
            assumption of completely normal nerve conduction studies yet 
 
            the record of this case contains no nerve conduction study 
 
            of claimant's left upper extremity showing normal function 
 
            at the wrist.  There is some question in the undersigned's 
 
            mind about the accuracy of the study involving the right 
 
            wrist which was conducted in May 1993.  Based upon agency 
 
            knowledge and expertise it is common for most orthopedic 
 
            surgeons to assign a 5 to 10 percent impairment of the upper 
 
            extremity following carpal tunnel release surgery where 
 
            there are residual complaints.  It is quite unusual for most 
 
            physicians other than Dr. Neff to assign a rating of 0 
 
            impairment where there are residual complaints.  Sharon's 
 
            symptoms as described at hearing clearly exceed the mild 
 
            symptoms which are commonly seen and for which ratings in 
 
            the range of 5 to 10 percent are commonly made.  There is 
 
            also an irreconcilable difference between Dr. Neff's rating 
 
            of zero impairment and his recommendation that Sharon follow 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            activity restrictions.  Imposition of activity restrictions 
 
            is very strong, though not conclusive, evidence of the 
 
            existence of some degree of permanent impairment since there 
 
            would be little need for activity restrictions if there were 
 
            no impairment.  Based on all the foregoing considerations it 
 
            is determined that Dr. Archer's ratings are the most correct 
 
            ratings of impairment and are adopted as the ratings of 
 
            permanent impairment of each upper extremity.  It should be 
 
            noted that he rated a 15 percent impairment of each upper 
 
            extremity.  The term "upper extremity" is not found in 
 
            Iowa's workers' compensation laws.  It is a term used by the 
 
            medical community and can properly be used to measure a 
 
            disability of the hand, a disability of the arm or a 
 
            disability that is located in the shoulder.  Carpal tunnel 
 
            syndrome normally results in a disability of the hand and 
 
            that appears to be the situation in this case.  Since this 
 
            case deals with bilateral carpal tunnel syndrome it is 
 
            necessary to convert the impairment of the hand into an 
 
            impairment of the upper extremity and then in turn convert 
 
            that into an equivalent impairment of the whole person.  
 
            Doing so results in a 9 percent impairment of the whole 
 
            person for each upper extremity.  Combining the same results 
 
            in a 17 percent impairment of the whole person under the 
 
            combined values chart (Guides to the Evaluation of Permanent 
 
            Impairment, 3d ed. (revised) American Medical Association, 
 
            pages 16, 55 & 254).  All the foregoing disability is found 
 
            to have resulted from the bilateral carpal tunnel syndrome 
 
            injury of December 27, 1988.
 
            
 
                 While Sharon has some residual symptoms and complaints 
 
            associated with the thoracic outlet condition, they do not 
 
            appear to be of a magnitude which constitutes a disability.  
 
            No physician has provided an impairment rating for the 
 
            condition.  Dr. Neff's recommended restrictions appear to be 
 
            directed to avoiding a recurrence of the condition rather 
 
            than an adjustment for disability.  It is therefore found 
 
            that Sharon has failed to introduce evidence showing that it 
 
            is probable that she has any permanent disability which 
 
            resulted from the thoracic outlet syndrome condition.
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                 An injury to a scheduled member may, because of after 
 
            effects or compensatory change, result in permanent 
 
            impairment of the body as a whole.  Such impairment may in 
 
            turn be the basis for a rating of industrial disability.  It 
 
            is the anatomical situs of the permanent injury or 
 
            impairment which determines whether the schedules in section 
 
            85.34(2)(a) - (t) are applied.  Lauhoff Grain v. McIntosh, 
 
            395 N.W.2d 834 (Iowa 1986); Blacksmith v. All-American, 
 
            Inc., 290 N.W.2d 348 (Iowa 1980); Dailey v. Pooley Lumber 
 
            Co., 233 Iowa 758, 10 N.W.2d 569 (1943).  Soukup v. Shores 
 
            Co., 222 Iowa 272, 268 N.W. 598 (1936).
 
            
 
                 Disability resulting from thoracic outlet syndrome is 
 
            normally compensated as an unscheduled disability.  Rice v 
 
            Todd Corporation, file no. 847940 (April 4, 1989).  This is 
 
            so because the permanent disability or impairment resulting 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            from thoracic outlet syndrome is anatomically located at a 
 
            point that is not in the person's arm, even though any such 
 
            residual disability has a large impact on the person's 
 
            ability to make use of their hand and arm.  It is the situs 
 
            of the source of the loss of use or function that is 
 
            controlling, not the situs at which the loss or disability 
 
            is most observable.  It is the situs of the direct injury 
 
            and disability, not the situs of the resultant injury or 
 
            disability.  In view of the arbitrainess of the scheduled 
 
            injury system and the supreme court's mandate that the law 
 
            be construed in a manner beneficial to the injured worker, 
 
            the scheduled injury system should be used only when no 
 
            other reasonable option exists.  Construing the workers' 
 
            compensation laws in a manner beneficial to the injured 
 
            worker mandates providing a fair construction and fair 
 
            application over one which is arbitrary whenever possible.  
 
            It is always inherently more fair to award compensation 
 
            based upon loss of earning capacity rather than functional 
 
            impairment.  The scheduled injury system is not to be 
 
            expanded and applying it to injuries affecting parts of the 
 
            body which are not found in the statutory schedule is 
 
            improper.  Where disability has its basis in the shoulder, 
 
            rather than in the arm, the disability is not a scheduled 
 
            disability of the arm.  It is an unscheduled disability 
 
            which is to be evaluated industrially.  If the evidence in 
 
            this case showed Sharon to have some disability, even a 
 
            small amount, which had resulted from her thoracic outlet 
 
            syndrome, then she would be entitled to have that disability 
 
            compensated industrially.  The evidence in this case does 
 
            not, however, show any degree of permanent disability to 
 
            have resulted from her thoracic outlet syndrome.  Subjective 
 
            complaints, by themselves, do not always equate to the 
 
            existence of permanent disability.  Since the record in this 
 
            case fails to demonstrate, by a preponderance of the 
 
            evidence, that Sharon has any permanent disability as a 
 
            result of the thoracic outlet syndrome and surgery she is 
 
            not entitled to recover any permanent partial disability 
 
            based upon the May 1, 1989 thoracic outlet syndrome injury.
 
            
 
                 Sharon is entitled to recover permanent partial 
 
            disability under the provisions of section 85.34(2)(s) on 
 
            account of her bilateral carpal tunnel syndrome injury of 
 
            December 27, 1988.  Simbro v DeLong's Sportswear, 332 N.W.2d 
 
            886 (Iowa 1983).  It should be noted that use of the AMA 
 
            Guides is not exclusive.  A claimant's testimony and 
 
            demonstrated difficulties may be considered in determining 
 
            actual loss of use which is compensated so long as loss of 
 
            earnings capacity is not considered.  Soukup, 222 Iowa 272, 
 
            268 N.W. 598.  It should be noted that the terminology used 
 
            in the AMA Guides differs sufficiently from that used in the 
 
            workers' compensation statutes so that the application of 
 
            the Guides is somewhat questionable despite the agency rule 
 
            which recognizes them as being authoritative.  Lauhoff Grain 
 
            v. McIntosh, 395 N.W.2d 834 (Iowa 1986).  When dealing with 
 
            a scheduled loss, it is the loss of use which is measured.  
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            Moses v. Union Coal Mining Co., 194 Iowa 819, 184 N.W. 746 
 
            (1921).  In this case it is clear that Sharon Larson has a 
 
            15 percent loss of the use of each of her upper extremities 
 
            when considered in light of the functions for which 
 
            individuals typically use their upper extremities.  Her 
 
            disability is actually located in her hands but the 
 
            conversion process used to take it into the body as a whole 
 
            eliminates the need to convert the physician's impairment 
 
            rating of an upper extremity into an equivalent impairment 
 
            of each hand since it would then be necessary to convert the 
 
            impairment or disability back into one of the upper 
 
            extremity and then into an equivalent disability of the 
 
            whole person.  Since Sharon has a 17 percent impairment of 
 
            the whole person under the provisions of section 85.34(2)(s) 
 
            she is entitled to recover 85 weeks of compensation for 
 
            permanent partial disability.  She has previously been paid 
 
            50 weeks of benefits.  She is therefore entitled to recover 
 
            an additional 35 weeks of permanent partial disability 
 
            compensation.
 
            
 
                 An issue in the case is the date of commencement of 
 
            benefits for permanent partial disability.  Under the 
 
            section 85.34, Code of Iowa, permanent partial disability 
 
            compensation is payable commencing at the end of the healing 
 
            period.  When the healing period is intermittent, as in this 
 
            case, permanent partial disability is to be paid commencing 
 
            at the end of the first hearing period and then interrupted 
 
            for the additional segments of healing period which are 
 
            attributable to the injury in question.  Teel v. McCord, 394 
 
            N.W.2d 405 (Iowa 1986).  The permanent partial disability 
 
            compensation in this case was therefore payable commencing 
 
            on April 7, 1989.  It is not proper to receive permanent 
 
            partial disability and healing period compensation for the 
 
            same injury at the same time.  A person is entitled only to 
 
            recover only one or the other.  The claimant's healing 
 
            period compensation paid for the thoracic outlet syndrome 
 
            injury, however, is a separate injury.  It is no more 
 
            improper to recover permanent partial disability 
 
            compensation for a prior injury at the same time as an 
 
            individual is receiving healing period benefits for a 
 
            subsequent injury than it is to recover permanent partial 
 
            disability while receiving wages after returning to work at 
 
            the end of the healing period from the first injury.  
 
            Claimant's permanent partial disability entitlement 
 
            therefore runs uninterrupted from April 17, 1989 for 85 
 
            weeks.  The healing period benefits for the revision carpal 
 
            tunnel surgery performed in early 1992 occurred more than 85 
 
            weeks following the end of the initial healing period 
 
            entitlement for the carpal tunnel syndrome injury.  All of 
 
            the permanent partial disability was due and payable prior 
 
            to the 1992 healing period.  Interest on permanent partial 
 
            disability is payable at the end of the healing period 
 
            regardless of the point in time at which the impairment 
 
            rating is made.  Irving A. Merrill (Declaratory Ruling Feb. 
 
            22, 1993); Bevins v. Farmstead Foods, file numbers 834865, 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            877458, 881784, & 888705 (App. November 26, 1991); Brinks v. 
 
            Case Power and Equipment, file number 843233 (App. Dec. 
 
            April 18, 1990).  The 85 weeks of permanent partial 
 
            disability compensation awarded in this case is therefore 
 
            payable commencing April 17, 1989 and it remained payable 
 
            week-by-week without interruption for 85 weeks thereafter.
 
            
 
                                      ORDER
 
            
 
                 IT IS THEREFORE ORDERED that claimant take nothing in 
 
            file number 985416 which is based upon her thoracic outlet 
 
            syndrome injury of May 1, 1989.
 
            
 
                 It is further ordered that in file number 901235 
 
            claimant receive eighty-five (85) weeks of compensation for 
 
            permanent partial disability payable at the stipulated rate 
 
            of one hundred sixty-two and 51/100 dollars ($162.51) per 
 
            week commencing April 17, 1989.  Defendants are entitled to 
 
            credit for the fifty (50) weeks of permanent partial 
 
            disability compensation previously paid.  Any weekly 
 
            permanent partial disability compensation which was not paid 
 
            when due accrues interest in accordance with section 85.30 
 
            from the date the payment came due until the date of actual 
 
            payment.
 
            
 
                 The costs are assessed against defendants in both cases 
 
            and defendants shall file claim activity reports in a timely 
 
            manner.
 
            
 
                 Signed and filed this ____ day of September, 1993.
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          MICHAEL G. TRIER
 
                                          DEPUTY INDUSTRIAL COMMISSIONER    
 
            
 
            Copies to:
 
            
 
            Mr. Tito Trevino
 
            Attorney at Law
 
            801 Carver Bldg
 
            PO Box 1680
 
            Fort Dodge, Iowa  50501
 
            
 
            Ms. Coreen K. Bezdicek
 
            Mr. Charles Cutler
 
            Attorneys at Law
 
            729 Insurance Exchange Bldg
 
            Des Moines, Iowa  50309
 
            
 
                 
 
            
 
 
            
 
 
 
            
 
            
 
            
 
                                           1803.1 1808 3800
 
                                           Filed September 8, 1993
 
                                           Michael G. Trier
 
            
 
                       BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                      
 
            SHARON LARSON, 
 
                      
 
                 Claimant, 
 
                      
 
            vs.                                    File Nos. 901235
 
                                                             985416
 
            MEREDITH CORPORATION,    
 
                                               A R B I T R A T I O N
 
                 Employer, 
 
                                                 D E C I S I O N
 
            and       
 
                      
 
            CNA INSURANCE COMPANY,   
 
                      
 
                 Insurance Carrier,  
 
                 Defendants.    
 
            ___________________________________________________________
 
            
 
            1803.1
 
            Disability resulting from thoracic outlet syndrome held to 
 
            be a nonscheduled disability but the evidence in this case 
 
            failed to prove and disability resulting from that 
 
            condition.
 
            
 
            1808
 
            Where there was a wide divergence in impairment ratings 
 
            claimant was found to have a 15 percent impairment of each 
 
            upper extremity which converted to a 17 percent of the whole 
 
            person for bilateral carpal tunnel syndrome.  The treating 
 
            physician's rating of zero impairment was rejected as being 
 
            irreconcilable with this recommendation for activity 
 
            restrictions.  It was also at wide variance with the other 
 
            ratings from other physicians in the case.  The claimant's 
 
            symptoms were probably exaggerated but even after taking 
 
            that fact into account, the ratings of zero impairment were 
 
            unsupportable.
 
            
 
            3800
 
            Permanent partial disability held payable at the end of the 
 
            healing period.  It was held to be proper to continue 
 
            payment of permanent partial disability from one injury at 
 
            the same time as the claimant was receiving healing period 
 
            benefits for a subsequent injury.  
 
            
 
 
            
 
            
 
            
 
            
 
            
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
            DANIEL ANTHOFER,              :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 901287
 
            RON JENSEN,                   :
 
                                          :        A P P E A L
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            GRINNELL MUTUAL REINSURANCE,  :
 
                                          :
 
                 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.  
 
 
 
                             FINDINGS OF FAC
 
 
 
            The findings of fact in the deputy's proposed decision filed 
 
            October 1, 1990 are affirmed and adopted with the following 
 
            modifications.
 
            Functional impairment is an element to be considered in 
 
            determining industrial disability which is the reduction of 
 
            earning capacity, but consideration must also be given to 
 
            the injured employee's age, education, qualifications, 
 
            experience and inability to engage in employment for which 
 
            he is fitted, Olson v. Goodyear Service Stores, 255 Iowa 
 
            1112, 125 N.W.2d 251 (1963).  Barton v. Nevada Poultry Co., 
 
            253 Iowa 285, 100 N.W.2d 660 (1961).
 
            Factors to be considered in determining industrial 
 
            disability 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.
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            Claimant is relatively young, thirty-two years old at the 
 
            time of the injury.  The majority of claimant's work 
 
            experience is heavy labor.  Claimant is a high school 
 
            graduate.  Claimant's treating physician, Mark P. Brodersen, 
 
            M.D., advised claimant to not participate in physical 
 
            activities involving lifting greater than 50 pounds.  Dr. 
 
            Brodersen also advised claimant to avoid repetitive lifting, 
 
            bending or twisting.  (Joint Exhibit 1, p. 4.)  Dr. 
 
            Brodersen opined that claimant sustained a seven percent 
 
            impairment to the body as a whole.  Claimant was referred to 
 
            William R. Boulden, M.D. who opined that claimant sustained 
 
            a five percent impairment based on the fact of non-operative 
 
            treatment of a herniated disc.  (Jt. ex. 2, p. 2.)  Dr. 
 
            Boulden opined that claimant could not return to heavy 
 
            manual work.  Claimant is motivated to improve his physical 
 
            condition and find employment within his restrictions.  
 
            Claimant enrolled in school learning to become barber.
 
            Based upon these facts and those set out in the deputy's 
 
            proposed decision, it is determined that claimant proved 
 
            entitlement to 20 percent permanent partial disability 
 
            benefits as a result of his October 17, 1988 work injury.
 
 
 
                             CONCLUSIONS OF LAW
 
 
 
            The conclusions of law in the deputy's proposed decision are 
 
            affirmed and adopted with the following modification.
 
            Claimant proved by a preponderance of the evidence 
 
            entitlement to twenty percent permanent partial disability 
 
            benefits as a result of his October 17, 1988 work injury.  
 
            Iowa Code section 85.34(2)(u).
 
            WHEREFORE, the decision of the deputy is affirmed and 
 
            modified.
 
                                    ORDER
 
 
 
            THEREFORE, it is ordered:
 
            That defendants pay claimant one hundred (100) weeks of 
 
            permanent partial disability benefits at the rate of two 
 
            hundred twenty and 69/100 dollars ($220.69) per week 
 
            commencing on February 24, 1989 as stipulated to by the 
 
            parties.
 
            That defendants are entitled to credit for fifty point seven 
 
            one four (50.714) weeks of permanent partial disability 
 
            benefits paid to claimant up to the time of hearing and any 
 
            subsequent permanent partial disability benefits that have 
 
            been paid to claimant subsequent to the hearing.  Defendants 
 
            agreed that they paid at the rate of one hundred sixty-nine 
 
            and 29/100 dollars ($169.29), but claimant was entitled to a 
 
            rate of two hundred twenty and 69/100 dollars ($220.69).
 
            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 shall pay the cost of appeal, including the 
 
            preparation of the hearing transcript.
 
            That defendants shall file a claim activity report pursuant 
 
            to rule 343 IAC 3.1.
 
            Signed and filed this ____ day of December, 1991.
 
            
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
                                        ________________________________
 
                                               BYRON K. ORTON
 
                                           INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Donald G. Beattie
 
            Attorney at Law
 
            P.O. Box 367
 
            Altoona, Iowa 50009
 
            
 
            Mr. Philip H. Dorff, Jr.
 
            Attorney at Law
 
            2700 Grand Ave., Ste 111
 
            Des Moines, Iowa 50312
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                              5-1803
 
                                              Filed December 24, 1987
 
                                              Byron K. Orton
 
            
 
                      BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
            DANIEL ANTHOFER,              :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 901287
 
            RON JENSEN,                   :
 
                                          :        A P P E A L
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            GRINNELL MUTUAL REINSURANCE,  :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
            5-1803
 
            Held that claimant proved entitlement to 20 percent 
 
            permanent partial disability benefits as a result of his 
 
            October 17, 1988 work injury.  
 
            Claimant is relatively young, 32 years old at the time of 
 
            his work injury.  The majority of claimant's work experience 
 
            is heavy labor.  Claimant is a high school graduate.  
 
            Claimant's treating physician advised claimant to not 
 
            participate in physical activities involving lifting greater 
 
            than 50 pounds and to avoid repetitive lifting, bending or 
 
            twisting.  Claimant's treating physician opined that 
 
            claimant sustained a seven percent impairment to the body as 
 
            a whole as a result of his work injury.  A referring 
 
            physician opined that claimant sustained a five percent 
 
            permanent impairment as a result of his work injury.  
 
            Claimant is motivated to improve his physical condition and 
 
            find employment within his restrictions.  Claimant enrolled 
 
            in school learning to become a barber.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            MARC STEWARD,                 :
 
                                          :
 
                 Claimant,                :         File No. 901326
 
                                          :
 
            vs.                           :      A R B I T R A T I O N
 
                                          :
 
            WILSON FOODS CORPORATION,     :         D E C I S I O N
 
                                          :
 
                 Employer,                :
 
                 Self-Insured,            :
 
                 Defendant.               :
 
            ____________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding in arbitration brought by Marc 
 
            Steward against his employer, Wilson Foods Corporation, 
 
            based upon an injury that occurred on July 14, 1988.  
 
            Claimant seeks additional compensation for permanent partial 
 
            disability.  The only issue in the case is determination of 
 
            the extent of permanent partial disability which was 
 
            proximately caused by the injury.
 
            
 
                 The case was heard at Storm Lake, Iowa on July 1, 1991.  
 
            The record consists of testimony from Marc Steward and 
 
            Denise Steward as well as jointly offered exhibits 1 through 
 
            64 and claimant's exhibit 65.
 
            
 
                                 findings of fact
 
            
 
                 Having considered all the evidence received, together 
 
            with the appearance and demeanor of the witnesses, the 
 
            following findings of fact are made.
 
            
 
                 Marc Steward is a 36-year-old married man who lives at 
 
            Cherokee, Iowa with his wife Denise.  Marc dropped out of 
 
            high school after completing the eighth grade and entered 
 
            the Army where he obtained a GED.  He was a member of the 
 
            military police, but has done no law enforcement work since 
 
            leaving the Army in 1976.  He has no injuries or 
 
            disabilities from his military service.
 
            
 
                 Following his discharge from the Army, Marc worked 
 
            primarily as a truck driver until commencing employment with 
 
            Wilson Foods in June 1979.  He started on the loading dock, 
 
            moved to the press room and then to the kill floor.  From 
 
            approximately 1981 until 1985, Marc boxed offal from the 
 
            kill floor.  In 1986, he bid onto the pace boning line where 
 
            he removed the shank bone from hams.  He has remained in 
 
            that same job up to the present time.
 
            
 
                 On July 14, 1988, the date agreed to by the parties as 
 
            the date of injury, Marc saw the company physician with 
 
            complaints of sharp pain in his left arm.  After appropriate 
 
            diagnostic testing, he was determined to be afflicted with 
 
            thoracic outlet syndrome (exhibit 35, page 2).  He was then 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            referred to William H. Fleming, M.D., who confirmed the 
 
            diagnosis of thoracic outlet syndrome (exhibit 20).  On 
 
            November 30, 1988, Marc underwent surgery in which his first 
 
            rib was resected (exhibit 17).  After a prolonged period of 
 
            recovery, Marc resumed work at his present job.
 
            
 
                 Since returning to work, Marc has apparently been able 
 
            to perform at a level satisfactory to his employer.  Marc 
 
            has residual symptoms and is not particularly satisfied with 
 
            the results from his surgery.  He takes a considerable 
 
            amount of over-the-counter medication.  He has had physical 
 
            therapy (exhibits 16 and 65).  His surgeon, Dr. Fleming, has 
 
            authorized him to perform heavy work without any significant 
 
            restrictions (exhibit 9).  When seen at the Industrial 
 
            Injury Clinic in Neenah, Wisconsin in early 1990, he was 
 
            likewise authorized to perform medium, heavy work with 
 
            little in the way of restrictions.  A five percent permanent 
 
            impairment rating was assigned (exhibit 3, page 9).  The 
 
            report issued by the clinic found claimant to be rather 
 
            hypochondrial and histrionic.  It likewise stated that he 
 
            probably did not have thoracic outlet syndrome and indicated 
 
            the surgery was unnecessary (exhibit 3, pages 6 and 8).  
 
            Marc's surgeon, Dr. Fleming, is found to be correct in his 
 
            statement that claimant clearly had thoracic outlet 
 
            syndrome, that it was aggravated by his job as a boner and 
 
            that the aggravation led to the need for the surgery 
 
            (exhibit 4).  His opinion is corroborated by Thomas P. 
 
            Ferlic, M.D., and A. J. Wolbrink, M.D. (exhibit 35, page 2; 
 
            exhibit 2).
 
            
 
                 Marc was assigned an impairment rating of no more than 
 
            five percent by Dr. Wolbrink and a rating of six percent of 
 
            the body as a whole by Scott B. Neff, D.O. (exhibit 7).  Dr. 
 
            Neff's restrictions were simply a recommendation that Marc 
 
            avoid pulling or pushing.  He indicated that any type of 
 
            repetitive work will aggravate the symptoms (exhibit 7).
 
            
 
                 As a result of the symptoms which continue to afflict 
 
            Marc, he has ceased leisure activities such as bow hunting, 
 
            bowling and working on cars.
 
            
 
                 Marc has thought of seeking some other job, but feels 
 
            there is little chance of obtaining wages in the Cherokee, 
 
            Iowa area which are comparable to what he currently earns.  
 
            He has not applied at either of the two potential employers 
 
            who might pay similar wages.
 
            
 
                 It is found that Marc has a five percent permanent 
 
            partial impairment of the body as a whole as a result of his 
 
            thoracic outlet syndrome, the surgery and residual symptoms.  
 
            The statements from the Industrial Injury Clinic which 
 
            indicate that he did not actually have thoracic outlet 
 
            syndrome are found to be incorrect.  At the present time, 
 
            Marc is working within the limits recommended by the 
 
            Industrial Injury Clinic and his surgeon, Dr. Fleming.
 
            
 
                                conclusions of law
 
            
 
                 Claimant is entitled to recover permanent partial 
 
            disability compensation under the provisions of Code section 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            85.34(2)(u) for all disability which was proximately caused 
 
            by the injury.  A cause is proximate if it is a substantial 
 
            factor in bringing about the result; it need not be the only 
 
            cause.  Blacksmith v. All-American, Inc., 290 N.W.2d 348, 
 
            354 (Iowa 1980).  Drs. Fleming and Wolbrink relate the 
 
            thoracic outlet syndrome condition and its residuals to 
 
            Marc's employment.  Their opinions are determined to be 
 
            correct.  It is therefore concluded that Marc's work at 
 
            Wilson Foods was a proximate cause of his thoracic outlet 
 
            syndrome, the need for surgery and his residual disability 
 
            from that condition.
 
            
 
                 Claimant seeks compensation for permanent partial 
 
            disability.  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 
 
            earning capacity, but consideration must also be given to 
 
            the injured employee's age, education, qualifications, 
 
            experience and inability to engage in employment for which 
 
            he is fitted.  Olson v. Goodyear Service Stores, 255 Iowa 
 
            1112, 1121, 125 N.W.2d 251, 257 (1963).
 
            
 
                 Industrial disability or loss of earning capacity is a 
 
            concept that is quite similar to impairment of earning 
 
            capacity, an element of damage in a tort case.  Impairment 
 
            of physical capacity creates an inference of lessened 
 
            earning capacity.  The basic element to be determined, 
 
            however, is the reduction in value of the general earning 
 
            capacity of the person, rather than the loss of wages or 
 
            earnings in a specific occupation.  Post-injury earnings 
 
            create a presumption of earning capacity.  The earnings are 
 
            not synonymous with earning capacity and the presumption may 
 
            be rebutted by evidence showing the earnings to be an 
 
            unreliable indicator.  Bearce v. FMC Corp., 465 N.W.2d 531 
 
            (Iowa 1991); DeWall v. Prentice, 224 N.W.2d 428, 435 (Iowa 
 
            1974); Carradus v. Lange, 203 N.W.2d 565 (Iowa 1973); 
 
            Holmquist v. Volkswagon of America, Inc., 261 N.W.2d 516 
 
            (Iowa App. 1977) A.L.R.3d 143; Michael v. Harrison County, 
 
            Thirty-fourth Biennial Report of the Industrial Commissioner 
 
            218 (1979); 2 Larson Workmen's Compensation Law, sections 
 
            57.21 and 57.31.
 
            
 
                 In this case, Marc Steward, while he has physical 
 
            impairment and residual symptoms, has not experienced any 
 
            loss of actual earnings.  He is working in a reasonably 
 
            secure position within the activity restrictions recommended 
 
            by all the physicians who have evaluated him.  Since his 
 
            work is repetitive, it is likely to cause him symptoms, but 
 
            those symptoms do not appear to be of sufficient severity to 
 
            be disabling.  The fact that Marc has given up a number of 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            his leisure-time pursuits corroborates the validity of his 
 
            symptoms and complaints.  Those symptoms have not, however, 
 
            been so severe as to cause Marc to bid to any other type of 
 
            job in the plant or to actually seek other employment.  
 
            Since he appears to be in the top half of the seniority 
 
            list, it would be expected that he would have the ability to 
 
            bid to a different job if he chose to do so.
 
            
 
                 An award of industrial disability can be more than, 
 
            less than, or equal to the amount of permanent impairment.  
 
            In this case, the medical personnel have not recommended any 
 
            significant activity restrictions for Marc.  He has not 
 
            experienced any loss of actual earnings and it does not 
 
            appear likely that he will in the foreseeable future.  His 
 
            current employment status appears quite stable with, of 
 
            course, recognition that the employment situation of most 
 
            individuals is subject to change for a variety of reasons.  
 
            When all pertinent factors of industrial disability are 
 
            considered, it is determined that Marc Steward has a five 
 
            percent permanent partial disability as a result of the July 
 
            14, 1988 injury.  Marc has previously been paid an amount 
 
            equal to six percent permanent partial disability.  He is 
 
            not entitled to any further recovery on account of this 
 
            injury at this time.
 
            
 
                                      order
 
            
 
                 IT IS THEREFORE ORDERED that claimant take nothing from 
 
            this proceeding.
 
            
 
                 IT IS FURTHER ORDERED that the costs of this action are 
 
            assessed against the claimant pursuant to rule 343 IAC 4.33.
 
            
 
                 IT IS FURTHER ORDERED that the employer file claim 
 
            activity reports as requested by this agency pursuant to 
 
            rule 343 IAC 3.1.
 
            
 
                 Signed and filed this ______ day of ____________, 1991.
 
            
 
                 
 
            
 
                 
 
                 
 
                                          ______________________________
 
                                          MICHAEL G. TRIER
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Steve Hamilton
 
            Attorney at Law
 
            606 Ontario Street
 
            P.O. Box 188
 
            Storm Lake, Iowa  50588
 
            
 
            Mr. David L. Sayre
 
            Attorney at Law
 
            233 Pine Street
 
            P.O. Box 535
 
            Cherokee, Iowa  51012
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                           5-1402.40; 5-1803
 
                           Filed August 22, 1991
 
                           MICHAEL G. TRIER
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            MARC STEWARD,  :
 
                      :
 
                 Claimant, :         File No. 901326
 
                      :
 
            vs.       :      A R B I T R A T I O N
 
                      :
 
            WILSON FOODS CORPORATION,     :         D E C I S I O N
 
                      :
 
                 Employer, :
 
                 Self-Insured,  :
 
                 Defendant.     :
 
            ____________________________________________________________
 
            
 
            5-1402.40; 5-1803
 
            Claimant, with residual symptoms following thoracic outlet 
 
            surgery, awarded five percent permanent partial disability.  
 
            He had minimal medically-imposed activity restrictions and 
 
            was working within those restrictions at his prior job 
 
            without any loss of actual earnings.  He appeared to be in a 
 
            stable employment setting.
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                          9998
 
                                          Filed December 17, 1991
 
                                          BYRON K. ORTON
 
                                          JMI
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            JAMES A. BLAIR,               :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :    File Nos. 936504/901455
 
            FARMLAND FOODS, INC.,         :
 
                                          :          A P P E A L
 
                 Employer,                :
 
                                          :        D E C I S I O N
 
            and                           :
 
                                          :
 
            AETNA CASUALTY & SURETY CO.,  :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            9998
 
            
 
                 Summary affirmance of deputy's decision filed August 9, 
 
            1991.
 
            
 
 
         
 
         Page   1
 
         
 
         
 
         
 
         
 
         
 
         
 
                     before the iowa industrial commissioner
 
         ____________________________________________________________
 
                                       :
 
         JAMES A. BLAIR,               :
 
                                       :
 
              Claimant,                :
 
                                       :
 
         vs.                           :
 
                                       :    File Nos. 936504 & 901455
 
         FARMLAND FOODS, INC.,         :
 
                                       :      A R B I T R A T I O N
 
              Employer,                :
 
                                       :         D E C I S I O N
 
         and                           :
 
                                       :
 
         AETNA CASUALTY AND SURETY CO.,:
 
                                       :
 
              Insurance Carrier,       :
 
              Defendants.              :
 
         ___________________________________________________________
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              This is a proceeding in arbitration brought by James A. 
 
         Blair, claimant, against Farmland Foods, Inc., employer, and 
 
         Aetna Casualty and Surety Company, insurance carrier, to recover 
 
         benefits under the Iowa Workers' Compensation Act as a result of 
 
         an injury sustained on November 18, 1988.  This matter came on 
 
         for hearing before the undersigned deputy industrial commissioner 
 
         on July 22, 1991, in Sioux City, Iowa.  The record was considered 
 
         fully submitted at the close of the hearing.  The record in this 
 
         case consists of joint exhibits 1-17 and 19-31; and claimant's 
 
         testimony.
 
         
 
                                      issues
 
         
 
              Pursuant to the prehearing report and order dated July 22, 
 
         1991, the parties have presented the following issues for 
 
         resolution:
 
         
 
              1.  Whether claimant sustained two injuries or one cumula
 
         tive injury which arose out of and in the course of employment 
 
         with employer; and,
 
         
 
              2.  The extent of entitlement to weekly compensation for 
 
         permanent disability.
 
         
 
                        
 
         
 
         
 
         Page   2
 
         
 
         
 
         
 
         
 
         
 
         findings of fact
 
         
 
              The undersigned has carefully considered all the testimony 
 
         given at the hearing, the arguments made, the evidence contained 
 
         in the exhibits herein and makes the following findings:
 
         
 
              Claimant was born on April 18, 1958, and completed the tenth 
 
         grade of school.  He has worked for employer, Farmland Foods, 
 
         Inc., since August 2, 1976.  He worked on the kill floor and in 
 
         the boning room.  After six years of working in the boning room, 
 
         he began to experience pain and numbness in his wrists.  He had 
 
         carpal tunnel release on the left on December 1, 1988 and on the 
 
         right on December 29, 1988.  He testified that although he filed 
 
         two separate applications for workers' compensation benefits and 
 
         has had two carpal tunnel surgeries, there was only one cumula
 
         tive injury involving the use of both hands.  Claimant returned 
 
         to light duty on January 17, 1989.  After three weeks of light 
 
         duty he returned to his original job boning hams every 16 sec
 
         onds.  He tolerated this for three days and then bid on a floor 
 
         service job.  He has worked continuously in this capacity since 
 
         March 1989.
 
         
 
              Pertinent medical evidence of record indicates that claimant 
 
         was seen by Rosemary Mason, M.D., on August 22, 1988, due to an 
 
         infected bursitis over his left wrist (Exhibit 1).  Claimant tes
 
         tified that he saw Dr. Mason because of a lump on his arm.  She 
 
         prescribed anti-inflammatory medication and he was off work for 
 
         two days, August 23 and 24, 1988.  The medication was effective 
 
         and he was able to return to his usual job.  He had no further 
 
         symptoms until November 1988, when he experienced numbness and 
 
         tingling in both hands.
 
         
 
              On November 17, 1988, claimant was examined by Dr. Mason for 
 
         bilateral numbness and tingling in his hands.  She diagnosed pos
 
         sible carpal tunnel syndrome.  He was taken off work and given 
 
         Tolectin (Ex. 2).
 
         
 
              Dr. Mason referred claimant to Joel Cotton, M.D., neurolo
 
         gist for EMG and nerve conduction studies.  These were taken on 
 
         November 28, 1988, and revealed bilateral distal median neuropa
 
         thy confirming the clinical diagnosis of bilateral carpal tunnel 
 
         syndrome (Ex. 5).  Claimant was referred to James T. Canedy, 
 
         M.D., for surgery.  On December 1, 1988, Dr. Canedy performed 
 
         left carpal tunnel release (Ex. 7) and on December 29, 1988, he 
 
         performed right carpal tunnel release (Ex. 10).
 
         
 
              Dr. Canedy released claimant to restricted work activity 
 
         commencing January 23, 1989.  Limitations including no repetitive 
 
         pushing, pulling or grasping for three weeks and lifting more 
 
         than 20 pounds was imposed (Exs. 13-14).
 
         
 
              Claimant saw Dr. Canedy for follow-up evaluation on March 
 
         17, 1989.  His complaints were referable to recurrence of thumb 
 
         tingling after performing heavy labor.  He was placed in a wrist 
 
         immobilizer.  He was seen again on October 17, 1989, with recur
 
         rence of some tingling sensation in the right palm and index fin
 
         ger.  EMG studies were performed and showed little change in 
 
         latency from the examination on November 28, 1988 (Ex. 22).
 
         
 

 
         
 
         Page   3
 
         
 
         
 
         
 
         
 
         
 
              On July 17, 1990, Dr. Canedy gave claimant an impairment 
 
         rating of five percent to each hand (Ex. 24).
 
         
 
              Being dissatisfied with Dr. Canedy's assessment, claimant 
 
         underwent an independent medical examination by Pat Luse, chiro
 
         practor, on September 13, 1990.  Dr. Luse diagnosed status post 
 
         carpal tunnel release bilaterally with residual weakness and 
 
         hypesthesia.  He gave an impairment rating of 10 percent to the 
 
         right upper extremity and 10 percent to the left upper extremity.  
 
         He recommended that claimant avoid working in a job requiring 
 
         bilateral repetitive motion (Ex. 26).
 
         
 
                                conclusions of law
 
         
 
              All of the evidence, including the claimant's testimony, 
 
         support the conclusion that all of his symptoms arose at the same 
 
         time and cumulated on November 18, 1988, when he was no longer 
 
         able to continue working due to the effects of his work injury.
 
         
 
              Under McKeever Custom Cabinets v. Smith, 379 N.W.2d 368 
 
         (Iowa 1985), the date of injury occurs when the worker is unable 
 
         to continue working due to the effects of the work injury.  
 
         McKeever recognizes the ongoing nature of the cumulative injury, 
 
         but also recognizes the need to establish a definite date of 
 
         injury for various purposes, such as the statute of limitations.  
 
         A definite injury date is also necessary for the establishment of 
 
         claimant's rate.  Although the technical rules of pleading have 
 
         been abolished for workers' compensation actions, there still 
 
         must be some semblance of specificity in the pleadings to allow 
 
         defendants to defend, and adjudicators to decide.  See 
 
         Terwilleger v. Snap-On Tools Corp., Appeal Decision, File No. 
 
         877065, May 24, 1991.
 
         
 
              The record shows that claimant's left and right carpal tun
 
         nel syndromes developed over the same period of time.  Under 
 
         McKeever, the date of injury would be the date on which the con
 
         dition first compelled claimant to miss work.  A single cumula
 
         tive injury to both arms would result in a single injury date, 
 
         even if symptoms or treatment began for each arm on different 
 
         dates.  In this case claimant suffered a single bilateral carpal 
 
         tunnel cumulative injury on November 18, 1988.
 
         
 
              Therefore, it is found that although there are two claim 
 
         files and two carpal tunnel surgeries, there was only one injury 
 
         and not separate injuries in this case.  Claimant's unrefuted 
 
         testimony indicates that his job involved the use of both hands 
 
         and both wrists at the same time.  Thus, this case is governed by 
 
         Iowa Code section 85.34(2)(s) as an injury to both hands caused 
 
         by a single incident and it is to be compensated on the basis of 
 
         500 weeks.
 
         
 
              Simbro v. DeLong's Sportswear, 332 N.W.2d 886 (Iowa 1983), 
 
         which is quite similar to this case, held that workers' compensa
 
         tion benefits for permanent partial disability of two members 
 
         caused by a single accident is a scheduled benefit under Iowa 
 
         Code section 85.34(2)(s) and that the degree of impairment caused 
 
         by a partial loss must be computed on the basis of functional, 
 
         rather than industrial, disability.  Himschoot v. Montezuma Mfg., 
 
         File Nos. 672778 & 738235 (Appeal Decision, April 15, 1988) 
 

 
         
 
         Page   4
 
         
 
         
 
         
 
         
 
         
 
         (Affirmed and Appealed to Court of Appeals, February 22, 1990).
 
         
 
              Claimant has received several impairment ratings.  Dr. 
 
         Canedy, claimant's treating surgeon, rated five percent of each 
 
         hand.  Dr. Luse rated 10 percent of each upper extremity.  
 
         Claimant testified that he has not seen Dr. Canedy since October 
 
         1989.  Dr. Canedy's impairment rating on July 17, 1990, was not 
 
         based on claimant's current condition.  While Dr. Luse is not 
 
         claimant's treating physician, he performed a comprehensive exam
 
         ination on September 13, 1990, and took x-rays of both wrists.  A 
 
         treating physician's opinion is not entitled to greater weight as 
 
         a matter of law.
 
         
 
              In Rockwell Graphic Systems, Inc. v. Prince, 366 N.W.2d 187 
 
         (Iowa 1985), the Iowa Supreme Court stated at 192:
 
         
 
              We think a rule of law would be unwise that a treating 
 
              physician's testimony should be given greater weight 
 
              than that of a later physician who examines the patient 
 
              in anticipation of litigation.  The employer should and 
 
              does have the right to develop the facts as to a latter 
 
              physician's employment in connection with litigation, 
 
              his examination at a later date and not when the 
 
              injuries were fresh, his arrangement as to compensa
 
              tion, the extent and nature of his examination, his 
 
              education, experience, training, and practice, all 
 
              other factors which bear upon the weight and value of 
 
              his testimony.  The claimant may similarly develop such 
 
              information as to the treating physician.  Both parties 
 
              may press all of this information to the attention of 
 
              the fact finder, as either supporting or weakening the 
 
              physician's testimony and opinion.  All these factors, 
 
              however, go to the value of the physician's testimony 
 
              as a matter of fact, not as a matter of law.
 
         
 
              Accordingly, the claimant is entitled to healing period ben
 
         efits during his time off work from November 18, 1988 through 
 
         January 22, 1989, at the stipulated rate of $374.86 per week and 
 
         to permanent partial disability benefits commencing January 23, 
 
         1989.
 
         
 
              Using the AMA Guides, 10 percent of the right upper extrem
 
         ity converts to six percent of the body as a whole and 10 percent 
 
         of the left upper extremity converts to six percent of the body 
 
         as a whole.  Placing these values on the combined values chart 
 
         found on page 254 of the book produces a combined value of 12 
 
         percent of the body as a whole.  Twelve percent of the body as a 
 
         whole amounts to 60 weeks of permanent partial disability (12 x 
 
         500).
 
         
 
                                      order
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              Claimant takes nothing in file number 936504 and this appli
 
         cation is dismissed with prejudice.
 
         
 
              Claimant shall pay all costs in file number 936504.
 
         
 

 
         
 
         Page   5
 
         
 
         
 
         
 
         
 
         
 
              In file number 901455, defendants shall pay claimant nine 
 
         point four-two-nine (9.429) weeks of healing period benefits from 
 
         November 18, 1988 through January 22, 1989, at the stipulated 
 
         rate of three hundred seventy-four and 86/l00 dollars ($374.86).
 
         
 
              In file number 901455, defendants shall pay claimant sixty 
 
         (60) weeks of permanent partial disability benefits commencing 
 
         January 23, 1989, at the stipulated rate of three hundred 
 
         seventy-four and 86/l00 dollars ($374.86).
 
         
 
              In file number 901455, defendants receive credit for bene
 
         fits previously paid.
 
         
 
              In file number 901455, defendants pay the cost of this 
 
         action pursuant to rule 343 IAC 4.33.
 
         
 
              In file number 901455, defendants pay accrued amounts in a 
 
         lump sum.
 
         
 
              In file number 901455, defendants pay interest pursuant to 
 
         Iowa Code section 85.30.
 
         
 
              In file number 901455, defendants file claim activity 
 
         reports as required by this agency.
 

 
         
 
         Page   6
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
              Signed and filed this ____ day of August, 1991.
 
         
 
         
 
         
 
         
 
         
 
                                       ______________________________               
 
         JEAN M. INGRASSIA
 
                                       DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Harry H. Smith
 
         Attorney at Law
 
         P O Box 1194
 
         Sioux City  IA  51102
 
         
 
         Mr. Thomas M. Plaza
 
         Attorney at Law
 
         70l Pierce St  STE 200
 
         P O Box 3086
 
         Sioux City  IA  51102
 
         
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            GARY L. REISH, :
 
                      :
 
                 Claimant, :
 
                      :
 
            vs.       :
 
                      :      File No. 901623
 
            UNITED PARCEL SERVICE,   :
 
                      :  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.    :
 
            ___________________________________________________________
 
            STATEMENT OF THE CASE
 
            
 
                 This is a proceeding in arbitration brought by Gary L. 
 
            Reish against his employer United Parcel Service based upon 
 
            an injury that occurred on November 16, 1988.  Claimant 
 
            seeks additional compensation for permanent partial 
 
            disability in excess of the 79.571 weeks which have 
 
            voluntarily been paid.  
 
            
 
                 The case was heard at Des Moines, Iowa on August 31, 
 
            1992.  The record in the proceeding consists of testimony 
 
            from Gary Reish and Curtis Cruise.  The record also contains 
 
            joint exhibits 1 through 13 and defendant's exhibits A and 
 
            B.  
 
            
 
                                 findings of fact
 
            
 
                 The evidentiary facts in this case are not in 
 
            substantial dispute.  The only dispute is the degree of 
 
            permanent partial disability which should be awarded on the 
 
            basis of those facts.
 
            
 
                 Gary L. Reish is a 53-year-old man whose principle 
 
            adult work activity has been driving trucks.  He is a high 
 
            school graduate with no post high school vocational training 
 
            or formal education.  He also engaged in farming for a short 
 
            time.  He worked as a service manager for a trucking 
 
            company.  
 
            
 
                 Gary began full-time employment with United Parcel 
 
            Service on September 2, 1986.  He worked as a feeder driver.  
 
            He holds that same position currently.  His job consists of 
 
            driving a truck with a loaded trailer from Des Moines to 
 
            some other terminal, most often Omaha or St. Paul, and then 
 
            returning, again with a loaded trailer.  He normally pulls a 
 
            40-foot single trailer or two 28-foot double trailers.  The 
 
            trucks are equipped with a manual transmission.  Few have 
 
            power steering.  
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
                 Gary was injured on November 16, 1988, while driving to 
 
            Omaha.  He lost control of his truck on an icy road, the 
 
            truck went down an embankment and overturned.  After being 
 
            off work a few days Gary resumed driving.  His symptoms did 
 
            not resolve and he has underwent an extended course of 
 
            treatment including physical therapy and surgery.  The first 
 
            major surgery was a left rotator cuff repair performed 
 
            September 13, 1989, by Rodney E. Johnson, M.D.  (Exhibit 5, 
 
            pg. 21)  On April 23, 1990, Dr. Johnson performed a left 
 
            epicondylectomy with ulnar nerve neurolysis.  (Ex. 4, pg. 
 
            13)  Gary resumed work but again had problems.  On February 
 
            27, 1991, Arnis B. Grundberg, M.D., performed surgical 
 
            decompression of Gary's ulnar nerve at his left elbow, 
 
            repeating the surgery performed on April 23, 1990 by Dr. 
 
            Johnson.  (Ex. 2, p. 13)  Dr. Grundberg has performed an 
 
            impairment rating finding a 10 percent impairment of Gary's 
 
            left arm.  (Ex. 2, p. 5)  Thomas W. Bower, L.P.T., performed 
 
            a functional capacity evaluation in 1990 and found Gary to 
 
            be capable of performing medium to heavy work but to have 
 
            major problems working at or above shoulder height.  (Ex. 6, 
 
            pp. 13 & 14)  Bower found Gary to have a 17 percent 
 
            impairment of his left upper extremity, an amount which he 
 
            found equivalent to 10 percent of the body as a whole.  (Ex. 
 
            6, pp. 16 & 17)  According to Bower, Gary could resume his 
 
            normal work without restriction.  
 
            
 
                 Gary resumed his job as a feeder driver in late 1991.  
 
            As shown by defense exhibits A & B he has been working over 
 
            40 hours per week since he resumed work.  The average 
 
            appears to be in the range of 33 or 34 hours per week.  That 
 
            is approximately the same number of hours per week as Gary 
 
            worked during the 13 weeks preceding the injury in 1988.  
 
            Gary has received all normal hourly pay increases which have 
 
            occurred since 1988.  His testimony that he misses 
 
            approximately 10 hours of overtime per week is not supported 
 
            by the documentary evidence of his earnings and payroll 
 
            records.  The records in evidence show no substantial change 
 
            in hours of work per week.  That evidence is found by the 
 
            undersigned to be more persuasive than Gary's testimony on 
 
            the issue of hours worked per week.  
 
            
 
                 The record of this case does not disclose Gary as 
 
            having any prior injuries to his left arm, shoulder, hip or 
 
            back.  He expressed continuing difficultly with those parts 
 
            of his body, particularly his left elbow.  Only his left 
 
            upper extremity, namely the shoulder and elbow have been the 
 
            subject of any significant amount of medical treatment or 
 
            assignment of any permanent impairment ratings or activity 
 
            restrictions.  It is found that the disability resulting 
 
            from the November 16, 1988 injury is located in Gary's left 
 
            shoulder and elbow.  In view of the surgical procedures 
 
            which were performed it is clear that the injury is not 
 
            limited to the schedule member of his arm.  It is important 
 
            to note that the terms "arm" and "upper extremity" are not 
 
            synonymous.  The term upper extremity includes the arm but 
 
            also includes structures of the body which are not a part of 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            the arm, in particular the scapula and clavicle.  Gray's 
 
            Anatomy p. 134.  
 
            
 
                 It appears as though Gary will be able to continue 
 
            working as a driver for United Parcel Service indefinitely.  
 
            He hopes to remain employed there at least nine years until 
 
            he can retire at age 62.  It is unlikely that he could 
 
            resume work farming.  He is probably unable to perform truck 
 
            driving work which would require a substantial amount of 
 
            loading or unloading.  Fortunately, that is not part of his 
 
            work with United Parcel Service.  
 
            
 
                                conclusions of law
 
            
 
                 An injury to a scheduled member may, because of after 
 
            effects or compensatory change, result in permanent 
 
            impairment of the body as a whole.  Such impairment may in 
 
            turn be the basis for a rating of industrial disability.  It 
 
            is the anatomical situs of the permanent injury or 
 
            impairment which determines whether the schedules in section 
 
            85.34(2)(a) - (t) are applied.  Lauhoff Grain v. McIntosh, 
 
            395 N.W.2d 834 (Iowa 1986); Blacksmith v. All-American, 
 
            Inc., 290 N.W.2d 348 (Iowa 1980); Dailey v. Pooley Lumber 
 
            Co., 233 Iowa 758, 10 N.W.2d 569 (1943).  Soukup v. Shores 
 
            Co., 222 Iowa 272, 268 N.W. 598 (1936).
 
            
 
                 When disability is found in the shoulder, a body as a 
 
            whole situation may exist.  Alm v. Morris Barick Cattle Co., 
 
            240 Iowa 1174, 38 N.W.2d 161 (1949).  In Nazarenus v. Oscar 
 
            Mayer & Co., II Iowa Industrial Commissioner Report 281 
 
            (App. 1982), a torn rotator cuff was found to cause 
 
            disability to the body as a whole.
 
            
 
                 An issue in this case is whether the permanent 
 
            disability is to be compensated as a scheduled injury to the 
 
            arm or as an injury to the body as a whole.  This is not a 
 
            novel question.  It was decided by the Iowa Supreme Court in 
 
            the case of Lauhoff Grain v. McIntosh, 395 N.W.2d 834 (Iowa 
 
            1986).  In that decision the supreme court stated "We 
 
            conclude that Iowa Code section 85.34(2)(o) in defining a 
 
            leg, does not include a hip joint."  That statement from the 
 
            supreme court is a conclusion of law which creates a binding 
 
            legal precedent that applies to every pertinent case.  It is 
 
            not a mere affirmance of a finding of fact made in reliance 
 
            upon the substantial evidence rule.  Logic requires that the 
 
            same result would follow if the code section were changed to 
 
            85.34(2)(m), the word "leg" were changed to "arm" and the 
 
            word "hip" were changed to "shoulder."
 
            
 
                 A great deal of the confusion dealing with shoulder and 
 
            hip injuries arises from use of the terminology "upper 
 
            extremity" and "lower extremity."  Some individuals tend to 
 
            use those terms interchangeable with the terms "arm" and 
 
            "leg".  As recognized by the Supreme Court at pages 839 and 
 
            940 of the Lauhoff decision those terms are not synonymous 
 
            and using them interchangeably creates confusion, errors and 
 
            incorrect results.  The word "arm" which is used in Code 
 
            section 85.34 is defined in The American Heritage 
 
            Dictionary, Second College Edition as "an upper limb of the 
 
            human body connecting the hand and wrist to the shoulder."  
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            Since that is the ordinary meaning of the word "arm" it is 
 
            that meaning which should be applied when the statute is 
 
            construed.  The medical community has a different 
 
            terminology, however.  In the medical community "arm" means 
 
            only "the segment of the superior limb between the shoulder 
 
            and the elbow."  Stedman's Medical Dictionary, 24th Edition.  
 
            The medical dictionary goes on to recognize that the term is 
 
            sometimes ... "Inaptly used by the general population to 
 
            mean the whole superior limb."  The term "upper extremity" 
 
            has a precise meaning.  In Gray's Anatomy, at page 134, 
 
            upper extremity is defined "The bones of the upper extremity 
 
            consist of those of the shoulder girdle, the arm, the 
 
            forearm, and the hand.  The term "shoulder girdle" is also 
 
            defined.  "The shoulder girdle consists of two bones, the 
 
            clavicle and the scapula."  On that same page the 
 
            extremities, their function and other basic anatomical facts 
 
            are described.  An understanding of those elementary 
 
            anatomical facts is essential in order to arrive at a proper 
 
            result when a scheduled verses body as a whole issue exists.  
 
            
 
                 As previously indicated the term "upper extremity" is 
 
            used commonly in the medical profession.  That term is used 
 
            in the Guides to Evaluation of Permanent Impairment 
 
            published by the American Medical Association.  The Guides 
 
            are commonly used in order to obtain predicable impairment 
 
            ratings for specified medical conditions.  The guides 
 
            provide impairment ratings of "extremities" the guides do 
 
            not provide impairment ratings for arms and legs.  It is for 
 
            this reason that in Lauhoff the supreme court stated "the 
 
            AMA Guide relied on is of doubtful authority in this case, 
 
            in any event, because it includes the hip as part of the 
 
            "lower extremity" a term which is not found in our statutory 
 
            schedule." (pp. 839 & 849)  Abnormal motion of the shoulder 
 
            is rated at page 34 of the Third Edition (revised) of the 
 
            Guides as impairment of the "upper extremity."  The term 
 
            "shoulder" is defined in Stedman's Medical Dictionary, 24th 
 
            Edition at page 1282 as "the lateral portion of the scapular 
 
            region, where the scapula joins with the clavicle and 
 
            humerus and is covered by the rounded mass of the deltoid 
 
            muscle."  It is therefore clear that the term "upper 
 
            extremity" includes the hand, the arm (in its common usage) 
 
            and the shoulder.  The term "impairment of the upper 
 
            extremity" may properly be used by the medical profession to 
 
            define an injury which for workers' compensation purposes is 
 
            limited to the hand, is limited to the arm or which exists 
 
            only in the shoulder.  In order to make a correct legal 
 
            evaluation it is necessary to look to the anatomical site of 
 
            the physical derangement which produces the loss of 
 
            function.  As clearly mandated by Lauhoff, where the 
 
            physical derangement which causes the loss of use or 
 
            impairment of an arm is found in the shoulder joint, or 
 
            elsewhere in the shoulder, rather than in the arm itself, 
 
            the disability is not a scheduled disability of the arm.  
 
            
 
                 In this case Gary Reish has impairment of the function 
 
            of his shoulder joint which restricts his ability to move 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            his arm.  He also has impairment of his elbow.  While the 
 
            elbow impairment is a scheduled injury to his arm the 
 
            involvement of the shoulder joint takes the injury into the 
 
            body as a whole.  The permanent disability in this case is 
 
            therefore to be evaluated under Iowa Code section 
 
            85.34(2)(u), not under section 85.34(2)(m).  
 
            
 
                  In Lauhoff, at page 840 the Iowa Supreme Court 
 
            expressly rejected the argument that impairment of the 
 
            shoulder which only manifests itself in loss of ability to 
 
            use the arm is a scheduled disability.  The supreme court 
 
            stated:
 
             "It argues, however, that since the function of a hip is to 
 
            provide articulation for the leg, impairment of the hip 
 
            translates only into impairment of the leg and is therefore 
 
            governed by the leg schedule.  
 
            We reject this argument; the impairment of body functions in 
 
            this case were in the hip, not the leg, and we will not 
 
            consider these functions to be coextensive merely because 
 
            the hip function impacts on that of the leg.  To do so would 
 
            extend the application of Iowa Code section 85.34(2)(o) 
 
            beyond its expressed terms by applying it to a body member 
 
            not expressly included."
 
            
 
                 Employer in this case has made it unnecessary for Gary 
 
            Reish to reenter the employment market.  It has retained him 
 
            in his same position earning substantially the same amount 
 
            as he would have been earning if the injury had not 
 
            occurred.  The evidence in this case does not show any major 
 
            accommodation being made.  It is quite likely that Gary 
 
            remains able to perform much of the work which he could have 
 
            performed prior to the time this injury occurred.  The fact 
 
            that his earnings have not been actually affected 
 
            significantly is strong evidence that his earning capacity 
 
            has not been reduced.  On the other hand, the fact of 
 
            physical impairment is evidence that earning capacity has 
 
            been reduced.  When all the pertinent factors of industrial 
 
            disability are considered it is determined that Gary Reish 
 
            sustained a 15 percent permanent partial disability as a 
 
            result of the November 16, 1988 injury.  Under the 
 
            provisions of section 85.34 (2)(u) Gary is entitled to 
 
            recover 75 weeks of permanent partial disability 
 
            compensation.  In the prehearing report it was stipulated 
 
            that Gary has been paid 79.571 weeks of compensation for 
 
            permanent partial disability. He is therefore not entitled 
 
            to any additional recovery.
 
            
 
                                      order
 
            
 
                 IT IS THEREFORE ORDERED:
 
            
 
                 That claimant take nothing from this proceeding.
 
            
 
                 It is further ordered that the costs of this action are 
 
            assessed against the claimant pursuant to rule 343 IAC 4.33.
 
            
 
                 Signed and filed this ____ day of January, 1993.
 
 
 
            
 
            
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          MICHAEL G. TRIER
 
                                          DEPUTY INDUSTRIAL COMMISSIONER    
 
            
 
            Copies to:
 
            
 
            Mr. Larry G. Wilson
 
            Mr. Donald G. Beattie
 
            Attorneys at Law
 
            204 8th Street S.E.
 
            Altoona, IA  50009
 
            
 
            Mr. Joseph S. Cortese, II
 
            Attorney at Law
 
            500 Liberty Building
 
            Des Moines, IA  50309-2421
 
            
 
            
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                      51804
 
                      Filed January 14, 1993
 
                      Michael G. Trier
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            GARY L. REISH, :
 
                      :
 
                 Claimant, :
 
                      :
 
            vs.       :
 
                      :      File No. 901623
 
            UNITED PARCEL SERVICE,   :
 
                      :  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.    :
 
            ___________________________________________________________
 
            
 
            51804
 
            Claimant with rotator cuff and cubital tunnel surgery 
 
            awarded 15 percent ppd, computed industrially.  He was a UPS 
 
            driver who was able to resume his normal employment without 
 
            any demonstrated loss of earnings following the accident.  
 
            The case involved four surgeries over an extended period of 
 
            approximately three years before a complete recovery was 
 
            made.  Defendants had voluntarily paid 79.571 weeks and 
 
            overpayment was made.  Costs were assessed against the 
 
            claimant.  
 
            
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
            _____
 
                                          :
 
            JOHN HOWERTON,                :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 901700
 
            SULNEL COMPANY,               :
 
                                          :        A P P E A L
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            AETNA CASUALTY AND SURETY,    :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            _____
 
            STATEMENT OF THE CASE
 
            Defendants appeal and claimant cross-appeals from an 
 
            arbitration decision awarding benefits.
 
            The record on appeal consists of the transcript of the 
 
            arbitration hearing; joint exhibits A through I; claimant's 
 
            exhibits 1 through 5; and defendants' exhibits A, B, D and 
 
            E.  Both parties filed briefs on appeal.
 
            issues
 
            Defendants state the issues on appeal are:
 
            
 
                   I.  Whether claimant met his burden of proving 
 
                 that he suffered a compensable injury on October 
 
                 27, 1988.
 
            
 
                  II.  Whether the arbitration decision awarded the 
 
                 claimant an erroneously high industrial 
 
                 disability.
 
            
 
                 III.  Whether arbitration decision below should 
 
                 have included a finding of the claimant's 
 
                 credibility as it relates to his claim of a 
 
                 compensable injury.
 
            
 
                 Claimant states the issue on cross-appeal is:
 
            
 
                    The claimant's rate should have been calculated 
 
                 using the usual and customary hours worked by all 
 
                 ironworkers, rather than by his earnings 
 
                 subsequent to his injury.
 
            findings of fact
 
            The findings of fact contained in the arbitration decision 
 
            adequately and accurately reflect the pertinent evidence and 
 
            will not be set forth herein, except that claimant is found 
 
            to have sustained a loss of five percent of his earning 
 
            capacity as a result of his work injury.
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            conclusions of law
 
            The conclusions of law in the arbitration decision are 
 
            adopted herein, as modified by the following additional 
 
            analysis:
 
            Claimant was able to return to his job after his injury 
 
            although there was testimony that claimant later changed 
 
            jobs to a lighter duty position, the record does not clearly 
 
            establish that this was due to his injury rather than as a 
 
            result of being able to bid into a lighter duty job because 
 
            of seniority.  Although claimant asserts he is uneasy doing 
 
            the height work of an ironworker due to dizzy spells, his 
 
            physicians have not imposed any restrictions on him other 
 
            than a restriction to avoid any activity that causes pain.  
 
            Tests showed that claimant is able to lift weights up to 170 
 
            pounds.  Claimant has a rating of impairment, but has not 
 
            suffered a loss of wages and in fact is now earning more 
 
            than prior to his injury.  Based on these and all the other 
 
            factors of industrial disability, as set forth in the 
 
            proposed agency decision, claimant has an industrial 
 
            disability of five percent.
 
            WHEREFORE, the decision of the deputy is affirmed and 
 
            modified.
 
            order
 
            THEREFORE, it is ordered:
 
            That defendants pay to claimant twenty-one point five seven 
 
            one (21.571) weeks of healing period benefits at the rate of 
 
            two hundred eighty-nine and 66/100 dollars ($289.66) per 
 
            week in the total amount of six thousand two hundred 
 
            forty-eight and 26/100 dollars ($6,248.26) commencing on 
 
            December 8, 1988.
 
            That defendants pay to claimant twenty-five (25) weeks of 
 
            permanent partial disability benefits at the rate of two 
 
            hundred eighty-nine and 66/100 dollars ($289.66) per week in 
 
            the total amount of seven thousand two hundred forty-one and 
 
            50/100 dollars ($7,241.50).
 
            That all accrued benefits are to be paid in a lump sum.
 
            That interest will accrue pursuant to Iowa Code section 
 
            85.30.
 
            That the costs of the arbitration proceeding are charged to 
 
            defendants and the costs of appeal, including the cost of 
 
            the transcript, are charged equally to defendants and 
 
            claimant pursuant to rule 343 IAC 4.33.  Claimant is also 
 
            awarded the itemized costs of a medical report in the amount 
 
            of twenty-five dollars ($25) paid to Robert C. Jones, M.D., 
 
            which cost is supported by an itemized statement attached to 
 
            the prehearing report.
 
            
 
                 That defendants file claim activity reports as 
 
            requested by this agency pursuant to rule 343 IAC 3.1.
 
            Signed and filed this ____ day of December, 1991.
 
            
 
            
 
            
 
            
 
                      ________________________________
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
                               BYRON K. ORTON
 
                          INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Harry W. Dahl
 
            Attorney at Law
 
            974 73rd St., Ste 16
 
            Des Moines, Iowa 50323
 
            
 
            Mr. Glenn Goodwin
 
            Attorney at Law
 
            4th Floor, Equitable Bldg.
 
            Des Moines, Iowa 50309
 
            
 
            
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                          1803
 
                                          Filed December 24, 1991
 
                                          BYRON K. ORTON
 
                                          WRM
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            JOHN HOWERTON,                :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 901700
 
            SULNEL COMPANY,               :
 
                                          :        A P P E A L
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            AETNA CASUALTY AND SURETY,    :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            1803
 
            Claimant worked as an ironworker.  After his injury, 
 
            claimant returned to his job.  Claimant is making more money 
 
            now than prior to his injury.  His rating of impairment was 
 
            20 percent. Tests showed claimant is able to lift up to 170 
 
            pounds.  Deputy's award of 20 percent industrial disability 
 
            was reduced to five percent.
 
            
 
 
         
 
 
 
 
 
 
 
 
 
 
 
         before the iowa industrial commissioner
 
         _________________________________________________________________
 
                                       :
 
         MAURICE CONN,                 :
 
                                       :
 
              Claimant,                :
 
                                       :
 
         vs.                           :
 
                                       :      File No. 902039
 
         YOUNKERS,                     :
 
                                       :        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 
 
         March 1, 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 December, 1991.
 
         
 
         
 
         
 
         
 
                   ________________________________
 
                            BYRON K. ORTON
 
                       INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Marvin E. Duckworth
 
         Attorney at Law
 
         2700 Grand Ave., Ste 111
 
         Des Moines, Iowa 50312
 
         
 
         Mr. Timothy C. Hogan
 
         Ms. Lorraine J. May
 
         Attorneys at Law
 
         4th Floor Equitable Bldg.
 
         Des Moines, Iowa 50309
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                          9998
 
                                          Filed December 20, 1991
 
                                          BYRON K. ORTON
 
                                          MDM
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            MAURICE CONN,                 :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 902039
 
            YOUNKERS,                     :
 
                                          :        A P P E A L
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            AETNA CASUALTY & SURETY,      :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            9998
 
            
 
                 Summary affirmance of deputy's decision filed March 1, 
 
            1991.