Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            LESTER MAXWELL RICHARDSON,    :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :       File No. 902330
 
            THE WEITZ CORPORATION,        :
 
                                          :     A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            EMPLOYERS MUTUAL COMPANIES,   :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This case came on for hearing on November 4, 1991, in 
 
            Des Moines, Iowa.  Claimant seeks compensation for permanent 
 
            partial disability benefits as a result of an alleged injury 
 
            that occurred on September 10, 1988.  The record in the 
 
            proceedings consists of the testimony of the claimant and 
 
            defendants' exhibits A through F.
 
            
 
                 Defendants filed a motion to dismiss or preclude 
 
            testimony in the introduction of the claimant's exhibits.  
 
            The undersigned ruled on the motion on November 4, 1991, at 
 
            the beginning of the hearing.  The undersigned ruled that 
 
            because of the untimeliness of the claimant filing the 
 
            witness lists and service of exhibits, claimant was unable 
 
            to have admitted into evidence his exhibits 1 through 11.  
 
            With the motion by defendants being sustained, the claimant 
 
            had no exhibits or evidence other than claimant's testimony.
 
            
 
                                      issues
 
            
 
                 The issues for resolution are:
 
            
 
                 1.  Whether claimant incurred an injury that arose out 
 
            of and in the course of his employment on September 10, 
 
            1988;
 
            
 
                 2.  Whether there is any causal connection to 
 
            claimant's alleged temporary or permanent disability and his 
 
            alleged September 10, 1988 injury;
 
            
 
                 3.  The nature and extent of claimant's disability and 
 
            entitlement to disability benefits.  Claimant contends he 
 
            has a body as a whole injury and defendants contend that at 
 
            most it is a scheduled injury to claimant's left foot.
 
            
 
                 4.  Whether claimant is entitled to 85.27 medical 
 
            benefits, the issue being causal connection and 
 

 
            
 
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            authorization, particularly as to a $795.47 bill; and,
 
            
 
                 5.  The responsibility of costs.  Particularly, should 
 
            a medical report not admitted into evidence be a part of the 
 
            statutory costs.
 
            
 
                                 findings of fact
 
            
 
                 The undersigned deputy, having heard testimony and 
 
            considered all the evidence, finds that:
 
            
 
                 Claimant is a 54-year-old who has been in the concrete 
 
            finishing industry as an employee for approximately 35 
 
            years.  He began working on a job for defendant employer in 
 
            August of 1988.  Claimant explained the nature of his work.  
 
            Claimant said that while performing his job on September 12, 
 
            1988, he twisted his left foot on a rebar in the poured 
 
            concrete and was wrenched back and caught himself before he 
 
            fell.  Claimant said he was unable to perform his job for 
 
            two or three weeks and the pain was unbearable.  The 
 
            testimony is confusing as to how much he did or didn't work 
 
            and the time he was off.  Claimant contends he was unable to 
 
            work the rest of 1988.
 
            
 
                 Claimant was confusing in his testimony.  His petition 
 
            has September 10, 1988 as the date of injury and he 
 
            testified as to a September 12, 1988 injury date and an 
 
            October 12, 1988 injury date.  Defendants' exhibit B shows 
 
            October 12, 1988.  The first report of injury (Def. Ex. A) 
 
            shows September 12, 1988, and that defendants first knew of 
 
            claimant's condition on October 26, 1988.  Claimant contends 
 
            he had one injury.  It appears to the undersigned that the 
 
            day in question is actually September 12, 1988.
 
            
 
                 Claimant acknowledged he tried to work after his injury 
 
            and that John H. Kelley, M.D., released him to work on 
 
            December 19, 1988.  Claimant said that he went to the union 
 
            hall to get work as defendant employer laid him off.
 
            
 
                 Claimant admitted that after he saw Dr. Kelley and was 
 
            released in December 1988, he did not go for his next 
 
            medical treatment until October 3, 1989, ten months later.
 
            
 
                 On cross-examination, claimant admitted to working at 
 
            several jobs in 1989 and at a job in October 1990.  On 
 
            direct examination, claimant gave the impression he did 
 
            little or no work in 1989 and 1990.
 
            
 
                 Claimant agreed that his 1989 wage income was $7,860 
 
            plus $3,800 in unemployment.  His 1988 income was $6,900 
 
            (Def. Ex. D).  Claimant testified he hasn't worked in 1991.
 
            
 
                 Defendants' exhibit E1 reflects on June 21, 1990, a 
 
            letter of R.J. Weatherwax, M.D., which was sent to 
 
            claimant's attorney. He noted that claimant had abnormal 
 
            posturing of the toes at that time and the deforming of the 
 
            high arch and clawing of the toes were present prior to the 
 
            injury, a problem which he evaluated was unrelated to the 
 
            injury.  He also referred to the treatment by Dr. Kelley who 
 
            found no fractures of any bones.  Dr. Weatherwax went on to 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            emphasize that any deformities or disabilities claimant was 
 
            having are not related to any injury claimant sustained in 
 
            September 1988, as they existed prior to that as clearly 
 
            outlined in an x-ray report of September 12, 1988.  
 
            Defendants' exhibit E3, which is a report of Dr. Kelly, 
 
            refers to the December 19, 1988 date as to claimant being 
 
            advised that he could return to work after the first of the 
 
            year and that he will not have a permanent disability as a 
 
            result of his work-related injury.  The undersigned believes 
 
            the doctor means impairment and not disability.
 
            
 
                 Claimant's September 12, 1988 left foot x-rays show no 
 
            evidence of fracture or destruction.  There is reference to 
 
            deformity in claimant's foot joints, etc. (Def. Ex. E4)
 
            
 
                 On October 11, 1989, there is the first reference to 
 
            claimant having back problems and Patrick D. Reibold, M.D., 
 
            indicates claimant was having multiple problems with 
 
            spondylosis at L3-4, 4-5 and 5-1.  There is a bit of disk 
 
            herniation at 5-1 (Def. Ex. E6).  The undersigned notes that 
 
            there is no medical evidence in the record that indicates 
 
            claimant has any permanency, particularly relating to any 
 
            work injury.  There is no evidence that any alleged work 
 
            injury substantially and materially aggravated any 
 
            preexisting condition that resulted in any permanency.  
 
            Claimant has the burden to show not only that an injury 
 
            arose out of and in the course of his employment, but that 
 
            there is causal connection to any temporary or permanent 
 
            disability to the alleged work injury.  The undersigned 
 
            finds that an event occurred on September 12, 1988, while 
 
            claimant was at work.  Claimant testified he was off two or 
 
            three weeks and also his testimony was confusing and seemed 
 
            to indicate he was off considerably more time.  Defendants' 
 
            exhibits reflect that claimant was released to go back to 
 
            work on December 19, 1988. Another report indicated he could 
 
            return the first of the year 1989.
 
            
 
                 Claimant's testimony is very confusing as to how much 
 
            time he was off between September 12, 1988 and December 19, 
 
            1988.  It is obvious to the undersigned that he was off in 
 
            excess of three weeks.  The parties have stipulated that 
 
            claimant has been paid 7.714 weeks of temporary total 
 
            disability benefits amounting to $2,585.60.  Although 
 
            payment of these benefits is not an admission of liability, 
 
            the undersigned believes that within the approximate 
 
            thirteen weeks between September 12, 1988 and December 19, 
 
            1988, that there would appear to be about 7.714 weeks that 
 
            claimant was off work and the undersigned so finds.  The 
 
            undersigned finds that this 7.714 weeks was caused by 
 
            claimant's work injury on September 12, 1988.
 
            
 
                 As to the 85.27 medical benefits, there is no evidence 
 
            of any medical bill that was paid by the claimant or that he 
 
            owes such a sum to a doctor and claimant has failed to carry 
 
            his burden as to the 85.27 medical benefits issue.
 
            
 
                 As to the costs, the statutory costs will be assessed 
 
            in the order.  As to any doctor's report that would 
 
            otherwise be considered as part of the statutory costs, the 
 
            costs of said report shall not be considered as part of the 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            costs as said report was not admitted into evidence pursuant 
 
            to the ruling of defendants' motion to exclude certain 
 
            evidence.
 
            
 
                                conclusions of law
 
            
 
                 Claimant has the burden of proving by a preponderance 
 
            of the evidence that he received an injury on September 12, 
 
            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). 
 
            
 
                 An employee is entitled to compensation for any and all 
 
            personal injuries which arise out of and in the course of 
 
            the employment.  Section 85.3(1).
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury of September 
 
            12, 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). 
 
            
 
                 While a claimant is not entitled to compensation for 
 
            the results of a preexisting injury or disease, the mere 
 
            existence at the time of a subsequent injury is not a 
 
            defense.  Rose v. John Deere Ottumwa Works, 247 Iowa 900, 
 
            908, 76 N.W.2d 756, 760-61 (1956).  If the claimant had a 
 
            preexisting condition or disability that is aggravated, 
 
            accelerated, worsened or lighted up so that it results in 
 
            disability, claimant is entitled to recover.  Nicks v. 
 
            Davenport Produce Co., 254 Iowa 130, 115 N.W.2d 812, 815 
 
            (1962).
 
            
 
                 The 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 September 12, 1988, and that 
 
            this injury caused claimant to incur temporary total 
 
            disability of 7.714 weeks, payable at the rate of $327.52 
 
            per week.
 
            
 
                 Claimant has failed to prove that he is entitled to any 
 
            permanent partial disability benefits, either to the body as 
 
            a whole or to a scheduled left foot injury.
 
            
 
                 Claimant has failed to prove that his September 12, 
 
            1988 work injury substantially and materially aggravated any 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            preexisting condition.
 
            
 
                 Claimant is not entitled to any 85.27 medical benefits.
 
            
 
                 The cost of any medical report that was not admitted 
 
            into evidence shall not be part of any court costs assessed 
 
            herein.
 
            
 
                                      order
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 That defendants shall pay unto claimant seven point 
 
            seven one four (7.714) weeks of temporary total disability 
 
            benefits at the rate of three hundred twenty-seven and 
 
            52/100 dollars ($327.52).
 
            
 
                 That defendants shall receive credit against the award 
 
            for weekly benefits previously paid.  Defendants have paid 
 
            the seven point seven one four (7.714) weeks referred to 
 
            above, as stipulated by the parties.
 
            
 
                 That defendants shall pay the costs of this action, 
 
            pursuant to rule 343 IAC 4.33.
 
            
 
                 That defendants shall file an activity report upon 
 
            payment of this award as required by this agency, pursuant 
 
            to rule 343 IAC 3.1.
 
            
 
                 Signed and filed this ____ day of November, 1991.
 
            
 
            
 
            
 
                                          ______________________________
 
                                          BERNARD J. O'MALLEY
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            
 
            Copies to:
 
            
 
            Mr I John Rossi
 
            Attorney at Law
 
            Skywalk  Ste 203
 
            Seventh & Walnut
 
            Des Moines IA 50309
 
            
 
            Ms Valerie A Fandel
 
            Attorney at Law
 
            Terrace Ctr  Ste 111
 
            2700 Grand Ave
 
            Des Moines IA 50312
 
            
 
            
 
                 
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                      5-1100; 5-1108; 5-1402.40
 
                      5-1801; 5-2503; 2907
 
                      Filed November 19, 1991
 
                      Bernard J. O'Malley
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            LESTER MAXWELL RICHARDSON,    :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :       File No. 902330
 
            THE WEITZ CORPORATION,        :
 
                                          :     A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            EMPLOYERS MUTUAL COMPANIES,   :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            5-1100; 5-1108; 5-1402.40; 5-1801
 
            Claimant awarded 7.714 weeks of temporary total disability 
 
            benefits after proving injury arose out of and in the course 
 
            of claimant's employment and causal connection.  Claimant 
 
            did not prove any permanency.  Defendants had already paid 
 
            the 7.714 weeks.
 
            Due to untimely witness and exhibit lists, claimant's only 
 
            evidence was his own testimony.
 
            
 
            5-2503
 
            Claimant lost on 85.27 issue.  No alleged bill in evidence.
 
            
 
            2907
 
            Held:  Statutory costs do not include the cost of a medical 
 
            report which was excluded from evidence.
 
            
 
            
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         DARRELL D. DEAN,                              File No. 902397
 
         
 
              Claimant,                             A R B I T R A T I O N
 
         
 
         vs.                                           D E C I S I O N
 
         
 
         IBP, INC.,                                       F I L E D
 
         
 
              Employer,                                  FEB 13 1990
 
              Self-Insured,
 
              Defendant.                             INDUSTRIAL SERVICES
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              This is a proceeding in arbitration brought by claimant 
 
         Darrell D. Dean against self-insured defendant employer IBP, 
 
         Inc., to recover benefits under the Iowa Workers' Compensation 
 
         Act as the result of an injury allegedly sustained in September, 
 
         1988. This matter came on for hearing before the undersigned in 
 
         Burlington, Iowa, on February 6, 1990, and was considered fully 
 
         submitted at the close of evidence.
 
         
 
              The record in this proceeding consists of the testimony of 
 
         claimant, Paula Tate, Randy Fehlberg and defendant's exhibits A 
 
         through D.  Defendant's exhibit E was offered and an objection 
 
         based on relevance was interposed.  The question was taken under 
 
         advisement.  It is now ruled that the objection is overruled and 
 
         defendant's exhibit E is admitted into evidence.
 
         
 
              Claimant offered exhibits A through Q.  However, an 
 
         objection based on claimant's failure to timely serve a notice of 
 
         exhibits pursuant to the prehearing order was sustained and those 
 
         exhibits excluded from the record.
 
         
 
                                      ISSUES
 
         
 
              Pursuant to the prehearing report submitted by the parties 
 
         and approved at hearing, the following issues have been 
 
         stipulated:  that an employment relationship existed between 
 
         claimant and employer at the time of the alleged injury; that at 
 
         the time of injury, claimant' gross average weekly earnings were 
 
         $264.00, he was married and entitled to six exemptions; 
 
         affirmative defenses are waived.
 
         
 
              Issues presented for resolution include:  whether claimant 
 
         sustained an injury in September, 1988 arising out of and in the 
 
         course of his employment; whether the alleged injury caused 
 
         temporary or permanent disability and the extent thereof; the 
 
         type of permanent disability and commencement date if awarded; 
 
         the extent of claimant's entitlement to medical benefits; 
 
         taxation of costs.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
                              REVIEW OF THE EVIDENCE
 
         
 
              Claimant testified that he was employed by defendant from 
 
         January 20, 1988 through November 23, 1988, at which time he was 
 
         discharged.  He stated that his jobs included turning hogs on a 
 
         gam table for approximately one month, stacking boxes near a 
 
         conveyor belt, operating a dehairer machine (which included 
 
         picking up shovelfuls of wet hair from the floor) and operating a 
 
         side shaver.  Claimant was performing this last job at the time 
 
         of his discharge.
 
         
 
              Claimant testified that his first job was turning hogs on 
 
         the gam table for approximately one month.  He noted that the 
 
         hogs, weighing approximately 200-250 pounds, would sometimes pile 
 
         up and begin to fall off the table.  Claimant indicated that he 
 
         was forced to wrestle hogs back onto the table if they began to 
 
         fall and that two or  more employees would have to lift hogs back 
 
         to the table if they actually fell to the floor.
 
         
 
              Claimant testified that he developed groin problems while 
 
         working at the gam table in approximately January, 1988.  He 
 
         further testified that an unnamed physician advised him that he 
 
         had suffered strain in approximately April, 1988.  Claimant 
 
         indicated that he continued working, but eventually voluntarily 
 
         discontinued working overtime in summer, 1988.  His strain 
 
         improved while he was working a shaving job.  However, when he 
 
         took a job that involved cleaning and shoveling hair and water, 
 
         he "felt a lot of strain" such as had been the case when he was 
 
         working the gam table.
 
         
 
              Claimant testified that he was discharged after he missed a 
 
         day's work because he had failed to call in to report that 
 
         absence in a timely fashion.  Afterwards he stated that he 
 
         advised Paula Tate of his hernia problem and was referred to P. 
 
         Tung, M.D., for physical examination which eventually led to 
 
         hernia surgery.  When claimant was released to return to work 
 
         following his surgery, he had no job, having previously been 
 
         discharged.
 
         
 
              Claimant testified that he had suffered no prior groin pain 
 
         or stress in his previous employment history.
 
         
 
             Claimant did not testify to any incident in or about 
 
         September, 1988 as per the allegations of his petition.
 
         
 
              On cross-examination, claimant reiterated that he first 
 
         noticed a bulge in his groin in approximately January, 1988.  He 
 
         again stated that he did not visit a physician until 
 
         approximately April, 1988, and was told at that time that he had 
 
         developed a hernia.  Claimant admitted that he failed to disclose 
 
         this physician's identity or opinion in his answers to 
 
         interrogatories.
 
         
 
              Claimant also admitted that he  first notified defendant of 
 
         his claimed work injury after he had been discharged.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Paula Tate testified to being workers' compensation 
 
         coordinator at the time of claimant's discharge.  She testified 
 
         that there were no reports of claimant's injury until after he 
 
         had been discharged.  At that time, claimant was referred  to a 
 
         physician for an examination.  She further testified that 
 
         claimant had been discharged on November 12, 1988 and first 
 
         notified defendant of his work injury on November 16, 1988.  
 
         Claimant did not state how his hernia had occurred.
 
         
 
              Ms. Tate also testified that although it is normally 
 
         standard operating procedure for a physician to seek company 
 
         authorization before performing surgery, this was not done in the 
 
         present case and defendant did not authorize claimant's hernia 
 
         surgery.
 
         
 
              Randy Fehlberg testified to being a general supervisor with 
 
         authority over the gam table where claimant allegedly was 
 
         injured. He testified that claimant did not notify him of his 
 
         groin injury during the course of employment, and to his 
 
         knowledge notified nobody else.  He stated that claimant was 
 
         removed from overtime eligibility after June, 1988, but that this 
 
         was due to inadequacies in his job performance and not on a 
 
         voluntary basis by claimant.
 
         
 
              Fehlberg also testified that a hoist is available to pick up 
 
         hogs from the floor and that employees do not normally pick up 
 
         hogs from the floor, although it may be common to catch or 
 
         wrestle carcasses that are starting to fall from the gam table.
 
         
 
              General surgeon P. Tung, M.D., wrote on February 6, 1989 
 
         that claimant had been seen on December 18 of that year [sic].  
 
         Claimant demonstrated a bulging mass from the right lower end of 
 
         the  inguinal area, by history for about one and one-half months' 
 
         duration.  Dr. Tung wrote that surgical repair was performed on 
 
         December 22, 1988.  Claimant needed six weeks for recuperation.  
 
         On January 3, 1989, claimant was doing well and was discharged 
 
         back to his normal life without any limitations.
 
         
 
              A medical file card admitted into evidence reflects that 
 
         claimant called to ask about post-termination insurance on 
 
         November 16, 1988 based on a hernia claimed to have developed 
 
         while working.
 
         
 
              Further records reflect that claimant was discharged on 
 
         November 12, 1988 for absenteeism.
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              Claimant has the burden of proving by a preponderance of the 
 
         evidence that he received an injury which arose out of and in the 
 
         course of his employment.  McDowell v. Town of Clarksville, 241 
 
         N.W.2d 904 (Iowa 1976); Musselman v. Central Telephone Co., 261 
 
         Iowa 352, 154 N.W.2d 128 (1967).
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              The injury must both arise out of and be in the course of 
 
         the employment.  Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 
 
         402, 68 N.W.2d 63 (1955) and cases cited at pp. 405-406 of the 
 
         Iowa Report.  See also Sister Mary Benedict v. St. Mary's Corp., 
 
         255 Iowa 847, 124 N.W.2d 548 (1963) and Hansen v. State of Iowa, 
 
         249 Iowa 1147, 91 N.W.2d 555 (1958).
 
         
 
              The words "out of" refer to the cause or source of the 
 
         injury.  Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 402, 68 
 
         N.W.2d 63 (1955).
 
         
 
              The words "in the course of" refer to the time and place and 
 
         circumstances of the injury.  McClure v. Union et al. Counties, 
 
         188 N.W.2d 283 (Iowa 1971); Crowe v. DeSoto Consol. Sch. 
 
         Dist., 246 Iowa 402, 68 N.W.2d 63 (1955).
 
         
 
              "An injury occurs in the course of the employment when it is 
 
         within the period of employment at a place the employee may 
 
         reasonably be, and while he is doing his work or something 
 
         incidental to it."  Cedar Rapids Comm. Sch. Dist. v. Cady, 278 
 
         N.W.2d 298 (Iowa 1979), McClure v. Union et al. Counties, 188 
 
         N.W.2d 283 (Iowa 1971); Musselman v. Central Telephone Co., 
 
         261,Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
              The supreme court of Iowa in Almquist v. Shenandoah 
 
         Nurseries, 218 Iowa 724, 731-32, 254 N.W. 35, 38 (1934) discussed 
 
         the definition of personal injury in workers' compensation cases 
 
         as follows:
 
         
 
              While a personal injury does not include an occupational 
 
              disease under the Workmen's Compensation Act, yet an injury 
 
              to the health may be a personal injury.  [Citations 
 
              omitted.] Likewise a personal injury includes a disease 
 
              resulting from an injury....The result of changes in the 
 
              human body incident to the general processes of nature do 
 
              not amount to a personal injury.  This must follow, even 
 
              though such natural change may come about because the life 
 
              has been devoted to labor and hard work.  Such result of 
 
              those natural changes does not constitute a personal injury 
 
              even though the same brings about impairment of health or 
 
              the total or partial incapacity of the functions of the 
 
              human body.
 
         
 
                   ....
 
         
 
              A personal injury, contemplated by the Workmen's 
 
              Compensation Law, obviously means an injury to the body, the 
 
              impairment of health, or a disease, not excluded by the act, 
 
              which comes about, not through the natural building up and 
 
              tearing down of the human body, but because of a traumatic 
 
              or other hurt or damage to the health or body of an 
 
              employee.  [Citations omitted.]  The injury to the human 
 
              body here contemplated must be something, whether an 
 
              accident or not, that acts extraneously to the natural 
 
              processes of nature, and thereby impairs the health, 
 
              overcomes, injures, interrupts, or destroys some function of 
 
              the body, or otherwise damages or injures a part or all of 
 
              the body.
 

 
              
 
 
 
 
 
 
 
 
 
 
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury is causally related to the 
 
         disability on which he now bases his claim.  Bodish v. Fischer, 
 
         Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).  Lindahl v. L. O. 
 
         Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945).  A possibility is 
 
         insufficient; a probability is necessary.  Burt v. John Deere 
 
         Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955).  The 
 
         question of causal connection is essentially within the domain of 
 
         expert testimony. Bradshaw v. Iowa Methodist Hospital, 251 Iowa 
 
         375, 101 N.W.2d 167 (1960).
 
         
 
              However, expert medical evidence must be considered with all 
 
         other evidence introduced bearing on the causal connection.  
 
         Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion of experts need 
 
         not be couched in definite, positive or unequivocal language.  
 
         Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974).  However, 
 
         the expert opinion may be accepted or rejected, in whole or in 
 
         part, by the trier of fact.  Id. at 907.  Further, the weight to 
 
         be given to such an opinion is for the finder of fact, and that 
 
         may be affected by the completeness of the premise given the 
 
         expert and other surrounding circumstances.  Bodish, 257 Iowa 
 
         516, 133 N.W.2d 867.  See also Musselman v. Central Telephone 
 
         Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
              The record in this case is utterly devoid of any work 
 
         incident in September, 1988, although Dr. Tung wrote that 
 
         claimant's history was of a bulging mass for about one and 
 
         one-half months prior to December 18, 1988.  Claimant's testimony 
 
         was that he developed groin problems as early as January, 1988, 
 
         when he was working on the gam table.  He alleged that an unnamed 
 
         physician advised him in April of that year that he had sustained 
 
         a hernia.
 
         
 
              If claimant did develop a hernia in January, 1988, it 
 
         remains unclear why he waited until after his discharge in 
 
         November of that year to report it.
 
         
 
              Based on claimant's demeanor, his contradiction of reported 
 
         fact (why he stopped working overtime in summer, 1988) with 
 
         respect to the testimony of Randy Fehlberg, and the inherent 
 
         unlikeliness of the sequence of events to which he testified, it 
 
         is found that claimant was not a credible witness.  While he may 
 
         believe that a causal connection exists between his hernia and 
 
         his employment, the evidence does not contain one shred of expert 
 
         testimony to that effect.  The nature of an inguinal hernia is 
 
         such that it might or might not be caused, aggravated or lighted 
 
         up by an exertion at work.  Absent any credible or expert 
 
         evidence as to the causation issue, it must be found that 
 
         claimant has failed to meet his burden of proof in establishing 
 
         an injury arising out of and in the course of his employment.
 
         
 
              It is further the case that all of the credible evidence is 
 
         that claimant's treatment by Dr. Tung was not authorized by 
 
         defendant.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Based on the foregoing, other issues are moot.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              THEREFORE, based on the evidence presented, the following 
 
         ultimate facts are found:
 
         
 
              1.  Claimant was employed by defendant from January 28, 1988 
 
         through November 12, 1988.
 
         
 
              2.  On November 16, 1988, claimant for the first time 
 
         alleged that he had sustained a hernia injury during the course 
 
         of his employment.
 
         
 
             3.  There is no expert testimony causally connecting 
 
         claimant's hernia condition to his employment.
 
         
 
              4.  Although claimant has opined that his hernia was caused 
 
         by his work in January, 1988, he was not qualified as an expert 
 
         and his testimony generally lacked credibility.
 
         
 
              5  There is no evidence in this record of any work injury in 
 
         September, 1988.
 
         
 
                                CONCLUSION OF LAW
 
         
 
              WHEREFORE, based on the principles of law previously cited, 
 
         the following conclusion of law is made:
 
         
 
              1.  Claimant has failed to meet his burden of proof in 
 
         establishing an injury arising out of and in the course of his 
 
         employment or any causal relationship between his hernia 
 
         condition and that employment.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              Claimant shall take nothing from this proceeding.
 
         
 
              Costs of this action shall be assessed against claimant 
 
         pursuant to Division of Industrial Services Rule 343-4.33.
 
         
 
              Signed and filed this 13th day of February, 1990.
 
         
 
         
 
         
 
         
 
         
 
         
 
                                            DAVID RASEY
 
                                            DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         Mr. Charles O. Frazier
 
         Attorney at Law
 
         206 North Seventh Street
 
         Keokuk, Iowa  52632
 
         
 
         Mr. Marlon D. Mormann
 
         Attorney at Law
 
         P.O. Box 515, Dept. #41
 
         Dakota City, Nebraska  68731
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
                                            5-1402.30
 
                                            Filed February 13, 1990
 
                                            DAVID RASEY
 
         
 
         
 
         DARRELL D. DEAN,
 
         
 
              Claimant,                                File No. 902397
 
         
 
         vs.                                        A R B I T R A T I O N
 
         
 
         IBP, INC.,                                    D E C I S I O N
 
         
 
              Employer,
 
              Self-Insured,
 
              Defendant.
 
         
 
         
 
         5-1402.30
 
         
 
              Where claimant lacked credibility and presented no expert 
 
         evidence on causation, he failed to establish that hernia 
 
         condition arose out of and in the course of employment.
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            DARREN R. DEMOSS,             :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :         File No. 902475
 
                                          :
 
            EAGLE MANUFACTURING,          :      A R B I T R A T I O N
 
                                          :
 
                 Employer,                :         D E C I S I O N
 
                                          :
 
            and                           :
 
                                          :
 
            GREAT AMERICAN INSURANCE      :
 
            COMPANIES,                    :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 Claimant Darren R. DeMoss seeks benefits under the Iowa 
 
            Workers' Compensation Act upon his petition in arbitration 
 
            against defendant employer Eagle Manufacturing and its 
 
            insurance carrier, Great American Insurance Companies.  Mr. 
 
            DeMoss sustained a work injury on December 8, 1988.
 
            
 
                 This cause came on for hearing in Dubuque, Iowa, on 
 
            March 11, 1992.  The record consists of joint exhibits 1 
 
            through 13 and the testimony of claimant, David Allendorf, 
 
            Kim Bemboom, John Lugrain and David Stineman.
 
            
 
                                      ISSUES
 
            
 
                 The parties have stipulated that claimant sustained an 
 
            injury arising out of and in the course of his employment on 
 
            December 8, 1988, that the injury caused temporary 
 
            disability, to a weekly compensation rate of $195.37 and 
 
            that defendants paid four weeks, three days of voluntary 
 
            benefits at the erroneous rate of $200.14 per week.
 
            
 
                 Issues presented for resolution include:
 
            
 
                 1.  Whether there exists a causal relationship between 
 
            the work injury and permanent disability;
 
            
 
                 2.  The extent of temporary and permanent disability; 
 
            and,
 
            
 
                 3.  Entitlement to medical benefits under Iowa Code 
 
            section 85.27.
 
            
 
                                 FINDINGS OF FACT
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
                 The undersigned deputy industrial commissioner finds:
 
            
 
                 Darren R. DeMoss, 28 years of age at hearing, is a high 
 
            school graduate.  He also has a one-year apprenticeship 
 
            certificate following study in diesel mechanics at a local 
 
            community college.
 
            
 
                 Mr. DeMoss began his employment history in high school 
 
            as a gas station attendant.  Later, he worked in maintenance 
 
            for the same company and still later drove and delivered 
 
            product locally and up to 100 miles distant.  This work 
 
            involved relatively heavy lifting and handling of petroleum 
 
            products.  Thereafter, claimant worked as a laborer and 
 
            delivery worker for a construction company.  Duties included 
 
            delivery of drywall materials to residential and commercial 
 
            properties and some hanging of drywall.  This work also 
 
            required relative heavy labor.  Claimant next worked as a 
 
            floor cleaner and night stocker for a supermarket business.  
 
            This job required a good deal of standing and walking.
 
            
 
                 Mr. DeMoss took work with Eagle Manufacturing in June 
 
            1988.  He worked on the shipping dock, loading and unloading 
 
            trucks, up to and after the work injury of December 8.  It 
 
            is undisputed that the work was heavy.  Mr. DeMoss was 
 
            considered a valuable employee and is still working for 
 
            Eagle Manufacturing today.
 
            
 
                 On December 8, 1988, claimant was injured while pushing 
 
            a heavy load of windows on a cart.  The windows started to 
 
            fall over while a turn was made and Mr. DeMoss suffered a 
 
            crushing injury when he unsuccessfully tried to hold them 
 
            up.  He was struck on the top of the head and left dazed and 
 
            groggy.
 
            
 
                 Claimant was taken for treatment to Finley Hospital in 
 
            Dubuque.  Contemporaneous notes reflect complaints of pain 
 
            in the neck and left shoulder.  X-rays were negative, but 
 
            discovered a previously unknown and asymptomatic congenital 
 
            fusion of the vertebrae at C5-6.  Diagnosis was of contusion 
 
            of the neck with mild to moderate muscle spasm.  No 
 
            complaints relative the lumbar spine were recorded, and no 
 
            examination or treatment to this area appears.
 
            
 
                 Claimant testified that he was unable to get out of bed 
 
            the next morning and felt "paralyzed."  He thereupon 
 
            presented to Robert Scott Cairns, M.D., on December 12 with 
 
            complaints of pain in the neck and thoracic spine.  This is 
 
            consistent with claimant's trial testimony that, although he 
 
            "ached everywhere," he complained of pain in the upper back, 
 
            shoulder and neck with radiating pain to the upper 
 
            extremities and head.  Dr. Cairns, an orthopaedic surgeon 
 
            who testified by deposition on March 4, 1992, initially 
 
            diagnosed a soft tissue injury of the cervical and dorsal 
 
            spine and denied any initial impression of lumbar injury.  
 
            He took claimant off work and recommended physical therapy.
 
            
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
                 As the parties have stipulated, insurance coverage was 
 
            no longer provided by Great American Insurance Companies 
 
            after December 31, 1988.
 
            
 
                 On January 9, 1989, Dr. Cairns released claimant to 
 
            return to work.  On the following day, claimant returned 
 
            with additional neck complaints, but again with no lumbar 
 
            complaints.
 
            
 
                 On January 27, 1989, claimant for the first time 
 
            complained of lumbar spine symptoms.  Dr. Cairns testified:
 
            
 
                 Q.  To your understanding, Doctor, the lumbar 
 
                 spine complaints that were made on that date, were 
 
                 they related to his employment duties just that 
 
                 week of that appointment?
 
            
 
                 A.  Well, he stated he went back to work the first 
 
                 of the week and after several days his work 
 
                 demands were increased and then he started to 
 
                 develop the back pain.
 
            
 
                 Q.  The complaints that Mr. DeMoss made on that 
 
                 date would be different than those that he made at 
 
                 least initially?
 
            
 
                 A.  Yes.
 
            
 
                 Q.  And you again took him off of work and 
 
                 recommended that he continue with the therapy and 
 
                 work hardening?
 
            
 
                 A.  Yes.
 
            
 
                 Q.  Going down then to December 14th Mr. DeMoss 
 
                 informed your office I believe that his employer 
 
                 wanted him to come back to work and that Mr. 
 
                 DeMoss felt great at that time so you went ahead 
 
                 and gave him a release?
 
            
 
                 A.  On February 14th.
 
            
 
                 Q.  Yes.  Your dictation note for March 7th then, 
 
                 Doctor, apparently at that time Mr. DeMoss 
 
                 informed you that he was doing fine except for a 
 
                 small area of the low back?
 
            
 
                 A.  Yes.
 
            
 
                 Q.  Any findings at that point in your exam 
 
                 regarding the cervical or upper dorsal region?
 
            
 
                 A.  No, that wasn't much of a problem at that 
 
                 point.
 
            
 
                 Q.  Then continuing to move along then, your note 
 
                 for April 14th indicates, I take it, a new injury 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
                 to the low back, if you know?
 
            
 
                 A.  Oh, yes.  Yes.
 
            
 
                 Q.  Mr. DeMoss described a specific incident 
 
                 caused by lifting at work?
 
            
 
                 A.  Yes.
 
            
 
            (Dr. Cairns deposition, page 6, line 7 through page 7, line 
 
            17)
 
            
 
                 Claimant testified that when he first returned to work 
 
            in January, he was given light-duty work as a data entry 
 
            operator.  He experienced neck and back stiffness with all 
 
            the sitting required by that job, but was able to perform 
 
            the work.  After his assigned project was completed, 
 
            claimant returned to the shipping dock.  Claimant testified 
 
            that his upper back and neck had completely recovered before 
 
            he returned to the dock.  At first, he felt all right, but 
 
            gradually developed the back symptoms that brought him to 
 
            Dr. Cairns on January 27.  Mr. DeMoss described a lifting 
 
            incident on February 14 which involved an audible "pop" in 
 
            the lower back near his belt line.  Claimant admitted that 
 
            his lower back had improved prior to this traumatic incident 
 
            which has been compensated as a work injury by another 
 
            insurance carrier.
 
            
 
                 Following the April incident, Dr. Cairns ordered a CT 
 
            scan, which showed a small central defect at L5-S1.  Dr. 
 
            Cairns' initial impression was that this finding had no real 
 
            significance.  After June 1989, claimant did not regularly 
 
            visit Dr. Cairns.  As of December 5, 1989, Dr. Cairns 
 
            believed claimant had no ratable permanent impairment for 
 
            the lumbar spine or the cervical spine.
 
            
 
                 Dr. Cairns saw claimant again for evaluation on 
 
            February 4, 1992.  This examination, which included 
 
            additional x-ray studies, resulted in findings of a mild 
 
            restriction in motion of the cervical spine which had not 
 
            been seen before.  However, a measuring instrument known as 
 
            an inclinometer was used at this examination for the first 
 
            time.  The doctor was unable to tell whether there had been 
 
            any change in range of motion between December 1989 and 
 
            February 1992, although he believes that some restriction in 
 
            range of motion is necessarily incident to the claimant's 
 
            congenital cervical anomaly.  Still, any congenital 
 
            restriction in range of motion must be very minor, since 
 
            claimant has undergone at least two medical examinations 
 
            that failed to discover any diminishment in range of motion 
 
            and Dr. Cairns testified the loss would probably not be seen 
 
            on physical examination.  Any congenital restriction in 
 
            claimant's range of motion would necessarily be present at 
 
            all times.  Dr. Cairns also discovered minimal degenerative 
 
            changes at C4-5 and, perhaps a little, C3-4.  The doctor 
 
            believed it was medically possible that these changes were 
 
            attributable to the subject work injury, but he agreed that 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            he could not assign causation to a "reasonable degree of 
 
            medical certainty."
 
            
 
                 Dr. Cairns assigned an impairment rating relative 
 
            limitation in cervical spine motion as constituting three 
 
            percent of the whole man, half of which he attributed to the 
 
            work injury, half to the congenital defect.  The doctor also 
 
            rated impairment to the lumbar spine, but attributes 
 
            causation either to incidents in February or April, 1989 (in 
 
            fact, being unable to tell whether the lumbar spine 
 
            impairment was work related at all).
 
            
 
                 Dr. Cairns recommended medical restriction against 
 
            repetitive overhead lifting and against lifting in excess of 
 
            50 pounds.  He was not asked whether either recommendation 
 
            was mandated by impairment to the cervical spine, lumbar 
 
            spine, or both.  In agency experience, restrictions against 
 
            overhead lifting are common in cases of cervical injury, so 
 
            it is found that this restriction is causally related to 
 
            cervical impairment.  The same cannot necessarily be said of 
 
            the 50-pound weight lifting restriction.
 
            
 
                 In early 1990, Mr. DeMoss decided to seek additional 
 
            treatment because of continuing neck and thoracic spine 
 
            complaints.  Second shift supervisor John Lugrain 
 
            recommended that claimant seek chiropractic treatment during 
 
            a casual conversation in the break room, even giving 
 
            claimant a business card from the office of Samuel J. 
 
            Sullivan, D.C.  However, Mr. Lugrain specified that claimant 
 
            should seek payment from the company health insurance 
 
            carrier rather than the workers' compensation carrier.  
 
            Defendants did not authorize the care claimant received from 
 
            Dr. Sullivan, beginning February 1, 1990.
 
            
 
                 Dr. Sullivan, who identifies himself as a specialist in 
 
            chiropractic orthopaedics, testified by deposition on 
 
            February 25, 1992.  Claimant's chief complaint at the first 
 
            visit was of mid-cervical and upper thoracic pain, soreness 
 
            and lack of motion.  Dr. Sullivan testified to finding 
 
            osteophytic changes at several cervical and thoracic levels 
 
            (including C3-4 and T6-7) which he did not consider 
 
            age-related, since claimant was only approximately 26 years 
 
            old when first seen.
 
            
 
                 Dr. Sullivan undertook a course of chiropractic 
 
            manipulation therapy, the cost of which remains in dispute.  
 
            Dr. Sullivan causally related thoracic and cervical 
 
            degeneration to the injury in December 1988, assessing a 12 
 
            percent "disability" to the cervical spine and 6 percent of 
 
            the thoracic spine.  Although Dr. Sullivan testified that he 
 
            had formulated his impairment rating through the "American 
 
            Medical Association Disability Text" (presumably the AMA 
 
            Guides to the Evaluation of Permanent Impairment), it 
 
            appears from his testimony that he considered factors not 
 
            normally taken into account by medical practitioners using 
 
            the Guides; that is, claimant's ability to work and look 
 
            overhead "and that type of thing."
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
                 Dr. Sullivan imposed restrictions against overhead work 
 
            and recommended the use of proper body mechanics when 
 
            lifting.
 
            
 
                 Asked whether claimant's lumbar spine condition was 
 
            attributable to an accident "such as" the subject accident, 
 
            Dr. Sullivan testified that it would be possible, but that 
 
            he did not remember anything happening to the lumbar spine 
 
            at the time of injury.  He did not rate impairment to the 
 
            lumbar spine.
 
            
 
                 The parties have stipulated that claimant earned 
 
            $4,034.29 during the 13 weeks prior to December 8, 1988.  
 
            The first report of injury, which was received into evidence 
 
            notwithstanding Iowa Code section 86.11, showed an hourly 
 
            wage of $7.28 with an average of 45 hours per week.  Mr. 
 
            DeMoss is still employed by Eagle Manufacturing in the 
 
            double hung windows section.  He is currently earning $8.23 
 
            per hour.  He voluntarily sought a change in shift for 
 
            personal reasons unrelated to his work injury.
 
            
 
                 Darren DeMoss now complains of chronic pain from the 
 
            neck to below his shoulder blades and in the shoulders, 
 
            worse in the morning.  Some days he suffers from sore arms.  
 
            He complains that his hands get numb when he works overtime.  
 
            He testified to certain activities which he no longer 
 
            enjoys, including several sports and auto mechanics.  He 
 
            testified to trouble sleeping.  Claimant suffers occasional 
 
            pain in the lower back with activity, but this diminishes 
 
            with rest.  Upper back and neck pain are more constantly 
 
            present.
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                 The parties stipulate that claimant sustained an injury 
 
            arising out of and in the course of employment on December 
 
            8, 1988, and that the injury caused temporary disability.  
 
            The extent thereof remains disputed.  Since this decision 
 
            finds that claimant has sustained industrial disability, his 
 
            temporary disability is compensable as a healing period 
 
            under Iowa Code section 85.34 rather than temporary total 
 
            disability compensable under Iowa Code sections 85.32 and 
 
            85.33.
 
            
 
                 Under Iowa Code section 85.34(1), healing period is 
 
            compensable beginning on the date of injury and continuing 
 
            until the employee has returned to work, it is medically 
 
            indicated that significant improvement from the injury is 
 
            not anticipated, or until the employee is medically capable 
 
            of returning to substantially similar employment, whichever 
 
            first occurs.
 
            
 
                 Claimant was released to return to work effective 
 
            January 9, 1989, and did so.  He is entitled to healing 
 
            period from December 9, 1988, through January 8, 1989, or 
 
            4.429 weeks.
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
                 The parties dispute whether the injury caused permanent 
 
            disability.
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury is a proximate 
 
            cause of the disability on which the claim is based.  A 
 
            cause is proximate if it is a substantial factor in bringing 
 
            about the result; it need not be the only cause.  A 
 
            preponderance of the evidence exists when the causal 
 
            connection is probable rather than merely possible.  
 
            Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa 
 
            1980); Holmes v. Bruce Motor Freight, Inc., 215 N.W.2d 296 
 
            (Iowa 1974).
 
            
 
                 The question of causal connection is essentially within 
 
            the domain of expert testimony.  The expert medical evidence 
 
            must be considered with all other evidence introduced 
 
            bearing on the causal connection between the injury and the 
 
            disability.  The weight to be given to any expert opinion is 
 
            determined by the finder of fact and may be affected by the 
 
            accuracy of the facts relied upon by the expert as well as 
 
            other surrounding circumstances.  The expert opinion may be 
 
            accepted or rejected, in whole or in part.  Sondag v. Ferris 
 
            Hardware, 220 N.W.2d 903 (Iowa 1974); Anderson v. Oscar 
 
            Mayer & Co., 217 N.W.2d 531 (Iowa 1974); Bodish v. Fischer, 
 
            Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).
 
            
 
                 Here, it is necessary to distinguish between cervical 
 
            and thoracic symptoms on the one hand and lumbar complaints 
 
            on the other.  With respect to the latter, be it noted that 
 
            Dr. Cairns causally relates lumbar symptoms to incidents in 
 
            February and April 1989.  Possible work injuries on those 
 
            dates are not presented in this litigation.  Great American 
 
            Insurance Companies did not provide workers' compensation 
 
            insurance in 1989, and the April incident has been treated 
 
            as compensable by another carrier.  Dr. Sullivan did not 
 
            express an opinion as to whether lumbar symptoms are work 
 
            related.  It must be concluded that claimant has failed to 
 
            meet his burden of proof in establishing a causal nexus 
 
            between any present lumbar complaints (and medical 
 
            restrictions relating thereto) and the injury of December 8, 
 
            1988.
 
            
 
                 However, it is held that claimant has met his burden of 
 
            proof in establishing the necessary causal nexus between the 
 
            work injury and his cervical and thoracic complaints.  Both 
 
            treating physicians have testified to the possibility that 
 
            such a nexus exists.  Claimant has testified that his 
 
            symptoms did not exist prior to that injury, and have 
 
            remained relatively chronic ever since.  This is sufficient 
 
            to establish causation.  Becker v. D & E Distrib. Co., 247 
 
            N.W.2d 727 (Iowa 1976); Bradshaw v. Iowa Methodist Hosp., 
 
            251 Iowa 375, 101 N.W.2d 167 (1960).
 
            
 
                 Since claimant has an impairment to the body as a 
 
            whole, an industrial disability has been sustained.  
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            Industrial disability was defined in Diederich v. Tri-City 
 
            Ry. Co., 219 Iowa 587, 258 N.W.2d 899 (1935) as follows: "It 
 
            is therefore plain that the legislature intended the term 
 
            'disability' to mean 'industrial disability' or loss of 
 
            earning capacity and not a mere 'functional disability' to 
 
            be computed in the terms of percentages of the total 
 
            physical and mental ability of a normal man."
 
            
 
                 Functional impairment is an element to be considered in 
 
            determining industrial disability which is the reduction of 
 
            earning capacity, but consideration must also be given to 
 
            the injured employee's age, education, qualifications, 
 
            experience, motivation, loss of earnings, severity and situs 
 
            of the injury, work restrictions, inability to engage in 
 
            employment for which the employee is fitted and the 
 
            employer's offer of work or failure to so offer.  Olson v. 
 
            Goodyear Serv. Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963); 
 
            McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980); 
 
            Barton v. Nevada Poultry Co., 253 Iowa 285, 110 N.W.2d 660 
 
            (1961).
 
            
 
                 Compensation for permanent partial disability shall 
 
            begin at the termination of the healing period.  
 
            Compensation shall be paid in relation to 500 weeks as the 
 
            disability bears to the body as a whole.  Section 85.34.
 
            
 
                 Claimant is still a young man who appears to be of an 
 
            intelligence suitable for further training.  He is a high 
 
            school graduate and graduated from an apprenticeship program 
 
            in diesel mechanics.  He has suffered no actual loss in 
 
            earnings, since Eagle Manufacturing has been able to offer 
 
            him continued employment.  Claimant appears to be 
 
            well-motivated to work.  He has a work history involving a 
 
            good deal of heavy manual work, but not necessarily overhead 
 
            work.  The only medical restriction shown to be necessitated 
 
            by this work injury is the recommendation of both physicians 
 
            against overhead work or repetitive overhead work.  The 
 
            weight restriction imposed by Dr. Cairns has not been shown 
 
            attributable to the claimant's cervical problems as opposed 
 
            to his lumbar problems.  Dr. Sullivan's recommendation that 
 
            claimant employ good body mechanics while lifting is not 
 
            really a significant restriction, since everyone should do 
 
            that anyway.
 
            
 
                 Restrictions against overhead work will very probably 
 
            bar claimant from seeking employment as a mechanic.  This is 
 
            an occupation by which he is suited by training, but one in 
 
            which he has no significant work experience.  The 
 
            restriction might well interfere with his ability to work as 
 
            a drywall installer, and on the shipping dock at Eagle 
 
            Manufacturing (semi-trailer trucks are typically loaded all 
 
            the way to the trailer's ceiling), although the latter 
 
            problem is alleviated by defendants having provided other 
 
            work.  Claimant's work experience as an oil station 
 
            attendant and grocery store cleaner and stocker would not 
 
            necessarily be affected by the restriction.  The fact of the 
 
            restriction itself, though, may make claimant a less 
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            desirable employee in the competitive labor market.
 
            
 
                 While claimant continues to suffer pain, pain is not 
 
            compensable in and of itself unless it has an impact upon 
 
            earning capacity.  Claimant's inability to participate in 
 
            sports may be illustrative of his condition, but does not 
 
            directly affect earning capacity.
 
            
 
                 Considering these factors in particular and the record 
 
            otherwise in general, it is held that claimant has sustained 
 
            a permanent partial industrial disability of 15 percent of 
 
            the body as a whole attributable to the work injury of 
 
            December 8, 1988.  Accordingly, he shall be awarded 75 weeks 
 
            of benefits.
 
            
 
                 Claimant also seeks Dr. Sullivan's medical expenses 
 
            under Iowa Code section 85.27.  In pertinent part, that 
 
            section provides that employer is obliged to furnish 
 
            reasonable services and supplies to treat an injured 
 
            employee, but has also the right to choose the care so long 
 
            as it be offered promptly and be reasonably suited to treat 
 
            the injury without undue inconvenience to the employee.  Dr. 
 
            Sullivan's care was not authorized by defendants.  Claimant 
 
            has not followed the statutory procedure for seeking 
 
            alternate care.  Accordingly, Dr. Sullivan's expenses are 
 
            not compensable.
 
            
 
                                      ORDER
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 Defendants shall pay unto claimant four point four two 
 
            nine (4.429) weeks of healing period benefits at the rate of 
 
            one hundred ninety-five and 37/100 dollars ($195.37) per 
 
            week commencing December 9, 1988.
 
            
 
                 Defendants shall pay unto claimant seventy-five (75) 
 
            weeks of permanent partial disability benefits at the rate 
 
            of one hundred ninety-five and 37/100 dollars ($195.37) per 
 
            week commencing January 9, 1989.
 
            
 
                 As all benefits have accrued, they shall be paid in a 
 
            lump sum together with statutory interest pursuant to Iowa 
 
            Code section 85.30.
 
            
 
                 Costs are assessed to defendants pursuant to rule 343 
 
            IAC 4.33.
 
            
 
                 Defendants shall file claim activity reports as 
 
            required by the agency pursuant to rule 343 IAC 3.1.
 
            
 
                 Signed and filed this ______ day of _________, 1992.
 
            
 
                 
 
            
 
                 
 
                 
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          DAVID RASEY
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. David A. Lemanski
 
            Attorney at Law
 
            1141 Main Street
 
            Dubuque, Iowa  52001
 
            
 
            Mr. Jon K. Swanson
 
            Attorney at Law
 
            900 Des Moines Building
 
            Des Moines, Iowa  50309
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                5-1108
 
                                                Filed June 10, 1992
 
                                                DAVID RASEY
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            DARREN R. DEMOSS,             :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :         File No. 902475
 
                                          :
 
            EAGLE MANUFACTURING,          :      A R B I T R A T I O N
 
                                          :
 
                 Employer,                :         D E C I S I O N
 
                                          :
 
            and                           :
 
                                          :
 
            GREAT AMERICAN INSURANCE      :
 
            COMPANIES,                    :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
            5-1108
 
            Cervical and thoracic problems were causally related to work 
 
            injury, but not lumbar problems.
 
            
 
 
            
 
            
 
            
 
            
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            JEFFREY W. MONELL,            :
 
                                          :      File No. 902825
 
                 Claimant,                :
 
                                          :
 
            vs.                           :       MEMORANDOM OF
 
                                          :
 
            PERFORMANCE CONTRACTING,      :        DECISION ON
 
            INC.,                         :
 
                                          :         ALTERNATE
 
                 Employer,                :
 
                                          :        MEDICAL CARE
 
            and                           :
 
                                          :
 
            AMERICAN INTERNATIONAL INS.,  :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            On February 10, 1994, 1993, claimant filed an application 
 
            for alternate medical care under Iowa Code section 85.27 and 
 
            rule 343 IAC 4.48.  A hearing was held on February 16, 1993.  
 
            All parties were given proper notice.
 
            Claimant sustained an injury on December 5, 1988, which 
 
            arose out of and in the course of his employment.  Claimant 
 
            is dissatisfied with the medical treatment offered by the 
 
            defendants.
 
            The hearing was recorded via an audio tape, and a complete 
 
            decision was dictated into the record on the day of the 
 
            hearing.  The decision will be reproduced in typewritten 
 
            form only if the decision is appealed, and the parties are 
 
            advised to follow the procedures outlined under the 
 
            administrative code.  Any rights of appeal will run from the 
 
            date the decision was dictated into the record, February 16, 
 
            1993.
 
            
 
                 The deputy ordered that claimant's petition for 
 
            alternate medical care is granted.  The decision was 
 
            rendered February 16, 1994.
 
            
 
                 The undersigned has been delegated the authority to 
 
            issue final agency action in this matter.  Appeal of this 
 
            decision, if any, is judicial review pursuant to Iowa Code 
 
            section 17A.19.
 
            Signed and filed this ____ day of February, 1994.
 
            
 
            
 
                                     ________________________________
 
                                     PATRICIA J. LANTZ
 
                                     DEPUTY INDUSTRIAL COMMISSIONER
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
            Copies To:
 
            
 
            Mr Dennis J Mahr
 
            Attorney at Law
 
            507 7th St
 
            318 Insurance Centre
 
            Sioux City IA 51101
 
            
 
            Mr John E Swanson
 
            Attorney at Law
 
            8th Flr Fleming Bldg
 
            Des Moines IA 50309
 
            
 
            
 
 
            
 
            
 
            
 
            
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                       
 
            DARLENE EMBRAY,      
 
                       
 
                 Claimant,  
 
                       
 
            vs.        
 
                                            File No. 903026
 
            THREE M COMPANY,     
 
                                         A R B I T R A T I O N
 
                 Employer,  
 
                                           D E C I S I O N
 
            and        
 
                       
 
            OLD REPUBLIC INSURANCE COMPANY,
 
                       
 
                 Insurance Carrier,   
 
                 Defendants.     
 
            ___________________________________________________________
 
                            STATEMENT OF THE CASE
 
            
 
                 This is a proceeding in arbitration brought by Darlene 
 
            Embray, claimant, against Three M Company, employer, and Old 
 
            Republic Insurance Company, insurance carrier, defendants, 
 
            to recover benefits under the Iowa Workers' Compensation Act 
 
            as a result of an injury sustained on January 8, 1988.  This 
 
            matter came on for hearing before the undersigned deputy 
 
            industrial commissioner on November 30, 1993, in Des Moines, 
 
            Iowa.  The record was considered fully submitted at the 
 
            close of the hearing.  The claimant was present and 
 
            testified.  Also present and testifying were Linda Anderson, 
 
            Charles Arnold, Kathy Bennett, Bonnie J. Harkins, Jim Brown 
 
            and Connie Husted.  The documentary evidence identified in 
 
            the record consists of joint exhibits 1-34.
 
            
 
                                     ISSUES
 
            
 
                 The parties submitted the following issues for 
 
            determination at the time of the hearing:
 
            
 
                 1.  Whether claimant sustained an injury on January 8, 
 
            1988, which arose out of and in the course of employment 
 
            with employer;
 
            
 
                 2.  Whether the alleged injury is the cause of 
 
            permanent disability and, if so, the extent thereof.
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 The undersigned has carefully considered all the 
 
            testimony given at the hearing, arguments made, evidence 
 
            contained in the exhibits herein, and makes the following 
 
            findings:
 
            
 
                 Claimant was born on November 21, 1943 and graduated 
 
            from high school in 1962.  She has worked in the past as a 
 
            dental assistant, production line worker, dispatcher and 
 
            customer relations supervisor.  On March 29, 1976, she 
 
            commenced working for employer.  She started as a coder 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            treater assistant and in 1978 was promoted to production 
 
            supervisor.  She sustained a work-related low back injury on 
 
            July 10, 1984 which required one lumbar and two cervical 
 
            surgeries.  Her work schedule between March 4, 1985 and 
 
            February 3, 1986 is summarized in the deposition of Robert 
 
            Sharkey (Exhibit 28, pp. 7-8).  From February 1986 through 
 
            July 1987 she worked with the clerical secretary in the 
 
            coding department performing miscellaneous paper work.  In 
 
            July of 1987, she was transferred from the coding department 
 
            to the employee corrective action request system (ECR) under 
 
            the supervision of Jim Brown.  Claimant testified that she 
 
            suffered another work-related injury on January 8, 1988.  
 
            She alleges that as a result of this injury she has severe 
 
            low back pain, right hip and right leg pain, severe 
 
            right-sided headaches, numbness in the right arm, right leg 
 
            and right foot (Ex. 27, p. 4).  
 
            
 
                 A review of the pertinent and medical evidence of 
 
            record reveals that on July 10, 1984, claimant fell at work 
 
            and developed low back pain, severe headaches, right arm 
 
            pain and right leg pain.  On September 4, 1984, Robert 
 
            Hayne, M.D., performed a lumbar laminectomy due to a 
 
            herniated disc at the fifth lumbar interspace on the right.  
 
            She was subsequently diagnosed with a herniated 
 
            intervertebral disc at the fifth and sixth cervical 
 
            interspace on the right and Dr. Hayne performed cervical 
 
            fusion on December 27, 1984.  On May 21, 1985, Dr. Hayne 
 
            performed a cervical fusion revision due to compression of 
 
            the sixth and seventh cervical nerve roots on the right side 
 
            secondary to bony spur formation.  On September 6, 1985, 
 
            claimant saw Robert C. Jones, M.D., for evaluation.  He 
 
            recommended a pain clinic.  On October 31, 1985, claimant 
 
            was evaluated by James L. Blessman, M.D., for admission to 
 
            Mercy Hospital Pain Clinic.  She participated in the program 
 
            at the clinic until November 29, 1985 when she was 
 
            discharged.  On February 13, 1986, Dr. Hayne determined that 
 
            claimant had reached maximum medical recovery.  He gave her 
 
            an 8 percent impairment rating for symptoms referable to the 
 
            low back region and an additional 11 percent for symptoms 
 
            referable to her neck.  Claimant settled her case with 
 
            employer for 250 weeks of permanent partial disability 
 
            benefits.  A commutation agreement was filed with the Iowa 
 
            Industrial Commissioner on September 16, 1986 (Exs. 1, 8, 9 
 
            & 18).
 
            
 
                 Claimant's pain persisted.  In addition, her husband 
 
            died suddenly in December 1987.  On February 23, 1988, she 
 
            presented to Marc E. Hines, M.D..  He diagnosed chronic pain 
 
            secondary to cervical and lumbosacral radiculopathy and 
 
            prescribed pain medication.  Claimant returned to Dr. Hines 
 
            on March 22, 1988.  His progress notes indicate that she was 
 
            very depressed due to her husband's death and was still 
 
            suffering daily right-sided chronic back pain and occipital 
 
            headaches.  Dr. Hines continued her pain medication and 
 
            recommended counseling with Dr. Wayne, Ph.D..  Claimant paid 
 
            a final visit to Dr. Hines on April 6, 1988, requesting 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            higher doses of medication.  He was unwilling to increase 
 
            her dosage and recommended an EKG.  Meanwhile, claimant 
 
            declined further counseling sessions with Dr. Wayne (Ex. 5).
 
            
 
                 In attempting to deal with her depression and grief, 
 
            claimant underwent counseling with Robert Hutzell, Ph.D., at 
 
            Mater Clinic.  An initial interview was conducted on April 
 
            20, 1988.  She completed nine sessions and made good 
 
            progress.  Treatment was discontinued on June 15, 1988 (Ex. 
 
            21).  
 
            
 
                 On August 26, 1988, claimant presented to Kenneth 
 
            VanWyk D.C., with complaints of upper back pain which she 
 
            attributed to moving a heavy box at work (Ex. 6, pp. 33-34).  
 
            She completed a questionnaire for Dr. VanWyk and in response 
 
            to the question, "Do any other diseases or accidents affect 
 
            your employment?"  Yes, back injury (1984) (Ex. 8, p. 35).  
 
            During the course of treatment with Dr. VanWyk, claimant 
 
            complained of neck pain and headaches.  A notation dated 
 
            September 14, 1988 states that claimant had fallen the 
 
            Sunday before and hurt her left hip.  On September 22, 1988, 
 
            she presented with acute low back pain after suddenly 
 
            bending and turning.  A notation dated November 3, 1988 
 
            states that she experienced right arm numbness when riding a 
 
            bicycle.  On October 7, 1988, she presented with pain in the 
 
            low back and sacral area with radiation into the legs since 
 
            Monday.  On November 4, 1988, she presented with continued 
 
            soreness and weakness in the right leg especially going up 
 
            and down stairs for a couple of days.  Dr. VanWyk advised 
 
            that she quit back exercises because they may aggravate her 
 
            condition.  She indicated she did not want to quit work to 
 
            give her back and leg a rest because she was too nervous and 
 
            tense at home.  She also refused to see a medical doctor or 
 
            undergo a CT scan.  She was advised not to move furniture as 
 
            she did a few weeks prior.  On November 7, 1988, she 
 
            presented with increased right hip and leg pain.  At this 
 
            time, she informed Dr. VanWyk that she fell in the parking 
 
            lot at Three M Company in January 1988 and her back and leg 
 
            has been getting worse ever since.  Two days later she 
 
            presented with soreness in her right leg and left hip after 
 
            falling.  At this time, claimant consented to a CT scan (Ex. 
 
            6).
 
            
 
                 On November 10, 1988, claimant underwent a lumbar CT 
 
            scan.  The radiologist's impression was a herniated disc at 
 
            the L3-4 level (Ex. 7, p. 7).  Claimant saw Robert C. Jones, 
 
            M.D., a neurosurgeon on November 14, 1988.  A preliminary 
 
            history taken from claimant states that she fell in January 
 
            1988, while getting into the car in employer's parking lot 
 
            and has had low back and right leg pain ever since.  Dr. 
 
            Jones admitted claimant to Mercy Hospital Medical Center on 
 
            November 18, 1988 for a myelogram.  The findings were 
 
            consistent with a herniated disc and surgery was scheduled 
 
            for November 29.  Dr. Jones performed a decompressive lumbar 
 
            laminectomy at L3 with removal of a huge subligamentous 
 
            extruded disc on the right.  On December 12, 1988, claimant 
 
            contacted Dr. Jones and stated that she sneezed and 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            developed terrible pain in the low back and right leg.  She 
 
            was treated conservatively without improvement.  Dr. Jones 
 
            saw her again on May 25 and July 14, 1989.  Her complaints 
 
            were referable to low back and right leg pain.  On July 18, 
 
            1989, a myelography with a post myelogram computerized scan 
 
            of the back was performed at Mercy Hospital.  The results 
 
            suggested a recurrent disc on the right at the L3-4 level.  
 
            On July 21, 1989, Dr. Jones performed a re-operation lumbar 
 
            laminectomy (decompressive) at L3-4 with removal of a huge 
 
            recurrent disc on the right (Exs. 7-9).  
 
            
 
                 Claimant continued to have low back and right leg pain.  
 
            She was seen by Dr. Jones on a number of occasions.  A 
 
            lumbar myelogram was performed on October 23, 1989 and 
 
            failed to show any cause for her pain.  When last seen by 
 
            Dr. Jones on March 9, 1990, claimant complained that her 
 
            condition was worse than before.  She declined treatment at 
 
            Mercy Pain Center.  Dr. Jones recommended the Low Back Pain 
 
            Clinic in Minneapolis (Ex. 8, pp. 21-22).  
 
            
 
                 Claimant was evaluated at the Institute for Low Back 
 
            Care June 19-20, 1990.  A functional capacity evaluation 
 
            stated that, in an eight hour work day, claimant was capable 
 
            of sitting, standing and walking six hours.  It also stated 
 
            that she was capable of frequent carrying and lifting at 
 
            waist level up to 10 pounds and occasionally up to 24 
 
            pounds.  Also, it was determined that she was able to 
 
            occasionally bend/stoop, squat, climb, reach above shoulder 
 
            level, kneel, balance, and push/pull.  Finally, it was noted 
 
            that she can occasionally lift 25 pounds at waist level (Ex. 
 
            11, pp. 5-6).
 
            
 
                 Claimant applied for social security disability 
 
            benefits sometime in 1990.  Pursuant to that claim, she was 
 
            referred by her attorney to Sam L. Graham, Ph.D., for a 
 
            psychological assessment on August 9, 1990.  Dr. Graham 
 
            found that claimant presented with a clear pattern of 
 
            symptoms suggestive of Major Depressive Disorder which has 
 
            developed within the context of her chronic pain disorder.  
 
            He recommended aggressive psychiatric treatment (Ex. 12).
 
            
 
                 Claimant then underwent ten sessions of individual 
 
            psychotherapy with Todd F. Hines, Ph.D., from September 26, 
 
            1990 through November 27, 1990, when she was released from 
 
            his care, psychologically improved (Ex. 13). 
 
            
 
                 Claimant was also being followed by John Kanis, D.O., 
 
            for various complaints.  He performed a complete physical 
 
            evaluation on June 6, 1991 and diagnosed chronic myofascial 
 
            pain syndrome, chronic cephalgia, overweight, nicotine 
 
            addiction, possible intermittent aspirin toxicity and 
 
            depression (Ex. 7, pp. 3-6).
 
            
 
                 Claimant was referred by defendants to Daniel McGuire, 
 
            M.D., for an independent medical examination.  Claimant 
 
            presented to Dr. McGuire on March 26, 1992.  She presented 
 
            with an extreme amount of non-physiologic complaints with no 
 
            objective findings on physical examination of true 
 
            radiculopathy.  Other than decreased pulses in her lower 
 
            extremities no other positive findings were evident.  After 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            reviewing claimant's extensive medical records, Dr. McGuire 
 
            concluded that she has myofascial pain syndrome with 
 
            numerous aches and pains without any objective neurological 
 
            findings.  He concluded that she is not a candidate for any 
 
            further surgery.  Dr. McGuire reported as follows:
 
            
 
                    ... when you look at her diagnostic studies 
 
                 from 1988, you really do not find much in the way 
 
                 of acute changes.  These are long-standing 
 
                 congenital problems.  They are not related to 
 
                 1984; they are not related to 1988; they are 
 
                 related to birth.  She has short pedicles and with 
 
                 that she has the resultant small canal, which 
 
                 makes her prone to developing spinal stenosis.  
 
                 She has degenerative changes in the facet joints, 
 
                 which cause the canal to be even a little bit 
 
                 smaller.  She then had a little bulge of her disk 
 
                 on the left side at L3-4.  She had right leg 
 
                 symptoms and ended up with an operation.
 
            
 
                    I see the surgeries of 1988 and 1989 could be 
 
                 completely unrelated to her fall in 1988 as by the 
 
                 history the patient provided in the medical 
 
                 records.
 
            
 
                    The history that she provided to me was 
 
                 different.  I guess I am prone to believe the 
 
                 history of 1988.  After the fall in January 1988 
 
                 she was able to continue to work.  As a result of 
 
                 the fall in January of 1988, I believe she could 
 
                 work.  Whatever job she was doing at that time, 
 
                 for sure she could do that.  I am sure I would 
 
                 have had her back to working more hours per day 
 
                 than she was.  We probably could have lifted her 
 
                 weight restrictions some.
 
            
 
                 Even with the two surgeries in 1988 and 1989, I 
 
                 still would have her working.  Realistically she 
 
                 needs to be on a 10-20 pound weight limit.  That 
 
                 is more a humane restriction than rigid.  I am 
 
                 sure in her activities of daily living that she 
 
                 moves things around that weight 5, 10, 15 pounds, 
 
                 such as a grocery sack or a roast beef from the 
 
                 oven (Ex. 16, p. 11).
 
            
 
                 On October 12, 1993, claimant presented to Donna Bahls, 
 
            M.D., for evaluation.  Dr. Bahls felt that no further 
 
            diagnostic workup was warranted and discussed with claimant 
 
            medical management of her pain.  She prescribed Prozac and 
 
            Doxepin along with Anaprox (Ex. 14).
 
            
 
                 Claimant was referred by defendants to William R. 
 
            Boulden, M.D., for evaluation on November 22, 1993.  Dr. 
 
            Boulden issued a report pursuant to that examination and 
 
            testified by deposition (Ex. 25, p. 5).  Dr. Boulden 
 
            indicated that in formulating his opinions, he relied upon 
 
            claimant's medical records, which were furnished by 
 
            defendants, his examination of claimant and other facts 
 
            concerning her employment.  Based on that evidence, Dr. 
 
            Boulden concluded that claimant's fall on January 8, 1988, 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            was not a substantial factor in producing any permanent 
 
            disability or permanent impairment (Ex. 25, p. 8).  Dr. 
 
            Boulden testified that he spent a significant amount of time 
 
            looking through every x-ray available pertinent to 
 
            claimant's past and present medical condition.  
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                 The party who would suffer loss if an issue were not 
 
            established has the burden of proving that issue by a 
 
            preponderance of the evidence.  Iowa R. of App. P. 14(f).
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the alleged injury 
 
            actually occurred and that it arose out of and in the course 
 
            of employment.  McDowell v. Town of Clarksville, 241 N.W.2d 
 
            904 (Iowa 1976); Musselman v. Cent. Tel. Co., 261 Iowa 352, 
 
            154 N.W.2d 128 (1967).  The words "arising out of" refer to 
 
            the cause or source of the injury.  The words "in the course 
 
            of" refer to the time, place and circumstances of the 
 
            injury.  Sheerin v. Holin Co., 380 N.W.2d 415 (Iowa 1986); 
 
            McClure v. Union County, 188 N.W.2d 283 (Iowa 1971).
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury is a proximate 
 
            cause of the disability on which the claim is based.  A 
 
            cause is proximate if it is a substantial factor in bringing 
 
            about the result; it need not be the only cause.  A 
 
            preponderance of the evidence exists when the causal 
 
            connection is probable rather than merely possible.  
 
            Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa 
 
            1980); Holmes v. Bruce Motor Freight, Inc., 215 N.W.2d 296 
 
            (Iowa 1974).
 
            
 
                 The question of causal connection is essentially within 
 
            the domain of expert testimony.  The expert medical evidence 
 
            must be considered with all other evidence introduced 
 
            bearing on the causal connection between the injury and the 
 
            disability.  The weight to be given to any expert opinion is 
 
            determined by the finder of fact and may be affected by the 
 
            accuracy of the facts relied upon by the expert as well as 
 
            other surrounding circumstances.  The expert opinion may be 
 
            accepted or rejected, in whole or in part.  Sondag v. Ferris 
 
            Hardware, 220 N.W.2d 903 (Iowa 1974); Anderson v. Oscar 
 
            Mayer & Co., 217 N.W.2d 531 (Iowa 1974); Bodish v. Fischer, 
 
            Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).
 
            
 
                 A personal injury contemplated by the workers' 
 
            compensation law means an injury, the impairment of health 
 
            or a disease resulting from an injury which comes about, not 
 
            through the natural building up and tearing down of the 
 
            human body, but because of trauma.  The injury must be 
 
            something which acts extraneously to the natural processes 
 
            of nature and thereby impairs the health, interrupts or 
 
            otherwise destroys or damages a part or all of the body.  
 
            Although many injuries have a traumatic onset, there is no 
 
            requirement for a special incident or an unusual occurrence.  
 
            Injuries which result from cumulative trauma are 
 
            compensable.  McKeever Custom Cabinets v. Smith, 379 N.W.2d 
 
            368 (Iowa 1985); Olinistered by the application of 
 
                 logical and consistent rules or formulas 
 
                 notwithstanding its benevolent purpose.  It cannot 
 
                 be made to depend on the whim or sympathetic 
 
                 sentiment of the current administrator or 
 
                 presiding judge.  We apprehend every member of 
 
                 this court is sympathetic to claimant in the 
 
                 instant case.  But the compensation statute is not 
 
                 a charity.  It is a humanitarian law to be 
 
                 administered, not by sympathy, but by logical 
 
                 rules, evolved from the determination of many 
 
                 cases under literally countless factual 
 
                 variations.  Compensation is to be paid by the 
 
                 employer (or [the] insurer) as a matter of 
 
                 contract, not as a gratuity.  It is payable only 
 
                 when the facts show the injury is within the 
 
                 contract--that it 'arose out of and in the course 
 
                 of the contracted employment.'  Bulman v. Sanitary 
 
                 Farm Dairies, 247 Iowa 488, 494, 495, 73 N.W.2d 
 
                 (1955).
 
            
 
                 There is insufficient evidence to support a finding 
 
            that the incident on January 8, 1988 was a substantial 
 
            factor in causing claimant's severe low back pain, right hip 
 
            and right leg pain, severe right-sided headaches, numbness 
 
            in the right arm, right leg and right foot which 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            subsequently resulted in surgery on November 29, 1989 and 
 
            July 28, 1989 and the disability on which she now bases her 
 
            claim.
 
            
 
                 Claimant relies on Dr. Jones and chiropractor VanWyk to 
 
            support her contentions that the injury of January 8, 1988 
 
            caused her current disability.  However, her contentions are 
 
            not supported by the medical evidence.  While claimant 
 
            reported to her supervisor on January 8, 1988, that she 
 
            slipped in the parking lot and twisted her body causing a 
 
            sharp pain in her lower back, she neither missed time from 
 
            work nor sought any medical attention.  She continued 
 
            working approximately six hours per day, as prior to the 
 
            injury, and in fact, testified that by mid-May 1988, had 
 
            increased her hours to nearly eight per day.  The first time 
 
            claimant sought medical attention after January 8, 1988, was 
 
            approximately six weeks later when she saw Dr. Hines, a 
 
            neurologist, on February 23.  At that time, Dr. Hines 
 
            diagnosed "chronic pain secondary to cervical and 
 
            lumbosacral radiculopathy."  This was the same diagnoses he 
 
            made in 1987.  His notes make no reference to an incident on 
 
            January 8, 1988.  Claimant saw Dr. Hines again on March 22, 
 
            1988, primarily for depression, but chronic back pain was 
 
            also noted.  The same comments are made by Dr. Hines during 
 
            an April 6, 1988 visit.  Claimant saw a psychologist who 
 
            works with Dr. Hines on March 29 and April 7, 1988.  Again, 
 
            no reference is made regarding an incident on January 8, 
 
            1988.  During the remainder of April, May, June, July, and 
 
            most of August 1988, claimant did not seek medical care for 
 
            her alleged work injury.  She participated in counseling  
 
            sessions with a psychologist to help her through the grief 
 
            process.  On June 8, 1988, the psychologist recorded "no 
 
            impairment of her job" and on June 15, 1988, he recorded 
 
            "work going well" (Ex. 21).
 
            
 
                 On August 26, 1988, claimant saw Dr. VanWyk, a 
 
            chiropractor.  In completing his patient intake form, she 
 
            noted that she injured her upper back at work earlier in the 
 
            day moving a heavy box.  Regarding prior accidents affecting 
 
            her employment, she listed "back injury (1984)", but made no 
 
            mention of the January 8, 1988 incident.  She saw Dr. VanWyk 
 
            on numberous occasions.  On September 9, 1988, he reported 
 
            that the dorsal area was better and that she was "about back 
 
            to pre-accident status."  On about September 11, 1988, 
 
            claimant fell at home.  When she saw Dr. VanWyk on September 
 
            14, 1988, he reported that she hurt her left hip and had 
 
            some sciatic soreness.  Dr. VanWyk's records also show an 
 
            incident on September 22, 1988, when claimant turned 
 
            suddenly and had acute pain in her low back.  She told her 
 
            supervisor about problems while riding her bike from 
 
            Knoxville to Pella on October 1, 1988.  On October 7, Dr. 
 
            VanWyk recorded onset of low back, dorsal and leg pain the 
 
            previous Monday or Tuesday.  On November 4, 1981, Dr. VanWyk 
 
            noted that claimant had been moving furniture several weeks 
 
            previously and developed back pain.  
 
            
 
                 Although claimant saw Dr. VanWyk on approximately 35 
 
            occasions between August 26 and November 7, 1988, it was not 
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            until November 7th, that his notes contain any reference to 
 
            a January 8, 1988 parking lot incident (Ex. 6).  This was 
 
            ten months after the occurrence, and is the very first 
 
            mention of the incident to any medical provider in the 
 
            voluminous medical records.  However, notwithstanding 
 
            claimant's long history of problems before January 8, 1988 
 
            and the several incidents after January 8, 1988, beginning 
 
            with November 7, the history claimant gave to physicians, 
 
            including Dr. Jones, centers on the January 8, 1988 parking 
 
            lot incident.  On January 18, 1989, Dr. Jones wrote in a 
 
            letter to GAB Business Services, Inc. as follows:  "She 
 
            continues to be under my care; continues to have significant 
 
            discomfort and from what she tells me there appears to be a 
 
            cause and effect relationship between the fall at work in 
 
            January of 1988 and her continuing discomfort and subsequent 
 
            surgery." (Ex. 8, p. 13).
 
            
 
                 Dr. Jones testified in a deposition taken on October 4, 
 
            1993.  He was given no other history regarding the several 
 
            incidents which occurred between January 8 and November 7, 
 
            1988.  Dr. Jones based his opinion as to causation solely on 
 
            the incomplete history given to him by claimant.  Therefore, 
 
            Dr. Jones' opinion as to causation is not entitled to 
 
            significant weight and consideration.  An expert's opinion 
 
            based on an incomplete history is not necessarily binding on 
 
            the commissioner.  The opinion must be weighed with other 
 
            facts and circumstances presented.  Musselman v. Central 
 
            Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
            
 
                 Dr. VanWyk's opinion as to causation is also not 
 
            entitled to significant weight and consideration.  Dr. 
 
            VanWyk was asked whether in his opinion, within a reasonable 
 
            degree of chiropractic certainty, the cause of claimant's 
 
            low back problems which resulted in surgery in November of 
 
            1988 resulted from the fall in January 1988.  Dr. VanWyk, 
 
            responded, without explanation, that the fall, and only the 
 
            fall, caused the low back problems which resulted in the 
 
            November 1988 surgery.  It is interesting to note that Dr. 
 
            VanWyk's progress notes indicate that he was not even aware 
 
            of a January 1988 injury until November 7, 1988 (Ex. 6, p. 
 
            5).  
 
            
 
                 Opinions as to causation have also been rendered by two 
 
            orthopedic surgeons.  Dr. McGuire examined claimant on March 
 
            26, 1992 and reviewed her extensive medical records.  After 
 
            examining her diagnostic studies, Dr. McGuire concluded that 
 
            claimant's medical problems are long-standing congenital 
 
            problems and in no way related to the fall in January 1988 
 
            (Ex. 16, p. 11).  Dr. Boulden, a board certified orthopedic 
 
            surgeon, examined claimant on November 22, 1993 and also 
 
            reviewed her extensive medical records.  He reported, in 
 
            pertinent part, as follows:  
 
            
 
                    Therefore, in trying to put pieces together 
 
                 here, I believe the patient as been stated by 
 
                 other opinions that she had a congenital spinal 
 
                 stenosis.  I think the first operation was for 
 
                 spinal stenosis not truly a herniated disc.  I 
 
     
 
            
 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
                 believe that she continued to develop an acquired 
 
                 degenerative spinal stenosis on top of cogenital 
 
                 spinal stenosis which finally become quite 
 
                 persistent in her symptoms, sometime in October or 
 
                 November of 1988.  When this actual disc 
 
                 protrusion at L3-4 was starting to get worse and 
 
                 worse and is unknown but there were already signs 
 
                 of problems with this disc even in 1984 to 1986.  
 
                 Therefore, I doubt that the fall of January 1988 
 
                 really caused the disc to rupture to the point 
 
                 where surgery was needed in November of 1988.  I 
 
                 believe there are several other instances that is 
 
                 reported in the records such as moving furniture, 
 
                 falling on her left hip, twisting, turning, and 
 
                 lifting as such that all could be very significant 
 
                 participating factors and would align with the 
 
                 proper chronological aging before the symptoms got 
 
                 quite severe.  Therefore, it is hard for me to 
 
                 correlate the January 8, 1988 slip and twisting 
 
                 injury as the need for the surgery of November, 
 
                 1988 (Ex. 19, pp. 9-10).
 
            
 
                 A treating physician's testimony is not entitled to 
 
            greater weight as a matter of law than that of a physician 
 
            who later examines claimant in anticipation of litigation.  
 
            Weight to be given testimony of physician is a fact issue to 
 
            be decided by the industrial commissioner in light of the 
 
            record the parties develop.  In this regard, both parties 
 
            may develop facts as to the physician's employment in 
 
            connection with litigation, if so; the physician's 
 
            examination at a later date and not when the injuries were 
 
            fresh; his arrangement as to compensation; the extent and 
 
            nature of the physician's examination; the physician's 
 
            education, experience, training, and practice; and all other 
 
            factors which bear upon the weight and value of the 
 
            physician's testimony.  Both parties may bring all this 
 
            information to the attention of the fact finder as either 
 
            supporting or weakening the physician's testimony and 
 
            opinion.  All factors go to the value of the physician's 
 
            testimony as a matter of fact not as a matter of law.  
 
            Rockwell Graphic Systems, Inc. v. Prince, 366 N.W.2d 176, 
 
            192 (Iowa 1985).
 
            
 
                 The record reveals a possibility of numerous 
 
            intervening events, other than the January 8, 1988 incident, 
 
            as possible and perhaps more probable explanations for 
 
            claimant's disability.  Under the record presented, 
 
            reasonable persons could well disagree as to whether the 
 
            January 8, 1988 incident was a substantial factor in 
 
            producing any permanent disability or permanent impairment.  
 
            The greater weight of the evidence does not support 
 
            claimant's claim that the January 8, 1988 incident is a 
 
            proximate cause of the disability on which she now bases her 
 
            claim.  This determination is dispositive of the entire case 
 
            and further analysis is unnecessary.
 
            
 
                                     
 

 
            
 
            Page  11
 
            
 
            
 
                                     ORDER
 
            
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 Claimant shall take nothing from these proceedings.  
 
            
 
                 That defendants pay all costs pursuant to rule 343 IAC 
 
            4.33.  
 
            
 
                 Signed and filed this ____ day of December, 1993.
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          JEAN M. INGRASSIA
 
                                          DEPUTY INDUSTRIAL COMMISSIONER    
 
            
 
            Copies to:
 
            
 
            Mr. Ronald Pogge
 
            Attorney at Law
 
            2700 Grand Ave., Suite 111
 
            Des Moines, IA  50312
 
            
 
            Mr. Roger L. Ferris
 
            Attorney at Law
 
            1900 Hub Tower
 
            699 Walnut
 
            Des Moines, IA  50309-3947
 
 
 
 
            
 
            
 
            
 
            
 
                                         5-1100, 5-1108, 5-1803
 
                                         Filed December 20, 1993
 
                                         Jean M. Ingrassia
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                       
 
            DARLENE EMBRAY,      
 
                       
 
                 Claimant,  
 
                       
 
            vs.        
 
                                              File No. 903026
 
            THREE M COMPANY,     
 
                                           A R B I T R A T I O N
 
                 Employer,  
 
                                               D E C I S I O N
 
            and         
 
                       
 
            OLD REPUBLIC INSURANCE COMPANY,
 
                       
 
                 Insurance Carrier,   
 
                 Defendants.     
 
            ___________________________________________________________
 
            5-1100, 5-1803
 
            
 
                 Claimant failed to show by preponderance of the 
 
            evidence that a work injury was a substantial factor in 
 
            causing permanent disability or permanent impairment.  
 
            
 
            5-1108
 
            
 
                 The opinion of claimant's treating surgeon was based on 
 
            an incomplete history and is not binding on the 
 
            commissioner.  The opinion must be weighed with other facts 
 
            and circumstances presented.  Because claimant's treating 
 
            surgeon was given an incomplete history, his opinion as to 
 
            causation was not entitled to significant weight and 
 
            consideration.
 
            
 
                 The opinions rendered by two highly qualified 
 
            orthopedic surgeons was entitled to more weight and 
 
            consideration.  In forming their opinions, they relied on 
 
            the totality of claimant's voluminous medical records and 
 
            work history.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            CARL DAVID,                   :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :         File No. 903104
 
            MID-CONTINENT BOTTLERS, INC., :
 
                                          :      A R B I T R A T I O N
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            AETNA CASUALTY & SURETY CO.,  :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding in arbitration brought by Carl 
 
            David, claimant, against Mid-Continent Bottlers, Inc., 
 
            employer, and Aetna Casualty & Surety Company, insurance 
 
            carrier, to recover benefits under the Iowa Workers' 
 
            Compensation Act as a result of an injury allegedly 
 
            sustained on May 17, 1988.  This matter came on for hearing 
 
            before Deputy Industrial Commissioner Jean Ingrassia in 
 
            Cedar Rapids, Iowa on December 17, 1990.  The record was 
 
            considered fully submitted after the filing of briefs by 
 
            both parties on January 16, 1991.  The record in this case 
 
            consists of testimony from the claimant, Carl David; Adriano 
 
            Galvez; and Edwin Serovy.  The record also consists of joint 
 
            exhibits A-AD, claimant's exhibit 1 and defendants' exhibit 
 
            1.
 
            
 
                                      issues
 
            
 
                 Pursuant to the prehearing report and order submitted 
 
            and approved December 17, 1990, the parties stipulated that 
 
            the time off work for which claimant now seeks temporary 
 
            total disability benefits commenced January 31, 1989 and 
 
            ended November 28, 1989; the rate of weekly compensation in 
 
            the event of an award of weekly benefits is $250.74 per 
 
            week; and the fees charged for medical services or supplies 
 
            rendered to the claimant are reasonable and authorized by 
 
            defendant.  The parties further stipulated that the claimant 
 
            received sick pay/disability income in the amount of 
 
            $5,200.00 and medical/hospitalization expenses in the amount 
 
            of $12,501.35.
 
            
 
                 The issues remaining to be decided are:  1)  Whether 
 
            claimant received an injury arising out of and in the course 
 
            of his employment on either May 16 or May 17, 1988; 2) 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            whether a causal relationship exists between claimant's 
 
            claimed injury and his disability; 3) whether claimant is 
 
            entitled to temporary disability/healing period benefits or 
 
            permanent partial disability benefits; and 4) whether 
 
            claimant is entitled to medical benefits.
 
            
 
                                 findings of fact
 
            The undersigned has carefully considered all the testimony 
 
            given at the hearing, the arguments made and the evidence 
 
            contained in the exhibits, and makes the following findings:
 
            
 
                 The claimant was born on November 6, 1937 and completed 
 
            the twelfth grade of school in 1956.  He testified that he 
 
            worked for Mid-Continent Bottlers from April 26, 1976 
 
            through January 1989 when he went on sick leave.  He was 
 
            terminated from the company in January 1990.  From April 1, 
 
            1990 through August 1990, he worked for Gale Industries as a 
 
            telemarketing agent and salesman.  He quit this job because 
 
            it required road travel and some heavy lifting.  Recently, 
 
            he took a counseling position with the Area Substance Abuse 
 
            Council.  In this capacity, he is on call 24 hours but works 
 
            Friday through Saturday, midnight to 8:00 a.m. and earns 
 
            $6.00 an hour.  Prior to working for Mid-Continent, Mr. 
 
            David worked as a packinghouse laborer and insurance 
 
            salesman.
 
            
 
                 A review of the pertinent medical evidence reveals that 
 
            the claimant was seen by Richard Rowe, M.D., on July 23, 
 
            1981, for complaints of pain and muscle spasms in his left 
 
            shoulder.  He had been using a crowbar at work and slipped 
 
            and pulled some muscles in his shoulder.  A history of 
 
            shoulder separation in 1970 and bursitis with multiple 
 
            Cortisone injections was noted.  He was off work for awhile 
 
            and participated in physical therapy which seemed to improve 
 
            his symptoms (Exhibit F4).
 
            
 
                 On July 26, 1982, the claimant was evaluated by Warren 
 
            N. Verdeck, M.D., for complaints of pain in his neck and 
 
            left shoulder.  He related this pain back to an injury in 
 
            March 1982, when his pickup was hit in the parking lot at 
 
            work.  After taking x-rays, Dr. Verdeck diagnosed a cervical 
 
            strain with muscle tightness.  His pain persisted and EMG 
 
            studies were performed on August 27, 1982.  The results 
 
            showed severe suprascapular nerve injury but incomplete, 
 
            mild carpal tunnel syndrome and moderately severe ulnar 
 
            neuropathy at elbow level (Ex. W, page 5).  Because of 
 
            persistent pain at the base of the left neck, Dr. Verdeck 
 
            referred the claimant to James R. LaMorgese, M.D.  He saw 
 
            the claimant on December 16, 1982 and felt that he had early 
 
            cervical spondylosis, an element of thoracic outlet syndrome 
 
            and entrapment neuropathy.  He was prescribed Motrin (Ex. W, 
 
            p.11).  Dr. LaMorgese saw the claimant for follow-up 
 
            evaluations in January, February and March 1983.  Claimant 
 
            continued to complain of intermittent left neck pain and 
 
            cramping and numbing sensations in his hands.  Dr. LaMorgese 
 
            felt that these symptoms were related to claimant's March 
 
            1982 work injury (Ex. F4-section 10).  As to this injury, 
 
            the claimant testified that he settled out of court with the 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            insurance company for $3,000.00.  This is verified in 
 
            exhibit O4.
 
            
 
                 Claimant next saw Dr. Verdeck on June 3, 1986.  He 
 
            presented with a long history of numbness and tingling in 
 
            both hands.  EMG studies were performed and showed severe 
 
            ulnar neuropathy bilaterally, mild right carpal tunnel 
 
            syndrome and severe left carpal tunnel syndrome.  On June 
 
            23, 1986, left carpal tunnel release and ulnar nerve 
 
            transposition with decompression was performed at Mercy 
 
            Hospital.  On July 29, 1986, right carpal tunnel release and 
 
            anterior transposition of the right ulnar nerve was per
 
            formed.  Dr. Verdeck saw the claimant for carpal tunnel 
 
            related problems through October 17, 1986 and, at that time, 
 
            he still had some right sided numbness.  He was given an 
 
            impairment rating of five percent on the right side and 
 
            three percent on the left side (Exs. D & W).
 
            
 
                 During a deposition taken on June 27, 1990, John L. 
 
            Banks,  M.D., family practitioner, testified that he first 
 
            saw Mr. David on July 22, 1988.  He presented with 
 
            complaints of left sided headaches and left neck pain which 
 
            he attributed to being hit on the top of his head with a pop 
 
            case being thrown off the line at work.  A cervical spine 
 
            x-ray was ordered and an appointment with Erich Streib, 
 
            M.D., was arranged.  According to Dr. Banks, claimant made 
 
            no mention of an incident at work regarding a broken fork 
 
            lift seat and experiencing pain in his arm and shoulder when 
 
            he slid back in the seat (Ex. E).
 
            
 
                 Dr. Streib saw the claimant on July 29, 1988.  His com
 
            plaints were primarily referable to intermittent headaches 
 
            which he related to an accident in 1982 and a work incident 
 
            in November of 1987 when an empty case of pop hit his head.  
 
            Dr. Streib felt that the claimant's headaches were muscle 
 
            contraction headaches or tension headaches.  He also noted 
 
            myofascial pain and tenderness of the shoulder muscles on 
 
            both the right and left side but no neurologic abnormalities 
 
            to suggest nerve root disease, peripheral nerve disease or 
 
            intracranial (Ex. V).
 
            
 
                 After being evaluated by Dr. Streib, the claimant was 
 
            seen by Dr. Maercklein, (a vacation relief doctor for Dr. 
 
            Banks), on August 5, 1988.  During this visit, claimant 
 
            stated that he was feeling better.  He made no mention of 
 
            any arm or shoulder problems and his activities were not 
 
            restricted in any way (Ex. E, p. 10).  He was next seen by 
 
            Dr. Banks on December 5, 1988, and at this time his 
 
            complaints were referable to pain in his right neck and 
 
            right trapezius muscle and right arm.  He attributed his dis
 
            comfort to a defective fork lift seat and an incident which 
 
            occurred in May 1988.  Dr. Banks testified that this was the 
 
            first time Mr. David mentioned any problems with the fork 
 
            lift seat (Ex. E, p. 11).  This was also the first time that 
 
            he complained of problems into his right arm and shoulder.  
 
            However, on examination, there were no abnormal objective 
 
            findings.  Claimant was referred back to Dr. Streib who 
 
            referred him back to Dr. Verdeck.
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            
 
                 Dr. Verdeck saw the claimant on January 6, 1989.  At 
 
            that time, he complained primarily of right shoulder and 
 
            some neck pain.  X-rays taken of his shoulder revealed some 
 
            mild degenerative or arthritic changes at the shoulder 
 
            joint.  His impression was either a rotator cuff tear or 
 
            possibly an impingement syndrome (a tendinitis type 
 
            condition of the rotator cuff muscle in the shoulder).  His 
 
            complaints persisted and on February 13, 1989, he had an MRI 
 
            and arthrogram performed.  The tests revealed a rotator cuff 
 
            tear and a small mild or moderate herniated disk on the 
 
            right side at C5-6.  On March 6, 1989, claimant had 
 
            exploratory surgery and a definite tear was ruled out.  An 
 
            impingement syndrome was diagnosed and decompression was per
 
            formed.
 
            
 
                 Subsequent to surgery, claimant continued to have 
 
            symptoms referable to his hand and neck.  EMG studies taken 
 
            in July 1989 were negative.  An MRI C-spine scan showed 
 
            slight protrusion and bulge of C5-6 on the right.  Office 
 
            notes from Dr. Verdeck dated July 31, 1989, indicate that, 
 
            "He relates that he has had this particular pain ever since 
 
            in [sic] was struck in the head by a pop case at work."  
 
            (Ex. W, p. 19)  He was referred to Chad D. Abernathey, M.D., 
 
            a neurosurgeon, for further evaluation.
 
            
 
                 Dr. Abernathey testified by deposition on November 16, 
 
            1990.  He stated he saw claimant on August 4, 1989, and 
 
            performed a total system examination with concentration upon 
 
            the neurologic exam.  It was his clinical impression that 
 
            claimant was suffering from a C-6 radiculopathy secondary to 
 
            a cervical abnormality of the C-5/C-6 level.  A CT myelogram 
 
            was recommended and performed.  The results demonstrated a 
 
            large extradural defect at the C-5/C-6 level on the right.  
 
            Surgery was recommended.  Claimant's symptoms did not 
 
            improve and he returned to Dr. Abernathey indicating an 
 
            interest in pursuing surgical options.  Thereafter, a repeat 
 
            MRI examination was performed in October 1990 and the 
 
            results were similar to the August 1989 examination (Ex. G, 
 
            p. 15).
 
            
 
                 When last seen by Dr. Verdeck on November 8, 1990, 
 
            claimant complained of right upper extremity pain with 
 
            increased activities.  An anterior discectomy and fusion was 
 
            recommended for improvement of his symptoms (Ex. W, p. 25).
 
            
 
                 At his hearing, claimant testified that on Tuesday, May 
 
            17, 1988, while in the employ of Mid-Continent Bottlers, he 
 
            was operating fork lift No. 34, which was the line fork lift 
 
            at the time and the seat gave way and slid back while he was 
 
            turning the vehicle causing him to overextend his arms.  
 
            This resulted in immediate pain in his right upper extremity 
 
            including his arm, shoulder and neck.  He testified that the 
 
            incident occurred about one hour after his starting time but 
 
            he continued to complete his normal work shift which ran 
 
            from 6:00 a.m. to 2:00 p.m.  He testified that Mr. Galvez, 
 
            his supervisor, was out of town at the time and he therefore 
 
            reported the incident to Mr. Serovy, warehouse manager.  He 
 
            stated that Mr. Serovy was aware that the fork lift seat was 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            broken because a new seat had been ordered for the vehicle 
 
            more than a month before the incident happened.  He alleged 
 
            that he reported the incident to Mr. Galvez within the week 
 
            and an appointment was made for him to see Dr. Banks, the 
 
            company doctor.
 
            
 
                 As to his recreational activities, Mr. David testified 
 
            that between August 1988 and March 1989, he bowled on two 
 
            teams and participated in two bowling leagues.  He bowled 
 
            approximately 108 games using a 15-16 pound ball.  He has 
 
            not bowled since having rotator cuff surgery on March 6, 
 
            1989.
 
            
 
                 Also testifying at the hearing was Mr. Adriano Galvez, 
 
            operation's manager and claimant's supervisor at 
 
            Mid-Continent for the past 12 years.  He testified that 
 
            claimant came to him in July 1988 and told him that he was 
 
            not feeling very well because of headaches and shoulder 
 
            pain.  He was referred to Dr. Banks, the company physician, 
 
            for evaluation and treatment.  No report of injury was 
 
            written up at this time.  On December 2, 1988, he filed a 
 
            first report of injury when the claimant presented with 
 
            complaints of neck and arm pain.  He was under the 
 
            impression that this related to an injury in November 1987 
 
            when claimant was hit on the head with a wooden pop case.  
 
            He was aware that claimant had filed a claim related to that 
 
            injury and he presumed that this claim was a recurrence of 
 
            an old injury.  When he filed the first report of injury, he 
 
            did not specify the date that the injury occurred because 
 
            the claimant did not provide one (Defendant's Ex. 1).  
 
            Unbeknownst to Mr. Galvez, May 16, 1988, was later inserted 
 
            on the work injury report and made part of the record in 
 
            this case (Ex. L).  Finally, Mr. Galvez testified that 
 
            maintenance documents indicate that fork lift No. 36 rather 
 
            than No. 34 was used on the production line in May 1988.  
 
            This fork lift did not have a defective seat or any other 
 
            maintenance problems at the time Mr. David was allegedly 
 
            operating it.
 
            
 
                 Mr. Edwin Serovy, warehouse manager at Mid-Continent 
 
            Bottlers, also testified at the hearing.  He stated that 
 
            contrary to claimant's assertions, he did not report an 
 
            incident or injury to him on either May 16 or 17, 1988, nor 
 
            did he mention anything regarding a defective fork lift 
 
            seat.  If he had reported such an injury, claimant would 
 
            have been taken off the fork lift and forms would have been 
 
            filled out and a report of injury filed.  He stated that 
 
            prior to May 19, 1988, he had supervised Mr. David on 
 
            different jobs and he was aware of the pop case incident.  
 
            It was not until December 1988 that he learned of the 
 
            alleged fork lift incident.  In any event, he corroborated 
 
            Mr. Galvez's testimony that fork lift No. 36 was assigned to 
 
            the production line May 16-17, 1988, and this machine did 
 
            not have a defective seat.  He was aware that fork lift No. 
 
            34 had a broken seat and maintenance records demonstrate the 
 
            same.  Finally, he testified that contrary to claimant's 
 
            assertions and in his experience as a fork lift operator, 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            the vehicle is steered with the left hand, and not the 
 
            right, because the right hand operates the levers on the con
 
            trol panel.  In navigating the vehicles backwards, the 
 
            operator's head is turned to the right.  Also, a broken seat 
 
            moves in the same manner as an unbroken seat because there 
 
            is a brace in back of the seat which obstructs it from 
 
            moving more than l/2-2 inches from front to back.
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                 The first issue to be determined is whether claimant 
 
            has received an injury which arose out of and in the course 
 
            of his employment.
 
            
 
                 Claimant has the burden of proving by a preponderance 
 
            of the evidence that he received an injury on May 17, 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). 
 
            
 
                 An employee is entitled to compensation for any and all 
 
            personal injuries which arise out of and in the course of 
 
            the employment.  Section 85.3(1).
 
            
 
                 The injury must both arise out of and be in the course 
 
            of the employment.  Crowe v. DeSoto Consol. Sch. Dist., 246 
 
            Iowa 402, 68 N.W.2d 63 (1955) and cases cited at pp. 405-406 
 
            of the Iowa Report.  See also Sister Mary Benedict v. St. 
 
            Mary's Corp., 255 Iowa 847, 124 N.W.2d 548 (l963) and Hansen 
 
            v. State of Iowa, 249 Iowa 1147, 91 N.W.2d 555 (1958).
 
            
 
                 The words "out of" refer to the cause or source of the 
 
            injury.  Crowe, 246 Iowa 402, 68 N.W.2d 63 (1955). 
 
            
 
                 The words "in the course of" refer to the time and 
 
            place and circumstances of the injury.  McClure v. Union 
 
            et al. Counties, 188 N.W.2d 283 (Iowa 1971); Crowe, 246 Iowa 
 
            402, 68 N.W.2d 63 (1955).
 
            
 
                 "An injury occurs in the course of the employment when 
 
            it is within the period of employment at a place the 
 
            employee may reasonably be, and while he is doing his work 
 
            or something incidental to it."  Cedar Rapids Comm. Sch. 
 
            Dist. v. Cady, 278 N.W.2d 298 (Iowa 1979), McClure, 188 
 
            N.W.2d 283 (Iowa 1971); Musselman, 261 Iowa 352, 154 N.W.2d 
 
            128 (1967). 
 
            
 
                 The supreme court of Iowa in Almquist v. Shenandoah 
 
            Nurseries, 218 Iowa 724, 731-32, 254 N.W. 35, 38 (1934) 
 
            discussed the definition of personal injury in workers' 
 
            compensation cases as follows:
 
            
 
                 
 
            
 
                 While a personal injury does not include an occupa
 
                 tional disease under the Workmen's Compensation 
 
                 Act, yet an injury to the health may be a personal 
 
                 injury.  [Citations omitted.]  Likewise a personal 
 
                 injury includes a disease resulting from an 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
                 injury....The result of changes in the human body 
 
                 incident to the general processes of nature do not 
 
                 amount to a personal injury.  This must follow, 
 
                 even though such natural change may come about 
 
                 because the life has been devoted to labor and 
 
                 hard work.  Such result of those natural changes 
 
                 does not constitute a personal injury even though 
 
                 the same brings about impairment of health or the 
 
                 total or partial incapacity of the functions of 
 
                 the human body. 
 
            
 
                    ....
 
            
 
                 
 
                 A personal injury, contemplated by the Workmen's 
 
                 Compensation Law, obviously means an injury to the 
 
                 body, the impairment of health, or a disease, not 
 
                 excluded by the act, which comes about, not through the 
 
                 natural building up and tearing down of the human body, 
 
                 but because of a traumatic or other hurt or damage to 
 
                 the health or body of an employee.  [Citations 
 
                 omitted.]  The injury to the human body here 
 
                 contemplated must be something, whether an accident or 
 
                 not, that acts extraneously to the natural processes of 
 
                 nature, and thereby impairs the health, overcomes, 
 
                 injures, interrupts, or destroys some function of the 
 
                 body, or otherwise damages or injures a part or all of 
 
                 the body.
 
            
 
                 After carefully reviewing the total evidence in this 
 
            case, the undersigned concludes that the claimant did not 
 
            receive injuries to his shoulder and neck arising out of and 
 
            in the course of his employment with Mid-Continent Bottlers.  
 
            The record in this case is replete with inconsistent 
 
            evidence including contradictory testimony regarding the 
 
            alleged injury date, reporting of the incident to company 
 
            supervisors, and information given to physicians who have 
 
            treated/examined the claimant.  Some of the claimant's 
 
            testimony is contradicted by other witnesses and the medical 
 
            reports.
 
            
 
                 In this regard, Dr. Wirtz, in his deposition, testified 
 
            that the records were inconsistent with the oral history 
 
            given to him by the claimant (Ex. F, p. 13, lines 15-21).  
 
            Dr. Verdeck testified that on two occasions, February 27 and 
 
            July 31, 1989, claimant indicated that in his opinion, his 
 
            problems were related to the pop case incident.  
 
            Furthermore, claimant did not relate that he saw Dr. Yang 
 
            Ahn on August 20, 1987, for pain in his neck, right 
 
            shoulder, right hand and at that time was diagnosed with 
 
            having a C spine radiculopathy (Ex. D, pp. 24-25).  On May 
 
            11, 1990, Dr. Wirtz testified in a deposition that when he 
 
            saw claimant on February 7, 1990, he related that he had no 
 
            prior neck or shoulder problems until the fork lift incident 
 
            in May of 1988 (Ex. F, pp. 7-8).  Finally, Dr. Banks 
 
            testified that when he first saw the claimant in July 1988, 
 
            he related his symptoms to the pop case incident.  Later on, 
 
            he said he thought that his neck problems were caused by a 
 
            defective fork lift seat (Ex. E, pp. 19-20).
 
            
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
                 Claimant's inconsistent statements make it impossible 
 
            to support a recovery in this case.  When versions of the 
 
            injury change, the undersigned cannot determine which 
 
            version to believe.  The record contains numerous 
 
            inconsistencies and contradictions.  Claimant changed his 
 
            story repeatedly and vacillates even as to his injury date.  
 
            The record and other testimony convincingly refuted his 
 
            allegations.
 
            
 
                 Accordingly, based upon the total evidence in this 
 
            case, claimant has failed to sustain his burden of proof and 
 
            has not established a causal relationship between his 
 
            present complaints and a work-related injury on May 17, 
 
            1988.
 
            
 
                 The other issues are moot.
 
            
 
                                      ORDER
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 Claimant takes nothing from these proceedings.
 
            
 
                 Costs of this proceedings are taxed equally to claimant 
 
            and defendant.
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
                 Signed and filed this ____ day of January, 1991.
 
            
 
            
 
            
 
            
 
            
 
                                          ______________________________               
 
            JEAN M. INGRASSIA
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Thomas M. Wertz
 
            Attorney at Law
 
            4089 21st Ave SE
 
            Suite 114
 
            Cedar Rapids  IA  52404
 
            
 
            Mr. James E. Walsh, Jr.
 
            Mr. Bruce L. Gettman, Jr.
 
            Attorneys at Law
 
            River Plaza Bldg
 
            10 W 4th St
 
            P O Box 596
 
            Waterloo  IA  50704
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                           1402.30
 
                           Filed January 23, 1991
 
                           JEAN M. INGRASSIA
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            CARL DAVID,                   :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :         File No. 903104
 
            MID-CONTINENT BOTTLERS, INC., :
 
                                          :      A R B I T R A T I O N
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            AETNA CASUALTY & SURETY CO.,  :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
            
 
            1402.30
 
            Claimant failed to prove by a preponderance of the evidence 
 
            that he incurred a shoulder and neck injury arising out of 
 
            and in the course of his employment.