BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
	  ____________________________________________________________
 
					:
 
	  RONNIE SLECHTA,		:
 
					:
 
	       Claimant,		:  File Nos. 908692 and 908693
 
					:
 
	  vs.				:
 
					:  A R B I T R A T I O N
 
	  CLOW CORPORATION,		:
 
					:      D E C I S I O N
 
	       Employer,		:
 
	       Self-Insured,		:
 
	       Defendant.		:
 
	  ___________________________________________________________
 
 
 
			       STATEMENT OF THE CASE
 
 
 
	       This is a proceeding in arbitration brought by Ronnie
 
	  Slechta, claimant, against Clow Corporation, employer and self-
 
	  insured defendant, to recover benefits on account of alleged
 
	  injuries of May 2, 1987 and May 7, 1987.  This matter came on for
 
	  hearing before the undersigned deputy industrial commissioner on
 
	  July 23, 1990, in Des Moines, Iowa, and was considered fully
 
	  submitted at the close of the hearing.  Claimant was represented
 
	  by Fredd J. Haas.  Defendant was represented by Timothy Wegman.
 
	  The record in this case consists of the testimony of claimant,
 
	  Ronnie Slechta; Dean McAllister, private investigator; Tom
 
	  Holmberg, industrial relations manager; joint exhibits 1 and 2;
 
	  claimant's exhibits 1 through 6 inclusive; and defendant's
 
	  exhibits A through G.	 Exhibit G, a video, was placed in the
 
	  custody of defendant until all appellate periods expire.
 
	  Defendant presented a brief description of disputes at the time
 
	  of the hearing.  The deputy ordered a transcript of the hearing.
 
	  Both attorneys submitted excellent posthearing briefs.
 
 
 
				       ISSUES
 
 
 
	       Pursuant to the prehearing report and order submitted and
 
	  approved June 26, 1990, the following issues are presented for
 
	  resolution:
 
 
 
	       1.  Whether on May 2, 1987 and/or May 7, 1987, claimant
 
	  sustained injuries which arose out of and in the course of his
 
	  employment;
 
 
 
	       2.  Whether the injury is the cause of the disability on
 
	  which claimant now bases his claim;
 
 
 
	       3.  Whether claimant is entitled to healing period benefits;
 
	  SLECHTA V. CLOW CORP
 
	  Page 2
 
 
 
 
 
 
 
 
 
	       4.  The nature and extent of claimant's entitlement to
 
	  permanent partial disability benefits, if any;
 
 
 
	       5.  Whether claimant is entitled to Iowa Code section 85.27
 
	  medical expenses; and
 
 
 
	       6.  Whether claimant gave timely notice pursuant to Iowa
 
	  Code section 85.23
 
 
 
				  FINDINGS OF FACT
 
 
 
	       Claimant began working for defendant employer in October
 
	  1980 and has held a number jobs during his tenure there.  In
 
	  September 1986, claimant was working in the grinding room,
 
	  grinding castings, when he first noticed he was having trouble
 
	  with his hands and fingers getting numb and tingling.	 Claimant
 
	  sought no treatment for the problem and, after a few months, it
 
	  went away until February 1987.  At that time, claimant was
 
	  "driving the semi" and his arms, elbows, biceps, shoulder, and
 
	  hands began hurting.	Claimant contacted the company nurse and
 
	  filed an accident/injury report.  (See, claimant's exhibit 4).
 
 
 
	       Claimant was seen by Stephen M. Mineart, M.D., on February
 
	  5, 1987, with complaints of pain, "in the shoulders, elbows,
 
	  wrists and hands with stiffness; stated that such activities as
 
	  pouring a pot of water into a coffee pot would cause pain, cause
 
	  a grabbing sensation, and be unable to complete tipping the pot."
 
	  (ex. F, page 6, lines 11-16).	 Dr. Mineart diagnosed
 
	  fibromyositis (a term he described as including scarring from old
 
	  muscle or tendon injury) and arthritis from old injuries.
 
	  Claimant had sustained a gunshot wound to the left shoulder in
 
	  1979, a fractured right clavicle in a 1981 motorcycle accident; a
 
	  right shoulder injury when, during the handcuffing process, his
 
	  right arm was forced behind his back causing right shoulder
 
	  problems; and a broken left wrist in 1974.  Dr. Mineart tested
 
	  claimant for rheumatoid arthritis, but ruled that out as a
 
	  diagnosis when the tests came back negative.
 
 
 
	       On February 10, 1987, Dr. Mineart returned claimant to work
 
	  under restrictions of no heavy lifting, pushing and pulling for
 
	  two weeks with a final diagnosis of tendonitis and chronic
 
	  fibromyositis due to old injuries.  Dr. Mineart explained that
 
	  although it would be his usual practice to inquire about an
 
	  employee's work activity, he was not familiar with claimant's
 
	  employment with defendant employer.
 
 
 
	       Claimant was referred to Jack Brindley, M.D., board
 
	  certified orthopedic surgeon, on February 23, 1987, who
 
	  prescribed a splint.	Claimant was taken off work for a period of
 
	  time and returned to work April 8, 1987, working until May 2,
 
	  1987, when he was:
 
 
 
	  SLECHTA V. CLOW CORP
 
	  Page 3
 
 
 
 
 
 
 
 
 
	       A.  ...cleaning some castings in one machine; and, like
 
	       I said earlier, they wouldn't come off the line right
 
	       so I had to reach up and pull on them.	And then there
 
	       was a lip where it -- on the line right at the end of
 
	       it where you slide them onto the pallet, and you have
 
	       to kind of lift up and pull so you can get the casting
 
	       over the lip.
 
 
 
	       Q.  And what happened when you did that?
 
 
 
	       A.  I got a -- There was a popping in my neck and the
 
	       pain shot down my shoulders.
 
 
 
	  (transcript page 50, lines 19-25 and page 51, lines 1-2)
 
 
 
	       Claimant was seen at the Mahaska County Hospital and
 
	  remained off work until May 5, 1987, although he described
 
	  continued problems with his shoulder, arms and hands.
 
 
 
	       Claimant went out on strike with other employees on May 7,
 
	  1987, and continued to treat with Dr. Brindley, who eventually
 
	  suggested he be seen at the Mayo Clinic.  After returning from
 
	  the October visit at the Mayo Clinic, claimant continued to treat
 
	  with Dr. Brindley in 1988, had no treatment in 1989 and last saw
 
	  Dr. Marc Hines for his problems on March 1, 1989, with pain in
 
	  the inner aspect of his elbows and burning in the left triceps
 
	  and in the posterior osseons insertional area.
 
 
 
	       Claimant never returned to work with employer although he
 
	  participated, at times, on strike duty.  On or about June 3,
 
	  1987, claimant began working for Jordan Construction doing
 
	  carpenter work and finishing concrete.  Claimant did not believe
 
	  this was heavy work.	Claimant last worked for Jordan
 
	  Construction in July of 1987 and asserted he quit because, "I
 
	  just -- The guys -- The guys that I rode with come by one
 
	  morning, and I just told them I couldn't do it no more, I wasn't
 
	  going anymore.  That was it." (tr. p. 59, lines 16-18).  Claimant
 
	  had not complained of any problems to his supervisors at Jordan
 
	  Construction and asserted he did not inform the company of his
 
	  reasons for leaving.	Glen Jordan, vice-president of Jordan
 
	  Construction, described claimant's duties as:
 
 
 
	       A.  ...he finished concrete and shoveled concrete,
 
	       carried reinforcing steel, applied it in place, set
 
	       forms.  Just more or less a common laborer.
 
 
 
	       Q.  Did this work entail heavy lifting?
 
 
 
	       A.  Yes.
 
 
 
	  (ex. C, p. 4, lines 19-24)
 
 
 
	  SLECHTA V. CLOW CORP
 
	  Page 4
 
 
 
 
 
 
 
 
 
	       Jordan also described claimant as a dependable, good worker,
 
	  who left because:
 
 
 
	       A.  The reason he told me that he left, he was going to
 
	       go back on the picket line there at that manufacturing
 
	       company where he worked.	 They were having labor
 
	       problems then, so he was going back on the picket line.
 
 
 
	       Q.  Did Mr. Slechta ever state to you that the reason
 
	       for him leaving Glen Jordan Construction Company was
 
	       that he was experiencing pain, and he shouldn't have
 
	       been there?  Do you recall that?
 
 
 
	       A.  No.	I don't think he ever said it.
 
 
 
	  (exhibit C, page 8, lines 10-20)
 
 
 
	       Claimant has also been employed in self-employment and
 
	  described having built two porches (decks) and removing metal
 
	  (gold) from plastic telephone cards using propane torches and
 
	  nitric acid.	Claimant explained being able to "get through" the
 
	  work he has to perform, but afterwards it may take two or three
 
	  days of total rest before he can do anything again.
 
 
 
	       Claimant acknowledged his left arm has gotten better since
 
	  the original problem, but continues to experience problems with
 
	  his hands, in the middle of his shoulder blades, below the neck,
 
	  and a numbness in his fingers with more problems on the right.
 
 
 
	       Dr. Brindley first saw claimant on February 23, 1987, with
 
	  complaints,
 
 
 
	       A.   ...of pain in his wrist, elbow, shoulders, had
 
	       been hurting off and on for some time, but had been
 
	       worse in the last month.	 He said that at some times he
 
	       did have tingling into his hands, but when I saw him he
 
	       wasn't having any tingling.  He said that when he had
 
	       this pain he would have so much pain that he wasn't
 
	       able to grab something out of his pocket, such as a
 
	       cigarette.  Said that one arm was as bad as the other.
 
 
 
	       Patient had had a previous gunshot wound in his left
 
	       shoulder and had had a previous fracture of the left
 
	       wrist, and also a fracture of the right shoulder area.
 
 
 
	  (Exhibit A, page 5, lines 19-25; page 6, lines 1-7)
 
 
 
	       Tinel's sign was negative over the wrist, but Dr. Brindley
 
	  found some tingling over the olecranon groove (elbow).  Nerve
 
	  conduction studies were negative and claimant was found to have
 
	  good range of motion of the neck with no loss of strength.  Dr.
 
 
 
	  SLECHTA V. CLOW CORP
 
	  Page 5
 
 
 
 
 
 
 
 
 
	  Brindley explained he ordered the tests because, "his symptoms
 
	  were very vague.  This fellow is a real nervous guy.	And his
 
	  symptoms were quite vague." (ex. A, p. 7, lines 17-19).
 
 
 
	       Claimant continued to be symptomatic when Dr. Brindley saw
 
	  him on March 27, 1987.  In his report of that day, Dr. Brindley
 
	  stated he was unsure of his diagnosis, but would continue
 
	  physical therapy since it appeared to be helping.  On April 3,
 
	  1987, claimant reported he was having pain that went down both
 
	  arms and Dr. Brindley referred claimant to the University of Iowa
 
	  Hospitals and Clinics.
 
 
 
	       Claimant was seen on April 20, 1987, by John C. Godersky,
 
	  M.D., Assistant Professor of Neurosurgery at the University of
 
	  Iowa Hospitals and Clinics.  Dr. Godersky was unable to explain
 
	  or diagnose claimant's problems.
 
 
 
	       When Dr. Brindley next saw claimant on April 27, claimant
 
	  expressed his dissatisfaction with his visit to Iowa City.  Dr.
 
	  Brindley was also at a loss to explain claimant's symptoms and
 
	  decided to refer claimant to the Mayo Clinic.
 
 
 
	       Claimant was seen by Robert G. Siekert, M.D., of the Mayo
 
	  Clinic, on October 13 through 16, 1987.  Neurological and
 
	  orthopedic examinations were conducted and were found to be
 
	  normal.  Dr. Siekert reported that the exact pathophysiologic
 
	  basis underlying claimant's pain syndrome was not apparent.
 
 
 
	       Dr. Brindley saw claimant again and reported (Brackets
 
	  appear where the exhibit was illegible.):
 
 
 
		  Patient wasn't very satisfied with his visit to Iowa
 
	       City, they didn't [   ] [v]ery many answers for him,
 
	       still has the pain in his arm.  Hurts him to pro-[ ]
 
	       [h]is forearm, this will hurt down into the forearm
 
	       muscles, it hurts him to [e]xtend his fingers.  This
 
	       sounds like somewhat of a shock like pain so you [  ]
 
	       if it is not nerve impingement.	I took x-rays of the
 
	       elbow and maybe [  ] is a little spurring off the
 
	       coronoid anteriorly.  He has had an old fracture [  ]
 
	       forearm and has some dorsal angulation of the distal
 
	       fragment that doesn't [	] to be that sereveto [sic]
 
	       cause problems.	I am really at a loss for the cause
 
	       [  ] symptoms.  He also was complaining today that his
 
	       left knee has bothered him [for] [a]bout two weeeks
 
	       [sic] and hurt[s] along the medial joint line.  It
 
	       hurts him to squat.  [	]ys he did bump this a couple
 
	       weeks ago while at work, it is possible that [	]ght
 
	       have a meniscus injury.	Because he continues to have
 
	       problems with the [  ] arm I think we will refer him to
 
 
 
	  SLECHTA V. CLOW CORP
 
	  Page 6
 
 
 
 
 
 
 
 
 
	       the Mayo Clinic as I really don't ahve [sic] any [   ]
 
	       answers for him or suggestions.
 
 
 
	  (Joint Exhibit 1, page 7).
 
 
 
	       On January 24, 1989, Dr. Brindley saw claimant and described
 
	  claimant as having symptoms which were still very vague and, in
 
	  addition to problems previously described, he had aching and pain
 
	  in the posterior neck which was a new symptoms.  Dr. Brindley was
 
	  still at a loss for a diagnosis and referred claimant to Dr. Marc
 
	  Hines.
 
 
 
	       Dr. Hines concluded that claimant "may have some mild
 
	  cervical radiculopathy" which "may or may not be contributory to
 
	  his symptoms, it is difficult to state." (ex. 6).  Dr. Hines
 
	  found claimant to have a somewhat confusing history, but found an
 
	  EMG to be more abnormal than previously described.  Dr. Hines
 
	  opines claimant "may have some mild T.O.S.  This rather difficult
 
	  diagnosis could explain some of the patient's symptomology and
 
	  some of the milder changes seen on the EMG at this time."  (ex.
 
	  6).  Although Dr. Hines recommended an MRI be done, Dr. Brindley
 
	  did not see claimant after he was seen by Dr. Hines.
 
 
 
	       On September 16, 1988, Dr. Brindley opined:
 
 
 
		  I think it is possible that Mr. Slechta's myofascial
 
	       pain in his left is due to an overuse syndrome at the
 
	       Clow Corporation.
 
 
 
		  I cannot say that there is a reasonable degree of
 
	       medical probability that this is the cause.
 
 
 
	       ...
 
 
 
		  I do not think it would be wise for the patient to
 
	       do repetitive type work with his arms or to do heavy
 
	       lifting over twenty five pounds.	 I feel that these
 
	       restrictions probably should be permanent in nature.
 
 
 
		  I feel that the patient's loss of physical function
 
	       to both arms would be rated at 5% for the left arm and
 
	       5% for the right arm.
 
 
 
	  (Joint Exhibit 1, page 15)
 
 
 
	       In his deposition, Dr. Brindley discussed the impairment
 
	  rating stating it was given:
 
 
 
	       A.  Mainly for pain, just pain, and he just did not
 
	       seem to be getting well.	 I guess that I for a long
 
 
 
	  SLECHTA V. CLOW CORP
 
	  Page 7
 
 
 
 
 
 
 
 
 
	       time believed this patient was really having real
 
	       symptoms, although I was a little bit skeptical of him.
 
	       But he came in, kind of like I said, was very nervous
 
	       and very much in earnest.  And even though his symptoms
 
	       were vague, I thought there might be some strange
 
	       syndrome going on here.	So I guess I felt that he did
 
	       have a problem that was likely work related, and that's
 
	       why.  But I never did make a definite diagnosis.
 
 
 
	       Q.  Now, the five percent to the left arm, would that
 
	       be just for the pain that he was reporting in the
 
	       forearm elbow area?
 
 
 
	       A.  Yes.	 And probably -- yes.
 
 
 
	       Q.  What about the five percent impairment to the right
 
	       arm?  What is that based on?
 
 
 
	       A.  Well, I don't know if that's based just on that
 
	       subacromial impingement syndrome.  When I initially saw
 
	       this patient he was complaining of very similar
 
	       symptoms in both arms, very -- what he complained of in
 
	       his left arm was very similar to what he had in his
 
	       right arm.
 
 
 
	       Q.  Would the five percent impairment to the right side
 
	       include some of the problems and symptoms he was
 
	       reporting below shoulder level?
 
 
 
	       A.  Yes.
 
 
 
	       Q.  I want to ask you about that, because according to
 
	       your office notes, especially 9-28-88, he indicated
 
	       that the right shoulder was doing very well, isn't
 
	       having any problems with that.  And I was wondering
 
	       based upon your office note of 9-28-88 whether the five
 
	       percent rating which you had given several days before
 
	       that time would include anything for the right
 
	       shoulder?  Do you understand my question?
 
 
 
	       A.  I guess if I had seen him before I made this
 
	       statement I might not have said that.
 
 
 
	       Q.  Might not have said the five percent?
 
 
 
	       A.  Yes.
 
 
 
	       Q.  As of your last examination of the patient on
 
	       January 24, 1989 then, did you feel he had any
 
	       permanent impairment with regard to his right shoulder?
 
 
 
	  SLECHTA V. CLOW CORP
 
	  Page 8
 
 
 
 
 
 
 
 
 
	       A.  No.
 
 
 
	       Q.  Would he still be given a five percent impairment
 
	       for the right side then in your opinion or would that
 
	       be reduced?
 
 
 
	       A.  No, that would be reduced.
 
 
 
	       Q.  Would he have any impairment?
 
 
 
	       A.  That's hard to say.	I guess my notes are fairly
 
	       vague.  I know that he did complain, just on recall,
 
	       that he complained of both arms hurting him.  I guess
 
	       he always hurt more on the left.
 
 
 
	  (Exhibit A, page 36, lines 5-25; p. 37, lines 1-25; p. 38, lines
 
	  1-8).
 
 
 
	       Dr. Brindley restricted claimant from doing repetitive work
 
	  with his arms and heavy lifting over 25 pounds.  As Dr. Brindley
 
	  opined repetitive work "probably had brought on claimant's
 
	  symptoms."  Dr. Brindley based these restrictions on subjective
 
	  findings stating:
 
 
 
	       A.  ...I have to admit that I really don't know -- I
 
	       thought I knew this patient but I'm not sure how --
 
	       what he was doing when he wasn't here in my office, you
 
	       know, giving me his complaints.	So I really -- I don't
 
	       really know the patient.
 
 
 
	       Q.  I guess I'm a little confused by that statement.
 
 
 
	       A.  Well, I guess when I found out he was in trouble,
 
	       that kind of swayed my opinion a little bit that, you
 
	       know, this patient my have kind of a sociopathic type
 
	       of personality and that he may have been using that
 
	       when he was dealing with me.
 
 
 
	       Q.  Do you know what kind of trouble he was involved
 
	       in?
 
 
 
	       A.  I think it was some kind of drug problem.  I think
 
	       he was selling drugs.
 
 
 
	       Q.  And you are not saying that influenced your medical
 
	       opinions here today, are you?
 
 
 
	       A.  I guess that -- to be honest with you, I'd say that
 
	       it does make me question what -- everything was always
 
	       vague anyway, and the patient -- on hindsight the
 
	       patient was always so nervous, acted peculiar.  I
 
 
 
	  SLECHTA V. CLOW CORP
 
	  Page 9
 
 
 
 
 
 
 
 
 
	       wondered if maybe he wasn't on drugs or something when
 
	       I saw him.  Maybe the drugs were causing some of the
 
	       symptoms.  I don't know.
 
 
 
	  (Exhibit A, p. 39, lines 5-25; p. 40, lines 1-5)
 
 
 
	       On December 14, 1988, Dr. Brindley explained:
 
 
 
	       Please refer to my letter of September 16, 1988.	 In
 
	       the second paragraph I said that I cannot say that
 
	       there is a reasonable degree of medical probability
 
	       that this is the cause.	On thinking about this more I
 
	       do think that there is a greater than 50% chance that
 
	       Mr. Slechta's myofascial pain is secondary to the
 
	       accumulated effects of his work.
 
 
 
	  (Joint Exhibit 1, page 16)
 
 
 
	       Dr. Brindley testified, "I say it is hard to say the
 
	  symptoms are work related at this point.  We don't have a clear-
 
	  cut diagnosis, but I do think that more than likely his symptoms
 
	  are related to his work." (ex. A, p. 47, lines 17-20); but also
 
	  stated:
 
 
 
		  I guess I did say that, that there was a greater
 
	       than 50 percent chance that Mr. Slechta's myofascial
 
	       pain is secondary to the accumulated effects of his
 
	       work.  I do think that it's possible that his symptoms
 
	       are secondary to his work, although at this point I
 
	       guess I'd have to say that I think -- I'd have to say
 
	       it's a possibility.  I guess with  -- in reviewing all
 
	       of the material here and then just kind of always
 
	       having a question about this patient when I saw him,
 
	       wondering what was going on with this guy.  I've never
 
	       seen anybody as nervous as this person.	I guess I'd
 
	       have to say I'd say it's a possibility.
 
 
 
	  (Exhibit A, page 56, lines 17-25; page 57, lines 1-4)
 
 
 
	       Dr. Brindley candidly admitted his opinion was effected by
 
	  the knowledge that claimant had some drug-related problems.
 
 
 
	       Q.  Now, you tell me what effect his problems that you
 
	       related with regard to drugs now has on your opinion?
 
 
 
	       A.  I kind of -- this patient really never had any
 
	       objective findings.  I always thought his symptoms were
 
	       quite vague.  He'd come in one time and complain of one
 
	       thing, and then he wouldn't be consistent the next
 
	       time.
 
 
 
	  SLECHTA V. CLOW CORP
 
	  Page 10
 
 
 
 
 
 
 
 
 
		  I thought that there was times that he showed up,
 
	       the reasons he was showing up was because he was
 
	       concerned about his work situation, and I sometimes
 
	       felt that possibly he wasn't just showing up for
 
	       treatment, but just to possibly get his workman's comp.
 
 
 
		  I kind of always -- I was a little skeptical of this
 
	       patient, I guess.  Then I found out he was in trouble,
 
	       I guess that led me to question the reality of his
 
	       symptoms.
 
 
 
	  (Exhibit A, page 57, lines 8-22)
 
 
 
	       At his counsel's request, claimant was evaluated by Jerome
 
	  G. Bashara, M.D., on March 2, 1990.  Dr. Bashara opined:
 
 
 
	       DIAGNOSIS:  Chronic rotator cuff tendinitis of both
 
	       shoulders with some mild residual loss of motion, felt
 
	       to be directly related to his work at his Clow
 
	       Corporation from a repetitive overuse of both shoulders
 
	       and upper extremities for a period of time.
 
 
 
	       RATING:	I would give the patient a 6%
 
	       permanent/partial physical impairment of each upper
 
	       extremity related to his shoulder injuries.
 
 
 
	       RECOMMEND:  I would recommend that he not participate
 
	       in any activity which involved the heavy repetitive use
 
	       of the upper extremities at or above shoulder level.
 
	       Other than the restrictions above, I do not feel that
 
	       any other medical treatment is necessary at the present
 
	       time.
 
 
 
	  (Joint Exhibit 1, pages 3-4, tab 3)
 
 
 
	       Claimant was examined by John H. Kelley, M.D., on April 12,
 
	  1990.	 Dr. Kelley reported:
 
 
 
	       X-RAYS:	I reviewed his x-rays and they are essentially
 
	       within normal limits.
 
 
 
	       IMPRESSIONS:  I am unable to make definite orthopaedic
 
	       or neurologic examination in this case.	He seems to
 
	       have some findings in the right wrist of a mild carpal
 
	       tunnel syndrome.	 He also has some findings of the
 
	       right elbow of a minor degree of ulnar nerve
 
	       neuropathy.  He was examined by several different
 
	       specialist[s] in the early stages of this medical
 
	       problem and from what I could postulate is that he may
 
	       have had a minor degree of neuropathy, secondary to
 
	       nerve impingement.  He is a very muscular man and this
 
 
 
	  SLECHTA V. CLOW CORP
 
	  Page 11
 
 
 
 
 
 
 
 
 
	       might be a factor in causing the myopathy.  I would
 
	       defer to Dr. Socarras for this diagnosis.
 
 
 
	  (joint exhibit 1, pages 4-5, tab 2)
 
 
 
	       Dr. A. Socarras reported that: "Conduction velocity studies
 
	  of the ulnar nerves are normal.  Rt and left median nerve motor
 
	  conduction studies are normal.  Rt. median median nerve distal
 
	  sensory latency is relatively prolonged.  This finding may be
 
	  compatible with a mild carpal tunnel syndrome on the right.
 
	  Clinical correlation is recommended." (jt. ex. 1, p. 1, tab 9).
 
 
 
	       Defendant asserts claimant failed to provide notice of the
 
	  alleged injury of May 7, 1987.  While the injury date is
 
	  coincidental to the date of strike at Clow Corporation, defendant
 
	  failed to provide any evidence in support of this affirmative
 
	  defense.  Claimant testified he advised defendant of his problems
 
	  and the record would show defendant employer received medical
 
	  reports from claimant's treating physicians.	Therefore, the
 
	  affirmative defense must fail.
 
 
 
			   CONCLUSIONS OF LAW AND ANALYSIS
 
 
 
	       Claimant alleges, in this case, two separate injuries: A
 
	  traumatic injury to his upper back and neck occurring on May 2,
 
	  1987, when he was moving casting, and a cumulative injury to his
 
	  body as a whole occurring on May 7, 1987, the day claimant left
 
	  employment as a result of the strike, never to return to work
 
	  there.  Of first concern, then, is whether claimant has
 
	  established the injury and/or injuries arising out of and in the
 
	  course of his employment.
 
 
 
	       The claimant has the burden of proving by a preponderance of
 
	  the evidence that the alleged injury actually occurred and that
 
	  it arose out of and in the course of employment.  McDowell v.
 
	  Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v.
 
	  Cent. Tel. Co., 261 Iowa 352, 154 N.W.2d 128 (1967).	The words
 
	  "arising out of" refer to the cause or source of the injury.	The
 
	  words "in the course of" refer to the time, place and
 
	  circumstances of the injury.	Sheerin v. Holin Co., 380 N.W.2d
 
	  415 (Iowa 1986); McClure v. Union County, 188 N.W.2d 283 (Iowa
 
	  1971).
 
 
 
	       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
 
 
 
	  SLECHTA V. CLOW CORP
 
	  Page 12
 
 
 
 
 
 
 
 
 
	  1980); Holmes v. Bruce Motor Freight, Inc., 215 N.W.2d 296 (Iowa
 
	  1974).
 
 
 
	       The claimant has the burden of proving by a preponderance of
 
	  the evidence that the injuries of May 2, 1987 and May 7, 1987,
 
	  are 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).
 
 
 
	       Expert medical evidence must be considered with all other
 
	  evidence introduced bearing on the causal connection.	 Burt, 247
 
	  Iowa 691, 73 N.W.2d 732.  The opinion of experts need not be
 
	  couched in definite, positive or unequivocal language.  Sondag v.
 
	  Ferris Hardware, 220 N.W.2d 903 (Iowa 1974).	However, the expert
 
	  opinion may be accepted or rejected, in whole or in part, by the
 
	  trier of fact.  Id., at 907.	Further, the weight to be given to
 
	  such an opinion is for the finder of fact, and that may be
 
	  affected by the completeness of the premise given the expert and
 
	  other surrounding circumstances.  Bodish, 257 Iowa 516, 133
 
	  N.W.2d 867.  See also Musselman, 261 Iowa 352, 154 N.W.2d 128
 
	  (1967).
 
 
 
	       There is no evidence to dispute claimant's assertion that,
 
	  while working on May 2, 1987, he felt a "pop" in his neck.
 
	  Whether this event rises to the level of an injury caused by his
 
	  employment is, however, a separate issue.  That is, merely
 
	  because claimant has an incident at work, does not necessitate a
 
	  conclusion that a compensable injury has occurred.  Likewise,
 
	  there is no evidence in the record to refute claimant began to
 
	  experience symptoms in his extremities while employed with
 
	  defendant employer.  As above, this fact does not necessarily
 
	  give rise to a compensable injury.
 
 
 
	       In order to answer these issues, attention must first turn
 
	  to the medical evidence presented.  As cited above, the question
 
	  of whether the work caused the injury is within the domain of
 
	  expert testimony.  Claimant has been treated and/or evaluated by
 
	  no less than six doctors.
 
 
 
	       Dr. Mineart, who initially treated claimant, diagnosed
 
	  chronic fibromyositis and tendonitis.	 He was unable to render
 
	  any opinion on causal connection since he was not familiar with
 
	  claimant's employment situation.
 
 
 
	  SLECHTA V. CLOW CORP
 
	  Page 13
 
 
 
 
 
 
 
 
 
	       Dr. Godersky of the University of Iowa was unable to explain
 
	  or diagnose claimant's problems.
 
 
 
	       Dr. Siekert of the Mayo Clinic could not identify any
 
	  pathophysiologic basis for claimant's symptoms after a neurologic
 
	  and orthopedic examination.
 
 
 
	       Dr. Kelley found what "seemed" to be mild carpal tunnel
 
	  syndrome in the right wrist.	However, this was almost three
 
	  years after claimant's alleged injury and after claimant had
 
	  engaged in other employment.	Dr. Kelley phrased his opinions in
 
	  very equivocal language.  His impression was left as being unable
 
	  to render any opinion in this case.
 
 
 
	       Dr. Bashara does find a causal connection.  However, Dr.
 
	  Bashara saw claimant on only one occasion and based his opinion
 
	  only on the objective findings of "mild" loss of motion.  Again,
 
	  this examination was done almost three years after claimant's
 
	  alleged injury date.
 
 
 
	       Dr. Brindley saw and treated claimant for the longest period
 
	  of time.  A careful review of Dr. Brindley's opinions on causal
 
	  connection shows he has wavered on the issue throughout the
 
	  course of the treatment.
 
 
 
	       On April 7, 1987, as throughout his treatment of claimant,
 
	  Dr. Brindley could not identify the cause of claimant's symptoms,
 
	  but thought it more than likely they were work related even
 
	  without a clear diagnosis.
 
 
 
	       In September 1988, Dr. Brindley thought it "possible" that
 
	  claimant's pain was due to overuse at Clow Corporation, but could
 
	  not say that there was a reasonable degree of medical probability
 
	  that this was the cause.
 
 
 
	       Dr. Brindley clarified that opinion in December 1988 by
 
	  stating that there is a greater than 50 percent chance claimant's
 
	  pain was secondary to the accumulated effects of his work.  (Dr.
 
	  Brindley did not identify what work.)
 
 
 
	       In his testimony, Dr. Brindley candidly admitted his
 
	  inability to treat claimant effectively.  Dr. Brindley described
 
	  claimant as presenting "vague" symptoms that would change between
 
	  visits and "jump around."  Dr. Brindley wavered between an
 
	  opinion that the repetitive work "probably" caused the symptoms
 
	  to his final opinion that:
 
 
 
	       ...although at this point I guess I'd have to say that
 
	       I think -- I'd have to say it's a possibility.  I guess
 
	       with  -- in reviewing all of the material here and then
 
	       just kind of always having a question about this
 
 
 
	  SLECHTA V. CLOW CORP
 
	  Page 14
 
 
 
 
 
 
 
 
 
	       patient when I saw him, wondering what was going on
 
	       with this guy.  I've never seen anybody as nervous as
 
	       this person.  I guess I'd have to say I'd say it's a
 
	       possibility.
 
 
 
	  (Exhibit A, page 56, lines 22-25; page 57, lines 1-4)
 
 
 
	       As cited above, a possibility of causal connection is
 
	  insufficient.	 The undersigned concludes the most informed
 
	  medical opinion in this case comes from Dr. Brindley who saw and
 
	  treated claimant over an extensive period of time.  Dr.
 
	  Brindley's opinion fails to establish a causal connection between
 
	  claimant's problems and his employment.   The greater weight of
 
	  medical evidence fails to show claimant sustained an injury which
 
	  arose out of and in the course of employment on either May 2 or
 
	  May 7, 1987.	Therefore, claimant shall take nothing as a result
 
	  of these proceedings.
 
 
 
					ORDER
 
 
 
	       THEREFORE, IT IS ORDERED:
 
 
 
	       Claimant shall take nothing as a result of these
 
	  proceedings.
 
 
 
	       Costs are assessed against defendant pursuant to rule 343
 
	  IAC 4.33, including the cost of the attendance of the court
 
	  reporter at hearing and the cost of the transcript, Iowa Code
 
	  section 86.19(1).
 
 
 
	       Signed and filed this ____ day of December, 1991.
 
 
 
 
 
 
 
 
 
					______________________________
 
					WALTER R. McMANUS, JR.
 
					DEPUTY INDUSTRIAL COMMISSIONER
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
	  Copies to:
 
 
 
	  Mr. Fredd J. Haas
 
	  Attorney at Law
 
	  5001 SW 9th St.
 
 
 
	  SLECHTA V. CLOW CORP
 
	  Page 15
 
 
 
 
 
 
 
 
 
	  Des Moines, Iowa  50315
 
 
 
	  Mr. Paul Thune
 
	  Mr. Timothy W. Wegman
 
	  Attorneys at Law
 
	  300 Fleming Bldg
 
	  218 6th Ave.
 
	  PO Box 9130
 
	  Des Moines,  Iowa  50306-9130
 
 
 
 
 
 
 
 
            
 
            
 
            
 
            
 
            
 
                                          51100 51401 51402.20 51402.30 
 
                                          51402.40 51402.60 52206 52209 
 
                                          52401
 
                                          Filed December 30, 1991
 
                                          Walter R. McManus, Jr.
 
            
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            RONNIE SLECHTA,               :
 
                                          :
 
                 Claimant,                :  File Nos. 908692 and 908693
 
                                          :
 
            vs.                           :
 
                                          :  A R B I T R A T I O N
 
            CLOW CORPORATION,             :
 
                                          :      D E C I S I O N
 
                 Employer,                :    
 
                 Self-Insured,            :      
 
                 Defendant.               :
 
            ___________________________________________________________
 
            
 
            51100 51401 51402.20 51402.30 51402.40 51402.60 52206 52209
 
            Claimant failed to prove injury arising out of and in the 
 
            course of employment either as a traumatic injury, a 
 
            cumulative injury or an aggravation of a preexisting 
 
            condition.  Six doctors examined claimant and reported.  
 
            Four of them could not diagnose what was wrong with 
 
            claimant.  The treating orthopedic physician wavered through 
 
            the evidence from him and finally concluded that the work 
 
            only "possibly" was the cause of claimant's complaints.  
 
            Claimant's one time evaluator found causal connection, but 
 
            gave no explanation that would support his opinion.
 
            
 
            52401
 
            Defendant alleged lack of notice, but presented no evidence 
 
            of it.  The notice defense was not proven. 
 
            
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         ALAN LILLIBRIDGE,
 
         
 
              Claimant,
 
         
 
         VS.
 
                                               File No. 908697
 
         DAKOTA PORK INDUSTRIES,
 
                                              A R B I T R A T I 0 N
 
              Employer,
 
                                               D E C I S I 0 N 
 
         and
 
         
 
         CNA,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              This is a proceeding in arbitration wherein Alan 
 
         Lillibridge seeks compensation for healing period, permanent 
 
         partial disability and payment of medical expenses based upon an 
 
         alleged injury which allegedly occurred on or about February 6, 
 
         1989.  The case was heard and fully submitted at Sioux City, Iowa 
 
         on January 11, 1990.  The record in the proceeding consists of 
 
         jointly offered exhibits 1 through 14 and testimony from Shirley 
 
         Bauer.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              Alan Lillibridge commenced employment at Dakota Pork 
 
         Industries on February 6, 1989 as shown in exhibit 9.  He worked 
 
         until February 15, 1989 on which day he did not show up or call 
 
         in.  He worked again on February 20, 1989 and has not since 
 
         showed up for work or called in other than to quit on March 6, 
 
         1989.
 
         
 
              On February 15, 1989, Lillibridge sought treatment from 
 
         Michael A. Jennings, M.D., who was claimant's family doctor and 
 
         also one of the authorized company physicians for Dakota Pork 
 
         Industries.  Dr. Jennings noted that claimant had carpal tunnel 
 
         syndrome of the right hand and authorized claimant to resume 
 
         working with a restriction against repetitive motion of the right 
 
         wrist.  Dr. Jennings indicated that the injury was related to 
 
         claimant's repetitive work (exhibit 1).  After leaving Dakota 
 
         Pork
 
         
 
         
 
         
 
         LILLIBRIDGE v. DAKOTA PORK INDUSTRIES 
 
         Page 2
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         Industries, Lillibridge obtained employment in Council Bluffs, 
 
         Iowa where he worked cleaning cars for Tim O'Neill Chevrolet, 
 
         Inc.  The employment started on February 28, 1989 and ran through 
 
         May 11, 1989 (exhibit 10).
 
         
 
              On February 23, 1989, claimant sought treatment for the 
 
         carpal tunnel condition at Cogley Medical Associates, P.C., in 
 
         Council Bluffs, Iowa.  EMG tests were conducted on March 25, 1989 
 
         at which time it was indicated that claimant had bilateral carpal 
 
         tunnel syndrome.
 
         
 
              Michael K. Zlomke, M.D., reported on July 11, 1989 that 
 
         claimant has bilateral carpal tunnel syndrome which, according to 
 
         the history provided, was related to the work that claimant 
 
         performed at Dakota Pork.  Surgery was recommended (exhibit 4).  
 
         Claimant subsequently had surgery performed on the right hand on 
 
         September 12, 1989 (exhibits 6 and 14).
 
         
 
              Claimant did not appear to testify at the hearing.  There 
 
         is no evidence in the record regarding the exact activities which 
 
         he performed when employed at Dakota Pork Industries.  According 
 
         to Shirley Bauer, the plant nurse, the pre-employment physical 
 
         which was performed would not have disclosed a carpal tunnel 
 
         syndrome condition if it had been present at the time claimant 
 
         was hired.
 
         
 
              Those who work in packinghouses appear to have a relatively 
 
         high incidence of carpal tunnel syndrome.  The condition is one 
 
         which, however, does not typically develop in a period of time as 
 
         short as the time that Lillibridge was employed at Dakota Pork 
 
         Industries.  From the medical records in evidence, it cannot be 
 
         determined whether or not any of the physicians who saw 
 
         Lillibridge were aware that he had held the job for only 
 
         approximately a week.  The record is devoid of claimant's work 
 
         history prior to his employment at Dakota Pork Industries.  It is 
 
         certain, however, that if a person had preexisting carpal tunnel 
 
         syndrome, work which required use of the hands would certainly 
 
         aggravate the symptoms as occurred when claimant was employed at 
 
         Tim O'Neill Chevrolet.
 
         
 
              It is therefore found that the evidence fails to show it to 
 
         be probable that the work Alan Lillibridge performed at Dakota 
 
         Pork Industries in February 1989 was a substantial factor in 
 
         producing the bilateral carpal tunnel,syndrome which he 
 
         developed.  The record fails to show it to be probable that the 
 
         employment at Dakota Pork Industries substantially aggravated 
 
         what was probably a preexisting condition other than temporarily.  
 
         The evidence fails to show it to be probable that any temporary 
 
         aggravation was of
 
         
 
         
 
         
 
         LILLIBRIDGE v. DAKOTA PORK INDUSTRIES 
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         Page 3
 
         
 
         
 
         sufficient magnitude to be disabling.  Dr. Jennings did not take 
 
         claimant off work, but allowed him to return to work with 
 
         restrictions.  Work complying with the restrictions was 
 
         apparently available as claimant did return to work for one day 
 
         on February 20, 1989.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              Claimant has the burden of proving by a preponderance of 
 
         the evidence that he received an injury on or about February 6, 
 
         1989 which arose out of and in the course of his employment.  
 
         McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); 
 
         Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 
 
         (1967).
 
         
 
              The words "arising out of" refer to the cause or source of 
 
         the injury.  McClure v. Union County, 188 N.W.2d 283, 287 (Iowa 
 
         1971); Crowe v. DeSoto Consol. Sch.  Dist., 246 Iowa 402, 68 
 
         N.W.2d 63 (1955).  The "arising out of" requirement is satisfied 
 
         by showing a casual relationship between the employment and the 
 
         injury.  Sheerin v. Holin Co., 380 N.W.2d 415, 417 (Iowa 1986).
 
         
 
              An employee is not entitled to recover for the results of a 
 
         preexisting injury or disease but can recover for an aggravation 
 
         thereof which resulted in the disability found to exist.  Olson 
 
         v. Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963); 
 
         Yeager v. Firestone Tire & Rubber Co., 253 Iowa 369, 112 N.W.2d 
 
         299 (1961); Ziegler v. United States Gypsum Co., 252 Iowa 613, 
 
         106 N.W.2d 591 (1960).  See also Barz v. Oler, 257 Iowa 508, 133 
 
         N.W.2d 704 (1965); Almquist v. Shenandoah Nurseries, 218 Iowa 
 
         724, 254 N.W. 35 (1934).
 
         
 
              It has previously been found that the evidence has failed 
 
         to prove, by a preponderance of the evidence, that it is probable 
 
         that claimant's carpal tunnel syndrome was caused by the 
 
         employment at Dakota Pork or aggravated by that employment 
 
         sufficiently to cause it to be disabling.  The record shows 
 
         nothing more than an aggravation of the symptoms of what was most 
 
         likely a preexisting condition.  The record does not show the 
 
         employment at Dakota Pork to have in any manner changed the 
 
         nature of what was most likely a preexisting condition.
 
         
 
              It is therefore concluded that claimant is not entitled to 
 
         any recovery in this case.
 
         
 
         
 
         LILLIBRIDGE v. DAKOTA PORK INDUSTRIES
 
         Page 4
 
         
 
         
 
                                      ORDER
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              IT IS THEREFORE ORDERED that claimant take nothing from 
 
         this proceeding.
 
         
 
              IT IS FURTHER ORDERED that the costs of the action are 
 
         assessed against the claimant pursuant to Division of Industrial 
 
         Services Rule 343-4.33.
 
         
 
         
 
              Signed and filed this 25th day of June, 1990.
 
         
 
         
 
         
 
         
 
         
 
         
 
                                           MICHAEL G. TRIER
 
                                           DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Harry H. Smith
 
         Attorney at Law
 
         P.O. Box 1194
 
         Sioux City, Iowa  51102
 
         
 
         Mr. Michael P. Jacobs
 
         Attorney at Law
 
         300 Toy Bank Building
 
         Sioux City, Iowa 51101
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                                               5-1402.30, 5-1402.40
 
                                               Filed June 25, 1990
 
                                               MICHAEL G. TRIER
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         ALAN LILLIBRIDGE,
 
         
 
              Claimant,
 
         
 
         VS.
 
                                               File No. 908697
 
         DAKOTA PORK INDUSTRIES,
 
                                               A R B I T R A T I 0 N
 
              Employer,
 
                                               D E C I S I 0 N
 
         and
 
         
 
         CNA,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         5-1402.30, 5-1402.40
 
         
 
              Claimant, who failed to appear at hearing and testify, 
 
         failed to carry the burden of proving injury arising out of and 
 
         in the course of employment or any disability resulting from any 
 
         such injury.
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            DAVID L. FANK,                :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :         File No. 908778
 
                                          :
 
            MIDWEST WHEEL COMPANIES,      :      A R B I T R A T I O N
 
                                          :
 
                 Employer,                :         D E C I S I O N
 
                                          :
 
            and                           :
 
                                          :
 
            ALLIED GROUP INSURANCE,       :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 Claimant David L. Fank seeks benefits under the Iowa 
 
            Workers' Compensation Act upon his petition in arbitration 
 
            against his employer, Midwest Wheel Companies, and its 
 
            insurance carrier, Allied Group Insurance Company.  The 
 
            parties agree that he sustained a work injury attributable 
 
            to that employment on February 3, 1989.
 
            
 
                 The cause came on for hearing in Mason City, Iowa, on 
 
            January 21, 1992.  The record consists of joint exhibits 1 
 
            through 26, 28, 29, 31 and 33, claimant's exhibits 34 and 
 
            35, defendants' exhibits A, B and C, and the testimony of 
 
            claimant, David McGuire and Randy Conrad.
 
            
 
                                      issues
 
            
 
                 The parties have stipulated that claimant sustained an 
 
            injury arising out of and in the course of his employment 
 
            with Midwest Wheel Companies on February 3, 1989, and that 
 
            the injury caused temporary disability from February 3, 
 
            1989, through June 6, 1990.  The parties have further 
 
            stipulated to the rate of compensation, agree that all 
 
            requested medical benefits have been or will be paid by 
 
            defendants and that certain benefits have been voluntarily 
 
            paid prior to hearing.
 
            
 
                 Issues presented for resolution include:
 
            
 
                 1.  Whether the work injury caused permanent 
 
            disability; and, if so,
 
            
 
                 2.  The nature and extent thereof.
 
            
 
                                 findings of fact
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
                 The undersigned deputy industrial commissioner finds:
 
            
 
                 David Fank, 32 years of age at hearing, is a 1978 high 
 
            school graduate, but earned relatively low grades.  Post 
 
            high school, he took business courses at a local community 
 
            college for less than one quarter before quitting to accept 
 
            work.  He was not doing well academically at the time.
 
            
 
                 Before his community college efforts, claimant worked 
 
            in customer service and the shipping department for a large 
 
            manufacturing concern.  The work required lifting in the 
 
            40-60 pound range.  After leaving school, he worked for 
 
            approximately two years in warehouse, shipping and stocking 
 
            for another manufacturing concern.  Lifting requirements 
 
            were frequent, up to 60 or 80 pounds.  After this business 
 
            closed, claimant was unemployed for a time, but did some 
 
            intermittent cement finishing with an uncle.
 
            
 
                 Claimant next worked a temporary job for a few months 
 
            entering stock invoices into a computer data base.  His next 
 
            job, with Wellborn Industries, lasted approximately two 
 
            years.  This involved light work on an assembly line, 
 
            dipping control boards into an acid solution.  He next 
 
            worked for approximately one year behind the counter at a 
 
            gas station, also light work.
 
            
 
                 In December 1985, claimant took work with Midwest Wheel 
 
            Companies, part time at first, full time 4-6 months later.  
 
            He started in the warehouse, then drove a delivery van in 
 
            northern Iowa and Minnesota.  Both jobs required frequent 
 
            lifting and handling of heavy truck parts.
 
            
 
                 Extensive medical records reflect a history of varied 
 
            and relatively frequent health complaints, some of which 
 
            involved the lower back.  In July 1981, claimant reported 
 
            occasional pulling discomfort in the lower back with heavy 
 
            lifting.  In January 1983, he complained of lower back pain 
 
            over the last year following a fall, but with no radiation 
 
            of pain into the lower extremities.  Claimant sought 
 
            treatment on several more occasions in early 1983 and was 
 
            treated conservatively, including with two weeks of bed 
 
            rest.  Complaints continued into April and May, and again in 
 
            November 1983.  Back pain was again reported in May 1984 and 
 
            multiple lumbar spine x-rays were taken in May of that year, 
 
            read as normal.
 
            
 
                 Nonetheless, claimant continued to work without medical 
 
            restriction.
 
            
 
                 On February 3, 1989, claimant was helping in the 
 
            warehouse during inventory.  While sitting on the top shelf 
 
            of a parts rack stacking boxes, approximately six feet up, 
 
            the wooden shelf broke and he fell.  Claimant landed on his 
 
            right knee and head and believes he bumped his back against 
 
            the rack.  Many boxes of equipment also fell on him.
 
            
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
                 Mr. Fank was admitted to St. Joseph Mercy Hospital on 
 
            the same day with complaints of right knee pain, some low 
 
            back pain and a mild headache.  Lumbar spine films were 
 
            negative.  It was originally felt that he sustained a 
 
            nondisplaced interior fracture of the right patella and he 
 
            was placed in a long leg cast.  By February 5, claimant 
 
            noted severe worsening of back pain.  This proved a chronic 
 
            problem.  He was discharged from the hospital on February 8, 
 
            but over the next few months, back pain increased and began 
 
            radiating into the buttocks.  Knee complaints also 
 
            continued.
 
            
 
                 On October 13, 1989, claimant underwent arthroscopic 
 
            surgery to the right knee; post-operative diagnosis was of 
 
            right knee superolateral synovial snapping band with medial 
 
            synovial shelf.  The surgeon was Sterling J. Laaveg, M.D.  
 
            On October 24, 1990, Dr. Laaveg noted that claimant still 
 
            had occasional aching and some patellofemoral crepitus, but 
 
            range of motion was normal and ligaments were stable.  Dr. 
 
            Laaveg assessed a three percent impairment rating of the 
 
            right knee, which he converted to a one percent "whole 
 
            person" rating.  Dr. Laaveg joined in the medical 
 
            restrictions suggested by neurosurgeon David W. Beck, M.D., 
 
            being a 50-pound lifting restriction, but did not impose any 
 
            additional restrictions relative the knee.
 
            
 
                 By December 1989, claimant's back pain had continued to 
 
            worsen and he developed spasms over the posterosuperior 
 
            iliac crest on the right.  Magnetic resonance imaging on 
 
            December 6 revealed a herniated disc at L4-5.  An epidural 
 
            injection on December 11 was unsuccessful and led to 
 
            increased pain.  On January 11, 1990, Dr. Beck performed a 
 
            percutaneous discectomy which proved, after arduous physical 
 
            rehabilitation, to be quite successful.  Dr. Beck released 
 
            claimant to return to work with a 50-pound weight 
 
            restriction for as many hours as he could handle effective 
 
            June 6, 1990.
 
            
 
                 Dr. Beck saw David Fank again on September 17, 1990.  
 
            Claimant continued to have intermittent low back pain, but 
 
            no radiating pain.  Range of motion was limited, but 
 
            claimant was neurologically intact.  Dr. Beck's final 
 
            impairment rating was eight percent of the body as a whole.  
 
            On February 25, 1991, Dr. Beck wrote that the entire 
 
            impairment was directly related to the 1989 work injury.
 
            
 
                 Midwest Wheel did not accept claimant back as an 
 
            employee after he was released because all jobs in the plant 
 
            require lifting in excess of 50 pounds.  However, 
 
            substantial vocational rehabilitation services were 
 
            provided, although without notable success.  Claimant 
 
            undertook an extensive job search in Mason City, Forest 
 
            City, Des Moines and southern Minnesota, contacting 
 
            literally hundreds of employers.  Mr. Fank also experienced 
 
            a number of personal problems at this time, including a 
 
            dissolution of marriage and personal bankruptcy.  He has 
 
            suffered from some depression.  David McGuire, a vocational 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            rehabilitation worker, made numerous efforts to help 
 
            claimant find work and testified that Mr. Fank "really 
 
            tried" for some ten months to meet his agreed commitment of 
 
            ten job contacts and three interviews per week, but "just 
 
            didn't have the luck" to find suitable work.  Services were 
 
            eventually discontinued in approximately June or July 1991 
 
            when claimant, discouraged and preoccupied by his father's 
 
            severe health problems, experienced a substantial decline in 
 
            motivation.  McGuire finds that claimant's medical 
 
            restrictions would not much affect the possibility of 
 
            obtaining a sales job (as he wants), but would entail a loss 
 
            of access to 25 percent or more of delivery jobs.
 
            
 
                 Claimant also sought help from the Iowa Division of 
 
            Vocational Rehabilitation Services, including a complete 
 
            evaluation at the facility operated by that agency.  
 
            Psychological testing was done, including administration of 
 
            the Wechsler Adult Intelligence Scale-Revised.  Results 
 
            suggested intellectual functioning within the low average 
 
            range, with significant weakness in overall intellectual 
 
            efficiency.  Test results were within the division's current 
 
            guidelines for the classification of Borderline Intellectual 
 
            Functioning.  It was generally felt by DVRS that claimant's 
 
            further education potential is limited and that he may be 
 
            overly optimistic as to his ability to function in certain 
 
            jobs requiring clerical and arithmetic skills.  Evaluator 
 
            Clorida Ferguson concluded that claimant lacked adequate 
 
            academics for his stated goals and had limited potential to 
 
            improve his skills.  For example, he reads at the ninth 
 
            grade level and performs math at the seventh grade level.
 
            
 
                 Mr. Fank has had terrible luck in obtaining suitable 
 
            work.  He worked on a road construction crew for a few days 
 
            in July 1991 and had accepted work as a computer sales 
 
            representative on a probationary status as of December 1, 
 
            1991.  Unfortunately, claimant has sold only one computer 
 
            and was not paid either in December or January because of 
 
            the precarious financial condition of his employer.  It 
 
            seems unrealistic to believe that this job will prove the 
 
            answer.
 
            
 
                                conclusions of law
 
            
 
                 The parties dispute causal nexus to permanent 
 
            disability and the nature and extent thereof.  There is 
 
            clearly permanent disability, as witness Dr. Laaveg's 
 
            impairment rating to the right leg.  The more serious 
 
            question is whether claimant's back surgery and related 
 
            medical restriction bears the same causal nexus.  This is 
 
            claimant's burden to prove by a preponderance of the 
 
            evidence.  Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 
 
            867 (1965).  A possibility is insufficient to meet that 
 
            burden; a probability is necessary.  Burt v. John Deere 
 
            Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955).
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
                 Even though claimant has a history of back complaints, 
 
            the record shows that he was essentially free of symptoms in 
 
            the several years prior to his work injury, and without 
 
            dispute was able to work a heavy job without restriction.  
 
            Dr. Beck, the treating surgeon, has opined without 
 
            contradiction that claimant's impairment is wholly related 
 
            to the work injury.  It is so found.
 
            
 
                 An injury to the back is an injury to the body as a 
 
            whole.  Thus, the entire injury must be compensated 
 
            industrially.
 
            
 
                 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, expe
 
            rience and inability to engage in employment for which he is 
 
            fitted.  Olson v. Goodyear Service Stores, 255 Iowa 1112, 
 
            125 N.W.2d 251 (1963).  Barton v. Nevada Poultry, 253 Iowa 
 
            285, 110 N.W.2d 660 (1961).
 
            
 
                 A finding of impairment to the body as a whole found by 
 
            a medical evaluator does not equate to industrial disabil
 
            ity.  This is so as impairment and disability are not syn
 
            onymous.  Degree of industrial disability can in fact be 
 
            much different than the degree of impairment because in the 
 
            first instance reference is to loss of earning capacity and 
 
            in the latter to anatomical or functional abnormality or 
 
            loss.  Although loss of function is to be considered and 
 
            disability can rarely be found without it, it is not so that 
 
            a degree of industrial disability is proportionally related 
 
            to a degree of impairment of bodily function.
 
            
 
                 Factors to be considered in determining industrial dis
 
            ability include the employee's medical condition prior to 
 
            the injury, immediately after the injury, and presently; the 
 
            situs of the injury, its severity and the length of healing 
 
            period; the work experience of the employee prior to the 
 
            injury, after the injury and potential for rehabilitation; 
 
            the employee's qualifications intellectually, emotionally 
 
            and physically; earnings prior and subsequent to the injury; 
 
            age; education; motivation; functional impairment as a 
 
            result of the injury; and inability because of the injury to 
 
            engage in employment for which the employee is fitted.  Loss 
 
            of earnings caused by a job transfer for reasons related to 
 
            the injury is also relevant.  These are matters which the 
 
            finder of fact considers collectively in arriving at the 
 
            determination of the degree of industrial disability.
 
            
 
                 There are no weighting guidelines that indicate how 
 
            each of the factors are to be considered.  There are no 
 
            guidelines which give, for example, age a weighted value of 
 
            ten percent of the total value, education a value of fifteen 
 
            percent of total, motivation - five percent; work experience 
 
            - thirty percent, etc.  Neither does a rating of functional 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            impairment directly correlate to a degree of industrial 
 
            disability to the body as a whole.  In other words, there 
 
            are no formulae which can be applied and then added up to 
 
            determine the degree of industrial disability.  It therefore 
 
            becomes necessary for the deputy or commissioner to draw 
 
            upon prior experience, general and specialized knowledge to 
 
            make the finding with regard to degree of industrial dis
 
            ability.  See Christensen v. Hagen, Inc., Vol. 1 No. 3 State 
 
            of Iowa Industrial Commissioner Decisions 529 (App. March 
 
            26, 1985); Peterson v. Truck Haven Cafe, Inc., Vol. 1 No. 3 
 
            State of Iowa Industrial Commissioner Decisions 654 (App. 
 
            February 28, 1985).
 
            
 
                 Claimant has limited academic skills and a work history 
 
            in shipping and warehouse work, assembly line work, data 
 
            entry, sales and parts delivery.  A 50-pound weight 
 
            restriction disables claimant from many of the specific 
 
            positions he has previously held, but would not necessarily 
 
            disable him from similar jobs with other businesses.  
 
            Obviously, for example, not all delivery work entails 
 
            weights of greater than 50 pounds; but some does.  Claimant 
 
            is a high school graduate, but was a poor student and has 
 
            limited academic skills.  He is outgoing and may well prove 
 
            to be a success in the sales profession, but this remains to 
 
            be seen.
 
            
 
                 Claimant initially demonstrated commendable motivation 
 
            in job seeking, but his zeal has diminished as he has 
 
            contacted literally hundreds of employers without success.  
 
            It is unlikely that all of his failures can be attributed to 
 
            the work injury, since a 50-pound lifting restriction is 
 
            substantially less onerous than is the case with many back 
 
            injuries considered by this agency.  Still, a history of 
 
            surgical back injury is likely to diminish claimant's 
 
            attractiveness as a potential employee to at least some 
 
            employers.
 
            
 
                 It is commendable that defendants provided vocational 
 
            rehabilitation services.  Nonetheless, Midwest Wheel was 
 
            unable to provide further work due to medical restrictions 
 
            stemming directly from the work injury.  In and of itself, 
 
            the failure to provide continuing employment may justify an 
 
            award of industrial disability.  McSpadden v. Big Ben Coal 
 
            Co., 288 N.W.2d 181 (Iowa 1980).
 
            
 
                 Considering then these factors in particular and the 
 
            record otherwise in general, it is held that claimant has 
 
            sustained a permanent industrial disability equivalent to 30 
 
            percent of the body as a whole, or 150 weeks.
 
            
 
                                      order
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 Defendants shall pay claimant one hundred fifty (150) 
 
            weeks of permanent partial disability benefits at the 
 
            stipulated rate of one hundred ninety-three and 80/100 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            dollars ($193.80) per week commencing June 7, 1990.
 
            
 
                 Any accrued benefits shall be paid in a lump sum 
 
            together with statutory interest pursuant to Iowa Code 
 
            section 85.30.
 
            
 
                 Defendants shall have credit for all benefits 
 
            voluntarily paid prior to hearing.
 
            
 
                 Costs, including page 2 (but not page 4) of claimant's 
 
            exhibit 26, are assessed to defendants pursuant to rule 343 
 
            IAC 4.33.
 
            
 
                 Defendants shall file claim activity reports as 
 
            requested by the agency pursuant to rule 343 IAC 3.1.
 
            
 
                 Signed and filed this ______ day of ____________, 1992.
 
            
 
                 
 
            
 
                 
 
                 
 
                                          ______________________________
 
                                          DAVID RASEY
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Robert S. Kinsey III
 
            Attorney at Law
 
            214 North Adams
 
            P.O. Box 679
 
            Mason City, Iowa  50401
 
            
 
            Mr. Richard R. Winga
 
            Attorney at Law
 
            300 American Federal Building
 
            P.O. Box 1567
 
            Mason City, Iowa  50401
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                               5-1803
 
                                               Filed March 24, 1992
 
                                               DAVID RASEY
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            DAVID L. FANK,                :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :         File No. 908778
 
                                          :
 
            MIDWEST WHEEL COMPANIES,      :      A R B I T R A T I O N
 
                                          :
 
                 Employer,                :         D E C I S I O N
 
                                          :
 
            and                           :
 
                                          :
 
            ALLIED GROUP INSURANCE,       :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
            5-1803
 
            Industrial disability determined.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            LARRY HECHT,                  :
 
                                          :
 
                 Claimant,                :      File No. 909093
 
                                          :
 
            vs.                           :
 
                                          :  A R B I T R A T I O N
 
            WILSON FOODS CORPORATION,     :
 
                                          :      D E C I S I O N
 
                 Employer,                :    
 
                 Self-Insured,            :      
 
                 Defendant.               :
 
            ___________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding in arbitration brought by Larry 
 
            Hecht against his former employer, Wilson Foods Corporation, 
 
            on account of a stipulated injury of November 21, 1988.  The 
 
            only disputed issue in the case is the extent of permanent 
 
            partial disability which has resulted from that injury.  The 
 
            record in the proceeding consists of testimony from Larry 
 
            Hecht, Marie Hecht and Jerry Davis.  The record also 
 
            contains jointly offered exhibits 1 through 25 and 33, as 
 
            well as defendant's exhibit A.
 
            
 
                                 findings of fact
 
            
 
                 Larry Hecht is a 53-year-old high school graduate who 
 
            had been employed by Wilson Foods since 1968.  Prior to that 
 
            time he had engaged in a variety of occupations including 
 
            manufacturing, truck driving and packing house work.  Larry 
 
            has no post-high school formal education.  He has performed 
 
            a variety of jobs during the course of his employment with 
 
            Wilson Foods.
 
            
 
                 Commencing in 1988 Larry began developing problems with 
 
            his left shoulder and hand.  After a period of conservative 
 
            treatment was unsuccessful, he was referred to orthopedic 
 
            care and eventually came under the care of Scott B. Neff, 
 
            D.O.  On or about February 8, 1989, Dr. Neff performed 
 
            surgery in the nature of subacromial decompression, excision 
 
            of the distal clavicle and rotator cuff repair on Larry's 
 
            left shoulder.  During the same procedure, the left carpal 
 
            tunnel release was also performed.  
 
            
 
                 After an extended period of recovery, Larry was 
 
            released to return to work with restrictions consisting of 
 
            maximum lifting of 50 pounds, 25 pounds for frequent lifting 
 
            and a restriction that he work at or below chest level 
 
            (exhibit 5, page 1; ex. 12, p. 3).  An impairment rating of 
 
            15 percent of the upper extremity, an amount equivalent to 9 
 
            percent of the body as a whole was assigned by Dr. Neff.  
 
            None of the impairment was attributed to the carpal tunnel 
 
            condition (ex. 5, p. 2).
 
            
 
                 Larry has also been evaluated by orthopedic surgeon 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            A.J. Wolbrink, M.D.  Dr. Wolbrink provided an impairment 
 
            rating of 13 percent of the left upper extremity due to the 
 
            shoulder and 7 percent due to the carpal tunnel condition 
 
            for a combined impairment of 11 percent of the whole person 
 
            (ex. 6, pp. 19-20).  Dr. Wolbrink indicated that it would be 
 
            advisable, though not essential, for Larry to discontinue 
 
            his work at Wilson Foods in order to lessen the potential 
 
            for further problems with his left shoulder and arm (ex. 6, 
 
            p. 18).
 
            
 
                 When Larry was released to return to work following his 
 
            surgery, he initially was placed on a cleanup crew.  After 
 
            approximately a month he was assigned to a job in the 
 
            deli-light department where he wiped the meat away from the 
 
            sealing surface for packaged meats.  The job was well within 
 
            the activity restrictions originally recommended by Dr. 
 
            Neff.  At the start of each day, however, Larry handled 
 
            heavier pieces of meat.  On occasion he was taken off the 
 
            wiping job and assigned other duties so others could be 
 
            trained to perform the wiping job.  Larry was able to 
 
            perform his work but experienced considerable pain.  
 
            
 
                 On or about April 1, 1991, Larry resigned from his 
 
            position with Wilson Foods and began drawing social security 
 
            retirement benefits.  Larry's decision to retire was 
 
            reasonable in view of the recommendations from Dr. Wolbrink.  
 
            He was eligible for retirement benefits from Wilson Foods 
 
            and also eligible for social security retirement benefits.  
 
            It was quite reasonable for him to retire rather than risk 
 
            further damage to his shoulder but it was not medically 
 
            necessary.
 
            
 
                 Since retiring, Larry continues to experience pain in 
 
            his shoulder.  He has obtained a part-time job at Shoney's 
 
            Restaurant, but at hearing stated that even the activity 
 
            associated with that job was becoming unbearable.  He 
 
            indicated that if he had not been injured, he would have 
 
            preferred to continue working until at least age 65.  His 
 
            retirement at age 62 has produced a reduction in his monthly 
 
            social security retirement benefit.  
 
            
 
                 Larry had sufficient seniority that it was unlikely 
 
            that he would have been bumped out of his wiping job or 
 
            other jobs which fit within his medical restrictions.  The 
 
            injury and shoulder condition is found to have prompted 
 
            Larry to retire sooner than he would have otherwise retired.  
 
            His comment to a doctor about wanting to work two more 
 
            years, is noted to be the amount of time that would be 
 
            necessary to qualify for social security benefits.  It is 
 
            not necessarily an indication of a long-standing plan to 
 
            retire at age 62 irregardless of his condition of health.  
 
            It is as easily interpreted to mean a desire to salvage 
 
            enough physical capacity to continue working until the age 
 
            at which he would be qualified for retirement benefits.  It 
 
            does not refute his testimony that he would have preferred 
 
            to continue working until at least age 65 if he had not been 
 
            injured.  
 
            
 
                                conclusions of law
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            
 
                 Since claimant has an impairment to the body as a 
 
            whole, an industrial disability has been sustained.  
 
            Industrial disability was defined in Diederich v. Tri-City 
 
            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.
 
            
 
                 Larry Hecht is in the age range where individuals in 
 
            our society typically retire.  A person's physical health is 
 
            often a factor in determining the precise date of 
 
            retirement. The early retirement has caused Larry to lose 
 
            actual earnings although much of the loss has been replaced 
 
            by social security and the employer's pension plan.  It has 
 
            also caused him to experience a reduction in what the 
 
            monthly amount of social security would be if he had 
 
            continued working until age 65.  The early retirement has 
 
            produced an increase in his expenditure for medical 
 
            insurance.  His decision to retire at age 62 was not 
 
            improvident.  It does not indicate any lack of motivation to 
 
            be employed.  It is merely what many would term the smart 
 
            thing to do under the circumstances.  It was not, however, 
 
            mandated by disability or lack of ability to continue 
 
            working.  
 
            
 
                 When all the pertinent factors of industrial disability 
 
            are considered, it is determined that Larry Hecht has 
 
            sustained a 15 percent reduction in his earning capacity as 
 
            a result of the November 21, 1988 injury.  Under the 
 
            provisions of Iowa Code section 85.34(2)(u) he is, 
 
            therefore, entitled to recover 75 weeks of permanent partial 
 
            disability compensation.  He has previously been paid 45 
 
            weeks and is, therefore, entitled to an additional 30 weeks 
 
            of benefits.  According to the stipulation made in the 
 
            prehearing report, those additional benefits should be 
 
            payable commencing payable May 22, 1990, after credit is 
 
            given for the previously paid benefits.
 
            
 
                                      order
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            
 
                 IT IS THEREFORE ORDERED that the employer pay Larry 
 
            Hecht thirty (30) additional weeks of compensation for 
 
            permanent partial disability at the stipulated rate of two 
 
            hundred forty and 33/100 dollars ($240.33) per week payable 
 
            commencing May 22, 1990.
 
            
 
                 The entire amount thereof is past due and owing and 
 
            shall be paid to Hecht in a lump sum together with interest 
 
            pursuant to section 85.30 of the Code of Iowa.
 
            
 
                 It is further ordered that the costs of this action are 
 
            assessed against the employer pursuant to rule 343 IAC 4.33.
 
            
 
                 It is further ordered that the employer file claim 
 
            activity reports as requested by the agency pursuant to rule 
 
            343 IAC 3.1.
 
            
 
                 Signed and filed this ____ day of December, 1992.
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          MICHAEL G. TRIER
 
                                          DEPUTY INDUSTRIAL COMMISSIONER    
 
            
 
            Copies to:
 
            
 
            Mr. Steve Hamilton
 
            Attorney at Law
 
            PO Box 188
 
            Storm Lake, Iowa  50588
 
            
 
            Mr. David L. Sayre
 
            Attorney at Law
 
            223 Pine St.
 
            PO Box 535
 
            Cherokee, Iowa  51012
 
            
 
                 
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
                                          51803
 
                                          Filed December 14, 1992
 
                                          Michael G. Trier
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            LARRY HECHT,                  :
 
                                          :
 
                 Claimant,                :      File No. 909093
 
                                          :
 
            vs.                           :
 
                                          :  A R B I T R A T I O N
 
            WILSON FOODS CORPORATION,     :
 
                                          :      D E C I S I O N
 
                 Employer,                :    
 
                 Self-Insured,            :      
 
                 Defendant.               :
 
            ___________________________________________________________
 
            
 
            51803
 
            Sixty-three-year-old claimant with torn rotator cuff who, 
 
            following treatment, worked approximately one and one-half 
 
            years and then retired awarded 15 percent permanent partial 
 
            disability.  Permanent impairment rating was in the range of 
 
            10 percent and usual restrictions of medium work at or below 
 
            chest level had been imposed.  Claimant had been able to 
 
            continue working but experienced considerable pain in doing 
 
            so.  Decision to retire at age 62 found to be reasonable.  
 
            
 
 
            
 
 
 
 
 
 
 
 
 
                       BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
            MIKE LaBARGE,    
 
                        
 
                 Claimant,   
 
                        
 
            vs.         
 
                                                 File No. 909191
 
            FAIRVIEW BODY SHOP,   
 
                                                  A P P E A L
 
                 Employer,   
 
                                                 D E C I S I O N
 
            and         
 
                        
 
            UNION INSURANCE CO.,       
 
                        
 
                 Insurance Carrier,    
 
                 Defendants.      
 
            ____________________________________________________________
 
            The record, including the transcript of the hearing before 
 
            the deputy and all exhibits admitted into the record, has 
 
            been reviewed de novo on appeal.  The decision of the deputy 
 
            filed November 6, 1991 is affirmed and is adopted as the 
 
            final agency action in this case.
 
            Claimant and defendants shall share equally the costs of the 
 
            appeal, including the preparation of the hearing transcript.
 
            Signed and filed this ____ day of October, 1992.
 
            
 
            
 
            
 
            
 
                                   ________________________________
 
                                            BYRON K. ORTON
 
                                       INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Thomas J. Currie
 
            Attorney at Law
 
            P.O. Box 998
 
            Cedar Rapids, Iowa 52406-0998
 
            
 
            Mr. Richard C. Garberson
 
            Attorney at Law
 
            P.O. Box 2107
 
            Cedar Rapids, Iowa 52406
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                               9998
 
                                               Filed October 30, 1992
 
                                               Byron K. Orton
 
 
 
                      BEFORE THE IOWA INDUSTRIAL COMMISSSIONER            
 
            ____________________________________________________________
 
            MIKE LaBARGE,    
 
                        
 
                 Claimant,   
 
                        
 
            vs.         
 
                                                  File No. 909191
 
            FAIRVIEW BODY SHOP,   
 
                                                   A P P E A L
 
                 Employer,   
 
                                                 D E C I S I O N
 
            and         
 
                        
 
            UNION INSURANCE CO.,       
 
                        
 
                 Insurance Carrier,    
 
                 Defendants.      
 
            ____________________________________________________________
 
            
 
            9998
 
            
 
                 Summary affirmance of deputy's decision filed November 
 
            6, 1991.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            MIKE LaBARGE,                 :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 909191
 
            FAIRVIEW BODY SHOP,           :
 
                                          :     A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            UNION INSURANCE CO.,          :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding in arbitration brought by Mike 
 
            LaBarge, claimant, against his former employer, Fairview 
 
            Body Shop, and its insurance carrier, Union Insurance 
 
            Company.  The matter came on for hearing before the 
 
            undersigned on September 16, 1991, at Cedar Rapids, Iowa.
 
            
 
                 The evidence in the case consists of the testimony from 
 
            claimant; Dave Dirks, owner of the Fairview Body Shop; 
 
            William John Robb, M.D.; claimant's exhibits 1 thorough 32; 
 
            and, defendants' exhibits A-E and G-AA.
 
            
 
                                      issues
 
            
 
                 In accordance with the prehearing report submitted by 
 
            the parties at the hearing, the following issues are 
 
            presented for resolution:
 
            
 
                 1.  Whether claimant sustained an injury on January 24, 
 
            1989, which arose out of and in the course of his employment 
 
            with the Fairview Body Shop;
 
            
 
                 2.  Whether there is a causal relationship between the 
 
            alleged injury and claimant's disability;
 
            
 
                 3.  Whether claimant is entitled to temporary total or 
 
            healing period benefits or permanent partial or permanent 
 
            total disability benefits; 
 
            
 
                 4.  Whether claimant is entitled to medical benefits 
 
            pursuant to Iowa Code section 85.27; and,
 
            
 
                 5.  Whether claimant is entitled to penalty benefits as 
 
            governed by Iowa Code section 86.13(4).
 
            
 
                                 findings of fact
 
            
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
                 The undersigned deputy, having reviewed all of the 
 
            evidence received, finds the following facts:
 
            
 
                 Claimant was born on November 30, 1959.  He graduated 
 
            from Anamosa High School in Anamosa, Iowa, in 1978.
 
            
 
                 Since 1979, claimant has worked for the Fairview Body 
 
            Shop in Anamosa, Iowa.  For ten years, he worked as an 
 
            independent contractor, and became an employee of the body 
 
            shop in January 1989.  Claimant was employed as a "body" 
 
            person, and his work consisted of repairing dents and 
 
            replacing parts in cars and pickups.  He did not do any 
 
            mechanical work, only body work.  Claimant described the 
 
            physical requirements of the job as requiring light to heavy 
 
            lifting, from 5 to 100 pounds.  He was also required to 
 
            stand, which varied between 5 to 10 minutes to two hours.  
 
            As a body person, he was required to bend, kneel, stoop, 
 
            push and pull.  Claimant testified that as an employee, he 
 
            earned $6 per hour and worked between 38 and 43 hours per 
 
            week.  David Dirks, the owner of the shop, stated while he 
 
            agreed claimant earned $6 per hour, claimant usually worked 
 
            between 25 and 30 hours per week.  No records were produced 
 
            to corroborate either party's testimony.
 
            
 
                 Claimant testified that on January 24, 1989, he arrived 
 
            at work between 8:30 and 9:00 a.m.  Claimant stated he felt 
 
            fine, and had no back, leg or hip problems.  In the morning, 
 
            claimant was busy painting, sanding and putting parts on a 
 
            vehicle.  He took a lunch break between 11:30 a.m. and 12:30 
 
            p.m.  He returned to work, but early that afternoon had to 
 
            drive downtown to get additional sandpaper.  As he returned 
 
            from the errand, he drove his truck into the driveway and 
 
            parked.  He got out of the truck, walked approximately 15 
 
            feet when he slipped and fell on the ice.  Claimant fell to 
 
            the ground, and landed on his left hip.  As he got up, he 
 
            noticed pain in the left hip which he described as 
 
            "bruised."  He walked into the shop, but did not tell his 
 
            employer because claimant did not feel the fall had caused 
 
            any serious problems.  Claimant continued to work throughout 
 
            the day.  He noted that when he sat down, he would get stiff 
 
            and sore.  Claimant left work at approximately 5:00 p.m., 
 
            went home to eat dinner, and spent the rest of the evening 
 
            watching television.
 
            
 
                 The next morning, claimant noted he was stiff and sore 
 
            in the left hip, but described no other symptoms.  He went 
 
            to work and worked his normal shift, returned home to eat 
 
            dinner, and spent the remainder of the evening watching TV.  
 
            He did not tell anyone about the accident the day before.
 
            
 
                 On January 26, 1989, claimant again noted stiffness and 
 
            soreness in the left hip.  He worked his normal shift, left 
 
            the body shop at approximately 5:00 p.m., returned home and 
 
            ate dinner.  On this evening, claimant went bowling, as he 
 
            was a member of a league.
 
            
 
                 Claimant stated that during the first of three games, 
 
            he had no difficulty bowling, although he did feel stiff and 
 
            sore in the left hip.  Claimant, for the first game, had a 
 
            score of 223.  The second game, claimant felt more soreness 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            and tightness in the left hip, but finished the game with a 
 
            score of 179.  Claimant was unable to bowl the third game 
 
            due to stiffness and soreness, and a replacement, Jim Holub, 
 
            became the team's replacement bowler.  Claimant testified 
 
            that at this point his symptoms were gradually becoming 
 
            worse.
 
            
 
                 Claimant left the bowling alley at approximately 11:30 
 
            p.m. and did not require assistance.  He stated that he had 
 
            no difficulty driving home, and when he arrived at his 
 
            house, he went to bed.
 
            
 
                 On January 27, 1989, claimant awoke with stiffness and 
 
            soreness of the left hip, but displayed no other symptoms.  
 
            He called his employer and told Mr. Dirks he would be unable 
 
            to work due to stiffness and soreness in the left hip.  
 
            Claimant stated that he would be in the next day to work.  
 
            Mr. Dirks testified that when claimant called in on that 
 
            date, he stated, "Dave, I'm not going to be in today because 
 
            I threw my back out at the bowling alley."  Claimant stated 
 
            that during the rest of the day, he took Advil on a regular 
 
            basis, laid around the house, and did not take any physical 
 
            activities.  That evening, he fell asleep on the couch and 
 
            woke up at approximately 2:30 a.m.  Claimant stated that 
 
            when he went to get up to proceed to his bedroom, he could 
 
            not feel anything from his waist down.  Claimant woke up his 
 
            parents who called an ambulance to take claimant to the 
 
            Anamosa Hospital in Anamosa, Iowa.  He was sent back home, 
 
            and returned by ambulance the next morning and was 
 
            subsequently transferred to Mercy Medical Center in Cedar 
 
            Rapids, Iowa, on January 31, 1989.  Claimant was seen by his 
 
            family, Warren Verdeck, M.D., an orthopedic specialist who 
 
            referred claimant to James LaMorgese, a neurosurgeon, who 
 
            began treating claimant on January 31, 1989, at the Mercy 
 
            Medical Center in Cedar Rapids (Defendants' Exhibits O, P, 
 
            Q).  Dr. Verdeck was the first physician to diagnose 
 
            possible cauda equina syndrome, and the diagnosis was 
 
            confirmed by Dr. LaMorgese shortly after claimant's 
 
            admittance to Mercy Medical Center (Def. Exs. S and T).  
 
            Claimant was scheduled for emergency surgery on the evening 
 
            of January 31, 1989.  The surgery revealed a large herniated 
 
            disk at the L3-4 level.  A large extruded fragment was 
 
            removed (Def. Ex. U).
 
            
 
                 Claimant was discharged from the hospital on February 
 
            13, 1989, with a final diagnoses of a central extruded disk 
 
            at the L3-4 level; cauda equina syndrome; and, lumbar 
 
            laminectomy at the L4 level.  Upon neurological examination, 
 
            the claimant displayed no strength in the musculature around 
 
            the ankles and into the feet and toes.  Knee and ankle 
 
            reflexes were absent bilaterally, and there was decreased 
 
            sensation around the buttocks from S1 to the S5 level.  
 
            There was severely decreased sensation on the bottom of 
 
            claimant's feet, which extended laterally up the leg to the 
 
            calf area.  He also displayed markedly decreased rectal tone 
 
            without significant feeling.  He was transferred to St. 
 
            Luke's Hospital for intensive rehabilitation (Def. Ex. X).
 
            
 
                 Claimant received 33 physical therapy treatments while 
 
            an inpatient at St. Luke's Rehabilitation Unit between 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            February 13 and March 3, 1989.  Some goals were met, 
 
            although claimant still displayed difficulty in walking long 
 
            distances, and his ability to stand unaided was fair.  The 
 
            physical therapist at St. Luke's recommended further 
 
            physical therapy as an outpatient at the Anamosa Community 
 
            Hospital (Claimant's Exhibit 14, pages 1 through 121).
 
            
 
                 In April of 1990, claimant returned to Dr. LaMorgese, 
 
            who made the following notations:
 
            
 
                 The patient still has a complete footdrop on the 
 
                 right.  The patient does have significant weakness 
 
                 in the gastocnemius muscle on the left which I 
 
                 rated as 4 out of 5 strength.  The patient has 
 
                 numbness around the buttocks, groin, and penis 
 
                 areas.  He also has decrease sensation in the 
 
                 right ankle and foot and some mild decreased 
 
                 sensation in the right ankle and foot and some 
 
                 mild decreased sensation in the left foot.  The 
 
                 patient still has some stress incontinence.  The 
 
                 patient does have to digitally disimpact himself 
 
                 in the mornings.  The patient is walking with the 
 
                 aid of one Canadian crutch.  The patient is 
 
                 attending physical therapy once a month at this 
 
                 point.
 
            
 
            (Cl. Ex. 11, p. 8)
 
            
 
                 Dr. LaMorgese rechecked claimant in October 1990 and 
 
            his finds were the same as in April of 1990 (Cl. Ex. 11, p. 
 
            8).  From May of 1989 through July of 1991, Dr. LaMorgese 
 
            rendered several opinions with respect to the cause of 
 
            claimant's condition and claimant's disability.  He 
 
            concluded that claimant's extruded disk was due to the fall 
 
            in the parking lot, that the disk extrusion led to the cauda 
 
            equina compression, and that claimant had sustained a 
 
            functional impairment of 40 percent of the body as a whole 
 
            (Cl. Ex. 11, pp. 1 through 6).  He restricted claimant's 
 
            lifting ability to 15-20 pounds with limited bending and 
 
            stooping, and walking not more than two hours at a time (Cl. 
 
            Ex. 17, p. 56).  Dr. LaMorgese was deposed for the case 
 
            August 26, 1991 (Cl. Ex. 20).
 
            
 
                 Dr. Verdeck, who treated claimant early on in the 
 
            medical process, voiced a different opinion:
 
            
 
                 Mr. Garberson related the history that the patient 
 
                 had fallen on Tuesday afternoon, the 24th of 
 
                 January, 1989---one week before seeing me.  This 
 
                 was apparently not reported to his employer.  He 
 
                 then worked the remainder of Tuesday, all of 
 
                 Wednesday, and all of Thursday, with no history of 
 
                 any problems at work.  Allegedly then, during 
 
                 bowling on Thursday night, the symptoms developed.
 
            
 
                    Based on the above history as given to me it 
 
                 would seem more probable that his herniated disk 
 
                 was caused from bowling, rather than the fall of 2 
 
                 1/2 days earlier.
 
            
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            (Cl. Ex. 11, p. 10; Def. Ex. Y)
 
            
 
                 W. John Robb, M.D., an orthopedic specialist, reviewed 
 
            the case and testified at the hearing.  In essence, his 
 
            testimony is that claimant's description of the fall wherein 
 
            he landed on his left hip would not cause the disk extrusion 
 
            and subsequent cauda equina syndrome.  Dr. Robb explained 
 
            that the most common causes of herniated discs are bending 
 
            over and lifting; whiplash of the low back; and, a fall 
 
            whereby a person lands on both buttocks and "jams" the 
 
            spine.  He stated that bowling using a 16 pound ball 
 
            produces the bending and lifting mechanism which would cause 
 
            pressure to the spine and cause a posterior or backwards 
 
            herniation.  Most disc herniations are lateral.
 
            
 
                 Dr. Robb also testified that he believed that if 
 
            claimant's fall of January 24, 1989 had injured the disc in 
 
            the low back, it would have affected his ability to work 
 
            during the next several days, and that claimant would have 
 
            experienced severe back pain.  Since claimant only 
 
            complained of stiffness, and he was able to work the rest of 
 
            the day of January 24, 1989, and the following two days, Dr. 
 
            Robb felt that claimant had sustained a contusion or strain 
 
            from the fall, but the disc problem came from his bowling 
 
            activities.
 
            
 
                 Claimant has had some preexisting problems with his 
 
            back, including a possible central disc herniation at the 
 
            L4-5 level, and possible loss of normal lumbar lordosis 
 
            (Def. Exs. G and H).
 
            
 
                         analysis and conclusions of law
 
            
 
                 The first issue to be addressed is whether claimant 
 
            received an injury on January 24, 1989, which arose out of 
 
            and in the course of his employment.
 
            
 
                 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).
 
            
 
                 Claimant has the burden of proving by a preponderance 
 
            of the evidence that he received an injury on January 24, 
 
            1989 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 (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.
 
            
 
                 The words "in the course of" refer to the time and 
 
            place and circumstances of the injury.  McClure v. Union 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            et al. Counties, 188 N.W.2d 283 (Iowa 1971); Crowe, 246 Iowa 
 
            402, 68 N.W.2d 63.
 
            
 
                 "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; Musselman v. Central Telephone Co., 261 Iowa 
 
            352, 154 N.W.2d 128 (1967). 
 
            
 
                 Claimant described an incident whereby he had returned 
 
            from a work-related errand, parked his pickup in the parking 
 
            lot of the employer, got out of the pickup and slipped on 
 
            ice.  It would appear that claimant's act of purchasing 
 
            additional sandpaper in order to perform his job duties is a 
 
            general requirement contemplated by the employer.  It is 
 
            found that claimant has proven by a preponderance of the 
 
            evidence that he fell in the parking lot while returning 
 
            from running an errand for the employer.
 
            
 
                 Claimant must also prove by a preponderance of the 
 
            evidence that he sustained an injury in the course of his 
 
            employment.  From the record, it appears that claimant was 
 
            performing his normal and required job duties during his 
 
            regular shift for the employer.  He fell while he was on the 
 
            employer's premises during claimant's normal work hours of 
 
            employment.  He had not departed from the scope of his 
 
            employment, and it is found that claimant received an injury 
 
            which arose out of and in the course of his employment.
 
            
 
                 The next issue to be addressed is whether there is a 
 
            causal relationship between the injury and claimant's 
 
            disability.
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury of January 24, 
 
            1989 is causally related to the disability on which he now 
 
            bases his claim.  Bodish v. Fischer, Inc., 257 Iowa 516, 133 
 
            N.W.2d 867 (1965).  Lindahl v. L. O. Boggs, 236 Iowa 296, 18 
 
            N.W.2d 607 (1945).  A possibility is insufficient; a 
 
            probability is necessary.  Burt v. John Deere Waterloo 
 
            Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955).  The 
 
            question of causal connection is essentially within the 
 
            domain of expert testimony.  Bradshaw v. Iowa Methodist 
 
            Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960).
 
            
 
                 However, expert medical evidence must be considered 
 
            with all other evidence introduced bearing on the causal 
 
            connection.  Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion 
 
            of experts need not be couched in definite, positive or 
 
            unequivocal language.  Sondag v. Ferris Hardware, 220 N.W.2d 
 
            903 (Iowa 1974).  However, the expert opinion may be 
 
            accepted or rejected, in whole or in part, by the trier of 
 
            fact.  Id. at 907.  Further, the weight to be given to such 
 
            an opinion is for the finder of fact, and that may be 
 
            affected by the completeness of the premise given the expert 
 
            and other surrounding circumstances.  Bodish, 257 Iowa 516, 
 
            133 N.W.2d 867.  See also Musselman, 261 Iowa 352, 154 
 
            N.W.2d 128..
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            
 
                 Furthermore, if the available expert testimony is 
 
            insufficient alone to support a finding of causal 
 
            connection, such testimony may be coupled with nonexpert 
 
            testimony to show causation and be sufficient to sustain an 
 
            award.  Giere v. Aase Haugen Homes, Inc., 259 Iowa 1065, 146 
 
            N.W.2d 911, 915 (1966).  Such evidence does not, however, 
 
            compel an award as a matter of law.  Anderson v. Oscar Mayer 
 
            & Co., 217 N.W.2d 531, 536 (Iowa 1974).  To establish 
 
            compensability, the injury need only be a significant 
 
            factor, not be the only factor causing the claimed disabil
 
            ity.  Blacksmith v. All-American, Inc., 290 N.W.2d 348, 354 
 
            (Iowa 1980).
 
            
 
                 For the most part, claimant gave a consistent history 
 
            to the medical providers, stating that his problems began on 
 
            January 24, 1989, when he slipped on the ice while walking 
 
            in the employer's parking lot (Def. Exs, M, O, Q, R and X).  
 
            However, there are notations in the record which indicate 
 
            claimant felt his condition was improving until the evening 
 
            he bowled, January 26, 1989 (Def. Exs. L and P).
 
            
 
                 In determining the causal connection between the fall 
 
            and claimant's current disability which was caused by a 
 
            herniated disc, cauda equina syndrome and the resulting 
 
            laminectomy, it is necessary to review and evaluate his 
 
            testimony in conjunction with the medical reports and 
 
            opinions.
 
            
 
                 Specifically, although Dr. LaMorgese opined that 
 
            claimant's disability was related to the fall, his 
 
            deposition testimony creates an additional opinion which 
 
            indicates that claimant actually herniated the disc while 
 
            bowling:
 
            
 
                 Q.  Do you think that's a significant point; that 
 
                 is, the time when he first experienced stiffness 
 
                 in his low back?
 
            
 
                 A.  I think it's helpful in that if he had 
 
                 symptoms, obviously immediately after which he did 
 
                 not seem to have down the leg, it makes it a 
 
                 little bit more ambiguous as to what was the 
 
                 inciting injury for this disc problem, but I -- I 
 
                 think, in fact, he did have some continuing 
 
                 symptoms.  He actually thought he was getting 
 
                 better for a while there; I mean, I do remember 
 
                 that and I do have that, I believe, in my -- in my 
 
                 Mercy consultation, but the fact is that he was 
 
                 also symptomatic.
 
            
 
                 Q.  And the symptoms that he always described 
 
                 after he slipped and fell were a bruise-type 
 
                 feeling, did he not?
 
            
 
                 A.  I think he called it pain in the left hip.  I 
 
                 don't know if he said it was a bruise.
 
            
 
                 Q.  Again, I guess we'll let that record speak for 
 
                 itself.  When do you understand he first developed 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
                 pain radiating into a leg?
 
            
 
                 A.  I believe he talked about that the night that 
 
                 he was at bowling where he had severe pain in the 
 
                 -- in the back and down into the left leg.
 
            
 
                 Q.  Is that consistent with the onset of cauda 
 
                 equina as a result of the disc being herniated at 
 
                 or about that point in time?
 
            
 
                 A.  At that night he -- obviously something was 
 
                 happening to his back and he did not seem to have 
 
                 weakness, although none of us examined him at that 
 
                 period of time, but he did not complain of 
 
                 numbness or weakness; it was mainly pain.  I 
 
                 assume that he was herniating the disc at that 
 
                 point and then subsequently that evening when he 
 
                 was home he went on to extrude the disc where he 
 
                 developed the paralysis and the numbness.
 
            
 
                 Q.  So at this point your opinion is that he was 
 
                 herniating the disc itself during the bowling 
 
                 event?
 
            
 
                 A.  Right.
 
            
 
                    ....
 
            
 
                 Q.  Certainly.  Is is possible in your opinion 
 
                 that the activity of bowling the evening of 
 
                 January 20 - -- I think it was January 28, 1989, 
 
                 was the event that caused a -- the disc in his low 
 
                 back to bulge and that it later extruded?  Is that 
 
                 a possibility?
 
            
 
                 A.  I do not feel the activity of bowling in and 
 
                 of itself would have caused the herniated disc 
 
                 unless he had had a predisposing factor; in other 
 
                 words, the disc had to be weak for it to have 
 
                 herniated and subsequently extruded that night.
 
            
 
                 Q.  And things that could make that disc weak 
 
                 would be such things as other fall incidents and 
 
                 his predisposition toward disc problems, whatever 
 
                 that may have been in his case?
 
            
 
                 A.  It's certainly possible.
 
            
 
                    ....
 
            
 
                 Q.  Yeah.  You apparently are in disagreement with 
 
                 Dr. Verdeck with -- at least with reference to his 
 
                 office note of November 1989 about the event which 
 
                 caused the disc to become herniated.
 
            
 
                    ....
 
            
 
                 A.  ...I would agree with Dr. Verdeck and Dr. Robb 
 
                 is that Mr. LaBarge did not have an extruded disc 
 
                 with cauda equina compression on the date of the 
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
                 -- of the fall; that is, January 24, 1989.  I do 
 
                 believe like they that the disc did extrude or 
 
                 herniate the day he was bowling and the subsequent 
 
                 early morning hours of, I guess, Friday, so that 
 
                 we actually have some agreement here.  I guess 
 
                 where the disagreement would be is what led to 
 
                 this extruded disc subsequent days later, and I -- 
 
                 and I think that may have not even been addressed 
 
                 by Dr. Verdeck very carefully.  I don't know that 
 
                 for a fact though.
 
            
 
            (Cl. Ex. 20, pp. 29-30, 36, 38-39)
 
            
 
                 At the hearing and during his deposition, claimant 
 
            described his physical condition after the fall as feeling 
 
            as though he had bruised his left hip, and did not have any 
 
            other symptoms.  The day after the fall, claimant complained 
 
            of a stiff and sore left hip, but did not complain of leg 
 
            pain or lower back pain.  Two days after the fall, claimant 
 
            stated that he was still feeling stiff and sore in the left 
 
            hip, with no complaints of lower back or leg pain (Def. Ex. 
 
            Z, pp. 44-52).
 
            
 
                 Claimant first noticed discomfort and pain "running" 
 
            through his legs while he was bowling.  Additionally, he 
 
            felt a "twinge" of pain in his hip that he described as 
 
            being different than that feeling he had had after the fall 
 
            (Def. Ex. Z, pp. 55-56).  Of particular note is that 
 
            claimant did not attempt to bowl the third game and a 
 
            replacement team member, Jim Holub, acted as a substitute 
 
            for claimant to bowl the third game.  Mr. Holub was deposed 
 
            for the case, and his testimony indicates that there was a 
 
            noticeable difference in claimant during the latter part of 
 
            the second game.  Although there are some inconsistencies 
 
            between Mr. Holub's deposition and the statement he gave to 
 
            the defendants during their investigation of the claim, he 
 
            described that there was a noticeable difference in 
 
            claimant's ability to bowl during the first game and during 
 
            the second game.  In fact, Mr. Holub indicated that by the 
 
            end of the second game, claimant was sweating "profusely" 
 
            and was unable to sit comfortably.  Mr. Holub indicated that 
 
            it was clear claimant was in pain (Cl. Ex. 19; Def. Ex. B 
 
            and C).
 
            
 
                 There is no doubt that claimant has sustained 
 
            permanent, serious damage to his back and as a result has a 
 
            major disability which does affect and will continue to 
 
            affect his ability to earn a living.  However, given the 
 
            facts of the case and the evidence presented to the 
 
            undersigned, it is not possible to relate his disability to 
 
            the work-related fall.  It is impossible to determine how 
 
            much damage occurred when claimant fell, and how much damage 
 
            was caused while he was bowling.
 
            
 
                 It is possible that claimant injured his back when he 
 
            fell at work, and that the bowling incident aggravated the 
 
            condition as Dr. LaMorgese suggests in his deposition 
 
            testimony.  And, although workers are generally compensated 
 
            for preexisting conditions that are aggravated by a work 
 
            injury, the reverse is not compensable.  In other words, 
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
            claimant's injury was aggravated by a nonwork activity, 
 
            bowling, and the results of that aggravation are not 
 
            compensable under workers' compensation.
 
            
 
                 As a result, claimant takes nothing from these 
 
            proceedings.
 
            
 
                                      order
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 That claimant takes nothing from these proceedings.
 
            
 
                 That defendants shall pay the costs of this action, 
 
            pursuant to rule 343 IAC 4.33.
 
            
 
                 Signed and filed this ____ day of November, 1991.
 
            
 
            
 
                                          
 
            ________________________________
 
                                          PATRICIA J. LANTZ
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr Thomas J Currie
 
            Attorney at Law
 
            3401 Williams Blvd SW
 
            P O Box 998
 
            Cedar Rapids IA 52406
 
            
 
            Mr Richard C Garberson
 
            Attorney at Law
 
            500 MNB Bldg
 
            P O Box 2107
 
            Cedar Rapids IA 52406
 
            
 
            
 
                 
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                      5-1100; 5-1108
 
                      Filed November 6, 1991
 
                      Patricia J. Lantz
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            MIKE LaBARGE,                 :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 909191
 
            FAIRVIEW BODY SHOP,           :
 
                                          :     A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            UNION INSURANCE CO.,          :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            5-1100; 5-1108
 
            Claimant slipped on ice in employer's parking lot.  He 
 
            continued to work without any problems for the next two and 
 
            one-half days.  He then went bowling, and developed severe 
 
            back pain, which eventually was diagnosed as an extruded 
 
            disc at the L3-4 level.
 
            
 
            Held:  Claimant sustained an injury which arose out of and 
 
            in the course of his employment.
 
            
 
            Held:  Claimant did not sustain his burden to show that the 
 
            fall was a cause of his disability.  The record demonstrated 
 
            that claimant sustained the herniated disc while bowling.