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                      before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            ELIZABETH "JANE" MAREAN,      :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :    File Nos. 882959 & 910531
 
            FAREWAY STORES, INC.,         :
 
                                          :      A R B I T R A T I O N
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            FIREMAN'S FUND INSURANCE CO., :
 
            & AETNA LIFE AND CASUALTY,    :
 
                                          :
 
                 Insurance Carriers,      :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
                              statement of the case
 
            
 
                 These are  proceedings in arbitration upon the petition 
 
            of claimant, Elizabeth "Jane" Marean, against her employer, 
 
            Fareway Stores, Inc., and its insurance carriers, Fireman's 
 
            Fund Insurance Company and Aetna Life and Casualty, 
 
            defendants.  The cases were heard on May 14, 1990, in Des 
 
            Moines, Iowa at the office of the industrial commissioner.  
 
            The record consists of the testimony of claimant as well as 
 
            the testimonies of Robert Van Dcoy and Kent Jayne.  
 
            Additionally, the record consists of joint exhibits 1-9, 
 
            Fireman's Fund exhibit A and Aetna's Exhibit B.
 
            
 
                                      issues
 
            
 
                 The sole issues to be determined are:  1) whether 
 
            claimant received an injury which arose out of and in the 
 
            course of employment; 2) whether there is a causal 
 
            relationship between the alleged injury and the disability; 
 
            3) whether claimant is entitled to temporary 
 
            disability/healing period benefits or permanent partial or 
 
            total disability benefits; 4) whether claimant is an odd-lot 
 
            employee; 5) whether claimant is entitled to medical ben
 
            efits under section 85.27; 6) whether claimant is entitled 
 
            to penalty benefits under section 86.13; and, 7) the 
 
            liability of the respective insurance carriers.
 
            
 
                     
 
            
 
            
 
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            findings of fact
 
            
 
                 The deputy, having heard the testimony and considered 
 
            all the evidence, finds:
 
            
 
                 Claimant is 50 years old and a high school graduate.  
 
            During the course of her career, claimant has been employed 
 
            in various clerical and retail positions.
 
            
 
                 Claimant was hired by defendant-employer to check 
 
            groceries and to stock candy shelves.  She commenced her 
 
            employment in October of 1977 and worked until February of 
 
            1989.  Her work station was designed so that the cash 
 
            register was on claimant's right side and the grocery cart 
 
            was in front of claimant.  The groceries passed to 
 
            claimant's left side, after claimant unloaded the items from 
 
            the cart.  Claimant was occasionally responsible for sacking 
 
            groceries.
 
            
 
                 William R. Boulden, M.D., performed a ganglionectomy on 
 
            claimant's dorsal left wrist on November 23, 1987.  She 
 
            returned to work on January 25, 1988.  For a period of time, 
 
            claimant wore a wrist splint while she was working.  The 
 
            claimant testified she began experiencing pain in her left 
 
            shoulder, back and neck area.  Claimant testified she 
 
            reported her left shoulder injury to Dr. Boulden during her 
 
            exam on March 10, 1988.  Dr. Boulden's notes do not reflect 
 
            such a report.  He maintains claimant reported the injury to 
 
            him during her exam of April 4, 1988 and he in turn referred 
 
            her to Scott Neff, D.O., an orthopaedic surgeon, spe
 
            cializing in shoulders.  Dr. Neff examined claimant on April 
 
            4, 1988.  Various tests were ordered.  He referred claimant 
 
            to Karen Kienker, M.D., a specialist in physical medicine 
 
            and rehabilitation.  She treated claimant.  Claimant was off 
 
            work from April 5, 1988 through June 6, 1988, from June 28, 
 
            1988 to September 11, 1988, and from January 18, 1989 to 
 
            February 9, 1989.
 
            
 
                 When Claimant returned to work in September of 1988, 
 
            defendant-employer, along with a vocational rehabilitation 
 
            expert, Kent Jayne, made some modifications in claimant's 
 
            work station.  Claimant was assigned to the "express lane" 
 
            where less items were checked through her stand.  Also there 
 
            was a change in the physical layout of the check stand.  
 
            Customers were required to assist claimant in the unloading 
 
            of the grocery carts.  However, the work station was not 
 
            modified to the point that claimant would be able to slide 
 
            the groceries with the use of her right extremity and 
 
            shoulder.
 
            
 
                 There was testimony by claimant that Dr. Kienker had 
 
            recommended checking with the right hand.  However, 
 
            defendant-employer did not modify the work station to that 
 
            extent because other individuals would be using the same 
 
            station and the proposed modification would interfere with 
 
            their productivity.
 
            
 
                 In October of 1988, Dr. Kienker provided an impairment 
 
            rating for claimant.  The physician opined claimant had a 
 
            permanent partial impairment of 13 percent to the left upper 
 

 
            
 
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            extremity which converted to an eight percent permanent 
 
            impairment to the body as a whole.
 
            
 
                 Pursuant to a request from defendant - Fireman's Fund, 
 
            claimant was examined by S. Randy Winston, M.D., on December 
 
            22, 1988.  Dr. Winston determined claimant had a three 
 
            percent impairment to the body as a whole.
 
            
 
                 In January of 1989, Dr. Neff again saw claimant.  He 
 
            ordered an arthrogram of the left shoulder.  The test 
 
            revealed no abnormalities of the left shoulder.  Dr. Neff 
 
            released claimant to return to work on February 9, 1989.  
 
            Dr. Neff found no permanent physical impairment of the left 
 
            shoulder.
 
            
 
                 Claimant, however terminated her employment with 
 
            defendant in February of 1989.  Since her resignation, 
 
            claimant has held several temporary positions.  At the time 
 
            of the hearing, claimant was employed as a policy service 
 
            clerk at Midwest Casualty for $5.63 per hour.  This was 
 
            $1.37 per hour less than what she earned at 
 
            defendant-employer's establishment.
 
            
 
                                conclusions of law
 
            
 
                 Claimant has the burden of proving by a preponderance 
 
            of the evidence that she received injuries on March 10, 1988 
 
            and April 5, 1988, which arose out of and in the course of 
 
            her employment.  McDowell v. Town of Clarksville, 241 N.W.2d 
 
            904 (Iowa 1976); Musselman v. Central Telephone Co., 261 
 
            Iowa 352, 154 N.W.2d 128 (1967). 
 
            
 
                 An employee is entitled to compensation for any and all 
 
            personal injuries which arise out of and in the course of 
 
            the employment.  Section 85.3(1).
 
            
 
                 The injury must both arise out of and be in the course 
 
            of the employment.  Crowe v. DeSoto Consol. Sch. Dist., 246 
 
            Iowa 402, 68 N.W.2d 63 (1955) and cases cited at pp. 405-406 
 
            of the Iowa Report.  See also Sister Mary Benedict v. St. 
 
            Mary's Corp., 255 Iowa 847, 124 N.W.2d 548 (l963) and Hansen 
 
            v. State of Iowa, 249 Iowa 1147, 91 N.W.2d 555 (1958).
 
            
 
                 The words "out of" refer to the cause or source of the 
 
            injury.  Crowe, 246 Iowa 402, 68 N.W.2d 63 (1955). 
 
            
 
                 The words "in the course of" refer to the time and 
 
            place and circumstances of the injury.  McClure v. Union 
 
            et al. Counties, 188 N.W.2d 283 (Iowa 1971); Crowe, 246 Iowa 
 
            402, 68 N.W.2d 63 (1955).
 
            
 
                 "An injury occurs in the course of the employment when 
 
            it is within the period of employment at a place the 
 
            employee may reasonably be, and while he is doing his work 
 
            or something incidental to it."  Cedar Rapids Comm. Sch. 
 
            Dist. v. Cady, 278 N.W.2d 298 (Iowa 1979), McClure, 188 
 
            N.W.2d 283 (Iowa 1971); Musselman, 261 Iowa 352, 154 N.W.2d 
 
            128 (1967). 
 
            
 
                 The claimant must prove by a preponderance of the 
 

 
            
 
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            evidence that her injury arose out of and in the course of 
 
            her employment.  Musselman, 261 Iowa 352, 154 N.W.2d 128 
 
            (1967). 
 
            
 
                 In the course of employment means that the claimant 
 
            must prove her injury occurred at a place where she 
 
            reasonably may be performing her duties.  McClure, 188 
 
            N.W.2d 283 (Iowa 1971).
 
            
 
                 Arising out of suggests a causal relationship between 
 
            the employment and the injury.  Crowe, 246 Iowa 402, 68 
 
            N.W.2d 63 (1955).
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injuries of March 10, 
 
            1988 and April 5, 1988, are causally related to the 
 
            disability on which she now bases her claim.  Bodish v. 
 
            Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).  Lindahl 
 
            v. L. O. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945).  A 
 
            possibility is insufficient; a probability is necessary.  
 
            Burt v. John Deere Waterloo Tractor Works, 247 Iowa 691, 
 
            73 N.W.2d 732 (1955).  The question of causal connection is 
 
            essentially within the domain of expert testimony.  Bradshaw 
 
            v. Iowa Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167 
 
            (1960). 
 
            
 
                 However, expert medical evidence must be considered 
 
            with all other evidence introduced bearing on the causal 
 
            connection.  Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion 
 
            of experts need not be couched in definite, positive or 
 
            unequivocal language.  Sondag v. Ferris Hardware, 220 N.W.2d 
 
            903 (Iowa 1974).  However, the expert opinion may be 
 
            accepted or rejected, in whole or in part, by the trier of 
 
            fact.  Id. at 907.  Further, the weight to be given to such 
 
            an opinion is for the finder of fact, and that may be 
 
            affected by the completeness of the premise given the expert 
 
            and other surrounding circumstances.  Bodish, 257 Iowa 516, 
 
            133 N.W.2d 867.  See also Musselman, 261 Iowa 352, 154 
 
            N.W.2d 128 (1967).
 
            
 
                 Claimant has proven she has sustained an injury to her 
 
            left shoulder.  The injury arose out of and in the course of 
 
            her employment with defendant-employer.  The injury was the 
 
            result of repeated trauma at work.  Claimant was required to 
 
            repeatedly move and sack grocery items.  The repeated acts 
 
            involved the continual use of the left arm and shoulder.  
 
            Dr. Kienker, a treating physician, opined claimant's injury 
 
            was:
 
            
 
                 [A] result of repetitive use of the shoulder.  Her 
 
                 condition resulted from repetitive activities.  
 
                 Her injury was a result of cumulative trauma or a 
 
                 series of microtraumas.
 
            
 
                 Claimant has established that she has an injury which 
 
            is cumulative in nature.  Her injury fits under the Iowa 
 
            cumulative injury rule established by the Supreme Court in 
 
            McKeever Custom Cabinets v. Smith, 379 N.W.2d 368 (Iowa 
 
            1985).  Under McKeever, supra, the cumulative injury rule 
 
            applies when disability develops gradually or as a result of 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            repeated trauma.  Furthermore, in cases involving the 
 
            cumulative injury rule, the Supreme Court has determined the 
 
            injury occurs when an employee, because of pain or physical 
 
            inability, can no longer work.  McKeever, supra at 374.
 
            
 
                 In the case at hand, it is overwhelmingly clear 
 
            claimant did not miss work because of her left shoulder 
 
            until April 5, 1988.  Claimant did not see Dr. Neff for her 
 
            shoulder until April 4, 1988.  Claimant maintains she 
 
            reported left shoulder pain to Dr. Boulden, the physician 
 
            who treated her for a ganglion cyst on the left wrist.  
 
            Nevertheless, Dr. Boulden did not include mention of any 
 
            left shoulder problem in his office notes until April 4, 
 
            1988, the day he referred claimant to Dr. Neff.
 
            
 
                 Therefore, in light of the above, it is the 
 
            determination of the undersigned that claimant has sustained 
 
            a cumulative injury to her left shoulder.  The injury date, 
 
            under McKeever is the date claimant first missed work 
 
            because of her left shoulder injury.  That date is April 5, 
 
            1988.  Claimant did not sustain a left shoulder injury on 
 
            March 10, 1988.  At the time of claimant's injury on April 
 
            5, 1988, defendant-employer was insured by defendant - 
 
            Fireman's Fund.  Defendant Fireman's Fund is liable for 
 
            benefits and medical expenses.  Defendant - Aetna Casualty 
 
            and Surety Company is not liable for any portion of the left 
 
            shoulder injury.
 
            
 
                 The next issue to address is the nature and extent of 
 
            claimant's injury.  Dr. Kienker has noted claimant as having 
 
            an eight percent impairment to the body as a whole.  The 
 
            physician diagnosed claimant as having myofascial pain 
 
            syndrome.  Upon examination of claimant, Dr. Kienker found:
 
            
 
                 Physical examination:  Range of motion of the 
 
                 neck, left shoulder, and left elbow were recorded 
 
                 today for calculation of percentage of permanent 
 
                 impairment.  She has limited external rotation of 
 
                 the left shoulder.  This is only 40o.  She has 
 
                 limited flexion of the elbow.  She only flexes 
 
                 through a 130o angle.  Her impairments are 13% of 
 
                 the left upper extremity or 8% of the whole 
 
                 person.  Measurements which were less than normal 
 
                 were repeated a second time.  The patient appeared 
 
                 to give a good effort.
 
            
 
                 Dr. Winston opined as follows:
 
            
 
                 It would be my impression that the patient suffers 
 
                 from myofascial pain syndrome and has a permanent 
 
                 partial impairment of 3% of the body as a whole as 
 
                 a result of this cumulative injury. I would be 
 
                 hopeful that this recent change in job description 
 
                 will be helpful to her.  She certainly is 
 
                 employable.
 
            
 
                 Dr. Neff, in his report of January 15, 1990, wrote 
 
                 as follows:
 
            
 
                 This patient was sent by me to Dr. Karen Kienker, 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
                 and although I disagree with her impairment 
 
                 rating, I would agree with her diagnosis of 
 
                 myofascial syndrome.
 
            
 
                 The American Academy of Orthopaedic Sugeons [sic] 
 
                 defines this syndrome as "cervico-thoracic [sic] 
 
                 myofascial tension state".
 
            
 
                 This type of thing can arise de novo, and we see 
 
                 this type of a syndrome commonly in people who are 
 
                 under stress.  We see it in CPAs in the spring 
 
                 when taxes are ready, and we see it in Drake 
 
                 students when finals are approaching.  We see it 
 
                 in people who are under tension or stress for a 
 
                 variety of causes.
 
            
 
                 To the best of my knowledge, this patient has not 
 
                 had repetitive micro-trauma, because that implies 
 
                 activity of a severe enough intensity to cause 
 
                 actual injury.  Motion of the upper extremity and 
 
                 shoulder, in this circumstance, should not 
 
                 actually cause repetitive trauma, but can cause 
 
                 overuse.  I think there is a subtle but important 
 
                 difference, if not in actuality, certainly in 
 
                 intent.
 
            
 
                 This patient has sore muscles.  These muscles have 
 
                 not responded to physical therapy, and remain 
 
                 tender to palpation.
 
            
 
                 In my opinion, this patient does not have a 
 
                 permanent impairment with reference to her 
 
                 orthopaedic or musculoskeletal system, and does 
 
                 not have any reason why she could not go back to 
 
                 her previous job.  I believe that I have stated 
 
                 that previously in other reports.
 
            
 
                 She does have sore muscles, which can be treated 
 
                 with heating pads, hot showers, home range of 
 
                 motion, physical therapy, and other modalities.  
 
                 No surgery is indicated, and no restriction from 
 
                 reasonable activities is warranted.
 
            
 
                 The undersigned finds claimant has a permanent partial 
 
            disability.  Claimant argues she has sustained an industrial 
 
            disability in that her earning capacity has been reduced.
 
            
 
                 In Iowa, a finding of impairment to the body as a whole 
 
            found by a medical evaluator does not equate to industrial 
 
            disability.  This is so as impairment and disability are not 
 
            synonymous.  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
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            ability include the employee's medical condition prior to 
 
            the injury, immediately after the injury, and presently; the 
 
            situs of the injury, its severity and the length of healing 
 
            period; the work experience of the employee prior to the 
 
            injury, after the injury and potential for rehabilitation; 
 
            the employee's qualifications intellectually, emotionally 
 
            and physically; earnings prior and subsequent to the injury; 
 
            age; education; motivation; functional impairment as a 
 
            result of the injury; and inability because of the injury to 
 
            engage in employment for which the employee is fitted.  Loss 
 
            of earnings caused by a job transfer for reasons related to 
 
            the injury is also relevant.  These are matters which the 
 
            finder of fact considers collectively in arriving at the 
 
            determination of the degree of industrial disability.
 
            
 
                 There are no weighting guidelines that indicate how 
 
            each of the factors are to be considered.  There are no 
 
            guidelines which give, for example, age a weighted value of 
 
            ten percent of the total value, education a value of fifteen 
 
            percent of total, motivation - five percent; work experience 
 
            - thirty percent, etc.  Neither does a rating of functional 
 
            impairment directly correlate to a degree of industrial 
 
            disability to the body as a whole.  In other words, there 
 
            are no formulae which can be applied and then added up to 
 
            determine the degree of industrial disability.  It therefore 
 
            becomes necessary for the deputy or commissioner to draw 
 
            upon prior experience, general and specialized knowledge to 
 
            make the finding with regard to degree of industrial dis
 
            ability.  See Peterson v. Truck Haven Cafe, Inc., (Appeal 
 
            Decision, February 28, 1985);  Christensen v. Hagen, Inc., 
 
            (Appeal Decision, March 26, l985).
 
            
 
                 Here, claimant has a loss of range of motion of the 
 
            left shoulder.  Claimant believes she has a 10 pound weight 
 
            restriction and she believes she is restricted from the 
 
            repetitive use of her left shoulder.  The evidence is not 
 
            clear whether claimant is permanently restricted.  Claimant 
 
            was not advised by any physician to terminate her 
 
            employment.  This was a purely voluntary decision, although 
 
            it is noted claimant's work station was not modified to 
 
            allow goods to pass on the right side of claimant.
 
            
 
                 Claimant's age of 50 is working against her.  She does 
 
            have a high school education and transferable skills from 
 
            previous clerical positions.  Claimant has had recent 
 
            training in word processing.  Claimant is currently 
 
            employed, although in a position which pays less per hour 
 
            than her former position.  Her current position does not 
 
            provide benefits.  The greater weight of the evidence 
 
            establishes that claimant has a permanent partial disability 
 
            of eight percent.  Claimant is not an odd-lot employee.
 
            
 
                 Likewise claimant is entitled to healing period 
 
            benefits.  The parties have stipulated to the following 
 
            weeks:  April 5, 1988 to June 6, 1988, June 28, 1988 to 
 
            September 11, 1988, January 18, 1989 to February 9, 1989.  
 
            This is a period of 23.143 weeks at the stipulated rate of 
 
            $202.75 per week.  In addition, the parties stipulated 
 
            claimant is entitled to temporary partial disability 
 
            benefits for the period from September 12, 1988 to September 
 

 
            
 
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            16, 1988, and from October 15, 1988 to October 25, 1988.  
 
            The amount due for temporary partial disability benefits is 
 
            unknown to the undersigned.  Claimant's counsel did not put 
 
            on evidence of the amount in question.  Therefore, temporary 
 
            partial disability benefits are not allowed for September 
 
            12, 1988 to September 16, 1988 and from October 15, 1998 to 
 
            October 25, 1988.
 
            
 
                 The next issue to address is the issue of medical 
 
            benefits and mileage.  Claimant testified the following are 
 
            unpaid:
 
            
 
            
 
            12-22-88    Mercy Hospital  (MRI)                      $  
 
            836.00
 
            01-25-89    Mercy Hospital  arthrogram                  
 
            1,044.59
 
            05-10-88    Madison Cty. Hospital  Physical Therapy       
 
            972.00
 
            06-29-88    Madison Cty. Hospital  Physical Therapy       
 
            782.00
 
                                          Total                    
 
            $3,317.59
 
            
 
            Medical Mileage for 5184 miles @ $.21 per mile         
 
            $1,088.64
 
            
 
                 The employer is obliged to furnish reasonable and 
 
            necessary medical expenses.  The undersigned determines all 
 
            of the above are causally related to claimant's work injury 
 
            of April 5, 1988.  The charges appear reasonable and 
 
            necessary.  Defendant - Fireman's Fund is liable for the 
 
            same.
 
            
 
                 The final issue deals with section 86.13 penalty 
 
            benefits.  Claimant seeks additional compensation under the 
 
            fourth unnumbered paragraph of section 86.13.
 
            
 
                 Section 86.13 of the Iowa Code provides in relevant 
 
            portion:
 
            
 
                 If a delay in commencement or termination of 
 
                 benefits occurs without reasonable or probable 
 
                 cause or excuse, the industrial commissioner shall 
 
                 award benefits in addition to those benefits 
 
                 payable under this chapter, or chapter 85, 85A, or 
 
                 85B, up to fifty percent of the amount of benefits 
 
                 that were unreasonably delayed or denied.
 
            
 
                 This same issue was recently addressed by Deputy 
 
            Industrial Commissioner Michael Trier in the case of Parker 
 
            v. Johnsrud Transport Inc., File Nos. 894148, 894149 
 
            (Arbitration Decision filed on May 15, 1990.  In his 
 
            decision, Deputy Trier wrote:
 
            
 
                 Claimant seeks to recover additional compensation 
 
                 under the fourth unnumbered paragraph of Code 
 
                 section 86.13.  Chapter 85 of The Code makes 
 
                 employers responsible for payment of compensation 
 
                 for all injuries which arise out of and in the 
 

 
            
 
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                 course of employment.  Chapter 87 requires all 
 
                 employers to carry liability insurance, or qualify 
 
                 as a self-insured, in order to guarantee suffi
 
                 cient solvency to pay the weekly benefits as the 
 
                 same come due under Chapter 85.  As no weekly 
 
                 compensation was awarded for the February 5, 1988 
 
                 injury, there is no need to discuss the 
 
                 reasonableness of the denial of payment of 
 
                 compensation for that injury.  The October 28, 
 
                 1988 injury, however, produced an extended period 
 
                 of healing period and some permanent disability.  
 
                 A dispute between which of an employer's two 
 
                 insurance carriers is liable is not a lawful 
 
                 defense to a claim for benefits under Chapter 85.  
 
                 In fact, section 85.21 provides a method by which 
 
                 such disputes can be properly litigated and 
 
                 determined without delaying or denying an 
 
                 otherwise valid claim for workers' compensation 
 
                 benefits.  There is no requirement for any 
 
                 insurance carrier to make use of section 85.21.  
 
                 But, when the only bona fide, justicifiable [sic] 
 
                 dispute in a case is to determine which of an 
 
                 employer's two carriers is responsible for paying, 
 
                 it is very appropriate to make use of section 
 
                 85.21.  The law places the liability for payment 
 
                 on the employer.  The primary roles of the insurer 
 
                 are to act as the employer's representative for 
 
                 administering and paying the claim as well as a 
 
                 guarantee of solvency.  When the only bona fide 
 
                 dispute in a case is that of which of an 
 
                 employer's two carriers is liable for payment, it 
 
                 is a classic, textbook example of a situation in 
 
                 which the imposition of a penalty under section 
 
                 86.13(4) is fully warranted.  Failure to pay a 
 
                 claim is unreasonable unless the validity of the 
 
                 claim is fairly debatable.  Dolan v. Aid Ins. Co., 
 
                 431 N.W.2d 790 (Iowa 1988); Kimberly-Clark Corp. 
 
                 v. Labor & Indus. Review Comm'n, 405 N.W.2d 685 
 
                 (Wisc. App. 1987); Anderson v. Continental Ins. 
 
                 Co., 271 N.W.2d 368, 376 (Wisc. 1978).  In this 
 
                 case, there was no reasonable basis for denying 
 
                 Calvin Parker's claim for healing period 
 
                 compensation following the October 28, 1988 
 
                 injury.  An additional 12 weeks of compensation is 
 
                 therefore awarded for the unreasonable denial of 
 
                 the claim....
 
            
 
                 In the case before this deputy, there was no real 
 
            dispute that claimant had sustained a permanent disability.  
 
            Defendants' own physicians, Winston and Kienker, had 
 
            provided functional impairment ratings.  The only real 
 
            dispute was the dispute between the two insurance carriers  
 
            as to which carrier was responsible for the injury on April 
 
            5, 1988.  Defendant Fireman's Fund's letter of January 24, 
 
            1989, clearly demonstrated it did not want to pay benefits 
 
            because the company was attempting to determine which one of 
 
            two carriers was liable.  This was not a valid defense.  
 
            Fireman's Fund did not tender payment for any permanency 
 
            until November 9, 1989.  Defendant's actions were 
 
            unreasonable.  Therefore, claimant is entitled to 15 weeks 
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
            of additional compensation for the unreasonable denial of 
 
            the claim.
 
            
 
                                      order
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 For file number 910531:  Defendants Fareway Stores and 
 
            Fireman's Fund are to pay forty (40) weeks of permanent 
 
            partial disability benefits to claimant at the stipulated 
 
            rate of two hundred two and 75/l00 dollars ($202.75) per 
 
            week commencing on February 10, 1989.
 
            
 
                 For file number 910531:  Defendants Fareway Stores and 
 
            Fireman's Fund are to pay twenty-three point one-four-three 
 
            (23.143) weeks of healing period benefits at the stipulated 
 
            rate of two hundred two and 75/l00 dollars ($202.75) per 
 
            week.
 
            
 
                 For file number 910531:  Defendants Fareway Stores and 
 
            Fireman's Fund are to pay three thousand forty-one and 
 
            25/l00 dollars ($3,041.25) to claimant in a lump sum, 
 
            payable on the date of this decision representing fifteen 
 
            (15) weeks of compensation payable as a penalty under the 
 
            fourth unnumbered paragraph of Iowa Code section 86.13.
 
            
 
                 For file number 910531:  Payments that have accrued 
 
            shall be paid in a lump sum together with statutory interest 
 
            pursuant to Iowa Code section 85.30.
 
            
 
                 For file number 910531:  Defendants Fareway Stores and 
 
            Fireman's Fund are liable for the following medical expenses 
 
            and mileage:
 
            
 
                 
 
            12-22-88    Mercy Hospital  (MRI)                      $  
 
            836.00
 
            01-25-89    Mercy Hospital  arthrogram                  
 
            1,044.59
 
            05-10-88    Madison Cty. Hospital  Physical Therapy       
 
            972.00
 
            06-29-88    Madison Cty. Hospital  Physical Therapy       
 
            782.00
 
                                          Total                    
 
            $3,317.59
 
            
 
            Medical Mileage for 5184 miles @ $.21 per mile         
 
            $1,088.64
 
            
 
                 For file number 882959:  Claimant takes nothing further 
 
            from these proceedings.
 
            
 
                 Costs of these actions shall be paid by defendants, 
 
            however, defendant Aetna is only responsible for its own 
 
            costs in file number 882959.
 
            
 
                 Defendants shall file a claim activity report as 
 
            requested by this division pursuant to Division of 
 
            Industrial Services Rule 343-3.1.
 
            
 

 
            
 
            Page  11
 
            
 
            
 
            
 
            
 
            
 
            
 
                 Signed and filed this ____ day of June, 1990.
 
            
 
            
 
            
 
            
 
            
 
                                          ______________________________               
 
            MICHELLE A. McGOVERN
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Tom L. Drew
 
            Attorney at Law
 
            West Towers Office
 
            1200 35th St  STE 500
 
            West Des Moines  IA  50265
 
            
 
            Mr. Richard G. Book
 
            Attorney at Law
 
            500 Liberty Bldg
 
            Des Moines  IA  50309
 
            
 
            Mr. Glenn Goodwin
 
            Ms. Lorraine J. May
 
            Attorneys at Law
 
            4th Floor Equitable Bldg
 
            Des Moines  IA  50309
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                    5-1800; 4000.2
 
                                                    Filed June 27, 1990
 
                                                    MICHELLE A. McGOVERN
 
             before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            ELIZABETH "JANE" MAREAN,      :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :    File Nos. 882959 & 910531
 
            FAREWAY STORES, INC.,         :
 
                                          :      A R B I T R A T I O N
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            FIREMAN'S FUND INSURANCE CO., :
 
            & AETNA LIFE AND CASUALTY,    :
 
                                          :
 
                 Insurance Carriers,      :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
            5-1800
 
            Claimant awarded 40 weeks of permanent partial disability 
 
            benefits for a shoulder injury.
 
            
 
            4000.2
 
            Defendant insurance carrier assessed 15 weeks of penalty 
 
            benefits where only defense was which one of two insurance 
 
            carriers was liable for benefits.
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                      
 
            SHEILA SAMPLE, 
 
                      
 
                 Claimant, 
 
                      
 
            vs.       
 
                                              File No.   910533
 
            WALGREENS,     
 
                                                A P P E A L
 
                 Employer, 
 
                                               D E C I S I O N
 
            and       
 
                      
 
            TRAVELERS,     
 
                      
 
                 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 May 17, 1991, is affirmed and is adopted as the final 
 
            agency action in this case. 
 
            Claimant shall pay the costs of the appeal, including the 
 
            preparation of the hearing transcript.
 
            Signed and filed this ____ day of October, 1991.
 
            
 
            
 
            
 
            
 
                                     ________________________________
 
                                             BYRON K. ORTON
 
                                        INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Channing L. Dutton
 
            Attorney at Law
 
            1200 35th St. STE 500
 
            West Des Moines, Iowa  50265
 
            
 
            Mr. Terry L. Monson
 
            Attorney at Law
 
            100 Court Ave. STE 600
 
            Des Moines, Iowa  50309-2207
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                      9998
 
                      Filed October 3, 1991
 
                                    Byron K. Orton
 
                      MGT
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
		                      :
 
            SHEILA SAMPLE,	      :
 
		                      :
 
                 Claimant,	      :
 
		                      :
 
		            vs.       :
 
		                      :      File No. 910533
 
            WALGREENS, 		      :
 
 		                      :        A P P E A L
 
                 Employer,            :
 
		                      :      D E C I S I O N
 
		            and       :
 
                		      :
 
            TRAVELERS,     	      :
 
                      		      :
 
                 Insurance Carrier,   :
 
                 Defendants.          :
 
            ___________________________________________________________
 
            
 
            9998
 
            
 
                 Summary affirmance of deputy's decision filed May 17, 
 
            1991.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            SHEILA SAMPLE,                :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :         File No. 910533
 
            WALGREENS,                    :
 
                                          :      A R B I T R A T I O N
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            TRAVELERS INSURANCE COMPANY,  :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding in arbitration brought by Sheila 
 
            Sample against Walgreens, her former employer, based upon an 
 
            alleged injury of April 5, 1989.  Claimant seeks 
 
            compensation for healing period, permanent partial 
 
            disability and payment of medical expenses.
 
            
 
                 The primary issues to be determined are whether the 
 
            claimant sustained an injury on or about April 5, 1989 which 
 
            arose out of and in the course of employment with the 
 
            employer, determination of her entitlement to weekly 
 
            compensation for healing period and permanent partial 
 
            disability and determination of her entitlement to recover 
 
            expenses of medical treatment.
 
            
 
                 The case was heard and fully submitted at Des Moines, 
 
            Iowa on February 13, 1991.  The evidence in the case 
 
            consists of testimony from Sheila Sample, Terry Ober and 
 
            Judy Cardis.  The record also contains jointly offered 
 
            exhibits 1 through 12.
 
            
 
                                 findings of fact
 
            
 
                 Having considered all the evidence received, together 
 
            with the appearance and demeanor of the witnesses, the 
 
            following findings of fact are made.
 
            
 
                 Sheila Sample testified at hearing that she injured her 
 
            left shoulder on April 5, 1989 while handling boxes which 
 
            contained merchandise used to restock shelves in the 
 
            Walgreens store where she was employed.  Sheila testified 
 
            that she reported the injury to Terry Ober, the supervisor 
 
            who was on duty at the time.  Ober testified that no such 
 
            injury was reported.  There were no witnesses to the alleged 
 
            incident and no other witnesses to events dealing with the 
 
            initial reporting of the alleged injury.
 
            
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
                 When Sheila first sought medical treatment for the 
 
            condition from her family physician on April 6, 1989, she 
 
            provided a history of having pulled her left shoulder while 
 
            at work on the previous day and that she had pain similar to 
 
            that which had been in her right shoulder several months 
 
            earlier, a condition for which she underwent surgery 
 
            (exhibit 3, page 27).
 
            
 
                 Thereafter, Sheila entered into a course of medical 
 
            treatment which eventually led to surgery being performed on 
 
            Sheila's left shoulder by Des Moines orthopaedic surgeon 
 
            Martin Rosenfeld, D.O., on May 2, 1989.  A subsequent 
 
            surgery was performed on the same shoulder on March 27, 1990 
 
            (exhibit 6, pages 84 and 89).  It is noted that, when the 
 
            surgery was performed on May 2, 1989, the doctor observed 
 
            spurs in claimant's acromioclavicular joint.
 
            
 
                 As part of the process of preparing for hearing, 
 
            claimant was deposed on July 12, 1989.  During the course of 
 
            her deposition, she denied ever having any problems with her 
 
            left shoulder prior to April 5, 1989 (exhibit 11, pages 
 
            19-21 and 33).  Exhibit 1, pages 4-6, shows that claimant 
 
            sought medical treatment for her left shoulder commencing 
 
            December 14, 1987 and that the problem continued through at 
 
            least February 15, 1988.  During the course of treatment, 
 
            she received medications and physical therapy for the 
 
            condition, with the last physical therapy having been 
 
            performed on February 11, 1988.  The records from that 
 
            treatment show that the range of motion of her left shoulder 
 
            was only 50 percent of normal at the time of the last 
 
            therapy session (exhibit 2, pages 14 and 15).
 
            
 
                 Judy Cardis, an employee of Walgreens whose last day of 
 
            work was the day of hearing, testified that she had 
 
            conversed with claimant prior to April 5, 1989 and that, 
 
            when having a general discussion of aches and pains, 
 
            claimant related that she had undergone surgery on her right 
 
            arm and should also have had surgery on the left at the same 
 
            time.  Cardis stated that claimant had mentioned that her 
 
            left shoulder hurt.  When deposed, claimant denied ever 
 
            mentioning pain in her arms to anyone at work (exhibit 11, 
 
            page 34).
 
            
 
                 Claimant's surgeon, Dr. Rosenfeld, expressed the 
 
            opinion that the April 5, 1989 injury which claimant had 
 
            described to him was causally connected with the condition 
 
            for which he performed surgery, but he also indicated in his 
 
            report that the injury may have been an aggravation of a 
 
            preexisting condition (exhibit 5, page 74).  Eric A. Ravitz, 
 
            D.O., another physician who treated claimant for the left 
 
            shoulder condition, expressed the opinion that, based upon 
 
            the history and physical examination, claimant's left 
 
            shoulder injury was work related (exhibit 3, page 44).
 
            
 
                 In a letter dated December 8, 1989, Carole Kuhle, D.O., 
 
            the physician who treated claimant's left shoulder problem 
 
            in 1988, reported that the shoulder problem occurred while 
 
            claimant was wrestling with her children and that it was not 
 
            a significant injury (exhibit 1, pages 12 and 13).
 
            
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
                 The claimant is, of course, interested in the outcome 
 
            of this case.  Terry Ober, as a managerial employee of 
 
            Walgreens, has some interest in the case, albeit less than 
 
            claimant's.  Since Judy Cardis was in the process of leaving 
 
            her employment with Walgreens, the only possible interest 
 
            she could have in the case is that she had previously 
 
            reported claimant's statements well in advance of the time 
 
            she left employment at Walgreens and that she might be 
 
            reluctant to retract those statements.
 
            
 
                 The testimony from Terry Ober that the boxes which 
 
            claimant handled would have been 12 inches by 12 inches by 
 
            18 inches is not contradicted.  Even if it were to be 
 
            assumed that those boxes were full of a liquid product such 
 
            as cleaning solutions, shampoo or some other fluid, it would 
 
            seem that there would not be any particularly large amount 
 
            of weight involved in handling the boxes.  It is further 
 
            noted that the boxes would not have been handled above 
 
            shoulder level and that most of the handling would have 
 
            occurred at or below waist level, a position which does not 
 
            particularly stress the shoulder.  See Dr. Rosenfeld's note 
 
            of June 26, 1989, exhibit 3, page 53.
 
            
 
                 It is particularly noteworthy that as recently as 
 
            February of 1988, claimant was reported by the Broadlawns 
 
            Physical Therapy Department to have only 50 percent of the 
 
            normal range of motion of her left shoulder.  She had been 
 
            under a course of medical treatment for that shoulder since 
 
            December 14, 1987, a span of approximately two months, which 
 
            occurred little more than a year prior to the date of her 
 
            alleged injury in this case.  The treatment which she 
 
            received included physical therapy.  The medical notes even 
 
            make reference to claimant having a possible early frozen 
 
            shoulder (exhibit 1, page 6).  The notes record claimant's 
 
            complaints as having been quite severe.  It is likewise 
 
            noted that the medical history received by Drs. Ravitz and 
 
            Rosenfeld does not include any reference to the prior 
 
            incident of left shoulder problems for which claimant sought 
 
            and received medical care.  In view of the relatively short 
 
            amount of time which transpired between the prior left 
 
            shoulder problem and the deposition, the apparent severity 
 
            of the prior problem, and the medical treatment claimant 
 
            received for the prior problem, it is difficult to accept 
 
            the proposition that the claimant could have forgotten about 
 
            that prior problem when she was deposed.
 
            
 
                 It is found that it is certainly possible that Sheila 
 
            Sample may have in some manner injured or strained her left 
 
            shoulder while working on April 5, 1989 at the Walgreens 
 
            store.  Claimant's credibility is, however, impaired by her 
 
            obviously incorrect statements which denied the existence of 
 
            any prior left shoulder problem, both when she was deposed 
 
            and when she sought treatment from Drs. Ravitz and 
 
            Rosenfeld.  Claimant's credibility is further impaired by 
 
            the conflicting evidence given by Terry Ober and Judy 
 
            Cardis.  It is found that, when all the evidence is given 
 
            the weight which the undersigned has determined to be 
 
            appropriate, the evidence fails to show it to be probable 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            that Sheila Sample injured her left shoulder at the 
 
            Walgreens store on April 5, 1989 or that any such injury 
 
            which might have occurred was anything other than a minor, 
 
            temporary aggravation of a preexisting condition.  The 
 
            evidence fails to show it to be probable that any injury 
 
            which might have occurred on April 5, 1989 produced any 
 
            actual disability, the need for the surgeries which have 
 
            been performed or otherwise had any significant effect upon 
 
            Sheila Sample's left shoulder.
 
            
 
                                conclusions of law
 
            
 
                 Claimant has the burden of proving by a preponderance 
 
            of the evidence that she received an injury on April 5, 1989 
 
            which arose out of and in the course of her employment. 
 
            McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa 
 
            1976); Musselman v. Cent. Tel. Co., 261 Iowa 352, 154 N.W.2d 
 
            128 (1967). 
 
            
 
                 The 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 causal relationship between the 
 
            employment and the injury.  Sheerin v. Holin Co., 380 N.W.2d 
 
            415, 417 (Iowa 1986).
 
            
 
                 The alleged injury which is the basis of the claim made 
 
            in this case was not witnessed by any other person.  
 
            Therefore, the claimant's credibility is critical in 
 
            establishing whether or not the injury occurred.  The 
 
            claimant's credibility in that regard is seriously impaired 
 
            by her own inconsistent statements regarding her medical 
 
            history and the testimony from witnesses Ober and Cardis.  
 
            The activities in which she was engaged, by her own 
 
            description, do not appear to have any significant potential 
 
            for causing a substantial shoulder injury.  They are 
 
            activities which, however, could be expected to produce 
 
            symptoms in a person who had a preexisting condition.  Prior 
 
            to the time of hearing, however, the claimant had denied the 
 
            existence of any facts which could be the basis for a 
 
            preexisting condition.
 
            
 
                 Aggravation of a preexisting condition is one form of 
 
            compensable injury.  While a claimant is not entitled to 
 
            compensation for the results of a preexisting injury or 
 
            disease, the mere existence at the time of a subsequent 
 
            injury is not a defense.  Rose v. John Deere Ottumwa Works, 
 
            247 Iowa 900, 908, 76 N.W.2d 756, 760-61 (1956).  If the 
 
            claimant had a preexisting condition or disability that is 
 
            aggravated, accelerated, worsened or lighted up so that it 
 
            results in disability, claimant is entitled to recover.  
 
            Nicks v. Davenport Produce Co., 254 Iowa 130, 115 N.W.2d 
 
            812, 815 (1962).
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury of April 5, 
 
            1989 is causally related to the disability on which she now 
 
            bases her claim.  Bodish v. Fischer, Inc., 257 Iowa 516, 133 
 
            N.W.2d 867 (1965).  Lindahl v. L. O. Boggs, 236 Iowa 296, 18 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            N.W.2d 607 (1945).  A possibility is insufficient; a 
 
            probability is necessary.  Burt v. John Deere Waterloo 
 
            Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955).  The 
 
            question of causal connection is essentially within the 
 
            domain of expert testimony.  Bradshaw v. Iowa Methodist 
 
            Hosp., 251 Iowa 375, 101 N.W.2d 167 (1960). 
 
            
 
                 However, expert medical evidence must be considered 
 
            with all other evidence introduced bearing on the causal 
 
            connection.  Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion 
 
            of experts need not be couched in definite, positive or 
 
            unequivocal language.  Sondag v. Ferris Hardware, 220 N.W.2d 
 
            903 (Iowa 1974).  However, the expert opinion may be 
 
            accepted or rejected, in whole or in part, by the trier of 
 
            fact.  Id. at 907.  Further, the weight to be given to such 
 
            an opinion is for the finder of fact, and that may be 
 
            affected by the completeness of the premise given the expert 
 
            and other surrounding circumstances.  Bodish, 257 Iowa 516, 
 
            133 N.W.2d 867.  See also Musselman v. Cent. Tel. Co., 261 
 
            Iowa 352, 154 N.W.2d 128 (1967).
 
            
 
                 The medical opinions from Drs. Ravitz and Rosenfeld are 
 
            flawed because they both relied upon a history of there 
 
            being no prior problems with claimant's left shoulder.  It 
 
            is to be expected that Dr. Rosenfeld saw the objective 
 
            evidence of prior shoulder problems when he observed spurs 
 
            during surgery as noted in the operative report and as noted 
 
            in his subsequent report where he made reference to the 
 
            possibility of a preexisting condition.  The treatment from 
 
            Dr. Kuhle did not include the types of diagnostic tests 
 
            which would have revealed the underlying condition.  The 
 
            therapy notes do not show a complete recovery.  Her opinion 
 
            that the prior injury was not significant is rejected.
 
            
 
                 The evidence fails to show that whatever happened on 
 
            April 5, 1989 produced any significant change in the 
 
            claimant's left shoulder.  There most certainly was a 
 
            preexisting condition as evidenced by the spurs found during 
 
            surgery.  Spurs do not form in a matter of only a few weeks.  
 
            Their formation normally involves a passage of time which is 
 
            measured in several months or even in years.  Even if it 
 
            were to have been found that the claimant had in some manner 
 
            strained her shoulder and experienced pain in her shoulder 
 
            on April 5, 1989 while at work, that fact would not be 
 
            sufficient to demonstrate, by a preponderance of the 
 
            evidence, that it is probable that the event produced any 
 
            significant change in the overall condition of the left 
 
            shoulder including the need for surgery or the level of any 
 
            permanent disability affecting the shoulder.  It is noted 
 
            that the last medical report prior to the alleged injury 
 
            showing the level of functioning of claimant's left shoulder 
 
            is the physical therapy note from Broadlawns Hospital which 
 
            reports a 50 percent loss of range of motion in the 
 
            shoulder.  The most recent reports issued following both of 
 
            the left shoulder surgeries show the shoulder to be in 
 
            better condition now than it was in early 1988 when the last 
 
            physical therapy treatment was received.
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            
 
                 It is therefore concluded that Sheila Sample has failed 
 
            to prove, by a preponderance of the evidence, that she 
 
            sustained an injury to her left shoulder which arose out of 
 
            and in the course of her employment on April 5, 1989.  She 
 
            is therefore not entitled to any recovery in this action.
 
            
 
                           
 
            
 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            order
 
            
 
                 IT IS THEREFORE ORDERED that claimant take nothing from 
 
            this proceeding.
 
            
 
                 IT IS FURTHER ORDERED that the costs of this proceeding 
 
            are assessed against the claimant.
 
            
 
                 Signed and filed this ______ day of ____________, 1991.
 
            
 
                 
 
            
 
                 
 
                 
 
                                          ______________________________
 
                                          MICHAEL G. TRIER
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Channing L. Dutton
 
            Attorney at Law
 
            West Towers Office Complex
 
            1200 35th Street, Suite 500
 
            W. Des Moines, Iowa  50265
 
            
 
            Mr. Terry L. Monson
 
            Attorney at Law
 
            100 Court Avenue, Suite 600
 
            Des Moines, Iowa  50309
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                           5-1402.20; 5-1402.30
 
                           Filed May 17, 1991
 
                           MICHAEL G. TRIER
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            SHEILA SAMPLE, :
 
                      :
 
                 Claimant, :
 
                      :
 
            vs.       :
 
                      :         File No. 910533
 
            WALGREENS,     :
 
                      :      A R B I T R A T I O N
 
                 Employer, :
 
                      :         D E C I S I O N
 
            and       :
 
                      :
 
            TRAVELERS INSURANCE COMPANY,  :
 
                      :
 
                 Insurance Carrier,  :
 
                 Defendants.    :
 
            ____________________________________________________________
 
            
 
            5-1402.20; 5-1402.30
 
            Claimant's credibility was successfully attacked by 
 
            defendants in proving that she had prior shoulder problems, 
 
            which problems were denied when she was deposed and were not 
 
            reported to her treating physicians.  Claimant's testimony 
 
            regarding reporting her injury and of not having made 
 
            statements concerning her prior problems to a co-employee 
 
            were rebutted by conflicting testimony from other witnesses.
 
            Held:  Claimant failed to establish that the injury actually 
 
            occurred.  It was unwitnessed by any other individual.  
 
            Further, it was held that the claimant failed to prove that 
 
            the injury, even if it did occur, was of sufficient severity 
 
            to have produced the disability and the need for the medical 
 
            treatment which were the bases of her claim in view of her 
 
            preexisting condition.
 
            
 
 
         
 
         
 
         
 
         
 
         
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         ____________________________________________________________
 
                                        :
 
         GEORGE P. ROCHE,               :
 
                                        :
 
              Claimant,                 :
 
                                        :
 
         vs.                            :
 
                                        :      File No. 910537
 
         DEPT. OF COMMUNITY CORRECTIONS,:
 
                                        :        A P P E A L
 
              Employer,                 :
 
                                        :      D E C I S I O N
 
         and                            :
 
                                        :
 
         STATE OF IOWA,                 :
 
                                        :
 
              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 
 
         January 24, 1992 is affirmed and is adopted as the final agency 
 
         action in this case, with the following additional analysis:
 
         
 
              Defendants argue that in order to meet the legal causation 
 
         test, claimant must show that he suffered job stress greater than 
 
         that experienced by other employees in the same occupation.  This 
 
         is an incorrect standard.
 
         
 
              It is recognized that some other states have adopted a 
 
         standard of compensability involving a legal causation test that 
 
         compares the claimant's work stress conditions with the work 
 
         stress conditions of other employees in the same occupation.  
 
         However, the better rule is a legal causation test that compares 
 
         the claimant's work stress conditions with the work stress 
 
         conditions of all employees in general.  This is also the 
 
         approach favored by Professor Larson in his treatise:
 
         The real distinction here should be, not between sudden and 
 
         gradual stimuli, but between gradual stimuli that are 
 
         sufficiently more damaging than those of everyday employment life 
 
         to satisfy the normal "arising out of" test, and those that are 
 
         not....Wisconsin has produced the most straightforward example of 
 
         this correct way of drawing the line, in Swiss Colony v. Dept. of 
 
         ILHR.
 
         
 
         1B Larson Workmen's Compensation Law at section 42.23(b), pp. 
 
         7-911.
 
         
 
              In order to satisfy the legal causation test, claimant need 
 
         only show that his condition "resulted from a situation of 
 
         greater dimensions than the day-to-day mental stresses and 
 
         tensions which all employees, must experience (emphasis added).  
 
         Swiss Colony v. Department of ICAR, 240 N.W.2d 128, 130 (Wisc. 
 

 
         
 
         Page   2
 
         
 
         
 
         
 
         
 
         1976).
 
         
 
              This agency has consistently adhered to this approach.  
 
         Claimant's job stress is to be compared to the general job stress 
 
         endured by all employees in all lines of work, not just 
 
         claimant's particular line of work.  See Render v. Iowa 
 
         Department of Human Services, Appeal Decision, April 29, 1988; 
 
         Kostelac v. Feldman's, Inc., Appeal Decision, June 13, 1990; 
 
         Kelly v. Sheffield Care Center, Appeal Decision, October 31, 
 
         1991; Ohnemus v. John Deere Davenport Works, Appeal Decision, 
 
         February 26, 1990; Desgranges v. Dept. of Human Services, Appeal 
 
         Decision, August 19, 1988.
 
         
 
              For the reason stated by the deputy in her arbitration 
 
         decision, the claimant has carried his burden of proof to show 
 
         that the stress he experienced on the job was greater than the 
 
         general job stress and tensions all employees experience.
 
         
 
              Defendant shall pay the costs of the appeal, including the 
 
         preparation of the hearing transcript.
 
         
 
              Signed and filed this ____ day of June, 1993.
 
         
 
         
 
         
 
         
 
                                       ________________________________
 
                                                BYRON K. ORTON
 
                                           INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Sheldon M. Gallner
 
         Attorney at Law
 
         803 3rd Avenue
 
         P O Box 1588
 
         Council Bluffs, Iowa  51502
 
         
 
         Mr. Robert D. Wilson
 
         Assistant Attorney General
 
         Tort Claims Division
 
         Hoover State Office Building
 
         Des Moines, Iowa  50319
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                             2204
 
                                             Filed June 17, 1993
 
                                             Byron K. Orton
 
            
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                           :
 
            GEORGE P. ROCHE,               :
 
                                           :
 
                 Claimant,                 :
 
                                           :
 
            vs.                            :
 
                                           :      File No. 910537
 
            DEPT. OF COMMUNITY CORRECTIONS,:
 
                                           :        A P P E A L
 
                 Employer,                 :
 
                                           :      D E C I S I O N
 
            and                            :
 
                                           :
 
            STATE OF IOWA,                 :
 
                                           :
 
                 Insurance Carrier,        :
 
                 Defendants.               :
 
            ___________________________________________________________
 
            
 
            2204
 
            In a "mental-mental" case, held that the standard for 
 
            meeting the legal test is whether claimant's job stress was 
 
            greater than that experienced by all other employees.  The 
 
            comparison is not with other employees in the same 
 
            profession.  Citing Swiss Colony v. Dept. of ILHR and 
 
            Larson.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            DENNIS E. DELANEY,            :
 
                                          :
 
                 Claimant,                :
 
                                          :         File No. 910544
 
            vs.                           :
 
                                          :      A R B I T R A T I O N
 
            JOHN DEERE DUBUQUE WORKS      :
 
            OF DEERE & COMPANY,           :         D E C I S I O N
 
                                          :
 
                 Employer,                :
 
                 Self-Insured,            :
 
                 Defendant.               :
 
            ____________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding in arbitration brought by Dennis 
 
            E. Delaney against his employer, John Deere Dubuque Works of 
 
            Deere & Company.  Claimant alleges that his bilateral carpal 
 
            tunnel syndrome is an injury which arose out of and in the 
 
            course of his employment on or about June 30, 1989 as a 
 
            result of cumulative trauma work activity.  The primary 
 
            issues to be determined are whether the condition is an 
 
            injury which arose out of and in the course of employment, 
 
            determination of claimant's entitlement to weekly 
 
            compensation for healing period and permanent partial 
 
            disability.  Defendant has asserted that the claim is barred 
 
            by lack of notice under the provisions of Iowa Code section 
 
            85.23.
 
            
 
                 The record in this case consists of joint exhibits 1 
 
            through 16, claimant's exhibit 17 and testimony from Dennis 
 
            E. Delaney, Lee McClenahan, M.D., Robert McCabe, David 
 
            Kothenbeutel, Mary Jo Shinkunas, Stanley Friedlein, James 
 
            Jagerliner and Daniel Timmerman.
 
            
 
                                 findings of fact
 
            
 
                 Having considered all the evidence received, together 
 
            with the appearance and demeanor of the witnesses, the 
 
            following findings of fact are made.
 
            
 
                 Dennis E. Delaney is a 39-year-old man who has been 
 
            employed at the John Deere Dubuque Works since 1972.  He has 
 
            been a machinist for all but five years when he was a 
 
            supervisor.  The last ten years have been spent in the 
 
            position of a machinist.  He operates a battery of machines 
 
            consisting of two lathes and a radial drill, all of which 
 
            operate concurrently.  Exhibit 16 is a videotape of the job 
 
            activities required in claimant's position.  The videotape 
 
            shows the work being performed at what is considered to be 
 
            100 percent of normal rate.  Claimant consistently operates 
 
            the machine at a much faster rate than that shown on the 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
            
 
            videotape.
 
            
 
                 Some direct evidence of claimant's off-work activities 
 
            appears in the record.  He operated a carpet cleaning 
 
            business from mid-1987 through mid-1988.  Commencing in 
 
            mid-1988, he began a business of installing tinting on 
 
            windows, including automobile windows, a business which he 
 
            continued to operate at the time of hearing.  While both of 
 
            the businesses involved use of the hands and arms, the use 
 
            does not appear to have been particularly strenuous.  
 
            Claimant owns a motorcycle which he rides.  He has been 
 
            president of the Harley motorcycle club.  Claimant has also 
 
            participated in "tough man" competitions on six or seven 
 
            occasions.  Claimant presented at hearing with a muscular 
 
            build consistent with that of a person who works out and 
 
            engages in activities such as weight lifting or body 
 
            building.  The medical records in evidence show incidents of 
 
            injury resulting from those types of activities (exhibit 1, 
 
            page 3, March 13, 1978; exhibit 1, page 6, June 22, 1981 and 
 
            August 19, 1983).  Working out and weight lifting can 
 
            involve strenuous use of the hands and arms.  The record 
 
            contains no direct testimony of the extent of claimant's 
 
            fitness or body building activities.
 
            
 
                 According to claimant's testimony, he noticed tingling 
 
            in his left hand in June of 1988 while watching motorcycle 
 
            races, but the symptoms went away.  He then returned to work 
 
            on July 11, 1988, worked for approximately ten days and then 
 
            went off work again for a two- or three-week plant shutdown.  
 
            While off work, he noticed the symptoms again.  When 
 
            claimant returned to work after the shutdown, his symptoms 
 
            worsened.  By October, he had developed similar symptoms in 
 
            his right hand.  Claimant stated that he had symptoms in his 
 
            left hand for a couple of years prior to June, 1988, but 
 
            thought that it was due to back trouble, a condition which 
 
            has afflicted him for a number of years.
 
            
 
                 Claimant's primary treating physician for the carpal 
 
            tunnel syndrome was R. Scott Cairns, M.D., a Dubuque 
 
            orthopaedic surgeon.  Exhibit 3 is a collection of records 
 
            from Dr. Cairns.  The initial entry contains the following 
 
            statement:  "He noted left hand numbness since racing 
 
            motorcycles."  (Exhibit 3, page 1)  A note dated October 14, 
 
            1988 indicates that claimant is going to make a workers' 
 
            compensation claim for the condition.  It indicates that he 
 
            was going to discuss whether or not the condition was work 
 
            related with Lee McClenahan, M.D., the John Deere plant 
 
            physician.
 
            
 
                 Claimant underwent carpal tunnel release surgery on his 
 
            right hand on January 11, 1989.  A similar surgery was 
 
            performed on the left hand on March 15, 1989 (exhibit 3, 
 
            pages 2 and 3).  Following recuperation, Dr. Cairns rated 
 
            claimant as having a 10 percent permanent impairment of each 
 
            upper extremity, an amount which was equivalent to 12 
 
            percent of the whole person (exhibit 3, page 1a).  The 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            
 
            
 
            rating is accepted as being correct.  The record contains no 
 
            indication with regard to whether or not Dr. Cairns felt 
 
            that the condition was related in any manner to claimant's 
 
            employment at the John Deere Dubuque Works.
 
            
 
                 Lee McClenahan, M.D., the John Deere plant physician, 
 
            confirmed that claimant has bilateral carpal tunnel 
 
            syndrome.  He stated that it was possible to develop the 
 
            condition from the radial drill operator job, but that it 
 
            was probably outside activities which produced Delaney's 
 
            carpal tunnel syndrome.  He explained that, in view of the 
 
            timing of the onset of symptoms, namely that they occurred 
 
            while claimant was off work, there is probably no causal 
 
            connection.  Dr. McClenahan further explained that when the 
 
            carpal ligament becomes tightened, any number of things can 
 
            bring on the symptoms.  He stated that operating the radial 
 
            drill in July would very likely precipitate symptoms if the 
 
            ligament were already tightened, but that it did not cause 
 
            the condition.
 
            
 
                 Dr. McClenahan has reviewed claimant's job on more than 
 
            one occasion.  He stated that the job does involve exertion, 
 
            mechanical stress, repetitive movement and possibly 
 
            vibration, but that the movements are not particularly 
 
            awkward and that, from his observations, he does not feel 
 
            the job has the potential to probably cause carpal tunnel 
 
            syndrome to develop in anyone.
 
            
 
                 James L. Jagerliner, the ergonomics coordinator at the 
 
            John Deere Dubuque Works, performed a study of claimant's 
 
            job and the machines he operates.  As a result of the study, 
 
            he concluded that, while the job is a hard job, it is one 
 
            which should not cause injury (exhibits 11 and 17).
 
            
 
                 The assessments made by Dr. McClenahan and James 
 
            Jagerliner are accepted as being correct.  They are not 
 
            controverted by any evidence in the record from other 
 
            physicians, professionals or experts.
 
            
 
                    
 
            
 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            
 
            
 
            conclusions of law
 
            
 
                 Claimant has the burden of proving by a preponderance 
 
            of the evidence that he received an injury on June 30, 1988 
 
            which arose out of and in the course of his employment. 
 
            McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa 
 
            1976); Musselman v. Central Telephone Co., 261 Iowa 352, 154 
 
            N.W.2d 128 (1967). 
 
            
 
                 The 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 causal relationship between the 
 
            employment and the injury.  Sheerin v. Holin Co., 380 N.W.2d 
 
            415, 417 (Iowa 1986).
 
            
 
                 "An injury occurs in the course of the employment when 
 
            it is within the period of employment at a place the 
 
            employee may reasonably be, and while he is doing his work 
 
            or something incidental to it."  Cedar Rapids Comm. Sch. 
 
            Dist. v. Cady, 278 N.W.2d 298 (Iowa 1979), McClure v. Union 
 
            et al. Counties, 188 N.W.2d 283 (Iowa 1971); Musselman v. 
 
            Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967). 
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury of June 30, 
 
            1988 is causally related to the disability on which he now 
 
            bases his claim.  Bodish v. Fischer, Inc., 257 Iowa 516, 133 
 
            N.W.2d 867 (1965).  Lindahl v. L. O. Boggs, 236 Iowa 296, 18 
 
            N.W.2d 607 (1945).  A possibility is insufficient; a 
 
            probability is necessary.  Burt v. John Deere Waterloo 
 
            Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955).  The 
 
            question of causal connection is essentially within the 
 
            domain of expert testimony.  Bradshaw v. Iowa Methodist 
 
            Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). 
 
            
 
                 However, expert medical evidence must be considered 
 
            with all other evidence introduced bearing on the causal 
 
            connection.  Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion 
 
            of experts need not be couched in definite, positive or 
 
            unequivocal language.  Sondag v. Ferris Hardware, 220 N.W.2d 
 
            903 (Iowa 1974).  However, the expert opinion may be 
 
            accepted or rejected, in whole or in part, by the trier of 
 
            fact.  Id. at 907.  Further, the weight to be given to such 
 
            an opinion is for the finder of fact, and that may be 
 
            affected by the completeness of the premise given the expert 
 
            and other surrounding circumstances.  Bodish, 257 Iowa 516, 
 
            133 N.W.2d 867.  See also Musselman v. Central Telephone 
 
            Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
            
 
                 The record of this case shows it to be possible that 
 
            Dennis E. Delaney developed carpal tunnel syndrome as a 
 
            result of his work at the John Deere Dubuque Works.  His 
 
            burden, however, is to establish probability rather than 
 
            mere possibility.  Probability has been established if the 
 
            evidence shows it to be more likely than not.  Equipoise 
 
            does not meet the requirement of probability.  Proximate 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            
 
            
 
            cause is established by a showing that the work activity was 
 
            a substantial factor in bringing about the result or 
 
            condition.  It need not have been the sole factor.  
 
            Blacksmith v. All-American, Inc., 290 N.W.2d 348, 354 (Iowa 
 
            1980).
 
            
 
                 When considering all the foregoing, it is concluded 
 
            that claimant has failed to prove by a preponderance of the 
 
            evidence that his work activities were a substantial factor 
 
            in causing the development of his carpal tunnel syndrome.  
 
            The employer does not have to establish that the work did 
 
            not cause the condition.  The burden is on the claimant to 
 
            prove the affirmative.  There is no expert opinion from any 
 
            physician which relates Delaney's carpal tunnel syndrome to 
 
            his employment.  The only expression of medical opinion is 
 
            to the contrary.  There is no evidence in the record from 
 
            any expert in ergonomics or occupational injury which states 
 
            that the job claimant performed is one which presents a 
 
            significant risk of causing carpal tunnel syndrome.  All the 
 
            evidence in the record is to the contrary.  It is therefore 
 
            concluded that Dennis Delaney has failed to prove by a 
 
            preponderance of the evidence that his bilateral carpal 
 
            tunnel syndrome condition is an injury which arose out of 
 
            and in the course of his employment with John Deere Dubuque 
 
            Works of Deere & Company.  Claimant is therefore not 
 
            entitled to any recovery under the workers' compensation 
 
            laws.
 
            
 
                                      order
 
            
 
                 IT IS THEREFORE ORDERED that claimant take nothing from 
 
            this proceeding.
 
            
 
                 IT IS FURTHER ORDERED that the costs of this action are 
 
            assessed against the claimant pursuant to Division of 
 
            Industrial Services Rule 343-4.33.
 
            
 
                 Signed and filed this ______ day of ____________, 1990.
 
            
 
                 
 
            
 
            
 
                                          ______________________________
 
                                          MICHAEL G. TRIER
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Michael J. Coyle
 
            Attorney at Law
 
            200 Security Building
 
            Dubuque, Iowa  52001
 
            
 
            Mr. Leo A. McCarthy
 
            Mr. Richard G. Lovig
 
            Attorneys at Law
 
            222 Fischer Building
 
            P. O. Box 239
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            
 
            
 
            Dubuque, Iowa  52004-0239
 
            
 
            
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                               5-1402.40, 5-2209
 
                                               Filed August 23, 1990
 
                                               MICHAEL G. TRIER
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            DENNIS E. DELANEY,            :
 
                                          :
 
                 Claimant,                :
 
                                          :         File No. 910544
 
            vs.                           :
 
                                          :      A R B I T R A T I O N
 
            JOHN DEERE DUBUQUE WORKS      :
 
            OF DEERE & COMPANY,           :         D E C I S I O N
 
                                          :
 
                 Employer,                :
 
                 Self-Insured,            :
 
                 Defendant.               :
 
            ____________________________________________________________
 
            
 
            5-1402.40, 5-2209
 
            Non-precedential decision.  Claimant failed to prove that 
 
            his carpal tunnel syndrome arose out of his employment.
 
            
 
 
         
 
         Page   1
 
         
 
         
 
         
 
         
 
         
 
         
 
                     before the iowa industrial commissioner
 
         ____________________________________________________________
 
                                       :
 
         DAWN ROCHELLE LUNDBERG, a/k/a :
 
         DAWN ROCHELLE BANE,           :
 
                                       :
 
              Claimant,                :
 
                                       :
 
         vs.                           :
 
                                       :         File No. 910545
 
         LYLE PLATTER d/b/a BEST IN    :
 
         MASONARY WORKS,               :      A R B I T R A T I O N
 
                                       :
 
              Employer,                :         D E C I S I O N
 
                                       :
 
         and                           :
 
                                       :
 
         LIBERTY MUTUAL INSURANCE,     :
 
         COMPANY,                      :
 
                                       :
 
              Insurance Carrier,       :
 
              Defendants.              :
 
         ___________________________________________________________
 
         
 
         
 
                              statement of the case
 
         
 
              This is a proceeding in arbitration upon the petition of 
 
         Dawn Rochelle Lundberg a/k/a Dawn Rochelle Bane, alleged spouse 
 
         of the decedent, LeRoy Lundberg, against decedent's employer, 
 
         Lyle Platter, d/b/a Best In Masonary Works, and its insurance 
 
         carrier, Liberty Mutual Insurance Company, defendants.  The case 
 
         was heard on July 31, 1990, in Des Moines, Iowa at the office of 
 
         the industrial commissioner.  The record consists of the testi
 
         mony of claimant.  The record also consists of the testimony of 
 
         Joseph L. Askern, Marcia M. Jenkins, Clarice Bane, Cloyd D. 
 
         Platter, B. J. Daniels, Dave Daniels, Eric Ziel, Evelyn Lundberg, 
 
         Peggy Sue Lehman, David A. Lundberg and Trudy Lundberg.  
 
         Additionally, the record consists of claimant's exhibits A-N and 
 
         defendants' exhibits A-W.
 
         
 
                                      ISSUES
 
         
 
              The issues to be determined are whether:  1) claimant is the 
 
         common law spouse of decedent; and, 2) whether claimant is enti
 
         tled to death benefits and burial expenses.
 
         
 
                                 findings of fact
 
         
 
              The deputy, having heard the testimony and considered all 
 
         the evidence, finds:
 
         
 
              Claimant met decedent on or about December 26, 1988.  Prior 
 
         to that time, decedent was incarcerated in prison at Fort 
 
         Madison.  Claimant and decedent began a personal relationship in 
 
         January of 1989.  At some point claimant and decedent were cohab
 
         itating in claimant's Boone apartment.  They had resided there 
 
         until they moved into the home of decedent's mother in April of 
 

 
         
 
         Page   2
 
         
 
         
 
         
 
         
 
         
 
         1989.
 
         
 
              Claimant testified she received a ring from decedent in 
 
         February of 1989.  Claimant testified the ring was a memorial to 
 
         their relationship and was a wedding ring.  However, formal wed
 
         ding ceremonies were planned for July 8, 1989, at the Berean 
 
         Baptist Church in Boone, Iowa.  Claimant's father purchased her 
 
         wedding gown.  Wedding invitations were ordered.
 
         
 
              Decedent commenced his employment with defendant-employer on 
 
         April 17, 1989.  He was hired as a construction laborer.  On 
 
         April 26, 1989, decedent and his co-employees were constructing a 
 
         cement wall at Granger Motors.  A fierce wind set-in.  Decedent 
 
         was advised to leave the site.  However, he forgot his flannel 
 
         shirt and returned to the area of the cement wall.  The wind blew 
 
         the cement wall on top of decedent.  He was crushed instantly and 
 
         died.
 
         
 
              Subsequent to his death, claimant filed an action with the 
 
         Division of Industrial Services.  She alleged she was the common 
 
         law wife of decedent and therefore entitled to death and burial 
 
         expenses.
 
         
 
                                conclusions of law
 
         
 
              The Supreme Court of Iowa has long recognized the validity 
 
         of common-law marriages.  Blanchard v. Lamburd, 43 Iowa 228, 22 
 
         Am. Rep. 245.  A common-law marriage is to be closely scruti
 
         nized.  In Re Marriage of Winegard, 278 N.W.2d 505 (Iowa 1979).  
 
         The elements of a common-law marriage must be shown by clear and 
 
         convincing evidence.  In Re Marriage of Jones, 451 N.W.2d 25 
 
         (Iowa App. 1989).
 
         
 
              There are necessary elements in a common-law marriage.  They 
 
         are:
 
         
 
              1) present intent and agreement to be married;
 
              2) continued co-habitation;
 
              3) public declaration that the parties are married.
 
         
 
         The necessary elements are set out in the case, In Re Marriage of 
 
         Gebhardt, 426 N.W.2d  651, 652 (Iowa Court App. 1988).
 
         
 
              In the case at hand, claimant has failed to prove the exis
 
         tence of a common-law marriage between decedent and herself.  
 
         Firstly, claimant has failed to establish there was a present 
 
         intent and agreement to be married.
 
         
 
              Claimant testified she believed the marriage started on 
 
         January 27, 1989, the day decedent moved into her apartment.  
 
         However, decedent continued to see another woman from January 27, 
 
         1989, until the date of decedent's death.  Evelyn Lundberg, 
 
         mother of decedent, testified she heard noises from one of her 
 
         bedrooms which led her to believe that decedent and another 
 
         woman, Cheryl Goodenbauer, were having sexual intercourse one 
 
         evening.  This occurred after decedent and claimant had begun 
 
         their relationship.  Additionally, Keith Ensrude, friend of dece
 
         dent, testified he and decedent visited Cheryl at least four or 
 
         five times and that during those visits, decedent and Cheryl 
 

 
         
 
         Page   3
 
         
 
         
 
         
 
         
 
         
 
         would adjourn to the bedroom.  The visits occurred after decedent 
 
         had met claimant.
 
         
 
              Additionally, Mr. Ensrude testified there were occasions 
 
         where decedent revealed he had second thoughts about getting mar
 
         ried.  Decedent never indicated to friends and family that he 
 
         believed he was already married.
 
         
 
              Also, there was the deposition testimony of Edda Mae 
 
         Daniels, cousin of decedent.  She had discussed decedent's pend
 
         ing wedding plans with him approximately one week before dece
 
         dent's death.  During that conversation, decedent had never men
 
         tioned that he had already considered himself to be married.  In 
 
         fact there was testimony from several individuals that decedent 
 
         expressed reluctance about getting married.  Finally, there was 
 
         evidence that claimant had received an engagement ring in 
 
         February of 1989.  There was no exchange of wedding bands prior 
 
         to decedent's death.  Only after the death of decedent did 
 
         claimant attempt to place a ring on decedent's finger.
 
         
 
              Claimant has also failed to prove there has been continued 
 
         cohabitation.  At most, claimant and decedent lived together for 
 
         less than three months.  There was conflicting testimony whether 
 
         decedent moved into claimant's apartment in January or in the 
 
         middle of March.  This was not a situation where there had been 
 
         long term cohabilitation such as in the case of In Re Marriage of 
 
         Gebhardt, 426 N.W.2d 651 (Iowa App. 1988).  The duration of the 
 
         cohabitation in the instant case was short term.  Claimant had 
 
         not even told her landlord, Eric Ziel, that decedent was residing 
 
         with claimant in her apartment.
 
         
 
              Finally, claimant has failed to prove there has been a pub
 
         lic declaration of marriage.  The testimony establishes that 
 
         claimant occasionally used the surname, Lundberg.  She even used 
 
         the name in the presence of decedent.  However, the testimony of 
 
         Thomas Bennett, M.D., state medical examiner, is overwhelmingly 
 
         convincing that even claimant did not consider herself married.  
 
         He testified that:
 
         
 
              Q.  On the report of autopsy under paragraph three, 
 
              there is clothing, personal items, general appearance, 
 
              et cetera.  You make an indication there, Doctor, that 
 
              some personal possessions were given to his fiancee.  
 
              How is it that you determined that she was his fiancee?
 
         
 
              A.  She told me she was.
 
         
 
              Q.  When did she tell you this?
 
         
 
              A.  It was obviously on that day of his death, April 
 
              26th of 1989.
 
         
 
              Q.  Apparently the notation in quotes on that same page 
 
              says at the morgue at, what, 2300?  That would be 11 
 
              o'clock in the evening?
 
         
 
              A.  Yes, sir.
 
         
 
              Q.  Did you have a conversation with his fiancee on 
 

 
         
 
         Page   4
 
         
 
         
 
         
 
         
 
         
 
              that particular occasion or date?
 
         
 
              A.  Yes, I did.
 
         
 
              Q.  And where was that held?
 
         
 
              A.  It was held in, I believe, the emergency room of 
 
              Mercy Hospital Medical Center where I meet people; and 
 
              then I walked with her down to the morgue, which is at 
 
              the far end of the hospital.  We talked in the morgue 
 
              there also, so along through Mercy Hospital.
 
         
 
              Q.  Who else was present during that conversation?
 
         
 
              A.  I don't remember exactly.  I believe his mother, 
 
              Evelyn Lundberg, was present also.  It was the two of 
 
              them, I believe, Shelley and Evelyn Lundberg.
 
         
 
              Q.  And at what point in time did she indicate to you 
 
              that she was LeRoy's fiancee?
 
         
 
              A.  I don't remember.  It was sometime during the con
 
              versation.  There was one point when she introduced 
 
              herself as Shelley Lundberg, and she said that they 
 
     
 
         
 
         
 
         Page   5
 
         
 
         
 
         
 
         
 
         
 
              weren't married, but she took his name because they 
 
              were going to be married.  That's my recollection of 
 
              it.
 
         
 
         (Exhibit U, page 10, line 15 to page 12, line 2)
 
         
 
              Dr. Bennett's testimony coupled with the testimony of the 
 
         funeral director, James Schroeder, illustrate to the undersigned 
 
         how claimant viewed herself and how she held herself out to the 
 
         public.  Claimant did not object to the designation of "single" 
 
         on various documents prepared by the funeral director, including 
 
         the newspaper article which appeared in the Boone News.  In that 
 
         article, claimant was listed as decedent's fiancee and not his 
 
         wife.  Claimant did not request a retraction by the newspaper.  
 
         Additionally, claimant did not obligate herself for funeral 
 
         expenses.  It is convincingly clear to this deputy that claimant 
 
         did not consider herself married prior to the date of decedent's 
 
         death.  Claimant and decedent did not have a valid common-law 
 
         marriage on the date of decedent's death.
 
         
 
                                      order
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              Claimant takes nothing from these proceedings.
 
         
 
              Each party shall pay hers/its own costs pursuant to rule 
 
         343-4.33 of the Iowa Administrative Code.
 
         
 
         
 
         
 
              Signed and filed this ____ day of April, 1991.
 
         
 
         
 
         
 
         
 
         
 
                                       ______________________________               
 
         MICHELLE A. McGOVERN
 
                                       DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Kirke C. Quinn
 
         Mr. L. W. Courter
 
         Attorneys at Law
 
         809 8th St
 
         Boone  IA  50036
 
         
 
         Mr. W. C. Hoffmann
 
         Mr. Jon Kurt Hoffmann
 
         Attorneys at Law
 
         500 Liberty Bldg
 
         Des Moines  IA  50309
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                           1805; 1901
 
                           Filed April 18, 1991
 
                           MICHELLE A. McGOVERN
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            DAWN ROCHELLE LUNDBERG, a/k/a :
 
            DAWN ROCHELLE BANE,           :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :         File No. 910545
 
            LYLE PLATTER d/b/a BEST IN    :
 
            MASONARY WORKS,               :      A R B I T R A T I O N
 
                                          :
 
                 Employer,                :         D E C I S I O N
 
                                          :
 
            and                           :
 
                                          :
 
            LIBERTY MUTUAL INSURANCE,     :
 
            COMPANY,                      :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
            1805; 1901
 
            Claimant has failed to prove she was the common law wife of 
 
            decedent on the date of decedent's death.  Claimant was 
 
            unable to establish the necessary elements of a valid 
 
            common-law marriage.  The necessary elements in a common-law 
 
            marriage are set out in In Re Marriage of Gebhart, 426 
 
            N.W.2d 65l, 652 (Iowa Court App. 1988).  They are:
 
            
 
                 1) present intent and agreement to be married;
 
                 2) continued co-habitation;
 
                 3) public declaration that the parties are married.
 
            Claimant has failed to establish any of the above elements.
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
            ____
 
                      :
 
            GENEVA HURLEY, :
 
                      :
 
                 Claimant, :    File Nos. 910546/910548
 
                      :
 
            vs.       :          A P P E A L
 
                      :
 
            SHELLER GLOBE CORP.,     :        D E C I S I O N
 
                      :
 
                 Employer, :
 
                 Self-Insured,  :
 
                 Defendant.     :
 
            ____________________________________________________________
 
            ___
 
            The record, including the transcript of the hearing before 
 
            the deputy and all exhibits admitted into the record, has 
 
            been reviewed de novo on appeal.  The decision of the deputy 
 
            filed December 17, 1990 is affirmed and is adopted as the 
 
            final agency action in this case except for reference to 
 
            Beeck v. Kapalis, 302 N.W.2d 90, 93 (Iowa 1981). 
 
            Claimant shall pay the costs of the appeal, including the 
 
            preparation of the hearing transcript.
 
            Signed and filed this ____ day of September, 1991.
 
            
 
            
 
            
 
            
 
                      ________________________________
 
                               BYRON K. ORTON
 
                           INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Matthew J. Petrzelka
 
            Mr. James M. Peters
 
            Attorneys at Law
 
            1200 MNB Bldg.
 
            Cedar Rapids, Iowa 52401
 
            
 
            Mr. Harry W. Dahl
 
            Attorney at Law
 
            974 73rd St., Ste 16
 
            Des Moines, Iowa 50312
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
            9998
 
            Filed September 17, 1991
 
            Byron K. Orton
 
            MAM
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
            ____
 
                      :
 
            GENEVA HURLEY, :
 
                      :
 
                 Claimant, :    File Nos. 910546/910548
 
                      :
 
            vs.       :          A P P E A L
 
                      :
 
            SHELLER GLOBE CORP.,     :        D E C I S I O N
 
                      :
 
                 Employer, :
 
                 Self-Insured,  :
 
                 Defendant.     :
 
            ____________________________________________________________
 
            ___
 
            
 
            9998
 
            
 
                 Summary affirmance of deputy's decision filed December 
 
            17, 1990.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            GENEVA HURLEY,                :
 
                                          :    File Nos. 910546 & 910548
 
                 Claimant,                :
 
                                          :      A R B I T R A T I O N
 
            vs.                           :
 
                                          :         D E C I S I O N
 
            SHELLER GLOBE CORP.,          :
 
                                          :
 
                 Employer,                :
 
                 Self-Insured,            :
 
                 Defendant.               :
 
            ___________________________________________________________
 
            
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 These are proceedings in arbitration upon the petition 
 
            of claimant, Geneva Hurley, against her self-insured 
 
            employer, Sheller-Globe Corp., defendant.  The cases were 
 
            heard on October 24, 1990 in Cedar Rapids, Iowa at the Linn 
 
            County Courthouse.  The record consists of the testimony of 
 
            claimant; the testimony of claimant's spouse, Fred Hurley, 
 
            Jr.; the testimony of Jeff Peterson, former production 
 
            supervisor; the testimony of Larry Miller, production 
 
            supervisor; Fred Shimon, safety coordinator; and, Alice 
 
            Kasper, plant nurse.  Additionally, the record consists of 
 
            joint exhibits 1-16; claimant's exhibits 17 and 18; and, 
 
            defendant's exhibits A, B, C and D.
 
            
 
                                      issues
 
            
 
                 The issues to be determined are:  1) whether claimant 
 
            received work injuries which arose out of and in the course 
 
            of her employment; 2) whether there are causal relationships 
 
            between the alleged injuries and the disability; 3) whether 
 
            claimant is entitled to temporary disability/healing period 
 
            benefits or permanent partial disability benefits; 4) 
 
            whether claimant is entitled to medical benefits under 
 
            section 85.27; 5) whether notice under section 85.23 has 
 
            been tendered; and, 6) whether, with respect to file 910546, 
 
            claimant has complied with the statute of limitations.
 
            
 
                                 findings of fact
 
            
 
                 In 1984, claimant commenced her employment with 
 
            Sheller-Globe Corporation.  She was originally hired to pick 
 
            foam.  She performed this duty for five or six months.  
 
            Later, claimant became a dye cutter.  She was required to 
 
            place a dashboard into a machine, watch the machine to 
 
            insure that scrap material did not clog it, and to remove 
 
            scrap material with a broom.
 
            
 
                 Claimant testified that on Sunday, March 26, 1986, she 
 
            was using a broom and trying to push and pull the scrap 
 
            material from the machine when she felt "her back give."  
 
            She stated, "it felt like a sharp knife in her back", but 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            she continued working and completed her shift.  Claimant 
 
            also testified there was no doubt in her mind how she hurt 
 
            her back.  (This deputy, however, believes claimant meant to 
 
            say Sunday, March 23, 1986.)  She sought medical treatment.  
 
            The records reflect that on March 25, 1986, claimant was 
 
            unable to see her treating orthopedic surgeon, James Turner, 
 
            M.D., but she did see his partner,                    W. J. 
 
            Robb, M.D.  Dr. Robb's notes for that date indicated:
 
            
 
                 25 Mar.86:  Diagnosis:  HERNIATION FIFTH LUMBAR 
 
                 DISC RIGHT
 
            
 
                 Sunday evening, while at work at Sheller Globe in 
 
                 Iowa city [sic], this patient experienced a 
 
                 moderately severe pain in her low back, and it 
 
                 traveled down into her right leg.  It has remained 
 
                 there since.  Her job is one of running a dye 
 
                 cutter but that entails also bending over at times 
 
                 and pushing the scrap through a bin, and this is 
 
                 often rather heavy.  She doesn't have to do this 
 
                 job but doesn't always have help to perform it.  
 
                 Otherwise the machine gets plugged.
 
            Past history:  She had a herniation of the fourth 
 
            lumbar disc in 1978 from which she made a good 
 
            recovery.  She was seen on the 17th of December, 
 
            1984 since without any adverse effects on her 
 
            back.
 
            Since the onset of pain, it has remained largely 
 
            in the low back and right hip.  The pain travels 
 
            down the posterior thigh and calf to the heel.  No 
 
            numbness noted in the foot.  She drags her leg.  
 
            She has been taking Nuprin for the pain.  She 
 
            remained on bedrest [sic] on Monday and yesterday 
 
            and is having more pain today.
 
            On examination she stands straight.  On bending to 
 
            the left, the pain is increased in the left hip.  
 
            Bending to the right negative.  Flexion forward 
 
            45o and increased pain in the hip and down the leg.  
 
            Palpation produces a sharp pain down the leg.  
 
            Straight leg raising positive at 45o right, 
 
            negative on the left.  Naffziger's test produces 
 
            some numbness and tingling in the lateral calf and 
 
            foot.
 
            Neurological examination, motor function intact on 
 
            heel and toe gait.  She has diminished sensation 
 
            over the lateral foot.  Reflexes 3 and 1 right, 
 
            She has been taking Nuprin.  She cannot handle 
 
            Darvon, Talwin or Codeine.  X-ray examination 
 
            shows a normal lumbosacral spine.
 
            Treatment:  She should be on bedrest at home.  
 
            Report to Dr. Turner in 10-14 days for recheck.  I 
 
            prescribed Motrin 600 mg. l t.i.d. PC for her pain 
 
            since she can handle that medication.(Robb)(T)sw
 
            
 
                 Claimant was taken off work.  She was off from March 
 
            25, 1986 through August 3, 1986.  She had surgery.  During 
 
            the time she was off work, claimant, with the assistance of 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            the plant nurse, Alice Kasper, R.N., completed a "Statement 
 
            of Claim Group Accident & Sickness", and a supplementary 
 
            medical report for group health plan.  Claimant received 
 
            long term disability benefits and her medical expenses were 
 
            paid according to the group health plan.
 
            
 
                 No workers' compensation benefits were ever paid to 
 
            claimant.  On March 25, 1989, an original notice and 
 
            petition was filed with the office of the industrial 
 
            commissioner.  An answer was filed on June 19, 1989.  In a 
 
            letter dated May 31, 1989, from David C. Helm, Assistant 
 
            Human Resource Manager, claimant was notified that:
 
            
 
                 Based on insufficient information and the fact 
 
                 that you did not know for sure how the injury 
 
                 occured [sic], we are denying the injury that 
 
                 occured [sic] on 03-21-86 as being work-related.
 
            
 
                 All bills and disability payment were paid by the 
 
                 Group Insurance, John Hancock Mutual Life 
 
                 Insurance Company.
 
            
 
                 Upon her return to work in August of 1986, claimant was 
 
            assigned to the position of trimmer in the roto-cast 
 
            department.  She was required to stand and trim excess 
 
            scraps from Thunderbird arm rests.  Claimant used scissors 
 
            to perform her task.  Often she placed an insert inside the 
 
            arm rest.  She worked with bundles of ten arm rests at 
 
            approximately 4 1/2 to 5 minute cycles.
 
            
 
                 Claimant testified she began experiencing low back and 
 
            right leg problems in the spring of 1988.  She stated no 
 
            particular traumatic incident caused her pain, but that 
 
            standing exacerbated her condition.
 
            
 
                 A log sheet for defendant-employer of July 20, 1988, 
 
            indicates claimant telephoned at 11:15 a.m.  The explanation 
 
            of the absence states, "hurt back off rest wk".  Claimant 
 
            again sought medical treatment from Dr. Turner.  She visited 
 
            his office on July 22, 1988.  Dr. Turner's note for that 
 
            date stated:
 
            
 
                 22 July 88:  Experiencing some increasing aching 
 
                 back pain, as well as to both posterior thighs.  
 
                 Has negative straight leg raising.  She has been 
 
                 off work for three days.  Will go with another 
 
                 week of rest, restrict from activities, fit with a 
 
                 "warm and form" back support, use Motrin.  Follow 
 
                 in two weeks.
 
            
 
                 The attendance records for claimant during calendar 
 
            year 1988, show that claimant was off work from July 20, 
 
            1988 through September 4, 1988, and from September 20, 1988 
 
            to the time of the hearing.
 
            
 
                 As of August l, 1988, claimant made application for 
 
            benefits through the group accident and sickness plan.  On 
 
            the face of the application, claimant wrote that the 
 
            accident occurred on July 17, 1988 and that she was "helping 
 
            to lift & carry a sheet of drywall."  She also wrote that 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            the injury was not related to her occupation.
 
            
 
                 Claimant, on a subsequent form for group accident and 
 
            sickness, wrote that she injured herself on September 18, 
 
            1988, while lifting a box but that the injury was not 
 
            related to her occupation.
 
            
 
                 Again, claimant did not receive workers' compensation 
 
            benefits as a result of her alleged injury on July 19, 1988.  
 
            On June 7, 1989, Rick D. Innis, Human Resource Manager, 
 
            wrote claimant that:
 
            
 
                 On your claim form for the Group Insurance, you 
 
                 stated that on 7-17-88, at home, you were helping 
 
                 lift and carry a sheet of drywall, causing 
 
                 increasing aching back pain as well as to both 
 
                 posterior thighs.
 
            
 
                 Based on this information, we are denying this 
 
                 injury as being work-related.
 
            
 
                                conclusions of law
 
            
 
                 With respect to file number 910546 (date of injury 
 
            3-23-86), the petition was filed on May 25, 1989.  An answer 
 
            was filed on June 19, 1989, which raised the affirmative 
 
            defense of section 85.26.  Claimant's alleged injury date 
 
            was on or about March 23, 1986.  Claimant also indicated on 
 
            the face of the petition that voluntary weekly payments had 
 
            not been tendered to her.  The evidence presented did not 
 
            establish that weekly compensation benefits had been paid to 
 
            claimant.
 
            
 
                 Defendant raised the affirmative defense available to 
 
            it under section 85.26(1) of the Iowa Code.  That section 
 
            provides:
 
            
 
                 An original proceeding for benefits under this 
 
                 chapter or chapter 85A, 85B, or 86, shall not be 
 
                 maintained in any contested case unless the 
 
                 proceeding is commenced within two years from the 
 
                 date of the occurrence of the injury for which 
 
                 benefits are claimed or, if weekly compensation 
 
                 benefits are paid under section 86.13, within 
 
                 three years from the date of the last payment of 
 
                 weekly compensation benefits.
 
            
 
                 Claimant contends defendant is estopped from asserting 
 
            the statute of limitations on the March 23, 1986 injury by 
 
            its representations regarding the compensability of the 
 
            March 1986 injury.  See: Beeck v. Kapalis, 302 N.W.2d 90, 93 
 
            (Iowa 1981).
 
            
 
                 There is no question that the petition was filed more 
 
            than three years after the alleged injury date.  To be 
 
            exact, the petition was filed three years and two days after 
 
            the alleged injury date.  There is also no question that 
 
            weekly compensation benefits had not been paid to claimant.  
 
            Claimant testified there was no question in her mind how her 
 
            injury occurred.  Subsequent to the injury, claimant 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            completed the forms for her long term disability benefits 
 
            where she stated she did not know how her injury occurred 
 
            but that it was not occupationally related.  In light of the 
 
            above statements made by claimant, she cannot now assert she 
 
            was unaware of her potential workers' compensation claim.  
 
            Claimant was required to file her petition by March 23, 
 
            1988.
 
            It is also the determination of this deputy that defendant 
 
            did not waive its right to assert its affirmative defense 
 
            under section 85.26.  Under Carter v. Continental Telephone 
 
            Co., 373 N.W.2d 524 (Iowa App. 1985), the Court of Appeals 
 
            cited In the Matter of Guardianship of Collins, 327 N.W.2d 
 
            230, 234 (Iowa 1982), and its holding that although a 
 
            statute of limitations defense may be waived, the defendant 
 
            must have the intent to do so.  The Court then elaborated at 
 
            526:  "In addition to intent to give up the right, the 
 
            plaintiff must show the existence of that right and actual 
 
            or constructive knowledge that it exists."  
 
            Here, defendant did not have any intent to waive its right.  
 
            No evidence to that effect was ever presented.  Therefore, 
 
            it is the determination of the undersigned that this claim 
 
            is barred by the statute of limitations.
 
            
 
                 With respect to file number 910548, (alleged injury 
 
            date of July 19, 1988), claimant has not established by a 
 
            preponderance of the evidence that she has sustained an 
 
            injury which arose out of and in the course of her 
 
            employment.  Claimant was not credible.  On her two accident 
 
            and health claim forms, she wrote that the incidents were 
 
            not related to her occupation.  On one form she wrote she 
 
            injured herself while helping to lift drywall on July 17, 
 
            1988.  On the second form she wrote she was lifting a box on 
 
            September 19, 1988.  At her hearing, claimant testified 
 
            there was no one certain thing which caused her condition.  
 
            Her back just started to become worse.  Claimant composed a 
 
            less than believable version as to why her written claim 
 
            forms were inconsistent with her testimony under oath.  She 
 
            stated she just had to think of something to put on the 
 
            accident and sick forms, and those were the incidents she 
 
            described.  It is curious to note, claimant admitted drywall 
 
            was being used in a remodeling project at her home.  Her 
 
            husband also acknowledged that a home remodeling project had 
 
            occurred.
 
            
 
                 Additionally, it is noted that claimant made every 
 
            effort to complete her long term disability forms with the 
 
            plant nurse.  However, the nurse was never contacted 
 
            concerning the completion of workers' compensation forms.  
 
            Nor did claimant discuss a possible 1988 work related injury 
 
            with the nurse.  Neither did claimant mention that her long 
 
            term disability claim was really a potential workers' 
 
            compensation claim or that she was confused which form she 
 
            should complete.
 
            
 
                 Finally, there is the testimony of one of claimant's 
 
            supervisors, Larry Miller.  He too testified that starting 
 
            in February of 1988, claimant never reported a work related 
 
            back injury to him.
 
            
 
                 Therefore, in light of the foregoing, it is the 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            decision of the undersigned that claimant did not sustain an 
 
            injury which arose out of and in the course of her 
 
            employment.
 
            
 
                                      order
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 Claimant takes nothing further from these proceedings.
 
            
 
                 Costs of this action shall be borne by each party 
 
            pursuant to Division of Industrial Services Rule 343 IAC 
 
            4.33.
 
            
 
            
 
            
 
                 Signed and filed this ____ day of December, 1990.
 
            
 
            
 
            
 
            
 
            
 
                                          ______________________________               
 
            MICHELLE A. McGOVERN
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            Copies To:
 
            
 
            Mr. Matthew J. Petrzelka
 
            Mr. James M. Peters
 
            Attorneys at Law
 
            1200 MNB Bldg
 
            Cedar Rapids  IA  52401
 
            
 
            Mr. Harry W. Dahl
 
            Attorney at Law
 
            974 73rd St
 
            Suite 16
 
            Des Moines  IA  50312
 
            
 
 
 
 
 
 
 
 
 
 
 
 
 
 
            BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
_________________________________________________________________
 
            
 
GENEVA HURLEY,   
 
            
 
     Claimant,                  File Nos. 910546/910548
 
            
 
vs.                                   R E M A N D
 
            
 
SHELLER GLOBE CORP.,               D E C I S I O N
 
            
 
     Employer,   
 
     Self-Insured,    
 
     Defendant.       
 
_________________________________________________________________
 
This case is on remand from an Iowa Court of Appeals decision.  Hurley 
 
v. Sheller-Globe Corp., 512 N.W.2d 796 (Iowa App. 1993).  The court of 
 
appeals held that the agency may not arbitrarily disregard medical 
 
evidence and remanded this case for reconsideration of the issue of 
 
causation.
 
 
 
The record, including the transcript of the hearing before the deputy 
 
and all exhibits admitted into the record, has been reviewed de novo on 
 
remand.
 
 
 
                               ISSUE
 
 
 
The issue on remand is whether claimant has proved that the probable 
 
cause of her alleged disability was an alleged 1988 work injury.
 
 
 
                            FINDINGS OF FACT
 
 
 
Claimant has a history of lower back problems.  In October 1978 she was 
 
admitted to St. Luke's Methodist Hospital where she underwent a partial 
 
hemilaminectomy, L4-5, L5-S1 with excision of herniated disc fragment, 
 
L4-5.  (Joint Exhibit 1, page 64)  The onset of claimant's acute pain 
 
in 1978 was attributed to lifting a patient from an ambulance.  (Jt. 
 
Ex. 1, p. 63)  She developed sudden pain in her back and tenderness 
 
over the lumbosacral spine when she bent over to pick up a grandchild 
 
in April 1981.  T.J. Blanchard, M.D., did not see any acute changes at 
 
that time.  (Jt. Ex. 1, p. 66)  L.D. Helvey, M.D., treated claimant for 
 
acute musculoskeletal pain on December 3, 1984 after bending over.  
 
(Jt. Ex. 1, p. 68)  In April 1986 claimant had an episode which began 
 
after lifting at work.  On April 17, 1986 James W. Turner, M.D., 
 
performed a partial hemilaminectomy for a root compression, L4-5.  (Jt. 
 
Ex. 1, pp. 76, 78)
 
 
 
Upon her return to work in August of 1986, claimant was assigned to the 
 
position of trimmer in the roto-cast department.  She was required to 
 
stand and trim excess scraps from Thunderbird arm rests.  Claimant used 
 
scissors to perform her task.  Often she placed an insert inside the 
 
arm rest.  She worked with bundles of ten arm rests at approximately 4 
 
_ to 5 minute cycles.  (Transcript, pp. 53-65, 101)
 
 
 
Claimant testified she began experiencing low back and right leg 
 
problems in the spring of 1988.  She stated no particular traumatic 
 
incident caused her pain, but that standing exacerbated her condition.  
 

 
 
 
 
 
 
 
(Tr., pp. 68-69)
 
 
 
A log sheet for defendant employer of July 20, 1988, indicates claimant 
 
telephoned at 11:15 a.m.  The explanation of the absence states, "hurt 
 
back off rest wk."  Claimant again sought medical treatment from Dr. 
 
Turner.  She visited his office on July 22, 1988.  Dr. Turner's note 
 
for that date stated:
 
22 July 88:  Experiencing some increasing aching back pain, as well as 
 
to both posterior thighs.  Has negative straight leg raising.  She has 
 
been off work for three days.  Will go with another week of rest, 
 
restrict from activities, fit with a "warm and form" back support, use 
 
Motrin.  Follow in two weeks.
 
 
 
The attendance records for claimant show that claimant was on vacation 
 
July 6-8 and 11-12, 1988.  She was on a medical leave of absence July 
 
20-29, 1988 and beginning September 20, 1988.  (Jt. Ex. 3, pp. 3-4; Jt. 
 
Ex. 14, pp. 11-12)  At the time of the hearing on October 24, 1990 she 
 
had not returned to work for defendant employer.  At the time of the 
 
hearing she was working 30 hours a week as a bookkeeper for her 
 
husband.  (Tr., p. 109)
 
 
 
As of August 1, 1988 claimant made application for benefits through the 
 
group accident and sickness plan.  On the face of the application 
 
claimant wrote that the accident occurred on July 17, 1988 and that she 
 
was "helping to lift & carry a sheet of drywall."  She also wrote that 
 
the injury was not related to her occupation.  Dr. Turner, diagnosed 
 
increasing aching back pain, as well as to both posterior thighs.  (Jt. 
 
Ex. 11, pp. 4-5; Jt. Ex. 14, pp. 19-20)
 
 
 
Claimant, on a subsequent form for group accident and sickness, wrote 
 
that she injured herself on September 18, 1988 while lifting a box but 
 
that the injury was not related to her occupation.  (Jt. Ex. 11, p. 5; 
 
Jt. Ex. 14, p. 21)
 
 
 
Claimant testified that her back started progressively hurting because 
 
of standing on her feet at work.  She did not attribute the pain to any 
 
particular episode.  (Tr., pp. 101, 105)
 
 
 
Claimant again sought treatment from Dr. Turner.  Dr. Turner treated 
 
her conservatively and returned her to work.  Dr. Turner felt there was 
 
no significant neurological impingement and no recurrent herniation but 
 
there was scar tissue on the L5 nerve.  (Jt. Ex. 8, p. 18)  Dr. Turner 
 
rated claimant as having 20 percent permanent impairment.  It was his 
 
opinion that he would apportion one-third of this as being preexisting 
 
to 1986, that is, probably related to the 1978 injury and surgery, 
 
one-third due to the laminectomy in 1986 and one-third being 
 
attributable to the chronic accumulated incidents from 1986 through 
 
1988.  (Jt. Ex. 8, p. 21; Jt. Ex. 1, p. 56)  Dr. Turner stated that 
 
there were a "whole bunch of things" he could not separate since the 
 
1986 surgery.  Dr. Turner testified:
 
 
 
Q.  And just so we're clear, it's my understanding that, based on the 
 
information that you have from Miss Hurley and me in Exhibit 1, that 
 
you feel the work activities at Sheller-Globe from '86 -- approximately 
 
'86 until '88 caused some aggravation of her underlying low back 
 
condition.  Is that correct?
 
A.  I believe that's where I can input the -- where I say one-third 
 
attributed to the chronic accumulated injuries from 1986 through 1988.
 
 
 
(Jt. Ex. 8, p. 27)
 
 
 
Dr. Turner could not tell from an MRI report May 15, 1989 whether there 
 
was a protrusion of disk material at L4-5 that was new since his 1986 
 
surgery.  (Jt. Ex. 8, p. 34)  John L. Floyd, M.D., interpreted the May 
 
15, 1989 MRI and gave the following impression:
 
 
 
1)  Presumed post-laminectomy changes at L5 on the right.
 

 
 
 
 
 
 
 
 
 
2)  Small protrusion of intervertebral disc material at L4-5 to the 
 
right of midline without definite neural impingement.
 
3)  Probable post-operative fibrosis involving the right L5 nerve root 
 
as it passes behind the L4-5 disc space and upper portion of the L5 
 
body.  This appears to produce traction or deviation of that root at 
 
this level.
 
 
 
(Jt. Ex. 1, p. 83)  On April 5, 1989 Dr. Turner noted in response to a 
 
letter from an attorney for claimant that the physical requirements of 
 
claimant's job had probably aggravated her back condition.  (Jt. Ex. 1, 
 
p. 44)
 
 
 
Claimant was examined by Thomas Carlstrom, M.D., on July 26, 1990.  Dr. 
 
Carlstrom thought claimant was probably experiencing her symptoms on 
 
the basis of the type of repetitive injuries sustained during the type 
 
of work she did at Sheller-Globe, along with the lifting incident at 
 
home.  Dr. Carlstrom thought claimant had sustained a permanent 
 
impairment of ten percent.  He attributed about one-half to one-third 
 
to the type of work she was doing and the remainder to the previous 
 
1978 incident and to the lifting incident at home.  (Jt. Ex. 1, p. 1)  
 
Dr. Carlstrom's opinions did not distinguish between claimant's alleged 
 
work-related condition in 1986 and that in 1988.  (Jt. Ex. 1, pp. 2, 4) 
 
 
 
Dr. Carlstrom suggested restrictions in 1990 would be the same after 
 
the 1978 operation.  (Jt. Ex. 1, p. 2)
 
 
 
Claimant did not receive workers' compensation benefits as a result of 
 
her alleged injury on July 19, 1988.  On June 7, 1989, Rick D. Innis, 
 
Human Resource Manager, wrote claimant that:
 
 
 
On your claim form for the Group Insurance, you stated that on 7-17-88, 
 
at home, you were helping lift and carry a sheet of drywall, causing 
 
increasing aching back pain as well as to both posterior thighs. 
 
Based on this information, we are denying this injury as being 
 
work-related.    (Jt. Ex. 14, p. 24)
 
 
 
                           CONCLUSIONS OF LAW
 
 
 
The party who would suffer loss if an issue were not established has 
 
the burden of proving that issue by a preponderance of the evidence.  
 
Iowa R. App. P. 14(f).
 
 
 
The claimant has the burden of proving by a preponderance of the 
 
evidence that the alleged injury actually occurred and that it arose 
 
out of and in the course of employment.  McDowell v. Town of 
 
Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. Cent. Tel. Co., 
 
261 Iowa 352, 154 N.W.2d 128 (1967).  The words "arising out of" refer 
 
to the cause or source of the injury.  The words "in the course of" 
 
refer to the time, place and circumstances of the injury.  Sheerin v. 
 
Holin Co., 380 N.W.2d 415 (Iowa 1986); McClure v. Union County, 188 
 
N.W.2d 283 (Iowa 1971).
 
 
 
The claimant has the burden of proving by a preponderance of the 
 
evidence that the injury is a proximate cause of the disability on 
 
which the claim is based.  A cause is proximate if it is a substantial 
 
factor in bringing about the result; it need not be the only cause.  A 
 
preponderance of the evidence exists when the causal connection is 
 
probable rather than merely possible.  Blacksmith v. All-American, 
 
Inc., 290 N.W.2d 348 (Iowa 1980); Holmes v. Bruce Motor Freight, Inc., 
 
215 N.W.2d 296 (Iowa 1974).
 
     
 
The question of causal connection is essentially within the domain of 
 
expert testimony.  The expert medical evidence must be considered with 
 
all other evidence introduced bearing on the causal connection between 
 
the injury and the disability.  The weight to be given to any expert 
 
opinion is determined by the finder of fact and may be affected by the 
 

 
 
 
 
 
 
 
 
 
accuracy of the facts relied upon by the expert as well as other 
 
surrounding circumstances.  The expert opinion may be accepted or 
 
rejected, in whole or in part.  Sondag v. Ferris Hardware, 220 N.W.2d 
 
903 (Iowa 1974); Anderson v. Oscar Mayer & Co., 217 N.W.2d 531 (Iowa 
 
1974); Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).
 
 
 
Claimant must prove that an alleged 1988 work injury is the probable 
 
cause of her alleged disability.  Claimant had a history of lower back 
 
problems prior to her alleged injury in 1988.  This history included 
 
seeking medical care after acute episodes of pain or problems in 1978 
 
(lifting a patient from an ambulance), 1981 (bending over to pick up a 
 
grandchild), 1984 (bending over) and 1986 (lifting at work).  This 
 
history combined with claimant's description of incidents in July 1988 
 
(lifting and carrying drywall) and September 1988 (lifting a box) when 
 
claiming benefits from group accident and sickness insurance 
 
demonstrates that she had experienced acute incidents in 1988 that were 
 
not work related.  Claimant attributed the source of work-related 
 
problems to standing.
 
 
 
Dr. Turner's opinion is not reliable and can be given little weight.  
 
Dr. Turner was not aware of the lifting episodes in July and September 
 
1988.  His opinion is based upon an inaccurate history.  In addition, 
 
his opinion that claimant's impairment was due to incidents from 1986 
 
through 1988 does not distinguish between work and nonwork incidents 
 
and he could not separate things since the 1986 surgery.  Also, Dr. 
 
Turner could not tell whether there was a new protrusion of disk 
 
material that was not present since his 1986 surgery.
 
 
 
Dr. Carlstrom apparently was aware of the lifting incidents at home.  
 
He suggested restrictions in 1990 would be the same as after the 1978 
 
operation.  But Dr. Carlstrom attributed a portion of claimant's 
 
impairment to the 1978 incident and a portion to claimant's work.  Dr. 
 
Carlstrom, like Dr. Turner, made no distinction between work that may 
 
have resulted in claimant's condition in 1986 and claimant's condition 
 
in 1988.  Also, Dr. Carlstrom based his opinion on the basis of 
 
repetitive injuries but claimant attributed her problems to standing at 
 
work.  Because Dr. Carlstrom's opinions failed to distinguish between 
 
work prior to and after 1986, his opinion can be given little weight.  
 
Even if Dr. Carlstrom's opinion was given weight, it would do little to 
 
support claimant's burden of proving that she has a permanent 
 
disability as a result of an alleged injury in 1988 because he 
 
suggested that there would be no difference in restrictions from 1978 
 
and 1990.
 
 
 
Dr. Floyd's impression suggests that claimant's cause of problems in 
 
1988 was the surgery in 1986.
 
 
 
There are several possible causes to claimant's disability in 1988.  
 
One possible cause is the 1986 surgery and results of the surgery.  A 
 
second possible cause is her work.  A third possible cause is her 
 
lifting episodes at home.  Claimant must prove that the probable cause 
 
of her alleged disability in 1988 is a work injury.  Under the facts of 
 
this case claimant has not proved that the probable cause of her 
 
alleged disability was her alleged 1988 work injury.
 
 
 
                              ORDER
 
 
 
THEREFORE, it is ordered:
 
 
 
That claimant shall take nothing from these proceedings.
 
 
 
Signed and filed this ____ day of December, 1994.      
 
                           ________________________________                 
 
                           BYRON K. ORTON           
 
                           INDUSTRIAL COMMISSIONER
 
 
 
Copies To:
 
 
 
Mr. Matthew J. Petrzelka
 
Mr. James M. Peters
 
Attorneys at Law
 
1200 MNB Bldg
 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Cedar Rapids, Iowa 52401  
 
 
 
Mr. Harry W. Dahl
 
Attorney at Law
 
974 73rd St., Suite 16
 
Des Moines, Iowa  50312
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                 1402.30
 
                                 Filed December 22, 1994
 
                                 Byron K. Orton
 
 
 
           BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
_________________________________________________________________
 
            
 
GENEVA HURLEY,   
 
            
 
     Claimant,                     File Nos. 910546/910548
 
            
 
vs.                                    R E M A N D
 
            
 
SHELLER GLOBE CORP.,                 D E C I S I O N
 
            
 
     Employer,   
 
     Self-Insured,    
 
     Defendant.       
 
_________________________________________________________________
 
1402.30
 
 
 
Claimant failed to prove that the probable cause of her alleged 
 
disability was a work injury in 1988.  There were several possible 
 
causes of claimant's condition; a prior injury and surgery; claimant's 
 
work; or acute nonwork incidents at the same time as the alleged 
 
injury.  Medical opinions could be given little weight in resolving the 
 
issue.  One opinion was based on an inaccurate history.  Medical 
 
opinions did not distinguish work from nonwork incidents.
 
 
 
 
 
 
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                           1100; 2401; 2402
 
                           Filed December 17, 1990
 
                           MICHELLE A. McGOVERN
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            GENEVA HURLEY,                :
 
                                          :    File Nos. 910546 & 910548
 
                 Claimant,                :
 
                                          :      A R B I T R A T I O N
 
            vs.                           :
 
                                          :         D E C I S I O N
 
            SHELLER GLOBE CORP.,          :
 
                                          :
 
                 Employer,                :
 
                 Self-Insured,            :
 
                 Defendant.               :
 
            ___________________________________________________________
 
            
 
            
 
            2402
 
            Claimant filed a claim three years and two days after the 
 
            alleged injury date.  Claimant's claim was barred by the 
 
            statute of limitations.
 
            
 
            1100; 2401
 
            Claimant was not credible.  She did not sustain an injury 
 
            which arose out of and in the course of her employment.
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                           1100; 3200; 3202
 
                           Filed August 15, 1991
 
                           MICHELLE A. McGOVERN
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            MICHAEL WILKINS,    :
 
                      :
 
                 Claimant, :     File Nos. 895553; 890606;
 
                      :               940622; 910549;
 
            vs.       :               910550; 910551
 
                      :
 
            IBP, INC.,     :
 
                      :       A R B I T R A T I O N
 
                 Employer, :
 
                 Self-Insured,  :          D E C I S I O N
 
                      :
 
            and       :
 
                      :
 
            SECOND INJURY FUND, :
 
                      :
 
                 Defendants.    :
 
            ___________________________________________________________
 
            
 
            
 
            1100
 
            Claimant was not a credible witness.  He alleged an injury 
 
            to his head which he claimed was work related.  Claimant did 
 
            not meet his burden of proof.  Other co-employees had no 
 
            recollection of the events, as described by claimant.  
 
            Claimant, despite memory problems, had vivid recall of the 
 
            alleged work related injury.
 
            
 
            
 
            3200; 3202
 
            The Second Injury Fund was not liable for the payment of 
 
            benefits when the second of two injuries involved a 
 
            condition known as gamekeeper's thumb.  The medical 
 
            documentation established that only the thumb and not the 
 
            hand was involved in the second injury.
 
            
 
 
         
 
         
 
         
 
         
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         ____________________________________________________________
 
                                       :
 
         CHARLES JAMES,                :
 
                                       :
 
              Claimant,                :
 
                                       :
 
         vs.                           :
 
                                       :      File No.  910552
 
         SWIFT INDEPENDENT PACKING,    :
 
                                       :  R E V I E W - R E O P E N I N G
 
              Employer,                :
 
                                       :       D E C I S I O N
 
         and                           :
 
                                       :
 
         NATIONAL UNION FIRE,          :
 
                                       :
 
              Insurance Carrier,       :
 
              Defendants.              :
 
         ___________________________________________________________
 
         
 
                               STATEMENT OF THE CASE
 
         
 
              This is a proceeding in review-reopening brought by Charles 
 
         James, claimant, against Swift Independent Packing Co., employer, 
 
         hereinafter referred to as Swift, and National Union Fire, 
 
         insurance company, defendants, for the recovery of further 
 
         workers' compensation benefits as the result of an injury on June 
 
         11, 1987.  A prior Iowa Code section 86.13 settlement for this 
 
         injury was filed on May 22, 1991.  On February 2, 1994, a hearing 
 
         was held on claimant's petition and the matter was considered 
 
         fully submitted at the close of this hearing. 
 
         
 
              The parties have submitted a hearing report of contested 
 
         issues and stipulations which was approved and accepted as a part 
 
         of the record of this case at the time of hearing.  The oral 
 
         testimony and written exhibits received during the hearing are 
 
         set forth in the hearing transcript.         
 
         
 
              The fighting issue in this case is the causal connection of 
 
         claimant's current left shoulder condition and a current need for 
 
         surgery to the original work injury.  It was agreed at hearing 
 
         that if this condition is found causally related, various unpaid 
 
         medical expenses relating to that condition will be paid by 
 
         defendants.
 
         
 
                                       ISSUES
 
         
 
              The parties submitted the following issues for determination 
 
         in this proceeding:
 
         
 
              I.  The extent of claimant's entitlement to disability 
 

 
         
 
         Page   2
 
         
 
         
 
         
 
         
 
         benefits.
 
         
 
              II. The extent of claimant's entitlement to medical 
 
         benefits.
 
         
 
                                  FINDINGS OF FACT
 
         
 
              Having heard the testimony and considered all of the 
 
         evidence, the deputy industrial commissioner finds as follows:
 
         
 
              A credibility finding is necessary to this decision as 
 
         defendants placed claimant's credibility at issue during 
 
         cross-examination as to the nature and extent of the injury and 
 
         disability.  From his demeanor while testifying, claimant is 
 
         found credible.  Although claimant is a convicted felon, the 
 
         crime was one of violence and not necessarily indicative of 
 
         credibility.  At any rate, all of his testimony was uncontro
 
         verted.  His claims were either verified by medical reports or 
 
         the lack of any contrary medical reports.
 
         
 
              Claimant worked for Swift in 1987 when he injured his left 
 
         shoulder while handling animal hides.  This original injury was 
 
         diagnosed as tendinitis in the left shoulder.  Claimant was given 
 
         restricted duty for a brief time and then released.  
 
              
 
              Claimant was imprisoned for manslaughter in September 1987.  
 
         Claimant stated that he did not receive much in the way of 
 
         treatment of his shoulder while in prison and records were not 
 
         submitted to controvert this testimony.  Claimant was then 
 
         released from prison in February 1989.  Claimant then worked as a 
 
         dishwasher for a brief time and then for a company loading trucks 
 
         with meat weighing from 10 to 115 pounds.  He then became a 
 
         supervisor and was performing this job at the time of an 
 
         Agreement for Settlement with defendants in which claimant was 
 
         paid benefits for an 8.4 percent permanent disability to his body 
 
         as a whole from the left shoulder injury.    
 
         
 
              Claimant then was fired from his supervisor job and after a 
 
         period of unemployment started at a dairy company.  At this dairy 
 
         he would stack 10- to 25-pound boxes of milk onto a cart and push 
 
         the cart.  Claimant continues on this job today.  
 
         
 
              Since the injury, claimant has been involved as an amateur 
 
         boxer in the local Golden Gloves competition.  Claimant continues 
 
         in this activity today.  Claimant stated that he rarely fights 
 
         and obtains many passes from competitors.  Claimant has been 
 
         successful on occasion and was the Iowa champion of his weight 
 
         class for the last few years.  Claimant fights right handed.
 
         
 
              Claimant has been under the care of only one treating 
 
         orthopedic physician since the original injury, namely: Peter 
 
         Wirtz, M.D.    As stated before, Dr. Wirtz's original diagnosis 
 
         was tendinitis of the left shoulder.  He was then released to 
 
         full duty a few weeks later.  After claimant returned from prison 
 

 
         
 
         Page   3
 
         
 
         
 
         
 
         
 
         Dr. Wirtz examined claimant again, in February 1990 upon 
 
         continued complaints.  At that time, the doctor noted changes at 
 
         the insertion point or where the tendon of the left shoulder 
 
         attaches to the ball of the arm joint.  He at that time 
 
         recommended surgery to enlarge the tendon area and felt that the 
 
         condition was related to the original work injury.  This surgery 
 
         was not performed.  
 
         
 
              Claimant was examined again in February 1992. In addition to 
 
         cervical spine problems, claimant was found by Dr. Wirtz to have 
 
         impingement syndrome and chronic tendinitis relating to 
 
         inflammation of the tendons, bone spurring and spacing of the 
 
         components of the left shoulder.  He again recommend surgery to 
 
         decompress the area allowing more space for components of the 
 
         shoulder to move about thereby reducing pain.  Again, Dr. Wirtz 
 
         related these problems to the original injury of 1987.  Claimant 
 
         has been seen routinely Dr. Wirtz since February 1992 and his 
 
         opinions have not changed.
 
         
 
              In his deposition, evidence of claimant's heavy work 
 
         activity after the injury and activity in prison was presented to 
 
         Dr. Wirtz along with a description of his boxing activity.  
 
         Although the doctor stated that this would materially aggravate 
 
         claimant's shoulder, he did not retreat from his original view 
 
         that the present condition is related to the original injury.
 
              
 
              Based upon the uncontroverted views of Dr. Wirtz, it is 
 
         found that the work injury of June 11, 1987, is a cause of 
 
         claimant's current left shoulder chronic tendinitis and 
 
         impingement syndrome as diagnosed by Dr. Wirtz.  Although 
 
         intervening events have also contributed to the current 
 
         condition, the original injury remains as a significant 
 
         contributing cause, albeit not the only cause, of claimant's 
 
         current condition.  
 
         
 
              It is further found claimant's current left shoulder 
 
         condition requires surgery and that the best medical provider for 
 
         such surgery and any other future medical treatment is the 
 
         original treating physician, Peter Wirtz, M.D., or a physician 
 
         referred by Dr. Wirtz.  According to Dr. Wirtz, claimant may 
 
         require a total disability period for such surgery of 
 
         approximately four to six weeks.                 
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              I.  In a review-reopening proceeding, claimant has the 
 
         burden of establishing by a preponderance of the evidence that he 
 
         suffered a change of condition or a failure to improve as 
 
         medically anticipated as a proximate result of his original 
 
         injury, subsequent to the date of the award or agreement for 
 
         compensation under review, which entitles him to additional 
 
         compensation.  Deaver v. Armstrong Rubber Co., 170 N.W. 2d 455 
 
         (Iowa 1969).  Meyers v Holiday Inn of Cedar Falls, 272 N.W. 2d 24 
 
         (Iowa Ct. App. 1978).
 

 
         
 
         Page   4
 
         
 
         
 
         
 
         
 
         
 
              In the case sub judice, claimant has shown by uncontroverted 
 
         medical opinion that he has a worsening of his condition and the 
 
         original injury remains a significant contributory factor in 
 
         bringing about this worsened condition.  It is well settled that 
 
         where an accident occurs to an employee in the usual course of 
 
         employment, the employer is liable for all consequences that 
 
         naturally and proximately flow from that accident.  Where an 
 
         employee suffers a compensable injury and thereafter returns to 
 
         work and, as a result thereof, his first injury is aggravated and 
 
         accelerated so that he is greater disabled than before, the 
 
         entire disability may be compensated for.  Oldham v Scofield & 
 
         Welch, 222 Iowa 764, 767, 266 N.W. 480, 481 (1936)
 
              
 
               Claimant is entitled to temporary total disability or 
 
         healing period benefits under Iowa Code sections 85.33 or 34 from 
 
         the date of injury until claimant returns to work; until claimant 
 
         is medically capable of returning to substantially similar work 
 
         to the work he was performing at the time of injury; or, until it 
 
         is indicated that significant improvement from the injury is not 
 
         anticipated, whichever occurs first.  In this case, claimant 
 
         would be entitled to additional temporary disability benefits for 
 
         time off work to treat this worsened condition.
 
         
 
              II.  Pursuant to Iowa Code section 85.27, claimant is 
 
         entitled to payment of reasonable medical expenses incurred for 
 
         treatment of a work injury.  It was found that further treatment 
 
         by Dr. Wirtz is reasonable and necessary and it will be awarded. 
 
         
 
                                        ORDER
 
         
 
              1.  Defendants shall provide at its cost further treatment 
 
         of claimant's left shoulder condition by Peter Wirtz, M.D., 
 
         including but not limited to whatever surgery Dr. Wirtz believes 
 
         is necessary.
 
         
 
              2.  Defendants shall pay to claimant temporary total 
 
         disability or healing period benefits at the rate of one hundred 
 
         seventy-seven and 26/100 dollars ($177.26) per week for all times 
 
         off work recommended by Dr. Wirtz for the treatment awarded 
 
         above.
 
         
 
              3.  Defendants shall pay the costs of this action pursuant 
 
         to rule 343 IAC 4.33, including reimbursement to claimant for any 
 
         filing fee paid in this matter.
 
         
 
              4.  Defendants shall file activity reports on the payment of 
 
         this award as requested by this agency pursuant to rule 343 IAC 
 
         3.1.
 
         
 

 
         
 
         Page   5
 
         
 
         
 
         
 
         
 
              Signed and filed this __________ day of April, 1994.
 
         
 
         
 
         
 
         
 
                                                                                                                           
 
                                           ______________________________
 
                                            LARRY P. WALSHIRE
 
                                            DEPUTY INDUSTRIAL COMMISSIONER
 
          
 
          Copies to:
 
          
 
          Mr. Patrick W. Brick
 
          Attorney at Law
 
          550 39th St STE 200
 
          Des Moines, Iowa  50312
 
         
 
          Mr. Joseph Happe
 
          Attorney at Law
 
          500 Liberty Bldg 
 
          418 6th Ave STE 500
 
          Des Moines, Iowa  50309-2421
 
         
 
 
         
 
         
 
         
 
         
 
                                               51803
 
                                               Filed April 1, 1994
 
                                               Larry P. Walshire
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         ____________________________________________________________
 
                   
 
         CHARLES JAMES, 
 
                   
 
              Claimant, 
 
                   
 
         vs.       
 
                                             File No.  910552
 
         SWIFT INDEPENDENT PACKING,    
 
                                       R E V I E W - R E O P E N I N G
 
              Employer, 
 
                                               D E C I S I O N
 
         and       
 
                   
 
         NATIONAL UNION FIRE,     
 
                   
 
              Insurance Carrier,  
 
              Defendants.    
 
         ___________________________________________________________
 
         
 
         
 
              51803 Nonprecedential, extent of disability case.
 
         
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            SUZAN PAYNE,                  :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 910555
 
            HY VEE FOODS STORES, INC.,    :
 
                                          :    A R B I T R A T I O N
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            EMPLOYERS MUTUAL COMPANIES,   :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                                        
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding in arbitration brought by Suzan 
 
            Payne, claimant, against Hy Vee Food Stores, employer, and 
 
            Employers Mutual Companies, insurance carrier.  Claimant 
 
            brings this action as a result of an injury which arose out 
 
            of and in the course of her employment on January 23, 1989.  
 
            The matter came on for hearing on May 7, 1991 at Burlington, 
 
            Iowa.
 
            
 
                 The evidence in the case consists of testimony from the 
 
            claimant, Bill Bulman, Hy Vee Store Manager, and Randy 
 
            Menke, assistant store manager; and, joint exhibits A-F.
 
            
 
                 In accordance with the prehearing report and the 
 
            hearing assignment order, the following issues were 
 
            presented for resolution:
 
            
 
                 1.  Whether claimant has sustained a work injury which 
 
            is a cause of permanent disability;
 
            
 
                 2.  The type of permanent disability, if any, the 
 
            claimant has sustained.
 
            
 
                                 findings of fact
 
            
 
                 The undersigned deputy, having heard the testimony and 
 
            reviewed the evidence, finds the following facts:
 
            
 
                 Suzan Payne, claimant, was 42 years old at the time of 
 
            her injury.  She had worked for Hy Vee Food Store for 
 
            thirteen years as a delicatessen clerk.  On January 23, 1989 
 
            she sustained an injury which arose out of and in the course 
 
            of her employment.
 
            
 
                 Claimant initially sought medical treatment from Robert 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            Kemp, M.D., from approximately July of 1988 through 
 
            September of 1988.  (Joint Exhibit A, Page 2)
 
            
 
                 Claimant was referred to Jerry Jochims, M.D., an 
 
            orthopaedic specialist in Burlington, Iowa.  She was 
 
            evaluated on October 31, 1988 for right wrist and arm 
 
            problems.  His notes indicate that claimant demonstrated a 
 
            "significant history for numbness in the thumb, index and 
 
            long fingers consistent with a carpal tunnel syndrome."  He 
 
            also noted tenderness in the elbow over the antero-lateral 
 
            aspect in the lateral epicondyle.
 
            
 
                 Dr. Jochims ordered an EMG and nerve conduction studies 
 
            for cervical ulnar and medium functions to be completed on 
 
            November 14, 1988.  He also prescribed a tennis elbow 
 
            support.  (Jt. Ex. B, P. 12)
 
            
 
                 She continued to treat with Dr. Jochims, and was 
 
            diagnosed as experiencing carpal tunnel syndrome.  He 
 
            treated her conservatively with medications.  (Jt. Ex. B, P. 
 
            12)
 
            
 
                 Claimant continued to have problems, and received an 
 
            injection to relieve the pain.  Finally, claimant underwent 
 
            right carpal tunnel release surgery on January 23, 1989.  
 
            (Jt. Ex. B, Pages 7-10)
 
            
 
                 Claimant remained off from work after the surgery for 
 
            approximately seven (7) weeks, and although she experienced 
 
            tenderness and swelling, and a slight rupture of the 
 
            surgical wound, claimant had a relatively uneventful 
 
            recovery.  She was released to return to work on a light 
 
            duty basis on March 14, 1989 and was advised that she would 
 
            be able to progress to full duty if no symptoms arose.  (Jt. 
 
            Ex. B, PP. 4-6)
 
            
 
                 On May 18, 1989, claimant voluntarily quit her job at 
 
            Hy Vee, and began working at a day care center in Keokuk.  
 
            Several months later, claimant reapplied for a position with 
 
            Hy Vee, and was rehired as a checker on a part-time basis, 
 
            as no full-time positions were available.  
 
            
 
                 In April of 1990, claimant was promoted to pizza 
 
            manager, a position she continues to hold.
 
            
 
                 Bill Bulman and Randy Menke, the store manager and 
 
            assistant store manager, respectively, testified at the 
 
            hearing and spoke very highly of claimant.  She had not 
 
            voiced complaints of physical difficulties in performing her 
 
            job duties to either of them.  Claimant has a perfect 
 
            attendance record, and was described as an excellent 
 
            employee.  She was able to fulfill all job duties required 
 
            by the positions she has held with Hy Vee since her return 
 
            to work.
 
            
 
                 Claimant last sought medical treatment in April of 
 
            1989.  She has received no permanent impairment rating to 
 
            date.
 
            
 
                         analysis and conclusions of law
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            
 
                 The first issue to be addressed is whether claimant has 
 
            received a permanent disability due to the work-related 
 
            injury.
 
            
 
                 Dr. Jochims was claimant's treating physician, and on 
 
            June 19, 1989, provided the following opinion:
 
            
 
                 It would be my opinion that Mrs. Payne has not 
 
                 sustained a permanent partial impairment on the 
 
                 basis of her diagnosis and treatment of carpal 
 
                 tunnel syndrome.  She still had some subjective 
 
                 symptoms at the time of her last visit here on 
 
                 4/24/89 which I believe were primarily 
 
                 inflammatory in origin.
 
            
 
            (Jt. Ex. B, P. 1)
 
            
 
                 Although there is evidence in the record which suggests 
 
            that claimant encountered tenderness and slight swelling in 
 
            the right wrist, there is no evidence which indicates 
 
            claimant was unable to return to work on a successful basis.  
 
            There is no indication that claimant has sustained any loss 
 
            of range of motion in her wrist or arm.  And, although 
 
            claimant testified that Dr. Jochims told her she would 
 
            encounter tendinitis due to the injury, his records do not 
 
            reflect that she has sustained any type of permanent 
 
            condition or disability.  Neither does the record reflect 
 
            permanent, identified work restrictions.
 
            
 
                 As a result, the undersigned is unable to find that 
 
            claimant has sustained a permanent disability due to her 
 
            work-related injury.
 
            
 
                                      order
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 That claimant take nothing from these proceedings.
 
            
 
                 That defendants shall pay the costs of this action.
 
            
 
     
 
            
 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            Signed and filed this ____ day of May, 1991.
 
            
 
            
 
            
 
            
 
                                          
 
            ________________________________
 
                                          PATRICIA J. LANTZ
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr James P Hoffman
 
            Attorney at Law
 
            Middle Road
 
            PO Box 1087
 
            Keokuk Iowa 52632
 
            
 
            Mr Jeff M Margolin
 
            Mr E J Kelly
 
            Attorneys at Law
 
            Terrace Center Ste 111
 
            2700 Grand Avenue
 
            Des Moines Iowa 50312
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                      5-1803
 
                      Filed May 16, 1991
 
                      PATRICIA J. LANTZ
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            SUZAN PAYNE,   :
 
                      :
 
                 Claimant, :
 
                      :
 
            vs.       :
 
                      :      File No. 910555
 
            HY VEE FOOD STORES, INC.,     :
 
                      :    A R B I T R A T I O N
 
                 Employer, :
 
                      :      D E C I S I O N
 
            and       :
 
                      :
 
            EMPLOYERS MUTUAL COMPANIES,   :
 
                      :
 
                 Insurance Carrier,  :
 
                 Defendants.    :
 
            ___________________________________________________________
 
            
 
            5-1803
 
            Claimant underwent successful carpal tunnel surgery on right 
 
            wrist.
 
            Treating physician opined that claimant had no permanent 
 
            impairment.
 
            Claimant returned to work for the defendant employer with no 
 
            further complaints.
 
            Claimant took nothing from the proceedings.