Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            CHARLOTTE SMITH,              :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :         File Nos. 869128
 
                                          :                   910567
 
            LOUIS RICH COMPANY,           :
 
                                          :      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.              :
 
            ____________________________________________________________
 
            
 
                                   introduction
 
            
 
                 This is a proceeding in arbitration brought by 
 
            Charlotte Smith, claimant, against Louis Rich Company, 
 
            employer, and Liberty Mutual Insurance Company, insurance 
 
            carrier, defendants, for benefits as a result of an injury 
 
            on July 10, 1987, file number 869128, and another injury on 
 
            October 14, 1987, file number 910567.  In both instances, 
 
            claimant fell at work and injured her back and right leg.  
 
            Claimant was represented by Michael W. Liebbe.  Defendants 
 
            were represented by Greg A. Egbers.  The record consists of 
 
            the testimony of Charlotte Smith, claimant; Susan Smith, 
 
            claimant's daughter; and, Linda Riley, safety supervisor.  
 
            The record also contains joint exhibits A through J.
 
            
 
                                   stipulations
 
            
 
                 The parties stipulated:
 
            
 
                 That an employer-employee relationship existed between 
 
            claimant and employer at the time of both injuries;
 
            
 
                 That claimant sustained an injury on July 10, 1987 to 
 
            her low back and right leg and another injury on October 14, 
 
            1987 to her low back and right leg, both of which arose out 
 
            of and in the course of employment with employer;
 
            
 
                 That the injuries were the cause of both temporary and 
 
            permanent disability;
 
            
 
                 That claimant was paid temporary total disability 
 
            benefits from November 9, 1987 through January 15, 1989; 
 
            temporary partial disability benefits from January 16, 1989 
 
            through December 4, 1989; temporary total disability 
 
            benefits from December 5, 1989 through December 10, 1989; 
 
            and, temporary partial disability benefits again from 
 
            December 11, 1989 through the date of the hearing.  The 
 

 
            
 
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            parties further agreed that entitlement to temporary 
 
            disability benefits was no longer a disputed matter in this 
 
            case at this time and that no determination was needed on 
 
            claimant's entitlement to temporary disability benefits;
 
            
 
                 That the type of permanent disability is industrial 
 
            disability to the body as a whole;
 
            
 
                 That the commencement date for permanent disability 
 
            benefits is August 4, 1989;
 
            
 
                 That the proper rate of compensation is $171.02 per 
 
            week;
 
            
 
                 That claimant's entitlement to all medical benefits has 
 
            been or will be paid by defendants;
 
            
 
                 That defendants make no claim for credit for employee 
 
            nonoccupational group health plan benefits paid to claimant 
 
            prior to hearing;
 
            
 
                 That since the parties have agreed that the 
 
            commencement date for permanent disability benefits is 
 
            August 4, 1989, defendants are entitled to a credit for all 
 
            workers' compensation benefits paid to claimant commencing 
 
            on August 4, 1989 against any award of permanent disability 
 
            benefits made in this decision; and,
 
            
 
                 That there are no bifurcated claims.
 
            
 
                                      issue
 
            
 
                 The parties presented one issue for determination:
 
            
 
                 Whether claimant is entitled to permanent disability 
 
            benefits and, if so, the extent of benefits to which she is 
 
            entitled.
 
            
 
                     
 
            
 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            findings of fact
 
            
 
             causal connection -- entitlement -- permanent disability
 
            
 
                 Claimant, born October 24, 1935, was 51 years old at 
 
            the time of both injuries and 54 years old at the time of 
 
            the hearing.  The fact that claimant is in the early 50's 
 
            makes the disability more severe than it would be for a 
 
            younger person just beginning their earning career or an 
 
            older person nearing retirement.  McCoy v. Donaldson Co., 
 
            file numbers 782670 and 805200 (App. Decn., April 28, 1989); 
 
            Walton v. B & H Tank Corp., II Iowa Industrial Commissioner 
 
            Report 426 (1981); Becke v. Turner-Busch, Inc., 
 
            Thirty-fourth Biennial Report of the Industrial Commissioner 
 
            34 (1979).
 
            
 
                 Claimant testified that she graduated from high school.  
 
            Therefore, she has the benefit of a high school education.  
 
            There was no evidence of additional education or training.  
 
            Claimant has a stable employment background and was 
 
            articulate at the hearing.  Therefore, there is no reason to 
 
            believe that claimant would not benefit by additional 
 
            education or training.  However, additional education or 
 
            training at her particular age would be difficult, time 
 
            consuming and expensive.  An employee's capacity for 
 
            additional education or training is one of the 
 
            considerations in the determination of industrial 
 
            disability.  Conrad v. Marquette School, Inc., IV Iowa 
 
            Industrial Commissioner Report 74, 89 (1984).
 
            
 
                 Claimant was employed by a Country Kitchen Restaurant 
 
            for ten years from 1973 until 1983.  For the last five or 
 
            six years of this employment, she worked as an assistant 
 
            manager.  This meant that she was required to fill in for 
 
            any other employees who did not show up for work.  
 
            Therefore, she cooked, waited on tables, washed dishes and 
 
            operated the cash register.
 
            
 
                 Claimant started to work for employer in July of 1983.  
 
            She started out operating a Whizard knife.  Her job for the 
 
            past several years was removing lower pocket fat from turkey 
 
            thighs with a straight knife (exhibit G).
 
            
 
                 Claimant denied any prior lumbar back problems and 
 
            there is no evidence in the record of any prior lumbar back 
 
            problems.  Claimant admitted that she saw Karen Edkin, D.C., 
 
            for treatments to her cervical spine and thoracic spine in 
 
            1983, 1984, 1985, 1986 and 1987 prior to these injuries.  
 
            Dr. Edkin's records did not show any lumbar spine treatments 
 
            prior to the date of these two injuries (exhibit E).
 
            
 
                 Claimant testified and the company's records verify 
 
            that on July 10, 1987, claimant caught her toe in a rug, 
 
            fell and landed on her knee (exhibit F, pages 3, 4, 8, 10 
 
            and 12).  Claimant testified that she saw Dr. Edkin.  Dr. 
 
            Edkin recorded that she saw claimant on July 11, 1987.  
 
            Claimant reported that she had fallen at work the day before 
 
            onto her right knee and felt a sharp pain in her low back 
 
            and sciatic pain down her right leg to the knee.  Dr. Edkin 
 
            reported a loss of range of motion and x-rays disclosed a 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            subluxation of the fifth lumbar vertebra and the sacrum.  
 
            The doctor showed that standing eight hours a day on the 
 
            line for employer was the etiology of claimant's problem 
 
            (exhibit E, page 2).
 
            
 
                 Claimant further testified that on October 14, 1987, 
 
            she slipped on wet carpeting and landed on her knees and 
 
            hand.  The company records also verify this injury was 
 
            reported by claimant (exhibit F, pages 3, 4, 8, 10 and 12).  
 
            Dr. Edkin gave claimant spinal adjustments for the 
 
            subluxation of the fifth lumbar vertebra and sacrum from 
 
            July 11, 1987 through November 18, 1987 (exhibit E, page 4).  
 
            The doctor noted that she referred claimant to William 
 
            Catalona, M.D., an orthopaedic surgeon, after consultation 
 
            with employer when claimant did not respond to her 
 
            adjustments.  Dr. Edkin said that she saw claimant only one 
 
            more time after that on April 8, 1988 for a headache 
 
            complaint.  The doctor said she did not examine or adjust 
 
            claimant's low back, but noticed foot drop on the right side 
 
            in April of 1988 (exhibit E, page 3).
 
            
 
                 Dr. Catalona first saw claimant on November 12, 1987 
 
            for low back pain and right sciatica which she related to 
 
            two injuries at work where she slipped and fell.  A 
 
            myelogram and CT scan on November 17, 1987 at Muscatine 
 
            General Hospital disclosed a large intervertebral herniated 
 
            disc at L5-S1 (exhibit A, page 1; exhibit B, pages 1-4).  
 
            Dr. Catalona performed a laminotomy and discectomy on 
 
            November 19, 1987 for a herniated nucleus pulposis at L5-S1 
 
            (exhibit A, page 1; exhibit B, pages 6-9). 
 
            
 
                 Claimant reported a sudden recurrence of low back pain 
 
            on December 11, 1987 which occurred on December 7, 1987.  
 
            Claimant was admitted on January 6, 1988 for a repeat 
 
            myelogram and CT scan which disclosed a recurrence of a 
 
            large herniated intervertebral disc at L5-S1 on the right 
 
            side which was encroaching the nerve root at that level 
 
            (exhibit A, page 1; exhibit B, pages 10-13).  Dr. Catalona 
 
            stated on January 6, 1988 that it was still early post-op 
 
            and he was reluctant to perform a second procedure, but 
 
            claimant wanted to know what was causing her pain (exhibit 
 
            B, page 11).  Because she was having persistent pain, she 
 
            elected to have the second discectomy, even though it was 
 
            explained to her that the second operation does not relieve 
 
            as much pain as the initial discectomy and it is accompanied 
 
            by a higher rate of complications (exhibit B, page 15).  The 
 
            second surgery was performed on January 14, 1988 (exhibit A, 
 
            page 1; exhibit B, pages 16-21).
 
            
 
                 Dr. Catalona recorded that he found severe scarring in 
 
            the interlaminer space and, while dissecting out scar from 
 
            the space, he severed the nerve root (exhibit A, pages 1, 10 
 
            and 11).  Dr. Catalona further explained as follows:
 
            
 
                 A repeat discectomy at the same level was done on 
 
                 1/14/88 and during the procedure because of the 
 
                 severe scarring in the interlaminer space while 
 
                 dissecting out scar from the space, the nerve root 
 
                 at this level was lacerated.  There was no 
 
                 twitching of the lower extremity muscles on 
 

 
            
 
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                 lacerating the nerve which usually happens on 
 
                 merely handling the nerve so it came as a 
 
                 surprise.  I completed the procedure and repaired 
 
                 the nerve and posteroperatively she has shown no 
 
                 motor or bowel-bladder dysfunction.  She does have 
 
                 a patch of hypaesthesia and paresthesia in back of 
 
                 her right thigh and complains that her right leg 
 
                 tires easily.
 
            
 
            (Exhibit A, page 12)
 
            
 
                 Dr. Catalona stated that claimant would have permanent 
 
            impairment along with industrial impairment.  He planned to 
 
            use the Cybex muscle test and quantification of the EMG as 
 
            criteria for determining her permanent impairment (exhibit 
 
            A, page 12).  On March 11, 1988, Dr. Catalona stated that 
 
            claimant "[s]hould avoid long periods of standing, walking, 
 
            bending, stooping, climbing, twisting, reaching, pushing, 
 
            pulling or lifting more that 20#."  (Exhibit A, page 9)  He 
 
            further prognosticated, "Using AMA Guide, estimate PI of 15% 
 
            to 20% of the whole man."  (Exhibit A, page 9)
 
            
 
                 Claimant was returned to work on January 16, 1989 
 
            working two to four hours per day with gradually increasing 
 
            the number of hours depending upon her tolerance.  Loren L. 
 
            Arp, L.P.T., designed a "sit-stand" device which would 
 
            provide claimant support in performing her old job.  Dr. 
 
            Catalona said claimant should avoid long hours and overtime 
 
            work.  He recommended that she start off working an hour or 
 
            two per day (exhibit A, page 13).
 
            
 
                 Because of a potential law suit against Dr. Catalona, 
 
            he declined to give an actual permanent functional 
 
            impairment rating, but did refer claimant to Byron W. 
 
            Rovine, M.D., a neurosurgeon (exhibit A, page 14).
 
            
 
                 On July 13, 1988, Dr. Rovine reported, "Mrs. Smith 
 
            recovered from her second operation, but has continued to 
 
            have low back pain, especially on exertion and she has 
 
            numbness in the right posterior thigh and some weakness in 
 
            the right leg.  She also had inability to wiggle her toes."  
 
            (Exhibit C, page 3)  Dr. Rovine estimated that claimant 
 
            would have a 15 percent impairment, 8 percent of which was 
 
            based on restriction of spinal motion and 7 percent of which 
 
            was based on neurological deficit in her right lower 
 
            extremity.  He did not consider the impairment to be 
 
            permanent at that time.  He did not believe claimant could 
 
            work a 6-10 hour day at that time (exhibit C, pages 4 and 
 
            5).
 
            
 
                 On March 29, 1989, Dr. Rovine reported that claimant 
 
            had received extensive physical therapy, and had attended 
 
            back school and work hardening programs.  She had been 
 
            examined by Cybex technique on a number of occasions.  
 
            Claimant had not improved since July of 1988, but rather 
 
            demonstrated some further loss of strength.  The EMG's that 
 
            had been performed disclosed scattered denervation activity 
 
            in the gastrocnemious and soleus, gluteous maximus and right 
 
            lumbosacral paraspinals.  Despite extensive therapy, she had 
 

 
            
 
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            not improved significantly.  She worked two hours a day, 
 
            then three hours a day, but was unable to tolerate four 
 
            hours a day.  Dr. Rovine used a goniometer and measured 
 
            claimant on the standards in the AMA Guides to the 
 
            Evaluation of Permanent Impairment, Third Edition, and 
 
            determined that claimant had a 14 percent permanent 
 
            impairment based upon loss of motion.  He awarded another 6 
 
            percent of permanent impairment for residual symptomatology 
 
            which included: (1) slow gait; (2) favoring her right lower 
 
            extremity; (3) Achilles' reflex absent; (4) weakness of 
 
            dorsiflexion of the right foot; (5) marked weakness of 
 
            dorsiflexion of the right great toe; (6) mild weakness of 
 
            knee flexion on the right; (7) difficulty standing on her 
 
            right heel; and, (8) extreme difficulty arising from a 
 
            squatting position.  His total final permanent impairment 
 
            rating was 20 percent to the body as a whole (exhibit C, 
 
            pages 1 and 2).
 
            
 
                 Claimant never did return to work full time able to 
 
            perform her job as she had done in the past.  The records 
 
            show several trial periods of two hours per day, three hours 
 
            per day, four hours per day, and back to three hours per day 
 
            (exhibit A, page 15).  Dr. Catalona said, "Regarding the 
 
            long term ability for her working, one needs to wait and 
 
            see."  (Exhibit A, page 16)  Claimant has missed a number of 
 
            complete days and series of days from time to time due to 
 
            her low back and right leg pain (exhibit A, pages 18, 20, 
 
            22, 23, 24, 25, 26, 27 and 28).
 
            
 
                 Dr. Catalona reported on August 30, 1990, just a few 
 
            days prior to the hearing, that an MRI report showed a 
 
            bulging annulus on the right at L5-S1 with soft tissue 
 
            defect measuring one centimeter in diameter below the disc 
 
            space slightly encroaching the dura.  Dr. Catalona 
 
            recommended and claimant was working at the time of the 
 
            hearing six hours per day on Monday and Friday and four 
 
            hours a day on Tuesday, Wednesday and Thursday (exhibit A, 
 
            page 28).  This was the extent of claimant's progress after 
 
            a great deal of work hardening and physical therapy (exhibit 
 
            D, pages 1 and 2; exhibit F, page 29; exhibit I).
 
            
 
                 Loren L. Arp, the licensed practical therapist, 
 
            testified by deposition on October 11, 1989 that he 
 
            performed physical therapy and work hardening with claimant 
 
            and tested her several times on the Cybex equipment.  He 
 
            believed that claimant made a sincere effort (exhibit I, 
 
            pages 1-13).  He went to the plant, examined the work place 
 
            and designed the "sit-stand" device to provide support for 
 
            claimant's back (exhibit I, pages 14 and 15).  Arp said 
 
            claimant was compliant and cooperative (exhibit I, page 16).  
 
            He stated her job did not require heavy lifting or bending.  
 
            Standing could be a problem (exhibit I, pages 20 and 21).  
 
            Mr. Arp had attempted to return claimant to eight hours of 
 
            work per day, but had been unable to do so because of her 
 
            weakness and pain (exhibit I, pages 21 and 22).  He did not 
 
            think claimant could work full time (exhibit I, page 28).  
 
            Arp did not know of anything else in the physical therapy 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            field he could have done to enable claimant to work full 
 
            time (exhibit I, pages 28 and 29).  On August 9, 1989, Arp 
 
            stated that his final Cybex test disclosed that claimant 
 
            finished up at 54 percent normal extension strength and 34 
 
            percent normal extension endurance (exhibit I, deposition 
 
            exhibits 7 and 10).  Claimant testified that she did not 
 
            quit work because she needed the income.  She had applied 
 
            for Social Security, was denied, subsequently appealed and 
 
            was denied again.  Claimant felt like she needed to continue 
 
            physical therapy in order to continue to be able to work.  
 
            She felt that, without physical therapy, she probably could 
 
            not work any longer.  Claimant related that she takes six to 
 
            eight Advils per day for pain.  She said she had considered 
 
            a medical malpractice case against Dr. Catalona, but did not 
 
            bring it because a medical expert advised her that what 
 
            occurred probably was not truly malpractice but something 
 
            that could happen under ordinary circumstances.  Claimant 
 
            admitted that she had not tried to perform any other jobs 
 
            for employer.
 
            
 
                 Susan Smith, claimant's daughter, testified that she 
 
            lived with her mother and that since the injury her mother 
 
            had been cranky and edgy.  Susan testified that her mother 
 
            had not been impaired prior to this injury.  She said her 
 
            mother now limps and her activities are more restricted.  
 
            Susan stated that, when her mother stands up, she has to 
 
            catch herself because she begins to fall.
 
            
 
                 Linda Riley, safety supervisor, testified that she 
 
            worked with Dr. Catalona and claimant in trying to provide 
 
            suitable employment for claimant within her medical job 
 
            restrictions.  Riley compiled a list of numerous jobs in 
 
            numerous departments that she thought it was possible 
 
            claimant could perform if she tried, but claimant had not 
 
            applied for any other positions.  She did acknowledge that 
 
            claimant had no seniority in any department other than her 
 
            own department of cut-up.  Riley stated that the company had 
 
            provided claimant with the "sit-stand" device recommended by 
 
            Loren Arp and also employment of six hours per day on Monday 
 
            and Friday and four hours per day on Tuesday, Wednesday and 
 
            Thursday as finally recommended by Dr. Catalona.  She 
 
            acknowledged that this list was dated May 31, 1989 and that 
 
            this was September of 1990.  Of the jobs in the cut-up 
 
            department, the first 30 jobs were all standing jobs which 
 
            left only 7 other jobs where claimant would have any 
 
            seniority.  Riley said that in January of 1989, claimant 
 
            seemed to be anxious to return to work.  Claimant testified 
 
            by way of rebuttal that she watched the board daily and saw 
 
            only one of these jobs posted.  Furthermore, most of the 
 
            jobs were not within her work restrictions or else she was 
 
            not qualified to perform them.
 
            
 
                 Wherefore, based upon claimant's age of the early 50's; 
 
            her high school education and trainability; her past 
 
            versatile and stable employment record; claimant's permanent 
 
            impairment rating of 20 percent to the body as a whole; 
 
            claimant's restrictions of not to lift more than 20 pounds, 
 

 
            
 
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            to avoid long hours and overtime work, and her inability to 
 
            work for prolonged periods of time while standing; the 
 
            permanent weakness and pain in claimant's back and right 
 
            leg; loss of range of motion; two lumbar surgeries, one of 
 
            which inadvertently severed a nerve; the fact that employer 
 
            is providing employment for employee within her medical 
 
            restrictions and has gone to great lengths to accommodate 
 
            claimant with employment, and claimant's willingness to 
 
            continue to work in spite of her limitations; the fact that 
 
            claimant still is not able to work full time and there is no 
 
            indication that she ever will be able to work full time 
 
            again; the fact that the treating physician and the 
 
            evaluating physician both found that claimant was getting 
 
            worse rather than better; and, because even after two 
 
            surgeries claimant still had a bulging annulus at the level 
 
            of the prior two surgeries; it is determined that claimant 
 
            has sustained a 40 percent industrial disability to the body 
 
            as a whole and that claimant is entitled to 200 weeks of 
 
            permanent partial disability benefits.  Dr. Catalona 
 
            prognosticated on September 1, 1989, "Certainly Ms. Smith is 
 
            not getting younger and along with her back problem will 
 
            suffer fatigue the more she works."  (Exhibit A, page 16)  
 
            However, this decision is based on her condition at the time 
 
            of this hearing and not what might occur after the hearing.
 
            
 
                                conclusions of law
 
            
 
                 Wherefore, based upon the evidence presented and the 
 
            foregoing and following principles of law, these conclusions 
 
            of law are made.
 
            
 
                 That the injuries of July 10, 1987 and October 14, 1987 
 
            were the cause of permanent disability.  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).
 
            
 
                 That claimant has sustained a 40 percent industrial 
 
            disability to the body as a whole.  Diederich v. Tri-City 
 
            Ry. Co., 219 Iowa 587, 593, 258 N.W.2d 899, 902 (1935); 
 
            Olson v. Goodyear Serv. Stores, 255 Iowa 1112, 1121, 125 
 
            N.W.2d 251, 257 (1963).
 
            
 
                 That claimant is entitled to 200 weeks of permanent 
 
            partial disability benefits.  Iowa Code section 85.34(2)(u).
 
            
 
                                      order
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 That defendants pay to claimant two hundred (200) weeks 
 
            of permanent partial disability benefits at the rate of one 
 
            hundred seventy-one and 02/100 dollars ($171.02) per week in 
 
            the total amount of thirty-four thousand two hundred four 
 
            and 00/100 dollars ($34,204.00) payable commencing on August 
 
            4, 1989 as stipulated to by the parties.
 
            
 
                 That defendants are entitled to a credit for all 
 
            workers' compensation benefits paid to claimant either as 
 
            temporary total disability or temporary partial disability 
 
            since that date as stipulated to by the parties.
 

 
            
 
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                 That all accrued benefits are to be paid in a lump sum.
 
            
 
                 That interest will accrue pursuant to Iowa Code section 
 
            85.30.
 
            
 
                 That the costs of this action are charged to defendants 
 
            pursuant to Division of Industrial Services Rule 343-4.33.
 
            
 
                 That defendants file claim activity reports as 
 
            requested by this agency pursuant to Division of Industrial 
 
            Services Rule 343-3.1.
 
            
 
                 That defendants file a first report of injury for the 
 
            injury that occurred on October 14, 1987.
 
            
 
                 Signed and filed this ______ day of ____________, 1990.
 
            
 
                 
 
            
 
                 
 
                 
 
                                          ______________________________
 
                                          WALTER R. McMANUS, JR.
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Michael W. Liebbe
 
            Attorney at Law
 
            116 East 6th Street
 
            P.O. Box 339
 
            Davenport, Iowa  52805
 
            
 
            Mr. Greg A. Egbers
 
            Attorney at Law
 
            600 Union Arcade Building
 
            111 East Third Street
 
            Davenport, Iowa  52801
 
            
 
            
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            DALE LEMANTON,                :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :         File No. 910597
 
            D.C.S. SANITATION MANAGEMENT  :
 
            INC.,                         :      A R B I T R A T I O N
 
                                          :
 
                 Employer,                :         D E C I S I O N
 
                                          :
 
            and                           :
 
                                          :
 
            AETNA CASUALTY & SURETY       :
 
            COMPANY,                      :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding in arbitration brought by Dale 
 
            Lemanton against D.C.S. Sanitation Management, Inc., his 
 
            former employer, and Aetna Casualty & Surety Company, its 
 
            workers' compensation insurance carrier.  Lemanton seeks 
 
            additional compensation for healing period or temporary 
 
            total disability and permanent disability affecting his left 
 
            eye resulting from an injury of November 21, 1988.  On the 
 
            prehearing report, it was indicated that there was a dispute 
 
            regarding whether claimant sustained an injury on November 
 
            21, 1988 which arose out of and in the course of his 
 
            employment with the employer, but at the hearing, defense 
 
            counsel indicated that there was no dispute regarding the 
 
            incident and that the principal dispute in the case was 
 
            whether or not Lemanton could recover additional 
 
            compensation for permanent partial disability of his left 
 
            eye since the eye had been previously injured and he had 
 
            been previously compensated for 100 percent loss of the use 
 
            of his left eye.
 
            
 
                 The record in the case consists of testimony from 
 
            Thomas John Gairloch Leitch, M.D., a Council Bluffs, Iowa 
 
            ophthalmologist and Dale Lemanton.  The record also contains 
 
            jointly offered exhibits 1 through 27.
 
            
 
                                 findings of fact
 
            
 
                 Dale Lemanton severely burned his face and left eye in 
 
            an industrial accident that occurred while he was employed 
 
            by Blue Star Foods in 1977.  He experienced a long course of 
 
            difficulties with the eye.  On March 13, 1978, J. C. 
 
            Filkins, M.D., one of the treating ophthalmologists, 
 
            reported that claimant had a 100 percent loss of vision in 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            his left eye as a result of that injury.  Dr. Filkins also 
 
            indicated that claimant could possibly regain some of the 
 
            lost vision with a corneal transplant.
 
            
 
                 A corneal transplant was attempted in 1980, but was 
 
            rejected shortly after the procedure had been performed.  A 
 
            second transplant was performed in 1983 which was apparently 
 
            successful and provided claimant with some vision in his 
 
            left eye until he reinjured the eye by striking it on a 
 
            table in 1985 (exhibits 13 and 14).
 
            
 
                 Lemanton underwent a third corneal transplant surgery 
 
            on March 4, 1988 (exhibit 17).  Dr. Leitch indicated in his 
 
            notes of June 3, 1988 that felt the prognosis was good 
 
            (exhibit 24, page 6).  The medical records following that 
 
            surgery indicate that the graft was doing well, though some 
 
            problems are noted in office visits of July 21, 1988 and 
 
            August 18, 1988 (exhibit 21, pages 2-4; exhibit 24, page 7).
 
            
 
                 On August 26, 1988, while performing cleanup work for 
 
            the employer, claimant was again struck in the eye with 
 
            steam.  He was seen by Dr. Leitch and a fresh abrasion was 
 
            observed on the left eye.  The abrasion healed in two days 
 
            and the corneal graft remained clear (exhibit 24, page 6; 
 
            exhibit 27, page 8).  When seen on September 22, 1988 at the 
 
            University of Iowa Hospitals and Clinics, severe surface 
 
            changes were noted on the cornea.  When seen on October 27, 
 
            1988, the assessment made was that he was still doing well, 
 
            although the irregular surface and epithelial cysts were 
 
            noted.
 
            
 
                 Claimant was seen again at the University of Iowa 
 
            Hospitals and Clinics on November 29, 1988 at which time he 
 
            expressed that he felt his visual acuity had decreased.  An 
 
            abrasion was observed on the eye (exhibit 21, page 6).  Dr. 
 
            Leitch saw claimant on December 11, 1988 and a large 
 
            abrasion was noted.  The abrasion was slow to heal.  Dr. 
 
            Leitch indicated that, if claimant could have returned to 
 
            work in a clean, safe environment, he could have done so as 
 
            early as January 10, 1989 since the abrasion had healed by 
 
            that time (exhibit 20; exhibit 27, page 20).  Dr. Leitch 
 
            also indicated that, in view of the problems with the eye, 
 
            it was not advisable for claimant to return to the type of 
 
            work he had performed for this employer which presented 
 
            opportunity for further injury.
 
            
 
                 The corneal graft subsequently was rejected.  Dr. 
 
            Leitch reported that claimant had complete loss of vision in 
 
            his left eye due to the repeat steam burns which had caused 
 
            the graft to fail (exhibit 23; exhibit 27, page 10).  Dr. 
 
            Leitch indicated that the loss of vision in the left eye is 
 
            probably irreversible (exhibit 27, pages 15 and 16).  J. H. 
 
            Krachmer, M.D., from the University of Iowa Hospitals and 
 
            Clinics, also indicated that further corneal grafting would 
 
            have little chance of success (exhibit 22).  Dr. Leitch 
 
            stated that, if the recent graft had not been rejected, 
 
            claimant would probably have been able to regain some vision 
 
            with the left eye through the use of a corneal contact lens 
 
            (exhibit 27, page 23).
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            
 
                 Dr. Leitch's assessment of the case is corroborated by 
 
            the records from the University of Iowa Hospitals and 
 
            Clinics.  It is specifically found that the corneal graft 
 
            which was performed in 1988 would probably have been 
 
            successful in restoring some vision in claimant's left eye 
 
            if it had not been injured on November 21, 1988 in the meat 
 
            hook incident.  The steam injury from August 1988 may have 
 
            possibly played some part in causing the graft to be 
 
            rejected, but it is clear that the November injury certainly 
 
            did so.
 
            
 
                 While the graft appeared successful prior to the 
 
            traumas, it had not yet progressed to the point that 
 
            claimant had normal vision.  The record of the case does not 
 
            contain specific percentage ratings of the degree of vision 
 
            which claimant has, had or would have regained if the 
 
            traumas had not occurred.  Dr. Leitch expected that the 
 
            corrected vision would be in the range of 20/30 or 20/40.  
 
            At one point, Dr. Leitch noted that claimant could count 
 
            fingers at eight feet with the left eye.  The uncorrected 
 
            vision was still not particularly good at the time of the 
 
            August and November traumas.
 
            
 
                 It is found that, in late 1987, claimant's vision in 
 
            his left eye was essentially limited to light perception and 
 
            that the same state exists at the present time.  He 
 
            essentially has a total loss of use of the left eye.  It is 
 
            further found that, immediately prior to the 1988 traumas, 
 
            claimant had regained approximately 40 percent of the vision 
 
            in his left eye.  If the expected recovery following the 
 
            graft surgery had occurred, as is found to be probable, he 
 
            would have regained approximately 90 percent of the use of 
 
            the left eye when corrective lenses were employed.
 
            
 
                                conclusions of law
 
            
 
                 Claimant has the burden of proving by a preponderance 
 
            of the evidence that he received an injury on November 21, 
 
            1988 which arose out of and in the course of his employment. 
 
            McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa 
 
            1976); Musselman v. Central Telephone Co., 261 Iowa 352, 154 
 
            N.W.2d 128 (1967). 
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury of November 
 
            21, 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). 
 
            
 
                 Dr. Leitch's assessment has been previously found to be 
 
            correct.  It is therefore determined that the rejection of 
 
            the transplanted cornea is the result of an injury which 
 
            arose out of and in the course of claimant's employment with 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            D.C.S. Sanitation Management, Inc.
 
            
 
                 Claimant seeks healing period.  He was off work 
 
            starting November 29, 1988.  He was released to safe work by 
 
            Dr. Leitch on January 18, 1990 (exhibit 27, page 14).  The 
 
            fact that claimant could have returned to safe work in 
 
            January is not controlling since such work was not made 
 
            available to him.  It is determined that claimant reached 
 
            maximum medical recuperation when he was seen by Dr. Leitch 
 
            on May 18, 1989.  It was at that point that active medical 
 
            treatment ceased.  The healing period is therefore 24 and 
 
            3/7 weeks.
 
            
 
                 The law of workers' compensation recognizes that the 
 
            state of permanency which supports an award need not be 
 
            absolute perpetuity.  Wallace v. Brotherhood of Locomotive 
 
            Firemen & Enginemen, 230 Iowa 1127, 300 N.W. 322 (1941).  
 
            The workers' compensation law allows review-reopening 
 
            [section 86.14(2), Code of Iowa].  It is not impossible for 
 
            a person with a permanently damaged member to recover more 
 
            use of the member than what the medical practitioners had 
 
            originally anticipated.  In this case, it had been indicated 
 
            as early as 1978 that a corneal transplant could possibly 
 
            restore some of claimant's vision.  If the restoration had 
 
            occurred promptly, the employer liable for the 1977 injury 
 
            could have reopened the case in order to reduce the amount 
 
            of permanent disability compensation payable.  Since all 
 
            payments had been paid and the statute of limitations 
 
            provided by Code section 85.26(2) had elapsed, the employer 
 
            was not able to recoup any part of the permanent partial 
 
            disability compensation which had been paid.  This is the 
 
            reverse of the situation that occurs when an injured 
 
            person's condition unexpectedly worsens after the time for 
 
            review-reopening has elapsed.
 
            
 
                 The correct rule of law is that the amount of 
 
            compensation awarded for permanent disability is based upon 
 
            the actual loss which was proximately caused by the injury.  
 
            Evidence showing prior payment of permanent disability 
 
            compensation can certainly be used to establish the 
 
            existence of a preexisting condition as a basis for 
 
            apportionment of disability, but it is not conclusive.  It 
 
            does not bar payment of additional compensation in those 
 
            cases where the degree of disability has lessened since the 
 
            original award of disability compensation was made.  2 
 
            Larson Workmen's Compensation Law, section 59.42.
 
            
 
                 It is therefore concluded that Dale Lemanton is 
 
            entitled to recover weekly compensation for a 40 percent 
 
            loss of the vision in his left eye.  This entitles him to 
 
            recover 56 weeks of compensation at the stipulated rate of 
 
            $178.38 in accordance with Iowa Code section 85.34(2)(p). 
 
            The compensation is payable commencing on May 19, 1989, the 
 
            day after the end of the healing period.  In making this 
 
            assessment, the award is made based upon uncorrected vision.
 
            
 
                                      order
 
            
 
                 IT IS THEREFORE ORDERED that defendants pay claimant 
 
            twenty-four and three-sevenths (24 3/7) weeks of 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            compensation for healing period at the stipulated rate of 
 
            one hundred seventy-eight and 38/100 dollars ($178.38) per 
 
            week payable commencing November 29, 1988.
 
            
 
                 IT IS FURTHER ORDERED that defendants pay claimant 
 
            fifty-six (56) weeks of compensation for permanent partial 
 
            disability at the stipulated rate of one hundred 
 
            seventy-eight and 38/100 dollars ($178.38) per week payable 
 
            commencing May 19, 1989.
 
            
 
                 IT IS FURTHER ORDERED that all amounts be paid in a 
 
            lump sum as they are accrued and past due, together with 
 
            interest pursuant to Iowa Code section 85.30.
 
            
 
                 IT IS FURTHER ORDERED that the costs of this action are 
 
            assessed against defendants pursuant to Division of 
 
            Industrial Services Rule 343-4.33.
 
            
 
                 IT IS FURTHER ORDERED that defendants file claim 
 
            activity reports as requested by this agency pursuant to 
 
            Division of Industrial Services Rule 343-3.1.
 
            
 
                 Signed and filed this ______ day of ____________, 1990.
 
            
 
                 
 
            
 
                 
 
                 
 
                                          ______________________________
 
                                          MICHAEL G. TRIER
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Stephen A. Rubes
 
            Attorney at Law
 
            222 South Sixth Street
 
            Council Bluffs, Iowa  51501
 
            
 
            Ms. Judith Ann Higgs
 
            Attorney at Law
 
            200 Home Federal Building
 
            P.O. Box 3086
 
            Sioux City, Iowa  51102
 
            
 
            
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                               1703, 1802, 1803
 
                                               Filed August 3, 1990
 
                                               MICHAEL G. TRIER
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            DALE LEMANTON,                :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :         File No. 910597
 
            D.C.S. SANITATION MANAGEMENT  :
 
            INC.,                         :      A R B I T R A T I O N
 
                                          :
 
                 Employer,                :         D E C I S I O N
 
                                          :
 
            and                           :
 
                                          :
 
            AETNA CASUALTY & SURETY       :
 
            COMPANY,                      :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
            1802, 1803
 
            Healing period ended when active medical treatment ceased.
 
            
 
            1703
 
            Claimant, who had previously been compensated for 100 
 
            percent loss of his left eye due to an earlier accident, but 
 
            had regained some use of the eye through corrective surgery, 
 
            was held to be entitled to recover additional permanent 
 
            disability compensation for the loss of use of the eye which 
 
            was caused by the subsequent injury.
 
            
 
 
         
 
 
 
 
 
 
 
 
 
                   BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         _________________________________________________________________
 
                     
 
         MARVIN R. SNYDER,     
 
                     
 
              Claimant,   
 
                     
 
         vs.         
 
                                               File Nos. 910623/974049
 
         INTERSTATE DETROIT DIESEL,      
 
                                                   A P P E A L
 
              Employer,   
 
                                                 D E C I S I O N
 
         and         
 
                     
 
         WAUSAU INSURANCE COMPANIES,     
 
                     
 
              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 
 
         June 29, 1992 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 November, 1992.
 
         
 
         
 
         
 
         
 
                                    ________________________________
 
                                           BYRON K. ORTON
 
                                      INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. David D. Drake
 
         Attorney at Law
 
         West Towers Office
 
         1200 35th St., Ste 500
 
         West Des Moines, Iowa 50265
 
         
 
         Mr. Marvin E. Duckworth
 
         Attorney at Law
 
         2700 Grand Ave., Ste 111
 
         Des Moines, Iowa 50312
 
         
 
         
 
 
            
 
 
 
 
 
 
 
 
 
                                              9998
 
                                              Filed November 17, 1992
 
                                              Byron K. Orton
 
            
 
                      BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
            MARVIN R. SNYDER,     
 
                        
 
                 Claimant,   
 
                        
 
            vs.         
 
                                                 File Nos. 910623/974049
 
            INTERSTATE DETROIT DIESEL,      
 
                                                     A P P E A L
 
                 Employer,   
 
                                                   D E C I S I O N
 
            and         
 
                        
 
            WAUSAU INSURANCE COMPANIES,     
 
                        
 
                 Insurance Carrier,    
 
                 Defendants.      
 
            ____________________________________________________________
 
            
 
            9998
 
            
 
                 Summary affirmance of deputy's decision filed June 29, 
 
            1992.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            MARVIN R. SNYDER,             :
 
                                          :
 
                 Claimant,                :
 
                                          :       File Nos. 910623
 
            vs.                           :                 974049
 
                                          :
 
            INTERSTATE DETROIT DIESEL,    :
 
                                          :     A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            WAUSAU INSURANCE COMPANIES,   :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 Claimant, Marvin Roger Snyder, seeks benefits under the 
 
            Iowa Workers' Compensation Act, and has filed two petitions 
 
            in arbitration against Interstate Detroit Diesel, employer, 
 
            and Wausau Insurance Companies, insurance carrier, as 
 
            defendants.
 
            
 
                 The files were consolidated, and a hearing was held on 
 
            April 2, 1992, at Des Moines, Iowa.
 
            
 
                 The record in these cases consists of the testimony 
 
            from the claimant and Larry Crowell; and, joint exhibits 1A 
 
            through 1M and 2 through 13.
 
            
 
                 Agency file No. 910623 presents the following issues 
 
            for resolution:
 
            
 
                 1.  Whether there is a causal relationship between 
 
            claimant's injury of February 24, 1989 and his current 
 
            disability;
 
            
 
                 2.  Whether claimant is entitled to temporary total or 
 
            healing period benefits, or permanent partial or total 
 
            disability benefits;
 
            
 
                 3.  Whether claimant is entitled to medical benefits as 
 
            governed by Iowa Code section 85.27; and,
 
            
 
                 4.  Whether defendants are entitled to credit for 
 
            benefits previously paid as provided for under Iowa Code 
 
            section 85.38(2).
 
            
 
                 Agency file No. 974049 presents the following issues 
 
            for resolution:
 
            
 
                 1.  Whether claimant received an injury on March 7, 
 
            1989, which arose out of and in the course of his 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            employment;
 
            
 
                 2.  Whether there is a causal relationship between the 
 
            alleged injury and claimant's disability;
 
            
 
                 3.  Whether claimant is entitled to temporary total 
 
            disability or healing period benefits, or permanent partial 
 
            or total disability benefits;
 
            
 
                 4.  Whether claimant is entitled to medical benefits as 
 
            provided for under Iowa Code section 85.27; and,
 
            
 
                 5.  Whether defendants are entitled to credit for 
 
            benefits previously paid as governed by Iowa Code section 
 
            85.38(2).
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 The undersigned deputy, having reviewed all the 
 
            evidence received, finds the following facts:
 
            
 
                 Claimant was born on November 5, 1950.  At the time of 
 
            the hearing, he was 41 years of age.
 
            
 
                 After graduating from high school in 1969, claimant 
 
            entered the army and spent four months on active duty.  At 
 
            that time, he was diagnosed as having a benign tumor in his 
 
            left ear, and received an honorable discharge.
 
            
 
                 In 1970, claimant was hired by Hicklin G.M. Power as a 
 
            mechanic.  Hicklin G.M. Power is now known as Interstate 
 
            Detroit Diesel, and will hereinafter be referred to as 
 
            defendant.  For the first several years, claimant worked as 
 
            a mechanic trainee, and joined the engine guild in 1973.
 
            
 
                 In order to join, he was required to complete and pass 
 
            a written test, which enabled him to work on all types of 
 
            G.M. diesel motors and engines.  In order to maintain his 
 
            membership in the guild from 1970 through 1989, claimant 
 
            continued to take various tests to improve his 
 
            classification.  In 1989, claimant was classified as a 
 
            master craftsman.
 
            
 
                 Claimant's job duties while working for defendant 
 
            including complete overhaul of diesel engines, transmissions 
 
            and electrical systems.  Defendants' shop repaired all types 
 
            of G.M. heavy machinery, including engines, bulldozers, road 
 
            graders and scrapers, and trucks.
 
            
 
                 Claimant described his job as very heavy labor and 
 
            everyday duties involved and extensive amount of bending, 
 
            stopping, squatting and lifting of up to 200 pounds.  Hoists 
 
            were available to lift heavy parts and equipment.  
 
            Rebuilding the diesel engines required claimant to use a 
 
            creeper to allow him to perform overhead work from 
 
            underneath the machines.  Working on various electrical 
 
            systems required the least amount of physical demands as 
 
            claimant was required to lift 35 to 70 pounds occasionally.
 
            
 
                 On February 24, 1989, claimant was working in the shop 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            on a truck that had just come in and was still icy from road 
 
            conditions.  As claimant began to climb down from the cab of 
 
            the truck, he slipped, fell to the floor and twisted his 
 
            left knee.  He went to lunch, and his left knee became so 
 
            painful that he was unable to work.  Claimant reported the 
 
            incident to his foreman, Dave Anderson, and was sent to the 
 
            Iowa Lutheran Medical Center emergency room.  Claimant was 
 
            treated by Rodney Johnson, M.D., who ordered various tests, 
 
            put a splint on the left knee, and gave claimant a pair of 
 
            crutches.
 
            
 
                 Claimant attempted to return to work within the next 
 
            several days, but due to the pain returned to Dr. Johnson.  
 
            Although all of the test results were negative, claimant 
 
            underwent arthroscopic surgery in March 1989.  During the 
 
            surgery, Dr. Johnson performed a partial lateral menisectomy 
 
            with debridement of the medial femoral condyle (Joint 
 
            Exhibit 1a, page 2).
 
            
 
                 In August of September of 1989, claimant underwent a 
 
            high tibial valgus osteotomy on the left lower extremity.  
 
            This was performed to alter the weight bearing stresses of 
 
            claimant's knees.
 
            
 
                 Claimant began physical therapy prior to the osteotomy, 
 
            and testified that he developed problems with his shoulders, 
 
            elbows, wrists and his hiatal hernia.
 
            
 
                 Eventually, Dr. Johnson referred claimant to James A. 
 
            Rand, M.D., at the Mayo Clinic.  Dr. Rand felt no further 
 
            surgical intervention was necessary, and on May 3, 1990, 
 
            claimant was released by Dr. Johnson and was to return to 
 
            work.  Both Drs. Rand and Johnson felt claimant would be 
 
            unable to perform his previous job duties with the defendant 
 
            and Dr. Johnson recommended vocational rehabilitation (Jt. 
 
            Ex. 1d, p. 2).
 
            
 
                 Apparently, claimant contacted the defendant, who 
 
            stated that with the restrictions placed upon him he would 
 
            be unable to perform work at the company.  No light duty 
 
            work was available.
 
            
 
                 Claimant has received several impairment ratings.  Dr. 
 
            Johnson, claimant's treating physician causally relates 
 
            claimant's left knee problems to the February 24, 1989 work 
 
            injury.  He assigned to the claimant an impairment rating of 
 
            20 percent to the left lower extremity (Jt. Ex. 1g, pp. 7-
 
            8).  Dr. Johnson also states that 5 percent of this 
 
            impairment rating is due to claimant's previous knee surgery 
 
            in 1981 (Jt. Ex. 1d, pp. 3,5).
 
            
 
                 Dr. Rand of Mayo Clinic states in his reports that he 
 
            is unable to determine how much of the claimant's present 
 
            complaints in his knees relate to his previous surgeries or 
 
            any work-related injuries (Jt. Ex. 1e, p. 1).
 
            
 
                 Marvin Dubansky, M.D., also evaluated claimant.  He 
 
            reviewed the medical records and related claimant's left 
 
            knee complaints to the fall on February 24, 1989, as an 
 
            aggravation of the preexisting degenerative condition of the 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            claimant's knee and tear of the lateral meniscus.  He opined 
 
            that the claimant has an impairment rating of 21 percent to 
 
            the left lower extremity, and anticipated no further 
 
            impairment if the claimant undergoes total knee arthroplasty 
 
            in the future.
 
            
 
                 Claimant's past medical history is remarkable for a 
 
            myriad of physical ailments.  Specifically, claimant has had 
 
            hearing loss associated with ear problems since the 1970's.  
 
            He has had several surgeries to repair ruptured eardrums, 
 
            but continues to experience loss of hearing in the left ear.
 
            
 
                 Additionally, claimant has been diagnosed as having 
 
            bilateral carpal tunnel syndrome.  In 1986 or 1987, he 
 
            underwent carpal tunnel surgery on the left wrist but due to 
 
            what claimant perceived as an unsuccessful result, he 
 
            declined to have a release done for the right wrist.
 
            
 
                 Claimant has also undergone prior knee surgeries, 
 
            specifically, bilateral retinacular releases in 1981 (Jt. 
 
            Ex. 1d, pp. 20, 31-32; 1i, p. 15).
 
            
 
                 Claimant admitted that chiropractic treatment received 
 
            from May through September of 1986 had involved treatment 
 
            for arm and shoulder complaints (Jt. Ex. 1d, p. 18).  No 
 
            impairment ratings had been given as a result of any arm or 
 
            shoulder conditions until August of 1991, after he had 
 
            obtained his subsequent employment with Benson Motors.
 
            
 
                 The claimant also testified to continuing problems and 
 
            medical treatment for his wrists, elbows, shoulders, back 
 
            and knees since beginning work at Benson Motors in December 
 
            of 1989.  He admitted that in June of 1991 his right elbow 
 
            locked up while using a grease gun requiring medical 
 
            treatment and he had also gone to the emergency room in 
 
            August of 1991 for pain in his elbows caused by his work at 
 
            Benson Motors (Jt. Exs. 1-4).
 
            
 
                 The medical records show that claimant has had previous 
 
            problems with his right knee dating back to 1981, including 
 
            surgery by Dr. Boulden (Jt. Ex. 1d, pp. 20,31,32).  After 
 
            his fall on February 24, 1989, the claimant initially 
 
            complained only of left knee problems and, in April of 1989, 
 
            began to complain of problems in both his right and left 
 
            knees (Jt. Ex. 1d, p. 13).  Significant degenerative changes 
 
            or arthritis have been noted in both the claimant's left and 
 
            right knee (Jt. Ex. 1d, p. 14; Jt. Ex. 1e, p. 1; Jt. Ex. 1i, 
 
            p. 9).  In October of 1989, claimant advised Dr. Johnson 
 
            that the symptoms in his right knee developed at the time of 
 
            his fall on February 24, 1989 (Jt. Ex. 1d, p. 6).
 
            
 
                 Although Dr. Johnson suggests claimant's problems in 
 
            his upper extremities may be related to cumulative injury at 
 
            Interstate Detroit Diesel (Jt. E. 1d, p. 1), Dr. Dubansky 
 
            suggests that this injury, if any, is ongoing with the 
 
            claimant's work at Benson Motors.  Claimant has been given 
 
            an impairment rating of 20 percent to the right upper 
 
            extremity and 15 percent of the left upper extremity as a 
 
            result of these complaints (Jt. Ex. 1g, pp. 1,2).  This 
 
            impairment rating was given in August of 1991 after the 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            claimant had been off work at Interstate Detroit Diesel 
 
            since March of 1989 and had returned to work for a 
 
            subsequent employer, Benson Motors, for approximately eight 
 
            months.
 
            
 
                 The medical evidence shows that claimant was diagnosed 
 
            with a hernia ten years ago.  He had continuing problems 
 
            with the hernia including problems in August of 1988, four 
 
            months prior to his knee injury on February 24, 1989 (Jt. 
 
            Ex. 1m, pp. 2,3).  At the time of his hernia surgery in June 
 
            of 1989, he reported that his complaints had already been 
 
            increasing over the past year unrelated to any injury at 
 
            Interstate Detroit Diesel (Jt. Ex. 1i, p. 4).  Dr. Johnson 
 
            has suggested that the medications given to the claimant for 
 
            his knee injury may have exacerbated his hernia complaints.  
 
            However, Dr. Johnson does not state this opinion to any 
 
            probability (Jt. Ex. 1d, p. 9).  The claimant has not been 
 
            given a permanent impairment rating for his hernia 
 
            condition.
 
            
 
                 Despite all of claimant's physical ailments, he is 
 
            currently working as a mechanic for Benson Motors in Ames, 
 
            Iowa.  As such, he performs maintenance and overhaul of 
 
            engines, transmissions, rear ends, and services trucks.  
 
            Claimant testified that his position requires him to bend, 
 
            stoop, squat and climb stairs.  He frequently works 
 
            underneath vehicles and lifts in excess of 200 pounds.  His 
 
            position with defendant required less lifting, and he was 
 
            provided more variety of work with Benson Motors.  
 
            Additionally, claimant testified that his current position 
 
            aggravates his knees, wrists, elbows, shoulders and back.  
 
            He further stated that he feels worse today than he did one 
 
            year ago.
 
            
 
                         ANALYSIS AND CONCLUSIONS OF LAW
 
            
 
                 For agency file No. 910613, the first issue to be 
 
            addressed is whether claimant's injury on February 24, 1989, 
 
            is the cause of a permanent disability.
 
            
 
                 An employee is entitled to compensation for any and all 
 
            personal injuries which arise out of and in the course of 
 
            the employment.  Section 85.3(1).
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury of February 
 
            24, 1989, is causally related to the disability on which he 
 
            now bases his claim.  Bodish v. Fischer, Inc., 257 Iowa 516, 
 
            133 N.W.2d 867 (1965).  Lindahl v. L. O. Boggs, 236 Iowa 
 
            296, 18 N.W.2d 607 (1945).  A possibility is insufficient; a 
 
            probability is necessary.  Burt v. John Deere Waterloo 
 
            Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955).  The 
 
            question of causal connection is essentially within the 
 
            domain of expert testimony.  Bradshaw v. Iowa Methodist 
 
            Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). 
 
            
 
                 However, expert medical evidence must be considered 
 
            with all other evidence introduced bearing on the causal 
 
            connection.  Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion 
 
            of experts need not be couched in definite, positive or 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            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).
 
            
 
                 Furthermore, if the available expert testimony is 
 
            insufficient alone to support a finding of causal 
 
            connection, such testimony may be coupled with nonexpert 
 
            testimony to show causation and be sufficient to sustain an 
 
            award.  Giere v. Aase Haugen Homes, Inc., 259 Iowa 1065, 146 
 
            N.W.2d 911, 915 (1966).  Such evidence does not, however, 
 
            compel an award as a matter of law.  Anderson v. Oscar Mayer 
 
            & Co., 217 N.W.2d 531, 536 (Iowa 1974).  To establish 
 
            compensability, the injury need only be a significant 
 
            factor, not be the only factor causing the claimed 
 
            disability.  Blacksmith v. All-Amnerican, Inc., 290 N.W.2d 
 
            348, 354 (Iowa 1980).
 
            
 
                 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 medical evidence clearly shows that the only 
 
            condition that has been causally related to the claimant's 
 
            fall on February 24, 1989, is an injury to his left knee.  
 
            Both Drs. Johnson and Dubansky relate the condition of 
 
            claimant's left knee to the work injury.  His impairment 
 
            ratings of 15 percent or 21 percent to the left lower 
 
            extremity from Dr. Johnson and Dr. Dubansky respectively 
 
            would be related to this condition.
 
            
 
                 Both doctors provide credible documentation as to the 
 
            impairments, and each opinion carries the same weight as the 
 
            other.  As a result, the undersigned believes that an 
 
            average of the two ratings provides the most equitable 
 
            result.  Claimant is awarded 39.857 weeks (18% of 220 weeks) 
 
            of permanent partial disability payments.
 
            
 
                 For claimant to prevail in file No. 974049, he must 
 
            prove by a preponderance of the evidence that he sustained 
 
            an injury on March 7, 1989, that arose out of and in the 
 
            course of his employment.
 
            
 
                 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 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            v. State of Iowa, 249 Iowa 1147, 91 N.W.2d 555 (1958).
 
            
 
                 The words "out of" refer to the cause or source of the 
 
            injury.  Crowe, 246 Iowa 402, 68 N.W.2d 63.
 
            
 
                 The words "in the course of" refer to the time and 
 
            place and circumstances of the injury.  McClure v. Union 
 
            et al. Counties, 188 N.W.2d 283 (Iowa 1971); Crowe, 246 Iowa 
 
            402, 68 N.W.2d 63.
 
            
 
                 "An injury occurs in the course of the employment when 
 
            it is within the period of employment at a place the 
 
            employee may reasonably be, and while he is doing his work 
 
            or something incidental to it."  Cedar Rapids Comm. Sch. 
 
            Dist. v. Cady, 278 N.W.2d 298 (Iowa 1979), McClure, 188 
 
            N.W.2d 283; Musselman, 261 Iowa 352, 154 N.W.2d 128.
 
            
 
                 Especially germane to the case at bar is the agency's 
 
            reliance upon Almquist v. Shenandoah Nurseries, 218 Iowa 
 
            724, 731-32, 254 N.W. 35, 38 (1934).  The Supreme Court of 
 
            Iowa in Almquist, 218 Iowa 724, 731-32, 254 N.W. 35, 38 
 
            (1934), discussed the definition of personal injury in 
 
            workers' compensation cases as follows:
 
            
 
                 While a personal injury does not include an 
 
                 occupational disease under the Workmen's 
 
                 Compensation Act, yet an injury to the health may 
 
                 be a personal injury [Citations omitted.]  
 
                 Likewise a personal injury includes a disease 
 
                 resulting from an injury....The result of changes 
 
                 in the human body incident to the general 
 
                 processes of nature do not amount to a personal 
 
                 injury.  This must follow, even though such 
 
                 natural change may come about because the life has 
 
                 been devoted to labor and hard work.  Such result 
 
                 of those natural changes does not constitute a 
 
                 personal injury even though the same brings about 
 
                 impairment of health or the total or partial 
 
                 incapacity of the functions of the human body.
 
            
 
                    ....
 
            
 
                    A personal injury, contemplated by the 
 
                 Workmen's Compensation Law, obviously means an 
 
                 injury to the body, the impairment of health, or a 
 
                 disease, not excluded by the act, which comes 
 
                 about, not through the natural building up and 
 
                 tearing down of the human body, but because of a 
 
                 traumatic or other hurt or damage to the health or 
 
                 body of an employee.  [Citations omitted.]  The 
 
                 injury to the human body here contemplated must be 
 
                 something, whether an accident or not, that acts 
 
                 extraneously to the natural processes of nature, 
 
                 and thereby impairs the health, overcomes, 
 
                 injures, interrupts, or destroys some function of 
 
                 the body, or otherwise damages or injures a part 
 
                 or all of the body.
 
            
 
                 And, claimant relies upon a cumulative trauma theory to 
 
            advance his claim.
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            
 
                 When the disability develops gradually over a period of 
 
            time, the "cumulative injury rule" applies.  For time 
 
            limitation purposes, the compensable injury is held to occur 
 
            when because of pain or physical disability, the claimant 
 
            can no longer work.  McKeever Custom Cabinets v. Smith, 379 
 
            N.W.2d 368 (Iowa 1985).
 
 
 
                 Claimant has failed to prove that he sustained 
 
            cumulative trauma to his shoulders, arms, elbows and wrists 
 
            over the past twenty years that required him to quit work.  
 
            Not only have none of the claimant's physicians stated to a 
 
            sufficient degree of medical certainty that these complaints 
 
            are in any way related to any injury on February 24, 1989, 
 
            or cumulative injury as a result of his employment with 
 
            Interstate Detroit Diesel on March 7, 1989, but at least one 
 
            physician (Dr. Dubansky) was of the opinion that claimant's 
 
            continued work with Benson Motors appears to be the cause of 
 
            claimant's physical problems.
 
            
 
                 Likewise, claimant has not suffered any disability from 
 
            the other physical problems he attributes to cumulative 
 
            traumas.  Claimant states that his shoulder, elbows and 
 
            wrists "ache."
 
            
 
                 Yet, claimant has continued to work as a mechanic since 
 
            his full recovery from the left knee reconstructive surgery.
 
            
 
                 As a result, claimant takes nothing for file No. 
 
            974049.
 
            
 
                                      ORDER
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 That defendants shall pay claimant permanent partial 
 
            disability benefits for thirty-nine point eight five seven 
 
            (39.857) weeks at the rate of two hundred ninety-seven and 
 
            30/100 dollars ($297.30) per week beginning May 3, 1990.
 
            
 
                 That defendants shall pay accrued weekly benefits in a 
 
            lump sum and shall receive credit against the award for 
 
            weekly benefits previously paid.
 
            
 
                 That defendants shall pay interest on benefits awarded 
 
            herein as set forth in Iowa Code section 85.30.
 
            
 
                 That defendants shall pay the costs of this action, 
 
            pursuant to rule 343 IAC 4.33.
 
            
 
                 That defendants shall file an activity report upon 
 
            payment of this award as required by this agency, pursuant 
 
            to rule 343 IAC 3.1.
 
            
 
                 Signed and filed this ____ day of June, 1992.
 
            
 
            
 
            
 
            
 
                                          
 
            
 

 
            
 
            Page   9
 
            
 
            
 
            
 
                                          ----------------------------
 
                                          PATRICIA J. LANTZ
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. David D Drake
 
            Attorney at Law
 
            West Towers Office
 
            1200 35th St  Ste 500
 
            West Des Moines IA 50265
 
            
 
            Mr Marvin E Duckworth
 
            Attorney at Law
 
            Terrace Ctr  Ste 111
 
            2700 Grand Ave
 
            Des Moines IA 50312
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                               5-1100
 
                                               Filed June 29, 1992
 
                                               Patricia J. Lantz
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            MARVIN R. SNYDER,             :
 
                                          :
 
                 Claimant,                :
 
                                          :       File Nos. 910623
 
            vs.                           :                 974049
 
                                          :
 
            INTERSTATE DETROIT DIESEL,    :
 
                                          :     A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            WAUSAU INSURANCE COMPANIES,   :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            5-1100
 
            Claimant failed to prove by a preponderance of the evidence 
 
            that numerous complaints of pain in his shoulders, wrists, 
 
            arms and back were caused by cumulative trauma spanning 
 
            twenty years.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
            _____
 
                                          :
 
            STEVEN L. SWANK,              :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 910780
 
            DRS TRANSPORT, INC.,          :
 
                                          :        A P P E A L
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            LIBERTY MUTUAL INSURANCE      :
 
            COMPANY,                      :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            _____
 
            The record, including the transcript of the hearing before 
 
            the deputy and all exhibits admitted into the record, has 
 
            been reviewed de novo on appeal.  The decision of the deputy 
 
            filed January 23, 1991 is affirmed and is adopted as the 
 
            final agency action in this case with the following 
 
            additional analysis:
 
            Although claimant maintains his loss of earnings that 
 
            resulted when he went from being a truck owner-operator to 
 
            an employee are due to his inability to work as hard because 
 
            of his injury, the medical evidence shows that claimant is 
 
            under no medical restrictions on truck driving.  Claimant 
 
            has not carried his burden to show that the loss of earnings 
 
            that resulted was in fact caused by his work injury.  
 
            Rather, the greater weight of the evidence shows that 
 
            claimant's financial decision not to buy a new truck was 
 
            primarily responsible for his loss of earnings.  Claimant's 
 
            self-perceived inability to work the hours necessary to pay 
 
            the financial obligations of a new truck are not supported  
 
            by the medical evidence, and in fact are contradicted by it.
 
            As to claimant's rate, claimant relies on his 1988 income 
 
            tax return, representing a period of time when he was an 
 
            owner-operator.  The proposed arbitration decision 
 
            erroneously refers to truck rental.  Claimant does urge 
 
            inclusion of depreciation and interest costs in that portion 
 
            of his truck revenue representing his wages.  However, 
 
            depreciation and interest on equipment are not wages.  The 
 
            Iowa Supreme Court adopted district court language in D & C 
 
            Express v. Sperry, 450 N.W.2d 842 (Iowa 1990), saying: "Many 
 
            factors, such as interest paid, depreciation....enter into a 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            determination of taxable income that would not be applicable 
 
            to determine wages."  The evidence indicates that the 
 
            employer and insurance carrier considered 33 percent of 
 
            claimant's revenue as wages.  There was also evidence that 
 
            33 percent is the industry standard.  When claimant's 
 
            interest and depreciation are not considered, claimant's 
 
            actual revenue from the truck after deducting expenses is 
 
            approximately 30 percent.  It is found that one third of 
 
            claimant's revenue represented claimant's wages. 
 
            Claimant shall pay the costs of the appeal, including the 
 
            preparation of the hearing transcript.
 
            Signed and filed this ____ day of March, 1992.
 
            
 
            
 
            
 
            
 
                      ________________________________
 
                               BYRON K. ORTON
 
                          INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Steven C. Jayne
 
            Attorney at Law
 
            5835 Grand Ave., Ste 201
 
            Des Moines, Iowa 50312
 
            
 
            Mr. James C. Huber
 
            Attorney at Law
 
            418 6th Ave.
 
            500 Liberty Bldg.
 
            Des Moines, Iowa 50309-2421
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
            3001; 1108.50
 
            Filed March 26, 1992
 
            Byron K. Orton
 
            JMI
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
            _____
 
                                          :
 
            STEVEN L. SWANK,              :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 910780
 
            DRS TRANSPORT, INC.,          :
 
                                          :        A P P E A L
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            LIBERTY MUTUAL INSURANCE      :
 
            COMPANY,                      :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            _____
 
            
 
            3001
 
            Truck owner-operator's gross earnings did not include 
 
            depreciation and interest on his truck, citing explicit 
 
            language in D & C Express v. Sperry, 450 N.W.2d 842 (Iowa 
 
            1990).  
 
            
 
            1108.50
 
            Greater weight of evidence showed truck owner-operator's 
 
            decision to go from owner-operator status to employee 
 
            stemmed not from his injury, but from his economic decision 
 
            not to buy a new truck.  Claimant's self-perceived inability 
 
            to work enough hours to make payments on a new truck was 
 
            outweighed by the medical evidence, which showed no 
 
            restrictions on how many hours he could work.
 
            
 
 
         
 
 
 
 
 
 
 
 
 
 
 
         before the iowa industrial commissioner
 
         _________________________________________________________________
 
                                       :
 
         LYNN SITES,                   :
 
                                       :
 
              Claimant,                :
 
                                       :
 
         vs.                           :
 
                                       :      File No. 910873
 
         DONALD LAHR TRUCKING,         :
 
                                       :        A P P E A L
 
              Employer,                :
 
                                       :      D E C I S I O N
 
         and                           :
 
                                       :
 
         CIGNA,                        :
 
                                       :
 
              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 
 
         August 13, 1991 is affirmed and is adopted as the final agency 
 
         action in this case.
 
         Defendants shall pay the costs of the appeal, including the 
 
         preparation of the hearing transcript.
 
         Signed and filed this ____ day of December, 1991.
 
         
 
         
 
         
 
         
 
                   ________________________________
 
                            BYRON K. ORTON
 
                       INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Robert R. Rush
 
         Mr. Matthew J. Nagle
 
         Attorneys at Law
 
         P.O. Box 2457
 
         Cedar Rapids, Iowa 52406
 
         
 
         Mr. John M. Bickel
 
         Attorney at Law
 
         P.O. Box 2107
 
         Cedar Rapids, Iowa 52406
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
            9998
 
            Filed December 30, 1991
 
            Byron K. Orton
 
            EAN
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
            _____
 
                                          :
 
            LYNN SITES,                   :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 910873
 
            DONALD LAHR TRUCKING,         :
 
                                          :        A P P E A L
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            CIGNA,                        :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            _____
 
            
 
            9999
 
            Summary affirmance of deputy's decision filed August 13, 
 
            1991, with short additional analysis.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
                      5-1803; 5-2906; 5-3001
 
                      Filed August 13, 1991
 
                      ELIZABETH A. NELSON
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            LYNN SITES,    :
 
                      :
 
                 Claimant, :
 
                      :
 
            vs.       :
 
                      :      File No. 910873
 
            DONALD LAHR TRUCKING,    :
 
                      :    A R B I T R A T I O N
 
                 Employer, :
 
                      :      D E C I S I O N
 
            and       :
 
                      :
 
            CIGNA INSURANCE COMPANIES,    :
 
                      :
 
                 Insurance Carrier,  :
 
                 Defendants.    :
 
            ___________________________________________________________
 
            
 
            5-1803
 
            Claimant, 37 at the time of the hearing, with a work history 
 
            of manual labor and truck driving, injured his back in a 
 
            fall from the top of a truck.  Claimant has an attendance 
 
            certificate from the West Delaware School District and is 
 
            able to read at a 7th grade level.  Claimant has 
 
            historically earned between $3.00 and $7.00 per hour.  
 
            Claimant has low motivation to find alternate employment due 
 
            to reasons unrelated to his work injury.  He is foreclosed 
 
            from returning to truck driving.  Claimant has a lifting 
 
            restriction of 25 pounds.  Claimant was working at the time 
 
            of hearing as a bartender.  Claimant was awarded 45 percent 
 
            industrial disability.
 
            
 
            5-2906
 
            Claimant attempted to use the First Report of Injury to 
 
            prove rate.  The testimony was excluded pursuant to Iowa 
 
            Code section 85.11 (1991).
 
            Claimant's objection to the testimony of two of defendants' 
 
            witnesses was sustained.  Defendants failed to seasonably 
 
            supplement answers to interrogatories to advise claimant 
 
            that they intended to call Susan Voelker and William 
 
            Brunsmann as witnesses pursuant to Iowa Rule of Civil 
 
            Procedure 122.
 
            Defendants' motion to amend admissions was denied.  
 
            Defendants were not entitled to withdraw their admissions at 
 
            the close of their case in chief because to do so would be 
 
            highly prejudicial to the claimant.  
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            Claimant's objection to hearsay testimony was overruled.  
 
            Authority cited in the claimant's brief was adopted.  The 
 
            standard adopted at the time of the hearing was correct.
 
            
 
            5-3001
 
            Claimant earned irregular wages and worked only 8 weeks for 
 
            employer before he was injured.  Three of the weeks were 
 
            excluded because of holidays and short work weeks.  
 
            Claimant's gross weekly wage was found to be $439.00.  
 
            Claimant's rate was found to be $259.45
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            SANDRA S. DORFMAN,            :
 
                                          :
 
                 Claimant,                :
 
                                          :         File Nos. 878903
 
            vs.                           :                   894241
 
                                          :                   911102
 
            JOHN MORRELL & CO.,           :
 
                                          :      A R B I T R A T I O N
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            NATIONAL UNION FIRE           :
 
            INSURANCE COMPANY,            :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 Case number 878903 is a proceeding in arbitration upon 
 
            the June 22, 1988 petition of claimant Sandra S. Dorfman 
 
            seeking benefits under the Iowa Workers' Compensation Act 
 
            from employer John Morrell & Company and its insurance 
 
            carrier, National Union Fire Insurance Company.  Claimant 
 
            alleges a work-related psychological disturbance.
 
            
 
                 File number 894241 is also a proceeding in arbitration 
 
            upon a petition filed June 2, 1989.  Claimant seeks benefits 
 
            under the Iowa Workers' Compensation Act from the same 
 
            defendants upon allegations of injury to the lower back and 
 
            hip on August 29, 1988.
 
            
 
                 Case number 911102 is also a proceeding in arbitration 
 
            upon claimant's petition of June 2, 1989.  Claimant seeks 
 
            benefits from the same defendants upon allegations of an 
 
            injury to the shoulders and neck of February 6, 1989.
 
            
 
                 These causes were consolidated by order of July 18, 
 
            1989.  The consolidated actions came on for hearing in Sioux 
 
            City, Iowa, on September 13, 1990.  The record consists of 
 
            joint exhibits 1 through 85, claimant's exhibit A and the 
 
            testimony of claimant, Robert Calvert and Patricia Ann 
 
            Reilly.
 
            
 
                          
 
            
 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            issues
 
            
 
                 The parties have stipulated that an employment 
 
            relationship existed at all times relevant and that claimant 
 
            sustained injury arising out of and in the course of that 
 
            employment on August 29, 1988 and February 6, 1989.
 
            
 
                 Issues presented for resolution in file number 878903 
 
            include:
 
            
 
                 1.  Whether claimant sustained a psychological injury 
 
            arising out of and in the course of her employment with John 
 
            Morrell on or about April 20, 1988;
 
            
 
                 2.  Whether there exists a causal relationship between 
 
            that injury and any subsequent temporary disability 
 
            (claimant does not seek benefits based on permanent 
 
            disability);
 
            
 
                 3.  The extent of claimant's temporary disability, if 
 
            any; and,
 
            
 
                 4.  Whether claimant is entitled to medical benefits 
 
            under Iowa Code section 85.27.
 
            
 
                 Issues presented for resolution in file number 894241 
 
            include:
 
            
 
                 1.  Whether there exists a causal relationship between 
 
            claimant's injury of August 29, 1988 and any subsequent 
 
            temporary or permanent disability;
 
            
 
                 2.  The nature and extent of claimant's disability, if 
 
            any; and,
 
            
 
                 3.  Whether claimant is entitled to medical benefits 
 
            under Iowa Code section 85.27 or medical evaluation benefits 
 
            under Iowa Code section 85.39.
 
            
 
                 Issues presented for resolution in file number 911103 
 
            include:
 
            
 
                 1.  Whether there exists a causal relationship between 
 
            claimant's injury of February 6, 1989 and any subsequent 
 
            temporary or permanent disability;
 
            
 
                 2.  The nature and extent of claimant's disability, if 
 
            any; and,
 
            
 
                 3.  Whether claimant is entitled to medical benefits 
 
            under Iowa Code section 85.27 or medical evaluation benefits 
 
            under Iowa Code section 85.39.
 
            
 
                                 findings of fact
 
            
 
                 The undersigned deputy industrial commissioner, having 
 
            heard the testimony and considered all of the evidence, 
 
            finds:
 
            
 
                 Sandra S. Dorfman, 30 years of age at hearing, 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            completed only the ninth grade in school, quitting at age 16 
 
            to work.  Grades were poor and claimant admits that her 
 
            reading comprehension, spelling and arithmetic skills are 
 
            poor.  She has had no further education.
 
            
 
                 Claimant's work history includes one or two months as a 
 
            milk shake maker and cashier for an ice cream stand, six 
 
            months of work as a cook and order filler for a fast food 
 
            restaurant, one summer's work as an order filler for a root 
 
            beer stand, approximately three years' work as a cookie 
 
            packer for a bakery, and employment since 1980 with John 
 
            Morrell and a predecessor business known as Iowa Meats.  
 
            Defendant John Morrell is engaged in the meat packing 
 
            industry.  While off work for approximately one year during 
 
            a strike ending in 1988, claimant worked approximately two 
 
            months as a telemarketer and six months as a pizza baker.
 
            
 
                 Claimant's prior health history includes juvenile onset 
 
            diabetes, lifelong obesity and a history of emotional 
 
            problems.  She also complained of low back pain to George G. 
 
            Spellman, M.D., in 1982, but does not now recall that 
 
            complaint.  She was admitted to the Marian Health Center in 
 
            Sioux City on August 18, 1983 and discharged on August 22 
 
            with a diagnosis of adjustment disorder with disturbance of 
 
            emotions.  The discharge summary noted that claimant had 
 
            been admitted in an extremely anxious and depressed state, 
 
            feeling unable to cope, feeling "harassed by people," and 
 
            with severely compromised self-esteem.  She was described as 
 
            a "worrier" (obsessive personality disorder), a 
 
            characterization with which she agrees.  Claimant was 
 
            readmitted to the Marian Health Center on January 17, 1984 
 
            and discharged on January 23.  Final diagnosis of Gerald A. 
 
            Brooks, M.D., included, on Axis 1, major depressive 
 
            disorder, agoraphobia with panic attacks and eating disorder 
 
            with obesity.  On Axis 2, avoidance personality disorder was 
 
            diagnosed.
 
            
 
     
 
            
 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            Claimant underwent gastric bypass surgery in 1986, returning 
 
            to work later that year.  She had weighed as much as 313 
 
            pounds before this surgery, and weighed 173 at hearing.  
 
            Claimant is five feet, eight inches tall.
 
            
 
                 As noted, John Morrell was involved in an extended and 
 
            apparently bitter labor dispute ending in March 1988.  
 
            Replacement workers were hired during the strike.  Robert 
 
            Calvert, a supervisor with eight years' employment with John 
 
            Morrell, testified that there was substantial friction 
 
            between replacement workers and strikers when the labor 
 
            dispute was finally resolved and that ill will continued to 
 
            characterize feelings between the two groups.
 
            
 
                 Claimant described her return to work following the 
 
            strike as fraught with tension.  She complains that 
 
            replacement workers demonstrated hostility towards union 
 
            workers in general and her in specific by performing the 
 
            work improperly, hiding meat, laughing at claimant and 
 
            generally "harassing" her.  She presented to the Siouxland 
 
            Mental Health Center on May 11, 1988 with moderate to severe 
 
            problems of depression, anxiety and fear.  Licensed social 
 
            worker Gary Lewis wrote on May 18 that claimant found 
 
            working with replacement workers to be a stressful 
 
            experience and felt claimant was suffering from an acute 
 
            adjustment reaction which he believed was essentially 
 
            temporary in nature.  On June 13, psychiatrist Ralph Walker, 
 
            M.D., wrote that claimant was treated for depression and 
 
            anxiety and unable to return to work at that time.  Claimant 
 
            was certified to return to work by Stewart Fern, M.D., 
 
            effective August 10 with no restrictions.  The record does 
 
            not disclose when claimant first left work.
 
            
 
                 Upon returning to work, claimant was given a job 
 
            stripping tenders (pulling fat from a cut of meat).  On 
 
            August 25, 1988, she slipped and fell while carrying a heavy 
 
            basket of tenders, landing on her buttocks, especially on 
 
            the left side.  Claimant complained of lower back pain and 
 
            numbness to the left leg developing shortly thereafter.
 
            
 
                 Claimant was first seen by Milton Grossman, M.D., on 
 
            August 29, complaining of pain in the lumbar region and left 
 
            hip.  Dr. Grossman diagnosed strain and returned claimant to 
 
            work with a lifting restriction of 10 pounds occasionally 
 
            and with occasional bending, kneeling and reaching above 
 
            shoulder level.
 
            
 
                 Claimant was seen on September 1 at St. Lukes Regional 
 
            Medical Center by Paul A. Berger, M.D.  His impression was 
 
            of low back pain secondary to contusion injury with 
 
            myofascial strain.  Claimant was advised to stay off work.
 
            
 
                 After several more visits, Dr. Grossman released 
 
            claimant to return to work effective September 7 with 
 
            similar restrictions, adding prohibitions against the use of 
 
            straight knife or whizard knife.
 
            
 
                 Claimant was again taken off work on September 19 by 
 
            William F. Krigsten, M.D.  Claimant had at that time no leg 
 
            pain or hip pain or apparent neurological changes.  However, 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            she had marked tenderness and spasm in the lumbar spine, 
 
            mainly over L4 and L5.  No complaints of pain radiation were 
 
            made.  Range of motion in the back was limited by 75 
 
            percent.  Diagnosis was deferred, but Dr. Krigsten mentioned 
 
            the possibility of bursitis in the trochanter.  When next 
 
            seen by Dr. Grossman on September 22, claimant was kept off 
 
            work.
 
            
 
                 Claimant was seen again by Dr. Krigsten on September 
 
            27.  Loss of range of motion was now only 50 percent and the 
 
            back was less painful.  Diagnosis was of acute lumbosacral 
 
            spasm, possible disc injury.  However, Dr. Krigsten then 
 
            again deferred diagnosis on October 4.
 
            
 
                 Claimant was next seen by Quentin J. Durward, M.D., of 
 
            Sioux City Neurosurgery, P.C.  Dr. Durward wrote on October 
 
            6 that physical examination showed some mild bilateral 
 
            paraspinal spasms and some reduction of range of motion.  
 
            External rotation of the hip was mildly restricted.  Plain 
 
            x-rays were normal.  Dr. Durward suspected that claimant may 
 
            well have suffered a mild injury to a disc in the subject 
 
            fall, causing persistent low back pain, and that posterior 
 
            thigh discomfort might be caused by an irritated nerve.  Dr. 
 
            Durward recommended physical therapy and intermittent use of 
 
            a back brace.
 
            
 
                 Magnetic resonance imaging was performed on October 11, 
 
            1988, by James C. Beeler, M.D.  His impression was of:
 
            
 
                 1) Minimal bulging of the annulus fibrosis L4-5,
 
                    believed physiological in extent.
 
                 2) Mild desiccation of the L5-S1 intervertebral disc,
 
                    within normal limits for age.
 
                 3) No evidence of eccentric herniated disc material or
 
                    significant spinal stenosis.
 
            
 
                 Claimant was seen again by Dr. Durward on November 2.  
 
            Dr. Durward's review of the MRI scan showed minimal 
 
            desiccation at L5-S1, but nothing else.  Claimant's back 
 
            pain had "really settled very nicely."  She was released to 
 
            return to work with restrictions against lifting or 
 
            stretching 10 pounds and against standing more than 20 
 
            minutes without a 10-minute sitting break.  Claimant was 
 
            further restricted against grasping or knife work.
 
            
 
                 However, as of November 7, Dr. Krigsten wrote that 
 
            claimant was not then working.  In fact, the form 2A filed 
 
            by defendants with this agency and in the administrative 
 
            file reflects that voluntary payments were made from 
 
            September 14, 1988 through January 15, 1989, a total of 17 
 
            weeks, 5 days.  Claimant made reference in her testimony to 
 
            returning to work after 17 weeks, indicating that, for 
 
            whatever reason, she probably did not return to work on Dr. 
 
            Durward's release.  Official notice is hereby taken of the 
 
            form 2A contained in the administrative file and filed March 
 
            20, 1989 under Iowa Code section 17A.14(4).  The parties 
 
            have not previously been notified of this action, but it is 
 
            held that fairness to the parties does not require an 
 
            opportunity to contest taking notice of this form.  Claimant 
 
            was subsequently paid voluntary temporary partial disability 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            benefits beginning January 16, 1989 and ending February 4.  
 
            This also is consistent with claimant's testimony.
 
            
 
                 Claimant was seen by B. W. Nelson, M.D., on November 
 
            16, 1988.  Complaints were made of low back pain and dull 
 
            aching anterior left leg pain to but not below the knee, 
 
            back pain predominating.  On examination, range of motion 
 
            was limited.  Although sensory examination was equivocal, 
 
            claimant did not show signs of exaggerating her complaints 
 
            ("negative excessive grimacing and jerking").  Assessment 
 
            was of chronic myofascial strain, with likely significant 
 
            deconditioning syndrome.  Prognosis was good and no 
 
            permanent impairment was expected.  Length of treatment 
 
            would probably take about eight weeks.
 
            
 
                 On December 1, claimant was seen by John A. Walck, 
 
            M.D., after having completed two weeks of isokinetic 
 
            rehabilitation upon Dr. Nelson's prescription.  Range of 
 
            motion was limited.  Dr. Walck's assessment was of 
 
            myofascial strain.
 
            
 
                 On December 21, claimant was seen again by Dr. Nelson.  
 
            His assessment was of chronic myofascial strain superimposed 
 
            upon a deconditioning syndrome which was responding very 
 
            nicely to rehabilitation.  Prognosis for full recovery 
 
            without permanent impairment remained excellent, although 
 
            claimant was still temporarily disabled from work.  Range of 
 
            motion was improved and claimant stated that she was 
 
            definitely feeling better, although still having some low 
 
            back and left leg pain, both significantly improved.
 
            
 
     
 
            
 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            On January 11, 1989, claimant stated her leg pain was 
 
            completely gone, but she still had some occasional (yet 
 
            greatly improved) aching pain in the low back.  Claimant was 
 
            returned to work effective January 16 with a 40-pound 
 
            lifting restriction, to start at four hours per day, 
 
            gradually increasing to eight by a target date of February 
 
            13.  Dr. Nelson anticipated there would be no further 
 
            restrictions as of February 13.
 
            
 
                 However, the injury of February 6, 1989 intervened.
 
            
 
                 As early as 1985, claimant recalls complaining of pain 
 
            in the arms, although she had no history of neck pain.  By 
 
            August 1988, claimant noticed numbness, aching and tingling 
 
            symptomatology in both arms.  After returning to work in 
 
            January 1989, those symptoms became constant in the left arm 
 
            and intermittent in the right.  Claimant is right-handed.  
 
            On February 8, 1989, she was seen by Daniel Youngblade, 
 
            M.D., with complaints of both arms going numb since 
 
            returning to work three weeks before.  The history given Dr. 
 
            Youngblade was that the right arm had previously become numb 
 
            in August 1988, but was asymptomatic while she was off work.  
 
            Claimant was released to light duty upon a diagnosis of 
 
            questionable muscle spasm of the right neck and shoulder.
 
            
 
                 Dr. Youngblade took claimant off work on February 15 on 
 
            the same diagnosis.
 
            
 
                 Claimant was seen again by Dr. Nelson on February 20.  
 
            His chart notes reflect that claimant stated her back pain 
 
            was doing quite well, but that she now suffered from severe 
 
            neck pain and that the entire left arm would go numb from 
 
            the neck down to the fingers.  The entire right arm was 
 
            painful, especially to palpation anywhere.  Assessment was 
 
            of cervical strain with no localizing or neurological 
 
            findings.  Subjective complaints were felt to outweigh 
 
            objective findings.  However, he saw nothing in claimant's 
 
            physical examination which would preclude her from work, 
 
            even though range of motion of the spine was still limited.  
 
            Since Dr. Nelson apparently specializes in lumbar and 
 
            thoracic back problems and not cervical problems, claimant 
 
            was referred back to Dr. Youngblade.  On February 21, Dr. 
 
            Youngblade kept claimant off work.
 
            
 
                 On March 1, 1989, Keith McLarnan, M.D., diagnosed 
 
            thoracic outlet syndrome with possible carpal tunnel 
 
            syndrome of the right wrist and continued claimant off work.  
 
            She was referred for radiological studies of the cervical 
 
            spine which were performed on that date.  Radiologist D. C. 
 
            Rife, M.D., found no abnormalities.
 
            
 
                 Magnetic resonance imaging of the cervical spine was 
 
            performed by G. R. Jackson, M.D., on March 10.  Dr. Jackson 
 
            found mild bulging of the annulus at C5-6 and C6-7 with no 
 
            evidence of disc herniation.  No other abnormalities were 
 
            seen.  His impression was of mild degenerative changes at 
 
            those levels.
 
            
 
                 Electromyography was performed by B. Krysztofiak, M.D., 
 
            on March 30.  Results were consistent with bilateral carpal 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            tunnel syndrome, right greater than left.
 
            
 
                 By April 24, 1989, claimant reported to Dr. Youngblade 
 
            that she had not improved since going off work on February 
 
            15.  She felt fine if not doing anything, but symptoms 
 
            flared up on activities such as mopping or sweeping.  She 
 
            was kept off work.
 
            
 
                 On May 2, 1989, claimant was seen again by Dr. Durward, 
 
            giving a similar history.  Physical examination found full 
 
            range of neck motion, but slight hardness of the muscles on 
 
            the right side of the spine.  Thoracic outlet signs were 
 
            negative.  Dr. Durward believed claimant's syndrome was 
 
            mainly due to carpal tunnel syndrome, right more than left, 
 
            but that there might be a superimposed component of cervical 
 
            radiculopathy.  He specifically noted the MRI scan reporting 
 
            mild degenerative changes at C5-6 and C6-7, with mild 
 
            bulging of the annulus at those levels.  Dr. Durward 
 
            prescribed a collar and wrist splint.
 
            
 
                 X-rays of the cervical spine by G. R. Skorey, M.D., on 
 
            May 2, 1989 were negative, except for some straightening in 
 
            the neutral position.
 
            
 
                 On May 17, 1989, Dr. Durward reported that most of 
 
            claimant's neck and right shoulder discomfort had resolved, 
 
            as well as carpal tunnel syndrome symptoms on the right.  
 
            Claimant was referred to physical therapy and occupational 
 
            therapy.  On June 27, Dr. Durward reported that claimant had 
 
            excellent range of motion of the neck, but tightness of the 
 
            paraspinal muscles and trapezei.  Claimant was reported as 
 
            dramatically improved, and her only complaint was inability 
 
            to elevate the left arm above the shoulder and pain in the 
 
            left hip on walking.  Upon review of myelogram studies, Dr. 
 
            Durward found the lower back to be normal.  He reported a 
 
            central and right C5-6 disc bulge, but believed it to be 
 
            asymptomatic.  He recommended further physical therapy and 
 
            believed claimant would be able to return to work in two 
 
            weeks' time; however, he did not see claimant again, but 
 
            referred her back to Dr. Youngblade.
 
            
 
     
 
            
 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            On July 5, 1989, that physician reported:
 
            
 
                 Patient returns with neck, back, shoulder pain.  
 
                 Multitude of problems.  Still complaining about 
 
                 her lower back pain.  Hasn't complained of pain 
 
                 and discomfort in her neck.  Soreness with her 
 
                 right arm, shoulder and hand whenever she uses her 
 
                 right arm.  Discussion with husband referrable 
 
                 [sic] to her condition with some concern as to 
 
                 whether she has a true mechanical or physical 
 
                 problem after all the testing, etc. that has been 
 
                 done.  She has been unable to do any work at home.  
 
                 Is not caring for her children as usual.  They are 
 
                 "getting by with a lot of things".  Husband is not 
 
                 overly pleased with the overall situation as well.
 
            
 
                 I've advised the patient and her husband that we 
 
                 will try the physiotherapy at St. Luke's over the 
 
                 next 10 days to 2 weeks and see if she shows any 
 
                 improvement.  If she does will continue the 
 
                 therapy.  If she doesn't seem to be making any 
 
                 progress we're going to have some neuropsychologic 
 
                 intervention to try to ascertain the full picture 
 
                 [of] this patients [sic] problem.
 
            
 
                 This is the last indication of record that claimant was 
 
            seen by a treating physician.  Claimant has not returned to 
 
            work and, per the stipulation of the parties, voluntary 
 
            benefits were still being paid as of the date this cause was 
 
            heard.
 
            
 
                 Ms. Dorfman was seen for evaluation on July 13, 1990 by 
 
            Pat Luse, D.C., of the Nebraska Chiropractic & Nutrition 
 
            Clinic.  Claimant complained of pain in the low back, neck 
 
            and both hands present at all times and tingling and 
 
            numbness in the left leg.  Claimant also complained of 
 
            headaches and neck stiffness.  Dr. Luse found a reduced 
 
            range of motion in both the cervical and lumbar spine and 
 
            hypesthesia on the left at L4-5 and C6-7.  Dr. Luse reported 
 
            11 other positive examination findings of significance, 
 
            including cervical compression, Lasegues Lt, DLR, Kemp, 
 
            Shoulder decompression and percussion.  Radiographic studies 
 
            were reviewed and new studies made.  Diagnosis was:
 
            
 
                 1.  Chronic cervical sprain/strain
 
                 2.  Chronic lumbar sprain
 
                 3.  Bilateral carpal tunnel syndrome
 
            
 
                 Dr. Luse stated that subjective complaints were 
 
            consistent with objective findings and concluded that 
 
            claimant did receive "an injury" as a result of her "work 
 
            accidents."  Claimant was suffering left leg tingling, hand 
 
            weakness, neck pain and stiffness and low back pain as a 
 
            result of "this accident."  Dr. Luse reported that claimant 
 
            had stated she had been involved in "work-related accidents" 
 
            on August 29, 1988 and February 6, 1989.  The record does 
 
            not disclose the extent to which Dr. Luse was aware that 
 
            claimant alleged one injury by reason of a traumatic 
 
            incident (a fall) affecting the lumbar spine plus a 
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
            cumulative injury to the cervical spine, shoulder or arms.
 
            
 
                 In any event, using the American Medical Association 
 
            Guides to the Evaluation of Permanent Impairment, Dr. Luse 
 
            concluded that claimant had sustained a five percent 
 
            impairment of the body as a whole by reason of her cervical 
 
            spine, an additional five percent impairment of the body as 
 
            a whole as a result of her lumbar spine, a seven percent 
 
            impairment of the right upper extremity and a two percent 
 
            impairment of the left upper extremity.  Dr. Luse suggested 
 
            restrictions against lifting more than 20 pounds, frequent 
 
            bending or twisting and repetitive motion work with either 
 
            upper extremity.
 
            
 
                 Claimant was also seen for evaluation on July 27, 1990, 
 
            by John J. Dougherty, M.D.  Dr. Dougherty is a 
 
            board-certified orthopaedic surgeon and testified by 
 
            deposition on August 8, 1990.
 
            
 
                 In a report of July 30, 1990, Dr. Dougherty noted that 
 
            he had read all the voluminous medical records, but his 
 
            report of that date and subsequent deposition contain a 
 
            number of factual errors.  Of these, the most significant is 
 
            that he was aware of only one work injury, that being in 
 
            February 1988 (but apparently referring to the fall in 
 
            August 1988).  He reported that some of the problems with 
 
            claimant's back were certainly a direct result of the weight 
 
            she carried before (Dr. Dougherty mistakenly believed 
 
            claimant had weighed 350 pounds, but this error is perhaps 
 
            one of degree only, in that claimant once weighed in the 
 
            range of 315 pounds).  He reported that claimant may have a 
 
            little degenerative disc in the neck, but at C4-5 and C5-6, 
 
            not C5-6 and C6-7.  He conceded that claimant may have a 
 
            mild carpal tunnel syndrome on the right, but questioned 
 
            whether it was causing her problem.  Minimal tenderness 
 
            about the shoulders might be mild tendonitis.  He did not 
 
            believe that claimant had sustained any significant 
 
            permanent partial impairment.  Chart notes reflected that 
 
            range of motion (the location is unclear, but apparently 
 
            everywhere) was "satisfactory," but some restriction was 
 
            nonetheless reported.  He did not believe claimant's back 
 
            was giving her any significant discomfort related to the 
 
            fall and saw nothing significantly wrong with the hip.  
 
            Assessment was of low back pain secondary to chronic 
 
            lumbosacral sprain, questionable myotendonitis of the 
 
            shoulder, questionable early degenerated disc at L4-5, L5-6, 
 
            possible fibromyalgia, scoliosis to the left in the dorsal 
 
            spine and slightly shortened right lower extremity.
 
            
 
                 In his deposition testimony, Dr. Dougherty suggested 
 
            that not all of claimant's problems were physical and 
 
            questioned why she was off work so long.  Asked if it was 
 
            possible that some of claimant's physical problems could 
 
            cause mental problems, he was inclined to think it was the 
 
            other way around.
 
            
 
                 Claimant was seen for vocational rehabilitation 
 
            consultation by Karen L. Stricklett, M.S., at defendants' 
 
            request on July 24, 1990.  Based on the chiropractic 
 

 
            
 
            Page  11
 
            
 
            
 
            
 
            
 
            limitations suggested by Dr. Luse and claimant's work 
 
            history, Ms. Stricklett believed claimant was employable as 
 
            a cashier, counter attendant, telephone solicitor, sales 
 
            clerk, quality control inspector, production machine tender 
 
            (in certain settings), canteen operator or children's 
 
            attendant.  The record does not reflect that Ms. Stricklett 
 
            was actually able to place claimant in employment, being 
 
            hired for evaluation only.
 
            
 
                 Patty Reilly, a vocational rehabilitation worker with 
 
            Rehabilitation Professionals, Inc., saw claimant three days 
 
            prior to hearing, supposedly for placement assistance, but 
 
            also in large part to bolster the defense case herein.  She 
 
            suggested several current openings, mostly in minimum wage 
 
            jobs (claimant earned approximately $9.00 per hour with 
 
            defendant as of February 1989) and recommended largely the 
 
            same potential jobs as did Karen Stricklett, adding 
 
            dispatcher and lab technician to the list.  One questions 
 
            how many lab technician openings realistically will be 
 
            filled by individuals possessing a ninth grade education 
 
            with poor reading, spelling and arithmetic skills.
 
            
 
                 Sandra Dorfman complains at present of constant pain on 
 
            the left side from her toes to her head and pain affecting 
 
            the entire right arm.  She complains that she cannot 
 
            participate in athletic activities, ceramics, bicycling or 
 
            perform housework chores (although she testified she can 
 
            perform some light work, such as setting the table and 
 
            combing her own hair).  She complains of reduced grip 
 
            strength.  She is currently receiving Social Security 
 
            disability benefits; indeed, her income from Social Security 
 
            and voluntary workers' compensation benefits exceeds her 
 
            previous income when employed.  Claimant has not sought work 
 
            since employment with defendant, except that she underwent 
 
            vocational rehabilitation testing with Goodwill Industries 
 
            some eight months prior to hearing, and was considered 
 
            suitable for farm work (this being before the suggested 
 
            weight limitation imposed by Dr. Luse).
 
            
 
                                conclusions of law
 
            
 
                 File number 878903, the alleged psychological injury, 
 
            shall be first considered.  Defendants dispute whether 
 
            claimant sustained any such injury arising out of and in the 
 
            course of her employment.  The words "arising out of" refer 
 
            to the cause or source of the injury.  McClure v. Union, et 
 
            al., Counties, 188 N.W.2d 283 (Iowa 1971).  This requirement 
 
            is satisfied by showing a causal relationship between the 
 
            employment and the injury.  Sheerin v. Holin Co., 380 N.W.2d 
 
            415 (Iowa 1986).
 
            
 
                 With respect to psychological injury, Iowa follows the 
 
            Wisconsin Rule propounded in Swiss Colony v. Dep't of 
 
            Indus., L & H. R., 240 N.W.2d 128 (Wisc. 1976).  Under the 
 
            Wisconsin Rule, recovery from emotional injury requires that 
 
            the injury result from emotional trauma or stress which is 
 
            of greater dimension than those stresses which all employees 
 
            experience on a day-to-day basis.  The requirement involves 
 
            medical proof of causation that in fact connects the 
 

 
            
 
            Page  12
 
            
 
            
 
            
 
            
 
            employment stress with the injury.  On this record, there is 
 
            no medical opinion connecting claimant's psychological 
 
            problems of 1988 with her employment.  A licensed social 
 
            worker, Gary Lewis, opined that a causal relationship did 
 
            exist, but he is not a medical practitioner.  Even a 
 
            psychologist, an individual more highly trained in the 
 
            workings of the mind than a social worker, lacks the 
 
            expertise involved in examining the relationship between 
 
            mind and body such as is held by a psychiatrist.  Saunders 
 
            v. Cherry Burrell Corp., II Iowa Industrial Commissioner 
 
            Report 333 (1982).  Particularly given claimant's history of 
 
            psychological disability, in part related to her belief that 
 
            she had been "harassed" by fellow workers, it cannot be said 
 
            that the opinion of Mr. Lewis is sufficient to carry 
 
            claimant's burden of proof on the issue.
 
            
 
                 The parties have stipulated that claimant sustained a 
 
            work injury on August 29, 1988.  Actually, the correct date 
 
            is August 25.  However, they dispute whether that injury is 
 
            causally related to temporary or permanent disability.
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury of August 25, 
 
            1988 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 
 
            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).
 
            
 
                 On September 1, 1988, Dr. Berger recorded his 
 
            impression of low back pain secondary to contusion injury 
 
            with myofascial strain.  As to temporary disability, no 
 
            contrary medical view appears of record.  Essentially all 
 
            physicians have reported restricted range of motion of the 
 
            lumbar spine.  Dr. Krigsten and Dr. Durward each reported 
 
            spasm ("marked" on September 19 and "mild" on October 6, 
 
            1988).  These multiple findings constitute objective proof 
 
            of injury.
 
            
 
                 The only two physicians to render opinions as to 
 
            claimant's permanent disability are Dr. Dougherty and Dr. 
 

 
            
 
            Page  13
 
            
 
            
 
            
 
            
 
            Luse.  While this observer might be inclined to give greater 
 
            weight to the opinion of a board-certified orthopaedic 
 
            surgeon than that of a practitioner of chiropractic, all 
 
            other things being equal, it should be noted that Dr. 
 
            Dougherty, while opining that claimant had no permanent 
 
            impairment relating to the injury, also reported some 
 
            restriction in claimant's range of motion.  Absent another 
 
            cause, this is indicative of continuing disability.  Reading 
 
            Dr. Dougherty's testimony as a whole, it appears probable 
 
            that he believes claimant to be either exaggerating or 
 
            inventing her pain.  This observer believes claimant has 
 
            done little to minimize the extent of her residual lower 
 
            back pain, but it is nonetheless credible that she still 
 
            finds herself suffering.  Given claimant's testimony of 
 
            continuing symptomatology, a history of objective signs and 
 
            continued loss of range of motion along with the extensive 
 
            record of continued treatment, it is held that claimant has 
 
            met her burden of proof in establishing a causal nexus 
 
            between her injury of August 25, 1988 and current disability 
 
            relating to the lumbar spine.
 
            
 
                 Under Iowa Code section 85.34(1), healing period is 
 
            compensable beginning on the date of injury and continuing 
 
            until the employee has returned to work, it is medically 
 
            indicated that significant improvement from the injury is 
 
            not anticipated, or until the employee is medically capable 
 
            of returning to substantially similar employment, whichever 
 
            first occurs.
 
            
 
                 Claimant was taken off work by Dr. Berger for six days 
 
            beginning September 1, 1988.  Healing period can be 
 
            intermittent.  Willis v. Lehigh Portland Cement Co., Vol. 
 
            2-1, State of Iowa Industrial Commissioner Decisions 485 
 
            (1984).  She was again taken off work by Dr. Krigsten on 
 
            September 19 through January 15, 1989, a total of 17 weeks.
 
            
 
                 With respect to file number 911102, defendants admit 
 
            claimant sustained a work injury on February 6, 1989.  
 
            However, they dispute causal connection to temporary or 
 
            permanent disability.  Claimant was taken off work by Dr. 
 
            Youngblade on February 15, 1989.  In cases of cumulative 
 
            injury, the injury occurs for workers' compensation purposes 
 
            on that date when, due to pain or physical inability, 
 
            claimant is no longer able to work.  McKeever Custom 
 
            Cabinets v. Smith, 379 N.W.2d 368 (Iowa 1985).  It is held 
 
            that February 15 is the proper injury date.  The fact that 
 
            the parties stipulate an injury occurred combined with 
 
            claimant being taken off work by Dr. Youngblade for symptoms 
 
            related to that injury establishes that temporary disability 
 
            is causally related to the work injury.  With respect to 
 
            permanent disability, once again only Dr. Luse and Dr. 
 
            Dougherty have rendered opinion.  For the same reasons set 
 
            forth above, it is held that claimant has established 
 
            permanent disability relating to the injury of February 15.
 
            
 
                 Claimant has never been released to return to work 
 
            following the February 15, 1989 injury.  Dr. Luse evaluated 
 
            impairment based on an examination of July 13, 1990.  It has 
 

 
            
 
            Page  14
 
            
 
            
 
            
 
            
 
            frequently been held that the rendering of an impairment 
 
            rating implies that healing is at an end.  Of record, this 
 
            is the first of the triggering events set forth in section 
 
            85.34(1) to occur.  Therefore, claimant is entitled to 
 
            healing period benefits from February 15, 1989 through July 
 
            13, 1990, a total of 73 weeks, 3 days.
 
            
 
                 Functional impairment is an element to be considered in 
 
            determining industrial disability which is the reduction of 
 
            earning capacity, but consideration must also be given to 
 
            the injured employee's age, education, qualifications, expe
 
            rience and inability to engage in employment for which he is 
 
            fitted.  Olson v. Goodyear Service Stores, 255 Iowa 1112, 
 
            125 N.W.2d 251 (1963).  Barton v. Nevada Poultry, 253 Iowa 
 
            285, 110 N.W.2d 660 (1961).
 
            
 
                 A finding of impairment to the body as a whole found by 
 
            a medical evaluator does not equate to industrial disabil
 
            ity.  This is so as impairment and disability are not syn
 
            onymous.  Degree of industrial disability can in fact be 
 
            much different than the degree of impairment because in the 
 
            first instance reference is to loss of earning capacity and 
 
            in the latter to anatomical or functional abnormality or 
 
            loss.  Although loss of function is to be considered and 
 
            disability can rarely be found without it, it is not so that 
 
            a degree of industrial disability is proportionally related 
 
            to a degree of impairment of bodily function.
 
            
 
                 Factors to be considered in determining industrial dis
 
            ability include the employee's medical condition prior to 
 
            the injury, immediately after the injury, and presently; the 
 
            situs of the injury, its severity and the length of healing 
 
            period; the work experience of the employee prior to the 
 
            injury, after the injury and potential for rehabilitation; 
 
            the employee's qualifications intellectually, emotionally 
 
            and physically; earnings prior and subsequent to the injury; 
 
            age; education; motivation; functional impairment as a 
 
            result of the injury; and inability because of the injury to 
 
            engage in employment for which the employee is fitted.  Loss 
 
            of earnings caused by a job transfer for reasons related to 
 
            the injury is also relevant.  These are matters which the 
 
            finder of fact considers collectively in arriving at the 
 
            determination of the degree of industrial disability.
 
            
 
                 There are no weighting guidelines that indicate how 
 
            each of the factors are to be considered.  There are no 
 
            guidelines which give, for example, age a weighted value of 
 
            ten percent of the total value, education a value of fifteen 
 
            percent of total, motivation - five percent; work experience 
 
            - thirty percent, etc.  Neither does a rating of functional 
 
            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 
 

 
            
 
            Page  15
 
            
 
            
 
            
 
            
 
            Decision, February 28, 1985); Christensen v. Hagen, Inc., 
 
            (Appeal Decision, March 26, 1985).
 
            
 
                 The most recent physician to impose medical 
 
            restrictions is Dr. Luse.  While the restrictions he imposed 
 
            are more stringent than treating physicians', it appears 
 
            that substantial time has elapsed since those restrictions 
 
            were imposed.  For that reason, Dr. Luse's proposed 
 
            restrictions are more reliable.  As will be recalled, those 
 
            restrictions barred lifting in excess of 20 pounds, frequent 
 
            bending or twisting and repetitive motion work with either 
 
            upper extremity.  Those restrictions presumably bar 
 
            employment in the meat packing industry or as a cookie 
 
            packer.  Claimant may well be able to work as a cook, order 
 
            filler, telemarketer or pizza baker.  Given her ninth grade 
 
            education and limited capacity for retraining, it is 
 
            probable that claimant will for the foreseeable future be 
 
            limited to employment paying largely minimum wage or little 
 
            more.  Claimant's job with John Morrell paid more than twice 
 
            that.
 
            
 
                 Considering these factors then in specific and the 
 
            record otherwise in general, it is held that claimant has 
 
            sustained an industrial disability causally related to her 
 
            injuries of August 25, 1988 and February 15, 1989 equivalent 
 
            to 50 percent of the body as a whole, or 250 weeks.
 
            
 
                 Claimant had improved greatly from the 1988 injury when 
 
            the 1989 injury intervened.  Her current disability is 
 
            related to both injuries.  The fairest apportionment on this 
 
            record appears to be that 50 percent of claimant's total 
 
            industrial disability is independently attributable to each 
 
            disputed work injury.
 
            
 
                 Claimant also seeks to be compensated for the 
 
            evaluation performed by Dr. Luse.  Iowa Code section 85.39 
 
            provides:
 
            
 
                 If an evaluation of permanent disability has been 
 
                 made by a physician retained by the employer and 
 
                 the employee believes this evaluation to be too 
 
                 low, the employee shall, upon application to the 
 
                 commissioner and upon delivery of a copy of the 
 
                 application to the employer and its insurance 
 
                 carrier, be reimbursed by the employer the 
 
                 reasonable fee for a subsequent examination by a 
 
                 physician of the employee's own choice, and 
 
                 reasonably necessary transportation expenses 
 
                 incurred for the examination.  The physician 
 
                 chosen by the employee has the right to confer 
 
                 with and obtain from the employer-retained 
 
                 physician sufficient history of the injury to make 
 
                 a proper examination.
 
            
 
                 The evaluation performed by Dr. Luse preceded the 
 
            evaluation performed by Dr. Dougherty.  Prior to Dr. 
 
            Dougherty, the record does not show that any physician 
 
            retained by the employer had evaluated claimant's 
 
            disability.  A reading of the statute indicates that such an 
 
            evaluation is a condition precedent to claimant's 
 

 
            
 
            Page  16
 
            
 
            
 
            
 
            
 
            entitlement to benefits under section 85.39.  Accordingly, 
 
            defendants prevail on this issue.
 
            
 
                                      order
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 In file number 878903:
 
            
 
                 Claimant shall take nothing.
 
            
 
                 In file number 894241:
 
            
 
                 Defendants shall pay unto claimant seventeen (17) 
 
            weeks, six (6) days of intermittent healing period benefits 
 
            (September 1 through September 6, 1988 and September 19, 
 
            1988 through January 15, 1989) at the stipulated rate of two 
 
            hundred thirty-one and 87/100 dollars ($231.87) per week and 
 
            totalling four thousand one hundred forty and 50/100 dollars 
 
            ($4,140.50).
 
            
 
                 Defendants shall pay unto claimant one hundred 
 
            twenty-five (125) weeks of healing period at the stipulated 
 
            rate of two hundred thirty-one and 87/100 dollars ($231.87) 
 
            per week commencing January 16, 1989 and totalling 
 
            twenty-eight thousand nine hundred eighty-three and 75/100 
 
            dollars ($28,983.75).
 
            
 
                 In file number 911102:
 
            
 
                 Defendants shall pay unto claimant seventy-three (73) 
 
            weeks, three (3) days of healing period benefits commencing 
 
            February 15, 1989 at the stipulated rate of two hundred 
 
            forty-two and 89/100 dollars ($242.89) per week and 
 
            totalling seventeen thousand eight hundred thirty-five and 
 
            16/100 dollars ($17,835.16).
 
            
 
                 Defendants shall pay unto claimant one hundred 
 
            twenty-five (125) weeks of permanent partial disability 
 
            benefits at the stipulated rate of two hundred forty-two and 
 
            89/100 dollars ($242.89) per week commencing January 14, 
 
            1990 and totalling thirty thousand three hundred sixty-one 
 
            and 25/100 dollars ($30,361.25).
 
            
 
     
 
            
 
            
 
            Page  17
 
            
 
            
 
            
 
            
 
            In all cases:
 
            
 
                 Defendants shall have credit for all voluntary benefits 
 
            paid.
 
            
 
                 The costs of these actions shall be assessed to 
 
            defendants pursuant to rule 343 IAC 4.33.
 
            
 
                 Defendants shall file claim activity reports as 
 
            requested by this agency pursuant to rule 343 IAC 3.1.
 
            
 
                 Signed and filed this ______ day of ____________, 1991.
 
            
 
                 
 
            
 
                 
 
                 
 
                                          ______________________________
 
                                          DAVID RASEY
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Harry H. Smith
 
            Attorney at Law
 
            P.O. Box 1194
 
            Sioux City, Iowa  51102
 
            
 
            Ms. Judith Ann Higgs
 
            Attorney at Law
 
            200 Home Federal Building
 
            P.O. Box 3086
 
            Sioux City, Iowa  51102
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            DENNIS HEDGES,                :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :    File Nos. 943956 & 911208
 
            MISSOURI VALLEY STEEL,        :
 
                                          :      A R B I T R A T I O N
 
                 Employer,                :
 
                 Self-Insured,            :         D E C I S I O N
 
                                          :
 
            and                           :
 
                                          :
 
            LIBERTY MUTUAL,               :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This is a proceeding in arbitration brought by Dennis 
 
            Hedges, claimant, against Missouri Valley Steel Company, 
 
            employer (hereinafter referred to as Valley Steel), and 
 
            Liberty Mutual Insurance Company as well as Valley Steel as 
 
            self-insured, defendants, for workers' compensation benefits 
 
            as a result of alleged injuries on March 3, 1989 and June 
 
            13, 1990.  On October 1, 1991, a hearing was held on 
 
            claimant's petition and the matter was considered fully sub
 
            mitted at the close of this hearing.
 
            
 
                 The parties have submitted a prehearing report of con
 
            tested 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.
 
            
 
                 According to the prehearing report, the parties have 
 
            stipulated to the following matters:
 
            
 
                 1.  An employee-employer relationship existed between 
 
            claimant and Valley Steel at the time of the alleged injury 
 
            on June 13, 1990.
 
            
 
                 2.  Only defendant Liberty Mutual stipulated that on 
 
            March 3, 1989, claimant received an injury which arose out 
 
            of and in the course of employment with Valley Steel and 
 
            claimant.  Both Liberty Mutual and claimant stipulated that 
 
            the extent of claimant's entitlement to temporary total dis
 
            ability or healing period benefits extends from March 4 
 
            through March 7, 1989, entitling claimant to one day of 
 
            workers' compensation.  Claimant acknowledged that this had 
 
            been paid.
 
            
 
                 3.  If the injury is found to have caused permanent 
 
            disability, the type of disability is an industrial disabil
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            ity to the body as a whole.
 
            
 
                                      issues
 
            
 
                 The parties submitted the following issues for determi
 
            nation in this proceeding:
 
            
 
                   I.  Whether claimant received an injury on June 13, 
 
            1990, arising out of and in the course of employment;
 
            
 
                  II.  The extent of claimant's entitlement to disabil
 
            ity benefits; and,
 
            
 
                 III.  The extent of claimant's entitlement to medical 
 
            benefits, specifically those received and offered by Horst 
 
            Blume, M.D., subsequent to the June 1990 injury and 
 
            claimant's medical mileage expenses as set forth in 
 
            exhibit 72.
 
            
 
                 Claimant had identified other issues at the prehearing 
 
            conference but the above issues where the only ones identi
 
            fied in the prehearing report.
 
            
 
                                 findings of fact
 
            
 
                 Having heard the testimony and considered all the evi
 
            dence, the deputy industrial commissioner finds as follows:
 
            
 
                 A credibility finding is necessary to this decision as 
 
            defendants place claimant's credibility at issue during 
 
            cross-examination as to the occurrence and extent of the 
 
            injuries and disabilities.  For reasons that will be fully 
 
            explained below and from his demeanor while testifying, 
 
            claimant is not found credible.
 
            
 
                 Claimant is 35 years of age.  He worked for Valley 
 
            Steel from August 1987 until his termination in February 
 
            1991.  Valley Steel is a fabricator of heavy steel girders 
 
            and beams.  Claimant was a welder.  Employees at Valley 
 
            Steel are required to lift on occasion very heavy materials 
 
            up to 100 pounds but hoists are available to assist when 
 
            necessary and appropriate.  After the alleged second back 
 
            injury in this case, claimant was assigned to light duty 
 
            involving janitorial work.  Claimant was terminated for 
 
            absenteeism without excuse.  In January 1991, claimant was 
 
            absent for a few days but failed to call in.  Claimant 
 
            admitted at hearing that he had a poor attendance record at 
 
            Valley Steel both before and after the work injuries in this 
 
            case although he stated that he had valid excuses for not 
 
            appearing at work on most occasions.
 
            
 
                 On or about March 3, 1989, claimant injured his lower 
 
            back while lifting a heavy beam off the legs of a fellow 
 
            employee in the performance of his duties at Valley Steel.  
 
            This fellow employee had lost his balance while walking and 
 
            fell to the ground grasping adjacent metal beams in the pro
 
            cess pulling them down on top of him.  The injury arose out 
 
            of and in the course of claimant's employment.  Valley 
 
            Steel's records which appear more reliable than claimant's 
 
            memory show that this incident described by claimant and the 
 
            fellow employee probably occurred a few days earlier on 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            February 28, 1989.  However, a change in injury date from 
 
            the one alleged is meaningless to the issues and a change in 
 
            agency records and injury reports appears unnecessary.  
 
            Although claimant is not credible, his story of the incident 
 
            is verified by the fellow employee.  There is a dispute as 
 
            to the type and number of beams lifted by claimant but there 
 
            appears to be no dispute that at least one 20 foot beam 
 
            weighing up to 100 pounds was involved.  Claimant subse
 
            quently complained of pain in the dorsal lumbar regions of 
 
            his lower spine with radiation into the legs by treating 
 
            company physician Joe M. Krigsten, M.D.  Claimant was 
 
            treated conservatively by Dr. Krigsten while he was taken 
 
            off work for four days.  Claimant received no other treat
 
            ment for his back until the alleged work injury in June 
 
            1990.
 
            
 
                 At hearing, claimant stated that despite his return to 
 
            work he never fully recovered from the March 1989 injury and 
 
            continues to have pain.  He stated that he requested addi
 
            tional medical treatment from Valley Steel after being 
 
            released by Dr. Krigsten but was refused this treatment.  
 
            This story is not credible as will be explained below.
 
            
 
                 Claimant claims a work injury involving his whole back 
 
            from his shoulders to his buttocks occurring on June 13, 
 
            1990, while sliding a heavy "eye" beam at the Valley Steel 
 
            plant.  There were no witnesses to this incident.  The only 
 
            non-supervisory employee to testify could not remember the 
 
            incident.  Defendants disputed claimant's credibility and 
 
            have denied that the incident occurred.  Defendants point to 
 
            claimant's inconsistent testimony during the course of these 
 
            proceedings and deliberate misrepresentations in the past.
 
            
 
                 Claimant responded to questions in his deposition dur
 
            ing this litigation while under oath on two occasions and on 
 
            one occasion in answers to interrogatories in which he 
 
            denied any back problems before the injury of March 3, 1989.  
 
            However, later in his deposition when presented with con
 
            trary information, claimant admitted that in August 1988, he 
 
            sought treatment from a chiropractor at the Bronson Clinic 
 
            for a mid-back and shoulder pain.  Claimant stated to Dr. 
 
            Bronson (first name unknown) at the time that the pain had 
 
            lasted one week prior to the appointment and was interfering 
 
            with his work, sleep and daily routine.  Claimant also 
 
            reported to Dr. Bronson a history of intermittent upper back 
 
            pain "for some time."  The fellow employee who testified at 
 
            hearing stated that claimant complained of back pain not 
 
            only after the March 3, 1989 injury, but prior to this 
 
            injury as well.
 
            
 
                 During his deposition, claimant denied that he had been 
 
            involved in any motorcycle accidents before or after the 
 
            March 3, 1989 injury.  In his answers to interrogatories, he 
 
            denied any accidents outside of the workplace.  However, 
 
            when confronted with the attendance record at Valley Steel 
 
            indicating that he missed a day of work in July 1989 due to 
 
            a motorcycle accident, claimant stated, rather incredibly, 
 
            that he did not consider the "dumping" of his motorcycle 
 
            into the mud as an accident.  He admitted that he lost a day 
 
            of work and sprained his ankle as a result of this accident.  
 
            A witness at the hearing who appeared credible testified 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            that she was a secretary at Valley Steel and on the one 
 
            occasion claimant appeared for work after a motorcycle acci
 
            dent with what appeared to be concrete burns on his face.  
 
            She said that this was the same type of injury she observed 
 
            on her brother after a motorcycle accident.  She could not 
 
            give the precise date and time of the motorcycle accident.
 
            
 
                 Claimant stated at hearing and in his deposition that 
 
            he had not received treatment after Dr. Krigsten released 
 
            him back to work in March of 1989 because he was denied 
 
            treatment by Valley Steel management after repeated 
 
            requests.  This is not believable because he did not seek 
 
            treatment from any other physician, including his family 
 
            doctor.  Claimant did not hesitate to seek medical treatment 
 
            on his own in June 1990 after the alleged second back injury 
 
            when he became dissatisfied with the other company furnished 
 
            physician, D. M. Youngblade, M.D.
 
            
 
                 Claimant was terminated for failing to call in for 
 
            approximately three days when he failed to appear for work 
 
            in January 1991.  The Valley Steel secretary, who testified 
 
            at hearing about claimant's appearance after a motorcycle 
 
            accident, testified that upon orders from her superiors, she 
 
            had unsuccessfully attempted to reach claimant by telephone 
 
            during his absences immediately prior to the termination.  
 
            Claimant testified that he had hurt his back at the time at 
 
            home and stated that he could not be reached by phone 
 
            because his phone service was not functioning and that he 
 
            was unaware of this malfunction at the time.  However, when 
 
            asked earlier by defense council why he did not call in, 
 
            claimant testified that he attempted to do so and discovered 
 
            that his phone was out of order.  At no time did he satis
 
            factorily explain why he could not have a friend or his wife 
 
            call in for him.  His only response was a comment that his 
 
            wife would not do so.  However, his wife testified that she 
 
            would have done so had he asked.
 
            
 
                 Finally, defendants point out that claimant lied in his 
 
            application for employment with Valley Steel in 1987 stating 
 
            that he was a high school graduate when in fact he dropped 
 
            out of high school in the eleventh grade.  Claimant 
 
            explained that he had to lie in the application because 
 
            employers like Valley Steel discriminate against persons who 
 
            do not have high school diplomas.  Although claimant was not 
 
            under oath when he filled out his application, it is appar
 
            ent that claimant is the type of person who is prepared to 
 
            misrepresent the facts when it is advantageous for him to do 
 
            so.
 
            
 
                 One facet of the evidence that appeared to support a 
 
            finding for claimant with reference to the claimed work 
 
            injury in June of 1990, was the testimony of Valley Steel 
 
            management at the hearing.  When asked why claimant had not 
 
            been paid workers' compensation benefits after the alleged 
 
            June 1990 injury, management representatives could not 
 
            delineate the specific reasons for denying the claim stating 
 
            that the denial was the decision by outside claim adjusters.  
 
            Obviously, a belief that claimant was lying about the 
 
            claimed incident was not in the forefront of their minds as 
 
            a reason for denying the claim.  However, it is also appar
 
            ent that these management personnel where unaware at the 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            time of the claimed injury of many of the inconsistencies 
 
            that this undersigned deputy industrial commissioner is now 
 
            facing with claimant's testimony.
 
            
 
                 Finally, in reviewing claimant's account of the June 
 
            13, 1990, alleged injury, the undersigned finds even more 
 
            inconsistencies.  According to the office notes of Dr. D. J. 
 
            Miedema, M.D., an associate of Dr. Youngblade, claimant 
 
            reported low back pain after the claimed June 13, 1990 inci
 
            dent.  At the time, as a result of this complaint, Dr. 
 
            Miedema diagnosed lumbosacral sprain.  It was not until June 
 
            18, in an appointment with Dr. Youngblade, that claimant 
 
            began to complain of upper back pain.  According to the 
 
            office records of Jay T. Strittholt, M.D., an orthopedic 
 
            surgeon, to which claimant was referred by Dr. Youngblade, 
 
            claimant reported to him on June 28, 1990, that after push
 
            ing the heavy steel at work he felt immediate pain between 
 
            his shoulder blades.  On June 29, 1990, claimant told his 
 
            family doctor, M. D. Van Patten, D.O., that he hurt his 
 
            "whole back" in the June 13, 1990 incident.  At hearing, 
 
            claimant stated that he only aggravated his low back in this 
 
            work injury but primarily injured his upper and mid-back 
 
            from the incident.
 
            
 
                 As a result of the above inconsistencies viewed as a 
 
            whole, the undersigned is unable to find that claimant suf
 
            fered any work injury on or about June 13, 1990, to his 
 
            back.  It is clear from the medical evidence that claimant 
 
            suffered upper and lower back pain in June 1990.  It is also 
 
            apparent that this pain was significant and chronic and 
 
            required several weeks of absence from work after which per
 
            manent work restrictions were imposed against heavy lifting 
 
            and repetitive bending, climbing and stooping.  However, 
 
            absent a finding that claimant suffered some sort of injury 
 
            at work to precipitate this pain and disability, it is just 
 
            as likely that the pain occurred without an injury.  
 
            Claimant has been diagnosed since March 1989, as suffering 
 
            from preexisting and congenital back problems called spina 
 
            bifida and grade 1 spondylolysis.  The medical evidence 
 
            establishes that these conditions can cause pain and dis
 
            ability without an injury.  The Bronson Clinic records and 
 
            the testimony of claimant's fellow employee at hearing, 
 
            established that claimant did in fact suffer back pain prior 
 
            to March 3, 1989, without an injury.
 
            
 
                 Furthermore, it could not be found that the work injury 
 
            of March 3, 1989, was a cause of permanent impairment or 
 
            permanent disability.  Claimant was off work for four days 
 
            and returned to full duty at work.  He did not receive medi
 
            cal treatment for his back after his release by Dr. Krigsten 
 
            for over 18 months.  As explained above, claimant's testi
 
            mony that he continued to have pain and his explanation for 
 
            not seeking treatment is not credible.  No physician has 
 
            opined that claimant suffers from permanent impairment or 
 
            disability from the March 1989 injury.  One physician, a 
 
            board certified neurosurgeon, Joel Cotton, M.D., has specif
 
            ically opined that claimant does not suffer permanent 
 
            partial impairment from the March 1989 injury.  Another neu
 
            rosurgeon, Horst Blume, M.D., states that claimant has a 
 
            multitude of back problems, including a herniated disc and 
 
            thoracic outlet syndrome attributable to both the March 1989 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            and June 1990 incidents which he believes requires further 
 
            treatment.  Dr. Blume's opinion cannot be given greater 
 
            weight over those of Dr. Cotton.  Dr. Cotton disagrees with 
 
            Dr. Blume and his qualifications are at least equal to if 
 
            not greater than those of Dr. Blume as Dr. Cotton is board 
 
            certified.
 
            
 
                 The only other causal connection opinion of signifi
 
            cance was that of the orthopedic surgeon who examined 
 
            claimant in January 1991, Anil Agarwal, M.D.  He stated that 
 
            due to significant preexisting back conditions, the March 3, 
 
            1989 injury was only an aggravation of preexisting condi
 
            tion.  However, he stated that the claimant's symptoms at 
 
            the time, which he diagnosed as chronic lumbar strain, were 
 
            causally connected to this injury.  Dr. Agarwal went on to 
 
            state that he did not believe that claimant suffered from 
 
            any permanent disability following the alleged injury of 
 
            June 13, 1990, but he could possibly give a five percent 
 
            rating due to chronic pain since that injury.  Dr. Agarwal's 
 
            views, with reference to permanent disability as a result of 
 
            the March 1989 injury, are not specifically delineated in 
 
            his reports and consequently his views are very unclear.  
 
            Given such evidence, the undersigned feels that it is not 
 
            reasonable for him to find permanency as a result of the 
 
            March 1989 injury based upon this ambiguous opinion of Dr. 
 
            Agarwal alone absent a credible claimant and absent a con
 
            tinuous pattern of medical treatment and verified lost work 
 
            in the interm between March 1989 and June 1990.
 
            
 
                                conclusions of law
 
            
 
                   I.  Claimant has the burden of proving by a prepon
 
            derance of the evidence that claimant received an injury 
 
            which arose out of and in the course of employment.  The 
 
            words "out of" refer to the cause or source of the injury.  
 
            The words "in the course of" refer to the time and place and 
 
            circumstances of the injury.  See Cedar Rapids Community 
 
            Sch. v. Cady, 278 N.W.2d 298 (Iowa 1979); Crowe v. DeSoto 
 
            Consol. Sch. Dist., 246 Iowa 402, 68 N.W.2d 63 (1955).  An 
 
            employer takes an employee subject to any active or dormant 
 
            health impairments, and a work connected injury which more 
 
            than slightly aggravates the condition is considered to be a 
 
            personal injury.  Ziegler v. United States Gypsum Co., 252 
 
            Iowa 613, 620, 106 N.W.2d 591 (1960) and cases cited 
 
            therein.
 
            
 
                  II.  The claimant has the burden of proving by a pre
 
            ponderance of the evidence that the work injury is a cause 
 
            of the claimed disability.  A disability may be either 
 
            temporary or permanent.  In the case of a claim for tempo
 
            rary disability, the claimant must establish that the work 
 
            injury was a cause of absence from work and lost earnings 
 
            during a period of recovery from the injury.  Generally, a 
 
            claim of permanent disability invokes an initial determina
 
            tion of whether the work injury was a cause of permanent 
 
            physical impairment or permanent limitation in work activ
 
            ity.  However, in some instances, such as a job transfer 
 
            caused by a work injury, permanent disability benefits can 
 
            be awarded without a showing of a causal connection to a 
 
            physical change of condition.  Blacksmith v. All-American, 
 
            Inc., 290 N.W.2d 348, 354 (Iowa 1980); McSpadden v. Big Ben 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            Coal Co., 288 N.W.2d 181 (Iowa 1980).
 
            
 
                 The question of causal connection is essentially within 
 
            the domain of expert medical opinion.  Bradshaw v. Iowa 
 
            Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960).  
 
            The opinion of experts need not be couched in definite, pos
 
            itive or unequivocal language and the expert opinion may be 
 
            accepted or rejected, in whole or in part, by the trier of 
 
            fact.  Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 
 
            1974).  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 cir
 
            cumstances.  Bodish v. Fischer, Inc., 257 Iowa 516, 133 
 
            N.W.2d 867 (1965).
 
            
 
                 Furthermore, if the available expert testimony is 
 
            insufficient alone to support a finding of causal connec
 
            tion, such testimony may be coupled with nonexpert testimony 
 
            to show causation and be sufficient to sustain an award.  
 
            Giere v. Asse Haugen Homes, Inc., 259 Iowa 1065, 146 N.W.2d 
 
            911, 915 (1966).  Such evidence does not, however, compel an 
 
            award as a matter of law.  Anderson v. Oscar Mayer & Co., 
 
            217 N.W.2d 531, 536 (Iowa 1974).  To establish compensabil
 
            ity, the injury need only be a significant factor, not be 
 
            the only factor causing the claimed disability.  Blacksmith, 
 
            290 N.W.2d 348, 354.  In the case of a preexisting condi
 
            tion, an employee is not entitled to recover for the results 
 
            of a preexisting injury or disease but can recover for an 
 
            aggravation thereof which resulted in the disability found 
 
            to exist.  Olson v. Goodyear Service Stores, 255 Iowa 1112, 
 
            125 N.W.2d 251 (1963).
 
            
 
                 In the case sub judice, claimant sought permanent par
 
            tial disability benefits as a result of the March 3, 1989 
 
            injury and healing period, permanent partial disability and 
 
            medical benefits as a result of the alleged June 13, 1990 
 
            injury.  Given the findings in this case, claimant is not 
 
            entitled to any of the requested benefits.
 
            
 
                                      order
 
            
 
                 1.  Claimant's petitions are dismissed with prejudice 
 
            and he will take nothing from this proceeding.
 
            
 
                 2.  Claimant shall pay the cost of this action pursuant 
 
            to rule 343 IAC 4.33, including reimbursement to claimant 
 
            for any filing fee paid in this matter.
 
            
 
            
 
            
 
                 Signed and filed this ____ day of October, 1991.
 
            
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          LARRY P. WALSHIRE
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            Mr. Harry H. Smith
 
            Attorney at Law
 
            P O Box 1194
 
            Sioux City  IA  51102
 
            
 
            Mr. Roger L. Carter
 
            Attorney at Law
 
            P O Box 912
 
            Sioux City  IA  51102
 
            
 
                 
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                           5-1103; 5-1803
 
                           Filed October 25, 1991
 
                           LARRY P. WALSHIRE
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
		                      :
 
            DENNIS HEDGES, 	      :
 
		                      :
 
                 Claimant,	      :
 
		                      :
 
		            vs.       :
 
                		      :    File Nos. 943956 & 911208
 
            MISSOURI VALLEY STEEL,    :
 
		                      :      A R B I T R A T I O N
 
                 Employer,	      :
 
                 Self-Insured,        :         D E C I S I O N
 
                      		      :
 
		            and       :
 
                		      :
 
            LIBERTY MUTUAL,           :
 
                      		      :
 
                 Insurance Carrier,   :
 
                 Defendants.          :
 
            ___________________________________________________________
 
            
 
            
 
            
 
            5-1103; 5-1803
 
            A claim for workers' compensation benefits denied as the 
 
            claim was largely based upon claimant's credibility and 
 
            claimant could not be found credible.