Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            MIGUEL ARTEAGA,               :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :       File Nos. 946045
 
                                          :                 913243
 
            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
 
            
 
                 This is a consolidated proceeding in arbitration 
 
            brought by Miguel Arteaga, claimant, against John Morrell & 
 
            Company, employer, and National Union Fire Insurance 
 
            Company, insurance carrier, defendants, for workers' compen
 
            sation benefits as a result of alleged injuries on May 1, 
 
            1989 and May 12, 1989.  On March 20, 1992, a hearing was 
 
            held on claimant's petition and the matter was considered 
 
            fully submitted at the close of this hearing.
 
            
 
                                      issues
 
            
 
                 The hearing assignment order submitted the following 
 
            issues for determination in this proceeding:
 
            
 
                   I.  Whether claimant received an injury 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.
 
            
 
                                 findings of fact
 
            
 
                 Neither claimant nor defendants appeared for the oral 
 
            hearing scheduled at the last prehearing conference for 
 
            March 20, 1992.  This agency received no notification of any 
 
            settlement prior to the hearing.  The record was opened but 
 
            no evidence was offered.  The record was then closed.
 
            
 
                                conclusions of law
 
            
 
                 Claimant has the burden of proving by a preponderance 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            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).
 
            
 
                 As claimant has the burden of proof, by offering no 
 
            evidence he failed to establish a work injury compensable 
 
            under Iowa workers' compensation law.
 
            
 
                                      order
 
            
 
                 1.  Claimant's claims are denied and his petitions are 
 
            dismissed with prejudice.
 
            
 
                 2.  Claimant shall pay the costs of these actions pur
 
            suant to rule 343 IAC 4.33.
 
            
 
            
 
            
 
                 Signed and filed this ____ day of March, 1992.
 
            
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          LARRY P. WALSHIRE
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Sheldon M. Gallner
 
            Attorney at Law
 
            803 3rd Avenue
 
            P O Box 1588
 
            Council Bluffs, Iowa  51502
 
            
 
            Mr. Thomas M. Plaza
 
            Ms. Rita C. Grimm
 
            Attorneys at Law
 
            70l Pierce Street
 
            STE 200
 
            P O Box 3086
 
            Sioux City, Iowa  51102
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                          5-1803
 
                                          Filed March 25, 1992
 
                                          LARRY P. WALSHIRE
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            MIGUEL ARTEAGA,               :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :       File Nos. 946045
 
                                          :                 913243
 
            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.              :
 
            ___________________________________________________________
 
            
 
            
 
            
 
            5-1803 - Non-precedential
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            DEBRA L. PECK, :
 
                      :
 
                 Claimant, :   File Nos. 861960/913244
 
                      :
 
            vs.       :         A P P E A L
 
                      :
 
            WILSON FOODS CORPORATION,     :       D E C I S I O N
 
                      :
 
                 Employer, :
 
                 Self-Insured,  :
 
                 Defendant.     :
 
            ___________________________________________________________
 
            The record, including the transcript of the hearing before 
 
            the deputy and all exhibits admitted into the record, has 
 
            been reviewed de novo on appeal.  The decision of the deputy 
 
            filed April 12, 1990 is affirmed and is adopted as the final 
 
            agency action in this case, with the following additional 
 
            analysis:
 
            Claimant asserts one of the issues on appeal is whether the 
 
            deputy industrial commissioner erred in failing to grant an 
 
            extension of time to file claimant's arbitration brief.  In 
 
            addition to the above mentioned issue, claimant asserted 
 
            other issues which were considered in this appeal decision.  
 
            The arbitration decision itself is, by statute, reviewed de 
 
            novo on appeal.  Miller v. Woodward State Hospital, Appeal 
 
            Decision, May 31, 1990 (#853647).  
 
            Claimant shall pay the costs of the appeal, including the 
 
            preparation of the appeal transcript.
 
            Signed and filed this ____ day of August, 1991.
 
            
 
            
 
            
 
            
 
                      ________________________________
 
                               BYRON K. ORTON
 
                          INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Harry H. Smith
 
            Attorney at Law
 
            P.O. Box 1194
 
            Sioux City, Iowa 51102
 
            
 
            Mr. David L. Sayre
 
            Attorney at Law
 
            P.O. Box 535
 
            Cherokee, Iowa 51012
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
            9999
 
            Filed August 26, 1991
 
            Byron K. Orton
 
            WRM
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            DEBRA L. PECK, :
 
                      :
 
                 Claimant, :   File Nos. 861960/913244
 
                      :
 
            vs.       :         A P P E A L
 
                      :
 
            WILSON FOODS CORPORATION,     :       D E C I S I O N
 
                      :
 
                 Employer, :
 
                 Self-Insured,  :
 
                 Defendant.     :
 
            ___________________________________________________________
 
            
 
            9999
 
            Summary affirmance of deputy's decision filed Aprul 12, 
 
            1990, with short additional analysis.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            EDNA S. HIRSCHMAN,            :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :       File No. 913245
 
            HAWKEYE REFRIGERATED SERVICES :
 
            CORP.,                        :    A R B I T R A T I O N
 
                                          :
 
                 Employer,                :       D E C I S I O N
 
                                          :
 
            and                           :
 
                                          :
 
            RICHARD HIRSCHMAN,            :
 
                                          :
 
                 Employer,                :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This is a proceeding in arbitration brought by Edna S. 
 
            Hirschman, claimant, against Hawkeye Refrigerated Services 
 
            Corporation, employer (hereinafter referred to as Hawkeye), 
 
            and Richard Hirschman, defendants, for workers' compensation 
 
            benefits as a result of an alleged injury on July 1, 1987.  
 
            On October 16, 1990, a hearing was held on claimant's peti
 
            tion and the matter was considered fully submitted at the 
 
            close of this hearing.
 
            
 
                 Claimant and Richard Hirschman have submitted a pre
 
            hearing report of contested issues and stipulations which 
 
            was approved and accepted as a part of the record of this 
 
            case at the time of hearing.  Oral testimony and written 
 
            exhibits were received during the hearing from the parties.  
 
            The exhibits offered into the evidence are listed in the 
 
            prehearing report.
 
            
 
                 It should be noted that prior to hearing, the under
 
            signed had imposed sanctions against Hawkeye for failure to 
 
            comply with an order of the undersigned's to answer or 
 
            otherwise plead to claimant's petition in the time pre
 
            scribed by agency rules.  This sanction closed the record to 
 
            any evidence or activity on the part of Hawkeye.  The impo
 
            sition of sanctions was reviewed at hearing upon request of 
 
            Hawkeye and after consideration of the evidence and testi
 
            mony then presented, the original sanction order was not 
 
            changed and affirmed.  Consequently, Hawkeye was prohibited 
 
            from presenting evidence or participating in 
 
            cross-examination at hearing other than to make an offer of 
 
            proof.
 
            
 
                                      issues
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
                 The following issues have been submitted for determina
 
            tion in this proceeding:
 
            
 
                   I.  Whether an employer-employee relationship existed 
 
            between claimant and any of the alleged defendants at the 
 
            time of the alleged injury;
 
            
 
                  II.  Whether claimant received an injury arising out 
 
            and in the course of employment;
 
            
 
                 III.  The extent of claimant's entitlement to disabil
 
            ity benefits, including the applicable rate of compensation; 
 
            and,
 
            
 
                  IV.  The extent of claimant's entitlement to medical 
 
            benefits.
 
            
 
                                 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 
 
            much of the evidence is soley oral testimony of claimant and 
 
            her husband.  From their demeanor while testifying, claimant 
 
            and her husband are found credible.
 
            
 
                 Defendant Hawkeye is engaged in the business of hauling 
 
            freight.  Claimant and her husband are what is termed "owner 
 
            operators" for Hawkeye.  Claimant and her husband together 
 
            own their own truck which is designed for pulling 
 
            semi-trailers.  These vehicles are the common 16 wheeled 
 
            trucks that operate on our public roadways.  At the time of 
 
            the work injury, the driving of the truck was performed by 
 
            claimant and her husband as a team, each contributing 
 
            approximately 50 percent of the effort.  In addition to 
 
            driving, this husband and wife team also assisted equally in 
 
            loading and unloading the truck.  The truck operated under 
 
            Interstate Commerce Commission permits issued to Hawkeye.  
 
            Hawkeye owned the trailers and dispatched and directed 
 
            claimant and her husband when and where to haul the cargo.  
 
            In consideration for their services and the use of 
 
            claimant's truck, claimant and her husband each received 
 
            compensation in the form of an equal share of the revenues 
 
            from each haul which varied from 68 to 70 percent.  Claimant 
 
            stated at hearing that this averaged approximately 12 cents 
 
            per mile.  From this gross revenue, gas and other expenses 
 
            were deducted from the team share of the revenue.  The bal
 
            ance was paid directly to claimant and her husband.  It was 
 
            the responsibility of claimant and her husband to purchase 
 
            and maintain the truck tractor at their own expense.
 
            
 
                 It is specifically found that claimant was an employee 
 
            of Hawkeye on July 1, 1987.  Hawkeye had the right to select 
 
            and discharge claimant.  Claimant's husband first worked for 
 
            Hawkeye alone but when claimant decided to assist him in 
 
            driving, Hawkeye had to approve of the team driving situa
 
            tion and specifically certify claimant as a driver for 
 
            Hawkeye.  This was done on May 14, 1987.  It is found that 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            this is the date of hire of claimant.  Although details of 
 
            any particular route were left to these team drivers, 
 
            Hawkeye, for the most part, controlled the work as it 
 
            obtained the loads, assigned the loads, and collected and 
 
            dispensed the revenues.  Finally, the services performed by 
 
            claimant and her husband formed a regular and continuing 
 
            part of the trucking service provided by Hawkeye.  Their 
 
            owner operator status was not such an independent business 
 
            that it would form a separate route through which their cost 
 
            of industrial accident could be channeled.  It is found that 
 
            claimant was not employed by her husband but that her hus
 
            band and her together were employed by Hawkeye.  
 
            Furthermore, the record fails to demonstrate that claimant 
 
            and her husband entered into a contract which specified 
 
            their relationship to be that of an independent contractor 
 
            and not that of an employee.  The record fails to show that 
 
            claimant and her husband were required by such a contract to 
 
            provide and maintain a certificate of workers' compensation 
 
            insurance or a certification or affidavit from claimant or 
 
            her husband which indicated a desire not to have such cover
 
            age.  It is found from the testimony of claimant's husband 
 
            and from a review of the settlement sheets provided in 
 
            exhibit 3 that defendant Hawkeye deducted from revenues 
 
            earned by claimant and her husband a sum of money for the 
 
            payment of workers' compensation premiums for claimant and 
 
            her husband.  Therefore, on the whole record, defendant 
 
            failed to show that claimant was an independent contractor.
 
            
 
                 It is also found that the employment of claimant and 
 
            her husband was not principally located in any state and 
 
            that claimant was working under a contract of hire made in 
 
            Cedar Rapids, Iowa on May 14, 1987.  Claimant and her hus
 
            band were residents of the state of Missouri at the time of 
 
            the injury.  Hawkeye maintained headquarters located in 
 
            Cedar Rapids, Iowa.  Claimant and her husband were dis
 
            patched from Cedar Rapids, Iowa.  The settlement sheets 
 
            offered into evidence indicates that claimant and her hus
 
            band drove trucks in all states of the United States and for 
 
            the most part out of the state of Iowa.  Also, claimant tes
 
            tified that she had to obtain approval from Hawkeye prior to 
 
            becoming a team work driver with her husband and this was 
 
            obtained by means of a specific certification and testing by 
 
            Hawkeye at Cedar Rapids, Iowa.
 
            
 
                 On or about July 1, 1987, claimant injured her low 
 
            back, mid-back and neck while bending over in the process of 
 
            unloading her truck in the course of and arising out of her 
 
            team driving employment for Hawkeye.  This injury occurred 
 
            in the state of California.  Claimant experienced immediate 
 
            low back pain which radiated into the right leg.  Upon 
 
            returning home, claimant sought treatment from a local chi
 
            ropractor.  This treatment failed to alleviate claimant's 
 
            pain but she continued driving until August 2, 1987, at 
 
            which time she left work and was hospitalized by a medical 
 
            doctor, David Wilson, M.D.  Tests at the hospital revealed 
 
            that claimant had suffered a herniated disc of the low back 
 
            and she was transferred to another hospital under the care 
 
            of Gregory W. Hornig, M.D., and Robert Beatty, M.D.  Back 
 
            surgery was then performed on the herniated disc.  Claimant 
 
            was released from the hospital on September 1, 1987.  
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            Claimant stated that her condition stabilized on March 1, 
 
            1988, when she regained feeling in her big toe and that her 
 
            condition has not worsened or improved since that time.  In 
 
            the fall of November and December of 1987, she said that her 
 
            mid-back and neck also began to experience pain.  Due to 
 
            continued pain in her back and neck, claimant received chi
 
            ropractic care from Jeffrey Driskell, D.C., between April 
 
            22, 1988 and August 25, 1988.  This care has now been dis
 
            continued due to claimant's inability to pay for it.
 
            
 
                 As a result of the work injury of July 1, 1987, 
 
            claimant has suffered a significant permanent partial 
 
            impairment to the body as a whole.  Also, claimant is perma
 
            nently restricted from activity consisting of heavy lifting 
 
            or prolonged standing, walking or sitting.  This permanent 
 
            partial impairment is the result of injuries to the low 
 
            back, mid-back and neck.  This finding is based upon the 
 
            uncontroverted views of Mark Hagen, D.C., which are con
 
            tained in his report of May 31, 1990.  It is also found that 
 
            claimant had no prior injuries or difficulties with her back 
 
            before the work injury herein.  This finding is based upon 
 
            claimant's uncontroverted testimony.
 
            
 
                 As a result of the work injury of July 1, 1987, 
 
            claimant has suffered a 15 percent loss of earning capacity.  
 
            Claimant's medical condition before the work injury was 
 
            excellent and she had no functional impairments or ascer
 
            tainable disabilities.  Claimant was able to fully perform 
 
            physical tasks involving heavy lifting, repetitive lifting, 
 
            bending, twisting, stooping and prolonged standing and sit
 
            ting.  Due to her physical limitations at the present time 
 
            as a result of the work injury, claimant's medical condition 
 
            prevents her from returning to work as a truck driver or any 
 
            other work which requires claimant to violate her activity 
 
            restrictions.  Claimant is 43 years of age and has a high 
 
            school education.  Claimant's past employment consists of 
 
            clerical work and work as a nurse's aide.  Claimant has 
 
            shown that she would not be able to return to the work as a 
 
            nurse's aide.  However, claimant has shown that she is suit
 
            able for clerical/administrative work outside of the home.  
 
            She currently assists her husband in clerical and adminis
 
            trative work in his current trucking business.  Claimant has 
 
            not demonstrated an effort to seek suitable work outside of 
 
            her home.
 
            
 
                 It is found that claimant's gross weekly earnings for 
 
            purposes of computing the rate of compensation is $525 per 
 
            week.  This finding is based upon claimant's testimony that 
 
            she earned approximately 12 cents a mile or $525 on average 
 
            and this was roughly the same as other team drivers.  Also, 
 
            the finding is based upon the reasonableness of claimant's 
 
            testimony given the settlement sheets showing claimant's 
 
            share of earnings for 10 weeks prior to the injury (Exhibit 
 
            3).  From a review of these documents it was found that 
 
            claimant had averaged approximately $541.79 per week in the 
 
            10 week period prior to the injury.  The conclusions of law 
 
            section in this decision will explain how this figure was 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            arrived at.  Based upon claimant's testimony, it is found 
 
            that claimant was married and entitled to five exemptions on 
 
            her tax returns at the time of the work injury.
 
            
 
                 Finally, it is found that the medical expenses listed 
 
            in the list attached to the prehearing report are causally 
 
            connected to the work injury and constitute reasonable and 
 
            necessary treatment of the work injury.
 
            
 
                                conclusions of law
 
            
 
                 With reference to subject matter jurisdiction, although 
 
            this claim involves an injury occurring outside of the state 
 
            of Iowa, this agency has jurisdiction under Iowa Code sec
 
            tion 85.71(2).  It was found that claimant was working under 
 
            a contract of hire made in this state in employment not 
 
            principally localized in any state.
 
            
 
                   I.  Claimant has the burden to establish an 
 
            employee-employer relationship existed between herself and 
 
            defendant Hawkeye on July 1, 1987, at the time of the 
 
            injury.  Only employees are entitled to compensation for 
 
            work related injuries under Chapter 85 of the Iowa Code.  
 
            The Iowa Supreme Court has consistently held that it is 
 
            claimant's duty to prove by a preponderance of the evidence 
 
            that he or she was a workman or employee within the meaning 
 
            of the law and that he or she received an injury which arose 
 
            out of and in the course of employment.  If claimant 
 
            establishes a prima facie case that he or she is an 
 
            employee, the burden then shifts to the defendant to 
 
            establish by the preponderance of the evidence the 
 
            affirmative defense of independent contractor status if such 
 
            a defense is raised.  Nelson v. Cities Service Oil Co., 259 
 
            Iowa 1209, 1213, 146 N.W.2d 261 (1966).  It is for the trier 
 
            of fact to determine whether or not there is a sufficient 
 
            group of favorable factors to establish a relationship of an 
 
            independent contractor.  Hassebroch v. Weaver Construction 
 
            Co., 246 Iowa 622, 628, 67 N.W.2d 549, 553 (1954).
 
            
 
                 The Iowa Supreme Court has recognized five factors in 
 
            determining whether or not an employer-employee relationship 
 
            exists:  (1) the right of selection, or to employ at will; 
 
            (2) responsibility for payment of wages by the employer; (3) 
 
            the right of discharge or to terminate the relationship; (4) 
 
            the right to control the work; and, (5) the identity of the 
 
            employer as the authority in charge of the work or for whose 
 
            benefit it is performed.  The overriding issue is the inten
 
            tion of the parties.  Caterpillar Tractor Co. v. Shook, 313 
 
            N.W.2d 503 (Iowa 1981).  In the Caterpillar Tractor case, 
 
            the court added that the primary purpose of the workers' 
 
            compensation statute is to benefit the worker insofar as the 
 
            statute permits and should be interpreted liberally with the 
 
            view toward that objective.  The court stated that any 
 
            worker whose services form a regular and continuing part of 
 
            the cost of the product and that the claimant's method of 
 
            operation is not such an independent business that it forms 
 
            in itself a separate route through which the claimant's own 
 
            costs of industrial accident can be channeled, is within the 
 
            presumptive area of intended protection.
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            
 
                 Prior to 1986, this state and this agency viewed the 
 
            owner-operator truck driver as an employee of the trucking 
 
            firm, usually stating that such employers could not contract 
 
            their way out of the workers' compensation law.  See Daggett 
 
            v. Nebraska-Eastern Exp., Inc., 252 Iowa 341, 107 N.W.2d 102 
 
            (1961); Funk v. Bekins Van Lines Company, I Iowa Industrial 
 
            Commissioner Reports 82 (Appeal Decision 1980).  However, 
 
            there was confusion in the trucking industry as to the 
 
            status of the law and the legislature enacted the present 
 
            form of Iowa Code section 85.61(3)(c) which defines an 
 
            owner-operator as an independent contractor if all the 
 
            listed conditions set forth in the subsection are found sub
 
            stantially present in the working relationship.  In the case 
 
            at bar, all of the listed conditions were found except for 
 
            subsection 6 which states as follows:
 
            
 
                 The owner-operator enters into a contract which 
 
                 specifies the relationship to be that of an 
 
                 independent contractor and not that of an employee 
 
                 and requires the owner-operator to provide and 
 
                 maintain a certificate of workers' compensation 
 
                 insurance with the carrier.
 
            
 
                 Such a contract was not found to be present in this 
 
            case and if it does exist it was not offered into the evi
 
            dence.  In fact, the evidence suggests the contrary in that 
 
            there is clear evidence that defendant was to purchase the 
 
            insurance from the money deducted from claimant's entitle
 
            ment to load revenues.  Admittedly, there is nothing in the 
 
            Act which would prohibit a carrier from assisting an 
 
            owner-operator in procuring workers' compensation insurance 
 
            coverage with money provided by owner-operator.  However, 
 
            under such an arrangement, a certificate of insurance 
 
            evidencing the non-employee status of the owner-operator 
 
            should still be procured under the contract to avoid the 
 
            possibility, as in this case, that the owner-operator or any 
 
            employee driver of the owner-operator from being considered 
 
            an employee of the carrier.  See In the Matter of the 
 
            Interpretation of Senate File 2104, Iowa Motor Truck 
 
            Association, Petitioner, Declaratory Ruling of the 
 
            Industrial Commissioner, dated August 1, 1986.
 
            
 
                  II.  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.
 
            
 
                 In the case sub judice, there is little question that 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            claimant suffered the injury as asserted in the petition.  
 
            Claimant's testimony was uncontroverted.
 
            
 
                 III.  As the claimant has shown that the work injury 
 
            was a cause of a permanent physical impairment or limitation 
 
            upon activity involving the body as a whole, the degree of 
 
            permanent disability must be measured pursuant to Iowa Code 
 
            section 85.34(2)(u).  However, unlike scheduled member dis
 
            abilities, the degree of disability under this provision is 
 
            not measured solely by the extent of a functional impairment 
 
            or loss of use of a body member.  A disability to the body 
 
            as a whole or an "industrial disability" is a loss of earn
 
            ing capacity resulting from the work injury.  Diederich v. 
 
            Tri-City Railway Co., 219 Iowa 587, 593, 258 N.W. 899 
 
            (1935).  A physical impairment or restriction on work activ
 
            ity may or may not result in such a loss of earning capac
 
            ity.  The extent to which a work injury and a resulting 
 
            medical condition has resulted in an industrial disability 
 
            is determined from examination of several factors.  These 
 
            factors 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.  Olson v. Goodyear Service 
 
            Stores, 255 Iowa 1112, 1121, 125 N.W.2d 251, 257 (1963).  
 
            See Peterson v. Truck Haven Cafe, Inc., (Appeal Decision, 
 
            February 28, l985).
 
            
 
                 In the case sub judice, it was found that claimant suf
 
            fered a mild 15 percent loss of her earning capacity as a 
 
            result of the work injury.  Based upon such a finding, 
 
            claimant is entitled as a matter of law to 75 weeks of per
 
            manent partial disability benefits under Iowa Code section 
 
            85.34(2)(u) which is 15 percent of 500 weeks, the maximum 
 
            allowable for an injury to the body as a whole in that sub
 
            section.
 
            
 
                 As claimant has established entitlement to permanent 
 
            partial disability, claimant may be entitled to weekly bene
 
            fits for healing period under Iowa Code section 85.34 from 
 
            the date of injury until claimant returns to work; until 
 
            claimant is medically capable of returning to substantially 
 
            similar work to the work she was performing at the time of 
 
            injury; or, until it is indicated that significant improve
 
            ment from the injury is not anticipated, whichever occurs 
 
            first.  It was found that claimant left work on August 2, 
 
            1987 and did not return to work.  It was found that claimant 
 
            reached maximum healing on March 1, 1988.  Healing period 
 
            benefits will be awarded accordingly.
 
            
 
                 With reference to claimant's rate of compensation, it 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            was found from claimant's testimony that she earned $525 per 
 
            week and this was not materially different from an estimate 
 
            of earnings arrived at by averaging claimant's gross weekly 
 
            earnings from the gross revenues set forth in the evidence.  
 
            This estimate was arrived at by considering one-third of 
 
            those revenues as constituting claimant's real wages with 
 
            the balance devoted to paying the expenses of operating the 
 
            truck.  The use of this one-third figure comes from past 
 
            agency decisions which has held that one-third of gross 
 
            revenues roughly approximates owner-operator real wages 
 
            which are not to include the cost of operator or maintaining 
 
            the truck.  This ratio of wages to expenses from gross earn
 
            ings is also used in the insurance industry to set premium 
 
            rates for carriers.  See Tuttle v. Mickow Corporation, 
 
            Remand Decisions filed January 18, 1991 and December 20, 
 
            1988, Case No. 672377; Christensen v. Hagen, Inc., File No. 
 
            643433, Appeal Decision filed March 26, 1985.
 
            
 
                 Using the commissioner's rate booklet and the finding 
 
            of a gross weekly rate of $525.00 per week with marital 
 
            status and five exemptions, claimant's rate of compensation 
 
            as a matter of law is $335.74 per week.
 
            
 
                  IV.  Pursuant to Iowa Code section 85.27, claimant is 
 
            entitled to payment of reasonable medical expenses incurred 
 
            for treatment of a work injury.  However, claimant is enti
 
            tled to an order of reimbursement only if claimant has paid 
 
            those expenses.  Otherwise, claimant is entitled to an order 
 
            only directly the responsible defendants to make such pay
 
            ments.  See Krohn v. State, 420 N.W.2d 463 (Iowa 1988).
 
            
 
                 In the case at bar, the requested medical expenses were 
 
            found causally connected to the injury and constituted rea
 
            sonable and necessary treatment of the work injury.  Payment 
 
            of these expenses will be awarded.
 
            
 
                                      order
 
            
 
                 1.  The claim against defendant, Richard Hirschman, is 
 
            dismissed.
 
            
 
                 2.  Defendant Hawkeye shall pay to claimant 
 
            seventy-five (75) weeks of permanent partial disability 
 
            benefits at the rate of three hundred thirty-five and 74/l00 
 
            dollars ($335.74) per week from March 2, 1988.
 
            
 
                 3.  Defendant Hawkeye shall pay to claimant healing 
 
            period benefits from August 2, 1987 through March 1, 1988 at 
 
            the rate of three hundred thirty-five and 74/l00 dollars 
 
            ($335.74) per week.
 
            
 
                 4.  Defendant Hawkeye shall pay the medical expenses 
 
            listed in the prehearing report.  Claimant shall be reim
 
            bursed for any of the expenses paid by her.  Otherwise, 
 
            defendant Hawkeye shall pay the provider directly along with 
 
            any lawful late payment penalties imposed upon the account 
 
            by the provider.
 
            
 
                 5.  Defendant Hawkeye shall pay accrued weekly benefits 
 
            in a lump sum and shall receive credit against this award 
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            for all benefits previously paid.
 
            
 
                 6.  Defendant Hawkeye shall pay interest on weekly ben
 
            efits awarded herein as set forth in Iowa Code section 
 
            85.30.
 
            
 
                 7.  Defendant Hawkeye shall pay the costs of this 
 
            action pursuant to rule 343 IAC 4.33, including reimburse
 
            ment to claimant for any filing fee paid in this matter.
 
            
 
                 8.  Defendant Hawkeye shall file activity reports on 
 
            the payment of this award as requested by this agency pur
 
            suant to rule 343 IAC 3.l.
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
                 Signed and filed this ____ day of March, 1991.
 
            
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          LARRY P. WALSHIRE
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. N. Richard Willia
 
            Attorney at Law
 
            400 1st National Bank Bldg
 
            P O Box 1768
 
            Sioux City  IA  51102
 
            
 
            Mr. Richard P. Moore
 
            Attorney at Law
 
            2720 First Ave NE
 
            P O Box 1943
 
            Cedar Rapids  IA  52406
 
            
 
            Mr. Richard Hirschman
 
            2023 Campus
 
            Garden City  KS  67846
 
            REGULAR & CERTIFIED MAIL
 
            
 
                 
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                           1504; 3002; 5-1803
 
                           Filed March 26, 1991
 
                           LARRY P. WALSHIRE
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            EDNA S. HIRSCHMAN,            :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :       File No. 913245
 
            HAWKEYE REFRIGERATED SERVICES :
 
            CORP.,                        :    A R B I T R A T I O N
 
                                          :
 
                 Employer,                :       D E C I S I O N
 
                                          :
 
            and                           :
 
                                          :
 
            RICHARD HIRSCHMAN,            :
 
                                          :
 
                 Employer,                :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
            
 
            1504 - Defense of Independent Contractor
 
            Using the criteria set forth in Iowa Code section 85.61(3), 
 
            an owner-operator truck driver was found to be an employee 
 
            of the carrier because one of the conditions set forth in 
 
            the code was not met to qualify as an independent 
 
            contractor.
 
            
 
            
 
            3002 - Rate of Compensation of Owner-Operator
 
            Using a prior agency appeal decision, the reasonableness of 
 
            claimant's testimony estimating weekly earnings was 
 
            evaluated using one-third of gross revenues as an estimate 
 
            of wages in an owner-operator trucker situation.  It was 
 
            found that the claimant's testimony was reasonable using 
 
            this method and the claimant's testimony was used to set the 
 
            rate of compensation.
 
            
 
            
 
            5-1803 - Extent of Disability Benefits - Nonprecedential
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                           :
 
            MARCELLA MAY SALMEN,           :
 
                                           :
 
                 Claimant,                 :
 
                                           :
 
            vs.                            :
 
                                           :        File No. 913252
 
            JOHN MORRELL & COMPANY,        :
 
                                           :   A T T O R N E Y   L I EN
 
                 Employer,                 :
 
                                           :        D E C I S I O N
 
            and                            :
 
                                           :
 
            NATIONAL UNION FIRE (CRAWFORD),:
 
                                           :
 
                 Insurance Carrier,        :
 
                 Defendants.               :
 
            ___________________________________________________________
 
            
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This is a proceeding in arbitration brought by Harry 
 
            Smith, a former attorney for claimant, against the claimant 
 
            seeking approval for assertion of his attorney lien as a 
 
            result of services he allegedly performed with reference to 
 
            a claimed work injury on August 15, 1987.  On October 1, 
 
            1991, a hearing was held on Smith's petition and the matter 
 
            was considered fully submitted at the close of this hearing.  
 
            It should be noted that this decision is the only record of 
 
            the proceeding.  Smith waived reporting of the proceedings.  
 
            Neither claimant nor her attorney appeared for the hearing.  
 
            Claimant had been sanctioned for ignoring orders from this 
 
            agency.  This sanction involved the prohibition of further 
 
            evidence or activity by claimant.
 
            
 
                                      issues
 
            
 
                 The only issue submitted is the reasonableness of the 
 
            asserted attorney lien.
 
            
 
                                 findings of fact
 
            
 
                 The only evidence submitted was the affidavit from 
 
            Attorney Harry Smith attached to his petition seeking lien 
 
            approval.  From review of this affidavit and the agency 
 
            file, the undersigned finds as follows:
 
            
 
                 Marcella May Salmen is a claimant in litigation pending 
 
            before this agency in which she is seeking workers' compen
 
            sation benefits as a result of an alleged injury on August 
 
            15, 1987.  On June 27, 1989, claimant entered into an oral 
 
            contract providing for a contingency fee for attorney, Harry 
 
            Smith, of 25 percent of any monies gained as a result of 
 
            legal work on claimant's behalf.  On or about April 9, 1991, 
 
            claimant terminated attorney Smith's services as her attor
 
            ney for reasons unknown to Smith and she retained another 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            attorney, Jeffrey Myers.  Between June 27, 1989 and April 9, 
 
            1991, attorney Smith performed 32.25 hours of legal work on 
 
            behalf of claimant prior to his termination.  An itemization 
 
            of this time is attached to the affidavit.  At the time of 
 
            hearing, the case of Marcella May Salmen was still pending 
 
            before the Iowa Industrial Commissioner.  Attorney Smith 
 
            seeks approval of the lien up to a maximum of $6,763.50 sub
 
            ject to later review upon the completion of Salmen's litiga
 
            tion.  This amount represents the sum of $40 per hour for 
 
            each hour of legal service expended.
 
            
 
                 It is further found that Harry Smith is a licensed 
 
            attorney in this state and a specialist in workers' compen
 
            sation law.  Harry Smith has over 40 years of legal experi
 
            ence.  Neither a 25 percent contingent fee nor a straight 
 
            fee of $40 per hour would be unreasonable for his services.  
 
            Therefore, the assertion of the lien is reasonable, pending 
 
            later review when the litigation is completed.
 
            
 
                                conclusions of law
 
            
 
                 Attorney Harry Smith seeks approval pursuant to Iowa 
 
            Code section 86.39 of the amount of his statutory attorney's 
 
            lien under Iowa Code section 602.10116 against claimant's 
 
            workers' compensation benefits.  After review of the under
 
            lying contract for services, a lien of 25 percent upon 
 
            amount collected up to a sum certain arrived at by claiming 
 
            $40 per hour for time expended is deemed reasonable at this 
 
            time.  However, a final determination of the reasonableness 
 
            of the fees collected by the lien cannot be made until 
 
            claimant's case is finally resolved as a variety of factors 
 
            are involved, one of which is the result attained.  
 
            Kirkpatrick v. Patterson, 172 N.W.2d 259, 261 (Iowa 1969).  
 
            Indeed, this matter may be rendered moot if nothing is col
 
            lected by claimant.
 
            
 
                                      order
 
            
 
                 1.  Attorney, Harry Smith, may claim a lien on weekly 
 
            workers' compensation benefits payable to claimant in such 
 
            amount as will not exceed twenty-five percent (25%) of such 
 
            benefits up to a maximum of six thousand seven hundred 
 
            sixty-three and 50/l00 dollars ($6,763.50).
 
            
 
                 2.  Funds collected as a result of this lien approval 
 
            shall be treated in the manner prescribed by Iowa Code 
 
            section 602.10114 through 602.10119 and the Iowa Code of 
 
            Professional Responsibility, E.C. 9-5, D.R.9-102.  The par
 
            ties should note that this approval is not a determination 
 
            that the attorney fees collected as a result of the claimed 
 
            lien are reasonable.  Upon proper application to this 
 
            agency, such a determination may be made when contested pro
 
            ceedings are finally concluded.
 
            
 
            
 
            
 
                 Signed and filed this ____ day of October, 1991.
 
            
 
            
 
            
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          LARRY P. WALSHIRE
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Ms. Marcella May Salmen
 
            2900 Memorial Dr
 
            Sioux City  IA  51103
 
            REGULAR & CERTIFIED MAIL
 
            
 
            Mr. Harry J. Smith
 
            Attorney at Law
 
            P O Box 1194
 
            Sioux City  IA  51102
 
            
 
            Mr. Jeffrey T. Myers
 
            Attorney at Law
 
            509 9th St
 
            Sioux City  IA  51101
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                           5-1001
 
                           Filed October 16, 1991
 
                           LARRY P. WALSHIRE
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                           :
 
            MARCELLA MAY SALMEN,           :
 
                                           :
 
                 Claimant,                 :
 
                                           :
 
            vs.                            :
 
                                           :        File No. 913252
 
            JOHN MORRELL & COMPANY,        :
 
                                           :   A T T O R N E Y   L I EN
 
                 Employer,                 :
 
                                           :        D E C I S I O N
 
            and                            :
 
                                           :
 
            NATIONAL UNION FIRE (CRAWFORD),:
 
                                           :
 
                 Insurance Carrier,        :
 
                 Defendants.               :
 
            ___________________________________________________________
 
            
 
            
 
            
 
            5-1001 - Contested Lien Approval Proceeding
 
            Lien approval granted.
 
            
 
 
 
 
 
 
 
 
 
 
 
 
 
 
           BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
____________________________________________________________
 
          
 
HENRY L. BOLDEN,   
 
          
 
     Claimant, 
 
          
 
vs.       
 
                                   File No. 913261
 
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.   
 
___________________________________________________________
 
                        INTRODUCTION
 
 
 
This is a proceeding in arbitration filed by Henry L. Bolden, 
 
claimant, against John Morrell & Co., employer and National Union 
 
Fire Insurance Company, insurance carrier, defendants for benefits as 
 
the result of an injury which occurred on April 12, 1989.  A hearing 
 
was held in Sioux City, Iowa, on February 17, 1994, and the case was 
 
fully submitted at the close of the hearing.  Claimant was represented 
 
by Edward J. Keane.  Defendants were represented by Thomas M. Plaza.  
 
The record consists of the testimony of Henry L. Bolden, claimant, 
 
Steven Joyce, assistant personnel manager at the time of the injury; 
 
claimant's exhibits 1 through 9, 11 through 13, and 16 (Transcript 
 
pages 228 & 229); defendants' exhibits A through K and defendants' 
 
rebuttal exhibit L (Tran. pp. 234 & 235); joint exhibits 1 through 17, 
 
19, 21, 22, 25, 29 through 36, 38 through 42, 44 through 49, 51, 68, 
 
70, 72, 74, 77 through 83, 87, 89, 91, 93, 97, 98, 100 through 103, 
 
105, 107 through 112, 114 through 123, 126, 127, 132 through 134, 142, 
 
146 through 155 and 158 through 161 (Tran. pp. 235 & 236).  
 
 
 
Although the joint exhibit list and the transcript show that joint 
 
exhibit 135 was admitted into evidence this is an error, and this 
 
deposition was not admitted into evidence.  Claimant's exhibits 10 and 
 
15 were excluded because they were not timely served but it was agreed 
 
that they would be admitted into evidence if claimant's counsel could 
 
demonstrate to the deputy and the defense counsel after the hearing 
 
that they were timely served on defendants prior to the hearing by 
 
showing a letter of transmission with a service stamp showing the date 
 
that they were served.  Claimant's counsel did not provide such proof 
 
after the hearing and therefore claimant's exhibits 10 and 15 remain 
 
excluded (Tran. pp. 228 & 229).  Claimant's exhibit 14 was withdrawn by 
 
claimant (Tran. p. 229).  
 
 
 
With respect to the joint exhibits, the parties had proposed to 
 
introduce a stack of exhibits approximately five inches high, but at 
 
the request of the deputy, the attorneys inventoried the exhibits and 
 
mutually agreed to reduce the stack to approximately two and one-half 
 
inches of paper (Tran. pp. 9, 14, 15, 45, 211, & 235).  The parties 
 
were ordered to submit a new exhibit list (Tran. pp. 236 & 237) but did 
 
not do so.  However, this resulted in no particular inconvenience for 
 

 
 
 
 
 
 
 
 
 
 
 
 
 
the reason that the pen and ink changes on the original joint exhibit 
 
list provided a satisfactory list of exhibits.
 
 
 
Also present in the courtroom at the time of the hearing were Patricia 
 
Bolden, claimant's wife, Nancy Ford, Mr. Keane's legal assistant, and 
 
Leslie Walker, Mr. Plaza's legal assistant.  The deputy ordered a 
 
transcript of the hearing.  Both attorneys submitted outstanding 
 
post-hearing briefs.
 
 
 
                           STIPULATIONS
 
 
 
The parties stipulated that claimant sustained an injury on April 12, 
 
1989, which arose out of and in the course of employment with employer; 
 
that the injury was the cause of temporary disability; and that the 
 
rate of compensation in the event of an award is $227.82 per week 
 
(Tran. pp. 10 & 11).
 
 
 
                             ISSUES
 
 
 
The parties submitted the following issues for determination at the 
 
time of the hearing (Tran. pp. 11 & 12).  
 
 
 
Whether claimant is entitled to temporary disability benefits, and if 
 
so, the extent of benefits to which he is entitled;  
 
 
 
Whether the injury was the cause of permanent disability to either 
 
claimant's low back or his left hip;
 
 
 
Whether claimant is entitled to permanent disability benefits, and if 
 
so, the nature and extent of benefits to which he is entitled; and
 
 
 
Whether claimant is entitled to certain medical benefits.
 
preliminary matter
 
 
 
The chief issue in this case is whether the fall which occurred on 
 
April 12, 1989, aggravated a preexisting condition of avascular 
 
necrosis which in turn caused a left hip replacement and permanent 
 
disability (Tran. pp. 18-25).  More specifically, claimant contends 
 
that several doctors failed to diagnose the avascular necrosis until an 
 
MRI ordered by Horst G. Blume, M.D., on August 28, 1991, some two years 
 
and four months after the initial fall injury which occurred on April 
 
12, 1989 (Tran. pp. 26, 27, 68; Exhibit 34).  Defendants contend that 
 
there was no missed diagnosis, or misdiagnosis, with respect to the 
 
avascular necrosis (Tran. pp. 31-40, 43 & 44).  In addition, defendants 
 
contend that claimant injured his left hip in an intervening automobile 
 
accident on November 5, 1990 and that this injury to the left hip was 
 
more severe than claimant's fall at work (Tran. p. 38).  Claimant is 
 
also presenting a claim for a permanent injury to his low back from the 
 
fall on April 12, 1989, independent of the left hip problem (Tran. p. 
 
25).
 
 
 
                          FINDINGS OF FACT
 
 
 
It is determined that claimant is entitled to 10.857 weeks of temporary 
 
total disability benefits for three different periods of time, (1) 
 
April 12, 1989 to May 3, 1989, which is three weeks, (2) May 25, 1989 
 
to July 17, 1989, which is 7.571 weeks and (3) July 24 and July 25, 
 
1989, which is two days or .286 weeks.
 
 
 
It is determined that the fall injury of April 12, 1989, did not 
 
aggravate a preexisting condition of avascular necrosis in claimant's 
 
left hip; and therefore this injury was not the cause of the hip 
 
arthroplasty which was performed on April 1, 1992; and therefore the 
 
injury did not cause the resulting permanent impairment from the left 
 
hip arthroplasty.  
 
 
 
It is determined that the fall of April 12, 1989, was not the cause of 
 
any permanent disability to claimant's lumbar spine or his left lower 
 
extremity.
 
 
 
It is determined that claimant is not entitled to any permanent 
 
disability benefits resulting from the injury of April 12, 1989.
 
 
 
It is determined that claimant is not entitled to recover the medical 
 
expenses which he submitted in evidence in this case.
 
 
 
Claimant, born September 6, 1954, was 34 years old at the time of the 
 
injury (Tran. p. 47).  His past employments are best summarized in 
 
defendants' exhibit J, page 24 and consist primarily of manual labor 
 
types of work (Tran. pp. 49-51).  Claimant moved from Louisiana to 
 
Sioux City, Iowa and started to work for employer in August of 1987 
 
(Tran. p. 48; Jt. Ex. 42).  He performed various tasks such as 
 
chiseling heads, pulling lard, driving hogs, putting the hogs through 
 

 
 
 
 
 
 
 
 
 
 
 
hot water, working on the fire grille and working on the rolling table 
 
(Tran. p. 51).
 
 
 
Claimant denied any pain in his left hip or lower back prior to April 
 
12, 1989.  He testified that he had no problems of any kind performing 
 
his jobs for employer, however, he did admit to some absenteeism or 
 
tardiness prior to this injury (Tran. pp. 53 & 54).
 
 
 
Claimant testified that on April 12, 1989, he put a hook into a hog and 
 
was pulling with all of his might when he slipped on the bloody floor 
 
and fell down.  He related that his left hip hit a pipe by the wall and 
 
then he "seated down" on the cement floor.  He said that his left elbow 
 
also hit the cement floor.  Claimant further clarified that both his 
 
left hip and his lower back contacted the cement floor (Tran. pp. 17, 
 
56-60).  Claimant said that he felt immediate pain in his left hip, low 
 
back and left elbow (Tran. p. 61).  Claimant testified that he tried to 
 
continue to work that day but was unable to do so and he requested to 
 
go to the emergency room (Tran. pp. 61-63; Jt. Ex. 132, p. 6).  
 
 
 
The medical record at the Marian Health Center verifies that claimant 
 
was seen at the emergency room on April 12, 1989 because he slipped and 
 
fell at work striking his left elbow and left lower back and hip on an 
 
iron pipe; and that he was experiencing pain in his left elbow and 
 
lower back and hip (Tran. p. 64; Jt. Ex. 44, p. 1).  The admitting 
 
nurse noted that claimant complained of pain in his left hip and elbow, 
 
but no deformities were noted; he could move both joints, but he did 
 
have a limp (Jt. Ex. 44, p. 4).  
 
 
 
Claimant testified that the fall caused a knot on his elbow but S. E. 
 
Vlach, M.D., the emergency room doctor, recorded on April 12, 1989, 
 
that "Examination of the left elbow revealed no obvious bruising, 
 
swelling, or erythema." (Jt. Ex. 44, p. 3).  The doctor did find some 
 
point tenderness over the olecranon but otherwise his examination of 
 
both upper extremities was normal.  The doctor also said there was 
 
tenderness in his left buttock and his lower back but otherwise his 
 
examination of his lower extremities was also normal.
 
 
 
The impression which Dr. Vlach recorded on the emergency room record 
 
was (1) contusion, left buttock, left paralumbar area-secondary to a 
 
fall and (2) osseous contusion, olecranon area of the left elbow.  Dr. 
 
Vlach's impression did not include or mention any physical harm to the 
 
left hip.  He took claimant off work on April 12, 1981, until claimant 
 
could see Daniel M. Youngblade, M.D., on Monday, April 17, 1989.
 
 
 
In a report to employer on April 12, 1989, Dr. Vlach said that his 
 
physical findings were pain and stiffness in the left elbow, left 
 
buttock and left lumbar area.  His diagnosis was muscular contusion of 
 
the left buttocks, left lumbar area and osseous contusion of the left 
 
elbow.  His diagnosis did not mention any physical injury to the hip.
 
Thus, even though claimant complained of pain in his left hip and 
 
walked with a limp, Dr. Vlach did not record any objective evidence of 
 
injury to the left hip on either the emergency room record or the 
 
report submitted to employer (Jt. Ex. 7 & 44).  
 
 
 
Thus, there is no evidence from Dr. Vlach on April 12, 1989, that 
 
claimant was suffering from avascular necrosis or that he had sustained 
 
a permanent injury to his low back.
 
 
 
Dr. Youngblade saw claimant and made reports to the employer on April 
 
17, 1989, April 19, 1989, April 24, 1989, April 27, 1989 and May 2, 
 
1989, and each time he gave a diagnosis of low back strain.  He 
 
continued to keep claimant off work until the office visit of May 2, 
 
1989, at which time he released claimant to return to work on May 3, 
 
1989, light duty, gradual increase in function, even part-time work if 
 
needed (Jt. Ex. 8, p. 12).  Dr. Youngblade saw claimant again on May 
 
16, 1989, for muscle strain of the left lower back and referred 
 
claimant to John J. Dougherty, M.D., an orthopedic surgeon, for an 
 
evaluation (Jt. Ex. 13).
 
 
 
Dr. Youngblade only refers to the hip one time.  In his office notes of 
 
April 27, 1989, Dr. Youngblade said that claimant complained of pain in 
 
his left buttock and hip region.  However, in his office notes in 
 
evidence for April 17, 1989, April 24, 1989, April 27, 1989 and May 2, 
 
1989 and May 16, 1989, he makes no other mention of claimant's hip or 
 
hips and he made no findings of any kind with respect to a hip injury 
 

 
 
 
 
 
 
 
 
 
(Jt. Ex. 16, pp. 2 & 3).
 
 
 
Dr. Youngblade wrote to claimant's counsel on May 31, 1989.  He said 
 
that the only physical injury was minor.  Dr. Youngblade wrote, 
 
   
 
   His abrasions which were minor cleared without any problems, but he 
 
continued to complain of stiffness and soreness in the left flank, 
 
posterior lateral rib cage region and down toward his left hip area.  
 
It was very difficult to even examine this patient because he wouldn't 
 
cooperate in reference to attempts of motion and movement, lifting of 
 
leg, etc.. He was advised to continue his conservative treatment of 
 
this area on each occasion.
 
   ...
 
   
 
   On the 04/27/89 visit he complained bitterly of his left lateral 
 
back and buttocks area and any attempt at even feeling the area to 
 
examination he would jump away from me and push away stating it was too 
 
painful and too uncomfortable.
 
   ...   
 
   
 
   The patient is extremely difficult to examine, converse with and/or 
 
get any distinct feeling as to his degree of physical incapacitation 
 
because of either refusal to allow an adequate examination or because 
 
of difficulty conversing with the patient. 
 
(Jt. Ex. 14, pp. 1 & 2).
 
 
 
Also, upon examination, Dr. Youngblade found the bloody stools which 
 
claimant attributed to this injury were due to a "a rather large 
 
internal hemorrhoid and a fissure" aggravated by constipation from his 
 
inactivity (Jt. Ex. 14, p. 2).
 
 
 
Dr. Youngblade saw claimant one more time on September 5, 1989, for 
 
pain in the buttock area and low back pain.  The doctor said that 
 
claimant had been to therapy, an MRI was negative, and all studies to 
 
date were negative (Jt. Ex. 15).  
 
 
 
Thus, the reports, office notes and letters of Dr. Youngblade in the 
 
first five months after the injury do not support a physical injury to 
 
claimant's hip, but rather only muscle sprain and left lower back 
 
strain.  There is no evidence of avascular necrosis of the hips.  There 
 
is no evidence of a permanent back injury, permanent impairment or 
 
permanent back disability (Jt. Ex. 8-15).  
 
 
 
Dr. Youngblade's records do establish that claimant was taken off work 
 
from April 12, 1989 to May 3, 1989, a period of three weeks (Jt. Ex. 
 
123, p. 6).
 
 
 
Claimant saw Dr. Dougherty on May 25, 1989 and Dr. Dougherty took him 
 
off work again on that date.  The doctor found him difficult to examine 
 
and indicated that claimant would not cooperate with his examination.  
 
Dr. Dougherty said that the x-rays of the hips and pelvis looked "ok."  
 
He said that the disc spaces looked pretty well maintained.  He said 
 
that the transverse processes looked "ok."   He said there was no 
 
instability on movement.  Dr. Dougherty's diagnosis was apparent 
 
contusion of the left ileum and low back with possible lumbosacral 
 
strain and possible lumbar disc syndrome (Jt. Ex. 25, p.1; Jt. Ex. 30, 
 
pp. 1 & 2).  Later Dr. Dougherty added, "I don't think we've got a 
 
herniated disc.  Disc spaces all look well maintained." (Jt. Ex. 31, p. 
 
4).  
 
 
 
On June 1, 1989 and June 13, 1989, Dr. Dougherty said that the pain was 
 
over his trocanter rather than his low back.  Dr. Dougherty tried 
 
numerous treatment modalities --- wygesic, a back brace, injections, 
 
physical therapy, electric stimulation and ultra sound --- but none of 
 
it provided claimant with any relief (Ex. 31, pp. 2-4; Ex. 81, p. 2).  
 
Dr. Dougherty then sent claimant to the Back Clinic for evaluation.
 
Claimant was seen at the Back Clinic on June 14, 1989 by Brian Nelson, 
 
M.D., and again on June 21, 1989.  Dr. Nelson said that he was 
 
requested to examine claimant for low back pain, numbness in the 
 
posterior aspect of the left leg radiating down to the ankle, and pain 
 
in the buttock.  Dr. Nelson reported, "Even with very light palpation 
 
of only a few ounces, the patient groaned, grimaced and jumped.  ... A 
 
very very light percussion caused the patient to jump and cry out in 
 
pain and give way.  There is no palpable muscle spasm." (Jt. Ex. 17, p. 
 
1).  
 
 
 
Dr. Nelson continued, 
 

 
 
 
 
 
 
 
 
 
 
 
Patient was thoroughly tested in the signs of non-organic pathology. 
 
 
 
 He was positive in every single one, including hypersensitivity, 
 
positive Hoover test on the left, positive pinch test, positive pain 
 
response with trunk twisting and neck compression, a non-anatomic 
 
sensory exam, positive cogwheeling weakness, and a non-anatomic 
 
palpation exam. 
 
(Jt. Ex. 17, p. 2).  
 
 
 
The doctor said straight leg raising was negative in the sitting 
 
position bilaterally and strongly positive in the supine position.  Dr. 
 
Nelson's assessment was, "Low back pain, left buttock pain, left leg 
 
numbness of uncertain etiology.  Patient had no objective findings on 
 
physical exam today and was positive in every sign of non-organic 
 
pathology suggesting a significant emotional component to this pain." 
 
(Jt. Ex. 17, p. 2).
 
 
 
On June 21, 1989, Dr. Nelson said that claimant was temporarily 
 
disabled from work pending some rehabilitation training (Jt. Ex. 17, p. 
 
2).  He was taken off work on that date, June 21, 1989.  After a total 
 
of four weeks of rehabilitation on July 12, 1989, claimant was no 
 
better.  Dr. Nelson then gave the following assessment:  "This patient 
 
appears to be grossly exaggerating his symptoms.  It's been 4 months 
 
since his injury and it should be well healed by this time.  In my 
 
opinion, this patient is ready to return to work without restriction 
 
and there will be no permanent impairment." (Jt. Ex. 22).
 
 
 
Dr. Nelson said that formal rehabilitation was terminated and that 
 
claimant was to be transitioned to home exercise.  He further stated, 
 
"On 17 July 1989, patient may return to his regular duties at work 
 
without restriction. ... Patient has reached maximum medical 
 
improvement and there is no permanent impairment in my opinion." (Jt. 
 
Ex. 22; Tran. p. 69).
 
 
 
Thus, Dr. Nelson found no permanent impairment of any kind.  Dr. Nelson 
 
did not find that the claimant was suffering from preexisting avascular 
 
necrosis.  In fact he did not even treat any hip complaints.  Dr. 
 
Nelson did not find that the injury was a cause of any permanent 
 
injury, permanent impairment or permanent disability to claimant's low 
 
back.
 
 
 
Dr. Nelson's period of temporary total disability from June 21, 1989 to 
 
July 17, 1989 is a period of 3.714 weeks, but it is not significant 
 
because it falls within the longer period of temporary total disability 
 
given to claimant by Dr. Dougherty.  Dr. Dougherty took claimant off 
 
work on May 25, 1989 and returned claimant to work light duty and to 
 
regular duty as tolerated on July 17, 1989, a period of 7.571 weeks 
 
(Jt. Ex. 29, 30 and 146).  Therefore, claimant is entitled to the 
 
longer period of 7.571 of temporary total disability benefits.
 
Shortly after Dr. Dougherty released claimant to return to work on July 
 
17, 1989, claimant went to the emergency room at the Marian Health 
 
Center on July 24, 1989, contending that he was unable to tolerate 
 
light duty.  The emergency room physician said that claimant should 
 
return to work on July 26, 1989, after recheck by Dr. Dougherty on July 
 
25, 1989 (Jt. Ex. 46, p. 1-3).  
 
 
 
Thus, claimant is entitled to an additional two days of temporary total 
 
disability on July 24 and July 25, 1989.  
 
 
 
A bone scan ordered by Dr. Dougherty on June 1, 1989 (Jt. Ex. 31, p. 3) 
 
and performed at Marian Health Center on June 6, 1989, which included 
 
the pelvis, spine and a portion of the lower extremities showed no 
 
evidence of avascular necrosis of the femoral heads and no evidence of 
 
bony injury to the bony elements of the lumbar spine (Jt. Ex. 133, p. 
 
8).
 
 
 
An EMG and NCV ordered by Dr. Dougherty on June 13, 1989 (Jt. Ex. 31, 
 
p. 3) and performed on July 10, 1989, on the left leg, including the 
 
gluteus muscle and the lumbar paraspinal muscles, was within normal 
 
limits with no evidence of radiculopathy (Jt. Ex. 33).  
 
 
 
On June 27, 1989 and July 13, 1989, Dr. Dougherty noted that the 
 
claimant still did not cooperate with his examination.  A TENS unit was 
 
also ineffective (Jt. Ex. 31, p. 2).
 
 
 
An MRI ordered by Dr. Dougherty on August 2, 1989 (Jt. Ex. 31, p. 2) 
 
and performed at Marian Health Center on August 4, 1989 demonstrated no 
 

 
 
 
 
 
 
 
 
 
disc herniation and there was no mention of facet joint abnormalities 
 
(Jt. Ex. 133, p. 7).  This MRI included L3-L4, L4-L5 and L5-S1.  The 
 
radiologist recorded that all lumbar discs have a normal appearance.  
 
There was no evidence of an epidural mass.  A disc herniation was not 
 
detected.  Bone marrow signal had a normal appearing brightness.  The 
 
impression was that it was a negative study (Jt. Ex. 47, p. 4; Tran. p. 
 
67).
 
 
 
An MMPI ordered by Dr. Dougherty on July 28, 1989 (Jt. Ex. 31, p. 2) 
 
and performed at Marian Health Center on August 17, 1989, by James R. 
 
Hairston, Ph.D., disclosed the following:
 
   
 
   The most elevated clinical scale (1) within Mr. Bolden's personality 
 
profile indicates that he may present a long history of vague physical 
 
complaints and ailments.  His exaggerate complaints will be 
 
predominantly hypochondriacal in nature, even if he also has some 
 
objective physical conditions.  He is not psychologically minded; he 
 
has difficulty seeing how his physical complaints could be related to 
 
his psychological functioning.  His complaints may be used to control 
 
and manipulate others.  This pattern represents a stable, chronic mode 
 
of adjustment that is difficult to modify.
 
   
 
   This client may be excessively concerned about vague physical 
 
complaints and may use them to manipulate and control others.  He may 
 
be cynical, whiney [sic], demanding of attention, and generally 
 
negative and pessimistic.  The prognosis for either psychological or 
 
physical intervention is guarded.  He may focus on vague bodily 
 
complaints, and resist any form of resolution.  Conservative 
 
interventions reassuring this client about his bodily complaints are 
 
indicated.  This client's response set indicates that he may be 
 
inclined toward the addiction to alcohol or other chemicals.  
 
This personality assessment is based primarily on the client's 
 
voluntary responses to the test items as they appear on the Minnesota 
 
Multiphasic Personality Inventory (MMPI) (Jt. Ex. 48, pp. 2 & 3).
 
Claimant last saw Dr. Dougherty on August 29, 1989 (Jt. Ex. 48, pp. 2 & 
 
3).  His clinical testing that day was normal.  Dr. Dougherty 
 
concluded, "I don't know what to tell the guy.  I can't find anything 
 
wrong with him." (Jt. 31, p. 1).  
 
 
 
Thus, all objective tests were normal.  A bone scan, an EMG and NCV 
 
test, and an MRI produced no evidence of injury of any kind.  Dr. 
 
Dougherty used about every type of treatment modality used for back 
 
strain --- medications, a back brace, injections, physical therapy, 
 
electrical stimulation and ultra sound --- and claimant failed to 
 
improve.  The MMPI suggested that claimant exaggerated his complaints 
 
of a hypochondriacal nature in an attempt to control and manipulate 
 
others.  
 
 
 
Thus, Dr. Dougherty found no evidence of injury other than temporary 
 
back strain.  He did not treat any hip complaints.  Dr. Dougherty does 
 
not provide any evidence of preexisting avascular necrosis.  Dr. 
 
Dougherty's thorough and comprehensive testing and treatment did not 
 
demonstrate that the injury was the cause of any permanent injury, 
 
permanent impairment or permanent disability to claimant's low back.
 
Claimant requested and received an independent medical examination from 
 
Quentin J. Durward, M.D., a neurosurgeon on February 26, 1990.  Some 
 
excerpts from Dr. Durward's examination are as follows:
 
   
 
   Physical examination demonstrates a very fit looking black man who 
 
seems to carry an expression of pain on his face.  examination of his 
 
back shows a very muscular appearing back.  He did not have true muscle 
 
spasms.
 
...
 
   
 
   His muscle bulk was normal.  His power examination was very 
 
difficulty to test because there was a lot of giving way when testing 
 
all muscle groups.  He did not appear to be giving much effort and in 
 
fact his counter muscles contracted at the same time I gave him 
 
commands to move a certain muscle.
 
...
 
   
 
   I have reviewed his EMG study which was normal and the MRI scan 
 
which also looked absolutely normal to me.  A bone scan was also 
 
normal.
 

 
 
 
 
 
 
 
 
 
...   
 
   
 
   This patient does not have any hard physical examination evidence of 
 
ongoing neurological deficit.  In fact there were some findings on his 
 
examination which makes one suspect a lack of effort, for example 
 
during muscle testing.  The peculiar findings on straight leg raising 
 
are not normally associated with pathologic abnormalities.
 
...
 
   
 
   Thus I am unable to find definite clinical evidence of root 
 
irritation or radiological abnormality which would support diagnosis of 
 
a ruptured disk etc.  He is still taking 4 narcotic tablets per day and 
 
I would recommend these be discontinued.  I am not sure how much real 
 
pain he is having but I suspect it is a small amount.  Further 
 
management options I think would be helped by the assessment of a pain 
 
clinic.
 
(Jt. Ex. 126, pp. 1 & 2).
 
 
 
Thus, Dr. Durward, an examiner of claimant's own choice, was not 
 
requested to examine any hip complaints.  He did not find any 
 
preexisting avascular necrosis.  He did not find that this injury 
 
caused any permanent injury, permanent impairment or permanent 
 
disability to claimant's lumbar spine.
 
 
 
Claimant testified that after Dr. Youngblade and Dr. Dougherty could 
 
not find anything wrong with him that he chose to see a chiropractor, 
 
Jeffrey Chicoine, D.C., after he read an advertisement that he would 
 
receive $30.00 off of his first examination (Tran. pp. 70 & 71).  
 
Claimant testified, "I was in so much agony and pain and I wasn't 
 
getting no other kind of medical attention so I went to see Dr. 
 
Chicoine."  (Tran. p. 74).  
 
 
 
Dr. Chicoine treated claimant from April 7, 1990 through July 30, 1992 
 
for lumbar disc syndrome, radiculitis in the left leg and lumbar 
 
subluxation.  On May 8, 1990, Dr. Chicoine said that this was "causally 
 
connected to the accident in question."    This was the information the 
 
doctor supplied to the disability examiner at the Division of 
 
Vocational Rehabilitation Services (Jt. Ex. 68, p. 1-3).  Dr. Chicoine 
 
also wrote the same letter to Judge Franklin D. Carroll, on January 18, 
 
1991 (Jt. Ex. 74, pp. 1-3).  
 
 
 
In between letters claimant was in an automobile accident on November 
 
5, 1990, that injured his neck and exacerbated his lumbar spine.  
 
Again, Dr. Chicoine stated, "The objective findings and subjective 
 
complaints are causally related to the accident in question." (Jt. Ex. 
 
74, p. 3).  However, Dr. Chicoine did not say which accident, the work 
 
injury of April 12, 1989 or the automobile accident on November 5, 
 
1990.  Thus, this sentence used by Dr. Chicoine appears to be rather a 
 
stock or boiler plate sentence which he uses in all cases rather than 
 
one he uses in any discriminating manner based upon the particular 
 
report that he is dictating.  
 
 
 
Dr. Chicoine wrote essentially the same letter again to claimant's 
 
counsel on October 29, 1991.  In this letter Dr. Chicoine stated, "It 
 
is also important to note that this patient complained of sexual 
 
impotency which he felt was caused after the work accident which 
 
indicates nerve pressure on the pudendal nerve associated with the 
 
lower lumbar region." (Jt. Ex. 77, p. 3).  This condition of sexual 
 
impotency is mentioned for the first time some two and one-half years 
 
after the work injury and has never been mentioned before in any of the 
 
previous medical notes and has not been mentioned in any of the 
 
subsequent medical notes.  This claim of sexual impotency tends to 
 
prove the statements made by the psychologist in the report of the 
 
results of the MMPI.  
 
 
 
On March 30, 1992, Dr. Chicoine assessed a 15 percent permanent 
 
impairment of the whole person for claimant's cervical injury which was 
 
caused by the automobile accident (Jt. Ex. 79).  However, Dr. Chicoine 
 
did not evaluate the lumbar injury which occurred at work on April 12, 
 
1989.
 
 
 
Thus, there is no evidence that Dr. Chicoine treated claimant's left 
 
hip.  There is no evidence of preexisting avascular necrosis in either 
 
of claimant's hips.  There is no evidence that the work injury 
 
aggravated a preexisting avascular necrosis.  There is no evidence from 
 

 
 
 
 
 
 
 
 
 
 
 
 
 
Dr. Chicoine that the work injury of April 12, 1989 caused any 
 
permanent injury, permanent impairment or permanent disability to 
 
claimant's low back.
 
 
 
Dr. Chicoine referred claimant to Horst G. Blume, M.D., a neurosurgeon, 
 
in June of 1990 (Tran. p. 75).  Dr. Blume treated claimant from June 
 
13, 1990 through September 20, 1993 (Tran. pp. 81-122).  On June 13, 
 
1990, Dr. Blume mentioned for the first time in the medical records 
 
that claimant had been having headaches for the last two years in 
 
addition to his other symptoms.  This again bears out the evaluation of 
 
the psychologist at the time of claimant's MMPI examination.  Dr. Blume 
 
noted that all of the objective tests on his lumbar spine and his lower 
 
extremities were normal and proceeded with conservative treatment (Jt. 
 
Ex. 81, pp. 1-5).  
 
 
 
Dr. Blume administered a nerve block on June 28, 1990 (Jt. Ex. 82, 83 & 
 
89).  On August 13, 1990, claimant mentioned numbness in his arms for 
 
the first time (Jt. Ex. 81).  This was prior to his automobile accident 
 
and again bears out the diagnoses and prognosis of the psychologist at 
 
the time of claimant's MMPI.  Dr. Blume performed a neurotomy of L4-L5 
 
and L5-S1 and S1-S2 on September 13, 1990 (Jt. Ex. 91, p. 1).
 
 
 
Claimant reported to Dr. Blume that he was in an automobile accident on 
 
November 5, 1990.  He said that he was broadsided by a lady that ran a 
 
stop sign.  Dr. Blume recorded that the impact threw claimant's nephew 
 
into claimant which caused claimant to hit the driver's door.  Dr. 
 
Blume reported that, "Patient felt immediate severe pain in his left 
 
hip and his low back." (Jt. Ex. 91, p. 1).  Claimant also indicated 
 
that he had injured his neck and shoulders.  Claimant testified that he 
 
did not hurt his hip in the automobile accident (Tran. p. 79) and he 
 
had no increase in symptoms from the car accident (Tran. p. 80).  
 
Damage to claimant's car in the auto accident was $1,364.21 (Def. Ex. 
 
E, p. 15).  Claimant denied on cross-examination that he injured his 
 
hip in the automobile accident but defendants' attorney impeached 
 
claimant's testimony with a prior deposition statement in which 
 
claimant admitted that he hit his left hip against the handle of the 
 
car door which increased his hip pain and made it worse (Def. Ex. L, 
 
pp. 29 & 30).
 
 
 
A myelogram on January 7, 1991 demonstrated a mild central protruded 
 
disc at L4-L5 (Jt. Ex. 49, pp. 3, 6, & 7).  A CT scan following the 
 
myelogram also disclosed a mild central bulging disc at L4-5 (Jt Ex. 
 
49, p. 13).  On January 8, 1991, Dr. Blume noted that this mild disc 
 
protrusion did not warrant surgery.  Dr. Blume stated, "I told the 
 
patient there was no indication for doing any surgical procedure." (Jt. 
 
49, p. 8).  
 
 
 
On January 16, 1991, Dr. Blume wrote, "Patient has pain in the left 
 
lumbar and it radiates to the left lateral hip.  The lateral hip is 
 
also swollen and the pain radiates into the left buttock and this is 
 
constant." (Jt. Ex. 93).
 
 
 
It would seem that any swelling in the left hip on January 16, 1991 
 
would be more likely attributable to the automobile accident on 
 
November 5, 1990 than the work injury on April 12, 1989.
 
 
 
On February 26, 1991, a third injection had not helped his low back and 
 
left leg pain (Jt. Ex. 97).  On March 26, 1991, Dr. Blume said his back 
 
and leg pain was worse.  The myelogram and CT scan following the 
 
myelogram on January 7, 1991, which was subsequent to the automobile 
 
accident, indicated a protruded disc at L4-L5 (Jt. Ex. 98).  On July 2, 
 
1991, a diskogram performed by Dr. Blume at the L4-L5 level was 
 
completely normal (Jt. Ex. 51, pp. 1-4).  On July 16, 1991, Dr. Blume 
 
said there were not enough findings to justify surgery (Jt. Ex. 100).
 
 
 
Thus, on July 16, 1991, which was two years and three months after the 
 
work injury, Dr. Blume, who had been treating claimant for over a year 
 
since June 13, 1990, had not identified preexisting avascular necrosis, 
 
and had not found any permanent impairment or disability to claimant's 
 
low back other than the mild disc protrusion at L4-L5 which did not 
 
appear on objective testing until after the automobile accident on 
 
November 5, 1990.  The previous bone scan, EMG/NCV, an MRI of Dr. 
 
Dougherty after the work injury and before the automobile accident 
 
showed a completely normal spine.  
 

 
 
 
 
 
 
 
 
 
 
 
Earlier, on July 6, 1990, shortly after claimant began treatment with 
 
Dr. chicoine and Dr. Blume, claimant was examined by Joel T. Cotton, 
 
M.D., a neurologist, pursuant to an independent medical examination for 
 
defendants.  Dr. Cotton reported on July 9, 1990.  He reviewed medical 
 
records and performed an extensive physical examination and reported as 
 
follows:
 
   
 
   Clinical Impression:  This patient's neurological examination is 
 
normal.  There is normal strength in his legs.  He does not have any 
 
limp or evidence of difficulty with walking.  There are non-anatomical 
 
sensory abnormalities in both lower extremities which are not in 
 
keeping with anatomical patterns and could not be explained on the 
 
basis of any injury to the spinal cord, nerve roots, or peripheral 
 
nerves.  This individual in my opinion has no neurological injury.  He 
 
specifically is without neurological impairment and in my opinion, 
 
there is no permanent partial disability in the individual.  His 
 
subjective complaints of pain and numbness are entirely unaccompanied 
 
by any objective abnormalities on his neurological examination.  My 
 
examination is entirely in keeping with that of a board certified 
 
independent neurosurgeon,
 
...
 
   
 
   There is no reason this individual could not pursue all usual and 
 
customary activity without restriction in my opinion.
 
...
 
   
 
   There is certainly no evidence of a "pinched nerve" or "disk" in my 
 
opinion in this man's low back accounting for his current complaints.  
 
I do not feel that any additional medical testing or treatment is 
 
necessary at this time and would not be of any benefit to this 
 
individual's symptoms.
 
(Jt. Ex. 35)
 
 
 
Thus, Dr. Cotton did not find any preexisting avascular necrosis nor 
 
did he find any impairment or disability in claimant's low back.
 
Likewise, the efficacy of the treatment of Dr. Chicoine and Dr. Blume 
 
is called into question even before they began any treatment of 
 
claimant.
 
 
 
An MRI ordered by Dr. Blume on August 28, 1991, disclosed that claimant 
 
had bilateral avascular necrosis of the hips, with the left hip 
 
demonstrating the most advanced fibrous changes.  The right hip 
 
demonstrated various phases of AVN (Jt. Ex. 34, p. 102).  Dr. Blume 
 
then referred claimant to Kevin L. Garvin, M.D., an orthopedic surgeon, 
 
at the University of Nebraska Medical Center in Omaha, Nebraska (Tran. 
 
p. 75).
 
 
 
Dr. Garvin examined claimant on October 4, 1991.  He reported that 
 
claimant told him that it was necessary for claimant to walk with a 
 
cane at all times and that he could not climb due to hip pain.  Dr. 
 
Garvin's impression was avascular necrosis, bilateral femoral heads 
 
with early degenerative changes on the left femoral head.  Dr. Garvin 
 
said that total hip arthroplasty was not recommended at that time 
 
because (1) claimant only had early degenerative changes in the hip and 
 
(2) because of his young age (Jt. Ex. 1).  On October 23, 1991, Dr. 
 
Garvin wrote to claimant's counsel stating, 
 
   
 
   It is my overall opinion that the avascular necrosis is not related 
 
to the trauma of the left hip since the process is occurring in both 
 
hips.  Whether the process began prior to or after April 12, 1989, is 
 
purely speculative.  I suspect that the fall did aggravate the 
 
condition and that the condition was pre-existing but not clinically 
 
evident.    (Ex. 2).
 
 
 
Dr. Garvin added that, "Mr. Bolden has 17% impairment of the left lower 
 
extremity or 7% of the whole body." (Ex. 2).
 
 
 
Dr. Garvin is an assistant professor, licensed to practice in three 
 
states.  He is a board certified medical examiner and a board certified 
 
orthopedic surgeon, who specializes in hip diseases, with an extensive 
 
and noteworthy curriculum vitae (Jt. Ex. 3, p. 1).  He was not able to 
 
say that the avascular necrosis was present on April 12, 1989.  He said 
 
that would be "purely speculative." (Ex. 2).  It was his opinion that 
 
the AVN was not related to trauma because the process was occurring in 
 

 
 
 
 
 
 
 
 
 
 
 
 
 
both hips.
 
 
 
Skipping ahead chronologically in this case, Dr. Garvin wrote to 
 
defendants' counsel on September 28, 1993.  Pertinent excerpts from his 
 
letter are as follows:
 
   
 
   I was never told of any other injury and specifically was not aware 
 
of the automobile accident the claimant was involved in on November 5, 
 
1990.
 
...
 
   
 
   It is also my understanding that he had consumed alcohol on a 
 
regular basis.  His history of alcohol consumption could certainly lead 
 
to the development of avascular necrosis and could potentially be the 
 
underlying cause for his avascular necrosis.
 
   
 
   It is my overall opinion that the avascular necrosis is not related 
 
to the trauma of the left hip, since the process is occurring in both 
 
hips.  It is possible the fall may have aggravated his symptoms, 
 
resulting in the pain.  It would be very unusual that the fall did 
 
cause avascular necrosis of both hips, nor is it likely that it would 
 
have accelerated the disease process.  Additionally, the subsequent 
 
treatment of the hip (total hip replacement) was likewise not necessary 
 
because of the fall of April 12, but rather the underlying condition.
 
(Ex. 4, p.1)
 
 
 
Thus, even though Dr. Garvin was retained by claimant's counsel he made 
 
a strong statement for the defense side of the case.  First, he injects 
 
the possibility that the automobile accident or the consumption of 
 
alcohol could potentially be the underlying cause for the avascular 
 
necrosis.  Then he gives the opinion that the avascular necrosis was 
 
not caused by the trauma of April 12, 1989 because the process was 
 
occurring in both hips.  He acknowledges that a fall might have 
 
temporarily aggravated claimant's symptoms but that it would not have 
 
accelerated the disease process.  He adds further that the total hip 
 
arthroplasty was not necessary because of the fall of April 12, 1989.
 
 
 
Dr. Garvin wrote one more letter to claimant's counsel on February 2, 
 
1994, in which he stated, "It is possible that this fall on April 2, 
 
[sic] 1989 may have aggravated the vascular necrosis and could have 
 
caused his hip to become symptomatic." (Clmt. Ex. 16).  The fact that 
 
Dr. Garvin has the wrong date of injury is not significant, but it is 
 
significant as this appears to be a complete reversal of his previous 
 
statements for which he gives no explanation or justification.  
 
Furthermore, in workers' compensation law a possibility is 
 
insufficient; a probability is necessary.  Burt v. John Deere Waterloo 
 
Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955).  
 
 
 
Thus, the testimony of Dr. Garvin does not establish that claimant had 
 
preexisting avascular necrosis at the time of the fall at work on April 
 
12, 1981.  Nor does the testimony of Dr. Garvin establish that the fall 
 
of April 12, 1989 permanently aggravated or accelerated the condition 
 
of avascular necrosis.  Nor does Dr. Garvin's testimony establish that 
 
the fall of April 12, 1989 was the cause of the total hip replacement 
 
which Richard P. Kyle, M.D., later performed on April 1, 1992.  
 
 
 
Defendants requested an independent medical examination from Daniel J. 
 
McGuire, M.D., an orthopedic surgeon, on October 4, 1991.  Dr. McGuire 
 
stated, "In light of the fact that he has avascular necrosis of both 
 
hips, we have to point towards systemic causes rather than a traumatic 
 
cause.  ... Systemic things such as ETOH abuse or chronic use of 
 
Prednisone can cause bilateral avascular necrosis." (Jt. Ex. 5, p. 1).
 
 
 
Dr. McGuire also thought that claimant was a little too young for a hip 
 
replacement.  He also felt that since claimant was a laborer that this 
 
was a contra indication for a hip replacement.  Likewise, he opined 
 
that the hip replacement might only last for ten years or so (Jt. Ex. 
 
5, p. 3).
 
 
 
Dr. McGuire also addressed a letter to defendants' counsel on October 
 
4, 1991.  He said that he had examined claimant and several medical 
 
records that had been made available to him.  Dr. McGuire stated, "The 
 
present diagnosis is bilateral avascular necrosis of the hips, left 
 
much greater than right.  Also, idiopathic low back pain." (Jt. Ex. 6, 
 
p. 1).  Dr. McGuire said that his impairment rating for the back pain 
 
would be zero percent because the diagnostic studies were unremarkable. 
 

 
 
 
 
 
 
 
 
 
 
 
 
 
 Dr. McGuire added, "I feel strongly that his bilateral AVN of his hips 
 
is not related to his work incident.  ... As far as his back is 
 
concerned, I would really place no permanent restrictions on him. ... 
 
Again, his bilateral AVN is not secondary to his work incident.  ... 
 
This gentleman will not need surgery on his spine as a result of the 
 
4/12/89 incident.  He has developed bilateral avascular necrosis over 
 
the intervening 2 1/2 years and this may precipitate some surgical 
 
procedures.  He had no sign of avascular necrosis according to the bone 
 
scan and the x-rays from the summer of 1989." (Jt. Ex. 6, pp. 1 & 2).
 
 
 
Thus, the testimony of Dr. McGuire cannot be used to establish that 
 
claimant suffered from preexisting avascular necrosis on April 12, 
 
1989.  Nor can Dr. McGuire's testimony be relied upon to say that the 
 
fall of April 12, 1989 aggravated a preexisting avascular necrosis.  He 
 
concluded that the bilateral AVN was not related to the work incident 
 
at all.  In addition, he said that claimant had not sustained any 
 
permanent impairment to his low back, that his permanent impairment 
 
rating would be zero percent because his diagnostic studies were 
 
unremarkable and that he would place no permanent restrictions on 
 
claimant as a result of this injury.  In short, Dr. McGuire said that 
 
this injury neither caused nor contributed to claimant's avascular 
 
necrosis and that it did not cause any permanent injury, permanent low 
 
back impairment or permanent disability.
 
Dr. Cotton examined claimant again on October 28, 1991 and reported on 
 
October 29, 1991 as follows:
 
   
 
   Clinical Impression:  This patient's neurological examination is 
 
unchanged from my previous examination of July 8, 1990.  He continues 
 
to show marked variable muscle weakness as well as sensory disturbance 
 
and variability in range of motion testing which is entirely out of 
 
keeping with known anatomical or physiological mechanisms.  He 
 
continues to demonstrate no evidence of neurological impairment and I 
 
an not able to substantiate that he suffered any permanent or residual 
 
neurological injury.  I remain of the opinion that he has no permanent 
 
partial disability from a neurological standpoint and he remains at 
 
maximal medical benefit.
 
   ...
 
   
 
   I see no medical justification for continued medical attention for 
 
this man's complaints of back pain.  There continues to be no evidence 
 
of past or present nerve root injury or evidence of a "disk".  The use 
 
of the crutches is on the basis of his hip disease and not due to past 
 
or present injury to the spine or nerves entering the legs.  That 
 
requirement again appears to be solely on the basis of his hip disease 
 
which according to Dr. Maguire,[sic] the orthopedist, is due to an 
 
unrelated coincidental medical condition.   (Jt. Ex. 36, pp. 2 & 3).
 
 
 
Thus, Dr. Cotton for the second time opined that the fall of April 12, 
 
1989 was not the cause of any permanent injury to claimant's lumbar 
 
spine.  
 
 
 
On January 17, 1992, Dr. Blume referred claimant to Richard F. Kyle, 
 
M.D., an orthopedic surgeon (Tran. pp. 76 & 81; Jt. Ex. 103).  Dr. Kyle 
 
saw claimant on January 30, 1992 and recommended total hip arthroplasty 
 
on the left (Jt. Ex. 40).  Dr. Kyle performed this surgery on April 1, 
 
1992 (Tran. p. 81).  On November 2, 1992, Dr. Kyle wrote to defendants' 
 
counsel about causal connection.  Dr. Kyle stated, 
 
   
 
   The question you have posed to me as to whether his work injury of 
 
April 12, 1989 caused the avascular necrosis is one that I would have 
 
great difficulty in answering.  He definitely did develop avascular 
 
necrosis in both hips.  There is no way to tell for sure, from my 
 
standpoint, whether the fall caused or aggravated the avascular 
 
necrosis.  Avascular necrosis, as you are aware, has multiple 
 
etiologies and for that reason, I cannot definitely say that the fall 
 
of and in itself caused avascular necrosis in both of his hips.
 
(Jt. Ex. 41)
 
 
 
Thus, Dr. Kyle places himself on record as stating that it is 
 
impossible for him to determine whether the fall at work on April 12, 
 
1989 was in any way related to claimant's avascular necrosis.
 
Dr. Kyle wrote to claimant's counsel again on December 15, 1993 as 
 

 
 
 
 
 
 
 
 
 
 
 
follows:
 
   
 
   Avascular necrosis results when there is inadequate blood supply to 
 
the bone, and the bony tissue dies.  This condition is often the result 
 
of an injury.  If a patient with avascular necrosis incurs an injury to 
 
the affected joint, this would greatly aggravate the condition and 
 
precipitate further degeneration.
 
   
 
   I feel that this patient's injury of April 12, 1989, aggravated his 
 
condition to the extent where his ambulation was impaired, and painful, 
 
for which surgical intervention was strongly indicated.
 
   
 
   I also feel that this patient has a disability as a result of the 
 
hip replacement, and I would give him a disability rating of eighteen 
 
percent to the body as a whole.
 
(Jt. Ex. 42)
 
 
 
If Dr. Kyle would have made this statement initially it could have been 
 
taken at face value without further explanation for the reason that he 
 
was the operating surgeon.  However, on November 2, 1992, he said, 
 
"There is no way to tell, for sure, from my standpoint, whether the 
 
fall caused or aggravated the avascular necrosis" (Jt. Ex. 41).  Then a 
 
year later on December 15, 1993, he reversed his earlier position and 
 
stated, "I feel that this patient's injury of April 12, 1989, 
 
aggravated his condition to the extent where his ambulation was 
 
impaired, and painful, for which surgical intervention was strongly 
 
indicated." (Jt. Ex. 42).
 
 
 
Since the second statement is a complete reversal of his first 
 
position, then some explanation or reasonable justification is in order 
 
to explain the dichotomy of his conflicting opinions given only one 
 
year apart.
 
 
 
Dr. Garvin and Dr. Kyle are the orthopedic surgeons in this case who 
 
specialize in hip surgery.  Dr. Garvin's first conclusion that the 
 
avascular necrosis was not related to the trauma in claimant's left hip 
 
and Dr. Kyle's original opinion that he was unable to make this 
 
determination is considered to be the most reliable evidence in this 
 
case.  
 
 
 
From Dr. Garvin's first determination and the first determination of 
 
Dr. Kyle, it is the decision of this deputy that the weight of the 
 
medical evidence is that the presence of preexisting avascular necrosis 
 
on April 12, 1989, or the aggravation of a preexisting condition of 
 
avascular necrosis, has not been proven by the weight of the evidence.  
 
In addition, Dr. McGuire, another orthopedic surgeon, concluded that 
 
there was no relationship between claimant's fall injury and the 
 
bilateral avascular necrosis.  Likewise, Dr. Vlach, Dr. Youngblade, Dr. 
 
Dougherty, Dr. Nelson, Dr. Durward, Dr. Cotton, Dr. Chicoine, or Dr. 
 
Blume found no evidence that claimant suffered from preexisting AVN 
 
prior to this injury or that it was aggravated by this injury.
 
 
 
Claimant contended that he had no more hip pain after the total hip 
 
replacement (Tran. pp. 83 & 87) and reported the same to Dr. Blume on 
 
May 8, 1982 (Jt. Ex. 105).  Claimant further testified that he had hip 
 
pain from the date of the injury on April 12, 1989 until April 5, 1992, 
 
which was five days after the hip surgery (Tran. pp. 83 & 84).  
 
 
 
Claimant denied that he had any hip pain prior to April 12, 1989 (Tran. 
 
p. 84).  Claimant testified that he did continue to have low back pain 
 
after the hip surgery (Tran. p. 85; Jt. Ex. 105).
 
On July 20, 1992, even though he had previously ruled out back surgery, 
 
Dr. Blume said that he was going to re-investigate the possibility of 
 
back surgery (Jt. Ex. 107).  On August 7, 1992 a second diskogram of 
 
L4-L5 was normal (Jt. Ex. 108).  
 
 
 
On September 11, 1992, claimant was examined by Dr. Cotton for the 
 
third time and he wrote a report on November 20, 1992 in which he said, 
 
 
 
   Clinical Impression:  this patient's neurological examination at 
 
this time remains normal.  There is normal strength in the legs, his 
 
reflexes are present and symmetrical, and there is no evidence of any 
 
perivertebral spasm in the lumbar or cervical spine.  There are 
 
profound inconsistencies and variabilities in range of motion testing 
 
as well as sensation which are impossible to explain on anatomical or 
 
physiological mechanisms.  The sensory findings could never occur from 
 

 
 
 
 
 
 
 
 
 
any type of condition in the lumbosacral spine.
 
   ...
 
   
 
   It is my opinion based upon a reasonable degree of medical 
 
probability that there is no residual physical injury to the lumbar or 
 
sacral spine, the disks of the lumbar or sacral spine, or the nerve 
 
roots in the lumbar or sacral spine present in this individual.  It is 
 
my opinion based upon a reasonable degree of medical probability that 
 
this man's neurological examination is normal and that he willingly 
 
does not cooperate for range of motion testing nor does he reliably 
 
report sensory abnormalities during my examinations or those of other 
 
examining physicians.  It is my opinion based upon a reasonable degree 
 
of medical probability that he is well past maximal medical benefit as 
 
it would relate to any previous low back injury.  It is my opinion 
 
based upon a reasonable degree of medical probability that there is no 
 
evidence of any permanent partial impairment or subsequent disability 
 
on the basis of any low back injury including the low back itself, 
 
disks, lumbar or sacral nerve roots, etc.  It is my opinion based upon 
 
a reasonable degree of medical probability that any residual impairment 
 
or subsequent disability would based solely upon this individual's 
 
orthopedic problems in the hips and not on the basis of any residual 
 
injury to the lumbar or sacral spine.
 
(Jt. Ex. 38, pp. 3 & 4)
 
 
 
Thus, Dr. Cotton for the third time determined that claimant had a 
 
normal neurological examination.  There were numerous inconsistencies 
 
with his responses to physical testing and several non-anatomic and 
 
physiological responses.  He determined that the injury was not the 
 
cause of any permanent injury, impairment or disability to claimant's 
 
low back, discs, lumbar or sacral nerve roots.
 
 
 
On February 11, 1993, Dr. Blume wrote to defendants' counsel,
 
   
 
   In regard to his lumbar spine area, the patient is suffering from 
 
mild disc pathology at L4/5, with pain originating predominately from 
 
the nerve structures of the facet joints.  This condition should be 
 
treated conservatively and may require periodic nerve blocks and 
 
radiofrequency neurotomy procedures.  I do believe that his low back 
 
condition is the result of the workman's comp injury but it is also my 
 
opinion that his low back was aggravated by the automobile accident 
 
which occurred on November 5, 1990.
 
(Jt. Ex.  116, p. 2 & Jt. Ex. 117, p. 2).
 
 
 
Thus, at this point Dr. Blume attributed claimant's mild disc pathology 
 
at L4/5 to both the work injury and the automobile accident.
 
However, on March 8, 1993, Dr. Blume wrote to defendants' counsel as 
 
follows:
 
   
 
   In regard to the low back condition, it is my opinion within 
 
reasonable medical probability that the patient has a permanent/partial 
 
impairment of 11%.  These ratings were obtained from the 3rd Revised 
 
edition of the AMA Guidelines to the Evaluation of Permanent 
 
Impairment.
 
   
 
   At this time I am unable to say whether this patient has reached 
 
maximum medical recovery due to the fact that, as I stated in my 
 
previous letter, the patient may require periodic nerve blocks and 
 
radiofrequency neurotomy procedures to help relieve his low back pain.
 
   
 
   In regard to the condition in his hips, I would rather leave that 
 
evaluation and impairment up to Dr. Richard Kyle, for he is more 
 
qualified in that area.
 
(Jt. Ex. 118)
 
 
 
Thus, at this point Dr. Blume states that claimant an 11 percent 
 
permanent impairment to his low back but he declines to give an opinion 
 
with respect to claimant's hips.
 
 
 
A few days later on March 16, 1993, Dr. Blume stated that the permanent 
 
impairment of claimant's low back was not caused by the work injury of 
 
April 12, 1989, but rather it was caused by the automobile accident of 
 
November 5, 1990.  This is what Dr. Blume stated, 
 
   
 
   It is my opinion that the low back condition that the patient is 
 
suffering from is a result of the work related incident which occurred 
 
on April 12, 1989, but was permanently aggravated by the automobile 
 
accident which occurred on November 5, 1992.
 

 
 
 
 
 
 
 
 
 
(Jt. Ex. 119).
 
 
 
Thus, at this point Dr. Blume indicates that the low back pain 
 
originated with the work injury of April 12, 1989, but that no 
 
permanency occurred until the aggravation by the automobile accident 
 
which occurred on November 5, 1992.
 
 
 
On April 30, 1993, a third diskogram, which was performed on L5, S1 was 
 
normal.  Dr. Blume concluded, "... I don't have any reason for doing 
 
any surgical procedure." (Jt. Ex. 121).  On September 20, 1993, 
 
claimant was still complaining of back and left leg pain and asked what 
 
Dr. Blume could do for him to which Dr. Blume responded in his recorded 
 
notes, "I told him that I cannot do anything more and he has to live 
 
with this kind of pain." (Jt. Ex. 122).
 
 
 
Thus, after three years and three months of treatment with Dr. Blume 
 
from June 13, 1990 to September 20, 1993, after numerous tests and 
 
various procedures claimant was still suffering essentially the same 
 
low back complaints and had showed no improvement of his low back 
 
condition.
 
 
 
Dr. Blume wrote to claimant's counsel on November 4, 1993 that he 
 
adhered to the 11% permanent impairment rating on the low back but 
 
changed his opinion about causal connection.  On November 4, 1993, Dr. 
 
Blume stated,
 
   
 
   In regard to the low back condition, it is my opinion within 
 
reasonable medical probability that the patient has a permanent/partial 
 
impairment of 11%.
 
   ...
 
   
 
   It is my opinion within reasonable medical probability that the low 
 
back condition that the patient is suffering from is a result of the 
 
work-related incident which occurred on April 12, 1989.
 
(Jt. Ex. 123).
 
 
 
Thus, at this point, instead of attributing claimant's permanent 
 
impairment to both the work injury and the automobile accident as he 
 
did on February 11, 1993; and instead of attributing the permanency of 
 
the condition to the automobile accident as he did on March 16, 1993; 
 
he now on November 4, 1993, attributes the 11% permanent impairment to 
 
the work injury of April 12, 1989 (Jt. Ex. 123).
 
 
 
Again, if the November 4, 1993 opinion was Dr. Blume's only opinion, 
 
then since he was a treating physician it might have been acceptable at 
 
face value.  But since he has given three different opinions without 
 
any reasonable explanation or plausible justification for his change in 
 
opinion, then it is impossible for the decider of fact to determine 
 
which opinion is Dr. Blume's true opinion.  Therefore, none of his 
 
opinions can be relied upon.
 
 
 
In summary then at this point after reviewing the evidence of all the 
 
foregoing doctors there is no evidence to establish (1) that claimant 
 
had a preexisting avascular necrosis at the time of the fall injury on 
 
April 12, 1989, (2) that there was an aggravation of a preexisting 
 
avascular necrosis condition in claimant's left hip or (3) that the 
 
fall injury of April 12, 1989 was the cause of any permanent impairment 
 
or disability to claimant's lumbar spine or left leg.  The possibility 
 
that claimant had preexisting vascular necrosis which was possibly 
 
aggravated by the injury of April 12, 1989 has been advanced, somewhat 
 
belatedly in the accumulation of evidence in this case by Dr. Kyle on 
 
December 15, 1993 and Dr. Garvin on February 2, 1994.  However, since 
 
these later opinions are inconsistent and completely contradict their 
 
earlier opinions, without any reasonable explanation or plausible 
 
justification, the are not found to be reliable.  In addition, their 
 
opinions are also controverted by Dr. McGuire and Lawrence T. Donovan, 
 
M.D., with respect to the avascular necrosis.  
 
 
 
At best, the belated letters of Dr. Garvin and Dr. Kyle raise the 
 
possibility the injury of April 12, 1989 might have affected a 
 
preexisting condition of avascular necrosis.  However, a possibility is 
 
insufficient; a probability is necessary.  Burt v. John Deere Waterloo 
 
Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955).
 
 
 
Dr. Donovan, an orthopedic surgeon, examined claimant and all or most 
 
of his medical records and reported on December 30, 1993.  He submitted 
 
an extensive, comprehensive medical report consisting of 37 pages which 
 

 
 
 
 
 
 
 
 
 
 
 
 
 
reviewed all of claimant's prior treatment by all of the previous 
 
treating physicians (Jt. Ex. 133 & 134).  Dr. Donovan found 
 
questionable non-anatomic sensory abnormalities (Jt. Ex. 133, p. 5).  
 
 
 
After examining the objective tests performed immediately after the 
 
injury Dr. Donovan concluded, "... there is no evidence that avascular 
 
necrosis of the femoral heads existed at the time of this patient's 
 
injury." (Jt. Ex. 133, p. 10).
 
 
 
Furthermore, Dr. Donovan found, "The very first evidence 
 
radiographically of avascular necrosis of the femoral heads was noted 
 
on  11-5-90 on the AP pelvic x-ray obtained by Dr. Chicoine after the 
 
patient was involved in a motor vehicle accident." (Jt. Ex. 133, p. 
 
10).
 
 
 
Moreover, Dr. Donovan points out that claimant's complaints were to the 
 
left side of the body but when the avascular necrosis was diagnosed it 
 
was bilateral which, "... indicates that this is a disease process that 
 
is of a systemic origin." (Jt. Ex. 133, p. 10).
 
 
 
Dr. Donovan noted that the MRI studies and myelogram studies did not 
 
show a ruptured disc  (Jt. Ex. 133, p. 10).  He opined that the only 
 
way that the fall could have aggravated the avascular necrosis would be 
 
by a fracture of the femoral head (Jt. Ex. 133, p. 23).  Dr. Donovan 
 
believed that Dr. Kyle's assumption or implication on December 15, 1993 
 
that claimant had avascular necrosis at the time of the fall on April 
 
12, 1989 is unfounded because the first objective evidence of this 
 
disease was not detected until after the automobile accident on 
 
November 5, 1990.  Dr. Donovan said earlier objective tests ruled out 
 
AVN (Jt. Ex. 133, pp. 24 & 25).  The doctor said the fact that 
 
claimant's AVN was bilateral and that there was no fracture of the 
 
femoral head or dislocation of the hip negates causal connection.  At 
 
the same time Dr. Donovan felt that the more severe impact of the 
 
automobile accident and claimant's consumption of alcohol were more 
 
likely the causal factors of his AVN (Jt. Ex. 133, p. 5).
 
With respect to the lumbar spine, Dr. Donovan stated, "All of the 
 
studies of the lumbar spine have been normal." (Jt. Ex. 133, p. 26).
 
Dr. Donovan added,
 
   
 
   In regard to his low back pain, this patient did sustain a sprain of 
 
the soft tissues of the lumbar spine; however, he tended to exaggerate 
 
his overall complaints and had several examiners which elicited 
 
non-organic findings.  These non-organic findings were directly stated 
 
by numerous examiners to include Dr. Dougherty, Dr. Durward, Dr. 
 
McLarnan, Dr. Nelson, and Dr. Cotton.  Drs. Chicoine and Blume did not 
 
outright list or call the non-organic findings, but during their 
 
physical examinations and their histories, they did elicit several 
 
non-organic findings.  It is remarkable to note that several 
 
practitioners called these non-organic findings; however, Drs. Blume 
 
and Chicoine did not.    (Jt. Ex. 133, p. 26)
 
 
 
Dr. Donovan concluded,
 
   
 
   In regard to his hips, his avascular necrosis is a non-workers' 
 
compensation issue.  This has arisen because of a systemic cause 
 
unrelated to this patient's employment and unrelated to his injuries.
 
   ...
 
   
 
   In regard to his low back pain, while he may have sustained a soft 
 
tissue injury to the lumbar spine which resulted from his fall, this 
 
normally would have resolved over a period of 6 to 12 weeks.  However, 
 
this was perpetuated beyond this time due to Drs. Blume and Chicoine's 
 
numerous office visits protracted, ineffective therapy, and 
 
questionable necessary tests.     (Jt. Ex. 133, pp. 27 & 28)
 
 
 
Thus, Dr. Donovan determined that claimant did not have avascular 
 
necrosis that preexisted this injury nor was there an aggravation of a 
 
preexisting AVN.  Dr. Donovan determined that claimant would have no 
 
permanent impairment or disability based upon his injury of April 12, 
 
1989 (Jt. Ex. 133, p. 28).  He likewise stated that claimant had no 
 
permanent restrictions attributable to this injury (Jt. Ex. 133, p. 
 
30).
 
 
 
Dr. Donovan wrote an addendum to his opinion on January 18, 1994 but it 
 

 
 
 
 
 
 
 
 
 
is not germane to this decision because it pertains to left hip 
 
impairment and claimant has not proven that his left hip replacement 
 
was caused by this injury.  Dr. Donovan concluded, that even though 
 
claimant may have a 20 percent impairment due to the left hip 
 
arthroplasty, nevertheless, none of it is attributable to this injury 
 
(Def. Ex. A).
 
 
 
Dr. Cotton reported on January 26, 1994 that he last saw claimant on 
 
May 3, 1983 and that claimant continued to have low back, left buttock 
 
and left leg pain at that time.  Dr. Cotton performed an extensive 
 
clinical examination.  Again, Dr. Cotton found (1) that claimant's 
 
neurological examination was normal, (2) that claimant had no permanent 
 
impairment to his back or leg caused by this injury, (3) that claimant 
 
had no functional limitation from this injury and (4) that there was no 
 
need for any further medical treatment of any kind for any reason (Def. 
 
Ex. B, pp. 4-8).
 
 
 
Wherefore, based upon the foregoing evidence, it is determined as a 
 
matter of fact (1) that claimant did not have preexisting avascular 
 
necrosis at the time of the fall at work on April 12, 1989, (2) that 
 
the fall at work did not aggravate a preexisting condition of avascular 
 
necrosis, (3) that the injury of April 12, 1989 was not the cause of 
 
permanent injury, permanent impairment or permanent disability to 
 
claimant's lumbar spine or left leg and (4) that injury of April 12, 
 
1989 was the cause of temporary total disability and that claimant is 
 
entitled to 10.857 temporary total disability.
 
 
 
                       MEDICAL BENEFITS
 
 
 
It is determined that claimant is not entitled to any of the medical 
 
expenses claimed in claimant's exhibits 1 through 7, 9, 10 & 15. (See 
 
index to claimant's exhibits).
 
 
 
The bill from Dr. Garvin in the amount of $27.18 is not allowed because 
 
Dr. Garvin was not an authorized treating physician.  Claimant was 
 
referred to Garvin by Dr. Blume who was also an unauthorized treating 
 
physician (Clmt. Ex. 1).
 
 
 
The bill from St. Lukes Hospital in the amount of $788.00 for the MRI 
 
of the left hip on August 28, 1991, is not allowed because (1) it was 
 
ordered by Dr. Blume who was not an authorized treating physician and 
 
(2) the avascular necrosis has been determined not to be caused or 
 
aggravated by this injury (Clmt. Ex. 2).
 
 
 
That the Sioux City Radiology bill in the amount of $198.50 for the hip 
 
MRI on August 28, 1991, cannot be allowed because (1) it was ordered by 
 
Dr. Blume who was an unauthorized physician and (2) it was for the 
 
avascular necrosis which had been determined not to be caused or 
 
aggravated by this injury (Clmt. Ex. 3).
 
 
 
The bill of Dr. Kyle in the amount of $489.47 is not allowed because 
 
(1) Dr. Kyle is not an authorized treating physician and (2) this 
 
treatment was for the avascular necrosis which has been determined not 
 
to be caused or aggravated by this injury (Clmt. Ex. 4).  Claimant was 
 
referred to Dr. Kyle by Dr. Blume who was also an unauthorized treating 
 
physician.
 
 
 
The bills from Hennepin County Medical Center in the amount of 
 
$18,134.33 are not allowed because (1) this is Dr. Kyle's treatment who 
 
was an unauthorized treating physician and (2) because the avascular 
 
necrosis was determined not to be caused or aggravated by this injury 
 
(Clmt. Exs. 5, 6, & 7).  
 
 
 
The bill from Siouxland Physical Rehabilitation in the amount of 
 
$185.00 is not allowed because this was ordered by Dr. Blume who was 
 
not an authorized treating physician (Clmt. Ex. 9).  
 
 
 
The bill of Dr. Chicoine in the amount of $1,165.22 cannot be allowed 
 
for the reason that it was excluded from evidence.  Claimant failed to 
 
prove that it was timely served on defendants or even that it was 
 
served at all on defendants (Clmt. Ex. 10).  Moreover, Dr. Chicoine was 
 
not an authorized treating physician.
 
 
 
The bill of Dr. Blume in the amount of $8,183.50 cannot be allowed 
 
because it was excluded from evidence (Clmt. Ex. 15).  Claimant was 
 
unable to prove that it was timely served on defendants or that it was 
 
served on defendants at all.  Moreover, Dr. Blume was not an authorized 
 
treating physician.
 

 
 
 
 
 
 
 
 
 
 
 
 
 
Claimant chose to see Dr. Chicoine on his own without employer or 
 
insurance carrier authorization (Tran. pp. 32, 33 & 74).  Dr. Chicoine 
 
ultimately referred claimant to Dr. Blume who was also unauthorized 
 
(Tran. p. 75).  Dr. Blume who was unauthorized also referred claimant 
 
to Dr. Garvin who was unauthorized (Tran. p. 75).  Dr. Blume who was 
 
unauthorized also referred claimant to Dr. Kyle who was unauthorized 
 
(Tran. p. 76).
 
 
 
Claimant and Dr. Blume were notified by the insurance carrier that Dr. 
 
Blume's treatment was unauthorized from the onset (Jt. Ex. 150, 151 & 
 
152).
 
 
 
Wherefore, none of claimant's medical expenses enumerated above are 
 
allowed.
 
 
 
                          CONCLUSIONS OF LAW
 
 
 
Wherefore, based upon the foregoing and following principles of law, 
 
these conclusions of law are made.
 
 
 
That claimant did sustain the burden of proof by a preponderance of the 
 
evidence that he is entitled to 10.857 weeks of temporary total 
 
disability benefits.  Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 
 
867 (1965); Lindahl v. L.O. Boggs Co., 236 Iowa 296 18 N.W.2d 607 
 
(1945).  Iowa Code section 85.33.
 
 
 
That claimant did not sustain the burden of proof by a preponderance of 
 
the evidence that he was suffering from avascular necrosis in his hips 
 
at the time of this injury on April 12, 1989.  Bodish v. Fischer, Inc., 
 
257 Iowa 516, 133 N.W.2d 867 (1965); Lindahl v. L.O. Boggs Co., 236 
 
Iowa 296 18 N.W.2d 607 (1945).
 
 
 
That claimant did not sustain the burden of proof by a preponderance of 
 
the evidence that the fall injury at work on April 12, 1989, either 
 
caused or aggravated claimant's condition of avascular necrosis.  
 
Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965); Lindahl 
 
v. L.O. Boggs Co., 236 Iowa 296 18 N.W.2d 607 (1945).
 
 
 
That claimant did not sustain the burden of proof by a preponderance of 
 
the evidence that the fall at work on April 12, 1989 was the cause of 
 
any permanent impairment or permanent disability to his lumbar spine or 
 
left leg.  Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 
 
(1965); Lindahl v. L.O. Boggs Co., 236 Iowa 296 18 N.W.2d 607 (1945).  
 
Iowa Code section 85.34(2).
 
 
 
That claimant did not sustain the burden of proof by a preponderance of 
 
the evidence that he is entitled to any of the medical expenses 
 
enumerated above.  Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 
 
867 (1965); Lindahl v. L.O. Boggs Co., 236 Iowa 296 18 N.W.2d 607 
 
(1945).  Iowa Code section 85.27.
 
 
 
                              ORDER
 
 
 
THEREFORE IT IS ORDERED:
 
 
 
That defendants pay to claimant ten point eight-five-seven (10.857) 
 
weeks of temporary total disability benefits at the stipulated rate of 
 
two hundred twenty-seven and 82/100 dollars ($227.82) per week in the 
 
total amount of two thousand four hundred seventy-three and 44/100 
 
dollars ($2,473.44).
 
 
 
That defendants are entitled to a credit for sixteen point 
 
two-eight-six (16.286) weeks of workers compensation benefits paid to 
 
claimant prior to hearing at the rate of two hundred twenty-seven and 
 
82/100 dollars ($227.82) in the total amount of three thousand seven 
 
hundred ten and 26/100 dollars ($3,710.26) as stipulated to by the 
 
parties on the pre-hearing report.
 
 
 
That no interest due to claimant by defendants pursuant to Iowa Code 
 
section 85.30.
 
 
 
That the costs of this action are charged to claimant, except the cost 
 
of the attendance of the court reporter at hearing and the transcript 
 
of hearing.  Rule 343 IAC 4.33 and Iowa Code sections 86.19(1) and 
 
86.40.
 
 
 
That defendants file any claim activity reports requested by this 
 
agency pursuant to rule 343 IAC 3.1.
 
 
 
Signed and filed this ____ day of March, 1995.
 
                              ______________________________
 
                              WALTER R. McMANUS, JR.
 
                              DEPUTY INDUSTRIAL COMMISSIONER    
 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Copies to:
 
 
 
Mr. Edward J. Keane
 
Attorney at Law
 
400 Firstar Bank Bldg.
 
P.O. Box 1768
 
Sioux City, IA  51102
 
 
 
Mr. Thomas M. Plaza
 
Attorney at Law
 
701 Pierce Street, Ste 200
 
P.O. Box 3086
 
Sioux City, IA  51102-3086
 
 
 
 
 
 
 
 
 
 
     
 
                       1802, 1803, 2501, 2700, 2906, 2907
 
                       Filed March 8, 1995
 
                       Walter R. McManus
 
 
 
          BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
____________________________________________________________
 
HENRY L. BOLDEN,   
 
          
 
     Claimant, 
 
          
 
vs.       
 
                                      File No. 913261
 
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.    
 
___________________________________________________________
 
1802
 
Claimant awarded 10.857 weeks of temporary total disability for three 
 
separate short periods which could be verified by the medical records.  
 
Claimant had actually been paid more, therefore, the credit exceeded 
 
the award.
 
 
 
1803
 
Claimant failed to prove (1) that he had preexisting avascular 
 
necrosis, (2) that preexisting AVN was aggravated by this injury or (3) 
 
that he sustained a permanent injury, permanent impairment or permanent 
 
disability to his low back from this injury.
 
 
 
2501, 2700, 2906
 
Claimant was not allowed the medical expenses claimed because the 
 
physicians were unauthorized.  In case of the two largest bills 
 
claimant's counsel had failed to serve the bills on defendants prior to 
 
hearing; and they were excluded from evidence pursuant the objection of 
 
defendants' counsel.
 
The attorneys came to hearing with a stack of exhibits about five (5) 
 
inches high.  At the request of the deputy they went through the 
 
exhibits at hearing with their legal assistants and mutually agreed to 
 
reduce the stack to about two and one half (2 1/2) inches without the 
 
necessity of the deputy excluding any of these exhibits on his own 
 
initiative.
 
 
 
2907
 
Since the credit exceeded the award the costs were assessed to claimant 
 
except the cost of the attendance of the court reporter at hearing and 
 
the cost of the transcript.
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            DAVID L. LYONS,               :
 
                                          :
 
                 Claimant,                :         File No. 913265
 
                                          :
 
            vs.                           :      A R B I T R A T I O N
 
                                          :
 
            MOUNT ST. FRANCIS,            :         D E C I S I O N
 
                                          :
 
                 Employer,                :
 
                 Defendant.               :
 
            ____________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding brought by David L. Lyons against 
 
            his former employer, Mount St. Francis, based upon an 
 
            alleged injury of April 11, 1988.  He seeks compensation for 
 
            healing period and permanent partial disability.  The 
 
            employer denies the claim and asserts that it is barred by 
 
            lack of notice pursuant to Iowa Code section 85.23.
 
            
 
                 The record in the proceeding consists of testimony from 
 
            David L. Lyons, Debra Albert, Virgil Hayes and Nick Cass.  
 
            The record also contains joint exhibit A and defendant's 
 
            exhibits 4, 5, 6, 7 and 8.
 
            
 
                                 findings of fact
 
            
 
                 Having considered all the evidence received, together 
 
            with the appearance and demeanor of the witnesses, the 
 
            following findings of fact are made.
 
            
 
                 David L. Lyons is a 50-year-old married man who lives 
 
            at Dubuque, Iowa.  He has a long history of back problems 
 
            including hemilaminectomy surgery at the L4-5 level which 
 
            was performed in 1976 (exhibit 7).  Prior to the time of 
 
            that surgery, his primary employment had been as a 
 
            construction worker.  Following the 1976 surgery, he drew 
 
            disability benefits for a period of time, performed some 
 
            construction work and then obtained employment with Mount 
 
            St. Francis in 1981.
 
            
 
                 His employment at Mount St. Francis consisted primarily 
 
            of operating the boiler room in the power plant.  The work 
 
            involved monitoring equipment, cleaning and maintenance.  It 
 
            was not heavy or physically stressful.
 
            
 
                 In approximately April of 1988, automated monitoring 
 
            equipment was installed in the boiler room which eliminated 
 
            the need for a full-time operator.  Claimant was then 
 
            assigned to other general work duties.
 
            
 
                 The work duties which claimant subsequently performed 
 
            involved much more bending, lifting and exertion than 
 
            operating the boiler room.  After a period of several 
 
            months, he contacted Martin Bagby, D.O., with complaints of 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            back pain and provided a history that his symptoms had been 
 
            progressive over the past several months.  That office visit 
 
            occurred on January 19, 1989.  Dr. Bagby provided 
 
            conservative treatment and took claimant off work through 
 
            January 23, 1989.  At that time, a work release was given 
 
            which authorized claimant to perform light work (joint 
 
            exhibit A, deposition exhibit 1, pages 3 and 5).
 
            
 
                 Claimant took the work release to the employer and 
 
            consulted Virgil Hayes.  A second opinion on the 
 
            restrictions was requested and obtained from orthopaedic 
 
            surgeon R. Scott Cairns, M.D.  Dr. Cairns indicated that 
 
            claimant had marked residuals from a previous L-5 neuropathy 
 
            of undetermined cause.  On February 2, 1989, he recommended 
 
            that claimant be placed in a permanent light-duty status and 
 
            indicated that he might do better if he were returned to his 
 
            old job (exhibit 5).
 
            
 
                 The employer had no work which was completely 
 
            consistent with the medical restrictions and the claimant's 
 
            employment was terminated.
 
            
 
                 Claimant now operates a bar in Dubuque, Iowa which he 
 
            described as turning a small profit.
 
            
 
                 In the record of this case, there is no opinion or 
 
            indication from any physician that claimant's condition is 
 
            anything other than degenerative arthritis.  No physician 
 
            relates the condition to the employment.  No physician 
 
            indicates that the employment has in any manner caused any 
 
            permanent worsening of the long-standing arthritic 
 
            condition.  No physician has indicated in any manner that 
 
            the work activities which claimant performed are responsible 
 
            for any permanent impairment or permanent change in the 
 
            condition.  The only evidence in the record regarding 
 
            disability resulting from the work activities is that, with 
 
            overuse or overexertion, claimant's symptoms will flare up 
 
            and that, if he then lays off or ceases the aggravating 
 
            activities, the symptoms will go away.  The condition has 
 
            been described as one which tends to wax and wane (joint 
 
            exhibit A, pages 22-27).  The activity restrictions which 
 
            have been recommended appear to have been imposed based upon 
 
            the underlying degenerative condition rather than any 
 
            permanent injury from work activities (joint exhibit A, 
 
            pages 13 and 14; exhibit 5).  It is found that the evidence 
 
            introduced fails to show it to be probable that any of the 
 
            claimant's work activities produced any permanent disability 
 
            affecting his back.
 
            
 
                 The evidence does show a temporary aggravation of the 
 
            underlying condition running from January 19, 1989 through 
 
            March 23, 1989 when Dr. Cairns indicated that claimant 
 
            reported feeling "fairly decent" indicating that he had 
 
            recovered to his pre-injury state..
 
            
 
                                conclusions of law
 
            
 
                 The injury in this case is not an acute traumatic 
 
            injury.  Rather, it is one resulting from cumulative trauma.  
 
            The proper injury date is therefore the date when disability 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            commenced, namely January 19, 1989.  McKeever Custom 
 
            Cabinets v. Smith, 379 N.W.2d 368 (Iowa 1985).  The lack of 
 
            notice defense asserted under Code section 85.23 therefore 
 
            fails in view of the fact that the claim that the condition 
 
            was work related was presented in Job Service proceedings 
 
            conducted well within 90 days following January 19, 1989.
 
            
 
                 It has been previously found that the injury did not 
 
            produce any permanent disability and that all the physical 
 
            restrictions which were imposed were placed upon the 
 
            claimant due to the underlying degenerative condition rather 
 
            than the results of any injury process.  It is concluded 
 
            that claimant's only entitlement in this case is for 
 
            temporary total disability under the provisions of Code 
 
            section 85.33.  His entitlement is to recover nine and 
 
            one-seventh weeks of compensation payable commencing January 
 
            19, 1989.
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury of January 19, 
 
            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 
 
            Hosp., 251 Iowa 375, 101 N.W.2d 167 (1960). 
 
            
 
                 However, expert medical evidence must be considered 
 
            with all other evidence introduced bearing on the causal 
 
            connection.  Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion 
 
            of experts need not be couched in definite, positive or 
 
            unequivocal language.  Sondag v. Ferris Hardware, 220 N.W.2d 
 
            903 (Iowa 1974).  However, the expert opinion may be 
 
            accepted or rejected, in whole or in part, by the trier of 
 
            fact.  Id. at 907.  Further, the weight to be given to such 
 
            an opinion is for the finder of fact, and that may be 
 
            affected by the completeness of the premise given the expert 
 
            and other surrounding circumstances.  Bodish, 257 Iowa 516, 
 
            133 N.W.2d 867.  See also Musselman v. Cent. Tel. Co., 261 
 
            Iowa 352, 154 N.W.2d 128 (1967).
 
            
 
                 The record in this case is devoid of any evidence which 
 
            shows that the worsening of claimant's condition which he 
 
            described at hearing is related to injury, rather than to 
 
            the mere progression of his condition.  He clearly has a 
 
            condition in his cervical spine and a degenerative condition 
 
            in his hip for which hip replacement surgery was performed, 
 
            neither of which are alleged to have any connection with his 
 
            employment at Mount St. Francis.  He is not entitled to any 
 
            recovery for permanent disability.
 
            
 
                                      order
 
            
 
                 IT IS THEREFORE ORDERED that the employer pay David L. 
 
            Lyons nine and one-seventh (9 1/7) weeks of compensation for 
 
            temporary total disability at the rate of one hundred 
 
            ninety-eight and 61/100 dollars ($198.61) per week payable 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            commencing January 19, 1989, plus interest pursuant to Code 
 
            section 85.30 computed at the rate of ten percent (10%) per 
 
            annum from the date each weekly payment came due.
 
            
 
                 IT IS FURTHER ORDERED that the employer pay the costs 
 
            of this action pursuant to rule 343 IAC 4.33.
 
            
 
                 IT IS FURTHER ORDERED that the employer file a claim 
 
            activity report as requested by this agency pursuant to rule 
 
            343 IAC 3.1.
 
            
 
                 Signed and filed this ______ day of ____________, 1991.
 
            
 
                 
 
            
 
                 
 
                 
 
                                          ______________________________
 
                                          MICHAEL G. TRIER
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            
 
            Copies To:
 
            
 
            Mr. Joseph J. Bitter
 
            Attorney at Law
 
            5th & Locust
 
            Dubuque, Iowa  52001
 
            
 
            Mr. Brendan T. Quann
 
            Attorney at Law
 
            200 CyCare plaza
 
            Dubuque, Iowa  52001
 
            
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                           5-1402.40
 
                           Filed February 22, 1991
 
                           MICHAEL G. TRIER
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            DAVID L. LYONS,     :
 
                      :
 
                 Claimant, :         File No. 913265
 
                      :
 
            vs.       :      A R B I T R A T I O N
 
                      :
 
            MOUNT ST. FRANCIS,  :         D E C I S I O N
 
                      :
 
                 Employer, :
 
                 Defendant.     :
 
            ____________________________________________________________
 
            
 
            5-1402.40
 
            Claimant failed to introduce evidence showing it to be 
 
            probable that his long-standing degenerative condition was 
 
            permanently aggravated by his employment activities.  
 
            Claimant awarded temporary total disability only.
 
            
 
 
            
 
            
 
            
 
            
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                      
 
            LINDA HOLLIS, Surviving, 
 
            Surviving Spouse of      
 
            MAX HOLLIS, Deceased,               File No. 913274
 
                      
 
                 Claimant, 
 
                                             A R B I T R A T I O N
 
            vs.       
 
                                                D E C I S I O N
 
            THOMAS McCUSKEY, Trustee 
 
            in Bankruptcy for Roseway,    
 
            Inc.,     
 
                      
 
                 Employer, 
 
                 Defendant.     
 
            
 
            _____________________________________________________________
 
            
 
            Now this 4th day of November 1993, the matter of the 
 
            stipulation of the record for the arbitration hearing and 
 
            application for decision come on for determination.
 
            The stipulation of the facts by the parties is accepted as 
 
            the record of the trial in this case.
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
            1.  That Linda Hollis is the surviving spouse of Max Hollis, 
 
            deceased.
 
            2.  That Max Hollis was on the 13th day of April 1989 
 
            employed by Roseway, Inc.
 
            3.  That Max Hollis resided in Iowa and worked regularly in 
 
            Iowa for Roseway, Inc.
 
            4.  That on April 13, 1989 Max Hollis died of a heart attack 
 
            which constituted an injury which arose out of and in the 
 
            course of his employment with Roseway, Inc.
 
            5.  That the proper rate of weekly compensation is $280.45 
 
            and that no payments have been made.
 
            WHEREFORE, this decision finds in favor of claimant in the 
 
            amount of $65,905.75 plus statutory interest and such 
 
            benefits shall continue to accrue at the rate of $280.45 per 
 
            week.
 
            This decision also finds in favor of claimant for the 
 
            statutory funeral allowance of $1,000.
 
            
 
                 Signed and filed this ____ day of November, 1993.
 
            
 
            
 
            
 
                                          ______________________________
 
                                          BERNARD J. O'MALLEY
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            Copies to:
 
            
 
            Mr Barry Moranville
 
            Attorney at Law
 
            101 22nd St  Ste 212
 
            W Des Moines IA 50265
 
            
 
            Mr Jeffrey Taylor
 
            Attorney at Law
 
            P O Box 10020
 
            Cedar Rapids IA 52410-0020
 
            
 
            
 
            
 
            
 
 
            
 
 
 
 
 
                                              5-1100; 5-1805; 5-2202
 
                                              Filed November 4, 1993
 
                                              Bernard J. O'Malley
 
            
 
                      BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                      
 
            LINDA HOLLIS, Surviving, 
 
            Surviving Spouse of      
 
            MAX HOLLIS, Deceased,                 File No. 913274
 
                      
 
                 Claimant, 
 
                                               A R B I T R A T I O N
 
            vs.       
 
                                                  D E C I S I O N
 
            THOMAS McCUSKEY, Trustee 
 
            in Bankruptcy for Roseway,    
 
            Inc.,     
 
                      
 
                 Employer, 
 
                 Defendant.     
 
            
 
            _____________________________________________________________
 
            
 
            5-100; 5-1803; 5-2202
 
            Found injury arose out of and in the course of his 
 
            employment.
 
            Claimant awarded $65,905.75 plus statutory interest in death 
 
            benefits.
 
            Claimant awarded $1,000 statutory financial allowance.
 
            
 
 
         
 
         
 
         
 
                   BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         ____________________________________________________________
 
                   
 
         LINDA HOLLIS, Surviving, 
 
         Surviving Spouse of      
 
         MAX HOLLIS, Deceased,              File No. 913274
 
                   
 
              Claimant, 
 
                                               N U N C
 
         vs.      
 
                                                P R O
 
         THOMAS McCUSKEY, Trustee 
 
         in Bankruptcy for Roseway,            T U N C
 
         Inc.,     
 
                                              O R D E R
 
              Employer, 
 
              Defendant.     
 
         _______________________________________________________________
 
         On November 4, 1993, an arbitration decision was filed by the 
 
         undersigned.  It was drafted by the parties' attorneys for the 
 
         deputy industrial commissioner's signature.
 
         The decision inadvertently forgot to include a provision required 
 
         by Iowa Code section 85.65 as to payments to the Second Injury 
 
         Fund in cases of a death.
 
         The following is therefore added to said decision as if it were 
 
         in the original decision:
 
         This decision also finds that under the provisions of Iowa Code 
 
         section 85.65, the employer shall pay to the Treasurer of the 
 
         State for the Second Injury Fund, four thousand dollars ($4,000).
 
         All the other provisions remain the same.
 
         
 
              Signed and filed this ____ day of November, 1993.
 
         
 
         
 
         
 
                                       ______________________________
 
                                       BERNARD J. O'MALLEY
 
                                       DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies to:
 
         
 
         Mr Barry Moranville
 
         Attorney at Law
 
         101 22nd St  Ste 212
 
         West Des Moines IA 50265
 
         
 
         Mr Jeffrey Taylor
 
         Attorney at Law
 
         P O Box 10020
 
         Cedar Rapids IA 52410-0020
 
         
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            EDWIN ROLING,                 :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :       File No. 913275
 
            CITY OF DUBUQUE,              :
 
                                          :    A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            HARTFORD INSURANCE,           :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This is a proceeding in arbitration brought by Edwin 
 
            Roling, claimant, against the City of Dubuque, employer 
 
            (hereinafter referred to as the City), and the Hartford 
 
            Insurance Company, insurance carrier, defendants, for work
 
            ers' compensation benefits as a result of an alleged injury 
 
            on September 14, 1987.  On August 14, 1991, a hearing was 
 
            held on claimant's petition and the matter was considered 
 
            fully submitted at the close of this hearing.
 
            
 
                 The parties have submitted a 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.  Oral testimony and written exhibits were received 
 
            during the hearing from the parties.  The exhibits received 
 
            into the evidence are listed in the prehearing report.
 
            
 
                 According to the prehearing report, the parties have 
 
            stipulated as follows:
 
            
 
                 1.  An employee-employer relationship existed between 
 
            claimant and the City of Dubuque at the time of the alleged 
 
            injury.
 
            
 
                 2.  Claimant is seeking temporary total disability or 
 
            healing period benefits from November 25, 1987.
 
            
 
                 3.  Medical benefits are no longer in dispute.
 
            
 
                                      issues
 
            
 
                 The parties submitted the following issues for determi
 
            nation in this proceeding:
 
            
 
                   I.  Whether claimant received an injury arising out 
 
            of and in the course of employment;
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
                  II.  Whether the claim and the notice of the claim is 
 
            timely pursuant to Iowa Code sections 85.23 and 85.26; and,
 
            
 
                 III.  The extent of claimant's entitlement to disabil
 
            ity benefits.
 
            
 
                                 findings of fact
 
            
 
                 Having heard the testimony and considered all the evi
 
            dence, the deputy industrial commissioner finds as follows:
 
            
 
                 Claimant worked for the City of Dubuque, Iowa for 
 
            10 1/2 years prior to the alleged injury.  Claimant was ter
 
            minated by the City in January 1989, for a physical inabil
 
            ity to perform his work.  Claimant was a serviceman for the 
 
            City.  He worked in the City bus garage.  Among his routine 
 
            motor vehicle maintenance and repair duties, claimant was 
 
            required to lift, slide and maneuver both large bus tires 
 
            weighing over 200 pounds and heavy oil drums weighing 
 
            approximately 400 pounds.
 
            
 
                 From the evidence presented, claimant failed to show 
 
            that he suffered an injury on September 14, 1987 arising out 
 
            of and in the course of his work duties at Dubuque.  
 
            Claimant states that he injured himself when he hit his back 
 
            on the underside of a bumper of a bus while coming out of 
 
            the maintenance pit in the City garage.  There was no docu
 
            mentation or testimony other than from claimant that this 
 
            incident actually occurred and defendants claim that 
 
            claimant lacks credibility.  However, even assuming that 
 
            this incident took place, claimant failed to show that this 
 
            incident resulted in injury.
 
            
 
                 Claimant stated that his back did not hurt much at the 
 
            time of the September 1987 incident.  He did not seek medi
 
            cal attention at that time.  He explained that he did not 
 
            think that the incident was serious.  A few months later on 
 
            November 25, 1987, claimant stated that he fell down while 
 
            climbing up his stairway in his home.  He stated again that 
 
            he did not think he hurt himself seriously but, at this 
 
            time, he sought medical treatment for back pain.  Claimant 
 
            was hospitalized for three days after this second incident.  
 
            During this hospital stay he was treated by J. R. Lewis, 
 
            M.D., and an orthopedist surgeon, Julian G. Nemmers, M.D.  
 
            According to the discharge summary, it was felt by these 
 
            doctors that claimant's symptoms were due to a compression 
 
            fracture of one of the vertebras in claimant's lower spine.  
 
            At that time, both Dr. Lewis and Dr. Nemmers reported that 
 
            claimant provided no history to them of a specific injury.  
 
            Dr. Nemmers reported that claimant told him that he began to 
 
            have pain about a month before.  Dr. Lewis reports that 
 
            claimant had pain since September.
 
            
 
                 After his release from the hospital, claimant underwent 
 
            a recovery period of approximately five months primarily 
 
            under the care of Darryl Mozena, M.D.  Dr. Mozena then 
 
            released claimant to return to work without restrictions.  
 
            However, the City wanted another opinion before they allowed 
 
            a return to work and sought advice from Stephen G. Jacobson, 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            M.D., specialty unknown.  After his examination of claimant 
 
            in June 1988, and a review of the records, Dr. Jacobson felt 
 
            that a 30 pound lifting restriction would be appropriate 
 
            given claimant's history of back problems and his current 
 
            work.  He stated that Dr. Mozena stated to him that he was 
 
            not aware, before he issued a full release, of claimant's 
 
            past back and neck problems or the full extent of his cur
 
            rent work.  Claimant's ability to return to work was also 
 
            evaluated by Dr. Nemmers in August 1988.  After a review of 
 
            claimant's job description, Dr. Nemmers stated that he could 
 
            not allow the duties pertaining to bus tire and oil drum 
 
            changing given the heavy weight of these objects.  Claimant 
 
            was then terminated in January 1989 by the City.  According 
 
            to the hearing testimony of the City transit manager, there 
 
            was no effort by the City to accommodate for claimant's dis
 
            ability.
 
            
 
                 Claimant had an extensive history of back problems 
 
            before the alleged injury.  Sometime in 1966 (the record is 
 
            not exactly clear when) claimant received a surgical fusion 
 
            of two vertebrae in the upper or cervical back.  In 1969, 
 
            following an auto accident, claimant suffered additional 
 
            upper back problems and received a second surgery to verte
 
            bras in the cervical spine.  Following a work injury with 
 
            the City in January 1979, claimant developed low back prob
 
            lems and had a third back surgery in 1979.  Dr. Nemmers 
 
            opined in 1979 that claimant suffered a 10 percent permanent 
 
            partial impairment to the body as a whole as a result of the 
 
            1979 injury and stated that claimant could only return to 
 
            work with moderate restrictions on activities.
 
            
 
                 Given these prior back problems and evidence of a pos
 
            sible subsequent back injury from the stairway fall just 
 
            prior to the hospitalization in November 1987, the under
 
            signed deputy commissioner must rely heavily upon expert 
 
            opinion in determining the issue of causal connection of the 
 
            compression fracture to the September 1987 incident.  But, 
 
            claimant offered no expert testimony that claimant's inci
 
            dent was a likely cause of the compression fracture found in 
 
            November 1987.  The only expert to discuss causal connection 
 
            was Dr. Nemmers in his deposition.  It was Dr. Nemmers' view 
 
            that although it was possible, the incident, as described by 
 
            claimant in September 1987, was not a likely cause.  
 
            Although he felt that the fracture had occurred since 1979, 
 
            he stated that he could not tell whether the fracture was 
 
            old or new.  He also felt that it was more likely recent in 
 
            original due to the onset of severe back pain in November 
 
            1987.
 
            
 
                 In light of the fact that claimant failed to show a 
 
            work injury, findings with reference to the time limits of 
 
            the claim and notice are unnecessary.
 
            
 
                                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 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            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.
 
            
 
                 The claimant has the burden of proving by a preponder
 
            ance 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 temporary 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 determination of whether the 
 
            work injury was a cause of permanent physical impairment or 
 
            permanent limitation in work activity.  However, in some 
 
            instances, such as a job transfer caused by a work injury, 
 
            permanent disability benefits can be awarded without a show
 
            ing of a causal connection to a physical change of condi
 
            tion.  Blacksmith v. All-American, Inc., 290 N.W.2d 348, 354 
 
            (Iowa 1980); McSpadden v. Big Ben 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 failed to show by a 
 
            preponderance of the evidence a work injury.  Given the evi
 
            dence presented, it was just as likely that a subsequent 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            injury in November 1987, was a cause of the compression 
 
            fracture which became symptomatic at the same time.  
 
            Although claimant believes that the incident in September 
 
            was significant, this was his opinion and it does not seem 
 
            to be shared by any medical experts in this case.
 
            
 
                                      order
 
            
 
                 1.  Claimant's petition for workers' compensation bene
 
            fits is dismissed with prejudice and the claim is denied.
 
            
 
                 2.  Claimant shall pay the cost of this action pursuant 
 
            to rule 343 IAC 4.33.
 
            
 
            
 
            
 
                 Signed and filed this ____ day of September, 1991.
 
            
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          LARRY P. WALSHIRE
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. James P. Hoffman
 
            Attorney at Law
 
            Middle Rd
 
            Box 1087
 
            Keokuk  IA  52632
 
            
 
            Mr. David L. Hammer
 
            Ms. Angela C. Simon
 
            Attorneys at Law
 
            806 Cycare Plaza
 
            Dubuque  IA  52001
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                           5-1108
 
                           Filed September 9, 1991
 
                           LARRY P. WALSHIRE
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
		                      :
 
            EDWIN ROLING, 	      :
 
                      		      :
 
                 Claimant, 	      :
 
                		      :
 
		            vs.       :
 
		                      :      File No. 913275
 
            CITY OF DUBUQUE, 	      :
 
		                      :    A R B I T R A T I O N
 
                 Employer, 	      :
 
		                      :       D E C I S I O N
 
        	    and 	      :
 
                      		      :
 
            HARTFORD INSURANCE,       :
 
		                      :
 
                 Insurance Carrier,   :
 
                 Defendants.          :
 
            ___________________________________________________________
 
            
 
            
 
            
 
            5-1108
 
            Claimant denied for failure to show medical causation.