Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            JANET DAWDY,                  :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No.  920139
 
            SIOUXLAND QUALITY MEATS,      :
 
                                          :  A R B I T R A T I O N
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            THE HARTFORD,                 :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding in arbitration brought by Janet 
 
            Dawdy as a result of injuries to her head, neck and upper 
 
            back which occurred on March 17, 1989.  Defendants denied 
 
            compensability for the injury and paid no benefits.
 
            
 
                 The case was heard and fully submitted at Sioux City, 
 
            Iowa, on April 11, 1991.  The record in the proceeding 
 
            consists of joint exhibits 1 through 20, defendants' 
 
            exhibits 1 through 5 and testimony from claimant, James 
 
            Dawdy and Jean Warren.
 
            
 
                                      issues
 
            
 
                 The issues presented for determination are as follows:
 
            
 
                 1.  Arising out of and in the course of employment;
 
            
 
                 2.  Casual connection of the alleged injury to 
 
            temporary disability and the extent thereof;
 
            
 
                 3.  Causal connection of the alleged injury to 
 
            permanent disability and the extent of industrial 
 
            disability;
 
            
 
                 4.  Commencement date for permanent partial disability;
 
            
 
                 5.  Entitlement to medical benefits under Iowa Code 
 
            section 85.27; and
 
            
 
                 6.  Defendants' entitlement to section 85.38(2) credit 
 
            for medical benefits.
 
            
 
                                 findings of fact
 
            
 
                 Having considered all the evidence received the 
 
            following findings of fact are made:
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
                 Claimant was employed as a quality control inspector by 
 
            Siouxland Quality Meats on March 17, 1989.  On that date she 
 
            was working at the Boyden, Iowa packing plant which is about 
 
            60 miles one way from Sioux City.  Employer also has a 
 
            packing plant in Sioux City, Iowa.  Claimant lived in Sioux 
 
            City, Iowa, and occasionally performed work at the Sioux 
 
            City plant, notwithstanding her full-time assignment to the 
 
            Boyden plant on August 18, 1988 (defendants' exhibit 3).
 
            
 
                 Claimant drove from her home in Sioux City, Iowa to 
 
            Boyden each day, which is a round trip of about 120 miles.  
 
            Employer paid claimant 22 cents per mile for the travel to 
 
            and from the Boyden plant.  Evidence indicated that claimant 
 
            was not required to supply an automobile for her job.  
 
            However, it is clear that employer did not provide 
 
            transportation for claimant when commuting to the Boyden 
 
            plant.  It is found that the use of claimant's personal 
 
            automobile when commuting was necessary in order for her to 
 
            perform her duties at the Boyden plant.  Employer benefited 
 
            from claimant's use of her own automobile as demonstrated by 
 
            the 22 cents per mile reimbursement.
 
            
 
                 Claimant stated that she left for work each morning 
 
            direct from her home in Sioux City, Iowa.  She stated that 
 
            as a general rule she would return direct to her home after 
 
            completing a full day of work in Boyden.
 
            
 
                 On Mondays, claimant's routine included a stop at the 
 
            Sioux City, Iowa, plant in order to make deliveries and to 
 
            attend meetings.  When claimant finished work early at 
 
            Boyden she would also return to the Sioux City plant in 
 
            order to perform further work for employer.  Claimant's 
 
            paychecks were also issued at the Sioux City plant.  
 
            Occasionally claimant would pick up the checks in person, 
 
            but more often a family member picked up the checks on her 
 
            behalf.
 
            
 
                 Claimant was reimbursed at the rate of 22 cents per 
 
            mile for 120 miles per day for each trip to Boyden.  Jean 
 
            Warren, who was an accounting manager for employer at the 
 
            time of injury, stated that the mileage was meant to 
 
            reimburse employees for travel from the Sioux City plant to 
 
            the Boyden plant.  No written policy was offered as 
 
            evidence.  Actual practice was for employees to leave from 
 
            their home and travel direct to Boyden without stopping at 
 
            the Sioux City plant.
 
            
 
                 Warren also stated that claimant was not paid for her 
 
            travel time to and from the Boyden plant.  However, it is 
 
            noted that claimant worked as a salaried employee.  Claimant 
 
            did not punch a time card or collect overtime for extra 
 
            hours worked.  Claimant often worked in excess of 12 hours 
 
            per day according to her testimony.
 
            
 
                 Having set forth the background information concerning 
 
            claimant's employment as a salaried employee who was paid 
 
            for travel to and from Boyden, Iowa, the specific facts of 
 
            the injury can now be explored.
 
            
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
                 On March 17, 1989, claimant left her home in the early 
 
            morning and drove to Boyden, Iowa, in order to perform work 
 
            for employer.  Claimant was paid mileage for this trip per 
 
            the established practice (joint exhibit 17, page 26 and jt. 
 
            ex. 4).  While at the plant in Boyden, claimant received a 
 
            message that she was to transport gallstones to the Sioux 
 
            City plant upon her return home.  The gallstones were 
 
            transported as a convenience to the employer and had an 
 
            estimated value of $5000 to $6000 (jt. ex. 17, pp. 28 and 
 
            40; def. ex. 1, p. 2).
 
            
 
                 Claimant did transport the gallstone material to 
 
            employer's Sioux City facility on March 17, 1989.  While at 
 
            the Sioux City plant, claimant requested her weekly 
 
            paycheck, but it was not available.  Claimant then departed 
 
            the Sioux City facility and proceeded toward her home.  
 
            While en route, claimant's vehicle was struck in the rear by 
 
            another automobile.  Claimant's head hit the back window and 
 
            she sustained injuries to her head, neck and upper back.  
 
            Claimant experienced pain and vomiting immediately after the 
 
            collision.  She was taken to the hospital and a long period 
 
            of convalescence followed.  Claimant was diagnosed as having 
 
            incurred a myoligamentous strain of the neck and upper back 
 
            (def. ex. 4, pp. 9 and 10; jt. ex. 9, p. 4).
 
            
 
                 Claimant was initially treated by J.L. Weidemeier, M.D.  
 
            She was later referred to Lionel H. Herrera, M.D., for 
 
            treatment.  On February 25, 1991, Dr. Herrera found that 
 
            claimant's condition had reached maximum medical improvement 
 
            and that 4 percent permanent partial impairment existed (jt. 
 
            ex. 13, p. 13).  However, Dr. Herrera did not state a causal 
 
            connection between the permanent disability and the March 
 
            17, 1989 injury.
 
            
 
                 The first issue is whether on March 17, 1989, while 
 
            driving home, claimant incurred an injury arising out of and 
 
            in the course of employment.
 
            
 
                 The general rule is that going to and coming from the 
 
            regular place of work does not place a claimant in the 
 
            course of employment.  In the case at hand, claimant's usual 
 
            travel to and from her work in Boyden originated and ended 
 
            at her home in Sioux City.  It was only on Mondays that her 
 
            work day usually ended at the Sioux City plant location.  On 
 
            Friday, March 17, 1989, claimant was instructed by employer 
 
            to transport a package of employer's gallstones from the 
 
            Boyden plant to the Sioux City plant.  This directive caused 
 
            claimant to deviate from her normal course on her way home.  
 
            It is found that transport of the gallstones was a special 
 
            errand directly related to claimant's employment and 
 
            benefited the employer.  The fact that claimant attempted to 
 
            pick up her paycheck does not change the business purpose of 
 
            her errand.  But for employer's special request to deliver 
 
            gallstones, claimant would not have deviated her course to 
 
            the Sioux City plant.
 
            
 
                 Claimant's travel on March 17, 1989, both to the Sioux 
 
            City plant and on her way home, was a special trip made in 
 
            response to a special request by employer so as to achieve a 
 
            fast delivery of a package of gallstones.  The transport of 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            the gallstones benefited employer in that a sale of an 
 
            accumulation of the stones was forthcoming.
 
            
 
                 It is found that on March 17, 1989, claimant sustained 
 
            an injury to her head, neck and upper back arising out of 
 
            and in the course of employment when the vehicle she was 
 
            driving was struck from behind by another vehicle.
 
            
 
                 The next issue to be decided is whether the injury is a 
 
            cause of permanent disability.
 
            
 
                 One opinion on permanent partial impairment was issued.  
 
            Dr. Herrera, the treating physician, found 4 percent 
 
            permanent partial impairment to the body as a whole (jt. ex. 
 
            13, p. 13).  However, he did not state that the 4 percent 
 
            impairment was causally connected to the March 17, 1989, 
 
            injury (jt. ex. 4, p. 27).  To find that the 4 percent was 
 
            an assessment of work-related disability would be unduly 
 
            speculative in light of Dr. Herrera's prior statements 
 
            anticipating no disability (def. ex. 4, p. 10).  It is found 
 
            that claimant has failed to bring forth sufficient credible 
 
            medical evidence which proves by a preponderance of the 
 
            evidence that the injury of March 17, 1989, caused permanent 
 
            disability.
 
            
 
                 The next issue to be decided concerns claimant's 
 
            entitlement to temporary total disability benefits.
 
            
 
                 Claimant was hospitalized on March 17, 1989, as a 
 
            result of the auto accident, but had already been 
 
            compensated for a full day of work for employer.  It follows 
 
            that temporary total disability begins on the next day which 
 
            is March 18, 1989.
 
            
 
                 Starting on March 17, 1989 and continuing through 
 
            February 19, 1991, claimant was under continuous active 
 
            medical care for her headaches, neck and upper back pain.  
 
            No release to return to work was issued by a doctor prior to 
 
            the report dated February 19, 1991, which released claimant 
 
            to perform light duty work effective February 25, 1991 (jt. 
 
            ex. 13, p. 13).
 
            
 
                 Defendants brought forth evidence of nonwork-related 
 
            stress and a nonwork-related low back injury (def. ex. 4, 
 
            pp. 24 and 27).  It is found that the stress and a low back 
 
            complaints were minor in comparison to claimant's 
 
            work-related headaches, neck and upper back pain.  Even if 
 
            she had not incurred the stress and low back problems, 
 
            claimant would still have been unable to resume gainful 
 
            employment due to the severity of her upper back injury as 
 
            demonstrated by the February 12, 1991, occupational therapy 
 
            assessment (jt. ex. 13, p. 11). 
 
            
 
                 Furthermore, defendants failed to offer sufficient 
 
            credible medical evidence which established that claimant's 
 
            temporary disability would have lessened had she not 
 
            incurred nonwork complications.
 
            
 
                 It is found that claimant has proven by a preponderance 
 
            of the evidence that as a result of the March 17, 1989, 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            injury to her head, neck and upper back she was temporarily 
 
            totally disabled beginning March 18, 1989 through February 
 
            24, 1991.
 
            
 
                 The next issue concerns claimant's entitlement to Iowa 
 
            Code section 85.27 benefits.
 
            
 
                 Defendants disputed that the medical expenses were 
 
            authorized by employer.  In this case, defendants denied 
 
            liability as evidence by the hearing assignment order filed 
 
            May 11, 1990 and the prehearing report and order approving 
 
            the same which was presented at hearing.  Defendants are 
 
            precluded from directing medical care while at the same time 
 
            denying liability.  Defendants' authorization is found to be 
 
            without merit as liability was denied.
 
            
 
                 It is also disputed that a causal connection of the 
 
            expenses to a work injury existed.  It is true that claimant 
 
            incurred some nonwork-related stress and low back pain.  
 
            However, the evidence, when viewed as a whole, indicates 
 
            that no additional expense was incurred for treatment of 
 
            these minor intervening factors.  Claimant's medical 
 
            expenses would have been incurred even if she had not 
 
            incurred the nonwork stress and low back pain.  It is found 
 
            that the medical expenses itemized in claimant's exhibit 20 
 
            are causally connected to the March 17, 1989 injury.
 
            
 
                 It is also disputed that the expenses were incurred for 
 
            reasonable and necessary medical treatment.  Having reviewed 
 
            the medical evidence as a whole it is found that the medical 
 
            expenses were incurred for reasonable and necessary medical 
 
            treatment.  The treatment provided was directed at 
 
            alleviating neck, upper back and head pain.  Claimant 
 
            eventually did obtain some relief as evidenced by the 
 
            medical exhibits and her return to light duty work.
 
            
 
                 Defendants allege entitlement to a credit for payment 
 
            of medical benefits under a nonoccupational group plan in 
 
            the amount of $10,782.23.  The evidence indicates that the 
 
            medical benefits were paid by claimant's private automobile 
 
            insurance carrier.  No evidence was presented revealing that 
 
            the automobile insurance was a group plan contributed wholly 
 
            or partially by employer as required by Iowa Code section 
 
            85.38.  Defendants' claim for credit under section 85.38(2), 
 
            therefore, fails.
 
            
 
                 The final subissue concerning medical benefits concerns 
 
            the amount claimant is to be reimbursed.  It is established 
 
            precedent that claimant may only receive direct 
 
            reimbursement for medical expenses paid from her own funds.  
 
            However, defendants are still responsible for payment of 
 
            claimant's medical expenses.
 
            
 
                                conclusions of law
 
            
 
                 Claimant has the burden of proving by a preponderance 
 
            of the evidence that she received an injury on March 17, 
 
            1989, which arose out of and in the course of her 
 
            employment.  McDowell v. Town of Clarksville, 241 N.W.2d 904 
 
            (Iowa 1976); Musselman v. Central Telephone Co., 261 Iowa 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            352, 154 N.W.2d 128 (1967). 
 
            
 
                  "An injury occurs in the course of the employment when 
 
            it is within the period of employment at a place the 
 
            employee may reasonably be, and while he is doing his work 
 
            or something incidental to it."  Cedar Rapids Comm. Sch. 
 
            Dist. v. Cady, 278 N.W.2d 298 (Iowa 1979), McClure v. Union 
 
            et al. Counties, 188 N.W.2d 283 (Iowa 1971); Musselman, 261 
 
            Iowa 352, 154 N.W.2d 128. 
 
            
 
                 Ordinarily an employee whose work begins when he 
 
                 arrives in the morning is engaged in his own 
 
                 business when he travels to work at the regular 
 
                 time.  He is not then pursuing his master's 
 
                 business.  But the same employee would be pursuing 
 
                 his master's business if his trip to and from the 
 
                 employer's premises were a special trip made in 
 
                 response to special request, agreement or 
 
                 instructions to go from his home to the plant to 
 
                 do something for the employer's benefit.  In that 
 
                 case it is clear the entire trip would be his 
 
                 master's business and by all authorities would be 
 
                 held to be in the course of the employment.  The 
 
                 reason for the so-called general rule announced by 
 
                 Chief Justice Hughes is that ordinarily the 
 
                 hazards the workmen encounter in such journeys are 
 
                 not incident to the employer's business.  But he 
 
                 said: "*** this general rule is subject to 
 
                 exceptions which depend upon the nature and 
 
                 circumstances of the particular employment." Voehl 
 
                 v. Indemnity Ins. Co., 288 U.S. 162, 169, 53 S. 
 
                 Ct. 380, 382, 77 L. Ed. 676, 87 A.L.R. 245.
 
            
 
            [Pribyl v. Standard Electric Co., 246 Iowa 333, 339 67 
 
            N.W.2d 438, 442 (1954).  See also Pohler v. T.W. Constr. 
 
            Co., 239 Iowa 1019, 33 N.W.2d 416 (1948); Kyle v. Greene 
 
            High School, 208 Iowa 1037, 226 N.W. 71 (1929).]
 
            
 
                 Claimant has proven by a preponderance of the evidence 
 
            that on March 17, 1989, she sustained an injury to her head, 
 
            neck and upper back arising out of and in the course of 
 
            employment with employer.
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury of March 17, 
 
            1989, is causally related to the disability on which she now 
 
            bases her claim.  Bodish v. Fischer, Inc., 257 Iowa 516, 133 
 
            N.W.2d 867 (1965).  Lindahl v. L. O. Boggs, 236 Iowa 296, 18 
 
            N.W.2d 607 (1945).  A possibility is insufficient; a 
 
            probability is necessary.  Burt v. John Deere Waterloo 
 
            Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955).  The 
 
            question of causal connection is essentially within the 
 
            domain of expert testimony.  Bradshaw v. Iowa Methodist 
 
            Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). 
 
            
 
                 Claimant has failed to prove by a preponderance of the 
 
            evidence that the injury of March 17, 1989, caused permanent 
 
            disability.
 
            
 
                 Except as provided in subsection 2 of this 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
                 section, the employer shall pay to an employee for 
 
                 injury producing temporary total disability weekly 
 
                 compensation benefits, as provided in section 
 
                 85.32, until the employee has returned to work or 
 
                 is medically capable of returning to employment 
 
                 substantially similar to the employment in which 
 
                 the employee was engaged at the time of injury, 
 
                 whichever occurs first.
 
            
 
            [Iowa Code section 85.33(1)]
 
            
 
                 Claimant has proven entitlement to temporary total 
 
            disability benefits beginning March 18, 1989 through 
 
            February 24, 1991.
 
            
 
                 The employer, for all injuries compensable under 
 
            chapter 85 or chapter 85A, shall furnish reasonable 
 
            surgical, medical, dental, osteopathic, chiropractic, 
 
            podiatric, physical rehabilitation, nursing, ambulance and 
 
            hospital services and supplies; therefore, and shall allow 
 
            reasonable necessary transportation expenses incurred for 
 
            such services.  The employer has the right to choose the 
 
            provider of care.  Iowa Code section 85.27.
 
            
 
                  "Claimant is not entitled to reimbursement for medical 
 
            bills unless he shows that he paid them from his own funds."  
 
            See Caylor v. Employers Mut. Cas. Co., 337 N.W.2d 890 
 
            (Iowa App. 1983).
 
            
 
                 Claimant has established entitlement to payment for 
 
            medical expenses set forth in claimant's exhibit 20.  
 
            Claimant is entitled to direct reimbursement for the 
 
            expenses paid from her own funds.
 
            
 
                    Credit for benefits paid under group plans.  In 
 
                 the event the disabled employee shall receive any 
 
                 benefits, including medical, surgical or hospital 
 
                 benefits, under any group plan covering 
 
                 nonoccupational disabilities contributed to wholly 
 
                 or partially by the employer, which benefits 
 
                 should not have been paid or payable if any rights 
 
                 of recovery existed under this chapter, chapter 
 
                 85A or chapter 85B, then such amounts so paid to 
 
                 said employee from any such group plan shall be 
 
                 credited to or against any compensation payments, 
 
                 including medical, surgical or hospital, made or 
 
                 to be made under this chapter, chapter 85A or 
 
                 chapter 85B.  Such amounts so credited shall be 
 
                 deducted from the payments made under these 
 
                 chapters.  Any nonoccupational plan shall be 
 
                 reimbursed in the amount so deducted.  This 
 
                 section shall not apply to payments made under any 
 
                 group plan which would have been payable even 
 
                 though there was an injury under this chapter or 
 
                 an occupational disease under chapter 85A or an 
 
                 occupational hearing loss under chapter 85B.  Any 
 
                 employer receiving such credit shall keep such 
 
                 employee safe and harmless from any and all claims 
 
                 or liabilities that may be made against them by 
 
                 reason of having received such payments only to 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
                 the extent of such credit.
 
            
 
                 Defendants have failed to establish entitlement for a 
 
            credit under Iowa Code section 85.38(2) for payment of 
 
            medical benefits by claimant's automobile insurance company.
 
            
 
                                      order
 
            
 
                 IT IS THEREFORE, ORDERED:
 
            
 
                 Defendants are to pay claimant temporary total 
 
            disability benefits at the rate of one hundred ninety-eight 
 
            and 43/100 dollars ($198.43) for the period March 18, 1989 
 
            through February 24, 1991.
 
            
 
                 Defendants are to pay claimant's Iowa Code section 
 
            85.27 expenses listed in claimant's exhibit 20 as outlined 
 
            in the opinion.
 
            
 
                 It is further ordered that defendants shall receive 
 
            credit for benefits previously paid.
 
            
 
                 It is further ordered that all accrued benefits are to 
 
            be paid in a lump sum.
 
            
 
                 It is further ordered that interest will accrue 
 
            pursuant to Iowa Code section 85.30. 
 
            
 
                 It is further ordered that the costs of this action are 
 
            assessed against defendants pursuant to rule 343 IAC 4.33.
 
            
 
                 It is further ordered that defendants file claim 
 
            activity reports as requested by this agency pursuant to 
 
            rule 343 IAC 3.1.
 
            
 
                 
 
            
 
                 
 
            
 
                 Signed and filed this ____ day of May, 1991.
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          MARLON D. MORMANN
 
                                          DEPUTY INDUSTRIAL COMMISSIONER    
 
            
 
            Copies to:
 
            
 
            Mr. Robert Green
 
            Attorney at Law
 
            215 Benson Bldg.
 
            Sioux City, Iowa  51101
 
            
 
            Mr. James M. Cosgrove
 
            Mr. James P. Comstock
 
            Attorneys at Law
 
            1109 Badgerow Bldg.
 
            PO Box 1828
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            Sioux City, Iowa  51102
 
            
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
                      51100 51801 51803 51108
 
                      Filed May 8, 1991
 
                      Marlon D. Mormann
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            JANET DAWDY,                  :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No.  920139
 
            SIOUXLAND QUALITY MEATS,      :
 
                                          :  A R B I T R A T I O N
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            THE HARTFORD,                 :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            51100
 
            Claimant sustained an injury while driving home after 
 
            delivering a package of gallstones to employer.  The 
 
            delivery of the stones was made at employer's request and 
 
            found to be a special errand.
 
            
 
            51801 51803 51108
 
            Claimant established entitlement to temporary total 
 
            disability, but failed to prove permanent partial disability 
 
            as no medical opinion causally connected the work injury to 
 
            the permanent impairment or work restrictions.
 
            
 
 
            
 
 
 
 
 
 
 
 
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
            LARRY E. GERBITZ,     
 
                        
 
                 Claimant,   
 
                                             File No. 920169
 
            vs.         
 
                                               A P P E A L
 
            SECOND INJURY FUND OF IOWA,     
 
                                            D E C I S I O N
 
                 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 September 11, 1991 is affirmed and is adopted as the 
 
            final agency action in this case.
 
            Claimant shall pay the costs of the appeal, including the 
 
            preparation of the hearing transcript.
 
            Signed and filed this ____ day of October, 1992.
 
            
 
            
 
            
 
            
 
                                   ________________________________
 
                                           BYRON K. ORTON
 
                                     INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. John H. Westensee
 
            Attorney at Law
 
            1705 2nd Ave.
 
            Rock Island, IL  61201
 
            
 
            Mr. Robert D. Wilson
 
            Assistant Attorney General
 
            Tort Claims Division
 
            Hoover State Office Bldg.
 
            Des Moines, Iowa 50319
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                           9998
 
                                           Filed October 28, 1992
 
                                           Byron K. Orton
 
 
 
                   BEFORE THE IOWA INDUSTRIAL COMMISSIONER            
 
            ____________________________________________________________
 
            LARRY E. GERBITZ,     
 
                        
 
                 Claimant,   
 
                                              File No. 920169
 
            vs.         
 
                                               A P P E A L
 
            SECOND INJURY FUND OF IOWA,     
 
                                             D E C I S I O N
 
                 Defendant.       
 
                        
 
            ____________________________________________________________
 
            
 
            9998
 
            
 
                 Summary affirmance of deputy's decision filed September 
 
            11, 1991.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            LARRY E. GERBITZ,             :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :      File No. 920169
 
                                          :
 
            IBP, INC.,                    :    A R B I T R A T I O N
 
                                          :
 
                 Employer,                :      D E C I S I O N
 
                 Self-Insured,            :
 
                                          :
 
            and                           :
 
                                          :
 
            SECOND INJURY FUND OF IOWA,   :
 
                                          :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                                   introduction
 
            
 
                 This is a proceeding in arbitration brought by 
 
            claimant, Larry Gerbitz, against the Second Injury Fund of 
 
            Iowa as the sole defendant.
 
            
 
                 Claimant sustained work-related injuries on July 31, 
 
            1987 and December 16, 1987.
 
            
 
                 The case was heard at Davenport, Iowa on July 29, 1991 
 
            and was considered fully submitted upon conclusion of the 
 
            hearing.
 
            
 
                 The record in this proceeding consists of the testimony 
 
            of the claimant; claimant's exhibit A; and, joint exhibits 
 
            1-5.
 
            
 
                 On the day following the hearing, a representative from 
 
            claimant's attorney's office gave the undersigned additional 
 
            information to be considered as evidence in this case.  
 
            Although the defendant Fund agreed to the admission of 
 
            claimant's exhibit, the undersigned is unable to accept 
 
            evidence after the hearing has been completed.  See, rule 
 
            343 IAC 4.31 (no evidence shall be taken after the hearing).
 
            
 
                                      issue
 
            
 
                 Pursuant to the prehearing report submitted and 
 
            approved at the hearing, and in conjunction with the hearing 
 
            assignment order, the sole issue to be determined is whether 
 
            claimant has sustained an industrial disability.
 
            
 
                                 findings of fact
 
            
 
                 The undersigned deputy, having heard the testimony and 
 
            having thoroughly reviewed all of the evidence received, 
 
            finds the following facts:
 
            
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
                 Claimant is a 46-year-old right handed man, married 
 
            with one child.  He completed the ninth grade, and obtained 
 
            his GED in 1965 while serving in the Army.  Claimant was in 
 
            the infantry for three years, and in aviation for three 
 
            years, and worked primarily as a helicopter mechanic and 
 
            crew chief while in the service.
 
            
 
                 Prior to joining the Army, claimant worked at a dairy 
 
            farm in a position which required him to help bottle milk 
 
            and operate milking machines.  He described this position as 
 
            a light manual labor job.
 
            
 
                 Claimant has held other light manual labor positions, 
 
            including managing a Texaco gasoline station, and working as 
 
            a sample carrier in a sugar factory.  Claimant has also 
 
            worked as a maintenance man for the city of Thornton, 
 
            Colorado, which required him to work on pumps, motors and 
 
            check water pressures.  Claimant has also worked as a press 
 
            operator and as a security person.
 
            
 
                 In 1987, claimant began to work for the IBP plant in 
 
            Columbus Junction, Iowa.  Claimant was placed on the sausage 
 
            line, and was given a Whizard knife to trim fat from the 
 
            meat.  Claimant stated the products weighed two to three 
 
            pounds, and that the finished product was placed in a bucket 
 
            and lifted to a chain above his head.  He stated that the 
 
            bucket would weigh between 20 and 25 pounds.  Claimant would 
 
            place a bucket overhead on the chain every five to ten 
 
            minutes.  He worked ten hours per day, Monday through 
 
            Friday, and a eight hour shift on Saturdays.
 
            
 
                 The day claimant started at the plant, he sustained a 
 
            work-related injury to his right knee.  As a result of the 
 
            injury, claimant underwent arthroscopic surgery which 
 
            revealed broken ligaments and cartilage.  The surgery was 
 
            performed by William Catalona, M.D., an orthopedic surgeon 
 
            and the plant physician.  Specifically, Dr. Catalona found a 
 
            ruptured anterior cruciate; a partial tear and degeneration 
 
            of the posterior horn of the lateral meniscus; an ulceration 
 
            with chondromalacia of the medial femoral condyle; and, 
 
            moderate chondromalacia of the patella and degeneration of 
 
            the posterior horn of the lateral meniscus.  Surgery was 
 
            performed on September 3, 1987, and claimant remained under 
 
            Dr. Catalona's care until September 27, 1987, when he was 
 
            released to return to work at IBP with restrictions of no 
 
            frequent squatting, climbing stairs, jumping or running.  
 
            (Joint Exhibit 4).
 
            
 
                 Claimant has been given several functional impairment 
 
            ratings due to the injury and subsequent surgery to the 
 
            right knee.  Dr. Catalona concluded that claimant had 
 
            sustained a 20 percent impairment to the right lower 
 
            extremity.  (Jt. Ex. 4).  Apparently, claimant secured a 
 
            second opinion from an independent medical evaluator, Rouben 
 
            Mirbegian, M.D., an orthopedic surgeon.  He examined 
 
            claimant on June 21, 1989, and upon positive findings, found 
 
            claimant to have a 27 percent permanent impairment of the 
 
            right lower extremity.  It is not clear whether Dr. 
 
            Mirbegian relied solely upon his examination in order to 
 
            reach his conclusion, or if he had additional medical 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            information upon which to rely.  (Jt. Ex. 7).
 
            
 
                 Claimant also underwent an evaluation performed by 
 
            Anthony D'Angelo, D.O.  On July 25, 1988, Dr. D'Angelo 
 
            concluded that claimant had sustained a 33 percent 
 
            impairment of the right lower extremity due to the injury at 
 
            IBP.  (Jt. Ex. 5).
 
            
 
                 Claimant also received a permanent impairment rating 
 
            from F. Dale Wilson, M.D.  His report dated August 2, 1990, 
 
            provides the following information:
 
            
 
                 In reply to your request for Permanent Impairment 
 
                 Ratings I have prepared the following schedule 
 
                 from A.M.A. Guide:
 
            
 
                 33% Right leg       =    13% Person
 
             8% Right arm       =     5% Person
 
            15% Left arm        =     9% Person
 
            
 
                 Combine 13, 9 = 21, 5 = 25% Person
 
            
 
                 25% total personal permanent disability.
 
            
 
            (Jt. Ex. 8)
 
            
 
                 Once claimant was released to return to work, he 
 
            returned to employment with IBP and subsequently sustained 
 
            bilateral injuries to his wrists due to the repetitive 
 
            nature of his job.  He was sent to the Muscatine Health 
 
            Center and was treated by Forrest Dean, M.D.  Dr. Dean 
 
            diagnosed a severe nerve latency across the carpal tunnel 
 
            and referred claimant to Dr. Catalona for consideration of 
 
            bilateral nerve decompression surgeries.  (Jt. Ex. 2).
 
            
 
                 On January 28, 1988, claimant presented to Dr. 
 
            Catalona, who diagnosed bilateral carpal tunnel syndrome, 
 
            worse on the right wrist.  He recommended and subsequently 
 
            performed a decompression of the median nerve in the carpal 
 
            tunnel on the right side.  (Jt. Ex. 4).  Claimant has not 
 
            had surgery to the left wrist.
 
            
 
     
 
            
 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            Dr. Catalona made the following assessment on June 6, 1988:
 
            
 
                    I have been treating the above since 8/7/87 for 
 
                 a rt knee injury and a R carpal tunnel syndrome 
 
                 which required surgery.
 
            
 
                    In my opinion Mr. Gerbitz is physically 
 
                 disabled from returning to his job permanently.
 
            
 
            (Jt. Ex. 4).
 
            
 
                 In addition to the ratings by Dr. Wilson, claimant has 
 
            been given several additional impairment ratings with 
 
            respect to the carpal tunnel injuries.
 
            
 
                 Dr. D'Angelo, on July 25, 1988, stated that claimant 
 
            had sustained the following impairments:
 
            
 
                 It is my opinion there is an 8% impairment of the 
 
                 right upper extremity secondary to loss of 
 
                 strength and some persistent numbness and 
 
                 tingling.
 
            
 
                 ....
 
            
 
                 An impairment was determined to the left upper 
 
                 extremity as per patient's request.  It is my 
 
                 opinion a carpal tunnel syndrome is present.  
 
                 Current impairment rating to the left upper 
 
                 extremity is that of 15% on the basis of loss of 
 
                 strength, numbness and tinglilng. [sic]  I would 
 
                 expect this impairment to improve if patient 
 
                 underwent surgical decompression.
 
            
 
            (Jt. Ex. 5)
 
            
 
                 Dr. Mirbegian also documented his opinion with respect 
 
            to claimant's impairment due to the carpal tunnel problems.  
 
            His records indicate that claimant has a five percent 
 
            functional permanent impairment of his right upper extremity 
 
            due to the condition of his right hand.  Dr. Mirbegian did 
 
            not feel claimant had permanent impairment of the left upper 
 
            extremity due to the carpal tunnel symptoms.  (Jt. Ex. 7).
 
            
 
                 Since the right carpal tunnel release, claimant quit 
 
            his job with IBP, and has secured employment delivering 
 
            papers.  He works approximately three and one/half hours per 
 
            day, and earns gross wages of $300 per week.
 
            
 
                         analysis and conclusions of law
 
            
 
                 The sole issue to be addressed is whether claimant has 
 
            sustained an industrial disability and the extent of the 
 
            liability of the Second Injury Fund of Iowa.
 
            
 
                 An employee is entitled to compensation for any and all 
 
            personal injuries which arise out of and in the course of 
 
            the employment.  Section 85.3(1).
 
            
 
                 Section 85.64 governs Second Injury Fund liability.  
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            Before liability of the Fund is triggered, three 
 
            requirements must be met.  First, the employee must have 
 
            lost or lost the use of a hand, arm, foot, leg or eye.  
 
            Next, the employee must sustain a loss or loss of use of 
 
            another specified member or organ through a compensable 
 
            injury.  Finally, permanent disability must exist as to both 
 
            the initial injury and the second injury.
 
            
 
                 The Second Injury Fund Act exists to encourage the 
 
            hiring of handicapped persons by making a current employer 
 
            responsible only for the amount of disability related to an 
 
            injury occurring while that employer employed the 
 
            handicapped individual as if the individual had had no 
 
            preexisting disability.  See Anderson v. Second Injury Fund, 
 
            262 N.W.2d 789 (Iowa 1978); Lawyer and Higgs, Iowa Workers' 
 
            Compensation-Law and Practice, section 17-1.
 
            
 
                 The Fund is responsible for the difference between 
 
            total disability and disability for which the employer at 
 
            the time of the second injury is responsible.  Section 
 
            85.64.  Second Injury Fund v. Neelans, 436 N.W.2d 335 (Iowa 
 
            1989); Second Injury Fund v. Mich. Coal Co., 274 N.W.2d 300 
 
            (Iowa 1970).
 
            
 
                 Interest accrues on benefits the Fund pays commencing 
 
            on the date of the decision.  Second Injury Fund of Iowa v. 
 
            Braden, 459 N.W.2d 467 (Iowa 1990).
 
            
 
                 As examined under the Facts section of this decision, 
 
            claimant sustained a prior permanent disability to his left 
 
            lower extremity.  Impairment ratings for this particular 
 
            extremity range from 20 percent to 33 percent permanent 
 
            functional impairment.
 
            
 
                 Defendant Second Injury Fund argues that it is relieved 
 
            of liability because claimant's prior injuries are not 
 
            disabilities which caused lost employment opportunities.  
 
            The defendant Fund also argues that because claimant 
 
            sustained a bilateral injury, he does not meet the criteria 
 
            necessary under the applicable code section.
 
            
 
                 The undersigned is not persuaded by either of the 
 
            Fund's arguments.  The basic principal behind the 
 
            establishment of the fund was to encourage employers to hire 
 
            employees who suffer preexisting disabilities.  To hold that 
 
            claimant would not be entitled recover benefits from the 
 
            Fund merely because he sustained two injuries on account of 
 
            one episode would defeat the purpose behind the Fund's 
 
            intent.  And, as claimant has sustained some permanent 
 
            injuries, lost employment opportunities are possible.
 
            
 
                 Having rejected the Fund's arguments, it is found that 
 
            case presents sufficient facts to warrant holding the Fund 
 
            responsible for the amount of industrial disability which 
 
            remains after the prior impairments, and the amount of 
 
            disability which resulted from the latter injury, are 
 
            subtracted.
 
            
 
                 It is necessary to evaluate claimant's industrial 
 
            disability.
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            
 
                 Functional impairment is an element to be considered in 
 
            determining industrial disability which is the reduction of 
 
            earning capacity, but consideration must also be given to 
 
            the injured employee's age, education, qualifications, expe
 
            rience and inability to engage in employment for which he is 
 
            fitted.  Olson v. Goodyear Service Stores, 255 Iowa 1112, 
 
            125 N.W.2d 251 (1963).  Barton v. Nevada Poultry, 253 Iowa 
 
            285, 110 N.W.2d 660 (1961).
 
            
 
                 A finding of impairment to the body as a whole found by 
 
            a medical evaluator does not equate to industrial disabil
 
            ity.  This is so as impairment and disability are not syn
 
            onymous.  Degree of industrial disability can in fact be 
 
            much different than the degree of impairment because in the 
 
            first instance reference is to loss of earning capacity and 
 
            in the latter to anatomical or functional abnormality or 
 
            loss.  Although loss of function is to be considered and 
 
            disability can rarely be found without it, it is not so that 
 
            a degree of industrial disability is proportionally related 
 
            to a degree of impairment of bodily function.
 
            
 
                 Factors to be considered in determining industrial dis
 
            ability include the employee's medical condition prior to 
 
            the injury, immediately after the injury, and presently; the 
 
            situs of the injury, its severity and the length of healing 
 
            period; the work experience of the employee prior to the 
 
            injury, after the injury and potential for rehabilitation; 
 
            the employee's qualifications intellectually, emotionally 
 
            and physically; earnings prior and subsequent to the injury; 
 
            age; education; motivation; functional impairment as a 
 
            result of the injury; and inability because of the injury to 
 
            engage in employment for which the employee is fitted.  Loss 
 
            of earnings caused by a job transfer for reasons related to 
 
            the injury is also relevant.  These are matters which the 
 
            finder of fact considers collectively in arriving at the 
 
            determination of the degree of industrial disability.
 
            
 
                 There are no weighting guidelines that indicate how 
 
            each of the factors are to be considered.  There are no 
 
            guidelines which give, for example, age a weighted value of 
 
            ten percent of the total value, education a value of fifteen 
 
            percent of total, motivation - five percent; work experience 
 
            - thirty percent, etc.  Neither does a rating of functional 
 
            impairment directly correlate to a degree of industrial 
 
            disability to the body as a whole.  In other words, there 
 
            are no formulae which can be applied and then added up to 
 
            determine the degree of industrial disability.  It therefore 
 
            becomes necessary for the deputy or commissioner to draw 
 
            upon prior experience, general and specialized knowledge to 
 
            make the finding with regard to degree of industrial dis
 
            ability.  See Peterson v. Truck Haven Cafe, Inc., (Appeal 
 
            Decision, February 28, 1985); Christensen v. Hagen, Inc., 
 
            (Appeal Decision, March 26, l985).
 
            
 
                 Larry Gerbitz is a middle-aged man, who has a varied 
 
            prior employment record.  His most extensive experience has 
 
            been as a security guard, a job which he earned $7.50 per 
 
            hour.  It is noted that claimant also has experience working 
 
            on a dairy farm, as a gas station manager, providing 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            maintenance services, and shipping and receiving work.  
 
            Claimant has not, for an extended period of time, worked on 
 
            an assembly line.
 
            
 
                 Claimant finished the ninth grade in school, and 
 
            although he has received his GED, it may be difficult for 
 
            him to obtain employment in jobs other than minimum paying 
 
            jobs unless he undergoes some additional training or 
 
            educational program.  Claimant testified that he has 
 
            partially completed a correspondence locksmithing course.  
 
            However, he needs to complete some paper work before he 
 
            completes the course.
 
            
 
                 On an emotional and intellectual basis, claimant 
 
            appeared average.  His motivation to return to employment 
 
            suitable to his background is marginal at best.  Claimant 
 
            did not display a concerted effort to return to a position 
 
            which would provide an extended, stable position in the work 
 
            force.
 
            
 
                 The evidence indicates that claimant's earnings during 
 
            the years prior to his injury hovered at between $12,000 to 
 
            $14,000 per year.  His wife has contributed to the overall 
 
            income of the household.
 
            
 
                 Since the injury, claimant has pursued employment at 
 
            approximately 50 businesses, but has had no job offers.  
 
            Claimant stated that many of the job applications inquired 
 
            about the applicant's physical condition.
 
            
 
                 Claimant has sustained an actual loss of earnings, but 
 
            his lack of motivation to find suitable employment that has 
 
            a pay scale comparable to that of IBP or other jobs is 
 
            probably as much to blame as his injuries.  However, 
 
            claimant may not be as attractive to some employers due to 
 
            his impairments.
 
            
 
                 It was not shown that jobs previously held by claimant 
 
            would require him to perform an extensive amount of 
 
            squatting, climbing stairs, running or jumping.  Likewise, 
 
            his employment background does not consist of jobs that 
 
            require repetitious wrist movements.
 
            
 
                 After considering all of the factors that comprise an 
 
            industrial disability, it is found that claimant has 
 
            sustained 15 percent loss of earning capacity.
 
            
 
                 To determine the Fund's liability additional analysis 
 
            of all impairment ratings given to the claimant by four 
 
            doctors is warranted.
 
            
 
                 With respect to ratings for the left and right upper 
 
            extremities, the undersigned rejects Dr. D'Angelo's 
 
            impairment ratings, as the ratings appear to be inconsistent 
 
            with the objective findings documented at claimant's final 
 
            session with Dr. D'Angelo on June 23, 1988:
 
            
 
                 1) Left upper extremity...
 
            
 
                 Exam reveals Phalen's sign to cause a heavy 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
                 feeling after one minute to all four feelings.  
 
                 This may be interpreted as some parasthesias, 
 
                 numbness or tingling.  He specifically denies any 
 
                 numbness or tingling.  Denies any pain.  Tinel's 
 
                 sign is negative.  He shows no atrophy of thenar 
 
                 emminence, hypothenar emminence, or interosseous 
 
                 musculature.  His grip grip [sic] strength appears 
 
                 satisfactory.  Sensation to light touch is 
 
                 slightly diminished in the ulnar and median nerve 
 
                 distribution of this hand.
 
            
 
                 2) Right upper extremity...
 
            
 
                 On clinical exam, Tinel's sign is negative.  
 
                 Phalen's sign is negative after 2 minutes.  Muscle 
 
                 strength right upper extremity is Grade V 
 
                 throughout.  Grip strength appears to be 
 
                 satisfactory.  No atrophy of hand intrinsic 
 
                 musculature.  Does have satisfactory radial, 
 
                 median and ulnar nerve motor and sensory function 
 
                 of the right hand although he may have a slight 
 
                 decrease in sensation to light touch at the ulnar 
 
                 nerve distribution of the right hand.  He has a 
 
                 negative Tinel's sign over Guyon's canal.
 
            
 
            (Jt. Ex. 5).
 
            
 
                 Impairment ratings with respect to claimant's right 
 
            knee range from 20 percent to 33 percent.
 
            
 
                 Dr. Catalona performed the surgery on claimant's right 
 
            knee, and guided claimant through the recovery process.  
 
            However, his rating of 20 percent is inadequate, as it does 
 
            not denote, specifically, the basis for the impairment.  
 
            And, Dr. Catalona's opinion that claimant could not return 
 
            to his job at IBP is in conflict with all other evidence 
 
            presented in the case, including Dr. Catalona's course of 
 
            treatment in the earlier stages of claimant's medical care.  
 
            Specifically, Dr. Catalona released claimant to return to 
 
            work at IBP after the knee surgery.  Although Dr. Catalona 
 
            performed the right carpal tunnel release, he failed to 
 
            provide an impairment rating for the right wrist.  It does 
 
            not seem realistic that after the wrist surgery, claimant 
 
            became totally disabled from any type of work at IBP.  Dr. 
 
            Catalona's ratings and final assessment of claimant's 
 
            ability to return to work at IBP are rejected.
 
            
 
                 Likewise, Dr. Wilson's impairment ratings are rejected.  
 
            He states no basis for the amounts of impairment given, and 
 
            it is unclear as to what information Dr. Wilson relied upon 
 
            in reaching his conclusions.
 
            
 
                 Dr. D'Angelo's ratings are also rejected.  His findings 
 
            are in direct conflict with the ratings given.
 
            
 
                 Dr. Mirbegian appears to present the best documentation 
 
            of claimant's objective physical problems, and therefore, 
 
            the undersigned relies upon all ratings given by him.
 
            
 
                 As a result, the Fund's liability is determined by 
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            using the following formula:
 
            
 
                   75    weeks  (industrial disability resulting 
 
                 from
 
                           combined effects of all injuries)
 
            
 
                 - 59.40 weeks  (impairment value of the prior 
 
                 loss:
 
                           27% of 220 weeks)
 
            
 
                 - 12.50 weeks  (impairment value of the second 
 
                           injuries for which defendant 
 
            employer
 
                           is responsible: 5% of 250 weeks for
 
                           right upper extremity)
 
            
 
                 ______________
 
            
 
                    3.1   weeks  (number of weeks of benefits for
 
                            which the Fund is liable).
 
            
 
                                      order
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 That claimant is entitled to three point one (3.1) 
 
            weeks of permanent partial disability benefits to be paid by 
 
            the Second Injury Fund of Iowa at the rate of one hundred 
 
            ninety-one and 10/100 dollars ($191.10) per week.
 
            
 
                 That defendant shall pay the accrued weekly benefits in 
 
            a lump sum, and credit against same.
 
            
 
                 That defendant shall pay interest on benefits awarded 
 
            herein as set forth in Iowa Code section 85.30.
 
            
 
                 That defendant shall pay the costs of this action 
 
            pursuant to rule 343 IAC 4.33.
 
            
 
                 That defendant shall file an activity report upon 
 
            payment of this award as required by this agency pursuant to 
 
            rule 343 IAC 3.1.
 
            
 
                 Signed and filed this ____ day of September, 1991.
 
            
 
            
 
            
 
            
 
                                          
 
            ________________________________
 
                                          PATRICIA J. LANTZ
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr John H Westensee
 
            Attorney at Law
 
            1705 2nd Avenue
 
            Rock Island IL 61201
 
            
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
            Mr Robert D Wilson
 
            Assistant Attorney General
 
            Tort Claims Division
 
            Hoover State Office Building
 
            Des Moines Iowa 50319
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                      5-1800
 
                      Filed September 11, 1991
 
                      PATRICIA J. LANTZ
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            LARRY E. GERBITZ,   :
 
                      :
 
                 Claimant, :
 
                      :
 
            vs.       :
 
                      :      File No. 920169
 
            IBP, INC.,     :
 
                      :    A R B I T R A T I O N
 
                 Employer, :
 
                 Self-Insured,  :      D E C I S I O N
 
                      :
 
            and       :
 
                      :
 
            SECOND INJURY FUND OF IOWA,   :
 
                      :
 
                 Defendants.    :
 
            ___________________________________________________________
 
            
 
            5-1800
 
            Claimant, 46-year-old male, sustained two separate injuries 
 
            while working for IBP.
 
            The first injury was to the knee, and the second a right 
 
            carpal tunnel.
 
            Claimant was not motivated to return to full-time work.
 
            He was awarded 15 percent industrial disability.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
            _____
 
                                            :
 
            BONNIE L. CROOK,                :
 
                                            :
 
                 Claimant,                  :       File No. 920176
 
                                            :
 
            vs.                             :         A P P E A L
 
                                            :
 
            AMES TRAVEL INN, a/k/a AMES,    :       D E C I S I O N
 
            TRAVEL LODGE, TRAVEL INN,       :
 
                                            :
 
                 Employer,                  :
 
                 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.
 
            
 
                                      issues
 
            
 
                 The issues on appeal are:  
 
            
 
                 Whether it is an abuse of discretion to order that the 
 
            evidence and activity of the employer is cut off for failure 
 
            to appear at a dispute resolution conference.  
 
            
 
                 Whether it is error to assess costs for both the 
 
            November 27, 1991 and March 10, 1992 dispute resolution 
 
            conferences in which the employer failed to appear.
 
            
 
                 Whether it was error to fail to sustain the employer's 
 
            motion for sanctions because the employer had not been able 
 
            to complete its offer of proof.
 
            
 
                                 findings of fact
 
            
 
                 The record in this matter shows the following activity.  
 
            The original notice and petition was filed September 27, 
 
            1990.  On November 15, 1990 the employer filed a letter 
 
            indicating that it had retained counsel and all 
 
            correspondence should be addressed to the counsel named.  On 
 
            January 15, 1991 the agency ordered the employer to file an 
 
            answer.  That order was sent to the claimant's attorney, the 
 
            employer, and the employer's attorney.  The order indicated 
 
            that no appearance had been made by the person named as the 
 
            employer's attorney.  The copy of the order to the employer 
 
            was sent certified mail and was returned unclaimed to the 
 
            agency.  In a letter dated February 3, 1991 the employer 
 
            indicated that he had been unsuccessful in numerous attempts 
 
            to contact his counsel.  An answer was filed by the attorney 
 
            on behalf of the employer on February 7, 1991.  
 
            
 
                 On May 31, 1991 claimant requested a mediation 
 
            conference.  A notice of dispute resolution conference was 
 
            scheduled for November 27, 1991.  That notice warned that 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            failure to comply would result in the imposition of 
 
            sanctions pursuant to rule 343 IAC 4.36.  Neither the 
 
            defendant nor the defendant's attorney appeared at the 
 
            dispute resolution conference scheduled for November 27, 
 
            1991.  On August 29, 1991 claimant requested an independent 
 
            medical examination.  The request was granted on September 
 
            24, 1991 after it was noted that no answer or other pleading 
 
            had been submitted on behalf of the employer.  A second 
 
            dispute resolution conference was scheduled for March 10, 
 
            1992.  The notice of that conference also warned of the 
 
            imposition of sanctions for failure to comply with the 
 
            order.  Both of the notices for dispute resolution 
 
            conference were sent to defendant's attorney at the time.  
 
            Again neither defendant nor defendant's attorney appeared at 
 
            the dispute resolution conference.  In an order dated March 
 
            11, 1992 a deputy industrial commissioner ordered that all 
 
            evidence and activity of the employer was cut off pursuant 
 
            to rule 343 IAC 4.36.
 
            
 
                 On March 11, 1992 claimant filed a motion for taxation 
 
            of costs for the costs and expenses of claimant and her 
 
            attorney for the two ordered mediation conferences.  
 
            Claimant attached a bill of particulars to the motion.  The 
 
            motion indicates it was mailed to both the employer and the 
 
            employer's attorney.  On March 16, 1992 employer's counsel 
 
            to that date withdrew and the employer's current counsel 
 
            entered his appearance.  No resistance to claimant's motion 
 
            for taxation of costs appears in the record.  On March 31, 
 
            1992 a ruling was made which ordered that the employer pay 
 
            claimant her costs and expenses totalling $440 as set out in 
 
            the bill of particulars.
 
            
 
                 On May 4, 1992 defendant filed a motion for 
 
            reconsideration of the orders of March 11, 1992 (cutting off 
 
            evidence and activity) and March 31, 1992 (payment of 
 
            costs).  That motion was resisted by claimant on May 6, 
 
            1992.  The motion for reconsideration was denied in a ruling 
 
            dated May 17, 1992 which stated in relevant part:
 
            
 
                    In this case, defendant was given a second 
 
                 opportunity to appear after missing the first 
 
                 conference.  Defendant was contacted by the agency 
 
                 to set the second conference.  Defendant agreed to 
 
                 the time, date and place of the second conference.  
 
                 Defendant made no effort to contact the agency to 
 
                 advise that it could not attend or that the 
 
                 parties differences were too great to make the 
 
                 dispute resolution profitable.  The absolute 
 
                 disregard for orders of the agency cannot be 
 
                 tolerated, hence the sanction.  The motion for 
 
                 reconsideration will be denied.
 
            
 
                 This matter came on for hearing as scheduled on June 
 
            15, 1992.  The following are excerpts from the hearing.
 
            
 
                 THE ADMINISTRATIVE LAW JUDGE:  This is File No. 
 
                 920176.  This matter is captioned Bonnie Crook, 
 
                 Claimant, versus Ames Travel Inn, also known as 
 
                 Ames Travel Lodge and Travel Inn.  And am I 
 
                 correct that there is no insurance carrier; is 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
                 that correct?
 
            
 
                 MR. TREVINO:  The American Family Insurance has 
 
                 denied the existence of any coverage for workers' 
 
                 compensation liability, although the defendant has 
 
                 given notice of the claim--of this claim to the 
 
                 insurance company.  But they have refused to 
 
                 provide a defense or to provide any coverage for 
 
                 any injury arising out of this incident.
 
            
 
                 ....
 
            
 
                 THE ADMINISTRATIVE LAW JUDGE:  I do not have the 
 
                 authority to overturn any ruling or order which 
 
                 has been made by another deputy industrial 
 
                 commissioner.  We are not allowed that 
 
                 jurisdiction, and we are not allowed to modify 
 
                 those particular orders or rulings.  To clarify, 
 
                 it's my understanding that the cutting off of 
 
                 one's evidence and activity includes cutting off 
 
                 the offering of evidence and it also cuts off 
 
                 presenting witnesses as well as cross-examination 
 
                 of claimant's witnesses.
 
            
 
                 I understand that you'll want to preserve your 
 
                 error throughout the duration of the hearing, and 
 
                 defendants will be allowed to do that.  At the 
 
                 close of claimant's case, again, I will leave the 
 
                 room and consider the case submitted as far as the 
 
                 case in chief is concerned, and then defendant and 
 
                 claimant may make whatever record they need to 
 
                 under the offer of proof, and again, to make 
 
                 myself clear for the benefit of the defendant, the 
 
                 exhibits which will be given to me at a later 
 
                 point today will be marked A, B, C, but they will 
 
                 not be considered by me as part of the case in 
 
                 chief.  They are merely being submitted to 
 
                 preserve any error and to make a record in behalf 
 
                 of defendants.  But I want them to understand that 
 
                 I am not allowed to review those particular 
 
                 documents when rendering a decision at this time.
 
            
 
                 MR. TREVINO:  Two question [sic], if I may.  
 
                 First, am I precluded from making any objections 
 
                 to the testimony offered by the claimant?
 
            
 
                 THE ADMINISTRATIVE LAW JUDGE:  It's my 
 
                 understanding when you're cut off from the 
 
                 evidence and the activity that you will not be 
 
                 allowed to make objections.
 
            
 
                 MR. TREVINO:  All right.  And then second of all.  
 
                 With respect to the offer of proof, we anticipate 
 
                 that that record will eventually be transcribed.  
 
                 I'm just thinking of the exhibits.  We're going to 
 
                 want the exhibits a part of that record as well.
 
            
 
                 THE ADMINISTRATIVE LAW JUDGE:  Right.
 
            
 
                 MR. TREVINO:  Do you want separate copies of the 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
                 exhibits, then, today, and then to have the court 
 
                 reporter take with her the same copies--
 
            
 
                 THE ADMINISTRATIVE LAW JUDGE:  That would be fine.
 
            
 
                 MR. TREVINO:  --so she can make them part of the 
 
                 record later on it.
 
            
 
                 THE ADMINISTRATIVE LAW JUDGE:  That would be fine.  
 
                 And also, if you want to cross-examine the 
 
                 witnesses after I leave as part of your offer of 
 
                 proof, I will allow that, but not in my presence.
 
            
 
                 MR. TREVINO:  Okay.
 
            
 
                 A proposed decision was filed June 24, 1992.  The 
 
            proposed decision awarded claimant 36.857 weeks of healing 
 
            period benefits, 40 weeks of permanent partial disability 
 
            benefits, and medical benefits in the sum of $992.70.
 
            
 
                 On June 29, 1992 defendant filed a motion for sanctions 
 
            against claimant for claimant's refusal to submit to 
 
            cross-examination during defendant's offer of proof.  That 
 
            motion was resisted by claimant on July 6, 1992.  Defendant 
 
            filed its notice of appeal on July 13, 1992.  On July 23, 
 
            1992 a ruling was issued which stated that the motion for 
 
            sanctions would be considered when the appeal was 
 
            considered.
 
            
 
                                conclusions of law
 
            
 
                 The first issue to be resolved is whether it is an 
 
            abuse of discretion to cut off the evidence and activity of 
 
            the employer in this case.
 
            
 
                 Iowa Code section 86.8 provides in relevant part:  
 
            
 
                    The commissioner shall:  
 
            
 
                    1.  Adopt and enforce rules necessary to 
 
                 implement this chapter and chapters 85, 85A, 85B, 
 
                 and 87.  
 
            
 
                 Rule 343 IAC 4.36 provides:  
 
            
 
                    If any party to a contested case or an attorney 
 
                 representing such party shall fail to comply with 
 
                 these rules or any order of a deputy commissioner 
 
                 or the industrial commissioner, the deputy 
 
                 commissioner or industrial commissioner may 
 
                 dismiss the action.  Such dismissal shall be 
 
                 without prejudice.  The deputy commissioner or 
 
                 industrial commissioner may enter an order closing 
 
                 the record to further activity or evidence by any 
 
                 party for failure to comply with these rules or an 
 
                 order of a deputy commissioner or the industrial 
 
                 commissioner.
 
            
 
                 Rule 343 IAC 4.40 provides in relevant part:
 
            
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
                    The industrial commissioner or the industrial 
 
                 commissioner's designee (hereinafter collectively 
 
                 referred to as the industrial commissioner) shall 
 
                 have all power reasonable and necessary to resolve 
 
                 contested cases filed under Chapter 4 of these 
 
                 rules.  This power includes, but is not limited 
 
                 to, the following: the power to resolve matters 
 
                 pursuant to initiation of mandatory dispute 
 
                 resolution proceedings by the industrial 
 
                 commissioner; the power to resolve matters 
 
                 pursuant to a request by the parties; the power to 
 
                 impose sanctions; and the power to require conduct 
 
                 by the parties.  However, no issue in a contested 
 
                 case may be finally resolved under this rule 
 
                 without consent of the parties.  (Emphasis added.)
 
            
 
                 In this case the employer is apparently neither insured 
 
            nor self-insured for its workers' compensation liability.  
 
            See Iowa Code section 87.1 which requires an employer to be 
 
            insured or self-insured.  No answer was filed to the 
 
            original notice and petition by the employer until this 
 
            agency ordered the employer to do so.  See rule 343 IAC 4.9 
 
            which requires a timely answer.  The employer failed to 
 
            answer or file a responsive pleading to a request for 
 
            independent medical examination.  The employer failed to 
 
            appear at the first scheduled dispute resolution conference.  
 
            The dispute resolution conference was rescheduled and the 
 
            defendant was contacted to set the second conference.  The 
 
            employer again failed to appear at a dispute resolution 
 
            conference.
 
            
 
                 The reason given for the employer's failure to appear 
 
            was that employer's counsel at the time had failed to notify 
 
            the employer of the conference and the necessity to appear.  
 
            There is no argument that employer's counsel, who was the 
 
            counsel of record, received the notice.  Both orders setting 
 
            the dispute resolution conference warned that failure to 
 
            comply with the order could result in sanctions.
 
            
 
                 This agency clearly has authority to impose sanctions 
 
            for failure to comply with an order.  The employer, prior to 
 
            retaining current counsel, clearly exhibited and 
 
            demonstrated a blatant and total disregard for the law, 
 
            agency rules, and not one but two orders from this agency 
 
            setting a dispute resolution conference.  The employer 
 
            offers no good cause why sanctions should not be imposed.  
 
            It is appropriate that the employer's evidence and activity 
 
            be cut off.  Rules 343 IAC 4.40 and 4.36 recognize that this 
 
            agency must have the authority to order compliance with the 
 
            proceedings before the agency and impose sanctions when 
 
            warranted.
 
            
 
                 It should be noted that this decision should not be 
 
            interpreted as an indication to willingly engage in award of 
 
            benefits not due and owing.  However, the parties must 
 
            conduct themselves in such a manner so that they can protect 
 
            their interests.
 
            
 
                 The second issue to be resolved is whether it is error 
 
            to assess costs against the employer for failure to appear 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            at the dispute resolution conferences.  Rule 343 IAC 4.40, 
 
            supra, allows imposition of sanctions.  In this case 
 
            claimant incurred expenses of both attorney time and 
 
            claimant's travel.  These expenses wee incurred not once but 
 
            twice.  Because the employer or the employer's 
 
            representative appeared at neither dispute resolution 
 
            conference, these expenses were expenses that should not 
 
            have been incurred.  It is appropriate that the employer in 
 
            this case be responsible for those expenses.
 
            
 
                 The last issue to be resolved is whether it was error 
 
            to fail to sustain the employer's motion for sanctions 
 
            because the employer had not been able to complete its offer 
 
            of proof.  This issue is irrelevant as the resolution of the 
 
            first issue above was that the employer's evidence and 
 
            activity was properly cut off prior to the hearing.  Because 
 
            the employer's evidence was cut off the employer can offer 
 
            no evidence in this matter.  The motions for sanctions on 
 
            the offer of proof is now irrelevant.  
 
            
 
                 Two things should be noted.  One is that the motion for 
 
            sanctions was filed after the proposed decision had been 
 
            issued.  The second thing to be noted is that no award made 
 
            in the proposed decision is an issue on appeal.
 
            
 
                 WHEREFORE, the decision of the deputy is affirmed.
 
            
 
                                      order
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 That the employer's evidence and activity was properly 
 
            cut off before the evidentiary hearing.
 
            
 
                 That the claimant's motion for taxation of costs and 
 
            certain attorney's fees was properly granted.  Employer 
 
            shall reimburse claimant for costs and expenses for four 
 
            hundred forty and 00/100 dollars ($440.00).
 
            
 
                 That the defendant's motion for sanctions for failure 
 
            of claimant to participate in the offer of proof is 
 
            irrelevant. 
 
            
 
                 That defendant shall pay the costs of this matter 
 
            including transcription of the hearing and shall reimburse 
 
            claimant for the filing fee if previously paid by claimant.
 
            
 
                 Signed and filed this ____ day of January, 1993.
 
            
 
            
 
            
 
            
 
                                          
 
            ________________________________
 
                                                   BYRON K. ORTON
 
                                              INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Philip F. Miller
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            Attorney at Law
 
            309 Court Ave., Ste 200
 
            Des Moines, Iowa 50309
 
            
 
            Mr. Tito W. Trevino
 
            Attorney at Law
 
            P.O. Box 1680
 
            Fort Dodge, Iowa 50501
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
            2906
 
            Filed January 22, 1993
 
            Byron K. Orton
 
            MAM
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
            _____
 
                                            :
 
            BONNIE L. CROOK,                :
 
                                            :
 
                 Claimant,                  :       File No. 920176
 
                                            :
 
            vs.                             :         A P P E A L
 
                                            :
 
            AMES TRAVEL INN, a/k/a AMES,    :       D E C I S I O N
 
            TRAVEL LODGE, TRAVEL INN,       :
 
                                            :
 
                 Employer,                  :
 
                 Defendant.                 :
 
            ____________________________________________________________
 
            _____
 
            
 
            2906
 
            Employer's evidence and activity was properly cut off by the 
 
            deputy when the employer failed to appear at two dispute 
 
            resolution conferences.  There was no justification given by 
 
            the employer's attorney for failure to appear.  The only 
 
            excuse offered by the employer was that the employer had not 
 
            been told when the conferences were scheduled.  The date for 
 
            the second conference was set after consulting the 
 
            employer's representative.
 
            Claimant was awarded attorney's fees and travel expenses 
 
            incurred for attending the two dispute resolution 
 
            conferences when the employer failed to appear.
 
            
 
 
         
 
         Page   1
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         ____________________________________________________________
 
                                       :
 
         BONNIE L. CROOK,              :
 
                                       :         File No. 920176
 
              Claimant,                :
 
                                       :      A R B I T R A T I O N
 
         vs.                           :
 
                                       :         D E C I S I O N
 
         AMES TRAVEL INN, A/K/A AMES   :
 
         TRAVEL LODGE, TRAVEL INN,     :
 
                                       :
 
              Employer,                :
 
              Defendant.               :
 
         ___________________________________________________________
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              This is a proceeding in arbitration upon the petition of 
 
         claimant, Bonnie Crook, against her uninsured employer, Ames 
 
         Travel Inn a/k/a Ames Travel Lodge, Travel Inn, defendant.  The 
 
         case was heard on June 15, 1992 at the Colony Building in Des 
 
         Moines, Iowa.
 
         
 
              Prior to the date of the hearing, Deputy Industrial 
 
         Commissioner, Elizabeth A. Nelson, filed an order on March 11, 
 
         1992.  In her order, Deputy Nelson ordered that:
 
         
 
                 1.  That the evidence and activity of Ames Travel 
 
              Inn is cut off for failure to appear at the dispute 
 
              resolution conference scheduled for March 10, 1992 
 
              pursuant to rule 343 IAC 4.36.
 
         
 
                 2.  Claimant may make an application for her costs 
 
              and expenses including attorney fees in connection with 
 
              the dispute resolution conferences scheduled for 
 
              November 27, 1991 and March 10, 1992.
 
         
 
              On March 31, 1992, Deputy Nelson filed a ruling on motion 
 
         for costs.  In that ruling Deputy Nelson wrote:
 
         
 
                 THEREFORE, it is ordered that Ames Travel Inn shall 
 
              pay to claimant her costs and expenses totaling $440.00 
 
              as more fully set out in the bill of particulars 
 
              attached to the motion for costs and expenses filed on 
 
              March 11, 1992.
 
         
 
              A motion for reconsideration was filed by defendant on May 
 
         4, 1992.  The motion was denied by Deputy Nelson in her ruling on 
 
         motion for reconsideration which was filed on May 12, 1992.
 
         
 
              Defendant, at the hearing, renewed its motion to reconsider.  
 
         The undersigned hearing deputy denied the motion to reconsider.  
 
         Defendant was not allowed to present evidence or to engage in 
 
         activity.  However, defendant, at the close of the hearing, and 
 
         out of the presence of the undersigned, was allowed to make an 
 

 
         
 
         Page   2
 
         
 
         
 
         
 
         
 
         
 
         
 
         offer of proof.
 
         
 
              At the hearing, exhibits 1-5 were admitted.  Several of 
 
         claimant's exhibits were illegible.  Pages 16-20 were nearly 
 
         impossible to read.  The record also consisted of the testimony 
 
         of claimant and that of her spouse.
 
         
 
                                      ISSUES
 
         
 
              The issues to be determined are:  1)  Whether claimant 
 
         received an injury which arose out of and in the course of 
 
         employment; 2) whether there is a causal relationship between the 
 
         alleged injury and the disability; 3) whether claimant is enti
 
         tled to temporary disability/healing period benefits or permanent 
 
         disability benefits; and 4) whether claimant is entitled to any 
 
         medical benefits pursuant to section 85.27.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              Claimant is 30 years old.  She is married with one child.  
 
         Claimant completed the tenth grade but she dropped out of high 
 
         school after that.  Claimant has had no formalized training since 
 
         leaving high school.
 
         
 
              Most of claimant's work experiences have involved unskilled 
 
         positions at a minimum wage rate.  She has engaged in housekeep
 
         ing and clean-up jobs.  She has been a production worker, a dish
 
         washer, and she has operated an industrial oven.  Her maximum 
 
         wage level has been $4.00 per hour.
 
         
 
              On or about May 1, 1989, claimant was hired by defendant as 
 
         head housekeeper at the rate of $3.50 per hour.  Her duties 
 
         included cleaning; vacuuming; dusting; flipping mattresses and 
 
         changing sheets; emptying waste baskets; and supplying rooms with 
 
         fresh towels.
 
         
 
              Claimant sustained a work-related injury on or about July 
 
         23, 1989.  At the time she was cleaning a motel room.  She bent 
 
         over to pick up wet towels from the floor, she straightened up 
 
         and felt pain in her lower back.  She reported the injury to 
 
         management.
 
         
 
              On July 27, 1989, claimant sought medical attention at the 
 
         McFarland Clinic, P.C.  The doctor's note for that day stated:
 
         
 
              Ms. Crook complains of a sore back since Tuesday.  She 
 
              was working as a housekeeper and was having to lift 
 
              mattresses on that day.  At the end of the day, her 
 
              back was quite sore, has remained sore for the last two 
 
              days despite her taking off work and resting at home.  
 
              She denies any numbness or tingling or pain down into 
 
              the leg initially.  It is tender over the left SI joint 
 
              and somewhat over the lower lumbar spine.
 
         
 
              On EXAM, pt. is tender over the low back.  Motor exam 
 
              is limited by pain.  On sensory exam, pt. complains of 
 
              a stocking-like distribution of numbness in the left 
 
              foot.  Reflexes are 1+/4 bilaterally.  They are 
 

 
         
 
         Page   3
 
         
 
         
 
         
 
         
 
         
 
         
 
              symmetric.
 
         
 
              IMPRESSION:  Sciatica.  Pt. is given prescription for 
 
              Flexeril 10 mg. one t.i.d. #15 without refills.  
 
              Prescription for Motrin 800 mg. one t.i.d. with meals 
 
              #30 with three refills.  She is advised on rest and 
 
              local heat.  She is given a slip to stay off work until 
 
              the August 7.
 
         
 
         (Exhibit 3, page 11)
 
         
 
              John A. Grant, M.D., of the McFarland Clinic, P.C., examined 
 
         claimant on September 21, 1989.  In his report of September 23, 
 
         1989, Dr. Grant opined:
 
         
 
              It appears to this examiner that this represents a 
 
              strain of the lumbosacral spine and I anticipate that a 
 
              period of time off work with physical therapy and medi
 
              cation will see the resolution of her symptoms.
 
         
 
         (Ex. 3, p. 12)
 
         
 
              In a later report dated April 7, 1990, Dr. Grant authored 
 
         another medical opinion.  He opined in relevant portion:
 
         
 
              From a physical standpoint, she stands erect with some 
 
              tenderness at the L4 level.  She is slightly restricted 
 
              in flexion with her fingertips reaching only within 
 
              about 6-8 inches of the floor.  Tilting and turning to 
 
              the right and left appear to be slightly reduced.  
 
              Straight leg raising is to 90 degrees both right and 
 
              left.  Deep tendon reflexes are hypoactive but equal 
 
              and there is no specific weakness.
 
         
 
              As I have mentioned, this young lady has far more sub
 
              jective complaints than objective findings but despite 
 
              this, she has very slight limitation of motion and she 
 
              is limited in what she can do because of problems with 
 
              low back pain and radicular pain on the left.  I would 
 
              advise her to get into some type of work that had some 
 
              limitations on weight lifting.  She could probably lift 
 
              25-30 pounds on an occasional basis and on a more 
 
              active basis, 10-15 pounds but it should not be a con
 
              stant repetitive process as often is the case with a 
 
              production line.  She should certainly avoid repeated 
 
              bending or twisting and I think she should avoid stand
 
              ing for longer than 60-70 percent of her work day and 
 
              certainly she should not have to stand in one place for 
 
              long periods.
 
         
 
              From my standpoint, I think her future will be one of 
 
              looking for work that does not stress her back and I do 
 
              not foresee major medical expense although I suspect 
 
              she will need mild analgesics from time to time and may 
 
              on occasion need office type treatment for back pain.
 
         
 
              With the fact that she does have radicular symptoms 
 
              despite a normal CAT scan, there is the outside 
 

 
         
 
         Page   4
 
         
 
         
 
         
 
         
 
         
 
         
 
              possibility that she might develop disc protrusion in 
 
              the future which is unlikely but nevertheless a 
 
              possibility.
 
         
 
              Based on her current status, I think she has an impair
 
              ment rating of 4 percent of the body as a whole as a 
 
              direct result of her back problems.
 
         
 
         (Ex. 3, pp. 5 & 6)
 
         
 
              Claimant participated in physical therapy on a sporadic 
 
         basis.  She incurred medical expenses, but not all of the 
 
         submitted $1,194.88 in expenses were work-related.   Claimant 
 
         also incurred mileage expenses from Gilbert, Iowa to Ames, Iowa, 
 
         a distance of 17 miles each trip according to the "Iowa State 
 
         Transportation Map."
 
         
 
              At the time of the hearing claimant was unemployed.  She 
 
         testified she had applied at 40-50 places of business.  She could 
 
         recall only 8 of the 50 businesses.  They were:
 
         
 
                   1) Arnold's Motor Supply
 
                   2) Silver Saddle Motel
 
                   3) Comfort Inn
 
                   4) Midas Muffler
 
                   5) New Frontier Motel
 
                   6) Quality Inn
 
                   7) Bonanza Restaurant
 
                   8) Casey's General Store
 
         
 
              Claimant had one appointment at the Division of Vocational 
 
         Rehabilitation Services.  She was unwilling to engage in 
 
         retraining.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the alleged injury actually occurred and that 
 
         it arose out of and in the course of employment.  McDowell v. 
 
         Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. 
 
         Cent. Tel. Co., 261 Iowa 352, 154 N.W.2d 128 (1967).  The words 
 
         "arising out of" refer to the cause or source of the injury.  The 
 
         words "in the course of" refer to the time, place and circum
 
         stances of the injury.  Sheerin v. Holin Co., 380 N.W.2d 415 
 
         (Iowa 1986); McClure v. Union County, 188 N.W.2d 283 (Iowa 1971).
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury is a proximate cause of the disabil
 
         ity on which the claim is based.  A cause is proximate if it is a 
 
         substantial factor in bringing about the result; it need not be 
 
         the only cause.  A preponderance of the evidence exists when the 
 
         causal connection is probable rather than merely possible.  
 
         Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa 1980); 
 
         Holmes v. Bruce Motor Freight, Inc., 215 N.W.2d 296 (Iowa 1974).
 
         
 
              The question of causal connection is essentially within the 
 
         domain of expert testimony.  The expert medical evidence must be 
 
         considered with all other evidence introduced bearing on the 
 

 
         
 
         Page   5
 
         
 
         
 
         
 
         
 
         
 
         
 
         causal connection between the injury and the disability.  The 
 
         weight to be given to any expert opinion is determined by the 
 
         finder of fact and may be affected by the accuracy of the facts 
 
         relied upon by the expert as well as other surrounding circum
 
         stances.  The expert opinion may be accepted or rejected, in 
 
         whole or in part.  Sondag v. Ferris Hardware, 220 N.W.2d 903 
 
         (Iowa 1974); Anderson v. Oscar Mayer & Co., 217 N.W.2d 531 (Iowa 
 
         1974); Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 
 
         (1965).
 
         
 
              Claimant's testimony at hearing is uncontroverted that she 
 
         has sustained a work-related injury to her low back on July 23, 
 
         1989.  Likewise, the issue of causation is uncontroverted.  Dr. 
 
         Grant writes: "I think it is distinctly probable that the work 
 
         she was doing was the proximate cause of her symptoms as near as 
 
         I can determine."  (Ex. 3, p. 7).  His medical opinion is unchal
 
         lenged.  Claimant has proven the requisite elements which estab
 
         lish that her injury arose out of and in the course of her 
 
         employment.  She has proven that the injury is causally related 
 
         to her medical condition.
 
         
 
              The next issue to address is the nature and extent of her 
 
         condition.  Claimant has a normal CT scan.  Her range of motion 
 
         is only slightly restricted.  Claimant is not taking prescription 
 
         medications.  Dr. Grant has placed the following restrictions on 
 
         her:
 
         
 
              She could probably lift 25-30 pounds on an occasional 
 
              basis and on a more active basis, 10-15 pounds but it 
 
              should not be a constant repetitive process as often is 
 
              the case with a production line.  She should certainly 
 
              avoid repeated bending or twisting and I think she 
 
              should avoid repeated bending or twisting and I think 
 
              she should avoid standing for longer than 60-70 percent 
 
              of her work day and certainly she should not have to 
 
              stand in one place for long periods.
 
         
 
         (Ex. 3, p. 6)
 
         
 
         The restrictions are moderate.
 
         
 
              Dr. Grant has rated claimant has having a four percent func
 
         tional impairment to the body as a whole.  It appears to the 
 
         undersigned that the rating is primarily based on subjective com
 
         plaints and only minimally based on objective evidence.  However, 
 
         his opinion is uncontroverted.  Therefore, it is the determina
 
         tion of the undersigned that claimant has a permanent disability.
 
         
 
              Claimant argues she has an industrial disability.  Since 
 
         claimant has an impairment to the body as a whole, an industrial 
 
         disability has been sustained.  Industrial disability is defined 
 
         in Diederich v. Tri-City Ry. Co., 219 Iowa 587, 258 N.W.2d 899 
 
         (1935) as follows: "It is therefore plain that the legislature 
 
         intended the term 'disability' to mean 'industrial disability' or 
 
         loss of earning capacity and not a mere 'functional disability' 
 
         to be computed in the terms of percentages of the total physical 
 
         and mental ability of a normal man."
 
         
 

 
         
 
         Page   6
 
         
 
         
 
         
 
         
 
         
 
         
 
              Functional impairment is an element to be considered in 
 
         determining industrial disability which is the reduction of earn
 
         ing capacity, but consideration must also be given to the injured 
 
         employee's age, education, qualifications, experience, motiva
 
         tion, loss of earnings, severity and situs of the injury, work 
 
         restrictions, inability to engage in employment for which the 
 
         employee is fitted and the employer's offer of work or failure to 
 
         so offer.  Olson v. Goodyear Serv. Stores, 255 Iowa 1112, 125 
 
         N.W.2d 251 (1963); McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 
 
         (Iowa 1980); Barton v. Nevada Poultry Co., 253 Iowa 285, 110 
 
         N.W.2d 660 (1961).
 
         
 
              Compensation for permanent partial disability shall begin at 
 
         the termination of the healing period.  Compensation shall be 
 
         paid in relation to 500 weeks as the disability bears to the body 
 
         as a whole.  Section 85.34.
 
         
 
              Claimant's earning capacity has been reduced, only mini
 
         mally, by this work injury.  Claimant has testified that all of 
 
         her former jobs have only paid minimum wages.  She has only per
 
         formed unskilled positions.  It is likely that she will never be 
 
         able to perform skilled positions at anything more than minimum 
 
         wage.  Claimant is unmotivated.  She does not wish to engage in 
 
         retraining or even extensive testing through the Iowa Department 
 
         of Education.  Claimant has exhibited only moderate effort in any 
 
         job search.
 
         
 
              It is the determination of the undersigned that claimant has 
 
         sustained a permanent partial disability in the amount of eight 
 
         percent.  She is entitled to 40 weeks of benefits.
 
         
 
              Claimant's benefit rate is calculated as follows:
 
         
 
                     $  3.50  per hour
 
                   x avg. 33  hours per week (30-36)
 
                     $115.50  gross weekly wages
 
         
 
                   Claimant is married with three exemptions.
 
         
 
              Using the Guide to Iowa Workers' Compensation Claim 
 
         Handling, July 1, 1989, claimant is entitled to $88.79 per week.
 
         
 
              Claimant is also entitled to healing period benefits pur
 
         suant to section 85.34(1).
 
         
 
              Section 85.34(1) provides that healing period benefits are 
 
         payable to an injured worker who has suffered permanent partial 
 
         disability until (1) the worker has returned to work; (2) the 
 
         worker is medically capable of returning to substantially similar 
 
         employment; or (3) the worker has achieved maximum medical recov
 
         ery.  The healing period can be considered the period during 
 
         which there is a reasonable expectation of improvement of the 
 
         disabling condition.  See Armstrong Tire & Rubber Co. v. Kubli, 
 
         312 N.W.2d 60 (Iowa Ct. App. 1981).  Healing period benefits can 
 
         be interrupted or intermittent.  Teel v. McCord, 394 N.W.2d 405 
 
         (Iowa 1986).
 
         
 
              Claimant's healing period commenced on July 24, 1989.  It 
 

 
         
 
         Page   7
 
         
 
         
 
         
 
         
 
         
 
         
 
         ended on April 7, 1990, the date Dr. Grant released claimant to 
 
         return to substantially similar work.  She is entitled to 36.857 
 
         weeks of healing period benefits at the rate of $88.79 per week.
 
         
 
              Claimant is also entitled to medical expenses pursuant to 
 
         section 85.27.
 
         
 
              The employer shall furnish reasonable surgical, medical, 
 
         dental, osteopathic, chiropractic, podiatric, physical rehabili
 
         tation, nursing, ambulance and hospital services and supplies for 
 
         all conditions compensable under the workers' compensation law.  
 
         The employer shall also allow reasonable and necessary trans
 
         portation expenses incurred for those services.  The employer has 
 
         the right to choose the provider of care, except where the 
 
         employer has denied liability for the injury.  Section 85.27.  
 
         Holbert v. Townsend Engineering Co., Thirty-second Biennial 
 
         Report of the Industrial Commissioner 78 (Review-reopen 1975).
 
         
 
     
 
         
 
         
 
         Page   8
 
         
 
         
 
         
 
         
 
         
 
         
 
         Defendant is liable for the following:
 
         
 
              11-6-89  Mary Greeley Medical Center   $397.30
 
              1-19-90  Mary Greeley Medical Center    449.00
 
                                                     $846.30
 
         
 
              Defendant is to reimburse claimant for:
 
         
 
              back brace                             $ 75.00
 
         
 
              Defendant is to reimburse claimant for mileage to and from 
 
         medical treatment.  Claimant lives 17 miles from Ames.  Records 
 
         indicate she has had treatment for her work injury on:
 
         
 
                    9-26-89  Mary Greeley Hospital    34 miles
 
                   10-05-89    "      "      "         "   " 
 
                   10-10-89    "      "      "         "   "
 
                   10-12-89    "      "      "         "   " 
 
                   10-17-89    "      "      "         "   "
 
                   10-24-89    "      "      "         "   "
 
                    1-19-90    "      "      "         "   "
 
         
 
                    7-27-89  McFarland Clinic, PC     34 miles
 
                    9-21-89    "      "      "         "   "
 
                    4-04-90    "      "      "         "   "  
 
                                            Total =  340 miles
 
                        340 miles x .21/mile = $71.40
 
         
 
                                      ORDER
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              Defendant is to pay unto claimant thirty-six point 
 
         eight-five-seven (36.857) weeks of healing period benefits at the 
 
         rate of eighty-eight and 79/l00 dollars ($88.79) per week.
 
         
 
              Defendant is to also pay unto claimant forty (40) weeks of 
 
         permanent partial disability benefits at the rate of eighty-eight 
 
         and 79/l00 dollars ($88.79) per week commencing on April 8, 1990.
 
         
 
              Accrued benefits are to be paid in a lump sum together with 
 
         statutory interest at the rate of ten percent (10%) per year pur
 
         suant to section 85.30, Iowa Code, as amended.
 
         
 
              Defendant is to also pay medical benefits and mileage as 
 
         aforementioned in the sum of nine hundred ninety-two and 70/l00 
 
         dollars ($992.70).
 
         
 
              Defendant is responsible for costs as provided by rule 343 
 
         IAC 4.33.
 
         
 
              Defendant shall file a claim activity report as requested by 
 
         this division and pursuant to rule 343 IAC 3.l.
 
         
 
         
 
         
 
              Signed and filed this ____ day of May, 1992.
 
         
 

 
         
 
         Page   9
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
                                       ______________________________               
 
                                       MICHELLE A. McGOVERN
 
                                       DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Philip F. Miller
 
         Attorney at Law
 
         Saddlery Building  STE 200
 
         309 Court Avenue
 
         Des Moines, Iowa  50309
 
         
 
         Mr. Tito Trevino
 
         Attorney at Law
 
         801 Carver Building
 
         P.O. Box 1680
 
         Ft. Dodge, Iowa  50501
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                     1402; 5-1803; 2900; 2901; 3700
 
                                     Filed June 24, 1992
 
                                     MICHELLE A. McGOVERN
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            BONNIE L. CROOK,              :
 
                                          :         File No. 920176
 
                 Claimant,                :
 
                                          :      A R B I T R A T I O N
 
            vs.                           :
 
                                          :         D E C I S I O N
 
            AMES TRAVEL INN, A/K/A AMES   :
 
            TRAVEL LODGE, TRAVEL INN,     :
 
                                          :
 
                 Employer,                :
 
                 Defendant.               :
 
            ___________________________________________________________
 
            
 
            1402; 2900; 2901; 3700
 
            
 
            Defendant failed to appear for two mediation conferences 
 
            which had been set prior to the hearing.  The deputy 
 
            industrial commissioner who presided over the mediation 
 
            conferences filed an order on March 11, 1992 hereby the 
 
            evidence and activity of the defendant was cut off for 
 
            failure to appear.
 
            
 
            Defendant filed a motion to reconsider on May 4, 1992.  The 
 
            deputy denied the motion.
 
            
 
            At the hearing, defendant renewed its motion.  The hearing 
 
            deputy denied the motion to reconsider.  Defendant was not 
 
            allowed to present evidence or to engage in activity.  
 
            However, defendant, at the close of the hearing, and out of 
 
            the presence of the hearing deputy, was allowed to make an 
 
            offer of proof.
 
            
 
            5-1803
 
            Claimant was awarded an 8 percent permanent partial 
 
            disability.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            RHONDA WOOD,                  :
 
                                          :
 
                 Claimant,                :         File No. 920194
 
                                          :
 
            vs.                           :      A R B I T R A T I O N
 
                                          :
 
            NORTHWEST FABRIC & CRAFTS,    :         D E C I S I O N
 
                                          :
 
                 Employer,                :
 
                 Self-Insured,            :
 
                 Defendant.               :
 
            ____________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding in arbitration upon the September 
 
            19, 1989 petition of claimant Rhonda Wood for benefits under 
 
            the Iowa Workers' Compensation Act from her defendant 
 
            self-insured employer, Northwest Fabrics & Crafts.  This 
 
            cause came on for hearing in Des Moines, Iowa, on November 
 
            14, 1990.
 
            
 
                 The record consists of joint exhibits A through K and 
 
            the testimony of claimant, Belen Fernandez, M.D., Timothy 
 
            Wood and Diane Conway.
 
            
 
                                      issues
 
            
 
                 The parties have stipulated that claimant sustained an 
 
            injury arising out of and in the course of her employment 
 
            with Northwest Fabrics & Crafts on March 22, 1989 and that 
 
            certain benefits were paid voluntarily prior to hearing.
 
            
 
                 Issues presented for resolution include:
 
            
 
                 1.  Whether there exists a causal relationship between 
 
            the work injury and any subsequent temporary or permanent 
 
            disability;
 
            
 
                 2.  The nature and extent of claimant's disability, if 
 
            any; and,
 
            
 
                 3.  Whether claimant is entitled to medical benefits 
 
            under Iowa Code section 85.27.
 
            
 
                     
 
            
 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            findings of fact
 
            
 
                 The undersigned deputy industrial commissioner, having 
 
            heard the testimony and considered all of the evidence, 
 
            finds:
 
            
 
                 Rhonda Wood, 35 years of age at hearing, is a 1973 high 
 
            school graduate.  She has held several jobs, but has largely 
 
            kept occupied as a homemaker since leaving high school.
 
            
 
                 Claimant has an extensive history of seeking medical 
 
            treatment for numerous symptoms.  In particular, she was 
 
            treated by James Elliott, D.O., for numerous ailments in the 
 
            year prior to the work injury, including bruising, vertigo, 
 
            allergies, shoulder, chest, jaw and neck pain, headaches, 
 
            altered gait, panic attacks and blurred vision.  Dr. 
 
            Elliott's chart notes of March 9, 1989 reflect (as best as 
 
            this observer can make out the doctor's handwriting) 
 
            complaints of rib pain since the previous Sunday in the left 
 
            clavicle area, indicating that pain had been intermittently 
 
            present since an earlier motor vehicle accident.  A standard 
 
            calender shows that the Sunday preceding March 9, 1989 fell 
 
            on March 5.  Assessment was of rib pain, probably 
 
            costochondritis (inflammation of a cartilage at the rib).  
 
            It is clear from subsequent medical records that 
 
            costochondritis commonly refers to inflammation of the 
 
            cartilage at the site of the rib and sternum, but the record 
 
            does not disclose whether the term can refer to the rib/ 
 
            clavicle area.  Claimant, whose memory is impaired by 
 
            ongoing electroconvulsive therapy, does not recall these 
 
            complaints.
 
            
 
                 On March 22, 1989, claimant was employed in the course 
 
            of her duties as a supervisor in a retail business operated 
 
            by defendant.  The site was undergoing remodeling and a 
 
            large shipment of formica and wood counters was delivered.  
 
            Claimant and another employee laboriously disassembled these 
 
            materials and transported them into the store.  While doing 
 
            so, claimant developed chest pain.
 
            
 
                 The evidence is inconsistent as to what happened next.  
 
            On direct examination, claimant testified that she heard a 
 
            "pop" in her chest that evening, which she believed to be a 
 
            separation of her sternum and third rib.  However, on 
 
            cross-examination, claimant testified that the "popping" 
 
            incident occurred the following morning while she was 
 
            stretching in bed, although she had preexisting chest 
 
            soreness.  In deposition testimony given on May 9, 1990, 
 
            claimant testified:
 
            
 
                 Q.  Then I understand from the history you've 
 
                 given before that you went home that evening and 
 
                 then the next morning you got up and you stretched 
 
                 and your chest popped; is that right?
 
            
 
                 A.  Yes.
 
            
 
                 Q.  What was the feeling?  Could you hear it?
 
            
 
                 A.  Yes, it was like a knuckle popping.
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            
 
                 Q.  Was it just after you'd gotten out of bed?
 
            
 
                 A.  No, it was a few hours later.
 
            
 
                 Q.  Was there something unusual about the 
 
                 stretching motion?
 
            
 
                 A.  No.
 
            
 
                 Q.  Just kind of stretched back (indicating)?
 
            
 
                 A.  That's correct.
 
            
 
                 Q.  Okay.  My motion was moving my arms backwards, 
 
                 moving my chest out; is that right?
 
            
 
                 A.  Just sitting up straight.
 
            
 
                 Q.  You head a pop?
 
            
 
                 A.  Yes.
 
            
 
                 Q.  Did you feel it--
 
            
 
                 A.  Yes.
 
            
 
                 Q.  --separate?
 
            
 
                 A.  Yes.
 
            
 
                 Q.  Okay.  Did you have pain after that?
 
            
 
                 A.  I had had pain from the time that I was 
 
                 working on carrying them in.
 
            
 
                 Q.  Explain what that pain felt like.
 
            
 
                 A.  Felt like a burning.
 
            
 
                 Q.  So it was kind of a burning?  Was it in the 
 
                 middle of your breastbone or where is it?
 
            
 
                 A.  It's almost right on the chest bone, just to 
 
                 the right.
 
            
 
                 Q.  Okay.  Then after the pop, did the pain get 
 
                 worse or not?
 
            
 
                 A.  It continued to get worse throughout the 
 
                 weekend.
 
            
 
            (Rhonda Wood deposition, page 33, line 23 through page 35, 
 
            line 8)
 
            
 
                 Claimant saw Dr. Elliott again on March 24.  His chart 
 
            notes make note of "popping" left costochondritis, but 
 
            mention no history.  On March 30, chart notes reflect a work 
 
            injury of March 22 while carrying fixtures at work, quoting 
 
            claimant as reporting "injured ribs/chest" and "hurting all 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            over."  Those chart notes appear to be written in a 
 
            different handwriting than the immediately subsequent notes 
 
            apparently written by Dr. Elliott.  Dr. Elliott's notes, to 
 
            the extent legible, indicate complaints of anterior chest 
 
            wall pain and starting of popping at the junction of the 
 
            ribs and sternum starting later that night.  Assessment was 
 
            of costochondral separation.
 
            
 
                 Because of the specificity and detail contained in the 
 
            transcript testimony, it appears most probable to this 
 
            writer that claimant's deposition testimony as to when she 
 
            suffered the "popping" incident which she believes was the 
 
            actual costochondral separation is the most reliable.
 
            
 
                 The separation had still not healed as of October 17, 
 
            1990, in Dr. Elliott's view.  Swelling of the region has 
 
            been found by physical therapists in 1990 and Dr. Fernandez, 
 
            a treating psychiatrist who testified at hearing and by 
 
            deposition on September 14, 1990, is still able to reproduce 
 
            popping at that juncture.  Other physicians are of the view 
 
            that claimant exaggerates symptoms or that the symptoms are 
 
            themselves a product of psychiatric disorder.  The record is 
 
            replete with evidence that claimant's behavior since this 
 
            incident has been erratic and she has presented to numerous 
 
            physicians with very wide ranging physical complaints not 
 
            related to the original rib injury.  Well-qualified 
 
            psychiatrists disagree as to whether the costochondral 
 
            separation produced or aggravated claimant's psychiatric 
 
            disorders, or, the other way around, whether preexisting 
 
            psychiatric disorders have produced and magnified her 
 
            symptomatology.
 
            
 
                 The writings of numerous physicians in this record take 
 
            as a given that claimant sustained the costochondral 
 
            separation as a work injury.  No physician directly 
 
            addresses the question of whether the "popping" incident on 
 
            the day following the exertion of which Ms. Wood makes 
 
            complaint was in fact the actual separation, or whether it 
 
            was causally related to that exertion.
 
            
 
                                conclusions of law
 
            
 
                 Defendant has stipulated that claimant sustained an 
 
            injury arising out of and in the course of employment.  
 
            Given the facts of this case, the meaning and effect to be 
 
            given that stipulation is not a routine matter.  As has been 
 
            seen, defendant disputes whether the work injury is causally 
 
            related to temporary or permanent disability.
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury of March 22, 
 
            1989 is causally related to the disability on which she now 
 
            bases her claim.  Bodish v. Fischer, Inc., 257 Iowa 516, 133 
 
            N.W.2d 867 (1965).  Lindahl v. L. O. Boggs, 236 Iowa 296, 18 
 
            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). 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            
 
                 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).
 
            
 
                 Without question, claimant suffered anterior chest wall 
 
            pain and soreness after exerting herself in the course of 
 
            employment on March 22, 1989.  Soreness remained through the 
 
            next day, but the "popping" that she identifies as the 
 
            actual separation occurred several hours after arising on 
 
            March 23.  Defendant's stipulation that claimant sustained a 
 
            work injury--chest wall soreness--on May 22 does not 
 
            necessarily correlate to conceding that the "popping" 
 
            incident many hours and a full night's sleep later is part 
 
            of the same incident or causally related thereto.  Given 
 
            this gap in time between soreness and a rather traumatic 
 
            "popping" at the affected joint, and given the uncertainty 
 
            as to claimant's history of probable costochondritis from 
 
            about a week and one-half before, it must be concluded that 
 
            claimant has failed to meet her burden of proof in 
 
            establishing that the actual costochondral separation is 
 
            part and parcel of or caused by the anterior chest wall pain 
 
            and soreness related to exertion at work.  Claimant's 
 
            further physical disability is clearly related to the 
 
            costochondral separation, but it is the etiology of the 
 
            separation itself that remains unproven.
 
            
 
                 Accordingly, other issues are rendered moot.
 
            
 
                                      order
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 Claimant shall take nothing.
 
            
 
                 The costs of this action shall be assessed to defendant 
 
            pursuant to rule 343 IAC 4.33.
 
            
 
                 Signed and filed this ______ day of ____________, 1991.
 
            
 
                 
 
            
 
                 
 
                 
 
                                          ______________________________
 
                                          DAVID RASEY
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            Mr. Robert W. Pratt
 
            Attorney at Law
 
            6959 University Avenue
 
            Des Moines, Iowa  50311
 
            
 
            Mr. Marvin E. Duckworth
 
            Attorney at Law
 
            Suite 111, Terrace Center
 
            2700 Grand Avenue
 
            Des Moines, Iowa  50312
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                           1108
 
                           Filed April 22, 1991
 
                           DAVID RASEY
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            RHONDA WOOD,                  :
 
                                          :
 
                 Claimant,                :         File No. 920194
 
                                          :
 
            vs.                           :      A R B I T R A T I O N
 
                                          :
 
            NORTHWEST FABRIC & CRAFTS,    :         D E C I S I O N
 
                                          :
 
                 Employer,                :
 
                 Self-Insured,            :
 
                 Defendant.               :
 
            ____________________________________________________________
 
            
 
            1108
 
            Claimant suffered chest soreness after exertion at work.  On 
 
            the following day, several hours after getting up, she 
 
            suffered a traumatic "popping" separation of the cartilage 
 
            at the third rib and sternum while stretching--at home.
 
            Although defendant stipulated to "arising out of," causal 
 
            connection remained in dispute.  All doctors (many, many 
 
            doctors, as claimant also suffers psychiatric problems) take 
 
            it as a given that the separation occurred at work.  No 
 
            physician addressed the issue of whether the "popping" 
 
            separation was part of or caused by work exertion the day 
 
            before.
 
            Held that claimant failed to prove her disability was caused 
 
            by work injury.