Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            DENNIS L. LORENZEN,           :
 
                                          :
 
                 Claimant,                :
 
                                          :      File No. 923630
 
            vs.                           :
 
                                          :
 
            WINNEBAGO INDUSTRIES,         :
 
                                          :     A R B I T R A T I O N
 
                 Employer,                :
 
                 Self-Insured,             :       D E C I S I O N
 
                 Defendant.               :
 
                                          :
 
            ___________________________________________________________
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This is a proceeding in arbitration brought by Dennis 
 
            Lorenzen, claimant, against self-insured Winnebago 
 
            Industries, employer, to recover benefits under the Iowa 
 
            Workers' Compensation Act as a result of an injury sustained 
 
            on February 16, 1989.  The matter was considered fully 
 
            submitted at the close of the hearing.  The record in this 
 
            case consists of joint exhibits 1-13 and defendant's exhibit 
 
            A; and testimony of claimant.
 
            
 
                                      issues
 
            
 
                 Pursuant to the prehearing report and order submitted 
 
            and approved on April 17, 1991, the following issues are 
 
            presented for resolution:
 
            
 
                 1.  The extent of claimant's entitlement to weekly 
 
            compensation for temporary total disability or healing 
 
            period benefits;
 
            
 
                 2.  The extent of claimant's entitlement to weekly 
 
            compensation for permanent disability;
 
            
 
                 3.  The commencement date for permanent partial 
 
            disability, in the event such benefits are awarded;
 
            
 
                 4.  The rate of weekly compensation;
 
            
 
                 5.  The reasonableness of Dr. Walker's charges;
 
            
 
                 6.  The number of exemptions to which claimant is 
 
            entitled; and
 
            
 
                 7.  Whether penalty benefits should be imposed under 
 
            Iowa Code section 86.13(4).
 
            
 
                     
 
            
 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            findings of fact
 
            
 
                 The undersigned has carefully considered all the 
 
            testimony given at the hearing, the arguments made and the 
 
            evidence contained in the exhibits, and makes the following 
 
            findings.
 
            
 
                 The pertinent medical evidence of record indicates that 
 
            on November 7, 1984, claimant was diagnosed with a torn 
 
            medial meniscus of the right knee and underwent an 
 
            arthroscopic examination with transarthroscopic partial 
 
            medial meniscectomy.  Surgery was performed by Timothy C. 
 
            Mead, M.D., orthopedic surgeon.  The injury was incurred 
 
            while working at Winnebago Industries.  Dr. Mead released 
 
            claimant to return to work on December 19, 1984, with 
 
            restrictions to avoid deep squatting and working in a 
 
            crouched position (Exhibit 1).  On August 16, 1985, Dr. Mead 
 
            reported that claimant had reached the state of maximum 
 
            healing and a 5 percent impairment rating of the lower 
 
            extremity was assigned with respect to the meniscus injury 
 
            and range of motion loss (Ex. 2).
 
            
 
                 Subsequently, claimant had intermittent problems with 
 
            his right knee and on March 1, 1989, conferred with A. J. 
 
            Wolbrink, M.D., orthopedic surgeon, due to pain.  Dr. 
 
            Wolbrink diagnosed a medial meniscus tear and early 
 
            degenerative arthritis of the right knee.  On June 6, 1989, 
 
            he performed an arthroscopic partial medial meniscectomy 
 
            (Exs. 1 and 4).
 
            
 
                 On June 15, 1989, Dr. Wolbrink assigned claimant a 
 
            permanent impairment rating of 8 percent of the right lower 
 
            extremity due to his meniscus tear, its progression and 
 
            necessary arthroscopic surgery (Ex. 5).  He released 
 
            claimant to return to regular work duties on July 10, 1989 
 
            (Ex. 6).  On August 4, 1989, Dr. Wolbrink clarified his 
 
            previous permanent impairment rating of 8 percent and 
 
            reported that this represents 5 percent from the earlier 
 
            injury and surgery and 3 percent from the current episode 
 
            (Ex. 7).
 
            
 
                 Claimant was then referred to John R. Walker, M.D., for 
 
            an independent medical evaluation.  After reviewing the 
 
            claimant's medical history and noting his complaints (pain 
 
            in the right knee with prolonged standing, walking and 
 
            weather changes), Dr. Walker conducted a physical 
 
            examination and had x-rays taken of both patellae.  On 
 
            November 19, 1989, Dr. Walker reported, in pertinent part, 
 
            as follows:
 
            
 
                 In examination of the right, lower extremity in 
 
                 comparison to the left reveals that the patient 
 
                 has a negative Lachman sign.  The anterior and 
 
                 posterior cruciate ligaments are intact as are the 
 
                 medial and lateral collateral ligaments.  
 
                 Hamstrings are tight bilaterally.  The patient has 
 
                 a full range of flexion and extension of the knee.  
 
                 He has no atrophy of either thigh but he does have 
 
                 1/2 inch atrophy of the right calf, undoubtedly 
 
                 from limping.  We should also mention that he has 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
                 some puncture wounds anterior to the right knee, 
 
                 as a result of his two arthroscopic surgeries.  
 
                 Reflexes of the lower extremity are within normal 
 
                 limits and physiological.  Leg lengths are equal.  
 
                 The patella is freely moveable.  It does not seem 
 
                 to dislocate and his Q-angle is within normal 
 
                 limits.
 
            
 
            (Ex. 8)
 
            
 
                 Review of the x-rays taken revealed a fairly normal 
 
            looking knee except for some flattening of the cartilage of 
 
            the medical condyle of the femur.  There was very minimal 
 
            evidence of arthritic change.  It was Dr. Walker's opinion 
 
            that claimant has a partial impairment of 13 percent of the 
 
            right lower extremity, 5 percent attributed to the original 
 
            1984 injury (Ex. 8).
 
            
 
                                conclusions of law
 
            
 
                 The parties have stipulated that the claimant sustained 
 
            an injury on February 16, 1989, which arose out of and in 
 
            the course of his employment with employer and that such 
 
            injury is a cause of temporary and permanent disability.  At 
 
            issue, is the extent of entitlement to weekly compensation 
 
            for temporary and permanent disability and the commencement 
 
            date for permanent partial disability.  Also at issue, in 
 
            the event of an award of weekly benefits, is the rate of 
 
            weekly compensation.  The parties do not dispute that 
 
            claimant's injury is to his right lower extremity which is a 
 
            scheduled member disability.
 
            
 
                 As to the extent of entitlement to weekly compensation 
 
            for temporary disability benefits, defendant contends that 
 
            claimant's healing period runs from June 6, 1989 through 
 
            July 3, 1989, while claimant contends that the period runs 
 
            from June 6, 1989 through July 10, 1989.
 
            
 
                 Section 85.34(1), Code of Iowa,  provides that healing 
 
            period benefits are payable to an injured worker who has 
 
            suffered permanent partial disability until (1) he has 
 
            returned to work; (2) is medically capable of returning to 
 
            substantially similar employment; or, (3) has achieved 
 
            maximum medical recovery.  The industrial commissioner has 
 
            recognized that healing period benefits can be interrupted 
 
            or intermittent.  Willis v. Lehigh Portland Cement Company, 
 
            Vol. 2-1, State of Iowa Industrial Commissioner Decisions, 
 
            485 (1984).
 
            
 
                 The record in this case clearly indicates that claimant 
 
            was released to return to work by his orthopedic surgeon on 
 
            July 10, 1989 (Ex. 6).  Claimant was off work June 6, 1989 
 
            through July 9, 1989.  Although claimant did not return to 
 
            work with employer, his treating physician indicated that he 
 
            was medically capable of returning to regular work duties on 
 
            July 10, 1989.  Therefore, pursuant to section 85.34(1), 
 
            claimant is entitled to healing period benefits from June 6, 
 
            1989 through July 9, 1989.
 
            
 
                 The record also clearly demonstrates that claimant has 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            a permanent impairment of the right knee that is causally 
 
            related to his work injury on February 16, 1989.  However, 
 
            there is a conflict in the record as to the extent of the 
 
            permanency.  Dr. Wolbrink, claimant's treating orthopedic 
 
            surgeon, gave claimant a permanent impairment rating of 8 
 
            percent to the lower extremity attributing 5 percent to the 
 
            1984 injury and surgery and 3 percent to the current surgery 
 
            (Ex. 7).  Dr. Walker gave claimant a permanent partial 
 
            impairment rating of 13 percent of the right lower 
 
            extremity, attributing 5 percent to the 1984 injury and 8 
 
            percent to the current injury (Ex. 8).
 
            
 
                 A treating physician's testimony is not entitled to 
 
            greater weight as a matter of law than that of a physician 
 
            who later examines claimant in anticipation of litigation.  
 
            Weight to be given testimony of physician is a fact issue to 
 
            be decided by the industrial commissioner in light of the 
 
            record the parties develop.  In this regard, both parties 
 
            may develop facts as to the physician's employment in 
 
            connection with litigation, if so; the physician's 
 
            examination at a later date and not when the injuries were 
 
            fresh; his arrangement as to compensation; the extent and 
 
            nature of the physician's examination; the physician's 
 
            education, experience, training, and practice; and all other 
 
            factors which bear upon the weight and value of the 
 
            physician's testimony.  Both parties may bring all this 
 
            information to the attention of the factfinder as either 
 
            supporting or weakening the physician's testimony and 
 
            opinion.  All factors go to the value of the physician's 
 
            testimony as a matter of fact not as a matter of law.  
 
            Rockwell Graphic Systems, Inc. v. Prince, 366 N.W.2d 187, 
 
            192 (Iowa 1985).
 
            
 
                 After carefully considering the total evidence in this 
 
            case, the undersigned concludes that Dr. Wolbrink's 
 
            assessment is entitled to greater weight than Dr. Walker's 
 
            assessment in view of the fact that Dr. Wolbrink was 
 
            claimant's treating physician and surgeon.  Claimant had 
 
            been treated at the Park Clinic in October 1984 and 
 
            underwent right knee transarthroscopy partial medial 
 
            meniscectomy by Dr. Mead.  Dr. Wolbrink saw claimant as 
 
            early as February 5, 1985, when Dr. Mead was ill and then 
 
            followed claimant as a regular patient beginning on November 
 
            11, 1986.  Dr. Wolbrink performed claimant's arthroscopic 
 
            partial medial meniscectomy on June 6, 1989 and made his 
 
            final assessment on August 4, 1989.  Dr. Walker saw claimant 
 
            on only one occasion.  Nevertheless, his clinical findings 
 
            revealed a full range of motion of flexion and extension of 
 
            the right knee without atrophy in either thigh.  The 
 
            reflexes of the lower extremity were within normal limits.  
 
            X-rays taken by Dr. Walker were normal.  Therefore, his 
 
            permanent impairment rating appears to be out of proportion 
 
            to the clinical and laboratory findings and are not entitled 
 
            to significant weight and consideration.  Accordingly, the 
 
            undersigned concludes that claimant has a permanent impair
 
            ment rating of 8 percent to the lower extremity, 5 percent 
 
            attributable to the 1984 injury and surgery, and 3 percent 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            attributable to the February 16, 1989 incident and surgery.
 
            
 
                 Also at issue is the number of exemptions for 
 
            dependents as of the date of the injury.  Claimant testified 
 
            that on February 16, 1989, he was living with and supporting 
 
            five minor children, Shannon S. Holland, Pam, Nichole, Darin 
 
            and Dustin Lorenzen.  Shannon is Pamela's son from a prior 
 
            marriage and Pam and Nichole are claimant's children from a 
 
            prior marriage.  Pam and Nichole were returned to claimant's 
 
            custody in January 1989.  Darin and Dustin are the children 
 
            of claimant and Pamela.  Accordingly, as of the date of 
 
            claimant's injury, he was entitled to seven exemptions for 
 
            tax purposes.  This is clearly indicated on claimant's group 
 
            insurance application with employer dated March 16, 1989 
 
            (Ex. 12, p. 3).
 
            
 
                 The parties also dispute claimant's appropriate rate of 
 
            compensation.  Claimant's exhibit 11 consists of wages 
 
            earned by claimant at defendant employer for the period from 
 
            February 17, 1989 back through the period commencing October 
 
            29, 1988.  In calculating claimant's rate, weeks 7, 8, 10 
 
            and 13 are excluded as short weeks, vacation or holiday 
 
            weeks.  Short weeks are not included in the 13 weeks for 
 
            determining the rate under Iowa Code section 85.36(6).  
 
            Lewis v. Aalf's Mfg. Co., I Iowa Indus. Comm'r Report 206, 
 
            207 (Appeal Dec. 1980).  Thus, hours for the 13 completed 
 
            weeks total 732.80 hours which divided by 13 equals 56.37 
 
            hours which multiplied by the stipulated hourly rate of 
 
            $9.05 per hour yields gross weekly wages of $510.00 per 
 
            week.  Using the July 1, 1988 Guide to Iowa Workers' 
 
            Compensation Claim Handling rate book, for an individual 
 
            married with a total of seven dependents yields a rate of 
 
            $335.89, which is the rate claimant contends is the 
 
            appropriate rate as set forth in the prehearing report, 
 
            paragraph 6.
 
            
 
                 Defendant disputes the reasonableness of medical 
 
            expenses incurred in the independent medical examination 
 
            conducted by Dr. Walker.  Iowa Code section 85.39 requires 
 
            that a defendant employer pay the reasonable fees of an 
 
            approved independent medical examination.  Claimant has the 
 
            burden of proving the reasonableness of medical expenses.
 
            
 
                 Claimant is not qualified to testifiy that charges for 
 
            medical services are reasonable.  Claimant has not put into 
 
            the record any evidence on this issue.  Although defendant 
 
            has not put into the record any evidence that the charges 
 
            are unreasonable, claimant bears the burden of proof.  
 
            Claimant was clearly on notice that the reasonableness of 
 
            the charges was disputed by defendant.  See prehearing 
 
            report and order approving same, item 8-(a).  At the 
 
            hearing, claimant failed to introduce any evidence to 
 
            establish that the fees were reasonable.  Defendant will not 
 
            be ordered to pay claimant's medical bills.  Andersen v. 
 
            High Rise Construction Specialists, Inc., File No. 850996 
 
            (Appeal Decision, July 31, 1990).
 
            
 
                 Claimant is not entitled to reimbursement for 
 
            automobile charges totaling $17.33.  He is entitled to 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            mileage expenses. Claimant also submitted a bill for meals 
 
            purchased for two persons at a smorgasbord.  The employer 
 
            has no problems paying for claimant's expense but objects to 
 
            paying for claimant's companion's meal.  Claimant testified 
 
            that his wife drove him to Dr. Walker's examination because 
 
            he was unable to drive the 261 miles himself.  Iowa Code 
 
            section 85.39 provides for reimbursement of reasonable and 
 
            necessary transportation costs.  Meals are not a 
 
            reimbursable cost under section 85.39.  Therefore, defendant 
 
            is not required to pay meal expenses totaling $8.51.
 
            
 
                 Claimant has asserted a claim for penalty benefits 
 
            under Iowa Code section 86.13(4) for delay in the 
 
            commencement of benefits without reasonable or probable 
 
            cause or excuse.  Defendant paid claimant temporary total 
 
            disability benefits for his lost work times subsequent to 
 
            his surgery, and then paid permanent partial disability 
 
            benefits once the treating physician clarified claimant's 
 
            permanency rating.  There has been a dispute throughout 
 
            these proceedings as to the aforementioned issues and 
 
            defendant was justified in withholding some benefits pending 
 
            resolution.  Even though the exemption and rate issue has 
 
            been resolved in favor of claimant, it cannot be said that 
 
            defendant's failure to pay all benefits occurred without 
 
            reasonable or probable cause or excuse.  Therefore, claimant 
 
            did not sustain the burden of proof by a preponderance of 
 
            the evidence that he is entitled to penalty benefits.
 
            
 
                                      order
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 That defendant pay to claimant four point eight five 
 
            seven (4.857) weeks of healing period benefits at the rate 
 
            of three hundred thirty-five and 89/100 dollars ($335.89) 
 
            per week for the period from June 6, 1989 through July 9, 
 
            1989.
 
            
 
                 That defendant pay to claimant six point six (6.6) 
 
            weeks of permanent partial disability benefits at the rate 
 
            of three hundred thirty-five and 89/100 dollars ($335.89) 
 
            per week commencing July 10, 1989.
 
            
 
                 That all accrued benefits are to be paid in a lump sum.
 
            
 
                 That interest will accrue pursuant to Iowa Code section 
 
            85.30.
 
            
 
                 That defendant is entitled to a credit for any and all 
 
            benefits previously paid.
 
            
 
                 That defendant pay to claimant mileage expenses of two 
 
            hundred sixty-one (261) miles at the rate of $.21 per mile 
 
            incurred for Dr. Walker's examination.
 
            
 
                 That defendant pay costs pursuant to 343 IAC 4.33.
 
            
 
                 That defendant file activity reports as requested by 
 
            this agency pursuant to 343 IAC 3.1.
 
            
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
                 Signed and filed this ____ day of May, 1991.
 
            
 
            
 
                                          ______________________________
 
                                          JEAN M. INGRASSIA
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies to:
 
            
 
            Mr Robert S Kinsey III
 
            Attorney at Law
 
            214 N Adams
 
            P O Box 679
 
            Mason City IA 50401
 
            
 
            Mr Stephen W Spencer
 
            Mr Thomas J McCann
 
            Attorney at Law
 
            218 Sixth Ave  Ste 300
 
            P O Box 9130
 
            Des Moines IA 50306-9130
 
            
 
 
         
 
 
 
 
 
 
 
                   1802; 1803; 3002; 1900; 1403
 
                   Filed May 28, 1991
 
                   Jean M. Ingrassia
 
         
 
                     before the iowa industrial commissioner
 
         ____________________________________________________________
 
                                       :
 
         DENNIS L. LORENZEN,           :
 
                                       :
 
              Claimant,                :
 
                                       :      File No. 923630
 
         vs.                           :
 
                                       :
 
         WINNEBAGO INDUSTRIES,         :
 
                                       :     A R B I T R A T I O N
 
              Employer,                :
 
              Self-Insured,             :       D E C I S I O N
 
              Defendant.               :
 
                                       :
 
         ___________________________________________________________
 
         
 
         1802; 1803
 
         Claimant awarded 4.857 weeks of healing period benefits and 3 
 
         percent permanent partial disability benefits due to an 
 
         arthroscopic partial medial meniscectomy.
 
         The parties disputed number of exemptions, weekly rate of 
 
         compensation, reasonableness of Dr. Walker's charges and extent 
 
         of permanency.  Claimant requested penalty benefits.
 
         Treating physician's permanency rating of 3 percent was accepted, 
 
         rather than Dr. Walker's 8 percent rating, because treating 
 
         physician had followed claimant for a number of years and 
 
         performed the surgery.  Dr. Walker's rating seemed out of 
 
         proportion to his negative clinical and laboratory findings.
 
         
 
         3002
 
         Rate was calculated using full thirteen weeks prior to injury 
 
         excluding short weeks and vacation weeks.
 
         1900
 
         Claimant was found entitled to seven exemptions.  He supported a 
 
         wife and five dependent children at the time of the injury.
 
         Penalty benefits were denied.
 
         
 
         1403
 
         Claimant failed to introduce any evidence to establish that Dr. 
 
         Walker's fees were reasonable, payment denied.  Andersen v. High 
 
         Rise Construction Specialists, Inc., File No. 850995 (Appeal 
 
         Decision, July 31, 1990).
 
         
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            GREGORY P. VRBAN,             :
 
                                          :
 
                 Claimant,                :         File No. 923632
 
                                          :
 
            vs.                           :      A R B I T R A T I O N
 
                                          :
 
            JOHN DEERE DES MOINES WORKS,  :         D E C I S I O N
 
                                          :
 
                 Employer,                :
 
                 Self-Insured,            :
 
                 Defendant.               :
 
            ____________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 Claimant Gregory P. Vrban filed a petition in 
 
            arbitration against self-insured defendant employer John 
 
            Deere Des Moines Works upon allegations of a work injury on 
 
            August 4, 1988, and seeking benefits under the Iowa Workers' 
 
            Compensation Act as a result.
 
            
 
                 The cause came on for hearing in Des Moines, Iowa, on 
 
            November 1, 1991.  Claimant, proceeding pro se, indicated 
 
            that the actual injury date was October 16, 1984, but claims 
 
            that he "discovered" that certain symptoms were caused by 
 
            the work injury in 1988.  Over objection, claimant was 
 
            permitted to amend his petition to allege an October 16, 
 
            1984 injury date.
 
            
 
                 The record in this proceeding consists of claimant's 
 
            exhibits A through H, defendant's exhibits 1 through 12 and 
 
            the testimony of claimant, John T. Bakody, M.D., Mary Ann 
 
            Madole and Gary Higbee.  In addition, official notice was 
 
            taken of the litigation file.  Claimant's exhibit I was 
 
            offered but excluded upon objection.
 
            
 
                                      issues
 
            
 
                 The parties have stipulated that claimant sustained an 
 
            injury arising out of and in the course of his employment 
 
            with John Deere Des Moines Works on October 16, 1984.
 
            
 
                 Issues presented for resolution include:
 
            
 
                 1.  Whether there exists a causal relationship between 
 
            the work injury and temporary or permanent disability;
 
            
 
                 2.  The extent of temporary and permanent disability, 
 
            if any;
 
            
 
                 3.  The nature of permanent disability, if any;
 
            
 
                 4.  The extent of claimant's entitlement to medical 
 
            benefits;
 
            
 
                 5.  The appropriate rate of compensation; and,
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
                 6.  Whether this claim is barred as untimely by the 
 
            statute of limitations set forth in Iowa Code section 
 
            85.26(1).
 
            
 
                                 findings of fact
 
            
 
                 The undersigned deputy industrial commissioner finds:
 
            
 
                 Claimant, who appeared to be of at least average 
 
            intelligence, is a high school graduate with some college.  
 
            He was employed for many years by John Deere Des Moines 
 
            Works in various capacities, particularly as an experimental 
 
            mechanic.
 
            
 
                 Claimant suffered a number of back injuries that caused 
 
            intermittent pain prior to October 16, 1984.  On that date, 
 
            while working on an experimental machine in the state of 
 
            Montana, claimant suffered a fall from approximately 12-14 
 
            feet causing a deviated septum in the nose and contusions, 
 
            including a hematoma in the hip area.
 
            
 
                 For the next six months, claimant suffered back pain on 
 
            a daily basis.  Some days were better than others, however.  
 
            In April 1985, claimant suffered a back injury in a non-work 
 
            incident that caused him to be off work for approximately 
 
            six months.  Treating physician John T. Bakody, M.D., 
 
            testified to his opinion that claimant's current lumbar 
 
            symptoms are causally related to that lifting incident in 
 
            1985 and that his current cervical complaints are causally 
 
            related to a subsequent motor vehicle accident when claimant 
 
            suffered a "whiplash" type injury.
 
            
 
                 In the spring of 1985, surgery was recommended for 
 
            claimant's deviated septum, but for various reasons was 
 
            never performed.
 
            
 
                 On October 10, 1986, employee benefits supervisor Mary 
 
            Ann Madole wrote Arthur C. Hedberg, Jr., claimant's 
 
            then-attorney, to acknowledge that claimant alleged an 
 
            injury of October 17, 1984, and that "[w]e understand that 
 
            he alleges to have injured his nose, back, and possibly 
 
            other parts of his body."  Claimant conceded in 
 
            cross-examination that he alleged a back injury as of 
 
            October 1986.
 
            
 
                 The parties have stipulated that no weekly benefits 
 
            were paid as a result of this injury.  Claimant missed no 
 
            time from work.  The petition in this case was filed on 
 
            October 16, 1989.
 
            
 
                                conclusions of law
 
            
 
                 Iowa Code section 85.26(1) provides:
 
            
 
                 An original proceeding for benefits under this 
 
                 chapter or chapter 85A, 85B, or 86, shall not be 
 
                 maintained in any contested case unless the 
 
                 proceeding is commenced within two years from the 
 
                 date of the occurrence of the injury for which 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
                 benefits are claimed or, if weekly compensation 
 
                 benefits are paid under section 86.13, within 
 
                 three years from the date of the last payment of 
 
                 weekly compensation benefits.
 
            
 
                 Since weekly benefits were not paid, this case is 
 
            barred unless commenced within two years from the date of 
 
            the occurrence of the injury.  In fact, the case was filed 
 
            five years to the day from the date of injury.  However, 
 
            this does not end the inquiry.  Iowa has adopted the 
 
            "discovery rule" with respect to limitations issues.  The 
 
            two-year statute of limitations set forth in section 85.26 
 
            starts running at such time as claimant should know that the 
 
            injury is both serious and work connected.  Orr v. Lewis 
 
            Cent. School Dist., 298 N.W.2d 256 (Iowa 1980).  As to when 
 
            a person "should know" that the injury is both serious and 
 
            work connected, a reasonable person standard is to be 
 
            applied, taking into account the intelligence and education 
 
            of the worker.  Robinson v. Dep't of Transp., 296 N.W.2d 809 
 
            (Iowa 1980).  It is not significant that claimant may have 
 
            been unaware of all possible symptoms at the time of the 
 
            injury to start limitations running.  For example, where a 
 
            minor injury occurred, but epilepsy related thereto 
 
            developed more than two years thereafter, the discovery rule 
 
            was inapplicable, as limitations run from the accrual of the 
 
            cause of action.  LeBeau v. Dimig, 446 N.W.2d 800 (Iowa 
 
            1989).
 
            
 
                 Claimant is of at least average intelligence.  He now 
 
            claims that for six months following his fall, he suffered 
 
            back pain on a daily basis.  This surely put him on notice 
 
            that his injury was potentially serious.  Several months 
 
            after the injury, surgery to his deviated septum was 
 
            recommended.  A recommendation that surgery be performed 
 
            surely put claimant, as a person of average intelligence, on 
 
            notice that the injury was serious.  Most people would 
 
            certainly not view a "broken nose" as inconsequential.  In 
 
            1986, claimant had retained counsel and was alleging a 
 
            compensable back injury.  Obviously, by this time, claimant 
 
            was well aware that his claimed injury was both serious and 
 
            work connected.  Any of these events are sufficient 
 
            independently to start the two-year statute of limitations 
 
            running.  Taken as a group, it is inescapable that 
 
            claimant's petition was untimely filed.  Defendant has 
 
            established the affirmative defense of limitations by a 
 
            convincing preponderance of the evidence.
 
            
 
                 Other issues are thereby rendered moot.
 
            
 
                                      order
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 Claimant shall take nothing from this proceeding.
 
            
 
                 The costs of this action are assessed to claimant 
 
            pursuant to rule 343 IAC 4.33.
 
            
 
                 Defendant shall file a first report of injury within 
 
            thirty (30) days of the filing date of this decision.
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            
 
                 Signed and filed this ______ day of ____________, 1991.
 
            
 
                 
 
            
 
                 
 
                 
 
                                          ______________________________
 
                                          DAVID RASEY
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Gregory P. Vrban
 
            P.O. Box 131
 
            Pleasantville, Iowa  50225
 
            
 
            Mr. Roger L. Ferris
 
            Attorney at Law
 
            1900 Hub Tower
 
            699 Walnut Street
 
            Des Moines, Iowa  50309
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                           2402
 
                           Filed November 5, 1991
 
                           DAVID RASEY
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            GREGORY P. VRBAN,   :
 
                      :
 
                 Claimant, :         File No. 923632
 
                      :
 
            vs.       :      A R B I T R A T I O N
 
                      :
 
            JOHN DEERE DES MOINES WORKS,  :         D E C I S I O N
 
                      :
 
                 Employer, :
 
                 Self-Insured,  :
 
                 Defendant.     :
 
            ____________________________________________________________
 
            
 
            2402
 
            Claimant suffered fall in 1984 resulting in broken nose, for 
 
            which surgery was recommended, and claimed daily back pain 
 
            for six months--after which, he suffered unrelated back 
 
            injury.  In 1986, claimant alleged compensable back injury, 
 
            although no claim was filed until 1989.  No weekly benefits 
 
            were paid.
 
            HELD:  Claim was barred by limitations.  Claimant, of at 
 
            least average intelligence, could not rely on discovery 
 
            rule, since he was surely aware his injury was both serious 
 
            and work connected.
 
            
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                   BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         _________________________________________________________________
 
                     
 
         BENITA BOGER,    
 
                     
 
              Claimant,   
 
                     
 
         vs.         
 
                                                  File No. 923637
 
         BC'S AMPRIDE TRUCK PLAZA,       
 
                                                    A P P E A L
 
              Employer,   
 
                                                  D E C I S I O N
 
         and         
 
                     
 
         CONTINENTAL LOSS ADJUSTING      
 
         SERVICES,   
 
                     
 
              Insurance Carrier,    
 
              Defendants.      
 
         _________________________________________________________________
 
         The record, including the transcript of the hearing before the 
 
         deputy and all exhibits admitted into the record, has been 
 
         reviewed de novo on appeal.  The decision of the deputy filed 
 
         July 26, 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 March, 1993.
 
         
 
         
 
         
 
         
 
                                     ________________________________
 
                                             BYRON K. ORTON
 
                                        INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Richard D. Crotty
 
         Attorney at Law
 
         311 First Federal Bldg.
 
         Council Bluffs, Iowa 51503
 
         
 
         Mr. Gene R. La Suer
 
         Ms. Becky S. Knutson
 
         Attorneys at Law
 
         The Financial Center
 
         666 Walnut St., Ste 2500
 
         Des Moines, Iowa 50309
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                         5-1400; 5-1402.20; 5-1402.30
 
                                         Filed March 17, 1993
 
                                         Byron K. Orton
 
                                         JMI
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                           
 
            BENITA BOGER,    
 
                        
 
                 Claimant,   
 
                        
 
            vs.         
 
                                                   File No. 923637
 
            BC'S AMPRIDE TRUCK PLAZA,       
 
                                                     A P P E A L
 
                 Employer,   
 
                                                   D E C I S I O N
 
            and         
 
                        
 
            CONTINENTAL LOSS ADJUSTING      
 
            SERVICES,   
 
                        
 
                 Insurance Carrier,    
 
                 Defendants.      
 
            ____________________________________________________________
 
           
 
            
 
            5-1400; 5-1402.20; 5-1402.30
 
            Claimant was allegedly injured in a fall on her employer's 
 
            property.  She was washing dishes and her right leg or right 
 
            hip gave out on her.  Claimant's injury was within the 
 
            course of employment because it was incidental to her work 
 
            activity and occurred while she was doing her work.
 
            However, claimant did not prove by a preponderance of the 
 
            evidence that her injury arose out of her employment.  A 
 
            causal connection was not established between the conditions 
 
            under which the work was performed and the resulting injury; 
 
            i.e., the injury followed as a natural incident of the work.  
 
            Musselman v. Central Telephone Co., 261 Iowa 352, 154 
 
            N.W.2d 128 (1967).  The record contained inconsistent and 
 
            contradictory evidence as to circumstances surrounding 
 
            claimant's injury.  Her recollection of the events changed 
 
            six months after the original injury.  Since her earlier 
 
            narrations were closer in time to the injury, they were 
 
            given more weight and consideration.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            BENITA BOGER,                 :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :       File No. 923637
 
            BC'S AMPRIDE TRUCK PLAZA,     :
 
                                          :     A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            CONTINENTAL LOSS ADJUSTING    :
 
            SERVICES,                     :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding in arbitration brought by Benita 
 
            Boger, claimant, against BC's Ampride Truck Plaza, employer, 
 
            and Continental Loss Adjusting Services, insurance carrier, 
 
            to recover benefits under the Iowa Workers' Compensation Act 
 
            as a result of an injury sustained on July 6, 1989.  This 
 
            matter came on for hearing before the undersigned deputy 
 
            industrial commissioner on June 25, 1991, in Council Bluffs, 
 
            Iowa.  The record was considered fully submitted at the 
 
            close of the hearing.  The record in this case consists of 
 
            joint exhibits 1 through 10 and testimony from claimant and 
 
            her husband, Floyd Boger.
 
            
 
                                      issues
 
            
 
                 Pursuant to the prehearing report and order dated June 
 
            25, 1991, the parties have stipulated that an employer-
 
            employee relationship existed between claimant and employer 
 
            at the time of the alleged injury and in the event of an 
 
            award of weekly benefits, the rate of weekly compensation is 
 
            $103.24.  The parties also stipulated that if defendants are 
 
            found liable for the injury, claimant's entitlement to 
 
            weekly compensation for temporary total disability benefits 
 
            commences July 7, 1989 and ends May 22, 1990.
 
            
 
                 The following issues remain for resolution:
 
            
 
                 1.  Whether claimant sustained an injury on July 6, 
 
            1989 which arose out of and in the course of employment with 
 
            employer;
 
            
 
                 2.  Whether the alleged injury is the cause of 
 
            temporary and permanent disability;
 
            
 
                 3.  The extent of entitlement to weekly compensation 
 
            for permanent disability, if defendants are liable for the 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            injury;
 
            
 
                 4.  The type of permanent disability, if the injury is 
 
            found to be a cause of permanent disability;
 
            
 
                 5.  The commencement date for permanent partial 
 
            disability, in the event such benefits are awarded; and
 
            
 
                 6.  Whether claimant is entitled to medical benefits 
 
            under Iowa Code section 85.27.
 
            
 
                                 findings of fact
 
            
 
                 After carefully considering the testimony at the 
 
            hearing, arguments made, and evidence contained in the 
 
            exhibits herein, the undersigned makes the following 
 
            findings:
 
            
 
                 The pertinent medical evidence of record indicates that 
 
            claimant has had intermittent back and right leg pain since 
 
            her early teens.  She was involved in an automobile accident 
 
            in April 1984 and in February 1985, underwent back surgery, 
 
            including a fusion by R. Skylar Gooding, M.D.  She has been 
 
            followed at Crawford County Clinic since 1985 with numerous 
 
            complaints including back pain, bilateral knee pain, right 
 
            hip pain, swelling in both feet and incontinence (Exhibit 1, 
 
            sections 1, 8 and 10).
 
            
 
                 On July 6, 1989, claimant was admitted to Nebraska 
 
            Methodist Hospital after allegedly falling at work.  Her 
 
            complaints were referable to pain in the right lower 
 
            extremity, cervical and thoracic region and back.  She was 
 
            evaluated with a complete myelogram and EMG and nerve 
 
            conduction studies of the lower extremities.  All studies 
 
            were unremarkable.  A neurological examination conducted by 
 
            John C. Goldner, M.D., was within normal limits.  Right hip 
 
            x-rays were taken and showed mild degenerative changes.  A 
 
            CT scan of the pelvis showed no abnormalities.  Lumbar, 
 
            thoracic and cervical x-rays showed no major abnormalities.  
 
            Evidence of a previous right L4-5 laminectomy and extensive 
 
            hypertrophic degenerative disease involving the L4-5 and 
 
            L-5, S1 joints on the right was evident.  She was discharged 
 
            on July 14, 1989 (Ex. 1, sec. 2).
 
            
 
                 On July 14, 1989, claimant was admitted to the 
 
            rehabilitation unit at Immanuel Medical Center in Omaha, 
 
            Nebraska.  She was under the care of Stuart G. Oxford, M.D.  
 
            She was seen in consultation by James H. Wigton, M.D.  He 
 
            found no acute medical problem requiring further workup.  
 
            Progress notes indicate that she gradually made gains with 
 
            her ongoing functioning capacity and she was discharged on 
 
            August 5, 1989 (Ex. 1, sec 11).
 
            
 
                 Upon discharge from the rehabilitation unit, claimant 
 
            participated in outpatient physical therapy.  Her complaints 
 
            were referable primarily to back pain and lower extremity 
 
            weakness.  Claimant received homemaker assistance through 
 
            Crawford County Public Health Nursing Service until she 
 
            became more independent (Ex. 1, sec. 12).
 
            
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
                 Claimant testified that she was born on February 28, 
 
            1939 and completed the eighth grade of school.  She married 
 
            Floyd Boger on September 8, 1957 and they had nine children 
 
            together.  Claimant worked at various times as a nurse's 
 
            aide, laundry aide and dishwasher.  She started working for 
 
            employer in December 1988 as a dishwasher.  Her duties 
 
            included loading and unloading the dishwasher.  She 
 
            testified that on July 6, 1989, she was working the 2:00 
 
            p.m.-10:00 p.m. shift.  She worked alone on the shift.
 
            
 
                 She stated that two weeks prior to the alleged 
 
            incident, she informed her supervisor that the dishwasher 
 
            leaked.  On the day in question, she testified that she was 
 
            carrying clean dishes when she lost her footing on the wet 
 
            floor and fell on her right leg.  No one witnessed the 
 
            incident.  She testified she reported what had happened and 
 
            how it happened to her supervisor.  She was taken to 
 
            Crawford County emergency room by Tom Esser.  Her treating 
 
            physician, Rosemary Mason, M.D., happened to be on call that 
 
            day and ordered x-rays.  She was then transferred to 
 
            Methodist Medical Center and met by Leslie Hellbusch, M.D.  
 
            He followed her throughout her stay at Methodist.  Claimant 
 
            testified that despite conservative therapy, she still 
 
            experiences right leg and hip pain.  She denied currently 
 
            any low back problems.
 
            
 
                 Claimant testified that she attended Iowa Western 
 
            Community College from January 15, 1990 until she graduated 
 
            in July 1991.  She obtained a certificate in basic office 
 
            skills.  She indicated that she has difficulty sitting more 
 
            than one hour at a time.  She was last treated by Dr. Oxford 
 
            on May 22, 1990.  She has not been given an impairment 
 
            rating or work restrictions.  No physician who has treated 
 
            and/or examined her has recommended surgery.
 
            
 
                                conclusions of law
 
            
 
                 Claimant alleges that she sustained an injury on July 
 
            6, 1989, which arose out of and in the course of employment 
 
            with employer.  Defendants dispute claimant's claim that she 
 
            received an injury which arose out of and in the course of 
 
            employment and, even if such injury occurred during the 
 
            course of employment, it did not arise out of the 
 
            employment.
 
            
 
                 Claimant has the burden of proving by a preponderance 
 
            of the evidence that she received an injury on July 6, 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 352, 154 
 
            N.W.2d 128 (1967). 
 
            
 
                 An employee is entitled to compensation for any and all 
 
            personal injuries which arise out of and in the course of 
 
            the employment.  Section 85.3(1).
 
            
 
                 The injury must both arise out of and be in the course 
 
            of the employment.  Crowe v. DeSoto Consol. Sch. Dist., 246 
 
            Iowa 402, 68 N.W.2d 63 (1955) and cases cited at pp. 405-406 
 
            of the Iowa Report.  See also Sister Mary Benedict v. St. 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            Mary's Corp., 255 Iowa 847, 124 N.W.2d 548 (l963) and Hansen 
 
            v. State of Iowa, 249 Iowa 1147, 91 N.W.2d 555 (1958).
 
            
 
                 "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, 
 
            Supra.
 
            
 
                 In the course of employment refers to time, places and 
 
            circumstance of the injury.  An injury occurs in the course 
 
            of employment when it is within the reasonable period of 
 
            employment at a place where an employee reasonably may be 
 
            performing his duties, and while he is fulfilling those 
 
            duties or engaged in doing something incidental thereto.  
 
            McClure, Supra.
 
            
 
                 Claimant has clearly established that she was "in the 
 
            course of employment" when the injury occurred.  She was 
 
            performing services on the premises which are occupied, used 
 
            and controlled by employer.  Iowa Code section 85.61(6).
 
            
 
                 The next issue to be determined is whether claimant's 
 
            injury "arose out of" the employment situation.  A 
 
            determination that an injury "arises out of" the employment 
 
            contemplates a causal connection between the conditions 
 
            under which the work was performed and the resulting injury; 
 
            i.e., the injury followed as a natural incident of the work.  
 
            Musselman, at 128; Reddick v. Grand Union Tea Co., 230 Iowa 
 
            108, 296 N.W. 800 (1941).
 
            
 
                 The evidence in this case clearly demonstrates that 
 
            claimant went down on employer's premises on July 6, 1989 
 
            and as a result, back and right leg pain.  The question is 
 
            whether claimant's injury was caused by her employment.  The 
 
            Iowa Supreme Court in Pattee v. Fullerton Lumber Co., 263 
 
            N.W. 839 (1935), cited the general rule that "where  `the 
 
            employment brings a greater exposure and injury results,' 
 
            the injury does arise out of the employment".  However, the 
 
            year before, the Supreme Court in Almquist v. Shenandoah 
 
            Nurseries, 218 Iowa 724, 254 N.W. 35 (1934), the court 
 
            stated that "it is only when there is a direct causal 
 
            connection between exertion of the employment and the injury 
 
            that an award of compensation can be made".  In Burt v. John 
 
            Deere Waterloo Tractor Works, 72 N.W.2d 732 (1956), the 
 
            court described the tests for arising out of as: "when there 
 
            is apparent to the rational mind, upon consideration of all 
 
            the circumstances, a causal connection between the condi
 
            tions under which the work is required to be performed and 
 
            the resulting injury."  Additionally, the court stated: "If 
 
            the injury can be seen to have followed as a natural 
 
            incident of the work and to have been contemplated by a 
 
            reasonable person familiar with the whole situation as a 
 
            result of the exposure occasion by the nature of the 
 
            employment, then it arises "out of" the employment."
 
            
 
                 Claimant has the burden to show by a preponderance of 
 
            the evidence that her work caused her injury.  There is 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            inconsistent and contradictory evidence as to the 
 
            circumstances surrounding claimant's injury.  On October 18, 
 
            1989, claimant filed an original notice and petition in this 
 
            case.  In response to paragraph number 10, which asks for a 
 
            description of how the injury occurred, claimant stated:  
 
            "Benita turned to pick up an empty cup and twisted her back 
 
            and suffered injuries to that area."  There is no reference 
 
            to a fall contained in this statement.  An emergency room 
 
            record made on the date of the alleged injury, July 6, 1989, 
 
            states that "was washing dishes at work, suddenly right hip 
 
            gave out, went down, c/o severe pain right posterior hip 
 
            radiating to groin area and down to mid leg." (Ex. 1, sec. 
 
            7, p. 2)  Nurses' notes reiterate that the injury occurred 
 
            at work while washing dishes when claimant's right leg "went 
 
            out and she fell to the ground." (Ex. 1, sec. 7, p. 5)  Upon 
 
            transfer from the emergency room to Nebraska Methodist 
 
            Hospital, claimant was greeted by Dr. Hellbusch who took a 
 
            history.  His notes state, in part, that:  "She was doing 
 
            dishes, turned and went down to her knees because her right 
 
            leg gave out under her.  She could not get up because her 
 
            right leg was weak." (Ex. 1, sec. 2, p. 7)  When claimant 
 
            was transferred from Nebraska Methodist Hospital to Immanual 
 
            Rehabilitation Center, a history was taken by Dr. Oxford on 
 
            July 14, 1989.  He recorded as follows:  "According to the 
 
            record she did note some discomfort in her right leg and was 
 
            not able to hold herself up about 5:15 on 7/6/89.  She was 
 
            doing some dishes and she turned and went down to her knees 
 
            because the right leg gave out on her." (Ex. 1, sec. 11, p. 
 
            1)  On July 16, 1989, claimant was seen in consultation by 
 
            Dr. Wigton.  He noted that: "She states she fell on 
 
            Thursday, landing on her right side.  This exacerbated her 
 
            chronic back and hip pain, and made her unable to walk at 
 
            home.  She denies any inciting event for her fall, such as 
 
            syncope palpitations, etc." (Ex. 1, sec. 11, p. 4)  On 
 
            September 7, 1989, a telephone conference was held with 
 
            claimant by Diane Houle, insurance company adjuster.  
 
            Claimant was asked to describe the incident in July 1989.  
 
            She stated as follows:  "I was, uh, turning to pick up, uh, 
 
            a tub of dishes, loaded to the maximum, was trying to pick 
 
            it up, I twisted to put it up on top of a tray to start 
 
            loading and I got pain in my back and leg and I went down 
 
            and I have no feeling in my right leg." (Ex. 4, p. 5)
 
            
 
                 In response to interrogatories propounded by 
 
            defendants, claimant described the events giving rise to her 
 
            injury as follows:  "On or about the 6th day of July, 1989 
 
            claimant slipped on water which had drained from the 
 
            dishwasher." (Ex. 3, p. 9)  In a deposition taken on 
 
            February 1, 1990, claimant was again asked to describe the 
 
            incident on July 6th.  She stated as follows:
 
            
 
                 Q.  And directing your attention to the July 6th 
 
                 date when the injury occurred, could you just tell 
 
                 me what sort of movement you were making when you 
 
                 injured yourself?
 
            
 
                 A.  I was standing by the dishwasher and at that 
 
                 time, the dishwasher was not working and it hadn't 
 
                 been for quite sometime, water had been coming out 
 
                 of it periodically and when I turned to pick up 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
                 the tub of dishes, my feet went out from 
 
                 underneath me and I fell.
 
            
 
                 Q.  Okay.  Was there water on the floor?
 
            
 
                 A.  Yes, there was.
 
            
 
            (Ex. 5, pp. 14 and 15)
 
            
 
                 In her deposition dated April 29, 1991, claimant 
 
            testified as follows:
 
            
 
                 Q.  I wanted to ask you a little bit more about 
 
                 the fall that you had at BC's Ampride and just -- 
 
                 just ask you again to describe what could be 
 
                 called the mechanism of the fall or how the fall 
 
                 occurred and just put that in your own words.
 
            
 
                 A.  Well, I came to work that afternoon and the 
 
                 dishwasher had not been working for some time and 
 
                 was told to have it fixed and I think negligence 
 
                 on their part, they had not had it fixed.  When I 
 
                 walked in, I didn't see any water there at the 
 
                 time, I walked over and I turned around and my 
 
                 feet went out from underneath me.
 
            
 
                 Q.  Are you saying because of water on the floor?
 
            
 
                 A.  Yes, there was water on the floor.  And I went 
 
                 up and out this way.
 
            
 
                 Q.  And when you fell, you felt the water on the 
 
                 floor?
 
            
 
                 A.  Yes.
 
            
 
                 Q.  Okay.  After you fell, were you able to get 
 
                 up?
 
            
 
                 A.  Not right away, no.  There was nobody around.  
 
                 I tried to pull myself up.  And I got myself to a 
 
                 chair and that's when somebody seen me.
 
            
 
            (Ex. 6, pp. 13 and 14)
 
            
 
                 Claimant's recollection of the circumstances 
 
            surrounding her fall on July 6, 1989 appears to have changed 
 
            since the occurrence of the event and commencing with her 
 
            answers to interrogatories in January 1990.  Prior to 
 
            January 1990, claimant makes no mention of slipping and 
 
            falling on a wet surface.  Prior to obtaining legal counsel, 
 
            claimant recited to physicians who treated and/or examined 
 
            her that her leg or right hip gave out and she fell to the 
 
            ground.  Apparently, claimant had a similar incident on 
 
            August 23, 1985 (Ex. 1, p. 2).  Claimant has a history of 
 
            chronic leg weakness and pain and has been treated for these 
 
            complaints throughout the years.  The undersigned is per
 
            suaded that claimant's alleged fall was not the result of a 
 
            hazard connected with her employment.  Claimant testified 
 
            that she related the particulars of her injury to Mr. Dennis 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            Holdsworth, Mr. Tom Esser and Avis Kiel.  However, she 
 
            produced no corroborating testimony from these individuals.
 
            
 
                 Therefore, it is found that claimant has failed to 
 
            establish by a preponderance of the evidence that her injury 
 
            of July 6, 1989, resulted as a consequence from a hazardous 
 
            conditiion connected with her employment situation.  Her leg 
 
            giving out is equally as dangerous at home or elsewhere as 
 
            it is at work.  See Klodt v. Hillside Manor Care Center, 
 
            file number 855422, Appeal Decision (1989), where benefits 
 
            were denied when claimant swallowed a chicken bone because 
 
            eating chicken is equally hazardous when performed at work 
 
            or elsewhere.
 
            
 
                 Claimant has not met her burden of showing that some 
 
            aspect of her work caused her injury.   Claimant's fall 
 
            could have been caused by any number of factors.  Claimant's 
 
            inconsistent histories and description of the incident tend 
 
            to cast doubt on her credibility.
 
            
 
                 This issue is dispositive of the entire case and 
 
            further analysis is unnecessary.
 
            
 
                                      ORDER
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 That claimant shall take nothing from this proceeding.
 
            
 
                 That the parties pay their own respective costs 
 
            pursuant to rule 343 IAC 4.33.
 
            
 
     
 
            
 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            Signed and filed this ____ day of July, 1991.
 
            
 
            
 
                                          ______________________________
 
                                          JEAN M. INGRASSIA
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies to:
 
            
 
            Mr Richard D Crotty
 
            Attorney at Law
 
            311 First Federal Bldg
 
            Council Bluffs IA 51503
 
            
 
            Mr Joseph a Happe
 
            Attorney at Law
 
            500 Liberty Bldg
 
            Des Moines IA 50309
 
            
 
            
 
                 
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                      5-1400; 5-1402.20; 5-1402.30
 
                      Filed July 26, 1991
 
                      Jean M. Ingrassia
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            BENITA BOGER,                 :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :       File No. 923637
 
            BC'S AMPRIDE TRUCK PLAZA,     :
 
                                          :     A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            CONTINENTAL LOSS ADJUSTING,   :
 
            SERVICES,                     :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            5-1400; 5-1402.20; 5-1402.30
 
            Claimant was allegedly injured in a fall on her employer's 
 
            property.  She was washing dishes and her right leg or right 
 
            hip gave out on her.  Claimant's injury was within the 
 
            course of employment because it was incidental to her work 
 
            activity and occurred while she was doing her work.
 
            However, claimant did not prove by a preponderance of the 
 
            evidence that her injury arose out of her employment.  A 
 
            causal connection was not established between the conditions 
 
            under which the work was performed and the resulting injury; 
 
            i.e., the injury followed as a natural incident of the work.  
 
            Musselman v. Central Telephone Co., 261 Iowa 352, 154 
 
            N.W.2d 128 (1967).  The record contained inconsistent and 
 
            contradictory evidence as to circumstances surrounding 
 
            claimant's injury.  Her recollection of the events changed 
 
            six months after the original injury.  Since her earlier 
 
            narrations were closer in time to the injury, they were 
 
            given more weight and consideration.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
            __
 
                                          :
 
            LILLY M. CORNELL,             :
 
                                          :
 
                 Claimant,                :     File Nos. 914315, 923644
 
                                          :               887708, 923645
 
            vs.                           :
 
                                          :       A R B I T R A T I O N
 
            WILSON FOODS,                 :
 
                                          :          D E C I S I O N
 
                 Employer,                :
 
                 Self-Insured,            :
 
                 Defendant.               :
 
                                          :
 
            ____________________________________________________________
 
            __
 
            
 
                              statement of the case
 
            
 
                 This case came on for hearing on the February 21, 1991, 
 
            at Storm Lake, Iowa.  This is a proceeding in arbitration 
 
            wherein claimant seeks compensation for permanent partial 
 
            disability benefits as a result of alleged injuries 
 
            sustained on October 26, 1987, May 2, 1988, October 3, 1988 
 
            and March 21, 1989.  The record consists of the testimony of 
 
            claimant, Carl Robb; claimant's exhibits 1 through 11; and 
 
            defendant's exhibit A.
 
            
 
                                      issues
 
            
 
                  Regarding file No. 887708, alleged injury date of May 
 
            2, 1988, the issues are:
 
            
 
                 1.  Whether claimant's alleged shoulders/body as a 
 
            whole and left carpal tunnel injuries arose out of and in 
 
            the course of her employment;
 
            
 
                 2.  Whether claimant's alleged shoulders/body as a 
 
            whole and left carpal tunnel injuries are causally connected 
 
            to her alleged May 2, 1988 injury; and,
 
            
 
                 3.  The nature and extent of claimant's disability and 
 
            entitlement to disability benefits.
 
            
 
                 Defendant admitted a right carpal tunnel injury and 
 
            that it was an injury to claimant's right hand on which they 
 
            paid 5 percent of the hand.  If it is found that the injury 
 
            on this date is, in fact, only a right carpal tunnel injury, 
 
            then the issue would be whether that injury is to claimant's 
 
            right hand or right upper extremity.
 
            
 
     
 
            
 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            Regarding claimant's file No. 914315, alleged injury date of 
 
            March 21, 1989:
 
            
 
                 1.  Whether claimant's alleged shoulders/body as a 
 
            whole and right carpal tunnel injuries arose out of and in 
 
            the course of her employment;
 
            
 
                 2.  Whether claimant's alleged shoulders/body as a 
 
            whole and left carpal tunnel injuries are causally connected 
 
            to her alleged March 21, 1989 injury; and,
 
            
 
                 3.  The nature and extent of claimant's disability and 
 
            entitlement to disability benefits.
 
            
 
                 The parties did agree that there was a work-related 
 
            injury to claimant's right thumb for which 50 percent (30 
 
            weeks) of permanent partial disability benefits was paid by 
 
            defendant.
 
            
 
                 Regarding file No. 923645, injury date of October 26, 
 
            1987:
 
            
 
                 1.  Whether claimant's alleged shoulder injuries arose 
 
            out of and in the course of her employment on October 26, 
 
            1987;
 
            
 
                 2.  Whether claimant's alleged shoulder injuries are 
 
            causally connected to her alleged October 26, 1987 injury; 
 
            and,
 
            
 
                 3.  The extent of claimant's permanent disability and 
 
            entitlement to disability benefits.
 
            
 
                 Regarding file No. 923644, injury date of October 3, 
 
            1988:
 
            
 
                 1.  Whether claimant's alleged shoulder injuries arose 
 
            out of and in the course of her employment on October 3, 
 
            1988;
 
            
 
                 2.  Whether claimant's alleged shoulder injuries are 
 
            causally connected to her alleged October 3, 1988 injury; 
 
            and,
 
            
 
                 3.  The extent of claimant's permanent disability and 
 
            entitlement to disability benefits.
 
            
 
                                 findings of fact
 
            
 
                 The undersigned having heard the testimony and 
 
            considered all the evidence, finds that:
 
            
 
                 Claimant is a 62-year-old who has completed the eighth 
 
            grade and has no other formal education.  She is trying to 
 
            obtain her GED but does not know when she will actually 
 
            obtain it.  Claimant described the various jobs she has held 
 
            since leaving school and before beginning work with 
 
            defendant employer in September 1984.  This prior work 
 
            history involved claimant working approximately 22 years as 
 
            a waitress and holding other jobs in the meat packing plant 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            similar to defendant employer.  Claimant is presently em
 
            ployed with defendant employer.  She had to take and pass a 
 
            preemployment physical with defendant employer with no 
 
            restrictions.
 
            
 
                 Claimant described her job with defendant employer 
 
            which required her to do repetitive work with her upper 
 
            extremities, shoulders, arms and hands.  This work consisted 
 
            of using a Whizzard knife trimming, pulling fat, and using 
 
            both hands to separate parts of the animal.  Claimant is 
 
            right-handed and used                   the knife in her 
 
            right hand.  When claimant returned to work after having her 
 
            right thumb injury, she was unable to handle the knife in 
 
            her right hand.  Claimant then took on the position she has 
 
            currently, which involves sorting lids and pans, throwing 
 
            them into containers on either side of her and behind her.  
 
            Claimant described this work as requiring her to throw these 
 
            items over her shoulders.
 
            
 
                 Claimant indicated she had no injuries prior to her 
 
            beginning work with Wilson Foods on September 6, 1984.  
 
            Claimant testified she started noticing right shoulder 
 
            problems while on the job in 1987 and that her hand would go 
 
            numb and the pain would go into her right elbow.  Claimant 
 
            contends that in 1989 her shoulder began getting worse due 
 
            to her repetitive work.  Claimant was then off work during 
 
            her healing period due to her March 21, 1989 right thumb 
 
            injury.  Claimant testified that her shoulder is getting 
 
            worse and that with her current problems she could not 
 
            return to her former job at defendant employer which she 
 
            contends paid approximately 25 cents more per hour.  
 
            Claimant said she is currently taking medication and showed 
 
            in court bottles of the various medications she was 
 
            presently taking as prescribed by her doctor to help 
 
            alleviate her pain.  Claimant stated that her shoulder 
 
            problems affect her doing housework or cleaning the walls.  
 
            She indicated she has considered retiring but contends the 
 
            company would take her insurance away so she must work to 
 
            keep this benefit.  She emphasized the reason she wanted to 
 
            retire was due to her shoulder and the various problems she 
 
            has had.  She acknowledged that she underwent right carpal 
 
            tunnel surgery in June 1987, thumb surgery in 1989, and most 
 
            recently left carpal tunnel surgery in September 1990.
 
            
 
                 Claimant also acknowledged that she is working less 
 
            hours now than she was working in 1988 (36 versus 42 hours) 
 
            but that this decrease has nothing to do with her injuries.
 
            
 
                 Carl Robb, who is presently the safety manager and 
 
            workers' compensation director for defendant employer, has 
 
            been with defendant employer for over 20 years.  He is 
 
            familiar with the plant area and has worked several 
 
            positions as an hourly employee.  Mr. Robb indicated it 
 
            would be a coincidence if claimant's hours now are less than 
 
            they were at her former jobs.  He indicated that depending 
 
            on the market fluctuation, the various work and hours in the 
 
            respective departments can vary.  Mr. Robb eventually did 
 
            indicate that year in and year out there would be more hours 
 
            that one could work at claimant's former pace boning job 
 
            than in her current position, but he could not agree or 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            disagree that claimant is working less hours than when she 
 
            was in the pace boning department.
 
            
 
                 Mr. Robb indicated that if claimant retired at this 
 
            time, she would receive full medical benefits.  He indicated 
 
            that the medical benefits for retirees is part of the union 
 
            contract and that these benefits are now provided.  He said 
 
            he knows of no company policy of intending to discontinue 
 
            the health benefits for the retirees.
 
            
 
                 Claimant's medical records reflect that on October 2, 
 
            1987, she first complained of forearm pain.  On October 19, 
 
            1987, she complained of numbness in both arms.  On October 
 
            26, 1987, she complained of right shoulder problems.  On 
 
            November 23, 1987, she was complaining of both shoulders 
 
            hurting along with her arm and fingers.  This exhibit 
 
            further reflects that through March 24, 1989, claimant was 
 
            complaining of various injuries up to that time involving 
 
            her shoulders, hands, fingers and thumb.
 
            
 
                 Claimant's medical record on October 3, 1988 
 
            (Claimant's Exhibit 2), reflect claimant went to Sioux 
 
            Valley Hospital for headache pain and right cervical and 
 
            right trap region since her return from her carpal tunnel 
 
            surgery.  There is no further medical information in this 
 
            medical record of her shoulder problems through December 19, 
 
            1990.
 
            
 
                 An October 8, 1990 radiologist report showed a 
 
            degenerative change of the acromioclavicular joint but, 
 
            otherwise negative (Cl. Ex. 2, p. 4).
 
            
 
                 Claimant's Exhibit 3, page 1, reflects claimant had a 
 
            carpal tunnel release on June 23, 1988.  Although it does 
 
            not say, it is obvious from the record that this involves 
 
            claimant's right side.  Claimant's Exhibit 3, pages 2 and 3, 
 
            reflects claimant had a left carpal tunnel release and a 
 
            release of the proximal pulley left long finger.
 
            
 
                 The notes on March 21, 1989 show claimant lacerated her 
 
            right thumb while reaching for a Whizzard knife on September 
 
            19, 1989.  Thomas P. Ferlic, M.D., indicated claimant should 
 
            not return to any work that required using a knife or 
 
            pinch-type activity such as pushing things into the machine.
 
            
 
                 On November 29, 1989, Dr. Ferlic opined claimant had a 
 
            50 percent permanent partial physical impairment to her 
 
            right thumb.  He also indicated claimant continued to have 
 
            right shoulder pain with radiation into the neck.  Dr. 
 
            Ferlic gave no permanent impairment rating to claimant's 
 
            shoulders or upper extremity resulting from any shoulder 
 
            injury of claimant.
 
            
 
                 The medical records of claimant show she had problems 
 
            in varying degrees at times during the last three years with 
 
            her left and right hands or upper extremities and shoulders.  
 
            The records refer at times to claimant's shoulders.  The 
 
            records are not as clear and explicit enough to show or 
 
            enable one to determine whether the alleged shoulder 
 
            injuries are to the upper extremities or into the body as a 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            whole.  As to claimant's left shoulder, there is no evidence 
 
            to show any impairment.  The fact that there are aches and 
 
            pains at times to this 62 year old is insufficient.  It is 
 
            obvious claimant had degenerative arthritis which is not 
 
            caused by her injury but an injury can aggravate a 
 
            preexisting condition.  The undersigned finds that claimant 
 
            has failed to prove a left shoulder injury arising out of 
 
            and in the course of her employment which resulted in or 
 
            caused any permanent impairment or disability.  This is true 
 
            as to any of claimant's alleged left shoulder injuries in 
 
            the four cases herein.
 
            
 
                 As to claimant's right shoulder injuries which claimant 
 
            has alleged to have incurred as a cumulative injury in all 
 
            four cases herein, it is obvious claimant could not have 
 
            incurred four right shoulder cumulative injuries in the 
 
            approximate seventeen months, October 26, 1987 through March 
 
            21, 1989.  There is no evidence that claimant missed any 
 
            work as a result of her alleged right shoulder injuries.  
 
            Claimant did miss work during the seventeen month period due 
 
            to right carpal tunnel and right thumb injuries.  Under 
 
            McKeever Custom Cabinets v. Smith, 379 N.W.2d 368 (Iowa 
 
            1985), it would appear the time of the injury is determined 
 
            when claimant's pain is so great the employee is prevented 
 
            from continuing his or her job.  It further states this is 
 
            the date to determine the rate and limitation of claimant's 
 
            claim under the notice and statute of limitation section of 
 
            the code.
 
            
 
                 Dr. Ferlic diagnosed claimant as having degenerative 
 
            joint disease acromioclavicular on the right.  He has been 
 
            the treating physician for claimant's illnesses for the last 
 
            approximately four years.  He gives no permanency rating for 
 
            claimant's shoulders.  He does give a ratings for claimant's 
 
            carpal tunnel and thumb injuries.  It can be inferred from 
 
            the record that Dr. Ferlic did not think there was any 
 
            permanent impairment to claimant's shoulders, at least any 
 
            that is causally connected to any alleged work injury 
 
            herein.  It appears to the undersigned that claimant's work 
 
            activities currently as she describes them, mainly tossing 
 
            pans and lids, some weighing 15 pounds, at the rate of 
 
            several hundred per day, is as strenuous as what she was 
 
            doing in her old job.  Claimant may have a brewing or 
 
            inchoate cumulative injury in the making, but it has not 
 
            ripened under the law in the undersigned's opinion.
 
            
 
                 Jerome Bashara, M.D., appears to have seen claimant 
 
            once for an evaluation on February 4, 1990, upon referral 
 
            from claimant's attorney.  Dr. Bashara opined a causal 
 
            connection of claimant's post-traumatic degenerative changes 
 
            of the AC joint of the right shoulder with a mild 
 
            restriction of motion and pain to claimant's work and opined 
 
            a 6 percent permanent partial impairment to claimant's right 
 
            upper extremity and converted that to a 4 percent permanent 
 
            impairment to claimant's body as a whole (Cl. Ex. 4).
 
            The undersigned believes Dr. Ferlic's medical opinion or 
 
            lack of a medical opinion as to claimant's shoulders is the 
 
            more acceptable based on the total record herein.  The 
 
            undersigned finds claimant has not at this time incurred 
 
            cumulative right or left shoulder injuries on any of the 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            alleged dates herein involving any of the cases herein.
 
            The above findings completely dispose of claimant's 
 
            shoulders/body as a whole injuries on October 26, 1987 (file 
 
            No. 923645), claimant's May 2, 1988 shoulders/body as a 
 
            whole injuries (file No. 887708), claimant's shoulders/body 
 
            as a whole alleged injuries incurred on October 3, 1988 
 
            (file No. 923644), and claimant's alleged shoulders/body as 
 
            a whole alleged injuries on March 21, 1989 (file No. 
 
            914315).
 
            As to claimant's May 2, 1988 injury, the only remaining 
 
            issue is whether claimant's right carpal tunnel is an injury 
 
            to her hand or arm.  Dr. Ferlic opined claimant had a 5 
 
            percent impairment to her hand which would amount to 5 
 
            percent of 190 weeks which equals 9.5 weeks.  Dr. Bashara 
 
            opined a 5 percent permanent impairment to claimant's right 
 
            upper extremity.  A hand or wrist is considered the hand, 
 
            which is part of the upper extremity, but the rating would 
 
            be 5 percent of 190 and not 5 percent of 250 weeks.  See 
 
            Iowa Workers' Compensation Law and Practice, Lawyer and 
 
            Higgs, Section 13-4, p. 110.
 
            The undersigned finds claimant's February 2, 1988 carpal 
 
            tunnel injury is to her right hand.  Defendant has already 
 
            paid the 9.5 weeks and there was no disagreement that this 
 
            injury arose out of and in the course of claimant's 
 
            employment and was causally connected to claimant's work 
 
            injury.
 
            As to claimant's March 21, 1989 injury, it appears from 
 
            claimant's brief and the parties' statements in court that 
 
            if there were no other injuries found on this date, claimant 
 
            would be entitled only the 50 percent permanent impairment 
 
            to her right thumb which amounts to 30 weeks and which 
 
            defendant has already paid.  The undersigned finds claimant 
 
            is entitled to nothing more than what she has already 
 
            received regarding the March 21, 1989 injury.
 
            
 
                 In summary, the net result of this decision is that 
 
            claimant takes nothing further from these proceedings than 
 
            what claimant has already received.  Claimant does not have 
 
            any industrial disability resulting from any of the four 
 
            cases herein.  There was not an issue in any of these cases 
 
            as to healing period.
 
            
 
                 The undersigned emphasizes that this decision is based 
 
            on claimant's current situation at the time of the hearing.  
 
            It is not intended to infer or deny that claimant may have 
 
            an inchoate or ripening cumulative injury or condition.
 
            
 
                    
 
            
 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            conclusions of law
 
            
 
                 Claimant has the burden of proving by a preponderance 
 
            of the evidence that she received injuries on October 26, 
 
            1987, May 2, 1988, October 3, 1988 and March 21, 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 352, 154 
 
            N.W.2d 128 (1967). 
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injuries of October 
 
            26, 1987, May 2, 1988, October 3, 1988 and March 21, 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). 
 
            
 
                 However, expert medical evidence must be considered 
 
            with all other evidence introduced bearing on the causal 
 
            connection.  Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion 
 
            of experts need not be couched in definite, positive or 
 
            unequivocal language.  Sondag v. Ferris Hardware, 220 N.W.2d 
 
            903 (Iowa 1974).  However, the expert opinion may be 
 
            accepted or rejected, in whole or in part, by the trier of 
 
            fact.  Id. at 907.  Further, the weight to be given to such 
 
            an opinion is for the finder of fact, and that may be 
 
            affected by the completeness of the premise given the expert 
 
            and other surrounding circumstances.  Bodish, 257 Iowa 516, 
 
            133 N.W.2d 867.  See also Musselman, 261 Iowa 352, 154 
 
            N.W.2d 128.
 
            
 
                 If a claimant contends he has industrial disability he 
 
            has the burden of proving his injury results in an ailment 
 
            extending beyond the scheduled loss.  Kellogg v. Shute and 
 
            Lewis Coal Co., 256 Iowa 1257, 130 N.W.2d 667 (1964).
 
            
 
                 It is not necessary that claimant prove his disability 
 
            results from a sudden unexpected traumatic event.  It is 
 
            sufficient to show that a disability developed gradually or 
 
            progressively from work activity over a period of time.  
 
            McKeever Custom Cabinets v. Smith, 379 N.W.2d 368 (Iowa 
 
            1985).  The McKeever court also held that the date of injury 
 
            in a gradual injury case is the time when pain prevents the 
 
            employee from continuing to work.  In McKeever the injury 
 
            date coincides with the time claimant was finally compelled 
 
            to give up his job.  This date was then utilized in 
 
            determining rate and the timeliness of the claimant's claim 
 
            under Iowa Code section 85.26 and notice under Iowa Code 
 
            section 85.23.
 
            
 
     
 
            
 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            It is further concluded that:
 
            
 
                 Claimant did not incur any shoulders/body as a whole in
 
            juries on October 26, 1987, May 2, 1988, October 3, 1988 or 
 
            March 21, 1989, which arose out of and in the course of 
 
            claimant's employment or which were causally connected to 
 
            any work injury of claimant.
 
            
 
                 Claimant's May 2, 1988 carpal tunnel injury was to 
 
            claimant's right hand and not to her right upper extremity 
 
            (arm).  Claimant is entitled to 9.5 weeks (5 percent of 190 
 
            weeks), which has already been paid to claimant.
 
            
 
                 Claimant is not entitled to any more benefits than what 
 
            she has been paid as to her May 2, 1988 case (file No. 
 
            887708) and claimant's March 21, 1989 alleged injury (file 
 
            No. 914315).
 
            
 
                 Claimant is not entitled to any benefits as a result of 
 
            her October 26, 1987 alleged injury (file No. 923645) and 
 
            her October 3, 1988 alleged injury (file No. 923644).
 
            
 
                                      order
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 That as to case No. 887708, claimant takes nothing 
 
            further from these proceedings.
 
            
 
                 That as to case No. 914315, claimant takes nothing 
 
            further from these proceedings.
 
            
 
                 That as to case Nos. 923644 and 923645, claimant takes 
 
            nothing from these proceedings.
 
            
 
                 That defendants shall pay the costs of this action, 
 
            pursuant to rule 343 IAC 4.33.
 
            
 
                 That defendants shall file an activity report upon 
 
            payment of this award as required by this agency, pursuant 
 
            to rule 343 IAC 3.1.
 
            
 
                 Signed and filed this ____ day of March, 1991.
 
            
 
            
 
            
 
                                          ______________________________
 
                                          BERNARD J. O'MALLEY
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            
 
            Copies to:
 
            
 
            Mr Robert E McKinney
 
            Attorney at Law
 
            480 6th St
 
            P O Box 209
 
            Waukee IA 50263
 
            
 
            Mr David L Sayre
 
            Attorney at Law
 
            223 Pine St
 
            P O Box 535
 
            Cherokee IA 51012
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            CAROLYN J. JUNKER,            :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :         File No. 923648
 
            DEPARTMENT OF HUMAN SERVICES, :
 
                                          :      A R B I T R A T I O N
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            STATE OF IOWA,                :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendant.               :
 
            ___________________________________________________________
 
            
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding in arbitration brought by Carolyn 
 
            J. Junker, claimant, against Department of Human Services, 
 
            employer, and State of Iowa, insurance carrier, to recover 
 
            benefits under the Iowa Worker's Compensation Act as a 
 
            result of an injury sustained on August 19, 1988.  This 
 
            matter came on for hearing before the undersigned deputy 
 
            industrial commissioner on March 21, 1991, in Cedar Rapids, 
 
            Iowa.  The record was considered fully submitted at the 
 
            close of the hearing.  The claimant was present and 
 
            testified.  The record consists of defendant's exhibit A.  
 
            Claimant offered exhibits 1-5 which were objected to by 
 
            defendant.  Because claimant did not serve a list of 
 
            proposed exhibits upon employer within the time limits set 
 
            out in the hearing assignment order, defendant's objections 
 
            to the admission of exhibits 1-5 was sustained and they were 
 
            not received into evidence.
 
            
 
                                      issues
 
            
 
                 Pursuant to the prehearing report and order dated March 
 
            21, 1991, the parties stipulated as follows:
 
            
 
                 1.  That an employer-employee relationship existed 
 
            between claimant and employer at the time of the alleged 
 
            injury;
 
            
 
                 2.  That the alleged injury is a cause of temporary 
 
            disability during a period of recovery;
 
            
 
                 3.  That the extent of entitlement to weekly 
 
            compensation for temporary total disability or healing 
 
            period benefits, if defendant is liable for the injury, is 
 
            from August 19, 1988 through November 14, 1988;
 
            
 
                 4.  That in the event of an award of weekly benefits, 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            the rate of weekly compensation is $258.14 per week;
 
            
 
                 5.  That with reference to the disputed medical 
 
            expenses, the fees charged for the medical services or 
 
            supplies rendered are fair and reasonable and that the 
 
            expenses incurred were for reasonable and necessary medical 
 
            treatments;
 
            
 
                 6.  That the causal connection of the expenses to 
 
            treatment for a medical condition upon which claimant is now 
 
            basing her claim is admitted but that the causal connection 
 
            of this condition to her work injury is disputed; and,
 
            
 
                 7.  That defendant is entitled to a credit under 
 
            section 85.38(2) for previous payment of sick pay/disability 
 
            income during the stipulated healing period and 
 
            medical/hospitalization expenses.
 
            
 
                 The issues remaining to be decided include:
 
            
 
                 1.  Whether claimant received an injury on August 19, 
 
            1988, which arose out of and in the course of employment 
 
            with employer;
 
            
 
                 2.  Whether the work injury is a cause of permanent 
 
            disability;
 
            
 
                 3.  Claimant's entitlement to medical benefits under 
 
            Iowa Code section 85.27; and,
 
            
 
                 4.  That the expenses are causally connected to the 
 
            work injury and that such expenses were authorized by 
 
            defendant.
 
            
 
                                 findings of fact
 
            
 
                 The undersigned has carefully considered all the 
 
            testimony given at the hearing, the arguments made and the 
 
            evidence contained in defendant's exhibit, and makes the 
 
            following findings:
 
            
 
                 Claimant is an Income Maintenance worker with the Iowa 
 
            Department of Human Services in Cedar Rapids, Iowa.  She has 
 
            worked in this capacity for 12 years.  She works Tuesday 
 
            through Thursday from 6:15 a.m. to 5:00 p.m. and from 6:30 
 
            a.m. to 4:30 p.m. on Friday.  She is allowed one half hour 
 
            unpaid lunch breaks and two 15 minute paid coffee breaks.
 
            
 
                 On August 19, 1988, at 7:25 a.m., claimant and two 
 
            other office workers, took their morning coffee break at a 
 
            restaurant in the Garden Court Center.  Prior to leaving the 
 
            office, claimant called the restaurant and preordered 
 
            breakfast for herself and two companions.
 
            
 
                 Claimant testified that taking breaks off the premises 
 
            was a common occurrence because there was no eating facility 
 
            in the building where she worked.  She stated that her 
 
            supervisor never objected to this practice and in fact 
 
            supervisors also took their coffee break at the same 
 
            restaurant.  The purpose of the break was to relax and 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            discuss common work problems.
 
            
 
                 Claimant testified that the restaurant was about a 1-2 
 
            minute walk from the office located on 221 SE Third Ave.
 
            
 
                 On August 19, 1988, when returning to the office from 
 
            the restaurant, and while walking between the parking ramp 
 
            and Garden Court Center, claimant tripped on a raised piece 
 
            of sidewalk and shattered the bone in her left wrist.  The 
 
            incident occurred 90-100 feet from the entrance to her 
 
            office building.  Claimant was taken by ambulance to St. 
 
            Luke's Hospital where she underwent surgery by Earl Bickel, 
 
            M.D.  A cast was applied and she was advised by Dr. Bickel 
 
            to stay off work for a few months.  She participated in 
 
            physical therapy twice a week through December 1988 and last 
 
            saw Dr. Bickel in January 1989.  She returned to work on 
 
            November 15, 1988, after the cast was removed.
 
            
 
                 Claimant testified that she is now fully recovered from 
 
            her injury and still experiences pain and cramping in her 
 
            left wrist.
 
            
 
                                conclusions of law
 
            
 
                 Claimant has the burden of proving by a preponderance 
 
            of the evidence that she received an injury on August 19, 
 
            1988 which arose out of and in the course of her employment.  
 
            McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); 
 
            Musselman v. Central Telephone Co., 261 Iowa 352, 154 
 
            N.W.2d 128 (1967). 
 
            
 
                 An employee is entitled to compensation for any and all 
 
            personal injuries which arise out of and in the course of 
 
            the employment.  Section 85.3(1).
 
            
 
                 The injury must both arise out of and be in the course 
 
            of the employment.  Crowe v. DeSoto Consol. Sch. Dist., 246 
 
            Iowa 402, 68 N.W.2d 63 (1955) and cases cited at pp. 405-406 
 
            of the Iowa Report.  See also Sister Mary Benedict v. St. 
 
            Mary's Corp., 255 Iowa 847, 124 N.W.2d 548 (l963) and Hansen 
 
            v. State of Iowa, 249 Iowa 1147, 91 N.W.2d 555 (1958).
 
            
 
                 The words "out of" refer to the cause or source of the 
 
            injury.  Crowe, 246 Iowa 402, 68 N.W.2d 63 (1955). 
 
            
 
                 The words "in the course of" refer to the time and 
 
            place and circumstances of the injury.  McClure v. Union 
 
            et al. Counties, 188 N.W.2d 283 (Iowa 1971); Crowe, 246 Iowa 
 
            402, 68 N.W.2d 63 (1955).
 
            
 
                 "An injury occurs in the course of the employment when 
 
            it is within the period of employment at a place the 
 
            employee may reasonably be, and while he is doing his work 
 
            or something incidental to it."  Cedar Rapids Comm. Sch. 
 
            Dist. v. Cady, 278 N.W.2d 298 (Iowa 1979), McClure, 188 
 
            N.W.2d 283 (Iowa 1971); Musselman, 261 Iowa 352, 154 N.W.2d 
 
            128 (1967). 
 
            
 
                 The supreme court of Iowa in Almquist v. Shenandoah 
 
            Nurseries, 218 Iowa 724, 731-32, 254 N.W. 35, 38 (1934) 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            discussed the definition of personal injury in workers' 
 
            compensation cases as follows:
 
            
 
                 While a personal injury does not include an occupa
 
                 tional disease under the Workmen's Compensation 
 
                 Act, yet an injury to the health may be a personal 
 
                 injury.  [Citations omitted.]  Likewise a personal 
 
                 injury includes a disease resulting from an 
 
                 injury....The result of changes in the human body 
 
                 incident to the general processes of nature do not 
 
                 amount to a personal injury.  This must follow, 
 
                 even though such natural change may come about 
 
                 because the life has been devoted to labor and 
 
                 hard work.  Such result of those natural changes 
 
                 does not constitute a personal injury even though 
 
                 the same brings about impairment of health or the 
 
                 total or partial incapacity of the functions of 
 
                 the human body. 
 
            
 
                    ....
 
                 
 
                 A personal injury, contemplated by the Workmen's 
 
                 Compensation Law, obviously means an injury to the 
 
                 body, the impairment of health, or a disease, not 
 
                 excluded by the act, which comes about, not through the 
 
                 natural building up and tearing down of the human body, 
 
                 but because of a traumatic or other hurt or damage to 
 
                 the health or body of an employee.  [Citations 
 
                 omitted.]  The injury to the human body here 
 
                 contemplated must be something, whether an accident or 
 
                 not, that acts extraneously to the natural processes of 
 
                 nature, and thereby impairs the health, overcomes, 
 
                 injures, interrupts, or destroys some function of the 
 
                 body, or otherwise damages or injures a part or all of 
 
                 the body.
 
            
 
                 Claimant alleges that she sustained an injury on August 
 
            19, 1988, which arose out of and in the course of her 
 
            employment with employer.  However, defendant contends that 
 
            since claimant's injury occurred off the work premises 
 
            during a morning break, such injury is not compensable.  
 
            Defendant argues that there was no control by employer at 
 
            the time of the injury because claimant was off the work 
 
            premises.
 
            
 
                 Section 85.3(1), The Code 1991, requires an employer to 
 
            pay compensation "for any and all personal injuries 
 
            sustained by an employee arising out of and in the course of 
 
            the employment"; section 85.61(7) provides:
 
            
 
                 The words "personal injury arising out of and in 
 
                 the course of the employment" shall include 
 
                 injuries to employees whose services are being 
 
                 performed on, in, or about the premises which are 
 
                 occupied, used, or controlled by the employer, and 
 
                 also injuries to those who are engaged elsewhere 
 
                 in places where their employer's business requires 
 
                 their presence and subjects them to dangers 
 
                 incident to the business.
 
            
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
                 As a general rule, absent special circumstances, 
 
            employees are not entitled to compensation for injuries 
 
            occurring off the employer's premises on the way to or from 
 
            work.  However, an injury arising out of and in the course 
 
            of employment may be found where:  (1) the site of injury 
 
            was closely related in time, location and employee usage to 
 
            the work premises as to bring the claimant within the zone 
 
            of protection of the workers' compensation law, or (2) the 
 
            employer had exercised its control over the abutting area as 
 
            to make it an extension of the business premises.  Frost v. 
 
            S. S. Kresge Co., 299 N.W.2d 646, 648 (Iowa 1980).
 
            
 
                 In the instant case, claimant fell approximately 100 
 
            feet from the entrance to the office building which she 
 
            normally used to enter the work premises after a morning 
 
            coffee break.  Claimant's work day provides for two paid 
 
            15-minute relief periods.  Employees, including supervisors, 
 
            routinely used a restaurant located near the office for such 
 
            breaks.  Although coin operated canteen facilities, 
 
            including coffee, are available on the premises, most 
 
            employees and their supervisors customarily went for coffee 
 
            to the Garden Court Restaurant which was located about 1-2 
 
            minutes from the office.
 
            
 
                 Claimant's contentions essentially are two:  (1) Iowa 
 
            should adopt an additional exception to the "coming and 
 
            going" rule, as some states have done in the so-called 
 
            "coffee break", "rest breaks", and similar situations; and 
 
            (2) the facts of this case bring it within such an 
 
            exception.
 
            
 
                 Cases from other jurisdictions support different 
 
            results, and the reasoning in them is the basis for comments 
 
            on the applicable rules found in I Larson's Workmen's 
 
            Compensation Law 4-183-190, section 15.54 (1990):
 
            
 
                 Now that the coffee break has become a fixture of 
 
                 many kinds of employment, close questions continue 
 
                 to arise on the compensability of injuries 
 
                 occurring off the premises during rest periods or 
 
                 coffee breaks of various durations and subject to 
 
                 various conditions.  It is clear that one cannot 
 
                 announce an all-purpose `coffee break rule,' since 
 
                 there are too many variables that could affect the 
 
                 result....[Variables may involve the question 
 
                 whether the interval is a right fixed by the 
 
                 employment contract, whether it is a paid 
 
                 interval, and whether there are restrictions on 
 
                 where the employee can go during the break.
 
            
 
                 "The operative principle which should be used to 
 
                 draw the line here is this:  If the employer, in 
 
                 all the circumstances, including duration, 
 
                 shortness of the off-premises distance, and 
 
                 limitations on off-premises activity during the 
 
                 interval, can be deemed to have retained authority 
 
                 over the employee, the off-premises injury may be 
 
                 found to be within the course of employment...
 
            
 
                     ...
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            
 
                 If the employees during the coffee break are 
 
                 expected to go to a particular off-premises place, 
 
                 the element of continued control is adequately 
 
                 supplied.  In Sweet v. Kolosky [259 Minn 253, 106 
 
                 N.W.2d 908 (1960)], the claimant fell on a public 
 
                 sidewalk between the place of employment and the 
 
                 drugstore where all employees were permitted, by 
 
                 their employment agreement, to go for a coffee 
 
                 break because of lack of facilities on the 
 
                 premises.  Compensation was awarded."
 
            
 
                 While the general rule is that off-premises meals on 
 
            the employee's time are not compensable, the employee can 
 
            show additional facts to bring herself within an exception 
 
            to the "coming and going" rule.  In the case at hand, the 
 
            claimant was on an approved coffee break provided for under 
 
            the contract of employment and acquiesced by the employer.  
 
            Coffee breaks are advantageous to the employer as well as 
 
            the employee because they add in the efficient performance 
 
            by the employee of work activities.  The claimant was not on 
 
            a personal mission.  There was an element of employer 
 
            control exercised because the supervisor, although not on 
 
            this occasion, accompanied the employee to the coffee break 
 
            site and the claimant was paid for the time involved.  While 
 
            the claimant was not performing the regular function of her 
 
            job, she was permitted, by her employment agreement, to go 
 
            for a coffee break off the work premises because of lack of 
 
            facilities on the premises.
 
            
 
                 In view of the above, the undersigned concludes that 
 
            claimant has established a work injury arising out of and in 
 
            the course of her employment on August 19, 1988.  Claimant 
 
            must now establish that her work incident resulted in a work 
 
            injury which is causally related to her claimed disability.
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury of August 19, 
 
            1988 is causally related to the disability on which she now 
 
            bases her claim.  Bodish v. Fischer, Inc., 257 Iowa 516, 133 
 
            N.W.2d 867 (1965).  Lindahl v. L. O. Boggs, 236 Iowa 296, 18 
 
            N.W.2d 607 (1945).  A possibility is insufficient; a 
 
            probability is necessary.  Burt v. John Deere Waterloo 
 
            Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955).  The 
 
            question of causal connection is essentially within the 
 
            domain of expert testimony.  Bradshaw v. Iowa Methodist 
 
            Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). 
 
            
 
                 However, expert medical evidence must be considered 
 
            with all other evidence introduced bearing on the causal 
 
            connection.  Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion 
 
            of experts need not be couched in definite, positive or 
 
            unequivocal language.  Sondag v. Ferris Hardware, 220 N.W.2d 
 
            903 (Iowa 1974).  However, the expert opinion may be 
 
            accepted or rejected, in whole or in part, by the trier of 
 
            fact.  Id. at 907.  Further, the weight to be given to such 
 
            an opinion is for the finder of fact, and that may be 
 
            affected by the completeness of the premise given the expert 
 
            and other surrounding circumstances.  Bodish, 257 Iowa 516, 
 
            133 N.W.2d 867.  See also Musselman, 261 Iowa 352, 154 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            N.W.2d 128 (1967).
 
            
 
                 Furthermore, if the available expert testimony is 
 
            insufficient alone to support a finding of causal 
 
            connection, such testimony may be coupled with nonexpert 
 
            testimony to show causation and be sufficient to sustain an 
 
            award.  Giere v. Aase Haugen Homes, Inc., 259 Iowa 1065, 146 
 
            N.W.2d 911, 915 (1966).  Such evidence does not, however, 
 
            compel an award as a matter of law.  Anderson v. Oscar Mayer 
 
            & Co., 217 N.W.2d 531, 536 (Iowa 1974).  To establish 
 
            compensability, the injury need only be a significant 
 
            factor, not be the only factor causing the claimed disabil
 
            ity.  Blacksmith v. All-American, Inc., 290 N.W.2d 348, 354 
 
            (Iowa 1980).
 
            
 
                 As previously noted, the parties have stipulated that 
 
            in the event it is found that claimant sustained an injury 
 
            on August 19, 1988, which arose out of and in the course of 
 
            employment with employer, such injury is a cause of 
 
            temporary disability during the period from August 19, 1988 
 
            through November 14, 1988.
 
            
 
                 It is defendant's position that if it is found that 
 
            claimant sustained a compensable injury, claimant is not 
 
            entitled to weekly compensation for permanent disability 
 
            because claimant has produced no medical evidence on this 
 
            issue because claimant failed to obtain such evidence in a 
 
            timely manner.  Claimant testified that she was released to 
 
            return to work on November 14, 1988 and on November 15, 1988 
 
            resumed her usual duties as an income maintenance worker 
 
            with the Department of Human Services.  She has produced no 
 
            medical evidence showing that she has a permanent impairment 
 
            as a result of the August 19, 1988 injury.  Therefore, 
 
            claimant has not met her burden of proof as to permanency 
 
            and is not entitled to permanent partial disability bene
 
            fits.  Accordingly, the undersigned concludes that the 
 
            claimant sustained a compensable injury and is entitled to 
 
            temporary total disability during the period of time she was 
 
            off work from August 19, 1988 through November 14, 1988.
 
            
 
                 The final issue to be determined is claimant's 
 
            entitlement to medical benefits under Iowa Code section 
 
            85.27.  Since claimant has established that she sustained an 
 
            injury which arose out of and in the course of her 
 
            employment, she is entitled under Iowa Code section 85.27 to 
 
            recover the expenses of medical treatment.  Defendant denied 
 
            liability.  Defendant cannot deny liability on the one hand 
 
            and guide the course of treatment on the other.  Barnhart v. 
 
            MAQ Incorporated, I Iowa Industrial Commissioner Report 16 
 
            (Appeal Decision 1981).  As stipulated to by the parties, 
 
            employer is entitled to credit for sick pay benefits and 
 
            medical/hospitalization expenses previously paid.
 
            
 
                                      order
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 That defendant pay to claimant twelve point 
 
            five-seven-one (12.571) weeks of temporary total disability 
 
            benefits at the stipulated rate of two hundred fifty-eight 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            and 14/100 dollars ($258.14) per week for the period August 
 
            19, 1988 through November 14, 1988.
 
            
 
                 That defendant pay all medical expenses incurred for 
 
            treatment and evaluation as a result of an injury sustained 
 
            on August 19, 1988.
 
            
 
                 That defendant receive credit under Iowa Code section 
 
            85.38(2) for previous payments made under a non-occupational 
 
            group plan.
 
            
 
                 That defendant pay the costs of this action pursuant to 
 
            rule 343 IAC 4.33.
 
            
 
                 That defendant pay any accrued amounts in a lump sum.
 
            
 
                 That defendant pay interest pursuant to Iowa Code 
 
            section 85.30.
 
            
 
                 That defendant file a claim activity report as required 
 
            by this agency pursuant to rule 343 IAC 3.l.
 
            
 
            
 
            
 
                 Signed and filed this ____ day of April, 1991.
 
            
 
            
 
            
 
            
 
            
 
                                          ______________________________               
 
            JEAN M. INGRASSIA
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Matthew Glasson
 
            Attorney at Law
 
            Suite 206  Higley Bldg
 
            118 Third Ave SE
 
            Cedar Rapids  IA  52401
 
            
 
            Ms. Shirley Ann Steffe
 
            Assistant Attorney General
 
            Hoover State Office Bldg
 
            Des Moines  IA  50319
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                           1104; 1107; 1108.50;
 
                           1402.20; 1801
 
                           Filed April 11, 1991
 
                           JEAN M. INGRASSIA
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            CAROLYN J. JUNKER,            :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :         File No. 923648
 
            DEPARTMENT OF HUMAN SERVICES, :
 
                                          :      A R B I T R A T I O N
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            STATE OF IOWA,                :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendant.               :
 
            ___________________________________________________________
 
            
 
            
 
            1104; 1107; 1108.50; 1402.20; 1801
 
            Claimant fell approximately 100 feet from the entrance to 
 
            the office building which she normally used to enter the 
 
            work premises after a 15 minute coffee break.  Claimant 
 
            established a work injury arising out of and in the course 
 
            of her employment and entitlement to temporary disability 
 
            during her absence from work.  Claimant produced no medical 
 
            evidence showing permanency because all medical evidence was 
 
            excluded due to untimely filing of proposed exhibit list.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            THOMAS PETERSEN,              :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No.  923650
 
            BANDAG, INC.,                 :
 
                                          :  A R B I T R A T I O N
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            TRAVELERS INSURANCE COMPANY,  :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            
 
                 
 
            ___________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding in arbitration brought by Thomas 
 
            Petersen as a result of injuries to his chest and heart 
 
            which occurred on June 19, 1986.  Defendants denied 
 
            compensability for the injury, paid no benefits or medical 
 
            expenses under workers' compensation.
 
            
 
                 The case was heard and fully submitted at Davenport, 
 
            Iowa, on March 7, 1991.  The record in the proceeding 
 
            consists of joint exhibits 1 through 21, testimony from 
 
            claimant, Gregory Stark and John Lodge.  Official notice was 
 
            taken of the pleadings pursuant to defendants request.  It 
 
            should be noted that the joint exhibits are individually 
 
            marked as claimants exhibits.
 
            
 
                                      issues
 
            
 
                 The issues presented for determination are as follows:
 
            
 
                 1.  Whether the claim is untimely under Iowa code 
 
            section 85.26;
 
            
 
                 2.  Whether the claimant gave proper notice under Iowa 
 
            code section 85.23;
 
            
 
                 3.  Whether claimant sustained an injury on June 19, 
 
            1986, arising out of and in the course of employment;
 
            
 
                 4.  Whether the injury is a cause of temporary total 
 
            disability or healing period;
 
            
 
                 5.  Whether the injury is a cause of permanent 
 
            disability and the extent of industrial disability; and
 
            
 
                 6.  Claimant's entitlement to medical benefits under 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            Iowa Code section 85.27.
 
            
 
                                 findings of fact
 
            
 
                 Having considered all the evidence received the 
 
            following findings of fact are made:
 
            
 
                 Claimant, Thomas Petersen, worked for employer on June 
 
            19, 1986, as a supervisor of advertising.  On that date, he 
 
            was charged with responsibility for setting up the audio and 
 
            visual equipment necessary for a speech to be given by 
 
            employer's chief executive officer.  The speech was 
 
            immediately followed by a buffet meal.  Claimant was not 
 
            responsible for arranging the buffet.
 
            
 
                 After the speech concluded, claimant remained at the 
 
            luncheon.  As part of the activities, a number of employer's 
 
            engineers had created a giant sling shot which was 
 
            manufactured for the sole purpose of launching water 
 
            balloons.  Claimant described the apparatus as being 
 
            constructed of heavy surgical tubes and a funnel used to 
 
            hold the projectile.  Claimant was accidentally struck by 
 
            one of the water balloons which was estimated to weigh about 
 
            four and one-half pounds.  Claimant stated that the balloon 
 
            traveled some 200 feet before striking him in the chest and 
 
            knocking him to the ground.  The balloon struck him with 
 
            such force that it tore a button off his shirt and cut him 
 
            on the upper left quadrant of his chest.
 
            
 
                 Claimant experienced chest pain as a result of the 
 
            injury and was treated at the hospital later in the evening.  
 
            He missed one day of work immediately after the incident.
 
            
 
                 Claimant went to another doctor on June 24, 1986, due 
 
            to the chronic chest pain that he was experiencing.  This 
 
            examination failed to reveal the reason for his continued 
 
            chest pain.
 
            
 
                 Claimant continued to experience chest pain after June 
 
            24, 1986.  He went to a specialist on July 8, 1986.  The 
 
            examination again resulted in no explanation for the chest 
 
            pain.
 
            
 
                 Claimant testified that the mysterious chest pain 
 
            continued into the fall of 1986.  However, claimant did not 
 
            seek further medical treatment for the pain.  He stated that 
 
            the pain would flare-up when he did anything.  Claimant 
 
            stated that the pain prevented him from bow hunting.
 
            
 
                 Claimant joined an exercise facility in about January 
 
            of 1987, so as to get back into physical condition.  He felt 
 
            that he could work through the pain.  He stated that up to 
 
            this time the pain in his chest was still present in the 
 
            same area where it had originated after being struck by the 
 
            balloon.  It should be noted that the medical records reveal 
 
            a different history.
 
            
 
                 Claimant stated that in November 1987 the pain grew 
 
            worse and started radiating into his left arm.  The pain was 
 
            much greater than before.  It originated from the same 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            place, but now extended into his arm.
 
            
 
                 Claimant sought medical attention for the pain in the 
 
            fall of 1987.  An EKG was performed on November 23, 1987, 
 
            and a treadmill test was conducted on December 2, 1987.  The 
 
            tests revealed an atherosclerotic vascular disease.  
 
            Claimant stated that on December 16, 1987, Jon A. Robken, 
 
            M.D., told him he had a serious heart disease.  Claimant 
 
            testified that this was the first date that he knew he had a 
 
            serious heart problem related to the June 19, 1986, blow to 
 
            the chest.
 
            
 
                 Claimant underwent an angioplasty and shortly 
 
            thereafter returned to work for employer.  Dr. Robken 
 
            informed claimant that he should avoid stress, strenuous 
 
            exercise and watch his diet. 
 
            
 
                 Employer discharged claimant from employment on May 1, 
 
            1989, allegedly due to poor work performance.  Claimant 
 
            attributed his termination to his prospective workers' 
 
            compensation claim and due to his inability to work long 
 
            hours as a result of the heart injury.  However, claimant 
 
            was counseled for poor performance several times and he 
 
            never raised his heart condition as an excuse.
 
            
 
                 On cross-examination claimant stated that he had spoke 
 
            to John Lodge early on about making a workers' compensation 
 
            claim for the June 19, 1986 injury.  Lodge was the 
 
            employers' manager of personnel in 1986.  Lodge told 
 
            claimant that it was not workers' compensation as his 
 
            situation was more similar to a company ballgame.  
 
            Claimant's medical expenses were submitted for payment under 
 
            employer's nonoccupational group health plan.
 
            
 
                 In May 1988, claimant received advice from Attorney 
 
            John Carlin.  Letters were solicited from Dr. Robken 
 
            concerning the causal connection of the heart condition to 
 
            the chest injury of June 19, 1986 (exhibit 1 and ex. 3).
 
            
 
                 Claimant met with John Lodge in June of 1988 concerning 
 
            his potential workers' compensation claim.  Claimant was 
 
            informed by employer's representatives that the statute of 
 
            limitations was close to being exhausted.  Employer took the 
 
            position at the meeting that the injury did not occur in the 
 
            course of employment, but that claimant should hire an 
 
            attorney or file a claim if he disagreed.  Claimant 
 
            testified that he did not file a claim because he valued his 
 
            career at Bandag.
 
            
 
                 Gregory Stark testified on behalf of employer.  Stark 
 
            was a personnel manager for employer at the time of the 
 
            injury.  Stark testified that attendance by employees at the 
 
            buffet on June 19, 1986, was not expected or required of any 
 
            Bandag employees.  He stated that the buffet was a purely 
 
            social event.
 
            
 
                 John Lodge testified that he was manger of personnel 
 
            for employer in 1986.  Lodge confirmed that claimant 
 
            approached him on June 6, 1988, concerning the heart 
 
            condition being a workers' compensation claim.  Lodge felt 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            that it was serious enough to involve legal counsel.  
 
            Claimant was informed during the June 1988 meeting that the 
 
            company was denying the claim for workers' compensation, but 
 
            that claimant should consult an attorney if he disagreed.
 
            
 
                 The first issue to be resolved concerns the affirmative 
 
            defense of statute of limitations under Iowa Code section 
 
            85.26.
 
            
 
                 Claimant filed his petition for benefits in this matter 
 
            on October 23, 1989, which is about three years and four 
 
            months after the date of the alleged occurrence.  Since no 
 
            weekly benefits were paid on this matter, claimant had two 
 
            years in which to file his claim.  Iowa Code section 
 
            85.26(1).
 
            
 
                 Claimant argues the time of discovery rule applies in 
 
            this matter as the probable compensable nature of his heart 
 
            condition was not apparent until December 1987 when the pain 
 
            started to radiate into his arm.
 
            
 
                 Before claimant can rely upon the date of discovery 
 
            rule he must establish that the chest pain which occurred in 
 
            November 1987 was causally connected to the injury of June 
 
            19, 1986.  It is found that claimant has failed to establish 
 
            the causal connection between the November 1987 chest pain 
 
            and the June 19, 1986, incident.  The reasoning follows:
 
            
 
                 Claimant testified that his chest pain had started on 
 
            the date of the accident and never completely resolved.  The 
 
            medical records reveal a history of having no chest pain 
 
            when playing racquet ball prior to January 1987 (ex. 11).  
 
            The medical history also indicates that the pain which 
 
            originated with the balloon injury had subsided (ex. 11).  
 
            Further medical history indicated that the December 1987 
 
            chest pain developed over the six months prior while being 
 
            active (ex. 16).  Where claimant's testimony is in conflict 
 
            with the medical history, it is found that the medical 
 
            history is correct.  Medical records are heavily relied upon 
 
            by this commission.  Medical histories are generally given 
 
            considerable weight as they are taken by unbiased third 
 
            parties who use the information to provide treatment.
 
            
 
                 Hyman S. Lans, M.D., is a general surgeon retained by 
 
            claimant to perform an independent examination on September 
 
            21, 1989.  Dr. Lans opined that claimant's coronary artery 
 
            blockage was caused by the June 19, 1986 injury (ex. 2).  
 
            Dr. Lans' report is not persuasive as he does not address 
 
            the reason for claimant's condition having been asymptomatic 
 
            for such a long period of time.  Nor did Dr. Lans indicate 
 
            that he was aware of the medical history taken by the 
 
            treating doctors which is in conflict with claimant's 
 
            testimony.  It appears that Dr. Lans may have relied upon an 
 
            inaccurate medical history.
 
            
 
                 The opinions of the treating doctor cast significant 
 
            doubt with respect to the June 19, 1986, injury being the 
 
            cause of the heart disease (ex. 1, ex. 3).  The treating 
 
            doctor was not willing to state that the balloon injury was 
 
            the cause of claimant's November 1987 angina pain.  Other 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            credible medical evidence which supported the injury as the 
 
            cause of the heart disease was not offered.
 
            
 
                 It is found that claimant has failed to prove by a 
 
            preponderance of the evidence that the November 1987 heart 
 
            problem was related to the June 19, 1986 injury.  Claimant 
 
            failed to bring forth sufficient credible medical evidence 
 
            to prove causation.
 
            
 
                 Claimant may no loner claim that the discovery rule 
 
            applies to November 1987 in that the symptoms of November 
 
            1987 are not causally connected to the June 19, 1986 injury.  
 
            
 
                 The remainder of the claim concerns the injury and 
 
            treatment which occurred in the first few months after the 
 
            June 19, 1986 incident.  Claimant incurred medical expenses 
 
            during that time for the chest cut and bruise.  Defendants 
 
            refused to pay for the medical expenses under workers' 
 
            compensation.  The nature, seriousness and probable 
 
            compensable nature of that injury were well know to claimant 
 
            at the time of the injury.  In May of 1988, claimant had 
 
            received legal advice from Attorney John Carlin concerning 
 
            the possible compensable nature of the June 19, 1986 
 
            incident (ex. 1).  Claimant also discussed the possible 
 
            compensability of the case with employer's representatives 
 
            in June 1988 just before the statute of limitations was to 
 
            expire.  Claimant testified at hearing that he did not file 
 
            his petition in June 1988 because he valued his career at 
 
            Bandag.
 
            
 
                 It is found that claimant failed to file his petition 
 
            prior to the expiration of the two year statute of 
 
            limitations.  Claimant's claim for benefits is, therefore, 
 
            barred by the statute of limitations
 
            
 
                 This issue is dispositive of the case and further 
 
            findings of fact are unnecessary.
 
            
 
                                conclusions of law
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury of June 19, 
 
            1986, is causally related to the disability on which he now 
 
            bases his claim.  Bodish v. Fischer, Inc., 257 Iowa 516, 133 
 
            N.W.2d 867 (1965).  Lindahl v. L. O. Boggs, 236 Iowa 296, 18 
 
            N.W.2d 607 (1945).  A possibility is insufficient; a 
 
            probability is necessary.  Burt v. John Deere Waterloo 
 
            Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955).  The 
 
            question of causal connection is essentially within the 
 
            domain of expert testimony.  Bradshaw v. Iowa Methodist 
 
            Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). 
 
            
 
                 However, expert medical evidence must be considered 
 
            with all other evidence introduced bearing on the causal 
 
            connection.  Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion 
 
            of experts need not be couched in definite, positive or 
 
            unequivocal language.  Sondag v. Ferris Hardware, 220 N.W.2d 
 
            903 (Iowa 1974).  However, the expert opinion may be 
 
            accepted or rejected, in whole or in part, by the trier of 
 
            fact.  Id., at 907.  Further, the weight to be given to such 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            an opinion is for the finder of fact, and that may be 
 
            affected by the completeness of the premise given the expert 
 
            and other surrounding circumstances.  Bodish, 257 Iowa 516, 
 
            133 N.W.2d 867.  See also Musselman v. Central Telephone 
 
            Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
            
 
                 Claimant failed to bring forth sufficient credible 
 
            medical evidence which proves that his heart problem of 
 
            November 1987 was caused by the June 19, 1986 injury.
 
            
 
                    An original proceeding for benefits under this 
 
                 chapter or chapter 85A, 85B, or 86, shall not be 
 
                 maintained in any contested case unless the 
 
                 proceeding is commenced within two years from the 
 
                 date of the occurrence of the injury for which 
 
                 benefits are claimed or, if weekly compensation 
 
                 benefits are paid under section 86.13, within 
 
                 three years from the date of the last payment of 
 
                 weekly compensation benefits.
 
            
 
            (Iowa Code section 85.26(1)
 
            
 
                 Claimant's claim for benefits resulting from the June 
 
            19, 1986, injury is barred by the two year statute of 
 
            limitations.
 
            
 
                                      order
 
            
 
                 IT IS THEREFORE, ORDERED:
 
            
 
                 That claimant take nothing from this proceeding.
 
            
 
                 That claimant's petition is dismissed.
 
            
 
                 It is further ordered that the costs of this action are 
 
            assessed against claimant pursuant to rule 343 IAC 4.33.
 
            
 
                 Signed and filed this ____ day of April, 1991.
 
            
 
            
 
            
 
                                          ______________________________
 
                                          MARLON D. MORMANN
 
                                          DEPUTY INDUSTRIAL COMMISSIONER    
 
            
 
            Copies to:
 
            
 
            Mr. Peter Soble 
 
            Attorney at Law
 
            505 Plaza Office Bldg.
 
            Rock Island, Illinois  61201
 
            
 
            Ms. Vicki L. Seeck
 
            Attorney at Law
 
            600 Union Arcade Bldg.
 
            111 E. 3rd St.
 
            Davenport, Iowa  52801
 
            
 
            
 
                 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
                      52402 51108
 
                      Filed April 1, 1991
 
                      Marlon D. Mormann
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            THOMAS PETERSEN,              :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No.  923650
 
            BANDAG, INC.,                 :
 
                                          :  A R B I T R A T I O N
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            TRAVELERS INSURANCE COMPANY,  :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            52402
 
            Claimant failed to file within two years of the accident and 
 
            his claim was barred by the statute of limitations.
 
            
 
            51108
 
            Claimant alleged time of discovery rule with respect to 
 
            statute of limitations.  However, the symptoms that 
 
            developed within the last two years prior to filing the 
 
            petition were not causally connected to the work injury.  
 
            Therefore, discovery rule did not apply to the late 
 
            developing symptoms.