Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            DEBRA BELL,                   :
 
                                          :
 
                 Claimant,                :      File No.  930694
 
                                          :
 
            vs.                           :
 
                                          :  A R B I T R A T I O N
 
            ARATEX SERVICES,              :
 
                                          :      D E C I S I O N
 
                 Employer,                :    
 
                 Self-Insured,            :      
 
                 Defendant.               :
 
            ___________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding in arbitration brought by Debra 
 
            Bell as a result of an alleged occupational disease or 
 
            injury to the lungs which occurred on August 9, 1989.  
 
            Defendant denied compensability for the injury and or 
 
            disease and paid no weekly or medical benefits.
 
            
 
                 The case was heard and fully submitted at Sioux City, 
 
            Iowa, on April 24, 1991.  The record in the proceeding 
 
            consists of joint exhibits 1 through 8, claimant's exhibit 1 
 
            and testimony of claimant and Dave Dersheimer.
 
            
 
                                      issues
 
            
 
                 The issues presented for determination are as follows:
 
            
 
                 1.  Whether claimant sustained an injury or 
 
            occupational disease on August 9, 1989, arising out of and 
 
            in the course of employment;
 
            
 
                 2.  Causal connection to temporary total disability or 
 
            healing period and the extent of entitlement;
 
            
 
                 3.  Causal connection to permanent disability and the 
 
            extent of industrial disability;
 
            
 
                 4.  Commencement date of payment of permanent 
 
            disability;
 
            
 
                 5.  Claimant's entitlement to Iowa Code section 85.27 
 
            medical benefits; and
 
            
 
                 6.  Claimant's entitlement to Iowa Code section 86.13 
 
            penalty benefits.
 
            
 
                                        
 
            
 
                                 findings of fact
 
            
 
                 Having considered all the evidence received the 
 
            following findings of fact are made:
 
            
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
                 Defendant-employer Aratex Services, Inc., operates a 
 
            commercial laundry business that cleans cloth items used by 
 
            other industries.  The product to be cleaned is often 
 
            contaminated with various chemicals and organic agents.  The 
 
            cleaning process itself uses detergent and also creates a 
 
            significant amount of dust and lint within the work 
 
            environment that is not prevalent in everyday life or in 
 
            other occupations.
 
            
 
                 Claimant began work for employer on August 29, 1988, as 
 
            a general laborer.  Her duties changed each day depending on 
 
            the employer's immediate need.  The work performed for 
 
            employer exposed claimant to various chemical, dust, lint 
 
            and other contaminants found throughout the plant.  Claimant 
 
            was exposed to such contaminants during the majority of her 
 
            workday.
 
            
 
                 Claimant worked for employer for about four to five 
 
            months before experiencing a layoff.  During the first 
 
            months of work claimant experienced coughing and respiratory 
 
            symptoms.
 
            
 
                 During the layoff claimant worked in the bakery at 
 
            Econofoods.  During that period claimant's respiratory 
 
            symptoms resolved without the need for medical treatment.
 
            
 
                 On May 15, 1989, claimant returned to work for 
 
            employer.  She continued to perform duties similar to what 
 
            she had performed prior to the layoff.  Upon her return she 
 
            started to experience respiratory symptoms greater in 
 
            intensity than during the prior period of employment with 
 
            employer.  She continued on with such employment until 
 
            August 9, 1989, when she sought medical treatment for her 
 
            continuing respiratory problems.
 
            
 
                 Claimant was off work and under treatment for her 
 
            respiratory ailment starting August 9, 1989 through 
 
            September 10, 1989.
 
            
 
                 She returned to work on September 11, 1989, and 
 
            immediately began experiencing respiratory symptoms.  During 
 
            the following six days of work the symptoms continued to 
 
            worsen.  Claimant worked two and one-half hours on September 
 
            19, 1989, and again went off work so as to seek treatment 
 
            for her worsening respiratory symptoms.
 
            
 
                 Claimant was again off work for medical treatment of 
 
            her respiratory symptoms beginning September 19, 1989 
 
            through October 1, 1989.  She returned to work on October 2, 
 
            1989, in an attempt to perform her prior duties, 
 
            notwithstanding, her doctor's recommendation that she seek 
 
            other employment.
 
            
 
                 Within a couple of days after October 2, 1989, claimant 
 
            experienced the same respiratory symptoms as she had 
 
            experienced before.  October 6, 1989, was claimant's last 
 
            day of work for employer.  On October 7, 1989, she was 
 
            hospitalized for the continued respiratory symptoms.
 
            
 
                 Claimant applied for and received about six weeks of 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            unemployment benefits in December of 1989, but has been 
 
            unable to locate other employment subsequent to leaving 
 
            Aratex.
 
            
 
                 Claimant has been assigned permanent work restrictions 
 
            that prohibit her from working in smoke, fumes or other 
 
            airborne contaminants.  Claimant is limited to work in a 
 
            clean air and controlled temperature work environment (joint 
 
            exhibit 1, pages 1 and 17).
 
            
 
                 David Dersheimer testified that he started work for 
 
            employer in July 1989 as a production manager.  He stated 
 
            that no other incidents of respiratory illnesses have been 
 
            experienced by coemployees at Aratex.  He testified that 
 
            subsequent to claimant's illness an environmental study was 
 
            performed at Aratex which resulted in no recommendations.  
 
            He also stated that claimant's absentee calendar (jt. ex. 7, 
 
            p. 28) was prepared by a clerk who had no authority to 
 
            decide if the respiratory problem was work related.
 
            
 
                 The first issue to be decided in whether claimant 
 
            sustained an injury or occupational disease arising out of 
 
            and in the course of employment with Aratex.
 
            
 
                 Since this matter involves an allegation of 
 
            occupational asthma caused by airborne contaminants, the 
 
            first analysis will involve occupational disease.
 
            
 
                 Claimant has established that employer's work place 
 
            exposes workers to a hazard of airborne contaminants such as 
 
            dust, lint, detergent and various chemicals.  Such 
 
            contaminants are characteristic to the trade and are more 
 
            prevalent to such employment than to everyday life.  While 
 
            in the environment, claimant was continuously exposed to the 
 
            airborne contaminants.  Thus, the hazard of exposure to the 
 
            contaminants has been proven.
 
            
 
                 Claimant must also establish that the disease is 
 
            causally related to the exposure of the harmful conditions 
 
            of the field of employment.  In that regard, claimant 
 
            testified that prior to her employment with Aratex she had 
 
            never experienced similar respiratory problems.  She also 
 
            set forth a convincing scenario of continuing and immediate 
 
            reoccurrence of symptoms each time she went back to work for 
 
            employer.  The medical records also indicate an 
 
            occupationally induced asthmatic condition (jt. ex. 1, pp. 
 
            15-17; jt. ex. 2, p. 11 and jt. ex. 3, p. 4).
 
            
 
                 Robert Stewart, M.D., a pulmonary disease specialist, 
 
            opined that claimant's asthmatic condition was caused by her 
 
            work for Aratex (jt. ex. 5, pp. 16 & 17).  He noted the 
 
            temporal relationship of the onset of symptoms to the work 
 
            for employer in support of his opinion (jt. ex. 5, p. 16).  
 
            Dr. Stewart's opinion on causation is found to be correct as 
 
            he was a treating specialist who examined and treated 
 
            claimant during the time period close to her actual 
 
            employment with Aratex.
 
            
 
                 Gregory A. Hicklin, M.D., is a doctor retained by 
 
            employer to examine claimant for the benefit of litigation.  
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            He stated that no causal connection exited between the work 
 
            and the alleged asthma.  Dr. Hicklin also opined that 
 
            claimant had pneumonia as opposed to asthma.  His opinions 
 
            are rejected in that they are less credible than the 
 
            testimony offered by Dr. Stewart.  First, Hicklin only saw 
 
            claimant on one occasion which was several months after she 
 
            had last worked for employer.  Also, he saw claimant when 
 
            her symptoms had substantially abated.  Finally, he was not 
 
            retained to offer treatment, but instead he was hired 
 
            specifically for the purpose of rendering an opinion on the 
 
            work-related nature of the asthmatic condition.  For the 
 
            above stated reasons, Dr. Hicklin's opinions on causation 
 
            are rejected.
 
            
 
                 It is found that claimant sustained an occupational 
 
            disease of her respiratory system arising out of and in the 
 
            course of employment on August 9, 1989.  It is noted that 
 
            some tests do not prove that claimant's condition is, in 
 
            fact, occupational asthma.  This fact does not cause 
 
            claimant's case to fail in that it is well established that 
 
            she experienced asthma-like attacks each time she entered 
 
            employer's work environment.  It has also been proven that 
 
            as a result of the condition, claimant continued to have 
 
            persistent chronic asthma-like attacks after leaving work 
 
            for employer.  A specific diagnosis is unnecessary when it 
 
            is obvious that a disabling condition resulted due to the 
 
            occupational exposure.
 
            
 
                 The next issue is whether the August 9, 1989, 
 
            occupational disease is a cause of permanent disability.  It 
 
            is found that claimant has sustained her burden in proving 
 
            permanent disability.  The reasoning follows:
 
            
 
                 It is true that Dr. Stewart was unwilling to assign an 
 
            impairment rating to claimant's occupational respiratory 
 
            condition due to the possibility of the condition resolving 
 
            itself (jt. ex. 5, p. 35).  However, the possibility of a 
 
            future change in condition is far too speculative to accept 
 
            as credible evidence.  The permanent nature of claimant's 
 
            condition is to be evaluated as it exists on the date of 
 
            hearing.  In this case, the evidence is clear that claimant 
 
            continues to suffer from respiratory problems and continues 
 
            under permanent work restrictions all as a result of the 
 
            occupational disease (jt. ex. 5, p. 34 and jt. ex. 3, p. 
 
            11).  The only logical conclusion is that claimant's 
 
            condition resulted in permanent disability.
 
            
 
                 Factors to be considered when assessing industrial 
 
            disability include claimant's age, education, experience, 
 
            work restrictions and motivation.
 
            
 
                 In this case, claimant was age 29 on August 9, 1989, 
 
            with a GED and experience consisting primarily of manual 
 
            labor.  Her work restrictions require her to work in a 
 
            controlled temperature and clean air environment (jt. ex. 1, 
 
            p. 11).  
 
            
 
                 Claimant did not demonstrate a high motivation to 
 
            return to work as evidenced by her limited search for 
 
            employment.  However, as a result of the work restrictions 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            claimant is prohibited from performing most of the factory 
 
            work for which she has previous training and experience.  
 
            When competing against healthier and better educated 
 
            workers, claimant is at a distinct disadvantage.
 
            
 
                 Having considered all the evidence, it is found that 
 
            claimant is 30 percent industrially disabled as a result of 
 
            the August 9, 1989, industrial injury.
 
            
 
                 The next issue concerns claimant's entitlement to 
 
            healing period benefits.  Claimant first went off work on 
 
            August 9, 1989, and continued off through September 10, 
 
            1989.  During this period claimant was clearly under the 
 
            care of medical professionals for the treatment of her 
 
            occupational disease.  Claimant was again off work starting 
 
            September 19, 1989 through October 1, 1989, for similar 
 
            treatment.  
 
            
 
                 It is found that claimant has proven entitlement to 
 
            healing period benefits during these periods as she was 
 
            unable to work and under active medical treatment for her 
 
            occupational disease.
 
            
 
                 The final healing period started on October 7, 1989, 
 
            when claimant was hospitalized for the respiratory 
 
            condition.  Claimant contends that the healing period 
 
            continues on to the date of hearing.  Claimant's argument is 
 
            rejected as she applied for unemployment and sought work in 
 
            December of 1989.  It is noted that on November 17, 1989, 
 
            claimant's breathing tests revealed considerable improvement 
 
            (jt. ex. 1, p. 18).  Subsequent to that examination, 
 
            claimant did, in fact, apply for unemployment and conducted 
 
            a search for new employment.
 
            
 
                 It is found that on November 17, 1989, claimant's 
 
            respiratory condition was at the point where significant 
 
            improvement was no longer expected.  Claimant has failed to 
 
            prove entitlement to healing period beyond November 17, 
 
            1989.  The final healing period begins October 7, 1989 and 
 
            continues through November 17, 1989.
 
            
 
                 It also follows that September 11, 1989, is the 
 
            commencement date for payment of permanent partial 
 
            disability as that date coincides with the termination of 
 
            the first healing period.  Permanent partial disability 
 
            benefits are to be paid intermittently before and after the 
 
            remaining healing periods.
 
            
 
                 Having proven liability, it follows that claimant is 
 
            entitled to Iowa Code section 85.27 medical benefits.  
 
            Claimant has sustained her burden in proving the causal 
 
            connection of the asthma treatment to the August 9, 1989, 
 
            occupational disease.  However, the asthma treatment 
 
            surrounding the July 20, 1990, assault, is not causally 
 
            connected to the August 9, 1989, occupational disease and 
 
            employer is not responsible for those expenses.  It is also 
 
            obvious that employer is not responsible for medical care 
 
            associated with claimant's recent pregnancy.
 
            
 
                 Employer also alleged that the medical expenses were 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            not authorized.  The authorization defense fails in that 
 
            employer denied liability and, thereby, lost the right to 
 
            guide the medical care.
 
            
 
                 The final issue concerns claimant's alleged entitlement 
 
            to Iowa Code section 86.13 penalty benefits.  It is found 
 
            that claimant has failed to prove entitlement to penalty 
 
            benefits.  Defendant's denial of compensability was made in 
 
            good faith as demonstrated by Dr. HIcklin's testimony which 
 
            refuted the causal connection (jt. ex. 4, p. 3 and jt. ex. 
 
            6).
 
            
 
                 The respective attorneys are complimented for their 
 
            very organized presentation of the evidence both live and by 
 
            exhibit.
 
            
 
                                conclusions of law
 
            
 
                 Occupational diseases shall be only those diseases 
 
                 which arise out of and in the course of the 
 
                 employee's employment.  Such diseases shall have a 
 
                 direct causal connection with the employment and 
 
                 must have followed as a natural incident thereto 
 
                 from injurious exposure occasioned by the nature 
 
                 of the employment.  Such disease must be 
 
                 incidental to the character of the business, 
 
                 occupation or process in which the employee was 
 
                 employed and not independent of the employment.  
 
                 Such disease need not have been foreseen or 
 
                 expected but after its contraction it must appear 
 
                 to have had its origin in a risk connected with 
 
                 the employment and to have resulted from that 
 
                 source as an incident and rational consequence.  A 
 
                 disease which follows from a hazard to which an 
 
                 employee has or would have been equally exposed 
 
                 outside of said occupation is not compensable as 
 
                 an occupational disease.  McSpadden v. Big Ben 
 
                 Coal Co., 288 N.W.2d 181 (Iowa 1980); Frit 
 
                 Industries v. Langenwalter, 443 N.W.2d 88 (Iowa 
 
                 App. 1989).
 
            
 
            (Iowa Code section 85A.8)
 
            
 
                 Claimant has the burden of proving by a preponderance 
 
            of the evidence that she received an injury on August 9, 
 
            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). 
 
            
 
                 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 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            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 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 Graphics Systems, Inc. v. Prince, 366 N.W.2d 
 
            187, 192 (Iowa 1985).
 
            
 
                 Claimant has proven by a preponderance of the evidence 
 
            that on August 9, 1989, she sustained an occupational 
 
            disease of her respiratory system arising out of and in the 
 
            course of employment.
 
            
 
                 Functional impairment is an element to be considered in 
 
            determining industrial disability which is the reduction of 
 
            earning capacity, but consideration must also be given to 
 
            the injured employee's age, education, qualifications, expe
 
            rience and inability to engage in employment for which he is 
 
            fitted.  Olson v. Goodyear Service Stores, 255 Iowa 1112, 
 
            125 N.W.2d 251 (1963).  Barton v. Nevada Poultry, 253 Iowa 
 
            285, 110 N.W.2d 660 (1961).
 
            
 
                 A finding of impairment to the body as a whole found by 
 
            a medical evaluator does not equate to industrial disabil
 
            ity.  This is so as impairment and disability are not syn
 
            onymous.  Degree of industrial disability can in fact be 
 
            much different than the degree of impairment because in the 
 
            first instance reference is to loss of earning capacity and 
 
            in the latter to anatomical or functional abnormality or 
 
            loss.  Although loss of function is to be considered and 
 
            disability can rarely be found without it, it is not so that 
 
            a degree of industrial disability is proportionally related 
 
            to a degree of impairment of bodily function.
 
            
 
                 Factors to be considered in determining industrial dis
 
            ability include the employee's medical condition prior to 
 
            the injury, immediately after the injury, and presently; the 
 
            situs of the injury, its severity and the length of healing 
 
            period; the work experience of the employee prior to the 
 
            injury, after the injury and potential for rehabilitation; 
 
            the employee's qualifications intellectually, emotionally 
 
            and physically; earnings prior and subsequent to the injury; 
 
            age; education; motivation; functional impairment as a 
 
            result of the injury; and inability because of the injury to 
 
            engage in employment for which the employee is fitted.  Loss 
 
            of earnings caused by a job transfer for reasons related to 
 
            the injury is also relevant.  These are matters which the 
 
            finder of fact considers collectively in arriving at the 
 
            determination of the degree of industrial disability.
 
            
 
                 There are no weighting guidelines that indicate how 
 
            each of the factors are to be considered.  There are no 
 
            guidelines which give, for example, age a weighted value of 
 
            ten percent of the total value, education a value of fifteen 
 
            percent of total, motivation - five percent; work experience 
 
            - thirty percent, etc.  Neither does a rating of functional 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            impairment directly correlate to a degree of industrial 
 
            disability to the body as a whole.  In other words, there 
 
            are no formulae which can be applied and then added up to 
 
            determine the degree of industrial disability.  It therefore 
 
            becomes necessary for the deputy or commissioner to draw 
 
            upon prior experience, general and specialized knowledge to 
 
            make the finding with regard to degree of industrial dis
 
            ability.   See Peterson v. Truck Haven Cafe, Inc., (Appeal 
 
            Decision, February 28, 1985); Christensen v. Hagen, Inc., 
 
            (Appeal Decision, March 26, l985).
 
            
 
                 Iowa Code section 85.34(2) provides that compensation 
 
            for permanent partial disability shall begin at the 
 
            termination of the healing period.  Iowa Code section 
 
            85.34(2)(u) provides that compensation for a nonscheduled or 
 
            body as a whole injury shall be paid in relation to 500 
 
            weeks and the disability bears to the body as a whole.
 
            
 
                 Upon considering all the material factors it is found 
 
            that the evidence in this case supports an award of 30 
 
            percent permanent partial disability which entitles the 
 
            claimant to recover 150 weeks of benefits under Iowa Code 
 
            section 85.34(2)(u), commencing September 11, 1989, and to 
 
            be paid intermittently before and after the healing periods.
 
            
 
                 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).
 
            
 
                 Claimant has established the causal connection and 
 
            entitlement of the August 9, 1989, injury to intermittent 
 
            healing periods beginning August 9, 1989 through September 
 
            10, 1989; September 19, 1989 through October 1, 1989; and 
 
            October 7, 1989 through November 17, 1989.
 
            
 
                 The employer, for all injuries compensable under 
 
            chapter 85 or chapter 85A, shall furnish reasonable 
 
            surgical, medical, dental, osteopathic, chiropractic, 
 
            podiatric, physical rehabilitation, nursing, ambulance and 
 
            hospital services and supplies; therefore, and shall allow 
 
            reasonable necessary transportation expenses incurred for 
 
            such services.  The employer has the right to choose the 
 
            provider of care.  Iowa Code section 85.27.
 
            
 
                  "Claimant is not entitled to reimbursement for medical 
 
            bills unless he shows that he paid them from his own funds."  
 
            See Caylor v. Employers Mut. Cas. Co., 337 N.W.2d 890 
 
            (Iowa App. 1983).
 
            
 
                 Claimant has proven entitlement to Iowa code section 
 
            85.27 benefits as outlined in the decision.  Claimant is 
 
            entitled to direct reimbursement only if she has paid the 
 
            bills from her own funds.
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            
 
                 If a delay in commencement or termination of benefits 
 
            occurs without reasonable or probable cause or excuse, the 
 
            industrial commissioner shall award benefits in addition to 
 
            those benefits payable under this chapter, or chapters 85, 
 
            85A, or 85B, up to fifty percent of the amount of benefits 
 
            that were unreasonably delayed or denied.  Iowa Code section 
 
            86.13.
 
            
 
                 Claimant has filed to prove by a preponderance of the 
 
            evidence that employer's denial of liability was without 
 
            reasonable or probable cause or excuse.
 
            
 
                                      order
 
            
 
                 IT IS THEREFORE, ORDERED:
 
            
 
                 Defendant is to pay claimant one hundred fifty (150) 
 
            weeks of permanent partial disability at the rate of one 
 
            hundred eighty-one and 70/100 dollars ($181.70), commencing 
 
            September 11, 1989 and to be paid intermittently before and 
 
            after the remaining healing periods.  
 
            
 
                 Defendant is to pay claimant intermittent healing 
 
            period benefits at the rate of one hundred eighty-one and 
 
            70/100 dollars ($181.70), for the periods August 9, 1989 
 
            through September 10, 1989; September 19, 1989 through 
 
            October 1, 1989; and October 7, 1989 through November 17, 
 
            1989.
 
            
 
                 Defendant is to pay claimant's Iowa Code section 85.27 
 
            benefits as outlined in the opinion.
 
            
 
                 It is further ordered that defendants shall receive 
 
            credit for benefits previously paid.
 
            
 
                 It is further ordered that all accrued benefits are to 
 
            be paid in a lump sum.
 
            
 
                 It is further ordered that interest will accrue 
 
            pursuant to Iowa Code section 85.30. 
 
            
 
                 It is further ordered that the costs of this action are 
 
            assessed against defendants pursuant to rule 343 IAC 4.33.
 
            
 
                 It is further ordered that defendants file claim 
 
            activity reports as requested by this agency pursuant to 
 
            rule 343 IAC 3.1.
 
            
 
                 Signed and filed this ____ day of May, 1991.
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          MARLON D. MORMANN
 
                                          DEPUTY INDUSTRIAL COMMISSIONER    
 
            
 
            Copies to:
 
            
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
            Mr. Bryan J. Arneson
 
            Attorney at Law
 
            STE 340 Insurance Center
 
            507 7th St.
 
            Sioux City, Iowa  51101
 
            
 
            Mr. Stephen W. Spencer
 
            Attorney at Law
 
            218 6th Ave STE 300
 
            PO Box 9130
 
            Des Moines, Iowa  50306
 
            
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
                      51108.40 51802 51803
 
                      Filed May 8, 1991
 
                      Marlon D. Mormann
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            DEBRA BELL,                   :
 
                                          :
 
                 Claimant,                :      File No.  930694
 
                                          :
 
            vs.                           :
 
                                          :  A R B I T R A T I O N
 
            ARATEX SERVICES,              :
 
                                          :      D E C I S I O N
 
                 Employer,                :    
 
                 Self-Insured,            :      
 
                 Defendant.               :
 
            ___________________________________________________________
 
            
 
            51108.40
 
            Claimant established that her asthma-like condition was 
 
            caused by the work environment.
 
            
 
            51802
 
            Claimant's healing period ended when claimant's medical 
 
            condition had stabilized and she began her search for new 
 
            employment.
 
            
 
            51803
 
            Claimant was found to have permanent disability based upon 
 
            the permanent work restrictions of working in cold 
 
            temperature and clean air environment which restricted her 
 
            from most of her past jobs.  Claimant was a manual laborer, 
 
            age 29, with a GED.  Claimant awarded 30 percent industrial 
 
            disability.
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
            5-1806
 
            Filed January 29, 1993
 
            Byron K. Orton
 
            DRR
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
            _____
 
                        :
 
            LEILA BIX,       :
 
                        :
 
                 Claimant,   :
 
                        :
 
            vs.         :        File Nos. 981358
 
                        :                  930740
 
            EXCEL CORPORATION,    :
 
                        :          A P P E A L
 
                 Employer,   :
 
                        :        D E C I S I O N
 
            and         :
 
                        :
 
            CNA INSURANCE COMPANY,     :
 
                        :
 
                 Insurance Carrier,    :
 
                 Defendants.      :
 
            ____________________________________________________________
 
            _____
 
            
 
            5-1806
 
            No apportionment ordered where evidence showed claimant's 
 
            preexisting back condition was latent prior to her injury.
 
            
 
 
            
 
            
 
            
 
            
 
            
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ------------------------------------------------------------
 
            SYLVIA DIANE CAMPBELL,        :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 930796
 
            WESTVIEW CARE CENTER, INC.,   :
 
                                          :     A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            ALLIED MUTUAL INSURANCE CO.,  :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ------------------------------------------------------------
 
                           STATEMENT OF THE CASE
 
            
 
                 This is a contested case proceeding under Iowa Code 
 
            chapter 17A.  Claimant, Sylvia Diane Campbell, filed a 
 
            petition in arbitration against her employer, Westview Care 
 
            Center, Inc., and insurance carrier, Allied Mutual Insurance 
 
            Co., on account of a stipulated work injury sustained 
 
            September 28, 1989.  Ms. Campbell now seeks further benefits 
 
            under the Iowa Workers' Compensation Act.
 
            
 
                 This case was heard and fully submitted in Des Moines, 
 
            Iowa, on July 6, 1994.  The record consists of claimant's 
 
            exhibits 1 through 6, defendants' exhibits A through E, and 
 
            claimant's testimony.
 
            
 
                                      ISSUES
 
            
 
                 The parties have stipulated to the following:
 
            
 
                 1.  Claimant sustained an injury arising out of and in 
 
            the course of employment on September 28, 1989;
 
            
 
                 2.  The injury caused temporary disability, the extent 
 
            of which is no longer in dispute;
 
            
 
                 3.  The commencement date for permanent disability 
 
            benefits, if any, is October 15, 1989;
 
            
 
                 4.  The correct rate of weekly compensation is $151.17;
 
            
 
                 5.  The providers of disputed medical expenses would 
 
            testify to the reasonableness of fees and treatment, and 
 
            defendants offer no contrary evidence;
 
            
 
                 6.  Disputed medical expenses are causally connected to 
 
            the medical condition upon which this claim is based, 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            although causal connection to the work injury itself remains 
 
            disputed; and,
 
            
 
                 7.  Defendants voluntarily paid five days of 
 
            compensation at the stipulated rate prior to hearing.
 
            
 
                 Issues presented for resolution include:
 
            
 
                 1.  Whether the injury caused permanent disability;
 
            
 
                 2.  The nature and extent of permanent disability, if 
 
            any; and,
 
            
 
                 3.  Entitlement to medical benefits, including whether 
 
            disputed expenses are causally connected to the work injury 
 
            and whether the same were authorized by defendants.
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 The undersigned deputy industrial commissioner finds:
 
            
 
                 Sylvia Campbell, 56 years of age at hearing, was 
 
            employed as a certified nurse's aid at Westview Care Center, 
 
            Inc., on September 28, 1989.  On that date, she attempted to 
 
            lift a heavy resident from a stool to a wheelchair, but 
 
            while doing so, experienced a "pop" in the right shoulder, 
 
            followed by immediate numbness in the right arm.  Pain 
 
            developed later.
 
            
 
                 Claimant visited her regular family medical group 
 
            (Family Practice of Indianola) on the same day.  She 
 
            complained of neck discomfort and tingling, numbness and 
 
            pain in the right arm.  Chart notes reflect that Ms. 
 
            Campbell reported a pulling sensation in her neck while 
 
            attempting to lift the patient.
 
            
 
                 Claimant was taken off work and underwent EMG testing.  
 
            This proved normal.
 
            
 
                 On October 14, 1989, chart notes reflect that claimant 
 
            was asymptomatic and desired to return to work.  She was 
 
            released to do so.
 
            
 
                 Chart notes reflect that claimant visited Family 
 
            Practice Associates on October 25, November 6, November 10, 
 
            November 28, December 5, December 16, 1989, January 11, 
 
            January 27, February 5, and on two additional occasions 
 
            (illegible dates) prior to April 16, 1990.  These visits 
 
            related to various unrelated problems, and it must be 
 
            specifically noted that chart notes do not reflect continued 
 
            complaints of right arm, right shoulder or neck symptoms.
 
            
 
                 On April 16, 1990, claimant experienced an exacerbation 
 
            of symptoms when she "pulled neck out at work -- uncertain 
 
            exactly what position neck in when injured."  Possible 
 
            disability resulting from this separate traumatic incident 
 
            is not presented as an issue in this litigation.
 
            
 
                 Claimant began seeing a doctor of osteopathy, D.E. 
 
            Crane, D.O., in 1987.  Apparently, from his chart notes, she 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            did not see Dr. Crane following the 1989 stipulated work 
 
            injury.  However, commencing April 17, 1990, she saw Dr. 
 
            Crane on some 21 occasions in the next four months.  This 
 
            clearly indicates that upon symptoms (claimant, it will be 
 
            recalled, was "asymptomatic" as of October 14, 1989) were 
 
            substantially more bothersome following the April 1990 
 
            incident.  On cross-examination, claimant described the 1990 
 
            incident as having happened recently while lifting another 
 
            patient; she states the second incident "set it off again."
 
            
 
                 None of claimant's treating physicians have expressed a 
 
            view as to the existence or absence of causal nexus between 
 
            the stipulated work injury and claimant's present condition; 
 
            or to the nature of that condition, for that matter.  Two 
 
            evaluating physicians have: Keith W. Riggins, M.D., and Kyle 
 
            S. Galles, M.D.
 
            
 
                 Dr. Riggins, board certified in orthopedic and 
 
            arthroscopic surgery, evaluated claimant on April 28, 1994.  
 
            Noting that magnetic resonance imaging and x-rays had not 
 
            been performed on the right shoulder, Dr. Riggins diagnosed 
 
            rotator cuff tear/impingement syndrome, suspected but not 
 
            proven.  Studies were thereupon undertaken at the Mercy 
 
            Hospital Department of Radiology.  The radiologist, Vera 
 
            Stewart, M.D., found mild degenerative changes in the 
 
            acromioclavicular joint, small broad based osteophytes on 
 
            the undersurface of the acromion, and incresed signal within 
 
            the rotator cuff tendon without a frank tear, and some 
 
            impingement of the musculotendinous junction of the AC 
 
            joint.  Dr. Stewart noted mild degenerative changes in the 
 
            tendon, but that no complete rotator cuff tear was seen.
 
            
 
                 Dr. Riggins subsequently expressed his opinions in a 
 
            series of letters to claimant's counsel.  On May 9, 1994, he 
 
            opined that the 1989 work injury represented a significant 
 
            aggravation of the preexisting condition in claimant's 
 
            shoulder, and more than likely produced a rotator cuff tear.  
 
            He felt claimant compromised in the ability to perform 
 
            activiites that require extending the right upper extremity 
 
            forward or overhead with even minor amounts of weight, and 
 
            expressed the view that symptoms appearing subsequent to the 
 
            September 28, 1989 episode "resulted in exacerbation of 
 
            symptoms due to the presence of rotator cuff tear rather 
 
            than any episodes of new injury."  However, Dr. Riggins went 
 
            on to state:  "Please be aware that the opinions expressed 
 
            above are contingent upon confirmation of the presence of 
 
            diagnosis of rotator cuff tear of the right shoulder."
 
            
 
                 As we have seen, Dr. Stewart found no tear in the 
 
            rotator cuff on MRI testing.  On June 8, 1994, Dr. Riggins 
 
            noted that the study was consistent with the diagnosis of 
 
            impingement syndrome, and stated further that the increased 
 
            signal within the rotator cuff tendon is an appearance 
 
            "frequently produced by partial rotator cuff tear, the 
 
            presence of which can be confirmed by diagnostic 
 
            arthroscopy."
 
            
 
                 On June 13, Dr. Riggins confirmed his diagnosis of 
 
            impingement syndrome, possible partial rotator cuff tear, 
 
            right shoulder.  Based on an asymetrical weakness of 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            elevation in the right upper extremity, Dr. Riggins rated 
 
            impairment at 10 percent of the upper extremity, which he 
 
            converted to 6 percent of the body as a whole.
 
            
 
                 Dr. Galles saw claimant on June 1, 1994.  Dr. Galles 
 
            reviewed the MRI ("I am in agreement with the radiologist's 
 
            interpretation that there is no apparent rotator cuff tear") 
 
            and, although electrodiagnostic studies were negative, felt 
 
            that clinically symptoms were most typical of an early mild 
 
            carpal tunnel syndrome.  He specified his belief that 
 
            symptoms were not directly related to any lifting episode in 
 
            September 1989.
 
            
 
                 Dr. Riggins is the only physician to find a causal 
 
            nexus between the 1989 work injury and claimant's current 
 
            condition.  He describes that condition as impingement 
 
            syndrome and possible partial rotator cuff tear.  In his May 
 
            9 letter, Dr. Riggins specified that his opinions on 
 
            causation were contingent upon confirmation of the presence 
 
            of rotator cuff tear in the right shoulder.  The 
 
            radiologist, Dr. Stewart, reported increased uptake but 
 
            found no tear.  Dr. Galles, who also read the study, also 
 
            concluded that no apparent tear existed.  Dr. Riggins 
 
            believes that a rotator cuff tear is "possible," but also 
 
            recommended diagnostic arthroscopy of the right shoulder to 
 
            confirm the condition.  The record does not show that this 
 
            procedure has been performed.
 
            
 
                 Given the contingent nature of Dr. Riggins' opinion 
 
            versus the specific opinion of no such relationship 
 
            expressed by Dr. Galles, and considering further that 
 
            claimant worked some six months following the work injury 
 
            before a separate traumatic incident exacerbated symptoms 
 
            greatly, she fails to pursuade that a causal nexus exists 
 
            between the September 1989 work injury and her current 
 
            impairment.
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                 The party who would suffer loss if an issue were not 
 
            established has the burden of proving that issue by a 
 
            preponderance of the evidence.  Iowa R. App. P. 14(f).
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury is a proximate 
 
            cause of the disability on which the claim is based.  A 
 
            cause is proximate if it is a substantial factor in bringing 
 
            about the result; it need not be the only cause.  A 
 
            preponderance of the evidence exists when the causal 
 
            connection is probable rather than merely possible.  
 
            Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa 
 
            1980); Holmes v. Bruce Motor Freight, Inc., 215 N.W.2d 296 
 
            (Iowa 1974).
 
            
 
                 The question of causal connection is essentially within 
 
            the domain of expert testimony.  The expert medical evidence 
 
            must be considered with all other evidence introduced 
 
            bearing on the causal connection between the injury and the 
 
            disability.  The weight to be given to any expert opinion is 
 
            determined by the finder of fact and may be affected by the 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            accuracy of the facts relied upon by the expert as well as 
 
            other surrounding circumstances.  The expert opinion may be 
 
            accepted or rejected, in whole or in part.  Sondag v. Ferris 
 
            Hardware, 220 N.W.2d 903 (Iowa 1974); Anderson v. Oscar 
 
            Mayer & Co., 217 N.W.2d 531 (Iowa 1974); Bodish v. Fischer, 
 
            Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).
 
            
 
                 Claimant failed to prove that a causal nexus exists 
 
            between her current condition and the stipulated work 
 
            injury.  Accordingly, defendants prevail as to the permanent 
 
            disability issue.  Similarly, although the disputed medical 
 
            expenses are causally connected to the medical condition 
 
            upon which the claim of injury is based, the record does not 
 
            establish by claimant's burden or proof that a causal nexus 
 
            exists between those expenses and the original injury.
 
            
 
                           
 
            
 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
                                     ORDER
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 Claimant takes nothing further.
 
            
 
                 Costs are assessed to defendants.
 
            
 
                 Signed and filed this ____ day of October, 1994.
 
            
 
            
 
            
 
                                          ______________________________
 
                                          DAVID R. RASEY
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies to:
 
            
 
            Mr Steven C Jayne
 
            Attorney at Law
 
            5835 Grand Ave  Ste 201
 
            Des Moines IA 50312
 
            
 
            Mr Cecil L Goettsch
 
            Attorney at Law
 
            801 Grand Ave  Ste 3700
 
            Des Moines IA 50309
 
            
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                        5-1402.40
 
                                        Filed October 17, 1994
 
                                        David R. Rasey
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ------------------------------------------------------------
 
            SYLVIA DIANE CAMPBELL,        :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :       File No. 930796
 
            WESTVIEW CARE CENTER, INC.,   :
 
                                          :     A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            ALLIED MUTUAL INSURANCE CO.,  :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ------------------------------------------------------------
 
            5-1402.40
 
            
 
            Claimant failed to prove causal nexus between a stipulated 
 
            work injury and her present condition.
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
            _____
 
                                          :
 
            MIKE TOMLINSON,               :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 930818
 
            MANAGEMENT SERVICES PERSONNEL,:
 
                                          :        A P P E A L
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            CITY INSURANCE COMPANY,       :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            _____
 
            The record, including the transcript of the hearing before 
 
            the deputy and all exhibits admitted into the record, has 
 
            been reviewed de novo on appeal.  The decision of the deputy 
 
            filed May 20, 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, 1992.
 
            
 
            
 
            
 
            
 
                      ________________________________
 
                               BYRON K. ORTON
 
                          INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Philip F. Miller
 
            Attorney at Law
 
            309 Court Ave., Ste 200
 
            Des Moines, Iowa 50309
 
            
 
            Mr. Timothy W. Wegman
 
            Attorney at Law
 
            P.O. Box 9130
 
            Des Moines, Iowa 50306-9130
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
            9998
 
            Filed March 30, 1992
 
            Byron K. Orton
 
            BJO
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
            _____
 
                                          :
 
            MIKE TOMLINSON,               :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 930818
 
            MANAGEMENT SERVICES PERSONNEL,:
 
                                          :        A P P E A L
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            CITY INSURANCE COMPANY,       :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            _____
 
            
 
            9998
 
            
 
                 Summary affirmance of deputy's decision filed May 20, 
 
            1991.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            MIKE TOMLINSON,               :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 930818
 
            MANAGEMENT SERVICES PERSONNEL,:
 
                                          :     A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            CITY INSURANCE COMPANY,       :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                              STATement of the case
 
            
 
                 This case came on for hearing on April 22, 1991, in Des 
 
            Moines, Iowa.
 
            
 
                 This is a proceeding in arbitration wherein claimant 
 
            seeks healing and permanent partial disability benefits as a 
 
            result of an alleged injury that occurred on or about August 
 
            15, August 22, 1989.  The record in the proceeding consists 
 
            of the testimony of claimant, David Warnell, Pamela Stevens, 
 
            Rick J. Wood, and Tony Harris; joint exhibits 1, pages 8 
 
            through 13, 2, 3, 4, 5, 6, 7, 8, 11, 12 and 13; claimant's 
 
            exhibits A, B, C and D; and defendants' exhibits 10 (pages 1 
 
            through 9), and 14, pages 106 through 112.
 
            
 
                                      issues
 
            
 
                 The issues for resolution are:
 
            
 
                 1.  Whether claimant's injury arose out of and in the 
 
            course of his employment;
 
            
 
                 2.  Whether claimant's alleged injury is causally 
 
            connected to any permanent disability alleged by the 
 
            claimant;
 
            
 
                 3.  Whether claimant is entitled to 85.27 medical 
 
            benefits.  At issue is the $130 paramedic bill, 
 
            authorization and whether reasonable and necessary and 
 
            causally connected; and
 
            
 
                 4.  Claimant's entitlement to 86.13 penalty benefits.
 
            
 
                     
 
            
 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            findings of fact
 
            
 
                 The undersigned deputy, having heard the testimony and 
 
            considered all the evidence, finds that:
 
            
 
                 Claimant is 26 years old and went through the 10th 
 
            grade but has now received his GED.  Claimant described his 
 
            work history before beginning work for defendant employer in 
 
            March 1989.  This history basically involved painting, 
 
            construction work, carpentry, Sheetrock, restaurant line 
 
            cooking, and tree service work.  (See Exhibit C for places 
 
            where claimant worked and why he left.)
 
            
 
                 Claimant said he was in a construction accident in 1984 
 
            and lost part of his right leg six inches below the knee and 
 
            has a prosthesis device.  He indicated he used his 
 
            settlement to buy a boat dock and marina in 1985 to 1987 
 
            which he sold.  He indicated it was not a financial success.
 
            
 
                 Claimant began working for defendant employer in March 
 
            1989 and took a physical.  He said he told defendant 
 
            employer about his leg injury.  He described his job which 
 
            basically involved loading boxes of meat weighing 9 to 114 
 
            pounds onto trucks.  He said he averaged 48 to 52 hours per 
 
            week six days a week at $6.75 per hour.
 
            
 
                 Claimant described a May 1989 work injury at defendant 
 
            employer's wherein claimant was loading a truck with a 
 
            conveyor belt.  He indicated that, while proceeding to pull 
 
            the conveyor back to step on the ramp, the truck that was 
 
            being loaded pulled forward and claimant landed on the 
 
            cement dock and incurred a pain in his lower back.  Although 
 
            claimant gave no specific date, the records herein indicate 
 
            it was in May 1989.
 
            
 
                 Claimant related an August 1989 incident in which he 
 
            was loading a truck and stepped backward and his left foot 
 
            slipped and caught in the space between the pallet boards at 
 
            defendant employer's place of business.  Claimant said he 
 
            had pain in his right leg and later developed back pain.  
 
            Claimant said he took a break and went back to work.  He 
 
            requested a slowdown but indicated defendant employer did 
 
            not allow it as they were backed up and had to load the 
 
            trucks before the computer went off.  Claimant continued 
 
            working until it was time to go home even though he said his 
 
            back hurt.
 
            
 
                 Claimant said he called defendant employer and was 
 
            given a doctor's appointment but missed the first one.  He 
 
            then was given a second appointment.  After approximately 
 
            two days, claimant said that he was to return to work at a 
 
            light duty job with restrictions.  He said this job violated 
 
            his restrictions as he had to lift.  Claimant contends he 
 
            told defendant employer through his supervisor, Mr. 
 
            Thompson, who told him to keep working as he had no 
 
            knowledge of claimant's restrictions and could do nothing 
 
            about it.  Claimant said the pain got so bad he told his 
 
            employer and went home.  Claimant gave no date.
 
            
 
                 Claimant indicated he took a slip (Joint Exhibit 3, 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            page 8) to defendant employer and Mr. Wood terminated 
 
            claimant.  He said Mr. Wood indicated he had to put someone 
 
            in claimant's place.  Claimant wasn't sure of the exact 
 
            termination date.  He applied for unemployment benefits but 
 
            was turned down on appeal.  He indicated he did not show up.
 
            
 
                 Claimant indicated Peter D. Wirtz, M.D., spent ten 
 
            minutes with him on the first appointment and five to ten 
 
            minutes on the second appointment and has never seen him 
 
            again.  He related Karen Kienker, M.D., spent one and one-
 
            half to two hours with him and put him through various 
 
            motion tests.  Claimant said Dr. Wirtz scheduled him for an 
 
            MRI but never did one.  The undersigned notes that an MRI 
 
            was done shortly after Dr. Wirtz's second appointment and it 
 
            is part of the record herein.
 
            
 
                 Claimant said Dr. Kienker recommended a TENS unit and 
 
            called the insurance adjustor in claimant's presence and the 
 
            insurance company said no.  Claimant indicated the insurance 
 
            company wanted only a rating and that was all.
 
            
 
                 Claimant said his back hurts constantly and he never re
 
            ceived any temporary total disability until he obtained a 
 
            lawyer.  He did not know when he received his first check.
 
            
 
                 Claimant said he signed with job service in February 
 
            1990 and made twenty to thirty personal contacts.  He also 
 
            said he signed up with the state rehabilitation service.  
 
            Claimant said defendants have not offered a pain center, 
 
            physical therapy or TENS unit for him.
 
            
 
                 Claimant said he was living with his girlfriend, Pamela 
 
            Stevens, in August of 1989 and that she moved out in March 
 
            of 1990 after ten months.  He said she kept a diary of 
 
            events but kept it from him.
 
            
 
                 Claimant acknowledged that he also complained of penis 
 
            contusions resulting from his August 1989 work injury and 
 
            that on August 30, 1990, his main complaint involved his 
 
            penis.
 
            
 
                 Claimant agreed he was off work August 4 through 16, 
 
            1989 for personal reasons and did not request a leave of 
 
            absence.  He described his personal problems as a conflict 
 
            between Pamela Stevens' brothers and himself.  When Pamela 
 
            Stevens moved in with claimant, she was still married to Mr. 
 
            Stevens.  Claimant said Pamela Stevens' ex-husband and 
 
            brothers came over to beat him up on August 4, 1989.  They 
 
            held a knife on him and one of them hit him.  Claimant was 
 
            vague as to where he was hit but then said he had a swollen 
 
            eye and cheek and a "busted" lip.  Claimant indicated he 
 
            then called his brothers and cousin from out of state and 
 
            sought out the Stevens brothers and Pamela's ex-husband and 
 
            took care of them.  Claimant contends he was not involved in 
 
            a fight or the subsequent fights that ensued.  Claimant 
 
            indicated he did to the Stevens brothers what they had done 
 
            to him.  He said "what is fair is fair."  Claimant left the 
 
            impression he was not physically involved in the fights but 
 
            was there to see them take place.
 
            
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
                 Claimant indicated in his deposition that he was 
 
            attacked in late June and early August 1989, and that the 
 
            retaliation occurred shortly thereafter (Defendants' Exhibit 
 
            14, p. 106-112 of claimant's deposition of September 30, 
 
            1990).  This exhibit indicates claimant took retaliation 
 
            during his leave of absence for his beating by the Stevens 
 
            brothers.  Although the claimant's testimony is somewhat 
 
            confusing, particularly as to chronological order, it 
 
            appears undisputed that claimant took a leave of absence for 
 
            personal reasons from August 4, 1989 to August 18, 1989.  It 
 
            is clear to the undersigned that claimant's reason for a 
 
            leave of absence, which he related as personal problems, was 
 
            basically to even things up with the Stevens brothers by 
 
            calling his family from out of state to physically take care 
 
            of them in a physical confrontation.
 
            
 
                 Claimant's attention was called to Joint Exhibit 3, 
 
            page 2, where his chief complaint to the doctor on September 
 
            11, 1989, is a penis injury.  On January 23, 1990, his only 
 
            complaint was pain in the penis area (Jt. Ex. E, p. 3).  The 
 
            undersigned notes in Joint Exhibit 3, page 1, that on August 
 
            30, 1989, the Marshalltown Medical Clinic notes reflect 
 
            claimant said one week ago (August 23, 1990) he slipped with 
 
            his left leg caught between two pallets and he didn't recall 
 
            hitting anything but noticed a bruise on the middle and left 
 
            shaft of his penis and that his main complaint was pain in 
 
            the left lateral side of his penis.
 
            
 
                 Claimant was asked again, on cross-examination, about 
 
            his August 1989 vehicle accident.  Claimant hesitated in his 
 
            answer and said he wasn't sure of the date.  His attention 
 
            was called to his deposition (page 93) in which he said he 
 
            was in a motorcycle accident when someone ran a stop sign 
 
            and hurt him.  He emphasized he wasn't thrown off the 
 
            motorcycle but his attention was again called to his 
 
            deposition (page 93) in which he said he was thrown off the 
 
            bike.  Claimant said that he misunderstood the questions and 
 
            that he wasn't thrown off the bike.  The undersigned notes 
 
            that claimant's deposition, to which there has been 
 
            references, was not an exhibit in this case.
 
            
 
                 Claimant said he was terminated September 20, 1989, 
 
            when he showed a doctor's slip to defendant employer.  He is 
 
            a union member but he did not talk to the steward about 
 
            this.  He said she wouldn't listen to him anyway from prior 
 
            experiences.  Claimant did not ask defendant employer to go 
 
            back to work since his termination.
 
            
 
                 Claimant was then asked about a March 1991 fight with 
 
            his sister.  He said he was involved in a fight with his 
 
            sister and her boyfriend that occurred after his grandfather 
 
            died on March 15, 1991.  He contends they got into an 
 
            argument and his sister assaulted his fiance who was 
 
            pregnant with his child.  He contends there was not a 
 
            physical fight, but the undersigned notes claimant's 
 
            demeanor while testifying at this point appears to belie 
 
            claimant's contention.  Joint Exhibit 10, pages 1-5, is a 
 
            police report of the incident.  Claimant denied any physical 
 
            altercation.
 
            
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
                 Claimant was then asked about his fight and ultimate 
 
            arrest for a February 1990 incident with Pamela Stevens.  He 
 
            explained the yelling and screaming and said Pamela then 
 
            came into his bedroom when he was going to sleep and kicked 
 
            him with her foot with a shoe thereon in his back and 
 
            shoulders four or five times and left a foot imprint in his 
 
            skin (Jt. Ex. 10, pp. 6-9).
 
            
 
                 Pamela Stevens testified that she knows claimant and 
 
            used to live with him beginning in May or June until 
 
            sometime in February or March 1990.  She was still married 
 
            to another person when she moved in.  She first met claimant 
 
            in April 1989 when she started working for defendant 
 
            employer.  She and claimant worked the same shift.
 
            
 
                 She said claimant's right leg, which has been partly 
 
            amputated, was causing claimant problems and pain when 
 
            putting on the prosthesis device.  She said claimant told 
 
            her he hurt himself loading a truck when his foot caught in 
 
            the pallet.  She acknowledged she kept a diary and wrote in 
 
            it when claimant went to the doctor and when he was hurt.  
 
            She later mentioned that she did not write the truth in her 
 
            diary.  Where the diary is now is unknown to the parties, 
 
            allegedly.
 
            
 
                 Ms. Stevens said she did not believe claimant was in 
 
            pain after his August 1989 injury.  She indicated he was 
 
            normal that day just like when she met him.  She saw no 
 
            difference in claimant before or after the August 1989 
 
            injury.  She said claimant did complain of back pain twice 
 
            when going to the doctor and after the August injury.
 
            
 
                 Ms. Stevens explained the physical confrontation and 
 
            fight with claimant in January 1990, wherein she said 
 
            claimant threw her around and against the wall and 
 
            threatened other family members.  She indicated the police 
 
            took him from the house but he came back.  They were both 
 
            arrested after this incident (Jt. Ex. 10, pp. 6-9.)
 
            
 
                 Ms. Stevens contends she left claimant because they 
 
            never had a home and were living from motel to motel and her 
 
            parents were going to take her child away.  She is now 
 
            living with her current boyfriend.  She is currently 
 
            receiving ADC and was fired from a waitress job in 1990 
 
            because of drinking on the job.
 
            
 
                 She acknowledged she attended a lot of claimant's 
 
            visits to the doctor and sat with claimant during the 
 
            visits.  She said claimant told the doctor his back injury 
 
            interfered with their sex relationship.
 
            
 
                 She acknowledged she talked to Rick Wood, defendant 
 
            employer's personnel manager, twice on the telephone as to 
 
            claimant's back injury.
 
            
 
                 She admitted she is on bad terms with claimant due to 
 
            his threats to her.  She said the only contact with claimant 
 
            since she left claimant in 1990 was when claimant came to 
 
            her apartment and harassed her and wanted her to testify.  
 
            She told him no and contends claimant said "she better not 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            screw up."
 
            
 
                 She acknowledged that the doctor was told she and the 
 
            claimant were having trouble with their sex life but it was 
 
            not true.  She thought this untruth would help the claimant.  
 
            She said she did not know claimant had an accident involving 
 
            his penis.  She said it always worked fine when she was with 
 
            him.
 
            
 
                 Ms. Stevens acknowledged that she and claimant went to 
 
            Illinois to visit and the fact that his parents were in a 
 
            car accident was not the underlying reason for going.  His 
 
            parents were not hurt.
 
            
 
                 David Warnell testified that he has operated a family 
 
            tree service for fifteen years and claimant is his first 
 
            cousin.  He said his business is in Illinois, Wisconsin and 
 
            Iowa, and he has a Marshalltown office.  He has known 
 
            claimant all his life and claimant worked for him in the 
 
            summer of 1988 for two months in Wisconsin loading and 
 
            stacking brush, fertilizing trees, cleaning out and filling 
 
            trees and sealing cavities.  He said this entailed a lot of 
 
            lifting heavy branches, bending and picking up branches off 
 
            the ground, the weight being 50 to 120 pounds.  He said 
 
            claimant was a good worker and had no back complaints or 
 
            restrictions in 1988 and incurred no injuries while working 
 
            for him.  He indicated claimant was actually a subcontractor 
 
            when working at his business.  Mr. Warnell currently has 12 
 
            to 15 subs or employees working for him.  He does not know 
 
            where claimant went when claimant left but heard he went to 
 
            work for Monfort.
 
            
 
                 He indicated he has seen claimant on occasion since 
 
            August 1989.  He related claimant came to him in 1990 or 
 
            1991 and asked for work as he needed money and had no 
 
            income.  Claimant told him he injured his back and he saw 
 
            claimant's restrictions.  Warnell indicated he had nothing 
 
            for claimant to do and could not afford to pay someone for 
 
            doing nothing.  He said he went with claimant to job service 
 
            to see if there was a job for him.  Warnell emphasized he 
 
            would never hire anyone with restrictions claimant has (Jt. 
 
            Ex. 6, p. 5).
 
            
 
                 He acknowledged claimant had a part of his right leg 
 
            missing and claimant's only prior restrictions when working 
 
            for Warnell was that he would not let claimant climb the 
 
            trees, otherwise, he could do any other work.  He described 
 
            an incident in November 1990 in which claimant started to 
 
            kneel to talk to his sister who was sitting in a car and 
 
            claimant fell down due to the pain and looked like he passed 
 
            out.  Claimant was taken to the hospital.  Warnell wrote a 
 
            memo concerning this incident close to the time it occurred.  
 
            Claimant requested this.  He said claimant was unable to 
 
            engage in normal activities, baseball, wrestling, horseplay 
 
            or helping in training Doberman dogs as he did prior to 
 
            August 1989.  He said he has observed a change in claimant's 
 
            mental attitude since his August 1989 injury.  Claimant is 
 
            no longer cheerful and he can't get claimant involved in 
 
            things.  He understood claimant was a part owner in a boat 
 
            dock marina in Missouri until he sold it but he didn't know 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            when.  Warnell said he was aware of claimant's August 1989 
 
            ongoing feud with his girlfriend's ex-husband and her ex-
 
            husband's brother.  He related he knew Pamela Stevens, now 
 
            claimant's ex-girlfriend.
 
            
 
                 Rick James Wood, defendant employer's resource 
 
            personnel manager for the last twenty-six months, first met 
 
            claimant when claimant was applying for a job with defendant 
 
            employer in February 1989.  Claimant's personnel file was 
 
            then created (Jt. Ex. 11).  He said claimant resigned on 
 
            August 4, 1989, as he was having a lot of personal problems 
 
            (Jt. Ex. 11, p. 30).  He understood claimant was to return 
 
            to work on August 18, 1989.  He said claimant was hired back 
 
            as he was strong as a bull and could do as well as anyone.  
 
            He said his first knowledge of claimant's injury was on 
 
            August 23, 1989, when claimant called him at 8:30 or 9:00 
 
            a.m.  He set up a doctor's appointment for claimant on 
 
            August 24, 1989, but claimant did not show.  Another 
 
            appointment was set up.  He said claimant kept a second 
 
            appointment and was given some restrictions.  Claimant was 
 
            placed on a light duty job.
 
            
 
                 He said claimant's last day on the job was August 29, 
 
            1989, but Joint Exhibit 11, page 3, shows the date as August 
 
            30, 1989.  Claimant told him he didn't think his 
 
            restrictions were being followed.  This exhibit is 
 
            claimant's termination notice as claimant missed three days 
 
            of work without calling in which is required under the 
 
            company rules.  Joint Exhibit 11, page 3 reflects claimant's 
 
            termination from his job on September 19, 1989, signed by 
 
            claimant and Rick Wood.   He said claimant returned to 
 
            defendant employer on September 19, 1989, requesting his job 
 
            back but due to company policy he was not able to be hired.  
 
            Claimant contends he was absent due to an auto accident in 
 
            Missouri involving his mother.  Defendant employer's rules 
 
            as set out in Joint Exhibit 11, page 5, explained claimant's 
 
            discharge.  Joint Exhibit 11, page 5, is a handwritten 
 
            statement explaining where he was, namely, that he went to 
 
            Missouri as his mother was killed in an auto accident and 
 
            she was being buried there.  This is signed by the chief 
 
            union steward.  He said that between August 30, 1989 and 
 
            September 19, 1989, claimant never brought any doctor notes 
 
            to him.  He indicated if claimant had excuses for being off 
 
            work he would have received them.  A memo written by Mr. 
 
            Wood (Jt. Ex. 11, p. 6) reflects claimant told him he was in 
 
            an auto accident on August 21, 1989.  It then reflects 
 
            claimant was injured at work on August 22, 1989.
 
            
 
                 Mr. Wood acknowledged claimant was authorized to see a 
 
            doctor on September 20, 1989, even though he was discharged 
 
            on September 19, 1989.  When asked why defendant employer 
 
            did not keep claimant until the company found out what the 
 
            doctor would say, Mr. Wood responded that he could not 
 
            discriminate in favor of the claimant who had violated the 
 
            work rules of not calling in on "no show" situations.  Mr. 
 
            Wood said if claimant had a work slip saying he is 
 
            restricted from work altogether, claimant would probably 
 
            still be employed today.
 
            
 
                 Tony Harris, a resource employee of defendant employer 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            since February 1989, testified he knew claimant in 1989 and 
 
            had two meetings with him in his office in late August 1989.  
 
            At the first meeting in which the union steward was also 
 
            present, Harris said claimant related he was on an emergency 
 
            trip to Missouri as his parents were killed in an automobile 
 
            accident.  In another meeting in which claimant, the union 
 
            steward and Mr. Wood were present, the question came up as 
 
            to whether or not claimant was in Illinois or Missouri due 
 
            to his inconsistent prior comments.  Claimant did not 
 
            answer.  See memo by Mr. Harris on September 13, 1989 (Jt. 
 
            Ex. 11, p. 7)
 
            
 
                 On August 22, 1989 (Jt. Ex. 1, p. 8) reflects an 
 
            emergency outpatient record in which claimant indicated he 
 
            injured his back at work on August 15, 1989.
 
            
 
                 A September 20, 1989 x-ray indicates some degenerative 
 
            changes existing but not acute fracture or bony destruction 
 
            (Jt. Ex. 1, p. 9).
 
            
 
                 An emergency outpatient record of November 20, 1990, 
 
            reflects claimant's complaint of an injured back in 
 
            September 1989 (Jt. Ex. 1, p. 10).  In the history, he 
 
            indicates he was bending over a car and suffered a sudden 
 
            severe pain in the area of his low back.  There is nothing 
 
            in the history of an August injury or the other various 
 
            fights or beatings claimant incurred in August 1989 and 
 
            thereafter.
 
            
 
                 The Marshalltown Clinic records, on August 30, 1989 
 
            (Jt. Ex. 3), reflect claimant's chief complaint as a penis 
 
            pain and claimant indicated an injury one week ago which 
 
            would be August 23, 1989.  It noted "peculiar etiology when 
 
            there is no direct trauma."  On September 11, 1989, his 
 
            chief complaint was with his penis and testicle which he 
 
            indicated he injured sometime before August 30.  His 
 
            girlfriend, Pamela Stevens, was present and told the doctor 
 
            she never noticed the enlarged vein before (Jt. Ex. 3, p. 
 
            2).  His penis complaint carried over into his doctor's 
 
            appointment on January 23, 1990.
 
            
 
                 Joint Exhibit 3, page 7, is claimant's August 29, 1989 
 
            request for medical leave for an August 22, 1989 injury to 
 
            his back and privates.  Joint Exhibit 4, page 1, Dr. Wirtz's 
 
            report of October 26, 1989, reflects, in part, claimant's 
 
            history of a June 1989 middle low back pain with 
 
            intermittent pain and then an August 14, 1989 incident in 
 
            which he was carrying a box at work and fell through a 
 
            pallet and noted mid-back pain.  Claimant also told the 
 
            doctor that on August 15, 1989, his penis area became 
 
            swollen.  The doctor noted a muscular strain left side low 
 
            back.  An MRI was suggested.  On December 8, 1989, the 
 
            diagnosis was degenerative lumbar disc L4-5 and Dr. Wirtz 
 
            noted muscular strain related to the back area from work-
 
            related conditions (Jt. Ex. 4, p. 3).  On January 10, 1989, 
 
            Dr. Wirtz said claimant's August 14, 1989 injury has 
 
            resolved without residuals.  The MRI showed degeneration and 
 
            spurring (Jt. Ex. 4, p. 4).  On March 29, 1991, Dr. Wirtz 
 
            said claimant's degenerative disc preexisted his August 14, 
 
            1989 injury, his functional capacity is the same as it was 
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            before August 14, 1989, that claimant reached maximum 
 
            medical benefit on October 26, 1989, and claimant's October 
 
            14, 1989 injury has not caused any permanent functional 
 
            impairment or restrictions (Jt. Ex. 4, p. 5).
 
            
 
                 The undersigned notes there is no history of claimant's 
 
            fights, assaults or beatings in the doctor's history.  Nor 
 
            is there any evidence of any other 1989 incidents.
 
            
 
                 A March 13, 1989 Iowa Methodist Medical Center report 
 
            refers to claimant's August 14, 1989 injury and a May 1989 
 
            injury.  The history in this medical report indicates that 
 
            in May 1990, he was standing on a ramp between a dock and a 
 
            truck when someone pulled the truck forward and the ramp 
 
            dropped out from under him.  Claimant said he fell five and 
 
            one-half or six feet landing on his low back.  He also 
 
            indicated another time he was turning while carrying a box 
 
            and dropped to his knees because of the pain in his back. 
 
            (Jt. Ex. 6, p. 2).  There is nothing in claimant's history 
 
            as to his fights, beatings or assaults.
 
            
 
                 Joint Exhibit 11, page 30, is claimant's "termination 
 
            notice" showing his last day of work as July 30, 1989, a 
 
            termination date of August 4, 1989, and the reason as 
 
            "personal problems."  Joint Exhibit 11, page 31, is 
 
            claimant's receipt of August 18, 1989, of an employee's 
 
            handbook given to employees at the beginning of their hiring 
 
            or, in claimant's case, rehiring.
 
            
 
                 Joint Exhibit 11, page 49-50, reflects that on an 
 
            unemployment appeal, claimant was found to have voluntarily 
 
            quit defendant employer on September 19, 1989.
 
            
 
                 Claimant, in his petition filed on August 2, 1990, 
 
            alleges a back injury on or about August 14, 1989.  The 
 
            prehearing report refers to an injury on or about August 14 
 
            or August 22, 1989.  This case deals with alleged traumatic 
 
            injury.  It is hard to believe that claimant does not know 
 
            when he was specifically injured in a traumatic injury.  
 
            Considering the record as a whole, the credibility of the 
 
            claimant becomes a major concern in many instances in the 
 
            record.
 
            
 
                 Nowhere in claimant's medical history given to the 
 
            doctor is there a mention of the assaults or beatings in 
 
            which claimant was involved, one beginning on or around 
 
            August 4, 1989 and shortly thereafter and, also, going into 
 
            1990 and 1991.  Claimant obviously has a degenerative disc 
 
            condition in addition to having part of his right leg 
 
            amputated.  Claimant contends in several of his doctor's 
 
            visits that he was injured on August 14, 1989 at work (Cl. 
 
            Ex. C, p. 40).  It appears undisputed that claimant was not 
 
            working beginning August 4, 1989 to August 18, 1989, and 
 
            Joint Exhibit 11, page 30-31, indicate that at that period 
 
            of time claimant's last day of work was July 30, 1989.
 
            
 
                 Claimant was obviously off for personal problems.  
 
            Claimant apparently needed this time to settle the score 
 
            involving a beating he took from his live-in girlfriend's 
 
            ex-husband and his brothers around the first part of August 
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
            1989.  He seems to feel he settled the score.  The evidence 
 
            doesn't show when Pamela Stevens divorced her husband, but 
 
            when she moved in with claimant in May or June 1989, she was 
 
            still married.
 
            
 
                 Claimant indicated he didn't participate in some of the 
 
            fights, but apparently watched.  The undersigned does not 
 
            believe claimant.  Likewise, claimant wasn't working when he 
 
            contends, in most of his records and answers to 
 
            interrogatories, that his work injury occurred on August 14, 
 
            1989.  Claimant never mentioned to the doctor his fights and 
 
            beatings of August 1989, the assaults by his girlfriend in 
 
            1990, his motorcycle incident, and the alleged work injury 
 
            in May 1989 in which he fell at work five to six feet off a 
 
            ramp.  Claimant never mentioned the assault by his 
 
            girlfriend in February 1990 even though he indicated she 
 
            kicked him several times and left her foot imprint in his 
 
            skin.  Claimant is not credible.  He also related, on cross-
 
            examination, his March 1991 fight with his sister.  Claimant 
 
            appears to have a very explosive temperament and apparently 
 
            likes to fight.  For a person with a leg amputation and 
 
            wearing a prosthetic device, alleging permanent injury, and 
 
            having a history of degenerative disc condition, it appears 
 
            claimant wasn't hurt from a work injury versus injuries from 
 
            his fighting or other nonwork incidents.  It is no wonder 
 
            claimant doesn't know when he allegedly was hurt at work.  
 
            Medical records show one of his consistent chief complaints 
 
            was the pain in his penis.  His girlfriend, who accompanied 
 
            claimant on many of his doctor visits, never noticed his 
 
            problem until August 1989.  Although there is no evidence of 
 
            claimant getting kicked in the groin area during any fights, 
 
            he obviously avoided any discussion of these incidents 
 
            whenever he could.  It would not be unusual for street 
 
            fighters to get injured in the groin area as this is a 
 
            vulnerable and successful area to get advantage in a street 
 
            fight as there are no rules of fair play.  Pamela Stevens 
 
            talked of claimant tossing her around and against the wall 
 
            in February 1990 and it would appear from her physical 
 
            appearance that she would weigh as much, if not more, than 
 
            the heaviest boxes which claimant contends he is unable to 
 
            lift or throw around now because of the alleged August 1989 
 
            work injury.  Although Pamela Stevens is not credible in 
 
            many instances, it is a fact there was a fight between her 
 
            and claimant as evidenced by the police report (Jt. Ex. 10).
 
            
 
                 Claimant's former girlfriend testified for defendants.  
 
            She obviously had no feelings for claimant other than she 
 
            exhibited dislike.  She admitted she lied to the doctor as 
 
            to claimant's complaints at the time of their visits to 
 
            claimant's doctor.  She and claimant obviously have one 
 
            thing in common, namely, they are not credible witnesses.
 
            
 
                 Claimant has the burden of proof to show an injury 
 
            arose out of and in the course of his employment and that 
 
            there is a causal connection of claimant's condition and 
 
            alleged disability to his work injury.  There is no credible 
 
            testimony based on a correct or full medical and injury 
 
            history that causally connects claimant's medical condition 
 
            to a work injury.  There is no evidence of any permanent 
 

 
            
 
            Page  11
 
            
 
            
 
            
 
            
 
            injury.  The undersigned finds that claimant has failed in 
 
            his burden to show he incurred a work injury on August 14, 
 
            1989 through August 22, 1989, and that any alleged work 
 
            injury has caused claimant a permanent impairment or 
 
            permanent disability.
 
            
 
                 The record has considerable evidence that the claimant 
 
            has a preexisting degenerative disc condition and that the 
 
            more logical cause for a material acceleration or acerbating 
 
            of this condition would be his fights on or around the time 
 
            of his alleged injury, namely, August 14, 1989.  Claimant 
 
            took off work at least between August 4, 1989 and August 18, 
 
            1989 for personal problems which, as indicated earlier, was 
 
            for getting even with his ex-wife's brothers for a beating 
 
            claimant incurred on or around August 4, 1989.
 
            
 
                 The undersigned finds there is no further need to 
 
            discuss the evidence or other issues.  Any further 
 
            discussion would be redundant and any discussion of other 
 
            issues not specifically addressed herein are now moot in 
 
            light of the above.  Claimant takes nothing further from 
 
            this proceeding.
 
            
 
                                conclusions of law
 
            
 
                 Claimant has the burden of proving by a preponderance 
 
            of the evidence that he received an injury on or about 
 
            August 14, 1989-August 22, 1989, which arose out of and in 
 
            the course of his employment. McDowell v. Town of 
 
            Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. 
 
            Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967). 
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury on or about 
 
            August 14, 1989-August 22, 1989 is causally related to the 
 
            disability on which he now bases his claim.  Bodish v. 
 
            Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).  Lindahl 
 
            v. L. O. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945).  A 
 
            possibility is insufficient; a probability is necessary.  
 
            Burt v. John Deere Waterloo Tractor Works, 247 Iowa 691, 
 
            73 N.W.2d 732 (1955).  The question of causal connection is 
 
            essentially within the domain of expert testimony.  Bradshaw 
 
            v. Iowa Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167 
 
            (1960). 
 
            
 
                 However, expert medical evidence must be considered 
 
            with all other evidence introduced bearing on the causal 
 
            connection.  Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion 
 
            of experts need not be couched in definite, positive or 
 
            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.
 
            
 
                 An employee is not entitled to recover for the results 
 

 
            
 
            Page  12
 
            
 
            
 
            
 
            
 
            of a preexisting injury or disease but can recover for an 
 
            aggravation thereof which resulted in the disability found 
 
            to exist.  Olson v. Goodyear Service Stores, 255 Iowa 1112, 
 
            125 N.W.2d 251 (1963); Yeager v. Firestone Tire & Rubber 
 
            Co., 253 Iowa 369, 112 N.W.2d 299 (1961); Ziegler v. United 
 
            States Gypsum Co., 252 Iowa 613, 106 N.W.2d 591 (1960).  See 
 
            also Barz v. Oler, 257 Iowa 508, 133 N.W.2d 704 (1965); 
 
            Almquist v. Shenandoah Nurseries, 218 Iowa 724, 254 N.W. 35 
 
            (1934).
 
            
 
                 The Iowa Supreme Court cites, apparently with approval, 
 
            the C.J.S. statement that the aggravation should be material 
 
            if it is to be compensable.  Yeager, 253 Iowa 369, 112 
 
            N.W.2d 299; 100 C.J.S. Workmen's Compensation sec. 555(17)a.
 
            
 
                 It is further concluded that:
 
            
 
                 Claimant did not incur a work-related low back injury 
 
            on or about August 14, 1989 or August 22, 1989.
 
            
 
                 Claimant did not incur a temporary or permanent low 
 
            back impairment or disability which was caused by any 
 
            alleged August 14, 1989 or August 22, 1989 work-related 
 
            injury.
 
            
 
                 Claimant was involved in fights or assaults on or 
 
            around August 4 1989 through August 18, 1989, in which he 
 
            was assaulted with a knife at his throat and hit by two or 
 
            three individuals, after which he called his relatives from 
 
            out of state and retaliated with his own assault within 
 
            several days thereafter.
 
            
 
                 Claimant did not relate a true and accurate medical or 
 
            injury history to his treating or examining doctors 
 
            regarding the various other injuries or fights, assaults or 
 
            beatings in which he was involved.
 
            
 
                 Claimant was not working for defendant employer on 
 
            August 4, 1989 to August 18, 1989, although he contends he 
 
            was injured at work with defendant employer on August 14, 
 
            1989 (See claimant's petition and Claimant's Exhibit C, page 
 
            40).
 
            
 
                 Claimant has a preexisting degenerative disc disease 
 
            which was not materially acerbated or accelerated by any 
 
            alleged August 14, 1989 or August 22, 1989 work injury.
 
            
 
                 Claimant was involved in several incidents and the 
 
            evidence shows that more than likely they caused claimant's 
 
            alleged problems than any alleged August 14, 1989 or August 
 
            22, 1989 work injury.
 
            
 
                 Claimant is not credible.
 
            
 
                 Claimant has no work-related impairment or industrial 
 
            disability.
 
            
 
                                      order
 
            
 
                 THEREFORE, it is ordered:
 

 
            
 
            Page  13
 
            
 
            
 
            
 
            
 
            
 
                 That claimant takes nothing from these proceedings.
 
            
 
                 That the parties shall each pay half the costs of this 
 
            action, pursuant to rule 343 IAC 4.33.
 
            
 
                 Signed and filed this ____ day of May, 1991.
 
            
 
            
 
            
 
                                          ______________________________
 
                                          BERNARD J. O'MALLEY
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies to:
 
            
 
            Mr Philip F Miller
 
            Attorney at Law
 
            Saddlery Bldg  Ste 200
 
            309 Court Ave
 
            Des Moines IA 50309
 
            
 
            Mr Stephen W Spencer
 
            Mr Fred Morrison
 
            Mr timothy W Wegman
 
            Attorneys at Law
 
            218 6th Ave  Ste 300
 
            P O Box 9130
 
            Des Moines IA 50306
 
            
 
            
 
                 
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                      5-1100; 5-1402.20; 5-1108
 
                      Filed May 20, 1991
 
                      Bernard J. O'Malley
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            MIKE TOMLINSON,               :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 930818
 
            MANAGEMENT SERVICES PERSONNEL,:
 
                                          :     A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            CITY INSURANCE COMPANY,       :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            5-1100; 5-1402.20
 
            Found claimant failed to prove he incurred an injury which 
 
            arose out of and in the course of his employment.
 
            
 
            5-1108
 
            Claimant was involved in several fights involving being 
 
            beaten by his married live-in girlfriend's husband and 
 
            brothers.  Claimant retaliated with his brothers in a fight 
 
            to get even with his assailants.  Claimant physically fought 
 
            with his girlfriend and his sister and her boyfriend.  Found 
 
            claimant's alleged injury or medical condition could have 
 
            resulted from these fights.  Claimant never told the doctors 
 
            of his fights or other accidents.
 
            Found claimant not a credible witness.
 
            Claimant took nothing from these proceedings.