1804; 2209; 4000.2
 
                           Filed May 6, 1991
 
                           MICHAEL G. TRIER
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                       :
 
            EDWARD J. CARNEY,    :
 
                       :         File Nos. 931138
 
                 Claimant,  :                   931139
 
                       :                   931140
 
            vs.        :
 
                       :      A R B I T R A T I O N
 
            OSCAR MAYER FOODS CORPORATION, :
 
                       :         D E C I S I O N
 
                 Employer,  :
 
                 Self-Insured,   :
 
                 Defendant.      :
 
            ____________________________________________________________
 
            
 
            2209
 
            Held that last day of work before plant closing was the date 
 
            of injury for cumulative trauma injury sustained by the 
 
            employee over 24 years of employment with the employer.
 
            
 
            4000.2
 
            Failure to pay was not unreasonable where opinions on 
 
            causation were rendered only weeks prior to the date of 
 
            hearing, despite the fact that the claimant's physicians 
 
            were the only ones rendering opinions in the case.
 
            Penalty of nearly 50 percent awarded for failure to pay 
 
            compensation for the portion of the claim which the employer 
 
            admitted.
 
            
 
            1804
 
            Fifty-year-old claimant with multiple repetitive, cumulative 
 
            and minor traumatic injuries awarded permanent total 
 
            disability based upon uncontroverted opinions of vocational 
 
            consultant and treating orthopaedic surgeons.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                           :
 
            EDWARD J. CARNEY,              :
 
                                           :         File Nos. 931138
 
                 Claimant,                 :                   931139
 
                                           :                   931140
 
            vs.                            :
 
                                           :      A R B I T R A T I O N
 
            OSCAR MAYER FOODS CORPORATION, :
 
                                           :         D E C I S I O N
 
                 Employer,                 :
 
                 Self-Insured,             :
 
                 Defendant.                :
 
            ____________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 This decision concerns three proceedings in arbitration 
 
            commenced by Edward J. Carney against his former employer, 
 
            Oscar Mayer Foods Corporation.
 
            
 
                 In file number 931139, Carney alleges an injury 
 
            occurring on May 20, 1988 in which he injured his back, 
 
            right knee and sustained psychological injury.  He seeks 
 
            compensation for permanent disability, payment of medical 
 
            expenses and a penalty under section 86.13(4).
 
            
 
                 File number 931138 alleges an injury of November 16, 
 
            1988 to claimant's back and legs and psychological injury.  
 
            Claimant again seeks compensation for permanent disability, 
 
            payment of medical expenses and a penalty under section 
 
            86.13(4).
 
            
 
                 File number 931140 alleges an injury resulting from 
 
            cumulative trauma on January 6, 1989, the last day Carney 
 
            worked for the employer.  Carney claims injury to his arms, 
 
            legs and back and psychological injury.  He seeks 
 
            compensation for permanent disability, healing period, 
 
            payment of medical expenses and a penalty under section 
 
            86.13(4).
 
            
 
                 The employer denies the occurrence of injury arising 
 
            out of and in the course of employment for each of the three 
 
            alleged injuries, except that it admits the hand injury 
 
            contained within file number 931140, but denies all other 
 
            injuries alleged in that case.  It is noted that the 
 
            employer had denied even the hand injury until filing its 
 
            amended answer on October 12, 1990.  The employer also 
 
            asserts that all claims are barred by lack of notice 
 
            pursuant to section 85.23 of The Code, except for the hand 
 
            injury contained in file number 931140.
 
            
 
                 The case was heard at Des Moines, Iowa on January 28, 
 
            1991.  The evidence in the proceeding consists of testimony 
 
            from Edward J. Carney, Louella Carney, Jeff Johnson and Todd 
 
            F. Hines, Ph.D.  The record also contains claimant's 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
            
 
            exhibits 1 through 16, except for exhibit 1b which is with 
 
            the record as an offer of proof only.  The record also 
 
            contains defendant's exhibits E and F.
 
            
 
                                 findings of fact
 
            
 
                 Having considered all the evidence received, together 
 
            with the appearance and demeanor of the witnesses, the 
 
            following findings of fact are made.
 
            
 
                 Edward J. Carney is a 50-year-old married man who lives 
 
            at Perry, Iowa.  He is a high school graduate who described 
 
            his grades as below average.  He related difficulty with 
 
            spelling, reading and math.
 
            
 
                 After high school, Edward served four years active duty 
 
            with the United States Marine Corps followed by two years of 
 
            inactive duty.  Edward worked as a groundskeeper at Iowa 
 
            State University for approximately one year and then 
 
            obtained employment at what was then the IBP plant at Perry, 
 
            Iowa.  Approximately one and one-half years later, the plant 
 
            was purchased by Oscar Mayer Foods Corporation.  Edward 
 
            worked in that plant for 24 years, 9 months.
 
            
 
                 Edward's first job was lifting neck bones, a function 
 
            which he performed for approximately 19 years ending in June 
 
            1983.  The job was performed by pulling a pork shoulder off 
 
            a conveyor line, making three cuts with a knife in order to 
 
            remove the neck bone, pushing the shoulder back onto the 
 
            conveyor belt and placing the neck bone into a container.  
 
            Sow shoulders could weigh as much as 60 pounds while butcher 
 
            hog shoulders were lighter.  Edward estimated that he would 
 
            handle approximately 2,000 shoulders in a normal work day.  
 
            According to Edward, his left arm, hand and elbow became 
 
            sore and the hand became numb while performing that work.
 
            
 
                 In June 1983 until January 1986, Edward worked as a 
 
            jowl inspector.  He would pick up a jowl, inspect it and 
 
            then throw it to the left and behind him.  Initially, two 
 
            people performed the job with each handling approximately 
 
            6,000 jowls daily.  Later, one person was removed leaving 
 
            Edward to handle approximately 12,000 jowls per day.  While 
 
            performing the jowl inspector job, he began to develop 
 
            problems with his left shoulder and elbow.  He complained of 
 
            further problems with his hand being numb.  After working by 
 
            himself for a couple of weeks, he became unable to perform 
 
            the job and was placed on light duty.  He also took 
 
            vacation.  When he returned from the vacation, the job had 
 
            been modified in order to eliminate the throwing of the jowl 
 
            with the left arm.  After the modification, the shoulder and 
 
            arm problems subsided.
 
            
 
                 In January 1986, Edward bid to a job where he boxed 
 
            neck bones and tails.  He assembled cardboard boxes, placed 
 
            a plastic bag liner inside each box, placed the box under a 
 
            chute, filled it with approximately 30 pounds of bones, 
 
            closed and banded the box and then placed it on a pallet 
 
            where boxes were stacked eight per layer and six high.  
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            
 
            
 
            Edward stated that two people performed the job and that, 
 
            between the two of them, they handled approximately 630 
 
            boxes per day.  According to Edward, the job did not bother 
 
            him.
 
            
 
                 On May 20, 1988, Edward slipped and fell injuring his 
 
            knees and back.  He experienced continuing problems with the 
 
            right knee following that incident, but missed no work.  On 
 
            November 16, 1988, he again slipped and fell, this time 
 
            injuring his right hip and back.  Edward received physical 
 
            therapy following each of these two injuries, but did not 
 
            miss time from work as he attended the therapy after the 
 
            normal work day.
 
            
 
                 According to Edward, his overall physical condition 
 
            became increasingly worse.  The plant closing had been 
 
            announced and he continued working until January 6, 1989, 
 
            took four weeks of vacation and was then paid for the other 
 
            three weeks which occurred after the plant had actually 
 
            closed.  Edward stated that the vacation had been scheduled 
 
            in March or April of 1988 and that he had originally 
 
            intended to visit his son who was in the Air Force at Minot, 
 
            North Dakota, but that, when the time for the vacation 
 
            arrived, he was hurting so badly that he was unable to 
 
            travel and went nowhere.
 
            
 
                 The incidents and complaints of which Edward testified 
 
            are corroborated by the first aid department notes from the 
 
            employer.  Complaints of left hand numbness appear in 
 
            October 1980 (exhibit 7b, pages 2 and 3).  This would have 
 
            occurred while he was removing neck bones from shoulders.  
 
            Left arm and shoulder complaints are reflected commencing 
 
            August 19, 1985 and running through October 10, 1985 
 
            (exhibit 7b, pages 11-13).  An entry dated August 20, 1985 
 
            contains the following statement:  "[O]ne less person on 
 
            job--doing jowls alone."  An entry dated April 15, 1988 
 
            reports that Edward complained that his hands were numb 
 
            (exhibit 7b, page 17).
 
            
 
                 The May 20, 1988 fall and injury to Edward's knees and 
 
            back is well documented by an entry found at page 17 of 
 
            exhibit 7b.  Subsequent entries show continuing problems 
 
            with his right knee and physical therapy for the knee 
 
            running through September 12, 1988 (exhibit 9a, pages 1-4).
 
            
 
                 The fall of November 16, 1988 is well documented at 
 
            page 18 of exhibit 7b.  Edward was administered physical 
 
            therapy following that incident running through December 13, 
 
            1988 (exhibit 9b, pages 1-3).
 
            
 
                 It is found that the employer's assertion that it did 
 
            not have notice of the May 20, 1988 and November 16, 1988 
 
            incidents is clearly lacking of any basis whatsoever in 
 
            fact.  The nurse's notes, by themselves, are clearly enough 
 
            to give any reasonably conscientious manager a basis for 
 
            recognizing the potential for a workers' compensation claim 
 
            to arise from each of those two incidents.  The nurse's 
 
            notes likewise give adequate notice of the potential for a 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            
 
            
 
            workers' compensation claim based upon the condition of 
 
            Edward's hands, left arm and shoulder.  The employer 
 
            certainly knew that January 6, 1989 was Edward's last day of 
 
            work.
 
            
 
                 Edward eventually sought medical treatment from Scott 
 
            B. Neff, D.O., and William R. Boulden, M.D.  Edward was 
 
            found to have severe degeneration in his spine which, in 
 
            accordance with the evidence from Dr. Neff, will worsen with 
 
            time.  The rate at which it worsens will be accelerated if 
 
            Edward performs hard, repetitive work in comparison to the 
 
            rate at which it will worsen if he is relatively sedentary.  
 
            Edward has also been found to have degenerative changes in 
 
            his left shoulder and in his right knee.  Edward likewise 
 
            was diagnosed as having carpal tunnel syndrome in his left 
 
            hand.
 
            
 
                 On September 5, 1989, Dr. Neff performed carpal tunnel 
 
            release surgery and injected Edward's left elbow in order to 
 
            relieve symptoms (exhibit 4, pages 1 and 2).  Dr. Neff 
 
            indicated that by October 16, 1989, he had released Edward 
 
            from the surgery and authorized him to obtain work using a 
 
            splint to protect the wrist temporarily (exhibits 2g and 
 
            2h).
 
            
 
                 According to Dr. Neff, the carpal tunnel syndrome was 
 
            due to Edward's repetitive hand and wrist work activity 
 
            (exhibit 2c).  Dr. Neff stated that the degenerative changes 
 
            in Edward's left shoulder were contributed to by his 
 
            employment [exhibits 2l(2) and 2q].  On December 19, 1990, 
 
            Dr. Neff explained that Edward's degenerative condition is 
 
            due to a combination of aging, cumulative trauma, repetitive 
 
            activity and a series of documented injuries such as those 
 
            reported for May 5, 1988 and November 1988 (exhibit 2s).
 
            
 
                 Drs. Neff and Boulden indicated that Edward is unable 
 
            to do any physical labor and that he should avoid bending, 
 
            lifting and twisting with his back.  It was also indicated 
 
            that he should avoid prolonged sitting, standing or walking 
 
            [exhibit 2l(2)].  Dr. Neff reported in August 1990 that 
 
            Edward is not qualified for either light or sedentary work.  
 
            He related that Edward cannot lift even 20 pounds 
 
            occasionally or carry even 10 pounds frequently.  He again 
 
            reiterated that Edward's condition is permanent and will 
 
            worsen (exhibits 2q and 2r).
 
            
 
                 With the assistance of Thomas Bower, L.P.T., Edward was 
 
            rated as having a 36 percent permanent partial impairment of 
 
            the body as a whole by Drs. Neff and Boulden (exhibits 5b, 
 
            5c and 2q).
 
            
 
                 The assessment of this case as made and explained by 
 
            Dr. Neff is uncontradicted and is found to be correct.  In 
 
            that regard, it is found that, while Edward experienced 
 
            trauma on May 20, 1988 and November 16, 1988, neither of 
 
            those traumas, individually, produced any significant 
 
            portion of the disability which currently afflicts him.  To 
 
            the contrary, all the disability which currently afflicts 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            
 
            
 
            Edward Carney is found to have resulted from the 
 
            accumulation of all those relatively minor individual 
 
            traumas and repetitive activity to which he was subjected 
 
            during his years of employment with Oscar Mayer Foods 
 
            Corporation.  The disability caused by those factors 
 
            includes the right knee, left shoulder, left carpal tunnel 
 
            syndrome and spinal degenerative disc disease.
 
            
 
                 Jeff Johnson, a qualified vocational consultant, 
 
            testified that, in his opinion, Edward Carney is not now 
 
            employable and will not become employable in the future.  He 
 
            stated that the only avenue of retraining for Edward would 
 
            be state vocational rehabilitation, but that, in his 
 
            opinion, Edward would not meet the criteria for entry into a 
 
            retraining program.
 
            
 
                 In addition to his physical injuries, Edward is also 
 
            depressed as a result of the physical injuries and his 
 
            inability to work.  Psychologist Todd F. Hines has stated 
 
            that Edward has a dysthymic disorder.  According to exhibit 
 
            F, the condition might actually be major depression, but the 
 
            primary difference between the two diagnoses is the length 
 
            of time that the condition has existed.  Hines initially 
 
            evaluated Edward in December of 1990, a time which was 
 
            approximately 23 months following Edward's last day of work.  
 
            The date at which the depressive symptoms had their onset is 
 
            not specified in the record.  It could have been either 
 
            prior or subsequent to Edward's last day of work.  Hines 
 
            felt that Edward's prognosis for recovery was guarded to 
 
            poor.  He recommended that Edward be treated by a 
 
            psychiatrist.  Hines also stated that Edward was presently 
 
            unable to work due to his psychological status.  The 
 
            assessment made by Hines in this case is uncontradicted and 
 
            is found to be correct.
 
            
 
                 It is found that Edward Carney was a very dedicated 
 
            worker who often worked despite pain and injuries as shown 
 
            by his attendance record.  Between 1970 and 1987, he was 
 
            commended for perfect or near-perfect attendance in all but 
 
            two of the years.
 
            
 
                 According to the evidence in the record, the only 
 
            medical documentation of a period of recovery is that which 
 
            commences with Edward's September 5, 1989 surgery and ends 
 
            on October 15, 1989 consistent with his release from Dr. 
 
            Neff to resume work on October 16, 1989 (exhibit 4, pages 1 
 
            and 2; exhibit 2g; exhibit 2h).  The span is five and 
 
            six-sevenths weeks.
 
            
 
                 It is further found that Edward did not make any 
 
            substantial recuperation from his condition following the 
 
            day he left work on January 6, 1989 other than for that 
 
            associated with the carpal tunnel surgery.
 
            
 
                 Edward has made an extensive search for employment, but 
 
            found none (exhibit 15).  Even Oscar Mayer refused to hire 
 
            him to work at its Davenport plant.
 
            
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            
 
            
 
                 Edward incurred expenses with medical service 
 
            providers.  In that regard, it is found that the employer 
 
            had denied all liability for all of the conditions affecting 
 
            Edward until it amended its answer on October 12, 1990 to 
 
            admit liability for the hand condition.  While counsel for 
 
            the employer indicated in June of 1989 that treatment by Dr. 
 
            Neff was unauthorized, there is nothing in the record which 
 
            indicates who was authorized at that point in time.  The 
 
            situation which existed was that the employer was denying 
 
            responsibility, yet seeking to control the care by denying 
 
            authorization for the physician Edward had selected without 
 
            telling Edward what physician he should consult (exhibit 
 
            12c).  In July 1989, Edward was given notice that an 
 
            evaluation under Iowa Code section 85.39 was to be performed 
 
            by Peter D. Wirtz, M.D.  The notice specifically provided 
 
            that Dr. Wirtz was to perform an examination.  It did not 
 
            identify Dr. Wirtz as the authorized treating physician.  
 
            The appointment was scheduled for September 6, but Edward 
 
            did not attend as his carpal tunnel surgery was performed by 
 
            Dr. Neff on September 5, 1989.  When notifying the employer 
 
            of the inability to attend on September 6, Edward offered to 
 
            attend at any other reasonable time, but the offer was 
 
            apparently rejected by the employer since no further 
 
            appointments with Dr. Wirtz were scheduled.  On September 5, 
 
            1989, counsel for the employer then denied responsibility 
 
            for payment of treatment performed by Dr. Neff and for 
 
            disability benefits resulting from the treatment (exhibits 
 
            12d through 12g).  On February 14, 1990, counsel for the 
 
            employer notified claimant's attorney that Dr. Wirtz was the 
 
            only physician authorized to treat Edward's carpal tunnel 
 
            complaints (exhibit 12h).  It is noted that the employer 
 
            continued to deny liability and failed to designate an 
 
            authorized physician for any other complaints.  It is also 
 
            noted that all treatment provided for the carpal tunnel 
 
            syndrome had been completed in approximately October 1989, 
 
            approximately four months prior to the time that the 
 
            employer designated an authorized physician for the 
 
            condition.
 
            
 
                 It is found that in this case the employer did not take 
 
            prompt, effective action to designate authorized sources of 
 
            medical care for Edward Carney.
 
            
 
                 It is found that all of the medical expenses incurred 
 
            by Edward Carney were incurred in obtaining reasonable 
 
            treatment for work-related conditions which resulted from 
 
            cumulative trauma injury which had its date of occurrence on 
 
            January 6, 1989, the last day Edward worked for the 
 
            employer.  Those expenses are as follows:
 
            
 
                 Iowa Lutheran Hospital               $2,074.24
 
                 Central Iowa Orthopaedics             1,619.00
 
                 Surgery Center of Des Moines          1,327.50
 
                 Des Moines Anesthesiologists, P.C.      264.00
 
                 Physical Therapy Consultants            485.00
 
                 Todd F. Hines, Ph.D.                    475.00
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            
 
            
 
                 Surgacenter Pathologists                 60.00
 
                 Total                                $6,304.74
 
            
 
                 There is no evidence in the record of the charges made 
 
            by Neuro Associates.  The amount of $1,352.82 has been paid 
 
            by claimant or his attorney.  Oscar Mayer has paid 
 
            $1,890.29.  The unpaid balance is $3,061.63.
 
            
 
                                conclusions of law
 
            
 
                 Claimant has the burden of proving by a preponderance 
 
            of the evidence that he received injury 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. Cent. 
 
            Tel. Co., 261 Iowa 352, 154 N.W.2d 128 (1967). 
 
            
 
                 An employer takes an employee subject to any active or 
 
            dormant health impairments, and a work connected injury 
 
            which more than slightly aggravates the condition is 
 
            considered to be a personal injury.  Ziegler v. United 
 
            States Gypsum Co., 252 Iowa 613, 620, 106 N.W.2d 591 (1960), 
 
            and cases cited.
 
            
 
                 Edward has proved, by a preponderance of the evidence, 
 
            that he sustained multiple injuries through a cumulative 
 
            injury process which ended with his last day of work of 
 
            January 6, 1989.  His testimony, which is determined to be 
 
            credible, establishes that he was not physically capable of 
 
            performing his normal work after that date, even though his 
 
            testimony is not directly corroborated by medical testimony.  
 
            His testimony is corroborated indirectly by medical 
 
            testimony from Dr. Neff which indicates that he should not 
 
            return to packinghouse labor and should not perform certain 
 
            activities which were part of his employment at Oscar Mayer.  
 
            When injury results from cumulative trauma, it is the last 
 
            day of work before the onset of disability which is the date 
 
            of injury.  McKeever Custom Cabinets v. Smith, 379 N.W.2d 
 
            368 (Iowa 1985).  In this case, for purposes of determining 
 
            permanent disability, there is but one injury, namely the 
 
            injury of January 6, 1989.  The two other injury dates which 
 
            were alleged are merely dates of trauma similar to those 
 
            found in McKeever.  In this case, the date of injury is 
 
            January 6, 1989 for purposes of workers' compensation 
 
            benefits.
 
            
 
                 The injury in this case is one cumulative injury which 
 
            affects multiple parts of Edward's body, including his back.  
 
            It is therefore an injury to the body as a whole.  An 
 
            employee cannot recover healing period compensation and 
 
            permanent partial disability compensation concurrently based 
 
            upon the same injury.
 
            
 
                 If claimant has an impairment to the body as a whole, 
 
            an industrial disability has been sustained.  Industrial 
 
            disability was defined in Diederich v. Tri-City Railway Co., 
 
            219 Iowa 587, 593, 258 N.W.2d 899, 902 (1935) as follows: 
 
            "It is therefore plain that the legislature intended the 
 
            term `disability' to mean `industrial disability' or loss of 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            
 
            
 
            earning capacity and not a mere `functional disability' to 
 
            be computed in the terms of percentages of the total 
 
            physical and mental ability of a normal man."
 
            
 
                 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, 
 
            experience and inability to engage in employment for which 
 
            he is fitted.  Olson v. Goodyear Service Stores, 255 Iowa 
 
            1112, 1121, 125 N.W.2d 251, 257 (1963).
 
            
 
                 Industrial disability or loss of earning capacity is a 
 
            concept that is quite similar to impairment of earning 
 
            capacity, an element of damage in a tort case.  Impairment 
 
            of physical capacity creates an inference of lessened 
 
            earning capacity.  The basic element to be determined, 
 
            however, is the reduction in value of the general earning 
 
            capacity of the person, rather than the loss of wages or 
 
            earnings in a specific occupation.  Post-injury earnings 
 
            create a presumption of earning capacity.  The earnings are 
 
            not synonymous with earning capacity and the presumption may 
 
            be rebutted by evidence showing the earnings to be an 
 
            unreliable indicator.  DeWall v. Prentice, 224 N.W.2d 428, 
 
            435 (Iowa 1974); Carradus v. Lange, 203 N.W.2d 565 (Iowa 
 
            1973); Holmquist v. Volkswagon of America, Inc., 261 N.W.2d 
 
            516 (Iowa App. 1977) A.L.R.3d 143; Michael v. Harrison 
 
            County, Thirty-fourth Biennial Report of the Industrial 
 
            Commissioner 218 (1979); 2 Larson Workmen's Compensation 
 
            Law, sections 57.21 and 57.31.
 
            
 
                 When Edward's age, level of educational achievement, 
 
            work history and identified vocational skills are considered 
 
            in connection with the activity restrictions recommended by 
 
            Drs. Neff and Boulden, it is quite clear that he is severely 
 
            disabled.  There are few individuals in our society whose 
 
            earning capacity is absolute zero.  The true test, however, 
 
            for permanent total disability is whether the person has the 
 
            ability to earn sufficient income to be self-supporting.  
 
            When the combination of factors considered in determining 
 
            industrial disability precludes the worker from obtaining 
 
            regular employment in which the worker can earn a living for 
 
            himself, his disability is total.  Guyton v. Irving Jensen 
 
            Co., 373 N.W.2d 101, 103 (Iowa 1985); McSpadden v. Big Ben 
 
            Coal Co., 288 N.W.2d 181, 192 (Iowa 1980); Diederich v. 
 
            Tri-City Ry. Co., 219 Iowa 587, 594, 258 N.W. 899, 902 
 
            (1935).  It is determined that Edward J. Carney is 
 
            permanently totally disabled within the meaning of Iowa Code 
 
            section 85.34(3) as a result of the January 6, 1989 injury.  
 
            This entitles him to recover compensation payable at the 
 
            stipulated rate of $240.33 per week commencing January 7, 
 
            1989.  Since the award in this case is for total disability, 
 
            no healing period compensation is payable on account of the 
 
            carpal tunnel surgery.
 
            
 
                 There is no evidence in the record of any preexisting 
 
            disability, which was caused by something other than his 
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            
 
            
 
            work, which would form the basis for apportionment of that 
 
            disability.  Tussing v. George A. Hormel & Co., 461 N.W.2d 
 
            450 (Iowa 1990); Bearce v. FMC Corp., 465 N.W.2d 531 (Iowa 
 
            App. 1991); Varied Enterprises, Inc. v. Sumner, 353 N.W.2d 
 
            407 (Iowa 1984).
 
            Even if there were evidence of nonwork-related preexisting 
 
            industrial disability, rather than mere degenerative 
 
            changes, the result would not change.  Aggravation of a 
 
            preexisting condition is one form of compensable injury.  
 
            While a claimant is not entitled to compensation for the 
 
            results of a preexisting injury or disease, the mere 
 
            existence at the time of a subsequent injury is not a 
 
            defense.  Rose v. John Deere Ottumwa Works, 247 Iowa 900, 
 
            908, 76 N.W.2d 756, 760-61 (1956).  If the claimant had a 
 
            preexisting condition or disability that is aggravated, 
 
            accelerated, worsened or lighted up so that it results in 
 
            disability, claimant is entitled to recover.  Nicks v. 
 
            Davenport Produce Co., 254 Iowa 130, 115 N.W.2d 812, 815 
 
            (1962).
 
            
 
                 Where total disability is the result, there is no way 
 
            to apportion out preexisting disability since any method of 
 
            doing so defeats the beneficent purpose of workers' 
 
            compensation laws by denying or reducing benefits at a time 
 
            when the employee has no means to work and earn a living to 
 
            support himself, a time when the need is the greatest.
 
            
 
                   The employer's defense under section 85.23 regarding 
 
            lack of notice is clearly without merit.  Dillinger v. City 
 
            of Sioux City, 368 N.W.2d 176 (Iowa 1985).
 
            
 
                 The employer seeks to avoid liability for Edward's 
 
            medical expenses based upon lack of authorization.  Its 
 
            defense is without merit since the employer does not have 
 
            the right to direct the medical care if the employer is also 
 
            denying liability for the condition.  Barnhart v. MAQ, Inc., 
 
            I Iowa Industrial Commissioner Report 16 (App. Decn. 1981).  
 
            Most, if not all, of the medical expenses claimed in this 
 
            case were incurred prior to the time that Dr. Wirtz was 
 
            designated as the authorized physician for the carpal tunnel 
 
            condition.  The employer has not, even to this date, 
 
            attempted to authorize a physician for treating claimant's 
 
            other conditions.  The right to select the care carries with 
 
            it the obligation to offer care.  All the treatment for the 
 
            carpal tunnel condition had been completed long before the 
 
            employer designated the authorized physician.  Accordingly, 
 
            the defense of lack of authorization fails.  The employer is 
 
            responsible for all of claimant's medical expenses in the 
 
            total amount of $6,304.74.  Of that total, $1,352.82 shall 
 
            be paid to the claimant as reimbursement of expenses which 
 
            have been paid by claimant and his counsel.  The employer is 
 
            entitled to credit in the amount of $1,890.29 towards the 
 
            expenses for the amounts it has previously paid.  The 
 
            remaining balance of $3,061.63 is the responsibility of the 
 
            employer, together with any costs of increase which have 
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
            
 
            
 
            occurred as a result of lack of timely payment.  An 
 
            inference exists that, where treatment is provided by a 
 
            licensed professional, whatever treatment is administered is 
 
            reasonable in relation to the condition which is being 
 
            treated.  It was stipulated in the prehearing report that 
 
            all providers of medical services would testify that the 
 
            amount of their charges was fair and reasonable.
 
            
 
                 Claimant seeks a penalty under the fourth unnumbered 
 
            paragraph of Code section 86.13 based upon the allegedly 
 
            unreasonable denial of compensation and failure to pay 
 
            compensation in a timely manner.  Under the record made, no 
 
            weekly compensation has been paid to the claimant.  Section 
 
            85.39 provides no defense since the claimant's failure to 
 
            attend the scheduled examination was not a willful refusal.  
 
            It was the first day following his scheduled carpal tunnel 
 
            surgery.  In fact, claimant promptly notified the employer 
 
            of his conflict and inability to attend the appointment with 
 
            Dr. Wirtz on September 6 and offered to attend at some other 
 
            time.  The employer did not seek to reschedule.  There was 
 
            no basis for denying compensation due to claimant's failure 
 
            to attend the September 6, 1989 meeting with Dr. Wirtz.
 
            
 
                 All the expert evidence in the record of this case 
 
            supports claimant's claim.  There is not a single 
 
            conflicting opinion regarding his physical or emotional 
 
            disability.  There is no conflicting evidence regarding his 
 
            vocational status.  Apparently, the employer had hoped that 
 
            all the expert testimony and medical evidence in the record 
 
            would be for some unknown reason rejected.  Such would be 
 
            the only manner in which this claimant's claim could have 
 
            been denied.  It would also have been error since unrebutted 
 
            expert testimony cannot be arbitrarily rejected and the 
 
            record in this case provides no basis for rejecting the 
 
            evidence from Dr. Neff or psychologist Hines.  Leffler v. 
 
            Wilson & Co., 320 N.W.2d 634 (Iowa App. 1982).
 
            
 
                 The agency has long held that there is no need to give 
 
            notice under section 85.23 as to each and every ailment, 
 
            only the fact of injury.  Moudry v. Protivin Fire Dep't, 
 
            file number 753632 (App. Decn., August 16, 1988).  The 
 
            employer's own medical records clearly refute any defense 
 
            under section 85.23 of The Code.  On the other hand, the 
 
            record does not show the point in time at which claimant 
 
            first made his claim to the employer.  An employer cannot be 
 
            held to have acted unreasonably for failing to pay a claim 
 
            before the claim is made.  After a claim is made, an 
 
            employer is entitled to a reasonable amount of time in which 
 
            to investigate.  An employer is not required to speculate 
 
            regarding what the doctor's assessment of a case will be 
 
            until such time as that assessment is clearly and concisely 
 
            made.  It is found that, in this case, it was not until 
 
            December 19, 1990 that Dr. Neff clearly espoused his opinion 
 
            on causation as found in exhibit 2s.  The hearing in this 
 
            case was conducted on January 28, 1991.  In view of the 
 

 
            
 
            Page  11
 
            
 
            
 
            
 
            
 
            
 
            
 
            timing and sequence of events, it is determined that it was 
 
            not unreasonable for Oscar Mayer Foods Corporation to refuse 
 
            to pay weekly compensation to Edward J. Carney, other than 
 
            for the compensation associated with the admitted carpal 
 
            tunnel surgery.  Even when all facts are viewed in the light 
 
            most favorable to the employer, there is simply no 
 
            justification for the employer's failure to pay compensation 
 
            for the carpal tunnel surgery.  It is therefore determined 
 
            that claimant is entitled to recover two weeks of 
 
            compensation under section 86.13 with the same being payable 
 
            October 16, 1989.  This is an amount slightly less than 50 
 
            percent of the amount which was clearly due for healing 
 
            period, but was unreasonably denied.  An additional penalty 
 
            is due based upon the failure to pay permanent partial 
 
            disability for an amount equal to the scheduled member 
 
            permanent impairment.  The impairment is rated at five 
 
            percent of the left upper extremity.  Five percent of 250 
 
            weeks is 12.5 weeks.  An additional six weeks of penalty 
 
            benefits should therefore be awarded.  Claimant is therefore 
 
            entitled to recover an additional eight weeks of penalty 
 
            benefits for the employer's unreasonable failure to pay 
 
            compensation for the admitted carpal tunnel condition.
 
            
 
                                      order
 
            
 
                 IT IS THEREFORE ORDERED that Oscar Mayer Foods 
 
            Corporation pay Edward J. Carney weekly compensation for 
 
            permanent total disability at the rate of two hundred forty 
 
            and 33/100 dollars ($240.33) per week payable commencing 
 
            January 7, 1989 and continuing thereafter for so much of 
 
            Carney's life as he remains totally disabled.
 
            
 
                 IT IS FURTHER ORDERED that Oscar Mayer Foods 
 
            Corporation pay Edward J. Carney eight (8) weeks of 
 
            compensation [one thousand nine hundred twenty-two and 
 
            64/100 dollars ($1,922.64)] as and for a penalty for the 
 
            unreasonable failure to pay compensation under Code section 
 
            86.13(4) with said amount being payable on the date of this 
 
            decision.
 
            
 
                 IT IS FURTHER ORDERED that all past due accrued amounts 
 
            shall be paid to the claimant in a lump sum together with 
 
            interest pursuant to Code section 85.30 computed from the 
 
            date each weekly payment came due until the date of actual 
 
            payment.
 
            
 
                 IT IS FURTHER ORDERED that Oscar Mayer Foods 
 
            Corporation pay the following medical expenses:
 
            
 
                 Iowa Lutheran Hospital               $2,074.24
 
                 Central Iowa Orthopaedics             1,619.00
 
                 Surgery Center of Des Moines          1,327.50
 
                 Des Moines Anesthesiologists, P.C.      264.00
 
                 Physical Therapy Consultants            485.00
 
                 Todd F. Hines, Ph.D.                    475.00
 
                 Surgacenter Pathologists                 60.00
 
                 Total                                $6,304.74
 

 
            
 
            Page  12
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            Of the foregoing amount, the employer shall pay the sum of 
 
            one thousand three hundred fifty-two and 82/100 dollars 
 
            ($1,352.82) to claimant as reimbursement for expenses paid 
 
            by claimant.  The remaining unpaid amount of each bill, 
 
            together with any costs of increase, shall be paid in full 
 
            by the employer and the employer shall hold the claimant 
 
            harmless from any and all attempts to collect those bills.
 
            
 
                 IT IS FURTHER ORDERED that the costs of all three 
 
            actions are assessed against the employer pursuant to rule 
 
            343 IAC 4.33 even though all benefits have been awarded 
 
            under file number 931140.
 
            
 
                 IT IS FURTHER ORDERED that Oscar Mayer Foods 
 
            Corporation shall file claim activity reports as requested 
 
            by this agency pursuant to rule 343 IAC 3.1.
 
            
 
                 Signed and filed this ______ day of ____________, 1991.
 
            
 
                 
 
            
 
                 
 
                 
 
                                          ______________________________
 
                                          MICHAEL G. TRIER
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Steven C. Jayne
 
            Attorney at Law
 
            5835 Grand Avenue
 
            Suite 201
 
            Des Moines, Iowa  50312
 
            
 
            Mr. Harry W. Dahl
 
            Attorney at Law
 
            974 73rd Street
 
            Suite 16
 
            Des Moines, Iowa  50312
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                        :
 
            EDWARD J. CARNEY,     :        File Nos. 931138
 
                        :                  931139
 
                 Claimant,   :                  931140
 
                        :
 
            vs.         :          RULING ON
 
                        :
 
            OSCAR MAYER FOODS CORPORATION,  :       APPLICATION FOR
 
                        :
 
                 Employer,   :          REHEARING
 
                 Self-Insured,    :
 
                 Defendant.       :
 
            ____________________________________________________________
 
            The Application for Rehearing filed May 9, 1991 has been 
 
            reviewed.  The evidence received has been examined.  While 
 
            the Table of Contents of the packet of exhibits makes 
 
            reference to an exhibit 10(b), no such exhibit is contained 
 
            within the materials received into evidence.  Since the 
 
            exhibit does not appear in the record of this case, it 
 
            cannot be used as a basis for rehearing.
 
            IT IS THEREFORE ORDERED that claimant's Application for 
 
            Rehearing is denied.
 
            Signed and filed this ______ day of ____________, 1991.
 
            
 
            
 
                 
 
                                          ______________________________
 
                                          MICHAEL G. TRIER
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Steven C. Jayne
 
            Attorney at Law
 
            5835 Grand Avenue
 
            Suite 201
 
            Des Moines, Iowa  50312
 
            
 
            Mr. Harry W. Dahl
 
            Attorney at Law
 
            974 73rd Street
 
            Suite 16
 
            Des Moines, Iowa  50312
 
            
 
 
            
 
            
 
            
 
            
 
            
 
            
 
                      BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
            EDWARD J. CARNEY,               :
 
                                            :
 
                 Claimant,                  :      File Nos. 
 
                                                             931138/931139
 
                                            :                931140
 
            vs.                             :
 
                                            :             A P P E A L
 
            OSCAR MAYER FOODS CORPORATION,  :
 
                                            :           D E C I S I O N
 
                 Employer,                  :
 
                 Self-Insured,              :
 
                 Defendant.                 :
 
            ____________________________________________________________
 
            
 
                 The record, including the transcript of the hearing 
 
            before the deputy and all exhibits admitted into the record, 
 
            has been reviewed de novo on appeal.
 
            
 
                 Those portions of the proposed agency decision 
 
            pertaining to issues not raised on appeal are adopted as a 
 
            part of this appeal decision.  The issues raised on appeal 
 
            are: 
 
            
 
                 I.  The deputy erred in awarding permanent 
 
                 disability benefits.
 
            
 
                 II.  The deputy erred in awarding an 86.13 
 
                 penalty.
 
            
 
                 III.  The deputy erred in finding that the 
 
                 employer was responsible for the cost of Dr. 
 
                 Neff's unauthorized treatment.
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 The findings of fact contained in the proposed agency 
 
            decision filed May 6, 1991 are adopted as final agency 
 
            action.
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                 Claimant has the burden of proving by a preponderance 
 
            of the evidence that he received injury 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. Cent. 
 
            Tel. Co., 261 Iowa 352, 154 N.W.2d 128 (1967). 
 
            
 
                 An employer takes an employee subject to any active or 
 
            dormant health impairments, and a work connected injury 
 
            which more than slightly aggravates the condition is 
 
            considered to be a personal injury.  Ziegler v. United 
 
            States Gypsum Co., 252 Iowa 613, 620, 106 N.W.2d 591 (1960), 
 
            and cases cited.
 
            
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
                 Claimant has proved, by a preponderance of the 
 
            evidence, that he sustained multiple injuries through a 
 
            cumulative injury process which ended with his last day of 
 
            work of January 6, 1989.  His testimony, which is determined 
 
            to be credible, establishes that he was not physically 
 
            capable of performing his normal work after that date, even 
 
            though his testimony is not directly corroborated by medical 
 
            testimony.  His testimony is corroborated indirectly by 
 
            medical testimony from Dr. Neff which indicates that he 
 
            should not return to packinghouse labor and should not 
 
            perform certain activities which were part of his employment 
 
            at Oscar Mayer.  When injury results from cumulative trauma, 
 
            it is the last day of work before the onset of disability 
 
            which is the date of injury.  McKeever Custom Cabinets v. 
 
            Smith, 379 N.W.2d 368 (Iowa 1985).  In this case, for 
 
            purposes of determining permanent disability, there is but 
 
            one injury, namely the injury of January 6, 1989.  The two 
 
            other injury dates which were alleged are merely dates of 
 
            trauma similar to those found in McKeever.  In this case, 
 
            the date of injury is January 6, 1989 for purposes of 
 
            workers' compensation benefits.
 
            
 
                 The injury in this case is one cumulative injury which 
 
            affects multiple parts of claimant's body, including his 
 
            back.  It is therefore an injury to the body as a whole.  An 
 
            employee cannot recover healing period compensation and 
 
            permanent partial disability compensation concurrently based 
 
            upon the same injury.
 
            
 
                 If claimant has an impairment to the body as a whole, 
 
            an industrial disability has been sustained.  Industrial 
 
            disability was defined in Diederich v. Tri-City Railway Co., 
 
            219 Iowa 587, 593, 258 N.W.2d 899, 902 (1935) as follows: 
 
            "It is therefore plain that the legislature intended the 
 
            term `disability' to mean `industrial disability' or loss of 
 
            earning capacity and not a mere `functional disability' to 
 
            be computed in the terms of percentages of the total 
 
            physical and mental ability of a normal man."
 
            
 
                 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, 
 
            experience and inability to engage in employment for which 
 
            he is fitted.  Olson v. Goodyear Service Stores, 255 Iowa 
 
            1112, 1121, 125 N.W.2d 251, 257 (1963).
 
            
 
                 Industrial disability or loss of earning capacity is a 
 
            concept that is quite similar to impairment of earning 
 
            capacity, an element of damage in a tort case.  Impairment 
 
            of physical capacity creates an inference of lessened 
 
            earning capacity.  The basic element to be determined, 
 
            however, is the reduction in value of the general earning 
 
            capacity of the person, rather than the loss of wages or 
 
            earnings in a specific occupation.  Post-injury earnings 
 
            create a presumption of earning capacity.  The earnings are 
 
            not synonymous with earning capacity and the presumption may 
 
            be rebutted by evidence showing the earnings to be an 
 
            unreliable indicator.  DeWall v. Prentice, 224 N.W.2d 428, 
 
            435 (Iowa 1974); Carradus v. Lange, 203 N.W.2d 565 (Iowa 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            1973); Holmquist v. Volkswagon of America, Inc., 261 N.W.2d 
 
            516 (Iowa App. 1977) A.L.R.3d 143; Michael v. Harrison 
 
            County, Thirty-fourth Biennial Report of the Industrial 
 
            Commissioner 218 (1979); 2 Larson Workmen's Compensation 
 
            Law, sections 57.21 and 57.31.
 
            
 
                 When claimant's age, level of educational achievement, 
 
            work history and identified vocational skills are considered 
 
            in connection with the activity restrictions recommended by 
 
            Drs. Neff and Boulden, it is quite clear that he is severely 
 
            disabled.  There are few individuals in our society whose 
 
            earning capacity is absolute zero.  *****  When the 
 
            combination of factors considered in determining industrial 
 
            disability precludes the worker from obtaining regular 
 
            employment in which the worker can earn a living for 
 
            himself, his disability is total.  Guyton v. Irving Jensen 
 
            Co., 373 N.W.2d 101, 103 (Iowa 1985); McSpadden v. Big Ben 
 
            Coal Co., 288 N.W.2d 181, 192 (Iowa 1980); Diederich v. 
 
            Tri-City Ry. Co., 219 Iowa 587, 594, 258 N.W. 899, 902 
 
            (1935).  It is determined that claimant is permanently 
 
            totally disabled within the meaning of Iowa Code section 
 
            85.34(3) as a result of the January 6, 1989 injury.  This 
 
            entitles him to recover compensation payable at the 
 
            stipulated rate of $240.33 per week commencing January 7, 
 
            1989.  Since the award in this case is for total disability, 
 
            no healing period compensation is payable on account of the 
 
            carpal tunnel surgery.
 
            
 
                 There is no evidence in the record of any preexisting 
 
            disability, which was caused by something other than his 
 
            work, which would form the basis for apportionment of that 
 
            disability.  Tussing v. George A. Hormel & Co., 461 N.W.2d 
 
            450 (Iowa 1990); Bearce v. FMC Corp., 465 N.W.2d 531 (Iowa 
 
            App. 1991); Varied Enterprises, Inc. v. Sumner, 353 N.W.2d 
 
            407 (Iowa 1984).
 
            
 
                 Even if there were evidence of nonwork-related 
 
            preexisting industrial disability, rather than mere 
 
            degenerative changes, the result would not change.  
 
            Aggravation of a preexisting condition is one form of 
 
            compensable injury.  While a claimant is not entitled to 
 
            compensation for the results of a preexisting injury or 
 
            disease, the mere existence at the time of a subsequent 
 
            injury is not a defense.  Rose v. John Deere Ottumwa Works, 
 
            247 Iowa 900, 908, 76 N.W.2d 756, 760-61 (1956).  If the 
 
            claimant had a preexisting condition or disability that is 
 
            aggravated, accelerated, worsened or lighted up so that it 
 
            results in disability, claimant is entitled to recover.  
 
            Nicks v. Davenport Produce Co., 254 Iowa 130, 115 N.W.2d 
 
            812, 815 (1962).
 
            
 
                 Where total disability is the result, there is no way 
 
            to apportion out preexisting disability since any method of 
 
            doing so defeats the beneficent purpose of workers' 
 
            compensation laws by denying or reducing benefits at a time 
 
            when the employee has no means to work and earn a living to 
 
            support himself, a time when the need is the greatest.
 
            
 
                   The employer's defense under Iowa Code section 85.23 
 
            regarding lack of notice is clearly without merit.  
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            Dillinger v. City of Sioux City, 368 N.W.2d 176 (Iowa 
 
            1985).
 
            
 
                 The employer seeks to avoid liability for claimant's 
 
            medical expenses based upon lack of authorization.  Its 
 
            defense is without merit since the employer does not have 
 
            the right to direct the medical care if the employer is also 
 
            denying liability for the condition.  Barnhart v. MAQ, Inc., 
 
            I Iowa Industrial Commissioner Report 16 (App. Decn. 1981).  
 
            Most, if not all, of the medical expenses claimed in this 
 
            case were incurred prior to the time that Dr. Wirtz was 
 
            designated as the authorized physician for the carpal tunnel 
 
            condition.  The employer has not, even to this date, 
 
            attempted to authorize a physician for treating claimant's 
 
            other conditions.  The right to select the care carries with 
 
            it the obligation to offer care.  All the treatment for the 
 
            carpal tunnel condition had been completed long before the 
 
            employer designated the authorized physician.  Accordingly, 
 
            the defense of lack of authorization fails.  The employer is 
 
            responsible for all of claimant's medical expenses in the 
 
            total amount of $6,304.74.  Of that total, $1,352.82 shall 
 
            be paid to the claimant as reimbursement of expenses which 
 
            have been paid by claimant and his counsel.  The employer is 
 
            entitled to credit in the amount of $1,890.29 towards the 
 
            expenses for the amounts it has previously paid.  The 
 
            remaining balance of $3,061.63 is the responsibility of the 
 
            employer *****.  An inference exists that, where treatment 
 
            is provided by a licensed professional, whatever treatment 
 
            is administered is reasonable in relation to the condition 
 
            which is being treated.  It was stipulated in the prehearing 
 
            report that all providers of medical services would testify 
 
            that the amount of their charges was fair and reasonable.
 
            
 
                 Claimant seeks a penalty under the fourth unnumbered 
 
            paragraph of Iowa Code section 86.13 based upon the 
 
            allegedly unreasonable denial of compensation and failure to 
 
            pay compensation in a timely manner.  Under the record made, 
 
            no weekly compensation has been paid to the claimant.  
 
            Section 85.39 provides no defense since the claimant's 
 
            failure to attend the scheduled examination was not a 
 
            willful refusal.  It was the first day following his 
 
            scheduled carpal tunnel surgery.  In fact, claimant promptly 
 
            notified the employer of his conflict and inability to 
 
            attend the appointment with Dr. Wirtz on September 6 and 
 
            offered to attend at some other time.  The employer did not 
 
            seek to reschedule.  There was no basis for denying 
 
            compensation due to claimant's failure to attend the 
 
            September 6, 1989 meeting with Dr. Wirtz.
 
            
 
                 All the expert evidence in the record of this case 
 
            supports claimant's claim.  There is not a single 
 
            conflicting opinion regarding his physical or emotional 
 
            disability.  There is no conflicting evidence regarding his 
 
            vocational status.  Apparently, the employer had hoped that 
 
            all the expert testimony and medical evidence in the record 
 
            would be for some unknown reason rejected.  Such would be 
 
            the only manner in which this claimant's claim could have 
 
            been denied.  It would also have been error since unrebutted 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            expert testimony cannot be arbitrarily rejected and the 
 
            record in this case provides no basis for rejecting the 
 
            evidence from Dr. Neff or psychologist Hines.  Leffler v. 
 
            Wilson & Co., 320 N.W.2d 634 (Iowa App. 1982).
 
            
 
                 The agency has long held that there is no need to give 
 
            notice under section 85.23 as to each and every ailment, 
 
            only the fact of injury.  Moudry v. Protivin Fire Dep't, 
 
            file number 753632 (App. Decn., August 16, 1988).  The 
 
            employer's own medical records clearly refute any defense 
 
            under Iowa Code section 85.23.  On the other hand, the 
 
            record does not show the point in time at which claimant 
 
            first made his claim to the employer.  An employer cannot be 
 
            held to have acted unreasonably for failing to pay a claim 
 
            before the claim is made.  After a claim is made, an 
 
            employer is entitled to a reasonable amount of time in which 
 
            to investigate.  An employer is not required to speculate 
 
            regarding what the doctor's assessment of a case will be 
 
            until such time as that assessment is clearly and concisely 
 
            made.  It is found that, in this case, it was not until 
 
            December 19, 1990 that Dr. Neff clearly espoused his opinion 
 
            on causation as found in exhibit 2s.  The hearing in this 
 
            case was conducted on January 28, 1991.  In view of the 
 
            timing and sequence of events, it is determined that it was 
 
            not unreasonable for Oscar Mayer Foods Corporation to refuse 
 
            to pay weekly compensation to claimant, other than for the 
 
            compensation associated with the admitted carpal tunnel 
 
            surgery.  Even when all facts are viewed in the light most 
 
            favorable to the employer, there is simply no justification 
 
            for the employer's failure to pay compensation for the 
 
            carpal tunnel surgery.  It is therefore determined that 
 
            claimant is entitled to recover two weeks of compensation 
 
            under section 86.13 with the same being payable October 16, 
 
            1989.  This is an amount slightly less than 50 percent of 
 
            the amount which was clearly due for healing period, but was 
 
            unreasonably denied.  An additional penalty is due based 
 
            upon the failure to pay permanent partial disability for an 
 
            amount equal to the scheduled member permanent impairment.  
 
            The impairment is rated at five percent of the left upper 
 
            extremity.  Five percent of 250 weeks is 12.5 weeks.  An 
 
            additional six weeks of penalty benefits should therefore be 
 
            awarded.  Claimant is therefore entitled to recover an 
 
            additional eight weeks of penalty benefits for the 
 
            employer's unreasonable failure to pay compensation for the 
 
            admitted carpal tunnel condition.
 
            
 
                 WHEREFORE, the decision of the deputy is affirmed.
 
            
 
                                      ORDER
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 That Oscar Mayer Foods Corporation pay claimant weekly 
 
            compensation for permanent total disability at the rate of 
 
            two hundred forty and 33/100 dollars ($240.33) per week 
 
            payable commencing January 7, 1989 and continuing thereafter 
 
            for so much of claimant's life as he remains totally 
 
            disabled.
 
            
 
                 That Oscar Mayer Foods Corporation pay claimant eight 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            (8) weeks of compensation [one thousand nine hundred 
 
            twenty-two and 64/100 dollars ($1,922.64)] as and for a 
 
            penalty for the unreasonable failure to pay compensation 
 
            under Code section 86.13(4) with said amount being payable 
 
            on the date of this decision.
 
            
 
                 That all past due accrued amounts shall be paid to the 
 
            claimant in a lump sum together with interest pursuant to 
 
            Iowa Code section 85.30 computed from the date each weekly 
 
            payment came due until the date of actual payment.
 
            
 
                 That Oscar Mayer Foods Corporation pay the following 
 
            medical expenses:
 
            
 
                 Iowa Lutheran Hospital               $2,074.24
 
                 Central Iowa Orthopaedics             1,619.00
 
                 Surgery Center of Des Moines          1,327.50
 
                 Des Moines Anesthesiologists, P.C.      264.00
 
                 Physical Therapy Consultants            485.00
 
                 Todd F. Hines, Ph.D.                    475.00
 
                 Surgacenter Pathologists                 60.00
 
                 Total                                $6,304.74
 
            
 
            Of the foregoing amount, the employer shall pay the sum of 
 
            one thousand three hundred fifty-two and 82/100 dollars 
 
            ($1,352.82) to claimant as reimbursement for expenses paid 
 
            by claimant.  The remaining unpaid amount of each bill shall 
 
            be paid in full by the employer.
 
            
 
                 That defendant shall pay the costs of this matter 
 
            including the transcription of the hearing.  
 
            
 
                 That Oscar Mayer Foods Corporation shall file claim 
 
            activity reports as requested by this agency pursuant to 
 
            rule 343 IAC 3.1.
 
            
 
                 Signed and filed this ____ day of September, 1992.
 
            
 
            
 
            
 
            
 
                                          
 
                                      ________________________________
 
                                                   BYRON K. ORTON
 
                                              INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Steven C. Jayne
 
            Attorney at Law
 
            5835 Grand Avenue, Suite 201
 
            Des Moines, Iowa  50312
 
            
 
            Mr. Harry W. Dahl
 
            Attorney at Law
 
            974 73rd Street, Suite 16
 
            Des Moines, Iowa  50312
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                             1804; 2209; 4000.2
 
                                             Filed September 29, 1992
 
                                             Byron K. Orton
 
            
 
            
 
                      BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
            EDWARD J. CARNEY,               :
 
                                            :
 
                 Claimant,                  :      File Nos. 
 
                                                             931138/931139
 
                                            :                931140
 
            vs.                             :
 
                                            :             A P P E A L
 
            OSCAR MAYER FOODS CORPORATION,  :
 
                                            :           D E C I S I O N
 
                 Employer,                  :
 
                 Self-Insured,              :
 
                 Defendant.                 :
 
            ____________________________________________________________
 
            
 
            1804
 
            Fifty-year-old claimant with multiple repetitive, cumulative 
 
            and minor traumatic injuries awarded permanent total 
 
            disability based upon uncontroverted opinions of vocational 
 
            consultant and treating orthopaedic surgeons.
 
            
 
            2209
 
            Held that last day of work before plant closing was the date 
 
            of injury for cumulative trauma injury sustained by the 
 
            employee over 24 years of employment with the employer.
 
            
 
            4000.2
 
            Failure to pay was not unreasonable where opinions on 
 
            causation were rendered only weeks prior to the date of 
 
            hearing, despite the fact that the claimant's physicians 
 
            were the only ones rendering opinions in the case.
 
            Penalty of nearly 50 percent awarded for failure to pay 
 
            compensation for the portion of the claim which the employer 
 
            admitted.
 
            
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            CHARLES HENDRICKSON,          :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :         File No. 931142
 
            KELLER INDUSTRIES,            :
 
                                          :      A R B I T R A T I O N
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            CIGNA PROPERTY & CASUALTY     :
 
            COMPANY,                      :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding in arbitration brought by Charles 
 
            Hendrickson against his employer Keller Industries based 
 
            upon an injury that occurred on August 6, 1988.  The primary 
 
            issues to be determined are the extent of the claimant's 
 
            entitlement to compensation for healing period and permanent 
 
            partial disability compensation and the rate of compensation 
 
            which is payable for those weekly benefits.
 
            
 
                 The case was heard at Des Moines, Iowa on December 18, 
 
            1990.  The evidence consists of testimony from Charles 
 
            Hendrickson, Susan Hendrickson, Mary Kirchner, joint 
 
            exhibits 1 through 3 and defendants' exhibits A through E.
 
            
 
                                 findings of fact
 
            
 
                 Having considered all the evidence received, together 
 
            with the appearance and demeanor of the witnesses, the 
 
            following findings of fact are made.
 
            
 
                 Charles Hendrickson injured his right knee on August 6, 
 
            1988 while on the employer's premises, performing the duties 
 
            of his employment.  He was placed under medical treatment 
 
            and Leo Kulick, M.D., an orthopaedic surgeon, became his 
 
            primary treating physician (exhibit 2).  Arthroscopic 
 
            surgery was performed on claimant's right knee on August 21, 
 
            1988 (exhibit D, pages 1 and 2).  Initially, it was expected 
 
            that claimant's disability connected with the surgery would 
 
            range from 4-8 weeks (exhibit 2, page 3).  When that time 
 
            had elapsed, however, claimant was not capable of resuming 
 
            work (exhibit 2, page 6).  On November 1, 1988, Dr. Kulick 
 
            reported that claimant could not return to work at his 
 
            previous occupation which had required standing.  He also 
 
            indicated that it was unreasonable to expect any significant 
 
            additional symptomatic improvement in claimant's condition 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            with the passage of time (exhibit 2, page 7).  He then 
 
            referred claimant to Davenport, Iowa orthopaedic surgeon 
 
            Dennis L. Miller, M.D.
 
            
 
                 Charles saw Dr. Miller three days later at which time 
 
            Dr. Miller felt that additional conservative treatment was 
 
            indicated (exhibit B, page 4).  Dr. Miller eventually issued 
 
            a release to allow claimant to return to restricted work on 
 
            February 6, 1989.  The actual return to work occurred on 
 
            February 17, 1989 with claimant working four hours per day 
 
            (exhibit C, pages 6-10).  After one week, claimant resumed 
 
            full-time work (exhibit C, page 10).
 
            
 
                 Knee replacement surgery has been considered, but 
 
            claimant has declined to have it performed at this time.  He 
 
            has elected to remain at his current job which is performed 
 
            from a seated position.  On one occasion, when he resumed 
 
            working in a standing position, his condition was aggravated 
 
            and he was off work from October 25, 1989 through November 
 
            3, 1989, a span of one and three-sevenths weeks (exhibit 2, 
 
            pages 10 and 11).
 
            
 
                 Claimant has considerable residual problems with his 
 
            right knee.  The knee had been previously injured and had 
 
            undergone surgery approximately two years prior to the date 
 
            of the injury which is the basis for this case.  The 
 
            treating physician, Dr. Kulick, felt that claimant had a 15 
 
            percent permanent impairment of the right leg due to this 
 
            injury as well as other impairment from the preexisting 
 
            condition (exhibit 1; exhibit D, pages 4 and 5).  The second 
 
            treating physician, Dr. Miller, opined that claimant has a 
 
            15 percent permanent impairment of his leg of which 5-10 
 
            percent was preexisting.  His reports speak in broad ranges 
 
            rather than with precision (exhibit B).  Examining physician 
 
            W. J. Robb, M.D., felt that claimant had a 12 percent 
 
            permanent impairment of his right leg due to the August 8, 
 
            [sic] 1988 injury (exhibit A).  The range of the opinions 
 
            among the three physicians is not particularly great.  All 
 
            three physicians seem to be equally qualified as orthopaedic 
 
            surgeons.  It is noted that claimant does walk with a cane 
 
            and has a considerable amount of difficulty with his knee, 
 
            circumstances which did not exist prior to the August 6, 
 
            1988 injury.  In view of that fact and the fact that Dr. 
 
            Kulick is the most familiar with claimant's knee, the rating 
 
            from Dr. Kulick is adopted.
 
            
 
                 There are two exhibits in the record which show 
 
            claimant's earnings.  They are exhibits E and pages 2-4 of 
 
            exhibit 3.  Exhibit E appears to be a compilation while 
 
            exhibit 3 contains copies of actual business records.  There 
 
            are some inconsistencies between the two.  In view of that 
 
            fact, the actual business records are relied upon as being 
 
            correct.  It is particularly noted that the last pay period 
 
            on the business records shows claimant to have been earning 
 
            at the rate of $4.10 per hour.  It is also noted that the 
 
            compilation, exhibit E, includes overtime pay at the rate of 
 
            time and one-half, rather than at the straight time rate.  
 
            Exhibit E likewise does not contain the bonus which was paid 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            for most of the weeks during the period which is considered.  
 
            It is specifically found that the bonus was regular and 
 
            recurring.  While it was adopted voluntarily by the employer 
 
            and was ultimately discontinued at the discretion of the 
 
            employer, the bonus payment plan was a standing company 
 
            policy.  The payments under it were made according to a 
 
            mathematical formula based upon plant production.  When 
 
            comparing exhibit E with exhibit 3, it should be noted that 
 
            the date in the left column of exhibit 3 is eight days later 
 
            than the date of the similar earning period shown in exhibit 
 
            E.  For example, the date of 8/12 in exhibit 3 reports the 
 
            same period of earnings as the date 8/4/88 in exhibit E.  
 
            The weeks which the employer had indicated should not be 
 
            considered were in fact weeks when claimant was absent from 
 
            work at times when work was available to the other 
 
            employees.  A summary of claimant's earnings from regular 
 
            work, overtime work at the straight hourly pay rate, and 
 
            bonus follows:
 
            
 
                  Date         Regular   Overtime    Bonus       Total
 
                 August 12     $164.00    $65.60    $  0      $  229.60
 
                 August 5       160.00     20.00     14.63       194.63
 
                 July 29        160.00     32.00     18.93       210.93
 
                 July 22        160.00       0       15.52       175.52
 
                 July 15        160.00       0       11.78       171.78
 
                 July 8         143.20     35.80     18.90       197.90
 
                 June 24        143.20       0       15.61       158.81
 
                 June 10        136.04       0       12.89       148.93
 
                 June 3         143.20       0       16.32       159.52
 
                 May 27         143.20       0       13.32       156.52
 
                 May 13         114.56       0        8.59       123.15
 
                 May 6          109.19       0        8.63       117.82
 
                 April 29       143.20       0       14.18       157.38
 
                 Totals      $1,879.79   $153.40   $169.30    $2,202.49
 
            
 
                    
 
            
 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            conclusions of law
 
            
 
                 There is no dispute with regard to the compensability 
 
            of the injury.  It is only the benefit entitlement which is 
 
            litigated.
 
            
 
                 Entitlement to healing period compensation under Iowa 
 
            Code section 85.34(1) runs from the date of injury until the 
 
            earlier of the three defined events, namely, when the 
 
            employee actually returns to work, it is medically indicated 
 
            that significant improvement from the injury is not 
 
            anticipated, or until the employee is medically capable of 
 
            returning to employment substantially similar to that in 
 
            which he was engaged at the time of injury.  In this case, 
 
            Charles Hendrickson was under active medical treatment at 
 
            the time he returned to work on February 17, 1989.  Dr. 
 
            Miller was providing claimant with continuing treatment in 
 
            an attempt to prepare him for a recommended surgical 
 
            procedure.  Through the efforts of the vocational 
 
            consultant, claimant resumed work even though the maximum 
 
            recuperation had not yet occurred.  The work was restricted 
 
            and therefore was not substantially similar to that which 
 
            claimant had performed at the time of injury.  Claimant is 
 
            therefore entitled to healing period compensation running 
 
            from August 6, 1988 through February 17, 1989, a span of 28 
 
            weeks.  For the first week that claimant resumed working, he 
 
            worked only four hours per day.  From the evidence 
 
            presented, it appears as though his hourly pay rate would 
 
            have been $4.10 per hour.  His weekly earnings for that week 
 
            were therefore $82.00 based upon a 40-hour work week.  
 
            Claimant would therefore be entitled to temporary partial 
 
            disability compensation under Iowa Code sections 85.33(2), 
 
            (3) and (4).
 
            
 
                 Claimant is also entitled to recover additional healing 
 
            period compensation running from October 25 through November 
 
            3, 1989, a span of one and three-sevenths weeks.
 
            
 
                 Claimant is entitled to recover one week of temporary 
 
            partial disability payable commencing February 17, 1989.
 
            
 
                 Claimant is also entitled to recover 33 weeks of 
 
            compensation for permanent partial disability of his right 
 
            leg under the provisions of Iowa Code section 85.34(2)(o).  
 
            This is based upon the rating from Dr. Kulick which has 
 
            previously been found to be the most accurate.  The 
 
            permanent partial disability compensation is payable 
 
            commencing February 25, 1989 immediately following the 
 
            period of temporary partial disability compensation 
 
            entitlement.  Defendants have shown a basis for 
 
            apportionment.  Varied Enterprises, Inc. v. Sumner, 353 
 
            N.W.2d 407 (Iowa 1984).
 
            
 
                 The rate of compensation in this case should be 
 
            determined under the provisions of Iowa Code section 
 
            85.36(6).  As asserted by the employer at the time of 
 
            hearing, the weeks which are lined through on exhibit E are 
 
            not to be used.  Schotanus v. Command Hydraulics, Inc., I 
 
            Iowa Industrial Commissioner Report 294 (1981); Lewis v. 
 
            Aalf's Mfg. Co., I Iowa Industrial Commissioner Report 206 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            (App. Decn. 1980).
 
            
 
                 The rate should be determined from the 1988 benefit 
 
            booklet.  The 13-week average gross earnings are $169.42.  
 
            With claimant being married and entitled to two exemptions, 
 
            his rate of compensation is $117.76 per week for the healing 
 
            period and permanent partial disability compensation.
 
            
 
                 The rate of compensation for temporary partial 
 
            disability is two-thirds of the difference between the 
 
            earnings at the time of injury and the earnings during the 
 
            period of temporary partial disability.  Iowa Code section 
 
            85.33(4).  Two-thirds of the difference between $169.42 and 
 
            $82.00 is $58.28.
 
            
 
                                      order
 
            
 
                 IT IS THEREFORE ORDERED that defendants pay claimant 
 
            twenty-nine and three-sevenths (29 3/7) weeks of 
 
            compensation for healing period at the rate of one hundred 
 
            seventeen and 76/100 dollars ($117.76) per week with 
 
            twenty-eight (28) weeks thereof payable commencing August 6, 
 
            1988 and with the remaining one and three-sevenths (1 3/7) 
 
            weeks payable commencing October 25, 1989.
 
            
 
                 IT IS FURTHER ORDERED that defendants pay claimant one 
 
            (1) week of compensation for temporary partial disability at 
 
            the rate of fifty-eight and 28/100 dollars ($58.28) per week 
 
            payable commencing February 17, 1989.
 
            
 
                 IT IS FURTHER ORDERED that defendants pay claimant 
 
            thirty-three (33) weeks of compensation for permanent 
 
            partial disability at the rate of one hundred seventeen and 
 
            76/100 dollars ($117.76) per week payable commencing 
 
            February 25, 1989.
 
            
 
                 IT IS FURTHER ORDERED that defendants are granted 
 
            credit in the amount of three thousand thirty-one and 25/100 
 
            dollars ($3,031.25) toward satisfaction of the weekly 
 
            compensation benefits awarded in this decision.
 
            
 
                 IT IS FURTHER ORDERED that all past due amounts be paid 
 
            to claimant in a lump sum together with interest pursuant to 
 
            Iowa Code section 85.30.
 
            
 
                 IT IS FURTHER ORDERED that defendants pay the costs of 
 
            this action pursuant to 343 IAC 4.33.
 
            
 
                 IT IS FURTHER ORDERED that defendants file claim 
 
            activity reports as requested by this agency pursuant to 343 
 
            IAC 3.1.
 
            
 
                 Signed and filed this ______ day of ____________, 1990.
 
            
 
                 
 
            
 
                 
 
                 
 
                                          ______________________________
 
                                          MICHAEL G. TRIER
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. David W. Newell
 
            Attorney at Law
 
            323 East Second Street
 
            P.O. Box 175
 
            Muscatine, Iowa  52761
 
            
 
            Mr. John M. Bickel
 
            Attorney at Law
 
            500 MNB Building
 
            P.O. Box 2107
 
            Cedar Rapids, Iowa  52406-2107
 
            
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                           1802; 3001
 
                           Filed December 21, 1990
 
                           MICHAEL G. TRIER
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            CHARLES HENDRICKSON,     :
 
                      :
 
                 Claimant, :
 
                      :
 
            vs.       :
 
                      :         File No. 931142
 
            KELLER INDUSTRIES,  :
 
                      :      A R B I T R A T I O N
 
                 Employer, :
 
                      :         D E C I S I O N
 
            and       :
 
                      :
 
            CIGNA PROPERTY & CASUALTY     :
 
            COMPANY,  :
 
                      :
 
                 Insurance Carrier,  :
 
                 Defendants.    :
 
            ____________________________________________________________
 
            
 
            1802
 
            Healing period ended when claimant returned to work despite 
 
            an earlier statement from a physician of no improvement 
 
            being expected since the claimant changed physicians and 
 
            remained under active medical treatment in the interim.
 
            
 
            3001
 
            Gross earnings included a bonus which was paid according to 
 
            a formula based upon the plant productivity and the wages of 
 
            each employee, even though the bonus plan had been 
 
            established by the employer unilaterally and was later 
 
            terminated at the employer's discretion.
 
            
 
 
         
 
         Page   1
 
         
 
         
 
         
 
         
 
         
 
         
 
                     before the iowa industrial commissioner
 
         ____________________________________________________________
 
                                       :
 
         DAN BLUMKE,                   :
 
                                       :
 
              Claimant,                :
 
                                       :
 
         vs.                           :
 
                                       :         File No. 931156
 
         TRIANGLE METALLURGICAL, INC., :
 
                                       :      A R B I T R A T I O N
 
              Employer,                :
 
                                       :         D E C I S I O N
 
         and                           :
 
                                       :
 
         CNA INSURANCE COMPANIES,      :
 
                                       :
 
              Insurance Carrier,       :
 
              Defendants.              :
 
         ___________________________________________________________
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              This is a proceeding in arbitration upon the petition of 
 
         claimant, Danny Blumke, against his employer, Triangle 
 
         Metallurgical, Inc., and its insurance carrier, CNA Insurance 
 
         Companies, defendants.  This matter came on for hearing before 
 
         the undersigned deputy industrial commissioner on April 1, 1991, 
 
         in Burlington, Iowa at the Des Moines County Courthouse.  The 
 
         record in this matter consists of the testimony of claimant.  The 
 
         record also consists of claimant's exhibits 1-25 and defendants' 
 
         exhibits 1-15.  The attorneys should have but did not offer joint 
 
         exhibits.  They are counseled to do so in the future.
 
         
 
                                      issues
 
         
 
              This is a case where prior to the taking of any testimony, 
 
         defendants stated, on the record, there had been a miscommunica
 
         tion about claimant's doctor.  Defendants stated they would 
 
         authorize hernia surgery for claimant.
 
         
 
              Issues remaining to be determined are:
 
         
 
              1)  Whether there is a causal relationship between 
 
         claimant's alleged condition and the work related injury;
 
         
 
              2)  Whether claimant has received any temporary or permanent 
 
         disability; and,
 
         
 
              3)  Whether claimant is entitled to medical benefits pur
 
         suant to section 85.27.
 
         
 
                                 findings of fact
 
         
 
              The deputy, having heard the testimony and considered all 
 
         the evidence, finds:
 
         
 

 
         
 
         Page   2
 
         
 
         
 
         
 
         
 
         
 
              Claimant was 36 years old at the time of the hearing.  He 
 
         had encountered prior work injuries while employed by different 
 
         employers.  He had experienced back problems as a result of sev
 
         eral prior work related injuries.  Because of alleged injuries in 
 
         July and September of 1988, he entered into a compromise special 
 
         case settlement.
 
         
 
              Claimant commenced his employment with this defendant 
 
         employer in the spring of 1989.  On November 11, 1989, claimant 
 
         was picking up and cleaning radiators when he felt something snap 
 
         in his chest and stomach.  He described the sensation as feeling 
 
         as if he had a "bubble in his belly button."  Claimant testified 
 
         he had never experienced a pain like that.  Claimant also claimed 
 
         he incurred additional back problems because of that work injury.
 
         
 
              On November 13, 1989, claimant went to the emergency room at 
 
         the hospital in Fort Madison, Iowa.  A Dr. Wetzel, M.D. (first 
 
         name unknown), diagnosed claimant as having an umbilical hernia.  
 
         On November 16, 1989, claimant went to see his personal physi
 
         cian, David C. Wenger-Keller, M.D.  Dr. Wenger-Keller also diag
 
         nosed claimant as having an umbilical hernia.  In his deposition, 
 
         Dr. Wenger-Keller opined that claimant's umbilical hernia was a 
 
         congenital condition but that it was aggravated by claimant's 
 
         work at defendant-employer's establishment.  Dr. Wenger-Keller 
 
         recommended claimant see Dr. DeLashmutt (first name unknown), a 
 
         general surgeon.
 
         
 
              On November 16, 1989, Dr. Wenger-Keller also diagnosed 
 
         claimant as having low back pain.  Dr. Wenger-Keller removed 
 
         claimant from work and prescribed rest and conservative therapy.
 
         
 
              Dr. Wenger-Keller diagnosed claimant's low back pain as 
 
         degenerative disk disease which could be aggravated by heavy 
 
         lifting, frequent bending at the waist or bouncing in a vehicle.
 
         
 
              In January of 1990, Dr. Wenger-Keller conducted a complete 
 
         physical for claimant.  The physician noted claimant was much 
 
         improved over his condition in November of 1989.  Dr. 
 
         Wenger-Keller never saw claimant after February 16, 1990.  The 
 
         physician was not familiar with claimant's condition after that 
 
         date.
 
         
 
              Claimant also sought the opinion of Rouben Mirbegian, M.D., 
 
         an orthopedic surgeon who treated claimant.  Dr. Mirbegian testi
 
         fied that claimant's back condition could be aggravated by his 
 
         lifting 25 pound radiators at work.  Dr. Mirbegian opined 
 
         claimant should not do any heavy lifting and that he should not 
 
         carry anything more then 75 to 100 pounds.  Dr. Mirbegian treated 
 
         claimant conservatively.  The physician did not recommend surgery 
 
         for claimant.  While Dr. Mirbegian noted claimant had a bulging 
 
         disk, the surgeon could not causally relate the bulging disk to 
 
         the incident in question.
 
         
 
              Claimant also was seen by John E. Sinning, Jr., M.D.  Dr. 
 
         Sinning opined claimant had degenerative disk disease which 
 
         existed prior to this incident.  Dr. Sinning, in his report of 
 
         December 7, 1989, opined:
 
         Up until Mr. Blumke's most recent incident at work in which he 
 
         has incurred an umbilical hernia, he was working inspite of his 
 

 
         
 
         Page   3
 
         
 
         
 
         
 
         
 
         
 
         continued back symptoms.  The hernia is not a problem related to 
 
         the backache problem.
 
         I believe Mr. Blumke has permanent impairment of function of his 
 
         whole body because of the incidents at work in July, August and 
 
         September of 1988.  He has 10% impairment of function of the 
 
         whole body.  The diagnosis is degenerative lumbar disk disease.
 
         
 
                                conclusions of law
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury is a proximate cause of the disabil
 
         ity on which the claim is based.  A cause is proximate if it is a 
 
         substantial factor in bringing about the result; it need not be 
 
         the only cause.  A preponderance of the evidence exists when the 
 
         causal connection is probable rather than merely possible.  
 
         Blacksmith v. All-American, Inc., 290 N.W.2d 348, 354 (Iowa 
 
         1980); Holmes v. Bruce Motor Freight, Inc., 215 N.W.2d 296, 297 
 
         (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 givenre Ottumwa Works, 247 Iowa 900, 76 N.W.2d 756 (1956).  If the 
 
         claimant had a preexisting condition or disability that is mate
 
         rially aggravated, accelerated, worsened or lighted up so that it 
 
         results in disability, claimant is entitled to recover.  Nicks v. 
 
         Davenport Produce Co., 254 Iowa 130, 115 N.W.2d 812 (1962); 
 

 
         
 
         Page   4
 
         
 
         
 
         
 
         
 
         
 
         Yeager v. Firestone Tire & Rubber Co., 253 Iowa 369, 112 N.W.2d 
 
         299 (1961).
 
         
 
              In the case at hand, claimant is entitled to surgery for his 
 
         umbilical hernia.  Defendants have already acknowledged they will 
 
         be responsible for the costs of the surgery.
 
         
 
              Defendants, pursuant to section 85.33, will also be held 
 
         liable for any temporary total disability benefits during the 
 
         duration of claimant's period of temporary total disability.  
 
         These benefits shall be paid to claimant "until the employee has 
 
         returned to work or is medically capable of returning to employ
 
         ment substantially similar to the employment in which the 
 
         employee was engaged at the time of injury, whichever occurs 
 
         first."
 
         
 
              With respect to claimant's claim for his alleged back 
 
         injury, it is the determination of the undersigned that claimant 
 
         has not proven he has any permanent disability because of the 
 
         November 11, 1989 injury.  No physician has rated claimant as 
 
         having a permanent impairment due to the work injury of November 
 
         11, 1989.  Claimant had a preexisting condition.  No physician 
 
         has opined the bulging disk was the result of the November 11, 
 
         1989 injury.  Dr. Wenger-Keller has diagnosed claimant as having 
 
         degenerative disk disease unrelated to claimant's work injury on 
 
         November 11, 1989.  Claimant is obese.  His weight contributes to 
 
         his back condition.  Claimant has not proven he is entitled to 
 
         any permanent partial disability benefits for his back condition 
 
         because of this work injury.
 
         
 
              Claimant is entitled to temporary total disability benefits 
 
         because he temporarily aggravated his degenerative disk disease.  
 
         Claimant is entitled to temporary total disability benefits from 
 
         November 12, 1989 until January 29, 1990, the day Dr. 
 
         Wenger-Keller, after a complete physical exam, determined 
 
         claimant had improved.
 
         
 
              The final issue to address is whether claimant is entitled 
 
         to medical benefits under section 85.27.
 
         
 
              The employer shall furnish reasonable surgical, medical, 
 
         dental, osteopathic, chiropractic, podiatric, physical rehabili
 
         tation, nursing, ambulance and hospital services and supplies for 
 
         all conditions compensable under the workers' compensation law.  
 
         The employer shall also allow reasonable and necessary trans
 
         portation expenses incurred for those services.  The employer has 
 
         the right to choose the provider of care, except where the 
 
         employer has denied liability for the injury.  Section 85.27.; 
 
         Holbert v. Townsend Engineering Co., Thirty-second Biennial 
 
         Report of the Industrial Commissioner 78 (Review decision 1975).  
 
         Claimant has the burden of proving that the fees charged for such 
 
         services are reasonable.  Anderson v. High Rise Constr. Special
 
         ists, Inc., file number 850096 (Appeal Decision 1990).
 
         
 
              Claimant is not entitled to reimbursement for medical bills 
 
         unless claimant shows they were paid from claimant's funds.  See 
 
         Caylor v. Employers Mut. Casualty Co., 337 N.W.2d 890 (Iowa App. 
 
         1983).
 
         
 

 
         
 
         Page   5
 
         
 
         
 
         
 
         
 
         
 
              In the case at hand, defendants are liable for the following 
 
         medical bills:
 
         
 
                 Dr. DeLashmutt                        $50.00
 
                  (hernia matter paid by claimant)
 
         
 
              Other charges (Keokuk Hospital, Dr. Mirbegian) submitted are 
 
         charges incurred prior to November 11, 1989, the injury date in 
 
         question.  They are not causally related to this injury.  Defen
 
         dants are also liable for future medical expenses causally 
 
         related to the hernia condition.
 
         
 
                                      order
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              Defendants are to pay temporary total disability benefits at 
 
         the stipulated rate of two hundred ninety-six and 11/l00 dollars 
 
         ($296.11) per week from November 12, 1989 to January 29, 1990, a 
 
         period of eleven point two-eight-six (11.286) weeks.
 
         
 
              Defendants are to pay temporary total disability benefits 
 
         for the period of claimant's temporary total disability when 
 
         claimant has his hernia surgery.
 
         
 
              Defendants are liable for future reasonable and necessary 
 
         medical expenses which are causally related to claimant's hernia 
 
         condition, plus the $50 charge which claimant previously paid to 
 
         Dr. DeLashmutt.
 
         
 
              Costs of the action, including Dr. Mirbegian's deposition 
 
         cost of $150.00, are assessed to defendants pursuant to rule 343 
 
         IAC 4.33.
 
         
 
              Defendants shall file a claim activity report as requested 
 
         by this division pursuant to rule 343 IAC 3.1.
 
         
 
         
 
         
 
              Signed and filed this ____ day of August, 1991.
 
         
 
         
 
         
 
         
 
         
 
                                       ______________________________               
 
         MICHELLE A. McGOVERN
 
                                       DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. James P. Hoffman
 
         Attorney at Law
 
         Middle Rd
 
         Box 1087
 
         Keokuk  IA  52632
 
         
 
         Mr. Elliott R. McDonald, Jr.
 
         Attorney at Law
 

 
         
 
         Page   6
 
         
 
         
 
         
 
         
 
         
 
         P O Box 2746
 
         Davenport  IA  52809
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                           5-1801
 
                           Filed August 16, 1991
 
                           MICHELLE A. McGOVERN
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            DAN BLUMKE,                   :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :         File No. 931156
 
            TRIANGLE METALLURGICAL, INC., :
 
                                          :      A R B I T R A T I O N
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            CNA INSURANCE COMPANIES,      :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
            
 
            5-1801
 
            Claimant is entitled to temporary total disability benefits.
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                      5-2002
 
                      Filed April 2, 1991
 
            
 
                      MARLON D. MORMANN
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            JOSEPH APPLEBY,     :
 
                      :
 
                 Claimant, :       File No. 931163
 
                      :
 
            vs.       :    A R B I T R A T I O N
 
                      :
 
            HAWKEYE REFRIGERATED SERVICES :       D E C I S I O N
 
            CORPORATION,   :
 
                      :
 
                 Employer, :
 
                 Defendant.     :
 
            ___________________________________________________________
 
            
 
            5-2002
 
            Claimant was injured while carrying a load of freight for 
 
            defendant.  Claimant was found to be independent contractor 
 
            where he owned the truck and had the power to hire and fire 
 
            employees who operated the truck on claimant's behalf.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            TOMMY L. WELCHER,             :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 931169
 
            MASON & HANGER/               :
 
            SILAS MASON CO.,              :   A R B I T R A T I O N
 
                                          :
 
                 Employer,                :      D E C I S I O N
 
                                          :
 
            and                           :
 
                                          :
 
            THE TRAVELERS,                :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding in arbitration brought by Tommy 
 
            Welcher, claimant, against Mason & Hanger, Silas-Mason 
 
            Company, employer, and The Travelers Insurance Company, 
 
            insurance carrier.  Claimant alleges a work-related injury 
 
            occurring on September 7, 1989.
 
            
 
                 The matter came on for a hearing before the undersigned 
 
            deputy industrial commissioner at Burlington, Iowa, on 
 
            December 20, 1990.
 
            
 
                 The record in this case consists of testimony from the 
 
            claimant; Rosalie Welcher; and Anthony Orth.  Claimant 
 
            offered exhibits 1 through 12 which were received; 
 
            defendants offered exhibits A, B and C which were received.
 
            
 
                                      issues
 
            
 
                 Pursuant to the prehearing report and hearing 
 
            assignment order, the parties have presented the following 
 
            issues for resolution:
 
            
 
                 1.  Whether claimant sustained an injury which 
 
                 arose out of and in the course of employment;
 
            
 
                 2.  Whether there is a causal relationship between 
 
                 the alleged injury and the disability;
 
            
 
                 3.  Whether claimant is entitled to temporary 
 
                 total or healing period benefits;
 
            
 
                 4.  Whether claimant is entitled to permanent 
 
                 partial disability benefits;
 
            
 
                 5.  Whether claimant is entitled to medical 
 
                 benefits under Iowa Code section 85.27.
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
                 At the hearing, the parties stipulated that claimant 
 
            was off work from September 7, 1989 to December 18, 1989.
 
            
 
                 The parties entered a stipulation regarding claimant's 
 
            time off work (September 7, 1989 to December 18, 1989), and 
 
            that claimant sustained a seventeen percent loss of his 
 
            right lower extremity, which is equivalent to 37.4 weeks of 
 
            benefits.  These stipulations are reflected in the 
 
            prehearing report.  At the hearing, the parties also entered 
 
            into a stipulation regarding credits for benefits paid under 
 
            Iowa Code section 85.38(2), which provides for the workers' 
 
            compensation carrier to directly reimburse the private 
 
            insurance carrier in the event a finding of defendants' 
 
            liability is made.
 
            
 
                                 findings of fact
 
            
 
                 The undersigned deputy, having reviewed all of the 
 
            evidence presented, finds the following facts:
 
            
 
                 Claimant has worked for defendant, Mason & Hanger 
 
            Silas-Mason Company for 22 years.  In early 1989, he drove a 
 
            forklift or "Cadillac" for the company; in July 1989, he 
 
            became a transfer press operator.  As a press operator, 
 
            claimant was required to stand during his 10-hour shifts.  
 
            He worked four days a week.
 
            
 
                 Claimant began to have knee problems, and encountered 
 
            swelling and pain in his right knee, which became 
 
            particularly severe on September 7, 1989.  On that date, 
 
            claimant told Anthony Orth (his supervisor) that his right 
 
            knee was painful, and he wanted to be examined by physicians 
 
            at the field hospital.
 
            
 
                 Claimant was examined by a field hospital physician on 
 
            September 7, 1989.  The diagnosis was a tear of the right 
 
            medial meniscus.  (See Defendants' Exhibit C).  Claimant 
 
            sought a second opinion from Warren Scott, M.D., who agreed 
 
            with the field hospital physician, and referred claimant to 
 
            Jerry Jochims, M.D., an orthopaedic surgeon, who examined 
 
            claimant on September 11, 1989:
 
            
 
                 Tommy is seen at this time for evaluation of his 
 
                 right knee.  He presently is age 39 and referred 
 
                 by Dr. Warren Scott of Mt. Pleasant.  He is 
 
                 employed at the IAAP and states that his knee 
 
                 simply started hurting on 9/7/89.  He saw the 
 
                 Plant Physician, Dr. Stoikovic and, thereafter, 
 
                 went to see Dr. Scott because his knee did not 
 
                 improve.  He had x-rays obtained and was given a 
 
                 prescription for Motrin 400 mg.  He has been off 
 
                 his feet since Friday, but the swelling seems to 
 
                 increase and the pain is certainly continuing to 
 
                 increase, along with moderate to severe aching.  
 
                 He states that he has recently had a job training 
 
                 change, wherein he is using a transfer press.  
 
                 With this, he uses his right knee and leg a great 
 
                 deal to operate the press and states that this is 
 
                 much different from his previous job in using a 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
                 forklift.
 
            
 
                    ....
 
            
 
                 HIS CURRENT PHYSICAL EXAMINATION demonstrates a 
 
                 very tense effused right knee.  I suspect a 
 
                 possibility of a hemarthrosis, but on aspiration 
 
                 of the knee, obtained a rather turbid fluid which 
 
                 was sent for synovial fluid analysis and culture 
 
                 and sensitivity....In addition to his, [sic] he 
 
                 will be placed in a knee immobilizer for comfort 
 
                 until we have some of the laboratory data back and 
 
                 then we will contact him by phone to notify him of 
 
                 any further plans and/or recommendations.
 
            
 
                 Dr. Jochims ultimately performed an arthroscopy and 
 
            partial anteromedial menisectomy on claimant's right knee on 
 
            October 5, 1989.  Claimant underwent physical therapy for 
 
            approximately one month, and was released to return to work 
 
            full-time on December 18, 1989.
 
            
 
                         analysis and conclusions of law
 
            
 
                 The first issue to be addressed is whether claimant 
 
            received an injury which arose out of and in the course of 
 
            his employment.
 
            
 
                 An employee is entitled to compensation for any and all 
 
            personal injuries which arise out of and in the course of 
 
            the employment.  Section 85.3(1).
 
            
 
                 The injury must both arise out of and be in the course 
 
            of the employment.  Crowe v. DeSoto Consol. Sch. Dist., 246 
 
            Iowa 402, 68 N.W.2d 63 (1955) and cases cited at pp. 405-406 
 
            of the Iowa Report.  See also Sister Mary Benedict v. St. 
 
            Mary's Corp., 255 Iowa 847, 124 N.W.2d 548 (l963) and Hansen 
 
            v. State of Iowa, 249 Iowa 1147, 91 N.W.2d 555 (1958).
 
            
 
                 The words "out of" refer to the cause or source of the 
 
            injury.  Crowe, 246 Iowa 402, 68 N.W.2d 63. 
 
            
 
                 The words "in the course of" refer to the time and 
 
            place and circumstances of the injury.  McClure v. Union 
 
            et al. Counties, 188 N.W.2d 283 (Iowa 1971); Crowe, 246 Iowa 
 
            402, 68 N.W.2d 63.
 
            
 
                 "An injury occurs in the course of the employment when 
 
            it is within the period of employment at a place the 
 
            employee may reasonably be, and while he is doing his work 
 
            or something incidental to it."  Cedar Rapids Comm. Sch. 
 
            Dist. v. Cady, 278 N.W.2d 298 (Iowa 1979), McClure, 188 
 
            N.W.2d 283; Musselman v. Central Telephone Co., 261 Iowa 
 
            352, 154 N.W.2d 128 (1967). 
 
            
 
                 Claimant has not had any prior injuries to his right 
 
            knee, although some of the medical records indicate he may 
 
            have had degenerative arthritic changes.  Claimant stated he 
 
            had not had any prior problems with his knee.  It was 
 
            shortly after he began working as a press operator (a 
 
            position which required claimant to twist, turn, and stand 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            for a ten hour shift) that he started to feel pain and have 
 
            swelling in the right knee.   Claimant, a credible witness, 
 
            denied any intervening traumatic episodes which may have 
 
            caused the interior medial meniscus tear.  Defendants 
 
            submitted a video-tape of claimant's job position from 
 
            July-September 1989.  However, the video-tape is not an 
 
            accurate depiction of all of the duties performed by 
 
            claimant.  The tape merely shows one aspect of claimant's 
 
            job, which does show the worker standing, turning and 
 
            twisting to retrieve certain materials to be placed in a 
 
            shell on the conveyor line.  Claimant performed additional 
 
            duties which were not shown on the video tape.  It is 
 
            concluded that claimant has sustained his burden of proof, 
 
            and has shown that he received an injury which arose out of 
 
            and in the course of his employment.
 
            
 
                 The next issue to be addressed is whether there is a 
 
            causal relationship between the alleged injury and the 
 
            disability.
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury of September 
 
            7, 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.
 
            
 
                 While a claimant is not entitled to compensation for 
 
            the results of a preexisting injury or disease, the mere 
 
            existence at the time of a subsequent injury is not a 
 
            defense.  Rose v. John Deere Ottumwa Works, 247 Iowa 900, 
 
            908, 76 N.W.2d 756, 760-61 (1956).  If the claimant had a 
 
            preexisting condition or disability that is aggravated, 
 
            accelerated, worsened or lighted up so that it results in 
 
            disability, claimant is entitled to recover.  Nicks v. 
 
            Davenport Produce Co., 254 Iowa 130, 115 N.W.2d 812, 815 
 
            (1962).
 
            
 
                 Dr. Jochims was claimant's treating physician, and he 
 
            is of the opinion that claimant's injury, work and 
 
            disability are causally related:
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            
 
                 At the time of surgery, he had an intensely 
 
                 hermorrhagic knee as an associated anteromedial 
 
                 meniscal tear.  There were several unusual types 
 
                 of crystalline deposits noted inside of his knee 
 
                 and these were sent with the specimen to 
 
                 pathology.  Those crystalline structures were 
 
                 never identified, but these were most likely a 
 
                 collection of calcium pyrophosphate which 
 
                 occasionally occur in a knee post injury/strain 
 
                 which has been rested.  It is really sort of a 
 
                 reaction that occurs much like an acute gouty 
 
                 attack when the joint is being rested as his 
 
                 treatment had been prior to this surgical time.  
 
                 Nonetheless, it should be emphasized that his 
 
                 primary pathology was that of a torn anterior 
 
                 medial meniscal tear.  I think that the severe and 
 
                 acute hemorrhagic process in this knee speak 
 
                 directly to the acuteness of this problem and lend 
 
                 further credibility to the relationship of this 
 
                 problem to this gentleman's work environment and 
 
                 job change as he described it to me.
 
            
 
                    ....
 
            
 
                    I believe that Mr. Welcher's history, physical 
 
                 findings, and surgical findings were all 
 
                 consistent with and within a reasonable degree of 
 
                 medical certainty causly related to the 
 
                 description of the employment which he was 
 
                 undertaking at the time.
 
            
 
            (Claimant's Ex. 10)
 
            
 
     
 
            
 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            A follow-up opinion from Dr. Jochims indicates the same 
 
            opinion:
 
            
 
                 How I interpreted specifically what he did with 
 
                 his leg and knee in operating that press may have 
 
                 been my error in extrapolation and 
 
                 overstatement.... I have stated on several 
 
                 occasions that I believe Mr. Welcher's knee 
 
                 problem occurred in specific relationship to a job 
 
                 change and the only relationship he could see was 
 
                 to the use of his right leg in the new job.... I 
 
                 believe that this is an unusual type of very 
 
                 inflammatory reactive process in his knee and I 
 
                 knew of no other intercurrent injury process which 
 
                 produced the findings.
 
            
 
            (Cl. Ex. 10)
 
            
 
                 J. R. Lee, M.D., who only reviewed claimant's medical 
 
            records, formed a contrary opinion:
 
            
 
                    I have reviewed the medical records of Mr. 
 
                 Welcher and the video type you provided regarding 
 
                 the work activity.  I conclude that Mr. Welcher's 
 
                 knee problem is neither caused by accidental 
 
                 injury nor by accumulative trauma from his work.  
 
                 His knee had a pre-existing arthritis condition 
 
                 and the work mainly is an aggravating factor that 
 
                 caused his difficulty of knee.
 
            
 
            (Defendants' Ex. B)
 
            
 
                 In this case, the undersigned is more persuaded by 
 
            Dr. Jochim's opinions, which are based on his numerous 
 
            examinations and his prescribed course of treatments.  It is 
 
            concluded that the necessary causal relationship between 
 
            claimant's injury and disability exists.
 
            
 
                 The next issue to be resolved is whether claimant's 
 
            injury is a cause of temporary total disability.  Claimant 
 
            was treated by Dr. Jochims from September 11, 1989 through 
 
            December 15, 1989.  Although claimant was released from Dr. 
 
            Jochims care to return to light duty work on December 7, 
 
            1989, defendant employer told claimant that there was no 
 
            work available for him with the restrictions imposed by Dr. 
 
            Jochims.  Two weeks later, on December 18, 1989, claimant 
 
            received a full release.  On May 4, 1990, Dr. Jochims gave 
 
            the following opinion:
 
            
 
                    By way of rating Mr. Welcher, he should be 
 
                 allocated a 12 percent impairment to the involved 
 
                 lower extremity due to the lack of flexion and, 
 
                 additionally, should be rated at one percent 
 
                 permanency due to the lack of full extension.  
 
                 These add to 13 percent but then should be 
 
                 additionally added to a five percent impairment 
 
                 for loss of the meniscus.  By use of the 
 
                 appropriate combined values chart in The AMA 
 
                 Guides the 12 percent permanency on the basis of 
 
                 the impaired mobility combined with five percent 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
                 from the menisectomy equals 17 percent permanency 
 
                 to the involved lower extremity.
 
            
 
                 Temporary total disability benefits are awarded where 
 
            injured workers are expected to make a full recovery.
 
            
 
                 Iowa Code section 85.34(1) provides that if an employee 
 
            has suffered a personal injury causing permanent partial 
 
            disability, the employer shall pay compensation for a 
 
            healing period from the day of the injury until (1) the 
 
            employee returns to work; or (2) it is medically indicated 
 
            that significant improvement from the injury is not 
 
            anticipated; or (3) until the employee is medically capable 
 
            of returning to substantially similar employment.
 
            
 
    the work injury.
 
            
 
     
 
            
 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            Iowa Code section 85.27 provides, in pertinent part:
 
            
 
                    The employer, for all injuries compensable 
 
                 under this chapter or chapter 85A, shall furnish 
 
                 reasonable surgical, medical, dental, osteopathic, 
 
                 chiropractic, podiatric, physical rehabilitation, 
 
                 nursing, ambulance and hospital services and 
 
                 supplies therefor and shall allow reasonable 
 
                 necessary transportation expenses incurred for 
 
                 such services.
 
            
 
                 It has been established that claimant did sustain an 
 
            injury which arose out of and in the course of his 
 
            employment.  Given the nature of the services rendered, and 
 
            the nature of the bills for treatment of the injury, 
 
            defendants are responsible for payment of medical bills 
 
            incurred by claimant for the treatment of this injury.  
 
            Additionally, defendants are responsible for payment of 
 
            claimant's transportation expenses incurred for such 
 
            services.
 
            
 
                                      order
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 Defendants shall pay unto claimant fourteen point seven 
 
            one four weeks of healing period benefits at the stipulated 
 
            rate of two hundred sixty-four and 39/100 dollars ($264.39) 
 
            per week commencing September 7, 1989.
 
            
 
                 Defendants shall pay medical expenses of:
 
            
 
                    1.  Burlington Medical Center       $1,963.35
 
            
 
                    2.  Radiologists Services               19.00
 
            
 
                    3.  NuPath, P.C.                        56.00
 
            
 
                    4.  Anesthesia Inc. P.C.               374.00
 
            
 
                    5.  Orthopaedic & Reconstructive
 
            
 
                            Surgery Associates, P.C.     1,688.16
 
            
 
                    6.  Mt. Pleasant Medical Clinic, P.C.   45.00
 
            
 
                    7.  Henry County Health Center         130.00
 
            
 
                    8.  Dr. Jerry Jochims                   78.00
 
            
 
                    9.  Transportation expenses
 
            
 
                            (272 miles x $.21 per mile)     57.12
 
            
 
                 Defendants shall pay unto claimant thirty-seven point 
 
            four (37.4) weeks of permanent partial disability benefits 
 
            at the stipulated rate of two hundred sixty-four and 39/100 
 
            dollars ($264.39) per week.
 
            
 
                 Expenses that have accrued shall be paid in a lump sum 
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            together with statutory interest thereon, pursuant to Iowa 
 
            Code section 85.30.
 
            
 
                 Defendants shall receive credit for all benefits paid, 
 
            if any; and, defendants shall work with the health care 
 
            provider for reimbursements to the health care provider, 
 
            pursuant to the stipulation at the hearing.
 
            
 
                 Costs of this action are assessed against defendants, 
 
            pursuant to rule 343 IAC 4.33.
 
            
 
                 Signed and filed this ____ day of February, 1991.
 
            
 
            
 
            
 
            
 
                                          
 
            ________________________________
 
                                          PATRICIA J. LANTZ
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr William Bauer
 
            Attorney at Law
 
            100 Valley Street
 
            Box 517
 
            Burlington Iowa 52601
 
            
 
            Ms Vicki L Seeck
 
            Attorney at Law
 
            600 Union Arcade Building
 
            111 East Third Street
 
            Davenport Iowa 52801
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                      1100; 1402.30; 3700
 
                      1802; 1803
 
                      Filed February 7, 1991
 
                      PATRICIA J. LANTZ
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            TOMMY L. WELCHER,   :
 
                      :
 
                 Claimant, :
 
                      :
 
            vs.       :
 
                      :      File No. 931169
 
            MASON & HANGER/,    :
 
            SILAS MASON CO.,    :   A R B I T R A T I O N
 
                      :
 
                 Employer, :      D E C I S I O N
 
                      :
 
            and       :
 
                      :
 
            THE TRAVELERS, :
 
                      :
 
                 Insurance Carrier,  :
 
                 Defendants.    :
 
            ___________________________________________________________
 
            
 
            1100; 1402.30
 
            Arising out of and in the course of found where claimant had 
 
            no prior knee problems, and had been switched to a job which 
 
            required him to stand for 8-hour shifts and turn from one 
 
            table to another.
 
            
 
            3700
 
            Defendants submitted a video-tape of claimant's job; 
 
            however, claimant performed the job singularly, tape showed 
 
            2 employees performing the same job requirements.
 
            
 
            1802
 
            Claimant awarded healing period benefits.
 
            
 
            1803
 
            Claimant awarded 37.4 weeks of permanent partial disability 
 
            benefits.  (17 percent permanency of right lower extremity.)
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            PATRICK KELLY,                :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :         File No. 931176
 
                                          :
 
            LEAR SIEGLER,                 :      A R B I T R A T I O N
 
                                          :
 
                 Employer,                :         D E C I S I O N
 
                                          :
 
            and                           :
 
                                          :
 
            NATIONAL UNION FIRE INSURANCE,:
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding in arbitration brought by Patrick 
 
            Kelly, claimant, against Lear Siegler, employer, and 
 
            National Union Fire Insurance Company, insurance carrier, to 
 
            recover benefits under the Iowa Workers' Compensation Act as 
 
            a result of an injury sustained on July 11, 1989.  This 
 
            matter came on for hearing before the undersigned deputy 
 
            industrial commissioner on June 3, 1991 in Dubuque, Iowa.  
 
            The record was considered fully submitted at the close of 
 
            the hearing.  The record in this case consists of claimant's 
 
            testimony and testimony from Linda Kelly, Diana Bargman, 
 
            Lennie Tekippe, John Jackson, Roger McGrath and Stephen 
 
            Spencer; and claimant's exhibits 1-17 and defendants' 
 
            exhibits 1-22.
 
            
 
                                      issues
 
            
 
                 Pursuant to the prehearing report and order dated June 
 
            3, 1991, the parties have stipulated that at the time of the 
 
            alleged injury, claimant was married and his gross weekly 
 
            earnings were $260.00.
 
            
 
                 The following issues are in dispute:
 
            
 
                 1.  Whether claimant sustained an injury on July 11, 
 
            1989, which arose out of and in the course of employment 
 
            with employer;
 
            
 
                 2.  Whether the alleged injury is a cause of temporary 
 
            and permanent disability;
 
            
 
                 3.  The extent of entitlement to weekly compensation 
 
            for temporary total disability or healing period and 
 
            permanent disability, if any;
 
            
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
            
 
                 4.  The type of permanent disability, if the injury is 
 
            found to be a cause of permanent disability;
 
            
 
                 5.  The commencement date for permanent partial 
 
            disability, in the event such benefits are awarded;
 
            
 
                 6.  The rate of weekly compensation;
 
            
 
                 7.  The number of exemptions to which claimant is 
 
            entitled; and,
 
            
 
                 8.  Claimant's entitlement to medical benefits under 
 
            Iowa Code section 85.27.
 
            
 
                                 findings of fact
 
            
 
                 The undersigned has carefully considered all the 
 
            testimony given at the hearing, the arguments made, the 
 
            evidence contained in the exhibits, and makes the following 
 
            findings:
 
            
 
                 The pertinent medical evidence reveals that claimant 
 
            has been treated by Julian G. Nemmers, M.D., several years 
 
            for leg problems.  Claimant's right leg is more than two 
 
            inches shorter than his left.  He has had two surgeries on 
 
            his right leg, one in 1978 and one in 1988.  Dr. Nemmers has 
 
            told him repeatedly that "his only salvation" is to lose 
 
            weight and "what he needs worse than anything is weight 
 
            reduction" (defendants' exhibit 1, pages 1-5).
 
            
 
                 In his petition, claimant alleges an injury date of 
 
            approximately July 11, 1989.  In a letter from Thomas J. 
 
            Hughes, M.D., dated August 24, 1989, Dr. Hughes stated that 
 
            his examination of claimant on August 24, 1989, revealed 
 
            only subjective indicators of pain.  He diagnosed chronic 
 
            musculoskeletal strain and recommended a program of physical 
 
            therapy (defendants' exhibit 2).
 
            
 
                 Claimant was seen by Dr. Hughes during September and 
 
            October 1989.  Dr. Hughes reported that claimant's 
 
            symptomatology seemed to shift and his cooperation with 
 
            therapy was minimal.  Despite a regimen of physical therapy, 
 
            claimant's symptoms persisted.  Clinical and laboratory 
 
            findings reported by Dr. Hughes on December 13, 1989 were 
 
            within normal limits.  Therefore, Dr. Hughes referred the 
 
            claimant to the University of Iowa Pain Clinic for 
 
            evaluation (defendants' exhibits 4-5).
 
            
 
                 Claimant presented to the Pain Clinic on January 18, 
 
            1990 with complaints of "a three year history of thoracic, 
 
            shoulder, neck and rib pain" exacerbated on May 2, 1989 by 
 
            unloading material off a saw table at work.  A physical 
 
            examination was unremarkable.  Claimant was able to ambulate 
 
            and rise out of a chair without difficulty.  He had full 
 
            range of motion and intact muscle strength.  He had no focal 
 
            neurologic deficits elicited by sharp, dull discrimination 
 
            or vibratory sensation.  He had diffuse tenderness over his 
 
            thoracic paraspinal muscles on the left, but no elicited 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            
 
            
 
            muscle spasms or trigger points.  A diagnosis of continuing 
 
            myofascial pain was made and a referral to the Spinal 
 
            Rehabilitation Clinic was given (defendants' exhibit 6).
 
            
 
                 In addition to on-going physical therapy at both 
 
            Cathedral Square and the Sports Medicine Clinic in Dubuque, 
 
            Iowa, claimant was seen by James W. Turner, M.D., 
 
            orthopaedic surgeon at the Iowa Musculoskeletal Center in 
 
            Cedar Rapids, Iowa on February 12, 1990.  On examination, 
 
            Dr. Turner observed that claimant was able to move easily 
 
            from a chair to the examining table and demonstrated 
 
            excellent range of motion of the cervical spine.  He had 
 
            full range of motion of the shoulders in abduction, forward 
 
            flexion, internal and external rotation.  Dr. Turner 
 
            concurred with the diagnosis of a myofascial pain syndrome, 
 
            but found no objective findings.  He recommended that 
 
            claimant enter into a spine rehabilitation program 
 
            (defendants' exhibit 8).
 
            
 
                 On April 23, 1990, claimant was evaluated in the 
 
            Department of Orthopaedic Surgery at the Spine Diagnostic 
 
            and Treatment Center.  Claimant's complaints were referable 
 
            to low back pain.  He was seen by various members of the 
 
            spine team and it was determined that there are no 
 
            structural abnormalities causing the low back pain and no 
 
            specific serious problem which would respond to either 
 
            surgery or other aggressive medical approaches.  A positive 
 
            rehabilitation program was recommended.  Based on testing at 
 
            the Center, claimant was assigned a 20-pound, one-time lift, 
 
            or lifting not to be done more than four times per hour, and 
 
            a 10-pound repetitive lift.  It was clearly stated that 
 
            these limits are not permanent and that they could 
 
            significantly increase with a very positive aggressive 
 
            program of physical rehabilitation.  Claimant was advised to 
 
            lose 100 pounds (defendants' exhibit 12).
 
            
 
                 Claimant then attended a two-week rehabilitation 
 
            program at the University of Iowa from July 9 through July 
 
            20, 1990 (defendants' exhibit 15).  Ernest M. Found, Jr., 
 
            M.D., Spinal Surgeon, wrote claimant on July 24, 1990, 
 
            stating as follows:
 
            
 
                 You are released to return to work 4 hours per 
 
                 week, beginning July 30, 1990 and progressing to 
 
                 full-time work August 6, 1990 at No-Sag Products 
 
                 in Dubuque, Iowa.
 
            
 
                 Our physical therapist and rehab specialist have 
 
                 evaluated your job situation and we feel it is 
 
                 well within your restrictions.
 
            
 
            (Defendants' exhibit 14).
 
            
 
                 On July 30, 1990, Dr. Found reported to claimant that 
 
            he was released to return to full-time gainful employment at 
 
            the No-Sag Products.  Dr. Found stated that, "The 
 
            orthopaedic surgeon has determined your body as a whole 
 
            impairment rating is 4%, based on the work-related injury 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            
 
            
 
            sustained in May of 1987.  Your healing period for this 
 
            injury will end on Monday, July 23, 1990."  (Defendants' 
 
            exhibit 15, pages 2-3).
 
            
 
                 On September 5, 1990, claimant was seen for a follow-up 
 
            evaluation at the University of Iowa Spine Diagnostic and 
 
            Treatment Center.  He expressed dissatisfaction with the 
 
            four percent impairment rating and stated that a local 
 
            physician advised against working at the foam factory.  
 
            Claimant was then advised to quit smoking and lose weight 
 
            (defendants' exhibit 16).
 
            
 
                 At the hearing, claimant testified that he is 29 years 
 
            old and a high school graduate.  He worked at various times 
 
            as a security guard, landscaper and hand cutter.  He joined 
 
            Lear Siegler/No-Sag Products.  He testified that he joined 
 
            the company in 1984 and has worked as a foam cutter and dye 
 
            press operator.  He stated that, on July 11, 1989, while he 
 
            was substituting for another worker, he popped his back 
 
            while lifting a 50-pound piece of foam.  He notified the 
 
            plant manager and he was authorized to treat with Gerald M. 
 
            Besler, a chiropractor.  He treated for one and one-half 
 
            months and was then referred to Thomas J. Hughes, M.D.  He 
 
            stated that he received muscle relaxers and injections in 
 
            his back.  Dr. Hughes then referred him to a spine 
 
            diagnostic center in Iowa City where he was seen by various 
 
            members of the team, including Dr. Found.  He stated he was 
 
            released to return to work in August 1990 and went back to 
 
            work for a few hours, a couple of days.  He was discharged 
 
            in October 1990 because of absenteeism and an inability to 
 
            do his job.  He stated that, during the last week in October 
 
            1990, he purchased a restaurant business.  He works as a 
 
            cook and manager from 6:00 a.m. to 3:30 p.m., six days a 
 
            week.
 
            
 
                 Diana Bargman, payroll staff member with employer, also 
 
            testified at the hearing.  She testified that she keeps all 
 
            the personnel files at the plant.  On July 11, 1989, 
 
            claimant notified the plant manager at the end of his shift 
 
            that he was having pain in his neck.  After he was released 
 
            to return to work, the company made concessions to 
 
            accommodate his complaints.  They agreed not to put him in 
 
            any job lifting anything above 20 pounds and also agreed not 
 
            to require him to work overtime.  He was terminated in 
 
            October 1990 due to absenteeism without medical excuse.
 
            
 
                 Mr. Leonard Tekippe, claimant's supervisor, also 
 
            testified at the hearing.  To the best of his recollection, 
 
            claimant was running a dye press machine on July 11, 1989 
 
            and he is not aware of any traumatic event which occurred on 
 
            that day causing an injury to claimant.
 
            
 
                 Mr. John Jackson, claimant's shift supervisor when he 
 
            returned to work in August 1990, also testified at the 
 
            hearing.  He stated that claimant was moved around to 
 
            various jobs in order to accommodate his complaints and not 
 
            to harass him.
 
            
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            
 
            
 
                                conclusions of law
 
            
 
                 The issues to be determined in this case are whether 
 
            claimant sustained an injury on July 11, 1989 which arose 
 
            out of and in the course of his employment with employer and 
 
            whether said injury is a cause of temporary and permanent 
 
            disability.
 
            
 
                 Claimant has the burden of proving by a preponderance 
 
            of the evidence that he received an injury on July 11, 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. Cent. Tel. Co., 261 Iowa 352, 154 N.W.2d 
 
            128 (1967). 
 
            
 
                 The injury must both arise out of and be in the course 
 
            of the employment.  Crowe v. DeSoto Consol. School Dist., 
 
            246 Iowa 402, 68 N.W.2d 63 (1955) and cases cited at pp. 
 
            405-406 of the Iowa Report.  See also Sister Mary Benedict 
 
            v. St. Mary's Corp., 255 Iowa 847, 124 N.W.2d 548 (1963) and 
 
            Hansen v. State of Iowa, 249 Iowa 1147, 91 N.W.2d 555 
 
            (1958).
 
            
 
                 "An injury occurs in the course of the employment when 
 
            it is within the period of employment at a place the 
 
            employee may reasonably be, and while he is doing his work 
 
            or something incidental to it."  Cedar Rapids Community 
 
            School Dist. v. Cady, 278 N.W.2d 298 (Iowa 1979), McClure v. 
 
            Union, et al., Counties, 188 N.W.2d 283 (Iowa 1971); 
 
            Musselman v. Cent. Tel. Co., 261 Iowa 352, 154 N.W.2d 128 
 
            (1967). 
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury of July 11, 
 
            1989 is causally related to the disability on which he now 
 
            bases his claim.  Bodish v. Fischer, Inc., 257 Iowa 516, 133 
 
            N.W.2d 867 (1965).  Lindahl v. L. O. Boggs, 236 Iowa 296, 18 
 
            N.W.2d 607 (1945).  A possibility is insufficient; a 
 
            probability is necessary.  Burt v. John Deere Waterloo 
 
            Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955).  The 
 
            question of causal connection is essentially within the 
 
            domain of expert testimony.  Bradshaw v. Iowa Methodist 
 
            Hosp., 251 Iowa 375, 101 N.W.2d 167 (1960). 
 
            
 
                 However, expert medical evidence must be considered 
 
            with all other evidence introduced bearing on the causal 
 
            connection.  Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion 
 
            of experts need not be couched in definite, positive or 
 
            unequivocal language.  Sondag v. Ferris Hardware, 220 N.W.2d 
 
            903 (Iowa 1974).  However, the expert opinion may be 
 
            accepted or rejected, in whole or in part, by the trier of 
 
            fact.  Id. at 907.  Further, the weight to be given to such 
 
            an opinion is for the finder of fact, and that may be 
 
            affected by the completeness of the premise given the expert 
 
            and other surrounding circumstances.  Bodish, 257 Iowa 516, 
 
            133 N.W.2d 867.  See also Musselman v. Cent. Tel. Co., 261 
 
            Iowa 352, 154 N.W.2d 128 (1967).
 
            
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            
 
            
 
                 In his petition for workers' compensation benefits, 
 
            claimant alleges disability due to neck, thoracic area and 
 
            shoulder pain.  On July 17, 1989, he was referred to the 
 
            Besler Chiropractic Center.  In a statement signed by the 
 
            claimant, he described an incident which allegedly occurred 
 
            on July 11, 1989, as follows:  "I was lifting a chunk of 
 
            foam on to my saw table & my neck got tight and hurt into 
 
            the back of the head, and also spasms.  I had been treated 
 
            for this same problem in April."  (Claimant's exhibit 8, 
 
            page 53).  Claimant treated with Dr. Besler through August 
 
            23, 1989.  During the course of treatment, he presented with 
 
            new complaints including right knee pain, cervical and 
 
            thoracic pain and right hip pain.
 
            
 
                 After chiropractic treatments, claimant was evaluated 
 
            on August 24, 1989 by Dr. Hughes who specializes in family 
 
            practice and occupational medicine.  Claimant's complaints 
 
            were referable to pain in the left side of his neck 
 
            radiating into his left arm.  On examination, there were no 
 
            objective neurological findings.  An EMG study was performed 
 
            which was normal.  He was placed into physical therapy and 
 
            by September 13, the pain and symptoms in his left cervical 
 
            region had largely abated, but were replaced by pain into 
 
            the left posterior thorax radiating around his chest into 
 
            his left anterior pectoral region.  On September 28, 1989, 
 
            claimant received an injection in the thoracic paraspinal 
 
            musculature at the T4 level.  On October 19, 1989, claimant 
 
            returned with complaints of pain on the right side of his 
 
            shoulder and in his neck.  An examination was unrevealing.  
 
            Claimant was redirected into physical therapy with a 
 
            different therapist, placed on muscle relaxants, and 
 
            continued on trycyclic anti-depressants.  He was confronted 
 
            with his failure to cooperate and his shifting 
 
            symptomatology.  Despite vigorous physical therapy, 
 
            claimant's condition did not improve and Dr. Hughes felt 
 
            that he should be seen by an independent medical examiner.  
 
            He stated that, "Further pursuance of our current form of 
 
            medical management is unlikely to be of any great benefit."  
 
            (Claimant's exhibit 1, pages 1-5).
 
            
 
                 On January 18, 1990, claimant was seen at the 
 
            University of Iowa Medical Center by Pontus Ostman, M.D., 
 
            and Bryan Pearson, M.D.  Claimant's complaints were 
 
            referable to a three-year history of thoracic, shoulder, 
 
            neck and rib pain exacerbated on May 2, 1989 while unloading 
 
            material off a saw table at work.  A physical examination 
 
            was essentially unremarkable.  He was referred to the Spinal 
 
            Rehabilitation Clinic because of his alleged debilitating 
 
            upper back pain (claimant's exhibit 1, page 6).
 
            
 
                 A rehabilitation evaluation was performed on April 23, 
 
            1990 at the Spine Diagnostic and Treatment Center.  At this 
 
            time, claimant presented with complaints of constant low 
 
            back pain.  Despite his low back discomfort, no structural 
 
            abnormalities causing low back pain were found (claimant's 
 
            exhibit 4, pages 23-25).
 
            
 
                 After completion of a Rehabilitation Program for 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            
 
            
 
            chronic low back pain from July 9 through July 20, 1990, 
 
            claimant was assigned a four percent body as a whole 
 
            impairment "based on a work-related injury sustained in May 
 
            of 1987" (emphasis added) (claimant's exhibit 7, page 47).
 
            
 
                 After carefully considering the total evidence in this 
 
            case, the undersigned concludes that claimant has not met 
 
            his burden of proving, by a preponderance of the evidence, 
 
            that he received an injury on July 11, 1989 which arose out 
 
            of and in the course of his employment with employer.  At 
 
            the hearing, claimant testified that he "popped his back" on 
 
            July 11, 1989.  However, he was initially treated for neck 
 
            complaints which he related to a July 11, 1989 injury.  
 
            Eventually, his complaints of neck pain resolved and he 
 
            complained of upper back pain and then lower back pain.  
 
            Throughout medical treatment, claimant did not relate any 
 
            specific work incident or injury which would have caused 
 
            back problems.  No physician who treated and/or examined him 
 
            causally connected his back problems to a work-related 
 
            injury in July 1989.  While there is a possibility that 
 
            claimant's work activities may have caused his injury, 
 
            claimant must prove not merely a possibility, but a 
 
            probability.  On this record, it cannot be said that 
 
            claimant has met his burden of proving, by a preponderance 
 
            of the evidence, that he sustained an injury on July 11, 
 
            1989 which is causally related to the disability on which he 
 
            now bases his claim.
 
            
 
                 Accordingly, other issues are moot.
 
            
 
                                      order
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 Claimant shall take nothing from this proceeding.
 
            
 
                 Each of the parties shall pay their own costs pursuant 
 
            to rule 343 IAC 4.33.
 
            
 
                 Signed and filed this ______ day of ____________, 1991.
 
            
 
                 
 
            
 
                 
 
                 
 
                                          ______________________________
 
                                          JEAN M. INGRASSIA
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. James P. Hoffman
 
            Attorney at Law
 
            Middle Road
 
            P.O. Box 1087
 
            Keokuk, Iowa  52632
 
            
 
            Mr. Brendan T. Quann
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            
 
            
 
            Attorney at Law
 
            200 CyCare Building
 
            Dubuque, Iowa  52001
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                           5-1402.30
 
                           Filed June 19, 1991
 
                           JEAN M. INGRASSIA
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            PATRICK KELLY, :
 
                      :
 
                 Claimant, :
 
                      :
 
            vs.       :         File No. 931176
 
                      :
 
            LEAR SIEGLER,  :      A R B I T R A T I O N
 
                      :
 
                 Employer, :         D E C I S I O N
 
                      :
 
            and       :
 
                      :
 
            NATIONAL UNION FIRE INSURANCE,:
 
                      :
 
                 Insurance Carrier,  :
 
                 Defendants.    :
 
            ____________________________________________________________
 
            
 
            5-1402.30
 
            Claimant did not meet his burden of proof that he sustained 
 
            a work-related injury arising out of and in the course of 
 
            his employment with employer.  No physician who treated or 
 
            examined claimant causally connected his numerous subjective 
 
            complaints to a work injury.