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                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            JOHN F. BLANCHARD,  :
 
                      :
 
                 Claimant, :
 
                      :
 
            vs.       :
 
                      :       File No. 931382
 
            OMAHA COLD STORAGE, :
 
                      :    A R B I T R A T I O N
 
                 Employer, :
 
                      :       D E C I S I O N
 
            and       :
 
                      :
 
            LIBERTY MUTUAL INSURANCE,     :
 
                      :
 
                 Insurance Carrier,  :
 
                 Defendants.    :
 
            ___________________________________________________________
 
            
 
            This is a proceeding in arbitration brought by John F. 
 
            Blanchard, (claimant), commenced with the filing of a 
 
            petition on February 20, 1990 against Omaha Cold Storage 
 
            (OCS), employer, and Liberty Mutual Insurance Company 
 
            (Liberty) (collectively defendants) for worker's 
 
            compensation benefits as a result of an alleged injury to 
 
            claimant's back occurring on June 23, 1989.  On October 31, 
 
            1990, the matter came on for hearing at the Webster County 
 
            Courthouse in Fort Dodge, Iowa.  The parties appeared as 
 
            follows:  the claimant in person and by his counsel Monty L. 
 
            Fisher of Fort Dodge, Iowa and OCS and Liberty by their 
 
            counsel Stephen G. Kersten of Fort Dodge, Iowa.
 
            The record in this proceeding consisted of the following:
 
            1.  The live testimony of the claimant; Kelly Blanchard; Ray 
 
            Cox and Dale Cox. 
 
            2.  Claimant's exhibits 1-13 and defendants' exhibits A-H.
 
            At the close of all evidence, the case was deemed fully 
 
            submitted. 
 
                                   stipulations
 
            The parties stipulated to the following matters at the time 
 
            of the hearing: 
 
            That an employer/employee relationship existed between 
 
            claimant and employer at the time of the alleged injury. 
 
            That the type of permanent disability, if the injury is 
 
            found to be a cause of permanent disability, is industrial 
 
            disability to the body as a whole.
 
            That the rate of compensation, in the event of an award, is 
 
            $258.36 per week.  Claimant is married and has one child.  
 
            He is entitled to three exemptions. 
 
            The fees charged for medical services are fair and 
 
            reasonable and the expenses were incurred for reasonable and 
 

 
            
 
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            necessary medical treatment. 
 
            That defendants make no claim for employee nonoccupational 
 
            group health plan benefits paid prior to hearing. 
 
            The parties have stipulated to the costs.
 
            That there are no bifurcated claims. 
 
            The parties agreed to have the undersigned take judicial 
 
            notice of the transcript of a worker's compensation 
 
            proceeding involving the claimant and DeckeróTrucking held on 
 
            April 4, 1990.
 
                                      issues
 
            1.  Whether the claimant sustained an injury on June 23, 
 
            1989 that arose out of and in the course of his employment.
 
            2.  Entitlement to temporary disability benefits, healing 
 
            period benefits or permanent disability benefits.
 
            3.  Entitlement to medical benefits under Iowa Code section 
 
            85.27 (1989) including whether the medical expenses are 
 
            causally connected to the work injury, whether the expenses 
 
            of treatment are causally connected to the medical condition 
 
            upon which claimant is now basing his claim and whether the 
 
            medical expenses were authorized by the employer.
 
            findings of fact
 
            After considering all of the evidence and the arguments of 
 
            counsel, the undersigned makes the following findings of 
 
            fact and conclusions of law.
 
            1.  The undersigned finds that the claimant is not credible.  
 
            There were simply too many discrepancies between the 
 
            claimant's testimony at the trial of this matter with prior 
 
            testimony given on a related claim and the documentary 
 
            evidence offered into evidence here.  Additionally, claimant 
 
            was effectively impeached at the time of the trial on this 
 
            matter.  Finally, and most importantly, there are serious 
 
            omissions from the histories and employment record given by 
 
            claimant, whether inadvertent or not, that support this 
 
            conclusion. 
 
            2.  Claimant was 28 years old at the time of this hearing.  
 
            He is married and has one dependant.  
 
            3.  Claimant's educational history is limited.  Claimant 
 
            finished either 8th or 9th grade.  The testimony from April 
 
            4, 1990 and October 31, 1990 is inconsistent on this point.  
 
            The undersigned concludes that claimant did not finish high 
 
            school and has not obtained a GED certificate. 
 
            4.  Claimant's work history involves jobs as a construction 
 
            worker, a truck driver, and currently, a small business 
 
            owner.  
 
            5.  In 1985, while employed with Giese Construction Company, 
 
            claimant was lifting a heavy concrete form and suffered an 
 
            injury to his lower back.  Claimant was treated by Samir R. 
 
            Wahby, M.D., and was found to have a five percent (5%) 
 
            permanent impairment to his lower back.  Claimant filed a 
 
            claim for workers compensation benefits and was awarded ten 
 
            percent industrial disability.  See, Blanchard v. Giese 
 
            Construction Co., File No. 811621 (Iowa Ind. Comm'r Dec. 23, 
 
            1987). 
 
            6.  After claimant's injury, he decided to leave 
 

 
            
 
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            construction work and pursue truck driving full time.  
 
            Claimant's 1986 tax return reflects this change.  In 1987, 
 
            claimant began to drive for Decker Trucking (Decker).
 
            7.  On October 4 or 5, 1987, claimant was assigned by Decker 
 
            to drive a load of wallboard to Chicago.  Claimant went to 
 
            get his load and was required to dolly down the trailer 
 
            because it was too high for his fifth wheel.  When claimant 
 
            began to crank the trailer down, he felt a sharp pain in his 
 
            back (Decker injury).  He decided to make the run to Chicago 
 
            anyway.  By the time claimant reached Morris, Illinois, he 
 
            could go no further.  He had severe pain in his back.  He 
 
            was taken by ambulance to a hospital in Morris and examined 
 
            by physicians there. 
 
            8.  Cesario Cumba, M.D., examined claimant upon his 
 
            admission to the Morris hospital after the Decker injury.  
 
            Dr. Cumba ordered a CT scan and consulted with an orthopedic 
 
            surgeon.  The CT scan showed at the L4-5 level a prominent 
 
            protrusion of the discs in the midline and to the left which 
 
            would be most consistent with a herniated nucleus pulposus 
 
            at this site resulting from the Decker injury.  
 
            Additionally, at the L5-S1 level there was a slight 
 
            prominence of the intervertebral disc in the midline and 
 
            toward the right, which although nonspecific favored a 
 
            bulging disc. 
 
            9.  Dr. Cumba recommended surgery to repair the herniated 
 
            disc at L4-5 resulting from the Decker injury.  Claimant 
 
            decided to return to Ft. Dodge for the procedure and to 
 
            consult with his own doctor.  
 
            10. Claimant was admitted to Trinity Regional Medical Center 
 
            on October 7, 1987 under the care of Dr. Wahby for treatment 
 
            of the Decker injury..  Claimant was placed in traction and 
 
            his films from the hospital in Morris were reviewed.  The 
 
            radiologist in Ft. Dodge concluded there was a disc 
 
            protrusion at L4-5, evidencing a disc herniation on the left 
 
            and centrally.  After the initial examination and admission 
 
            to Trinity, Dr. Wahby planned to do a lumbar myelogram and a 
 
            possible lumbar laminectomy to repair the damage from the 
 
            Decker injury. 
 
            11. Claimant improved however and the myelogram study was 
 
            not done.  Claimant was discharged on October 10, 1987 and 
 
            was released to return to work at Decker on October 23, 
 
            1987.  Dr. Wahby opined in letters dated May 5, 1986 and 
 
            June 19, 1987 that claimant would have a five percent 
 
            functional impairment from the Decker injury.  William R. 
 
            Boulden, M.D., corroborated this conclusion in his 
 
            deposition of January 9, 1990..  This functional impairment 
 
            rating is adopted as the correct rating for the Decker 
 
            injury, even though Dr. Wahby apparently changed his mind in 
 
            January of 1989 when he reported to Liberty that claimant 
 
            had no permanent functional impairment arising from the 
 
            Decker injury. 
 
            12. Claimant returned to work with Decker and continued in 
 
            that employment until February of 1988.  At that point, 
 
            claimant voluntarily terminated his position with Decker. 
 

 
            
 
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            13. On February 17, 1988, Claimant began working for 
 
            Smithway Motor Express, another Fort Dodge trucking company.  
 
            Claimant voluntarily left this employment on March 29, 1988. 
 
            14. Sometime thereafter, claimant began to drive for Crouse 
 
            Cartage (Crouse).  Sometime before May 13, 1988, while on a 
 
            run to Kansas City, claimant experienced a severe sharp pain 
 
            in his back (Crouse injury).  On May 13, 1988, he was 
 
            examined by Dr. Wahby.  Dr. Wahby noted considerable 
 
            tenderness in the lower lumbar region and set up an 
 
            appointment with Dr. Hayne in Des Moines for a second 
 
            opinion regarding the Crouse injury.  There is no evidence 
 
            in the record that claimant ever kept this appointment with 
 
            Dr. Hayne. 
 
            15. Claimant's testimony regarding the length of time he was 
 
            incapacitated from this injury is inconsistent with the 
 
            documentary evidence.  Based upon claimant's sworn statement 
 
            to the Department of Human Services dated August 10, 1988, 
 
            the undersigned finds that claimant was incapacitated until 
 
            at least August 10, 1988 as a result of the Crouse injury.  
 
            During this time period, claimant was not working and he was 
 
            not able to drive a truck. 
 
            16. Sometime after August 10, 1988, claimant worked for Bill 
 
            Meek shagging trucks in the Fort Dodge area.  That job ended 
 
            sometime in the fall.  Claimant applied for a position with 
 
            OCS on November 10, 1988.  On November 16, 1988 claimant was 
 
            hired by OCS as an over the road truck driver, driving a 
 
            route in the five state area basing out of Fort Dodge. 
 
            17. Claimant continued to have pain in his lower back and in 
 
            his legs.  On March 2, 1989, claimant indicated to an 
 
            unnamed physician at the McFarland Clinic in Ames, that at 
 
            times he was unable to lift his legs.  In the history given 
 
            by claimant he reports that he had not had any pain in his 
 
            back until, "one year ago" and the pain is not getting any 
 
            better.  However, claimant did not mention the Crouse 
 
            injury.  Instead, he described the Decker injury.
 
            18. On or about June 23, 1989, while on a trip for OCS from 
 
            Albert Lea Minnesota to St. Joseph Missouri, something 
 
            happened to claimant's back.(OCS injury)  By the time 
 
            claimant reached St. Joseph his movement was limited and he 
 
            was in pain.  Claimant returned to Fort Dodge and delivered 
 
            his paperwork to the office manager at OCS, Dale Cox. 
 
            19. When claimant delivered his paperwork, Ms. Cox noticed 
 
            that claimant's back was crooked and that one shoulder was 
 
            lower than the other.  Ms. Cox asked claimant what was wrong 
 
            and was advised by claimant that his back had flared up 
 
            again as a result of the Decker injury. 
 
            20. The next day, Ray Cox, the manager at OCS in Fort Dodge, 
 
            and Dale Cox visited claimant at his home.  Claimant was 
 
            lying on the floor, in pain when they arrived.  The Coxes 
 
            recommended that claimant seek medical attention.  On June 
 
            26, 1989, claimant traveled to the McFarland Clinic in Ames 
 
            for an examination.  Claimant complained of pain and 
 
            requested surgery for his back.  He was referred to Dr. 
 
            Grant.  Claimant then waited about two more weeks before he 
 

 
            
 
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            saw another physician.  Claimant saw Dr. Johnson who 
 
            recommended that he be admitted to Lutheran Hospital in Des 
 
            Moines for a CT scan.  Claimant was admitted to Lutheran on 
 
            July 17, 1989.  The CT scan showed a disc protrusion at L4-5 
 
            and L5-S1.  Claimant was then seen by Dr. Boulden who 
 
            recommended surgical decompression.  A bilateral diskectomy 
 
            at L4-5 with a fat graft and a diskectomy at L5-S1 on the 
 
            right with a fat graft were successfully performed.  
 
            Claimant was discharged on July 24, 1989. 
 
            21. In the Lutheran admission history given to Dr. Johnson, 
 
            claimant indicated that his back had caused him difficulty 
 
            for about a year.  Claimant told Dr. Johnson that he was 
 
            unloading some heavy weight and experienced pain in his low 
 
            back that increased in severity to the point that he was 
 
            seen by Dr. Wahby in Fort Dodge.  This part of the history 
 
            comports with the date of the Crouse injury.  But claimant 
 
            described the diagnosis and treatment that he received for 
 
            the Decker injury.  Claimant failed to indicate that the 
 
            Crouse injury had incapacitated claimant for at least three 
 
            months (May 13, 1988 to August 10, 1988). 
 
            22. After recovering from the surgery and participating in a 
 
            physical therapy program, Dr. Boulden concluded that 
 
            claimant had reached his maximum medical healing on October 
 
            12, 1989.  Claimant was restricted to lifting 40 to 50 
 
            pounds on a repetitive basis and 50 to 75 pounds on an 
 
            occasional basis.  In correspondence dated October 12, 1989 
 
            between claimant's attorney and Dr. Boulden, Dr. Boulden 
 
            indicated that claimant would not be released to drive a 
 
            truck.  Dr. Boulden did release claimant to work within 
 
            these functional limits, however. 
 
            23. When claimant's therapy was concluded, he went back to 
 
            OCS and advised his employer that his doctors had released 
 
            him to drive again.  On October 16, 1989, Claimant took one 
 
            load to St. Joseph, Missouri.  Upon his return, claimant's 
 
            back was sore.  OCS would not permit claimant to drive again 
 
            until he had a written release.  When the release was not 
 
            forthcoming, claimant resigned his position with OCS. 
 
            24. On October 12, 1989, Dr. Boulden also gave claimant a 15 
 
            percent permanent functional impairment rating.  In January 
 
            of 1990, Dr. Boulden explained how he reached this rating 
 
            and how he apportioned the rating between claimant's 
 
            injuries and claimant's various employers.  Dr. Boulden 
 
            indicated that based on the history given by claimant and 
 
            from his review of medical records from the 1987 Decker 
 
            injury, he believed that claimant's ability to continuously 
 
            drive with periods of on and off spells of back pain 
 
            compelled him to conclude that two thirds of the functional 
 
            impairment was attributable to the last employer, OCS.(1) 
 
 
 
 
 
            (1)  In Dr. Boulden's deposition he repeatedly referred to 
 
            the fact that the claimant continued to drive for the entire 
 
            20 month period before his last incident with OCS.  See, 
 
            Boulden Deposition January 9, 1990, p. 8 , lines 4-14; p. 9, 
 
            lines 16-25, p. 10, lines 1-4; p. 10, lines 14-25, p. 11 
 
            lines 1-18; p. 12 lines 2-24; p. 13 lines 1-14; p. 20, lines 
 
            16-25, p. 21 lines 1; p. 25 lines 1-25, p. 26 lines 1-3.
 
            
 
            
 
            
 
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            25. Dr. Boulden based his opinion of apportionment for the 
 
            permanent functional impairment on incomplete information.  
 
            Dr. Boulden based his opinion on the incorrect assumption 
 
            that claimant had continuously worked with on and off 
 
            symptoms until 1989, when in fact, claimant had been injured 
 
            and incapacitated for at least three months.  Without this 
 
            information, Dr. Boulden's assignment of liability for the 
 
            second injury is accorded no weight.
 
            26. As a result of his surgery claimant incurred the 
 
            following medical expenses:
 
            Central Iowa Orthopaedics            $5,125.00
 
            Central Iowa Pathologists              $170.00
 
            DM Anesthesiologists                   $528.00
 
            Manual Therapy Center                   $87.50
 
            Lutheran Hospital                    $4,897.72
 
                               TOTAL:           $10,808.22
 
            27. Claimant is now engaged in the salvage business.  He 
 
            recovers scrapmetal and sells it.  He also performs 
 
            demolition work.  He nets approximately $1,000 to $1,100 per 
 
            month.  He generally employs two employees and owns some 
 
            heavy equipment. 
 
            
 
                         analysis and conclusions of law 
 
            1.  Whether the claimant sustained an injury on June 23, 
 
            1989 that arose out of and in the course of his employment.  
 
            Iowa Code section 85.31 (1989) provides that an employee is 
 
            entitled to compensation for any and all personal injuries 
 
            which arise out of and in the course of the employment.  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 the employee is doing work assigned 
 
            by the employer or something incidental to it.  Cedar Rapids 
 
            Community School District v. Cady, 278 N.W.2d 298, 299 (Iowa 
 
            1979), McClure v. Union County, 188 N.W.2d 283, 287 (Iowa 
 
            1971); Musselman v. Central Telephone Co., 154 N.W.2d 128, 
 
            130 (1967).  The words "arising out of" have been 
 
            interpreted to refer to the cause and origin of the injury.  
 
            McClure, 188 N.W.2d at 287;  Crowe v. DeSoto Consolidated 
 
            School District, 68 N.W.2d 63, 65 (Iowa 1955).  The words 
 
            "in the course of" refer to the time, place and 
 
            circumstances of the injury.  McClure, 188 N.W.2d at 287; 
 
            Crowe, 68 N.W.2d at 65. 
 
            The facts are uncontroverted that claimant sustained an 
 
            injury on the trip to St. Joseph on either June 22 or June 
 
            23, 1989.  Claimant, even though his back was sore, was not 
 
            incapacitated when he left OCS to make this run.  Something 
 
            happened on the way to St. Joseph that triggered the later 
 
            back problem.  As a result, claimant sustained an injury on 
 
            June 23, 1989 that arose out of claimant's employment.
 
            Defendants have urged that claimant's preexisting back 
 
            condition was the cause of the injury on June 23, 1989 
 
            rather than any specific event that occurred while claimant 
 
            worked for OCS.  There is no requirement that there be a 
 
            specific traumatic event to make an employer liable for an 
 
            injury occurring to an employee while engaged in the 
 

 
            
 
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            employer's pursuits.  It is enough if there is some hurt or 
 
            damage that occurs during the course of employment that 
 
            makes the employer liable.  Almquist v. Shenandoah 
 
            Nurseries, 254 N.W. 35, 38 (Iowa 1934)  In Almquist, the 
 
            Supreme Court discussed the definition of personal injury in 
 
            worker's compensation cases.  See, Almquist, 254 N.W. at 38.  
 
            It found:
 
            While a personal injury does not include an occupational 
 
            disease under the Workmen's Compensation Act, yet an injury 
 
            to the health may be a personal injury.  [Citations 
 
            omitted.]  Likewise a personal injury includes a disease 
 
            resulting from an injury....The result of changes in the 
 
            human body incident to the general processes of nature do 
 
            not amount to a personal injury.  This must follow, even 
 
            though such natural change may come about because the life 
 
            has been devoted to labor and hard work.  Such result of 
 
            those natural changes does not constitute a personal injury 
 
            even though the same brings about impairment of health or 
 
            the total or partial incapacity of the functions of the 
 
            human body. 
 
            
 
                    ....
 
 
 
            A personal injury, contemplated by the Workmen's 
 
 
 
            Compensation Law, obviously means an injury to the body, the 
 
 
 
            impairment of health, or a disease, not excluded by the act, 
 
 
 
            which comes about, not through the natural building up and 
 
 
 
            tearing down of the human body, but because of a traumatic 
 
 
 
            or other hurt or damage to the health or body of an 
 
 
 
            employee.  [Citations omitted.]  The injury to the human 
 
 
 
            body here contemplated must be something, whether an 
 
 
 
            accident or not, that acts extraneously to the natural 
 
 
 
            processes of nature, and thereby impairs the health, 
 
 
 
            overcomes, injures, interrupts, or destroys some function of 
 
 
 
            the body, or otherwise damages or injures a part or all of 
 
 
 
            the body.
 
 
 
            Consistent with this result, the Supreme Court has also held 
 
 
 
            that while a claimant is not entitled to compensation for 
 
 
 
            the results of a preexisting injury or disease, the mere 
 
 
 

 
            
 
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            existence at the time of a subsequent injury is not a 
 
 
 
            defense.  Rose v. John Deere Ottumwa Works, 76 N.W.2d 756, 
 
 
 
            760-61 (Iowa 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., 115 N.W.2d 812, 815 (Iowa 1962).  Moreover, the 
 
 
 
            employer takes an employee subject to any active or dormant 
 
 
 
            health impairments.  Ziegler v. United States Gypsum Co.,. 
 
 
 
            106 N.W.2d 591, 595 (1960), and cases cited therein.  
 
 
 
            Consequently, the defendants' argument in this regard has no 
 
 
 
            support and must fail. 
 
 
 
            2.  Temporary disability--healing period--permanent 
 
 
 
            disability. 
 
 
 
            Even though claimant has established that he suffered an 
 
 
 
            injury in the course of his employment, he has the burden of 
 
 
 
            proving by a preponderance of the evidence that the injury 
 
 
 
            of June 23,1989, is causally related to a temporary or 
 
 
 
            permanent disability on which he now bases his claim.  
 
 
 
            Bodish v. Fischer, Inc., 133 N.W.2d 867, 868 (Iowa 1965);  
 
 
 
            Lindahl v. L. O. Boggs, 18 N.W.2d 607,613-14 (Iowa 1945).  
 
 
 
            A possibility is insufficient; a probability is necessary.  
 
 
 
            Burt v. John Deere Waterloo Tractor Works, 73 N.W.2d 732, 
 
 
 
            738 (Iowa 1955).  The question of causal connection is 
 
 
 
            essentially within the domain of expert testimony.  Bradshaw 
 
 
 
            v. Iowa Methodist Hospital, 101 N.W.2d 167,171 (Iowa 1960).  
 
 
 
            Expert medical evidence must be considered with all other 
 
 
 

 
            
 
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            evidence introduced bearing on the causal connection.  Burt, 
 
 
 
            73 N.W.2d at 738.  The opinion of the experts need not be 
 
 
 
            couched in definite, positive or unequivocal language.  
 
 
 
            Sondag v. Ferris Hardware, 220 N.W.2d 903, 907 (Iowa 1974).  
 
 
 
            Moreover, the expert opinion may be accepted or rejected, in 
 
 
 
            whole or in part, by the trier of fact.  Sondag, 220 N.W.2d 
 
 
 
            at 907.  Finally, 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 
 
 
 
            material circumstances.  Bodish, 133 N.W.2d at 870; 
 
 
 
            Musselman, 154 N.W.2d at 133.
 
 
 
            Claimant has sustained his burden of proof on the issue of 
 
 
 
            entitlement to temporary total disability benefits for the 
 
 
 
            period between June 23, 1989 and October 12, 1989.  However, 
 
 
 
            claimant has failed to sustain his burden of proof on the 
 
 
 
            issue of permanency. 
 
 
 
            Claimant's case for permanency against these defendants 
 
 
 
            rises or falls on the opinion of Dr. Boulden and his 
 
 
 
            conclusion that the last employer is responsible for 
 
 
 
            two-thirds of the functional impairment rating.  Dr. 
 
 
 
            Boulden's conclusion was based on incomplete information 
 
 
 
            concerning all of claimant's injuries.  The omission of the 
 
 
 
            Crouse injury invalidates Dr. Boulden's conclusion since it 
 
 
 
            is based on the erroneous assumption that claimant 
 
 
 
            continuously drove trucks between October 1987 and June 1989 
 
 
 
            without serious incident or periods of incapacity.  Claimant 
 
 
 
            in fact had a significant period of incapacity that was 
 
 
 

 
            
 
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            triggered by the Crouse injury that prevented him from 
 
 
 
            driving trucks.  Claimant has no other credible proof 
 
 
 
            linking the incident in June of 1989 to his functional 
 
 
 
            impairment.  Because Dr. Boulden used a faulty premise to 
 
 
 
            reach his conclusion, claimant has failed in his proof and 
 
 
 
            has not shown by a preponderance of the evidence that the 
 
 
 
            injury sustained on June 23, 1989 is the cause of the 
 
 
 
            disability upon which he now bases his claim. 
 
 
 
            Pursuant to Iowa Code sections 85.32 and 85.33 (1989, 
 
 
 
            temporary total disability of more than 14 days is payable 
 
 
 
            in effect from the injury until the employee has returned to 
 
 
 
            work or is medically capable of returning to substantially 
 
 
 
            similar employment, whichever first occurs.  Dr. Boulden 
 
 
 
            indicated that claimant had reached maximum medical benefit 
 
 
 
            on October 12, 1989, which would be appropriate in 
 
 
 
            determining his healing period under Iowa Code section 85.34 
 
 
 
            (1989) if permanency benefits were awarded.  However, 
 
 
 
            maximum medical improvement, one of the tests for ending a 
 
 
 
            healing period, is not a test for determining the end of 
 
 
 
            temporary total disability.  Claimant returned to work (at 
 
 
 
            another job) on approximately October 12, 1989.  There is no 
 
 
 
            clear evidence indicating the precise date that claimant 
 
 
 
            began to work again.  He indicated that it was shortly after 
 
 
 
            he had been released by Dr. Boulden that he became self 
 
 
 
            employed.  Claimant did establish that his inability to work 
 
 
 
            from June 23, 1989 through October 12, 1989, was causally 
 
 
 
            related to the flare-up of back symptoms and subsequent 
 
 
 

 
            
 
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            surgery.  Temporary total disability benefits shall be 
 
 
 
            awarded pursuant to the parties' stipulation. 
 
 
 
            3.  Entitlement to medical expenses
 
 
 
            Additionally, Claimant has the burden of demonstrating that 
 
 
 
            medical expenses were related to the injury in order to have 
 
 
 
            the expenses reimbursed or paid.  Auxier v. Woodward State 
 
 
 
            Hospital, 266 N.W. 2d 139, 144 (1978).  Claimant has shown 
 
 
 
            by a clear preponderance of the evidence that he was injured 
 
 
 
            while working for OCS.  Iowa Code section 85.27 (1989) 
 
 
 
            requires the employer to pay the reasonable cost of the 
 
 
 
            claimant's medical expenses attributable to the injury.  In 
 
 
 
            this instance, OCS is responsible for the medical expenses 
 
 
 
            incurred by claimant during the period between June 23, 1989 
 
 
 
            and October 12, 1989 and enumerated in paragraph 26 above.
 
 
 
            Under Iowa Code section 85.27 (1989) an employer has the 
 
 
 
            responsibility to provide an injured worker with reasonable 
 
 
 
            medical care and has the right to select the care the worker 
 
 
 
            will receive.  In order for the employer to be held 
 
 
 
            responsible for claimant's medical expenses, claimant must 
 
 
 
            show that the treatment sought was either of an emergency 
 
 
 
            nature or was authorized.  Templeton v. Little Giant Crane & 
 
 
 
            Shovel, 1 State of Iowa Industrial Commissioner Decisions 
 
 
 
            No. 3, 702, 704 (Iowa Ind. Comm'r Appeal 1985).  An employee 
 
 
 
            may engage medical services if the employer has expressly or 
 
 
 
            impliedly conveyed to the employee the impression that the 
 
 
 
            employee has authorization to proceed in this fashion.  2 
 
 
 
            Larson's Workmen's Compensation Section 61.12(g) (1990).  It 
 
 
 

 
            
 
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            is clear from the evidence given at trial that OCS 
 
 
 
            authorized the medical treatment for the claimant.  Both Ray 
 
 
 
            and Dale Cox advised the claimant to go see a doctor in 
 
 
 
            connection with his back.  The claimant could reasonably 
 
 
 
            rely on this advice from his employer that he had its 
 
 
 
            authority to seek medical treatment for his back.
 
 
 
            order
 
 
 
            THEREFORE, it is ordered:
 
 
 
            1.  Omaha Cold Storage and Liberty Mutual Insurance Company 
 
 
 
            shall pay to claimant temporary total disability commencing 
 
 
 
            on June 23, 1989 and ending on October 12, 1989, at the 
 
 
 
            stipulated rate of two hundred fifty-eight and 36/100 
 
 
 
            dollars ($258.36).  As these benefits have accrued, they 
 
 
 
            shall be paid in a lump sum together with statutory  
 
 
 
            interest thereon pursuant to Iowa Code section 85.30. 
 
 
 
            2.  Omaha Cold Storage and Liberty Mutual shall pay the 
 
 
 
            following medical providers:
 
 
 
            Central Iowa Orthopaedics             $5,125.00
 
 
 
            Central Iowa Pathologists               $170.00
 
 
 
            DM Anesthesiologists                    $528.00
 
 
 
            Manual Therapy Center                    $87.50
 
 
 
            Lutheran Hospital                     $4,897.72
 
 
 
                               TOTAL:            $10,808.22
 
 
 
            3.  The costs of this action shall be assessed to Omaha Cold 
 
 
 
            Storage and Liberty Mutual pursuant to rule 343 IAC 4.33. 
 
 
 
            4.  Omaha Cold Storage and Liberty Mutual shall file claim 
 
 
 
            activity reports as required by rule 343 IAC 3.1.
 
 
 

 
            
 
            Page  13
 
            
 
            
 
            
 
            
 
            Signed and filed this ____ day of February, 1991.
 
 
 
            
 
 
 
            
 
 
 
            
 
 
 
                      ________________________________
 
 
 
                      ELIZABETH A. NELSON
 
 
 
                      DEPUTY INDUSTRIAL COMMISSIONER
 
 
 
            
 
 
 
            Copies To:
 
 
 
            
 
 
 
            Mr Monty L Fisher
 
 
 
            Attorney at Law
 
 
 
            Snell Building Ste 200
 
 
 
            PO Box 1560
 
 
 
            Fort Dodge Iowa 50501
 
 
 
            
 
 
 
            Mr Stephen G Kersten
 
 
 
            Attorney at Law 
 
 
 
            Seventh Floor Snell Bldg
 
 
 
            PO Box 957
 
 
 
            Fort Dodge Iowa 50501-0957
 
 
 
            
 
 
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
                      5-1402; 5-1801; 2503
 
                      1402.60
 
                      Filed February 26, 1991
 
                      ELIZABETH A. NELSON
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            JOHN F. BLANCHARD,  :
 
                      :
 
                 Claimant, :
 
                      :
 
            vs.       :
 
                      :       File No. 931382
 
            OMAHA COLD STORAGE, :
 
                      :    A R B I T R A T I O N
 
                 Employer, :
 
                      :       D E C I S I O N
 
            and       :
 
                      :
 
            LIBERTY MUTUAL INSURANCE,     :
 
                      :
 
                 Insurance Carrier,  :
 
                 Defendants.    :
 
            ___________________________________________________________
 
            
 
            5-1402
 
            Inconsistencies in claimant's testimony from this hearing 
 
            and prior hearing, coupled with inaccurate histories given 
 
            to several treating physicians, including the primary 
 
            treating physician led to the conclusion that claimant was 
 
            not credible and failed to meet his burden of proof.  
 
            Claimant was able to show that he was injured while in 
 
            defendant's employ, but he was unable to show that he 
 
            suffered any permanency.
 
            
 
            5-1801
 
            Claimant was awarded temporary total disability benefits 
 
            from the injury date to the date he was able to return to 
 
            another job.  The evidence indicated that the day claimant 
 
            was able to work again was the day his primary treating 
 
            physician indicated he reached maximum medical improvement.
 
            
 
            1402.60, 2503,
 
            Claimant was entitled to medical benefits for the injury 
 
            suffered while working for defendant.  The employer 
 
            impliedly conveyed its authorization for medical services to 
 
            claimant when its local managers visited claimant a day 
 
            after the injury and advised him that he ought to go see a 
 
            doctor about his back.  Claimant could reasonably rely on 
 
            this advice from his employer that he had its authority to 
 
            seek medical treatment for his back.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            LARRY J. SHANON,    :
 
                      :
 
                 Claimant, :      File No. 931388
 
                      :
 
            vs.       :    A R B I T R A T I O N
 
                      :
 
            BILL WEITL TRUCKING,     :      D E C I S I O N
 
                      :
 
                 Employer, :
 
                 Defendant.     :
 
            ___________________________________________________________
 
            
 
            This is a proceeding in arbitration brought by Larry J. 
 
            Shanon (claimant) commenced with the filing of a petition on 
 
            February 9, 1990 against Bill Weitl Trucking (Trucking), 
 
            employer as a result of an alleged injury to claimant's 
 
            abdomen resulting in a left inguinal hernia occurring on 
 
            December 20, 1989.  On February 13, 1991 the matter came on 
 
            for hearing in Fort Dodge Iowa.  The parties appeared as 
 
            follows:  the claimant in person and by his counsel Warren 
 
            L. Bush of Wall Lake, Iowa and Trucking by its counsel 
 
            Darwin Bunger of Carroll, Iowa.  
 
            The record in this proceeding consisted of the following:
 
            
 
                 1.  The live testimony of the claimant, Bill Weitl, 
 
                 Shona Weitl, Rhonda Weitl.  
 
            2.  Claimant's exhibits 1-8
 
            
 
                 3.  Defendants' exhibits A-E, with Exhibit B consisting 
 
                 of photographs identified as B1 through B10.
 
            At the close of all evidence, the case was deemed to be 
 
            fully submitted.
 
            stipulations
 
            
 
                 The parties stipulated to the following matters at the 
 
            time of the hearing:
 
            
 
                 An employer-employee relationship existed between 
 
            claimant and employer at the time of the alleged injury.
 
            
 
                 The alleged injury did not cause a permanent 
 
            disability.
 
            
 
                 The time off work is stipulated to be from December 20, 
 
            1989 to March 12, 1990.
 
            
 
                 Claimant is not entitled to any permanent disability 
 
            benefits.
 
            
 
                 The rate of compensation, in the event of an award, is 
 
            $197.20 per week. Claimant is married and has two children.  
 
            He is entitled to four exemptions.
 
            
 
                 The fees charged for medical services are fair and 
 
            reasonable and the expenses were incurred for reasonable and 
 
            necessary medical treatment.  Defendants are not offering 
 
            and contrary evidence.
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
                 The causal connection of the expenses to treatment for 
 
            a medical condition upon which claimant is now basing his 
 
            claim is admitted but that the causal connection of this 
 
            condition to a work injury remains an issue to be decided in 
 
            these proceedings.
 
            
 
                 That defendants make no claim for employee 
 
            nonoccupational group health plan benefits paid prior to 
 
            hearing.
 
            That there are no bifurcated claims
 
            Issues
 
The issues for resolution are as follows:
 
            1.  Whether claimant sustained an injury on December 20, 
 
            1989 which arose out of and in the course of his employment.
 
            
 
            2.  Whether a causal relationship exists between claimant's 
 
            claimed injuries and the claimed entitlement to temporary 
 
            total disability benefits he is seeking.
 
            3.  Whether claimant is entitled to medical benefits, 
 
            including a determination of causal connection to the work 
 
            injury and the causal connection of this condition to a work 
 
            injury.
 
 
 
            
 
            FINDINGS OF FACT
 
            After considering all of the evidence and the arguments of 
 
            counsel, the undersigned makes the following findings of 
 
            fact and conclusions of law.
 
            1.  Claimant began working for Trucking in October of 1989 
 
            as a truck driver.  Trucking is an independent over the road 
 
            trucking company headquartered in Manning, Iowa.  The 
 
            business is owned by Bill and Shona Weitl.  Trucking does 
 
            not have workers compensation insurance coverage.  In 1989, 
 
            as part of Trucking's regular business, its drivers were 
 
            driving trailers full of bones from the Beef America Plant 
 
            in Norfolk Nebraska to the Boyer Valley Dog Food Plant in 
 
            Denison Iowa twice a day.
 
            2.  The bone run consisted of driving two empty trailers to 
 
            the Beef America plant in Norfolk and picking up loaded 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            trailers for delivery to Boyer Valley.  Once the trailers 
 
            were unloaded, the driver returned with empty trailers to 
 
            the Norfolk Nebraska plant, picked up two more trailers, 
 
            hauled the bones to Denison, dropped the trailers in Denison 
 
            and then drove the tractor to Manning at the end of the day.  
 
            When the trailers are dropped in Denison they generally 
 
            remain hooked together, though sometimes the trailers are 
 
            separated.
 
            3.  The bone run trailers are connected by a 1 ton unit 
 
            called a converter.  The converter is on wheels.  Each time 
 
            trailers are delivered or picked up, the trailers are 
 
            separated and the converter is moved so that the next set of 
 
            trailers can be attached to the tractor.  The converter is 
 
            necessary whether the trailers are full or empty.
 
            4.  When a driver arrives at the Norfolk plant to pick up 
 
            the first load of the day, the driver first pulls the 
 
            trailers over scales located at the Coop near the plant.  
 
            Once the empty trailers have been weighed, the driver pulls 
 
            the trailers over railroad tracks and turns into a driveway 
 
            that is adjacent to a fenced yard.  The driver drops the 
 
            back trailer near the road and then drives through the 
 
            service gate with a single trailer.  He turns around and 
 
            backs the converter gear as close to the loaded trailer as 
 
            possible.  After the converter gear is dropped off, the 
 
            driver takes the other trailer back through the service gate 
 
            and drops the front trailer.  The driver takes the same 
 
            route back through the service gate and picks up the first 
 
            loaded trailer.  Then the converter gear is either pushed or 
 
            attached to a shag truck and situated so that the converter 
 
            is in front of the second trailer.  The driver then backs up 
 
            to the converter.  He gets out of the tractor to line up the 
 
            converter so it will hook onto the front trailer.  Once the 
 
            converter unit is connected to the front trailer, the driver 
 
            backs the converter and the front trailer into the back 
 
            trailer.  Once the unit is attached the driver is ready to 
 
            leave with the load.  The driver must stop at the guardhouse 
 
            as he leaves.  The trailers are not sealed and no notation 
 
            is made that the trailers were checked before leaving the 
 
            plant area.  Once the truck is outside the plant, the driver 
 
            goes back to the Coop scale and the trailers are weighed.  
 
            Then the load is driven to Denison.  Generally, this 
 
            procedure takes about 45 minutes to an hour to complete. 
 
            (Ex. E, p. 7, ll. 9-16) 
 
            5.  Once the load of bones arrives at the Boyer Valley plant 
 
            in Denison, the load is weighed again.  After weighing the 
 
            trailers, the trailers are pulled around so that the back 
 
            trailer can be dropped off first and the converter unhooked.  
 
            The converter is then pushed to the empty trailer and the 
 
            front trailer is dropped off.  The the driver must hook up 
 
            to the first empty trailer, connect the converter and then 
 
            back under the second trailer.  At the end of the day, the 
 
            last load is dropped off and the driver is supposed to hook 
 
            up the empty trailers so the rig is ready to go to Norfolk 
 
            the next day.  The tractor is then driven to Manning.
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            6.  On December 19, 1989, Bill Weitl drove the bone run to 
 
            Norfolk.  Weitl dropped off trailers B2 and B3 on the 
 
            morning of December 19, 1989.  Trailers B2 and B3 do not 
 
            have tarps.  Weitl picked up trailers B6 and B5.  B6 has a 
 
            tarp rolled up on it that had been rolled up since September 
 
            of 1989.  B5 did not have a tarp.  Weitl picked up trailers 
 
            B2 and B3 at Norfolk on the afternoon of December 19.  
 
            Trailers B6 and B5 were the trailers that were driven empty 
 
            to Norfolk on December 20, 1989 by claimant.
 
            7.  Prior to his injury, claimant had no prior history 
 
            involving a hernia on the left side.  When he started to 
 
            work for Trucking, he was in fairly good condition as he had 
 
            been working construction recently.  At the time claimant 
 
            was hired, claimant was not examined by Dr. Myer or given 
 
            any type of physical in accordance with Interstate Commerce 
 
            Commission or Iowa Department of Transportation regulations.  
 
            Bill Weitl falsified the cab card by signing Dr. Myer's name 
 
            to the card so that claimant could begin driving immediately 
 
            for Trucking at the end of October 1989.
 
            8.  The reports regarding what happened to claimant, if 
 
            anything, on December 20, 1989 differ markedly.  Claimant, 
 
            his wife Rhonda and their longtime friend Mo Hinkleman all 
 
            indicated that claimant and Mo traveled to Norfolk on 
 
            December 20 to pick up the first load of bones for the day.  
 
            Mo walked over to claimant's house on the morning of 
 
            December 20 to ride with claimant to Manning to pick up the 
 
            tractor.  Claimant and Mo arrived at the plant in Norfolk at 
 
            about 10:30 a.m., dropped the trailers and picked up the 
 
            loaded trailers.  Claimant's log indicates that he left the 
 
            plant that day at 10:45 a.m.  The weather was cold.  Norfolk 
 
            had had some snow that had turned to slush.  The slush 
 
            covered the ground at the plant.  (Ex. C, p.3 ll. 18-22; Ex. 
 
            D, p.5, ll. 1-5). While claimant was maneuvering the 
 
            converter into place he says that he felt a pop in his 
 
            abdomen and felt pain (Ex. 3, p.7).  He could not push the 
 
            converter into place and Mo, who had been tarping both 
 
            trailers, checking the taillights and other equipment on the 
 
            trailers, had to complete the job. (Ex. 7, p.15, ll. 11-16).  
 
            Claimant then backed up the tractor, the first trailer, and 
 
            the converter under the second trailer, hooked up the second 
 
            trailer and left Beef America.  Claimant testified that he 
 
            did not stop at the guard shack on the way out of the plant.  
 
            The injury occurred about noon. (Ex. 7, p. 16 ll. 19-23).  
 
            After claimant and Hinkleman left the Norfolk plant, they 
 
            stopped at the truckstop in Norfolk.  Claimant went into the 
 
            bathroom and examined himself and discovered a lump in his 
 
            abdomen.  He pushed the lump back in.  (Ex. 7, p. 18, ll. 
 
            8-9; Ex. 3, p.3).  Thereafter, claimant called Shona Weitl 
 
            to report the injury.    Claimant and Mo then drove back to 
 
            Denison dropped off the trailers and returned the tractor to 
 
            Manning.  When claimant arrived home, he told his wife about 
 
            the injury and he sought medical assistance.  Eventually, 
 
            claimant's hernia was repaired and Title XIX paid the 
 
            medical bill for the surgery and hospitalization.
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            9.  Three disinterested witnesses all testified that 
 
            claimant had arrived alone at the plant at Norfolk on 
 
            Wednesday December 20, 1989 (Ex. C, p.7, ll. 18-25, p.8, ll. 
 
            1-12; Ex. D, p.6, ll. 6-15;  Ex. E, p.14, ll. 20-25, p. 15, 
 
            ll. 1-4).  They all reported that claimant arrived midmoring 
 
            and because of the slush, snow and ice on the ground when he 
 
            tried to move the converter into place, he could not get his 
 
            footing (Ex. C, p. 5 ll. 21-25, p.6, ll. 1-3; Ex. D, p.5, 
 
            ll. 18-25, p.6, ll. 1-3; Ex. E, p.8, ll. 12-21, p.9 ll. 
 
            20-25, p.10, l. 1).   After he tried to move the converter, 
 
            they all reported that the shag driver assisted claimant by 
 
            hooking up the converter to the shag truck and moving it 
 
            into place for him (Ex. C, p.6, ll. 7-25, p.10, l. 1; Ex. D, 
 
            p.6, ll. 1-5; Ex. E, p. 8, ll. 12-25, p.9, ll. 1-1-25, p.10, 
 
            l. 1).  Two of these witnesses reported that claimant did 
 
            not push the converter at all.  One indicated that he had 
 
            pushed the converter for about 30 seconds.  Claimant then 
 
            hooked up the converter to the back trailer and drove out of 
 
            the plant.  On his way out of the plant, claimant stopped at 
 
            the guard shack and went in.  (Ex. E, p. 10, ll. 14-20; Ex. 
 
            D, p. 6, ll. 16-25, p. 7, ll. 1-3; Ex. C, p.11, ll. 13-19).  
 
            Claimant made a telephone call to a toll free number (Ex. E, 
 
            p. 10, ll. 14-25; p.11, ll. 1).  Claimant traveled back to 
 
            Denison and dropped off the trailers at Boyer Valley.  The 
 
            trailers that claimant dropped off were trailers B6 and B5.  
 
            Only one of these trailers had a tarp.  When Weitl went to 
 
            pick up the trailers on December 21. 1989, one of the 
 
            trailers had not been unloaded.  Claimant subsequently 
 
            contacted Shona Weitl to report a possible hernia.  He also 
 
            indicated that he would not be able to complete the second 
 
            run for the day.  Finally, he said that he was not alone but 
 
            that Mo was not with him that day.  Claimant made the same 
 
            report to Bill Weitl later that night around 6:00 p.m. or 
 
            7:00 p.m.  Claimant told Bill Weital that he had driven by 
 
            himself to Norfolk on December 20, 1989 because Mo had 
 
            something else to do.  
 
            10. As a result of claimant's surgery, claimant incurred 
 
            various medical expenses and costs.  These are as follows:
 
            Crawford County Clinic                    $558.00
 
            Crawford County Memorial Hospital       $1,494.50
 
            Medical Records and Letter TanCreti        $30.00 
 
            
 
                                               TOTAL:    $2,082.50
 
            CONCLUSIONS OF LAW
 
            1.  Whether claimant sustained an injury on December 20, 
 
            1989 which arose out of and in the course of his employment.
 
            
 
                 Iowa Code Section 85.31 (1989) provides that an 
 
            employee is entitled to compensation for any and all 
 
            personal injuries which arise out of and in the course of 
 
            the employment.  Claimant has the burden of proving by a 
 
            preponderance of the evidence that he received an injury on 
 
            December 20, 1989, which arose out of and in the course of 
 
            his employment. McDowell v. Town of Clarksville, 241 N.W.2d 
 
            904, 908 (Iowa 1976); Musselman v. Central Telephone Co., 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            154 N.W.2d 128, 130 (Iowa 1967).  The words "arising out of" 
 
            have been interpreted to refer to the cause and origin of 
 
            the injury.  McClure v. Union County, 188 N.W.2d 283, 287 
 
            (Iowa 1971);   Crowe v. DeSoto Consolidated School District, 
 
            68 N.W.2d 63, 65 (Iowa 1955).  The words "in the course of" 
 
            refer to the time, place and circumstances of the injury.  
 
            McClure, 188 N.W.2d at 287; Crowe, 68 N.W.2d at 65.
 
            Claimant has urged that his version of the facts in this 
 
            dispute support a finding that he was injured at work on 
 
            December 20, 1989 when he and Mo Hinkleman traveled to 
 
            Norfolk Nebraska to pick up a load of bones from the Beef 
 
            America plant.  Defendant urges that claimant could not have 
 
            suffered a hernia on December 20, 1989 while in Norfolk 
 
            because he did not move the converter into place, a shag 
 
            truck did.  On the crucial question of credibility, neither 
 
            the claimant or the defendant are very believable.  However, 
 
            the evidence given by the disinterested witnesses in this 
 
            case is compelling.  The greater weight of their evidence 
 
            supports the defendant's version of the events of December 
 
            20, 1989 and claimant has failed to sustain his burden of 
 
            proof that he in fact suffered an injury that arose out of 
 
            and in the course of his employment.
 
            The inconsistencies in claimant's version of the events of 
 
            December 20, 1989 begin when he and Mo Hinkleman describe 
 
            what they were doing on this day.  None of the three 
 
            witnesses saw Hinkleman in the tractor or around the 
 
            trailers the day of the alleged injury.  Hinkleman said he 
 
            was tarping the trailers  at the time of claimant's injury.  
 
            There was no tarp on one of the trailers and the other 
 
            trailer's tarp had not been unrolled since September.  
 
            Hinkleman said that they arrived between 10 and 11 in the 
 
            morning.  Claimant indicated that he was at the Norfolk 
 
            plant for only 15 minutes, 10:30 a.m. until 10:45 a.m.  
 
            Claimant did not ask for help in moving the converter.  Yet 
 
            three disinterested witnesses saw the shag driver assist 
 
            claimant with the converter that day.  The shag driver 
 
            himself reported that he was watching claimant slip and 
 
            slide all over the yard as he tried to move the converter.  
 
            The shag driver moved the converter that day.  Claimant 
 
            merely hooked up the lines and drove the trailers away.  
 
            Claimant said he did not stop at the guard shack on December 
 
            20, 1989.  However, these same witnesses saw claimant go 
 
            into the guard shack.  The guard indicated that claimant 
 
            made a toll free call to someone.  These inconsistencies 
 
            when coupled with the testimony of the defendant's witnesses 
 
            demonstrate that there is insufficient evidence in this 
 
            record to demonstrate that claimant was injured on December 
 
            20, 1989. Claimant did not suffer an injury on December 20, 
 
            1989 that arose out of and in the course of his employment.  
 
            As a result, claimant will take nothing from these 
 
            proceedings.
 
            2.  Whether a causal relationship exists between claimant's 
 
            claimed injuries and the claimed entitlement to temporary 
 
            total disability benefits he is seeking.
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            The claimant has failed to show that his hernia was caused 
 
            by a work related injury thus rendering this issue moot.
 
            3.  Whether claimant is entitled to medical benefits, 
 
            including a determination of causal connection to the work 
 
            injury and the causal connection of this condition to a work 
 
            injury.
 
The claimant has the burden of demonstrating that the 
 
            medical services obtained were related to a work injury in 
 
            order to have the expenses reimbursed or paid.  Auxier v. 
 
            Woodward State Hospital, 266 N.W.2d 139, 144 (Iowa 1978).  
 
            In this instance, claimant has failed to show that the 
 
            injury was caused by a work related incident.  Consequently, 
 
            defendant is not liable for claimant's medical bills.
 
            The medical report and letter identified by claimant is a 
 
            cost of this dispute.  See Rule 343 IAC 4.33 (The reasonable 
 
            costs of obtaining no more than two doctors' or practioners' 
 
            reports is compensable as a cost.)
 
            Order
 
            THEREFORE, it is ordered:
 
            1.  Claimant shall take nothing from this proceeding.
 
            2.  The costs of this action shall be assessed to claimant 
 
            pursuant to rule 343 IAC 4.33.
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            Signed and filed this ____ day of June, 1991.
 
            
 
            
 
            
 
            
 
                      ________________________________
 
                      ELIZABETH A. NELSON
 
                      DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr Warren L Bush
 
            Attorney at Law
 
            151 Boyer
 
            Wall Lake Iowa 51466
 
            
 
            Mr Darwin Bunger
 
            Attorney at Law
 
            729 N Adams
 
            Carroll Iowa 51401
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                      5-1801
 
                      Filed June 14, 1991
 
                      ELIZABETH A. NELSON
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            LARRY J. SHANON,    :
 
                      :
 
                 Claimant, :      File No. 931388
 
                      :
 
            vs.       :    A R B I T R A T I O N
 
                      :
 
            BILL WEITL TRUCKING,     :      D E C I S I O N
 
                      :
 
                 Employer, :
 
                 Defendant.     :
 
            ___________________________________________________________
 
            
 
            5-1801
 
            Claimant failed to prove that he suffered a work-related 
 
            injury.  Claimant's version of the day's events and the 
 
            mechanics of the injury were inconsistent with the testimony 
 
            by three disinterested witnesses.  No award.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            NANCY JO BARKER,              :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :         File No. 931397
 
                                          :
 
            EXCEL, 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
 
            
 
                 Claimant Nancy Jo Barker seeks benefits under the Iowa 
 
            Workers' Compensation Act upon her petition in arbitration 
 
            against defendant employer Excel Corporation and defendant 
 
            insurance carrier CNA Insurance Companies.  She asserts a 
 
            work injury attributable to that employment on October 3, 
 
            1988.
 
            
 
                 This cause came on for hearing in Ottumwa, Iowa, on 
 
            December 17, 1991.  The record consists of joint exhibits 1 
 
            through 20 and the testimony of claimant, Craig Barker, Mary 
 
            Brooks and Bob Bastron.
 
            
 
                                      issues
 
            
 
                 The parties have stipulated that an employment 
 
            relationship existed between claimant and Excel Corporation 
 
            at the time of the alleged injury, to the rate of 
 
            compensation, that medical benefits are no longer in dispute 
 
            and that certain benefits were voluntarily paid prior to 
 
            hearing.
 
            
 
                 Issues presented for resolution include:
 
            
 
                 1.  Whether claimant sustained an injury arising out of 
 
            and in the course of her employment on October 3, 1988;
 
            
 
                 2.  Whether there exists a causal relationship between 
 
            that injury and temporary and/or permanent disability; and,
 
            
 
                 3.  The nature and extent of disability.
 
            
 
                                 findings of fact
 
            
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
                 The undersigned deputy industrial commissioner finds:
 
            
 
                 Nancy Jo Barker is about 31 years of age.  She quit 
 
            school to marry following the tenth grade, but attained her 
 
            General Equivalency Diploma in 1986.  Since high school, she 
 
            has attended a six-week truck driving school and obtained a 
 
            degree or certification in computer programming in 1990.  
 
            She has not yet found employment in that field.
 
            
 
                 Claimant was employed as a cleaning lady for 
 
            approximately seven months in 1978, except for that brief 
 
            stint, being a homemaker from 1976 to 1983.  She worked as a 
 
            team truck driver with her husband from 1981 until January 
 
            1985 or January 1986, not on a full-time basis, but when 
 
            extra income was needed.  She earned approximately $5,000 in 
 
            1983, $4,700 in 1984 and $2,500 in 1985.  She worked a 
 
            temporary seasonal job sorting seed corn for a few weeks and 
 
            then briefly as a cashier.
 
            
 
                 In May 1988, claimant began work as a ham bagger for 
 
            Excel, Inc., a meat packing business.  The work involved a 
 
            great deal of repetitive motion with the upper extremities, 
 
            manipulating whole and half hams.  Defective hams had to be 
 
            lifted to a separate conveyor belt approximately head high 
 
            to claimant.
 
            
 
                 Prior to accepting work at Excel, claimant had no 
 
            history of upper extremity injury or problems.  Beginning 
 
            about September 1988, she began developing wrist pain which 
 
            slowly worsened and extended to the hands and arms.  Both 
 
            upper extremities were affected, worse on the right side.  
 
            Claimant is left-hand dominant.  During the week before 
 
            October 3, numbness and more severe pain developed.  
 
            Claimant believed her hands were swollen, weakened and 
 
            subject to diminished range of motion.
 
            
 
                 Following complaints to the medical department (and 
 
            some recalcitrance on its part), Ms. Barker was eventually 
 
            referred to Winn Gregory, M.D., on November 3, 1988.  Dr. 
 
            Gregory took claimant off work upon a diagnosis of bilateral 
 
            brachial plexitis.  Chart notes reflect complaints of pain, 
 
            swelling and numbness in both arms.  Claimant was released 
 
            to light-duty work on November 14, 1988, and was paid the 
 
            same wage while on light-duty work in the maintenance 
 
            department (doing inventory).  In the five weeks including 
 
            those of November 26, 1988, through January 21, 1989, 
 
            claimant averaged 30.57 hours.  During the 13 weeks prior to 
 
            October 27, 1988 (upon which the parties apparently based 
 
            their stipulation as to rate), she averaged 31.43 hours.  
 
            Personnel records indicate time may have been lost on eight 
 
            days subsequent to her return, although some lost time may 
 
            have been due to headaches not related to the subject 
 
            injury.  The record does not reflect what hours claimant 
 
            worked between the week of January 21 and her resignation, 
 
            nor does it permit calculation of how many hours she "lost" 
 
            during those eight days.  Claimant routinely did not work a 
 
            regular eight-hour shift; rather, she worked until the day's 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            work was done.  She did not work any 40-hour weeks during 
 
            the 13 weeks prior to October 27.
 
            
 
                 Dr. Gregory referred claimant to James B. Worrell, 
 
            M.D., where she was first seen on November 17, 1988.  Dr. 
 
            Worrell is a board-certified neurologist who testified by 
 
            deposition on August 28, 1991.  He concluded that claimant 
 
            suffered from both a myofascial pain syndrome and thoracic 
 
            outlet syndrome.  Myofascial refers to the fascia, or tissue 
 
            covering muscles, while thoracic outlet syndrome was 
 
            described by Dr. Worrell as referring to pain and numbness 
 
            caused by a tight muscular compartment at the neck area and 
 
            over the first rib and clavicle such that a person who 
 
            repetitively uses the arms in front of the body or over the 
 
            head will tend to develop an impingement or pressure on the 
 
            nerve rootlets and blood vessels to the arm.
 
            
 
                 Generally speaking, claimant did not show much in the 
 
            way of objective signs to account for symptomatology.  
 
            However, Dr. Worrell thought it significant that he found 
 
            tenderness in the muscles along the axilla and along the 
 
            base of the skull and shoulders and one thoracic outlet test 
 
            was positive:  While listening to the artery running near 
 
            the clavicle and then maneuvering the arm, the pulse is 
 
            "shut off" as the artery is kinked.  It is believed the test 
 
            described by Dr. Worrell is sometimes referred to as Adson's 
 
            maneuver.  Dr. Worrell indicated that diagnosis of thoracic 
 
            outlet syndrome frequently does not involve a great deal of 
 
            hard objective evidence, since basically soft tissues are 
 
            involved.  He relied in part on claimant's history, 
 
            particularly job activities, which he found consistent with 
 
            complaints.  He stated to a reasonable degree of medical 
 
            certainty that claimant had developed thoracic outlet 
 
            syndrome caused by her work.  X-rays indicate claimant has a 
 
            small "extra" cervical rib, furnishing an underlying anatomy 
 
            consistent with development of thoracic outlet syndrome.  
 
            However, the doctor emphasized that it was repetitive use 
 
            and mechanical strains that actually caused the problem to 
 
            develop.
 
            
 
                 Based in part on American Medical Association 
 
            guidelines, Dr. Worrell found claimant had sustained a six 
 
            percent impairment to the body as a whole.  Recommended 
 
            restrictions limited continuous use of the arms, repetitive 
 
            push/pull movements of more than 5 pounds, lifting more than 
 
            10 pounds above the head, lifting more than 20-25 pounds 
 
            from the floor and repetitive stooping and bending.  In 
 
            particular, Dr. Worrell recommended against any type of 
 
            factory line work, beautician work, or stenography or 
 
            computer terminal work involving constantly working with the 
 
            arms out in front, even in the sitting position.  Even 
 
            though claimant used her hands repetitively away from work 
 
            (in particular, her computer classes as discussed infra), 
 
            the doctor deemed factory work a much greater factor in 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            development of symptoms.  Claimant continued having symptoms 
 
            beyond the time he might normally expect for recovery (6-12 
 
            months), but continued complaints of that duration are not 
 
            unheard of, particularly in the case of an individual 
 
            performing activities which would tend to aggravate or 
 
            exacerbate symptoms, such as computer work.
 
            
 
                 Claimant was seen for evaluation by Marc E. Hines, M.D.  
 
            Dr. Hines reported on October 9, 1991, that claimant's 
 
            symptoms were "quite typical" of a thoracic outlet syndrome, 
 
            and that there also appeared to be a myofascial component.  
 
            Dr. Hines agreed with Dr. Worrell as to the existence of 
 
            objective evidence of neurological dysfunction and agreed 
 
            with the proposed medical restrictions of that physician.  
 
            Impairment was rated at 11 percent of the whole person.
 
            
 
                 Claimant was also seen for evaluation on December 18, 
 
            1990, by Alfredo D. Socarras, M.D.  Dr. Socarras, a 
 
            neurologist, testified by deposition on October 3, 1991.  He 
 
            has apparently not attained board certification.
 
            
 
                 Dr. Socarras concluded that Ms. Barker did not suffer 
 
            from thoracic outlet syndrome based upon a lack of objective 
 
            signs.  He did not find a positive Adson's maneuver, and in 
 
            any event does not consider that test significant.  Dr. 
 
            Socarras did, however, diagnose overuse syndrome which he 
 
            tied to repetitive manual activity, in particular work at 
 
            Excel.  He found no functional impairment from a 
 
            "neurological standpoint."  It is unclear, but probable that 
 
            he also intended no impairment rating with respect to 
 
            overuse syndrome.
 
            
 
                 Dr. Worrell's opinion is found more persuasive than 
 
            that of Dr. Socarras.  Dr. Worrell is the treating physician 
 
            and has had repeated opportunities to examine claimant over 
 
            a period of time.  His opinion is corroborated by that of 
 
            Dr. Hines.  In addition, Dr. Worrell is board certified.  In 
 
            cases of conflict, the opinion of a board-certified 
 
            physician is commonly preferred.  Dickey v. ITT Continental 
 
            Baking Co., Thirty-fourth Biennial Report of the Industrial 
 
            Commissioner 89 (1979); Richland v. Palco, Inc., 
 
            Thirty-second Biennial Report of the Industrial Commissioner 
 
            56 (1975).
 
            
 
                 Since leaving Excel, claimant attained a degree or 
 
            certification as a computer programmer.  Her reasons for 
 
            quitting Excel included both upper extremity symptomatology 
 
            and the wish to attend school.  She had long intended to 
 
            leave Excel when school was completed, and was approximately 
 
            half way through the course of instruction when she quit.  
 
            Hand pain had started to subside by that time.  Since then, 
 
            claimant has been employed as a convenience store clerk on a 
 
            part-time basis.  She has not been successful in obtaining 
 
            work as a computer programmer, no doubt in part due to 
 
            rather mediocre grades.
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
                 Ms. Barker testified that she now feels foreclosed from 
 
            truck driving, nursing home work and various other 
 
            activities, such as hauling wood, feeding animals, washing 
 
            windows and the like.
 
            
 
                                conclusions of law
 
            
 
                 The parties dispute whether claimant sustained an 
 
            injury arising out of and in the course of employment.  The 
 
            words "arising out of" refer to the course or source of the 
 
            injury.  McClure v. Union County, 188 N.W.2d 283 (Iowa 
 
            1971).  This requirement is satisfied by showing a causal 
 
            relationship between the employment and the injury.  Sheerin 
 
            v. Holin Co., 380 N.W.2d 415 (Iowa 1986).  Drs. Worrell and 
 
            Hines find that claimant suffers thoracic outlet syndrome 
 
            and myofascial pain syndrome causally connected to 
 
            repetitive work at Excel, Inc.  Even Dr. Socarras, who finds 
 
            no permanent impairment, attributes symptoms to an overuse 
 
            syndrome which he relates to repetitive work at Excel.  
 
            Claimant has established by a preponderance of the evidence 
 
            that she sustained an injury arising out of and in the 
 
            course of employment consisting of symptomatic thoracic 
 
            outlet syndrome and myofascial pain syndrome.  Affected are 
 
            the upper extremities and the body as a whole, including the 
 
            neck and shoulder region.
 
            
 
                 Although claimant has mentioned one particular incident 
 
            when a ham fell, onset of this disorder has largely been 
 
            insidious.  In cases of cumulative injury, the date of 
 
            injury has been held to be that occasion when, due to pain 
 
            or physical inability, claimant is no longer able to work.  
 
            McKeever Custom Cabinets v. Smith, 379 N.W.2d 368 (Iowa 
 
            1985).  In this case, that occurred on November 3, 1988, 
 
            when Dr. Gregory took claimant off work.
 
            
 
                 Under Iowa Code section 85.34(1), healing period is 
 
            compensable beginning on the date of injury and continuing 
 
            until the employee has returned 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 substantially similar employment, whichever 
 
            first occurs.
 
            
 
                 Claimant returned to work on November 15, 1988.  Her 
 
            healing period extends from November 3 through November 14, 
 
            or 12 days, or 1.714 weeks.
 
            
 
                 Claimant also alleges entitlement to temporary partial 
 
            disability.  There were apparently some few hours lost 
 
            between November 15, 1988, and February 3, 1989, when 
 
            claimant quit work, but the state of the record does not 
 
            permit calculation of that entitlement.  As noted, claimant 
 
            worked essentially the same number of average hours during 
 
            the five weeks including January 21, 1989 (later records not 
 
            being available), as was the case in the 13 weeks prior to 
 
            October 27, 1988.  Claimant has failed to meet her burden of 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            proof in establishing entitlement to additional temporary 
 
            partial disability benefits.
 
            
 
                 What then is claimant's entitlement to permanent 
 
            disability?  Based on the diagnosis of thoracic outlet 
 
            syndrome on the part of Drs. Worrell and Hines and 
 
            symptomatology in the body as a whole (neck), it is held 
 
            that claimant has sustained an injury to the body as a whole 
 
            which must be compensated industrially.
 
            
 
                 Functional impairment is an element to be considered in 
 
            determining industrial disability which is the reduction of 
 
            earning capacity, but consideration must also be given to 
 
            the injured employee's age, education, qualifications, expe
 
            rience and inability to engage in employment for which he is 
 
            fitted.  Olson v. Goodyear Service Stores, 255 Iowa 1112, 
 
            125 N.W.2d 251 (1963).  Barton v. Nevada Poultry, 253 Iowa 
 
            285, 110 N.W.2d 660 (1961).
 
            
 
                 A finding of impairment to the body as a whole found by 
 
            a medical evaluator does not equate to industrial disabil
 
            ity.  This is so as impairment and disability are not syn
 
            onymous.  Degree of industrial disability can in fact be 
 
            much different than the degree of impairment because in the 
 
            first instance reference is to loss of earning capacity and 
 
            in the latter to anatomical or functional abnormality or 
 
            loss.  Although loss of function is to be considered and 
 
            disability can rarely be found without it, it is not so that 
 
            a degree of industrial disability is proportionally related 
 
            to a degree of impairment of bodily function.
 
            
 
                 Factors to be considered in determining industrial dis
 
            ability include the employee's medical condition prior to 
 
            the injury, immediately after the injury, and presently; the 
 
            situs of the injury, its severity and the length of healing 
 
            period; the work experience of the employee prior to the 
 
            injury, after the injury and potential for rehabilitation; 
 
            the employee's qualifications intellectually, emotionally 
 
            and physically; earnings prior and subsequent to the injury; 
 
            age; education; motivation; functional impairment as a 
 
            result of the injury; and inability because of the injury to 
 
            engage in employment for which the employee is fitted.  Loss 
 
            of earnings caused by a job transfer for reasons related to 
 
            the injury is also relevant.  These are matters which the 
 
            finder of fact considers collectively in arriving at the 
 
            determination of the degree of industrial disability.
 
            
 
                 There are no weighting guidelines that indicate how 
 
            each of the factors are to be considered.  There are no 
 
            guidelines which give, for example, age a weighted value of 
 
            ten percent of the total value, education a value of fifteen 
 
            percent of total, motivation - five percent; work experience 
 
            - thirty percent, etc.  Neither does a rating of functional 
 
            impairment directly correlate to a degree of industrial 
 
            disability to the body as a whole.  In other words, there 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            are no formulae which can be applied and then added up to 
 
            determine the degree of industrial disability.  It therefore 
 
            becomes necessary for the deputy or commissioner to draw 
 
            upon prior experience, general and specialized knowledge to 
 
            make the finding with regard to degree of industrial dis
 
            ability.  See Peterson v. Truck Haven Cafe, Inc., Vol. 1 No. 
 
            3 State of Iowa Industrial Commissioner Decisions 654 (App. 
 
            February 28, 1985); Christensen v. Hagen, Inc., Vol. 1 No. 3 
 
            State of Iowa Industrial Commissioner Decisions 529 (App. 
 
            March 26, 1985).
 
            
 
                 In essence, industrial disability measures the loss of 
 
            earning capacity.  Second Injury Fund v. Hodgins, 461 N.W.2d 
 
            454 (Iowa 1990).  As noted, a number of factors are to be 
 
            considered.  One of those factors mitigating industrial 
 
            disability is that claimant voluntarily quit her job at the 
 
            same rate of pay as before the work injury.  Thus, absent 
 
            evidence that claimant could not have remained so employed, 
 
            her actual earnings have been diminished only by her 
 
            voluntary act.  Still, it is clear that, given the medical 
 
            restrictions imposed by Dr. Worrell and concurred in by Dr. 
 
            Hines, claimant is now foreclosed from much of the work in 
 
            which she has previous experience.  It appears that she 
 
            would be able to continue work as a cashier or in some of 
 
            the jobs presumably still available at Excel.  Restrictions 
 
            against repetitive use of the hands in front of the body or 
 
            overhead would probably foreclose employment as a 
 
            long-distance truck driver or as a seed corn sorter.  
 
            Lifting restrictions probably foreclose employment as a 
 
            cleaning lady.
 
            
 
                 On the other hand, claimant obviously has the capacity 
 
            to be a computer programmer, even though she has not yet 
 
            secured employment in that field.  Defendants are not 
 
            entitled to take "credit" for her subsequent educational 
 
            attainments, since they did contribute to the cost involved.  
 
            Nonetheless, it is undeniably the case that claimant had the 
 
            innate ability to obtain that training, as she has since 
 
            proven.
 
            
 
                 Considering then these factors in particular and the 
 
            record otherwise in general, it is held that Nancy Jo Barker 
 
            has sustained a permanent industrial disability equivalent 
 
            to 20 percent of the body as a whole, or 100 weeks.
 
            
 
                                      order
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 Defendants shall pay unto claimant one point seven one 
 
            four (1.714) weeks of healing period benefits at the 
 
            stipulated rate of one hundred thirty-two and 23/100 dollars 
 
            ($132.23) per week payable commencing November 3, 1988.
 
            
 
                 Defendants shall pay unto claimant one hundred (100) 
 
            weeks of permanent partial disability at the stipulated rate 
 
            of one hundred thirty-two and 23/100 dollars ($132.23) per 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            week payable commencing November 15, 1988.
 
            
 
                 Defendants shall have credit for all benefits 
 
            voluntarily paid prior to hearing.
 
            
 
                 All accrued benefits shall be paid in a lump sum 
 
            together with statutory interest pursuant to Iowa Code 
 
            section 85.30.
 
            
 
                 Costs are assessed to defendants pursuant to rule 343 
 
            IAC 4.33.
 
            
 
                 Defendants shall file claim activity reports as 
 
            requested by the agency pursuant to rule 343 IAC 3.1.
 
            
 
                 Signed and filed this ______ day of ____________, 1992.
 
            
 
                 
 
            
 
                 
 
                 
 
                                          ______________________________
 
                                          DAVID RASEY
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Vern M. Ball
 
            Attorney at Law
 
            207 South Washington Street
 
            P.O. Box 129
 
            Bloomfield, Iowa  52537
 
            
 
            Ms. Dorothy L. Kelley
 
            Ms. Kathleen A. Davoren
 
            Attorneys at Law
 
            500 Liberty Building
 
            Des Moines, Iowa  50309
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                               5-1803
 
                                               Filed March 5, 1992
 
                                               DAVID RASEY
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            NANCY JO BARKER,              :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :         File No. 931397
 
                                          :
 
            EXCEL, 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.              :
 
            ____________________________________________________________
 
            
 
            5-1803
 
            Industrial disability awarded.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            MIRELLA S. GOBEN,             :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 931398
 
            AMERICAN NATIONAL INSURANCE,  :
 
                                          :  A R B I T R A T I O N
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            HARTFORD INSURANCE,           :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                                   INTRODUCTION
 
            
 
                 This is a proceeding in arbitration brought by Mirella 
 
            S. Goben, claimant, against American National Insurance 
 
            Company, employer, and Hartford Insurance Company, insurance 
 
            carrier, for benefits as the result of an alleged injury 
 
            which occurred on March 16, 1988.  A hearing was held in Des 
 
            Moines, Iowa, on May 26, 1992, and the case was fully 
 
            submitted at the close of the hearing.  Claimant was 
 
            represented by Alan M. Wilson.  Defendants were represented 
 
            by Robert C. Landess.  The record consists of the testimony 
 
            of Mirella S. Goben, claimant; Anna Carita (Blacksmith) 
 
            Aquiniga, defendants' witness; Nizam Wadi, district manager; 
 
            and joint exhibits 1 through 12 and 15 through 19.  Exhibit 
 
            13 was withdrawn by the parties and is not a part of the 
 
            record.  Exhibit 14, a deposition of claimant, was excluded 
 
            by the deputy on his own initiative for the reason that 
 
            claimant was available at the hearing to testify on both 
 
            direct and cross examination and because the deposition 
 
            could be used to refresh memory or impeach claimant if 
 
            necessary.  Exhibit 14 remains with the record but was not 
 
            considered in the determination of the issues in this case.  
 
            Defendants presented a brief description of disputes at the 
 
            time of the hearing.  Both parties submitted excellent 
 
            posthearing briefs.
 
            
 
                                   STIPULATIONS
 
            
 
                 The parties stipulated that claimant made no claim for 
 
            entitlement to permanent partial disability benefits.  The 
 
            issue of rate, which was shown as a disputed hearing issue 
 
            on the hearing assignment order, was withdrawn by the 
 
            parties at the time of the hearing and the rate of 
 
            compensation was stipulated to at that time.
 
            
 
                                      ISSUES
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
                 The parties submitted the following issues for 
 
            determination  at the time of hearing:
 
            
 
                 Whether claimant sustained an injury on March 16, 1988, 
 
            which arose out of and in the course of employment with 
 
            employer;
 
            
 
                 Whether the injury was the cause of temporary 
 
            disability;
 
            
 
                 Whether claimant is entitled to temporary disability 
 
            benefits, and if so, the extent of benefits to which she is 
 
            entitled;
 
            
 
                 Whether claimant is entitled to medical benefits;
 
            
 
                 Whether claimant gave proper notice pursuant to Iowa 
 
            Code section 85.23 was asserted as an affirmative defense by 
 
            defendants; and
 
            
 
                 Whether defendants were entitled to a credit for 
 
            nonoccupational group health plan benefits paid to claimant 
 
            prior to hearing pursuant to Iowa Code section 85.38(2).
 
            
 
                                 FINDINGS OF FACT
 
            
 
                                      NOTICE
 
            
 
                 It is determined that defendant employer did not have 
 
            actual knowledge of a work-related injury and that the 
 
            employee or someone on her behalf did not give notice of a 
 
            work-related injury within 90 days of the date of the 
 
            occurrence, and therefore, no compensation shall be allowed.  
 
            Iowa Code section 85.23.
 
            
 
                 Claimant, a licensed life and health insurance agent, 
 
            started to work for employer in July 1986 as a debit agent.  
 
            The employment contract required her to use her own personal 
 
            vehicle in this job of selling, servicing and collecting 
 
            premiums on life and health insurance policies.  
 
            
 
                 On March 16, 1988, at approximately 4:30 p.m., 
 
            claimant's vehicle was struck in the right rear by another 
 
            vehicle which was driven by Anna Carita (Blacksmith) 
 
            Aquiniga.  Neither party was injured and there was no 
 
            substantial damage to either vehicle so the parties 
 
            exchanged names and data and continued on about their 
 
            business.  
 
            
 
                 Claimant testified that on the following day, March 17, 
 
            1988, she could not turn her head, and therefore, she saw 
 
            her personal family physician, Eugene C. Honeywell, D.O.  
 
            Claimant further testified that she called Harlan Donaldson, 
 
            her district manager and reported that she was in an 
 
            automobile accident while working and that she was staying 
 
            home.  Claimant related that Donaldson wrote to the home 
 
            office and reported the accident.
 
            
 
                 On March 18, 1988, Donaldson wrote to the home office 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            in Galveston, Texas, that claimant was absent from work on 
 
            Thursday, March 17, 1988.  He said she was involved in an 
 
            auto accident and suffered a slight back injury.  He then 
 
            added, however, she has returned to work today (exhibit 12, 
 
            page 40).  Donaldson's letter said nothing about the 
 
            accident being work related.
 
            
 
                 The home office replied on March 31, 1988, that they 
 
            had received his correspondence and they were approving sick 
 
            leave for claimant from the regular two weeks of sick leave 
 
            that comprise the maximum amount of sick leave with pay for 
 
            any one calendar year (ex. 12, p. 39).  
 
            
 
                 Claimant testified that she told Donaldson that she was 
 
            collecting a premium at the time of the accident or that he 
 
            at least knew that this was what she was doing at the time 
 
            of the accident.
 
            
 
                 Claimant continued to see Dr. Honeywell who ordered 
 
            x-rays, prescribed medications, a cervical collar, a TENS 
 
            unit, and various physical therapy modalities.  Claimant 
 
            submitted the bills for this treatment to her automobile 
 
            insurance carrier for little over a year until the maximum 
 
            limit of $5000 was consumed.  
 
            
 
                 Then in the last part of May and the first part of June 
 
            1989, she began submitting these bills to employer's 
 
            nonoccupational group health plan insurer.  Just a few days 
 
            prior to that, on May 23, 1989, an interoffice memorandum 
 
            from the group claims department to the accounting 
 
            department shows that they had received a claim for benefits 
 
            indicating that it was for an accidental injury on March 16, 
 
            1988, that was work related (ex. 12, p. 279).  These two 
 
            events apparently occurred when the automobile medical 
 
            insurance expired and claimant made a group health plan 
 
            claim dated May 15, 1989, on a claim form which indicated 
 
            she was in an accident at 4:30 p.m. on March 16, 1988, and 
 
            that the accident was due to the injured persons occupation 
 
            (ex. 12, p. 281).  
 
            
 
                 Claimant wrote a memo to the group claims department on 
 
            May 15, 1989, requesting credit against her deductible and 
 
            reimbursement accordingly for 1988 and 1989 (ex. 12, p. 
 
            278).  Claimant wrote another memorandum to the company on 
 
            May 30, 1989, which was received by them on June 1, 1989, in 
 
            which she stated, "I, Mirella S. Goben, at this time am not 
 
            filing a workmans [sic] comp. claim." (ex.12, pp. 28 & 277).  
 
            Thus, it was not until May 15, 1989, that it can be 
 
            documented that she reported that the accident of March 16, 
 
            1988, was due to the injured person's occupation (ex. 12, p. 
 
            281).  It was not until May 30 that the terminology 
 
            "workers' compensation" appears on the record and claimant 
 
            wrote at that time that she was not filing a workers' 
 
            compensation claim (ex. 12, pp. 28 & 277).
 
            
 
                 Apparently Donaldson was not notified and did not have 
 
            actual knowledge on March 18, 1989, that (1) claimant had 
 
            sustained a work-related injury or (2) that she was injured 
 
            while engaged in her employment or (3) that a workers' 
 
            compensation claim might be involved because he makes no 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            mention of it in his letter when he notified the company 
 
            that claimant lost one day from work because of a slight 
 
            back injury from an automobile accident (ex. 12, p. 40).  No 
 
            motivation was submitted for why Donaldson would attempt to 
 
            conceal a work-related injury, nor was it suggested that he 
 
            attempted to conceal a work-related injury.
 
            
 
                 An employer's actual knowledge of an occurrence of 
 
            injury must include some information that the injury is work 
 
            connected in order to satisfy the alternative notice of 
 
            claim requirement in a workers' compensation case.  Robinson 
 
            v. Department of Transportation, 296 N.W.2d 809 (Iowa 1980).
 
            
 
                 Claimant had another 88 days after March 18, 1988, 
 
            after she returned to work to specify that she had a 
 
            work-related injury, but there is no evidence that she did 
 
            so until over a year later in May of 1989.  The purpose of 
 
            Iowa Code section 85.23 is to alert the employer to the 
 
            possibility of a claim so an investigation of the facts can 
 
            be made while the information is fresh.  In view of this 
 
            purpose, it is reasonable to believe that the actual 
 
            knowledge alternative must include information that the 
 
            injury might be work connected.  Robinson, 296 N.W.2d 809, 
 
            811.
 
            
 
                 Even though Donaldson knew that claimant used her car 
 
            in her employment, he also knew that she used her car for 
 
            all of the other driving that she might do of a personal 
 
            nature.
 
            
 
                 Furthermore, the reasonable conduct of a person who has 
 
            reported a work-related injury to their employer is to 
 
            submit the medical bills to the employer for payment as a 
 
            workers' compensation claim.  Claimant, however, did not 
 
            approach the company for payment of her bills until her 
 
            automobile insurance coverage ran out and she wanted more 
 
            bills paid.
 
            
 
                 Claimant did not allege that she was entitled to the 
 
            discovery rule.  She did not assert that she did not know 
 
            the nature, seriousness or the compensable character of the 
 
            injury.  Jacques v. Farmers' Lumber and Supply Co., 242 Iowa 
 
            548, 47 N.W.2d 236 (1951).  Claimant asserted that her 
 
            managers did not properly instruct her on how to process a 
 
            workers' compensation claim.  However, if the managers did 
 
            not know she had a claim, it would not be possible to 
 
            instruct her.  The evidence from three managers, such as it 
 
            is, gives no indication that any of them were ever aware of 
 
            the fact that she was involved in a work-related accident.
 
            
 
                 Ignorance of one's legal remedy is not a proper 
 
            application of the discovery rule.  Koopmans v. Iowa 
 
            Electric Light and Power Co., File No.  694831 (App. Dec. 
 
            1987).
 
            
 
                 Defendants did not produce any evidence from Donaldson 
 
            to support the burden of proof of their affirmative defense 
 
            that Donaldson did not have knowledge that claimant was in a 
 
            work-related automobile accident.  Defendants did not rebut 
 
            the testimony of claimant that she reported a work-related 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            injury to Donaldson.  By the same token, claimant did not 
 
            produce any evidence from Donaldson to explain why, if she 
 
            did in fact report a work-related injury to Donaldson, he 
 
            did not report a work-related injury to the company.
 
            
 
                 Failure to give timely notice is an affirmative defense 
 
            which defendants must prove by a preponderance of the 
 
            evidence.  DeLong v. Highway Commissioner, 229 Iowa 700, 295 
 
            N.W. 91 (1940); Reddick v. Grand Union Tea Co., 230 Iowa 
 
            108, 296 N.W. 800 (1941); Mefferd v. Ed Miller & Sons, Inc., 
 
            Thirty-third Biennial Report of the Industrial Commissioner 
 
            191 (Appeal Decision 1977).  A preponderance of the evidence 
 
            is "evidence that is more convinving than opposing 
 
            evidence."  Iowa Civil Jury Instructions 100.3.  Looking at 
 
            the evidence in the overall, it is determined that 
 
            defendants have sustained the burden of proof by a 
 
            preponderance of the evidence that they did not have actual 
 
            knowledge of an injury arising out of and in the course of 
 
            employment and that claimant did not give notice of such a 
 
            possible injury until May 15, 1989, which is one year and 
 
            two months after the date of injury. 
 
            
 
                 Furthermore, when claimant requested coverage from 
 
            Nizam Wadi, a later manager, Wadi wrote to the home office 
 
            that he had talked to his predecessor manager, John Bishop, 
 
            district manager from July 1988 to March 1989, and Bishop 
 
            told him that claimant had not reported a work-related claim 
 
            to him and he had no knowledge of a work-related injury that 
 
            claimant was involved in (ex. 2, p. 1).
 
            
 
                 It is true that claimant was off work on February 13, 
 
            1989, for a sore throat, horse voice and a stiff neck (ex. 
 
            12, p. 26), but there is no evidence that would put employer 
 
            on notice that the stiff neck arose out of and in the course 
 
            of the employment.
 
            
 
                 It is also true that Dr. Honeywell began submitting 
 
            claims to the employer's group health department in October 
 
            of 1989 and December of 1989 on a standard form claim form 
 
            which checked blocks that indicated that the condition was 
 
            related to the patient's employment and an automobile 
 
            accident (ex. 12, pp. 182 & 189).  These forms further 
 
            specified that it was a workers' compensation claim.  
 
            However, this was a year and one-half after the injury date 
 
            and would not satisfy the 90-day notice requirement.
 
            
 
                 Wherefore, it is determined that claimant did not give 
 
            notice and defendant employer did not have actual notice of 
 
            a work-related injury which arose out of and in the course 
 
            of employment with employer within 90 days of the occurrence 
 
            of the injury, and therefore, no compensation shall be 
 
            allowed.  Iowa Code section 85.23.
 
            
 
                 Wherefore, in view of the above finding, all other 
 
            factual issues in this case are determined to be moot.
 
            
 
                                CONCLUSION OF LAW
 
            
 
                 Wherefore, based upon the foregoing and following 
 
            principles of law, this conclusion of law is made:
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            
 
                 That defendants sustained the burden of proof by a 
 
            preponderance of the evidence that claimant failed to give 
 
            notice of injury as required by Iowa Code section 85.23, and 
 
            that employer did not have actual knowledge of a 
 
            work-related injury, and therefore, no compensation shall be 
 
            allowed.
 
            
 
                 Wherefore, all other legal issues in the case are now 
 
            moot.
 
            
 
                                      ORDER
 
            
 
                 Therefore, it is ordered:
 
            
 
                 That no amounts are owed by defendants to claimant on 
 
            account of the alleged injury of March 16, 1988;
 
            
 
                 That the costs of this action, including the cost of 
 
            the attendance of the court reporter at hearing, are charged 
 
            to claimant pursuant to rule 343 IAC 4.33 and Iowa Code 
 
            section 86.40.
 
            
 
                 Signed and filed this ____ day of June, 1992.
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          WALTER R. McMANUS, JR.
 
                                          DEPUTY INDUSTRIAL COMMISSIONER    
 
            
 
            Copies to:
 
            
 
            Mr. Alan M. Wilson
 
            Attorney at Law
 
            107 W. Jackson
 
            Corydon, Iowa  50060
 
            
 
            Mr. Robert C. Landess
 
            Attorney at Law
 
            2700 Grand Ave. STE 111
 
            Des Moines, Iowa  50312
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
                                          51401 1403.30 2401 2801 2802 
 
                                          2803 52902 529069
 
                                          Filed June 10, 1992
 
                                          Walter R. McManus, Jr.
 
            
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            MIRELLA S. GOBEN,             :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 931398
 
            AMERICAN NATIONAL INSURANCE,  :
 
                                          :  A R B I T R A T I O N
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            HARTFORD INSURANCE,           :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
                 
 
            51401 1403.30 2401 2801 2802 2803 52902 529069
 
            
 
            Claimant failed to give notice as required by Iowa Code 
 
            section 85.23 and defendants did not have actual notice of a 
 
            work-related injury.  Claimant was involved in an automobile 
 
            accident.  She used her car in her employment as a debit 
 
            life and health insurance agent and she also used it as her 
 
            only personal vehicle.
 
            
 
            Claimant contended that she told her district manager that 
 
            she was collecting a premium outside of her normal territory 
 
            from a client that had moved or that he knew that she was 
 
            working at the time of the accident.  The manager only 
 
            reported an automobile accident that caused a back injury 
 
            and that claimant was back to work two days later.  He made 
 
            no mention that the injury was work related.  Two subsequent 
 
            managers claimed to have no knowledge of a work-related 
 
            injury.
 
            
 
            Claimant presented her medical bills to her own automobile 
 
            insurance carrier for a year until the $5000 of medical 
 
            coverage was consumed.  One year and two months after the 
 
            accident she then filed a claim against the employer's group 
 
            health plan.  She asserted the injury was work related but 
 
            that she was not presenting a workers' compensation claim.
 
            It was determined that she did not give proper notice of 
 
            claim and that employer did not have actual knowledge of a 
 
            work-related injury.
 
            
 
            Claimant did not assert the discovery rule.  Claimant 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            contended her managers were deficient in not properly 
 
            instructing her on how to file a workers' compensation 
 
            claim.  The weight of the evidence is that none of three 
 
            managers was aware of a work-related injury.  Also, 
 
            ignorance of the law is not a proper application of the 
 
            discovery rule.
 
            
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                              1100; 1102; 1104; 1110; 
 
                              5-1402.40; 5-1801; 2500
 
                              Filed December 22, 1994
 
                              Byron K. Orton
 
 
 
          BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
_________________________________________________________________
 
MIRELLA S. GOBEN,     
 
            
 
     Claimant,   
 
            
 
vs.         
 
                                    File No. 931398
 
AMERICAN NATIONAL INSURANCE,    
 
                                      R E M A N D
 
     Employer,   
 
                                    D E C I S I O N
 
and         
 
            
 
HARTFORD INSURANCE,   
 
            
 
     Insurance Carrier,    
 
     Defendants.      
 
_________________________________________________________________
 
1100; 1102; 1104; 1110
 
 
 
Claimant's job involved collecting past due insurance premiums from 
 
defendant employer's insureds.  She sometimes visited the insureds to 
 
collect payment.  Claimant was involved in an automobile accident in 
 
the general area where a past due insured was reported to be residing.  
 
The route to collect the past due premium and to claimant's home was 
 
the same.  Claimant's auto accident was found to arise out of and in 
 
the course of her employment.
 
 
 
5-1402.20; 5-1801
 
Claimant only missed one day of work because of the work accident.  
 
Claimant was not entitled to temporary disability benefits.
 
 
 
2500
 
The medical treatment for claimant's work injury was only temporary.  
 
Claimant received the same medical treatment for neck problems before, 
 
immediately after and for a continued period of time after the work 
 
injury.  Claimant did not prove that medical treatment for the 
 
continued period of time after the work injury was necessary because of 
 
the work injury.  This treatment was for a prior automobile accident.  
 
The employer was liable for medical benefits for a temporary period of 
 
time after the work injury.
 
 
 
 
            
 
 
 
 
 
 
 
 
 
                       BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
            ROBERT WILLIAM RUPP,       
 
                        
 
                 Claimant,                          File No. 931806
 
                        
 
            vs.                                       A P P E A L
 
                        
 
            GEORGIA-PACIFIC CORPORATION,            D E C I S I O N
 
                        
 
                 Employer,   
 
                 Self-Insured,    
 
                 Defendant.       
 
            ____________________________________________________________
 
            The record, including the transcript of the hearing before 
 
            the deputy and all exhibits admitted into the record, has 
 
            been reviewed de novo on appeal.  The decision of the deputy 
 
            filed June 16, 1992 is affirmed and is adopted as the final 
 
            agency action in this case.
 
            Claimant shall pay the costs of the appeal, including the 
 
            preparation of the hearing transcript.
 
            Signed and filed this ____ day of November, 1992.
 
            
 
            
 
            
 
            
 
                                   ________________________________
 
                                         BYRON K. ORTON
 
                                     INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Francis J. Lange
 
            Mr. Paul J. Kaufman
 
            Attorneys at Law
 
            P.O. Box 1181
 
            Dubuque, Iowa 52004
 
            
 
            Mr. Brendan T. Quann
 
            Attorney at Law
 
            200 CyCare Building
 
            Dubuque, Iowa 52001
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                              9998
 
                                              Filed November 9, 1992
 
                                              Byron K. Orton
 
            
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
            ROBERT WILLIAM RUPP,       
 
                        
 
                 Claimant,                          File No. 931806
 
                        
 
            vs.                                      A P P E A L
 
                        
 
            GEORGIA-PACIFIC CORPORATION,            D E C I S I O N
 
                        
 
                 Employer,   
 
                 Self-Insured,    
 
                 Defendant.       
 
            ____________________________________________________________
 
            
 
            9998
 
            
 
                 Summary affirmance of deputy's decision filed June 16, 
 
            1992.
 
            
 
 
            
 
           
 
            
 
                    
 
            
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            ROBERT WILLIAM RUPP,          :
 
                                          :
 
                 Claimant,                :      File No. 931806
 
                                          :
 
            vs.                           :   A R B I T R A T I O N
 
                                          :
 
            GEORGIA-PACIFIC CORPORATION,  :      D E C I S I O N
 
                                          :
 
                 Employer,                :
 
                 Self-Insured,            :
 
                 Defendant.               :
 
            ___________________________________________________________
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This is a proceeding in arbitration brought by Robert 
 
            Rupp, claimant, against his former employer, Georgia-Pacific 
 
            Corporation.  Mr. Rupp seeks workers' compensation benefits 
 
            due to an injury which arose out of and in the course of his 
 
            employment on July 10, 1989.
 
            
 
                 The record in this case consists of testimony from the 
 
            claimant, Tom Becker, LPT, Connie Rupp, Luke Faber, M.D., 
 
            and Ruth Wittenberg; claimant's exhibits A-M; and, 
 
            defendant's exhibits 1-11.  The case was heard on May 19, 
 
            1992 at Dubuque, Iowa.
 
            
 
                                      ISSUES
 
            
 
                 The parties submitted the following issues for 
 
            resolution:
 
            
 
                 1.  Whether claimant's injury is the cause of a 
 
            permanent disability;
 
            
 
                 2.  Whether claimant is entitled to additional 
 
            temporary total or healing period benefits;
 
            
 
                 3.  If claimant is entitled to permanent partial 
 
            disability benefits, the nature and extent of the same;
 
            
 
                 4.  Whether claimant is entitled to medical benefits 
 
            under Iowa Code section 85.27; and, 
 
            
 
                 5.  Whether the medical expenses incurred by claimant 
 
            were authorized by the defendant.
 
            
 
                     
 
            
 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
                              FINDINGS OF FACT
 
            
 
                 The undersigned deputy, having reviewed all of the 
 
            evidence received, finds the following facts:
 
            
 
                 Claimant, Robert Rupp, was 29 years old at the time of 
 
            the hearing.  He is approximately 6 feet 3 inches tall, and 
 
            weighs 290 pounds.
 
            
 
                 Claimant completed the tenth grade in high school, 
 
            finished one semester of his junior year, and has since 
 
            obtained a GED.  During high school, claimant worked for Sam 
 
            Lange Construction, a firm specializing in residential 
 
            construction.  Claimant's job duties included pouring 
 
            cement, applying plaster, painting, and roofing.  
 
            
 
                 In 1989, claimant began to work for the defendant, 
 
            Georgia-Pacific.  Initially, claimant was hired as a 
 
            scrapper, which required claimant to provide the finish for 
 
            various pieces ready to be glued.  After approximately two 
 
            months, claimant was promoted to the position of jogger 
 
            aerator.  In this position, claimant operated a machine 
 
            which removed the dust from between sheets of printed paper.  
 
            Claimant was required to change pallets holding the paper.  
 
            These pallets weighed between 10 pounds to 100 pounds.  
 
            
 
                 On July 10, 1989, claimant sustained an injury when he 
 
            stepped backwards off of a platform and fell against an 
 
            I-beam.  Claimant hurt the lower part of his back and 
 
            testified that he felt pain throughout his low back and 
 
            legs.
 
            
 
                 Several co-workers came to assist claimant, and he was 
 
            treated at the plant by Luke Faber, M.D.  Claimant testified 
 
            that Dr. Faber's examination hurt more than helped his 
 
            condition, and labeled the doctor a "quack."
 
            
 
                 Nonetheless, on July 10, 1989, claimant was admitted to 
 
            the Finley Hospital and was treated by D. S. Fields, M.D., 
 
            who reviewed the results of a CT scan and lumbar x-rays.  
 
            His evaluation noted that claimant's injuries were 
 
            compatible with ligamentous and muscular injuries to the 
 
            peri-interspinous ligaments of the lumbar spine and lumbar 
 
            perispinous muscles on the left side.  The CAT scan showed a 
 
            "slight bulging of the L5-S1 and L4-5 but no evidence of 
 
            herniation."  (Claimant exhibit A, Page 3; Defendant Exhibit 
 
            1, Page 3).
 
            
 
                 It was recommended that claimant undergo an MMPI 
 
            evaluation, the results of which showed that claimant had 
 
            features of a manic disorder.  Barbara Woodward, a 
 
            psychologist, examined claimant and recommended Lithium 
 
            therapy.  She referred claimant to John Viner, M.D., who 
 
            administered the Lithium.  (Cl. Ex. F, pp. 1-10).
 
            
 
                 Claimant undertook physical therapy throughout July and 
 
            August, and was released to return to work without 
 
            restriction on August 28, 1989.  (Cl. Ex. B, pp. 2-4).   
 
            Although claimant testified that he tried to cooperate 
 
            during physical therapy, the records indicate that his 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            efforts were less than satisfactory, and he failed to 
 
            complete the evaluation to be performed by Melvin Harvey, 
 
            LPT.  (Cl. Ex. 6, pp. 1-2).
 
            
 
                 Once released to return to work, claimant placed a 
 
            telephone call to Ruth Wittenberg and asked when he could 
 
            return to work.  Ms. Wittenberg told claimant to come down 
 
            to the plant, and when claimant arrived, he was fired due to 
 
            providing false information on his application for 
 
            employment.  Claimant placed the blame for the false 
 
            information on Ms. Wittenberg, and testified that when he 
 
            filled out the application form he spoke with her about 
 
            certain questions and was told to answer them in the manner 
 
            in which he did.  Ms. Wittenberg also testified at the 
 
            hearing and denied these allegations.  
 
            
 
                 After claimant was fired, he secured employment in 
 
            September of 1989 with Farmstead Foods.  He worked as a lard 
 
            scrapper and ran a Whizzard knife.  After several months, 
 
            claimant left this position and eventually secured a job 
 
            with Liqui Green in March of 1990.  Claimant described this 
 
            position as a seasonal job, and his job duties include 
 
            spraying fertilizers and insecticides.
 
            
 
                 In October of 1991, claimant sought treatment for low 
 
            back pain from Thomas Hughes, M.D.  Dr. Hughes' examination 
 
            noted that claimant was in no obvious or acute distress, and 
 
            straight leg raising tests were negative.  He did find two 
 
            areas of pain at the L5-S1 and L4-5 areas.  Cortisone 
 
            injections were administered, and claimant was to return to 
 
            Dr. Hughes in three weeks.  (Cl Ex. B, p. 9).
 
            
 
                 On his next visit, claimant complained of pain in the 
 
            upper back and was assessed as having a muscle spasm, 
 
            etiology unknown.  Claimant was given Naprosyn and was to 
 
            return on an as need basis.  (Cl. Ex. B, p. 9).
 
            
 
                 From October of 1991 through March of 1992, claimant 
 
            periodically sought treatment from Dr. Hughes and a physical 
 
            therapist, Tom Becker.  Although claimant voiced many 
 
            subjective complaints, the record is devoid of significant 
 
            objective findings, and even Dr. Hughes expressed his 
 
            frustration with claimant's complaints.  His notes, dated 
 
            February 25, 1992, provide the following information:
 
            
 
                    Patient returns for follow up on his low back 
 
                 pain.  As I've indicated previously, I think this 
 
                 patient is very suggestful and a bit 
 
                 hysterical....
 
            
 
                    ....
 
            
 
                    Low back pain with left sciatica.
 
            
 
                    I feel absolutely coerced that I must do 
 
                 something to appease this individual for further 
 
                 evaluation.  To that effect, we'll go ahead and 
 
                 get current x-rays and obtain an MRI.  If that is 
 
                 negative, hopefully, we can close the door on 
 
                 this, at least for the time being.  If there is 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
                 anything positive, I would suspician [sic] it 
 
                 would be a free fragment and that would certainly 
 
                 fit with the comings and goings of his symptoms.
 
            
 
            (Cl. Ex. B, pp. 17-18).
 
            
 
                 The MRI results were within normal limits, and it was 
 
            recommended that claimant return on an as needed basis.  
 
            (Cl. Ex. B, p. 18).
 
            
 
                         analysis and conclusions of law
 
            
 
                 The first issue to be addressed is whether claimant 
 
            received a permanent disability from his injury on July 10, 
 
            1989.
 
            
 
                 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 claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury of July 10, 
 
            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 v. Central Telephone 
 
            Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
            
 
                 Furthermore, if the available expert testimony is 
 
            insufficient alone to support a finding of causal 
 
            connection, such testimony may be coupled with nonexpert 
 
            testimony to show causation and be sufficient to sustain an 
 
            award.  Giere v. Aase Haugen Homes, Inc., 259 Iowa 1065, 146 
 
            N.W.2d 911, 915 (1966).  Such evidence does not, however, 
 
            compel an award as a matter of law.  Anderson v. Oscar Mayer 
 
            & Co., 217 N.W.2d 531, 536 (Iowa 1974).  To establish 
 
            compensability, the injury need only be a significant 
 
            factor, not be the only factor causing the claimed 
 
            disability.  Blacksmith v. All-American, Inc., 290 N.W.2d 
 
            348, 354 (Iowa 1980).
 
            
 
                 Although claimant argues that he has a permanent 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            disability due to continued pain and lifting restrictions of 
 
            25-30 pounds, his testimony is not supported by the records 
 
            placed into evidence.  Although claimant was off of work for 
 
            a period of time, Dr. Faber did not feel claimant had any 
 
            work restrictions and never made an evaluation addressing 
 
            any permanent disability claimant may have sustained due to 
 
            the work related injury.  Likewise, Dr. Woodward who 
 
            diagnosed claimant as having a manic disorder, did not form 
 
            an opinion as to whether claimant's mental condition was due 
 
            to the injury sustained at work.
 
            
 
                 Additionally, although Mr. Becker testified at the 
 
            hearing and concluded that claimant had a permanent 
 
            disability, he did not begin to treat claimant until more 
 
            than two years after the accident, and his opinions are 
 
            disregarded due to the length of time between the accident 
 
            and his treatment.
 
            
 
                 Finally, Dr. Hughes did not form an opinion as to 
 
            whether claimant sustained a permanent disability, and in 
 
            fact provided claimant with continued treatment reluctantly.
 
            
 
                 As a result, claimant has failed to prove by a 
 
            preponderance of the evidence that he sustained a permanent 
 
            disability due his work related injury of July 10, 1989.
 
            
 
                 The medical evidence released relevant to claimant's 
 
            July 10, 1989 injury shows that he was off of work from July 
 
            10, 1989 through August 27, 1989.  Claimant is awarded 
 
            temporary total disability benefits for this time period.
 
            
 
                 Claimant has failed to prove by a preponderance of the 
 
            evidence that he is entitled to additional temporary total 
 
            or healing period benefits.
 
            
 
                 The next issue to be addressed is whether claimant is 
 
            entitled to medical benefits. 
 
            
 
                 Iowa Code section 85.27 provides, in relevant 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 reasonably 
 
                 necessary transportation expenses incurred for 
 
                 such services....
 
            
 
                    ....
 
            
 
                    For purposes of this section, the employer is 
 
                 obliged to furnish reasonable services and 
 
                 supplies to treat an injured employee, and has the 
 
                 right to choose the care.
 
            
 
                 Claimant seeks payment of medical bills incurred during 
 
            1991 when he was treated by Thomas Hughes, M.D., and 
 
            subsequent physical therapy sessions, yet fails to provide 
 
            the necessary evidence to prove that the medical treatment 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            received was causally connected to the work injury of July 
 
            10, 1989, or that the medical treatment was authorized by 
 
            defendant.
 
            
 
                 Claimant held several manual labor positions subsequent 
 
            to his medical treatment in 1991, and without credible 
 
            expert opinion that provides the causal relationship between 
 
            the work injury and the medical treatment, it is impossible 
 
            to conclude that the treatment rendered was for work 
 
            injuries sustained on July 10, 1989.  And, claimant sought 
 
            the treatment without contacting the defendant for 
 
            authorization of the same.
 
            
 
                 Claimant's Exhibit K provides the undersigned with a 
 
            list of medications for which claimant seeks monetary 
 
            reimbursement.  Among these medications are Tylenol Children 
 
            Chewable (claimant was 29 years of age at the time of the 
 
            hearing), various brands of aspirin, other prescription 
 
            drugs prescribed for claimant's mother, and medications 
 
            prescribed by unauthorized physicians.  The only cost 
 
            awarded to claimant is Barbara Woodward's initial consulting 
 
            examination and report.  Subsequent therapy for claimant's 
 
            manic disorder is clearly not causally related to the work 
 
            injury.
 
            
 
                 As a result, claimant is responsible for payment of 
 
            medical bills incurred after his full release to return to 
 
            work on August 28, 1989.
 
            
 
                                      ORDER
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 That defendant shall pay claimant temporary total 
 
            disability benefits from July 10, 1989 through August 27, 
 
            1989 at the rate of two hundred twenty-seven and 36/100 
 
            dollars ($227.36) per week.
 
            
 
                 That defendant shall pay medical costs incurred by 
 
            claimant from July 10, 1989 through August 27, 1989.
 
            
 
                 That defendant shall pay accrued weekly benefits in a 
 
            lump sum.
 
            
 
                 That defendant shall pay interest on benefits awarded 
 
            herein as set forth in Iowa Code section 85.30.
 
            
 
                 That defendant are awarded credit for benefits 
 
            previously paid.
 
            
 
                 That each party shall pay their respective costs of 
 
            this action, pursuant to rule 343 IAC 4.33.
 
            
 
                 That defendants shall file an activity report upon 
 
            payment of this award as required by this agency, pursuant 
 
            to rule 343 IAC 3.1.
 
            
 
                 Signed and filed this ____ day of June, 1992.
 
            
 
            
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            
 
            
 
                                          
 
                                       ________________________________
 
                                          PATRICIA J. LANTZ
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr Francis J Lange
 
            Mr Paul J Kaufman
 
            Attorneys at Law
 
            750 CyCare Plaza
 
            PO Box 1181
 
            Dubuque Iowa 52004
 
            
 
            Mr Brendan T Quann
 
            Attorney at Law
 
            200 CyCare Building
 
            Dubuque Iowa 52001
 
            
 
 
            
 
 
 
          
 
 
 
                                                 5-1801
 
                                                 Filed June 16, 1992
 
                                                 PATRICIA J. LANTZ
 
            
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                      
 
            ROBERT WILLIAM RUPP,     
 
                      
 
                 Claimant,                       File No. 931806
 
                      
 
            vs.                              A R B I T R A T I O N
 
                      
 
            GEORGIA-PACIFIC CORPORATION,         D E C I S I O N
 
                      
 
                 Employer, 
 
                 Self-Insured,  
 
                 Defendant.     
 
            ___________________________________________________________
 
            
 
            5-1801
 
            
 
            Claimant failed to prove that he sustained a permanent 
 
            disability.  The case lacked a credible claimant, and was 
 
            entirely devoid of any medical evidence to prove a permaent 
 
            disability.
 
            
 
            Claimant awarded seven weeks of temporary total disability.