Page   1
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            GILES JONES,                  :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :         File No. 933505
 
                                          :
 
            A & M LAUNDRY, INC.,          :      A R B I T R A T I O N
 
                                          :
 
                 Employer,                :         D E C I S I O N
 
                                          :
 
            and                           :
 
                                          :
 
            THE CINCINNATI INSURANCE      :
 
            COMPANY,                      :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding in arbitration brought by Giles D. 
 
            Jones against A & M Laundry, Inc., employer, and The 
 
            Cincinnati Insurance Company.  Jones alleges that he 
 
            sustained an injury to his right shoulder on April 17, 1989 
 
            while handling a bag of laundry.  Jones seeks compensation 
 
            for healing period, permanent partial disability and payment 
 
            of expenses under section 85.27 of The Code.
 
            
 
                 The primary issues to be determined are whether Jones 
 
            sustained an injury which arose out of and in the course of 
 
            his employment; whether any alleged injury is a proximate 
 
            cause of any disability or of the condition for which the 
 
            medical expenses were incurred; determination of the 
 
            claimant's entitlement to compensation for healing period 
 
            and permanent partial disability compensation; and, 
 
            determination of the employer's liability for medical 
 
            expenses under section 85.27.  Defendants have asserted the 
 
            affirmative defense of lack of notice of injury under 
 
            section 85.23 of The Code.
 
            
 
                 The case was heard at Storm Lake, Iowa on June 4, 1991.  
 
            The evidence consists of testimony from Giles Jones, Dennis 
 
            Kasperbauer, Irene Glander, Betty Menke and Ron Kleckner.  
 
            The record also contains jointly offered exhibits A through 
 
            M.
 
            
 
                     
 
            
 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
            
 
            findings of fact
 
            
 
                 Having considered all the evidence received, together 
 
            with the appearance and demeanor of the witnesses, the 
 
            following findings of fact are made.
 
            
 
                 Giles D. Jones is a 33-year-old man who lives at 
 
            Milford, Iowa.  He is a 1976 high school graduate.  After 
 
            high school, he spent four years in the Navy as a gunner's 
 
            mate and was then honorably discharged.  He worked for John 
 
            Morrell & Company at Estherville for approximately five 
 
            years before the plant closed in 1985.  While working for 
 
            Morrell, Giles had some problems with his left shoulder 
 
            (exhibit M).
 
            
 
                 After the packinghouse closed, Giles went into the shoe 
 
            repair business.  He purchased the business in 1987 and 
 
            continues to operate it at the present time.  According to 
 
            his income tax returns, the business has generated 
 
            approximately $8,000 in annual revenue since 1988 and has 
 
            shown little or no profit (exhibit D).
 
            
 
                 Giles commenced employment with A & M Laundry in 
 
            February 1988.  He worked with stone-washed jeans and 
 
            performed other various activities in the laundry.  
 
            Generally, Giles worked at his shoe repair shop during the 
 
            days and then worked the night shift at the laundry.
 
            
 
                 On April 17, 1989, Giles was working at the laundry 
 
            with Ron Kleckner.  While handling bags of laundry, Giles 
 
            felt pain in his right shoulder.  He told Kleckner about the 
 
            occurrence.  Kleckner had more seniority with the employer 
 
            than Giles, but was a co-worker, rather than a supervisor.  
 
            At times, Giles jokingly referred to Kleckner as "boss."  
 
            While Kleckner exercised some control with regard to matters 
 
            such as when to take breaks and dealing with other 
 
            individuals or handling problems, it appears as though 
 
            Kleckner did so due to his greater seniority and experience 
 
            with this employer and the claimant's acquiescence rather 
 
            than as a result of any supervisory power having been placed 
 
            in Kleckner by the employer.  The relationship between 
 
            Kleckner and Giles appears to have been one in which they 
 
            divided responsibilities between themselves rather than the 
 
            relationship of superior and subordinate.
 
            
 
                 Giles continued to work for approximately two weeks 
 
            before seeking treatment for his shoulder from R. J. 
 
            Creswell, M.D., on May 2, 1989.  When seen, Giles 
 
            specifically requested that the bill not be turned in to the 
 
            employer for workers' compensation (exhibit B, pages 12 and 
 
            13).  Claimant had taken off work on May 1, 2 and 3, 1989 
 
            and was carried as being on a leave of absence rather than 
 
            ill or injured (exhibit C, page 4).  While off work, Giles 
 
            participated in roofing a house.  Giles had also missed work 
 
            on May 15, 1989 due to his shoulder.  He did not improve 
 
            substantially while treating with Dr. Creswell.
 
            
 
                 Giles next sought care from John McCarthy, D.C. 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            
 
            
 
            (exhibit B, pages 1-4).  When that treatment was not 
 
            successful, he was referred to orthopaedic surgeon Ricky 
 
            Wilkerson, M.D., who provided further conservative care 
 
            (exhibit B, pages 6-11).  Giles continued working for the 
 
            employer until June 22, 1989 when he left work under the 
 
            direction of Dr. Wilkerson.  An arthrogram was performed, 
 
            but failed to show any defect in the rotator cuff.  By 
 
            December 1989, Dr. Wilkerson had advised Giles that his 
 
            options were to merely live with the situation as it was, to 
 
            treat it conservatively or to undergo arthroscopic 
 
            exploratory surgery to see if any abnormality could be 
 
            identified.  Prior to that time, no objective abnormality in 
 
            claimant's shoulder had been identified, though Dr. 
 
            Wilkerson had diagnosed claimant as having impingement and a 
 
            possible tear of the rotator cuff which was too small to be 
 
            shown by the arthrogram.  Dr. Wilkerson scheduled Giles for 
 
            surgery, but Giles cancelled the surgery on December 28, 
 
            1989 due to advice received from his attorney.
 
            
 
                 Dr. Wilkerson continues to feel that Giles has right 
 
            shoulder impingement and a possible rotatory cuff tear 
 
            (exhibit E, pages 8 and 9).  He related that the condition 
 
            can occur from an acute injury or through a gradual process.  
 
            Dr. Wilkerson expressed the opinion that a causal connection 
 
            exists between the condition of claimant's shoulder and his 
 
            employment (exhibit E, pages 20, 21 and 27).  He rated 
 
            claimant as having a ten percent impairment of the right 
 
            upper extremity, an amount which he found equivalent to six 
 
            percent of the body as a whole (exhibit E, page 21).
 
            
 
                 On February 12, 1991, Giles was examined by orthopaedic 
 
            surgeon John J. Dougherty, M.D.  Dr. Dougherty found 
 
            claimant's right shoulder to be normal, except for a little 
 
            discomfort with traction and pressure, a little snapping 
 
            sensation with internal rotation which did not bother Giles 
 
            significantly and a little crepitation with elevation which 
 
            bothered Giles a little bit (exhibit F, pages 7-9).  Dr. 
 
            Dougherty also reviewed the available records dealing with 
 
            claimant's shoulder and had additional x-rays taken (exhibit 
 
            F, pages 9-12).
 
            
 
                 Dr. Dougherty diagnosed Giles as having pain in his 
 
            right shoulder which, according to the history given, 
 
            resulted from a prior sprain.  He felt that claimant 
 
            possibly had some persistent tendonitis, a questionable 
 
            impingement syndrome and possible rotator cuff tear.  The 
 
            doctor stated that his diagnosis was not particularly 
 
            definite and that he was simply trying to find an 
 
            explanation for the claimant's pain complaints (exhibit F, 
 
            pages 13, 14, 30, 31, 32 and 37).  Dr. Dougherty felt that 
 
            it was not likely that an individual could develop an 
 
            impingement from a single incident.  He was unable to 
 
            identify a tear of the rotator cuff.  He found claimant to 
 
            have no permanent impairment in his right shoulder (exhibit 
 
            F, page 40).  Dr. Dougherty stated that an arthroscopic 
 
            surgery of claimant's shoulder would be warranted if the 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            
 
            
 
            claimant's pain were sufficient that he would want to 
 
            undergo the procedure (exhibit F, page 38).
 
            
 
                 Irene Glander asked Ron Kleckner if Giles had hurt his 
 
            shoulder at work.  Ron told her that Giles had reported 
 
            hurting his shoulder, but Ron was uncertain regarding 
 
            whether or not Giles had actually injured his shoulder at 
 
            work (exhibit I, pages 8 and 9; exhibit J, pages 13 and 14; 
 
            testimony of Irene Glander at hearing).  According to Irene, 
 
            that conversation could have taken place during the month of 
 
            May.  Ron felt that it had occurred after claimant ceased 
 
            working at A & M.  Either event would have been within 90 
 
            days from April 17, 1989.
 
            
 
                 There is a conflict in the evidence with regard to 
 
            whether or not claimant commonly complained about his 
 
            shoulder.  According to Kleckner's testimony at hearing, he 
 
            did not.  According to Irene Glander, Betty Menke and Dennis 
 
            Kasperbauer, Giles was a frequent complainer.
 
            
 
                 At hearing, Betty Menke testified that she was positive 
 
            that Giles had injured his right shoulder while working at 
 
            the packing plant, yet exhibit M refers to his left 
 
            shoulder.  Irene Glander received some type of written 
 
            document from Dr. Creswell indicating that claimant had 
 
            bursitis.  She discussed it with Giles and indicated that 
 
            she felt bursitis would not be covered by workers' 
 
            compensation.  During the conversation, Giles specifically 
 
            told Glander that the shoulder problem was not a result of 
 
            him getting hurt at work.  When the bill from Dr. Wilkerson 
 
            was received, the secretary for A & M Laundry made a 
 
            notation on it to the effect that the situation was not work 
 
            related.  Based upon the record made, it is found that Giles 
 
            Jones did not inform his employer, or any of the employer's 
 
            supervisory personnel, that he claimed his shoulder problem 
 
            was work related until approximately December 1989.  To the 
 
            contrary, whenever asked about his shoulder, Giles expressly 
 
            denied the existence of any relationship between the 
 
            employment and the shoulder condition.  The testimony in the 
 
            record to that regard is corroborated by the notes in Dr. 
 
            Creswell's records which state that claimant did not want 
 
            the matter turned in as a workers' compensation claim.  The 
 
            record fails to disclose any reason why Giles would not have 
 
            wanted to turn in a claim, but according to his own 
 
            testimony at hearing, he did not submit his bills with Dr. 
 
            Creswell or Dr. McCarthy to the employer.
 
            
 
                 It is specifically found that, in view of the fact that 
 
            Giles specifically denied that there was any relationship 
 
            between his shoulder and his employment, a reasonably 
 
            conscientious manager would not have recognized the 
 
            potential for a compensation claim, despite the information 
 
            provided by Ron Kleckner.
 
            
 
                                conclusions of law
 
            
 
                 Under section 85.23 of The Code, no compensation shall 
 
            be allowed unless, within 90 days from the date of 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            
 
            
 
            occurrence of the injury, the employee or someone on the 
 
            employee's behalf gives notice of the injury to the 
 
            employer, except when the employer or its representative has 
 
            actual knowledge of the occurrence of the injury.  Section 
 
            85.23 provides an affirmative defense.  Any employer who 
 
            seeks to avoid payment of a claim based upon section 85.23 
 
            carries the burden of pleading and proving the defense.  
 
            Reddick v. Grand Union Tea Co., 230 Iowa 108, 296 N.W. 800 
 
            (1941); DeLong v. Highway Comm'n, 229 Iowa 700, 295 N.W. 91 
 
            (1940).  This employer, therefore, must carry the burden of 
 
            proving that Jones did not give notice and that, as an 
 
            employer, it did not have actual knowledge of the occurrence 
 
            of the injury.
 
            
 
                 In this case, since the claimant did not give notice, 
 
            the claim is barred unless the employer had actual 
 
            knowledge.  The actual knowledge alternative of notice is 
 
            satisfied if the employer has information that the injury 
 
            occurred and that it may be work related.  The standard to 
 
            which the employer is held in suspecting the possibility of 
 
            a potential compensation claim is that of a reasonably 
 
            conscientious manager.  The employer must not only have 
 
            notice of the claimant's malady, but must also have notice 
 
            that the malady may be work related.  Robinson v. Dep't of 
 
            Transp., 296 N.W.2d 809, 811 (Iowa 1980).  The standard of a 
 
            reasonably conscientious manager is evaluated based upon all 
 
            circumstances known to the employer.  In this case, the 
 
            information received from Kleckner, standing alone, would 
 
            probably be sufficient to give the employer actual 
 
            knowledge.  The balance of the circumstances, however, 
 
            includes information from the claimant himself that the 
 
            condition was not work related.  It is therefore concluded 
 
            that, under these circumstances, a reasonably conscientious 
 
            manager cannot be held to have recognized a potential for a 
 
            workers' compensation claim.  In view of such, the actual 
 
            knowledge requirement was not met.
 
            
 
                 It is concluded that the employer has proved, by a 
 
            preponderance of the evidence, that Giles D. Jones did not 
 
            give notice of injury within 90 days from the occurrence of 
 
            the injury and further, that the employer did not have 
 
            actual knowledge of the occurrence of the injury.  Even if 
 
            the discovery rule were to be used to delay the date of 
 
            occurrence of injury to June 22, 1989 when claimant finally 
 
            left work, the result is the same.  Actual notice that Giles 
 
            claimed his shoulder condition to be work related was not 
 
            received by the employer until December of 1989 (exhibit C, 
 
            page 2).  Even if the June 22, 1989 date were to be used as 
 
            the date of occurrence of injury, it would still have been 
 
            necessary for the notice or actual knowledge requirements to 
 
            have been met no later than September 1989.  It is therefore 
 
            concluded that the claim made by Giles D. Jones against A & 
 
            M Laundry, Inc., is barred by the provisions of section 
 
            85.23 of The Code of Iowa.
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
                                      order
 
            
 
                 IT IS THEREFORE ORDERED that claimant take nothing from 
 
            this proceeding.
 
            
 
                 IT IS FURTHER ORDERED that the costs of this action are 
 
            assessed against the claimant pursuant to rule 343 IAC 4.33.
 
            
 
                 Signed and filed this ______ day of ____________, 1991.
 
            
 
                 
 
            
 
                 
 
                 
 
                                          ______________________________
 
                                          MICHAEL G. TRIER
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. John L. Sandy
 
            Attorney at Law
 
            304 18th Street
 
            P.O. Box 445
 
            Spirit Lake, Iowa  51360
 
            
 
            Mr. David A. Scott
 
            Attorney at Law
 
            407 Grand Avenue
 
            P.O. Box 3046
 
            Spencer, Iowa  51301
 
            
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                           1403.30; 2401
 
                           Filed August 14, 1991
 
                           MICHAEL G. TRIER
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            GILES JONES,   :
 
                      :
 
                 Claimant, :
 
                      :
 
            vs.       :         File No. 933505
 
                      :
 
            A & M LAUNDRY, INC.,     :      A R B I T R A T I O N
 
                      :
 
                 Employer, :         D E C I S I O N
 
                      :
 
            and       :
 
                      :
 
            THE CINCINNATI INSURANCE :
 
            COMPANY,  :
 
                      :
 
                 Insurance Carrier,  :
 
                 Defendants.    :
 
            ____________________________________________________________
 
            
 
            1403.30; 2401
 
            The employer had information which led it to suspect that 
 
            the claimant may have sustained an injury at work.  Upon 
 
            inquiring of the claimant, he expressly denied that his 
 
            ailment was work related.  Under the circumstances, it was 
 
            held that the employer, as a reasonably conscientious 
 
            manager, was entitled to rely upon the claimant's express 
 
            statements.  It was held that the employer did not have 
 
            actual knowledge of the occurrence of injury.  The 
 
            claimant's claim was barred by section 85.23.
 
            
 
 
s only alleged notice was 
 
                        claimant's statement when leaving work that 
 
                        her back hurt too much to continue; and
 
         
 
                     c) The employer specifically asked claimant if 
 
                        the back symptoms causing her to miss work 
 
                        were related to anything that happened at 
 
                        work; and
 
         
 
                     d) In responding to the employer, the claimant 
 
                        specifically denied that her back symptoms 
 
                        were related to any injury at work (TR 37); 
 
                        and
 
         
 
                     e) In direct contradiction to what she told her 
 

 
         
 
         Page   2
 
         
 
         
 
         
 
         
 
         
 
                        employer, claimant actually believed that her 
 
                        back symptoms on January 9, 1989 and the 
 
                        resulting surgery were a result of her 
 
                        activity at work (TR 121-22); and
 
         
 
                     f) For the next twelve months, the claimant gave 
 
                        repeated and consistent messages to her 
 
                        employer that claimant was not claiming any 
 
                        work-related injury, said messages coming 
 
                        through claimant's actions of
 
         
 
                        1)   Failing to request workers' compensation 
 
                             benefits;
 
         
 
                        2)   Selecting her own medical provider and 
 
                             acting as the sole conduit for medical 
 
                             information from her doctor to her 
 
                             employer (TR 123);
 
         
 
                        3)   Submitting all her charges for medical 
 
                             services to her health insurance 
 
                             provider;
 
         
 
                        4errning $8.00 per hour with some 
 
         overtime.  She attributed her inability to work to her back 
 
         condition.
 
         
 
              Claimant obtained medical treatment from William R. Boulden, 
 
         M.D., for back pain.  Her first visit occurred on January 9, 
 
         1989.  In February of that year, Dr. Boulden performed a two 
 
         level decompression and a two level fusion.  Claimant 
 
         participated in therapy subsequent to her surgery.  As of August 
 
         29, 1989, Dr. Boulden released claimant to return to work with 
 
         restrictions.  Her restrictions were listed by Tom Bower, LPT, 
 
         as:
 
         
 
         
 
                        floor - waist       unable lbs.
 
                        knee-chest             20  lbs.
 
                        overhead               15  lbs.
 
                        carry                  12  lbs.
 
                        push                   22  lbs.
 
                        pull                   22  lbs.
 
                        squat time          unable
 
                        stairs              1 - 2 flights
 
                        sitting                30  min.
 
                        standing                5  min.
 
         
 

 
         
 
         Page   4
 
         
 
         
 
         
 
         
 
         
 
              Mr. Bower also noted:
 
         
 
                It would appear that the patient is unlikely able to 
 
              return back to her previous job description given the 
 
              functional exam performed today.  Basically, the 
 
              functional exam or assessment would be indicative of 
 
              more sedentary type work.
 
         
 
         (Joint Exhibit E, page 3).
 
         
 
              Additionally, Dr. Boulden restricted claimant from 
 
         repetitive bending, twisting or lifting with her back.  He also 
 
         restricted her from standing or sitting for more than 45 minutes.
 
         
 
              Claimant did not return to work at her former position.  She 
 
         had been notified by defendant employer that her position in the 
 
         company had been terminated due to company policy.  Mr. Jerry G. 
 
         Jones, secretary, notified claimant by a letter dated July 26, 
 
         1989 that:
 
         
 
              Under Dahl's policies, the maximum duration of a leave 
 
              of absence for illness or injury (regardless of the 
 
              cause) is one hundred eighty (180) days.
 
         
 
              According to our records, you have been unavailable for 
 
              work since January 9, 1989.  Please be advised that 
 
              pursuant to our policies, your employment with Dahl's 
 
              is considered terminated.  However, Dahl's will 
 
              consider you for re-employment in the future for a 
 
              position for which you may be qualified.
 
         
 
              Our records indicate that you presently have eighteen 
 
              (18) days of accrued, but unused vacation.  Four checks 
 
              totaling $809.00 are enclosed for this.
 
         
 
         (Jt. Ex. S, p. 64)
 
         As a consequence, claimant filed for and received unemployment 
 
         benefits.  In the September 19, 1989 job service decision, it was 
 
         determined that:  "On 7-10-89 you were discharged from your work 
 
         while you were absent from work with permission.  No 
 
         disqualification is imposed."
 
         
 
              Claimant experienced difficulties with her back condition.  
 
         Dr. Boulden opined the fusion never completely healed.  He 
 
         performed a decompression of the neural foramen and partial 
 
         resection of the L5 pedicel.  Dr. Boulden opined the second 
 
         surgery was successful since claimant's leg pain had disappeared.  
 
         He also opined that claimant had a 30 percent functional 
 
         impairment with 15 percent of the impairment attributable to 
 
         claimant's work injury and 15 percent attributable to activities 
 
         other than work.
 
         
 
              In January of 1990, claimant sought services from the Iowa 
 
         Department of Vocational Rehabilitation Services.  She 
 
         participated in a skills evaluation program.  Claimant did not 
 
         meet with a great deal of success.  The evaluator, Clarida 
 
         Ferguson, wrote in her report of January 25, 1990:
 
         
 
              In summary, we have no recommendations for placement or 
 

 
         
 
         Page   5
 
         
 
         
 
         
 
         
 
         
 
              training at this time.  During our exit conversation, 
 
              Janice talked about the conversation she'd had with the 
 
              staff psychologist when she told her that maybe she 
 
              could work if she could find a job where the hours 
 
              would be flexible, where she could stand [sic] sit or 
 
              move about as she wished, and she also said she'd like 
 
              a job with personal interaction....She has good verbal 
 
              communication skills, average social skills and average 
 
              intelligence.  We visited with her about exploring the 
 
              possibilities of volunteer work so that she could 
 
              develop some outside interests as well as help someone.  
 
              As she learns to deal with her disability and, if by 
 
              change [sic] it improves, perhaps she could then 
 
              consider vocational planning.  Right now nothing seems 
 
              feasible to her and she still may be grieving over the 
 
              changes brought on by her disability.  In any event, 
 
              Janice has decided that she is unable to consider 
 
              employment....
 
         
 
         (Jt. Ex. T, p. 18)
 
         
 
              At the time of the hearing claimant was unemployed.  She had 
 
         been receiving social security disability benefits.  Claimant had 
 
         not engaged in any volunteer work.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              The conclusions of law contained in the proposed agency 
 
         decision filed November 18, 1991 are adopted as set forth below.  
 
         Segments designated by asterisks (*****) indicate portions of the 
 
         language from the proposed agency decision that have been 
 
         intentionally deleted and do not form a part of this final agency 
 
         decision.  Segments designated by brackets ([ ]) indicate 
 
         language that is in addition to the language of the proposed 
 
         agency decision.
 
         
 
              The first issue to address is whether claimant has tendered 
 
         proper notice to defendants pursuant to section 85.23 of the 
 
         Code.  The section provides:
 
         
 
                Unless the employer or the employer's representative 
 
              shall have actual knowledge of the occurrence of an 
 
              injury received within ninety days from the date of the 
 
              occurrence of the injury, or unless the employee or 
 
              someone on the employee's behalf or a dependent or 
 
              someone on the dependent's behalf shall give notice 
 
              thereof to the employer within ninety days from the 
 
              date of the occurrence of the injury, no compensation 
 
              shall be allowed.
 
         
 
              Section 85.23 requires an employee to give notice of the 
 
         occurrence of an injury to the employer within 90 days from the 
 
         date of the occurrence, unless the employer has actual knowledge 
 
         of the occurrence of the injury.
 
         
 
              The purpose of the 90-day notice or actual knowledge 
 
         requirement is to give the employer an opportunity to timely 
 
         investigate the facts surrounding the injury.  The actual 
 
         knowledge alternative to notice is met when the employer, as a 
 

 
         
 
         Page   6
 
         
 
         
 
         
 
         
 
         
 
         reasonably conscientious manager, is alerted to the possibility 
 
         of a potential compensation claim through information which makes 
 
         the employer aware that the injury occurred and that it may be 
 
         work related.  Dillinger v. City of Sioux City, 368 N.W.2d 176 
 
         (Iowa 1985); Robinson v. Department of Transp., 296 N.W.2d 809 
 
         (Iowa 1980).  The time period for giving notice does not begin to 
 
         run until the claimant as a reasonable person, should recognize 
 
         the nature, seriousness and probable compensable character of the 
 
         injury.  The reasonableness of claimant's conduct is to be judged 
 
         in light of claimant's education and intelligence.  Claimant must 
 
         know enough about the condition or incident to realize that it is 
 
         both serious and work connected.  Positive medical information is 
 
         unnecessary if information from any source gives notice of the 
 
         condition's probable compensability.  Id.
 
         
 
              Failure to give notice is an affirmative defense which the 
 
         employer must prove by a preponderance of the evidence.  DeLong 
 
         v. Highway Commission, 229 Iowa 700, 295 N.W. 91 (1940).
 
         
 
                 *****
 
         
 
              [Under Iowa Code section 85.23, claimant is obligated to 
 
         give notice to her employer of her injury within 90 days.  In 
 
         this case, the condition claimant is seeking benefits for is a 
 
         cumulative injury.  Claimant had two traumatic injuries in the 
 
         form of falls, one occurring on April 4, 1988, and a second fall 
 
         in September of 1988.  However, Dr. Boulden testified that 
 

 
         
 
         Page   7
 
         
 
         
 
         
 
         
 
         
 
         claimant had a prior back condition that was aggravated by the 
 
         falls.  Claimant underwent two surgeries which Dr. Boulden 
 
         testified were successful in correcting the aggravations.  
 
         However, there is permanent disability resulting from the 
 
         surgeries.  Claimant's cumulative back condition is now worsened 
 
         as a result of the surgeries necessitated by the falls, and this 
 
         is the condition claimant seeks compensation for.
 
         
 
              The record clearly establishes that claimant felt her 
 
         condition was work related at all times.  However, claimant, 
 
         whenever asked by her supervisor if her back condition or 
 
         surgeries were related to an incident at work, consistently 
 
         denied that they were.  Claimant testified that Dr. Boulden told 
 
         her her condition was not work related.
 
         
 
              Claimant testified that she assumed her supervisor knew her 
 
         condition was work related because her supervisor was aware of 
 
         her falls.  However, Iowa Code 85.23 requires that information 
 
         not only about the injury, but that compensation would be claimed 
 
         be given within the prescribed time.  Claimant had a prior back 
 
         condition that was known to her employer.  Her statements to her 
 
         supervisor that she would be absent from work and undergoing back 
 
         surgery did not put the employer on notice that her condition was 
 
         caused by a work injury.  When coupled with her specific denial 
 
         of a work injury upon inquiry by the supervisor, clearly claimant 
 
         did not give notice when she left work in January of 1989 and the 
 
         employer did not have actual knowledge of a work-related injury.
 
         
 
              Claimant testified as follows in her deposition:
 
         
 
                 Q.  I'm going to refer to one of the questions.  It 
 
              says, "What was person doing when injured," and the 
 
              response is, "Jan is having back surgery and she stated 
 
              to me on 1-23-89 that this surgery is not related to 
 
              any previous work accidents."
 
         
 
                 A.  That's because that's what Boulden had told me 
 
              before he went in there.
 
         
 
                 Q.  Now, what I'm asking you is, is that information 
 
              a correct reflection of what you told Jim Martin in 
 
              January of 1989, that your surgery was not related to 
 
              any previous work accident?
 
         
 
                 A.  I told him that's what Dr. Boulden told me.  I 
 
              had no way of knowing.
 
         
 
                 Q.  So at that time Dr. Boulden had told you that it 
 
              wasn't related to any work accident -- incident?
 
         
 
                 A.  That's what he said at the time.  He did not 
 
              know if it was related to work.  I said, "Do I need to 
 
              be filing for Workmen's Comp.," and he said that he 
 
              would not know.  He said he didn't think that I needed 
 
              to file for it.
 
         
 
                 Q.  Well, my question -- so that you did, in fact, 
 
              tell Jim Martin that the surgery in January was not 
 
              related to any work incident --
 

 
         
 
         Page   8
 
         
 
         
 
         
 
         
 
         
 
         
 
                 A.  No.
 
         
 
                 Q.  -- in your opinion at that time?
 
         
 
                 A.  No, I don't think I told him that.  I don't know 
 
              -- no.
 
         
 
                 Q.  Tell me as precisely as you can what it is that 
 
              you said to Jim Martin.
 
         
 
                 A.  I told him I was going to have back surgery, 
 
              that I had two herniated discs and they were going to 
 
              put me in the hospital, and they were going to operate 
 
              on the lst, and I would be back whenever I got well.
 
         
 
                 Q.  Now, specifically what was said by you in 
 
              reference to whether or not the surgery was 
 
              necessitated by any previous work injury?
 
         
 
                 A.  I don't think it was even brought up as being 
 
              work injury.  At that point I hurt so bad, I didn't 
 
              care.
 
         
 
                 Q.  Well, just a few minutes ago you told me that 
 
              you said Dr. Boulden told you it wasn't work-related, 
 
              and that's what you told Mr. Martin.  Now are you 
 
              changing that testimony?
 
         
 
                 A.  No.  I'm not changing anything. 
 
         
 
                 Q.  Well, when did you tell Mr. Martin that you 
 
              didn't think it was work-related?
 
         
 
                 A.  I told him -- I don't know on which time I 
 
              talked to him, because I kept him up to date, okay, but 
 
              I told him that that's what Boulden had said; but I did 
 
              not know, and Boulden did not know until he got in 
 
              there to see what he found out.
 
         
 
                 Q.  Now, if this report is dated January 24th, 1989 
 
              and it indicates a conversation with you on January 
 
              23rd, 1989, do you have any reason to doubt that that 
 
              is an accurate reflection of a conversation you had 
 
              with Jim Martin on the 23rd of January, 1989?
 
         
 
                 A.  That might have been -- that might have been 
 
              roughly what he thought I said, and maybe that's what I 
 
              did say.
 
         
 
         (Jt. Ex. M, p. 42, line 12 thru p. 45, line 2)
 
         
 
              Claimant also stated:
 
         
 
                 Q.  So is it possible that you never informed the 
 
              management -- that you personally never informed the 
 
              management that you felt that your back surgery was 
 
              because of a --
 
         
 

 
         
 
         Page   9
 
         
 
         
 
         
 
         
 
         
 
                 A.  Right.
 
         
 
                 Q.  -- work-related --
 
         
 
                 A.  Right.  I just figured it was because of all of 
 
              the falls and lifting all the buckets and all that 
 
              stuff.
 
         
 
                 Q.  And you felt that that was true back in January 
 
              of 1989 when you left work, didn't you?
 
         
 
                 A.  I still feel that way.
 
         
 
                 Q.  But you did back then; isn't that right?
 
         
 
                 A.  Yes.
 
         
 
                 Q.  And you felt that way after you had the surgery 
 
              in February of 1989?
 
         
 
                 A.  Well, yeah.
 
         
 
                 Q.  And did any doctor ever give you any reason to 
 
              doubt your opinions that it was because of the falls 
 
              that you had had?
 
         
 
                 A.  No.  I'm just going on how I feel.
 
         
 
                 Q.  So you remained firm in that belief?
 

 
         
 
         Page  10
 
         
 
         
 
         
 
         
 
         
 
         
 
                 A.  Yeah, yes.
 
         
 
                 Q.  And yet you never informed the management of 
 
              that opinion, did you?
 
         
 
                 *****
 
         
 
                 A.  No, because I figured I'd get well and I'd come 
 
              back to work, because I didn't miss very much.
 
         
 
                 *****
 
         
 
         (Jt. Ex. M, p. 47, l. 3 thru p. 48, l. 8)
 
         
 
              Dr. Boulden's deposition described his conversations with 
 
         claimant as follows:
 
         
 
                 Q.  One last thing I would like to ask you about, 
 
              Doctor, Mrs. Haberkorn has told us that early on in 
 
              January of 1989, before the first surgery, that you and 
 
              she spoke about whether her back problems were work 
 
              related, and she tells us that during that period of 
 
              time you once told her that it was not caused by an 
 
              injury or an accident and another time said that you 
 
              didn't know.
 
         
 
                     First of all, Doctor, do you have any specific 
 
              recollection of these conversations that she is 
 
              referring to?
 
         
 
                 A.  Nothing specific, no.  I could state that if she 
 
              would have asked me those kind of questions, my first 
 
              response is that if she thought it was work related, 
 
              then she needs to file herself, because I do not file 
 
              as a physician.
 
         
 
                     I may have told her that I did not feel that any 
 
              specific trauma has caused what is wrong with her back, 
 
              but I felt that after talking to her that most of her 
 
              problem was probably related to the type of work she 
 
              does.  So if she's got -- That would be what I would 
 
              have discussed with her.
 
         
 
         (Jt. Ex. J, p. 35, l. 5 thru p. 36, l. 3)
 
         
 
              Claimant was unable to identify a point in time when she 
 
         received medical advice that her condition was work related:
 
         
 
                 Q.  When did you first personally have a 
 
              conversation with a doctor who related your back 
 
              surgeries to a condition or activities in your 
 
              employment?
 
         
 
                 A.  When did I first have a conversation with a 
 
              doctor?
 
         
 
                 Q.  That said that your back surgery was because of 
 
              something that happened at work?
 

 
         
 
         Page  11
 
         
 
         
 
         
 
         
 
         
 
         
 
                 A.  I can't tell you exactly.  I don't know.
 
         
 
                 Q.  Isn't it true that you have never had a 
 
              conversation like that?  No doctor has ever told you 
 
              that?
 
         
 
                 A.  That is wasn't a result of the falls?
 
         
 
                 Q.  No doctor has ever told you -- 
 
         
 
                 A.  That this was not the result of a fall?
 
         
 
                 Q.  I'm not sure I understand what you mean by that.
 
         
 
                 A.  I have always thought that the back surgeries 
 
              were caused by the falls.  That was the outcome, and he 
 
              said that wasn't caused from the fall.  The fall didn't 
 
              really have anything to do with it.  It was just a 
 
              buildup over the long-term of doing what I did for as 
 
              long as I did.
 
         
 
                 Q.  And when you say he?
 
         
 
                 A.  Dr. Boulden.
 
         
 
                 Q.  And he told you that in January of 1989?
 
         
 
                 A.  I don't remember when he told me that.
 
         
 
                 Q.  Did he tell you that in February of 1989?
 
         
 
                 A.  I don't remember when he told me that.
 
         
 
                 Q.  Did he tell you before you were terminated by 
 
              Dahl's?
 
         
 
                 A.  I don't remember.  I don't remember.
 
         
 
                 Q.  Is it not important?  Is that why you don't 
 
              remember?
 
         
 
                 A.  No, I just don't remember because afterwards it 
 
              was a lot worse when he got in there than he thought it 
 
              was going to be.  He thought the success was going to 
 
              be a lot better than it was.
 
         
 
                 Q.  What I am asking you is after you have had the 
 
              first surgery, you are going back to see Dr. Boulden on 
 
              a monthly basis, you are seeing him the first of every 
 
              month?
 
         
 
                 A.  I never asked him if he thought it was 
 
              job-related?
 
         
 
                 Q.  Had you asked him before if he thought -- 
 
         
 
                 A.  Right, the very first day I went to see him 
 
              before he ever, ever did the first injection.  And he 
 

 
         
 
         Page  12
 
         
 
         
 
         
 
         
 
         
 
              said he could not say, and he said -- I asked him then 
 
              if he thought that it was a workers' comp case.  And he 
 
              says, "At this point I don't think so because --"  I 
 
              don't know, and that is the reason why I never done 
 
              anything about workers' comp.
 
         
 
                 Q.  Now, Dr. Boulden's deposition says that if he 
 
              had had a conversation with you about workers' 
 
              compensation, he would have told you that you needed to 
 
              file the report and that he was not going to do that.  
 
              And if there was a question, that you should talk to 
 
              the employer.  Have you seen that in his deposition?
 
         
 
                 A.  No, I have not seen that in his deposition, but 
 
              that was the very first day I was at the man's office.
 
         
 
                 Q.  What caused you to ever talk to him again about 
 
              whether your condition was related to employment?
 
         
 
                 A.  Because I had a neighbor that thought it was.
 
         
 
                 Q.  Who was the neighbor?
 
         
 
                 A.  Do I have to give his name?
 
         
 
                        MR. VONDERHAAR:  Sure.  Go ahead.
 
         
 
                 A.  Earl Dunsbergen.
 
         
 
                 Q.  When did you talk to the neighbor that thought 
 
              that that was work-related?
 
         
 
                 A.  February.
 
         
 
                 Q.  February of what year?
 
         
 
                 A.  "89.
 
         
 
                 Q.  After the first surgery?
 
         
 
                 A.  Uh-huh.
 

 
         
 
         Page  13
 
         
 
         
 
         
 
         
 
         
 
         
 
                 Q.  Is that correct?
 
         
 
                 A.  Yes.  It might have been March.  It might have 
 
              been March because he thought we had about waited too 
 
              long.
 
         
 
                 Q.  In February or March of 1989 your neighbor 
 
              thought you might have waited too long; is that 
 
              correct?
 
         
 
                 A.  Yes.
 
         
 
                 Q.  So what did you do?  Did you go and ask the 
 
              doctor about it?
 
         
 
                 A.  No.  Well, I might have mentioned it to Boulden, 
 
              but it wasn't -- I don't think so.  We just tabled it 
 
              because I just -- I didn't want to have to do it.  I 
 
              mean I was going to go back to work.  I wasn't 
 
              interested in getting Dahl's mad at me or anything 
 
              else.  I just wanted to get well and go back to work.
 
         
 
                 Q.  You didn't want to file a claim for workers' 
 
              compensation?
 
         
 
                 A.  No, because I didn't think I needed to.
 
         
 
                 Q.  And in February or March of 1989 within a month 
 
              of your surgery a neighbor informed you that it might 
 
              be too late to file a claim?
 
         
 
                 A.  He asked me if I had, and I told him, "No."  And 
 
              he says, "You should have."  And I said, "The doctor 
 
              didn't say I had to do it, so I didn't."  And he says,  
 
              "Well, I don't know if too much time has lapsed."
 
         
 
                 Q.  And at that time were you then aware that there 
 
              was a time limit in which you needed to notify your 
 
              employer if there was a claim for workers' compensation 
 
              benefits?
 
         
 
                 A.  Yeah, from what he said, but I didn't know what 
 
              it was.
 
         
 
                 Q.  At the time that you had the conversation with 
 
              your neighbor did you still believe that your back 
 
              surgery had been caused by activity in the work 
 
              environment?
 
         
 
                 A.  I have always felt that way from the last 
 
              fall....
 
         
 
         (Transcript, p. 135, l. 12 thru p. 140, l. 6)
 
         
 
              At the hearing, claimant testified:
 
         
 
                 Q.  And when you were asked later whether this was 
 
              work-related, you indicated that you didn't think it 
 

 
         
 
         Page  14
 
         
 
         
 
         
 
         
 
         
 
              was work-related; is that correct?
 
         
 
                 A.  That is right because I did not know if it was 
 
              work-related.  All I knew is I hurt.
 
         
 
                 Q.  I am talking about after you talked with the 
 
              doctor.  You had a conversation with Jim Martin where 
 
              you said that you were going to have surgery to your 
 
              back; isn't that correct?
 
         
 
                 A.  That's correct.
 
         
 
                 Q.  And he asked you whether that surgery was 
 
              related to something that happened at work, didn't he?
 
         
 
                 A.  Yes, he did.
 
         
 
                 Q.  And your response was, "No, it is not"?
 
         
 
                 A.  I told him that Dr. Boulden said that he did not 
 
              think it was.
 
         
 
                 Q.  Now, in your deposition you said that in your 
 
              mind you believed that your back difficulties were 
 
              caused by or related to the activity that you done in 
 
              the work environment; isn't that correct?
 
         
 
                 A.  That is right.
 
         
 
                 Q.  And you believed that when you left the store on 
 
              the 9th of January 1989, didn't you.
 
         
 
                 A.  That's right.
 
         
 
                 Q.  And you have believed that continually up until 
 
              today?
 
         
 
                 A.  I still believe it.
 
         
 
                 Q.  But you never notified Dahl's that you thought 
 
              that your back difficulties were a result of work 
 
              activity, did you, until this petition was filed in 
 
              this case?
 
         
 
                 A.  I didn't really know until after that doctor had 
 
              operated on me what was going on in there, so I did not 
 
              notify Dahl's, no.
 
         
 
                 Q.  And you didn't notify them after the operation 
 
              either?
 
         
 
                 A.  No, because I just figured I was going to get 
 
              well, and I was going to go back to work.
 
         
 
         (Tr., p. 120, l. 24 thru p. 122, l. 12)
 
         
 
         However, clearly at some point in time, claimant realized her 
 
         condition was work related.  Claimant filed an application for 
 
         long-term disability benefits on August 25, 1989, stating her 
 

 
         
 
         Page  15
 
         
 
         
 
         
 
         
 
         
 
         condition was "probably" work related.
 
         
 
                 Q.  And during that period of time did you complete 
 
              an application for long-term disability?
 
         
 
                 A.  Yes.
 
         
 
                 Q.  Directing your attention to page 18 of Joint 
 
              Exhibit C, is this the application that you completed?
 
         
 
                 A.  Yes, it has got my name on it.
 
         
 
                 Q.  So that is your signature down in the bottom 
 
              right-hand corner?
 
         
 
                 A.  Right.
 
         
 
                 Q.  Who typed this application for you?
 
         
 
                 A.  Phil Vonderhaar.
 
         
 
                 Q.  The attorney who is representing you in this 
 
              workers' compensation proceeding?
 
         
 
                 A.  Right.
 
         
 
                 Q.  Now directing your attention to about a third of 
 
              the way down on that application where it says, "Is 
 
              condition due to injury or sickness arising out of 
 
              employment?"  What is the answer that is typed in 
 
              there?
 
         
 
                 A.  Probably, yes.
 
         
 
                 Q.  And that is the document that you signed and 
 
              dated on the 25th of August, 1989?
 
         
 
                 A.  Right.
 
         
 
                 Q.  On that date did you notify Dahl's that you 
 
     
 
         
 
         
 
         Page  16
 
         
 
         
 
         
 
         
 
         
 
              thought that your back difficulty was probably related 
 
              to an activity at work?
 
         
 
                 A.  No, I did not.
 
         
 
                 Q.  Did you notify Dahl's at any time prior to 
 
              filing your petition in January or February of 1990 
 
              that you thought that your injury or sickness was due 
 
              to something in the employment?
 
         
 
                 A.  No.
 
         
 
                 Q.  At the time that you completed this form on 
 
              August 25, 1989, did you believe that your back 
 
              condition was probably something that was arising out 
 
              of employment?
 
         
 
                 A.  Yes, I thought it was because of the falls.
 
         
 
                 Q.  But up until that point at least you had never 
 
              given Dahl's notice of that?
 
         
 
                 A.  I just figured that they knew that.  They knew 
 
              when I fell.
 
         
 
                 Q.  And that they were somehow supposed to know that 
 
              when you left in January of 1989 that that was somehow 
 
              related to falls that had occurred as early as April of 
 
              1988; is that right?
 
         
 
                 A.  I think they definitely should have known it 
 
              from the fall in September.
 
         
 
         (Tr., p. 131, l. 17 thru p. 133, l. 15)
 
         
 
              Taking the above evidence as a whole, it is concluded that 
 
         claimant failed to give notice as required by Iowa Code section 
 
         85.23.  Claimant acknowledges she realized that her condition was 
 
         work related at all times.  It is not clear what medical advice 
 
         claimant received from Dr. Boulden.  Claimant characterizes Dr. 
 
         Boulden's advice differently than Dr. Boulden described it.  
 
         Claimant's admission that she chose not to file a workers' 
 
         compensation claim, even though she realized her condition was 
 
         work related, may have colored her description of what she was 
 
         told by Dr. Boulden.
 
         
 
              Even if claimant received medical advice that her condition 
 
         was not work related, thus extending the time in which to give 
 
         notice under the discovery rule, nevertheless claimant was 
 
         clearly on notice her condition was work related by August of 
 
         1989 when she filed for long-term disability.
 
         
 
              Yet, claimant still did not give notice to her employer and, 
 
         in fact, the employer was not notified claimant was seeking 
 
         workers' compensation benefits until she filed her petition some 
 
         thirteen months after leaving work.  In the interim, defendants 
 
         were denied both the opportunity to investigate the claimed work 
 
         injury in a timely manner and the ability to choose claimant's 
 
         medical treatment as contemplated by Iowa Code 85.27.  Defendants 
 

 
         
 
         Page  17
 
         
 
         
 
         
 
         
 
         
 
         even made specific inquiry of claimant whether her condition was 
 
         work related, something they were not obligated to do under the 
 
         statute, and were entitled to rely on claimant's answer that it 
 
         was not.]
 
         
 
              WHEREFORE, the decision of the deputy is reversed.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, it is ordered:
 
         
 
              That claimant shall take nothing further from these 
 
         proceedings. 
 
         
 
              That defendants shall pay the costs of the appeal including 
 
         the transcription of the hearing.
 
         
 
              Signed and filed this ____ day of April, 1993.
 
         
 
         
 
         
 
         
 
                                    ________________________________
 
                                            BYRON K. ORTON
 
                                      INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Phillip Vonderhaar
 
         Attorney at Law
 
         840 Fifth Avenue
 
         Des Moines, Iowa  50309
 
         
 
         Mr. Cecil L. Goettsch
 
         Attorney at Law
 
         801 Grand Avenue
 
         Suite 3700
 
         Des Moines, Iowa  50309
 
         
 
 
         
 
 
 
              
 
               
 
                                           2803
 
                                           Filed April 30, 1993
 
                                           BYRON K. ORTON
 
         
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         ____________________________________________________________
 
                                       :
 
         JANICE M. HABERKORN,          :
 
                                       :
 
              Claimant,                :
 
                                       :
 
         vs.                           :
 
                                       :        File No. 933510
 
         FOODS, INC., d/b/a DAHL'S     :
 
         FOODS,                        :          A P P E A L
 
                                       :
 
              Employer,                :        D E C I S I O N
 
                                       :
 
         and                           :
 
                                       :
 
         EMPLOYERS MUTUAL COMPANIES,   :
 
                                       :
 
              Insurance Carrier,       :
 
              Defendants.              :
 
         ___________________________________________________________
 
         
 
         
 
         2803
 
         
 
         Issue on appeal was whether claimant gave notice within 90 days 
 
         of her injury.  Claimant stated she was told by Dr. Boulden the 
 
         condition was not work related.  Dr. Boulden's version of the 
 
         conversation differed.  Claimant was specifically asked by the 
 
         employer if her absence from work was due to a work injury, and 
 
         claimant denied that it was.
 
         
 
         Claimant stated that in spite of what the doctor told her, she 
 
         knew at all times that her back pain was from her injury at work.  
 
         Claimant later filed for long term disability, and in the 
 
         application form marked that her condition was probably work 
 
         related.  Claimant stated she did not notify her employer because 
 
         she did not want the employer mad at her.
 
         
 
         Held that claimant's time to give notice, under the discovery 
 
         rule, would be extended if she did in fact have medical advice 
 
         that her condition was not work related, although that was not 
 
         clear in this case.  However, claimant was clearly on notice that 
 
         her condition was work related when she filed for long term 
 
         disability.  Claimant failed to give notice within 90 days of 
 
         this date, and in fact, employer was not aware claimant was 
 
         seeking benefits until her petition was filed 13 months later.   
 
         Claimant was held to have failed to give notice and no further 
 
         benefits were awarded. 
 
         
 
 
         
 
         Page   1
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
                     before the iowa industrial commissioner
 
         ____________________________________________________________
 
                                         :
 
         JANICE M. HABERKORN,            :
 
                                         :
 
              Claimant,                  :
 
                                         :
 
         vs.                             :       File Nos. 933509,
 
                                         :        933510 & 946099
 
         FOODS, INC., d/b/a DAHL'S FOODS,:
 
                                         :     A R B I T R A T I O N
 
              Employer,                  :
 
                                         :        D E C I S I O N
 
         and                             :
 
                                         :
 
         EMPLOYERS MUTUAL COMPANIES,     :
 
                                         :
 
              Insurance Carrier,         :
 
              Defendants.                :
 
         ___________________________________________________________
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              These are proceedings in arbitration upon the petitions of 
 
         claimant, Janice M. Haberkorn, against her employer, Foods, Inc., 
 
         d/b/a Dahl's Foods, and its insurance carrier, Employers Mutual 
 
         Companies, defendants.  The case was heard on July 3, 1991, in 
 
         Des Moines, Iowa.  The record consists of joint exhibits A 
 
         through U.  The record also consists of the testimony of 
 
         claimant, as well as the testimonies of the following witnesses:  
 
         Jim Martin, Charles Thyberg, Ruby Highland, Carma Mitchell, Jerry 
 
         Jones and Leona Martin.
 
         
 
              At the opening of the hearing, claimant made a motion to 
 
         amend the injury date in file number 933510.  The motion was 
 
         granted and claimant's alleged injury date was amended to January 
 
         9, 1989.
 
         
 
              Also at the commencement of the hearing, claimant voluntar
 
         ily moved to dismiss files numbered 946099 and 933509.  The 
 
         motions to dismiss were granted by the undersigned deputy.  No 
 
         testimony was presented relevant to those alleged injury dates.
 
         
 
                                      issues
 
         
 
              The issues to be determined are:  1) whether claimant 
 
         received an injury which arose out of and in the course of 
 
         employment; 2) whether there is a causal relationship between the 
 
         alleged injury and the disability; 3) whether claimant is enti
 
         tled to temporary disability/healing period benefits or permanent 
 
         disability benefits; 4) whether claimant is entitled to medical 
 
         benefits pursuant to section 85.27; 5) whether claimant tendered 
 

 
         
 
         Page   2
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         notice pursuant to section 85.23; and, 6) whether claimant had 
 
         complied with section 85.26.
 
         
 
                                 findings of fact
 
         
 
              The deputy, having heard the testimony and considered all 
 
         the evidence, finds:
 
         
 
              Claimant is 54 years old and married.  She graduated from 
 
         Perry High school in 1954.  For many years, claimant worked as a 
 
         homemaker.  In 1971, claimant returned to the labor market.  She 
 
         obtained a position as a cake decorator in the bakery department 
 
         at the Hy-Vee in Ankeny.  Claimant enrolled in a night school 
 
         course for cake decorating techniques.  Claimant remained 
 
         employed at Hy-Vee for five years.  She voluntarily terminated 
 
         that position.
 
         
 
              Claimant commenced her employment with defendant-employer on 
 
         February 2, 1977.  She was hired as a cake decorator to work at 
 
         the Fleur Drive store in the bakery department.  She held the 
 
         same position throughout the duration of her employment.
 
         
 
              Claimant performed various job duties as a cake decorator.  
 
         She decorated cakes, iced rolls, wrapped buns and sliced bread.  
 
         Her duties required her to lift up to 40 pound buckets of icing 
 
         on an occasional basis.  Frequently, she was required to carry 
 
         items weighing 10 to 15 pounds.  Claimant's duties entailed a 
 
         great deal of standing, however, claimant was able to move freely 
 
         about the department.  Claimant's job required her to bend, stoop 
 
         and twist.
 
         
 
              Claimant's last day of work occurred on January 9, 1989.  At 
 
         that time, claimant was earning $8.00 per hour with some over
 
         time.  She attributed her inability to work to her back condi
 
         tion.
 
         
 
              Claimant obtained medical treatment from William R. Boulden, 
 
         M.D., for back pain.  Her first visit occurred on January 9, 
 
         1989.  In February of that year, Dr. Boulden performed a two 
 
         level decompression and a two level fusion.  Claimant partici
 
         pated in therapy subsequent to her surgery.  As of August 29, 
 
         1989, Dr. Boulden released claimant to return to work with re
 
         strictions.  Her restrictions were listed by Tom Bower, LPT, as:
 
         
 
         
 
                        floor - waist       unable lbs.
 
                        knee-chest             20  lbs.
 
                        overhead               15  lbs.
 
                        carry                  12  lbs.
 
                        push                   22  lbs.
 
                        pull                   22  lbs.
 
                        squat time          unable
 
                        stairs              1 - 2 flights
 
                        sitting                30  min.
 
                        standing                5  min.
 
         
 
              Mr. Bower also noted:
 

 
         
 
         Page   3
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
                It would appear that the patient is unlikely able to 
 
              return back to her previous job description given the 
 
              functional exam performed today.  Basically, the func
 
              tional exam or assessment would be indicative of more 
 
              sedentary type work.
 
         
 
         (Joint Exhibit E, page 3).
 
         
 
              Additionally, Dr. Boulden restricted claimant from repeti
 
         tive bending, twisting or lifting with her back.  He also re
 
         stricted her from standing or sitting for more than 45 minutes.
 
         
 
              Claimant did not return to work at her former position.  She 
 
         had been notified by defendant employer that her position in the 
 
         company had been terminated due to company policy.  Mr. Jerry G. 
 
         Jones, secretary, notified claimant by a letter dated July 26, 
 
         1989 that:
 
         
 
              Under Dahl's policies, the maximum duration of a leave 
 
              of absence for illness or injury (regardless of the 
 
              cause) is one hundred eighty (180) days.
 
         
 
              According to our records, you have been unavailable for 
 
              work since January 9, 1989.  Please be advised that 
 
              pursuant to our policies, your employment with Dahl's 
 
              is considered terminated.  However, Dahl's will con
 
              sider you for re-employment in the future for a posi
 
              tion for which you may be qualified.
 
         
 
              Our records indicate that you presently have eighteen 
 
              (18) days of accrued, but unused vacation.  Four checks 
 
              totaling $809.00 are enclosed for this.
 
         
 
         (Jt. Ex. S, p. 64)
 
         
 
              As a consequence, claimant filed for and received unemploy
 
         ment benefits.  In the September 19, 1989, job service decision, 
 
         it was determined that:
 
         
 
              On 7-10-89 you were discharged from your work while you 
 
              were absent from work with permission.  No disqualifi
 
              cation is imposed.
 
         
 
              Claimant experienced difficulties with her back condition.  
 
         Dr. Boulden opined the fusion never completely healed.  He per
 
         formed a decompression of the neural foramen and partial resec
 
         tion of the L5 pedicle.  Dr. Boulden opined the second surgery 
 
         was successful since claimant's leg pain had disappeared.  He 
 
         also opined that claimant had a 30 percent functional impairment 
 
         with 15 percent of the impairment attributable to claimant's work 
 
         injury and 15 percent attributable to activities other than work.
 
         
 
              In January of 1990, claimant sought services from the Iowa 
 
         Department of Vocational Rehabilitation Services.  She partici
 
         pated in a skills evaluation program.  Claimant did not meet with 
 
         a great deal of success.  The evaluator, Clarida Ferguson wrote 
 

 
         
 
         Page   4
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         in her report of January 25, 1990:
 
         
 
              In summary, we have no recommendations for placement or 
 
              training at this time.  During our exit conversation, 
 
              Janice talked about the conversation she'd had with the 
 
              staff psychologist when she told her that maybe she 
 
              could work if she could find a job where the hours 
 
              would be flexible, where she could stand [sic] sit or 
 
              move about as she wished, and she also said she'd like 
 
              a job with personal interaction....She has good verbal 
 
              communication skills, average social skills and average 
 
              intelligence.  We visited with her about exploring the 
 
              possibilities of volunteer work so that she could 
 
              develop some outside interests as well as help someone.  
 
              As she learns to deal with her disability and, if by 
 
              change [sic] it improves, perhaps she could then con
 
              sider vocational planning.  Right now nothing seems 
 
              feasible to her and she still may be grieving over the 
 
              changes brought on by her disability.  In any event, 
 
              Janice has decided that she is unable to consider 
 
              employment....
 
         
 
         (Jt. Ex. T, p. 18)
 
         
 
              At the time of the hearing claimant was unemployed.  She had 
 
         been receiving social security disability benefits.  Claimant had 
 
         not engaged in any volunteer work.
 
         
 
                                conclusions of law
 
         
 
              The first issue to address is whether claimant has tendered 
 
         proper notice to defendants pursuant to section 85.23 of the 
 
         Code.  The section provides:
 
         
 
                Unless the employer or the employer's representative 
 
              shall have actual knowledge of the occurrence of an 
 
              injury received within ninety days from the date of the 
 
              occurrence of the injury, or unless the employee or 
 
              someone on the employee's behalf or a dependent or 
 
              someone on the dependent's behalf shall give notice 
 
              thereof to the employer within ninety days from the 
 
              date of the occurrence of the injury, no compensation 
 
              shall be allowed.
 
         
 
              Section 85.23 requires an employee to give notice of the 
 
         occurrence of an injury to the employer within 90 days from the 
 
         date of the occurrence, unless the employer has actual knowledge 
 
         of the occurrence of the injury.
 
         
 
              The purpose of the 90-day notice or actual knowledge 
 
         requirement is to give the employer an opportunity to timely 
 
         investigate the facts surrounding the injury.  The actual knowl
 
         edge alternative to notice is met when the employer, as a reason
 
         ably conscientious manager, is alerted to the possibility of a 
 
         potential compensation claim through information which makes the 
 
         employer aware that the injury occurred and that it may be work 
 
         related.  Dillinger v. City of Sioux City, 368 N.W.2d 176 (Iowa 
 

 
         
 
         Page   5
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         1985); Robinson v. Department of Transp., 296 N.W.2d 809 (Iowa 
 
         1980).  The time period for giving notice does not begin to run 
 
         until the claimant as a reasonable person, should recognize the 
 
         nature, seriousness and probable compensable character of the 
 
         injury.  The reasonableness of claimant's conduct is to be judged 
 
         in light of claimant's education and intelligence.  Claimant must 
 
         know enough about the condition or incident to realize that it is 
 
         both serious and work connected.  Positive medical information is 
 
         unnecessary if information from any source gives notice of the 
 
         condition's probable compensability.  Id.
 
         
 
              Failure to give notice is an affirmative defense which the 
 
         employer must prove by a preponderance of the evidence.  DeLong 
 
         v. Highway Commissionn, 229 Iowa 700, 295 N.W. 91 (1940).
 
         
 
              In the case before this deputy, defendants had actual knowl
 
         edge of claimant's back condition.  The Iowa Supreme Court has 
 
         held that the actual knowledge standard is met when the employer 
 
         has knowledge alerting it "to the possibility of a claim."  
 
         Dillinger, supra at 180, quoting from Robinson, supra at 811, 
 
         (emphasis in Dillinger).  Here, defendants were alerted to the 
 
         possibility of a workers' compensation claim on the last day on 
 
         which claimant worked.  Before claimant left the store, she spoke 
 
         briefly with the store manager, Jim Martin.  Claimant discussed 
 
         the pain she was feeling with Mr. Martin and with claimant's 
 
         direct line supervisor, Glenn Grotluschen.  Both individuals were 
 
         aware of claimant's condition.  Mr. Martin even suspected a 
 
         potential workers' compensation claim.  He asked Mr. Grotluschen, 
 
         "Did anything happen from our standpoint?"  It is the determina
 
         tion of the undersigned that defendants had some knowledge that 
 
         claimant's condition was possibly work related.  Defendants have 
 
         not met their burden of proof.
 
         
 
              The next issue to address is whether claimant has sustained 
 
         an injury which arose out of and in the course of her employment, 
 
         and whether claimant's condition is causally related to the 
 
         alleged work injury.
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the alleged injury actually occurred and that 
 
         it arose out of and in the course of employment.  The words 
 
         "arising out of" refer to the cause or source of the injury.  The 
 
         words "in the course of" refer to the time, place and circum
 
         stances of the injury.  Sheerin v. Holin Co., 380 N.W.2d 415, 417 
 
         (Iowa 1986); McClure v. Union, et al., Counties, 188 N.W.2d 283, 
 
         287 (Iowa 1971).
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury is a proximate cause of the disabil
 
         ity on which the claim is based.  A cause is proximate if it is a 
 
         substantial factor in bringing about the result; it need not be 
 
         the only cause.  A preponderance of the evidence exists when the 
 
         causal connection is probable rather than merely possible.  
 
         Blacksmith v. All-American, Inc., 290 N.W.2d 348, 354 (Iowa 
 
         1980); Holmes v. Bruce Motor Freight, Inc., 215 N.W.2d 296, 297 
 

 
         
 
         Page   6
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         (Iowa 1974).
 
         
 
              The question of causal connection is essentially within the 
 
         domain of expert testimony.  The expert medical evidence must be 
 
         considered with all other evidence introduced bearing on the 
 
         causal connection between the injury and the disability.  The 
 
         weight to be given to any expert opinion is determined by the 
 
         finder of fact and may be affected by the accuracy of the facts 
 
         relied upon by the expert as well as other surrounding circum
 
         stances.  The expert opinion may be accepted or rejected, in 
 
         whole or in part.  Sondag v. Ferris Hardware, 220 N.W.2d 903 
 
         (Iowa 1974); Anderson v. Oscar Mayer & Co., 217 N.W.2d 531 (Iowa 
 
         1974); Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 
 
         (1965).
 
         
 
              A personal injury contemplated by the workers' compensation 
 
         law means an injury, the impairment of health or a disease 
 
         resulting from an injury which comes about, not through the natu
 
         ral building up and tearing down of the human body, but because 
 
         of trauma.  The injury must be something which acts extraneously 
 
         to the natural processes of nature and thereby impairs the 
 
         health, interrupts or otherwise destroys or damages a part or all 
 
         of the body.  Although many injuries have a traumatic onset, 
 
         there is no requirement for a special incident or an unusual 
 
         occurrence.  Injuries which result from cumulative trauma are 
 
         compensable.  McKeever Custom Cabinets v. Smith, 379 N.W.2d  spondylolisthesis was a preexisting problem, but the 
 
              other factors of the degenerative changes are a cumula
 
              tive type of a development in relationship to a spine 
 
              as it degenerates.
 
         
 
                    Based on reviewing her job descriptions and what 
 
              Janice Haberkorn's other comments are, I feel that 
 
              because of the time, the amount of time she spends on 
 
              her feet, meaning standing position, that the work that 
 
              she does has accelerated this degenerative process to 
 
              make her symptoms of spinal stenosis more symptomatic.
 
         
 
                    This is based on the fact that -- the knowledge 
 
              that I'm aware of that there were no problems with leg 
 
              pain prior, until about January of 1989.
 
         
 
                    Prior to that she had freely admitted to me, 
 
              besides what you mentioned, that she had seen the 
 
              chiropractor and used chiropractic treatment to treat 
 
              just her back pain.
 
         
 
                    So, therefore, I feel that it may have acceler
 
              ated it, but at the bare minimum it made it symp
 
              tomatic, that necessitated the subsequent surgery that 
 
              was intended to try and relieve her of her leg pain.
 
         
 
         (Jt. Ex. J, p. 18, line 9 thru p. 19, line 17)
 
         
 
              Also, Dr. Boulden opined that claimant's second surgery was 
 
         causally related to claimant's first surgery, which was work 
 
         related.  Dr. Boulden testified:
 
         
 
                A.  Well, basically the need for the second surgery 
 
              was based on the need of the first surgery.  So if you 
 
              want to assume the first reasons for doing the surgery, 
 
              the second surgery was because she was symptomatic from 
 
              the fact that the spinal stenosis recurred because she 
 
              was not stable because the previous fusion did not 
 
              take, and that goes back to the original surgery 
 
              itself.
 
         
 
                    So the second surgery was to repair her remaining 
 
              problems from the first surgery, not that there was new 
 
              traumatic events or anything to that degree.  To 
 
              directly relate it back to her work shift, no, I cannot 
 
              do that because I related her work history to the first 
 
              surgery.  The second surgery was related to the first 
 
              surgery.
 
         
 
         (Jt. Ex. J, p. 32, ll. 10-25)
 
         
 
              Dr. Boulden's testimony is accorded a great deal of weight.  
 
         He is board certified in orthopedics.  He was the treating physi
 
         cian who performed both of claimant's back surgeries.  He had 
 

 
         
 
         Page   8
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         multiple opportunities to observe claimant's condition and to 
 
         discuss claimant's condition with her.  Claimant has proven by a 
 
         preponderance of the evidence that she has sustained a work 
 
         related injury which causally relates to claimant's condition.
 
         
 
              The next issue for determination is the nature and extent of 
 
         claimant's disability, if any.  It is true that claimant suffered 
 
         a preexisting condition which affected her back.
 
         
 
              While a claimant is not entitled to compensation for the 
 
         results of a preexisting injury or disease, its mere existence at 
 
         the time of a subsequent injury is not a defense.  Rose v. John 
 
         Deere Ottumwa Works, 247 Iowa 900, 76 N.W.2d 756 (1956).  If the 
 
         claimant had a preexisting condition or disability that is mate
 
         rially aggravated, accelerated, worsened or lighted up so that it 
 
         results in disability, claimant is entitled to recover.  Nicks v. 
 
         Davenport Produce Co., 254 Iowa 130, 115 N.W.2d 812 (1962); 
 
         Yeager v. Firestone Tire & Rubber Co., 253 Iowa 369, 112 N.W.2d 
 
         299 (1961).
 
         
 
              Apportionment of disability between a preexisting condition 
 
         and an injury is proper only when some ascertainable portion of 
 
         the ultimate industrial disability existed independently before 
 
         an employment-related aggravation of disability occurred.  Bearce 
 
         v. FMC Corp., 465 N.W.2d 531 (Iowa 1991); Varied Enterprises, 
 
         Inc. v. Sumner, 353 N.W.2d 407 (Iowa 1984).
 
         
 
              The burden of showing that disability is attributable to a 
 
         preexisting condition is placed upon the defendant.  Where evi
 
         dence to establish a proper apportionment is absent, the defen
 
         dant is responsible for the entire disability that exists.  
 
         Bearce, 465 N.W.2d 531; Varied Enterprises, Inc., 353 N.W.2d 
 
         407.
 
         
 
              In the instant case, claimant was rated by Dr. Boulden as 
 
         having a 30 percent functional impairment.  One half of that 
 
         impairment rating was assigned to the preexisting condition and 
 
         one half of the impairment rating was assigned to the work activ
 
         ity.  Prior to claimant's work injury, she was able to work with
 
         out restrictions.  Subsequent to the work injury, claimant was 
 
         heavily restricted in her work activities.  Her restrictions were 
 
         so severe that she was capable of only the most sedentary type of 
 
         positions.  It is apparent to the undersigned that claimant's 
 
         disability is attributable to her work injury.
 
         
 
              Likewise, it is clear that claimant has sustained a perma
 
         nent total disability.  Total disability does not mean a state of 
 
         absolute helplessness.  Permanent total disability occurs where 
 
         the injury wholly disables the employee from performing work that 
 
         the employee's experience, training, education, intelligence and 
 
         physical capacities would otherwise permit the employee to per
 
         form.  See McSpadden v. Big Ben Coal Co., 288 N.W.2d 181, 192 
 
         (Iowa 1980); Diederich v. Tri-City R. Co., 219 Iowa 587, 258 N.W. 
 
         899 (1935).
 
         
 
              A finding that claimant could perform some work despite 
 
         claimant's physical and educational limitations does not fore
 

 
         
 
         Page   9
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         close a finding of permanent total disability, however.  See 
 
         Eastman v. Westway Trading Corp., II Iowa Industrial 
 
         Commissioner Reports 134 (Appeal Decision 1982); Chamberlain v. 
 
         Ralston Purina, Appeal Decision October 29, 1987.
 
         
 
              Claimant is 54 years old.  She has a high school education 
 
         but she has few transferable skills.  Practically speaking, her 
 
         only work experience is with cake decorating.  Her past experi
 
         ences have not prepared her for the labor market.  Claimant was 
 
         terminated from her position with defendant-employer.  She was 
 
         not rehired for any type of job with her former employer.  
 
         Claimant attempted a return to work.  She applied for positions 
 
         in the fall of 1989.  She obtained no job offers.  After 
 
         claimant's second surgery, she sought the benefit of vocational 
 
         rehabilitation.  She participated willingly in the programs 
 
         offered to her.  Even the personnel at vocational rehabilitation 
 
         could find no jobs for which claimant could apply.  Their only 
 
         recommendation was volunteer work.
 
         
 
              Carma Mitchell, a vocational consultant, testified claimant 
 
         had no transferable skills.  Ms. Mitchell testified claimant was 
 
         precluded from a full range of job opportunities and that 
 
         claimant was limited to sedentary unskilled work where she could 
 
         sit six to eight hours per day and lift only up to 10 pounds.  
 
         Ms. Mitchell testified claimant was left with from one percent to 
 
         five percent of all jobs in the Des Moines area.
 
         
 
              Leona Martin, a rehabilitation consultant, was hired by 
 
         defendants.  Ms. Martin testified in claimant's hearing.  Ms. 
 
         Martin testified claimant was capable of retraining, especially 
 
         in the clerical area.  However, the department of vocational 
 
         rehabilitation personnel attempted an office machines program 
 
         with claimant, but she failed the program miserably.  Not much 
 
         weight is given to the testimony of Ms. Martin.  She did not even 
 
         attempt to locate a position for claimant.  If claimant was so 
 
         employable, Ms. Martin should have at least attempted placement 
 
         for claimant.
 
         
 
              After reviewing all of the evidence, it is the determination 
 
         of the undersigned that claimant is permanently and totally 
 
         disabled as detailed in Diederich, supra.  She is entitled to 
 
         benefits from January 9, 1989.
 
         
 
              Claimant is also entitled to medical benefits pursuant to 
 
         section 85.27.  The section provides that the employer shall fur
 
         nish reasonable surgical, medical, dental, osteopathic, chiro
 
         practic, podiatric, physical rehabilitation, nursing, ambulance 
 
         and hospital services and supplies for all conditions compensable 
 
         under the workers' compensation law.  The employer shall also 
 
         allow reasonable and necessary transportation expenses incurred 
 
         for those services.  The employer has the right to choose the 
 
         provider of care, except where the employer has denied liability 
 
         for the injury.  Section 85.27.; Holbert v. Townsend Engineering 
 
         Co., Thirty-second Biennial Report of the Industrial Commissioner 
 

 
         
 
         Page  10
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         78 (Review decision 1975).  Claimant has the burden of proving 
 
         that the fees charged for such services are reasonable.  Anderson 
 
         v. High Rise Constr. Specialists, Inc., file number 850096 
 
         (Appeal Decision 1990).
 
         
 
              Claimant is not entitled to reimbursement for medical bills 
 
         unless claimant shows they were paid from claimant's funds.  See 
 
         Caylor v. Employers Mut. Casualty Co., 337 N.W.2d 890 (Iowa App. 
 
         1983).
 
         
 
              The benefits for which defendants are liable are:
 
         
 
              Iowa Lutheran Hospital                  $12,488.28
 
              Dr. Boulden                               8,866.00
 
              Mercy Hospital (CT Scan)                    749.00
 
              Des Moines Anesthesiologists              2,118.00
 
              CIP Medical Laboratories                    135.00
 
              Surgery Center of Des Moines              1,712.50
 
              Low Back Institute                          880.00
 
                                            Total     $26,948.78
 
         
 
                                      order
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              Defendants are to pay unto claimant weekly benefits for the 
 
         duration of claimant's period of permanent total disability with 
 
         said benefits commencing from January 9, 1989, and running con
 
         tinuously at the stipulated rate of two hundred seventeen and 
 
         15/l00 dollars ($217.15) per week.
 
         
 
              Accrued benefits shall be paid in a lump sum together with 
 
         statutory interest at the rate of ten percent (10%) per year pur
 
         suant to section 85.30, Iowa Code as amended.
 
         
 
              Defendants are also liable for medical expenditures in the 
 
         sum of twenty-six thousand nine hundred forty-eight and 78/l00 
 
         dollars ($26,948.78) as provided by section 85.30, Iowa Code as 
 
         amended and defendants shall reimburse the health and accident 
 
         insurance carrier for all benefits previously paid.
 
         
 
              Defendants shall take credit for benefits previously paid 
 
         claimant.
 
         
 
              Costs are taxed to defendants pursuant to rule 343 IAC 4.33.
 
         
 
              Defendants shall file a claim activity report as requested 
 
         by this division pursuant to rule 343 IAC 3.1.
 
         
 
         
 
         
 
              Signed and filed this ____ day of November, 1991.
 
         
 
         
 
         
 
         
 
         
 

 
         
 
         Page  11
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
                                       ______________________________               
 
         MICHELLE A. McGOVERN
 
                                       DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Phillip VonDerhaar
 
         Attorney at Law
 
         840 Fifth Ave
 
         Des Moines  IA  50309
 
         
 
         Mr. Cecil L. Goettsch
 
         Attorney at Law
 
         801 Grand Ave
 
         Suite 3700
 
         Des Moines  IA  50309
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                        1804; 1806
 
                        Filed November 18, 1991
 
                        MICHELLE A. McGOVERN
 
         
 
                     before the iowa industrial commissioner
 
         ____________________________________________________________
 
                                         :
 
         JANICE M. HABERKORN,            :
 
                                         :
 
              Claimant,                  :
 
                                         :
 
         vs.                             :       File Nos. 933509,
 
                                         :        933510 & 946099
 
         FOODS, INC., d/b/a DAHL'S FOODS,:
 
                                         :     A R B I T R A T I O N
 
              Employer,                  :
 
                                         :        D E C I S I O N
 
         and                             :
 
                                         :
 
         EMPLOYERS MUTUAL COMPANIES,     :
 
                                         :
 
              Insurance Carrier,         :
 
              Defendants.                :
 
         ___________________________________________________________
 
         
 
         
 
         
 
         1804; 1806
 
         
 
              Claimant was held to be permanently and totally disabled.
 
         
 
              In the instant case, claimant was rated by Dr. Boulden as 
 
         having a 30 percent functional impairment.  One half of that 
 
         impairment rating was assigned to the preexisting condition and 
 
         one half of the impairment rating was assigned to the work activ
 
         ity.  Prior to claimant's work injury, she was able to work with
 
         out restrictions.  Subsequent to the work injury, claimant was 
 
         heavily restricted in her work activities.  Her restrictions were 
 
         so severe that she was capable of only the most sedentary type of 
 
         positions.  It is apparent to the undersigned that claimant's 
 
         disability is attributable to her work injury.
 
         
 
              Claimant is 54 years old.  She has a high school education 
 
         but she has few transferable skills.  Practically speaking, her 
 
         only work experience is with cake decorating.  Her past experi
 
         ences have not prepared her for the labor market.  Claimant was 
 
         terminated from her position with defendant-employer.  She was 
 
         not rehired for any type of job with her former employer.  
 
         Claimant attempted a return to work.  She applied for positions 
 
         in the fall of 1989.  She obtained no job offers.  After 
 
         claimant's second surgery, she sought the benefit of vocational 
 
         rehabilitation.  She participated willingly in the programs 
 
         offered to her.  Even the personnel at vocational rehabilitation 
 
         could find no jobs for which claimant could apply.  Their only 
 
         recommendation was volunteer work.
 
         
 
              Carma Mitchell, a vocational consultant, testified claimant 
 
         had no transferable skills.  Ms. Mitchell testified claimant was 
 
         precluded from a full range of job opportunities and that 
 
         claimant was limited to sedentary unskilled work where she could 
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         sit six to eight hours per day and lift only up to 10 pounds.  
 
         Ms. Mitchell testified claimant was left with from one percent to 
 
         five percent of all jobs in the Des Moines area.
 
         
 
              Leona Martin, a rehabilitation consultant, was hired by 
 
         defendants.  Ms. Martin testified in claimant's hearing.  Ms. 
 
         Martin testified claimant was capable of retraining, especially 
 
         in the clerical area.  However, the department of vocational 
 
         rehabilitation personnel attempted an office machines program 
 
         with claimant, but she failed the program miserably.  Not much 
 
         weight is given to the testimony of Ms. Martin.  She did not even 
 
         attempt to locate a position for claimant.  If claimant was so 
 
         employable, Ms. Martin should have at least attempted placement 
 
         for claimant.
 
         
 
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         _________________________________________________________________
 
         BARB HELMAN,   
 
                   
 
              Claimant, 
 
                   
 
         vs.       
 
                                               File No. 933540
 
         WILSON FOODS CORPORATION,     
 
                                                A P P E A L
 
              Employer, 
 
              Self-Insured,  
 
                                             D E C I S I O N
 
         and       
 
                   
 
         SECOND INJURY FUND OF IOWA,   
 
                   
 
              Defendants.    
 
         _________________________________________________________________
 
         The record, including the transcript of the hearing before the 
 
         deputy and all exhibits admitted into the record, has been 
 
         reviewed de novo on appeal.  The decision of the deputy filed 
 
         March 19, 1991 is affirmed and is adopted as the final agency 
 
         action in this case with the following additional analysis:
 
         The Second Injury Fund correctly urges that the conduct of the 
 
         employer in terminating claimant's employment after her injuries 
 
         should not affect the liability of the Fund.  However, claimant's 
 
         industrial disability as a result of the combined effects of her 
 
         injuries is 30 percent without regard to the employer's 
 
         termination of employment. 
 
         Second Injury Fund shall pay the costs of the appeal, including 
 
         the preparation of the hearing transcript.
 
         Signed and filed this ____ day of July, 1992.
 
         
 
         
 
         
 
         
 
                                    ________________________________
 
                                          BYRON K. ORTON
 
                                     INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Willis J. Hamilton
 
         Attorney at Law
 
         P.O. Box 188
 
         Storm Lake, Iowa 50588
 
         
 
         Mr. David L. Sayre
 
         Attorney at Law
 
         P.O. Box 535
 

 
         
 
         Page   2
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         Cherokee, Iowa 51012
 
         
 
         Ms. Shirley Ann Steffe
 
         Assistant Attorney General
 
         Tort Claims Division
 
         Hoover State Office Bldg.
 
         Des Moines, Iowa 50319
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                   9999
 
                                                   Filed July 30, 1992
 
                                                   Byron K. Orton
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
            BARB HELMAN,   
 
                      
 
                 Claimant, 
 
                      
 
            vs.       
 
                                                  File No. 933540
 
            WILSON FOODS CORPORATION,     
 
                                                   A P P E A L
 
                 Employer, 
 
                 Self-Insured,  
 
                                                D E C I S I O N
 
            and       
 
                      
 
            SECOND INJURY FUND OF IOWA,   
 
                      
 
                 Defendants.    
 
            ____________________________________________________________
 
            
 
            9999
 
            Summary affirmance of deputy's decision filed March 19, 
 
            1991, with short additional analysis.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            MERLE CLIFFORD ELI,           :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :         File No. 933545
 
            CHESTERMAN CO.,               :
 
                                          :      A R B I T R A T I O N
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            CNA INSURANCE,                :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding in arbitration brought by Merle 
 
            Clifford Eli, claimant, against Chesterman Company, 
 
            employer, and CNA Insurance Company, insurance carrier, to 
 
            recover benefits under the Iowa Workers' Compensation Act as 
 
            a result of an injury allegedly sustained on March 14, 1988.  
 
            This matter came on for hearing before the undersigned 
 
            deputy industrial commissioner in Sioux City, Iowa on 
 
            January 29, 1991.  The record was considered fully submitted 
 
            at the close of the hearing.
 
            
 
                 The record in this case consists of testimony from 
 
            Merle Clifford Eli, claimant, and Cy Chesterman.  Claimant 
 
            offered exhibits 1-72.  However, exhibits 8-13; 28-30; 
 
            32-52; 58; 64-65; 67-69; and 72 were excluded upon objection 
 
            by defendants.  Defendants offered exhibits A-H.  Claimant 
 
            objected to admission of exhibit C but such objection was 
 
            overruled.
 
            
 
                                      issues
 
            
 
                 Pursuant to the prehearing report and order entered 
 
            into by the parties at the hearing, the parties stipulated 
 
            that claimant sustained an injury on March 14, 1988, which 
 
            was exacerbated on June 22, 1988 and October 18, 1989, which 
 
            arose out of and in the course of his employment.
 
            
 
                 The issues in dispute include:
 
            
 
                 1.  Whether a causal relationship exists between 
 
            claimant's injury and the claimed disability;
 
            
 
                 2.  The nature and extent of any benefit entitlement;
 
            
 
                 3.  Whether claimant is entitled to payment of certain 
 
            medical costs pursuant to section 85.27; and,
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
                 4.  Claimant's rate of weekly compensation.
 
            
 
                                 findings of fact
 
            
 
                 The undersigned has carefully considered all the 
 
            testimony given at the hearing, the arguments made and the 
 
            evidence contained in the exhibits and makes the following 
 
            findings:
 
            
 
                 Claimant was born on May 30, 1944 and completed the 
 
            twelfth grade of school.  Claimant's work activity prior to 
 
            November 5, 1979, when he went to work for Chesterman, was 
 
            as a cutter, boner, truck loader, meat cutter and manager at 
 
            Cimple Packing and Sunshine Food Markets.  During his tenure 
 
            at Chesterman from November 5, 1979 through December 31, 
 
            1989, he worked as a relief driver and route salesman.
 
            
 
                 At the hearing, claimant argued a cumulative injury 
 
            theory stating he was initially injured on March 14, 1988, 
 
            and had two subsequent injuries which aggravated his initial 
 
            injury.  He stated his condition became progressively worse 
 
            and he was forced to quit his job on December 29, 1989.  
 
            Claimant testified that the first injury occurred on March 
 
            14, 1988, while he was delivering 20-25 cases of coke 
 
            products to Vermillion Middle School in South Dakota.  He 
 
            stated that while he was pulling a cart of cases up steps to 
 
            the top of the dock, he felt a pop and pain in his left hip 
 
            and left leg.  He testified that his left leg went numb and 
 
            he struggled to pull the cart up the last few steps.  After 
 
            delivering the second load of pop, with the help of the 
 
            school janitor, he called Chesterman and asked for someone 
 
            to come and help him complete his delivery.  The company 
 
            sent Chris Kollbaum to Vermillion and he assisted in the 
 
            completion of the delivery route.  Claimant then drove 
 
            himself back to Chesterman and reported the incident to 
 
            Debbie Hansen.  She called James A. Bjork, D.C., for an 
 
            appointment and then drove claimant to his office.
 
            
 
                 Medical records indicate that the claimant was seen by 
 
            Dr. Bjork on March 14, 15, 16, 18, 1988.  Treatment was 
 
            terminated at claimant's request.  A diagnosis of "Acute 
 
            Sacroiliac strain/sprain" was made (Exhibit B).  Claimant 
 
            was off work for three days and resumed his usual duties as 
 
            route salesman on the fourth day.
 
            
 
                 Claimant testified that the second incident occurred on 
 
            June 26, 1988.  While delivering tanks to a bar in South 
 
            Dakota, he twisted his lower back and left hip.  He reported 
 
            the incident to Debbie Hansen and she scheduled an 
 
            appointment with Roger L. Spencer, D.C., a chiropractor.  
 
            Medical evidence in the record indicates that claimant saw 
 
            Dr. Spencer on July 30, 1988 and on August 3, 1988 for 
 
            spinal adjustment, ultrasound and electrical stimulation.  
 
            Dr. Spencer notes the date of injury/onset as July 26, 1988.  
 
            He diagnosed "Sciatica neuritis/neuralgia" and 
 
            "Lumbro-sacral and left sciatic radiculoneuralgia" (Ex. 22).  
 
            Claimant was off work for two days as a result of this 
 
            injury.
 
            
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
                 On July 7, 1989, claimant was examined by P. A. Fee, 
 
            M.D., for back and neck pain which he related to a work 
 
            injury one month prior.  X-rays were unremarkable (Ex. 27).
 
            
 
                 Claimant testified that the third incident occurred on 
 
            October 18, 1989.  At this time, he was picking up tanks of 
 
            premix from Elk Point High School football concession stand 
 
            and delivering them to the gymnasium building for use at 
 
            basketball games.  While lifting a tank, he felt a pop and 
 
            snap in the upper part of his back and pain in his shoulder.  
 
            After completing his assignment, he drove back to 
 
            Chesterman's and reported the incident to Debbie Hansen.
 
            
 
                 Claimant was then referred by employer to Leonel H. 
 
            Herrera, M.D., at Back Care, Inc., for evaluation on October 
 
            19, 1989.  He presented with complaints of upper thoracic 
 
            and mid-thoracic pain and bilateral shoulder pain.  He 
 
            denied any previous injury to his back.  On examination, Dr. 
 
            Herrera observed as follows:
 
            
 
                 Patient appears somber and in no significant 
 
                 distress.  His stance and gait are normal and his 
 
                 posture mildly shows some forward head posture and 
 
                 his shoulders are slightly rounded.  Cervical 
 
                 range of motion shows him to have full forward 
 
                 flexion, full rotation to 90o and full lateral 
 
                 flexion bilaterally....There is no spine 
 
                 tenderness on percussion.  With compression there 
 
                 is no increase or decrease in pain.  With 
 
                 retraction there is no difference....Sensation to 
 
                 light touch and pin were normal.  Motor 
 
                 examination to grip, pinch, finger abduction, 
 
                 wrist flexion/extension, elbow flexion and 
 
                 extension, shoulder abduction and shoulder 
 
                 external rotation were all normal.  Patient has 
 
                 some difficulty lying prone and trying to raise 
 
                 his arms up.  There was some tenderness to deep 
 
                 palpation of the upper thoracic paraspinal 
 
                 musculature.
 
            
 
            (Ex. H)
 
            
 
                 Dr. Herrera's impression was:  "Cervical and thoracic 
 
            muscle strain scapular stabilizing musculature."  He 
 
            recommended an active isokinetic monitored rehabilitation 
 
            program to normalize his thoracic and cervical spine 
 
            strength.
 
            
 
                 Dr. Herrera reevaluated the claimant after 12 sessions 
 
            of rehabilitation.  Claimant presented with soreness in the 
 
            lumbar and mid-back area.  Dr. Herrera indicated that he was 
 
            responding positively to rehabilitation.  A follow-up 
 
            examination was performed on December 19, 1989.  Claimant 
 
            told Dr. Herrera that he is to the point where on most 
 
            occasions he does not have constant pain.  At this time, Dr. 
 
            Herrera discharged him from the back care clinic because he 
 
            felt that he had reached maximum medical benefit from 
 
            rehabilitation.  He recommended a continued home exercise 
 
            program.
 
            
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
                 Claimant was off work one and one-half days due to the 
 
            October 18, 1989 incident.  Claimant testified that in 
 
            October or November, he decided to quit his job at 
 
            Chesterman.  He notified Cy Chesterman, president of the 
 
            company, that he was quitting but indicated he would like to 
 
            work through the end of the year.  He was allowed to work 
 
            through December 31, 1989.  Mr. Chesterman testified that 
 
            claimant did not indicate that he was quitting because of 
 
            his health nor did he produce any medical opinion advising 
 
            him to quit his job at this time.
 
            
 
                 On January 9, 1990, claimant returned to see Dr. 
 
            Herrera.  He told him that he had quit his job with 
 
            Chesterman and was not doing much of anything at home.  He 
 
            stated that his mid-upper back pain is only present on 
 
            exertion.  Dr. Herrera re-emphasized home exercise program 
 
            and gave claimant a prescription for Motrin.  On February 
 
            20, 1990, claimant reported to Dr. Herrera that his 
 
            condition had not improved with Motrin.  At this time, he 
 
            complained of left anterior thigh pain which started after 
 
            going to a chiropractor for manipulations.  He stated that 
 
            he had been active and whenever he is active, he has pain.  
 
            He painted a room in his house including the ceiling and 
 
            noted significant discomfort in his back.  Dr. Herrera 
 
            scheduled an EMG to the right lower extremity and back.  
 
            This was performed on March 5, 1990 and was within normal 
 
            limits.  There was no evidence of a peripheral neuropathy, 
 
            plexopathy or radiculopathy (Ex. H, pages 5-7).
 
            
 
                 Claimant testified that despite intermittent 
 
            chiropractic treatments, he is still in pain.  He conferred 
 
            with Daniel Rhodes, M.D., his family physician, and he was 
 
            referred to Mayo Clinic for further evaluation.  On April 
 
            10, 1990, claimant presented to Carl W. Chan, M.D., at Mayo 
 
            Clinic.  His complaints were referable to pain around the 
 
            shoulder blade, low back, left buttock, left groin, and 
 
            numbness in his hands and feet.  Claimant related his 
 
            symptoms to a March 14, 1988 work injury.  A routine 
 
            clinical examination was performed and was essentially 
 
            within normal limits.  X-rays of the lumbar spine, pelvis 
 
            and hips were negative.  X-rays of the cervical spine showed 
 
            a narrowed C-6 interspace.  Upper chest x-ray showed an 
 
            ill-defined nodule projected between the left first and 
 
            second anterior ribs.  Tomograms of the left chest taken on 
 
            April 13, 1990, showed a 1 cm nodule which was uncalcified.  
 
            A CT scan of the chest taken on April 17, 1990, showed a 
 
            solitary pulmonary nodule in the left upper lobe that is a 
 
            calcified granuloma.  With test results negative for any 
 
            spinal cord lesion or neuropathy and negative EMG's and 
 
            laboratory tests, the etiology of claimant's persistent neck 
 
            and back pain was determined to be musculoskeletal in 
 
            nature.  In a report dated April 17, 1990, Dr. Chan did not 
 
            give the claimant an impairment rating or impose any 
 
            restrictions on his ability to physically function.
 
            
 
                 Subsequently, in a letter to Dr. Rhodes dated May 1, 
 
            1990, Dr. Chan stated that:  "If one were asked to assign a 
 
            permanent partial impairment rating for his chronic cervical 
 
            and lumbar strain, then he would have a permanent partial 
 
            impairment rating of 10 percent of the whole body."  (Ex. 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            18)
 
            
 
                 On May 9, 1990, claimant was examined by Gary L. 
 
            Tapper, D.C., chiropractor, for evaluation of low back pain.  
 
            From May 9, 1990 through September 25, 1990, claimant 
 
            received intermittent chiropractic spinal adjustment and 
 
            intersegmantal traction.  In a medical report dated 
 
            September 25, 1990, Dr. Tapper stated that:  "I feel that 
 
            this patient has a recurrent low back disability which is a 
 
            direct result of his injury of July 20, 1988."  In addition, 
 
            he stated that:  "I feel this patient has sustained a 
 
            permanent partial spinal impairment rated as 7% of the body 
 
            as a whole."  (Ex. 70).
 
            
 
                 The record also indicates that claimant was initially 
 
            awarded job insurance benefits on July 18, 1990, after a Job 
 
            Service representative found that he left his employment 
 
            upon the advice of a physician due to an injury suffered on 
 
            the job on December 29, 1989.  This decision was appealed by 
 
            Chesterman Bottling Company and a telephone hearing was held 
 
            before an administrative law judge on August 13, 1990.  At 
 
            this hearing, claimant admitted that he did not quit his 
 
            employment upon the advice of a licensed and practicing 
 
            physician.  The administrative law judge found that the 
 
            claimant voluntarily left his employment without good cause 
 
            attributable to the employer and that he continued to work 
 
            until his resignation date, December 29, 1989.  Claimant was 
 
            found ineligible to receive job insurance benefits and also 
 
            found to have been overpaid such benefits in the amount of 
 
            $772.00.  At the hearing before the undersigned, claimant 
 
            admitted that he did not totally tell the truth to the Job 
 
            Service representative because he was unemployed and needed 
 
            unemployment compensation benefits.
 
            
 
                                conclusions of law
 
            
 
                 The first issue to determine in this case is whether 
 
            claimant's alleged injury is a cause of temporary and 
 
            permanent disability and, if so, whether claimant is 
 
            entitled to weekly compensation for temporary total 
 
            disability or healing period benefits and permanent partial 
 
            disability benefits.
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury of March 14, 
 
            1988 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 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            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).
 
            
 
                 The "cumulative injury rule" may apply when disability 
 
            develops over a period of time.  The compensable injury is 
 
            held to occur at the later time.  For time limitation 
 
            purposes, the injury in such cases occurs when, because of 
 
            pain or physical disability, the claimant can no longer 
 
            work.  McKeever Custom Cabinets v. Smith, 379 N.W.2d 368 
 
            (Iowa 1985).
 
            
 
                 The record in this case is confusing and contradictory.  
 
            What is clear is that claimant lost only three days of work 
 
            as a result of his March 14, 1988 injury and a total of 
 
            three days as a result of his two other injuries.  What is 
 
            also clear is that no physician who treated and/or examined 
 
            claimant after each alleged injury imposed restrictions on 
 
            his ability to physically function or advised him to quit 
 
            his job and find less strenuous work.
 
            
 
                 There is conflicting evidence as to claimant's second 
 
            injury date.  He testified that he twisted his lower back 
 
            and hip on June 26, 1988.  In his original notice and 
 
            petition he cited June 22, 1989 as his second injury date.  
 
            The parties stipulated that a second injury occurred on June 
 
            22, 1988.  In a telephonic Job Service hearing held on 
 
            August 13, 1990, claimant testified that he was never 
 
            totally healed from the first injury and aggravated that 
 
            injury on June 22, 1989, when lifting extra cases (Ex. 
 
            F,stated that he injured his upper back and neck one month 
 
            prior.  X-rays taken during this visit were unremarkable 
 
            (Ex. 27).   pp. 10-11).  Therefore, it is unclear whether 
 
            the second injury occurred in 1988 or 1989 and claimant 
 
            could not seem to remember the exact date.
 
            
 
                 Claimant alleges that he sustained permanent disability 
 
            as a result of his injuries.  To support his claim, he 
 
            relies on Dr. Chan's assessment that he has permanent 
 
            partial disability of 10 percent to the body as a whole.  
 
            The reliability of Dr. Chan's rating is questionable.  When 
 
            claimant presented to Dr. Chan at the Mayo Clinic on April 
 
            10, 1990, he had numerous complaints and alleged 
 
            restrictions.  Some of his symptoms surfaced for the first 
 
            time.  However, clinical and laboratory findings were 
 
            essentially within normal limits.  In a final report dated 
 
            April 17, 1990, Dr. Chan diagnosed musculoskeletal soft 
 
            tissue and ligamentous strain based on claimant's report of 
 
            his symptoms.  He imposed no work restrictions and 
 
            recommended only that claimant stop smoking (Ex. 17).  On 
 
            May 1, 1990, Dr. Chan sent a copy of his final report to Dr. 
 
            Rhodes and at this time added an additional paragraph to his 
 
            conclusions and recommendations which stated, "If one were 
 
            asked to assign a permanent partial impairment rating for 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            his chronic cervical and lumbar strain, then he would have a 
 
            permanent partial impairment rating of 10 percent of the 
 
            whole body." (Ex. 18)  This addendum to his final report 
 
            appears suspect and contrived, at best.  It is incredulous 
 
            to the undersigned that in the absence of objective evidence 
 
            and physical restrictions, a 10 percent impairment rating is 
 
            given.  Obviously, Dr. Chan relied solely on claimant's 
 
            description of his symptomatology and described limitations 
 
            to arrive at his conclusion.  In any event, due to the 
 
            numerous inconsistencies in the medical evidence and 
 
            claimant's testimony, Dr. Chan's impairment rating is 
 
            without documentary foundation and therefore not entitled to 
 
            significant weight and consideration.  Claimant's complaints 
 
            during his examination by Dr. Chan appear exaggerated and 
 
            out of proportion to the objective findings.
 
            
 
                 Accordingly, claimant has not demonstrated by a 
 
            preponderance of the evidence that his alleged injuries are 
 
            the cause of permanent disability.  Therefore, he is not 
 
            entitled to healing period benefits.  Furthermore, claimant 
 
            cannot receive temporary total disability compensation under 
 
            Chapter 85.32, because such compensation begins on the 
 
            fourth day of disability after the injury.   Claimant did 
 
            not miss more than three days of work after any of his 
 
            alleged injuries.
 
            
 
                 Claimant argues that he had three traumatic injuries 
 
            which resulted in minimal lost time from work, but which 
 
            eventually forced him to quit his job in December 1989.  
 
            However, there are numerous inconsistencies in the medical 
 
            record and claimant's testimony as to the circumstances 
 
            leading up to his resignation from Chesterman Company.  The 
 
            undersigned concludes that claimant voluntarily quit his job 
 
            for reasons unrelated to any medical problems.  No doctor 
 
            ever recommended that he quit and, in fact, claimant 
 
            admitted that he lied to the Job Service representative when 
 
            he told her that he was advised by his physician to quit 
 
            work.  In April 1990, claimant reapplied for a route 
 
            salesman position with Chesterman and testified that he is 
 
            capable of performing his past work as adequately as he did 
 
            prior to his injuries.  On the other hand, claimant also 
 
            testified that he cannot lift more than 25 pounds, golf, 
 
            fish, scoop snow and rake leaves.  He stated that these 
 
            restrictions have been imposed by his treating chiropractors 
 
            and Dr. Chan.  The undersigned has carefully read the 
 
            medical records and finds no physical restrictions 
 
            recommended by any physician.  Therefore, claimant's testi
 
            mony is not supported by the documentary evidence and is not 
 
            entitled to significant weight and consideration.
 
            
 
                 Claimant has not shown any injury as of March 14, 1988, 
 
            which developed as a result of cumulative trauma arising out 
 
            of and in the course of his employment as it relates to his 
 
            lower back, left hip and neck.  It appears that claimant's 
 
            cumulative injury argument is without merit.  The alleged 
 
            injury sustained by claimant was made up of distinct and 
 
            identifiable traumatic injuries and was not a gradually 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            developing disability.  Accordingly, the cumulative injury 
 
            rule does not apply in this case.  Babe v. Greyhound Lines, 
 
            Inc., 456 N.W.2d 924 (Iowa App. 1990)
 
            
 
                 The final issue in this case is whether claimant is 
 
            entitled to medical benefits under Iowa Code section 85.27.  
 
            Defendants have stipulated that claimant sustained an injury 
 
            which arose out of and in the course of his employment with 
 
            employer.  Pursuant to section 85.27, the employer is 
 
            obliged to furnish reasonable services and supplies to treat 
 
            an injured employee and has the right to choose the care.  
 
            If the employee is dissatisfied with the care offered, he 
 
            must follow the procedures set out in section 85.27 before 
 
            procuring alternate care.  Defendants agreed to pay all 
 
            outstanding bills related to services performed by Dr. Bjork 
 
            and Back Care, Inc., and Dr. Spencer.  There is no evidence 
 
            that any other treatment was authorized by defendants.  
 
            Defendants are not obligated to pay medical bills for 
 
            unauthorized treatment.
 
            
 
                           
 
            
 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            order
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 Claimant takes nothing from these proceedings.
 
            
 
                 The parties shall pay their own costs pursuant to rule 
 
            343 IAC 4.33.
 
            
 
            
 
            
 
                          Signed and filed this ____ day of March, 1991.
 
            
 
            
 
            
 
            
 
            
 
                                          ______________________________               
 
            JEAN M. INGRASSIA
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. J. Allen Orr
 
            Attorney at Law
 
            803 Frances Bldg
 
            Sioux City  IA  51101
 
            
 
            Mr. Michael P. Jacobs
 
            Attorney at Law
 
            300 Toy Nat'l Bank Bldg
 
            Sioux City  IA  51101
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                           1402.40; 1801; 2209
 
                           Filed March 6, 1991
 
                           JEAN M. INGRASSIA
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            MERLE CLIFFORD ELI,           :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :         File No. 933545
 
            CHESTERMAN CO.,               :
 
                                          :      A R B I T R A T I O N
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            CNA INSURANCE,                :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            Claimant sustained three distinct and identifiable traumatic 
 
            injuries and erroneously argued that he was forced to quit 
 
            work after the third injury due to a gradually developing 
 
            disability.
 
            Cumulative injury rule does not apply to the facts in this 
 
            case pursuant to Babe v. Greyhound Lines, Inc., 456 N.W.2d 
 
            924 (Iowa App. 1990).
 
            Since claimant lost fewer than three days of work after each 
 
            of his injuries, claimant was found not to have a 
 
            compensable injury for workers' compensation purposes.
 
            No permanency was found and claimant took nothing from these 
 
            proceedings.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            MARTIN L. SOROKA,             :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :         File No. 933553
 
            DICK HOWE PAINTING &          :
 
            DECORATING,                   :      A R B I T R A T I O N
 
                                          :
 
                 Employer,                :         D E C I S I O N
 
                                          :
 
            and                           :
 
                                          :
 
            HAWKEYE SECURITY INSURANCE,   :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This is a proceeding in arbitration brought by Martin 
 
            L. Soroka, claimant, against Dick Howe Painting & 
 
            Decorating, employer, and Hawkeye Security Insurance, 
 
            insurance carrier, to recover benefits under the Iowa 
 
            Workers' Compensation Act as a result of an injury sustained 
 
            on July 24, 1989.  This matter came on for hearing before 
 
            the undersigned deputy industrial commissioner on June 21, 
 
            1991, in Council Bluffs, Iowa.  The record was considered 
 
            fully submitted at the close of the hearing.  The record in 
 
            this case consists of joint exhibits 1-25; and testimony 
 
            from claimant, Richard Howe, Kella Howe and Matthew Solon.
 
            
 
                                      issues
 
            
 
                 Pursuant to the prehearing report and order dated June 
 
            21, 1991, the parties stipulated that:
 
            
 
                 1.  An employer-employee relationship existed between 
 
            claimant and employer at the time of the alleged injury;
 
            
 
                 2.  That claimant sustained an injury on July 24, 1989, 
 
            which arose out of and in the course of employment with 
 
            employer;
 
            
 
                 3.  That the alleged injury is a cause of temporary and 
 
            permanent disability;
 
            
 
                 4.  That claimant is entitled to 26.4 weeks of 
 
            permanent disability benefits, if defendants are liable for 
 
            the injury, for a 12 percent loss of use of his left ankle; 
 
            and,
 
            
 
                 5.  Defendants are entitled to a credit for payment of 
 
            88.97 weeks of compensation at the rate of $123.50 per week.
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
                 The issues remaining to be decided include:
 
            
 
                 1.  The extent of entitlement to weekly compensation 
 
            for temporary total disability or healing period, if 
 
            defendants are liable for the injury;
 
            
 
                 2.  The commencement date for permanent partial 
 
            disability, in the event such benefits are awarded; and,
 
            
 
                 3.  The rate of compensation.
 
            
 
                 It is noted that at the hearing, defendants raised the 
 
            issue of claimant's entitlement to medical expenses under 
 
            Iowa Code section 85.27 specifically, claimant's swimming 
 
            pool membership at the Best Western Hotel in the amount of 
 
            $540.00 and Dr. Rochelle's bill in the amount of $339.00.  
 
            However, these issues were not listed on the hearing 
 
            assignment order filed on October 3, 1990, and the 
 
            undersigned is without jurisdiction to consider them.  
 
            Joseph Presswood v. Iowa Beef Processors, (Appeal Decision 
 
            filed November 14, 1986).  This decision held that an issue 
 
            not noted on the hearing assignment order is waived.
 
            
 
                                 findings of fact
 
            
 
                 The undersigned has carefully considered all the 
 
            testimony given at the hearing, the arguments made, and the 
 
            evidence contained in the exhibits herein, and makes the 
 
            following findings:
 
            
 
                 Claimant worked for employer from July 10, 1989, until 
 
            he was injured on July 24, 1989.  At the time of his injury, 
 
            claimant was getting ready to leave work when he slipped and 
 
            fell and broke his left ankle.  In the 14 days that claimant 
 
            worked for employer, he logged 145 hours by working nights 
 
            and weekends.  He was paid $5.00 an hour straight time for 
 
            all hours he worked.  Mr. Dick Howe, employer herein, 
 
            testified that other employees on the work crew usually only 
 
            worked eight hours per day and earned $5.00 an hour.  Mr. 
 
            Howe is the owner/operator of an interior/ exterior painting 
 
            and repair company.  He testified that the amount of work 
 
            available in the business fluctuates depending upon the 
 
            needs of his customers.  He stated that he could not 
 
            guarantee that claimant would have worked the same number of 
 
            hours if he continued to be employed.
 
            
 
                 The pertinent medical evidence of record reveals that 
 
            claimant was brought to Bergan Mercy Hospital Emergency Room 
 
            on July 24, 1989, and diagnosed as having bimalleolar 
 
            fracture to the left ankle.  He was seen by T. C. 
 
            Fitzgibbons, M.D.  Dr. Fitzgibbons recommended open 
 
            reduction and internal fixation of the left ankle.  He was 
 
            admitted to inpatient care and preliminary evaluation was 
 
            done by M. Mancuso, M.D.  On July 25, 1989, Dr. Fitzgibbons 
 
            performed surgery (Ex. 11-14).
 
            
 
                 On September 19, 1989, Dr. Fitzgibbons performed 
 
            outpatient surgery and removed the syndesmotic screw (Ex. 
 
            15).  On a follow-up evaluation on October 2, 1989, 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            claimant's sutures were removed.  Dr. Fitzgibbons noted that 
 
            "clinically, his foot and ankle looks fine, although it's 
 
            still moderately swollen."  X-rays showed the fractures 
 
            improving.  Physical therapy was ordered (Ex. 1, page 3).
 
            
 
                 Claimant testified that he was not satisfied with Dr. 
 
            Fitzgibbons' treatment and requested to see another doctor.  
 
            He stated that the insurance company had no objections to 
 
            his request.  On January 16, 1990, he was examined by James 
 
            R. Rochelle, M.D.  An examination revealed good range of 
 
            motion in his ankle.  X-rays of the ankle demonstrated 
 
            well-healed fibular and medial malleolar fractures.  He was 
 
            prescribed Feldene for pain.  He was seen again by Dr. 
 
            Rochelle on February 13 and March 27, 1990.  His complaints 
 
            were referable to discomfort in his foot and ankle.  Dr. 
 
            Rochelle felt that he was not ready to return to work 
 
            (Exhibits. 4 and 6).
 
            
 
                 On June 15, 1990, claimant was seen by Dr. Fitzgibbons 
 
            at the request of the insurance company for a final 
 
            evaluation and disabilitynt of $339.00.  
 
            However, these issues were not listed on the hearing 
 
            assignment order filed on October 3, 1990, and the 
 
            undersigned is without jurisdiction to consider them.  
 
            Joseph Presswood v. Iowa Beef Processors, (Appeal Decision 
 
            filed November 14, 1986).  This decision held that an issue 
 
            not noted on the hearing assignment order is waived.
 
            
 
                                 findings of fact
 
            
 
                 The undersigned has carefully considered all the 
 
            testimony given at the hearing, the arguments made, and the 
 
            evidence contained in the exhibits herein, and makes the 
 
            following findings:
 
            
 
                 Claimant worked for employer from July 10, 1989, until 
 
            he was injured on July 24, 1989.  At the time of his injury, 
 
            claimant was getting ready to leave work when he slipped and 
 
            fell and broke his left ankle.  In the 14 days that claimant 
 
            worked for employer, he logged 145 hours by working nights 
 
            and weekends.  He was paid $5.00 an hour straight time for 
 
            all hours he worked.  Mr. Dick Howe, employer herein, 
 
            testified that other employees on the work crew usually only 
 
            worked eight hours per day and earned $5.00 an hour.  Mr. 
 
            Howe is the owner/operator of an interior/ exterior painting 
 
            and repair company.  He testified that the amount of work 
 
            available in the business fluctuates depending upon the 
 
            needs of his customers.  He stated that he could not 
 
            guarantee that claimant would have worked the same number of 
 
            hours if he continued to be employed.
 
            
 
                 The pertinent medical evidence of record reveals that 
 
            claimant was brought to Bergan Mercy Hospital Emergency Room 
 
            on July 24, 1989, and diagnosed as having bimalleolar 
 
            fracture to the left ankle.  He was seen by T. C. 
 
            Fitzgibbons, M.D.  Dr. Fitzgibbons recommended open 
 
            reduction and internal fixation of the left ankle.  He was 
 
            admitted to inpatient care and preliminary evaluation was 
 
            done by M. Mancuso, M.D.  On July 25, 1989, Dr. Fitzgibbons 
 
            performed surgery (Ex. 11-14).
 
            
 
                 On September 19, 1989, Dr. Fitzgibbons performed 
 
            outpatient surgery and removed the syndesmotic screw (Ex. 
 
            15).  On a follow-up evaluation on October 2, 1989, 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            claimant's sutures were removed.  Dr. Fitzgibbons noted that 
 
            "clinically, his foot and ankle looks fine, although it's 
 
            still moderately swollen."  X-rays showed the fractures 
 
            improving.  Physical therapy was ordered (Ex. 1, page 3).
 
            
 
                 Claimant testified that he was not satisfied with Dr. 
 
            Fitzgibbons' treatment and requested to see another doctor.  
 
            He stated that the insurance company had no objections to 
 
            his request.  On January 16, 1990, he was examined by James 
 
            R. Rochelle, M.D.  An examination revealed good range of 
 
            motion in his ankle.  X-rays of the ankle demonstrated 
 
            well-healed fibular and medial malleolar fractures.  He was 
 
            prescribed Feldene for pain.  He was seen again by Dr. 
 
            Rochelle on February 13 and March 27, 1990.  His complaints 
 
            were referable to discomfort in his foot and ankle.  Dr. 
 
            Rochelle felt that he was not ready to return to work 
 
            (Exhibits. 4 and 6).
 
            
 
                 On June 15, 1990, claimant was seen by Dr. Fitzgibbons 
 
            at the request of the insurance company for a final 
 
            evaluation and disabilitynt of $339.00.  
 
            However, these issues were not listed on the hearing 
 
            assignment order filed on October 3, 1990, and the 
 
            undersigned is without jurisdiction to consider them.  
 
            Joseph Presswood v. Iowa Beef Processors, (Appeal Decision 
 
            filed November 14, 1986).  This decision held that an issue 
 
            not noted on the hearing assignment order is waived.
 
            
 
                                 findings of fact
 
            
 
                 The undersigned has carefully considered all the 
 
            testimony given at the hearing, the arguments made, and the 
 
            evidence contained in the exhibits herein, and makes the 
 
            following findings:
 
            
 
                 Claimant worked for employer from July 10, 1989, until 
 
            he was injured on July 24, 1989.  At the time of his injury, 
 
            claimant was getting ready to leave work when he slipped and 
 
            fell and broke his left ankle.  In the 14 days that claimant 
 
            worked for employer, he logged 145 hours by working nights 
 
            and weekends.  He was paid $5.00 an hour straight time for 
 
            all hours he worked.  Mr. Dick Howe, employer herein, 
 
            testified that other employees on the work crew usually only 
 
            worked eight hours per day and earned $5.00 an hour.  Mr. 
 
            Howe is the owner/operator of an interior/ exterior painting 
 
            and repair company.  He testified that the amount of work 
 
            available in the business fluctuates depending upon the 
 
            needs of his customers.  He stated that he could not 
 
            guarantee that claimant would have worked the same number of 
 
            hours if he continued to be employed.
 
            
 
                 The pertinent medical evidence of record reveals that 
 
            claimant was brought to Bergan Mercy Hospital Emergency Room 
 
            on July 24, 1989, and diagnosed as having bimalleolar 
 
            fracture to the left ankle.  He was seen by T. C. 
 
            Fitzgibbons, M.D.  Dr. Fitzgibbons recommended open 
 
            reduction and internal fixation of the left ankle.  He was 
 
            admitted to inpatient care and preliminary evaluation was 
 
            done by M. Mancuso, M.D.  On July 25, 1989, Dr. Fitzgibbons 
 
            performed surgery (Ex. 11-14).
 
            
 
                 On September 19, 1989, Dr. Fitzgibbons performed 
 
            outpatient surgery and removed the syndesmotic screw (Ex. 
 
            15).  On a follow-up evaluation on October 2, 1989, 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            claimant's sutures were removed.  Dr. Fitzgibbons noted that 
 
            "clinically, his foot and ankle looks fine, although it's 
 
            still moderately swollen."  X-rays showed the fractures 
 
            improving.  Physical therapy was ordered (Ex. 1, page 3).
 
            
 
                 Claimant testified that he was not satisfied with Dr. 
 
            Fitzgibbons' treatment and requested to see another doctor.  
 
            He stated that the insurance company had no objections to 
 
            his request.  On January 16, 1990, he was examined by James 
 
            R. Rochelle, M.D.  An examination revealed good range of 
 
            motion in his ankle.  X-rays of the ankle demonstrated 
 
            well-healed fibular and medial malleolar fractures.  He was 
 
            prescribed Feldene for pain.  He was seen again by Dr. 
 
            Rochelle on February 13 and March 27, 1990.  His complaints 
 
            were referable to discomfort in his foot and ankle.  Dr. 
 
            Rochelle felt that he was not ready to return to work 
 
            (Exhibits. 4 and 6).
 
            
 
                 On June 15, 1990, claimant was seen by Dr. Fitzgibbons 
 
            at the request of the insurance company for a final 
 
            evaluation and disabilitynt of $339.00.  
 
            However, these issues were not listed on the hearing 
 
            assignment order filed on October 3, 1990, and the 
 
            undersigned is without jurisdiction to consider them.  
 
            Joseph Presswood v. Iowa Beef Processors, (Appeal Decision 
 
            filed November 14, 1986).  This decision held that an issue 
 
            not noted on the hearing assignment order is waived.
 
            
 
                                 findings of fact
 
            
 
                 The undersigned has carefully considered all the 
 
            testimony given at the hearing, the arguments made, and the 
 
            evidence contained in the exhibits herein, and makes the 
 
            following findings:
 
            
 
                 Claimant worked for employer from July 10, 1989, until 
 
            he was injured on July 24, 1989.  At the time of his injury, 
 
            claimant was getting ready to leave work when he slipped and 
 
            fell and broke his left ankle.  In the 14 days that claimant 
 
            worked for employer, he logged 145 hours by working nights 
 
            and weekends.  He was paid $5.00 an hour straight time for 
 
            all hours he worked.  Mr. Dick Howe, employer herein, 
 
            testified that other employees on the work crew usually only 
 
            worked eight hours per day and earned $5.00 an hour.  Mr. 
 
            Howe is the owner/operator of an interior/ exterior painting 
 
            and repair company.  He testified that the amount of work 
 
            available in the business fluctuates depending upon the 
 
            needs of his customers.  He stated that he could not 
 
            guarantee that claimant would have worked the same number of 
 
            hours if he continued to be employed.
 
            
 
                 The pertinent medical evidence of record reveals that 
 
    
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                           5-1802; 5-3002
 
                           Filed July 10, 1991
 
                           JEAN M. INGRASSIA
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            MARTIN L. SOROKA,             :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :         File No. 933553
 
            DICK HOWE PAINTING &          :
 
            DECORATING,                   :      A R B I T R A T I O N
 
                                          :
 
                 Employer,                :         D E C I S I O N
 
                                          :
 
            and                           :
 
                                          :
 
            HAWKEYE SECURITY INSURANCE,   :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            Parties disputed extent of healing period and rate of 
 
            compensation.
 
            
 
            5-1802
 
            Healing period commenced on date of injury and ended when 
 
            claimant's treating surgeon assigned an impairment rating 
 
            indicating claimant had reached maximum medical improvement.  
 
            Based on observations of a private investigator, defendants 
 
            alleged that claimant returned to work six months prior to 
 
            date he reached maximum medical improvement.  However, 
 
            surveillance occurred on only one day and results were 
 
            speculative and insufficient to overcome claimant's evidence 
 
            that he returned to work after he reached maximum medical 
 
            improvement.
 
            
 
            5-3002
 
            Claimant worked only two weeks for employer.  No evidence 
 
            offered as to work available to other employees in a similar 
 
            occupation for 13 weeks preceding the injury.  Gross weekly 
 
            earnings were obtained by dividing the total number of 
 
            dollars earned by the total number of weeks worked.  Barker 
 
            v. City Wide Cartage, I Iowa Industrial Comm'r Reports 12 
 
            (1980) (Appealed to District Court, dismissed).