Page   1
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            DENA CHRISTY,                 :
 
                                          :
 
                 Claimant,                :         File No. 933595
 
                                          :
 
            vs.                           :      A R B I T R A T I O N
 
                                          :
 
            GRIFFIN WHEEL COMPANY,        :         D E C I S I O N
 
                                          :
 
                 Employer,                :
 
                 Self-Insured,            :
 
                 Defendant.               :
 
            ____________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 Claimant Dena Christy filed a petition in arbitration 
 
            against defendant self-insured employer Griffin Wheel 
 
            Company alleging a March 16, 1990 work injury and seeking 
 
            benefits under the Iowa Workers' Compensation Act as a 
 
            result.
 
            
 
                 This cause came on for hearing in Burlington, Iowa, on 
 
            August 30, 1991.  The record consists of the testimony of 
 
            claimant and Rose Harmon and joint exhibits 1 through 29.  
 
            Many of the exhibits consist of multiple copies of the same 
 
            documents.
 
            
 
                                      issues
 
            
 
                 The parties have stipulated that claimant sustained an 
 
            injury arising out of and in the course of her employment 
 
            with Griffin Wheel Company on March 15, 1990 and that the 
 
            appropriate rate of compensation is $307.69 per week.
 
            
 
                 Issues presented for resolution include:
 
            
 
                 1.  Whether there exists a causal relationship between 
 
            the stipulated work injury and temporary or permanent 
 
            disability;
 
            
 
                 2.  The nature and extent of disability; and,
 
            
 
                 3.  The extent of claimant's entitlement to medical 
 
            benefits under Iowa Code section 85.27.
 
            
 
                     
 
            
 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
            
 
            findings of fact
 
            
 
                 The undersigned deputy industrial commissioner finds:
 
            
 
                 Dena Christy, 27 years of age at hearing, is a high 
 
            school graduate.  Her work history consists of three years' 
 
            employment with defendant Griffin Wheel Company and work as 
 
            a licensed emergency medical technician.
 
            
 
                 Defendant is in the business of manufacturing large 
 
            wheels for the railroad industry.  On March 16, 1990, 
 
            claimant was engaged in cleaning molds.  She testified that, 
 
            while prying a mold, her back "popped" from the neck down to 
 
            the thorax region and she instantly developed a headache.
 
            
 
                 Claimant continued working her regular shift, but 
 
            eventually asked to be sent to a physician for continued 
 
            pain.  She was seen on March 20 by Dr. Barrowes who 
 
            diagnosed a muscle strain to the thoracic area.  Dr. 
 
            Barrowes opined that the injury was work related, but felt 
 
            that claimant was not disabled and released her to 
 
            light-duty work.  X-rays were taken and medication 
 
            prescribed.
 
            
 
                 Ms. Christy was next referred to William Schulte, M.D., 
 
            on March 22, 1990.  Dr. Schulte's chart notes of that date 
 
            reflect that claimant reported hearing her entire back pop 
 
            all the way up and down and that pain was now experienced 
 
            mostly from between the shoulder blades on down.  He 
 
            reported very limited range of motion of the back and 
 
            tenderness in the paraspinous muscles from the mid-thoracic 
 
            spine all the way down.  Dr. Schulte's original diagnosis 
 
            was of subacute thoracic-lumbar-sacral strain with secondary 
 
            inflammation.  He reported that the injury was work related 
 
            and took claimant off work.  Radiographic studies of the 
 
            spine performed by R. L. Kimmel, M.D., on the same day were 
 
            unremarkable as to the lumbosacral spine, but showed 
 
            approximately two millimeters of anterior offset of C2 on C3 
 
            and mild bending of the upper cervical spine to the right.  
 
            Chart notes of March 27 reflect that the neck was now all 
 
            that was hurting (along with continued headache).  Dr. 
 
            Schulte reported full range of motion of the neck, but 
 
            tenderness to the paraspinous muscles and a little 
 
            tenderness to the thoracic and lumbar spine.  Assessment was 
 
            of questionable cervical spine ligamentous injury.  Dr. 
 
            Schulte recommended that claimant continue off work and be 
 
            seen by a neurosurgeon to clarify her medical status.  By 
 
            April 27, Dr. Schulte's diagnosis was of subluxation of C2 
 
            on C3, status post-injury at work.  By April 2, Dr. 
 
            Schulte's diagnosis was of soft tissue injury to the 
 
            paraspinous muscles of the back.
 
            
 
                 Claimant was seen on March 26, 1990, by Philip C. 
 
            Wilson, M.D.  Dr. Wilson reported normal range of motion of 
 
            the neck with no significant muscle spasm, but tenderness in 
 
            the posterior cervical area and minimal lumbosacral 
 
            tenderness.  His diagnosis was of subluxation of C2 on C3 
 
            (Dr. Wilson was aware of the x-rays), but probably not 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            
 
            
 
            related to the work incident.  Generalized back pain, a 
 
            "probable mild strain secondary to work incident" was 
 
            expected to respond to physical therapy, although Dr. Wilson 
 
            also believed that claimant should be evaluated by a 
 
            neurosurgeon with reference to the cervical subluxation.  In 
 
            an addendum to his notes, Dr. Wilson believed that claimant 
 
            would be able to return to work with respect to the work 
 
            injury to the mid and lower back on the next day or the day 
 
            after, but that her neck should be seen by a neurosurgeon 
 
            before returning to work as a laborer.
 
            
 
                 According to claimant, Dr. Wilson's examination was 
 
            only of about ten minutes' duration.
 
            
 
                 At this point, defendant refused to accept claimant 
 
            back to work until she saw a neurosurgeon, while refusing to 
 
            pay for the examination.  On March 30, 1990, claimant was 
 
            seen by Thomas R. Highland, M.D.  Dr. Highland is an 
 
            orthopaedic surgeon who testified by deposition on December 
 
            14, 1990.
 
            
 
                 Dr. Highland reported that claimant gave a history of 
 
            pain in the neck and right shoulder area since the work 
 
            incident.  Physical examination revealed substantial muscle 
 
            spasm in the right neck and right shoulder area.  Range of 
 
            motion of the neck was restricted.  Dr. Highland took 
 
            cervical x-rays which he interpreted as normal, and 
 
            recommended physical therapy.  He also referred claimant to 
 
            Larry W. Bader, D.O., with whom he frequently works.
 
            
 
                 Dr. Highland reported on cross-examination that 
 
            complaints of thoracic pain only to Dr. Barrowes and Dr. 
 
            Schulte on March 20 and 22 would be inconsistent with the 
 
            injury for which he examined her.
 
            
 
                 Dr. Highland saw claimant again in April and May while 
 
            she was undergoing physical therapy and treating with Dr. 
 
            Bader.  He reported that pain had diminished, but did not 
 
            totally disappear.  Based on the short time span in which he 
 
            saw claimant, he proved unable to make a determination as to 
 
            whether permanent disability resulted.
 
            
 
                 Claimant also saw Dr. Bader on March 30, 1990.  Dr. 
 
            Bader testified by deposition on September 11, 1990.  He is 
 
            currently a staff physician employed by the Columbia Spine 
 
            Rehabilitation Center in Columbia, Missouri.
 
            
 
                 Dr. Bader and the Columbia Spine Rehabilitation Center 
 
            provide conservative care, particularly manipulation and 
 
            physical therapy, treatment he provided claimant and deemed 
 
            reasonable and necessary.
 
            
 
                 Claimant gave Dr. Bader a history of sudden pain at the 
 
            base of the skull and the junction of the cervical and 
 
            thoracic spine at the time of her work injury.  He indicated 
 
            that he would be surprised if Dr. Barrowes reported 
 
            complaints of thoracic pain, and that a diagnosis of 
 
            thoracic, lumbar and sacral strain would be "totally" 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            
 
            
 
            inconsistent with his understanding of claimant's problem.
 
            
 
                 Dr. Bader believed that claimant suffered strain of 
 
            intervertebral ligaments, a soft tissue injury.  He 
 
            explained that, while muscles or cartilage will heal and 
 
            repair in time, ligaments do not.  Once a ligament has been 
 
            strained, it never completely heals.  As a result, 
 
            exacerbation of symptoms will occur when stressed on a 
 
            long-term basis, for example, on long automobile trips 
 
            (incidentally, one of claimant's current complaints).
 
            
 
                 On examination, including Dr. Highland's records, Dr. 
 
            Bader described thoracic, cervical and occipital lesioning 
 
            consistent with the work injury.  He expected that immediate 
 
            pain might have been experienced anywhere along the 
 
            insertion of the trapezius muscle, which extends to the 
 
            bottom of the rib cage and out to the shoulders from the 
 
            base of the skull.  However, in the type of injury suffered 
 
            by claimant, he would expect symptoms from the mid-scapula 
 
            out towards the top of the shoulder and back to the base of 
 
            the skull.
 
            
 
                 Although Dr. Bader testified that ligament damage never 
 
            completely heals, he did not rate impairment and imposed no 
 
            medical restrictions on claimant's activities.  No physician 
 
            has.
 
            
 
                 On May 24, 1990, Dr. Highland released claimant to 
 
            return to work without restrictions on June 18, 1990.  
 
            According to Rose Harmon, claimant was off work from March 
 
            22 through June 18, a period of 12 weeks, 5 days.
 
            
 
                 Claimant had been involved in an automobile accident 
 
            some months prior to the work injury.  Her testimony that 
 
            she suffered no back or neck injury stands uncontradicted.
 
            
 
                 Claimant is currently working at the same job she was 
 
            at the time of her injury and earning a higher wage.  
 
            However, she testified that she has elected not to bid into 
 
            certain other potential jobs because of continuing problems 
 
            with lifting, standing, raising her hands over shoulder 
 
            level and making circular motions with the hands.  She 
 
            complains that circular motion of the arms causes muscle 
 
            spasms between the neck and right shoulder and demonstrated 
 
            at hearing that the painful area is from the base of the 
 
            neck to the back of her right shoulder.  Ms. Christy 
 
            testified that she had a history of headaches prior to the 
 
            injury, but now suffers them on a daily basis instead of 
 
            once or twice per month.  She specified numerous non-work 
 
            activities in which she feels limited in whole or in part.
 
            
 
                 Claimant's testimony that Dr. Highland verbally rated 
 
            her impairment subsequent to his deposition is of 
 
            insufficient probative value to consider.  It has never been 
 
            reduced to writing.  Although claimant cited a percentage of 
 
            impairment, she did not know what part of the body was being 
 
            rated.
 
            
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            
 
            
 
                                conclusions of law
 
            
 
                 The parties have stipulated that claimant sustained an 
 
            injury arising out of and in the course of her employment on 
 
            March 15, 1990.
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury of March 15, 
 
            1990 is causally related to the disability on which she now 
 
            bases her claim.  Bodish v. Fischer, Inc., 257 Iowa 516, 133 
 
            N.W.2d 867 (1965).  Lindahl v. L. O. Boggs, 236 Iowa 296, 18 
 
            N.W.2d 607 (1945).  A possibility is insufficient; a 
 
            probability is necessary.  Burt v. John Deere Waterloo 
 
            Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955).  The 
 
            question of causal connection is essentially within the 
 
            domain of expert testimony.  Bradshaw v. Iowa Methodist 
 
            Hosp., 251 Iowa 375, 101 N.W.2d 167 (1960). 
 
            
 
                 However, expert medical evidence must be considered 
 
            with all other evidence introduced bearing on the causal 
 
            connection.  Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion 
 
            of experts need not be couched in definite, positive or 
 
            unequivocal language.  Sondag v. Ferris Hardware, 220 N.W.2d 
 
            903 (Iowa 1974).  However, the expert opinion may be 
 
            accepted or rejected, in whole or in part, by the trier of 
 
            fact.  Id. at 907.  Further, the weight to be given to such 
 
            an opinion is for the finder of fact, and that may be 
 
            affected by the completeness of the premise given the expert 
 
            and other surrounding circumstances.  Bodish, 257 Iowa 516, 
 
            133 N.W.2d 867.  See also Musselman v. Cent. Tel. Co., 261 
 
            Iowa 352, 154 N.W.2d 128 (1967).
 
            
 
                 The crucial problem in this case is the difference in 
 
            location between the symptoms originally reported and those 
 
            from which claimant now suffers.  The first physicians seen 
 
            were Dr. Barrowes and Dr. Schulte.  On March 20, Dr. 
 
            Barrowes described a muscle strain to the thoracic area.  On 
 
            March 22, Dr. Schulte diagnosed subacute 
 
            thoracic-lumbar-sacral strain.  Even though Dr. Kimmel 
 
            reported radiographic studies showing anterior offset of C2 
 
            on C3 and mild bending of the upper cervical spine, there is 
 
            no report by either Dr. Barrowes or Dr. Schulte of cervical 
 
            pain until March 27, eleven days after the event, and seven 
 
            days after treatment was first sought.  Consistent with Dr. 
 
            Barrowes, Dr. Schulte first reported complaints of pain from 
 
            the shoulder blades on down.
 
            
 
                 As has been seen, claimant's current symptomatology is 
 
            cervical.  Claimant herself testified that her pain has 
 
            "moved" from the thoracic and lumbar area to the cervical 
 
            region.  Obviously, expert opinion as to causation under 
 
            these circumstances is of utmost importance.
 
            
 
                 Dr. Schulte has described thoracic pain as status 
 
            post-work injury, an indication that he believes a casual 
 
            connection to exist.  Dr. Wilson believed otherwise.  He 
 
            felt claimant would be able to return to work with respect 
 
            to the work injury to the mid and lower back by March 27 or 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            
 
            
 
            28, but considered the subluxation of C2 on C3 as probably 
 
            not related to the work incident.  Dr. Highland testified 
 
            that complaints of thoracic pain only to Dr. Barrowes and 
 
            Dr. Schulte would be inconsistent with the injury for which 
 
            he examined her (his opinion to the contrary on causation 
 
            was without knowledge of the records of Dr. Barrowes and Dr. 
 
            Schulte).  Dr. Bader indicated surprise that Dr. Barrowes 
 
            would report complaints of thoracic pain and felt a 
 
            diagnosis of thoracic, lumbar and sacral strain would be 
 
            "totally" inconsistent with his understanding of claimant's 
 
            problems.
 
            
 
                 Thus, it appears that three of the four physicians to 
 
            have expressed an opinion on the issue do not find 
 
            claimant's current symptoms to be consistent with her 
 
            original complaints.  It is claimant's burden of proof to 
 
            establish the necessary causal relationship in order to 
 
            recover.  She has failed to meet that burden by a 
 
            preponderance of the evidence.  Even Dr. Schulte's note does 
 
            not address the physical mechanism by which early complaints 
 
            of thoracic and lumbar pain might be transformed to cervical 
 
            problems.
 
            
 
                 Although claimant has not established permanent 
 
            disability causally related to the work injury, it should be 
 
            noted that Dr. Schulte took claimant off work and Dr. Wilson 
 
            agreed that she was disabled until March 27 or 28.  She has 
 
            met her burden of proof in establishing entitlement to 
 
            temporary total disability benefits under Iowa Code sections 
 
            85.32 and 85.33 from March 25 (because the period of 
 
            incapacity did not extend beyond fourteen days, compensation 
 
            begins on the fourth day of disability; claimant was taken 
 
            off work on March 22) through March 28, 1990, a total of 
 
            four days or .571 weeks.
 
            
 
                 Claimant also seeks medical benefits under Iowa Code 
 
            section 85.27.  A review of the medical bills in evidence 
 
            indicates that only Dr. Wilson's charge of $30.00 for March 
 
            26, 1990 is related to the work injury, as opposed to 
 
            cervical problems which have not been found causally related 
 
            to the work injury.  Defendant shall pay Dr. Wilson's bill 
 
            in the amount of $30.00.
 
            
 
                                      order
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 Defendant shall pay unto claimant point five seven one 
 
            (.571) weeks of temporary total disability at the stipulated 
 
            rate of three hundred seven and 69/100 dollars ($307.69) per 
 
            week commencing March 25, 1990 and totalling one hundred 
 
            seventy-five and 69/100 dollars ($175.69).
 
            
 
                 As all weekly benefits have accrued, they shall be paid 
 
            in a lump sum together with statutory interest thereon 
 
            pursuant to Iowa Code section 85.30.
 
            
 
                 Defendant shall pay Dr. Wilson's charge in the sum of 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            
 
            
 
            thirty and 00/100 dollars ($30.00) as shown on exhibit 21, 
 
            page 33.
 
            
 
                 The costs of this action are assessed to defendant 
 
            pursuant to rule 343 IAC 4.33.
 
            
 
                 Defendant shall file claim activity reports as 
 
            requested by the agency pursuant to rule 343 IAC 3.1.
 
            
 
                 Signed and filed this ______ day of ____________, 1991.
 
            
 
                 
 
            
 
                 
 
                 
 
                                          ______________________________
 
                                          DAVID RASEY
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            Copies To:
 
            
 
            Mr. James P. Hoffman
 
            Attorney at Law
 
            Middle Road
 
            P.O. Box 1087
 
            Keokuk, Iowa  52632
 
            
 
            Mr. John E. Kultala
 
            Attorney at Law
 
            511 Blondeau Street
 
            Keokuk, Iowa  52632
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                           5-1108
 
                           Filed October 28, 1991
 
                           DAVID RASEY
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
		                      :
 
            DENA CHRISTY,	      :
 
 		                      :
 
                 Claimant,	      :         File No. 933595
 
                      		      :
 
		            vs.       :      A R B I T R A T I O N
 
                		      :
 
            GRIFFIN WHEEL COMPANY,    :         D E C I S I O N
 
                      		      :
 
                 Employer,            :
 
                 Self-Insured,        :
 
                 Defendant.           :
 
            ____________________________________________________________
 
            
 
            5-1108
 
            Claimant proved causation as to temporary total disability, 
 
            but not as to permanent disability.
 
            
 
 
            
 
            
 
            
 
            
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                        
 
            JANET DAMMANN,   
 
                        
 
                 Claimant,   
 
                        
 
            vs.         
 
                                                 File No. 933596
 
            BAWDEN PRINTING COMPANY,   
 
                                                  A P P E A L
 
                 Employer,   
 
                                                D E C I S I O N
 
            and         
 
                        
 
            THE HARTFORD,    
 
                        
 
                 Insurance Carrier,    
 
                 Defendants.      
 
            ____________________________________________________________
 
            The record, including the transcript of the hearing before 
 
            the deputy and all exhibits admitted into the record, has 
 
            been reviewed de novo on appeal.  The decision of the deputy 
 
            filed October 4, 1991 is affirmed and is adopted as the 
 
            final agency action in this case with the following 
 
            additional analysis:
 
 
 
            The parties attempted to stipulate to a rate of $100.10.  
 
            They also stipulated that claimant was married and entitled 
 
            to four exemptions.  The Guide to Iowa Workers' Compensation 
 
            Claim Handling dated July 1, 1989 is applicable for the 
 
            injury in this case (March 8, 1990).  The guide lists no 
 
            rate of $100.10 for a married individual with four 
 
            exemptions.  Therefore, the stipulated rate is contrary to 
 
            law.  The closest legal rate is $99.89.
 
            Claimant shall pay the costs of the appeal, including the 
 
            preparation of the hearing transcript.
 
            Signed and filed this ____ day of October, 1992.
 
            
 
            
 
            
 
            
 
                                       ________________________________
 
                                               BYRON K. ORTON
 
                                         INDUSTRIAL COMMISSIONER
 
            
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            Copies To:
 
            
 
            Mr. Peter M. Soble
 
            Attorney at Law
 
            505 Plaza Office Bldg.
 
            Rock Island, IL  61201
 
            
 
            Mr. Greg A. Egbers
 
            Attorney at Law
 
            600 Union Arcade Bldg.
 
            111 East Third St.
 
            Davenport, Iowa 52801-1596
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                               5-1801; 3003
 
                                               Filed October 28, 1992
 
                                               Byron K. Orton
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
            JANET DAMMANN,   
 
                        
 
                 Claimant,   
 
                        
 
            vs.         
 
                                                 File No. 933596
 
            BAWDEN PRINTING COMPANY,   
 
                                                  A P P E A L
 
                 Employer,   
 
                                                D E C I S I O N
 
            and         
 
                        
 
            THE HARTFORD,    
 
                        
 
                 Insurance Carrier,    
 
                 Defendants.      
 
            ____________________________________________________________
 
            
 
            5-1801
 
            Claimant sought medical treatment of her own choice, after 
 
            she became disenchanted with the authorized treating 
 
            physician.  Treatments and evaluations by the unauthorized 
 
            physician were rejected.
 
            Claimant awarded temporary total disability, as she failed 
 
            to show permanent disability.
 
            
 
            3003
 
            Stipulated rate which was contrary to the law was rejected.  
 
            The stipulated rate was not found in the published rate 
 
            book.  Nearest legal rate to stipulated amount was used.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            JANET DAMMANN,                :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 933596
 
            BAWDEN PRINTING COMPANY,      :
 
                                          :    A R B I T R A T I O N
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            THE HARTFORD,                 :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                 
 
            
 
                                   introduction
 
            
 
                 This is a proceeding in arbitration brought by Janet 
 
            Dammann against Bawden Printing, employer, and The Hartford, 
 
            insurance carrier.
 
            
 
                 Claimant sustained a compensable injury on March 8, 
 
            1990, and seeks additional workers' compensable benefits.
 
            
 
                 The case was heard at Davenport, Iowa on July 31, 1991, 
 
            and was considered fully submitted upon conclusion of the 
 
            hearing.  The parties were granted leave to file briefs.
 
            
 
                 The record in this proceeding consists of the testimony 
 
            of claimant and Gary O'Toole; claimant's exhibits 1-18; and, 
 
            defendants' exhibits A-H.
 
            
 
                                      issues
 
            
 
                 Pursuant to the prehearing report submitted and 
 
            approved at the hearing, and in conjunction with the hearing 
 
            assignment order, the following issues were presented for 
 
            resolution:
 
            
 
                 1.  Whether there is a causal relationship between 
 
            claimant's injury and her present disability;
 
            
 
                 2.  Whether claimant is entitled to temporary 
 
            disability or healing period benefits, or permanent partial 
 
            disability benefits; and,
 
            
 
                 3.  Whether claimant is entitled to medical benefits as 
 
            provided for under Iowa Code section 85.27.
 
            
 
                                 findings of fact
 
            
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
                 The undersigned deputy, having heard all of the 
 
            testimony and having considered all of the evidence 
 
            received, finds the following facts:
 
            
 
                 Claimant, Janet Dammann, began working for defendant 
 
            employer in January of 1990.  She was hired as a general 
 
            worker in the bindery department.  In this position, she was 
 
            required to perform work on a labeling machine.  Claimant 
 
            would remove the pamphlets from the labeling machine, load 
 
            them into mail bags and place the mail bags on a wooden skid 
 
            that would be moved to the warehouse.
 
            
 
                 While moving a skid box of labeled mail with a hand 
 
            truck, claimant slipped and the skid ran over her right 
 
            foot.  Although she felt pain immediately, she proceeded to 
 
            have lunch, and then reported to her supervisor, who 
 
            referred her to Mercy Hospital in Davenport, Iowa.  X-rays 
 
            were taken of both the right foot and ankle, and were 
 
            normal.  The diagnostic impression was that of a contusion 
 
            of the right foot.  Claimant was given Tylenol 3, and was 
 
            sent home.  (Defendants' Exhibit B, pages 1-7).
 
            
 
                 The following day, claimant sought treatment from John 
 
            C. Barker, M.D., and was taken off of work from March 8, 
 
            1990 through March 12, 1990.  At that time, she was placed 
 
            on light duty.  Claimant continued to experience difficulty 
 
            with her foot, and upon examination by Dr. Barker on March 
 
            13, 1990, claimant exhibited severe tenderness of the dorsam 
 
            of the foot, as well as pain when flexing or extending the 
 
            ankle.  Dr. Barker concluded that claimant had sustained a 
 
            severe contusion of the dorsam of the right foot associated 
 
            with tenosynovitis and possible peripheral nerve palsy.  
 
            Claimant was given Naprosyn and was to elevate the leg 
 
            frequently.  She was to return in four days for follow-up 
 
            care.  (Def. Ex. C, pp. 1-3).
 
            
 
                 Claimant returned to Dr. Barker on March 17, 1990, and 
 
            continued to show signs of slight improvement, although she 
 
            stated she had difficulty standing for any length of time.  
 
            She was referred to the Franciscan Physical Therapy 
 
            Department for daily therapy.  (Def. Ex. C, p. 4).
 
            
 
                 Claimant continued to treat with Dr. Barker during 
 
            March, and was eventually limited to table work, with no 
 
            standing for any length of time greater than fifteen to 
 
            twenty minutes.  (Def. Ex., C, p. 4).
 
            
 
                 On April 2, 1990, claimant sought treatment from a 
 
            different physician, N. A. Sanguino, M.D.  Dr. Sanguino 
 
            performed an EMG and nerve conduction velocity study of the 
 
            right lower extremity.  Based on these studies, Dr. Sanguino 
 
            determined that claimant "most likely" had a traumatic nerve 
 
            neuropathy of the right foot and ankle.  (Def. Ex. G, p. 1).  
 
            Claimant also began to see David Nebbeling, D.O., on March 
 
            31, 1990.
 
            
 
                 After her visit to Dr. Nebbeling, he found her 
 
            temporarily totally disabled through January of 1991, when 
 
            he performed an impairment evaluation on claimant's right 
 
            foot, right ankle and left knee.
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            
 
                 Dr. Nebbeling's impairment evaluation made the 
 
            following permanent impairments:
 
            
 
                 EVALUATION OF THE RIGHT LOWER EXTREMITY FOR 
 
                 DISABILITY RATING:
 
            
 
                 For this section, I have used The Guides to the 
 
                 Evaluation of Permanent Impairment 3rd Edition.
 
            
 
                 ....
 
            
 
                 GONIOMETER / VISUAL ANALYSIS FOR IMPAIRMENT DUE TO 
 
                 ABNORMAL MOTION
 
            
 
                 AT THE ANKLE.          % IMPAIRMENT TO LOWERS 
 
                 EXTREMITY
 
            
 
                 Dorsi-flexion    5o                6%
 
            Plantar-flexion 30o                4%
 
            Inversion       10o                4%
 
            Eversion        10o                2% 
 
                                    TOTAL     16%
 
            
 
                 IMPAIRMENT DUE TO LOSS OF SENSATION:
 
            
 
                 I have found Mrs. Dammann to have loss of 
 
                 sensation to light and sharp touch over the 
 
                 lateral side of her right foot in the area covered 
 
                 by the lateral plantar nerve.  I would grade this 
 
                 at 20%.  By referring to Table 47, this equals a 
 
                 1% impairment to the right lower extremity.
 
            
 
                 IMPAIRMENT DUE TO LOSS OF STRENGTH:
 
            
 
                 In testing Mrs. Dammann's right foot, I found that 
 
                 her toes 3-5 had no ability to flex or extend.  I 
 
                 found that she could dorsi-flex, plantar-flex, 
 
                 invert and evert within her range of motion 
 
                 against only some resistance.
 
            
 
                 The nerves involved with these movements, are the 
 
                 Common peroneal and the Tibial nerve.
 
            
 
                 I find the muscles involved in extending the toes 
 
                 3-5, are innervated by the peroneal nerve (L-4, 
 
                 L-5, S-1).  The muscles flexing the toes 3-5, are 
 
                 innervated by the Tibial nerve (L-5 & S-1).  I 
 
                 would grade a 100% impairment for loss of strength 
 
                 for the nerve branches.
 
            
 
                 I would grade the branches of the peroneal nerve 
 
                 and the tibial nerve that innervate the muscles 
 
                 for eversion and inversion, at 20%, because we 
 
                 have range of motion against some resistance.
 
            
 
                 Referring to Table 47, I would take the higher of 
 
                 the two grades and give a 35% impairment of the 
 
                 lower extremity for Common peroneal nerve and 25% 
 
                 impairment for the Posterior Tibial nerve.
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            
 
                 EVALUATION OF THE LEFT KNEE:
 
            
 
                 The stress of having to use the left leg so much 
 
                 more over the past 9 months, has promoted and 
 
                 accelerated the arthritis in Mrs. Dammann's left 
 
                 knee as evidenced by her report of pain, the 
 
                 deformity of the medial side of the knee, and the 
 
                 constant crepitous that was not present before.
 
            
 
                 I would grade a 30% impairment to the left knee 
 
                 for severe crepitation.  This equals a 16% 
 
                 impairment to the left lower extremity.
 
            
 
                 I would give 5% impairment to the lower extremity 
 
                 for mild deformity.
 
            
 
                 SUMMARY:
 
            
 
                 By use of the combined values chart, one can 
 
                 calculate the total impairment for the right lower 
 
                 extremity to be 60%, or 24% impairment to the 
 
                 whole man.
 
            
 
                 By use of the combined value chart, one can 
 
                 calculate the total impairment to the left knee at 
 
                 20% of the lower extremity, or 8% impairment to 
 
                 the whole person.
 
            
 
                 One may calculate a total impairment of 30% of a 
 
                 whole person.
 
            
 
            (Def. Ex. D, pp. 3-7).
 
            
 
                         analysis and conclusions of law
 
            
 
                 The first issue to be addressed is whether there is a 
 
            causal relationship between claimant's injury of March 8, 
 
            1990 and her current disability.
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury of March 8, 
 
            1990, is causally related to the disability on which she now 
 
            bases her claim.  Bodish v. Fischer, Inc., 257 Iowa 516, 133 
 
            N.W.2d 867 (1965).  Lindahl v. L. O. Boggs, 236 Iowa 296, 18 
 
            N.W.2d 607 (1945).  A possibility is insufficient; a 
 
            probability is necessary.  Burt v. John Deere Waterloo 
 
            Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955).  The 
 
            question of causal connection is essentially within the 
 
            domain of expert testimony.  Bradshaw v. Iowa Methodist 
 
            Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). 
 
            
 
                 However, expert medical evidence must be considered 
 
            with all other evidence introduced bearing on the causal 
 
            connection.  Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion 
 
            of experts need not be couched in definite, positive or 
 
            unequivocal language.  Sondag v. Ferris Hardware, 220 N.W.2d 
 
            903 (Iowa 1974).  However, the expert opinion may be 
 
            accepted or rejected, in whole or in part, by the trier of 
 
            fact.  Id. at 907.  Further, the weight to be given to such 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            an opinion is for the finder of fact, and that may be 
 
            affected by the completeness of the premise given the expert 
 
            and other surrounding circumstances.  Bodish, 257 Iowa 516, 
 
            133 N.W.2d 867.  See also Musselman v. Central Telephone 
 
            Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
            
 
                 Furthermore, if the available expert testimony is 
 
            insufficient alone to support a finding of causal 
 
            connection, such testimony may be coupled with nonexpert 
 
            testimony to show causation and be sufficient to sustain an 
 
            award.  Giere v. Aase Haugen Homes, Inc., 259 Iowa 1065, 146 
 
            N.W.2d 911, 915 (1966).  Such evidence does not, however, 
 
            compel an award as a matter of law.  Anderson v. Oscar Mayer 
 
            & Co., 217 N.W.2d 531, 536 (Iowa 1974).  To establish 
 
            compensability, the injury need only be a significant 
 
            factor, not be the only factor causing the claimed 
 
            disability.  Blacksmith v. All-American, Inc., 290 N.W.2d 
 
            348, 354 (Iowa 1980).
 
            
 
                 Claimant argues that prior to the work-related injury, 
 
            she did not have any physical impairment of her right foot 
 
            and ankle, and that due to the injuries sustained, she has 
 
            also encountered difficulties with a problem at a left knee.  
 
            She relies upon Dr. Nebbling's assessment that the right 
 
            ankle and foot impairments are directly related to the 
 
            accident on March 8, 1990.  Dr. Nebbling also opined that 
 
            the progressive degeneration of the left knee was secondary 
 
            to the right foot and ankle impairment.  (Deft. Ex. D, p. 
 
            7).
 
            
 
                 Defendants argue that claimant has not sustained any 
 
            permanent disability due to work-related injury.  They rely 
 
            on Dr. Barker's treatment of claimant, and argue that 
 
            claimant was entitled only to three-sevenths weeks of 
 
            temporary total disability (from March 8, 1990 through March 
 
            12, 1990) as claimant was released to return to light duty 
 
            work on March 13, 1990.  She was again taken off of work 
 
            from March 13 to March 30, 1990.
 
            
 
                 A thorough review of the evidence shows that the 
 
            authorized physician was Dr. Barker.  Claimant, on her own, 
 
            sought a second opinion from Dr. Sanquino and Dr. Nebbling.  
 
            Dr. Sanquino provided no impairment rating of the right 
 
            lower extremity.  As discussed earlier, Dr. Nebbling found a 
 
            70 percent impairment to the right leg based on the injury.  
 
            And, he evaluated the left knee due to the additional stress 
 
            incurred due to the right foot injury.  He assessed a right 
 
            lower extremity impairment of 16 percent.  Additionally, he 
 
            gave a five percent impairment for mild deformity.
 
            
 
                 Dr. Nebbling's treatments from March of 1990 through 
 
            January of 1991, evaluation and subsequent impairment 
 
            ratings are rejected.  Dr. Barker was the authorized 
 
            treating physician, and it was claimant's choice to 
 
            discontinue any treatment with him.  The record reflects 
 
            that claimant was unhappy with Dr. Barker's treatment and 
 
            subsequent evaluation.  Her proper course was to apply for 
 
            alternative care under Iowa Code section 85.27.
 
            
 
                 As noted earlier, claimant was restricted to working at 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            a table, with no standing for greater than 15-20 minutes.  
 
            The undersigned finds that the defendant company 
 
            accommodated these restrictions, and gave claimant a job 
 
            which fit within the description as set out by Dr. Barker.  
 
            As a result, claimant is awarded temporary total disability 
 
            benefits for the time she was off of work and under Dr. 
 
            Barker's care.
 
            
 
                                      order
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 That defendants shall pay unto claimant temporary total 
 
            disability benefits beginning March 8, 1990 through March 
 
            30, 1990 at the rate of ninety-nine and 89/100 dollars 
 
            ($99.89).
 
            
 
                 That defendants are entitled to a credit against the 
 
            award for benefits previously paid.
 
            
 
                 That defendants are obligated to pay only the medical 
 
            benefits provided for by Dr. Barker.
 
            
 
                 That defendants shall pay the costs of this action.
 
            
 
                 That defendants shall file a claim activity report as 
 
            governed by rule 343 IAC 3.1.
 
            
 
                 Signed and filed this ____ day of October, 1991.
 
            
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
                                          
 
            ________________________________
 
                                          PATRICIA J. LANTZ
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr Peter M Soble
 
            Attorney at Law
 
            505 Plaza Office Building
 
            Rock Island Illinois  61201
 
            
 
            Mr Larry L Shepler
 
            Attorney at Law
 
            Executive Square, Ste 102
 
            400 Main Street
 
            Davenport Iowa 52801
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                      5-1801
 
                      Filed October 4, 1991
 
                      PATRICIA J. LANTZ
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
		                      :
 
            JANET DAMMANN,	      :
 
		                      :
 
                 Claimant,	      :
 
		                      :
 
		            vs.       :
 
        		              :      File No. 933596
 
            BAWDEN PRINTING COMPANY,  :
 
		                      :    A R B I T R A T I O N
 
                 Employer,	      :
 
		                      :      D E C I S I O N
 
		            and       :
 
                		      :
 
            THE HARTFORD,  	      :
 
                      		      :
 
                 Insurance Carrier,   :
 
                 Defendants.          :
 
            ___________________________________________________________
 
            
 
            5-1801
 
            Claimant sought medical treatment of her own choice, after 
 
            she became disenchanted with the authorized treating 
 
            physician.  Treatments and evaluations by the unauthorized 
 
            physician were rejected.
 
            Claimant awarded temporary total disability, as she failed 
 
            to show permanent disability.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            SUZANN SMITH,                 :
 
                                          :
 
                 Claimant,                :
 
                                          :         File No. 933597
 
            vs.                           :
 
                                          :      A R B I T R A T I O N
 
            FRUEHAUF CORP.,               :
 
                                          :         D E C I S I O N
 
                 Employer,                :
 
                                          :
 
            and                           :
 
                                          :
 
            CIGNA,                        :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 Claimant Suzann Smith filed a petition in arbitration 
 
            against employer Fruehauf Corporation and its insurance 
 
            carrier, Cigna, alleging a March 9, 1990 work injury 
 
            consisting of bilateral aggravation of preexisting carpal 
 
            tunnel syndrome due to repetitive motion.  She seeks 
 
            benefits under the Iowa Workers' Compensation Act as a 
 
            result.
 
            
 
                 The cause came on for hearing in Burlington, Iowa, on 
 
            August 29, 1991.  The record consists of joint exhibits 1 
 
            through 18 and the testimony of claimant and Linda Sage.  
 
            The exhibits are rife with multiple copies and irrelevant 
 
            documents.
 
            
 
                                      issues
 
            
 
                 The parties have stipulated that an employment 
 
            relationship existed between claimant and Fruehauf 
 
            Corporation on March 9, 1990; that entitlement to medical 
 
            benefits and temporary total or healing period benefits are 
 
            not at issue; that if claimant has sustained permanent 
 
            disability, it is a scheduled member disability to both 
 
            arms; and, that the appropriate rate of compensation is 
 
            $238.20 per week.
 
            
 
     
 
            
 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            Issues presented for resolution include:
 
            
 
                 1.  Whether claimant sustained an injury arising out of 
 
            and in the course of her employment on March 9, 1990;
 
            
 
                 2.  Whether there exists a causal relationship between 
 
            the claimed injury and permanent disability;
 
            
 
                 3.  The extent of permanent disability, if any;
 
            
 
                 4.  Whether the claim is barred by failure to give 
 
            timely notice under Iowa Code section 85.23; and,
 
            
 
                 5.  Whether the claim is barred by limitations pursuant 
 
            to Iowa Code section 85.26.
 
            
 
                                 findings of fact
 
            
 
                 The undersigned deputy industrial commissioner finds:
 
            
 
                 Defendant Fruehauf Corporation is engaged in the 
 
            manufacture of large trailers for the purpose of highway 
 
            freight hauling.  Claimant began work in 1977 as a 
 
            production employee.  Her first job, as a "squeezer" 
 
            (installation of rivets with a machine), required repetitive 
 
            and heavy use of the hands.  Claimant developed bilateral 
 
            carpal tunnel syndrome and underwent surgical releases on 
 
            the right side on November 7, 1981, and the left side on 
 
            December 27, 1982.  The treating orthopaedic surgeon, Julio 
 
            del Castillo, M.D., released claimant to return to work 
 
            without restriction effective May 23, 1983.  His letter of 
 
            May 5, 1983, noted that claimant had made a good recovery, 
 
            except for some persistent numbness in the (left) thumb and 
 
            that, "[a]s far as disability goes, this would represent a 
 
            4% of that extremity."
 
            
 
                 No contemporaneous medical impairment rating appears to 
 
            have been issued with respect to the right arm or hand.  It 
 
            is at least arguable that Dr. del Castillo actually intended 
 
            to rate impairment to the hand or arm instead of the thumb 
 
            (claimant's brief baldly--if mistakenly--claims the arm was 
 
            rated), but in any event, Fruehauf's then-insurance carrier 
 
            for workers' compensation purposes (CNA Insurance Companies) 
 
            voluntarily paid claimant benefits based on impairment to 
 
            the thumb.  The record does not show that any claim was 
 
            litigated before the agency at that time.  Weekly benefits 
 
            were last paid to claimant by CNA Insurance Companies in 
 
            1983.
 
            
 
                 Claimant continued to work for Fruehauf Corporation, 
 
            and still does.  She continued suffering recurrent symptoms 
 
            from 1983 on at times when she was engaged in assembly work 
 
            requiring repetitive use of the hands.  An annual cycle 
 
            developed in which claimant did assembly work during the 
 
            early part of the year until symptoms developed, after which 
 
            she was shifted to a warehouse position and then laid off on 
 
            a seasonal basis.  Claimant missed intermittent days of work 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            during the years 1983 through 1988 while performing assembly 
 
            work, and also sought some medical attention, both from the 
 
            plant nurse (Linda Sage, at that time) and various 
 
            physicians.
 
            
 
                 Claimant indicated that symptoms became more severe in 
 
            approximately January 1989 after she had been working for 
 
            several months as an assembler, and that she was thereupon 
 
            switched back to warehouse work and in expediting, where she 
 
            remained until the asserted date of injury on March 9, 1990.
 
            
 
                 On that date, claimant caught a heavy box of rivets 
 
            with her right hand and damaged an unrelated incision in her 
 
            abdomen.  She agrees that her left hand was not injured at 
 
            the time.  While off work for the injury to her incision, 
 
            symptoms in the right hand became more severe.
 
            
 
                 Claimant now complains that her left thumb remains numb 
 
            (as has been the case since her surgical release) and that 
 
            she suffers aches and numbness at the wrist on that side.  
 
            She also complains of soreness in the right arm.
 
            
 
                 Following the incident in 1990, claimant was seen by 
 
            Koert R. Smith, M.D., a board-certified orthopaedic surgeon, 
 
            who testified by deposition on February 19, 1991.  Dr. Smith 
 
            opined that claimant suffered recurrent symptoms of carpal 
 
            tunnel syndrome and prescribed medications.  Further 
 
            surgical treatment has not been considered.  Dr. Smith 
 
            believed that claimant has sustained a five percent 
 
            impairment to each arm due to recurrent symptoms without 
 
            neurological deficit.  He believed claimant's condition was 
 
            a "continuum" of her earlier carpal tunnel syndrome for 
 
            which surgical treatment was provided.  He testified:
 
            
 
                 A.  I have no record or no information whether or 
 
                 not an impairment rating was given subsequent to 
 
                 her surgery in '78. [sic]
 
            
 
                 Q.  All right.  Do you have an opinion as you sit 
 
                 here today as to whether or not there would have 
 
                 been a permanent impairment, any permanency at 
 
                 that time?
 
            
 
                 A.  If I had been the treating physician and had 
 
                 done her carpal tunnel surgery and following her 
 
                 surgery she continued to have intermittent 
 
                 symptoms after returning to work, subsequent to 
 
                 her surgery, the impairment rating that I gave her 
 
                 today would have been the impairment rating that I 
 
                 would have given her at that time.
 
            
 
            (Dr. Smith deposition, page 13, lines 10 through 22)
 
            
 
                 On further examination, Dr. Smith testified that, if 
 
            claimant had become symptom-free following her surgery, he 
 
            would have found zero impairment at that time.  Dr. Smith 
 
            did not recommend any medical restrictions.
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
                 Dr. Smith was not aware of the traumatic incident 
 
            claimant described as having occurred on March 9, 1990, did 
 
            not know which upper extremity was involved, and had no 
 
            opinion as to whether claimant's subsequent wrist symptoms 
 
            were causally related to that incident.
 
            
 
                                conclusions of law
 
            
 
                 Claimant has the burden of proving by a preponderance 
 
            of the evidence that she received an injury on March 9, 1990 
 
            which arose out of and in the course of her employment. 
 
            McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa 
 
            1976); Musselman v. Cent. Tel. Co., 261 Iowa 352, 154 N.W.2d 
 
            128 (1967). 
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury of March 9, 
 
            1990 is causally related to the disability on which she now 
 
            bases her claim.  Bodish v. Fischer, Inc., 257 Iowa 516, 133 
 
            N.W.2d 867 (1965).  Lindahl v. L. O. Boggs, 236 Iowa 296, 18 
 
            N.W.2d 607 (1945).  A possibility is insufficient; a 
 
            probability is necessary.  Burt v. John Deere Waterloo 
 
            Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955).  The 
 
            question of causal connection is essentially within the 
 
            domain of expert testimony.  Bradshaw v. Iowa Methodist 
 
            Hosp., 251 Iowa 375, 101 N.W.2d 167 (1960). 
 
            
 
                 However, expert medical evidence must be considered 
 
            with all other evidence introduced bearing on the causal 
 
            connection.  Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion 
 
            of experts need not be couched in definite, positive or 
 
            unequivocal language.  Sondag v. Ferris Hardware, 220 N.W.2d 
 
            903 (Iowa 1974).  However, the expert opinion may be 
 
            accepted or rejected, in whole or in part, by the trier of 
 
            fact.  Id. at 907.  Further, the weight to be given to such 
 
            an opinion is for the finder of fact, and that may be 
 
            affected by the completeness of the premise given the expert 
 
            and other surrounding circumstances.  Bodish, 257 Iowa 516, 
 
            133 N.W.2d 867.  See also Musselman v. Cent. Tel. Co., 261 
 
            Iowa 352, 154 N.W.2d 128 (1967).
 
            
 
                 While a claimant is not entitled to compensation for 
 
            the results of a preexisting injury or disease, the mere 
 
            existence at the time of a subsequent injury is not a 
 
            defense.  Rose v. John Deere Ottumwa Works, 247 Iowa 900, 
 
            908, 76 N.W.2d 756, 760-61 (1956).  If the claimant had a 
 
            preexisting condition or disability that is aggravated, 
 
            accelerated, worsened or lighted up so that it results in 
 
            disability, claimant is entitled to recover.  Nicks v. 
 
            Davenport Produce Co., 254 Iowa 130, 115 N.W.2d 812, 815 
 
            (1962).
 
            
 
                 Although claimant suffered a traumatic incident (to one 
 
            arm only) on the alleged date of injury, her claim is that a 
 
            cumulative injury occurred in that bilateral carpal tunnel 
 
            syndrome symptoms have worsened.  However, she has not met 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            her burden of proof on this issue.  Treating physician Smith 
 
            opined that claimant's impairment (in scheduled member 
 
            cases, the impairment is the disability) was the same as 
 
            would have been the case following her surgical releases if 
 
            she had recurrent symptoms.  The record clearly shows that 
 
            claimant has had recurrent symptoms ever since her surgery 
 
            when she engages in work requiring repetitive use of the 
 
            hands.  Claimant has consistently suffered symptoms for 
 
            which she has complained to the plant nurse and sought 
 
            medical attention ever since.  No additional restrictions 
 
            have been imposed.
 
            
 
                 It is very probable that claimant was not adequately 
 
            compensated for her impairment at the time of her surgical 
 
            releases in 1981 and 1982.  However, adequacy of 
 
            compensation at that time is not reviewable in this hearing.  
 
            Claimant has failed to show that her condition has been 
 
            aggravated or worsened, at least in terms of permanent 
 
            impairment.  Temporary total disability, compensation for 
 
            actual time lost due to injury, is not at issue.  There is 
 
            no expert opinion in the record as to causation, relative 
 
            the claimed date of injury.  As claimant has failed to show 
 
            an injury arising out of and in the course of her employment 
 
            causing additional permanent injury, this cause must be 
 
            resolved in favor of defendants.  Other issues are thereby 
 
            rendered moot.
 
            
 
                           
 
            
 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            order
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 Claimant shall take nothing from this proceeding.
 
            
 
                 The costs of this action are assessed to defendants 
 
            pursuant to rule 343 IAC 4.33.
 
            
 
                 Signed and filed this ______ day of ____________, 1991.
 
            
 
                 
 
            
 
                 
 
                 
 
                                          ______________________________
 
                                          DAVID RASEY
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. James P. Hoffman
 
            Attorney at Law
 
            Middle Road
 
            P.O. Box 1087
 
            Keokuk, Iowa  52632
 
            
 
            Mr. John M. Bickel
 
            Mr. Douglas R. Oelschlaeger
 
            Attorneys at Law
 
            500 Firstar Bank Building
 
            P.O. Box 2107
 
            Cedar Rapids, Iowa  52406-2107
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                           1108.50
 
                           Filed September 27, 1991
 
                           DAVID RASEY
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            SUZANN SMITH,                 :
 
                                          :
 
                 Claimant,                :
 
                                          :         File No. 933597
 
            vs.                           :
 
                                          :      A R B I T R A T I O N
 
            FRUEHAUF CORP.,               :
 
                                          :         D E C I S I O N
 
                 Employer,                :
 
                                          :
 
            and                           :
 
                                          :
 
            CIGNA,                        :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
            1108.50
 
            Following bilateral carpal tunnel releases in 1981 and 1982, 
 
            claimant developed recurrent and intermittent symptoms for 
 
            years.
 
            However, her current impairment was not any different from 
 
            the probable, but unrated, impairment in 1981 and 1982.  
 
            Claimant was probably not compensated adequately at that 
 
            time, but that question cannot now be reviewed.  Claimant 
 
            took nothing, as temporary total disability was not at 
 
            issue.
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
            _____
 
                        :
 
            JAMES FITZWATER,      :
 
                        :
 
                 Claimant,   :
 
                        :
 
            vs.         :
 
                        :        File No. 933653
 
            BECHTEL CONSTRUCTION CORP.,     :
 
                        :          A P P E A L
 
                 Employer,   :
 
                        :        D E C I S I O N
 
            and         :
 
                        :
 
            CRUM AND FORSTER,     :
 
                        :
 
                 Insurance Carrier,    :
 
                 Defendants.      :
 
            ____________________________________________________________
 
            _____
 
            The record has been reviewed de novo on appeal.  The ruling 
 
            of the deputy filed September 23, 1992 is affirmed and is 
 
            adopted as the final agency action in this case.
 
            Defendants shall pay the costs of the appeal, including the 
 
            preparation of the hearing transcript.
 
            Signed and filed this ____ day of February, 1993.
 
            
 
            
 
            
 
            
 
                      ________________________________
 
                               BYRON K. ORTON
 
                          INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. John Broz
 
            Attorney at Law
 
            P.O. Box 5245
 
            Cedar Rapids, Iowa 52406
 
            
 
            Mr. Harry W. Dahl
 
            Attorney at Law
 
            974 73rd St., Ste 16
 
            Des Moines, Iowa 50312
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
            9998
 
            Filed February 19, 1993
 
            Byron K. Orton
 
            WRM
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
            _____
 
                        :
 
            JAMES FITZWATER,      :
 
                        :
 
                 Claimant,   :
 
                        :
 
            vs.         :
 
                        :        File No. 933653
 
            BECHTEL CONSTRUCTION CORP.,     :
 
                        :          A P P E A L
 
                 Employer,   :
 
                        :        D E C I S I O N
 
            and         :
 
                        :
 
            CRUM AND FORSTER,     :
 
                        :
 
                 Insurance Carrier,    :
 
                 Defendants.      :
 
            ____________________________________________________________
 
            _____
 
            
 
            
 
            9998
 
            
 
                 Summary affirmance of deputy's decision filed September 
 
            23, 1992.
 
            
 
            
 
 
            
 
         
 
            
 
            
 
            
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                      
 
            GARY GERDES,   
 
                      
 
                 Claimant, 
 
                      
 
            vs.       
 
                                                File No. 933709
 
            I-GO VAN & STORAGE CO.,  
 
                                            A R B I T R A T I O N
 
                 Employer, 
 
                                                D E C I S I O N
 
            and       
 
                      
 
            VANLINER INSURANCE COMPANY,   
 
                      
 
                 Insurance Carrier,  
 
                 Defendants.    
 
            ___________________________________________________________
 
                            STATEMENT OF THE CASE
 
            
 
                 This is a proceeding in arbitration brought by 
 
            claimant, Gary Gerdes, against his employer, I-Go Van and 
 
            Storage Company, and its insurance carrier, Vanliner 
 
            Insurance Company.  Mr. Gerdes sustained an injury on 
 
            November 7, 1989 which arose out of and in the course of his 
 
            employment.  
 
            
 
                 The record in this case consists of the testimony of 
 
            the claimant; Ira Menin, general manager; and George Brian 
 
            Paprocki, a vocational rehabilitation expert; claimant's 
 
            exhibit 1, which includes Roman numerals I-VIII; and, 
 
            defendants' exhibits 1-21. The matter came on for hearing 
 
            before the undersigned deputy industrial commissioner on 
 
            June 21, 1993.
 
            
 
                 It should be noted that the exhibits were replete with 
 
            duplicative reports and records.
 
            
 
                                     ISSUES 
 
            
 
                 In accordance with the prehearing report, the parties 
 
            submit the following issues for resolution:
 
            
 
                 1.  Whether claimant's injury has caused a permanent 
 
            disability;
 
            
 
                 2.  Whether claimant is entitled to temporary total, 
 
            temporary partial disability or healing period benefits from 
 
            April 24, 1992 through April 27, 1992; August 20, 1992 
 
            through August 27, 1992; and March 4, 1993 through March 12, 
 
            1993 for a total of 23 days; and, 
 
            
 
                 3.  Whether claimant is entitled to permanent partial 
 
            disability benefits.
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 The undersigned deputy, having reviewed all of the 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            evidence received finds the following facts:
 
            
 
                 Claimant, Gary Gerdes was born on July 25, 1962.  At 
 
            the time of the hearing, he was 30 years of age.  He is 
 
            single and has no children.  Claimant is approximately 6' 5" 
 
            tall, and weighs 260 pounds.
 
            
 
                 In 1976, Mr. Gerdes completed the eighth grade in 
 
            junior high school.  He offered that he was an average 
 
            student, but because he did not enjoy school, he quit when 
 
            he was in the ninth grade.  He has not obtained his General 
 
            Equivalency Diploma (GED), nor has he received any other 
 
            type of formal training of education.  Claimant did not 
 
            serve in the military.
 
            
 
                 From 1976-1983, claimant mowed lawns and shoveled snow 
 
            in order to earn spending money.  In 1983, with the help of 
 
            a friend, he was able to secure a position as a part-time 
 
            and on-call mover with the defendant, I-Go Van and Storage 
 
            Company.  Later on, claimant was able to obtain status as a 
 
            full-time employee.  
 
            
 
                 His position as a mover requires claimant to pack 
 
            household goods, furniture, appliances, books, china and 
 
            bedding.  The boxes weigh an average of 40-50 pounds, while 
 
            the furniture and appliances can weigh 200-700 or more 
 
            pounds.  At times, claimant is called upon to drive a pickup 
 
            truck loaded with packing materials to various job sites.  
 
            The truck is owned by the company.
 
            
 
                 As a mover, claimant is required to perform an 
 
            extensive amount of bending, lifting, twisting, stooping, 
 
            pushing, pulling and above-the-shoulders reaching 
 
            activities.  His job is heavy physical labor.  In November 
 
            of 1989, he was earning $7.50/hour.
 
            
 
                 On November 7, 1989, claimant was attempting to lift 
 
            (with help from another co-worker) a printing press weighing 
 
            approximately 600 pounds.  In order to perform this feat, 
 
            the workers used straps provided by the defendant.  The 
 
            cloth straps were used for heavier items, and were place 
 
            under the object while being placed over the workers' 
 
            shoulders.  When claimant lifted his end, he immediately 
 
            felt pain in his back on the lower right side.  Claimant 
 
            continued to help lift the press and load it into the truck, 
 
            but left early.  He reported the incident to the employer's 
 
            office manager/secretary.
 
            
 
                 After claimant left work, he went to see a 
 
            chiropractor, James Bjork, in Sioux City, Iowa.  He 
 
            performed an examination and administered adjustments.  
 
            Claimant believes he returned to Dr. Bjork on two other 
 
            occasions after his initial visit.  (The undersigned is 
 
            unable to locate Dr. Bjork's records within the evidence 
 
            submitted by the parties).
 
            
 
                 Next, claimant went to see his family physician, H. 
 
            Norton Hirsch, M.D.  Initially, Dr. Hirsch believed that 
 
            claimant was suffering from a back strain.  He prescribed 
 
            Motrin and x-rays of the lumbar spine.  The results of the 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            x-rays were negative.   (Claimant's exhibit 1, p. 3; pp. 
 
            32-33; Defendants' exhibit 13).  In December of 1989, he 
 
            prescribed physical therapy, which claimant undertook for 
 
            several months.  (Cl. ex. 1, p. 3).
 
            
 
                 In February of 1990, claimant underwent an epidural 
 
            lumbar flood.  (Cl. ex. 1, pp. 34-35; Def. ex. 6).  
 
            Eventually, Dr. Hirsch ordered an MRI scan, an EMG and nerve 
 
            conduction studies, and another epidural lumbar flood.  (Cl. 
 
            ex. 1, pp. 32-41; Def. exs. 7, 8, 9 and 13).
 
            
 
                 Additionally, Dr. Hirsch prescribed Motrin, and sent 
 
            claimant to the Marian Heath Center for additional x-rays, 
 
            rehabilitation and a back brace.  (Cl. ex. 1, pp. 4-5; pp. 
 
            32-33; Def. exs. 4 and 5).  
 
            
 
                 Beginning in March of 1990 and continuing until April 
 
            of 1990, claimant received medical attention from Kevin 
 
            Liudahl, M.D.  His examination revealed that claimant 
 
            displayed moderate decreased range of motion of the lower 
 
            lumbar spine, with tenderness along the right lumbar 
 
            paraspinous muscles.  Straight leg raising tests were 
 
            negative, and Dr. Liudahl's diagnosis was that of chronic 
 
            mechanical low back pain.  He ordered an MRI scan, which 
 
            showed a right lateral herniated disc at the L5-S1 level as 
 
            well as disc bulging at the L4-5 level and marked 
 
            degenerative disc disease at the L4-5 and L5-S1 levels.  An 
 
            EMG and nerve conduction velocities tests showed 
 
            radiculopathy on the right side at the L5 level.  An 
 
            examination revealed increased range of motion in the low 
 
            back, and claimant was released to return to light duty 
 
            work, which meant he was not to lift more than 25 pounds.  
 
            Claimant rejected an epidural flood.  Claimant was referred 
 
            to Ralph Reeder, M.D., for a second opinion.  (Cl. ex. 1, 
 
            pp. 12-13).  Eventually, Dr. Liudahl stated that he believed 
 
            surgical intervention might be required.  (Cl. ex. 1, p. 
 
            11).  
 
            
 
                 Dr. Reeder's report, dated May 17, 1990, indicates that 
 
            his review of the MRI scan showed a bulge of disk material 
 
            at the L5-S1 space.  Nerve root compression was not 
 
            confirmed, but Dr. Reeder noted mild loss of water content 
 
            in the L4-5 disk and in the L2-3 disk.  Claimant was 
 
            neurologically oriented, but exhibited pain in the hip with 
 
            forward flexion.  Extension and lateral rotation was normal, 
 
            and straight leg raising tests yielded normal responses.  
 
            Dr. Reeder believed that claimant suffered mechanical low 
 
            back pain with subtle signs of arthritis in the lumbar 
 
            spine, a condition which was also confirmed on the MRI scan.  
 
            He did not recommend surgery, but rather an extended 
 
            physical therapy program.  (Cl. ex. 1, pp. 14-15; Def. ex. 
 
            10).  
 
            
 
                 Claimant returned to Dr. Hirsch, and received treatment 
 
            in June of 1990.  The records indicate that claimant was 
 
            referred to Back Care, Inc., where he was to undergo a three 
 
            week program, which began in June of 1990. (Cl. ex. 1, p. 
 
            6).
 
            
 
                 At Back Care, Inc., claimant was followed by Leonel 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            Herrera, M.D.  After a complete examination, Dr. Herrera 
 
            found that claimant suffered from bilateral foot drop and 
 
            bilateral atrophy of the small muscles in the feet and lower 
 
            legs.  
 
            
 
                 He diagnosed recurrent lumbosacral strain and 
 
            deconditioning syndrome, and suspected that the bilateral 
 
            foot drop was an inherited condition.  He recommended 
 
            isokinetic, isometric, and isotonic back extensor 
 
            rehabilitation three times per week for four weeks.  (Cl. 
 
            ex. 1, pp. 16-17; Def. ex. 11).  Additional reports from Dr. 
 
            Herrera, written in August, September and October of 1990 
 
            verify that after 24 sessions, claimant has reached a 
 
            plateau and was released to begin a home exercising program.  
 
            This program included using a Lifeline gym, a walking 
 
            program of six miles per day and a return to light duty 
 
            work.  Light duty work was defined as part-time work five 
 
            days per week, with increasing hours so that by the fourth 
 
            week claimant was working full-time over a five-day work 
 
            week.  He was not to lift more than 50 pounds for four 
 
            weeks, although Dr. Herrera did not believe this would be a 
 
            permanent weight restriction.  Claimant was to avoid 
 
            repetitive bending at the waist, employ proper body 
 
            mechanics, and continue use of a waist support.  (Cl. ex. 1, 
 
            pp. 18-19; Def. ex. 11).
 
            
 
                 In September of 1990, Dr. Herrera recommended an 
 
            increase in claimant's lifting restriction to 100 pounds.  
 
            He also recommended that claimant try to work up to eight to 
 
            ten hour work days.  (Cl. ex. 1, p. 20).  
 
            
 
                 After what appears to be a minor setback in early 
 
            October of 1990, claimant was released to return to full 
 
            duty work on a full time basis with a 100 pound lifting 
 
            restriction.  Dr. Herrera stated that claimant had sustained 
 
            a 5 percent permanent partial disability due to chronic and 
 
            recurrent lumbosacral strains.  He did not anticipate a 
 
            reduction in claimant's employability due to his physical 
 
            condition.  (Cl. ex. 1, pp. 21-22).
 
            
 
                 In October of 1990, claimant was evaluated by Dennis 
 
            Johnson, M.D., an orthopaedic specialist, in Sioux Falls, 
 
            South Dakota.  The report indicates that claimant had low 
 
            back and right leg pain.  An orthopaedic examination 
 
            confirmed that claimant's diagnosis was a resolved right L5 
 
            radiculopathy secondary to a herniated disc at the L5-S1 
 
            level with objective evidence of degenerative disc disease 
 
            at the L4-5 and L5-S1 levels.  Dr. Johnson recommended a 
 
            functional capacities assessment (FCA) to determine work 
 
            activities and restrictions.  He concurred that no surgical 
 
            intervention was necessary, and felt claimant had reached 
 
            maximum medical improvement.  He recommended a 50 pound 
 
            lifting restriction and a work hardening program, with 
 
            ultimate restrictions set by the results of the FCA.  He 
 
            assigned an 11 percent permanent impairment due to the 
 
            herniated nucleus pulposus at the L5-S1 level and 
 
            accompanying L5 radiculopathy, and restricted range of 
 
            motion of the lumbar spine.  (Cl. ex. 1, pp. 23-24; Def. ex. 
 
            12).
 
            
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
                 It is noted that from August through November of 1990, 
 
            Intracorp followed claimant's medical treatment and 
 
            progress.  (Def. ex. 15-20).  
 
            
 
                 Apparently, claimant was able to successfully return to 
 
            his work until July 15, 1991.  On this date, he presented to 
 
            Horst Blume, M.D. with complaints of pain in the low back on 
 
            the right side and centrally as well as pain in the right 
 
            hip.  Claimant's history indicates that he believed these 
 
            symptoms were associated with the work injury of November 7, 
 
            1989.  Dr. Blume performed an examination, and found that 
 
            claimant was suffering from a centrally protruded disc at 
 
            the L5-S1 level, degenerated disc disease at L2-3, prominent 
 
            facet joints at L5-S1, and possible nerve irritation at 
 
            L5-S1.  Dr. Blume recommended conservative treatment in the 
 
            form of Colchicine injections and physical therapy.  Based 
 
            on his examination, he believed claimant had sustained a 15 
 
            percent permanent partial impairment due to the work 
 
            accident sustained on November 7, 1989.  (Cl. ex. 1, pp. 
 
            25-27).  
 
            
 
                 Evidently claimant was able to satisfactorily perform 
 
            his job duties until April 24, 1992, when he returned to his 
 
            family physician, Dr. Hirsch, for two additional 
 
            appointments.  He was given Flexeril, and was off of work 
 
            for several days due to this flare-up of his physical 
 
            condition.  (Cl. ex. 1, p. 7). 
 
            
 
                 In August of 1992, claimant again visited Dr. Hirsch on 
 
            several occasions, and the records indicate that he 
 
            "[r]e-injured back at work."  (Cl. ex. 1, p. 8)  Additional 
 
            Flexeril was prescribed, and claimant stayed off of work for 
 
            a total of eight days.  (Cl. ex. 1, p. 8).
 
            
 
                 Finally, claimant again encountered either a recurrence 
 
            of symptoms or reinjured his back in March of 1993.  He 
 
            received additional treatment from Dr. Hirsch, and stayed 
 
            off of work a total of 11 days.  (Cl. ex. 1, p. 9-10).  He 
 
            also returned to Dr. Blume, who performed testing on a 
 
            computerized exercise system called the ARIEL system.  While 
 
            the undersigned was provided with a description of the 
 
            system, results from the testing undergone by claimant, if 
 
            any, were not provided.  (Cl. ex. 1, pp. 28-30).
 
            
 
                 Other exhibits include defendants' exhibit 2, a copy of 
 
            claimant's time records for 1990, 1991 and 1992.  
 
            
 
                 Ira Menin, general manager for the employer, also 
 
            testified.  His job duties include coordinating the dispatch 
 
            operations of the office, supervising salespeople, hiring 
 
            and disciplining employees.  
 
            
 
                 Mr. Menin has known claimant for more than eight years, 
 
            and acts as his supervisor if claimant is working in the 
 
            warehouse facility.  Mr. Menin confirmed that claimant is a 
 
            very dependable and prompt employee who does as he is told 
 
            and follows orders.  He stated that claimant was honest, and 
 
            there had been no occasions where claimant had been 
 
            disciplined.  Mr. Menin also noted that claimant had shown 
 
            no initiative to move up within the organization.  
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            
 
                 Mr. Menin also stated that the company requires movers, 
 
            packers and drivers be able to lift 100 pounds, so he did 
 
            not feel claimant was restricted to successfully perform any 
 
            of his job duties.  
 
            
 
                 Although the defendants had refused to pay claimant for 
 
            the time he was temporarily off of work, Mr. Menin testified 
 
            that he knew claimant had taken time off of work due to a 
 
            flare-up of his condition.  He recognized that because of 
 
            the work injuries, claimant had sought medical treatment.  
 
            The attorney for the defendants also stated that the 
 
            employer/insurance carrier were willing to now pay claimant 
 
            for the time he was off of work.  
 
            
 
                 George Brian Paprocki also testified at the hearing.  
 
            He is a private vocational consultant, and after reviewing 
 
            claimant's medical records, he believed claimant had 
 
            sustained no industrial disability.
 
            
 
                         ANALYSIS AND CONCLUSIONS OF LAW
 
            
 
                 The first issue to address is whether claimant has 
 
            sustained a permanent disability due to the work-related 
 
            accident on November 7, 1989.
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury is a proximate 
 
            cause of the disability on which the claim is based.  A 
 
            cause is proximate if it is a substantial factor in bringing 
 
            about the result; it need not be the only cause.  A 
 
            preponderance of the evidence exists when the causal 
 
            connection is probable rather than merely possible.  
 
            Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa 
 
            1980); Holmes v. Bruce Motor Freight, Inc., 215 N.W.2d 296 
 
            (Iowa 1974).
 
            
 
                 The question of causal connection is essentially within 
 
            the domain of expert testimony.  The expert medical evidence 
 
            must be considered with all other evidence introduced 
 
            bearing on the causal connection between the injury and the 
 
            disability.  The weight to be given to any expert opinion is 
 
            determined by the finder of fact and may be affected by the 
 
            accuracy of the facts relied upon by the expert as well as 
 
            other surrounding circumstances.  The expert opinion may be 
 
            accepted or rejected, in whole or in part.  Sondag v. Ferris 
 
            Hardware, 220 N.W.2d 903 (Iowa 1974); Anderson v. Oscar 
 
            Mayer & Co., 217 N.W.2d 531 (Iowa 1974); Bodish v. Fischer, 
 
            Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).
 
            
 
                 Claimant has been followed by many medical 
 
            practitioners, several of who may be considered his treating 
 
            physicians.  Of those physicians who rendered opinions 
 
            regarding claimant's physical status, all were of the 
 
            opinion that he did sustain some permanent partial 
 
            impairment due to the work-related incident, and the lasting 
 
            effects.  These impairment ratings include the following 
 
            figures:  5 percent impairment assessment from Dr. Herrera 
 
            in October of 1990; 11 percent permanent impairment from Dr. 
 
            Johnson in October of 1990, and a 15 percent permanent 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            impairment from Dr. Blume in July of 1991.  
 
            
 
                 Given these assessments, and the fact that no medical 
 
            personnel stated that claimant had fully recovered from the 
 
            November 7, 1989 incident, there can be no serious argument 
 
            that he did not sustain some permanent impairment due to the 
 
            incident.  
 
            
 
                 As a result, it is found that claimant has shown by a 
 
            preponderance of the evidence that he sustained a permanent 
 
            injury due to the work-related incident of November 7, 1989.  
 
            
 
                 The next issue to be addressed is whether claimant is 
 
            entitled to permanent partial disability benefits.
 
            
 
                 Having found that claimant sustained a permanent 
 
            disability, and because his injury was to the body as a 
 
            whole, an evaluation of his industrial disability is 
 
            warranted.
 
            
 
                 Functional impairment is an element to be considered in 
 
            determining industrial disability which is the reduction of 
 
            earning capacity, but consideration must also be given to 
 
            the injured employee's age, education, qualifications, 
 
            experience and inability to engage in employment for which 
 
            the employee is fitted.  Olson v. Goodyear Serv. Stores, 255 
 
            Iowa 1112, 125 N.W.2d 251 (1963); Barton v. Nevada Poultry, 
 
            253 Iowa 285, 110 N.W.2d 660 (1961).
 
            
 
                 A finding of impairment to the body as a whole found by 
 
            a medical evaluator does not equate to industrial 
 
            disability.  Impairment and disability are not synonymous.  
 
            The degree of industrial disability can be much different 
 
            than the degree of impairment because industrial disability 
 
            references to loss of earning capacity and impairment 
 
            references to anatomical or functional abnormality or loss.  
 
            Although loss of function is to be considered and disability 
 
            can rarely be found without it, it is not so that a degree 
 
            of industrial disability is proportionally related to a 
 
            degree of impairment of bodily function.
 
            
 
                 Factors to be considered in determining industrial dis
 
            ability include the employee's medical condition prior to 
 
            the injury, immediately after the injury, and presently; the 
 
            situs of the injury, its severity and the length of the 
 
            healing period; the work experience of the employee prior to 
 
            the injury and after the injury and the potential for 
 
            rehabilitation; the employee's qualifications 
 
            intellectually, emotionally and physically; earnings prior 
 
            and subsequent to the injury; age; education; motivation; 
 
            functional impairment as a result of the injury; and 
 
            inability because of the injury to engage in employment for 
 
            which the employee is fitted.  Loss of earnings caused by a 
 
            job transfer for reasons related to the injury is also 
 
            relevant.  Likewise, an employer's refusal to give any sort 
 
            of work to an impaired employee may justify an award of 
 
            disability.  McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 
 
            (Iowa 1980).  These are matters which the finder of fact 
 
            considers collectively in arriving at the determination of 
 
            the degree of industrial disability.
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            
 
                 There are no weighting guidelines that indicate how 
 
            each of the factors are to be considered.  Neither does a 
 
            rating of functional impairment directly correlate to a 
 
            degree of industrial disability to the body as a whole.  In 
 
            other words, there are no formulae which can be applied and 
 
            then added up to determine the degree of industrial 
 
            disability.  It therefore becomes necessary for the deputy 
 
            or commissioner to draw upon prior experience as well as 
 
            general and specialized knowledge to make the finding with 
 
            regard to degree of industrial disability.  See Christensen 
 
            v. Hagen, Inc., Vol. 1 No. 3 State of Iowa Industrial 
 
            Commissioner Decisions 529 (App. March 26, 1985); Peterson 
 
            v. Truck Haven Cafe, Inc., Vol. 1 No. 3 State of Iowa 
 
            Industrial Commissioner Decisions 654 (App. February 28, 
 
            1985).
 
            
 
                 Compensation for permanent partial disability shall 
 
            begin at the termination of the healing period.  
 
            Compensation shall be paid in relation to 500 weeks as the 
 
            disability bears to the body as a whole.  Section 85.34.
 
            
 
                 At the time of the hearing, claimant was 30 years of 
 
            age.  His formal education ended when claimant was only 14 
 
            years of age, as he quit school in 1976 during the ninth 
 
            grade.  
 
            
 
                 Claimant's formal work history has been with the 
 
            defendant employer.  His position as a mover has required 
 
            him to use his back extensively in performing most of his 
 
            assigned duties.  Unfortunately, claimant now sports a 
 
            permanent disability to his back.  Currently, he earns 
 
            $7.60/hour.
 
            
 
                 Claimant's has followed all instructions from all of 
 
            the medical personnel associated with his case.  In so 
 
            doing, he has been able to return to his full-time job with 
 
            the employer, and he has been able to perform his job 
 
            successfully, but has some limitations to the activities he 
 
            can perform, and now must rely upon co-workers to help with 
 
            certain tasks. 
 
            
 
                 Much to the employer's credit, they have continued to 
 
            employ claimant, and have been able to accommodate any 
 
            restrictions he may have.  In fact, they have encouraged 
 
            claimant to undergo additional training, at the company's 
 
            expense, so that he can become a driver for the company.  
 
            This would improve both his hourly rate as well as his job 
 
            status, relieving some of the physical labor now required of 
 
            him.  
 
            
 
                 Unfortunately, claimant has not shown any interest in 
 
            gaining additional training, and appeared quite content in 
 
            his current position.  This is true even though he 
 
            understands that future flare-ups of his back condition may 
 
            occur.  
 
            
 
                 Claimant's condition has not warranted surgery, and 
 
            while he has undergone various treatment modalities, he has 
 
            gained extensive benefit from the management of his medical 
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            condition.  
 
            
 
                 After considering all of the factors enumerated above, 
 
            it is found that claimant has sustained a 10 percent 
 
            industrial disability.  
 
            
 
                                      ORDER
 
            
 
                 THEREFORE IT IS ORDERED:
 
            
 
                 That defendants shall pay unto claimant healing period  
 
            benefits  at the rate of one hundred fourteen and 18/100 
 
            dollars ($114.18) from April 24, 1992 through April 27, 
 
            1992; from August 20, 1992 through August 27, 1992; and from 
 
            March 4, 1993 through March 12, 1993, for a total of 
 
            twenty-three (23) days;
 
            
 
                 That defendants shall pay claimant fifty (50) weeks of 
 
            permanent partial disability benefits at the rate of one 
 
            hundred fourteen and 18/100 dollars ($114.18) commencing on 
 
            October 17, 1990.
 
            
 
                 That defendants shall pay accrued weekly benefits in a 
 
            lump sum and shall receive credit against the award for 
 
            weekly benefits previously paid.
 
            
 
                 That defendants shall pay interest on benefits awarded 
 
            herein as set forth in Iowa Code section 85.30.
 
            
 
                 That defendants shall pay the costs of this proceeding, 
 
            pursuant to rule 343 IAC 4.33.
 
            
 
                 That defendants shall file an activity report upon 
 
            payment of this award as requested by this agency, pursuant 
 
            to rule 343 IAC 3.1.
 
            
 
     
 
            
 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
            Signed and filed this ____ day of July, 1993.
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          PATRICIA J. LANTZ
 
                                          DEPUTY INDUSTRIAL COMMISSIONER    
 
            
 
            Copies to:
 
            
 
            Mr. Gary L. Johansen
 
            Attorney at Law
 
            508 Davidson Bldg.
 
            Sioux City, IA  51101
 
            
 
            Ms. Becky S. Knutson
 
            Attorney at Law
 
            2300 Financial Center
 
            Des Moines, IA  50309
 
            
 
            
 
 
            
 
 
 
 
 
                
 
 
 
                                                 5-1803
 
                                                 Filed July 20, 1993
 
                                                 Patricia J. Lantz
 
            
 
                   BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
            GARY GERDES,   
 
                      
 
                 Claimant, 
 
                      
 
            vs.       
 
                                              File No. 933709
 
            I-GO VAN & STORAGE CO.,  
 
                                          A R B I T R A T I O N
 
                 Employer, 
 
                                              D E C I S I O N
 
            and       
 
                      
 
            VANLINER INSURANCE COMPANY,   
 
                      
 
                 Insurance Carrier,  
 
                 Defendants.    
 
            ___________________________________________________________
 
            
 
            5-1803
 
            Claimant, who worked as a packer/mover injured his back and 
 
            sustained permanent impairment.
 
            No surgical intervention was necessary, and the employer 
 
            accommodated claimant's limitations.
 
            Claimant awarded 10 percent industrial disability.
 
            
 
 
 
 
 
 
 
 
 
 
 
 
 
 
            BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
________________________________________________________________
 
MARK A SMITH, 
 
          
 
     Claimant, 
 
          
 
vs.       
 
                                       File No. 934687
 
MORGAN MEREDITH MFG,    
 
                                    A R B I T R A T I O N
 
     Employer, 
 
                                       D E C I S I O N
 
and       
 
          
 
MILWAUKEE INSURANCE,    
 
          
 
     Insurance Carrier,  
 
     Defendants.    
 
________________________________________________________________
 
                     STATEMENT OF THE CASE
 
 
 
This is a proceeding in arbitration brought by Mark A. Smith against 
 
Morgan Meredith Manufacturing, Inc., his former employer, based upon 
 
his bilateral hernia condition.  The disputed issues are whether the 
 
condition is an injury that arose out of and in the course of 
 
employment and, in particular, whether the employment caused the hernia 
 
condition to develop.  Claimant seeks compensation for healing period, 
 
permanent partial disability and medical expenses associated with three 
 
hernia repair surgeries.
 
 
 
The case was heard at Cedar Rapids, Iowa on February 9, 1995.  The 
 
record consists of testimony from Mark A. Smith and Morgan Karns.  The 
 
record also contains claimant's exhibits 1 through 6 and defendants' 
 
exhibits A through F.  
 
 
 
                      FINDINGS OF FACT
 
 
 
Mark A. Smith is a 30-year-old man who graduated from high school and 
 
has attended approximately two years of formal education beyond high 
 
school.
 
 
 
The claimant at one time held a professional pilot's license.  He has 
 
worked in a variety of positions including retail sales.  He was 
 
employed servicing aircraft from April 1986 through October 1989.  That 
 
work included loading and unloading baggage in aircraft, fueling 
 
aircraft and miscellaneous other activities.  (Exhibit D, pages 4-5)
 
 
 
Claimant's prior health history is remarkable for psychiatric ailments 
 
which were diagnosed in 1987 or 1988.  The diagnoses have included 
 
generalized anxiety disorder, schizoid personality disorder and 
 
depression.  (Exs. A-1, p. 2; A-2, pp. 38-39)  He was treated with 
 
psychotherapy and medications including Xanax and imipramine.  (Ex. 
 
A-1, pp. 1-18)  The medications used to treat his psychiatric problems 
 
resulted in loss of his pilot's license.  There is nothing in the 
 
record which indicates that claimant had ever expressed complaints 
 
consistent with hernias or been diagnosed with hernias prior to 
 
February 1990.  It would be expected that hernias would have been 
 
noted if they had been present at the time he received physical 
 
examinations for his pilot's license.  Claimant testified at 
 
hearing that prior to 1990 no one had ever told him that he had 
 
hernias.  
 
 
 
Claimant's work at Morgan Meredith Manufacturing does not appear to 
 

 
 
 
 
 
 
 
 
 
have been particularly heavy.  A great deal of his work involved 
 
handling print screens which were mounted on aluminum frames.  The 
 
weight is shown by the evidence to have been approximately 23 pounds.  
 
The work also required that the screens be handled in a way in which 
 
the weight was held with his arms in a forward, outstretched position.  
 
The work also involved moving a ramp on the loading dock, lifting 
 
wooden pallets, lifting boxes stacked with strips of paper and 
 
using a pallet jack.  The video tape that is in evidence, exhibit 
 
C, provides an accurate representation of those parts of the job 
 
which are shown on the video tape except that the pallet jack shown 
 
is electrically powered and self-propelled.  The one claimant used 
 
was totally manual and had to be pushed and pulled manually.  
 
 
 
According to claimant he recalled a specific incident of injury on 
 
February 5, 1990.  He related that he had been lifting a lot of screens 
 
during the preceding two weeks and that a lot of the screens were 
 
larger than normal.  He stated that some were steel, weighing 
 
approximately 60 pounds, rather than the usual aluminum screens 
 
weighing 23 pounds.  Claimant's testimony is contradicted by testimony 
 
from Morgan G. Karns, co-owner of the business, in that he stated that 
 
all screen frames were aluminum and none weighed 60 pounds.  
 
 
 
Claimant stated that he developed a lot of pain 
 
and discomfort from the lifting but continued to work.  He stated that 
 
on that evening he hadn't noticed anything about his physical condition 
 
until going to bed at which time it was so bad that he was unable to 
 
sleep.  Claimant stated that he had done no lifting after work on that 
 
day.  On the following day, February 6, he reported the injury and 
 
asked to see a physician.  
 
 
 
Claimant was initially seen by Robert Veley, M.D., and was referred to 
 
Bruce E. Brown, M.D.  The physical examination showed claimant to have 
 
bilateral, inguinal hernias.  On February 23, 1990 claimant underwent 
 
bilateral, inguinal hernia repair surgery performed by Dr. Brown.  
 
While claimant was off work recuperating from the surgery he phoned the 
 
employer and resigned.  Morgan Karns testified that he had expected 
 
claimant to return to work after recuperating from the surgery.  Karns 
 
made no effort to cause claimant to reconsider his decision to 
 
resign.  Dr. Brown's note dated April 30, 1990 indicates that 
 
claimant was being seen in his final follow-up appointment following 
 
the hernia repairs, that they appeared quite solid and that claimant 
 
would be returning to full activity.  (Ex. 1, p. 4)  
 
 
 
Claimant obtained a job working as a bell captain for the Sheraton 
 
Hotel at Cedar Rapids.  The work involved room service, handling 
 
luggage and shuttling hotel guests.  In the fall of 1990 claimant began 
 
experiencing hernia symptoms again and returned to Dr. Brown.  
 
Bilateral recurrent hernias were found.  The right was surgically 
 
repaired on October 4, 1990.  (Ex. 2, pp. 5, 10)  The left was repaired 
 
on October 21, 1990.  (Ex. 2, pp. 6, 12)  Both repairs involved use of 
 
a Gortex soft tissue patch.  Dr. Brown's note of January 8, 1991 
 
indicates that claimant was being seen in a final follow-up after 
 
the hernia repair.  He found that the wounds were healed with no 
 
areas of recurrence.  (Ex. 2, p. 6)  On May 6, 1991 claimant 
 
obtained work with Rockwell-Collins.  He remained employed at 
 
Rockwell-Collins at the time of the hearing.
 
 
 
Claimant stated that after the surgeries in late 1990 he continued to 
 
have leg pain.  He complained of pain in his abdominal area in late 
 
1992.  At Rockwell-Collins claimant is involved with the assembly of 
 
circuit boards and works in a seated position.  The most he ever lifts 
 
is approximately five pounds.
 
 
 
Claimant stated at hearing that he developed pain in his abdominal area 
 
and at the joint of his leg in late 1992 and that by the end of 
 
December it was almost unbearable to sit.  He began seeking doctors' 
 
opinions about his problem and eventually was seen at the Mayo Clinic.  
 
On July 28, 1993 endoscopic hernia repair surgery was performed.  The 
 
hospital dismissal summary indicates that claimant was to return to 
 
work one week after the surgery.  (Ex. 4)  Mark A. Hogenson, M.D., 
 

 
 
 
 
 
 
 
 
 
claimant's personal physician, authorized him to return to 
 
restricted work effective August 16, 1993.  (Ex. 3, p. 15)  
 
In view of the light nature of his employment it is quite likely 
 
that he did so.  
 
 
 
Claimant has continued to complain of pain in his groin area.  He has 
 
been seen by a number of physicians.  None have found any physiological 
 
abnormality but there have been several indications that the pain 
 
complaints are related to his psychological condition.  (Exs. 3, p. 15; 
 
Ex. 5; Ex. A, p. 47, 49-53)  
 
 
 
On February 16, 1990 Dr. Brown issued a report addressing the cause of 
 
claimant's hernias.  He stated, "It is quite possible this may be work 
 
related, although as you know there is ongoing debate about hernia 
 
formation. . . . It is my opinion that certainly heavy activity may 
 
well precipitate hernia formation or their presentation."  In a later 
 
report dated March 16, 1990 Dr. Brown reported that he had reviewed 
 
claimant's job requirements as provided by claimant in exhibit B and 
 
felt that they would be potentially harmful.  There is no evidence 
 
from any physician in the record which suggests any source for 
 
claimant's hernia condition other than his employment.  When 
 
Dr. Brown found claimant's hernias to have reoccurred in August 
 
1990 he indicated that the new job was probably a problem and that 
 
claimant may have been returned to activity too soon following the 
 
original repair surgery that was performed in February 1990.
 
 
 
When evaluating the evidence it is noted that Dr. Brown appears to be 
 
using terms such as "quite possible," "may be" and "may have."  This 
 
terminology, by itself, appears to suggest nothing more than a mere 
 
possibility.  When read in context, however, it seems to suggest a 
 
rather strong possibly.  The ongoing debate about hernia formation 
 
refers to the theory that hernias are congenital rather than caused by 
 
stress, strain and exertion.  An important factor in this case is that 
 
this claimant, prior to February 1990, had no evidence of having 
 
a hernia.  It is further important that hernias are a condition 
 
which cannot be feigned.  They are objectively diagnosed by physical 
 
examination.  Twenty-three pounds does not sound like much weight 
 
but the strain of holding 23 pounds with one's arms outstretched 
 
forward is considerably more than the strain of holding 23 pounds 
 
against the trunk of one's body.  It would be expected that pushing 
 
a loaded manual pallet jack would involve considerable exertion 
 
and strain. 
 
 
 
It is found that in this case it is more likely than not that the 
 
bilateral hernias were caused by stress, strain and exertion that Mark 
 
A. Smith experienced in his employment at Morgan Meredith 
 
Manufacturing.  Hernias are commonly a result of cumulative trauma, 
 
rather than one specific incident.  The description that claimant gave 
 
in this case is consistent with a cumulative trauma type of onset.  To 
 
be certain, claimant likely is a person who had a congenital 
 
predisposition to develop hernias.  It was not until his employment 
 
with Morgan Meredith Manufacturing that the hernias actually developed.
 
 
 
After the first hernia surgery claimant returned to work as a bell 
 
captain.  As indicated by Dr. Brown that work probably was responsible 
 
for causing the hernias to recur.  It would appear that to the 
 
undersigned that work as a bell captain handling luggage would be 
 
heavier work than handling printing screens.  It likely would be 
 
lighter than handling loaded pallet jacks however.  It is found that 
 
the level of stress and exertion involved in work as a bell captain is, 
 
as a whole, every bit as physically exertional as the work claimant 
 
performed at Morgan Meredith Manufacturing, Inc.  While the 
 
original injury of February 1990 is a substantial factor in bringing 
 
about the second set of surgeries in 1990, and even the surgery 
 
performed in 1993, it is determined that the work as a bell captain 
 
is a greater factor and interrupts the chain of causation.  
 
 
 
                      CONCLUSIONS OF LAW
 
 
 
The party who would suffer loss if an issue were not established has 
 

 
 
 
 
 
 
 
 
 
 
 
 
 
the burden of proving that issue by a preponderance of the evidence.  
 
Iowa R. of App. P. 14(f).
 
 
 
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.  McDowell v. Town of 
 
Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. Cent. Tel. Co., 
 
261 Iowa 352, 154 N.W.2d 128 (1967).  The 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 circumstances of the injury.  Sheerin v. 
 
Holin Co., 380 N.W.2d 415 (Iowa 1986); McClure v. Union County, 
 
188 N.W.2d 283 (Iowa 1971).
 
 
 
The claimant has the burden of proving by a preponderance of the 
 
evidence that the injury is a proximate cause of the disability on 
 
which the claim is based.  A cause is proximate if it is a substantial 
 
factor in bringing about the result; it need not be the only cause.  A 
 
preponderance of the evidence exists when the causal connection is 
 
probable rather than merely possible.  Blacksmith v. All-American, 
 
Inc., 290 N.W.2d 348 (Iowa 1980); Holmes v. Bruce Motor Freight, Inc., 
 
215 N.W.2d 296 (Iowa 1974).
 
 
 
The question of causal connection is essentially within the domain of 
 
expert testimony.  The expert medical evidence must be considered with 
 
all other evidence introduced bearing on the causal connection between 
 
the injury and the disability.  The weight to be given to any expert 
 
opinion is determined by the finder of fact and may be affected by the 
 
accuracy of the facts relied upon by the expert as well as other 
 
surrounding circumstances.  The expert opinion may be accepted or 
 
rejected, in whole or in part.  Sondag v. Ferris Hardware, 
 
220 N.W.2d 903 (Iowa 1974); Anderson v. Oscar Mayer & Co., 
 
217 N.W.2d 531 (Iowa 1974); Bodish v. Fischer, Inc., 257 
 
Iowa 516, 133 N.W.2d 867 (1965).
 
 
 
When medical evidence shows causation to be possible that possibility 
 
may be buttressed with lay testimony showing that the condition did not 
 
preexist the injurious event to which it is attributed in order to show 
 
or establish causation.  Giere v. Aase Haugen Homes, Inc., 259 Iowa 
 
1065, 146 N.W.2d 911, 915 (1966)  It is concluded that claimant has 
 
carried the burden of proving that his bilateral hernia condition is an 
 
injury that arose out of and in the course of his employment with 
 
Morgan Meredith Manufacturing, Inc.
 
 
 
A substantial question exists with regard to whether the second set of 
 
surgeries in 1990 and the surgery in 1993 were proximately caused by 
 
the original injury.  Almost everything that happens to an individual 
 
at any point in time becomes a factor in everything which subsequently 
 
occurs to that individual.  In this case the work as a bell captain 
 
would, by its very nature, be sufficiently exertional to constitute an 
 
intervening cause which breaks the chain of causation that was 
 
initiated by the original injury.  
 
 
 
While there is a considerable possibility that the original 
 
injury may have played a part in bringing about the second and third 
 
sets of surgeries the intervening trauma is sufficient to break the 
 
chain of causation with Morgan Meredith Manufacturing, Inc.  Claimant 
 
was released to return to work without restriction.  While Dr. Brown 
 
has indicated that claimant may possibly have been released too soon 
 
such is only an indication of speculation.  
 
 
 
In the same report Dr. Brown also states that the work 
 
as a bell captain probably was responsible for the recurrence of the 
 
hernias.  Once the chain of causation was broken by the work as a bell 
 
captain it became extremely difficult to causally connect any 
 
subsequent problems back to the original injury.  It is therefore 
 
concluded that the defendants in this case are responsible for paying 
 
temporary total disability compensation to claimant for a period of 11 
 
3/7 weeks commencing February 9, 1990.  
 
 
 
The record in this case fails to prove that claimant sustained any 
 
permanent disability of any type as a result of the injury.  While he 
 
had preexisting psychological problems there is no indication that 
 
those psychological problems were permanently changed as a result of 
 

 
 
 
 
 
 
 
 
 
 
 
 
 
this injury.  There is no indication that the psychological problems 
 
rendered him disabled from performing gainful employment.  They are 
 
simply a preexisting condition that has continued to exist.
 
The employer shall furnish reasonable surgical, medical, dental, 
 
osteopathic, chiropractic, 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 78 
 
 (Review-reopen 1975).
 
 
 
Since the employer is liable for the injury and the first surgery, it 
 
is likewise liable for the expenses associated with that first surgery. 
 
 
 
 Those expenses were set forth with the hearing report and total 
 
$5,341.28.
 
 
 
Claimant has sought penalty benefits under the fourth paragraph of 
 
section 86.13.  In this case the evidence of causation was certainly 
 
the subject of a bona fide dispute.  In view of such the failure to 
 
voluntarily accept liability for the claim cannot be held to be 
 
unreasonable.  No penalty should be awarded.  
 
 
 
                             ORDER
 
 
 
IT IS THEREFORE ORDERED that defendants pay Mark A. Smith eleven and 
 
three-sevenths (11 3/7) weeks of compensation for temporary total 
 
disability at the stipulated rate of one hundred forty-four and 98/100 
 
dollars ($144.98) per week payable commencing February 9, 1990.  The 
 
entire amount thereof is past due and owing and shall be paid in a lump 
 
sum together with interest pursuant to section 85.30.  
 
 
 
It is further ordered that defendants pay the following medical 
 
expenses:
 
 
 
Dr. Veley            $    25.00     
 
EKJ Physicians           168.00     
 
CV Pathologists           75.00    
 
St. Luke's             3,041.83 
 
Anesthesiologists        396.00     
 
St. Luke's               472.45     
 
X-ray/Pres                26.81    
 
Dr. Brown              1,105.00 
 
Prescriptions             31.19             
 
TOTAL                 $5,341.28
 
 
 
It is further ordered that defendants have no liability for claimant's 
 
medical care or disability associated with hernia surgeries occurring 
 
subsequent to October 1, 1990.  
 
 
 
It is further ordered that the costs of this action are assessed 
 
against defendants.
 
 
 
Signed and filed this __________ day of April, 1995.
 
                              ______________________________
 
                              MICHAEL G. TRIER
 
                              DEPUTY INDUSTRIAL COMMISSIONER    
 
 
 
Copies to:
 
 
 
Mr. J. Richard Johnson
 
Attorney at Law
 
1715 1st Ave SE
 
PO Box 607
 
Cedar Rapids, IA  52406
 
 
 
Mr. James Peters
 
Attorney at Law
 
115 3rd St SE STE 1200
 
Cedar Rapids, IA  52401
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
     
 
                                  1402.20 1402.30 1108.50 
 
                                  52206 52209 51801 51803
 
                                  Filed April 20, 1995
 
                                  Michael G. Trier
 
 
 
            BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
________________________________________________________________
 
MARK A SMITH, 
 
          
 
     Claimant, 
 
          
 
vs.       
 
                                    File No. 934687
 
MORGAN MEREDITH MFG,    
 
                                 A R B I T R A T I O N
 
     Employer, 
 
                                    D E C I S I O N
 
and       
 
          
 
MILWAUKEE INSURANCE,    
 
          
 
     Insurance Carrier,  
 
     Defendants.    
 
________________________________________________________________
 
1402.20 1402.30 1108.50 
 
Defendants held liable for claimant's bilateral hernia condition but it 
 
was held that his subsequent employment created an intervening cause 
 
that relieved defendants from further care where the hernias recurred 
 
and required additional surgery on two separate occasions.  
 
 
 
52206 52209 51801 51803
 
Claimant awarded temporary total disability but no permanency.  Injury 
 
was held to be an aggravation of a preexisting congenital condition and 
 
a cumulative injury.
 
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         ____________________________________________________________
 
                                       :
 
         MATTIE PEARL CARTER,          :
 
                                       :
 
              Claimant,                :
 
                                       :
 
         vs.                           :
 
                                       :         File No. 934850
 
         BLUE STAR FOODS, INC.,        :
 
                                       :      A R B I T R A T I O N
 
              Employer,                :
 
                                       :         D E C I S I O N
 
         and                           :
 
                                       :
 
         SEDGWICK JAMES OF             :
 
         NEBRASKA, INC.,               :
 
                                       :
 
              Insurance Carrier,       :
 
              Defendants.              :
 
         ___________________________________________________________
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              This is a proceeding in arbitration upon the petition of 
 
         claimant, Mattie Pearl Carter, against her employer, Blue Star 
 
         Foods, Inc., and its insurance carrier, Sedgwick James, defen
 
         dants.  The case was heard on November 19, 1991 at the 
 
         Pottawatamie County Courthouse in Council Bluffs, Iowa.  The 
 
         record consists of the testimony of claimant.  The record also 
 
         consists of the testimony of Rodney A. Farley, cook; Lorelie 
 
         Croson, research technician; and Tony P. Burgett, LPN.  
 
         Additionally, the record consists of claimant's exhibits A-II and 
 
         defendants' exhibits 1-55.
 
         
 
                                      ISSUES
 
         
 
              The issues to be determined are:  1) Whether claimant sus
 
         tained an injury which arose out of and in the course of her 
 
         employment; 2) whether there is a causal relationship between the 
 
         alleged injury and any temporary or permanent disability; 3) 
 
         whether claimant is entitled to any healing period or permanent 
 
         partial disability benefits; and 4) whether claimant is entitled 
 
         to any medical benefits pursuant to section 85.27.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              The deputy, having heard the testimony and considered all 
 
         the evidence, finds:
 
         
 
              Claimant is 48 years old.  She is a high school dropout but 
 
         she had obtained her GED in 1969.  Claimant holds a cosmetology 
 
         license and she is able to style hair, cut hair and give mani
 
         cures.
 
         
 
               Claimant has had a wide variety of work experiences.  She 
 
         has worked as a cosmetologist.  She has performed various jobs in 
 
         the food service industry.  She has worked on an assembly line in 
 

 
         
 
         Page   2
 
         
 
         
 
         
 
         
 
         a soap factory.  She has a certificate in welding.  She has 
 
         engaged in welding and cleaning army tanks.
 
         
 
              Claimant commenced her employment with defendant-employer on 
 
         July 17, 1989.  She was hired to work on an assembly line where 
 
         she stood for nearly eight hours per day and where she used her 
 
         hands to remove rejected pot pies from the assembly line or to 
 
         add filling to undersized pies.
 
         
 
              Claimant testified that on November 9, 1989, she reported to 
 
         the nurse's station at approximately 9:00 a.m.  Claimant stated 
 
         she was suffering from an asthma attack.  She remained in the 
 
         nurse's office for approximately 30 minutes.  Then she returned 
 
         to the assembly line.  She testified she stood on the left side 
 
         of one end of the table.  She indicated she felt something strike 
 
         her from behind and then drag her from the left side of the table 
 
         to the right side.  Claimant testified she was struck by a "dough 
 
         tub on wheels" which was pulled by a male co-employee.  She 
 
         related that she asked that co-employee why he struck her, but 
 
         that he failed to reply.
 
         
 
              Claimant left her work station and proceeded to the nurse's 
 
         station where she was examined by Tony P. Burgett, LPN.  The 
 
         nurse's notes for that day indicated that:
 
         
 
              States hit in lumbar region of back while working on 
 
              line, no obvious injury noted, States unable to work, 
 
              gait labored, sent to Dr. Blair to R/0 injury, accident 
 
              unwhitnessed [sic], Mike White here.
 
         
 
         (Exhibit 49, page 2)
 
         
 
              Nurse Burgett testified at the hearing that she examined 
 
         claimant, but she observed no red marks, swelling, tenderness or 
 
         unusual body alignment.  The company nurse referred claimant to 
 
         Scott Blair, M.D., the corporate physician.
 
         
 
              Dr. Blair testified by deposition.  He examined claimant on 
 
         November 9, 1989.  His examination revealed that:
 
         
 
              Q. What did your examination reveal?
 
         
 
              A. Okay.  As far as the back was concerned, she had 
 
                 mild increased tone across the trapezius, which 
 
                 would be on both sides in the shoulder area; and 
 
                 then she had some mild increased tone in the right 
 
                 lumbar area.  And I noticed that there was no obvi
 
                 ous bruising or swelling in the lumbar area.  I men
 
                 tioned some ranges of motion here which appear to be 
 
                 pretty close to normal.  Reflexes in the legs at the 
 
                 knees and ankle were normal.  However, she did have 
 
                 markedly decreased strength bilaterally on inversion 
 
                 and eversion, but I felt that this was due to poor 
 
                 patient cooperation, which is -- is at least as doc
 
                 umented in the chart.
 
         
 
              Q. When you say mild increased tone, what does that 
 
                 mean?
 
         
 
              A. The muscles are in spasm, they're tighter than what 
 

 
         
 
         Page   3
 
         
 
         
 
         
 
         
 
                 they should be.
 
         
 
              Q. Okay.  Did you reach a diagnosis regarding her con
 
                 dition?
 
         
 
              A. Well, my assessment was right lumbar strain sec
 
                 ondary to stated trauma.
 
         
 
         (Exhibit B, page 5, lines 3-24)
 
         
 
              Dr. Blair also testified that:
 
         
 
              Q. Now, she indicated that she got hit in the back with 
 
                 a flour tank and as I -- did she tell you specifi
 
                 cally where she got hit?
 
         
 
              A. (Witness shakes head negatively.)
 
         
 
              Q. She didn't?
 
         
 
              A. I can't remember specifically, whether it was right 
 
                 or left side.
 
         
 
              Q. Did you examine the back, from the neck to the low 
 
                 back?
 
         
 
              A. Well, the trapezius is up here in the shoulder area.
 
         
 
              Q. Right.
 
         
 
              A. So obviously if I have a comment on the trapezius, 
 
                 the neck was examined, which I usually do, because 
 
                 all the muscles are interrelated.  And I also men
 
                 tioned that there was no obvious bruising, swelling 
 
                 and -- you know, noted in the lumbar area.
 
         
 
              Q. So you didn't see any red marks or visible evidence 
 
                 of the tank striking her back in either the neck or 
 
                 the lumbar area on your exam that day, as I under
 
                 stand it?
 
         
 
              A. That is correct.
 
         
 
              Q. And you did do a what, a range of motion exam for 
 
                 her?
 
         
 
              A. Uh-huh.
 
         
 
              Q. And did you tell us that the -- her ranges of motion 
 
                 were normal or nearly normal?
 
         
 
              A. Well, they're close to normal.
 
         
 
         (Ex. B, p. 8, l. 9 - p. 9, l. 10)
 
         
 
              Claimant did not return to work after November 9, 1989.  She 
 
         had not engaged in employment subsequent to her injury.  At the 
 
         time of the hearing, claimant was unemployed.
 
         
 
                                CONCLUSIONS OF LAW
 

 
         
 
         Page   4
 
         
 
         
 
         
 
         
 
         
 
              The party who would suffer loss if an issue were not estab
 
         lished has the burden of proving that issue by a preponderance of 
 
         the evidence.  Iowa R. App. P. 14(f).
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the alleged injury actually occurred and that 
 
         it arose out of and in the course of employment.  McDowell v. 
 
         Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. 
 
         Cent. Tel. Co., 261 Iowa 352, 154 N.W.2d 128 (1967).  The 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 
 
         (Iowa 1986); McClure v. Union County, 188 N.W.2d 283 (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 (Iowa 1980); 
 
         Holmes v. Bruce Motor Freight, Inc., 215 N.W.2d 296 (Iowa 1974).
 
         
 
              The question of causal connection is essentially within the 
 
         domain of expert testimony.  The expert medical evidence must be 
 
         considered with all other evidence introduced bearing on the 
 
         causal connection between the injury and the disability.  The 
 
         weight to be given to any expert opinion is determined by the 
 
         finder of fact and may be affected by the accuracy of the facts 
 
         relied upon by the expert as well as other surrounding circum
 

 
         
 
         Page   5
 
         
 
         
 
         
 
         
 
         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 368 
 
    
 
              A. Yes.
 
         
 
                  ...
 
         
 
              Q. All right.  Did you see her in contact with this 
 
                 dough tub at all?
 
         
 
              A. No, sir.
 
         
 
              Q. All right.  So after she told you that you -- that 
 
                 you hit her with the dough tub, is that what she 
 
                 said, you hit her with the dough tub?
 
         
 
              A. Yes.
 
         
 
              Q. Okay.  What other conversation did you have with 
 
                 her?
 
         
 
              A. None.
 
         
 
              Q. What did you do then?
 
         
 
              A. She went into the office and I went back to work.
 
         
 
              Q. Okay.  Did you have any contact with her after that 
 
                 time?
 
         
 
              A. No, sir.
 
         
 
              Q. Okay.  Did you talk to anybody else about this inci
 
                 dent since that time?
 
         
 
              A. One of the supervisors -- no, two of the supervisors 
 
                 there come and asked me what happened.
 
         
 
              Q. And what did you tell them?
 
         
 
              A. I just told them what -- what she told me, that I 
 
                 was pulling the dough tub back and she said I hit 
 
                 her and that was it.
 
         
 
         (Ex. A, p. 4, l. 18 - p. 5, l. 11 and p. 6, l. 7 - p. 7, l. 4)
 
         
 
              Lorelie Croson did not corroborate claimant's testimony.  
 
         Ms. Croson testified that she was in the area during the time in 
 
         question but she did not observe a dough tub striking claimant.  
 
         Nor did Ms. Croson observe claimant being pulled across the 
 
         floor.  Ms. Croson testified she saw nothing and heard nothing.
 
         
 
              Barb Suden testified by deposition.  She testified she was 
 
         present during the alleged incident but that she did not see or 
 
         hear anything unusual.
 
         
 
              Likewise, Nathan Lidgett testified that he was a supervisor 
 
         but that he did not see any events as described by claimant.  He 
 
         also testified he questioned Mr. Farley but that Farley denied 
 
         that he had struck claimant.
 
         
 

 
         
 
         Page   7
 
         
 
         
 
         
 
         
 
              Finally, there was the testimony of Jeannette Evans.  She 
 
         too denied seeing any of the events as alleged by claimant.
 
         
 
              The evidence was overwhelmingly against claimant.  No one 
 
         supported claimant's rendition of events.  There was also a lack 
 
         of supporting medical evidence which would verify any traumatic 
 
         incident.  There were no visible signs of a trauma with the 
 
         exception of muscle tightness.  There were no bruises.  There 
 
         were no marks or abnormalities observed by either the company 
 
         nurse or the company doctor.  Claimant had a normal gait.
 
         
 
              In light of the foregoing, there is insufficient evidence to 
 
         support claimant's claim.
 
         
 
              Therefore, it is the determination of the undersigned that 
 
         claimant takes nothing from these proceedings.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              Claimant takes nothing from these proceedings.
 
         
 
              Each party shall bear its own costs pursuant to rule 343 IAC 
 
         4.33.
 
         
 
         
 
         
 
              Signed and filed this ____ day of June, 1992.
 
         
 
         
 
         
 
         
 
         
 
                                                      
 

 
         
 
         Page   8
 
         
 
         
 
         
 
         
 
 
 
                                       -----------------------------
 
                                       MICHELLE A. McGOVERN
 
                                       DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. John M. McHale
 
         Attorney at Law
 
         233 Pearl Street
 
         P O Box 1078
 
         Council Bluffs, Iowa  51502
 
         
 
         Mr. John F. Thomas
 
         Mr. Ronald L. Comes
 
         Attorneys at Law
 
         One Central Park Plaza
 
         222 South Fifteenth Street #1100
 
         Omaha, Nebraska  68102
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                 1100; 1106
 
                                                 Filed June 18, 1992
 
                                                 MICHELLE A. McGOVERN
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            MATTIE PEARL CARTER,          :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :         File No. 934850
 
            BLUE STAR FOODS, INC.,        :
 
                                          :      A R B I T R A T I O N
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            SEDGWICK JAMES OF             :
 
            NEBRASKA, INC.,               :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
            1100; 1106
 
            
 
            Claimant was unable to prove that she had obtained an injury 
 
            which arose out of and in the course of her employment.  
 
            Claimant alleged she was struck in the back by a 450 pound 
 
            dough tub which a co-employee was pulling.  The alleged 
 
            perpetrator denied that the incident had occurred.  
 
            Co-employees in the same area denied seeing the alleged 
 
            event, or hearing any commotion.  A company investigation 
 
            took place which did not reveal any such occurrence.  
 
            Claimant did not have even one witness who would corroborate 
 
            her allegations.  Objective medical evidence did not support 
 
            claimant's allegations.