Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            BARBARA JENSEN,               :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 936563
 
            THE NISSEN COMPANY,           :
 
                                          :    A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            AETNA CASUALTY & SURETY CO.,  :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This is a proceeding in arbitration brought by Barbara 
 
            Jensen, claimant, against The Nissen Company, employer 
 
            (hereinafter referred to as Nissen), and Aetna Casualty & 
 
            Surety Company, insurance carrier, defendants, for workers' 
 
            compensation benefits as a result of an alleged injury on 
 
            July 5, 1988.  On March 20, 1991, a hearing was held on 
 
            claimant's petition and the matter was considered fully 
 
            submitted at the close of this hearing.
 
            
 
                 The parties have submitted a prehearing report of con
 
            tested issues and stipulations which was approved and 
 
            accepted as a part of the record of this case at the time of 
 
            hearing.  The oral testimony and written exhibits received 
 
            during the hearing are set forth in the hearing transcript.
 
            
 
                 According to the prehearing report, the parties have 
 
            stipulated to the following matters:
 
            
 
                 1.  On July 5, 1988, claimant received an injury which 
 
            arose out of and in the course of her employment with 
 
            Nissen.
 
            
 
                 2.  Claimant is not seeking additional temporary total 
 
            disability or healing period benefits beyond that which has 
 
            already been voluntarily paid by defendants.  It was agreed 
 
            that claimant has not work in any capacity since her retire
 
            ment from Nissen on April 20, 1990.
 
            
 
                 3.  If the injury is found to have caused permanent 
 
            disability, the type of disability is an industrial disabil
 
            ity to the body as a whole.
 
            
 
                 4.  Claimant's rate of weekly compensation is $209.62.
 
            
 
                 5.  With reference to the requested medical benefits, 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            it was agreed at hearing that the providers would testify 
 
            that the bills and treatment were fair and reasonable and 
 
            defendants are not offering contrary evidence.
 
            
 
                                      issues
 
            
 
                 The parties submitted the following issues for determi
 
            nation in this proceeding:
 
            
 
                   I.  The extent of claimant's entitlement to weekly 
 
            disability benefits; and,
 
            
 
                  II.  The extent of claimant's entitlement to medical 
 
            benefits.
 
            
 
                                 findings of fact
 
            
 
                 Having heard the testimony and considered all the evi
 
            dence, the deputy industrial commissioner finds as follows:
 
            
 
                 Claimant worked for Nissen for 17 years prior to her 
 
            retirement at age 62 on April 20, 1990.  This was an early 
 
            retirement and she will not receive benefits until age 65.  
 
            During her Nissen employment, claimant was assigned to the 
 
            slicing room working with hams.  At the time of her injury, 
 
            claimant was assigned to push and pull racks of meat from 
 
            the cooler and take meat off the racks and place them onto 
 
            slicing tables.  Claimant was also assigned to folding pre
 
            formed cardboard into boxes.
 
            
 
                 On or about July 5, 1988, claimant injured her low back 
 
            after slipping and falling onto her hip and back.  Claimant 
 
            received immediate treatment for low back and buttocks pain 
 
            from the company doctor, Subhash Sahai, M.D., a family prac
 
            tice physician.  Claimant returned to work on July 8, 1988.  
 
            Despite a return to work, claimant continued to have symp
 
            toms of chronic low back pain and claimant was referred to 
 
            an orthopedic surgeon, Mark Brodersen, M.D.  It was Dr. 
 
            Brodersen's view that claimant had aggravated a preexisting 
 
            condition of spondylolisthesis hereinafter referred to as 
 
            "spondy."  Dr. Brodersen placed claimant on physical therapy 
 
            and recommended that she not continue work which required 
 
            heavy lifting or repetitive bending or twisting.  In his 
 
            deposition testimony, Dr. Sahai testified that claimant 
 
            reached maximum healing from the July 5, 1988, aggravation 
 
            fall on November 1, 1988, as he received no further back 
 
            complaints from claimant until a year later in December of 
 
            1989.  In December of 1989, Dr. Sahai referred claimant to a 
 
            neurosurgeon, Thomas Carlstrom, M.D.  Dr. Carlstrom diag
 
            nosed that claimant's symptoms of low back pain were also 
 
            secondary to spondy but they were precipitated by the fall 
 
            of July 5, 1988.  This view by Dr. Carlstrom is based upon a 
 
            history that the spondy was asymptomatic until the fall of 
 
            July 5, 1988.  Claimant has also been diagnosed by Dr. Sahai 
 
            and the specialists in this case as suffering from degenera
 
            tive disease of the spine as well as spinal stenosis.
 
            
 
                 It is found that the injury of July 5, 1988, only tem
 
            porarily aggravated the preexisting condition of spondy.  
 
            Claimant failed to show that this injury worsened or accel
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            erative the progressive degenerative nature of this disease 
 
            process.  The exact views of Dr. Brodersen are unknown as to 
 
            whether the aggravation he diagnosed was temporary or perma
 
            nent.  Although Dr. Carlstrom is a specialist, Dr. Sahai's 
 
            views as to permanency and the relationship of the December 
 
            1989 symptoms to the July 5, 1988 injury was given greater 
 
            weight because the history given to Dr. Carlstrom was incor
 
            rect.  Claimant's pain was not precipitated by the injury of 
 
            July 5, 1988, because claimant had on-going low back pain 
 
            since a fall injury in 1986.  She sought treatment from Dr. 
 
            Sahai in 1986 after this injury and it was at this time that 
 
            the condition of spondy was first diagnosed.  Claimant 
 
            admitted at hearing that Dr. Sahai told her in 1986 that she 
 
            would be getting progressively worse due to her back condi
 
            tion.  Claimant stated at hearing that the back pain never 
 
            "went away" after the 1986 injury.  Although claimant said 
 
            that she had some back pain prior to 1986, the pain was not 
 
            "that bad until 1986."  Claimant further testified at hear
 
            ing that she could not differentiate the severity of her 
 
            back pain between the 1986 injury, another thigh and back 
 
            injury which occurred in October of 1987 and the injury in 
 
            this case.  According to claimant the pain was "off and on" 
 
            after each injury.  Claimant failed to show by a preponder
 
            ance of the evidence which of these injuries caused her 
 
            problems.  If anything, the evidence points to the 1986 
 
            injury as the most significant precipitating cause, not the 
 
            1988 injury.
 
            
 
                 As stated above, Dr. Sahai did not view claimant's 
 
            problems after November 1988 as causally connected to the 
 
            fall of July 1988 and this was based upon claimant's lack of 
 
            back complaints between November 1988 and December of 1989.  
 
            There is some evidence of hip problems treated by Robert 
 
            Gitchell, M.D., and a chiropractor in 1989.  However, Dr. 
 
            Gitchell felt that the hip soreness was due to gait problems 
 
            caused by the knee contusions she suffered in October 1989.  
 
            The views of the chiropractor are unknown.  No physician has 
 
            causally connected the October 1989 injury to the July 1988 
 
            injury.
 
            Although it is found that claimant's symptoms in December 
 
            1989, were not due to the July 1988 injury, the treatment by 
 
            Dr. Carlstrom, Iowa Methodist Hospital and Radiology P.C., 
 
            as set forth in exhibit 6 in 1990, is causally connected to 
 
            the injury.  The referrals for this treatment were from Dr. 
 
            Sahai.  Although Dr. Sahai felt that the symptoms were prob
 
            ably not causally connected to the injury, this was his 
 
            attempt to review the matter again.  Dr. Sahai's actions 
 
            were a logical and reasonable course of treatment for the 
 
            original injury.  Claimant should not be responsible for 
 
            these further efforts by her physicians to confirm or reject 
 
            the original hypothesis and diagnosis.  Due to the stipula
 
            tions of the parties as to what the providers would testify 
 
            as to the reasonableness of the treatment, it is found that 
 
            the treatment by all the providers set forth in exhibit 6 is 
 
            reasonable.
 
            
 
                                conclusions of law
 
            
 
                   I.  The claimant has the burden of proving by a pre
 
            ponderance of the evidence that the work injury is a cause 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            of the claimed disability.  A disability may be either tem
 
            porary or permanent.  In the case of a claim for temporary 
 
            disability, the claimant must establish that the work injury 
 
            was a cause of absence from work and lost earnings during a 
 
            period of recovery from the injury.  Generally, a claim of 
 
            permanent disability invokes an initial determination of 
 
            whether the work injury was a cause of permanent physical 
 
            impairment or permanent limitation in work activity.  
 
            However, in some instances, such as a job transfer caused by 
 
            a work injury, permanent disability benefits can be awarded 
 
            without a showing of a causal connection to a physical 
 
            change of condition.  Blacksmith v. All-American, Inc., 290 
 
            N.W.2d 348, 354 (Iowa 1980); McSpadden v. Big Ben Coal Co., 
 
            288 N.W.2d 181 (Iowa 1980).
 
            
 
                 The question of causal connection is essentially within 
 
            the domain of expert medical opinion.  Bradshaw v. Iowa 
 
            Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960).  
 
            The opinion of experts need not be couched in definite, pos
 
            itive or unequivocal language and the expert opinion may be 
 
            accepted or rejected, in whole or in part, by the trier of 
 
            fact.  Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 
 
            1974).  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 cir
 
            cumstances.  Bodish v. Fischer, Inc., 257 Iowa 516, 133 
 
            N.W.2d 867 (1965).
 
            
 
                 Furthermore, if the available expert testimony is 
 
            insufficient alone to support a finding of causal connec
 
            tion, such testimony may be coupled with nonexpert testimony 
 
            to show causation and be sufficient to sustain an award.  
 
            Giere v. Asse 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 compensabil
 
            ity, the injury need only be a significant factor, not be 
 
            the only factor causing the claimed disability.  Blacksmith, 
 
            290 N.W.2d 348, 354.  In the case of a preexisting condi
 
            tion, an employee is not entitled to recover for the results 
 
            of a preexisting injury or disease but can recover for an 
 
            aggravation thereof which resulted in the disability found 
 
            to exist.  Olson v. Goodyear Service Stores, 255 Iowa 1112, 
 
            125 N.W.2d 251 (1963).
 
            
 
                 In the case sub judice, claimant clearly demonstrated 
 
            she has a very serious and disabling back condition.  She 
 
            failed, however, to show that it was due to the injury of 
 
            July 5, 1988, the only injury at issue in this case.
 
            
 
                  II.  Pursuant to Iowa Code section 85.27, claimant is 
 
            entitled to payment of reasonable medical expenses incurred 
 
            for treatment of a work injury.  However, claimant is enti
 
            tled to an order of reimbursement only if claimant has paid 
 
            those expenses.  Otherwise, claimant is entitled to only an 
 
            order directing the responsible defendants to make such pay
 
            ments.  See Krohn v. State, 420 N.W.2d 463 (Iowa 1988).
 
            
 
                 In the case at bar, all of the requested expenses were 
 
            found causally connected to the injury and will be awarded.
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            
 
                                      order
 
            
 
                 1.  Claimant's claim for additional weekly disability 
 
            benefits is denied.
 
            
 
                 2.  Defendants shall pay the medical expenses listed in 
 
            exhibit 6.  Claimant shall be reimbursed for any of these 
 
            expenses paid by her.  Otherwise, defendants shall pay the 
 
            provider or reimburse the group carrier directly along with 
 
            any lawful late payment penalties imposed upon the account 
 
            by any provider.
 
            
 
                 3.  Defendants shall pay the cost of this action pur
 
            suant to rule 343 IAC 4.33, including reimbursement to 
 
            claimant for any filing fee paid in this matter.
 
            
 
            
 
            
 
                 Signed and filed this ____ day of May, 1991.
 
            
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          LARRY P. WALSHIRE
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            
 
            
 
            
 
            
 
            Copies To:
 
            
 
            Mr. Tito Trevino
 
            Attorney at Law
 
            801 Carver Bldg
 
            P O Box 1680
 
            Ft Dodge  IA  50501
 
            
 
            Mr. Timothy C. Hogan
 
            Attorney at Law
 
            4th Floor Equitable Bldg
 
            Des Moines  IA  50309
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                           5-1108
 
                           Filed May 15, 1991
 
                           LARRY P. WALSHIRE
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            BARBARA JENSEN,               :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 936563
 
            THE NISSEN COMPANY,           :
 
                                          :    A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            AETNA CASUALTY & SURETY CO.,  :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
            
 
            5-1108 - Medical causation - nonprecedential
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            GORDON HENDRICKSON,           :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 936566
 
            SUPER VALU STORES, INC.,      :
 
                                          :    A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            LIBERTY MUTUAL INS. CO.,      :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This is a proceeding in arbitration brought by Gordon 
 
            Hendrickson, claimant, against Super Valu Stores, Inc., 
 
            employer (hereinafter referred to as Super Valu), and 
 
            Liberty Mutual Insurance Company, insurance carrier, defen
 
            dants, for workers' compensation benefits as a result of an 
 
            alleged injury on May 30, 1989.  On July 8, 1991, a hearing 
 
            was held on claimant's petition and the matter was consid
 
            ered fully submitted at the close of this hearing.
 
            
 
                 The parties have submitted a prehearing report of con
 
            tested issues and stipulations which was approved and 
 
            accepted as a part of the record of this case at the time of 
 
            hearing.  The oral testimony and written exhibits received 
 
            during the hearing are set forth in the hearing transcript.
 
            
 
                 According to the prehearing report, the parties have 
 
            stipulated to the following matters:
 
            
 
                 1.  An employee-employer relationship existed between 
 
            claimant and Super Valu at the time of the alleged injury.
 
            
 
                 2.  If the alleged injury is found to have caused per
 
            manent disability, the type of disability is an industrial 
 
            disability to the body as a whole.
 
            
 
                 3.  Claimant's rate of weekly compensation in the event 
 
            of an award of weekly benefits from this proceeding shall be 
 
            $307.90.
 
            
 
                 4.  The medical bills submitted by claimant at hearing 
 
            were fair and reasonable and causally connected to the medi
 
            cal condition upon which the claim is based but that the 
 
            issue of their causal connection to a work injury remains an 
 
            issue to be decided herein.
 
            
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
                                      issues
 
            
 
                 The parties submitted the following issues for determi
 
            nation in this proceeding:
 
            
 
                   I.  Whether claimant received an injury arising out 
 
            of and in the course of employment;
 
            
 
                  II.  The extent of claimant's entitlement to disabil
 
            ity benefits; and,
 
            
 
                 III.  The extent of claimant's entitlement to medical 
 
            benefits.
 
            
 
                                 findings of fact
 
            
 
                 Having heard the testimony and considered all the evi
 
            dence, the deputy industrial commissioner finds as follows:
 
            
 
                 A credibility finding is necessary to this decision as 
 
            defendants place claimant's credibility at issue during 
 
            cross-examination as to his prior health history, the events 
 
            leading up to the work injury, the extent of injury and the 
 
            extent of disability.  From his demeanor while testifying, 
 
            claimant is found credible.
 
            
 
                 Claimant worked for Super Valu from 1980 until his 
 
            heart attack on May 30, 1989, which is the claimed work 
 
            injury in this case.  Claimant was a truck driver.  His 
 
            duties included not only the driving of an 18 wheel semi 
 
            tractor trailer truck but also the unloading of groceries at 
 
            delivery locations and the loading of "dunnage."  Dunnage is 
 
            a termed used at Super Valu to represent cargo that is to be 
 
            returned to the Des Moines warehouse from a remote location.  
 
            Dunnage usually consists of empty wooden pallets and large, 
 
            usually empty, insulated metal boxes called igloos.  Drivers 
 
            normally drop these items off at a central point after 
 
            deliveries.  Unloading of the groceries commonly involves 
 
            the use of roller chutes in which the driver places the 
 
            boxes and/or sacks of grocery items onto the chute and it 
 
            rolls to the dock area where store employees handle the 
 
            items for placement into the store.  Claimant estimated that 
 
            an average grocery box weighed approximately 35 pounds.  The 
 
            loading of dunnage normally involves the use of a hand pal
 
            let jack to push or pull stacks of pallets and individual 
 
            igloos weighing 500 to 600 pounds each onto a truck trailer.  
 
            After placement in the trailer, additional pallets commonly 
 
            are placed onto existing stacks to fill the truck to the 
 
            roof.
 
            
 
                 There was a dispute in the record as to which work was 
 
            harder, the unloading of groceries or the loading of dun
 
            nage.  This did not appear to be an important issue as both 
 
            duties were physically stressful and sufficiently physically 
 
            stressful in an amount greater than nonemployment life.  
 
            Also, both duties were a part of claimant's usual and cus
 
            tomary duties.  Claimant earned approximately $26,000 annu
 
            ally in his job at the time of the alleged injury.  This was 
 
            the most that claimant had earned in his working life 
 
            according to the evidence.  Claimant has been unemployed 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            since the day of the heart attack.
 
            
 
                 Prior to May 30, 1989, claimant's health was good and 
 
            he had no ascertainable functional impairments or disabili
 
            ties.  Claimant's credible testimony established that he was 
 
            not limited physically in his loading or unloading of Super 
 
            Valu trucks and was generally faster than persons assisting 
 
            him.  However, in retrospect, claimant's physicians all 
 
            agreed that prior to May 30, 1989 claimant had moderate to 
 
            severe coronary artery disease and possessed significant 
 
            high risk factors for a heart attack stemming from his 
 
            lifestyle, long-term heavy smoking, high blood cholesterol 
 
            and family history of heart problems.  According to the med
 
            ical experts in this case, claimant's experience was the 
 
            same as for most men with coronary artery disease. The dis
 
            ease did not manifest itself until the onset of a heart 
 
            attack or myocardial infarction.
 
            
 
                 On May 30, 1989, claimant suffered an injury which 
 
            arose out of and in the course of his employment.  At that 
 
            time claimant suffered a heart attack or what has been diag
 
            nosed as an acute anterior wall myocardial infarction or 
 
            death of a portion of his heart muscle.  This occurred as a 
 
            result of blockage of blood supply to already narrowed coro
 
            nary arteries due to prior existing coronary artery disease.
 
            
 
                 The events on the day of the heart attack, as set forth 
 
            in claimant's brief, were not in serious dispute.  
 
            Claimant's testimony on these matters is largely uncontro
 
            verted.  On May 30, 1989, claimant began driving his truck 
 
            beginning at the Super Valu warehouse in Des Moines, Iowa at 
 
            approximately 1:00 a.m.  After claimant delivered over 
 
            35,000 pounds of groceries to two Illinois locations on the 
 
            morning of May 30, 1989, he was also assigned that day to 
 
            pick up a load of dunnage located at East Moline, Illinois 
 
            on his return trip.  While eating a fried chicken takeout 
 
            lunch that he obtained at his last delivery point, he drove 
 
            his truck to the dunnage point.  Claimant stated that he had 
 
            difficulty loading the dunnage that afternoon because the 
 
            steel ramp he customarily used was broken.  The floor of the 
 
            trailers used by Super Valu were normally higher than the 
 
            dunnage dock.  Consequently, claimant had greater difficulty 
 
            than normal in pulling and pushing the pallets and igloos up 
 
            the ramp and into the trailer due to his use of a different 
 
            steel ramp.  Also, claimant stated that he felt unusually 
 
            hot.  The day was indeed hot and humid and claimant was 
 
            loading the truck during the early afternoon hours.  
 
            Claimant stated that he turned on the refrigeration unit in 
 
            the trailer during the loading process to help him cool 
 
            down.  It is found that claimant's physical activity while 
 
            loading the dunnage was greater than normal due to the ramp 
 
            problems and the heat.  Claimant's testimony in these mat
 
            ters is credible and uncontroverted.
 
            
 
                 Approximately half way through the loading process, 
 
            claimant began to notice chest pain.  However, he did not 
 
            stop working.  He explained that he felt that the pain was 
 
            only indigestion.  He continued loading the truck but the 
 
            pain grew worse.  Claimant still felt that the pain would 
 
            subside and continued working.  After he completed the load
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            ing process, he attempted to close the trailer doors but 
 
            could not do so because of his chest pain.  He likewise had 
 
            difficulty getting back into the cab of his truck due to 
 
            this chest pain.  Claimant, at the time, formed a new opin
 
            ion that he had a chicken bone from his lunch lodged in his 
 
            throat.  He continued to believe that the pain would eventu
 
            ally subside and he drove his truck a short distance away 
 
            from the dock to rest.  The pain then became even worse and 
 
            he drove his truck back to the dock and sought help.  A per
 
            son at the dock area then transported claimant to a nearby 
 
            hospital.
 
            
 
                 Although claimant still felt that he only had a chicken 
 
            bone problem, the treating internist at the hospital, John 
 
            Oppenheimer, M.D., diagnosed an acute myocardial infarction 
 
            and treated claimant accordingly.  It is found that claimant 
 
            spent approximately one hour in loading the truck and had 
 
            continued stressful physical work approximately 30 minutes 
 
            after the onset of chest pain.  At the time of the hearing, 
 
            claimant had no specific recollection of time frames other 
 
            than the fact that he believes the chest pain began about 
 
            half way through the loading process.  At the time he was 
 
            admitted to the hospital, claimant reported to physicians 
 
            that the pain began approximately 30 minutes earlier.  It is 
 
            also found that claimant completed the loading of his truck.  
 
            This was verified by another Super Valu employee who testi
 
            fied at hearing.  This employee found the truck fully loaded 
 
            when he picked the truck up the day following the heart 
 
            attack.
 
            
 
                 It is found that claimant's unusual stressful work at 
 
            the time of the initial onset of chest pain was a signifi
 
            cant contributing factor in precipitating claimant's heart 
 
            attack and myocardial infarction.  It is further found that 
 
            this activity was more stressful than what a person would 
 
            experience in nonemployment life.  Dr. Oppenheimer testified 
 
            in his deposition that there was a high likelihood that the 
 
            work claimant performed that day may have precipitated the 
 
            heart attack.  Craig Stevens, M.D., testified on page 51 of 
 
            his deposition that the causal connection was only a possi
 
            bility unless claimant was having an unusually stressful day 
 
            in some way.  As it is found that claimant did have an 
 
            unusually stressful day, a causal connection finding would 
 
            be consistent with the views of Dr. Stevens.  Although 
 
            another internist retained by defendants, Paul From, M.D., 
 
            opined that claimant's heart attack was unrelated to his 
 
            work, he was unaware until the time of the deposition that 
 
            claimant's pain began while he was doing unusual stressful 
 
            work.  Also, Dr. From has stated that if claimant had been 
 
            performing unusual tasks on that day that this may change 
 
            his opinion.
 
            
 
                 Apart from the finding that claimant's work was a sig
 
            nificant causative factor in the initial myocardial infarc
 
            tion, the finding of a work injury herein is also based upon 
 
            claimant's decision to continue his physically stressful 
 
            work for approximately 30 minutes after the onset of chest 
 
            pain.  This continuation of work significantly worsened and 
 
            permanently aggravated the heart attack.  Both treating 
 
            physicians, Dr. Oppenheimer and Dr. Stevens, opined that it 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            was likely that had claimant stopped loading his truck, 
 
            rested and sought immediate medical treatment, the extent of 
 
            the heart damage would be less.
 
            
 
                 Defense counsel, during the deposition, made an 
 
            admirable effort to dissuade Dr. Stevens from this opinion.   
 
            Dr. Stevens, in his testimony, did indeed waffle a bit on 
 
            the issue.  However, on the whole record, the undersigned 
 
            does not believe that Dr. Stevens ever backed off from his 
 
            view expressed on page 55 of the deposition that continuing 
 
            to work most likely did increase the muscle damage.
 
            
 
                 In his deposition, Dr. From refused to opine that the 
 
            continuation of work worsened claimant's condition.  He 
 
            based this opinion on his conclusion that claimant's overall 
 
            heart damage was not serious.  In arriving at this 
 
            conclusion, he stated that the treating physicians did not 
 
            give an impairment rating and had rejected corrective 
 
            surgery because it was unnecessary.  Dr. From is incorrect.  
 
            Dr. Stevens gave a very high permanent impairment rating.  
 
            Furthermore, claimant's treating physicians rejected the 
 
            surgery option, not because it was unnecessary, but because 
 
            it would do no good given the location of the blockage and 
 
            the location of already dead heart muscle.
 
            
 
                 After a few days of treatment in Moline, Illinois, 
 
            claimant was released to return home for further treatment 
 
            by a cardiologist, Craig Stevens, M.D.  Dr. Stevens treated
 
            
 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            claimant until claimant's last office call on February 28, 
 
            1990.  This treatment consisted of medication and rest.  
 
            Claimant has not returned to work in any capacity since May 
 
            30, 1989.  Current treatment of claimant consists of recom
 
            mended rehabilitation activities, medication for ongoing 
 
            angina pain, and medication and rest to deal with fatigue 
 
            and shortness of breath.
 
            
 
                 As a result of the injury of May 30, 1989, claimant was 
 
            totally disabled from any work between May 30, 1989 and 
 
            February 28, 1990, at which time he reached maximum healing.  
 
            Dr. Stevens did not give a permanency rating until July 
 
            1990, but he last saw claimant on February 28, 1990.  This 
 
            appears to be the most logical date to end the healing 
 
            period.
 
            
 
                 As a result of the work injury of May 30, 1989, 
 
            claimant has a 50-75 percent permanent partial impairment to 
 
            the body as a whole.  Also, claimant's primary treating 
 
            physician, Dr. Stevens, has permanently restricted claimant 
 
            from activity consisting of no long-term running; walking 
 
            only at a slow pace of a mile or two; climbing only one or 
 
            two flights of stairs; no high performance aerobic activity; 
 
            no lifting over 50 pounds; and, no working over eight hours 
 
            continuously.  One physician believes that claimant might 
 
            have chronic obstructive bronchitis which affects his 
 
            breathing but Dr. Stevens opined that separating out the 
 
            impairment caused by the existence of such a possible lung 
 
            disease would not significantly lower his impairment rating 
 
            due to the heart attack.  This opinion is uncontroverted.  
 
            Dr. Stevens felt that this possible lung disease by itself 
 
            would not be significantly disabling.
 
            
 
                 Claimant testified that he is more disabled than indi
 
            cated by the deposition testimony of Dr. Stevens.  He states 
 
            that he can only be active for a few hours a day and can 
 
            only walk a few blocks at a time.  He complains of extreme 
 
            fatigue and breathlessness.  However, the undersigned must 
 
            rely upon the treating physician's views to assess 
 
            claimant's physical condition.  Possibly claimant is decon
 
            ditioned and in need of extensive physical therapy in a reg
 
            ular supervised cardiac exercise program.  To date, defen
 
            dants have not provided such needed care.
 
            
 
                 As a result of the work injury of May 30, 1989, 
 
            claimant has suffered a 70 percent loss of earning capacity.  
 
            Claimant has not shown by the evidence that he is totally 
 
            unemployable or that suitable employment is wholly not 
 
            available to him.  Claimant's physicians do not restrict him 
 
            from all work.  Dr. Stevens only restricts claimant to 
 
            sedentary work.  However, claimant is 52 years of age and 
 
            has only a tenth grade education.  His most significant 
 
            prior employment has been in strenuous work that he no 
 
            longer can perform such as truck delivery, construction and 
 
            factory work.  Claimant's ability to secure suitable seden
 
            tary work appears quite limited.  On the other hand, 
 
            claimant has had experience in real estate and car sales.  
 
            He also has worked for over two years as a private investi
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            gator.  Neither of these jobs would require strenuous manual 
 
            labor but placement would have to be quite selective.  
 
            Little evidence has been provided to show the actual avail
 
            ability of employment to claimant.  Claimant has made no 
 
            attempt to look for suitable work.  However, claimant has 
 
            not been assisted in any manner by defendants in securing 
 
            suitable work.  Super Valu has not offered claimant a return 
 
            to work in any capacity and has not offered vocational reha
 
            bilitation counseling.  This is clear evidence of a profound 
 
            disability.
 
            
 
                 Defendants argue for an apportionment of disability 
 
            arising from the claimed lung disease.  However, it could 
 
            not be found from the evidence presented that claimant does 
 
            indeed suffer from a lung disease independent of his cardiac 
 
            problems.  Two pulmonary specialists have examined claimant, 
 
            D. L. Burrows, M.D., and Steven Zorn, M.D.  Dr. Zorn formed 
 
            an "impression" not a diagnosis that claimant suffers from 
 
            chronic obstructive bronchitis which could be a cause, in 
 
            part, of his breathing problems.  On the other hand, Dr. 
 
            Burrows noted in his report that claimant had no significant 
 
            breathing problems before the heart attack and attributes 
 
            all of the breathing problems to the myocardial infarction 
 
            rather than any separate or independent lung disease.  At 
 
            any rate, whether or not claimant has such a lung disease, 
 
            Dr. Stevens, in his functional loss rating, attributes lit
 
            tle of the loss of functioning to the lung disease and it 
 
            would not significantly change his impairment rating.  As 
 
            will be explained in the conclusions of law section of this 
 
            decision, no apportionment can be made unless the disease 
 
            causes significant disability.
 
            
 
                 All of the requested medical expenses set forth in the 
 
            prehearing report are causally connected to the May 30, 1989 
 
            work injury.  The treatment and the expenses resulting from 
 
            the diagnosis and experimental treatment of the possible 
 
            lung disease is causally connected to the heart attack as a 
 
            part of the usual diagnostic testing in the treatment of a 
 
            heart condition and claimant's breathlessness.  Again, there 
 
            was no finding that claimant actually suffers from breathing 
 
            problems independent of the heart condition.
 
            
 
                                conclusions of law
 
            
 
                   I.  Claimant has the burden of proving by a prepon
 
            derance of the evidence that claimant received an injury 
 
            which arose out of and in the course of employment.  The 
 
            words "out of" refer to the cause or source of the injury.  
 
            The words "in the course of" refer to the time and place and 
 
            circumstances of the injury.  See Cedar Rapids Community 
 
            Sch. v. Cady, 278 N.W.2d 298 (Iowa 1979); Crowe v. DeSoto 
 
            Consol. Sch. Dist., 246 Iowa 402, 68 N.W.2d 63 (1955).  An 
 
            employer takes an employee subject to any active or dormant 
 
            health impairments, and a work connected injury which more 
 
            than slightly aggravates the condition is considered to be a 
 
            personal injury.  Ziegler v. United States Gypsum Co., 252 
 
            Iowa 613, 620, 106 N.W.2d 591 (1960) and cases cited 
 
            therein.
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            
 
                 In work injuries involving the heart, Iowa claimants 
 
            with preexisting circulatory or heart conditions are permit
 
            ted, upon proper medical proof, to recover workers' compen
 
            sation benefits only when the employment contributes some
 
            thing substantial to increase the risk of injury or death.  
 
            The employment contribution must take the form of an exer
 
            tion greater than nonemployment life.  Sondag v. Ferris 
 
            Hardware, 220 N.W.2d 903 (Iowa 1974).  The comparison, how
 
            ever, is not with the employee's usual exertion in his 
 
            employment, but with exertions of normal nonemployment life 
 
            of this or any other person.  Id.  These exertions may be 
 
            physical or emotional.  Swalwell v. William Knudson and Son, 
 
            Inc., II Iowa Industrial Commissioner Report 385 (Appeal 
 
            Decision 1982).  The Sondag rule is favored by Professor 
 
            Larson in his treatise on workers' compensation.  See IA 
 
            Larson, Workmen's Compensation Law, section 38.83 at 7-172.  
 
            According to Professor Larson, the causative test is a two 
 
            part analysis.  First, there is a medical causation test in 
 
            which the medical experts must be relied upon to causally 
 
            relate the alleged stress to the heart injury.  Second, 
 
            there is a legal causation test to determine if the medi
 
            cally related stress is more than the stress of everyday 
 
            nonemployment life.
 
            
 
                 In the case sub judice, claimant satisfied tests under 
 
            Sondag and the two tier tests of Professor Larson.  It was 
 
            found that claimant's physical exertion at the time of the 
 
            heart attack was greater than nonemployment life.  However, 
 
            claimant does not have to rely solely upon unusual stress to 
 
            prevail in this case.  According to the evidence, claimant 
 
            continued working after the onset of symptoms worsening his 
 
            heart damage and it is likely that had he stopped and sought 
 
            treatment he would have had less damage.  Such a finding 
 
            invokes liability under the theory approved by the Iowa 
 
            Supreme Court in Varied Enterprises v. Sumner, 353 N.W.2d 
 
            407 (Iowa 1984).  As pointed out in Varied Enterprises, 
 
            claimant did not have to be aware that he was risking seri
 
            ous injury or death when he chose to ignore the chest pains.  
 
            Also, as pointed out in Varied Enterprises, apportionment of 
 
            liability due to preexisting risk factors such as coronary 
 
            artery disease is improper if there is no ascertainable dis
 
            ability existing prior to the heart attack.
 
            
 
                 With further reference to the issue of apportionment, 
 
            the Iowa Supreme Court has most recently rejected any type 
 
            of apportionment from an award based upon a condition which 
 
            does not manifest itself into a disability.  Bearce v. FMC 
 
            Corp., 465 N.W.2d 531 (Iowa 1991).
 
            
 
                  II.  Claimant must establish by a preponderance of the 
 
            evidence the extent of weekly benefits for permanent dis
 
            ability to which claimant is entitled.  As the claimant has 
 
            shown that the work injury was a cause of a permanent physi
 
            cal impairment or limitation upon activity involving the 
 
            body as a whole, the degree of permanent disability must be 
 
            measured pursuant to Iowa Code section 85.34(2)(u).  How
 
            ever, unlike scheduled member disabilities, the degree of 
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            disability under this provision is not measured solely by 
 
            the extent of a functional impairment or loss of use of a 
 
            body member.  A disability to the body as a whole or an 
 
            "industrial disability" is a loss of earning capacity 
 
            resulting from the work injury.  Diederich v. Tri-City 
 
            Railway Co., 219 Iowa 587, 593, 258 N.W. 899 (1935).  A 
 
            physical impairment or restriction on work activity may or 
 
            may not result in such a loss of earning capacity.  The 
 
            extent to which a work injury and a resulting medical condi
 
            tion has resulted in an industrial disability is determined 
 
            from examination of several factors.  These factors include 
 
            the employee's medical condition prior to the injury, imme
 
            diately after the injury and presently; the situs of the 
 
            injury, its severity and the length of healing period; the 
 
            work experience of the employee prior to the injury, after 
 
            the injury and potential for rehabilitation; the employee's 
 
            qualifications intellectually, emotionally and physically; 
 
            earnings prior and subsequent to the injury; age; education; 
 
            motivation; functional impairment as a result of the injury; 
 
            and inability because of the injury to engage in employment 
 
            for which the employee is fitted.  Loss of earnings caused 
 
            by a job transfer for reasons related to the injury is also 
 
            relevant.  Olson v. Goodyear Service Stores, 255 Iowa 1112, 
 
            1121, 125 N.W.2d 251, 257 (1963).  See Peterson v. Truck 
 
            Haven Cafe, Inc., (Appeal Decision, February 28, l985).
 
            
 
                 In the case sub judice, it was found that claimant suf
 
            fered a 70 percent loss of earning capacity as a result of 
 
            the work injury.  Based upon such a finding, claimant is 
 
            entitled as a matter of law to 350 weeks of permanent par
 
            tial disability benefits under Iowa Code section 85.34(2)(u) 
 
            which is 70 percent of 500 weeks, the maximum allowable for 
 
            an injury to the body as a whole in that subsection.
 
            
 
                 As claimant has established entitlement to permanent 
 
            partial disability, claimant may be entitled to weekly bene
 
            fits for healing period under Iowa Code section 85.34 from 
 
            the date of injury until claimant returns to work; until 
 
            claimant is medically capable of returning to substantially 
 
            similar work to the work he was performing at the time of 
 
            the injury; or, until it is indicated that significant 
 
            improvement from the injury is not anticipated, whichever 
 
            occurs first.  It was found in this case that claimant 
 
            reached maximum healing on February 28, 1990, the date of 
 
            his last appointment with Dr. Stevens.  Healing period bene
 
            fits will be awarded accordingly.
 
            
 
                 III.  Pursuant to Iowa Code section 85.27, claimant is 
 
            entitled to payment of reasonable medical expenses incurred 
 
            for treatment of a work injury.  However, claimant is enti
 
            tled to an order of reimbursement only if claimant has paid 
 
            those expenses.  Otherwise, claimant is entitled to only an 
 
            order directing the responsible defendants to make such pay
 
            ments.  See Krohn v. State, 420 N.W.2d 463 (Iowa 1988).
 
            
 
                 In the case at bar, the parties stipulated that the 
 
            requested expenses were causally connected to the heart con
 
            dition.  With reference to the alleged lung condition, 
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
            treatment and diagnosis, it was found that the expenses are 
 
            still causally connected to the work injury as they consti
 
            tuted the usual extensive diagnosis and testing and experi
 
            mental treatment for the potential lung disease as a part of 
 
            the treatment program for breathlessness following a heart 
 
            attack.  No separate lung disease could be found from the 
 
            evidence.
 
            
 
                 Claimant is entitled to the costs of this action as set 
 
            forth in the prehearing report.
 
            
 
                                      order
 
            
 
                 1.  Defendants shall pay to claimant three hundred 
 
            fifty (350) weeks of permanent partial disability benefits 
 
            at the rate of three hundred seven and 90/l00 dollars 
 
            ($307.90) per week from March 1, 1990.
 
            
 
                 2.  Defendants shall pay to claimant healing period 
 
            benefits from May 30, 1989 through February 28, 1990, at the 
 
            rate of three hundred seven and 90/l00 dollars ($307.90) per 
 
            week.
 
            
 
                 3.  Defendants shall pay the medical expenses listed in 
 
            the prehearing report totaling twelve thousand eight hundred 
 
            thirty-seven and 24/l00 dollars ($12,837.24).  Claimant 
 
            shall be reimbursed for any of these expenses paid by him.  
 
            Otherwise, defendants shall pay the provider directly along 
 
            with any lawful late payment penalties imposed upon the 
 
            account by the provider.
 
            
 
                 4.  Defendants shall pay the accrued weekly benefits in 
 
            a lump sum.
 
            
 
                 5.  Defendants shall pay interest on weekly benefits 
 
            awarded herein as set forth in Iowa Code section 85.30.
 
            
 
                 6.  Defendants shall pay the costs of this action as 
 
            set forth in the prehearing report in the amount of eight 
 
            hundred fifty-four and 70/l00 dollars ($854.70) pursuant to 
 
            rule 343 IAC 4.33.
 
            
 
                 7.  Defendants shall file activity reports on payment 
 
            of this award as requested by this agency pursuant to rule 
 
            343 IAC 3.l.
 
            
 
            
 
            
 
                 Signed and filed this ____ day of July, 1991.
 
            
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          LARRY P. WALSHIRE
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            
 
            
 

 
            
 
            Page  11
 
            
 
            
 
            
 
            
 
            Copies To:
 
            
 
            Mr. R. Ronald Pogge
 
            Attorney at Law
 
            Terrace Center  STE 111
 
            2700 Grand Ave
 
            Des Moines  IA  50312
 
            
 
            Mr. Richard G. Book
 
            Attorney at Law
 
            500 Liberty Bldg
 
            Des Moines  IA  50309
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                           5-1108.10
 
                           Filed July 25, 1991
 
                           LARRY P. WALSHIRE
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            GORDON HENDRICKSON,           :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 936566
 
            SUPER VALU STORES, INC.,      :
 
                                          :    A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            LIBERTY MUTUAL INS. CO.,      :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
            5-1108.10
 
            Heart attack case, 70 percent industrial disability awarded 
 
            from a nonfatal heart attack occurring while claimant was 
 
            performing strenuous work loading a truck.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            CARL LUX,                     :
 
                                          :
 
                 Claimant,                :         File No. 936575
 
                                          :
 
            vs.                           :      A R B I T R A T I O N
 
                                          :
 
            FDL FOODS, INC.,              :         D E C I S I O N
 
                                          :
 
                 Employer,                :
 
                 Self-Insured,            :
 
                 Defendant.               :
 
            ____________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 Claimant Carl Lux filed a petition in arbitration 
 
            against defendant self-insured employer FDL Foods, Inc., 
 
            upon allegations of a work injury to the back on August 12, 
 
            1989.  He seeks benefits under the Iowa Workers' 
 
            Compensation Act as a result.
 
            
 
                 This cause came on for hearing in Dubuque, Iowa, on 
 
            October 16, 1991.  The record consists of claimant's 
 
            testimony, claimant's exhibits 1 through 35 and defendant's 
 
            exhibit A.
 
            
 
                                      issues
 
            
 
                 The parties have stipulated that an employment 
 
            relationship existed between claimant and FDL Foods, Inc., 
 
            on August 12, 1989, to the appropriate rate of compensation 
 
            and that defendant is entitled to certain credits under Iowa 
 
            Code section 85.38(2).
 
            
 
                 Issues presented for resolution include:
 
            
 
                 1.  Whether claimant sustained an injury arising out of 
 
            and in the course of his employment on August 12, 1989;
 
            
 
                 2.  Whether there exists a causal relationship between 
 
            the claimed injury and temporary or permanent disability;
 
            
 
                 3.  The extent of temporary and permanent disability, 
 
            if any; and,
 
            
 
                 4.  The extent of claimant's entitlement to medical 
 
            benefits.
 
            
 
                 Defendant asserted an authorization defense to Mr. 
 
            Lux's claim for medical benefits.  This defense was ruled 
 
            out of order at hearing because defendant cannot 
 
            simultaneously deny liability on the claim and control the 
 
            course of treatment.  Barnhart v. MAQ, Inc., I Iowa 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            Industrial Commissioner Report 16 (1981).
 
            
 
                                 findings of fact
 
            
 
                 The undersigned deputy industrial commissioner finds:
 
            
 
                 Carl Lux, 34 years of age at hearing, is a high school 
 
            graduate.  After working some years following high school in 
 
            a metal shop and as a machinist and welder for a large 
 
            manufacturing concern, he worked for approximately four 
 
            years with defendant, a meat packing business.
 
            
 
                 For some months prior to the asserted injury date, 
 
            claimant suffered free floating back pain that eventually 
 
            migrated to and remained centered in the lumbar spine.  On 
 
            August 12, 1989, a Saturday, claimant engaged in a job that 
 
            involved substantial twisting and handling of pork loins 
 
            weighing perhaps something under 25 pounds each.  While 
 
            working at this job, claimant noticed a sensation of 
 
            tightening in his back, which he described as a relatively 
 
            common occurrence.  He did not notice any pain.
 
            
 
                 Claimant finished his shift at 5:00 p.m., still not 
 
            suffering back pain.  He then had dinner with his parents, 
 
            still without pain.  Next, he went fishing with a friend.  
 
            After some 10 or 15 minutes, he began developing pain and 
 
            increased tightness in the lower back.  This was at 
 
            approximately 8:00 p.m.  Claimant continued fishing until 
 
            approximately 8:30, after which he went to his friend's 
 
            house, where he remained until driving home at approximately 
 
            11:00 p.m., by which time he found himself in much more 
 
            severe discomfort.
 
            
 
                 Claimant was eventually found to have sustained a 
 
            moderately large herniated disc at L5-S1 on the left and 
 
            underwent surgery described as laminectomy and discectomy on 
 
            October 23, 1989.  Fortunately, the surgery was successful 
 
            and claimant eventually returned to the same job.  However, 
 
            he complains that he can no longer engage in certain 
 
            activities and, although not assigned specific medical 
 
            restrictions, feels there are some jobs at FDL Foods which 
 
            he cannot do, and has not attempted to bid into as a result.
 
            
 
                 Surgery was performed by Anthony Piasecki, M.D., a 
 
            board-certified orthopaedic surgeon.  Dr. Piasecki testified 
 
            by deposition on October 5, 1990.
 
            
 
                 On direct examination, Dr. Piasecki testified:
 
            
 
                 Q.  Do you have an opinion within a reasonable 
 
                 degree of medical probability as to whether or not 
 
                 this condition of impairment is consistent with 
 
                 being causally connected to the medical history 
 
                 that he gave to you as to being hurt on the job?
 
            
 
                 A.  Yes.
 
            
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
                 Q.  What is that opinion?
 
            
 
                 A.  I think that his herniated disk in this matter 
 
                 could occur with lifting such as he does at his 
 
                 work.
 
            
 
            (Dr. Piasecki deposition, page 10, lines 7 through 16)
 
            
 
                 On cross-examination, Dr. Piasecki indicated that 
 
            sometimes pain can start off small and gradually become more 
 
            severe as the reaction in injured tissues increases, and 
 
            that this may occur with an injured back.  He testified 
 
            that, if claimant first started noticing pain at 
 
            approximately 8:00, becoming progressively severe until 
 
            11:00, the doctor would suspect the injury occurred sometime 
 
            at or shortly before 8:00.  Further, he testified:
 
            
 
                 Q.  Bear with me here for a moment if you would 
 
                 while I look something up.
 
            
 
                 Doctor, let me, let me give you a hypothetical set 
 
                 of facts and then I want to ask you your opinion 
 
                 based on that hypothetical set of facts.
 
            
 
                 Assume the following for me, if you would.  That 
 
                 Mr. Lux finished working at FDL on the date in 
 
                 which he claims he injured his back, approximately 
 
                 5 or 5:30 in the evening, was not feeling any pain 
 
                 in his back, went home, had dinner and was not 
 
                 feeling any pain in his back.
 
            
 
                 Loaded a 16 quart cooler with his bait and tackle 
 
                 into the back of his pickup truck and drove to 
 
                 Maquoketa, Iowa, to go fishing with a friend 
 
                 there.
 
            
 
                 That he was fishing on, in the Maquoketa River and 
 
                 that approximately 8 o'clock he started noticing 
 
                 back pain that kept getting worse and worse such 
 
                 that by 11 o'clock he couldn't sit any more and he 
 
                 had to stand up and move around to relieve the 
 
                 pain.
 
            
 
                 A.  Uh-huh.
 
            
 
                 Q.  Now, based on that set of facts, do you have 
 
                 an opinion, based on a reasonable degree of 
 
                 medical probability, whether or not Mr. Lux 
 
                 injured his back sometime after he left FDL that 
 
                 day?
 
            
 
                 A.  Well, I think if he had absolutely no pain, 
 
                 then the chances are his pain developing later 
 
                 could have been from something else.
 
            
 
                 Q.  In any case, it would -- would that set of 
 
                 facts, if true, cast some doubt in your mind as to 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
                 whether he might have actually hurt himself at 
 
                 FDL?
 
            
 
                 A.  While it would cast some doubt, if he had a 
 
                 history as he related to me that he was doing the 
 
                 heavy lifting and twisting and felt that he did 
 
                 have the discomfort, some consideration would 
 
                 certainly have to be given to his work that he was 
 
                 doing, but I still couldn't rule out whether or 
 
                 not he injured it after work, no.
 
            
 
                 Q.  I take it there are all kinds of things that 
 
                 he could have done both at work and outside of 
 
                 work that might have caused this herniation?
 
            
 
                 A.  Yes.
 
            
 
            (Dr. Piasecki deposition, page 20, line 6 through page 21, 
 
            line 22)
 
            
 
                                conclusions of law
 
            
 
                 There is no question in this record but that claimant 
 
            sustained a herniated disc which eventually required 
 
            surgery.  Claimant developed tightness in his back, not an 
 
            uncommon occurrence, before leaving work at 5:00 p.m., but 
 
            first developed pain while fishing some three hours later.  
 
            It is claimant's burden to establish an injury arising out 
 
            of and in the course of employment.  Musselman v. Central 
 
            Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967).  The 
 
            words "arising out of" refer to the course or source of the 
 
            injury.  McClure v. Union County, 188 N.W.2d 283 (Iowa 
 
            1971).  This requirement is satisfied by showing a causal 
 
            relationship between the employment and the injury.  Sheerin 
 
            v. Holin Co., 380 N.W.2d 415 (Iowa 1986).
 
            
 
                 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).
 
            
 
                 In this case, the expert testimony in essence is that 
 
            claimant's herniated disc possibly occurred while he was at 
 
            work and "could" occur with lifting such as claimant did at 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            work.  On cross-examination, Dr. Piasecki indicated that the 
 
            herniation likely occurred when pain developed, 
 
            approximately 8:00 p.m.  This was three hours after claimant 
 
            left work.
 
            
 
                 A fair reading of this record, and in particular the 
 
            opinions of Dr. Piasecki, leaves this observer unconvinced 
 
            that claimant has met his burden of proof in establishing 
 
            either that his herniated disc occurred while at work, or 
 
            was caused thereby.  Claimant has not established an injury 
 
            arising out of and in the course of employment.  Therefore, 
 
            the question must be resolved in favor of defendant.  Other 
 
            issues are thereby rendered moot.
 
            
 
                                      order
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 Claimant shall take nothing from this proceeding.
 
            
 
     
 
            
 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            The costs of this action are assessed to defendant 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. James M. Heckmann
 
            Attorney at Law
 
            One CyCare Plaza
 
            Suite 216
 
            Dubuque, Iowa  52001
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                           1108.50; 1402.30
 
                           Filed October 24, 1991
 
                           DAVID RASEY
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            CARL LUX,                     :
 
                                          :
 
                 Claimant,                :         File No. 936575
 
                                          :
 
            vs.                           :      A R B I T R A T I O N
 
                                          :
 
            FDL FOODS, INC.,              :         D E C I S I O N
 
                                          :
 
                 Employer,                :
 
                 Self-Insured,            :
 
                 Defendant.               :
 
            ____________________________________________________________
 
            
 
            1108.50; 1402.30
 
            Claimant developed tightness in his back--as he often 
 
            did--while at work, but no pain.  Pain developed three hours 
 
            later while he was fishing.  Medical opinion showed it was 
 
            possible that disc herniation occurred at work, but not that 
 
            it was probable.  It was held that claimant failed to meet 
 
            his burden of proof on the issue.
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
            _____
 
                      :
 
            MICHAEL PEERY, :
 
                      :
 
                 Claimant, :      File No. 936578
 
                      :
 
            vs.       :        A P P E A L
 
                      :
 
            TRUCKERS EXPRESS, INC.,  :      D E C I S I O N
 
                      :
 
                 Employer, :
 
                 Defendant.     :
 
            ____________________________________________________________
 
            _____
 
            The record has been reviewed de novo on appeal.  The ruling 
 
            on motion for summary judgment filed October 15, 1990 is 
 
            affirmed and is adopted as the final agency action in this 
 
            case. 
 
            Claimant shall pay the costs of this action.
 
            Signed and filed this ____ day of September, 1991.
 
            
 
            
 
            
 
            
 
                      ________________________________
 
                               BYRON K. ORTON
 
                           INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Dennis L. Hanssen
 
            Attorney at Law
 
            2700 Grand Ave., Ste 111
 
            Des Moines, Iowa 50312
 
            
 
            Mr. Thomas Henderson
 
            Mr. Kent T. Kelsey
 
            Attorneys at Law
 
            1300 First Interstate Bank Bldg.
 
            Des Moines, Iowa 50309
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
            9998
 
            Filed September 9, 1991
 
            Byron K. Orton
 
            DRR
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
            _____
 
                      :
 
            MICHAEL PEERY, :
 
                      :
 
                 Claimant, :      File No. 936578
 
                      :
 
            vs.       :        A P P E A L
 
                      :
 
            TRUCKERS EXPRESS, INC.,  :      D E C I S I O N
 
                      :
 
                 Employer, :
 
                 Defendant.     :
 
            ____________________________________________________________
 
            _____
 
            
 
            9998
 
            
 
                 Summary affirmance of deputy's ruling filed October 15, 
 
            1990.
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                          5-1803; 5-1806; 5-3102
 
                                          Filed February 25, 1992
 
                                          ELIZABETH A. NELSON
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            MICHAEL A. TREANOR,           :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 926687
 
            CURRIES MANUFACTURING         :
 
            COMPANY,                      :
 
                                          :    A R B I T R A T I O N
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            WAUSAU INSURANCE COMPANY,     :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            5-1803
 
            Claimant, a 39 year old laborer with a 20 percent impairment 
 
            to his neck and lifting restrictions of no more than 50 
 
            pounds.  Claimant has attempted to find work and has been 
 
            unable to locate anything.  Claimant's employer did not 
 
            reemploy claimant after he was released to return to work.  
 
            Claimant was awarded a 45 percent industrial disability 
 
            award.  
 
            
 
            5-1806
 
            Even though claimant had prior injury to his back, no 
 
            apportionment was made following Denekas v. Aalfs 
 
            Manufacturing Co., File Nos. 794353 and 823077, Slip op. 
 
            (Iowa Ind. Comm'r App. December 31, 1991) because the second 
 
            injury was to claimant's shoulder and neck rather than 
 
            claimant's back.  
 
            
 
            5-3102
 
            Claimant did not make a showing that he was enrolled in a 
 
            vocational rehabilitation program at the time of the 
 
            hearing.  Consequently, benefits were denied.
 
            
 
 
         
 
         
 
         
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         _________________________________________________________________
 
                     
 
         CHRISTA K. CHRISTENSEN,    
 
                     
 
              Claimant,                         File No. 936799
 
                     
 
         vs.                                      A P P E A L
 
                     
 
         SNAP-ON TOOLS CORPORATION,              D E C I S I O N
 
                     
 
              Employer,   
 
              Self-Insured,    
 
              Defendant.       
 
         _________________________________________________________________
 
         The record, including the transcript of the hearing before the 
 
         deputy and all exhibits admitted into the record, has been 
 
         reviewed de novo on appeal.  The decision of the deputy filed 
 
         July 14, 1993 is affirmed and is adopted as the final agency 
 
         action in this case with the following additional analysis:
 
         Defendant concedes on appeal that claimant's November 16, 1989 
 
         injury includes both the crush injury to the right forearm as 
 
         well as right lateral epicondylitis.  Claimant's entitlement to 
 
         medical benefits extends to both conditions.
 
         Claimant's argument on appeal that she is entitled to penalty on 
 
         unpaid interest, and claimant's appeal argument that this agency 
 
         should calculate interest due on each payment of benefits, ahve 
 
         both been addressed in Weishaar v. Snap-On Tools, 506 N.W.2d 786 
 
         (Iowa App. 1993).
 
         Claimant shall pay the costs of the appeal, including the 
 
         preparation of the hearing transcript.
 
         Signed and filed this ____ day of April, 1994.
 
         
 
         
 
         
 
         
 
                                   ________________________________
 
                                           BYRON K. ORTON
 
                                     INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Mark S. Soldat
 
         Attorney at Law
 
         714 E. State St.
 
         Algona, Iowa 50511
 
         
 
         Mr. Paul C. Thune
 
         Attorney at Law
 
         P.O. Box 9130
 
         Des Moines, Iowa 50306
 
         
 
 
 
 
 
 
 
 
 
 
                                      5-1802, 5-1803, 4000.2, 3800
 
                                      Filed April 21, 1994
 
                                      BYRON K. ORTON
 
                      
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
            CHRISTA K. CHRISTENSEN,    
 
                        
 
                 Claimant,                        File No. 936799
 
                        
 
            vs.                                     A P P E A L
 
                        
 
            SNAP-ON TOOLS CORPORATION,             D E C I S I O N
 
                        
 
                 Employer,   
 
                 Self-Insured,    
 
                 Defendant.       
 
            ____________________________________________________________
 
            
 
            5-1802
 
            
 
                 Claimant is entitled to healing period benefits from 
 
            December 4 through December 8, 1989 and for April 18 and 
 
            April 24, 1990 (1.3 hours on each of these two dates).  
 
            
 
            1803
 
            
 
                 Two independent medical examiners gave claimant a 10 
 
            percent impairment rating to the arm.  Lay testimony was 
 
            presented in an attempt to show that claimant's loss of use 
 
            of her right arm exceeded the physician's assessment.  This 
 
            was rejected and the doctors' ratings were accepted as more 
 
            consistent with evidence presented.  
 
            
 
            4000.2
 
            
 
                 Awarding a penalty is not appropriate when there is a 
 
            legitimate issue on causal connection even if benefits are 
 
            subsequently awarded.  Peterman v. American Freight System, 
 
            File Number 747931; Austin v. Nealy Mfg., File Number 848293 
 
            (1988); Cook v. Iowa Meat Processing, File Numbers 724392, 
 
            727578 (1985).
 
            
 
            3800
 
            
 
                 In Farmer's Elevator Co., Kingsley v. Manning, 286 
 
            N.W.2d 174 (Iowa 1979), at 180 the Iowa Supreme Court Said:
 
            
 
                    Section 85.30 expresses legislative intent that 
 
                 interest on unpaid compensation be computed from 
 
                 the date each payment comes due, starting with the 
 
                 eleventh day after the injury ... Interest is 
 
     
 
            
 
            
 
 
 
 
 
 
 
 
 
 
 
                 therefore payable on such installment from that 
 
                 due date, and similarly with the following weekly 
 
                 payments.
 
            
 
                 Interest is computed according to the longstanding rule 
 
            that partial payments are applied first to accrued interest 
 
            and the remainder to reduce the permanent partial disability 
 
            award.  McNeal v. Iowa Department of Transportation, Order 
 
            Nunc Pro Tunc, May 31, 1990.  Also see Clausen v. Carmar 
 
            Farms, Ltd., Vol. 1, No. 3 State of Iowa Industrial 
 
            Commissioner Decisions 540 (1985).
 
            
 
                 The parties are directed to calculate interest on any 
 
            weekly benefits not paid when due based on Iowa Code section 
 
            85.30 and the above cited authority.  If a dispute exists 
 
            between the parties on how the interest should be 
 
            calculated, the parties can then bring the question before 
 
            this agency for resolution.  Meyers v. Holiday Express 
 
            Corporation, File Nos. 881251, 913213 & 913214 (Appeal 
 
            Decn., March 24, 1992).
 
            
 
 
            
 
        
 
            
 
            
 
            
 
                       BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                      
 
            CHRISTA K. CHRISTENSEN,  
 
                      
 
                 Claimant, 
 
                      
 
            vs.       
 
                                                File No. 936799
 
            SNAP-ON TOOLS CORPORATION,    
 
                                            A R B I T R A T I O N
 
                 Employer, 
 
                 Self-Insured                   D E C I S I O N
 
                 Defendant.     
 
            ___________________________________________________________
 
            
 
                 This is a proceeding in arbitration brought by Christa 
 
            K. Christensen, claimant, against Snap-On Tools Corporation, 
 
            self-insured employer, to recover benefits under the Iowa 
 
            Workers' Compensation Act as a result of an injury sustained 
 
            on November 16, 1989.  This matter came on for hearing 
 
            before the undersigned deputy industrial commissioner on 
 
            June 18, 1993, in Fort Dodge, Iowa.  The record was 
 
            considered fully submitted at the close of the hearing.  The 
 
            claimant was present and testified.  Also present and 
 
            testifying were Dorothy Krug, Marissa Montag, Mary Prentice, 
 
            Al Christensen, Shirley Hoveland and Lee Gunderson.  The 
 
            documentary evidence identified in the record consists of 
 
            claimant's exhibits A - D.
 
            
 
                                     ISSUES
 
            
 
                 Pursuant to the prehearing report and order dated June 
 
            18, 1993, the parties have presented the following issues 
 
            for resolution:
 
            
 
                 1.  Whether claimant is entitled to additional healing 
 
            period benefits with interest;
 
            
 
                 2.  Whether claimant is entitled to permanent partial 
 
            disability benefits and, if so, the extent thereof;
 
            
 
                 3.  The commencement date for permanent partial 
 
            disability benefits, if any are awarded;
 
            
 
                 4.  Whether claimant is entitled to penalty benefits 
 
            pursuant to Iowa Code section 85.13; and
 
            
 
                 5.  Claimant's entitlement to interest on compensation 
 
            benefits pursuant to Iowa Code section 85.30.
 
            
 
                     
 
            
 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
                                FINDINGS OF FACT
 
            
 
                 The undersigned has carefully considered all the 
 
            testimony given at the hearing, arguments made, evidence 
 
            contained in the exhibits herein, and makes the following 
 
            findings:
 
            
 
                 Claimant was born on December 25, 1952 and is a high 
 
            school graduate.  Claimant commenced working for employer on 
 
            June 19, 1989.  She was laid off in October 1990.
 
            
 
                 The pertinent medical evidence of record reveals that 
 
            claimant presented to Kenton K. Moss, M.D., company 
 
            physician, on August 14, 1989, with complaints of pain in 
 
            her right forearm extending from the elbow to the wrist 
 
            which she felt that resulted from her job performance.  Dr. 
 
            Moss diagnosed lateral epicondylitis and prescribed a wrist 
 
            splint (Ex. A., p. 6-8).
 
            
 
                 Claimant reported to the company nurse on November 16, 
 
            1989, after injuring her right arm in the performance of her 
 
            job.  On November 21, 1989, she saw Dr. Moss.  His 
 
            examination revealed a large area of ecchymosis over the 
 
            right forearm.  Heat was applied and aspirin given for 
 
            discomfort.  Dr. Moss felt that claimant was able to resume 
 
            her regular duties (Ex. A, pp. 9-11).
 
            
 
                 Claimant's right arm symptoms improved during a 
 
            four-day layoff over Thanksgiving.  However, when she 
 
            resumed work on the stripping line she experienced increased 
 
            swelling and discomfort.  She reported to Dr. Moss on 
 
            December 9, 1989.  On examination he observed some 
 
            fluctuance of the right forearm with ecchymosis and 
 
            tenderness.  He recommended one week of left handed work and 
 
            commencement of physical therapy.  On December 8, 1989, she 
 
            reported an improvement in her symptoms but still had some 
 
            ecchymosis and swelling (Ex. A, pp. 14-22).
 
            
 
                 On April 18, 1990, claimant saw Bert Bottjen, M.D., 
 
            with complaints of chronic right forearm pain.  On 
 
            examination, she was noted to have excellent and complete 
 
            range of motion and no tenderness over the epicondyles.  Dr. 
 
            Bottjen returned claimant to full duty.  X-rays were taken 
 
            of her right forearm on April 19, 1990.  They revealed 
 
            minimal periosteal elevation of the distal radius with 
 
            remaining normal findings (Ex. A, pp. 25-27).
 
            
 
                 On April 24, 1990, claimant saw Robert E. McCoy, M.D., 
 
            for evaluation.  After reviewing the claimant's medical 
 
            history and noting her complaints, Dr. McCoy conducted a 
 
            physical examination.  He saw some indication of lateral 
 
            epicondylitis and  some residual soreness from her crushing 
 
            injury.  He found no significant motor weakness or 
 
            dysfunction and felt that her discomfort would gradually 
 
            subside.  He saw no evidence of any problem requiring active 
 
            medical treatment (Ex. A, p. 28).  
 
            
 
                 On September 5, 1990, claimant presented to the nurse's 
 
            station at work with complaints of right arm pain.  The 
 
            nurse measured her arm and it did not appear swollen.  An 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            appointment was made with Dr. McCoy (Ex. A, pp. 30-34).
 
            
 
                 Claimant saw Dr. McCoy on September 11, 1990.  She 
 
            presented with complaints of pain in her forearm from the 
 
            elbow to the wrist.  On examination, she demonstrated pain 
 
            in the right lateral epicondylar area.  Dr. McCoy 
 
            administered a steroid injection and some Tylenol #3 for 
 
            pain.  He recommended avoidance of repetitious use of the 
 
            right upper extremity (Ex. A, pp. 35-39).
 
            
 
                 On September 18, 1990, claimant met with Shirley 
 
            Hoveland, personnel director, regarding job placement within 
 
            the company.  Claimant related that she was not having any 
 
            trouble right now working in press brakes (Ex. A, p. 40).
 
            
 
                 The record indicates that on October 15, 1990, claimant 
 
            was placed on layoff status at Snap-On Tools due to a 
 
            decrease in production requirements (Ex. B, p. 34).
 
            
 
                  On December 14, 1990, claimant saw Kenneth B. 
 
            Washburn, M.D., for evaluation.  On examination, deep tendon 
 
            reflexes were equal and active in the upper extremity with 
 
            no evidence of muscular wasting or decreased muscular 
 
            strength.  EMG and nerve conductive studies were performed 
 
            and revealed no evidence of any nerve lesion in the right 
 
            upper extremity.  He concluded that claimant suffered from a 
 
            chronic right tennis elbow.  He reassured claimant that her 
 
            problems were relatively mild (Ex. A, pp. 43-44).
 
            
 
                 Claimant testified that she was unemployed between 
 
            October 15, 1990 and April of 1991.  In April 1991, she 
 
            commenced working for Express Services as a cleanup person 
 
            at a K-Mart construction site in Algona, Iowa.  This job 
 
            lasted until October 1991.  
 
            
 
                 In May 1991, claimant obtained the services of an 
 
            attorney.  On August 14, 1991, her attorney arranged for an 
 
            independent medical examination with Thomas F. DeBartolo, 
 
            Jr., M.D..  After reviewing the claimant's medical history 
 
            and noting her complaints, Dr. DeBartolo conducted a 
 
            physical examination.  He felt that claimant had a crushing 
 
            injury to the right proximal forearm with evidence of 
 
            persistent soft tissue injury.  He indicted that claimant 
 
            needs a functional capacity test to determine strength and 
 
            endurance (Ex. A, pp. 46-48).  
 
            
 
                 Claimant underwent a functional capacity evaluation at 
 
            St. Joseph Mercy Hospital Upper Extremity Clinic in Mason 
 
            City, Iowa on September 16, 1991.  Based upon the results of 
 
            the evaluation, it was recommended that she avoid jobs which 
 
            require highly forceful and repetitive wrist and hand work.  
 
            Specifically, she should avoid forceful and repetitive 
 
            supination and wrist extension on the right.  Her lifting 
 
            ability was assessed in the 30-40 lb. range occasionally, 
 
            15-20 lbs. frequently and 7-10 lbs. continuously (Ex. A, pp. 
 
            49-53).
 
            
 
                 On November 7, 1991, Dr. DeBartolo reported that 
 
            claimant sustained a 10 percent loss of her upper extremity 
 
            secondary to a crushing injury (3 percent secondary to the 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            sensory nerve involvement, 2 percent loss of dorsiflextion 
 
            of the wrist and 5 percent due to the loss of supinatory 
 
            strength) (Ex. A, p. 54).
 
            
 
                 Claimant was then referred by defendant to L. T. 
 
            Donovan, D.O., for evaluation on January 3, 1992.  After 
 
            reviewing claimant's medical history and noting her 
 
            complaints (right forearm pain and weakness), Dr. Donovan 
 
            conducted a comprehensive examination.  Dr. Donovan's 
 
            impression included:  1) right lateral epicondylitis; 2) 
 
            crush injury to the right forearm with residual soft tissue 
 
            indentation; and 3) hyper-reflexia (Ex. A, p. 60).
 
            
 
                 Based upon the aforementioned factors, and utilizing 
 
            the AMA Guidelines, Dr. Donovan gave claimant a 10 percent 
 
            upper extremity impairment rating (Ex. A, pp. 55-61).
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                 The parties have stipulated that claimant sustained a 
 
            right arm injury on November 16, 1989.  The parties have 
 
            also stipulated that claimant is entitled to unpaid healing 
 
            period benefits from December 4 through December 8, 1989 and 
 
            April 18, 1990 and April 24, 1990 (1.3 hours on each of 
 
            these dates).  The parties stipulate that claimant's rate of 
 
            compensation is $297.66 (she was married and had five 
 
            children on November 16, 1989).  
 
            
 
                 The parties also stipulate that claimant's disability 
 
            is a scheduled member disability to the arm.  They agree 
 
            that claimant has sustained permanent disability but 
 
            disagree as to the commencement date and extent of 
 
            disability.  Therefore, the first issue to be determined is 
 
            the commencement date for permanent partial disability 
 
            benefits.
 
            
 
                 Section 85.34(1) provides that healing period benefits 
 
            are payable to an injured worker who has suffered permanent 
 
            partial disability until (1) the worker has returned to 
 
            work; (2) the worker is medically capable of returning to 
 
            substantially similar employment; or (3) the worker has 
 
            achieved maximum medical recovery.  The healing period can 
 
            be considered the period during which there is a reasonable 
 
            expectation of improvement of the disabling condition.  See 
 
            Armstrong Tire & Rubber Co. v. Kubli, 312 N.W.2d 60 (Iowa 
 
            Ct. App. 1981).  Healing period benefits can be interrupted 
 
            or intermittent.  Teel v. McCord, 394 N.W.2d 405 (Iowa 
 
            1986).
 
            
 
                 The evidence in the record indicates that claimant 
 
            returned to work on Sunday December 10, 1989 (Ex. A, p. 17).  
 
            Iowa Code section 85.34 contemplates the ending of healing 
 
            period with the occurrence of any one of three events.  One 
 
            event which signifies the end of healing period is a return 
 
            to work.  Since claimant returned to work on December 10, 
 
            1989, her entitlement to healing period benefits ended 
 
            December 9, 1989 and the commencement date for permanent 
 
            partial disability benefits is December 10, 1989.  
 
            
 
                 The next issue to be determined is the extent of 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            claimant's permanent disability.  
 
            
 
                 The right of an employee to receive compensation for 
 
            injuries sustained is statutory. The statute conferring this 
 
            right can also fix the amount of compensation payable for 
 
            different specific injuries.  The employee is not entitled 
 
            to compensation except as the statute provides.  Soukup v. 
 
            Shores Co., 222 Iowa 272, 268 N.W. 598 (1936).  As 
 
            stipulated, claimant's injury is to a scheduled member.
 
            
 
                 Compensation for permanent partial disability begins at 
 
            termination of the healing period.  Section 85.34(2).  
 
            Permanent partial disabilities are classified as either 
 
            scheduled or unscheduled.  A specific scheduled disability 
 
            is evaluated by the functional method; the industrial method 
 
            is used to evaluate an unscheduled disability. Simbro v. 
 
            Delong's Sportswear, 332 N.W.2d 886 (Iowa 1983); Graves v. 
 
            Eagle Iron Works, 331 N.W.2d 116 (Iowa 1983); Martin v. 
 
            Skelly Oil Co., 252 Iowa 128, 106 N.W.2d 95 (1960).
 
            
 
                 Claimant has received permanent impairment ratings from 
 
            Dr. DeBartolo and Dr. Donovan.  Both doctors performed 
 
            independent medical examinations and neither doctor has 
 
            treated nor followed claimant for her injury.  Dr. Moss, her 
 
            treating physician, gave her no rating and on November 21, 
 
            1989, stated that she was capable of resuming regular 
 
            duties.  On April 18, 1990, Dr. Bottjen stated that claimant 
 
            had excellent range of motion in her right extremity and was 
 
            capable of performing full duty.  On April 24, 1990, Dr. 
 
            McCoy reported that claimant's discomfort and residual 
 
            soreness from her crushing injury would eventually subside.  
 
            He released her to normal duties without restrictions.  
 
            Claimant and four lay witnesses testified that she has a 50 
 
            percent loss of use of her right arm.  Their testimony was 
 
            based on their observance of claimant's activities.
 
            
 
                 Evidence considered in assessing the loss of use of a 
 
            particular scheduled member may entail more than a medical 
 
            rating pursuant to standardized guides for evaluating 
 
            permanent impairment.  A claimant's testimony and 
 
            demonstration of difficulties incurred in using the injured 
 
            member and medical evidence regarding general loss of use 
 
            may be considered in determining the actual loss of use 
 
            compensable.  Soukup v. Shores Co., 222 Iowa 272, 268 N.W. 
 
            598 (1936); Langrehr v. Warren Packaging Corp., 
 
            Thirty-fourth Biennial Report of the Industrial 
 
            Commissioner, 179 (January 22, 1980).  Consideration is not 
 
            given to what effect the scheduled loss has on claimant's 
 
            earning capacity.  The scheduled loss system created by the 
 
            legislature is presumed to include compensation for reduced 
 
            capacity to labor and to earn.  Schell v. Central 
 
            Engineering Company, 232 Iowa 421 4 N.W.2d 399 (1942).  See 
 
            Roberts v. Pizza Hut of Washington, Inc., II Iowa 
 
            Industrial Commissioner Report, 317, 320 (1982); Sheflett v. 
 
            Clearfield Veterinary Clinic, II Iowa Industrial 
 
            Commissioner Report, 334, 347 (1982); and Webster v. John 
 
            Deere Component Works, II Iowa Industrial Commissioner 
 
            Reports, 435, 450 (1982).
 
            
 
                 Division of Industrial Services Rule 343-2.4(85) 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            provides in pertinent part as follows:
 
            
 
                    The Guides to the Evaluation of Permanent 
 
                 Impairment published by the American Medical 
 
                 Association are adopted as a guide for determining 
 
                 permanent partial disabilities under Iowa Code 
 
                 section 85.34(2) "a" - "r".  The extent of loss or 
 
                 percentage of permanent impairment may be 
 
                 determined by use of this guide and payment of 
 
                 weekly compensation for permanent partial 
 
                 scheduled injuries made accordingly ... Nothing in 
 
                 this rule shall be construed to prevent the 
 
                 presentations of other medical opinion or guides 
 
                 for the purpose of establishing that the degree of 
 
                 permanent impairment to which the claimant would 
 
                 be entitled would be more or less than the 
 
                 entitlement indicated in the AMA guide.
 
            
 
                 Chapter 17A. 14(5) of the Iowa Administrative Procedure 
 
            Act states:  " The agency's experience, technical 
 
            competence, and specialized knowledge may be utilized in the 
 
            evaluation of the evidence."  Claimant's testimony and the 
 
            lay testimony presented to show that claimant's loss of use 
 
            of her right arm exceeds the assessment made by Dr. 
 
            DeBartolo and Dr. Donovan is rejected and the physicians' 
 
            rating is accepted as more consistent with the documentary 
 
            evidence presented.  Myers v. Holiday Express Corporation, 
 
            File Nos. 881251, 913213 and 913214, Appeal Decn. filed 
 
            March 24, 1992.  
 
            
 
                 In this regard, it is noted that claimant testified 
 
            that she has been employed at Winnebago Industries since 
 
            February 10, 1992, assembling doors and running a screw gun.  
 
            She stated that she uses her arms and hands on a repetitive 
 
            basis during an eight hour work day.  She operates under no 
 
            particular work restrictions.  Claimant's attempt to enhance 
 
            her disability is contraindicated by her work activity.  Her 
 
            assertations regarding significant loss of use of her right 
 
            arm appear out of proportion to the clinical and laboratory 
 
            findings in the record.  Accordingly, the undersigned 
 
            concludes that claimant has not demonstrated an entitlement 
 
            to more than 10 percent permanent partial disability 
 
            benefits to her right arm.  This entitles her to 25 weeks of 
 
            permanent partial disability benefits (10 x 250).  
 
            
 
                 The next issue to be determined is whether claimant is 
 
            entitled to penalty benefits under Iowa Code section 86.13.  
 
            This section provides in pertinent part that:
 
            
 
                    If a delay in commencement or termination of 
 
                 benefits occurs without reasonable or probable 
 
                 cause or excuse, the industrial commissioner shall 
 
                 award benefits in addition to those benefits 
 
                 payable under this chapter, or chapters 85, 85A, 
 
                 or 85B, up to fifty percent of the amount of 
 
                 benefits that were unreasonably delayed or denied.
 
            
 
                 Claimant alleges that unreasonable delays occurred in 
 
            processing weekly claims and that defendant's failure to pay 
 
            voluntary benefits to the extent she believes appropriate 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            was unreasonable.
 
            
 
                 In determining entitlement to penalty benefits, the 
 
            appropriate standard is whether defendant's unreasonably 
 
            withheld or terminated benefits.  Curtis v. Swift 
 
            Independent Packing, IV Iowa Industrial Commissioner Report 
 
            88, 93 (1984).
 
            
 
                 Awarding a penalty is not appropriate when there is a 
 
            legitimate issue on causal connection even if benefits are 
 
            subsequently awarded.  Peterman v. American Freight System, 
 
            File Number 747931 (App. Dec. 1988); Austin v. Nealy Mfg., 
 
            File Number 848293 (1988); Cook v. Iowa Meat Processing, 
 
            File Numbers 724392, 727578 (1985).  
 
            
 
                 Likewise, and in more recent times it has been 
 
            determined that penalty benefits are not due where 
 
            defendants assert a claim that is fairly debatable.  Seydel 
 
            v. University of Iowa Physical Plant, File Number 818849 
 
            (App. Dec. 1989); Stanley v. Wilson Foods, File Number 
 
            753405 (App. Dec. 1990); Heidt v. Lynn Photo Company, File 
 
            Number 916737 (App. Dec. 1992);  Place v. Giest Construction 
 
            Company, File Numbers 931185, 891539 (1992); Shelton v. 
 
            McDonalds Hamburgers, File Number 976855 (1992); Lloyd v. 
 
            Western Home, File Number 890207 (App. Dec. 1991).  
 
            
 
                 The fairly debatable standard which was announced in 
 
            the tort case of Dolan v. Aid Insurance Company, 431 N.W.2d 
 
            790 (Iowa 1989) appears to have been adopted for workers' 
 
            compensation cases in Dodd v. Oscar Mayer Foods Corp., File 
 
            Number 724378 (1989); Throgmartin v. Precision Pulley Inc., 
 
            File Number 885869 (On Appeal) (1990); Collins v. Hawkeye 
 
            Moving & Storage, File Number 873651 (1990).  
 
            
 
                 Where the employer failed to pay permanent partial 
 
            disability in accordance with the rating of its own chosen 
 
            physician (the lowest rating in the record), the failure to 
 
            pay was determined to be unreasonable and a 50 percent 
 
            penalty was assessed.  Stanley v. Wilson Foods Corp., File 
 
            Number 753405 (1990).
 
            
 
                 Regarding healing period benefits, on January 23, 1990, 
 
            Snap-On did pay for one day of temporary disability 
 
            compensation  (Cl. Ex. B, p. 8).  Yet, after discovering in 
 
            September, 1990, that section 85.34(1), rather than section 
 
            85.32, Code of Iowa, was applicable, it never paid for the 
 
            preceding days of healing period now stipulated (id., 
 
            prehearing report, p. 2).  It did not pay this compensation, 
 
            plus the interest "added' to it, (section 85.30, Code of 
 
            Iowa), despite demands by claimant on November 13 and 
 
            December 12, 1991, and January 17, 1992, that it do so (Cl. 
 
            Ex. C, pp. 4, 6 & 9).  It also never has explained why it 
 
            did not pay the compensation to which it now stipulates.  
 
            Therefore, claimant is entitled to 50 percent penalty 
 
            benefits on unpaid healing period benefits from December 4 
 
            through December 8, 1989 and for 1.3 hours of unpaid 
 
            benefits on April 18 and April 24, 1990.
 
            
 
                 The medical evidence reveals that claimant saw Dr. 
 
            McCoy on September 11, 1990.  At that time, he injected the 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            site of the lateral epicondyles with a steroid and gave her 
 
            a return-to-work slip suggesting that she use only her left 
 
            hand at work for the next week.  He stated that her work 
 
            capabilities will depend on the outcome of the injection.  
 
            He stated:
 
            
 
                    However, in general she would do well to avoid 
 
                 activities in which she is doing lifting with her 
 
                 right hand in a position of pronation and in which 
 
                 she is forcefully or repetitiously supinating the 
 
                 right forearm.  It is hoped that with the further 
 
                 passage of time she will make further improvement 
 
                 permitting the elimination of the restrictions 
 
                 mentioned above.  
 
            
 
                 (Ex. A, p. 39).
 
            
 
                 On September 18, 1990, Shirley Hoveland met with 
 
            claimant regarding Dr. McCoy's restrictions and claimant's 
 
            work in press brakes.  Ms. Hoveland noted:
 
            
 
                    ... Christa said that she's not having any 
 
                 trouble right now.  She said she was under the 
 
                 impression that her arm will get better and this 
 
                 won't likely be a permanent condition.  She says 
 
                 the motion like "pulling clothes up out of the 
 
                 washer" is what bothers her the most. 
 
            
 
                    ... We discussed that there's actually more 
 
                 rotation in packing than in brakes, but Christa 
 
                 felt brakes was better for her.  She said the only 
 
                 "bad" job was when she might have to use a suction 
 
                 cup to pickup large pieces, but apparently she 
 
                 hasn't had to do that a lot.
 
            
 
                 (Ex. A, pp. 40-41)
 
            
 
                 After being laid off on October 15, 1990, claimant 
 
            sought evaluation from Dr. Washburn.  EMG and nerve 
 
            conduction studies were conducted and he found no evidence 
 
            of any nerve lesion in the right upper extremity and felt 
 
            that her problem was primarily a chronic right tennis elbow.  
 
            He reassured her that these problems were relatively mild 
 
            (Ex. A, pp. 44-44).
 
            
 
                 Claimant obtained the services of an attorney in May 
 
            1991.  She was referred to Dr. DeBartolo for evaluation.  
 
            Dr. DeBartolo issued a permanent impairment rating which was 
 
            sent to defendant at the same time she filed her claim for 
 
            workers' compensation benefits.  A letter dated November 13, 
 
            1991, from claimant's attorney, requests that defendant pay 
 
            to claimant the functional impairment rating made by Dr. 
 
            DeBartolo (Ex. C, p. 4).  Defendant testified that payment 
 
            of the 10 percent of the functional impairment rating in the 
 
            amount of $8,575.83 was made to claimant on February 14, 
 
            1992 (Ex. C, pp. 10-11).
 
            
 
                 Based on the total evidence in this case, the 
 
            undersigned finds that awarding a penalty in this case is 
 
            not appropriate because, at least prior to DeBartolo's 
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            evaluation on November 7, 1991, there was a legitimate issue 
 
            as to permanency.  Claimant's treating physician had 
 
            previously released her to return to work and made no 
 
            permanency assessment.  Once defendant became aware of Dr. 
 
            DeBartolo's assessment and a request was made for payment of 
 
            permanency, payment was made within one or two months of the 
 
            request.  The length of time involved does not warrant 
 
            imposition of a penalty on late payment of permanent 
 
            disability benefits. Curtis v. Swift Independent Packing, IV 
 
            Iowa Industrial Commissioner Report 88, 93 (1984).  
 
            
 
                 The final issue to be addressed is claimant's 
 
            entitlement to interest pursuant to Iowa Code section 85.30.  
 
            
 
                 In Farmer's Elevator Co., KIngsley v. Manning, 286 
 
            N.W.2d 174 (Iowa 1979), at 180 the Iowa Supreme Court Said:
 
            
 
                    Section 85.30 expresses legislative intent that 
 
                 interest on unpaid compensation be computed from 
 
                 the date each payment comes due, starting with the 
 
                 eleventh day after the injury ... Interest is 
 
                 therefore payable on such installment from that 
 
                 due date, and similarly with the following weekly 
 
                 payments.
 
            
 
                 Interest is computed according to the longstanding rule 
 
            that partial payments are applied first to accrued interest 
 
            and the remainder to reduce the permanent partial disability 
 
            award.  McNeal v. Iowa Department of Transportation, Order 
 
            Nunc Pro Tunc, May 31, 1990.  Also see Clausen v. Carmar 
 
            Farms, Ltd., Vol. 1, No. 3 State of Iowa Industrial 
 
            Commissioner Decisions 540 (1985).
 
            
 
                 The parties are directed to calculate interest on any 
 
            weekly benefits not paid when due based on Iowa Code section 
 
            85.30 and the above cited authority.  If a dispute exists 
 
            between the parties on how the interest should be 
 
            calculated, the parties can then bring the question before 
 
            this agency for resolution.  Meyers v. Holiday Express 
 
            Corporation, File Nos. 881251, 913213 & 913214 (Appeal 
 
            Decn., March 24, 1992).
 
            
 
                           
 
            
 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
                                   ORDER
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 That defendant pay to claimant healing period benefits 
 
            from December 4 through December 8, 1989 and April 18, 1990 
 
            and April 24, 1990 (one point three (1.3) hours on each of 
 
            these two dates) at the rate of two hundred ninety-seven and 
 
            66/100 dollars ($297.66) per week.
 
            
 
                 That defendant pay to claimant twenty-five (25) weeks 
 
            of permanent partial disability benefits at the rate of two 
 
            hundred ninety-seven and 66/100 dollars ($297.66) per week 
 
            commencing December 10, 1989.  
 
            
 
                 Claimant is entitled to 50 percent (50%) penalty 
 
            benefits on unpaid healing period benefits from December 4, 
 
            1989 through December 8, 1989 and April 18, 1990 and April 
 
            24, 1990, one point three (1.3) hours on each of these two 
 
            dates).
 
            
 
                 That defendant receive credit for any benefits 
 
            previously paid.  
 
            
 
                 That defendant pay accrued amounts in a lump sum.
 
            
 
                 That defendant pay interest pursuant to Iowa Code 
 
            section 85.30.
 
            
 
                 That defendant pay costs pursuant to rule 343 IAC 4.33.
 
            
 
                 That defendant file claim activity reports as required 
 
            by the agency pursuant to rule 343 IAC 3.1(2).
 
            
 
                 Signed and filed this ____ day of July, 1993.
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          JEAN M. INGRASSIA
 
                                          DEPUTY INDUSTRIAL COMMISSIONER    
 
            
 
            Copies to:
 
            
 
            Mr. Mark S. Soldat
 
            Attorney at Law
 
            714 East State Street
 
            Algona, IA  50511
 
            
 
            Mr. Paul C. Thune
 
            Attorney at Law
 
            405 6th Ave., Ste 700
 
            Des Moines, IA  50309
 
            
 
            
 
 
            
 
        
 
            
 
            
 
            
 
                                       5-1802, 5-1803, 4000.2, 3800
 
                                       Filed July 14, 1993
 
                                       Jean M. Ingrassia
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                      
 
            CHRISTA K. CHRISTENSEN,  
 
                      
 
                 Claimant, 
 
                      
 
            vs.       
 
                                                  File No. 936799
 
            SNAP-ON TOOLS CORPORATION,    
 
                                              A R B I T R A T I O N
 
                 Employer, 
 
                 Self-Insured                     D E C I S I O N
 
                 Defendant.     
 
            ___________________________________________________________
 
            
 
            5-1802
 
            
 
                 Claimant is entitled to healing period benefits from 
 
            December 4 through December 8, 1989 and for April 18 and 
 
            April 24, 1990 (1.3 hours on each of these two dates).  
 
            
 
            1803
 
            
 
                 Two independent medical examiners gave claimant a 10 
 
            percent impairment rating to the arm.  Lay testimony was 
 
            presented in an attempt to show that claimant's loss of use 
 
            of her right arm exceeded the physician's assessment.  This 
 
            was rejected and the doctors' ratings were accepted as more 
 
            consistent with evidence presented.  
 
            
 
            4000.2
 
            
 
                 Awarding a penalty is not appropriate when there is a 
 
            legitimate issue on causal connection even if benefits are 
 
            subsequently awarded.  Peterman v. American Freight System, 
 
            File Number 747931; Austin v. Nealy Mfg., File Number 848293 
 
            (1988); Cook v. Iowa Meat Processing, File Numbers 724392, 
 
            727578 (1985).
 
            
 
            3800
 
            
 
                 In Farmer's Elevator Co., Kingsley v. Manning, 286 
 
            N.W.2d 174 (Iowa 1979), at 180 the Iowa Supreme Court Said:
 
            
 
                    Section 85.30 expresses legislative intent that 
 
                 interest on unpaid compensation be computed from 
 
                 the date each payment comes due, starting with the 
 
                 eleventh day after the injury ... Interest is 
 
                 therefore payable on such installment from that 
 
                 due date, and similarly with the following weekly 
 
                 payments.
 
            
 
                 Interest is computed according to the longstanding rule 
 
            that partial payments are applied first to accrued interest 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            and the remainder to reduce the permanent partial disability 
 
            award.  McNeal v. Iowa Department of Transportation, Order 
 
            Nunc Pro Tunc, May 31, 1990.  Also see Clausen v. Carmar 
 
            Farms, Ltd., Vol. 1, No. 3 State of Iowa Industrial 
 
            Commissioner Decisions 540 (1985).
 
            
 
                 The parties are directed to calculate interest on any 
 
            weekly benefits not paid when due based on Iowa Code section 
 
            85.30 and the above cited authority.  If a dispute exists 
 
            between the parties on how the interest should be 
 
            calculated, the parties can then bring the question before 
 
            this agency for resolution.  Meyers v. Holiday Express 
 
            Corporation, File Nos. 881251, 913213 & 913214 (Appeal 
 
            Decn., March 24, 1992).
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            PHILLIP HALVERSON,            :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 936910
 
            NPI SECURITY,                 :
 
                                          :  A R B I T R A T I O N
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            CIGNA INSURANCE,              :
 
            fs
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding in arbitration brought by Phillip 
 
            Halverson against his former employer NPI Security and its 
 
            insurance carrier Cigna Insurance Companies based upon a 
 
            stipulated injury of November 5, 1989.  
 
            
 
                 Claimant seeks additional compensation for permanent 
 
            partial disability.  The primary issues in the case are 
 
            whether any of the disability which currently afflicts the 
 
            claimant was proximately caused by the November 5, 1989 
 
            injury and the extent of permanent disability caused by that 
 
            injury.
 
            
 
                 The case was heard at Des Moines, Iowa, on May 29, 
 
            1992.  The record consists of testimony from Phillip 
 
            Halverson, Leona Martin, Jerry McFall, Judith Daley, Mark 
 
            Kirchner, and Leigh Ann Dillei.  The record also contains 
 
            jointly offered exhibits 1 through 73.
 
            
 
                                 findings of fact
 
            
 
                 Having considered all of the evidence presented, 
 
            including the appearance and demeanor of the witnesses, it 
 
            is found that Phillip Halverson has failed to establish that 
 
            he is a credible witness.
 
            
 
                 The incident that occurred on November 5, 1989, as 
 
            described by Halverson, is not the type of event which would 
 
            normally be expected to produce a serious injury.  He drove 
 
            a car off the road.  It likely became airborne from hitting 
 
            a driveway and bounced to a stop.  The car was not damanged.  
 
            Halverson was treated and released at the emergency room, 
 
            despite the fact that he had been brought there by ambulance 
 
            on a backboard.  He was prescribed medication but did not 
 
            fill the prescription.  Three days later, when seen for a 
 
            follow-up examination, he was prescribed physical therapy 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            but did not follow through with the physical therapy.  The 
 
            fact that he did not follow through is strong evidence that 
 
            he was feeling better and felt that he did not need any 
 
            treatment.  
 
            
 
                 After apparently recovering from the November 5, 1989 
 
            incident, Halverson went to his employer and requested that 
 
            he not be assigned a job which involved driving.  His 
 
            reasons for not wanting to drive were somewhat unclear.  
 
            When told by his employer, Mark Kirchner, that fewer hours 
 
            of work would be available, Halverson elected to resign 
 
            altogether rather than work reduced hours.  He apparently 
 
            had been working 50 or 60 hours per week prior to the injury 
 
            and felt he could not earn enough if only working in the 
 
            range of 40 hours per week.  There is no explanation in the 
 
            record regarding how he expected to support himself and his 
 
            young daughter if he were not working at all.
 
            
 
                 On November 30, 1989, Halverson returned to the Mercy 
 
            Hospital Emergency Department with complaints of increased 
 
            back pain.  The history notes that he reported that he was 
 
            injured on November 5, 1989, received relief in two weeks 
 
            and did not go to physical therapy because his back felt 
 
            better.  He reported that the back pain came on while he was 
 
            walking for approximately 30 minutes on Thanksgiving while 
 
            hunting.  It is noted that the straight leg raising test was 
 
            negative, sensation and muscle strength normal and no 
 
            neurological deficit was identified.  A lumbar strain was 
 
            diagnosed and claimant was referred to an orthopedic surgeon 
 
            (exhibit 7).
 
            
 
                 Claimant was seen by Kirk Green, D.O.  More physical 
 
            therapy was prescribed.  On January 25, 1990, a CT scan 
 
            showed disc protrusion at the L5-S1 level of claimant's 
 
            spine (ex. 13).  In the report dated March 23, 1990, Kirk 
 
            Green, D.O. reported to Halverson's attorney that it was his 
 
            opinion that Halverson's discomfort was consistent with the 
 
            injuries he sustained in the vehicle accident on November 5, 
 
            1989, and that exacerbation of discomfort from simple 
 
            activities was common in a person with a low back strain 
 
            (ex. 21).
 
            
 
                 Halverson's care was next transferred to Kevin F. 
 
            Smith, M.D.  Dr. Smith also diagnosed a low back strain (ex. 
 
            22).  Conservative treatment was not successful and on June 
 
            20, 1990, an MRI test was conducted which showed a large, 
 
            broad based, central L5-S1 herniated disc with compression 
 
            of the thecal sac and displacement of the S1 nerve roots.  A 
 
            smaller herniated disc was seen at the L4-5 level (ex. 30).
 
            
 
                 During the month of July 1990, Halverson was 
 
            hospitalized for depression and was also involved in an 
 
            automobile accident which occurred while he was intoxicated 
 
            (ex. 31).  On or about August 26, 1990, Halverson sought 
 
            medical treatment stating that he had experienced a major 
 
            increase in his back pain while bowling (ex. 32).  After 
 
            further diagnostic tests were conducted, Halverson underwent 
 
            L5-S1 hemilaminectomy and disc excision surgery (ex. 33).
 
            
 
                 Through the assistance of the vocational rehabilitation 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            division, Halverson has enrolled at the Des Moines Area 
 
            Community College.  He typically carried a class load of two 
 
            classes.  He worked at the campus day-care center.   
 
            
 
                 During 1991 he obtained employment as the manager of an 
 
            apartment building.  He received free rent and some actual 
 
            pay for his services.  This occurred at the same time as he 
 
            was receiving his regular workers' compensation benefits.  
 
            Halverson embezzled rent money he collected from some of the 
 
            tenants.  Again, it is difficult to understand how Halverson 
 
            could have been short of money when he was receiving his 
 
            workers' compensation benefits, receiving earnings for being 
 
            the manager and paying no rent for housing.
 
            
 
                 At hearing claimant stated that his back condition is 
 
            as bad as it has ever been.  He indicated that immediately 
 
            following recuperation from the surgery a great deal of the 
 
            prior pain had been eliminated, but it later returned.  A 
 
            few weeks prior to the hearing, Halverson reported 
 
            experiencing the onset of severe pain while standing in the 
 
            cafeteria line at the Des Moines Area Community College.  
 
            
 
                 Recent diagnostic tests have not shown a clear 
 
            recurrence of his herniated disc problem.  His treating 
 
            physicians have declined to recommend further surgery.
 
            
 
                 Halverson has been evaluated by orthopedic surgeon 
 
            Daniel McGuire, M.D.  Dr. McGuire is of the opinion that 
 
            whatever happened on November 5, 1989, did not cause the 
 
            herniated disc for which surgery was performed of any of the 
 
            disability which currently afflicts Halverson (ex. 73, pages 
 
            12-18, 107-109).
 
            
 
                 It is found that the assessment made by Dr. McGuire is 
 
            correct in this case.  His opinions are the only ones which 
 
            are well discussed and well explained in the record.  It is 
 
            recognized that the terminology "consistent with" from a 
 
            treating physician is equivalent to the "professional 
 
            opinion" of an examining physician for purposes of burden of 
 
            proof.  The difference in choice of wording is of no 
 
            significance whatsoever.  What is significant, however, is 
 
            that Dr. McGuire has had the advantage of reviewing the 
 
            entire case through hindsight.  Further, all the physicians 
 
            who saw claimant prior to the time he was seen by McGuire 
 
            relied upon claimant's stated complaints and symptoms as 
 
            though they were true.  Such is not necessarily the 
 
            situation.  
 
            
 
                 It is therefore found that Phillip Halverson has failed 
 
            to introduce evidence in this case which shows it to be more 
 
            likely than not that his L5-S1 herniated disc and any 
 
            residual permanent disability resulted in any substantial 
 
            part from the events which occurred on November 5, 1989, 
 
            while he was working as a patrolman for NPI Security. 
 
            
 
                 It is found that the only injury Halverson sustained on 
 
            November 5, 1989, was a lumbosacral strain which resolved no 
 
            later than November 23, the day prior to Thanksgiving in 
 
            1989.
 
            
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
                                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 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).
 
            
 
                 The trauma which has been described in this case is not 
 
            the type of thing which would be expected to cause a serious 
 
            injury.  While it is certainly possible that nearly any type 
 
            of trauma can cause a serious injury, the likelihood that 
 
            what was described as having occurred on November 5, 1989 
 
            caused a serious injury is relatively small.  The further 
 
            likelihood that a person with a substantial injury would 
 
            decline medically recommended noninvasive treatment, such as 
 
            physical therapy, is again relatively small.  In order to 
 
            grant an award in this case, it would be necessary to rely 
 
            upon Halverson's testimony, including his recitation of 
 
            events that have occurred, his denial of intervening 
 
            traumas, his description of his symptoms and other 
 
            subjective matters which are not capable of independent 
 
            corroboration.  Halverson's credibility has not been 
 
            established in this case.  To the contrary, there are a 
 
            number of indicators that he lacks credibility.  
 
            
 
                 The evidence in this case is sufficient to prove, by a 
 
            preponderance of the evidence, that the stipulated injury 
 
            was a lumbosacral strain or sprain of some type.  The 
 
            evidence is not sufficiently strong to show, by a 
 
            preponderance of the evidence, that the original injury 
 
            continued beyond November 23, 1989, that it produced a 
 
            herniated lumbar disc, that it produced the medical 
 
            necessity for the surgery which was performed, or that it 
 
            produced any of the residual disability which currently 
 
            afflicts Phillip Halverson.
 
            
 
                 It is therefore concluded that claimant has proven an 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            entitlement to 2 5/7 weeks of compensation for temporary 
 
            total disability payable commencing November 5, 1989.  As 
 
            shown in the prehearing report, he has been paid far in 
 
            excess of that amount through voluntary payments.  He is 
 
            therefore not entitled to any additional recovery.
 
            
 
                                      order
 
            
 
                 IT IS THEREFORE ORDERED that claimant take nothing from 
 
            this proceeding.
 
            
 
                 It is further ordered that the costs of this proceeding 
 
            are assessed against the claimant.
 
            
 
                 It is further ordered that defendants file claim 
 
            activity reports as requested by this agency pursuant to 
 
            rule 343 IAC 3.1.
 
            
 
                 Signed and filed this ____ day of December, 1992.
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          MICHAEL G. TRIER
 
                                          DEPUTY INDUSTRIAL COMMISSIONER    
 
            
 
            Copies to:
 
            
 
            Mr. Robert Pratt
 
            Mr. Max Schott
 
            Attorney at Law
 
            6959 University Ave
 
            Des Moines, Iowa  50311
 
            
 
            Mr. Charles Cutler
 
            Ms. Coreen Bezdicek
 
            Attorneys at Law
 
            729 Insurance Exchange Bldg
 
            Des Moines, Iowa  50309
 
            
 
            
 
                 
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
                                          51402.30
 
                                          Filed December 9, 1992
 
                                          Michael G. Trier
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            PHILLIP HALVERSON,            :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 936910
 
            NPI SECURITY,                 :
 
                                          :  A R B I T R A T I O N
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            CIGNA INSURANCE,              :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            51402.30
 
            Claimant was shown to have a definite lack of credibility.  
 
            It was held that his injury was limited to a short period of 
 
            temporary total disability.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            MARK W. CLARK,                :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :         File No. 936973
 
            MEDIA PRINTING,               :
 
                                          :      A R B I T R A T I O N
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            AETNA CASUALTY & SURETY       :
 
            COMPANY,                      :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding in arbitration brought by Mark W. 
 
            Clark against Media Printing, his former employer, based 
 
            upon an alleged injury of February 27, 1990.  Clark seeks 
 
            compensation for temporary total disability and payment of 
 
            medical expenses.  The primary issues to be determined are 
 
            whether Clark sustained an injury which arose out of and in 
 
            the course of his employment and determination of his 
 
            entitlement to compensation for temporary total disability 
 
            (no permanent disability was claimed).  The rate of 
 
            compensation is also an issue with regard to the marital 
 
            status and number of exemptions.  It was stipulated that he 
 
            earned $170 per week.  With regard to the claim for medical 
 
            expenses, the only issue is the employer's liability.
 
            
 
                                 findings of fact
 
            
 
                 Having considered all the evidence received, together 
 
            with the appearance and demeanor of the witnesses, the 
 
            following findings of fact are made.
 
            
 
                 Mark W. Clark is a 34-year-old man who resides at 
 
            Council Bluffs, Iowa with Michelle Meyer and her three 
 
            children.  Mark sometimes refers to his relationship with 
 
            Michelle as a common law marriage.  At other times, he 
 
            represents himself as being single.  Mark has two children 
 
            of his own who reside with his father and for whom he pays 
 
            child support.  Mark and Michelle began living together 
 
            approximately three years ago.  They have lived and 
 
            functioned as a family since that time, except for a short 
 
            separation.  Michelle was married to her former husband 
 
            until July of 1990 when her divorce became final.
 
            
 
                 Mark began working for Media Printing in late January 
 
            1990.  He was hired by Bill Malek who is also known as Mr. 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            Assad.  Mark's job was to perform a variety of functions 
 
            including operating machines, warehouse work and truck 
 
            driving.  During the approximately four weeks that Mark 
 
            worked for Media Printing, he performed all of those 
 
            functions.  According to Mark, he began having discomfort 
 
            and other symptoms in his hands after approximately one week 
 
            of work.  There is no evidence, however, that he ever 
 
            complained of any problems with his hands until February 27, 
 
            1990.  On Saturday, February 24, 1990, Mark was assigned to 
 
            work approximately a half day feeding a folding machine.  
 
            Mark's level of production was considerably below the rate 
 
            commonly experienced for persons operating the machine.  It 
 
            appears as though the low productivity was due to Mark's 
 
            feeding the machine improperly with the result being 
 
            frequent jams.  On the following Monday, Malek terminated 
 
            claimant's employment due to his substandard performance on 
 
            the folding machine and also due to Mark having been quite 
 
            slow when making deliveries to the post office.  After Mark 
 
            pleaded for his job, Malek agreed to let him try some more.  
 
            According to Malek, Mark's performance remained poor, but 
 
            Mark characterized it as having quadrupled in comparison to 
 
            the previous Saturday.
 
            
 
                 According to Mark, he was exhausted when he went home 
 
            from work on Monday evening.  He stated that his hands hurt 
 
            so badly that he could hardly eat dinner and needed help 
 
            going to bed.  Mark stated that, on the following morning, 
 
            he got up with no grasp in his hands and decided to go to a 
 
            doctor.  He stated that he was unable to drive so Michelle 
 
            drove him to the doctor.  According to Mark, the doctor told 
 
            him that he had carpal tunnel syndrome which was caused by 
 
            repetitive type of work.  He was prescribed Feldene and 
 
            wrist splints and was given a release to return to work.
 
            
 
                 When Mark reported to his employer, his employment was 
 
            terminated.  Lack of productivity was given as the reason 
 
            for his termination.  When released to resume work, he had a 
 
            restriction against repetitive hand grasping, pushing, 
 
            pulling or lifting in excess of 20 pounds (claimant's 
 
            exhibit 6).
 
            
 
                 The doctor claimant consulted was Scott D. Blair, M.D.  
 
            In his first report dated June 27, 1990, Dr. Blair reports 
 
            seeing claimant on February 27, 1990 and making an initial 
 
            diagnosis of bilateral carpal tunnel syndrome.  The report 
 
            states that the syndrome is a direct result of overused 
 
            muscle groups which swell and compress the median nerve.  It 
 
            further states it is usually seen with jobs requiring 
 
            repetitive motion.  Mark was released to resume light work 
 
            for three weeks (claimant's exhibit 1).  A subsequent report 
 
            dated August 10, 1990 relates that claimant was again seen 
 
            on July 11, 1990 at which time it appeared as though his 
 
            carpal tunnel syndrome had nearly resolved (claimant's 
 
            exhibit 2).  Dr. Blair charged $26 for each of the two 
 
            office calls (claimant's exhibits 3 and 4).  On the health 
 
            insurance claim form dated March 13, 1990, it is indicated 
 
            that the condition was not related to claimant's employment 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            (claimant's exhibit 4).  Such claims are generally denied by 
 
            the insurance carrier if it is indicated to be work related.  
 
            At the time the form was prepared, the employer had denied 
 
            the workers' compensation claim.  In Dr. Blair's other 
 
            reports, he states that claimant's condition is one which 
 
            generally arises from repetitive tasks which claimant did at 
 
            the book company where he was employed (claimant's exhibits 
 
            1 and 7).
 
            
 
                 Mark was subsequently examined by Joel T. Cotton, M.D., 
 
            on August 31, 1990.  At the time of the examination, Mark 
 
            did not exhibit any symptoms of carpal tunnel syndrome.  Dr. 
 
            Cotton found no permanent disability and also felt that Mark 
 
            had reached maximum medical benefit.  Dr. Cotton also states 
 
            that it is his opinion that claimant's brief period of 
 
            employment could not have caused bilateral carpal tunnel 
 
            syndrome (defendants' exhibits A and B).
 
            
 
                 It is found that Mark Clark did temporarily injure his 
 
            hands as a result of the work that he performed at Media 
 
            Printing on February 27, 1990.  It cannot be determined 
 
            whether the injury was fatigue, muscle strain, carpal tunnel 
 
            syndrome or some other type of overuse ailment.  It was, 
 
            nevertheless, temporary and had resolved by the time the 
 
            claimant saw Dr. Blair on July 11, 1990.  As indicated in 
 
            exhibit 1, claimant's light duty restriction was for three 
 
            weeks.  Three weeks is therefore determined to be the period 
 
            of temporary disability.  There is no medical evidence which 
 
            corroborates the existence of any disability beyond that 
 
            initial three-week period.  The credibility of Mark Clark 
 
            and Michelle Meyer is not sufficiently strong to establish 
 
            the existence of disability beyond those initial three weeks 
 
            without supporting medical corroboration.
 
            
 
                    
 
            
 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            conclusions of law
 
            
 
                 Claimant has the burden of proving by a preponderance 
 
            of the evidence that he received an injury on February 27, 
 
            1990 which arose out of and in the course of his employment. 
 
            McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa 
 
            1976); Musselman v. Cent. Tel. Co., 261 Iowa 352, 154 N.W.2d 
 
            128 (1967). 
 
            
 
                 Claimant's testimony as corroborated by the findings of 
 
            Dr. Blair in exhibit 1 is sufficient to establish by a 
 
            preponderance of the evidence that Mark Clark did sustain 
 
            injury arising out of and in the course of his employment on 
 
            February 27, 1990 as he alleged.
 
            
 
                 There was no claim that the injury was permanent.  In 
 
            fact, it was specifically stated that claimant made no claim 
 
            for permanent disability.  The evidence in the case does not 
 
            support any claim for permanent disability.  Claimant's only 
 
            entitlement is therefore temporary total disability 
 
            compensation pursuant to section 85.33(1).  Since the 
 
            medical restriction was for only three weeks and was not 
 
            renewed, it is determined that on March 20, 1990 Clark was 
 
            medically capable of returning to employment substantially 
 
            similar to that in which he was engaged at the time of 
 
            injury.  The entitlement to temporary total disability 
 
            therefore runs from February 27, 1990 through March 19, 
 
            1990.  February 26, 1990 was the last day of work before the 
 
            onset of disability.
 
            
 
                 The rate of compensation is an issue in this case only 
 
            from the standpoint of determining claimant's marital status 
 
            and exemptions.  If Mark and Michelle are to be treated as 
 
            being married, it must be established through common law.  
 
            The elements of a common law marriage are well settled in 
 
            this state, namely (1) a mutual present intent and agreement 
 
            to be married; (2) continuous cohabitation; and, (3) public 
 
            declaration that the parties are husband and wife.  In re 
 
            Marriage of Winegard, 278 N.W.2d 505, 510 (Iowa 1979).  The 
 
            burden of proof lies on the party asserting the existence of 
 
            a common law marriage by a preponderance of the evidence.  
 
            In re Marriage of Grother, 242 N.W.2d 1 (Iowa 1976).  Mere 
 
            proof of cohabitation is not sufficient.  In re Malli's 
 
            Estate, 260 Iowa 252, 149 N.W.2d 155 (1967).  Where two 
 
            persons expressly agree to be married and continuously 
 
            cohabit, but do not make public declaration of the marital 
 
            relationship, there is no common law marriage.  In re 
 
            Dallman's Estate, 228 N.W.2d 187 (Iowa 1975).  A contract 
 
            between the parties which implies that they will marry each 
 
            other at some point in the future does not establish a 
 
            common law marriage.  State v. Grimes, 215 Iowa 1278, 247 
 
            N.W. 664 (Iowa 1933).  Where cohabitation is illicit in the 
 
            beginning, namely where one party is married to another 
 
            person, affirmative proof is required of a subsequent 
 
            present intention to change that relationship into the 
 
            legitimate relationship of husband and wife in order to 
 
            establish a common law marriage.  In re Fisher's Estate, 176 
 
            N.W.2d 801 (Iowa 1970); In re Marriage of Grother, 242 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            N.W.2d 1 (Iowa 1976).  Only a lawful marriage entitles the 
 
            parties to the protections, rights and privileges of 
 
            spouses.  Laws v. Griep, 332 N.W.2d 339 (Iowa 1983).
 
            
 
                 While claimant indicated that he filed an income tax 
 
            return as being married, the year of that filing was not 
 
            introduced into the evidence.  If it was a filing made 
 
            subsequent to the injury, it is not particularly convincing 
 
            of a public holding out of being husband and wife.  While 
 
            Mark related that he referred to the relationship when 
 
            talking to other people as being "married," that statement 
 
            is not corroborated by other evidence in the record.  It is 
 
            contradicted by his actions in the statement given to the 
 
            insurance investigator and his income tax withholding 
 
            declaration.  In any event, it appears as though Michelle 
 
            was still legally married to her former husband until her 
 
            divorce became final in July 1990.  She could not have been 
 
            Mark's common law wife in February 1990.  It is concluded 
 
            that claimant has failed to prove by a preponderance of the 
 
            evidence that a common law marriage existed between himself 
 
            and Michelle Meyer.  One may have been created subsequent to 
 
            the injury, at or about the time of filing his 1990 income 
 
            tax return in early 1991, but such would not relate back to 
 
            the date of injury in February 1990.  Since the exemptions 
 
            used in computing the workers' compensation rate are based 
 
            upon the entitlement to claim the individuals as dependents 
 
            for income tax purposes, Mark is not entitled to claim an 
 
            exemption for Michelle or her children since they were not 
 
            related to him by blood or marriage at the time of injury.  
 
            Mark is therefore determined to have been single with two 
 
            exemptions for his children as well as an exemption for 
 
            himself.  Biggs v. Donner, II Iowa Industrial Commissioner 
 
            Report 34, 38 (App. Decn. 1982).  Under the 1989 benefit 
 
            booklet, a single employee entitled to three exemptions who 
 
            has gross weekly wages of $170 is entitled to weekly 
 
            compensation at the rate of $120.30.
 
            
 
                 Mark seeks payment of his medical expenses with Dr. 
 
            Blair.  It is concluded that he is entitled to recover them 
 
            in the total amount of $52.
 
            
 
                           
 
            
 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            order
 
            
 
                 IT IS THEREFORE ORDERED that defendants pay Mark W. 
 
            Clark three (3) weeks of compensation for temporary total 
 
            disability at the rate of one hundred twenty and 30/100 
 
            dollars ($120.30) per week payable commencing February 27, 
 
            1990.  The entire amount thereof is past due and owing and 
 
            shall be paid to claimant in a lump sum together with 
 
            interest pursuant to section 85.30 computed from the date 
 
            each weekly payment came due until the date of actual 
 
            payment.
 
            
 
                 IT IS FURTHER ORDERED that defendants pay claimant's 
 
            expenses with Dr. Blair in the amount of fifty-two and 
 
            00/100 dollars ($52.00).
 
            
 
                 IT IS FURTHER ORDERED that the costs of this action are 
 
            assessed against defendants pursuant to rule 343 IAC 4.33.
 
            
 
                 IT IS FURTHER ORDERED that defendants file claim 
 
            activity reports as requested by this agency pursuant to 
 
            rule 343 IAC 3.1.
 
            
 
                 Signed and filed this ______ day of ____________, 1991.
 
            
 
                 
 
            
 
                 
 
                 
 
                                          ______________________________
 
                                          MICHAEL G. TRIER
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. F. J. Kraschel
 
            Ms. Susan M. Conroy
 
            Attorneys at Law
 
            403 Metropolitan Federal Bank
 
            Council Bluffs, Iowa  51503
 
            
 
            Ms. Judith Ann Higgs
 
            Attorney at Law
 
            200 Home Federal Building
 
            P.O. Box 3086
 
            Sioux City, Iowa  51102
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                           5-1402.20; 5-1402.30
 
                           1801; 3002
 
                           Filed August 9, 1991
 
                           MICHAEL G. TRIER
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            MARK W. CLARK, :
 
                      :
 
                 Claimant, :
 
                      :
 
            vs.       :
 
                      :         File No. 936973
 
            MEDIA PRINTING,     :
 
                      :      A R B I T R A T I O N
 
                 Employer, :
 
                      :         D E C I S I O N
 
            and       :
 
                      :
 
            AETNA CASUALTY & SURETY  :
 
            COMPANY,  :
 
                      :
 
                 Insurance Carrier,  :
 
                 Defendants.    :
 
            ____________________________________________________________
 
            
 
            5-1402.20; 5-1402.30; 3002
 
            Claimant's claimed common law marriage was rejected.  He was 
 
            not entitled to be treated as married or to claim exemptions 
 
            for the woman with whom he lived or her children in the 
 
            absence of the existence of a lawful marriage at the time of 
 
            injury.
 
            
 
            1801
 
            In a case with minimal medical evidence, the award of 
 
            temporary total disability was limited to the time that the 
 
            doctor indicated claimant should follow activity 
 
            restrictions, even though the next medical appointment was 
 
            approximately three months later and it was at that time 
 
            that the doctor indicated that the complaints had resolved.