BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         ____________________________________________________________
 
                                       :
 
         MICHAEL DREHER,               :
 
                                       :
 
              Claimant,                :
 
                                       :
 
         vs.                           :
 
                                       :      File No. 940605
 
         VERNON CAMPBELL TRUCKING,     :
 
                                       :        A P P E A L
 
              Employer,                :
 
                                       :      D E C I S I O N
 
         and                           :
 
                                       :
 
         THE HARTFORD,                 :
 
                                       :
 
              Insurance Carrier,       :
 
              Defendants.              :
 
         ___________________________________________________________
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              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.
 
         
 
                                      ISSUES
 
         
 
              Those portions of the proposed agency decision pertaining to 
 
         issues not raised on appeal are adopted as a part of this appeal 
 
         decision.  The issues raised on appeal are:
 
         
 
                I.  Did the deputy err in concluding that the 
 
              employer had actual notice of an injury within ninety 
 
              days as is required by Iowa Code section 85.23?
 
         
 
               II.  Did the deputy err in concluding that the 
 
              claimant had an injury arising out of and in the course 
 
              of his employment that was causally connected to his 
 
              current disability?
 
         
 
              III.  Did the deputy err in awarding workers' 
 
              compensation benefits to the claimant?
 
         
 
                                 FINDINGS OF FACT
 
         
 
              The findings of fact contained in the proposed agency 
 
         decision filed August 18, 1992 are adopted as final agency 
 
         action.
 
         
 
              Claimant was born on March 18, 1951, and completed the 
 
         twelfth grade of school in 1969.  Claimant attended and completed 
 
         a truck driving course.  He commenced working for employer on 
 
         June 15, 1987.  His prior work activity was as a machine 
 
         operator, grounds keeper, mail room attendant, and over-the-road 
 

 
         
 
         Page   2
 
         
 
         
 
         
 
         
 
         
 
         
 
         truck driver.
 
         
 
              Claimant testified that while in the employ of Campbell 
 
         Trucking, he drove a 1977 Kenwood cab about 75 percent of the 
 
         time.  He hauled milk and drove an average of 2,500 miles per 
 
         week or 500 miles per day.  He described the vehicle as old, in 
 
         poor repair and without power steering.  He stated that his runs 
 
         were uncomfortable, especially when the truck was empty, and he 
 
         endured many years of jostling, jogging and bouncing around in 
 
         the truck.  In May 1988, he began to experience severe and 
 
         intractable back pain which ultimately resulted in surgery in 
 
         July of 1988 and again in September of 1990.
 
         
 
              Claimant testified that one week prior to the July 1988 
 
         surgery, he informed his employer that he was having back 
 
         problems which required surgery.  He admitted that at this time 
 
         he did not tell him his problems were work related because he was 
 
         not certain of the origin.  He was off work for about four months 
 
         and at employer's request, checked in with him once a month.  
 
         Claimant testified that he did not realize the workers' 
 
         compensation significance of his back problems and only after 
 
         discussing his situation with his attorney in March of 1990 did 
 
         he understand that he could file a workers' compensation claim.  
 
         This claim was filed on May 24, 1990.
 
         
 
              The parties have stipulated that claimant was off work from 
 
         July 20, 1988 through November 11, 1988, and from July 16, 1990 
 
         through November 16, 1990, for treatment of back problems.  
 
         Claimant's employment with employer was terminated on December 
 
         22, 1989 for reasons unrelated to his medical problems.
 
         
 
              The pertinent medical evidence of record reveals that 
 
         claimant has treated with Gary E. Anderson, D.O., since August 9, 
 
         1976 for various medical problems including urinary tract 
 
         infection, vomiting, cellulitis, low back pain, chest discomfort 
 
         and low back strain.  On May 5, 1988, he presented to Dr. 
 
         Anderson with lower back pain radiating down the right leg.  
 
         These symptoms were still present during an examination on June 
 
         2, 1988.  Dr. Anderson diagnosed sciatica and prescribed 
 
         medication.  The same symptoms were present in July 1988 and Dr. 
 
         Anderson admitted claimant to Mercy Hospital on July 19, 1988 for 
 
         further evaluation.  A myelogram was performed and revealed a 
 
         large extradural defect at L5-S1 on the right side, consistent 
 
         with a herniated disc.  Claimant was taken to surgery on July 20, 
 
         1988.  Richard A. Roski, M.D., performed a unilateral discectomy 
 
         at L5-S1.  Claimant was discharged on July 23, 1988, with 
 
         excellent relief of his pain (Exhibit D).
 
         
 
              Claimant was followed by Dr. Roski for follow-up evaluations 
 
         in August, September and October 1988.  Dr. Roski put claimant in 
 
         physical therapy at River Rehabilitation on September 19, 1988.  
 
         On October 19, 1988, Dr. Roski reported that claimant should be 
 
         able to return to work after another month of therapy.  At this 
 
         time, he had negative straight leg raising and no sensory changes 
 
         (Ex. I, p. 4).
 
         
 
              In March 1990, claimant presented to Dr. Anderson with 
 
         recurrence of lower back pain, cramping in the left leg and 
 

 
         
 
         Page   3
 
         
 
         
 
         
 
         
 
         
 
         
 
         numbness in his toes.  The pain was especially severe with 
 
         prolonged standing or lifting (Ex. C, p. 9).
 
         
 
              Dr. Anderson referred claimant for an MRI scan of the lumbar 
 
         spine on April 5, 1990.  The results suggested a soft tissue 
 
         abnormality at L5-S1 on the right.  A repeat MRI scan was 
 
         performed on April 19, 1990, for purposes of comparison.  This 
 
         test revealed no evidence of scar tissue at the L5-S1 level but 
 
         did reveal a small recurrent herniated intervertebral disc on the 
 
         right side at this level (Ex. F, p. 1).
 
         
 
              Claimant presented to Dr. Roski on June 6, 1990, with 
 
         complaints of pain across the low back and occasional pain 
 
         extending down the right leg.  An EMG study was recommended and 
 
         performed in July 1990.  The results were consistent with right 
 
         S1 radiculopathy (Ex. I, p. 5).
 
         
 
              Dr. Roski admitted claimant to Mercy Hospital on July 16, 
 
         1990.  A myelogram was obtained and showed nerve root cut off at 
 
         L5-S1 on the right side.  He was taken to surgery the following 
 
         day.  An extensive redo discectomy at L5-S1 was performed.  
 
         Claimant was discharged on July 20, 1990 (Ex. E).
 
         
 
              Claimant was seen by Dr. Roski for follow-up examinations 
 
         subsequent to surgery.  On January 7, 1990, claimant reported 
 
         persistent numbness in the right foot and some occasional 
 
         cramping (Ex. I, p. 6).
 
         
 
              On November 19, 1991, Dr. Roski gave claimant a 12 percent 
 
         impairment rating of the whole person (Ex. I, p. 3).
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              The first issue to be determined is whether claimant gave 
 
         timely notice of a workers' compensation claim as required by 
 
         Iowa Code section 85.23 and whether defendants had actual 
 
         knowledge of an injury within 90 days from the date of the 
 
         occurrence.
 
         
 
     
 
         
 
         
 
         Page   4
 
         
 
         
 
         
 
         
 
         
 
         
 
         Iowa Code section 85.23 provides:
 
         
 
                 Unless the employer or the employer's representative 
 
              shall have actual knowledge of the occurrence of an 
 
              injury received within ninety days from the date of the 
 
              occurrence of the injury, or unless the employee or 
 
              someone on the employee's behalf or a dependent or 
 
              someone on the dependent's behalf shall give notice 
 
              thereof to the employer within ninety days from the 
 
              date of the occurrence of the injury, no compensation 
 
              shall be allowed.
 
         
 
              Failure to give timely notice is an affirmative defense 
 
         which defendants must prove by a preponderance of the evidence.  
 
         DeLong v. Highway Commissioner, 229 Iowa 700, 295 N.W. 91 
 
         (1940); Reddick v. Grand Union Tea Co., 230 Iowa 108, 296 N.W. 
 
         800 (1941); Mefferd v. Ed Miller & Sons, Inc., Thirty-third 
 
         Biennial Report of the Industrial Commissioner 191 (Appeal 
 
         Decision 1977).
 
         
 
              The purpose of the 90-day notice requirement or the actual 
 
         knowledge requirement is to give the employer an opportunity to 
 
         timely investigate the circumstances of the alleged injury.  
 
         Knipe v. Skelgas Company, 229 Iowa 740, 759, 294 N.W. 880, 884 
 
         (1941); Hobbs v. Sioux City, 231 Iowa 860, 2 N.W.2d 275 (Iowa 
 
         1942); Robinson v. Department of Transportation, 296 N.W.2d 809 
 
         (Iowa 1980); Dillinger v. City of Sioux City, 368 N.W.2d 176 
 
         (Iowa 1985).
 
         
 
              Under Iowa Code section 85.23, claimant was obligated to 
 
         give his employer notice of his injury within 90 days.   The 
 
         record shows that claimant did not give written notice to the 
 
         employer of the injury until he filed his petition on May 24, 
 
         1990.  Claimant underwent back surgery in July of 1988, and again 
 
         in September of 1990.  Claimant acknowledged that at the time of 
 
         his surgeries, he did not inform his doctors or the hospitals 
 
         that his back condition was possibly work related.  The bills 
 
         were paid by claimant's wife's general medical insurance.
 
         
 
              Claimant's testimony shows that he was not aware that his 
 
         back injury may have been compensable under workers' compensation 
 
         until he consulted his attorney in March of 1990.  
 
         
 
              When claimant left work to undergo surgery, he did not 
 
         inform the employer that his back condition was possibly work 
 
         related.  The employer is entitled to be notified that a work 
 
         injury has occurred.  By not putting the employer on notice, the 
 
         employer was denied both the opportunity to investigate the 
 
         possible work injury, and the opportunity to choose claimant's 
 
         physician for treatment of the condition.
 
         
 
              Merely informing the employer that he was about to undergo 
 
         back surgery does not satisfy the requirements of section 85.23.  
 
         Under Robinson v. Dept. of Transportation, 296 N.W.2d 809, 811 
 
         (Iowa 1980), an employer is entitled under 85.23 to notice not 
 
         only that a worker has a medical condition, but also to notice 
 
         that the condition is work related.  In this case, claimant's 
 
         notice to his employer that he was about to undergo back surgery 
 

 
         
 
         Page   5
 
         
 
         
 
         
 
         
 
         
 
         
 
         did not put the employer on notice that the condition was work 
 
         related.  It is incumbent upon claimant to communicate the work 
 
         related nature of his condition to his employer.  It is not the 
 
         employer's obligation to investigate every employee illness for 
 
         possible workers' compensation liability.
 
         
 
              Claimant's back condition was the result of a cumulative 
 
         injury.  Under McKeever Custom Cabinets v. Smith, 379 N.W.2d 368 
 
         (Iowa 1985), claimant's date of injury was July, 1988, when he 
 
         was compelled to leave work due to his back condition.  Claimant 
 
         knew at that time that his back condition was due to his activity 
 
         as a truck driver, but as he testified he did not understand that 
 
         such an injury was possibly compensable under workers' 
 
         compensation.  As a result, he did not notify the employer within 
 
         90 days of the injury that it was work related.  Claimant was 
 
         aware in July, 1988, that his back condition was both serious and 
 
         work related.  Claimant's lack of knowledge of the law does not 
 
         negate his noncompliance with 85.23.  Koopmans v. Iowa Electric 
 
         Light and Power, file number 694831 (App. Dec. 1987).
 
         
 
              Claimant did not comply with the requirements of Iowa Code 
 
         section 85.23, and is thus not entitled to benefits. 
 
         
 
              WHEREFORE, the decision of the deputy is reversed.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, it is ordered:
 
         
 
              That claimant shall take nothing from these proceedings.
 
         
 
              That claimant shall pay the costs of the appeal including 
 
         the transcription of the hearing.  Defendants shall pay all other 
 
         costs.
 
         
 
              Signed and filed this ____ day of July, 1993.
 
         
 
         
 
         
 
         
 
                                       ________________________________
 
                                                BYRON K. ORTON
 
                                           INDUSTRIAL COMMISSIONER
 

 
         
 
         Page   6
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         Copies To:
 
         
 
         Mr. Michael T. Hines
 
         Attorney at Law
 
         701 Kahl Building
 
         Davenport, Iowa  52801
 
         
 
         Mr. Greg A. Egbers
 
         Attorney at Law
 
         600 Union Arcade Building
 
         111 East 3rd Street
 
         Davenport, Iowa  52801
 
 
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                          2401; 5-1802; 5-1803; 5-2500
 
                                          Filed July 29, 1993
 
                                          BYRON K. ORTON
 
                                          
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            MICHAEL DREHER,               :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 940605
 
            VERNON CAMPBELL TRUCKING,     :
 
                                          :        A P P E A L
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            THE HARTFORD,                 :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            2401
 
            
 
                 Failure to give notice is an affirmative defense with 
 
            the burden of proof on the employer.  Mefferd v. Ed Miller & 
 
            Sons, Inc., Thirty-three Biennial Report, Iowa Industrial 
 
            Commissioner 191, 192 (Appeal Decision 1977).
 
            
 
                 Claimant, a truck driver, began to experience back 
 
            symptoms in May 1988.  Subsequent evaluations revealed a 
 
            large extradural defect at L5-Sl on the right.  On July 20, 
 
            1988, he underwent unilateral discectomy at L5-Sl.  Claimant 
 
            admitted that while employer was aware of his back problems 
 
            and surgery, he had no notice that claimant sustained a work 
 
            injury until May 1990 when claimant filed his original 
 
            notice and petition.  Claimant admitted he did not realize 
 
            his back condition was compensable until his attorney 
 
            advised him of this.
 
            
 
                 Held that mere fact that claimant advised his employer 
 
            he was undergoing surgery for his back did not give the 
 
            employer notice of the work-relatedness of the condition.  
 
            Employer carried its burden of proof to show that it was not 
 
            notified of the work injury under 85.23.  The claimant is 
 
            obligated to notify the employer of his work injury.  The 
 
            employer is not obligated to investigate every employee 
 
            illness to ascertain whether it might be work related.  
 
            Benefits denied.
 
            
 
 
            
 
            
 
            
 
            
 
            
 
            
 
                       BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            MICHAEL DREHER,               :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 940605
 
            VERNON CAMPBELL TRUCKING,     :
 
                                          :     A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            THE HARTFORD,                 :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This is a proceeding in arbitration brought by Michael 
 
            Dreher, claimant, against Vernon Campbell Trucking, 
 
            employer, and The Hartford, insurance carrier, to recover 
 
            benefits under the Iowa Workers' Compensation Act as a 
 
            result of an alleged injury sustained on July 19, 1988.  
 
            This matter came on for hearing before the undersigned 
 
            deputy industrial commissioner on July 29, 1992, in 
 
            Davenport, Iowa.  The record was considered fully submitted 
 
            at the close of the hearing.  Claimant was present and 
 
            testified.  Also present and testifying were Marilyn Dreher 
 
            and Vernon Campbell.  The documentary evidence identified in 
 
            the record consists of joint exhibits A through K, and 
 
            claimant's exhibit 1.
 
            
 
                                      ISSUES
 
            
 
                 Pursuant to the prehearing report and order dated July 
 
            29, 1992, the parties have presented the following issues 
 
            for resolution:
 
            
 
                 1.  Whether claimant sustained an injury on July 19, 
 
            1988, which arose out of and in the course of employment 
 
            with employer;
 
            
 
                 2.  Whether the alleged injury is the cause of 
 
            temporary and permanent disability;
 
            
 
                 3.  The extent of entitlement to weekly compensation 
 
            for temporary total disability or healing period benefits 
 
            and permanent disability benefits, if any;
 
            
 
                 4.  The extent of entitlement to permanent disability 
 
            benefits, if any,  and the commencement date; and,
 
            
 
                 5.  Whether claimant is entitled to medical expenses 
 
            pursuant to Iowa Code section 85.27.
 

 
            
 
            Page   2
 
            
 
            
 
            
 
                 Defendants raise an affirmative defense that claimant 
 
            failed to give notice of his injury within ninety days of 
 
            its occurrence.
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 The undersigned has carefully considered all the 
 
            testimony given at the hearing, arguments made, evidence 
 
            contained in the exhibits, and makes the following findings:
 
            
 
                 Claimant was born on March 18, 1951, and completed the 
 
            twelfth grade of school in 1969.  Claimant attended and 
 
            completed a truck driving course.  He commenced working for 
 
            employer on June 15, 1987.  His prior work activity was as a 
 
            machine operator, grounds keeper, mail room attendant, and 
 
            over-the-road truck driver.
 
            
 
                 Claimant testified that while in the employ of Campbell 
 
            Trucking, he drove a 1977 Kenwood cab about 75 percent of 
 
            the time.  He hauled milk and drove an average of 2,500 
 
            miles per week or 500 miles per day.  He described the 
 
            vehicle as old, in poor repair and without power steering.  
 
            He stated that his runs were uncomfortable, especially when 
 
            the truck was empty, and he endured many years of jostling, 
 
            jogging and bouncing around in the truck.  In May 1988, he 
 
            began to experience severe and intractable back pain which 
 
            ultimately resulted in surgery in July of 1988 and again in 
 
            September of 1990.
 
            
 
                 Claimant testified that one week prior to the July 1988 
 
            surgery, he informed his employer that he was having back 
 
            problems which required surgery.  He admitted that at this 
 
            time he did not tell him his problems were work related 
 
            because he was not certain of the origin.  He was off work 
 
            for about four months and at employer's request, checked in 
 
            with him once a month.  Claimant testified that he did not 
 
            realize the workers' compensation significance of his back 
 
            problems and only after discussing his situation with his 
 
            attorney in March of 1990 did he understand that he could 
 
            file a workers' compensation claim.  This claim was filed on 
 
            May 24, 1990.
 
            
 
                 The parties have stipulated that claimant was off work 
 
            from July 20, 1988 through November 11, 1988, and from July 
 
            16, 1990 through November 16, 1990, for treatment of back 
 
            problems.  Claimant's employment with employer was 
 
            terminated on December 22, 1989 for reasons unrelated to his 
 
            medical problems.
 
            
 
                 The pertinent medical evidence of record reveals that 
 
            claimant has treated with Gary E. Anderson, D.O., since 
 
            August 9, 1976 for various medical problems including 
 
            urinary tract infection, vomiting, cellulitis, low back 
 
            pain, chest discomfort and low back strain.  On May 5, 1988, 
 
            he presented to Dr. Anderson with lower back pain radiating 
 
            down the right leg.  These symptoms were still present 
 
            during an examination on June 2, 1988.  Dr. Anderson 
 
            diagnosed sciatica and prescribed medication.  The same 
 
            symptoms were present in July 1988 and Dr. Anderson admitted 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            claimant to Mercy Hospital on July 19, 1988 for further 
 
            evaluation.  A myelogram was performed and revealed a large 
 
            extradural defect at L5-S1 on the right side, consistent 
 
            with a herniated disc.  Claimant was taken to surgery on 
 
            July 20, 1988.  Richard A. Roski, M.D., performed a 
 
            unilateral discectomy at L5-S1.  Claimant was discharged on 
 
            July 23, 1988, with excellent relief of his pain (Exhibit 
 
            D).
 
            
 
                 Claimant was followed by Dr. Roski for follow-up 
 
            evaluations in August, September and October 1988.  Dr. 
 
            Roski put claimant in physical therapy at River 
 
            Rehabilitation on September 19, 1988.  On October 19, 1988, 
 
            Dr. Roski reported that claimant should be able to return to 
 
            work after another month of therapy.  At this time, he had 
 
            negative straight leg raising and no sensory changes (Ex. I, 
 
            p. 4).
 
            
 
                 In March 1990, claimant presented to Dr. Anderson with 
 
            recurrence of lower back pain, cramping in the left leg and 
 
            numbness in his toes.  The pain was especially severe with 
 
            prolonged standing or lifting (Ex. C, p. 9).
 
            
 
                 Dr. Anderson referred claimant for an MRI scan of the 
 
            lumbar spine on April 5, 1990.  The results suggested a soft 
 
            tissue abnormality at L5-S1 on the right.  A repeat MRI scan 
 
            was performed on April 19, 1990, for purposes of comparison.  
 
            This test revealed no evidence of scar tissue at the L5-S1 
 
            level but did reveal a small recurrent herniated 
 
            intervertebral disc on the right side at this lever (Ex. F, 
 
            p. 1).
 
            
 
                 Claimant presented to Dr. Roski on June 6, 1990, with 
 
            complaints of pain across the low back and occasional pain 
 
            extending down the right leg.  An EMG study was recommended 
 
            and performed in July 1990.  The results were consistent 
 
            with right S1 radiculopathy (Ex. I, p. 5).
 
            
 
                 Dr. Roski admitted claimant to Mercy Hospital on July 
 
            16, 1990.  A myelogram was obtained and showed nerve root 
 
            cut off at L5-S1 on the right side.  He was taken to surgery 
 
            the following day.  An extensive redo discectomy at L5-S1 
 
            was performed.  Claimant was discharged on July 20, 1990 
 
            (Ex. E).
 
            
 
                 Claimant was seen by Dr. Roski for follow-up 
 
            examinations subsequent to surgery.  On January 7, 1990, 
 
            claimant reported persistent numbness in the right foot and 
 
            some occasional cramping (Ex. I, p. 6).
 
            
 
                 On November 19, 1991, Dr. Roski gave claimant a 12 
 
            percent impairment rating of the whole person (Ex. I, p. 3).
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                 The first issue to be determined is whether claimant 
 
            gave timely notice of a workers' compensation claim as 
 
            required by Iowa Code section 85.23 and whether defendants 
 
            had actual knowledge of an injury within ninety days from 
 
            the date of the occurrence.
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
                 Iowa Code section 85.23 provides:
 
            
 
                    Unless the employer or the employer's 
 
                 representative shall have actual knowledge of the 
 
                 occurrence of an injury received within ninety 
 
                 days from the date of the occurrence of the 
 
                 injury, or unless the employee or someone on the 
 
                 employee's behalf or a dependent or someone on the 
 
                 dependent's behalf shall give notice thereof to 
 
                 the employer within ninety days from the date of 
 
                 the occurrence of the injury, no compensation 
 
                 shall be allowed.
 
            
 
                 Failure to give timely notice is an affirmative defense 
 
            which defendants must prove by a preponderance of the 
 
            evidence.  DeLong v. Highway Commissioner, 229 Iowa 700, 295 
 
            N.W. 91 (1940); Reddick v. Grand Union Tea Co., 230 Iowa 
 
            108, 296 N.W. 800 (1941); Mefferd v. Ed Miller & Sons, Inc., 
 
            Thirty-third Biennial Report of the Industrial Commissioner 
 
            191 (Appeal Decision 1977).
 
            
 
                 The purpose of the 90-day notice requirement or the 
 
            actual knowledge requirement is to give the employer an 
 
            opportunity to timely investigate the circumstances of the 
 
            alleged injury.  Knipe v. Skelgas Company, 229 Iowa 740, 
 
            759, 294 N.W. 880, 884 (1941); Hobbs v. Sioux City, 231 Iowa 
 
            860, 2 N.W.2d 275 (Iowa 1942); Robinson v. Department of 
 
            Transportation, 296 N.W.2d 809 (Iowa 1980); Dillinger v. 
 
            City of Sioux City, 368 N.W.2d 176 (Io    told employer that he hurt his back on the job.  He admitted 
 
            that the first time employer had actual knowledge that 
 
            claimant's July 19, 1988 injury may be work related was when 
 
            he filed his lawsuit in this case.  However, he further 
 
            stated that he was not knowledgeable regarding workers' 
 
            compensation claims and thought that back problems were not 
 
            compensable injuries.  Claimant's only experience with 
 
            workers' compensation was an instance where a co-employee 
 
            was involved in an industrial accident and lost some of the 
 
            fingers on his hand.  He testified that he first became 
 
            aware of the possibility that he had a workers' compensation 
 
            claim against employer when he obtained legal counseling 
 
            pursuant to his unemployment compensation appeal in March 
 
            1990.  Claimant also testified that he gave defendant work 
 
            releases from Dr. Anderson after both surgeries.  He stated 
 
            he sent these releases to Mr. Campbell along with his DOT 
 
            log book.  However, there is no indication in Dr. Anderson's 
 
            treatment notes regarding either a work-related or 
 
            work-suspected injury or notations regarding any work 
 
            release.
 
            
 
                 Mr. Campbell testified that in the summer of 1988, 
 
            claimant informed him that he was going to take some time 
 
            off from work in order to have surgery due to an old back 
 
            injury.  He stated when claimant returned to work, he did 
 
            not request verification of the surgery or a doctor's 
 
            release.  In a deposition on July 14, 1992, Mr. Campbell 
 
            testified that no workers' compensation claims were filed 
 
            against him in the ten years that he operated Vernon 
 
            Campbell Trucking (Ex. K, p. 14).  However, at the hearing 
 
            he admitted that workers' compensation claims have, in fact, 
 
            been filed against Vernon Trucking in the past ten years.
 
            
 
                 As previously stated, generally, the employer must have 
 
            either actual knowledge or notice of an injury within ninety 
 
            days of the "occurrence of any injury" or the employee is 
 
            barred from recovering workers' compensation.  Iowa Code 
 
            sections 85.23, 85.25.  The sole purpose of this requirement 
 
            is to give the employer an opportunity to investigate the 
 
            injury.  Robinson, at 275, 276 (1942).  Due to the 
 
            interpretation the Iowa Supreme Court has given this 
 
            requirement, only in a rare case will the employee be barred 
 
            for failing to give notice.  Ducey v. Hyzer Brokerage Co., 
 
            IV Iowa Indus. Comm'r Rep. 104 (1984).
 
            
 
                 The discovery rule has been applied to the notice 
 
            requirement of Iowa Code section 85.23.  Jacques, at 239-240 
 
            (1951).  As a result, the 90-day time period forgiving 
 
            notice to the employer does not begin until the worker 
 
            should know his injury is "both serious and work-connected."  
 
            Robinson at 812 (Iowa 1980).  The standard in determining 
 
            whether the employee "should know" is that of a reasonable 
 
            man with his education and intelligence.  The claimant may 
 
            have possession of the facts, but he may not understand the 
 
            interrelationship of those facts so that his duty to give 
 
            notice is triggered.  Householder v. City of Centerville, 
 
            II-No. 1 Iowa Ind. Comm'r Rep. (December 3, 1980) (Appeal 
 
            Decision 1984).
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
                 In the instant case, claimant, a person of at least 
 
            average intelligence, experienced severe and intractable 
 
            back pain in May 1988.  Two months later, he underwent 
 
            surgery.  Claimant testified that he had been relatively 
 
            asymptomatic until May of 1988.
 
            
 
                 Defendant testified that he had no idea that claimant's 
 
            surgery might involve a potential compensation claim.  The 
 
            undersigned finds this assertion incredulous.  Mr. Campbell 
 
            testified that he made no inquiry as to why claimant was 
 
            absent from work because he felt it was none of his 
 
            business.  This assertion is preposterous.  Of course, as 
 
            owner/manager of a business, absenteeism on the part of an 
 
            employee is very much his business.  Claimant testified that 
 
            he apprised employer of his health status every month during 
 
            his convalescence.   Defendant denied the same and stated 
 
            that he made no inquiry as to claimant's health status 
 
            during the time he was off work.
 
            
 
                 Defendant, as a reasonable conscientious manager, had 
 
            to be aware that claimant's surgery for back problems might 
 
            involve a potential compensation claim.  At the time, 
 
            claimant had worked for employer without medical 
 
            restrictions for a year or more.  A report by claimant that 
 
            he was under the doctor's care for back problems, should 
 
            have raised employer's suspicions that he was dealing with a 
 
            potential compensation claim.  Claimant gave enough 
 
            information to employer to put him on notice as to the 
 
            possibility of a claim.  Dillinger v. City of Sioux City, 
 
            368 N.W.2d 176, 180 (Iowa 1985).
 
            
 
                 Therefore, defendants have not sustained their burden 
 
            of proof by a preponderance of the evidence that claimant 
 
            failed to give timely notice of a workers' compensation 
 
            claim as required by Iowa Code section 85.23.  Defendants' 
 
            assertions are not found to be plausible and, therefore, not 
 
            entitled to significant weight and consideration.
 
            
 
                 The next issue to be determined is whether claimant 
 
            sustained an injury on July 19, 1988, which arose out of and 
 
            in the course of his employment with employer.
 
            
 
                 Claimant has the burden of proving by a preponderance 
 
            of the evidence that he received an injury on July 19, 1988, 
 
            which arose out of and in the course of his employment. 
 
            McDowell v. Town of Clarksville, 241 N.W.2d 904, 908 (Iowa 
 
            1976); Musselman v. Central Telephone Co., 154 N.W.2d 128, 
 
            130 (Iowa 1967).  The words "arising out of" have been 
 
            interpreted to refer to the cause and origin of the injury.  
 
            McClure v. Union County, 188 N.W.2d 283, 287 (Iowa 1971);   
 
            Crowe v. DeSoto Consolidated School District, 68 N.W.2d 63, 
 
            65 (Iowa 1955).  The words "in the course of" refer to the 
 
            time, place and circumstances of the injury.  McClure, 188 
 
            N.W.2d at 287; Crowe, 68 N.W.2d at 65.  An injury occurs in 
 
            the course of the employment when it is within the period of 
 
            employment at a place the employee may reasonably be, and 
 
            while the employee is doing work assigned by the employer or 
 
            something incidental to it.  Cedar Rapids Community School 
 
            District v. Cady, 278 N.W.2d 298, 299 (Iowa 1979), McClure 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            188 N.W.2d at 287; Musselman, 154 N.W.2d at 130. 
 
            
 
                 The Supreme Court has defined a personal injury for the 
 
            purposes of workers' compensation cases.  Almquist v. 
 
            Shenandoah Nurseries, 254 N.W. 35, 38 (Iowa 1934).  In this 
 
            case the Court found that a personal injury, is an injury to 
 
            the body, the impairment of health, or a disease, not 
 
            excluded by the Workers Compensation Act, which comes about, 
 
            not through the natural building up and tearing down of the 
 
            human body, but because of a traumatic or other hurt or 
 
            damage to the health or body of an employee.  The injury to 
 
            the human body must be something, whether an accident or 
 
            not, that acts extraneously to the natural processes of 
 
            nature, and thereby impairs the health, overcomes, injures, 
 
            interrupts, or destroys some function of the body, or 
 
            otherwise damages or injures a part or all of the body.  
 
            
 
                 The Almquist Court further observed that while a 
 
            personal injury does not include an occupational disease 
 
            under the Workmen's Compensation Act, yet an injury to the 
 
            health may be a personal injury.  A personal injury includes 
 
            a disease resulting from an injury.  However, the result of 
 
            changes in the human body incident to the general processes 
 
            of nature do not amount to a personal injury.  This is true, 
 
            even though natural change may come about because the life 
 
            has been devoted to labor and hard work.  Results of those 
 
            natural changes do not constitute a personal injury even 
 
            though the same brings about impairment of health or the 
 
            total or partial incapacity of the functions of the human 
 
            body. 
 
            
 
                 The Supreme Court has also recognized that a cumulative 
 
            injury may occur over a period of time.  The injury in such 
 
            cases occurs when, because of pain or physical disability, 
 
            the claimant is compelled to leave work.  McKeever Custom 
 
            Cabinets v. Smith, 379 N.W.2d 368, 374 (Iowa 1985).  
 
            Moreover, claimant's last employer becomes liable for the 
 
            cumulative injury, even if the incidents that lead to the 
 
            ultimate injury do not occur while a claimant is employed 
 
            with the last employer.  McKeever, 379 N.W.2d at 376; See 
 
            also, Doerfer Division of CCA v. Nicol, 359 N.W.2d 428, 
 
            434-35 (Iowa 1984).
 
            
 
                 A review of the medical evidence indicates that prior 
 
            to May 1988, claimant was relatively asymptomatic with 
 
            regard to back complaints.  Although he occasionally 
 
            experienced back discomfort, it was never serious enough to 
 
            preclude him from working or to receive treatment.  Claimant 
 
            commenced working for employer in June 1987 on a part-time 
 
            basis and started full-time duties in January 1988.  His job 
 
            involved extensive traveling and he logged 2500 miles per 
 
            week.  Claimant had to sit in an uncomfortable seat for 
 
            prolonged periods of time while driving employer's truck 
 
            which was not equipped with power steering.  Even if 
 
            claimant had previous low back problems which were 
 
            asymptomatic, it is evident that he experienced a marked 
 
            worsening of his problems after driving employer's truck.
 
            
 
                 The greater weight of the evidence supports the finding 
 
            that claimant has shown by a preponderance of the evidence 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            that his back injury arose out of and in the course of his 
 
            employment with employer.
 
            
 
                 Since claimant has suffered an injury, the next 
 
            question to be resolved is whether the injury has caused a 
 
            permanent disability.  The claimant has the burden of 
 
            proving by a preponderance of the evidence that the injury 
 
            of July 19, 1988, is causally related to the disability on 
 
            which he now bases his claim.  Bodish v. Fischer, Inc., 133 
 
            N.W.2d 867, 868 (Iowa 1965);  Lindahl v. L. O. Boggs, 18 
 
            N.W.2d 607, 613-14 (Iowa 1945).  A possibility is 
 
            insufficient; a probability is necessary.  Burt v. John 
 
            Deere Waterloo Tractor Works, 73 N.W.2d 732, 738 (Iowa 
 
            1955).  The question of causal connection is essentially 
 
            within the domain of expert testimony.  Bradshaw v. Iowa 
 
            Methodist Hospital, 101 N.W.2d 167, 171 (Iowa 1960).  Expert 
 
            medical evidence must be considered with all other evidence 
 
            introduced bearing on the causal connection.  Burt, 73 
 
            N.W.2d at 738.  The opinion of the experts need not be 
 
            couched in definite, positive or unequivocal language.  
 
            Sondag v. Ferris Hardware, 220 N.W.2d 903, 907 (Iowa 1974).  
 
            Moreover, the expert opinion may be accepted or rejected, in 
 
            whole or in part, by the trier of fact.  Sondag, 220 N.W.2d 
 
            at 907.  Finally, the weight to be given to such an opinion 
 
            is for the finder of fact, and that may be affected by the 
 
            completeness of the premise given the expert and other 
 
            material circumstances.  Bodish, 133 N.W.2d at 870; 
 
            Musselman, 154 N.W.2d at 133.  The Supreme Court has also 
 
            observed that greater deference is ordinarily accorded 
 
            expert testimony where the opinion necessarily rests on 
 
            medical expertise.  Sondag, 220 N.W.2d at 907.
 
            
 
                 In this instance, Dr. Roski, claimant's treating 
 
            surgeon, reported on December 3, 1990, as follows:
 
            
 
                 There are many factors that can contribute to a 
 
                 lumbar disc problem.  There are many factors 
 
                 related to age, but probably the key factors 
 
                 relate to repeated injury to the low back.  This 
 
                 may be a specific traumatic event or may be 
 
                 repetitive trauma over a period of time.  In an 
 
                 analogous situation we certainly see marked 
 
                 degenerative disc changes in patients who work in 
 
                 the farming area because of the multiple trauma 
 
                 from lifting and riding heavy machinery.  
 
                 Certainly a situation such as Mr. Dreher's, riding 
 
                 large tractor trailer type trucks, particularly if 
 
                 they do not have good suspension or the ride is at 
 
                 all bumpy, is certainly going to contribute to 
 
                 repetitive injury to the low back.  It is 
 
                 certainly one of the reason many trucks now come 
 
                 equipped with air ride suspension is because of 
 
                 the problem that truck drivers have developed from 
 
                 the older trucks in the past.
 
            
 
            (Ex. I, p. 2)
 
            
 
                 On November 19, 1991, Dr. Roski gave claimant a 12 
 
            percent impairment rating due to two operated lumbar discs 
 
            with residual symptoms (Ex. I, p. 3).
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
                 Defendants have produced no evidence to the contrary.  
 
            Dr. Roski's report is the most compelling evidence in this 
 
            case.  He has had the most opportunity to treat and observe 
 
            claimant.  Consequently, claimant has satisfied his burden 
 
            of proof in demonstrating that he has suffered a permanent 
 
            injury.
 
            
 
                 The next question to be resolved is the extent of 
 
            claimant's industrial disability.
 
            
 
                 Functional impairment is an element to be considered in 
 
            determining industrial disability which is the reduction of 
 
            earning capacity, but consideration must also be given to 
 
            the injured employee's age, education, qualifications, expe
 
            rience and inability to engage in employment for which the 
 
            employee is fitted.  Olson v. Goodyear Serv. Stores, 255 
 
            Iowa 1112, 125 N.W.2d 251 (1963); Barton v. Nevada Poultry, 
 
            253 Iowa 285, 110 N.W.2d 660 (1961).
 
            
 
                 A finding of impairment to the body as a whole found by 
 
            a medical evaluator does not equate to industrial 
 
            disability.  Impairment and disability are not synonymous.  
 
            The degree of industrial disability can be much different 
 
            than the degree of impairment because industrial disability 
 
            references to loss of earning capacity and impairment 
 
            references to anatomical or functional abnormality or loss.  
 
            Although loss of function is to be considered and disability 
 
            can rarely be found without it, it is not so that a degree 
 
            of industrial disability is proportionally related to a 
 
            degree of impairment of bodily function.
 
            
 
                 Factors to be considered in determining industrial dis
 
            ability include the employee's medical condition prior to 
 
            the injury, immediately after the injury, and presently; the 
 
            situs of the injury, its severity and the length of the 
 
            healing period; the work experience of the employee prior to 
 
            the injury and after the injury and the potential for 
 
            rehabilitation; the employee's qualifications 
 
            intellectually, emotionally and physically; earnings prior 
 
            and subsequent to the injury; age; education; motivation; 
 
            functional impairment as a result of the injury; and 
 
            inability because of the injury to engage in employment for 
 
            which the employee is fitted.  Loss of earnings caused by a 
 
            job transfer for reasons related to the injury is also 
 
            relevant.  Likewise, an employer's refusal to give any sort 
 
            of work to an impaired employee may justify an award of 
 
            disability.  McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 
 
            (Iowa 1980).  These are matters which the finder of fact 
 
            considers collectively in arriving at the determination of 
 
            the degree of industrial disability.
 
            
 
                 There are no weighting guidelines that indicate how 
 
            each of the factors are to be considered.  Neither does a 
 
            rating of functional impairment directly correlate to a 
 
            degree of industrial disability to the body as a whole.  In 
 
            other words, there are no formulae which can be applied and 
 
            then added up to determine the degree of industrial 
 
            disability.  It therefore becomes necessary for the deputy 
 
            or commissioner to draw upon prior experience as well as 
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            general and specialized knowledge to make the finding with 
 
            regard to degree of industrial disability.  See Christensen 
 
            v. Hagen, Inc., Vol. 1 No. 3 State of Iowa Industrial 
 
            Commissioner Decisions 529 (App. March 26, 1985); Peterson 
 
            v. Truck Haven Cafe, Inc., Vol. 1 No. 3 State of Iowa 
 
            Industrial Commissioner Decisions 654 (App. February 28, 
 
            1985).
 
            
 
                 Compensation for permanent partial disability shall 
 
            begin at the termination of the healing period.  
 
            Compensation shall be paid in relation to 500 weeks as the 
 
            disability bears to the body as a whole.  Section 85.34.
 
            
 
                 Claimant is 41 years old.  He was 37 years old at the 
 
            time of his injury on July 19, 1988.  The fact that claimant 
 
            was disabled in the peak earning years of his employment 
 
            career makes his disability worse than it would be for a 
 
            younger or older employee.  Becke v. Turner-Busch, Inc., 
 
            Thirty-fourth Biennial Report of the Industrial Commissioner 
 
            34 (Appeal Decision  1979); McCoy v. Donaldson Company, 
 
            Inc., IAWC Decisions of the Iowa Industrial Commissioner 
 
            400 (1989).
 
            
 
                 Claimant was given a 12 percent impairment rating to 
 
            the body as a whole.  Claimant continues to have residual 
 
            symptoms including intermittent right low back and right hip 
 
            pain with occasional cramping in his calf as well as 
 
            persistent right foot numbness.  Claimant cannot perform his 
 
            prior work activity as a truck driver.  At the time of his 
 
            accident, claimant earned $432.23 per week.  Since January 
 
            1992, claimant has earned $260 per week as a warehouseman.  
 
            Claimant has a loss of earnings and a loss of earning 
 
            capacity as a result of his injury.
 
            
 
                 Based upon the foregoing factors, all of the factors 
 
            used to determine industrial disability, and employing 
 
            agency expertise, it is determined that claimant sustained a 
 
            25 percent industrial disability.
 
            
 
                 Claimant is also entitled to healing period benefits 
 
            since he has suffered a 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).
 
            
 
                 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).
 
            
 
                 Healing period may be interrupted by return to work.  
 

 
            
 
            Page  11
 
            
 
            
 
            
 
            Riesselmann v. Carroll Health Center, III Iowa Indus. 
 
            Comm'r Rep. 209 (Appeal Dec. 1982).
 
            
 
                 Since the healing period contemplates an inability to 
 
            work, the healing period cannot start until claimant leaves 
 
            work.  This is true even if claimant is experiencing 
 
            symptoms on the job but does not leave work for a variety of 
 
            reasons.  Boyd v. Western Homes, File No. 890207 (Iowa 
 
            Industrial Commissioner Appeal, June 26, 1991).  Claimant is 
 
            entitled to healing period benefits from July 20, 1988 
 
            through November 11, 1988, and from July 16, 1990 through 
 
            November 16, 1990.  He is entitled to permanent partial 
 
            disability benefits commencing November 12, 1988 through 
 
            July 15, 1990, and from November 17, 1990 until benefits are 
 
            fully paid.  Claimant is entitled to be paid weekly benefits 
 
            at the rate of $287.66 per week.
 
            
 
                 The final issue to be determined is whether claimant is 
 
            entitled to medical benefits under Iowa Code section 85.27.
 
            
 
                 The employer shall furnish reasonable surgical, 
 
            medical, dental, osteopathic, chiropractic, podiatric, 
 
            physical rehabilitation, nursing, ambulance and hospital 
 
            services and supplies for all conditions compensable under 
 
            the workers' compensation law.  The employer shall also 
 
            allow reasonable and necessary transportation expenses 
 
            incurred for those services.  The employer has the right to 
 
            choose the provider of care, except where the employer has 
 
            denied liability for the injury.  Section 85.27.  Holbert v. 
 
            Townsend Engineering Co., Thirty-second Biennial Report of 
 
            the Industrial Commissioner 78 (Review-reopen 1975).
 
            
 
                 Defendants have denied liability for the injury.  
 
            Defendants argue that the medical charges which claimant has 
 
            submitted are not causally related to his July 19, 1988 work 
 
            injury.  Since it has already been determined that claimant 
 
            sustained an injury arising out of and in the course of 
 
            employment with employer, the undersigned finds that the 
 
            medical expenses set out in claimant's exhibit 1, were 
 
            expenses incurred for treatment of that injury.  Therefore, 
 
            such expenses in the amount of $20,806.34 are compensable 
 
            under the Iowa Workers' Compensation law.
 
            
 
                                      ORDER
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 That defendants pay to claimant interrupted healing 
 
            period benefits from July 20, 1988 through November 11, 
 
            1988, and from July 16, 1990 through November 16, 1990, at 
 
            the rate of two hundred eighty-seven and 66/100 dollars 
 
            ($287.66).
 
            
 
                 That defendants pay to claimant one hundred twenty-five 
 
            (125) weeks of permanent partial disability benefits at the 
 
            rate of two hundred eighty-seven and 66/100 dollars 
 
            ($287.66) per week from November 12, 1988 through July 15, 
 
            1990, and from November 17, 1990 and continuing until fully 
 
            paid.
 
            
 

 
            
 
            Page  12
 
            
 
            
 
            
 
                 That defendants receive credit, as appropriate, for any 
 
            benefits previously paid.
 
            
 
                 That defendants pay accrued amounts in a lump sum.
 
            
 
                 That defendants pay interest pursuant to Iowa Code 
 
            section 85.30.
 
            
 
                 That defendants pay costs pursuant to rule 343 IAC 
 
            4.33.
 
            
 
                 That defendants file claim activity reports as ordered 
 
            by this agency pursuant to rule 343 IAC 3.1.
 
            
 
                 Signed and filed this ____ day of August, 1992.
 
            
 
            
 
            
 
            
 
                                          
 
                                       ________________________________
 
                                          JEAN M. INGRASSIA
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 

 
            
 
            Page  13
 
            
 
            
 
            
 
            
 
            Copies To:
 
            
 
            Mr Michael T Hines
 
            Attorney at Law
 
            701 Kahl Bldg
 
            Davenport IA 52801
 
            
 
            Mr Greg A Egbers
 
            Attorney at Law
 
            600 union Arcade Bldg
 
            111 E Third St
 
            Davenport IA 52801-1596
 
            
 
            
 
                 
 
            
 
 
            
 
            
 
            
 
            
 
                                         2401; 5-1802; 5-1803; 5-2500
 
                                         Filed August 18, 1992
 
                                         Jean M. Ingrassia
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            MICHAEL DREHER,               :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 940605
 
            VERNON CAMPBELL TRUCKING,     :
 
                                          :     A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            THE HARTFORD,                 :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            2401 -  (815.23 90-day notice)
 
            
 
                 Failure to give notice is an affirmative defense with 
 
            the burden of proof on the employer.  Mefferd v. Ed Miller & 
 
            Sons, Inc., Thirty-three Biennial Report, Iowa Industrial 
 
            Commissioner 191, 192 (Appeal Decision 1977).
 
            
 
                 Claimant, a truck driver, began to experience back 
 
            symptoms in May 1988.  Subsequent evaluations revealed a 
 
            large extradural defect at L5-S1 on the right.  On July 20, 
 
            1988, he underwent unilateral discectomy at L5-S1.  Claimant 
 
            admitted that while employer was aware of his back problems 
 
            and surgery, he had no notice that claimant sustained a work 
 
            injury until May 1990 when claimant filed his original 
 
            notice and petition.
 
            
 
                 Claimant was found entitled to the benefits of the 
 
            discovery rule which gives claimant 90 days from the time 
 
            that he, acting reasonably, knew that his injury was serious 
 
            and work connected. Jacques v. Farmer's Lbr. & Sup. Co., 242 
 
            Iowa 548, 47 N.W.2d 236, 239-40 (1951); and Robinson v. 
 
            Department of Transportation, 296 N.W.2d 809 (Iowa 1980).
 
            
 
                 Generally, the employer must have either actual 
 
            knowledge or notice of injury within 90 days of the 
 
            occurrence or the employee is barred from recovering 
 
            workers' compensation benefits.  The sole purpose of this 
 
            requirement is to give the employer an opportunity to 
 
            investigate the injury.  Due to the interpretation the Iowa 
 
            Supreme Court has given this requirement, only in a rare 
 
            case will the employee be barred for failing to give notice.  
 

 
            
 
            
 
            
 
            Ducey v. Hyzer Brokerage Co., IV Iowa Indus. Comm'r Rep. 
 
            104 (1984).
 
            
 
                 Defendants failed to sustain their burden of proof by a 
 
            preponderance of the evidence.
 
            
 
            5-1802
 
            
 
                 Claimant found entitled to interrupted healing period 
 
            benefits during time off work from July 20, 1988 through 
 
            November 11, 1988 and from July 16, 1990 through November 
 
            16, 1990.
 
            
 
                 Claimant had a recurrence of back symptoms and 
 
            underwent a second discectomy on July 17, 1990.  Healing 
 
            period benefits can be interrupted or intermittent.  Willis 
 
            v. Lehigh Portland Cement Co., Vol. 2-1, State of Iowa 
 
            Industrial Commissioner Decisions, 485 (1984).
 
            
 
            5-1803 - Permanent Partial Disability Benefits
 
            
 
                 Claimant's treating surgeon established causation 
 
            between claimant's back problems and his work activity.  He 
 
            gave claimant a 12 percent impairment rating to the body as 
 
            a whole.  Claimant awarded 25 percent industrial disability.  
 
            Claimant was 37 years old at the time of his injury.  He 
 
            graduated from high school and completed a truck driving 
 
            program.  He cannot perform his past work as a truck driver.  
 
            At the time of his injury he earned $432.23 per week.  Since 
 
            January 1992, claimant has earned $260 per week as a 
 
            warehouseman.  Claimant has incurred a loss of earnings as a 
 
            result of his injury and has a diminished earning capacity 
 
            due to two back surgeries and residuals therefrom.
 
            
 
            5-2500 - Medical Expenses
 
            
 
                 Defendants have denied liability throughout these 
 
            proceedings.  Claimant's medical expenses totaling 
 
            $20,806.34 found to be causally related to his injury.
 
            
 
 
         
 
 
 
 
 
 
 
 
 
 
 
         before the iowa industrial commissioner
 
         ____________________________________________________________
 
                                       :
 
         KEITH E. HILL,                :
 
                                       :
 
              Claimant,                :
 
                                       :       File No. 940609
 
         vs.                           :
 
                                       :         A P P E A L
 
         JOHN DEERE OTTUMWA WORKS,     :
 
                                       :       D E C I S I O N
 
              Employer,                :
 
              Self-Insured,            :
 
                                       :
 
         and                           :
 
                                       :
 
         SECOND INJURY FUND OF IOWA,   :
 
                                       :
 
              Defendants.              :
 
         ___________________________________________________________
 
         The record, including the transcript of the hearing before the 
 
         deputy and all exhibits admitted into the record, has been 
 
         reviewed de novo on appeal.  The decision of the deputy filed 
 
         November 25, 1991, is affirmed and is adopted as the final agency 
 
         action in this case. 
 
         Claimant shall pay the costs of the appeal, including the 
 
         preparation of the hearing transcript.
 
         Signed and filed this ____ day of March, 1992.
 
         
 
         
 
         
 
         
 
                   ________________________________
 
                            BYRON K. ORTON
 
                        INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Lance A. Grotewold
 
         Attorney at Law
 
         118 North Market Street
 
         Oskaloosa, Iowa  52577
 
         
 
         Mr. Walter F. Johnson
 
         Attorney at Law
 
         111 West Second Street
 
         P O Box 716
 
         Ottumwa, Iowa  52501
 
         
 
         Ms. Joanne Moeller
 
         Assistant Attorney General
 
         Tort Claims Division
 
         Hoover State Office Building
 
         Des Moines, Iowa  50319
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
            9998
 
            Filed March 20, 1992
 
            BYRON K. ORTON
 
            PJL
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            KEITH E. HILL,                :
 
                                          :
 
                 Claimant,                :
 
                                          :       File No. 940609
 
            vs.                           :
 
                                          :         A P P E A L
 
            JOHN DEERE OTTUMWA WORKS,     :
 
                                          :       D E C I S I O N
 
                 Employer,                :
 
                 Self-Insured,            :
 
                                          :
 
            and                           :
 
                                          :
 
            SECOND INJURY FUND OF IOWA,   :
 
                                          :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
            
 
            
 
            9998
 
            
 
            Summary affirmance of deputy's decision filed November 25, 
 
            1991.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            KEITH E. HILL,                :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 940609
 
            JOHN DEERE OTTUMWA WORKS,     :
 
                                          :     A R B I T R A T I O N
 
                 Employer,                :
 
                 Self-Insured,            :       D E C I S I O N
 
                                          :
 
            and                           :
 
                                          :
 
            SECOND INJURY FUND OF IOWA,   :
 
                                          :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding in arbitration brought by 
 
            claimant, Keith E. Hill, against his former employer, John 
 
            Deere Ottumwa Works, and the Second Injury Fund of Iowa, 
 
            defendants.
 
            
 
                 The matter came on for hearing before the undersigned 
 
            on October 7, 1991, at Ottumwa, Iowa.
 
            
 
                 The record in this case consists of the testimony of 
 
            the claimant; defendants' exhibit A (the deposition of D. P. 
 
            Dale Emerson, M.D., and the accompanying deposition exhibits 
 
            108-340), B and C.
 
            
 
                               preliminary matters
 
            
 
                 At the hearing, claimant offered six exhibits.  
 
            Attorneys representing the employer and the Second Injury 
 
            Fund of Iowa objected to the admission of claimant's 
 
            exhibits, stating that claimant had not served his exhibit 
 
            list 15 days prior to the hearing, as required by paragraph 
 
            eight of the hearing assignment order.
 
            
 
                 Claimant produced his exhibit list, which showed a 
 
            proof of service dated February 14, 1991.  However, the 
 
            proof of service is not signed, and the exhibit list merely 
 
            states that "[T]he claimant will introduce all reports 
 
            relevant as previously exchanged between the parties from 
 
            the treating medical personnel."
 
            
 
                 The undersigned finds that claimant's attempt to serve 
 
            an exhibit list upon the defendants is flawed.  Even if 
 
            defense counsel received claimant's exhibit list, the 
 
            exhibits are not identified as required by the prehearing 
 
            report.  As a result, claimant's exhibits 1-6 were not 
 
            received and were not considered in rendering this decision.
 
            
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
                                      issues
 
            
 
                 The parties identified the following for resolution:
 
            
 
                 1.  Whether claimant received an injury on May 26, 
 
            1988, which arose out of and in the course of his 
 
            employment;
 
            
 
                 2.  Whether there is a causal relationship between 
 
            claimant's injury and his alleged disability;
 
            
 
                 3.  Whether claimant is entitled to temporary total or 
 
            healing period benefits or permanent partial or permanent 
 
            total disability benefits;
 
            
 
                 4.  Whether claimant is entitled to medical benefits as 
 
            governed by Iowa Code section 85.27;
 
            
 
                 5.  Whether defendants are entitled to credit for 
 
            benefits previously paid as provided for under Iowa Code 
 
            section 85.38(2); and,
 
            
 
                 6.  Whether the Second Injury Fund of Iowa is liable.
 
            
 
                                 findings of fact
 
            
 
                 The undersigned deputy, having reviewed all the 
 
            evidence received, finds the following facts:
 
            
 
                 Claimant was born on March 19, 1943.  He completed two 
 
            years of high school, and did not graduate.  Additional 
 
            training courses since high school have included a welding 
 
            course which he completed at the Indian Hills Community 
 
            College.
 
            
 
                 Claimant's employment history includes working as a 
 
            semi-truck driver; pork cutter for John Morrell; foundry 
 
            squeeze molder and iron pourer and punch press operator for 
 
            John Deere. Claimant has worked for John Deere for 
 
            approximately 20 years.
 
            
 
                 Claimant has alleged a work-related injury occurring on 
 
            May 26, 1988.  On this date, claimant was working on the 
 
            baling line which required him to place various parts on an 
 
            overhead conveyor belt which would move the parts through 
 
            the washer into the painting area.  Claimant stated that a 
 
            hook which had been placed on the conveyor belt was loose, 
 
            caught the claimant and "slapped" him against the wall.  He 
 
            sustained a cut on the right hand, was sent to the hospital 
 
            in Ottumwa for stitches, and returned to work the next day.  
 
            He was treated by D. Dale Emerson, M.D., who noted a 
 
            laceration of the right hand.
 
            
 
                 Between May 26, 1988 and January of 1989, claimant 
 
            received medical treatment from Nan Smith, M.D., a 
 
            rheumatologist.  Her notes indicate that claimant was 
 
            experiencing stiffness in his hands, back and knees, but 
 
            there is no reference to any upper extremity or right 
 
            shoulder pain.  In June of 1988, claimant also sought 
 
            treatment from Thomas Phillips, M.D.  Again, there is no 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            notation of right shoulder pain.
 
            
 
                 In August of 1988, claimant was admitted to the Ottumwa 
 
            Hospital, and received treatment from R. P. Blommer, M.D.  
 
            He was experiencing chest discomfort.  Again, the notes 
 
            indicate no mention of right shoulder pain.  Also, in August 
 
            of 1988, claimant complained of back pain, but again no 
 
            notation of right shoulder pain.  Claimant also sought 
 
            medical treatment in September and December of 1988, and the 
 
            notes indicate no complaints of right shoulder pain (Joint 
 
            Exhibit A, pages 173-176)
 
            
 
                 Robert Sellers, M.D., treated claimant from December 7, 
 
            1988 through August of 1990.  Apparently, claimant 
 
            originally saw Dr. Sellers with complaints of chest pains, 
 
            which had precipitated claimant's leaving his unemployment 
 
            with John Deere.  Initial notes from Dr. Sellers make no 
 
            mention of a work-related injury to claimant's hand, arm or 
 
            shoulder, nor do his notes indicate that claimant complained 
 
            of right arm or shoulder pain (Def. Ex. A, pp. 137-138).
 
            
 
                 Additional notes from Dr. Sellers, dated March 22, 
 
            1979, reveal right shoulder, arm and hand pain.  The x-rays 
 
            revealed an acromioclavicular joint separation, a condition 
 
            which Dr. Sellers stated would be "compatible" with a 
 
            stretch injury of the arm.  He stated that the pain in the 
 
            shoulder area was consistent with arthritis or bursitis 
 
            (Def. Ex. A, pp. 134-135).
 
            
 
                 Finally, in January of 1989, the medical records 
 
            indicate claimant complained of pain in his shoulder, 
 
            however, it was his left shoulder and neck which were 
 
            bothering him.  In February of 1989, claimant complained of 
 
            right arm and shoulder pain, and the notes also indicate:
 
            
 
                    He notes that a lawyer from Oskaloosa was in 
 
                 contact with him about an apparent lawsuit between 
 
                 employees of Deere and Deere regarding an apparent 
 
                 neuropathy with the question of contribution from 
 
                 chemicals that they were exposed to.  He states 
 
                 that he was exposed to those chemicals and wonders 
 
                 if this discomfort could be caused by a 
 
                 neuropathy.
 
            
 
            (Jt. Ex. A, p. 172)
 
            
 
                 The evidence indicates that it wasn't until March 1989 
 
            that either claimant or any of the doctors he had seen 
 
            attributed claimant's right shoulder pain to the incident 
 
            that is the subject of this lawsuit (Jt. Ex. A, p. 184).
 
            
 
                 Subsequent notes dated August 27, 1990, indicate that 
 
            eventually Dr. Sellers causally connected claimant's right 
 
            shoulder problems to the accident of May 27, 1988 (Def. Ex. 
 
            A, p. 129).
 
            
 
                 It is noted that claimant has had a long history of 
 
            serious health problems, including several heart attacks and 
 
            seronegative rheumatoid arthritis, a condition claimant has 
 
            had since 1980.  None of the health problems claimant 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            suffers from have been causally connected to his work-
 
            related injury of May 26, 1988.  Specifically, Dr. Emerson 
 
            stated in his deposition at pages 33-31 that claimant's 
 
            injury on May 26, 1988, which did produce a laceration of 
 
            the hand, did not cause any other injuries.  Dr. Emerson 
 
            also was of the opinion that the laceration did not cause 
 
            any permanent disability.
 
            
 
                         analysis and conclusions of law
 
            
 
                 The first issue to be addressed is whether claimant sus
 
            tained an injury which arose out of and in the course of his 
 
            employment.
 
            
 
                 An employee is entitled to compensation for any and all 
 
            personal injuries which arise out of and in the course of 
 
            the employment.  Section 85.3(1).
 
            
 
                 Claimant has the burden of proving by a preponderance 
 
            of the evidence that he received an injury on May 26, 1988 
 
            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. Central Telephone Co., 261 Iowa 352, 154 
 
            N.W.2d 128 (1967). 
 
            
 
                 The injury must both arise out of and be in the course 
 
            of the employment.  Crowe v. DeSoto Consol. Sch. Dist., 246 
 
            Iowa 402, 68 N.W.2d 63 (1955) and cases cited at pp. 405-406 
 
            of the Iowa Report.  See also Sister Mary Benedict v. St. 
 
            Mary's Corp., 255 Iowa 847, 124 N.W.2d 548 (l963) and Hansen 
 
            v. State of Iowa, 249 Iowa 1147, 91 N.W.2d 555 (1958).
 
            
 
                 The words "out of" refer to the cause or source of the 
 
            injury.  Crowe, 246 Iowa 402, 68 N.W.2d 63.
 
            
 
                 The words "in the course of" refer to the time and 
 
            place and circumstances of the injury.  McClure v. Union 
 
            et al. Counties, 188 N.W.2d 283 (Iowa 1971); Crowe v. DeSoto 
 
            Consol. Sch. Dist., 246 Iowa 402, 68 N.W.2d 63 (1955).
 
            
 
                 "An injury occurs in the course of the employment when 
 
            it is within the period of employment at a place the 
 
            employee may reasonably be, and while he is doing his work 
 
            or something incidental to it."  Cedar Rapids Comm. Sch. 
 
            Dist. v. Cady, 278 N.W.2d 298 (Iowa 1979), McClure, 188 
 
            N.W.2d 283; Musselman;, 261 Iowa 352, 154 N.W.2d 128 (1967). 
 
            
 
                 Claimant has had numerous health problems, and he had 
 
            ample opportunities to receive treatment for symptoms of the 
 
            right upper extremity, yet the record clearly shows he made 
 
            no mention of pain in this area until nine months following 
 
            the May 27, 1982 incident at work.  In fact, claimant 
 
            continued to work after being treated for the laceration to 
 
            his hand until December of 1988, when he entered the 
 
            hospital for treatment of chest pains.  Keith Dow, manager 
 
            of the Human Resources Department for defendant employer, 
 
            supervises the company nurses at the plant.  He testified 
 
            that claimant did not lose any time from work due to the 
 
            laceration to the hand, and that he does not remember 
 
            claimant complaining of any type of right arm or shoulder 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            injury.
 
            
 
                 Additionally, Mr. Dow, who is also in charge of 
 
            employee benefits, stated that claimant had applied for 
 
            permanent disability pension from John Deere due to his lung 
 
            and heart problems--not because of right shoulder problems.
 
            
 
                 Claimant described an incident which occurred while he 
 
            was working at his regular job at the Ottumwa John Deere 
 
            plant.  He was performing the duties required by his 
 
            employment, when he was cut on the hand by a piece of 
 
            equipment which was on a conveyor belt.  It is found that 
 
            claimant has proven by a preponderance of the evidence that 
 
            he cut his right hand, and injury which arose out of and in 
 
            the course of his employment.
 
            
 
                 However, the same is not true for any injury to his 
 
            right shoulder.  As previously noted under the facts 
 
            section, claimant did not complain of any right shoulder 
 
            pain until February 1989, after he had spoken with an 
 
            attorney regarding a lawsuit between employees of the plant 
 
            and the employer.  Nothing in the record indicates that 
 
            there is a causal relationship between claimant's injury of 
 
            May 26, 1988 and right shoulder complaints.  As a result, 
 
            claimant did not sustain an injury to his right shoulder 
 
            which arose out of and in the course of his employment.
 
            
 
                                      order
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 That claimant received an injury to his right hand 
 
            which arose out of and in the course of his employment.
 
            
 
                 That as a result of the injury to the hand, claimant 
 
            did not sustain any permanent damage, and was not required 
 
            to miss any time from work due to this injury.
 
            
 
                 That claimant did not sustain an injury to his right 
 
            shoulder which arose out of and in the course of his 
 
            employment on May 26, 1988.
 
            
 
                 That claimant take nothing further from these 
 
            proceedings.
 
            
 
                 That defendants shall pay the costs of this action, 
 
            pursuant to rule 343 IAC 4.33.
 
            
 
                 Signed and filed this ____ day of November, 1991.
 
            
 
            
 
            
 
            
 
                                          
 
            ________________________________
 
                                          PATRICIA J. LANTZ
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            Mr Lance A Grotewold
 
            Attorney at Law
 
            118 N Market St
 
            Oskaloosa IA 52577
 
            
 
            Mr Walter F Johnson
 
            Attorney at Law
 
            111 W Second St
 
            P O Box 716
 
            Ottumwa IA 52501
 
            
 
            Ms Joanne Moeller
 
            Assistant Attorney General
 
            Tort Claims
 
            Hoover Building
 
            LOCAL
 
            
 
                 
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                      5-1100; 5-1108
 
                      Filed November 25, 1991
 
                      Patricia J. Lantz
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            KEITH E. HILL,                :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 940609
 
            JOHN DEERE OTTUMWA WORKS,     :
 
                                          :     A R B I T R A T I O N
 
                 Employer,                :
 
                 Self-Insured,            :       D E C I S I O N
 
                                          :
 
            and                           :
 
                                          :
 
            SECOND INJURY FUND OF IOWA,   :
 
                                          :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            5-1100; 5-1108
 
            Claimant failed to prove by a preponderance of the evidence 
 
            that right arm and shoulder problems were related to a work-
 
            related accident which produced a laceration to his right 
 
            hand.
 
            
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            TERRY RAAB,                   :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :       File No. 940618
 
            EASLEY INDUSTRIAL SERVICES,   :
 
                                          :     A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            CIGNA PROPERTY & CASUALTY     :
 
            COMPANIES,                    :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                                   introduction
 
            
 
                 This is a proceeding in arbitration brought by Terry 
 
            Raab, claimant, against Easley Industrial Services, 
 
            employer, and Cigna Property & Casualty Companies, insurance 
 
            carrier.
 
            
 
                 Mr. Raab sustained an injury which arose out of and in 
 
            the course of his employment on May 18, 1990.  A hearing was 
 
            held on August 20, 1991, at Davenport, Iowa.
 
            
 
                 The record in this case consists of the testimony of 
 
            Terry Raab; and joint exhibits 1 through 15.  At the close 
 
            of the hearing, the matter was considered fully submitted.
 
            
 
                                      issues
 
            
 
                 The parties submitted the following issues for 
 
            resolution:
 
            
 
                 1.  Whether there is a causal relationship between 
 
            claimant's injury and an permanent disability;
 
            
 
                 2.  Whether claimant is entitled to additional 
 
            temporary total or healing period benefits, or permanent 
 
            disability benefits;
 
            
 
                 3.  Whether claimant has sustained a permanent injury 
 
            to a scheduled member, or to the body as a whole; and
 
            
 
                 4.  Whether claimant is entitled to medical benefits 
 
            pursuant to Iowa Code section 85.27.
 
            
 
                                 findings of fact
 
            
 
                 The undersigned deputy, having reviewed all of the 
 
            evidence received, and having presided at the hearing, finds 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            the following facts:
 
            
 
                 On May 18, 1990, claimant sustained a work-related 
 
            injury when his left arm was caught in an industrial vacuum 
 
            while he was cleaning a sewer line.
 
            
 
                 Claimant was taken to St. Luke's Hospital in Davenport, 
 
            Iowa for examination and subsequent surgery.  Upon 
 
            admission, he was diagnosed as having left forearm and arm 
 
            acute compartment syndrome.  The surgeon, Charles T. Cassel, 
 
            M.D., performed a left carpal tunnel release, anterior left 
 
            lower forearm fasciotomy, and a posterior arm fasciotomy.  
 
            The wounds were left open, and the claimant was observed in 
 
            the hospital for several days.  On May 22, 1990, he was 
 
            taken back to the operating room where he underwent 
 
            irrigation and closure of the left upper extremity wound.
 
            
 
                 Claimant returned to Dr. Cassel on several occasions 
 
            between May and July, at which time it was recommended he 
 
            undergo work hardening and strengthening.  Claimant 
 
            underwent physical therapy at the Clinton Physical Therapy 
 
            Services facility in August and September 1990 (Joint 
 
            Exhibit 3, pages 1-4).  Claimant was released to return to 
 
            work without restrictions on August 27, 1990 (Jt. Ex. 2, p. 
 
            4).
 
            
 
                 Claimant returned to Dr. Cassel in October 1990 and 
 
            upon examination showed excellent range of motion of the 
 
            wrist, elbow and shoulder.  He was to return on an as-needed 
 
            basis (Jt. Ex. 2, p. 4).
 
            
 
                 Claimant again returned to Dr. Cassel on April 11, 
 
            1991, for an evaluation and impairment rating.  Dr. Cassel 
 
            formed the following opinion:
 
            
 
                 The patient is here for final follow-up and 
 
                 impairment rating.  The patient states he has 
 
                 occasional aching in the scars but, overall, is 
 
                 continuing to improve.  He states there is nothing 
 
                 he can't do that he used to do.  Currently he is 
 
                 not working.  Apparently, this is his choice, he 
 
                 has not pursued a job at the present time.
 
            
 
                 EXAMINATION revealed that he had full extension 
 
                 and flexion of the elbow.  He had full 
 
                 supination/pronation of the elbow.  Wrist motion, 
 
                 finger motion, and shoulder motion were all 
 
                 normal.  Grip strength on the right on three 
 
                 attempts was 30, 39, and 36.5.  Grip attempts on 
 
                 the left were 28, 30, and 32.5.  Two point 
 
                 discrimination was normal.  His scars are all 
 
                 well-healed.
 
            
 
                 IMPRESSION:  Status post fasciotomies for 
 
                 impending compartment syndrome and carpal tunnel 
 
                 release.  I feel the patient is doing well.  I 
 
                 feel that he has no significant functional 
 
                 impairment.  The patient will return on a PRN 
 
                 basis.
 
            
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            (Jt. Ex. 2, p. 5)
 
            
 
                 At the hearing, claimant denied that he told Dr. Cassel 
 
            that there was nothing he couldn't do that he had done prior 
 
            to the accident.
 
            
 
                 On October 25, 1990, David P. Nebbeling, D.O., 
 
            evaluated claimant:
 
            
 
                    No signs of muscle atrophy....
 
            
 
                    ....
 
            
 
                    Impairment due to pain.  By using Table 10, one 
 
                 can grade Mr. Raab's pain, which prevents 
 
                 activity, at 80%.
 
            
 
                    Because all of Mr Raab's left arm was involved 
 
                 in this injury, and has pain one can use all five 
 
                 nerve roots on Table 12 to calculate an impairment 
 
                 of 21% of the left upper extremity.
 
            
 
                    ....
 
            
 
                    The muscles of the left upper extremity were 
 
                 tested and compared to the right side.  Mr. Raab 
 
                 has good range of motion against resistance.  
 
                 Therefor, [sic] loss of strength is graded at 0%.
 
            
 
                    ....
 
            
 
                    There was no impairments in the left shoulder's 
 
                 range of motion.
 
            
 
                    There was no impairment in the left wrist range 
 
                 of motion.
 
            
 
                    ....
 
            
 
                    Mr. Raab has a permanent impairment of 21% to 
 
                 the left upper extremity, or a 13% impairment to 
 
                 the whole man.
 
            
 
                    This impairment is the result of his accident 
 
                 on May 18, 1990.
 
            
 
            (Jt. Ex. 9, p. 3)
 
            
 
                 In July of 1991, claimant underwent two evaluations.  
 
            Barry Lake Fischer, M.D., saw claimant once and found 
 
            limited range of motion in the left shoulder, left muscle 
 
            atrophy, and a weaker grip on the left side.  He noted 
 
            claimant's complaints of pain in the left arm and cramping 
 
            in the left wrist, as well as numbness and tingling of the 
 
            hand.  He assessed a 30 percent functional impairment to 
 
            claimant's upper extremity (Jt. Ex. 4, pp. 1-4).
 
            
 
                 Hyman S. Lans, M.D., also evaluated claimant in July of 
 
            1991.  Upon examination, he noted no limitation of range of 
 
            motion of the left upper extremity, including the left 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            shoulder.  He noted claimant's complaints of pain, and 
 
            assessed claimant's loss of strength at 15 percent.  He also 
 
            gave claimant a 21 percent impairment due to pain (Jt. Ex. 
 
            6, pp. 1-2).
 
            
 
                         analysis and conclusions of law
 
            
 
                 The first issue to be addressed is whether claimant is 
 
            entitled to additional temporary total or healing period 
 
            benefits.
 
            
 
                 Iowa Code section 85.34(1) provides that if an employee 
 
            has suffered a personal injury causing permanent partial 
 
            disability, the employer shall pay compensation for a 
 
            healing period from the day of the injury until (1) the 
 
            employee returns to work; or (2) it is medically indicated 
 
            that significant improvement from the injury is not 
 
            anticipated; or (3) until the employee is medically capable 
 
            of returning to substantially similar employment.
 
            
 
                 Furthermore, if the employee has not sustained a 
 
            permanent injury, the employer shall pay to an employee for 
 
            injury producing temporary total disability weekly 
 
            compensation benefits, as provided in section 85.32, until 
 
            the employee has returned to work or is medically capable of 
 
            returning to employment substantially similar to the 
 
            employment in which the employee was engaged at the time of 
 
            injury, whichever occurs first.
 
            
 
                 Although the treating physician's opinion is not 
 
            automatically given greater weight than that of any 
 
            evaluating physician, in this case, the undersigned finds 
 
            Dr. Cassel's overall evaluation of claimant more credible.  
 
            He performed two separate surgeries on claimant's arm, and 
 
            followed claimant's recovery throughout physical therapy and 
 
            a return-to-work.  Dr. Cassel found no significant 
 
            functional impairment, and released claimant to return to 
 
            work without restrictions.  Other evaluators varied 
 
            drastically in their opinions as to the overall condition of 
 
            claimant's arm.  It is interesting to note that Dr. Fischer 
 
            and Dr. Lans both saw claimant on the same day, yet the 
 
            findings of the two evaluators varied with respect to loss 
 
            of strength and range of motion.
 
            
 
                 As a result, it is found that claimant has not 
 
            sustained any permanent restrictions in the use of his left 
 
            arm, nor has he shown any  permanent functional impairment 
 
            of the left arm.  He is awarded temporary total disability 
 
            for the time he was off of work and under Dr. Cassel's care.  
 
            Claimant is also awarded medical benefits for treatment of 
 
            the injuries he sustained due to the May 18, 1990 accident.
 
            
 
                                      order
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 That defendants shall pay claimant temporary total 
 
            disability benefits from May 18, 1990 through August 27, 
 
            1990, at the rate of two hundred forty-five and 16/100 
 
            dollars ($245.16) per week.
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            
 
                 That defendants shall pay for the costs of this 
 
            proceeding.
 
            
 
                 That defendants shall file claim activity reports as 
 
            required by the agency.
 
            
 
                 Signed and filed this ____ day of October, 1991.
 
            
 
            
 
                                          ______________________________
 
                                          PATRICIA J. LANTZ
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies to:
 
            
 
            Mr Peter M Soble
 
            Attorney at Law
 
            505 Plaza Office Bldg
 
            Rock Island IL 61201
 
            
 
            Mr Craig A Levien
 
            Attorney at Law
 
            600 Union Arcade Bldg
 
            Davenport IA 52801
 
            
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                      5-1801
 
                      Filed October 3, 1991
 
                      Patricia J. Lantz
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            TERRY RAAB,                   :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :       File No. 940618
 
            EASLEY INDUSTRIAL SERVICES,   :
 
                                          :     A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            CIGNA PROPERTY & CASUALTY     :
 
            COMPANIES,                    :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            5-1801
 
            Claimant failed to establish a permanent injury, and was 
 
            awarded temporary total disability benefits.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            JAMES DALE MAGNESON,          :
 
                                          :
 
                 Claimant,                :       File No. 940620
 
                                          :
 
            vs.                           :
 
                                          :       D E C I S I O N
 
            WASTE MANAGEMENT OF IOWA,     :
 
            INC.,                         :             O N
 
                                          :
 
                 Employer,                :       A T T O R N E Y
 
                                          :
 
            and                           :            F E E
 
                                          :
 
            CNA INSURANCE COMPANY,        :        D I S P U T E
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 This case came on for hearing on January 7, 1993, at 
 
            Des Moines, Iowa.  This is a proceeding concerning an 
 
            attorney fee dispute wherein claimant's former attorney, who 
 
            was relieved of his services by the claimant and his 
 
            co-counsel, is seeking attorney fees for time incurred 
 
            before his release as attorney.  The record in the 
 
            proceeding consists of the testimony of Attorney Stephen 
 
            Lombardi and a statement from Toby Swanson.  Mr. Swanson was 
 
            brought into the case by Jacqueline Jorgensen, who was Mr. 
 
            Lombardi's co-counsel.   Upon Mr. Lombardi's withdrawing 
 
            from the case, Toby Swanson came in to help as co-counsel 
 
            with Jacqueline Jorgensen at her and claimant's request.   
 
            Exhibit 1 was offered by Mr. Lombardi and is part of the 
 
            record.
 
            
 
                 A court reporter was not present at the hearing so the 
 
            participants entered into a stipulation that the exhibit and 
 
            the decision of the deputy would be the record for purposes 
 
            of appeal or review.
 
            
 
                 There was a question as to whether the claimant was 
 
            ever notified of this hearing but it is immaterial herein.  
 
            Mr. Swanson indicated he had just heard about this within 
 
            the last 24 hours.
 
            
 
                                      issue
 
            
 
                 The issue for resolution is whether Attorney Stephen D. 
 
            Lombardi is entitled to $1,496.25 plus reimbursement of 
 
            $73.63 costs.
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 Jacqueline Jorgensen entered into a contingent fee 
 
            agreement with the claimant to represent him in a workers' 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            compensation case represented by the file herein.  Ms. 
 
            Jorgensen apparently was new to Iowa and leased space in the 
 
            law office of Stephen Lombardi.  Ms. Jorgensen brought Mr. 
 
            Lombardi in as co-counsel to take advantage of his legal 
 
            expertise in the area of workers' compensation and his more 
 
            familiarity with the Iowa laws.
 
            
 
                 During the course of their relationship, Mr. Lombardi 
 
            decided he no longer wanted to bring attorneys into his law 
 
            office  as renters and in fact did move his law office to 
 
            another location.  Ms. Jorgensen, therefore, relocated and 
 
            took the James Magneson case with her as she was the one who 
 
            had the contractual relationship with Mr. Magneson.
 
            
 
                 The undersigned took official notice of the files and 
 
            notified the participants at the hearing of this fact.  It 
 
            is apparent that animosity has developed and exists between 
 
            Mr. Lombardi and Ms. Jorgensen.
 
            
 
                 Mr. Lombardi testified that when he took this case as a 
 
            co-counsel, he thought it was a body as a whole case.  He 
 
            stated the services he had rendered which are set out in 
 
            exhibit 1, an itemization account of his time spent.  The 
 
            hourly charge he indicated at the time was $75 per hour.  
 
            Mr. Lombardi indicated that he thought there might be some 
 
            "sandbagging" regarding this case.  He thought the parties 
 
            would come in later for a large recovery on a body as a 
 
            whole premise and felt he should be paid for the time and 
 
            effort he has put into the case to date which would help the 
 
            parties in their ultimate resolution of this matter.
 
            
 
                 Mr. Lombardi acknowledged he had not read the file to 
 
            see what the current status was.  The undersigned called Mr. 
 
            Lombardi's attention to the fact that in the file there is 
 
            an approval of a stipulation agreement for settlement dated 
 
            September 18, 1992, approved by this agency and the 
 
            agreement for settlement was pursuant to section 86.13 of 
 
            the 1991 Code of Iowa.  The settlement provided that the 
 
            insurance carrier had previously paid 26.714 weeks of 
 
            healing period benefits, totaling $2,459.02, and that no 
 
            additional healing period benefits were due.  It also 
 
            provided that claimant's injury resulted in permanent 
 
            disability of 5 percent to the right upper extremity and, 
 
            therefore, the claimant was entitled to receive 12.5 weeks 
 
            of permanent partial disability as a result of this injury 
 
            at a $92.05 per week rate.
 
            
 
                 Mr. Swanson indicated that the claimant, pursuant to 
 
            this settlement, received $1,860, $1,150 was representing 
 
            the 5 percent permanent partial disability and $710 was five 
 
            weeks of healing period.  Mr. Swanson indicated that the 
 
            attorney fee he and Ms. Jorgensen received was approximately 
 
            $600 and that he split the fee with Ms. Jorgensen and each 
 
            received approximately $297 each.
 
            
 
                 Mr. Swanson indicated that when he got in the case he 
 
            understood from Ms. Jorgensen that Mr. Lombardi had 
 
            withdrawn and was no longer on the case and it would appear 
 
            that Mr. Swanson had no knowledge there was an attorney fee 
 
            dispute existing or in the making nor does it appear he was 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            notified by Ms. Jorgensen that there was a possibility Mr. 
 
            Lombardi would be claiming an attorney fee against any 
 
            proceeds Mr. Magneson received.  Mr. Lombardi moved to 
 
            withdraw January 27, 1992, and Mr. Swanson filed an 
 
            appearance March 9, 1992.
 
            
 
                 Mr. Lombardi testified that he had not filed an 
 
            attorney fee lien.  The file indicates Mr. Lombardi filed a 
 
            motion for attorney lien on March 19, 1992, and it was not 
 
            granted.
 
            
 
                 Mr. Lombardi indicated that he wanted this agency to 
 
            set the stage so that he could then proceed, if necessary, 
 
            in district court against Ms. Jorgensen as to any fees 
 
            ordered to him.
 
            
 
                 There is no question that Mr. Lombardi put in the time 
 
            that is indicated on his exhibit 1.
 
            
 
                 The undersigned is concerned about the fact that Mr. 
 
            Magneson, the claimant, is obviously unknowingly in the 
 
            middle of a dispute between two attorneys who were in a 
 
            co-counsel relationship, namely, Mr. Lombardi and Ms. 
 
            Jorgensen.  The undersigned believes that the dispute 
 
            between these two attorneys is not an issue or matter to be 
 
            resolved by this agency and that their dispute can be 
 
            settled, should be settled and must be settled in another 
 
            court whether it be small claims or district court.  If, in 
 
            fact, Mr. Lombardi was paid the $1,569.88 he is requesting, 
 
            the claimant would have to come up with $309.88 out of his 
 
            own pocket and would have recovered nothing from this 
 
            action.  The $1,860 that he received represented by the 
 
            settlement papers in the file minus the $600 attorney fees 
 
            left him with approximately $1,260.  Mr. Lombardi wants 
 
            $1,569.88, of which $73.63 is court costs.
 
            
 
                 When Mr. Lombardi became involved with this case he was 
 
            or should have been aware that there was a contingent fee 
 
            contract of one-third that Ms. Jorgensen had with claimant.  
 
            His exhibit 1 reflects that he is now requesting payment on 
 
            an hourly basis and the record shows that he has no contract 
 
            with the claimant in any respect and his only relationship 
 
            with the claimant is through Ms. Jorgensen with whom he has 
 
            a dispute.  It appears to the undersigned that Ms. Jorgensen 
 
            is the one who must settle her dispute with Mr. Lombardi and 
 
            that the claimant should not be brought into this nor should 
 
            he be paying any part of any ultimate settlement if there is 
 
            a settlement between Mr. Lombardi and Ms. Jorgensen.
 
            
 
                 The undersigned therefore finds that the claimant, 
 
            James Dale Magneson, does not owe attorney fees to Mr. 
 
            Lombardi, and that he is not entitled to any attorney fees 
 
            out of the settlement that was approved by this agency.  The 
 
            undersigned further finds that Mr. Lombardi's relief or any 
 
            right he may have to recover his expenses and attorney fees 
 
            must be resolved between him and Ms. Jorgensen in some other 
 
            court of law other than this agency.
 
            
 
                 The undersigned further finds it is obvious that 
 
            Attorney Toby Swanson was not aware of or had not been 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            apprised of the dispute, the nature of the dispute or the 
 
            claim of Mr. Lombardi while he was involved in this case, 
 
            and it appears Ms. Jorgensen did not relate the nature of 
 
            this dispute to him.
 
            
 
                 Mr. Lombardi's request for the payment of $1,496.25 
 
            attorney fees plus $72.63 court costs is denied and he takes 
 
            nothing from this proceeding.
 
            
 
                                conclusions of law
 
            
 
                 Stephen Lombardi is not entitled to his requested 
 
            $1,496.25 in attorney fees or reimbursement of $73.63 court 
 
            costs.
 
            
 
                                      order
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 That Stephen Lombardi takes nothing from this 
 
            proceeding.
 
            
 
                 That Stephen Lombardi shall pay any costs.
 
            
 
                 Signed and filed this ____ day of January, 1993.
 
            
 
            
 
            
 
                                          ______________________________
 
                                          BERNARD J. O'MALLEY
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies to:
 
            
 
            Mr Stephen D Lombardi
 
            Attorney at Law
 
            10101 University Ave  Ste 202
 
            Clive IA 50325
 
            
 
            Mr Toby Swanson
 
            Attorney at Law
 
            1922 Ingersoll  Ste B-1
 
            Des Moines IA 50309
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            
 
            Ms Jacqueline Jorgensen
 
            Attorney at Law
 
            8980 Hickman Rd  Ste 102
 
            Des Moines IA 50325
 
            
 
            Mr James Magneson
 
            2323 SE 6th
 
            Des Moines IA 50315
 
            CERTIFIED & REGULAR MAIL
 
            
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                      1000
 
                      Filed January 20, 1993
 
                      Bernard J. O'Malley
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            JAMES DALE MAGNESON,          :
 
                                          :
 
                 Claimant,                :       File No. 940620
 
                                          :
 
            vs.                           :
 
                                          :       D E C I S I O N
 
            WASTE MANAGEMENT OF IOWA,     :
 
            INC.,                         :             O N
 
                                          :
 
                 Employer,                :       A T T O R N E Y
 
                                          :
 
            and                           :            F E E
 
                                          :
 
            CNA INSURANCE COMPANY,        :        D I S P U T E
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            1000
 
            Found attorney, who was originally a co-counsel and was 
 
            relieved of his services by claimant and claimant's original 
 
            attorney, was not entitled to any attorney fee for his time 
 
            or reimbursement of costs.  He did not have a contract with 
 
            claimant nor an attorney fee lien.  A contingent fee 
 
            contract was with claimant and his original attorney who was 
 
            involved in a acrimonious dispute with the fired co-counsel.
 
            If attorney fees and costs were allowed, claimant would have 
 
            been paying out of his pocket $309.88 more than he obtained 
 
            in the ultimate settlement, i.e., claimant would have 
 
            received nothing at all and would have had to come up with 
 
            $309.88 more for bringing this action.  He was on a 1/3 
 
            contingent fee agreement with his original and ultimate 
 
            attorney in the settlement.
 
            Deputy found that claimant should not be caught between two 
 
            disputing and fighting attorneys at no fault of his.  
 
            Attorney should go to another court of law and not this 
 
            agency to resolve his dispute with former co-counsel.
 
            
 
 
         
 
 
 
 
 
         
 
                  BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         _________________________________________________________________
 
                                         
 
         QUENTIN ROHRER,                 :
 
                                         :
 
              Claimant,                  :
 
                                         :
 
         vs.                             :
 
                                         :        File No. 940629
 
         NATIONAL GYPSUM CO., d/b/a      :
 
         GOLD BOND BUILDING PRODUCTS,    :
 
                                         :          A P P E A L
 
              Employer,                  :
 
                                         :        D E C I S I O N
 
         and                             :
 
                                         :
 
         NATIONAL UNION FIRE,            :
 
                                         :
 
              Insurance Carrier,         :
 
              Defendants.                :
 
         _________________________________________________________________
 
         
 
              The record, including the transcript of the hearing before 
 
         the deputy and all exhibits admitted into the record, has been 
 
         reviewed de novo on appeal.  The decision of the deputy filed 
 
         July 27, 1994 is affirmed and is adopted as the final agency 
 
         action in this case.
 
         
 
              Claimant shall pay the costs of the appeal, including the 
 
         preparation of the hearing transcript.
 
         
 
              Signed and filed this ____ day of October, 1994.
 
         
 
         
 
                                       ________________________________
 
                                                BYRON K. ORTON
 
                                           INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Steven D. Hamilton
 
         Attorney at Law
 
         P.O. Box 188
 
         Storm Lake, Iowa 50588
 
         
 
         Mr. Steven R. Cantonwine
 
         Attorney at Law
 
         Breakwater Bldg.
 
         3708 75th St.
 
         Des Moines, Iowa 50322
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                                       5-1402.20
 
                                       Filed October 31, 1994
 
                                       Byron K. Orton
 
         
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         _________________________________________________________________
 
                                         :
 
         QUENTIN ROHRER,                 :
 
                                         :
 
              Claimant,                  :
 
                                         :
 
         vs.                             :
 
                                         :        File No. 940629
 
         NATIONAL GYPSUM CO., d/b/a      :
 
         GOLD BOND BUILDING PRODUCTS,    :
 
                                         :          A P P E A L
 
              Employer,                  :
 
                                         :        D E C I S I O N
 
         and                             :
 
                                         :
 
         NATIONAL UNION FIRE,            :
 
                                         :
 
              Insurance Carrier,         :
 
              Defendants.                :
 
         _________________________________________________________________
 
         
 
         5-1402.20
 
         
 
              Claimant failed to prove that a traumatic incident was 
 
         causally related to claimed disability.
 
         
 
 
            
 
            
 
            
 
            
 
            
 
                      BEFORE THE IOWA INDUSTRIAL COMMISSIONER 
 
            ____________________________________________________________
 
                                          
 
            QUENTIN ROHRER,               :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :       File No. 940629
 
                                          :
 
            NATIONAL GYPSUM CO.,               A R B I T R A T I O N
 
            d/b/a GOLD BOND BUILDING      :
 
            PRODUCTS,                     :       D E C I S I O N
 
                                          :
 
                 Employer,                :
 
                                          :
 
            and                           :
 
                                          :
 
            NATIONAL UNION FIRE,          :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This is a contested case proceeding under Iowa Code 
 
            chapter 17A.  Claimant, Quentin Rohrer, filed a petition in 
 
            arbitration against his former employer, National Gypsum 
 
            Company, and its insurance carrier, National Union Fire 
 
            Insurance, alleging that he sustained a cumulative injury to 
 
            the back on March 14, 1989.  Mr. Rohrer subsequently amended 
 
            his petition to allege injury when struck by a machine part 
 
            on January 23, 1990.
 
            
 
                 A hearing was accordingly scheduled and held in Fort 
 
            Dodge, Iowa on April 18, 1994.  The record consists of joint 
 
            exhibits 1-17 and 19-26, claimant's exhibits A-L, 
 
            defendants' exhibits AA-FF and the testimony of claimant, 
 
            Ronald Johnson, Michael Smith, Nadine Green and Michael 
 
            Donohue.  The exhibits also contain the deposition testimony 
 
            of Dr. Jon Ahrendsen, Dr. John Welsh, Dr. Sterling Laaveg, 
 
            William Tague, John Carlisle and claimant.
 
            
 
                                      ISSUES
 
            
 
                 The parties have stipulated to the following:
 
            
 
                    1.  Permanent disability, if any, should be 
 
                    compensated by the industrial method;
 
            
 
                    2.  At the time of injury, claimant was 
 
                    married and entitled to eight exemptions;
 
            
 
                    3.  Medical providers would testify in the 
 
                    absence of contrary evidence that fees and 
 
                    treatment were reasonable;
 
            
 
                    4.  Disputed medical treatment is causally 
 
                    connected to the medical condition upon 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
                    which the claim of injury is based; and,
 
            
 
                    5.  Defendants have made no weekly benefit 
 
                    payments.
 
            
 
                 Issues presented for resolution include:
 
            
 
                    1.  Whether claimant sustained injury 
 
                    arising out of and in the course of 
 
                    employment;
 
            
 
                    2.  Whether the injury caused either 
 
                    temporary or permanent disability;
 
            
 
                    3.  The extent of temporary disability;
 
            
 
                    4.  The extent and commencement date of 
 
                    permanent disability;
 
            
 
                    5.  The correct rate of weekly compensation;
 
            
 
                    6.  Entitlement to medical benefits; and,
 
            
 
                    7.  Whether the claim is barred for lack of 
 
                    timely notice under Iowa Code section 85.23.
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 The undersigned deputy industrial commissioner finds:
 
            
 
                 Quentin Rohrer, 48 years of age at hearing, began 
 
            working for National Gypsum Company in 1979.  The plant 
 
            manufactures plaster wall board from raw gypsum.  Claimant 
 
            held a number of jobs, including forklift driver, bulldozer 
 
            operator, warehouseman and machine operator.  From 
 
            approximately March 1989, claimant operated a machine 
 
            referred to as the "green monster," a device that cut 
 
            imperfect plasterboard sections into smaller boards, which 
 
            are then used as risers to separate plasterboard for 
 
            handling by forklift.
 
            
 
                 According to Sterling J. Laaveg, M.D., who testified by 
 
            deposition on July 13, 1992, Mr. Rohrer suffers from a 
 
            lumbosacral sprain (stretching of ligaments), exacerbating 
 
            previous degenerative arthritis and degenerative disc 
 
            disease, going on to chronic mechanical back pain.  The 
 
            parties vigorously dispute how it is that claimant came to 
 
            suffer from this condition.
 
            
 
                 As previously noted, Mr. Rohrer's original petition 
 
            (filed June 11, 1990) alleged a cumulative injury to the 
 
            back sustained March 14, 1989.  On February 11, 1992, 
 
            claimant filed an amendment alleging that he had been struck 
 
            by a machine part on January 23, 1990, but continued working 
 
            until March 19, 1990.
 
            
 
                 According to Mr. Rohrer, he was operating the green 
 
            monster when a weld broke and he was struck forcefully by a 
 
            hydraulic cylinder used to slide sheetrock onto rollers.  
 
            Claimant's testimony at trial was that a pile up had 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            occurred somewhere down the line, and that when he raised 
 
            his right hand to give directions, the weld broke and the 
 
            cylinder struck him with crushing force under the right arm.  
 
            Claimant described himself as in shock and unable to 
 
            breathe; he had to depress or pull on his tongue in order to 
 
            get air, and actually believed he might die of suffocation.  
 
            However, he quickly recovered and was left with a bruise and 
 
            residual stiffness.  Claimant was able to finish his shift 
 
            and, in fact, missed no work at all during the next two 
 
            months. 
 
            
 
                 According to claimant, he immediately notified 
 
            Assistant Foreman Todd Treloar in the presence of fellow 
 
            employee Michael Smith.  Treloar is said to have agreed to 
 
            fill out an accident report, and did so again on the 
 
            following day.  As it happens, no accident report was filed.  
 
            Treloar's testimony is not in evidence, but Michael Smith 
 
            directly controverted claimant's testimony.  Mr. Smith says 
 
            he only learned of the incident for the first time shortly 
 
            before trial.  Indeed, no witness was presented who could 
 
            confirm either the actual incident or claimant's bruises, 
 
            which he allegedly showed to several workers.
 
            
 
                 According to claimant, the defective weld was repaired 
 
            by Ronald Johnson, a maintenance worker.  Johnson testified 
 
            rather uncertainly that he had once repaired the cylinder 
 
            arm, but did not recall when.  The log in which he recorded 
 
            repairs does not show any contemporaneous entry, but does 
 
            show a welding repair on February 2, 1990.  Johnson, who 
 
            admitted to some inconsistency in logging all repairs, was 
 
            uncertain as to whether the February repair was actually the 
 
            repair that he recalled making.
 
            
 
                 According to the notes of an evaluating physician, Dr. 
 
            McGuire, claimant asserted that the machine was down for 
 
            three days following this incident.  John Carlisle, who 
 
            testified by deposition on March 23, 1994, was also an 
 
            operator of the green monster, but did not recall a time 
 
            when a cylinder was broken off the machine or loose in any 
 
            way.  Carlisle also testified that he could not recall 
 
            claimant showing him any bruises, although he later received 
 
            a telephone call from claimant's attorney, who represented 
 
            that Mr. Rohrer claimed to have shown his bruises to 
 
            Carlisle.
 
            
 
                 During the next two months, claimant sought no medical 
 
            attention.  He asserts that he suffered a stiff back for the 
 
            first week or two, then experienced several "popping" or 
 
            "catching" sensations during February, generally while 
 
            watching television in the evening.  He testified to a 
 
            single previous incident of burning and popping in the back 
 
            while in the warehouse between 1987 and March 1989, which he 
 
            considered a mere cramp and was able to walk off.  However, 
 
            by approximately March 1st, symptoms had completely resolved 
 
            and Mr. Rohrer felt fine until the "coffee cup" incident of 
 
            March 19.
 
            
 
                 In his deposition testimony, claimant graphically 
 
            described the "coffee cup" incident as follows:
 
            
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
                       A.  Oh, no.  I was sitting there in a 
 
                    nice--it was one of these booths that goes 
 
                    like this.  You know, it's a slanted booth 
 
                    like that.  I was just sitting there.  
 
                    They're comfortable booths.  I've eaten out 
 
                    there lots of times before.
 
            
 
                       And I wasn't twisting around or doing 
 
                    nothing.  I was sitting there eating, and I 
 
                    got up to go get some coffee, and it was 
 
                    out.  And it went out, and I didn't feel it 
 
                    go out.
 
            
 
                       Q.  What happened when it did go out?
 
            
 
                       A.  I got up, and I just felt this 
 
                    tremendous pain.  And I almost went clear 
 
                    down to the floor on my knees, and I got 
 
                    back up.  And I sat on the deal a little 
 
                    bit, and I tried to straighten up a little 
 
                    bit.  And I saw I wasn't going to be able to 
 
                    straighten up, so then I saw there for a 
 
                    while, and I thought.
 
            
 
                       I tried a little more, tried to move my 
 
                    hip a little bit.  Nothing, so I said, "I've 
 
                    got to get home."  So I went on home, and I 
 
                    laid on the floor.  And Laura tried to work 
 
                    on my back and stuff, and that didn't do 
 
                    nothing, so I went in and laid on that 
 
                    heating pad.  That did the most good, when I 
 
                    laid on the heating pad.  It seems like it 
 
                    was relaxing and stuff, and the pain went 
 
                    away.  I felt all right when I was on the 
 
                    heating pad, but I laid on the heating pad 
 
                    all day long.
 
            
 
            (Claimant's Deposition, Pages 69-70)
 
            
 
                 On March 20, claimant was seen by his family physician, 
 
            Jon Ahrendsen, M.D.  Dr. Ahrendsen's contemporaneous chart 
 
            notes read as follows:
 
            
 
                    Presents with complaint of pain in right 
 
                    sacroiliac region.  States he has lot of 
 
                    history of it popping out in past, has not 
 
                    been able to get it to pop back in.  I tried 
 
                    several maneuvers on the patient to try and 
 
                    help him and nothing was successful.  I 
 
                    referred him to Dr. Welsh's office to see if 
 
                    he could be of assistance to him.
 
            
 
                 Dr. Ahrendsen did not recall claimant relating how he 
 
            had injured his back.
 
            
 
                 On Dr. Ahrendsen's referral, claimant visited the 
 
            chiropractic office of John P. Welsh, D.C., on March 20.  
 
            Dr. Welsh, who testified by deposition on November 7, 1991, 
 
            described the history he was given as follows:
 
            
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
                       A.  At the time he visited my office, he 
 
                    complained of pain localized to the right 
 
                    PSIS.  That's a right posterior iliac spine.  
 
                    "The onset was yesterday," which would have 
 
                    been 3-19-90, "after getting out of a 
 
                    chair."
 
            
 
                       Q.  Did he give you any other history?
 
            
 
                       A.  Basically that he had had trouble 
 
                    with his back a year and a half ago from 
 
                    lifting, and at the time he visited the 
 
                    office the pain was very sharp.  He 
 
                    mentioned that pulling his legs up helped, 
 
                    walking and rolling over in bed irritated 
 
                    it, and he felt some cramping in the 
 
                    internal thigh that day.
 
            
 
                    And:
 
            
 
                       Q.  From the time when you first started 
 
                    treating Mr. Rohrer until today, did Mr. 
 
                    Rohrer ever tell you that he injured his 
 
                    back at work other than the statement that 
 
                    one to one and a half years prior to March 
 
                    20th, 1990, he had injured his back at work?
 
            
 
                       A.  Not that I recall.
 
            
 
                       Q.  Okay.
 
            
 
                       A.  He did say, you know, that he had 
 
                    some incidences with his back in that year 
 
                    and a half with back pain; but as far as 
 
                    major incidences, I don't recall any.
 
            
 
            (Welsh Deposition, Pages 5-6, 18)
 
            
 
                 Dr. Welsh's diagnosis was of acute lumbar sprain.  Dr. 
 
            Welsh also offered the opinion that this lumbar strain had 
 
            been caused by claimant getting up out of a chair.  He 
 
            recalled no mention of the green monster or of a work injury 
 
            in January 1990.
 
            
 
                 Claimant continued to treat with Dr. Welsh until coming 
 
            under the care of Sterling J. Laaveg, M.D., on September 25, 
 
            1990.  In his deposition of July 13, 1992, Dr. Laaveg 
 
            described the very different history he was given:
 
            
 
                       Q.  And what was that history?
 
            
 
                       A.  He came complaining of his back.  He 
 
                    worked for the National Gypsum plant in Fort 
 
                    Dodge.  He stated that he had had no 
 
                    significant prior problems with his back 
 
                    until January 23rd of 1990.  He on that date 
 
                    was working on a machine at the plant called 
 
                    a green machine--I'm not completely sure 
 
                    what that means--and one of the cylinders 
 
                    rolled off the machine and hit him on the 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
                    front chest wall.  And he described having 
 
                    difficulty breathing at first, and gradually 
 
                    that improved over a few minutes, and it 
 
                    sounded to me as if he had had the wind 
 
                    knocked out of him, to use a layman's term.  
 
                    And he complained of chest pain for a short 
 
                    time after that and stiffness in his back, 
 
                    and he stated that for two weeks it was 
 
                    quite stiff.
 
            
 
                       Then in early February he was having pain 
 
                    in his back which would radiate out over his 
 
                    hip and down into his thigh.  It sounded to 
 
                    me as if he was having either borderline 
 
                    sciatica, but it sounded more like he had a 
 
                    bursitis of his hip, but he stated by early 
 
                    March of 1990 he was doing well.
 
            
 
                       Then on 3-19-90, he stated that while 
 
                    working, without a specific episode, that 
 
                    his back, quote, went out, unquote, and, 
 
                    quote, hurt terribly, unquote.  It sounded 
 
                    as if he was having difficulty being able to 
 
                    straighten up and would have a catching 
 
                    sensation, and he began to see Dr. Welsh, 
 
                    who is a chiropractor, for routine 
 
                    chiropractic treatments.
 
            
 
                    And,
 
            
 
                       Q.  Did he tell you of any injuries 
 
                    before January of 1990?
 
            
 
                       A.  No.
 
            
 
                       Q.  You indicated that he stated that 
 
                    while he was working on 3-19-91--
 
            
 
                       A.  '90.
 
            
 
                       Q.  Excuse me.  '90.  --that his back 
 
                    went out?
 
            
 
                       A.  Yes.
 
            
 
                       Q.  Did he tell you what he was doing at 
 
                    that time?
 
            
 
                       A.  No.  In fact, he stated that there 
 
                    had not been a specific episode; that it 
 
                    just seemed to be getting worse through that 
 
                    day, was my understanding of the episode.
 
            
 
            (Laaveg Deposition, Pages 5-7)
 
            
 
                 On October 26, 1990, claimant gave the following 
 
            history to JoAnn Drake, a physical therapist:
 
            
 
                    The patient states that the initial history 
 
                    did occur in late January when he was hit in 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
                    the chest and pushed back while loading a 
 
                    gypsum board onto his work bench.  The 
 
                    patient states that that time he did get the 
 
                    wind knocked out of him and noted pain in 
 
                    the right anterior/lateral chest area.  The 
 
                    patient states that he continued work and 
 
                    with the repetitive and strenuous activity 
 
                    of his job that on March 19 when he was 
 
                    twisting to get a board his back went out.
 
            
 
                 In answers to interrogatories executed October 2, 1990, 
 
            claimant offered the following history:
 
            
 
                       8.  How, where and when did you sustain 
 
                    the injury, condition or disease, for which 
 
                    you now make claim, specifying whether you 
 
                    contend that you have sustained any 
 
                    "cumulative injury", and, if so, when you 
 
                    allege it started and when it first resulted 
 
                    in disability from work, and state who, 
 
                    giving names and addresses, you claim caused 
 
                    to any degree, or saw, the events happen, 
 
                    and what do you claim each person did, or 
 
                    saw.
 
            
 
                       ANSWER:
 
            
 
                          I slipped on grease on floors and did 
 
                    the splits.  I reported to foreman.  The 
 
                    first time I realized something was wrong 
 
        
 
            
 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
                    was in August of 1988.  I and Tim Wilson 
 
                    were stacking Gypsolite 33 bags to a pallet 
 
                    when at 1:00 p.m. something in my hip popped 
 
                    and I went to my knees.  We were almost done 
 
                    with run and I did some stretches and it 
 
                    popped back in.  Marlene Bygness and most of 
 
                    department knew I had some trouble with it.  
 
                    John Smith also saw it go out on me once.  
 
                    Then it quit doing it and I thought it was 
 
                    alright, but I bid out of department in 
 
                    March 1989 because I figured by back needed 
 
                    a rest from heavy lifting.  Then while 
 
                    operating the green monster one night in 
 
                    January, 1990, a weld broke on a cylinder on 
 
                    the tilt table and it slammed into my side.  
 
                    I was standing where I should have been or 
 
                    it would have crushed my chest.  After that 
 
                    it started popping out again, just like a 
 
                    pinched nerve would feel.  I reported this 
 
                    to my foreman, Todd Trealoar.  Finally, on 
 
                    March 19, 1990, I sat down after my shift to 
 
                    have some coffee at Hy Vee in Humboldt but 
 
                    when I got up to get some more coffee, I 
 
                    went to the floor.  This time I couldn't get 
 
                    it to go back in.  My entire shift knew I 
 
                    could barely walk the night of 3/19/90.  
 
                    After my shift, I told my foreman my back 
 
                    hurt too much for me to continue and that I 
 
                    was going to go get something done about it.  
 
                    When I found out on 3-20-90 the extent of 
 
                    the separation.  I called and told the plant 
 
                    I would be off work for some time.  I 
 
                    couldn't tell them how long as no one could 
 
                    tell me what the progress would be.
 
            
 
            (Exhibit 19, Page 70)
 
            
 
                 Mike Donohue, defendant's human resources and safety 
 
            manager, credibly testified that he first learned of the 
 
            claimed January 1990 injury in April 1990.  He understood 
 
            claimant to state that while at home, on March 23rd, he got 
 
            up to get coffee and was knocked to his knees.  Donohue 
 
            related that claimant went on to explain that he had first 
 
            developed a catching sensation in 1989 and that "I know 
 
            that's what caused my back problem."  Claimant went on to 
 
            explain that he had not reported this incident out of 
 
            concern that it would interfere with a pending mortgage loan 
 
            application.
 
            
 
                 Claimant currently has residual pain and medical 
 
            restrictions resulting from his chronic mechanical low back 
 
            pain.  Three medical practitioners have expressed an opinion 
 
            on the crucial issue of causation.  
 
            
 
                 Dr. Welsh, the first treating practitioner, has 
 
            specified that the injury was caused when claimant stood up 
 
            to get coffee.
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            
 
                 Daniel J. McGuire, M.D., who saw claimant for 
 
            evaluation on June 2, 1993, is an orthopedic surgeon like 
 
            Dr. Laaveg.  Dr. McGuire appears to have received a 
 
            relatively accurate history, and concluded that symptoms 
 
            following the green monster incident had resolved.  Dr. 
 
            McGuire found claimant's persistent complaints of low back 
 
            pain to be of unclear etiology.
 
            
 
                 Dr. Laaveg is the only physician to have causally 
 
            connected claimant's current condition to the green monster 
 
            incident.  However, Dr. Laaveg was given a grossly 
 
            misleading history.  He did not know of the coffee cup 
 
            incident, and thought that no specific episode occurred in 
 
            March 1990.  Dr. Laaveg was also unaware of two other severe 
 
            reoccurrences between March and the first time he saw 
 
            claimant in September.  These involved an episode while 
 
            planting a tree and while hammering a nail.  Dr. Laaveg was 
 
            also completely unaware that claimant had a significant 
 
            preexisting history, much less one that claimant himself 
 
            attributed his condition to in a discussion with Mike 
 
            Donohue.  When cross-examined on these points, Dr. Laaveg 
 
            testified:
 
            
 
                       Q.  Doctor, your testimony as far as a 
 
                    physician is limited as to the history you 
 
                    receive, is it not?
 
            
 
                       A.  Always.
 
            
 
                       Q.  Have you noticed where patients at 
 
                    some times are not very good historians on 
 
                    what has in fact occurred?
 
            
 
                       A.  Many times.
 
            
 
                       Q.  Doctor, if those things in fact 
 
                    occurred, he had pain when giving--when 
 
                    showing children how to plant trees, he had 
 
                    pain when showing--when getting up from 
 
                    coffee, he had in fact onset of pain where 
 
                    he had a real problem even walking, he had a 
 
                    problem with pain when he was driving a 
 
                    truck, with the knowledge of those things 
 
                    which you've seen in that deposition and 
 
                    also the deposition of Dr. Welsh, isn't it 
 
                    more difficult to relate any specific injury 
 
                    to his condition?
 
            
 
                       A.  Yes, it is.
 
            
 
                       Q.  Okay.  But none of those other things 
 
                    were told to you at the time you originally 
 
                    saw him?
 
            
 
                       A.  No, they were not.
 
            
 
                       Q.  And you were never informed of a back 
 
                    problem related to the lifting of Gypsumite?
 
            
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
                       A.  It was not my understanding on that 
 
                    first day or in subsequent visits that that 
 
                    episode had occurred.  This letter did 
 
                    appear, and perhaps I missed the fact that 
 
                    it talked about an incident a year and a 
 
                    half ago.  In actual fact, if that had 
 
                    healed and he had another episode, it could 
 
                    still relate to a new episode, so to me it 
 
                    was not critical to the history.
 
            
 
                       Q.  I understand.  Subsequent events, 
 
                    though, might be critical to a history?
 
            
 
                       A.  Absolutely.
 
            
 
            (Laaveg Deposition, Pages 23-24)
 
            
 
                 Dr. Laaveg also testified that an incident such as 
 
            getting up for more coffee was capable of causing the injury 
 
            sustained by Mr. Rohrer.
 
            
 
                 The finder of fact considers the opinions of Drs. Welsh 
 
            and McGuire more persuasive than the opinion of Dr. Laaveg 
 
            on the critical issue of causation.
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                 The party who would suffer loss if an issue were not 
 
            established has the burden of proving that issue by a 
 
            preponderance of the evidence.  Iowa R. App. P. 14(f).
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the alleged injury 
 
            actually occurred and that it arose out of and in the course 
 
            of employment.  McDowell v. Town of Clarksville, 241 N.W.2d 
 
            904 (Iowa 1976); Musselman v. Cent. Tel. Co., 261 Iowa 352, 
 
            154 N.W.2d 128 (1967).  The words "arising out of" refer to 
 
            the cause or source of the injury.  The words "in the course 
 
            of" refer to the time, place and circumstances of the 
 
            injury.  Sheerin v. Holin Co., 380 N.W.2d 415 (Iowa 1986); 
 
            McClure v. Union County, 188 N.W.2d 283 (Iowa 1971).
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury is a proximate 
 
            cause of the disability on which the claim is based.  A 
 
            cause is proximate if it is a substantial factor in bringing 
 
            about the result; it need not be the only cause.  A 
 
            preponderance of the evidence exists when the causal 
 
            connection is probable rather than merely possible.  
 
            Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa 
 
            1980); Holmes v. Bruce Motor Freight, Inc., 215 N.W.2d 296 
 
            (Iowa 1974).
 
            
 
                 The question of causal connection is essentially within 
 
            the domain of expert testimony.  The expert medical evidence 
 
            must be considered with all other evidence introduced 
 
            bearing on the causal connection between the injury and the 
 
            disability.  The weight to be given to any expert opinion is 
 
            determined by the finder of fact and may be affected by the 
 
            accuracy of the facts relied upon by the expert as well as 
 

 
            
 
            Page  11
 
            
 
            
 
            
 
            
 
            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).
 
            
 
                 Even if it be assumed that claimant did suffer a blow 
 
            from a broken cylinder on the green machine in January 1990, 
 
            an assumption which is itself in some doubt due to the lack 
 
            of corroborating evidence and claimant's inconsistent 
 
            versions of events, the causal nexus issue is dispositive of 
 
            this case.  Claimant has failed to meet his burden of proof 
 
            on the causal nexus issue, since Dr. Laaveg's opinion is 
 
            less persuasive than the contrary opinions of Dr. Welsh and 
 
            Dr. McGuire.  It will be recalled that approximately two 
 
            months elapsed between the green monster incident and the 
 
            sudden onset of symptoms in March, and that symptoms had 
 
            completely resolved at least three weeks before.  Also, it 
 
            is noted that claimant had a substantial preexisting history 
 
            of similar "catching" or "popping" incidents, although the 
 
            extent of that problem is very much befogged by his 
 
            inconsistent statements.  Dr. Laaveg has testified (as have 
 
            numerous other physicians in agency experience; See, Iowa 
 
            Code section 17A.14(5)) that a minor event such as the 
 
            coffee cup incident alone is adequate to explain the onset 
 
            of symptoms.
 
            
 
                 As claimant has failed to meet his burden of proof on 
 
            the crucial issue of causal nexus, defendants must prevail.  
 
            Other issue are thereby rendered moot.
 
            
 
                                      ORDER
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 Claimant takes nothing.
 
            
 
                 Costs are assessed to claimant.
 
            
 
                 Signed and filed this ____ day of July, 1994.
 
            
 
            
 
                                          
 
                                          ________________________________
 
                                          DAVID RASEY
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr Steve Hamilton
 
            Attorney at Law
 
            606 Ontario Street
 
            PO Box 188
 
            Storm Lake Iowa 50588
 
            
 
            Mr Steven R Cantonwine
 
            Attorney at Law
 
            Breakwater Building
 

 
            
 
            Page  12
 
            
 
            
 
            
 
            
 
            3708 75th Street
 
            Des Moines Iowa 50322
 
            
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                              5-1402.20
 
                                              Filed July 27, 1994
 
                                              DAVID RASEY
 
            
 
                         BEFORE THE IOWA INDUSTRIAL COMMISSIONER 
 
            ____________________________________________________________
 
                      
 
            QUENTIN ROHRER,     
 
                      
 
                 Claimant, 
 
                      
 
            vs.                                  File No. 940629
 
                      
 
            NATIONAL GYPSUM CO.,             A R B I T R A T I O N
 
            d/b/a GOLD BOND BUILDING 
 
            PRODUCTS,                            D E C I S I O N
 
                      
 
                 Employer, 
 
                      
 
            and      
 
                      
 
            NATIONAL UNION FIRE,     
 
                      
 
                 Insurance Carrier,  
 
                 Defendants.    
 
            ___________________________________________________________
 
            
 
            5-1402.20
 
            Claimant failed to prove that a traumatic incident was 
 
            causally related to claimed disability.