Page   1
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
                     before the iowa industrial commissioner
 
         ____________________________________________________________
 
                                       :
 
         RENEE DENNING,                :
 
                                       :
 
              Claimant,                :
 
                                       :
 
         vs.                           :
 
                                       :         File No. 946055
 
         MR. CONVENIENT, JOHN STAUB,   :
 
                                       :      A R B I T R A T I O N
 
              Employer,                :
 
                                       :         D E C I S I O N
 
         and                           :
 
                                       :
 
         IMT INSURANCE,                :
 
                                       :
 
              Insurance Carrier,       :
 
              Defendants.              :
 
         ___________________________________________________________
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              This is a proceeding in arbitration upon the petition of 
 
         claimant, Renee Denning, against her employer, Mr. Convient, John 
 
         Staub, and his insurance carrier, IMT Insurance, defendants.  The 
 
         case was heard on November 4, 1991, in Burlington, Iowa.  The 
 
         record consists of the testimony of claimant.  The record also 
 
         consists of the testimony of Robert L. Bucher.  Additionally, the 
 
         record consists of claimant's exhibits A through D and 
 
         defen-dants' exhibit 1; exhibit 2, pages 10-17; and exhibit 3, 
 
         pages 1-28.
 
         
 
                                      issues
 
         
 
              The issues to be determined are:  1) whether claimant is 
 
         entitled to temporary disability/healing period benefits or 
 
         permanent disability benefits; and 2) whether claimant is 
 
         entitled to penalty benefits pursuant to section 86.13(4).
 
         
 
                                 findings of fact
 
         
 
              The deputy, having heard the testimony and considered all 
 
         the evidence, finds:
 
         
 
              Claimant is 42 years old.  She commenced her employment with 
 
         John Staub, doing business as Mr. Convenient in August of 1987.  
 
         Claimant's duties included waiting on customers, stocking cool
 
         ers, stocking shelves, carrying beer cases, and checking gas 
 
         pumps.  Claimant's duties necessitated lifting, bending, stooping 
 
         and twisting.
 
         
 
              On April 11, 1990, claimant was working the 12:00 p.m. shift 
 
         to 5:00 p.m.  She lifted a syrup tank which weighed in excess of 
 
         25 pounds.  She carried the tank from the stockroom to the front 
 

 
         
 
         Page   2
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         of the store.  While she was carrying the tank, she felt a burn
 
         ing sensation in her neck and shoulders.  After she had carried 
 
         the syrup tank, she encountered the business owner, John Staub.  
 
         Claimant testified that she announced to Mr. Staub:  "You timed 
 
         that right.  I about killed my neck."
 
         
 
              Claimant continued working that day and for the remainder of 
 
         the week.  However, claimant testified she felt worse by the fol
 
         lowing Sunday.  As a consequence, claimant left work on Sunday 
 
         April 15, 1991, and she sought emergency room services at 
 
         Burlington Medical Center.  Claimant described her pain as numb
 
         ness in her left hand and terrific pain down her left arm.
 
         
 
              Claimant treated with Keith Riggins, M.D.  Dr. Riggins 
 
         referred claimant to Vincent C. Traynelis, M.D., Assistant 
 
         Professor of Neurosurgery at the University of Iowa.  Dr. 
 
         Traynelis became claimant's treating neurosurgeon.  He diagnosed 
 
         claimant's condition as a cervical radiculopathy, secondary to a 
 
         herniated disk.  As a result, Dr. Traynelis performed a decom
 
         pression of the nerves with a cervical fusion.  Dr. Traynelis 
 
         described the surgical process as:
 
         
 
                A.  Well, the surgery was performed on October 9th, 
 
              and what this entailed was removing the disk between 
 
              the fifth and sixth vertebrae in the neck, as well as 
 
              the sixth and seventh, and any osteophytes, or bone 
 
              spurs, that were associated with these disks, and plac
 
              ing in a graft of bone to fill in the disk space.  And 
 
              that's about it, in layman's terms.
 
         
 
         (Exhibit A, page 8, lines 16 to 23)
 
         
 
              Subsequent to her surgery, claimant engaged in physical 
 
         therapy.  Dr. Traynelis opined claimant reached her maximum medi
 
         cal improvement on April 30, 1991.  Dr. Traynelis also placed 
 
         permanent restrictions on claimant.  She is restricted from lift
 
         ing anything greater than ten pounds.  Claimant is to restrict 
 
         the use of her arms as well as to restrict her bending to pick up 
 
         objects.  Dr. Traynelis opined claimant had a nine percent func
 
         tional impairment.
 
         
 
              For purposes of rendering an opinion relative to claimant's 
 
         impairment, claimant went to L. Strathman, M.D., on October 15, 
 
         1991.  Dr. Strathman opined:
 
         
 
              A single lateral x-ray was taken in the office at the 
 
              time of the examination, and it shows evidence of sur
 
              gical changes at the 5-6 and 6-7 levels.  It appears 
 
              that there has been some settling at 5-6 and I do not 
 
              see clear cut evidence of fusion at the 6-7 level.  It 
 
              appears that part of the bone plug is present.  There 
 
              is not solid bony union, but there is no evidence of 
 
              displacement.
 
         
 
              EMG's of the left upper extremity were carried out by 
 
              Dr. Nichols and they are completely normal.
 
         
 

 
         
 
         Page   3
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
              In summary, this is a lady with a history as outlined, 
 
              who has undergone a C5 and C6 cervical fusion.  She is 
 
              about one year post surgery and at this time there is 
 
              not clear cut evidence of solid bony fusion on the sin
 
              gle lateral x-ray taken at this time.  EMG's of the 
 
              left upper extremity show no evidence of axonal degen
 
              eration, cervical radiculopathy or brachial plexopathy.  
 
              The cogwheel type movements on active examination and 
 
              the weakness are not supported with objective evidence.  
 
              Impairment at this time based on experience and the AMA 
 
              Guide, would be 7 - 9% body as a whole, based on a two 
 
              level fusion, with some residual symptoms.
 
         
 
         (Ex. D, pp. 2-3)
 
         
 
              At the time of the hearing, claimant was performing 
 
         volunteer services for James Grant d/b/a Grant's Body Shop in 
 
         Burlington, Iowa.  Her duties consisted of running errands, 
 
         answering the phone, writing checks and writing estimates.  
 
         Claimant worked six to seven hours per day.  She alternated 
 
         standing and sitting throughout the course of her day.
 
         
 
              Claimant made application for several positions during 1991.  
 
         She applied for two positions as a convenience store worker.  
 
         Claimant also contacted the local Job Service office on several 
 
         occasions.
 
         
 
              In January of 1992, claimant will be attending Southeast 
 
  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 func
 
         tional 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; earn
 
         ings prior and subsequent to the injury; age; education; motiva
 
         tion; 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 trans
 
         fer for reasons related to the injury is also relevant.  
 
         Like-ewise, 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 mat
 
         ters 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 func
 
         tional impairment directly correlate to a degree of industrial 
 
         disability to the body as a whole.  In other words, there are no 
 
         formulae which can be applied and then added up to determine the 
 
         degree of industrial disability.  It therefore becomes necessary 
 
         for the deputy or commissioner to draw upon prior experience as 
 
         well as general and specialized knowledge to make the finding 
 
         with regard to degree of industrial disability.  See Peterson v. 
 
         Truck Haven Cafe, Inc., (Appeal Decision, February 28, 1985); 
 
         Christensen v. Hagen, Inc., (Appeal Decision, March 26, 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 has sustained a permanent partial disability.  The 
 
         treating neurosurgeon opined claimant had a nine percent func
 
         tional impairment rating.  The physician who performed the 
 
         independent medical examination rated claimant as having a seven 
 
         percent to a nine percent impairment.  Claimant is permanently 
 
         restricted from lifting more than ten pounds.  This is a severe 
 
         lifting restriction.  She is to refrain from raising her arms to 
 
         a level of pain and to refrain from bending over.
 

 
         
 
         Page   5
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
              Claimant has some transferable skills available to her.  She 
 
         had been a hair designer.  At one time she held a license as a 
 
         beautician.  Claimant has some education in criminal law beyond 
 
         the high school level.  Claimant has been performing satisfactory 
 
         work, albeit voluntary, for Grant's Body Shop.  She is quite 
 
         capable of performing the same clerical skills for another small 
 
         business where she can be compensated for her services.  Claimant 
 
         has voluntarily elected not to seek employment at those busi
 
         nesses.  Claimant has applied for two positions as a convenience 
 
         store worker.  She had been denied employment in both instances.
 
         
 
              Claimant was observed during the course of the hearing.   
 
         She did not appear to be in excessive discomfort throughout the 
 
         course of the proceeding.  On the day of the hearing, she ap
 
         peared capable of sitting for nearly three hours.
 
         
 
              It is the determination of the undersigned, in light of the 
 
         aforementioned factors, that claimant has a 15 percent permanent 
 
         partial disability.
 
         
 
              The next issue to address is the extent of healing period 
 
         benefits for which claimant is entitled.  Section 85.34(1) pro
 
         vides that healing period benefits are payable to an injured 
 
         worker who has suffered permanent partial disability until (1) 
 
         the worker has returned to work; (2) the worker is medically 
 
         capable of returning to substantially similar employment; or (3) 
 
         the worker has achieved maximum medical recovery.  The healing 
 
         period can be considered the period during which there is a rea
 
         sonable expectation of improvement of the disabling condition.  
 
         See Armstrong Tire & Rubber Co. v. Kubli, 312 N.W.2d 60 (Iowa 
 
         App. 1981).  Healing period benefits can be interrupted or 
 
         intermittent.  Teel v. McCord, 394 N.W.2d 405 (Iowa 1986).
 
         
 
              In this instance, Dr. Traynelis opined claimant was medi
 
         cally capable of returning to work with the aforementioned 
 
         restrictions as of April 30, 1991.  It is the determination of 
 
         the undersigned that claimant is entitled to healing period bene
 
         fits from April 15, 1990 through April 30, 1991.  The period 
 
         involves 54.429 weeks of benefits at the stipulated rate of 
 
         $111.05 per week.
 
         
 
              The final issue before this deputy is whether claimant is 
 
         entitled to penalty benefits pursuant to section 86.13(4) of the 
 
         Iowa Code.  Section 86.13 permits an award of up to 50 percent of 
 
         the amount of benefits delayed or denied if a delay in commence
 
         ment or termination of benefits occurs without reasonable or 
 
         probable cause or excuse.  The standard for evaluating the rea
 
         sonableness of defendants' delay in commencement or termination 
 
         is whether the claim is fairly debatable.  Where a claim is shown 
 
         to be fairly debatable, defendants do not act unreasonably in 
 
         denying payment.  See Stanley v. Wilson Foods Corp., file number 
 
         753405 (Appeal Decision, August 23, 1990); Seydel v. Univ. of 
 
         Iowa Physical Plant, file number 818849 (Appeal Decision, 
 
         November 1, 1989).
 
         
 
              It is undisputed that claimant's first weekly benefit check 
 

 
         
 
         Page   6
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         was received by claimant during the first weekend in November of 
 
         1990.  The check was paid nearly seven months after the injury 
 
         occurred.  Such a delay was unreasonable.  Claimant notified her 
 
         employer on April 15, 1990, of the work injury.  It is acknowl
 
         edged that initially defendants disputed the claim.  They had 
 
         some reason to believe the injury was related to bowling.  They 
 
         are allowed a reasonable time to investigate the claim.  However, 
 
         a seven month investigatory period is definitely unreasonable, 
 
         given the fact that claimant's treating physician began treating 
 
         her in early June of 1990.  Therefore, it is the determination of 
 
         the undersigned that claimant is entitled to penalty benefits at 
 
         the 50 percent maximum penalty rate from June 15, 1990 to 
 
         November 1, 1990.  This comprises 20 weeks at $55.75 per week.
 
         
 
                                      order
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              Defendants are to pay unto claimant healing period benefits 
 
         at the stipulated rate of one hundred eleven and 05/l00 dollars 
 
         ($111.05) from April 15, 1990 through April 30, 1991, a period of 
 
         fifty-four point four-two-nine (54.429) weeks.
 
         
 
              Defendants are to pay unto claimant seventy-five (75) weeks 
 
         of permanent partial disability benefits commencing on May 1, 
 
         1991 and payable at the stipulated rate of one hundred eleven and 
 
         05/l00 dollars ($111.05) per week.
 
         
 
              Defendants are to also pay unto claimant twenty (20) weeks 
 
         of penalty benefits pursuant to section 86.13 for the period from 
 
         June 15, 1990 to November 1, 1990, at the rate of fifty-five and 
 
         75/l00 dollars ($55.75) per week.
 
         
 
              Defendants shall receive full credit for all disability 
 
         benefits previously paid.
 
         
 
              Costs of this action shall be assessed to defendants 
 
         pursuant to rule 343 IAC 4.33.
 
         
 
              Defendants shall file claim activity reports as requested by 
 
         this agency pursuant to rule 343 IAC 3.l.
 
         
 
         
 
         
 
              Signed and filed this ____ day of November, 1991.
 
         
 
         
 
         
 
         
 
         
 
                                       ______________________________               
 
         MICHELLE A. McGOVERN
 
                                       DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Michael J. Schilling
 

 
         
 
         Page   7
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         Attorney at Law
 
         P O Box 821
 
         205 Washington St
 
         Burlington  IA  52601
 
         
 
         Mr. Craig D. Warner
 
         Attorney at Law
 
         321 N. Third St
 
         Burlington  IA 52601
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                        1803
 
                        Filed November 18, 1991
 
                        MICHELLE A. McGOVERN
 
         
 
                     before the iowa industrial commissioner
 
         ____________________________________________________________
 
                                       :
 
         RENEE DENNING,                :
 
                                       :
 
              Claimant,                :
 
                                       :
 
         vs.                           :
 
                                       :         File No. 946055
 
         MR. CONVENIENT, JOHN STAUB,   :
 
                                       :      A R B I T R A T I O N
 
              Employer,                :
 
                                       :         D E C I S I O N
 
         and                           :
 
                                       :
 
         IMT INSURANCE,                :
 
                                       :
 
              Insurance Carrier,       :
 
              Defendants.              :
 
         ___________________________________________________________
 
         
 
         
 
         
 
         1803
 
         Claimant was awarded a 15 percent permanent partial disability 
 
         for a work injury she sustained to her neck.  Physicians rated 
 
         claimant as having a seven percent to a nine percent functional 
 
         impairment rating.  Claimant was restricted from lifting more 
 
         than ten pounds.  Claimant is to refrain from raising her arms to 
 
         a level of pain and to refrain from bending over.
 
         
 
              Claimant has some transferable skills available to her.  She 
 
         had been a hair designer.  At one time she held a license as a 
 
         beautician.  Claimant has some education in criminal law beyond 
 
         the high school level.  Claimant has been performing satisfactory 
 
         work, albeit voluntary, for Grant's Body Shop.  She is quite 
 
         capable of performing the same clerical skills for another small 
 
         business where she can be compensated for her services.  Claimant 
 
         has voluntarily elected not to seek employment at those busi
 
         nesses.  Claimant has applied for two positions as a convenience 
 
         store worker.  She had been denied employment in both instances.
 
         
 
              Claimant was observed during the course of the hearing.   
 
         She did not appear to be in excessive discomfort throughout the 
 
         course of the proceeding.  On the day of the hearing, she ap
 
         peared capable of sitting for nearly three hours.
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
         before the iowa industrial commissioner
 
         ____________________________________________________________
 
                   :
 
         GAYLE FOOR,    :
 
                   :
 
              Claimant, :
 
                   :
 
         vs.       :
 
                   :   File Nos. 946067/916715
 
         LOUIS RICH,    :
 
                   :         A P P E A L
 
              Employer, :
 
                   :       D E C I S I O N
 
         and       :
 
                   :
 
         THE HARTFORD,  :
 
                   :
 
              Insurance Carrier,  :
 
              Defendants.    :
 
         ___________________________________________________________
 
          The record, including the transcript of the hearing before the 
 
         deputy and all exhibits admitted into the record, has been 
 
         reviewed de novo on appeal.  The decision of the deputy filed 
 
         August 16, 1990 is affirmed and is adopted as the final agency 
 
         action in this case. 
 
         Defendants shall pay the costs of the appeal, including the 
 
         preparation of the hearing transcript.
 
         Signed and filed this ____ day of January, 1991.
 
         
 
         
 
         
 
         
 
                   ________________________________
 
                            CLAIR R. CRAMER
 
                    ACTING INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. David W. Newell
 
         Attorney at Law
 
         323 East 2nd St.
 
         Muscatine, Iowa 52761
 
         
 
         Mr. Larry L. Shepler
 
         Attorney at Law
 
         Suite 102 Executive Square
 
         400 Main Street
 
         Davenport, Iowa 52801
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
            9998
 
            Filed January 31, 1991
 
            WRM
 
            Clair R. Cramer
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            GAYLE FOOR,    :
 
                      :
 
                 Claimant, :
 
                      :
 
            vs.       :
 
                      :   File Nos. 946067/916715
 
            LOUIS RICH,    :
 
                      :         A P P E A L
 
                 Employer, :
 
                      :       D E C I S I O N
 
            and       :
 
                      :
 
            THE HARTFORD,  :
 
                      :
 
                 Insurance Carrier,  :
 
                 Defendants.    :
 
            ___________________________________________________________
 
            
 
            
 
            9998
 
            
 
                 Summary affirmance of deputy's decision filed August 
 
            16, 1990.
 
            
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                   BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
 
 
 BARBARA STOUT,
 
 
 
      Claimant,                             FILE NO. 946083
 
 
 
 McDONALD'S,                                  A P P E A L
 
 
 
      Employer,                             D E C I S I O N
 
 
 
 AMERICAN MOTORIST INSURANCE,
 
 
 
      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 
 
 November 13, 1991 is affirmed and is adopted as the final agency 
 
 action in this case with the following additional analysis:
 
 
 
 Defendants raise as an issue whether they should have been 
 
 allowed to examine claimant at hearing concerning an allegedly 
 
 inconsistent application made by her to her husband's insurance 
 
 carrier for medical benefits wherein she allegedly stated her 
 
 injury was not work-related. Although such examination would have 
 
 been relevant in terms of claimant's credibility, nevertheless 
 
 the weight of the evidence establishes a workrelated injury. A 
 
 false statement to an insurance carrier in another action might 
 
 result in an action by the carrier against the claimant if 
 
 benefits were improperly paid, but that is outside the scope of 
 
 this agency's jurisdiction. Where the evidence otherwise 
 
 indicates the existence of an injury arising out of and in the 
 
 course of the employment, even assuming that defendants had been 
 
 able to show an intentionally false statement, which claimant 
 
 denied, claimant has nevertheless established her entitlement to 
 
 benefits under workers' compensation. Although excluding the 
 
 questions may have been in error, the error was not prejudicial 
 
 and remand is not necessary and the ruling of the deputy is 
 
 adopted herein.
 
 
 
 Defendants shall pay the costs of the appeal, including the 
 
 preparation of the hearing transcript.
 
 
 

 
 
 
 
 
 
 
 
 
STOUT V. MCDONALD'S
 
PAGE 2
 
 
 
 
 
 
 
 
 
 
 
      Signed and filed this 31st day of August, 1992.
 
 
 
 
 
 
 
 
 
 
 
                                                    BYRON K. ORTON
 
                                               INDUSTRIAL COMMISSIONER
 
 
 
 Copies To:
 
 
 
 Mr. Lance A. Grotewold
 
 Attorney at Law
 
 118 North Market Street
 
 Oskaloosa, Iowa  52577
 
 
 
 Mr. Paul C. Thune
 
 Mr. Thomas J. McCann
 
 Attorneys at Law
 
 218 6th Avenue  STE 300
 
 P O Box 9130
 
 Des Moines, Iowa  50306
 
 
 
 
 
 
 
 
 
 
 
 
                                                  9999
 
                                                  Filed August 31, 1992
 
                                                  BYRON K. ORTON
 
 
 
                  BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
 
 
 BARBARA STOUT,
 
 
 
      Claimant,                               FILE NO. 946083
 
 
 
 McDONALD'S,                                    A P P E A L
 
 
 
      Employer,                               D E C I S I O N
 
 
 
 and
 
 
 
 AMERICAN MOTORIST INSURANCE,
 
 
 
      Insurance Carrier, 
 
      Defendants.
 
 
 
 
 
 9999
 
 
 
      Summary affirmance of deputy's decision filed November 
 
 13, 1991 with short additional analysis.
 
 
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            BARBARA STOUT,                :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :         File No. 946083
 
            McDONALD'S,                   :
 
                                          :      A R B I T R A T I O N
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            AMERICAN MOTORIST INSURANCE,  :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This is a proceeding in arbitration upon the petition 
 
            of claimant, Barbara Stout, against her employer, 
 
            McDonald's, and its insurance carrier, American Motorist 
 
            Insurance, defendants.  The case was heard on August 6, 
 
            1991, in Ottumwa, Iowa at the Wapello County Courthouse.  
 
            The record consists of the testimony of claimant.  The 
 
            record also consists of the testimonies of Virginia Snyder, 
 
            former store manager of the Oskaloosa McDonald's.  
 
            Additionally, the record consists of claimant's exhibits 
 
            1-12 and defendants' exhibits A-G.
 
            
 
                                      issues
 
            
 
                 The issues to be determined are:  1) whether claimant 
 
            received an injury which arose out of and in the course of 
 
            employment; 2) whether there is a causal relationship 
 
            between the alleged injury and the disability; 3) whether 
 
            claimant is entitled to temporary disability/healing period 
 
            benefits or permanent disability benefits; and 4) whether 
 
            claimant is entitled to certain medical expenses pursuant to 
 
            section 85.27 of the Iowa Code.
 
            
 
                                 findings of fact
 
            
 
                 The deputy, having heard the testimony and considered 
 
            all the testimony, finds:
 
            
 
                 Claimant is a 38 year old woman who is married and who 
 
            has three children.  In August of 1988, claimant commenced 
 
            her employment with defendant.  She was hired to work in the 
 
            grill area where she was required to place hamburger patties 
 
            on the flat grill surface, flip the patties over with a 
 
            spatula, and place the patties on buns.  Claimant was also 
 
            hired to dump fish fillets and chicken patties into a large 
 
            wire basket, place the basket in hot grease vats, and remove 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            the baskets when the product had properly cooked.
 
            
 
                 Claimant testified she was right handed and that she 
 
            used her right wrist and hand to flip the burgers and to 
 
            cook the deep fry products.  Claimant testified she flipped 
 
            more than 100 burgers per shift.
 
            
 
                 According to claimant's testimony, she first 
 
            experienced difficulties with her right arm on October 22, 
 
            1988, and that as a result of her right arm problems, she 
 
            first missed work due to right arm pain on October 22, 1988.  
 
            On the succeeding day, claimant sought medical treatment at 
 
            the Mahaska County Hospital.  The attending physician 
 
            prescribed medication, a splint and advised claimant to 
 
            elevate her hand.  Claimant was also advised to stay off 
 
            work for one week.
 
            
 
                 Claimant sought treatment from Marc E. Hines, a 
 
            neurologist.  The physician ordered an EMG.  The test 
 
            results indicated claimant had carpal tunnel syndrome and an 
 
            ulnar nerve neuropathy compression syndrome at the elbow.
 
            
 
                 Brad Adams, M.D., recommended a right carpal tunnel 
 
            release, an ulnar nerve release at the right elbow and an 
 
            anterior ulnar nerve transposition.  On November 30, 1988, 
 
            Dr. Adams performed a "[c]arpal tunnel release, volar 
 
            aspect, right wrist. Cubetal [sic] tunnel release, right 
 
            elbow, with anterior ulnar nerve transposition."
 
            
 
                 As of March 17, 1989, Dr. Adams released claimant to 
 
            return to work.  He advised claimant to increase her work 
 
            hours to 40 per week and to refrain from lifting more than 
 
            25 pounds for four weeks duration.  On February 15, 1990, 
 
            Dr. Adams performed a release of the first dorsal 
 
            compartment of the right wrist.
 
            
 
                 Dr. Adams examined claimant on May 3, 1990.  He 
 
            recommended that claimant switch occupations.  In his office 
 
            notes, he wrote:
 
            
 
                 She comes in today for evaluation of her right 
 
                 upper ext.  She was apparently seen by Dr. Hines 
 
                 yesterday, repeating EMG nerve cond. studies - 
 
                 they apparently did show some return of carpal 
 
                 tunnel, cubital tunnel symptoms.  She is also 
 
                 complaining of tendonitis over the dorsum of her 
 
                 right wrist, in tubercle region.
 
             O - PE - No swelling, all wounds completely 
 
            healed, NVI.  We do not have EMG nerve cond. 
 
            studies.
 
            A - Probable tendonitis.
 
            PRocedure:[sic]  After sterile prep, inj. of the 
 
            tubercle area with 1Æ cc. of Xylocaine with 1/4 cc. 
 
            of Depomedrol [sic] and Æ cc. of 0.25% Marcaine.
 
            P - 1) Wrist splint.
 
                2) Ibuprofen.
 
                  3) Basically told the pt. she should consider                
 
            change in vocation.
 
                  4) F-UP with me in 4 wks. for recheck.       
 
            BA/dh
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            
 
            (Exhibit 6, page 2)
 
            
 
                 Dr. Adams again examined claimant on June 4, 1990.  He 
 
            placed claimant on an occupational therapy program for her 
 
            right thumb/wrist and hand.  In a follow-up exam on July 16, 
 
            1990, Dr. Adams noted:
 
            
 
                 Clinically I think she has an overuse syndrome of 
 
                 her extremities.  I think over a period of time 
 
                 she should continue to improve.  I told her to 
 
                 give it four or five months.  She will follow up 
 
                 with me on a prn basis.
 
            
 
            (Ex. 7a)
 
            
 
                 In May of 1990, claimant sought a neurological exam 
 
            from Dr. Hines for her headaches.  As part of the 
 
            examination, Dr. Hines also examined claimant's upper 
 
            extremities.  Dr. Hines, in his report of May 2, 1990 wrote:
 
            
 
                 An EMG was then performed and revealed that the 
 
                 patient had some mild C-6 radiculopathy as well as 
 
                 denervation of the opponents pollicis consistent 
 
                 with continued carpal tunnel syndrome.  There was 
 
                 also some denervation in the distribution at the 
 
                 ulnar nerve below the elbow consistent with a mild 
 
                 ulnar neuropathy; however, this had not been 
 
                 demonstrated on nerve conduction velocities.
 
            
 
                 In conclusion then, we were able to state that the 
 
                 patient had some mild cervical nerve root 
 
                 irritation at least and had some residual carpal 
 
                 tunnel syndrome possibly worsening and some early 
 
                 ulnar neuropathy.  In discussing this with her we 
 
                 found that she does sleep with her arm bent at 
 
                 night and we instructed her to sleep with her arm 
 
                 straight and to followup [sic] with Dr. Adams as 
 
                 soon as possible concerning her carpal tunnel 
 
                 syndrome.  We will go ahead and followup [sic] 
 
                 with her ourselves in July and she will contact us 
 
                 if her headaches are not improved....
 
            
 
            (Ex. 8)
 
            
 
                 Following June of 1990, Dr. Hines only saw claimant for 
 
            her non-work related headaches.  He did not treat claimant 
 
            for her upper extremity problems.
 
            
 
                 Pursuant to defendants' request, claimant was examined 
 
            by John H. Kelly, M.D., on June 27, 1991.  Dr. Kelly opined:
 
            
 
                 Reflexes are equal and reactive.  Pulses are 
 
                 normal.  Vascular tests are negative.  Grip 
 
                 strength is left 20 kg., right 18 kg.  Pinch 
 
                 strength right 5 kg., left 6 kg.  She has a full 
 
                 range of motion in all joints of both upper 
 
                 extremities.  Tinel's sign is negative 
 
                 bilaterally.  Phalen's test is negative 
 
                 bilaterally.  Finkelstein's test is positive on 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
                 the right.  She has some differences in sensory 
 
                 appreciation which are difficult to correlate with 
 
                 the median nerve problem.
 
            
 
                 X-RAYS:             X-rays of the cervical spine 
 
                 are
 
            
 
                                     within normal limits.  X-rays 
 
                 of
 
            
 
                 both wrists are within normal limits.
 
            
 
                 IMPRESSION:         Status postoperative carpal 
 
                 tunnel,
 
            
 
                                     cubital tunnel, and 
 
                 deQuervain's
 
            
 
                 tenosynovitis surgery of right upper extremity.  
 
                 Status
 
            
 
                 carpal tunnel syndrome of the left wrist.
 
            
 
                 DISCUSSION:         She has an 8% permanent 
 
                 partial
 
            
 
                                     impairment of the right upper
 
            
 
                 extremity and a 5% permanent partial impairment of 
 
                 the
 
            
 
                 left upper extremity.
 
            
 
                 KELLEY/smn
 
            
 
            (Ex. 10, pp. 2 & 3)
 
            
 
                 At the hearing claimant testified she had not been 
 
            employed since April of 1990.
 
            
 
                                conclusions of law
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the alleged injury 
 
            actually occurred and that it arose out of and in the course 
 
            of employment.  The words "arising out of" refer to the 
 
            cause or source of the injury.  The words "in the course of" 
 
            refer to the time, place and circumstances of the injury.  
 
            Sheerin v. Holin Co., 380 N.W.2d 415, 417 (Iowa 1986); 
 
            McClure v. Union, et al., Counties, 188 N.W.2d 283, 287 
 
            (Iowa 1971).
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury is a proximate 
 
            cause of the 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, 354 (Iowa 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            1980); Holmes v. Bruce Motor Freight, Inc., 215 N.W.2d 296, 
 
            297 (Iowa 1974).
 
            
 
                 The question of causal connection is essentially within 
 
            the domain of expert testimony.  The expert medical evidence 
 
            must be considered with all other evidence introduced 
 
            bearing on the causal connection between the injury and the 
 
            disability.  The weight to be given to any expert opinion is 
 
            determined by the finder of fact and may be affected by the 
 
            accuracy of the facts relied upon by the expert as well as 
 
            other surrounding circumstances.  The expert opinion may be 
 
            accepted or rejected, in whole or in part.  Sondag v. Ferris 
 
            Hardware, 220 N.W.2d 903 (Iowa 1974); Anderson v. Oscar 
 
            Mayer & Co., 217 N.W.2d 531 (Iowa 1974); Bodish v. Fischer, 
 
            Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).
 
            
 
                 When the disability develops gradually over a period of 
 
            time, the "cumulative injury rule" applies.  For time 
 
            limitation purposes, the compensable injury is held to occur 
 
            when because of pain or physical disability, the claimant 
 
            can no longer work.  McKeever Custom Cabinets v. Smith, 379 
 
            N.W.2d 368 (Iowa 1985).
 
            
 
                 Claimant has proven that she sustained a work related 
 
            injury which arose out of and in the course of her 
 
            employment.  Prior to her employment with 
 
            defendant-employer, claimant had experienced no problems 
 
            with her right upper extremity.  It was only after she had 
 
            begun her job with defendant-employer that she had started 
 
            experiencing numbness in her right hand or arm.  Claimant 
 
            had no prior right upper extremity difficulties.  Claimant's 
 
            job involved repetitive activities which required use of the 
 
            right upper extremity.  Claimant performed the same task of 
 
            flipping burgers with her right hand/arm.  Claimant's right 
 
            upper extremity problems developed over the course of 
 
            several months.  It was not until October 22, 1988, that 
 
            claimant missed work because of the right arm.
 
            
 
                 It is this deputy's determination that claimant's 
 
            injury arose out of and in the course of her employment.  It 
 
            is also this deputy's determination that claimant's right 
 
            upper extremity condition is causally related to claimant's 
 
            work injury of October 22, 1988.  No medical practitioner 
 
            has determined there is a cause other than claimant's 
 
            repetitive work motions.
 
            
 
                 Therefore, in light of the above, claimant is entitled 
 
            to healing period benefits from October 22, 1988 through 
 
            December 23, 1989, January 16, 1989 through February 3, 
 
            1989, and from February 15, 1990 through March 17, 1990.  
 
            These periods encompass 68.286 weeks at the stipulated rate 
 
            of $74.80 per week.
 
            
 
                 Per the stipulation of the parties, claimant is also 
 
            entitled to 20 weeks of permanent partial disability 
 
            benefits at the stipulated rate of $74.80 per week.
 
            
 
                 The final issue to address is whether claimant is 
 
            entitled to certain medical benefits pursuant to section 
 
            85.27.  Under section 85.27 the employer shall furnish 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            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 decision 1975).  Claimant has the 
 
            burden of proving that the fees charged for such services 
 
            are reasonable.  Anderson v. High Rise Constr. Specialists, 
 
            Inc., file number 850096 (Appeal Decision 1990).
 
            
 
                 Claimant is not entitled to reimbursement for medical 
 
            bills unless claimant shows they were paid from claimant's 
 
            funds.  See Caylor v. Employers Mut. Casualty Co., 337 
 
            N.W.2d 890 (Iowa App. 1983).
 
            
 
                 The following expenses are causally related to 
 
            claimant's work injury for which defendants are liable:
 
            Family Medical Clinic:
 
            
 
                      10/26/88                      $    21.00
 
                      11/6/89                            80.00
 
                      11/22/88                          112.00
 
                      11/30-12/10/88                  1,410.00
 
                      12/5-8/89                         102.00
 
                      2/19/90                             5.00
 
                      2/15-3/5/90                       488.00
 
                      3/8-9/90                           82.00
 
                      5/10/90                            42.00              
 
                                                                   
 
            $2,342.00
 
            
 
            
 
            Mahaska County Hospital:
 
            
 
                      10/23/88                      $    97.75
 
                      12/25/88                           78.30
 
                      11/30-12/3/88                   2,933.75
 
                      2/8/90                             40.00
 
                      2/8-2/15/90                     1,245.56
 
                      2/15/90                         1,205.60
 
                      5/2/90                             83.20
 
                      6/18-23/90 [sic]                  229.00              
 
                                                                   
 
            $6,224.76
 
            
 
            
 
            Central Iowa Orthopaedics:
 
            
 
                      6/4/90                        $    46.00
 
                      8/28/90                           145.00
 
                      7/26/90                            10.00              
 
                                                                   $  
 
            201.00
 
            
 
            
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            Mahaska Anesthesia Service:
 
            
 
                      2/15/90                       $    227.50             
 
                                                                   $  
 
            227.50
 
            
 
            
 
                                      order
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 Defendants are to pay unto claimant sixty-eight point 
 
            two-eight-six (68.286) weeks of healing period benefits at 
 
            the stipulated rate of seventy-four and 80/l00 dollars 
 
            ($74.80) per week.
 
            
 
                 Defendants are to pay unto claimant twenty (20) weeks 
 
            of permanent partial disability benefits at the stipulated 
 
            rate of seventy-four and 80/l00 dollars ($74.80) per week 
 
            and commencing on June 27, 1991.
 
            
 
                 Accrued benefits are to be paid in a lump sum together 
 
            with statutory interest at the rate of ten percent (10%) per 
 
            year pursuant to section 85.30, Iowa Code, as amended.
 
            
 
                 Defendants are also liable for the aforementioned 
 
            medical expenses pursuant to section 85.27.
 
            
 
                 Costs are taxed to defendants pursuant to rule 343 IAC 
 
            4.33, including:
 
            
 
                 8/31/90     Central Iowa Orthopaedics fee          
 
            145.00
 
            
 
                 9/5/90      Industrial Commissioner filing fee      
 
            65.00
 
            
 
                 9/5/90      Certified Mail for Petition              
 
            4.00
 
            
 
                                                TOTAL ...........  
 
            $214.00
 
            
 
                 Defendants shall file a claim activity report as 
 
            requested by this division pursuant to rule 343 IAC 3.1.
 
            
 
            
 
            
 
                 Signed and filed this ____ day of November, 1991.
 
            
 
            
 
            
 
            
 
            
 
                                          ______________________________               
 
            MICHELLE A. McGOVERN
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            Mr. Lance A. Grotewold
 
            Attorney at Law
 
            118 N Market St
 
            Oskaloosa  IA  52577
 
            
 
            Mr. Paul C. Thune
 
            Mr. Thomas J. McCann
 
            Attorneys at Law
 
            218 6th Ave  STE 300
 
            P O Box 9130
 
            Des Moines  IA  50306
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                           2209
 
                           Filed November 13, 1991
 
                           MICHELLE A. McGOVERN
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            BARBARA STOUT,                :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :         File No. 946083
 
            McDONALD'S,                   :
 
                                          :      A R B I T R A T I O N
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            AMERICAN MOTORIST INSURANCE,  :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
            
 
            2209
 
            Claimant sustained a cumulative type injury to the right 
 
            upper extremity after she engaged in repetitive type 
 
            activities at work.  Claimant was required to engage in 
 
            repetitive movements when she flipped burgers on a grill.  
 
            Claimant was awarded healing period and permanent partial 
 
            disability benefits.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
            _____
 
                                            :
 
            DANIEL J. JONES,                :
 
                                            :
 
                 Claimant,                  :       File No. 946085
 
                                            :
 
            vs.                             :          A P P E A L
 
                                            :
 
            HOLIDAY INN,                    :        D E C I S I O N
 
                                            :
 
                 Employer,                  :
 
                 Self-Insured,              :
 
                 Defendant.                 :
 
            ____________________________________________________________
 
            _____
 
            
 
            The record, including the transcript of the hearing before 
 
            the deputy and all exhibits admitted into the record, has 
 
            been reviewed de novo on appeal.
 
            issues
 
            Those portions of the proposed agency decision pertaining to 
 
            issues not raised on appeal are adopted as a part of this 
 
            appeal decision.  Defendant states the following issue on 
 
            appeal:  "whether or not the Claimant sustained an injury on 
 
            May 21, 1990, which arose out of and in the course of 
 
            employment with the Employer."
 
            Claimant states the following issues on cross-appeal:
 
            
 
                 1. Whether the Deputy Industrial Commissioner 
 
                 erred in determining that Claimant is not entitled 
 
                 to penalty benefits under Iowa Code Section 
 
                 86.13(4).
 
            
 
                 2. Whether the Deputy Industrial Commissioner 
 
                 erred in limiting temporary total disability 
 
                 benefits to 6.571 weeks.
 
            
 
                 3. Whether the Deputy Industrial Commissioner 
 
                 erred in determining that Claimant would remain 
 
                 liable for certain medical benefits.
 
            findings of fact
 
            The findings of fact contained in the proposed agency 
 
            decision filed May 28, 1992 are adopted as set forth below.  
 
            Segments designated by asterisks (*****) indicate portions 
 
            of the
 
            
 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            language from the proposed agency decision that have been 
 
            intentionally deleted and do not form a part of this final 
 
            agency decision.  Segments designated by brackets ([ ]) 
 
            indicate language that is in addition to the language of the 
 
            proposed agency decision.
 
            *****
 
            
 
                 [Claimant performed maintenance work for defendant 
 
            hotel.]  On Sunday, May 20, 1990, claimant called in sick 
 
            and missed that one day of work.  Claimant and his mother, 
 
            Shirley Jones, testified that claimant and his whole family 
 
            were sick that day with flu-like symptoms.  Employer, 
 
            through the testimony of Patrick Gibson and Jim Kramer, 
 
            contended that claimant missed work on Sunday because he was 
 
            drunk on Saturday night.  Gibson and Kramer testified that 
 
            on Saturday, May 19, 1990, all three of them went over to 
 
            East Dubuque after 11 p.m. and consumed alcoholic beverages 
 
            in various bars until 3 a.m. on Sunday, May 20, 1990.  Both 
 
            Gibson and Kramer testified that claimant was intoxicated in 
 
            some degree.  Claimant denied being in East Dubuque; 
 
            drinking with Gibson and Kramer on Saturday, May 19, 1990, 
 
            and Sunday, May 20, 1990; or that he was intoxicated.  
 
            *****
 
            
 
                 Claimant started to work for employer on April 27, 
 
            1989, in the maintenance department taking care of 
 
            buildings.  Although his normal shift was from 2:30 p.m. 
 
            until 11 p.m., he was notified on Sunday, May 20, 1990, that 
 
            he was ordered to report to work at 7 a.m. on Monday, May 
 
            21, 1990.  Ninneman testified that he told claimant that he 
 
            was changing him to a different shift because, "...I wanted 
 
            him with me, that I'm going to have to schedule someone else 
 
            in place of him if I can't have him be dependable to come in 
 
            to work."  (Transcript, page 118)  Claimant testified (tr., 
 
            p. 23) and Ninneman admitted (tr., p. 119) that claimant's 
 
            hours were cut from 40 hours per week to 20 hours per week 
 
            on Monday morning, May 21, 1990.  Claimant testified that he 
 
            was told that it was necessary to cut the budget, but Mary 
 
            Salinas, the motel manager, testified that the motel did not 
 
            have any financial problems and indicated it was not 
 
            necessary to cut the budget.  Ninneman testified that he 
 
            just didn't need a person with him that much (tr., p. 119).  
 
            
 
                 Claimant testified that on Monday, May 21, 1990, he 
 
            asked for some time off because his brother was coming home 
 
            from the navy.  Both Ninneman and Salinas denied his 
 
            request, and they both allege that claimant told them that 
 
            he would get the time off one way or another.  A short time 
 
            later it was reported that
 
            
 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            claimant fell off a ladder and was injured.  Both Ninneman 
 
            and Salinas were suspicious and they contend that claimant 
 
            feigned the fall in order to obtain time off work.  
 
            *****
 
            
 
                 Claimant testified that he was standing about half way 
 
            up on a six-foot stepladder scraping paint off the bottom of 
 
            an overhang of a second floor walkway.  He testified that 
 
            the sidewalk was cracked and the outer portion of it slanted 
 
            downhill slightly toward the parking lot.  Two of the 
 
            photographs of the accident scene verify that a segment of 
 
            the concrete does slant downhill slightly immediately 
 
            adjacent to the blacktop parking area; and the photographs 
 
            show that the seams around the concrete squares were open in 
 
            what resembles a crack (exhibits J & K).  Claimant testified 
 
            that the stepladder was old and rickety, whereas Ninneman 
 
            testified that it was useable and was still in use.  
 
            
 
                 Claimant testified that as he was scraping, the ladder 
 
            twisted and his right shoulder just twisted around and he 
 
            fell off the ladder and it landed on top of him away from 
 
            the building out in the parking lot.  He stated that he 
 
            landed on his hand and his elbow.  He remembered that Karen 
 
            Spechtenhauser, a housekeeper, was four rooms down from 
 
            where he was scraping.  She came running out to help him, 
 
            but she told him to lie there and she would get help (tr., 
 
            pp. 25-29).  
 
            
 
                 Spechtenhauser testified that she did not hear any 
 
            noise at the time of the fall nor did claimant cry out 
 
            loudly, but she did hear claimant calling her name very 
 
            softly.  She looked out and saw claimant on the parking area 
 
            beside with the ladder laying on its side in a V position 
 
            some distance from the sidewalk.  Claimant asked her to help 
 
            him up.  She asked him if he was hurt.  Claimant responded 
 
            that he had hurt his neck.  She told him to stay there and 
 
            she would get some help (tr., pp. 142-145).  Spechtenhauser 
 
            called the front desk and told them that Dan had fallen and 
 
            she needed help (tr., p. 147).
 
            
 
                 Ninneman and Salinas also came to the scene of the 
 
            accident and found claimant lying on his back on the 
 
            blacktop parking area.  Neither Spechtenhauser, Ninneman nor 
 
            Salinas saw any physical signs of injury on claimant's body 
 
            nor did they find his clothing dirty or soiled.  Claimant 
 
            testified that they kept the parking lot vacuumed (tr., p. 
 
            61).  From the photographs a person could determine either 
 
            that his clothing would be soiled or his clothing would not 
 
            be soiled (exs. F and K).
 
            
 
                 Claimant estimated he landed eight feet from the 
 
            sidewalk (tr., p. 123).  Ninneman said he measured it at 
 
            eighteen feet (ex. N).  Ninneman previously had a different 
 
            opinion of what the distance might have been however (tr., 
 
            pp. 125-126).  Salinas testified that the ladder was three 
 
            or four feet away from the sidewalk (tr., p. 154).  
 
            Therefore, the distance of the ladder and claimant from the 
 
            sidewalk is inconclusive.
 
            
 
                 An ambulance was called, claimant's neck was placed in 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            a harness or collar, his body was placed on a board, and he 
 
            was transported to Finley Hospital (tr., p. 30).
 
            
 
                 Claimant's mother testified that she was bringing his 
 
            lunch to work when Spechtenhauser told her that her son had 
 
            been injured by falling off the ladder and he was being 
 
            placed in an ambulance at that time (tr., p. 73).
 
            
 
                 The ambulance call record reported that claimant was on 
 
            a step approximately six feet above the ground when the 
 
            ladder slipped and he fell to the ground.  Claimant related 
 
            that he hit his head when he landed.  He reported pain in 
 
            the neck area, clavicle area and rib area at T-8 on the left 
 
            side.  Claimant told the paramedics he struck his head on 
 
            the ground, but they noted that there was no deformity from 
 
            it.  The paramedics also noted that claimant complained of 
 
            pain in both elbows upon movement, but they noted that no 
 
            deformity or injury was observed.  They recorded that 
 
            claimant denied pain in the lower extremities.  The 
 
            paramedics indicated the chief complaint was head and neck 
 
            pain (ex. 3, pp. 1-2; ex. M, section B, pp. 5 & 7).  
 
            
 
                 The Finley Hospital emergency room record reflects that 
 
            claimant fell approximately six to eight feet from a ladder.  
 
            He was complaining of neck, right elbow and left rib pain.  
 
            He was unsure of how he landed but states he knows he hit 
 
            his head.  That record reflects that no obvious deformities 
 
            were noted.  The chief complaints were "neck/shoulders" (ex. 
 
            1; ex. M, sec. B8, p. 1).  
 
            
 
                 Claimant was seen at the Finley Hospital emergency room 
 
            by A. McDermott, M.D., who noted that the patient complained 
 
            of neck, right elbow and left rib pain.  Dr. McDermott 
 
            wrote, "He did bump his head...."   He recorded his 
 
            diagnosis as, "Acute strain of the neck muscles.  Contusion 
 
            of the right elbow and contusion of the left rib cage."  
 
            (Ex. 2; ex. M, sec. B8, p. 2).
 
            
 
                 X-rays of the chest and left ribs, right elbow and 
 
            cervical spine were all negative (ex. M, sec. B8, pp. 3-4).  
 
            Dr. McDermott released claimant in apparently satisfactory 
 
            condition (ex. 1; ex. M, sec B8, p. 2); nevertheless, he 
 
            took claimant off work until May 24, 1990 (ex. M, sec. B8, 
 
            p. 6).
 
            
 
                 Claimant's personal physician, Mark Liaboe, M.D., shows 
 
            an entry for May 21, 1990, which should be May 22, 1990, 
 
            because he states claimant fell off a ladder yesterday and 
 
            landed on his back and the back of his neck on a parking 
 
            lot.  Claimant continued to have complaints in the cervical 
 
            region and posterior head which were aggravated by movement.  
 
            Claimant also complained that he was nauseated and vomited 
 
            last night and today.  Dr. Liaboe recorded tenderness over 
 
            the occiput and tenderness and reluctance to move the neck.  
 
            The paracervical and trapezius muscles were tender 
 
            bilaterally.  Dr. Liaboe concluded, "This likely represents 
 
            cervical muscular strain and closed cranial trauma."  (Ex. 
 
            16, p. 2; ex. M, sec. A, p. 7).
 
            
 
                 On May 25, 1990, when claimant continued to have 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            persistent headache and nausea, but had not been vomiting, 
 
            Dr. Liaboe ordered a CT scan of the head which turned out 
 
            negative for fracture or blood.  He still had tender 
 
            paracervical and trapezius muscles.  Dr. Liaboe concluded, 
 
            "This represents a post traumatic headache syndrome."  (Ex. 
 
            16, p. 2; ex. M, sec. A, p. 7).  Dr. Liaboe added that 
 
            claimant remained disabled as of May 25, 1990.
 
            
 
                 The doctor's office notes next reflect that on May 31, 
 
            1990, claimant's mother called that he was very ill, weak, 
 
            was complaining of severe headaches, was vomiting, had a 
 
            swollen hand, was in a lot of pain, and was sick all over.  
 
            Claimant's mother was instructed to take him to Finley 
 
            Hospital where he was admitted on May 31, 1990, through the 
 
            emergency room where it was recorded that he had vomited 15 
 
            times since the fall off the ladder, weakness, low back 
 
            pain, neck pain, and right hand pain (ex. 6; ex. M, sec. B, 
 
            p. 20).
 
            
 
                 The emergency room physician, T. Gifford, M.D., said 
 
            claimant fell six feet from a ladder on May 21, 1990, and 
 
            that both his accident injuries and his diabetes mellitus 
 
            had progressed while he was attempting to recuperate at 
 
            home.  He diagnosed (1) diabetic ketoacidosis and (2) 
 
            head/neck/back pain etiology undetermined.  Dr. Gifford did 
 
            note that the neck was markedly resistant to flexion because 
 
            of pain in the back of the neck and head (ex. 7, pp. 1-2; 
 
            ex. M, sec. B10, pp. 22-23).
 
            
 
                 J.P. Viner, M.D., performed an admitting examination 
 
            and determined that claimant was suffering from diabetic 
 
            ketoacidosis and neck stiffness.  Dr. Viner noted that 
 
            claimant fell from a ladder at work ten days ago as the 
 
            origin of this episode.  He stated that even though claimant 
 
            had juvenile onset of diabetes mellitus, insulin requiring, 
 
            three years ago, he had been well maintained on NPH 25 units 
 
            every morning and that he had never suffered diabetic 
 
            ketoacidosis before.  A cerebral spinal fluid (CFS) tap was 
 
            negative for posttraumatic meningitis (ex. 9, pp. 1-2; ex. 
 
            M, B10, pp. 6-7).  
 
            
 
     
 
            
 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            Claimant was also examined on May 31, 1990, by Patrick 
 
            Sterett, M.D., a neurologist, who stated that claimant was 
 
            admitted with severe occipital headaches and posterior 
 
            cervical neck pain after a fall of about six feet from a 
 
            ladder earlier that month.  His examination demonstrated 
 
            tenderness of the occipital scalp and temporal regions 
 
            bilaterally.  Dr. Sterett's first assessment was:
 
            
 
                 Post concussion syndrome.  He is complaining of 
 
                 some dizziness and headaches now since the fall on 
 
                 the 21st of May.  The headaches that he has at 
 
                 present are probably post concussion headaches, 
 
                 but some are probably contributed through 
 
                 ligamentous and paraspinal cervical muscular 
 
                 injury (sprain).
 
            
 
            (Exhibit 10, page 2; exhibit M, section B10, page 9)
 
            
 
                 X-rays of the lumbosacral spine, cervical spine and 
 
            thoracic spine on June 1, 1990, were all normal.  An x-ray 
 
            of the right hand on June 1, 1990, showed a comminuted, 
 
            slightly angulated fracture of the neck of the fifth 
 
            metacarpal which was described as a boxer's fracture of the 
 
            neck of the fifth metacarpal (ex. 11; ex. M, sec. B10, pp. 
 
            15-16).  An MRI of the head on June 2, 1990, was normal (ex. 
 
            M, B10, p. 18).  A CT scan of the lumbosacral spine on June 
 
            5, 1990, showed a congenital spinal stenosis of the lower 
 
            lumbar spine and symmetric annular bulge of the L5-S1 disc 
 
            with narrowing of the AP dimension of the canal (ex. 12).
 
            
 
                 The discharge diagnosis was prepared by J.S. Chapman, 
 
            M.D., who noted that the intravenous dexamethasone and other 
 
            symptomatic interventions administered by Dr. Sterett had an 
 
            understandable worsening effect temporarily on claimant's 
 
            diabetes.  Dr. Chapman concluded, "This appears to be a 
 
            post-concussion syndrome." (ex. 15, p. 2; ex. M, B10, p. 3).  
 
            Dr. Chapman also stated that claimant had a cervical spine 
 
            sprain, right ulnar nerve injury, fracture of the distal 
 
            fifth metacarpal, congenital stenosis of the lumbar spine, 
 
            congenital bilateral hearing loss and insulin-requiring 
 
            diabetes.  Dr. Chapman recommended that claimant contact 
 
            vocational rehabilitation with regard to training for 
 
            something more compatible with his health problems (ex. 15, 
 
            p. 2; ex. M, B10, pp, 1-3).  
 
            
 
                 Dr. Chapman wrote a letter to the insurance carrier on 
 
            June 15, 1990, which stated claimant fell off the stepladder 
 
            on May 21, 1990, and injured his neck, back, and fractured 
 
            the fifth metacarpal on his right hand (ex. 17; ex. M, sec. 
 
            A, p. 27).
 
            *****
 
            
 
                 Shirley Jones, claimant's mother, testified that she 
 
            and her husband, claimant's father, kept a constant vigil 
 
            over claimant as they were instructed to do by the doctors 
 
            to make sure that he would awake on voice command because of 
 
            the suspected head concussion.  Jones testified that 
 
            claimant became progressively worse because he ate very 
 
            little and what he did eat, he threw up.  The doctor 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            eventually directed her to bring him to the hospital on May 
 
            31, 1990 (tr., pp. 76-77).  She said he was not covering his 
 
            insulin, which means he was not receiving 3200 calories from 
 
            food to cover the amount of insulin he was taking.  Orange 
 
            juice was the only food which he could keep down.  Every 
 
            time he took solid food, he threw it back up (tr., p. 77).  
 
            When he arrived at the hospital, it was found that his blood 
 
            sugar was way out of proportion and they injected him with 
 
            whole insulin (tr., p. 78).  Likewise, his hand was swollen 
 
            (tr., p. 78).  His elbow was injured and he was unable to 
 
            straighten his arm out (tr., p. 79).  Mrs. Jones added that 
 
            claimant has had trouble with his hands ever since he was a 
 
            child with what doctors described as boxer type of injuries 
 
            which were due to fragile bones because he never drank milk 
 
            until he had diabetes which left his body calcium deprived 
 
            (tr., p. 81).
 
            
 
                 The deputy saw and heard the witnesses, claimant and 
 
            his mother, and it is determined that their testimony on 
 
            these points is credible.
 
            
 
                 Dr. Gifford, on May 31, 1990, began with the history of 
 
            claimant's fall from the ladder and traced how claimant's 
 
            condition had become progressively worse both with respect 
 
            to the traumatic injuries and the nausea and vomiting (ex. 
 
            7; ex. M, B10, p. 22).  
 
            
 
                 Dr. Viner, on May 31, 1990, stated that although 
 
            claimant had juvenile onset diabetes mellitus, insulin 
 
            requiring, three years ago, he had never before experienced 
 
            diabetic ketoacidosis (ex. 9; ex. M, B10, p. 6).
 
            
 
                 Dr. Chapman stated that the intravenous dexamethasone 
 
            and other symptomatic interventions administered by Dr. 
 
            Sterett temporarily worsened claimant's diabetes while in 
 
            the hospital after May 31, 1990 (ex. 15; ex. M, B10, p. 2).  
 
            conclusions of law
 
            The conclusions of law contained in the proposed agency 
 
            decision filed May 28, 1992 are adopted as set forth below.  
 
            Segments designated by asterisks (*****) indicate portions 
 
            of the language from the proposed agency decision that have 
 
            been
 
            
 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            intentionally deleted and do not form a part of this final 
 
            agency decision.  Segments designated by brackets ([ ]) 
 
            indicate language that is in addition to the language of the 
 
            proposed agency decision.
 
            
 
                 *****
 
            
 
                 The question of causal connection is essentially within 
 
            the domain of expert testimony.  Bradshaw v. Iowa Methodist 
 
            Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960).
 
            
 
                 However, expert medical evidence must be considered 
 
            with all other evidence bearing on the causal connection.  
 
            Burt v. John Deere Waterloo Tractor Works, 247 Iowa 691, 73 
 
            N.W.2d 732 (1955).
 
            *****
 
            
 
                 Claimant did not prove that he sustained a back injury 
 
            from this fall.  He did not indicate that he had any back 
 
            pains to any of the persons who came to the scene of the 
 
            accident.  He did not mention back pains or lower extremity 
 
            difficulties to the paramedics, but on the contrary, they 
 
            indicated his lumbosacral spine and lower extremities had no 
 
            problems.  Claimant voiced no complaints about his back to 
 
            Dr. McDermott in the emergency room.  Claimant did not 
 
            complain about any back symptoms to Dr. Liaboe.  Claimant 
 
            has had back problems in the past when he fell 14 feet from 
 
            a ladder while working for another employer.   Dr. Chapman 
 
            found that the lumbar spinal stenosis was congenital.
 
            
 
                 Wherefore, it is determined that claimant did not 
 
            sustain an injury from the fall from the ladder on May 21, 
 
            1990, to his back or lumbosacral spine which arose out of 
 
            and in the course of employment with employer.  
 
            *****
 
            [The initial question is whether claimant has suffered an 
 
            injury arising out of and in the course of his employment. 
 
            It is important to note that claimant requested time off 
 
            because his brother was returning from the Navy.  Claimant's 
 
            request was denied.  Claimant then stated that he would 
 
            obtain the time off one way or another.  Fifteen minutes 
 
            later, claimant's alleged injury occurred.  
 
            Claimant alleges he fell off a ladder.  However, a 
 
            housekeeper working only a short distance from the site of 
 
            the alleged accident failed to hear any noise from the 
 
            accident, even though claimant alleges both he and a ladder 
 
            fell to the pavement.  The housekeeper did hear claimant 
 
            calling to her in a quiet voice, however.  
 
            When found, claimant had no soil on his clothing or other 
 
            indication he had fallen to the ground.  Claimant had no 
 
            blood or abrasions.  There were no witnesses to the alleged 
 
            injury.  The physical evidence presented as to the surface 
 
            the ladder was standing on, the incline, etc., are 
 
            inconsistent with claimant's version of the event.  
 
            In short, there was no witness or evidentiary corroboration 
 
            of claimant's alleged injury.  There was considerable 
 
            evidence tending to show the injury did not occur.  The only 
 
            possibly corroborating factor was that claimant's hand did 
 
            exhibit some swelling after the alleged injury.  However, 
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            there is competent evidence in the record establishing that 
 
            this swelling could as easily have been caused by a 
 
            fistfight claimant was in prior to the date of the alleged 
 
            injury.  Two witnesses testified that claimant was out 
 
            drinking the weekend before the alleged work injury, but 
 
            claimant and his mother testified to the contrary.  The 
 
            witnesses have no incentive to fabricate their testimony.  
 
            Although the fistfight claimant was involved in was not the 
 
            weekend before his alleged injury, it was stated to be 
 
            within the several days preceding the alleged injury date.  
 
            Taken as a whole, claimant is found not to be credible.  
 
            Although it is conceivable that claimant might suffer an 
 
            injury within fifteen minutes of his statement that he would 
 
            find some way to obtain time off, it is far more likely that 
 
            claimant fabricated the injury to obtain the time off.  This 
 
            conclusion is supported by the failure of the housekeeper to 
 
            hear the fall, even though she could hear claimant calling 
 
            to her in a quiet voice; by the absence of tearing or 
 
            soiling of claimant's clothing; and by the absence of cuts, 
 
            scrapes, blood or abrasions on claimant's body.  
 
            The greater weight of the evidence indicates that claimant 
 
            did not suffer a work-related injury.  Claimant has failed 
 
            to carry his burden of proof.]
 
            WHEREFORE, the decision of the deputy is reversed.
 
            order
 
            THEREFORE, it is ordered:
 
            That claimant take nothing from these proceedings.
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
            That claimant shall pay the costs of this matter including 
 
            the transcription of the hearing.  
 
            Signed and filed this ____ day of December, 1992.
 
            
 
            
 
            
 
            
 
                      ________________________________
 
                               BYRON K. ORTON
 
                          INDUSTRIAL COMMISSIONER
 
            
 
            Copies to:
 
            
 
            Mr. Steven G. Klesner
 
            Mr. James Heckmann
 
            Attorneys at Law
 
            One CyCare Center, STE 216
 
            Dubuque, Iowa  52001
 
            
 
            Mr. Jay P. Roberts
 
            Attorney at Law
 
            620 Lafayette St
 
            PO Box 178
 
            Waterloo, Iowa  50704
 
            
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                          1402.20; 2902
 
            Filed December 31, 1992
 
            Byron K. Orton
 
            WRM
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
            _____
 
                                            :
 
            DANIEL J. JONES,                :
 
                                            :
 
                 Claimant,                  :       File No. 946085
 
                                            :
 
            vs.                             :          A P P E A L
 
                                            :
 
            HOLIDAY INN,                    :        D E C I S I O N
 
                                            :
 
                 Employer,                  :
 
                 Self-Insured,              :
 
                 Defendant.                 :
 
            ____________________________________________________________
 
            _____
 
            
 
            1402.20 - 2902
 
            Claimant asked for time off work, but was denied.  Claimant 
 
            then announced he would get the time off work "one way or 
 
            another."  Fifteen minutes later, Claimant allegedly fell 
 
            off a ladder.  A housekeeper in a nearby hotel room failed 
 
            to hear the fall, but did hear claimant calling to her 
 
            softly.  Claimant had no external evidence of injury when 
 
            ambulance arrived.  X-rays showed some injury to claimant's 
 
            hand, but evidence showed claimant had been in a bar fight 
 
            within the several days leading up to the alleged injury.  
 
            Held that taken as a whole, claimant was not credible and 
 
            had failed to prove a work injury.  Deputy reversed.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            DANIEL J JONES,               :
 
                                          :
 
                 Claimant,                :      File No. 946085
 
                                          :
 
            vs.                           :
 
                                          :  A R B I T R A T I O N
 
            HOLIDAY INN,                  :
 
                                          :      D E C I S I O N
 
                 Employer,                :    
 
                 Self-Insured,            :      
 
                 Defendant.               :
 
            ___________________________________________________________
 
            
 
                                   introduction
 
            
 
                 This is a proceeding in arbitration brought by Daniel 
 
            J. Jones, claimant, against Holiday Inn, self-insured 
 
            employer, defendant, for benefits as the result of an 
 
            alleged injury which occurred on May 21, 1990.  A hearing 
 
            was held in Dubuque, Iowa, on April 6, 1992, and the case 
 
            was fully submitted at the close of the hearing.  Claimant 
 
            was represented by James M. Heckmann and Steven G. Klesner.  
 
            Defendants were represented by Jay P. Roberts.  The record 
 
            consists of the testimony of Daniel J. Jones, claimant; Joe 
 
            Hickson, former coemployee; Shirley Jones, claimant's 
 
            mother; Patrick Gibson, coemployee at the time of the 
 
            injury; Jim Kramer, coemployee at the time of the injury; 
 
            Dennis Ninneman, maintenance supervisor; Karen 
 
            Spechtenhauser, assistant executive housekeeper; Mary 
 
            Salinas, general manager; claimant's exhibits 1 through 19; 
 
            and defendant's exhibits E through K, M and N.  Claimant's 
 
            attorneys submitted a brief description of disputes at the 
 
            time of the hearing.  The deputy ordered a transcript of the 
 
            hearing.  Both attorneys submitted excellent posthearing 
 
            briefs.  The determination of the issues in this case was 
 
            complicated by the fact that the parties did not prepare a 
 
            joint exhibit and therefore, many of the exhibits were 
 
            duplicated and each exhibit had to be examined to insure 
 
            that the information was the same on both exhibits.
 
            
 
                                      issues
 
            
 
                 The parties submitted the following issues for 
 
            determination:
 
            
 
                 Whether claimant sustained an injury on May 21, 1990, 
 
            which arose out of and in the course of employment with 
 
            employer;
 
            
 
                 Whether the injury was the cause of temporary or 
 
            permanent disability;
 
            
 
                 Whether claimant is entitled to temporary or permanent 
 
            disability benefits, and if so, the nature and extent of 
 
            benefits to which he is entitled;
 
            
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
                 Whether claimant is entitled to medical benefits;
 
            
 
                 Whether claimant is entitled to penalty benefits under 
 
            Iowa Code section 86.13(4); and
 
            
 
                 Whether the claimant's attorney's lien should extend to 
 
            medical benefits.
 
            
 
                                 findings of fact
 
            
 
                                      injury
 
            
 
                 It is determined that claimant sustained an injury to 
 
            his head, neck, right elbow, and left rib cage on May 21, 
 
            1990, which arose out of and in the course of employment 
 
            with employer.
 
            
 
                 It is determined that the fall of May 21, 1990, was not 
 
            the cause of an injury to claimant's lumbosacral spine.
 
            
 
                 It is further determined that the injury of May 21, 
 
            1990, was the cause of injury to claimant's right hand but 
 
            not the angulation fracture of the fifth metacarpal.
 
            
 
                 It is further determined that the injury of May 21, 
 
            1990, did temporarily aggravate, accelerate, exacerbate, and 
 
            light up claimant's juvenile onset diabetes mellitus II 
 
            which had been diagnosed in 1987 which had been regulated by 
 
            insulin at the time of the injury.
 
            
 
                 Claimant started to work for employer on April 27, 
 
            1989.
 
            
 
                 Shortly, before this injury occurred, there was a 
 
            conflict between claimant, a maintenance employee, and 
 
            Dennis Ninneman, maintenance supervisor, and Mary Salinas, 
 
            motel manager.  This conflict persisted until the date of 
 
            the hearing and was manifested in the testimony of these 
 
            parties.  
 
            
 
                 On Sunday, May 20, 1990, claimant called in sick and 
 
            missed that one day of work.  Claimant and his mother, 
 
            Shirley Jones, testified that claimant and his whole family 
 
            were sick that day with flu-like symptoms.  Employer, 
 
            through the testimony of Patrick Gibson and Jim Kramer, 
 
            contended that claimant missed work on Sunday because he was 
 
            drunk on Saturday night.  Gibson and Kramer testified that 
 
            on Saturday, May 19, 1990, all three of them went over to 
 
            East Dubuque after 11 p.m. and consumed alcoholic beverages 
 
            in various bars until 3 a.m. on Sunday, May 20, 1990.  Both 
 
            Gibson and Kramer testified that claimant was intoxicated in 
 
            some degree.  Claimant denied being in East Dubuque; 
 
            drinking with Gibson and Kramer on Saturday, May 19, 1990, 
 
            and Sunday, May 20, 1990; or that he was intoxicated.  
 
            
 
                 It is not necessary to resolve this conflict of 
 
            testimony in order to decide the hearing issues in this 
 
            case.
 
            
 
                 Claimant started to work for employer on April 27, 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            1989, in the maintenance department taking care of 
 
            buildings.  Although his normal shift was from 2:30 p.m. 
 
            until 11 p.m., he was notified on Sunday, May 20, 1990, that 
 
            he was ordered to report to work at 7 a.m. on Monday, May 
 
            21, 1990.  Ninneman testified that he told claimant that he 
 
            was changing him to a different shift because, "...I wanted 
 
            him with me, that I'm going to have to schedule someone else 
 
            in place of him if I can't have him be dependable to come in 
 
            to work."  (transcript page 118).  Claimant testified (tr. 
 
            p. 23) and Ninneman admitted (tr. p. 119) that claimant's 
 
            hours were cut from 40 hours per week to 20 hours per week 
 
            on Monday morning, May 21, 1990.  Claimant testified that he 
 
            was told that it was necessary to cut the budget, but Mary 
 
            Salinas, the motel manager, testified that the motel did not 
 
            have any financial problems and indicated it was not 
 
            necessary to cut the budget.  Ninneman testified that he 
 
            just didn't need a person with him that much (tr. p. 119).  
 
            Thus, the real reason that claimant's shift was changed from 
 
            evenings to days and why his hours were cut from 40 to 20 
 
            was not reliably explained.
 
            
 
                 Claimant testified that on Monday, May 21, 1990, he 
 
            asked for some time off because his brother was coming home 
 
            from the navy.  Both Ninneman and Salinas denied his 
 
            request, and they both allege that claimant told them that 
 
            he would get the time off one way or another.  A short time 
 
            later it was reported that claimant fell off a ladder and 
 
            was injured.  Both Ninneman and Salinas were suspicious and 
 
            they contend that claimant feigned the fall in order to 
 
            obtain time off work.  
 
            
 
                 The evidence used to determine the issue of injury in 
 
            this case is as follows:
 
            
 
                 Claimant testified that he was standing about half way 
 
            up on a six-foot stepladder scraping paint off the bottom of 
 
            an overhang of a second floor walkway.  He testified that 
 
            the sidewalk was cracked and the outer portion of it slanted 
 
            downhill slightly toward the parking lot.  Two of the 
 
            photographs of the accident scene verify that a segment of 
 
            the concrete does slant downhill slightly immediately 
 
            adjacent to the blacktop parking area; and the photographs 
 
            show that the seams around the concrete squares were open in 
 
            what resembles a crack (exhibits J & K).  Claimant testified 
 
            that the stepladder was old and rickety, whereas Ninneman 
 
            testified that it was useable and was still in use.  
 
            
 
                 Claimant testified that as he was scraping, the ladder 
 
            twisted and his right shoulder just twisted around and he 
 
            fell off the ladder and it landed on top of him away from 
 
            the building out in the parking lot.  He stated that he 
 
            landed on his hand and his elbow.  He remembered that Karen 
 
            Spechtenhauser, a housekeeper, was four rooms down from 
 
            where he was scraping.  She came running out to help him, 
 
            but she told him to lie there and she would get help (tr. 
 
            pp. 25-29).  
 
            
 
                 Spechtenhauser testified that she did not hear any 
 
            noise at the time of the fall nor did claimant cry out 
 
            loudly, but she did hear claimant calling her name very 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            softly.  She looked out and saw claimant on the parking area 
 
            beside with the ladder laying on its side in a V position 
 
            some distance from the sidewalk.  Claimant asked her to help 
 
            him up.  She asked him if he was hurt.  Claimant responded 
 
            that he had hurt his neck.  She told him to stay there and 
 
            she would get some help (tr. pp. 142-145).  Spechtenhauser 
 
            called the front desk and told them that Dan had fallen and 
 
            she needed help (tr. p. 147).
 
            
 
                 Ninneman and Salinas also came to the scene of the 
 
            accident and found claimant lying on his back on the 
 
            blacktop parking area.  Neither Spechtenhauser, Ninneman nor 
 
            Salinas saw any physical signs of injury on claimant's body 
 
            nor did they find his clothing dirty or soiled.  Claimant 
 
            testified that they kept the parking lot vacuumed (tr. p. 
 
            61).  From the photographs a person could determine either 
 
            that his clothing would be soiled or his clothing would not 
 
            be soiled (exs. F and K).
 
            
 
                 Claimant estimated he landed eight feet from the 
 
            sidewalk (tr. p. 123).  Ninneman said he measured it at 
 
            eighteen feet (ex. N).  Ninneman previously had a different 
 
            opinion of what the distance might have been however (tr. 
 
            pp. 125-126).  Salinas testified that the ladder was three 
 
            or four feet away from the sidewalk (tr. p. 154).  
 
            Therefore, the distance of the ladder and claimant from the 
 
            sidewalk is inconclusive.
 
            
 
                 An ambulance was called, claimant's neck was placed in 
 
            a harness or collar, his body was placed on a board, and he 
 
            was transported to Finley Hospital (tr. p. 30).
 
            
 
                 Claimant's mother testified that she was bringing his 
 
            lunch to work when Spechtenhauser told her that her son had 
 
            been injured by falling off the ladder and he was being 
 
            placed in an ambulance at that time (tr. p. 73).
 
            
 
                 The ambulance call record reported that claimant was on 
 
            a step approximately six feet above the ground when the 
 
            ladder slipped and he fell to the ground.  Claimant related 
 
            that hit his head when he landed.  He reported pain in the 
 
            neck area, clavicle area and rib area at T-8 on the left 
 
            side.  Claimant told the paramedics he struck his head on 
 
            the ground, but they noted that there was no deformity from 
 
            it.  The paramedics also noted that claimant complained of 
 
            pain in both elbows upon movement, but they noted that no 
 
            deformity or injury was observed.  They recorded that 
 
            claimant denied pain in the lower extremities.  The 
 
            paramedics indicated the chief complaint was head and neck 
 
            pain (ex. 3, pp. 1-2; ex. M, section B, pp. 5 & 7).  
 
            
 
                 The Finley Hospital emergency room record reflects that 
 
            claimant fell approximately six to eight feet from a ladder.  
 
            He was complaining of neck, right elbow and left rib pain.  
 
            He was unsure of how he landed but states he knows he hit 
 
            his head.  That record reflects that no obvious deformities 
 
            were noted.  The chief complaints were "neck/shoulders" (ex. 
 
            1; ex. M, sec. B8, p. 1).  
 
            
 
                 Claimant was seen at the Finley Hospital emergency room 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            by A. McDermott, M.D., who noted that the patient complained 
 
            of neck, right elbow and left rib pain.  Dr. McDermott 
 
            wrote, "He did bump his head...."   He recorded his 
 
            diagnosis as, "Acute strain of the neck muscles.  Contusion 
 
            of the right elbow and contusion of the left rib cage."  
 
            (ex. 2; ex. M, sec. B8, p. 2).
 
            
 
                 X-rays of the chest and left ribs, right elbow and 
 
            cervical spine were all negative (ex. M, sec. B8, pp. 3-4).  
 
            Dr. McDermott released claimant in apparently satisfactory 
 
            condition (ex. 1; ex. M, sec B8, p. 2); nevertheless, he 
 
            took claimant off work until May 24, 1990 (ex. M, sec. B8, 
 
            p. 6).
 
            
 
                 Claimant's personal physician, Mark Liaboe, M.D., shows 
 
            an entry for May 21, 1990, which should be May 22, 1990, 
 
            because he states claimant fell off a ladder yesterday and 
 
            landed on his back and the back of his neck on a parking 
 
            lot.  Claimant continued to have complaints in the cervical 
 
            region and posterior head which were aggravated by movement.  
 
            Claimant also complained that he was nauseated and vomited 
 
            last night and today.  Dr. Liaboe recorded tenderness over 
 
            the occiput and tenderness and reluctance to move the neck.  
 
            The paracervical and trapezius muscles were tender 
 
            bilaterally.  Dr. Liaboe concluded, "This likely represents 
 
            cervical muscular strain and closed cranial trauma."  (ex. 
 
            16, p. 2; ex. M, sec. A, p. 7).
 
            
 
                 On May 25, 1990, when claimant continued to have 
 
            persistent headache and nausea, but had not been vomiting, 
 
            Dr. Liaboe ordered a CT scan of the head which turned out 
 
            negative for fracture or blood.  He still had tender 
 
            paracervical and trapezius muscles.  Dr. Liaboe concluded, 
 
            "This represents a post traumatic headache syndrome."  (ex. 
 
            16, p. 2; ex. M, sec. A, p. 7).  Dr. Liaboe added that 
 
            claimant remained disabled as of May 25, 1990.
 
            
 
                 The doctor's office notes next reflect that on May 31, 
 
            1990, claimant's mother called that he was very ill, weak, 
 
            was complaining of severe headaches, was vomiting, had a 
 
            swollen hand, was in a lot of pain, and was sick all over.  
 
            Claimant's mother was instructed to take him to Finley 
 
            Hospital where he was admitted on May 31, 1990, through the 
 
            emergency room where it was recorded that he had vomited 15 
 
            times since the fall off the ladder, weakness, low back 
 
            pain, neck pain, and right hand pain (ex. 6; ex. M, sec. B, 
 
            p. 20).
 
            
 
                 The emergency room physician, T. Gifford, M.D., said 
 
            claimant fell six feet from a ladder on May 21, 1990, and 
 
            that both his accident injuries and his diabetes mellitus 
 
            had progressed while he was attempting to recuperate at 
 
            home.  He diagnosed (1) diabetic ketoacidosis and (2) 
 
            head/neck/back pain etiology undetermined.  Dr. Gifford did 
 
            note that the neck was markedly resistant to flexion because 
 
            of pain in the back of the neck and head (ex. 7, pp. 1-2; 
 
            ex. M, sec. B10, pp. 22-23).
 
            
 
                 J.P. Viner, M.D., performed an admitting examination 
 
            and determined that claimant was suffering from diabetic 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            ketoacidosis and neck stiffness.  Dr. Viner noted that 
 
            claimant fell from a ladder at work ten days ago as the 
 
            origin of this episode.  He stated that even though claimant 
 
            had juvenile onset of diabetes mellitus, insulin requiring, 
 
            three years ago, he had been well maintained on NPH 25 units 
 
            every morning and that he had never suffered diabetic 
 
            ketoacidosis before.  A cerebral spinal fluid (CFS) tap was 
 
            negative for posttraumatic meningitis (ex. 9, pp. 1-2; ex. 
 
            M, B10, pp. 6-7).  
 
            
 
                 Claimant was also examined on May 31, 1990, by Patrick 
 
            Sterett, M.D., a neurologist, who stated that claimant was 
 
            admitted with severe occipital headaches and posterior 
 
            cervical neck pain after a fall of about six feet from a 
 
            ladder earlier that month.  His examination demonstrated 
 
            tenderness of the occipital scalp and temporal regions 
 
            bilaterally.  Dr. Sterett's first assessment was:
 
            
 
                 Post concussion syndrome.  He is complaining of 
 
                 some dizziness and headaches now since the fall on 
 
                 the 21st of May.  The headaches that he has at 
 
                 present are probably post concussion headaches, 
 
                 but some are probably contributed through 
 
                 ligamentous and paraspinal cervical muscular 
 
                 injury (sprain).
 
            
 
            (exhibit 10, page 2; exhibit M, section B10, page 9)
 
            
 
                 X-rays of the lumbosacral spine, cervical spine and 
 
            thoracic spine on June 1, 1990, were all normal.  An x-ray 
 
            of the right hand on June 1, 1990, showed a comminuted, 
 
            slightly angulated fracture of the neck of the fifth 
 
            metacarpal which was described as a boxer's fracture of the 
 
            neck of the fifth metacarpal (ex. 11; ex. M, sec. B10, pp. 
 
            15-16).  An MRI of the head on June 2, 1990, was normal (ex. 
 
            M, B10, p. 18).  A CT scan of the lumbosacral spine on June 
 
            5, 1990, showed a congenital spinal stenosis of the lower 
 
            lumbar spine and symmetric annular bulge of the L5-S1 disc 
 
            with narrowing of the AP dimension of the canal (ex. 12).
 
            
 
                 The discharge diagnosis was prepared by J.S. Chapman, 
 
            M.D., who noted that the intravenous dexamethasone and other 
 
            symptomatic interventions administered by Dr. Sterett had an 
 
            understandable worsening effect temporarily on claimant's 
 
            diabetes.  Dr. Chapman concluded, "This appears to be a 
 
            post-concussion syndrome." (ex. 15, p. 2; ex. M, B10, p. 3).  
 
            Dr. Chapman also stated that claimant had a cervical spine 
 
            sprain, right ulnar nerve injury, fracture of the distal 
 
            fifth metacarpal, congenital stenosis of the lumbar spine, 
 
            congenital bilateral hearing loss and insulin-requiring 
 
            diabetes.  Dr. Chapman recommended that claimant contact 
 
            vocational rehabilitation with regard to training for 
 
            something more compatible with his health problems (ex. 15, 
 
            p. 2; ex. M, B10, pp, 1-3).  
 
            
 
                 Dr. Chapman wrote a letter to the insurance carrier on 
 
            June 15, 1990, which stated claimant fell off the stepladder 
 
            on May 21, 1990, and injured his neck, back, and fractured 
 
            the fifth metacarpal on his right hand (ex. 17; ex. M, sec. 
 
            A, p. 27).
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            
 
                 Wherefore, based upon the foregoing evidence, it is 
 
            determined that claimant sustained an injury to his head, 
 
            neck, right elbow, and left rib cage which arose out of and 
 
            in the course of employment with employer.  These parts of 
 
            the body are determined to be injured in this accident 
 
            because claimant complained of them at or very near the time 
 
            of the injury to Karen Spechtenhauser, the ambulance 
 
            paramedics, the emergency room personnel, and Dr. McDermott.  
 
            Dr. McDermott found that claimant strained his neck muscles 
 
            and had a contusion on his right elbow and his left rib 
 
            cage.  Dr. Liaboe said that claimant's symptoms represent 
 
            cervical muscular strain and closed cranial trauma.  At 
 
            another point he said this represents a posttraumatic 
 
            headache syndrome.  Dr. Chapman determined that claimant had 
 
            a post-concussion syndrome.  Several physicians commented 
 
            that claimant was not able to move his neck normally.
 
            
 
                 It is further determined that the injury from the fall 
 
            on May 21, 1990, temporarily aggravated, accelerated, 
 
            exacerbated, and lit up claimant's diabetes mellitus II.  
 
            Claimant testified that he vomited several times after the 
 
            injury which threw off the balance between his food intake 
 
            and his insulin medication.  Claimant further alleged, and 
 
            it is not unreasonable to believe, that the pain and stress 
 
            from the injury threw off his diabetes (tr. pp. 32-33).  
 
            When claimant was admitted to the emergency room on May 31, 
 
            1990, it was noted that his breath smelled fruity.  Claimant 
 
            testified that it smelled sweet (tr. p. 33).  Claimant 
 
            testified that this is a sign that his diabetes was reacting 
 
            to the injury.  He stated that his blood tests showed that 
 
            his diabetes was uncontrolled at the time of his admission 
 
            to the hospital on May 31, 1990 (tr. pp. 33-34).  Claimant 
 
            admitted that he threw up the day before the accident from 
 
            food poisoning but denied it was on account of his diabetes 
 
            (tr. pp. 48-50).  Claimant testified that the injury put him 
 
            under great pressure and stress and caused his diabetes to 
 
            go out of control (tr. p. 59).
 
            
 
                 Shirley Jones, claimant's mother, testified that she 
 
            and her husband, claimant's father, kept a constant vigil 
 
            over claimant as they were instructed to do by the doctors 
 
            to make sure that he would awake on voice command because of 
 
            the suspected head concussion.  Jones testified that 
 
            claimant became progressively worse because he ate very 
 
            little and what he did eat, he threw up.  The doctor 
 
            eventually directed her to bring him to the hospital on May 
 
            31, 1990 (tr. pp. 76-77).  She said he was not covering his 
 
            insulin, which means he was not receiving 3200 calories from 
 
            food to cover the amount of insulin he was taking.  Orange 
 
            juice was the only food which he could keep down.  Every 
 
            time he took solid food, he threw it back up (tr. 77).  When 
 
            he arrived at the hospital, it was found that his blood 
 
            sugar was way out of proportion and they injected him with 
 
            whole insulin (tr. p. 78).  Likewise, his hand was swollen 
 
            (tr. p. 78).  His elbow was injured and he was unable to 
 
            straighten his arm out (tr. p. 79).  Mrs. Jones added that 
 
            claimant has had trouble with his hands ever since he was a 
 
            child with what doctors described as boxer type of injuries 
 
            which were due to fragile bones because he never drank milk 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            until he had diabetes which left his body calcium deprived 
 
            (tr. p. 81).
 
            
 
                 The deputy saw and heard the witnesses, claimant and 
 
            his mother, and it is determined that their testimony on 
 
            these points is credible.
 
            
 
                 Dr. Gifford, on May 31, 1990, began with the history of 
 
            claimant's fall from the ladder and traced how claimant's 
 
            condition had become progressively worse both with respect 
 
            to the traumatic injuries and the nausea and vomiting (ex. 
 
            7; ex. M, B10, p. 22).  
 
            
 
                 Dr. Viner, on May 31, 1990, stated that although 
 
            claimant had juvenile onset diabetes mellitus, insulin 
 
            requiring, three years ago, he had never before experienced 
 
            diabetic ketoacidosis (ex. 9; ex. M, B10, p. 6).
 
            
 
                 Dr. Chapman stated that the intravenous dexamethasone 
 
            and other symptomatic interventions administered by Dr. 
 
            Sterett temporarily worsened claimant's diabetes while in 
 
            the hospital after May 31, 1990 (ex. 15; ex. M, B10, p. 2).  
 
            
 
                 The question of causal connection is essentially within 
 
            the domain of expert testimony.  Bradshaw v. Iowa Methodist 
 
            Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960).
 
            
 
                 However, expert medical evidence must be considered 
 
            with all other evidence bearing on the causal connection.  
 
            Burt v. John Deere Waterloo Tractor Works, 247 Iowa 691, 73 
 
            N.W.2d 732 (1955).
 
            
 
                 The testimony of claimant and his mother coupled with 
 
            the testimony of Dr. Viner, Dr. Gifford and Dr. Chapman 
 
            establishes that claimant's hospitalization for both his 
 
            traumatic injuries as well as his ketoacidosis arose out of 
 
            and in the course of his employment with employer and the 
 
            fall injury which occurred on May 21, 1990.
 
            
 
                 Defendant presented with no evidence that the diabetes 
 
            mellitus was not aggravated, accelerated, exacerbated, or 
 
            lighted up due to the traumatic injury.  Defendant did not 
 
            introduce any evidence to dispute that the subsequent 
 
            hospitalization of May 31, 1990, for both his traumatic 
 
            injuries and his ketoacidosis arose out of and in the course 
 
            of employment with employer.
 
            
 
                 Defendant generated no independent medical evidence.
 
            
 
                 Wherefore, it is determined that the incident of 
 
            falling off the ladder on May 21, 1990, was the cause of a 
 
            temporary aggravation injury of claimant's preexisting 
 
            diabetes mellitus as well as his traumatic injuries to his 
 
            head, neck, right elbow, and left rib cage.
 
            
 
                 Claimant did not prove that he sustained a back injury 
 
            from this fall.  He did not indicate that he had any back 
 
            pains to any of the persons who came to the scene of the 
 
            accident.  He did not mention back pains or lower extremity 
 
            difficulties to the paramedics, but on the contrary, they 
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            indicated his lumbosacral spine and lower extremities had no 
 
            problems.  Claimant voiced no complaints about his back to 
 
            Dr. McDermott in the emergency room.  Claimant did not 
 
            complain about any back symptoms to Dr. Liaboe.  Claimant 
 
            has had back problems in the past when he fell 14 feet from 
 
            a ladder while working for another employer.   Dr. Chapman 
 
            found that the lumbar spinal stenosis was congenital.
 
            
 
                 Wherefore, it is determined that claimant did not 
 
            sustain an injury from the fall from the ladder on May 21, 
 
            1990, to his back or lumbosacral spine which arose out of 
 
            and in the course of employment with employer.  
 
            
 
                 It is determined that claimant sustained an injury to 
 
            his right hand because he testified that he fell on his 
 
            right hand (tr. p. 59).  Claimant's mother testified he 
 
            injured his hand in this accident.  When he went to the 
 
            hospital on May 31, 1990, his mother and the medical records 
 
            verified that his right hand was swollen.  Therefore, it is 
 
            determined that claimant sustained an injury to his right 
 
            hand, however, the comminuted, slightly angulated fracture 
 
            to the neck of the fifth metacarpal is not new (ex. 11; ex. 
 
            M, B10, p. 16) for the reason that back on October 16, 1980, 
 
            claimant injured his right hand when he was 13 years old.  
 
            Claimant denied that he had had any previous injury to his 
 
            little finger, but this statement is not correct (tr. p. 
 
            39).  His physical examination in 1980 showed mild swelling 
 
            over the distal end of the fifth and fourth metacarpals.  
 
            There was marked tenderness over the fifth metacarpal.  The 
 
            x-rays showed a nondisplaced buckle-type fracture of the 
 
            distal shaft of the fifth metacarpal with approximately 20 
 
            degrees of angulation.  R. Koehler, M.D., said at that time 
 
            that claimant did not have a full range of motion including 
 
            full extension in the MP joint of that fifth finger due to 
 
            fifth metacarpal minimal displacement (ex. M, B3, p. 1).  
 
            The radiologist reported, "RIGHT HAND: There is a minor 
 
            deformity of the fifth metacarpal with slight anterior 
 
            angulation of the distal end."  (ex. M, B3, p. 2).
 
            
 
                 Defendant maintained that claimant injured his hand in 
 
            fights in the past and within 30 days of the injury, however 
 
            failed to prove it.  First of all, Kramer and Gibson 
 
            testified that claimant did not engage in a physical fight 
 
            on Saturday night, May 19, 1990, when they were drinking in 
 
            Dubuque.  Kramer did testify that claimant had a physical 
 
            encounter within 30 days prior to this injury, but there is 
 
            no medical evidence or other evidence to indicate that 
 
            claimant injured his hand or hands in the altercation which 
 
            occurred (tr. p. 112-113).  He was able to work and employer 
 
            did not testify to any noticeable hand injury problem prior 
 
            to this injury.
 
            
 
                CAUSAL CONNECTION-ENTITLEMENT-TEMPORARY disability
 
            
 
                 It is determined that the injury of the fall from the 
 
            ladder on May 21, 1990, was the cause of temporary 
 
            disability and that claimant is entitled to 6.571 weeks of 
 
            temporary total disability benefits beginning on the date of 
 
            the injury, May 21, 1990, to July 6, 1990.
 
            
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
                 Claimant testified that he was taken off work on May 
 
            21, 1990 (tr. p. 31).  The record shows that Dr. Matthews 
 
            took claimant off work on that date (ex. N, Bi, p. 6).  Dr. 
 
            Liaboe continued to keep claimant off work on rest on May 22 
 
            and 25, 1990 (ex. 16, pp. 1-2; ex. M, A, p. 7).  Dr. Chapman 
 
            said he was still off work on June 15, 1990 (ex. 17, p. 1; 
 
            ex. M, A, p. 27).
 
            
 
                 On July 6, 1990, Dr. Chapman noted that claimant was 
 
            improving and had a good range of motion of his head and 
 
            spine.  The only medication prescribed was Tylenol (ex. 16, 
 
            p. 4; ex. M, A, p. 9).  After that, claimant complained 
 
            about his back and his finger, but his head and neck 
 
            remained better as well as his diabetes and therefore, it is 
 
            determined that claimant could return to substantially 
 
            similar employment in which the employee was engaged at the 
 
            time of the injury on July 6, 1990.  Iowa Code section 
 
            85.33(1).
 
            
 
                causal connection-entitlement-permanent disability
 
            
 
                 It is determined that claimant did not sustain a 
 
            permanent impairment or any permanent disability as a result 
 
            of the fall from the ladder on May 19, 1990, to either his 
 
            head, neck, right elbow, left rib cage, right hand, or to 
 
            his diabetes mellitus.
 
            
 
                 Claimant did not introduce any medical evidence or any 
 
            other evidence of permanent impairment ratings or 
 
            restrictions as a result of any of these injuries.  Nor did 
 
            claimant testify that he was permanently injured in any 
 
            manner.  
 
            
 
                                        
 
            
 
                                 medical benefits
 
            
 
                 It is determined that claimant is entitled to all of 
 
            the medical benefits alleged in exhibit 18, which total 
 
            $8,857.25.  He would also be entitled to medical mileage for 
 
            this treatment.
 
            
 
                                 attorney's fees
 
            
 
                 It is determined that this is an appropriate case for 
 
            an award of attorney's fees based on the recovery of medical 
 
            benefits.  
 
            
 
                 It is not the policy of the industrial commissioner to 
 
            award attorney's fees on medical benefits, except under 
 
            compelling circumstances, such as here where medical 
 
            benefits are the primary issue before the commissioner and 
 
            where claimant's counsel might not otherwise receive a fair 
 
            and reasonable fee for representing claimant.  It is true 
 
            that there was a small award in this case of $845.95 for 
 
            temporary total disability benefits, however, the fee on 
 
            that amount would not be an adequate or reasonable 
 
            inducement for an attorney to represent a claimant through 
 
            the hearing process, the hearing and the posthearing briefs 
 
            on a highly controverted case which was denied at the outset 
 

 
            
 
            Page  11
 
            
 
            
 
            
 
            
 
            and fiercely opposed by employer.  The chance for recovery 
 
            was speculative and the attorney's fee on $845.95 would not 
 
            constitute reasonable compensation for the attorney to 
 
            accept and work on the case.  Wherefore, it is determined 
 
            that claimant's attorneys are entitled to a fee of one-third 
 
            of the medical recovery which is to be subtracted from each 
 
            of the medical providers to which money is owed.  Rambousek 
 
            v. Hy-vee Food Store, Inc., file number 868336 (July 23, 
 
            1991).
 
            
 
                 It may seem unjust to the providers of medical services 
 
            that they are only receiving two-thirds of their fees as a 
 
            result of this award; however, it should be remembered that 
 
            if claimant had not been represented by these attorneys they 
 
            might have received nothing.  They had received nothing at 
 
            the time of the hearing and the prospect of them being paid 
 
            looked very dim at best.  Claimant will still owe the unpaid 
 
            balance of these bills.
 
            
 
                                 penalty benefits
 
            
 
                 It is determined that claimant is not entitled to 
 
            penalty benefits under Iowa Code section 86.13(4).  
 
            Defendant employer had reasonable grounds to suspect that an 
 
            injury was feigned under the highly controversial evidence 
 
            in this case.  
 
            
 
                 Wherefore, it is determined that employer had 
 
            reasonable and probable cause or excuse to deny benefits to 
 
            this claimant under these circumstances.  
 
            
 
                                        
 
            
 
                                        
 
            
 
                                conclusions of law
 
            
 
                 Wherefore, based upon the foregoing and following 
 
            principles of law, these conclusions of law are made:
 
            
 
                 That claimant sustained the burden of proof by a 
 
            preponderance of the evidence that he sustained an injury on 
 
            May 21, 1990, to his head, neck, right elbow, left rib cage, 
 
            right hand, and an aggravation of his diabetes mellitus when 
 
            he fell off of a ladder which arose out of and in the course 
 
            of employment with employer.  Iowa Code section 85.3(1); 
 
            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).
 
            
 
                 That claimant sustained the burden of proof by a 
 
            preponderance of the evidence that the injury caused him to 
 
            be temporarily totally disabled from the date of the injury, 
 
            May 21, 1990, to the point at which he was able to return to 
 
            substantially similar employment on July 6, 1990.  Bodish v. 
 
            Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965); Lindahl 
 
            v. L.O. Boggs Co., 236 Iowa 296 18 N.W.2d 607 (1945).
 
            
 
                 That claimant is entitled to 6.571 weeks of temporary 
 
            total disability benefits for the foregoing period of time.  
 

 
            
 
            Page  12
 
            
 
            
 
            
 
            
 
            Iowa Code section 85.33(1).
 
            
 
                 That claimant is entitled to medical benefits in the 
 
            amount of $8,857.25.  Iowa Code section 85.27.
 
            
 
                 That claimant has sustained the burden of proof by a 
 
            preponderance of the evidence that he is entitled to an 
 
            attorney's fee on the medical benefits as well as the weekly 
 
            benefits.  Iowa Code section 85.39.
 
            
 
                 That claimant did not sustain the burden of proof by a 
 
            preponderance of the evidence that he was denied benefits 
 
            without reasonable or probable cause of excuse.  Iowa Code 
 
            section 86.13(4).
 
            
 
                                      order
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 That defendant employer pay to claimant six point five 
 
            seven one (6.571) weeks of temporary total disability 
 
            benefits at the rate of one hundred twenty-eight and 74/100 
 
            dollars ($128.74) per week in the total amount of eight 
 
            hundred forty-five and 95/100 dollars ($845.95) commencing 
 
            on May 21, 1990.
 
            
 
                 That interest will accrue pursuant to Iowa Code section 
 
            85.30.
 
            
 
                 That these benefits are to be paid in a lump sum.
 
            
 
                 That defendant employer pay to claimant's attorneys 
 
            one-third (1/3) of the charge of each of the medical 
 
            providers shown in exhibit 18 in the total amount of two 
 
            thousand nine hundred fifty-two and 42/100 dollars 
 
            ($2,952.42).
 
            
 
                 That defendant is to pay to the providers of medical 
 
            services two-thirds (2/3) of their respective fees which 
 
            represents the remaining five thousand nine hundred four and 
 
            83/100 dollars ($5,904.83) in unpaid medical expenses.
 
            
 
                 That no amounts are owed to claimant for penalty 
 
            benefits.
 
            
 
                 That the costs of this action, including the cost of 
 
            the attendance of the court reporter at hearing and the cost 
 
            of the  transcript of hearing, are charged to defendant 
 
            employer pursuant to rule 343 IAC 4.33, Iowa Code section 
 
            86.19(1) and Iowa Code section 86.40.
 
            
 
                 That defendant file claim activity reports as required 
 
            by this agency pursuant to rule 343 IAC 3.1.
 
            
 
                 Signed and filed this ____ day of May, 1992.
 
            
 
            
 
            
 
            
 
                                          ______________________________
 

 
            
 
            Page  13
 
            
 
            
 
            
 
            
 
                                          WALTER R. McMANUS, JR.
 
                                          DEPUTY INDUSTRIAL COMMISSIONER    
 
            
 
            Copies to:
 
            
 
            Mr. Steven G. Klesner
 
            Mr. James Heckmann
 
            Attorneys at Law
 
            One CyCare Center, STE 216
 
            Dubuque, Iowa  52001
 
            
 
            Mr. Jay P. Roberts
 
            Attorney at Law
 
            620 Lafayette St
 
            PO Box 178
 
            Waterloo, Iowa  50704
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
                                          51106 51108.50 51401 51402.20 
 
                                          51402.30 52900 51801 1402.40 
 
                                          51803 51402.40 51402.60 52501 
 
                                          52700 54000.20 1000
 
                                          Filed May 28, 1992
 
                                          Walter R. McManus, Jr.
 
            
 
                           before the iowa industrial 
 
                                   commissioner
 
            ____________________________________________________________
 
                                          :
 
            DANIEL J JONES,               :
 
                                          :
 
                 Claimant,                :      File No. 946085
 
                                          :
 
            vs.                           :
 
                                          :  A R B I T R A T I O N
 
            HOLIDAY INN,                  :
 
                                          :      D E C I S I O N
 
                 Employer,                :    
 
                 Self-Insured,            :      
 
                 Defendant.               :
 
            ___________________________________________________________
 
            
 
            51106 51108.50 51401 51402.20 51402.30 52900
 
            It was determined that claimant sustained a traumatic injury 
 
            and an exacerbation of his diabetes mellitus II arising out 
 
            of and in the course of employment.  Defendant contended 
 
            claimant faked the injury because of a dispute(s) claimant 
 
            and employer was having.  Traumatic injury was to certain 
 
            parts of the body and not others.
 
            
 
            51801 1402.40
 
            It was determined that claimant was entitled to temporary 
 
            total disability from the date of injury to the first date 
 
            that it could be determined that he could return to 
 
            substantially similar work.
 
            
 
            51803 51402.40
 
            It was determined that claimant did not sustain any 
 
            permanent disability.
 
            
 
            51402.60 52501 52700
 
            It was determined claimant was entitled to medical benefits.
 
            
 
            54000.2
 
            It was determined that claimant was not entitled to penalty 
 
            benefits.
 
            
 
            
 
            
 
            
 
            1000
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            It was determined that claimant's attorneys were entitled to 
 
            fees based on the medical recovery for the reason that 
 
            otherwise there was no inducement for an attorney to 
 
            represent claimant and receive a fair and reasonable fee.  
 
            Defendant was ordered to pay one-third of the medical 
 
            providers' fees to claimant's attorneys and two-thirds to 
 
            the medical providers.  Claimant still owed the medical 
 
            providers for the balance.
 
            
 
 
 
 
 
 
 
 
 
 
 
 
 
 
           BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
_________________________________________________________________
 
            
 
HERMAN A. ANDERSON,   
 
            
 
     Claimant,   
 
            
 
vs.         
 
                                        File No. 946114
 
IOWA DEPARTMENT OF    
 
TRANSPORTATION,       
 
                                          A P P E A L
 
     Employer,   
 
                                        D E C I S I O N
 
and         
 
            
 
STATE OF IOWA,   
 
            
 
     Insurance Carrier,    
 
     Defendants.      
 
_________________________________________________________________
 
 
 
The record, including the transcript of the hearing before the deputy 
 
and all exhibits admitted into the record, has been reviewed de novo on 
 
appeal.  The decision of the deputy filed October 19, 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 June, 1995.          
 
                                ________________________________                 
 
                                BYRON K. ORTON           
 
                                INDUSTRIAL COMMISSIONER
 
 
 
Copies To:
 
 
 
Mr. David C. Skilling
 
Attorney at Law
 
9 East State St.
 
Algona, Iowa 50511
 
 
 
Ms. Julie Burger
 
Ms. Kerry Anderson
 
Assistant Attorney General
 
Iowa Dept of Transportation
 
800 Lincoln Way
 
Ames, Iowa 50010
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                     5-2904
 
                                     Filed June 26, 1995
 
                                     Byron K. Orton
 
 
 
            BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
_________________________________________________________________
 
            
 
HERMAN A. ANDERSON,   
 
            
 
     Claimant,   
 
            
 
vs.         
 
                                       File No. 946114
 
IOWA DEPARTMENT OF    
 
TRANSPORTATION,       
 
                                         A P P E A L
 
     Employer,   
 
                                        D E C I S I O N
 
and         
 
            
 
STATE OF IOWA,   
 
            
 
     Insurance Carrier,    
 
     Defendants.      
 
_________________________________________________________________
 
 
 
5-2904
 
 
 
     Claimant failed to prove that his change of condition was not 
 
discoverable through the exercise of reasonable diligence at the time 
 
he originally settled the case.  The claim for review-reopening is 
 
denied.
 
 
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            HERMAN A. ANDERSON,           :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :       File No. 946114
 
            DEPARTMENT OF TRANSPORTATION, :
 
                                          :
 
                 Employer,                :     C O M M U T A T I O N
 
                                          :
 
            and                           :         D E C I S I O N
 
                                          :
 
            STATE OF IOWA,                :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                 This is a proceeding involving a petition for 
 
            commutation of all remaining benefits brought by claimant 
 
            against his employer on December 16, 1991.  A settlement 
 
            agreement was filed by the parties on October 18, 1991.  
 
            This was approved.  Claimant seeks a full commutation of the 
 
            remaining benefits amounting to $93,778.14 commuted to a 
 
            value of $67,973.15.  This matter was submitted to the 
 
            undersigned on a "stipulated" record submitted by the 
 
            parties.
 
            
 
                                      issue
 
            
 
                 The sole issue to be determined is whether it is in the 
 
            claimant's best interest to fully commute the remaining 
 
            amount under a settlement order which would result in a 
 
            commuted value sum of $67,973.15.
 
            
 
                                 findings of fact
 
            
 
                 The undersigned deputy, having  considered all the 
 
            evidence consisting of certain pleadings and resistances 
 
            filed by the parties which the parties have referred to as 
 
            their "stipulation," the undersigned finds as follows:
 
            
 
                 The undersigned finds the parties' stipulation of the 
 
            record to be unusual in that it is different than what is 
 
            usually done on the presentation of a stipulated record for 
 
            consideration by a deputy.  Basically, we have the petition 
 
            for full commutation filed by the claimant on December 16, 
 
            1991 in which the claimant sets out his reasons and 
 
            itemization of expenses, etc., and claimant's statement of 
 
            case and argument filed January 17, 1992.  The defendants 
 
            filed a resistance to the petition for commutation on 
 
            December 20, 1991, indicating it was not in the best 
 
            interest of the claimant but waives hearing.  On December 
 
            26, 1991, claimant filed a rebuttal to defendants' 
 
            resistance to the petition for commutation setting forth his 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            reasons therefor.  On February 5, 1992, the employer filed a 
 
            stipulation of the employer to submission of commutation 
 
            based on the pleadings indicating that the only remaining 
 
            issue is the appropriateness of the commuting of the 
 
            remaining benefits.  It is this scenario of documents filed 
 
            that the parties have considered as a stipulation of the 
 
            record for the undersigned to consider.  The undersigned 
 
            might add that the total information submitted is not as 
 
            adequate as it should be in trying to fully determine the 
 
            issue herein, but the undersigned must rely not only on what 
 
            has been submitted but is also taking official notice of the 
 
            entire file in order to aid in the writing of this decision.
 
            
 
                 Claimant alleges in his petition that he is requesting 
 
            full commutation of unpaid benefits because he has no funds 
 
            in his bank account and he owes his attorney $25,000 plus 
 
            costs which the attorney has advanced including medical 
 
            reports, all of which claimant has been unable to pay.  He 
 
            also set out other expenses which includes an $18,904.12 
 
            balance on the first mortgage on his home and other loans 
 
            that appear to be unsecured, amounting to approximately 
 
            $7,500 and other unpaid bills amounting to $1,600, all 
 
            totaling $27,985.77 plus $25,000 in attorney fees, all as 
 
            per his petition.  In claimant's statement of case filed 
 
            January 17, 1992, these figures are changed to $18,904.12, 
 
            $6,500 and $25,000, respectively.
 
            
 
                 Claimant also sets out in his petition his current 
 
            monthly expenses which he said amounts to $1,598.53.  These 
 
            were later modified in his statement of his case to $710.  
 
            His monthly workers' compensation income is $1,059.64.  
 
            Claimant contends that by paying off his debt he could 
 
            decrease his monthly payments and get along by investing the 
 
            balance of the fund which appears to be approximately 
 
            $17,614.00.  Claimant indicates that he has $1,054.46 
 
            monthly long-term disability payments that would be paid 
 
            after weekly workers' compensation payments were paid 
 
            herein.  There is no evidence as to the particulars of this 
 
            long-term disability, the length of time in which he would 
 
            receive it and all the particulars under which he would 
 
            receive it.  It appears the long-term disability payments 
 
            would not begin for approximately six years (see claimant's 
 
            rebuttal to defendants' resistance to petition).
 
            
 
                 There is no evidence that claimant realizes that if 
 
            this commutation was in fact approved that he would no 
 
            longer have the rights for review-reopening nor any future 
 
            medical paid.  Claimant does indicate that being a veteran 
 
            he would be entitled to VA benefits for his (other) medical 
 
            problems.  The record, particularly referring to the 
 
            settlement papers, shows that claimant has considerable 
 
            medical problems.  In the settlement, the defendants agree 
 
            to pay all of claimant's authorized medical expenses under 
 
            Iowa Code section 85.27 for treatment to cure or relieve the 
 
            effects of the work-related injury to his back and the 
 
            resultant psychological and psychiatric condition.  In 
 
            looking at the exhibits attached to the settlement papers, 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            the claimant has severe medical problems.  The records also 
 
            indicate that claimant has a diagnosis of anxiety disorder, 
 
            NOS, alcohol abuse and remission, generalizing anxiety 
 
            disorder.  The medical record indicates that claimant is not 
 
            capable of carrying out gainful employment requiring 
 
            lifting, bending, shoveling, stooping, and it would not be 
 
            recommended that he sit or stand for more than thirty 
 
            minutes and that he in general avoid sitting positions for 
 
            any form of work.  There are lifting restrictions which 
 
            restrict him from lifting as little as five to ten pounds on 
 
            a regular basis.  Another record restricts him from lifting 
 
            no more than ten pounds at a time, etc.  Another record 
 
            indicates that the doctor's opinion is that claimant is not 
 
            capable of performing work for which he has been educated, 
 
            trained or had experience in the past.
 
            
 
                 The parties agreed in this compromised settlement that 
 
            claimant had an 85 percent functional impairment to his body 
 
            as a whole and agreed that he had an 85 percent industrial 
 
            disability.  In looking at the total record, it seems very 
 
            probable that this claimant would have a very good chance of 
 
            a review-reopening in the future which right would be cut 
 
            off by the granting of this petition for full commutation.  
 
            Economic changes from the time of the settlement is an 
 
            element that can be considered in review-reopening.  Looking 
 
            at the facts of this case, there is great probability that 
 
            there would be a review-reopening of this matter and that 
 
            such right should not be cut off under the circumstances of 
 
            this case.
 
            
 
                 Claimant has an alcoholic problem in remission.  He 
 
            alleges that until this matter is being settled as he 
 
            desires and proposes, that this is pressure on his overall 
 
            psychological situation.  The undersigned believes in 
 
            looking at the entire file that these pressures will still 
 
            be on the claimant and in fact if this commutation was 
 
            allowed, the claimant could probably be in a serious 
 
            situation within three years and would most likely have used 
 
            up a good portion of his funds he intends to invest.  There 
 
            is no assurance that with claimant's situation that there 
 
            would not be a sudden invasion of these available funds that 
 
            he intends to invest to thwart his attempt to stay in 
 
            alcohol remission.  This temptation would be there 
 
            particularly since claimant's medical problems would not go 
 
            away.  Claimant still has many pressures in his life that 
 
            resulted from the injury itself that apparently need 
 
            additional treatment, and even with treatment would not 
 
            necessarily be cured.  The interest figure that claimant 
 
            sets out that he could earn on his funds is not logical in 
 
            today's market and if he intends to have the funds available 
 
            for use to supplement his monthly support, he would not be 
 
            able to put these funds on any long-term CD investment and 
 
            therefore the rate of return would be substantially less 
 
            than he would anticipate, adding more to his economic 
 
            problems.
 
            
 
                 It seems in the best interest of the claimant to have a 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            steady income over a period of time and not have these funds 
 
            commuted.  Claimant refers to a long-term disability policy, 
 
            the particulars of which are not set out.  The undersigned 
 
            does not know what events trigger the same and why they 
 
            would not begin immediately rather than in the six years 
 
            referred to in claimant's rebuttal to defendants' resistance 
 
            to the petition for commutation.  The undersigned can only 
 
            surmise that this six years comes into play because under 
 
            the petition for commutation, the remaining 354 weeks would 
 
            amount to approximately 6 2/3 years if they were paid out in 
 
            the normal sequence at $264.91 per week.
 
            
 
                 Claimant sets out other ways that he can either 
 
            supplement his income or reduce his expenses.  There is no 
 
            indication that he has applied for or his ability to get 
 
            social security benefits, but in looking at the record it 
 
            looks like this may be a source that should be applied for, 
 
            unless he has not been timely in his action, in which he 
 
            could be supplementing his monthly income.  The undersigned 
 
            feels it would not be in claimant's best interest at this 
 
            time to commute these benefits, particularly under the 
 
            status of the current record.
 
            
 
                 Even though defendants are resisting this petition for 
 
            commutation, the undersigned feels that under the total 
 
            circumstances of this case they have not given up much and 
 
            that there has not been any additional incentives in light 
 
            of additional monies that would warrant the claimant giving 
 
            up the valuable rights he now has, particularly in the 
 
            nature of medical benefits and the right to 
 
            review-reopening.  The undersigned finds, as indicated 
 
            earlier, that the right for review-reopening under the facts 
 
            of this case is a valuable asset to the claimant for which 
 
            defendants are obviously making no concessions but would 
 
            reap potential benefits by those rights being cut off.  
 
            Although the records submitted by the parties do not 
 
            indicate the age of this claimant, the undersigned is only 
 
            able to tell claimant's age by looking at the first report 
 
            of injury which would indicate he would be approximately 43 
 
            years of age.  If, in a review-reopening, claimant was 
 
            ultimately determined to be totally disabled, he would have 
 
            at 43 a life expectancy of in excess of 31 years and would 
 
            be receiving payments for the rest of his life.  This would 
 
            amount to over 1,600 weeks of disability benefits.  The 
 
            undersigned does not believe the defendants are paying for 
 
            the potential exposure that they have in looking at the 
 
            evidence and settlement papers, etc., herein.
 
            
 
                 In claimant's proposals, he is desiring to pay off his 
 
            entire home mortgage.  The reason for this is not clear.  It 
 
            appears the other loans are unsecured.  It doesn't appear 
 
            the claimant is working or hasn't worked since August of 
 
            1990.  Again, the evidence is very insufficient in this 
 
            area.  There is no way the undersigned can imagine that 
 
            those individuals owed money can collect under the 
 
            circumstances herein if claimant cannot pay them, 
 
            particularly on a timely basis and, therefore, it would seem 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            that arrangements could be made with those creditors.  It 
 
            appears claimant can adjust some of the other items that he 
 
            set out therein.  The undersigned fully realizes that the 
 
            attorney should be paid and is entitled to payment, but, 
 
            likewise, under the law the undersigned must rule what is 
 
            best for the claimant.  The worry of paying bills is upon 
 
            everyone's mind and there is no indication that this will 
 
            not be a worry to this claimant even though maybe to a 
 
            lesser degree regardless of this decision herein.
 
            
 
                 This petition for commutation was filed so soon after 
 
            the settlement papers that this also concerns the 
 
            undersigned as to what might have went into the overall 
 
            ultimate resolution in the settlement and the attempt to 
 
            resolve this matter in full at this time.
 
            
 
                 There is no indication of any chance of employability 
 
            of this claimant.  At least there is no evidence that 
 
            claimant is able to get a job, therefore, helping to 
 
            supplement his overall monthly income.  It would appear that 
 
            this claimant is basically relying upon his workers' 
 
            compensation benefits and in six years his long-term 
 
            disability benefits.
 
            
 
                 In reviewing this case, it is the determination of the 
 
            undersigned that it is not in claimant's best interest to 
 
            commute the benefits which the claimant is entitled to 
 
            herein.  To do so would be under the status of the record 
 
            and the file herein an injustice to the claimant and could 
 
            result in an overwhelming windfall to defendants.  The fact 
 
            that any commutation would cut off any future medical and 
 
            the right to review-reopening would be a tremendous 
 
            injustice to this claimant and a waiving of a very valuable 
 
            right.  The probability of claimant using and needing this 
 
            right are overwhelming based on the evidence including the 
 
            contents of the claimant's file herein.  The undersigned 
 
            questions as to whether the claimant really understands the 
 
            full impact of his petition and whether the overwhelming 
 
            influence to take this action is the result of the attorney 
 
            desiring to be paid.  Claimant should make a concerted 
 
            effort within the parameters of the facts herein and the 
 
            funds available to make weekly payments to the attorney 
 
            toward his attorney fees.
 
            
 
                                conclusions of law
 
            
 
                 Section 85.45 of the Iowa Code provides in relevant 
 
            part:
 
            
 
                    Future payments of compensation may be commuted 
 
                 to a present worth lump sum payment on the 
 
                 follo). infra.
 
            
 
                                      order
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 The petition for commutation for all remaining benefits 
 
            and order for lump sum payment is hereby denied.
 
            
 
                 That defendants shall pay the costs of this action, 
 
            pursuant to rule 343 IAC 4.33.
 
            
 
                 Signed and filed this ____ day of April, 1992.
 
            
 
            
 
            
 
                                          ______________________________
 
                                          BERNARD J. O'MALLEY
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies to:
 
            
 
            Mr William J McNertney
 
            Attorney at Law
 
            P O Box 10
 
            Bancroft IA 50517
 
            
 
            Mr Robert P Ewald
 
            Assistant Attorney General/DOT
 
            800 Lincoln Way
 
            Ames, Iowa 50010
 
            
 
            
 
            
 
 
            
 
            
 
            
 
            
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ------------------------------------------------------------
 
            HERMAN A ANDERSON,            :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 946114
 
            IOWA DEPT OF TRANSPORTATION
 
                                          R E V I E W - R E O P E N I N G
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            STATE OF IOWA,                :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ------------------------------------------------------------
 
                              STATEMENT OF THE CASE
 
            
 
                 This is a proceeding in review-reopening from the 
 
            agreement for settlement filed October 18, 1991 and approved 
 
            on November 18, 1991, under which claimant received 
 
            compensation for 85 percent permanent partial disability.  
 
            Claimant contends that he is now permanently and totally 
 
            disabled.
 
            
 
                 The principal issue for determination is whether there 
 
            has been a change of condition which warrants 
 
            reconsideration of the claimant's degree of disability.  In 
 
            the event that permanent total disability is awarded, there 
 
            is an issue with regard to the manner in which the funds 
 
            paid under a partial commutation which was previously 
 
            granted should be offset against the permanent total 
 
            disability compensation.  
 
            
 
                 The case was heard at Storm Lake, Iowa on July 12, 
 
            1994.  The evidence consists of testimony from Herman A. 
 
            Anderson, Claimant's exhibits A, B and C and defendants' 
 
            exhibits 1 through 8.  Official notice is taken of the 
 
            documents in the agency file associated with the agreement 
 
            for settlement.  Official notice is also taken of the 
 
            documents in the agency file associated with the partial 
 
            commutation.  
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 When the agreement for settlement was entered into, 
 
            D.E. Fisher, M.D., claimant's treating orthopedic surgeon, 
 
            reported, "It is my opinion that this man is not capable of 
 
            performing work for which he has been educated, trained or 
 
            had experience in the past."  Michael J. Makowsky, M.D., 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            reported that claimant was limited to sedentary work and 
 
            recommended restrictions including no lifting of more than 
 
            ten pounds, that any lifting should be performed only 
 
            occasionally, that he be allowed to sit or stand as his 
 
            comfort level would tolerate and that he avoid repetitive 
 
            bending at the waist.  A report from psychologist Dianne 
 
            Alber, Ed.D., noted that claimant was seeing a psychiatrist 
 
            on a regular basis.  Jeffrey A. Jackson, M.D., had diagnosed 
 
            claimant as having an anxiety disorder.
 
            
 
                 Since the settlement, Dr. Fisher has changed his 
 
            opinion regarding claimant's employability in that he now 
 
            considers claimant incapable of all forms of employment.  
 
            (Exhibit 8, pages 9 and 10)  Dr. Fisher indicated that 
 
            claimant's permanent impairment has likewise increased.  
 
            (Ex. 8, pp. 21 and 26)  Dr. Fisher has indicated that 
 
            claimant's condition has been deteriorating since 1988 and 
 
            that the deterioration has continued since 1991.  Dr. Fisher 
 
            stated that claimant is unquestionably worse now than he was 
 
            in 1990 or 1991.  (Ex. 8, pp. 28, 29 and 34)  Dr. Fisher 
 
            also stated that in 1991 he anticipated that claimant's 
 
            condition would deteriorate and he now expects it to 
 
            continue to deteriorate into the future.  (Ex. 8, p. 37)  At 
 
            one point Dr. Fisher stated that in 1991 he had hoped that 
 
            claimant would improve but that no improvement occurred.  
 
            (Ex. 8, p. 11)
 
            
 
                 Claimant testified at hearing that his condition has 
 
            worsened and that it continues to worsen.  He walks with a 
 
            cane as he did at the time the settlement was enacted.  
 
            Claimant stated at hearing that when the case was settled in 
 
            1991 he expected to work again.  He felt that he could 
 
            recuperate and retrain.  When questioned regarding what jobs 
 
            he felt he could have been capable of doing, he gave no 
 
            answer.  Claimant stated that in comparison to his condition 
 
            at the time of the settlement, he is now unable to do half 
 
            of what he could do then.  He stated that his pain is worse.  
 
            On a scale of one to ten he stated that his pain at the time 
 
            of the settlement was an eight but that it is presently at 
 
            eleven.
 
            
 
                 It is found that claimant's overall physical condition 
 
            has deteriorated since the settlement was entered into.  It 
 
            is found that the deterioration has not had an appreciable 
 
            effect upon his ability to be employed.  It is found that 
 
            the deterioration was expected to occur by the claimant's 
 
            principal treating physician.  Claimant was unemployed with 
 
            no prospect of obtaining employment at the time the case was 
 
            settled and he remained similarly unemployed at the time of 
 
            the review-reopening hearing.
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                 Upon review-reopening, claimant has the burden to show 
 
            a change in condition related to the original injury since 
 
            the original award or settlement was made.  The change may 
 
            be either economic or physical.  Blacksmith v. All-American, 
 
            Inc., 290 N.W.2d 348 (Iowa 1980); Henderson v. Iles, 250 
 
            Iowa 787, 96 N.W.2d 321 (1959).  A mere difference of 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            opinion of experts as to the percentage of disability 
 
            arising from an original injury is not sufficient to justify 
 
            a different determination on a petition for 
 
            review-reopening.  Rather, claimant's condition must have 
 
            worsened or deteriorated in a manner not contemplated at the 
 
            time of the initial award or settlement before an award on 
 
            review-reopening is appropriate.  Bousfield v. Sisters of 
 
            Mercy, 249 Iowa 64, 86 N.W.2d 109 (1957).  A failure of a 
 
            condition to improve to the extent anticipated originally 
 
            may also constitute a change of condition.  Meyers v. 
 
            Holiday Inn of Cedar Falls, Iowa, 272 N.W.2d 24 (Iowa Ct. 
 
            App. 1978).
 
            
 
                 Claimant's testimony that his condition has worsened is 
 
            corroborated by evidence from Dr. Fisher.  The evidence from 
 
            Dr. Fisher, however, indicates that the deterioration was 
 
            not unexpected and that further deterioration is expected.  
 
            Claimant might not have been aware of that prognosis in 1991 
 
            when he entered into the settlement of this case, but there 
 
            is nothing in the record which would indicate that Dr. 
 
            Fisher's assessment or prognosis would not have been 
 
            available to the claimant through the exercise of reasonable 
 
            diligence.  In this case, reasonable diligence would have 
 
            consisted of merely asking Dr. Fisher to provide his 
 
            prognosis.  While there may have been hope that claimant 
 
            would improve there is nothing in the record which shows 
 
            that improvement was actually expected to occur in the sense 
 
            of improvement being a probability, rather than merely an 
 
            optimistic possibility.  Physicians and patients often hope 
 
            for improvement, even when the likelihood of improvement is 
 
            remote.  
 
            
 
                 Claimant's impairment rating may have changed and his 
 
            physical capabilities may have deteriorated.  He has some 
 
            ailments which appear to have had their onset since the 
 
            settlement.  There is no showing, however, that the new 
 
            ailments were proximately caused by the original injury.  
 
            Dever v. Armstrong Rubber Co., 170 N.W.2d 455 (Iowa 1969); 
 
            Wagner v. Otis Radio & Electric Co.,  254 Iowa 990, 119 
 
            N.W.2d 751 (1963)  Claimant has emotional problems but it 
 
            appears that he had those same emotional problems at the 
 
            time of the settlement.
 
            
 
                 In Gosek v. Garmer and Stiles Co., 158 N.W.2d 731, 735 
 
            (Iowa 1968) the Iowa Supreme Court stated:
 
            
 
                    Cause for allowance of additional compensation 
 
                 exists on proper showing that facts relative to an 
 
                 employment-connected injury existed but were 
 
                 unknown and could not have been discovered in the 
 
                 exercise of reasonable diligence, sometimes 
 
                 referred to as a substantive omission due to 
 
                 mistake, at time of any prior settlement or award. 
 
                 (emphasis added)
 
            
 
                 That pronouncement sets the standard for what an 
 
            employee must prove when he seeks review-reopening.  He must 
 
            not only prove by a preponderance of the evidence that a 
 
            change has occurred but he must also prove that the change 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            was not anticipated or discoverable in the exercise of 
 
            reasonable diligence at the time of the prior settlement or 
 
            award.  It is concluded that Herman A. Anderson has failed 
 
            to prove that the deterioration of his condition was not 
 
            discoverable through the exercise of reasonable diligence at 
 
            the time when he entered into the agreement for settlement 
 
            in 1991.  To the contrary, it appears that the deterioration 
 
            was expected and that claimant could have readily known that 
 
            it was expected if he had merely asked his principal 
 
            treating physician for a prognosis.
 
            
 
                 When viewed as a whole, the record of this case fails 
 
            to show that this claimant is substantially less employable 
 
            now then he was when he entered into the agreement for 
 
            settlement in 1991.  
 
            
 
                                      ORDER
 
            
 
                 IT IS THEREFORE ORDERED that the claimant's claim for 
 
            review-reopening is denied.  
 
            
 
                 It is further ordered that the costs of this action are 
 
            assessed against the claimant pursuant to rule 343 IAC 4.33.
 
            
 
                 Signed and filed this __________ day of October, 1994.
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          MICHAEL G. TRIER
 
                                          DEPUTY INDUSTRIAL COMMISSIONER    
 
            
 
            Copies to:
 
            
 
            William J. McNertney
 
            Attorney at Law
 
            9 E State St
 
            Algona, Iowa  50511
 
            
 
            Julie Berger
 
            Kerry Anderson
 
            Assistant Attorneys General
 
            Iowa Department of Transportation
 
            General Counsel Division
 
            800 Lincoln Way
 
            Ames, Iowa  50010
 
            
 
                 
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                          3303.10
 
                                          Filed April 2, 1992
 
                                          Bernard J. O'Malley
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            HERMAN A. ANDERSON,           :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :       File No. 946114
 
            DEPARTMENT OF TRANSPORTATION, :
 
                                          :
 
                 Employer,                :     C O M M U T A T I O N
 
                                          :
 
            and                           :         D E C I S I O N
 
                                          :
 
            STATE OF IOWA,                :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            3303.10
 
            Petition for full commutation denied.  Settlement agreement 
 
            was filed October 18, 1991 and petition for full commutation 
 
            was filed December 16, 1991.  The settlement provided 
 
            claimant was 85% body as a whole functionally impaired and 
 
            was 85% industrially disabled.  Defendants, who resisted 
 
            commutation, was giving nothing extra for the cutting off of 
 
            claimant's right for review-reopening or future medical.  
 
            Claimant had work injury to his back and resulting 
 
            psychological and psychiatric conditions and diagnosis of 
 
            anxiety disorder, NOS, alcohol abuse in remission, 
 
            generalizing anxiety disorder.  Deputy held that if 
 
            commutation was approved, this would be injustice to 
 
            claimant by cutting of valuable rights that claimant would 
 
            probably be needing within the next three years.
 
            Deputy indicated that attorney needed to be paid the fees to 
 
            which he is entitled ($25,000 out of the $68,000 commuted 
 
            value), but it appears this fact and influence may have had 
 
            overwhelming influence to convince claimant to take this 
 
            action and that claimant may not realize the full impact of 
 
            his action and the valuable rights he would give up.
 
            
 
 
            
 
 
 
                                   
 
 
 
                                                2909
 
                                                Filed March 17, 1993
 
                                                Bernard J. O'Malley
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            HERMAN A. ANDERSON,           :
 
                                          :      File No. 946114
 
                 Claimant,                :
 
                                          :
 
            vs.                           :       MEMORANDOM OF
 
                                          :
 
            IOWA DEPARTMENT OF            :        DECISION ON
 
            TRANSPORTATION,               :
 
                                          :         EXPEDITED
 
                 Employer,                :
 
                                          :          HEARING
 
            and                           :
 
                                          :         PETITION
 
            STATE OF IOWA,                :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            Deputy allowed a partial commutation of benefits in order to 
 
            pay claimant's attorney fees.  Decision dictated on the 
 
            record.
 
            
 
 
            
 
            
 
            
 
            
 
                                          52904
 
                                          Filed October 19, 1994
 
                                          Michael G. Trier
 
            
 
                       BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ------------------------------------------------------------
 
            HERMAN A ANDERSON,  
 
                      
 
                 Claimant, 
 
                      
 
            vs.       
 
                                               File No. 946114
 
            IOWA DEPT OF TRANSPORTATION
 
                                               R E V I E W - 
 
                                             R E O P E N I N G
 
                 Employer, 
 
                                              D E C I S I O N
 
            and       
 
                      
 
            STATE OF IOWA, 
 
                      
 
                 Insurance Carrier,  
 
                 Defendants.    
 
            ------------------------------------------------------------
 
            
 
            
 
            52904
 
            Claimant failed to prove that his change of condition was 
 
            not discoverable through the exercise of reasonable 
 
            diligence at the time he originally settled the case.  The 
 
            claim for review-reopening is denied.
 
            
 
 
         
 
         Page   1
 
         
 
         
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         ____________________________________________________________
 
                                       :
 
         HERMAN A. ANDERSON,           :
 
                                       :      File No. 946114
 
              Claimant,                :
 
                                       :
 
         vs.                           :       MEMORANDOM OF
 
                                       :
 
         IOWA DEPARTMENT OF            :        DECISION ON
 
         TRANSPORTATION,               :
 
                                       :         EXPEDITED
 
              Employer,                :
 
                                       :          HEARING
 
         and                           :
 
                                       :         PETITION
 
         STATE OF IOWA,                :
 
                                       :
 
              Insurance Carrier,       :
 
              Defendants.              :
 
         ___________________________________________________________
 
         
 
              An original notice and petition was filed on April 20, 1992 
 
         under rule 343 IAC 4.48.  February 18, 1993 was the date set for 
 
         a telephonic hearing.  All parties were given proper notice.
 
         
 
              This expedited hearing petition was filed because the 
 
         claimant desired a partial commutation. The entire hearings were 
 
         recorded via an audio tape.  The undersigned made a partial 
 
         ruling on the record on February 18, 1993 finding there would be 
 
         a partial commutation.  The hearing was continued to March 16, 
 
         1993, 9:00 a.m., to allow the parties to agree on a correct 
 
         commutated value factor and number of weeks needed to be commuted 
 
         to arrive at a  $20,000 figure.  The parties agreed.
 
         
 
              The undersigned further found on March 16, 1993, that the 
 
         figure agreed to by the parties is correct and there shall be a 
 
         partial commutation reflecting those figures.  The detailed 
 
         decisions were dictated into the record on the day of the 
 
         hearings and will not be reproduced in typewritten form unless 
 
         there is an appeal by the parties at which time the procedures 
 
         under the administrative code are to be followed.  Any rights of 
 
         appeal will run from the date of the last decision dictated into 
 
         the record, namely, March 16, 1993, and this memorandum is solely 
 
         for the purpose of the agency file.
 
         
 
              The deputy ordered that claimant's petition for  partial 
 
         commutation is approved as amended.  The final decision was 
 
         rendered on March 16, 1993.
 
         
 
              Signed and filed this ____ day of March, 1993.
 
         
 
         
 
         
 
                                       ______________________________
 
                                       BERNARD J. O'MALLEY
 
                                       DEPUTY INDUSTRIAL COMMISSIONER
 

 
         
 
         Page   2
 
         
 
         
 
         Copies to:
 
         
 
         Mr William J McNertney
 
         Attorney at Law
 
         9 E State St
 
         Algona IA 50511
 
         
 
         Mr Stephen E Reno
 
         Mr Robert Ewald
 
         Assistant Attorneys General
 
         Tort Claims Division
 
         Hoover State Office Bldg
 
         Des Moines IA 50319
 
         
 
         
 
 
 
 
 
 
 
 
 
 
 
 
 
 
           BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
____________________________________________________________
 
          
 
DENNIS J. BLANCHARD,     
 
          
 
     Claimant, 
 
                                       File Nos. 1044754
 
vs.                                              1012695
 
                                                  946316
 
ESSTAR, INC./CURRIES COMPANY, 
 
                                     A R B I T R A T I O N
 
     Employer, 
 
                                        D E C I S I O N
 
and       
 
          
 
TRAVELERS INSURANCE COMPANIES,
 
          
 
     Insurance Carrier,  
 
     Defendants.    
 
___________________________________________________________
 
 
 
                  STATEMENT OF THE CASE
 
 
 
This is a consolidated proceeding in arbitration brought by 
 
Dennis Blanchard, claimant, against Esstar Inc./Curries Company, 
 
employer, hereinafter referred to as Curries, and Travelers 
 
Insurance Company, defendants, for workers' compensation benefits 
 
as a result of alleged injuries on April 4, 1990, March 2, 1992 
 
and June 25, 1992.  On December 15, 1994, a hearing was held on 
 
claimant's petitions and the matter was considered fully submitted 
 
at the close of this hearing.
 
 
 
The parties have submitted a hearing report of contested 
 
issues and stipulations which was approved and accepted as a part 
 
of the record of this case at the time of hearing.  The oral 
 
testimony and written exhibits received during the hearing are set 
 
forth in the hearing transcript.
 
 
 
According to the hearing report, the parties have stipulated 
 
to the following matters:
 
 
 
1.  An employee-employer relationship existed between 
 
claimant and Curries at the time of the alleged injury.
 
 
 
2.  Claimant is not seeking additional temporary total or 
 
healing period benefits at this time. 
 
 
 
3.  If the injury is found to have caused permanent 
 
disability, the type of disability is an industrial disability to 
 
the body as a whole.
 
 
 
4.  If permanent partial disability benefits are awarded, 
 
they shall begin as of January 18, 1993.
 
 
 
5.  At the time of the injuries claimant's gross rate of 
 
weekly compensation was $447.00 in 1990 and $483.00 in 1992; he 
 
was married; and, he was entitled to five exemptions.  Therefore, 
 
claimant's weekly rate of compensation is $292.66 for an injury in 
 
April 1990 and $314.78 for injury in either March or June 1992 
 
according to the Industrial Commissioner's published rate 
 
booklets. 
 
 
 
6.  Medical benefits are not in dispute.
 
 
 
                            ISSUES
 
 
 
The parties submitted the following issues for determination 
 
in this proceeding:
 
  
 
  I.  Whether claimant received injuries arising out of and 
 
in the course of employment; 
 
 
 
 II.  Whether claimant gave sufficient notice of injuries 
 

 
 
 
 
 
 
 
 
 
pursuant to Iowa Code section 85.23; and,
 
 
 
III.  The extent of claimant's entitlement to permanent 
 
disability benefits.
 
 
 
                    FINDINGS OF FACT
 
 
 
Having heard the testimony and considered all of the 
 
evidence, the deputy industrial commissioner finds as follows:
 
 
 
A credibility finding is necessary to this decision as 
 
defendants placed claimant's credibility at issue during cross- 
 
examination as to the nature and extent of the injury and 
 
disability.  From his demeanor while testifying, claimant is found 
 
credible.
 
 
 
Claimant has worked for Curries for over 17 years and 
 
continues to do so at the present time.  For over 11 years, he 
 
worked as a production welder, but since 1988 he has been 
 
performing the job of steel bay operator.  This operator job 
 
involves unloading steel door frames from trucks, stacking steel, 
 
parts setup and junking.  Most of the heavy work is done with an 
 
overhead crane.  However, on occasion, claimant is asked to hand 
 
carry steel.  Routinely, as a part of junking, claimant is 
 
required to push a heavy cart of scrap steel over to an area where 
 
he can then use the crane.  This cart is on wheels but, fully 
 
loaded, can weigh up to five or six thousand pounds.  Other 
 
employees have used an electric lift to move this cart but 
 
claimant usually does not use this lift as it is not easily 
 
controllable.  Consequently, claimant's work at Curries 
 
occasionally involves lifting or pushing objects in excess of 50 
 
pounds.
 
 
 
The work injuries herein all involve left inguinal hernia 
 
conditions and it is found that all arose out of and in the course 
 
of claimant's employment at Curries.  The first injury occurred 
 
after lifting at work on April 4, 1990.  Claimant reported this to 
 
his supervisor and was immediately referred for medical treatment.  
 
 
 
Upon a diagnosis of hernia, claimant underwent surgical repair.  
 
Following recovery, claimant returned to his job in June 1990 
 
without restrictions.  Claimant suffered additional problems in 
 
July 1990 with an entrapped nerve in the area of the hernia and 
 
underwent a second surgery.  Claimant was next injured on March 2, 
 
1992 after lifting at work.  Again, this injury was reported and 
 
claimant was immediately referred for medical attention.  Upon a 
 
diagnosis of recurrent hernia, claimant underwent a third surgical 
 
procedure called laparoscopic.  The First Reports of Injury for 
 
the 1990 & 1992 in these two injuries report timely notice of the 
 
injury to Curries.  Little evidence was offered by defendants to 
 
dispute claimant's testimony as to how the injuries occurred.  
 
 
 
Claimant's testimony and medical reports indicated that claimant 
 
was involved in heavy lifting at home in his private sawmill 
 
business at the time of the injuries, but this alone did not 
 
sufficiently controvert claimant's claim that he was injured while 
 
lifting at work.  Claimant returned to work after the March 1992 
 
injury again without restrictions.
 
 
 
Claimant was injured again on June 25, 1992.  Due to problems 
 
with the crane, claimant was directed to hand carry steel to the 
 
assembly lines.  After objection, claimant did what he was told 
 
and suffered additional injury.  The diagnosis this time was a 
 
breakdown in the mesh material used in previous hernia repair 
 
procedures called a "meshoma."  Claimant then underwent a fourth 
 
surgery.  The human resources manager at Curries admitted at 
 
hearing that he probably received an office note from claimant's 
 
physicians within 90 days of the injury which related that 
 
claimant developed his pain from lifting at work.
 
 
 
After the fourth surgery, claimant received permanent work 
 
restrictions against lifting over 50 pounds and permanent partial 
 
impairment ratings to the body as a whole from 7-15 percent from 
 
physicians.  Claimant's physicians opine that this impairment is 
 
the result of claimant's chronic hernia condition and multiple 
 
surgeries.  However, as it was not until the last injury that 
 

 
 
 
 
 
 
 
 
 
claimant suffered impairment, it is found that only the last 
 
injury of June 25, 1992 was a cause of this significant permanent 
 
partial impairment to the body as a whole.
 
 
 
Claimant states that he can perform 98 percent of his current 
 
job duties with such restrictions.  He still has difficulty 
 
pushing the heavy scrap cart.  However, claimant performs his job 
 
satisfactorily and has no intention of leaving Curries at the 
 
present time.
 
 
 
Claimant stated at hearing that he feels pressured at work 
 
and believes his job is in jeopardy.  This is disputed by 
 
defendants and his immediate managers.  Given the conflicting 
 
evidence, it could not be found that claimant's current job at 
 
Curries is in jeopardy at this time.  However, it is found that he 
 
is asked on occasion to exceed his restrictions and this situation 
 
risks future injury.     
 
 
 
Claimant's medical condition before the hernias was excellent 
 
and he had no functional impairments or ascertainable 
 
disabilities.  Claimant was able to fully perform physical tasks 
 
involving heavy lifting.  Due to his current physical limitations, 
 
claimant's medical condition prevents him from fully performing 
 
his current work.  Claimant's work history includes saw operation 
 
and welding.  His prior welding work is much lighter than his 
 
current job.  He only left welding at Curries due to a dispute 
 
with management.
 
 
 
Claimant is 37 years of age and a high school graduate.  
 
Claimant continues to have the ability to perform in medium duty 
 
welding work both at Curries and for other employers.  To date, he 
 
remains on his current bay operator job without loss of pay or 
 
benefits. 
 
 
 
From examination of all of the factors of industrial 
 
disability, it is found that the work injury of June 25, 1992 
 
was a cause of a mild 15 percent loss of earning capacity.
 
 
 
                       CONCLUSIONS OF LAW
 
  
 
  I.  Claimant has the burden of proving by a preponderance 
 
of the evidence that claimant received an injury arising out of 
 
and in the course of employment.  The words "out of" refer to the 
 
cause or source of the injury.  The words "in the course of" refer 
 
to the time and place and circumstances of the injury. See 
 
generally, Cedar Rapids Community Sch. v. Cady, 278 N.W.2d 298 
 
(Iowa 1979); Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 402, 68 
 
N.W.2d 63 (1955).  An employer takes an employee subject to any 
 
active or dormant health impairments. A work connected injury 
 
which more than slightly aggravates the condition is considered to 
 
be a personal injury.  Ziegler v. U.S. Gypsum, 252 Iowa 613, 620, 
 
106 N.W.2d 591 (1961) and cases cited therein.
 
In the case sub judice, all alleged work injuries were found 
 
to have occurred.
 
 
 
 II.  Defendants have raised the issue of lack of notice of 
 
the work injury within 90 days from the date of the occurrence of 
 
the injury under Iowa Code section 85.23.  Lack of such notice is 
 
an affirmative defense.  DeLong v. Highway Commission, 229 Iowa 
 
700, 295 N.W. 91 (1940).  Formal notice is not necessary if the 
 
employer has actual knowledge of an injury and information putting 
 
him on notice that the injury may be work-related.  Robinson v. 
 
Dept of Transportation, 296 N.W.2d 809, 811 (Iowa 1980).  In the 
 
case sub judice, with reference to the last injury, the 
 
physician's report provided to Curries' human resources manager 
 
clearly gave the employer actual knowledge of a work-related 
 
injury.  Therefore, defendant failed to establish a defense of 
 
lack of notice.
 
 
 
III.  The question of causal connection is essentially within 
 
the domain of expert medical opinion.  Bradshaw v. Iowa Methodist 
 
Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960).  The opinion of 
 
experts need not be couched in definite, positive or unequivocal 
 
language and the expert opinion may be accepted or rejected, in 
 
whole or in part, by the trier of fact. Sondag v. Ferris Hardware, 
 

 
 
 
 
 
 
 
 
 
220 N.W.2d 903 (Iowa 1974). The weight to be given to such an 
 
opinion is for the finder of fact to determine from the 
 
completeness of the premise given the expert or other surrounding 
 
circumstances.  Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 
 
867 (1965).
 
 
 
As the claimant has shown that the work injury was a cause a 
 
permanent physical impairment or limitation upon activity 
 
involving the body as a whole, the degree of permanent disability 
 
must be measured pursuant to Iowa Code section 85.34(2)(u).  
 
However, unlike scheduled member disabilities, the degree of 
 
disability under this provision is not measured solely by the 
 
extent of a functional impairment or loss of use of a body member.  
 
A disability to the body as a whole or an "industrial disability" 
 
is a loss of earning capacity resulting from the work injury.  
 
Diederich v. Tri-City R. Co., 219 Iowa 587, 593, 258 N.W. 899 
 
(1935).  A physical impairment or restriction on work activity may 
 
or may not result in such a loss of earning capacity.  Examination 
 
of several factors determines the extent to which a work injury 
 
and a resulting medical condition caused an industrial disability.  
 
 
 
These factors include the employee's medical condition prior to 
 
the injury, immediately after the injury and presently; the situs 
 
of the injury, its severity and the length of healing period; the 
 
work experience of the employee prior to the injury, after the 
 
injury and potential for rehabilitation; the employee's 
 
qualifications intellectually, emotionally and physically; 
 
earnings prior and subsequent to the injury; age; education; 
 
motivation; functional impairment as a result of the injury; and 
 
inability because of the injury to engage in employment for which 
 
the employee is fitted.  Loss of earnings caused by a job transfer 
 
for reasons related to the injury is also relevant.  See Peterson 
 
v. Truck Haven Cafe, Inc., Vol. 1, No. 3 Iowa Industrial 
 
Commissioner Decisions 654, 658 (Appeal Decision, February 28, 
 
1985).
 
 
 
A showing that claimant had no loss of his job or actual 
 
earnings does not preclude a finding of industrial disability. See 
 
Michael v. Harrison County, 34 Bien Rep., IA Ind. Comm'r 218, 220 
 
(App. Dec. 1979); Bearce v. FMC Corp., 465 N.W.2d 531 (Iowa 1991) 
 
only held that continued employment with no loss of earnings is 
 
significant evidence that should not be overlooked in measuring 
 
loss of earning capacity.  Loss of potential employment is also a 
 
factor to consider in assessing industrial disability.  Collier v. 
 
Sioux City Comm. Sch. Dist., File No. 953453, (Appeal Decision, 
 
Filed February 25, 1994).
 
 
 
In the case sub judice, it was found that claimant suffered a 
 
15 percent loss of his earning capacity as a result of the work 
 
injury of June 25, 1992.  Such a finding entitles claimant to 75 
 
weeks of permanent partial disability benefits as a matter of law 
 
under Iowa Code section 85.34(2)(u) which is 15 percent of 500 
 
weeks, the maximum allowable number of weeks for an injury to the 
 
body as a whole in that subsection. 
 
 
 
                           ORDER
 
 
 
A.  The petitions in file numbers 946316 and 1012695 are 
 
dismissed with costs to be paid by defendants pursuant to rule 343 
 
IAC 4.33, including reimbursement to claimant for any filing fees 
 
paid.
 
 
 
B. The following is ordered with reference to file number 
 
1044754:
 
   
 
   1.  Defendants shall pay to claimant seventy-five (75) 
 
weeks of permanent partial disability benefits at a rate of three 
 
hundred fourteen and 78/l00 dollars ($314.78) per week from 
 
January 18, 1993.
 
   
 
   2.  Defendants shall pay accrued weekly benefits in a lump 
 
sum and shall receive credit against this award for all permanent 
 
partial disability benefits previously paid.
 
   
 
   3.  Defendants shall pay interest on unpaid weekly 
 
benefits awarded herein as set forth in Iowa Code section 85.30. 
 

 
 
 
 
 
 
 
 
 
   4.  Defendants shall pay all other costs of these actions 
 
pursuant to rule 343 IAC 4.33, including reimbursement to claimant 
 
for any filing fee paid in this case.
 
 
 
   5.  Defendants shall file activity reports on the payment of 
 
this award as requested by this agency pursuant to rule 343 IAC 
 
3.1.
 
 
 
     Signed and filed this ____ day of January, 1995.
 
 
 
 
 
                             ______________________________
 
                              LARRY P. WALSHIRE
 
                              DEPUTY INDUSTRIAL COMMISSIONER
 
 
 
 
 
Copies To:
 
 
 
Mr. Robert S. Kinsey, III
 
Attorney at Law
 
PO Box 679
 
Mason City  IA  50402-0679
 
 
 
Mr. Rustin T. Davenport
 
Attorney at Law
 
30-4th St NW
 
PO Box 1953
 
Mason City  IA  50402-1953
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                               5-1803
 
                               Filed January 31, 1995
 
                               LARRY P. WALSHIRE
 
 
 
          BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
____________________________________________________________
 
          
 
DENNIS J. BLANCHARD,    
 
          
 
     Claimant, 
 
                                     File Nos. 1044754
 
vs.                                            1012695
 
                                                946316
 
ESSTAR, INC./CURRIES COMPANY,
 
                                    A R B I T R A T I O N
 
     Employer, 
 
                                       D E C I S I O N
 
and       
 
          
 
TRAVELERS INSURANCE COMPANIES,
 
          
 
     Insurance Carrier,  
 
     Defendants.    
 
___________________________________________________________
 
 
 
5-1803
 
 Non-precedential, extent of disability case.