952729

BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________

LORI VAN WYHE,

Claimant,
File Nos. 952729 976964
vs.
A R B I T R A T I O N
TYSON FOODS,
D E C I S I O N
Employer,
Self-Insured
Defendant.
___________________________________________________________
STATEMENT OF THE CASE

These consolidated cases are upon petitions in
arbitration filed by claimant Lori Van Wyhe against her
self-insured employer, Tyson Foods. Ms. Van Wyhe seeks
benefits under the Iowa Workers' Compensation Act as the
result of stipulated injuries to the right arm on December
17, 1990 (976964) and April 5, 1991 (952729).

A contested case hearing was accordingly held in Sioux
City, Iowa on May 20, 1993. The record consists of joint
exhibits 1, 2, 8 through 11, 13 through 33 and 35 through 40
along with the testimony of claimant and Phillip Reinders.

ISSUES

The parties have stipulated that claimant sustained
injury arising out of and in the course of employment on the
two dates alleged. They agree that the injuries caused
temporary disability and that claimant was off work on
February 15, February 22 and March 22, 1991. Defendants
deny liability, though. The parties have also agreed to the
appropriate rates of compensation (12-17-90: $143.34)
(4-05-91: $121.88). Entitlement to medical benefits is no
longer in dispute. The parties agree that claimant was paid
$56.22 in weekly benefits prior to hearing.

Issues presented for resolution include:

1. The extent of entitlement to healing
period/temporary total disability benefits;

2. Whether either injury caused permanent
disability;

3. Entitlement to permanent partial disability
benefits for scheduled member disability to the
right arm.

FINDINGS OF FACT

The undersigned deputy industrial commissioner finds:

Lori Van Wyhe, 29 years of age at hearing, was employed
by Tyson Foods from December 18, 1989 through April 5, 1991.

Page 2

Tyson Foods is a manufacturer of various food products,
including hamburger patties and processed food products.
Claimant worked numerous assembly line jobs in the cook room
and IQF ("instant quick freeze") areas of the plant.

Much of the work claimant did, including boxing meat,
scooping product into containers and packing, required
repetitive use of the upper extremities, although the
particular motion involved would vary with the job.

In early 1990, claimant was packing fajitas into bags
when she felt a "popping" sensation in the left wrist
followed by swelling and pain. Claimant compensated by
trying to use her dominant right arm more, but soon
developed an assortment of bilateral symptoms.

On May 24, 1990, claimant underwent EMG testing
interpreted by Dr. J. L. Case. Bilateral findings were
normal.

On December 17, 1990 (the injury date stipulated by the
parties in number 976964), defendant's attendance records
reflect that claimant "called in sick with the flu."

On December 18, 1990, Mel Wallinga, M.D., imposed a
restriction of a maximum two shifts per week to be worked on
the IQF line due to tendonitis.

As of February 20, 1991, Dr. Wallinga permitted
claimant to work, but "as light of duty as possible." The
record contains no indication of more recent treatment by
Dr. Wallinga.

Claimant was next treated by J. Michael Donohue, M.D..
On March 15, 1991, Dr. Donohue found minimal objective
findings in support of his assessment of chronic
tenosynovitis of the right forearm and elbow. He found
prognosis to be poor, based largely on persistent symptoms
despite prolonged treatment and activity modification versus
minimal objective findings on evaluation. Claimant was to
return to work, but avoid activities requiring repetitive
flexion and extension of the wrist and elbow.

Dr. Donohue's assessment on June 3, 1991 was of
bilateral upper extremity dysfunction - subjective
complaints outweigh the objective findings. As of December
3, 1991, his assessment was of persistent right forearm
discomfort, while noting that tenderness was now localized
over the extensor musculature. On each occasion, Dr.
Donohue opined that based on objective findings, claimant
had not sustained permanent injury.

Claimant also received treatment from T. M. Zoellner,
M.D.. Dr. Zoellner is an orthopedic specialist. His chart
notes of July 13, 1992 show an impression of persistent
lateral epicondylitis (more commonly known as "tennis
elbow") and assigned an impairment rating of 2 percent of
the upper extremity based on the American Medical
Association Guides to the Evaluation of Permanent
Impairment. Dr. Zoellner's examination showed tenderness

Page 3

at the lateral epicondyle, 5 degrees to 130 degrees active
range of motion and some tenderness on the dorsal wrist
extension, more so with the elbow extended.

Claimant has also been evaluated by two medical doctors
and a chiropractor.

John J. Dougherty, M.D., wrote on January 2, 1992 that
he was not impressed with claimant's reported pain and that
she did not have swelling. It was Dr. Dougherty's opinion
that claimant had not sustained any permanent impairment.

Joel T. Cotton, M.D., wrote on March 24, 1993 that the
previous abnormal physical findings described by Dr.
Zoellner were no longer present as of his evaluation of
March 17, 1993. His examination of claimant's right elbow
was normal and he opined that claimant had no permanent
partial impairment or subsequent disability pursuant to the
AMA Guides.

Claimant was seen by Pat Luse, D.C., on March 13, 1992.
While Dr. Luse felt that claimant had suffered an injury and
would be subject to recurrent problems in the area of the
right forearm, he did not impose any impairment rating under
the AMA Guides since they "do not allow for rating
tendonitis unless it is constructive tenosynovitis or causes
subluxation."

CONCLUSIONS OF LAW

The parties have stipulated that claimant sustained
injury on both dates alleged, even though December 17, 1990
apparently involved an attach of influenza. Defendants
agree that claimant missed three separate days of work, but
do not consider the time compensable because temporary total
disability entitlement accrues only beginning the fourth day
under Iowa Code section 85.32. If, however, the injury
caused permanent disability, those three days would be
compensable as healing period under Iowa Code section
85.34(1).

The claimant has the burden of proving by a
preponderance of the evidence that the injury is a proximate
cause of the disability on which the claim is based. A
cause is proximate if it is a substantial factor in bringing
about the result; it need not be the only cause. A
preponderance of the evidence exists when the causal
connection is probable rather than merely possible.
Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa
1980); Holmes v. Bruce Motor Freight, Inc., 215 N.W.2d 296
(Iowa 1974).

Page 4

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).

Although claimant has subjective complaints of pain,
objective signs of injury are scarce. Only Dr. Zoellner was
able to rate impairment, and Dr. Cotton later found that the
conditions Dr. Zoellner described were no longer present.
Dr. Donohue, a primary treating physician, has repeatedly
opined that claimant did not sustain permanent injury.

Claimant has failed to establish by the weight of
expert testimony that she has sustained permanent injury.
Neither Dr. Donohue, Dr. Dougherty, Dr. Cotton or even Dr.
Luse found permanent ratable impairment. Accordingly,
defendants prevail on this issue.

Because claimant did not miss in excess of three days
of work, her temporary total disability is not compensable
under section 85.32.

ORDER

THEREFORE, IT IS ORDERED:

Claimant shall take nothing further under either
contested case file.

Costs are assessed to defendant.

Signed and filed this ____ day of September, 1993.

______________________________
DAVID R. RASEY
DEPUTY INDUSTRIAL COMMISSIONER

Copies to:

Mr. Harry Smith
Attorney at Law
632-640 Badgerow Bldg.
P.O. Box 1194
Sioux City, IA 51102

Mr. Thomas M. Plaza
Attorney at Law
701 Pierce, Suite 200
Sioux City, IA 51102

5-1801.1, 5-1803
Filed September 27, 1993
David R. Rasey

BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________

LORI VAN WYHE,

Claimant,
File Nos. 952729 976964
vs.
A R B I T R A T I O N
TYSON FOODS,
D E C I S I O N
Employer,
Self-Insured
Defendant.
___________________________________________________________

5-1801.1, 5-1803
Three days of temporary total disability were not
compensable where record did not show permanency.

BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
:
SUZANNE MASON, :
:
Claimant, :
:
vs. :
: File No. 952884
SIPCO, INC. d/b/a MONFORT, :
INC., :
: A R B I T R A T I O N
Employer, :
: D E C I S I O N
and :
:
HOME INSURANCE COMPANY, :
:
Insurance Carrier, :
Defendants. :
___________________________________________________________

STATEMENT OF THE CASE

This is a proceeding in arbitration brought by
claimant, Suzanne Mason, against her employer, Sipco, Inc.,
d/b/a Monfort, Inc., and its insurance carrier, Home
Insurance Company. Claimant sustained a work-related injury
on May 31, 1990.

The record in this case consists of testimony from the
claimant, Sheryl Howell, John Fricke (the head room
supervisor at Monfort), Robin Clark (the registered nurse
employed by Monfort), Michael Slifer (claimant's
supervisor); and, joint exhibits 1-41. The matter came on
for hearing before the undersigned deputy industrial
commissioner on October 18, 1993 at Des Moines, Iowa.

ISSUES

The parties submitted the following issues for
resolution:

1. Whether claimant is entitled to temporary total or
permanent partial disability benefits;

2. Claimant's workers' compensation rate; and

3.. Whether claimant is entitled to penalty benefits
due to defendants' "failure to pay claimant any industrial
disability."

FINDINGS OF FACT

The undersigned deputy industrial commissioner, having
reviewed all of the evidence received, finds the following
facts:

Claimant, Suzanne Mason, was born on October 20, 1949.

Page 2

At the time of the hearing, she was 43 years of age.

Currently, claimant is single. She has a child from a
previous marriage, Joshua, who was born on March 30, 1972.
Claimant stated that although Joshua lived with her "off and
on," he was living with her at the time of the injury, May
31, 1990. Apparently, in her deposition, claimant was
unable to remember whether Joshua was living with her on the
date of the injury. Joshua's girlfriend, Sheryl Howell,
also testified at the hearing. She recalled that both she
and Joshua were living with claimant at the time of the
injury.

Claimant graduated from high school in 1967. She
attended Humboldt Institute in Minneapolis for nine months,
and studied to become an airline secretary. She has never
secured work in this area. Claimant also received training
to become a resident treatment worker, a term she used to
describe nurses' aide work. Her certificate is not current.

Claimant's work history includes positions in the mail
room and as a clerical person at Lennox Industries in
Marshalltown, Iowa. She also worked for Marshalltown
Trowel, sanding handles and polishing trowels.

In July of 1976, claimant began working for the
defendant employer. She has held a myriad of jobs with the
company including, what claimant described as chitterlings,
pulling pancreas, salt casings, pulling small guts and work
on the cut floor, wrapping and packing butts.

In 1978, claimant was diagnosed with bilateral carpal
tunnel syndrome and underwent surgery to relieve her
symptoms. She received excellent results from the
surgeries, and she was released to return to work on the
production floor without restrictions.

At the time of her injury, claimant was working on the
boneless butts line. Her job duties included using a
straight knife to separate the bone from the butt of the
meat. According to claimant, the job required repetitive
use of both arms and standing on cement, but no heavy
lifting. Claimant's dominant hand is her right hand.

On May 31, 1990, claimant visited the company nurse
with complaints of neck and shoulder pain. She was directed
to the company physician, a Dr. Lund, who examined her and
sent her back to work with restrictions of no lifting of
more than ten pounds. He diagnosed possible cervical disc
or strain, and suggested a CT scan if the pain persisted.
(Joint Exhibits 1, 2 and 3).

Claimant underwent an MRI in June of 1990, which
confirmed a broad-based, left-sided herniated disk which
was causing cord compression and central canal stenosis at
the C5-6 level. Claimant was complaining of pain in the
neck as well as pain and numbness in the right arm and
fingers on the right hand. She was referred to Robert
Jones, M.D. (Jt. Exs. 4, 5, 7, 8 and 22).

Page 3

In August of 1990, Dr. Jones ordered a second MRI which
showed a herniated disc at the C5-6 level on the left side.
He imposed restrictions of no lifting of more than 20
pounds, and a limited amount of lifting, pushing and
pulling, and felt claimant could return to her job. Dr.
Jones did not recommend surgery at this time, but prescribed
a course of physical therapy. (Jt. Exs. 9 and 10).

Apparently, claimant did not feel relief, and returned
to Dr. Jones in September of 1990. Although the notes are
poorly copied and illegible, an examination revealed that
claimant was experiencing loss of strength in the right
biceps and continued pain in the neck and right arm. She
underwent an anterior cervical diskectomy and fusion on
September 11, 1990. (Jt. Exs. 11, 12 and 13).

Approximately one month after the surgery, claimant
returned to Dr. Jones for an evaluation. Her biceps
strength was normal, and he predicted she could return to
work in several months. (Jt. Ex. 14). While the progress
notes from October through January are illegible, a
follow-up letter from Dr. Jones to the adjusting company
associated with this case indicates that claimant sustained
a permanent impairment between seven and ten percent due to
the surgery, and as of January 14, 1991, claimant was
released to return to work. Later, Dr. Jones determined
claimant's impairment was 8 percent. (Jt. Exs. 15, 16, 17
and 18).

Evidently, claimant returned to work, but in September
of 1991 returned to Dr. Jones with renewed complaints of
discomfort in her neck and shoulders, with headaches
"extending into the right upper arm." He suggested a change
in jobs so that she would not be required to use her arms
on a repetitive basis. (Jt. Ex. 19).

Claimant was afforded several different positions with
the defendant which allowed her to continue to work at the
same rate of pay as before the injury. For a time, she
worked in the supply room passing out gloves, knives and
other supplies. She indicated that prior to the injury, she
was allowed to work 14 to 15 hours of overtime per week
whereas now, she could not. And, while her position in
boneless butts had been classified as a seven bracket
position, her current position is a three bracket position.
Each bracket is worth $.05 per hour; although claimant is
earning the same hourly wages she earned prior to the
injury, this is due to a contractual wage increase. Due to
the drop in brackets, she is actually earning $.10 per hour
less.

In September of 1992, Dr. Jones opined that claimant's
cervical disc problem was caused by her job duties at
Monfort. He suggested that she continue to perform clerical
jobs. (Jt. Ex. 20).

Claimant underwent an independent medical examination
in November 1992. Martin Rosenfeld, M.D., an orthopaedic
specialist, determined that claimant had decreases in neck
motion, but agreed with Dr. Jones' assessment that claimant

Page 4

had sustained an eight percent permanent impairment. (Jt.
Ex. 25).

Claimant underwent a functional capacities evaluation
(FCE) on November 17, 1992. The results showed claimant was
"capable of performing light-medium employment lifting and
carrying up to 35 lbs. maximum infrequently and up to 20-22
lbs. maximum frequently at heights up to waist level and
lifting up to 20 lbs. maximum infrequently and up to 13-15
lbs. maximum frequently at heights above approximately
mid-chest level." (Jt. Ex. 39). She was to be allowed
10-15 minute breaks after working for two to two and
one-half hours. (Id.).

Other exhibits address claimant's complaints of low
back pain, which began in September of 1991 (jt. exs. 33,
34, 35, 36, 37, and 38); a list of claim payments (jt. ex.
40); a claim activity report (jt. ex. 41); claimant's prior
work experience (jt. ex. 32); and, a request for and a
denial of industrial disability benefits (jt. ex. 31).

Claimant has worked for the company for more than 17
years. The job bidding process is governed by seniority,
and few workers, if any, have more seniority than claimant.
She recently bid on a job called "fresh pack" in the box
room. In this capacity, she would wrap boxes of fresh
loins. Claimant believed she could perform all of the
functions of this position. This is a three bracket job.

John Fricke has worked for the defendant for eight
years. He has been the head room supervisor for two and
one-half years, and manages 42 employees, including
claimant. In August of 1993, he supervised claimant while
she worked on the jaw bone line, separating temple meat from
the bone. He stated she was able to adequately perform the
job, which involved using a straight knife to cut two pieces
of meat, each weighing less than one pound. Mr. Fricke
admitted that the position required constant use of the
arms. He also explained that the company had completely
eliminated the job at which claimant was working at the time
of her injury.

Robin Clark, the registered nurse for the defendant
employer, testified that after claimant underwent the
functional capacities evaluation, she was given four to five
job options at the plant that fell within the restrictions
delineated by the FCE report.

Michael Slifer is a supervisor at the plant and has
known claimant for 15 years. Although he did not remember
the exact date, at some point during the time claimant was
off of work, he saw her riding a horse.

ANALYSIS AND CONCLUSIONS OF LAW

The first issue to address is whether claimant has
sustained a permanent disability, which would allow her to
recover healing period benefits.

The party who would suffer loss if an issue were not

Page 5

established has the burden of proving that issue by a
preponderance of the evidence. Iowa R. App. P. 14(f).

The question of causal connection is essentially within
the domain of expert testimony. The expert medical evidence
must be considered with all other evidence introduced
bearing on the causal connection between the injury and the
disability. The weight to be given to any expert opinion is
determined by the finder of fact and may be affected by the
accuracy of the facts relied upon by the expert as well as
other surrounding circumstances. The expert opinion may be
accepted or rejected, in whole or in part. Sondag v. Ferris
Hardware, 220 N.W.2d 903 (Iowa 1974); Anderson v. Oscar
Mayer & Co., 217 N.W.2d 531 (Iowa 1974); Bodish v. Fischer,
Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).

Claimant's treating physician, Dr. Jones, indicated
that she had sustained an eight percent permanent impairment
due to the surgery to her cervical spine. He also imposed
permanent restrictions of no repetitive use of her arms. No
other physician rendered an opinion addressing her
condition, although some additional restrictions were
imposed via a functional capacities evaluation.

The greater weight of the evidence supports a finding
that claimant sustained a permanent impairment. She is
entitled to healing period benefits for the time she was off
of work, from June 15, 1990 through August 5, 1990 and from
August 16, 1990 through December 12, 1990.

The next issue to address is claimant's industrial
disability.

As claimant has sustained an injury to the body as a
whole, an analysis of her industrial disability is
warranted.

Functional impairment is an element to be considered in
determining industrial disability which is the reduction of
earning capacity, but consideration must also be given to
the injured employee's age, education, qualifications, expe
rience and inability to engage in employment for which he is
fitted. Olson v. Goodyear Service Stores, 255 Iowa 1112,
125 N.W.2d 251 (1963). Barton v. Nevada Poultry, 253 Iowa
285, 110 N.W.2d 660 (1961).

A finding of impairment to the body as a whole found by
a medical evaluator does not equate to industrial disabil
ity. This is so as impairment and disability are not syn

Page 6

onymous. Degree of industrial disability can in fact be
much different than the degree of impairment because in the
first instance reference is to loss of earning capacity and
in the latter to anatomical or functional abnormality or
loss. Although loss of function is to be considered and
disability can rarely be found without it, it is not so that
a degree of industrial disability is proportionally related
to a degree of impairment of bodily function.

Factors to be considered in determining industrial dis
ability include the employee's medical condition prior to
the injury, immediately after the injury, and presently; the
situs of the injury, its severity and the length of 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. These are matters which the
finder of fact considers collectively in arriving at the
determination of the degree of industrial disability.

There are no weighting guidelines that indicate how
each of the factors are to be considered. There are no
guidelines which give, for example, age a weighted value of
ten percent of the total value, education a value of fifteen
percent of total, motivation - five percent; work experience
- thirty percent, etc. Neither does a rating of functional
impairment directly correlate to a degree of industrial
disability to the body as a whole. In other words, there
are no formulae which can be applied and then added up to
determine the degree of industrial disability. It therefore
becomes necessary for the deputy or commissioner to draw
upon prior experience, general and specialized knowledge to
make the finding with regard to degree of industrial dis
ability. See Peterson v. Truck Haven Cafe, Inc., (Appeal
Decision, February 28, 1985); Christensen v. Hagen, Inc.,
(Appeal Decision, March 26, l985).

At the time of her hearing, claimant was 43 years old.

Most of her work history has been with the defendant
employer. Claimant has held a variety of jobs with Monfort,
and currently earns more than $9.00 per hour.

She sustained an injury to her neck, which prior to
fusion surgery caused pain and discomfort not only in her
neck but also in her right arm. At one point, she sustained
a significant loss of strength in her right biceps, but
according to the medical documentation, she has had an
excellent result from the surgery, which alleviated most of
her symptoms. While claimant's injury and treatment were
somewhat severe, her healing period went smoothly and no
complications were noted.

The employer has accommodated claimant's restrictions,
and has continued to employ claimant. Some injured workers

Page 7

are not so lucky.

Claimant has taken responsibility for her recovery and
return to work as well, and her motivation to return to work
is noted.

Claimant's actual loss of earnings has been minimal.
The job she currently holds is a lower classification than
the job she held at the time of the injury. As a result,
she earns $.10 less per hour now than at the time she was
injured.

After considering all of the factors enumerated above,
including the eight percent permanent impairment rating;
claimant's work restrictions; the employer's willingness to
accommodate claimant's work restrictions; claimant's current
earnings, and her earnings at the time of the injury; the
severity of the injury and length of her healing period;
and, claimant's training, it is found that claimant has
sustained an eight percent industrial disability.

Claimant has also asked for penalty benefits.

Iowa Code section 86.13 (4) states, in relevant part:

If a delay in commencement or termination of
benefits occurs without reasonable or probable
cause or excuse, the industrial commissioner shall
award benefits in addition to those benefits
payable under this chapter, or chapter 85, 85A, or
85B, up to fifty percent of the amount of benefits
that were unreasonably delayed or denied.

The standard used by the agency to determine whether
claimant is entitled to penalty benefits is whether the
claim is fairly debatable.

In the case at bar, the claim was fairly debatable.
Claimant returned to a job which she has been able to
perform, and a good faith argument can be made addressing
any loss of earning capacity she may have sustained. And,
defendants did pay claimant 40 weeks of permanent partial
disability benefits.

Claimant is not awarded any penalty benefits.

The final issue to address is claimant's workers'
compensation rate.

Both claimant and her son's girlfriend testified that
claimant's son was living with her at the time of the
injury. Defendants present no evidence to dispute this.
Therefore, claimant has proved by a preponderance of the
evidence that she is entitled to two exemptions, and her
correct workers' compensation rate is $253.66 per week based
on gross weekly earnings of $410.06 per week, two
exemptions, and marital status (single).

Page 8

ORDER

THEREFORE, it is ordered:

That defendants pay claimant healing period benefits
from June 15, 1990 through August 5, 1990 and from August
16, 1990 through December 12, 1990 at the rate of two
hundred fifty-three and 66/100 dollars ($253.66) per week;

That defendants pay claimant permanent partial
disability benefits for fifty (50) weeks commencing on
December 13, 1990 at the rate of two hundred fifty-three and
66/100 dollars ($253.66) per week;

That defendants shall pay accrued benefits in a lump
sum;

That defendants shall pay interest on the award as
provided by Iowa code section 85.30;

That defendants shall pay the costs of this action;

That defendants shall file a claims activity report as
required by the agency.

Signed and filed this ____ day of November, 1993.

Page 9

________________________________
PATRICIA J. LANTZ
DEPUTY INDUSTRIAL COMMISSIONER

Copies To:

Mr Fred L Morris
Attorney at Law
405 Sixth Ave Ste 700
Des Moines IA 50309

Mr Max Schott
Attorney at Law
6959 University Ave
Des Moines IA 50311

5-1803
Filed November 3, 1993
Patricia J. Lantz

5-1803
Claimant, 43 years of age, sustained a herniated disc at the
C5-6 level. She underwent a fusion, and returned to work in
four months.
The company accommodated claimant's restrictions. She has a
significant amount of seniority, and is able to bid on and
likely secure most jobs at the plant.
She received excellent results from the surgery, but
sustained an 8 percent permanent functional impairment
rating.

BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
:
SUZANNE MASON, :
: File No. 952884
Claimant, :
:
vs. : N U N C
:
SIPCO, INC. d/b/a MONFORT, : P R O
INC., :
: T U N C
Employer, :
: O R D E R
and :
:
HOME INSURANCE COMPANY, :
:
Insurance Carrier, :
Defendants. :
___________________________________________________________
The decision filed November 3, 1993 contains an error on page
seven, in the seventh full paragraph. The following statement is
correct:

After considering all of the factors enumerated above,
including the eight percent permanent impairment rating;
claimant's work restrictions; the employer's willingness to
accommodate claimant's work restrictions; claimant's current
earnings, and her earnings at the time of the injury; the
severity of the injury and length of her healing period; and,
claimant's training, it is found that claimant has sustained a
ten percent industrial disability.
The remainder of the decision remains the same.
Signed and filed this ____ day of November, 1993.

________________________________
PATRICIA J. LANTZ
DEPUTY INDUSTRIAL COMMISSIONER

Copies To:

Mr Fred L Morris
Attorney at Law
405 Sixth Ave Ste 700
Des Moines IA 50309

Mr Max Schott
Attorney at Law
6959 University Ave
Des Moines IA 50311

Page 1

before the iowa industrial commissioner
____________________________________________________________
:
DENNIS R. WITTE, :
:
Claimant, : File Nos. 966533
: 966534
vs. : 952950
:
LENNOX INDUSTRIES, INC., :
: A R B I T R A T I O N
Employer, :
: D E C I S I O N
and :
:
EMPLOYERS MUTUAL COMPANIES, :
:
Insurance Carrier, :
Defendants. :
___________________________________________________________

STATEMENT OF THE CASE

This case came on for hearing on December 2, 1991, at
Des Moines, Iowa. This is a proceeding in arbitration
wherein claimant seeks compensation for permanent partial
disability benefits as a result of alleged injuries
occurring on February 17, 1989, July 27, 1989, and April 9,
1990. The record in the proceedings consist of the
testimony of the claimant and Dennis Hart; joint exhibits 1
through 42; and defendants' exhibits A and B.

ISSUES

The issues for resolution are:

As to the February 17, 1989 and July 27, 1989 injuries,
the only issue is the extent of claimant's permanent
disability, if any.

As to the April 9, 1990 alleged injury, the issues are:

1. Whether claimant's injury arose out of and in the
course of his employment;

2. Whether claimant's alleged disability is causally
connected to his April 9, 1990 injury;

3. The nature and extent of claimant's disability and
entitlement to disability benefits; and,

4. Claimant's entitlement to 86.13 penalty benefits.

findings of fact

The undersigned deputy, having heard the testimony and
considered all the evidence, finds that:

Claimant is a 28-year-old high school graduate who has

Page 2

no other formal education. Claimant began working for
defendant employer on February 6, 1984. He described his
work prior to working for defendant employer, which
basically involved working at a service station at which he
also did mechanic work. Claimant had a pre-employment
physical and back x-rays prior to working for defendant
employer and said the x-rays and physical were negative.

Claimant described his work at defendant employer's
during the years he worked. He described his duties and the
changes that occurred in various positions or jobs within
his employment.

On February 17, 1989, claimant was picking up a blower
by hand to place in a heating unit when he felt a pain in
his lower back which went down his leg to his knee, more on
the right than the left. Claimant said he got better and he
did his job but the back pain never completely went away.
Claimant returned to work with no restrictions and no loss
of time.

Claimant said his symptoms increased on July 28, 1989,
after he had been adjusting a heat exchanger in a heating
unit by aligning some screws and while in a bent over
position. He returned again to Ron K. Dunham, D.C., for
treatments. Claimant said he obtained some but not total
relief of his symptoms. The doctor made the same diagnosis
as he did in February of 1989, namely, muscle sprain. Dr.
Dunham did not take x-rays this time either. Claimant lost
no time and returned to his same job with no restrictions.

On April 1, 1990, claimant was transferred to the
automatic punch press, which required changing 500 to 1800
pound dies on the press depending on the particular part to
be made. Claimant said he used a hoist to put the dies in
the roller but there is pushing and pulling required to get
them in or out of the machine. Claimant related that around
the second week in April, the pain occurred again. He could
not relate a particular day or hour as he continued to work
as usual. Over the Easter weekend (Easter Sunday was April
15, 1990), claimant's symptoms became worse and he went to
the company nurse on April 18, 1990, to seek treatment.
Claimant related the nurse gave him an option of filling out
a workers' compensation form or going through his health
insurance and going to his own doctor instead of the company
doctor. Claimant indicated since he did not get complete
relief from Dr. Dunham, who took no x-rays, he thought he
would go to his doctor. Claimant went to Lloyd L. Cutler,
D.C., on April 19, 1990, and received nineteen treatments in
April, May and June of 1990. Claimant said he got temporary
relief but one-half hour after treatment, the back pain
returned. Joint exhibit 9, page 10, reflects the employee's
first aid record indicating an office visit on April 18,
1990. These notes reflect that claimant indicated his pain
started on the Easter weekend and that his back hurt two or
three weeks before and the pain went away until that Easter
weekend. At that time, claimant told the nurse that he did
not know what he did to cause the pain but that it had just
started hurting.

Page 3

On June 15, 1990, the company nurse recommended
claimant see his family doctor, David L. Thomas, Jr., M.D.,
who took x-rays. The x-rays were negative. Claimant then
was given a CT scan which showed a ruptured disk at L5-S1.
Dr. Thomas' notes on June 15, 1990, reflect that claimant
denied a specifically known injury and that he was not sure
exactly where he got hurt - whether at work or at home.
Claimant could not remember any specific injury (Jt. Ex. 13,
p. 15). It is this exhibit and the prior exhibit
specifically that defendants rely heavily on to show
claimant was not injured on April 9, 1990, and that if there
was an injury on or around that time, it was not work
related (Jt. Ex. 13, p. 15). Joint exhibit 15, page 17, is
Dr. Thomas' report of July 30, 1990, indicating claimant's
injury at work happened a year ago, which would have been in
reference to the July 27, 1989 injury. Joint exhibit 29
shows claimant had an L5-S1 diskectomy on July 16, 1990.

Joint exhibit 12 reflects an October 12, 1990 letter in
which Dr. Cutler wrote to claimant's attorney indicating he
was unable to ascertain the exact cause of his injury
although he thought it related to his work routine.

Joint exhibit 36 reflects a November 20, 1990 letter
from Carl O. Lester, M.D., in which he gave claimant a 12
percent permanent impairment as a result of his L5-S1
laminectomy that he performed on claimant on July 16, 1990.
Nothing in this letter indicates the cause of claimant's
surgery or injury. Obviously, a follow-up letter to the
doctor from claimant's attorney, Dr. Lester, on November 26,
1990, causally connects claimant's sequence of events that
led up to his surgery and the surgery itself and subsequent
office visits to claimant's original injury in which he
lifted a furnace blower and felt a back pain. This would
have to be referring to the February 17, 1989 injury (Jt.
Ex. 37). The letter that claimant's attorney wrote to the
doctor on November 20, 1990 is defendants' exhibit A, page
12. There is at least a page of the letter missing. The
question arose as to whether Dr. Lester had all of the
medical history of the claimant. Claimant pointed out in
the letter that there were various attachments relating to
claimant's history and that the doctor did in fact have
adequate information. Since the defendants' exhibit is not
complete as far as the total pages of the November 20, 1989
letter and claimant did not have this as an exhibit in its
entirety, it is hard for the undersigned to determine the
full or entire situation. Claimant has the burden of proof.

The undersigned is concerned by the doctor's comment
that the original injuries started the entire sequence of
events. There has been no denial that two injuries
occurred, February 1989 and July 1989, that arose out of
claimant's employment, but it appears undisputed that the
claimant returned back to work and at least as of April 1,
1990, there was no permanent impairment no restrictions nor
any permanent disability. Claimant lost no work and
continued to perform his job. Claimant testified that he
never completely got over his pain and, other than his testi
mony and subjective comments, there is no other real
evidence that there is any residue from these other

Page 4

injuries. At least, it is undisputed there was no
permanency contended by the claimant until at least the
April 9, 1990 incident allegedly occurred.

In looking at joint exhibit 39, dated December 18,
1990, the doctor appears to be attempting to reaffirm his
original position as to causally connecting claimant's
injury to his current problems and resulting surgery, but he
refers to what claimant told him and in reviewing his
injury, he referred to the fact that claimant injured
himself over a year ago and did not simply get over the
original injury. As the undersigned indicated earlier, he
thought the doctor originally was referring to an original
injury of February 17, 1989, but it would appear now that he
might be referring to an injury of July 1989, which would be
approximately a year and a half ago and not February 1989,
almost two years ago. Claimant testified that on the side
he does work on automobiles, performing mechanical work for
pay for various individuals. There is also evidence that he
did some bowling. It would seem that claimant under the
facts of this case could be more specific as to when in fact
he occurred an injury or an aggravation of a prior injury,
or a specific trauma itself, in April 1990. It would also
seem that claimant could be more certain as to whether he
incurred it at home or at work. It is obvious he was not
sure. Defendants' exhibit A, page 10, indicates that the
claimant was not sure of the nature of his injury or illness
as he didn't mark whether it was at work or otherwise.
Joint exhibit 13 shows the notes of June 15, 1990, which
indicates claimant came in that day complaining of back
problems beginning early in 1990.

This is a difficult and a close call case. The
claimant has the burden to prove an injury arose out of and
in the course of his employment and, that there is causal
connection to claimant's alleged disability and the alleged
injury. The undersigned does not believe that the
claimant's current problems are causally connected to either
the February or July 1989 work injuries and that those two
work injuries did not result in any permanent impairment or
disability. The undersigned finds that the claimant has
failed in his burden to prove that whatever is currently
causing his problems surfaced sometime in the first fourteen
days of April 1990, and that the undersigned does not know,
just like the claimant does not know, whether they were work
or nonwork related or what specifically brought about
claimant's complaint. There is nothing with medical
certainty from any chiropractor, who performed considerable
services on the claimant, and the undersigned questions Dr.
Lester's ability, based on the record presented herein, to
causally connect claimant's current complaints to a February
1989 injury. Dr. Lester, who became involved around June of
1990, is relying heavily on the subjective history given to
him by the claimant. The undersigned, therefore, finds that
claimant has failed in his burden of proof and recovers
nothing further from these proceedings and that due to the
nature of this decision, claimant is not entitled to any
86.13 penalty benefits.

Page 5

conclusions of law

Claimant has the burden of proving by a preponderance
of the evidence that he received an injury on April 9, 1990,
which arose out of and in the course of his employment.
McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa
1976); Musselman v. Central Telephone Co., 261 Iowa 352, 154
N.W.2d 128 (1967).

The claimant has the burden of proving by a
preponderance of the evidence that the injury of April 9,
1990, is causally related to the disability on which he now
bases his claim. Bodish v. Fischer, Inc., 257 Iowa 516, 133
N.W.2d 867 (1965). Lindahl v. L. O. Boggs, 236 Iowa 296, 18
N.W.2d 607 (1945). A possibility is insufficient; a
probability is necessary. Burt v. John Deere Waterloo
Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955). The
question of causal connection is essentially within the
domain of expert testimony. Bradshaw v. Iowa Methodist
Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960).

However, expert medical evidence must be considered
with all other evidence introduced bearing on the causal
connection. Burt, 247 Iowa 691, 73 N.W.2d 732. The opinion
of experts need not be couched in definite, positive or
unequivocal language. Sondag v. Ferris Hardware, 220 N.W.2d
903 (Iowa 1974). However, the expert opinion may be
accepted or rejected, in whole or in part, by the trier of
fact. Id. at 907. Further, the weight to be given to such
an opinion is for the finder of fact, and that may be
affected by the completeness of the premise given the expert
and other surrounding circumstances. Bodish, 257 Iowa 516,
133 N.W.2d 867. See also Musselman, 261 Iowa 352, 154
N.W.2d 128.

It is further concluded that:

Claimant incurred an injury on February 17, 1989, that
arose out of claimant's employment. As a result of said
injury, claimant did not incur any permanent disability or
impairment, restrictions, or loss of income.

Claimant incurred an injury on July 27, 1989, that
arose out of claimant's employment. As a result of said
injury, claimant did not incur any permanent disability or
impairment, loss of work, or loss of income.

Claimant did not incur an injury on April 9, 1990,
which arose out of and in the course of his employment.

Claimant's alleged medical complaints, disability and
surgery in 1990 were not caused by a work injury on April 9,
1990.

Claimant is not entitled to any 86.13 penalty benefits.

Claimant is not entitled to anything further in these
proceedings, as defendants have paid all medical bills and
have paid claimant all benefits to which he is entitled as

Page 6

of the date of the hearing.

ORDER

THEREFORE, it is ordered:

That claimant takes nothing further from these
proceedings.

That defendants pay the costs of these proceedings.

Signed and filed this ____ day of December, 1991.

______________________________
BERNARD J. O'MALLEY
DEPUTY INDUSTRIAL COMMISSIONER

Copies to:

Mr Max Schott
Attorney at Law
6959 University Ave
Des Moines IA 50311

Mr D Brian Scieszinski
Attorney at Law
801 Grand Ave Ste 3700
Des Moines IA 50309

Page 1

BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
:
MARY M WAKEFIELD, :
:
Claimant, :
:
vs. :
: File No. 953015
VOGEL POPCORN COMPANY d/b/a :
GOLDEN VALLEY MICROWAVE, :
: A R B I T R A T I O N
Employer, :
: D E C I S I O N
and :
:
LUMBERMAN'S UNDERWRITING :
ALLIANCE, :
:
Insurance Carrier, :
Defendants. :
___________________________________________________________

STATEMENT OF THE CASE

This is a proceeding in arbitration brought by Mary
Wakefield seeking benefits based upon an alleged injury of
April 24, 1990. She seeks compensation for healing period
and permanent disability. She seeks to recover medical
expenses. Her claim includes an allegation that she
sustained a physical injury which in turn produced a
psychological injury.

The primary issues to be determined are whether the
claimant sustained an injury which arose out of and in the
course of employment. Both the occurrence of any physical
injury as well as any physical injury having proximately
caused any psychological injury are disputed. With regard
to the medical expenses, there is an issue with regard to
whether all of the treatment which has been provided,
particularly that most recently provided, was reasonable.

The case was heard at Council Bluffs, Iowa, on March 9,
1993. The evidence consists of testimony from Mary
Wakefield, Brian Vannatta, Doug McMahon, and Lynn Ferguson.
The record also contains jointly offered exhibits 1 through
20.

FINDINGS OF FACT

Mary Wakefield is a 38-year-old woman who has held a
variety of employments in her life. She dropped out of
school after completing the eighth grade and married at age
15. That marriage ended by the death of the husband in a
tragic accident. Mary has experienced a remarkable number
of tragedies during her lifetime.

Mary has a history of substance abuse, depression,
panic attacks, and agoraphobia. The record in this case

Page 2

shows Mary to have been diagnosed with left shoulder
tendonitis on October 4, 1988. She was treated with an
injection and medication (exhibit 9j). She was off work for
approximately one week in early February 1990 due to a low
back strain. The records show that she sought treatment
again on May 9, 1990, for a left shoulder problem which the
doctor felt was probably work related. She was seen again
on May 25, 1990, with back and left shoulder complaints (ex.
9j).

Mary testified at hearing that in early February 1990,
she had back complaints which came on following bowling on a
Saturday night but then resolved. Mary attributes her
current complaints to lifting and twisting at work with a
particular incident having occurred on April 24, 1990.
There were no witnesses who confirmed the occurrence of any
incident on or about April 24, 1990. The incident was not
reported until the following Sunday evening. The
description of Mary's work was such that it is not the type
of work which would be expected to produce serious or
substantial injury. It does require repetitive activity and
moderate exertion.

Mary initially was treated by T.H. Largen, M.D., her
family physician. On April 30, 1990, he reported that she
would be off work due to a sacroiliac strain for a week and
would then be expected to be on light duty for two weeks
(ex. 9i). On May 25, 1990, however, he reported she could
not resume regular duty and released her to perform light
duty indefinitely (ex. 9h). On June 14, 1990, he again
reported that she was not able to resume regular duty and
would be on light duty indefinitely (ex. 9f). By September
25, 1990, Dr. Largen reported that claimant's response to
treatment had been poor and that no further treatment was
indicated except passage of time and medication.
Nevertheless, he did not expect any long-term permanent
impairment (ex. 9e).

Mary attempted to resume work in mid-May, but did not
provide her supervisor with her restricted release from her
doctor (ex. 17). She apparently worked 10 hours on May 14,
three hours on May 15, approximately six or seven hours on
May 16, and five and one-half hours on May 17. She worked
on May 21 but has not worked since (ex. 17).

There is a dispute in the record regarding whether or
not light duty was available. On May 30, 1990, Mary made a
written request for a personal leave of absence (ex. 16).

May has been extensively evaluated. MRI and CT scans
have been conducted. None have shown any evidence of a
substantial, recent, acute injury though conditions of
long-standing origin such as disc degeneration at the L4-5
disc level, sacralization at the L5-S1 level and the
mineralization at the T-12 level of Mary's spine have been
identified (exs. 6a-e). Mary was evaluated by Michael J.
Morrison, an orthopedic surgeon, on July 3, 1990. In his
report he stated that she had reached maximum medical
improvement, that no further treatment was necessary other

Page 3

than muscle strengthening, flexibility exercises and
over-the-counter medications. He saw no reason to restrict
her activities and expected no long-term permanent
impairment (ex. 8).

When she was examined by orthopedic surgeon Thomas C.
Bush, M.D., on September 4, 1990, he could find nothing
wrong with her but did note that she made complaint of a lot
of pain and suspected that there could be a psychological
overlay (ex. 7).

Mary has been evaluated and treated by orthopedic
surgeon Timothy C. Fitzgibbons, M.D., since early 1991. He
diagnosed her as having a chronic lumbosacral strain, upper
back pain which was probably related to her lower back
strain and with a possible thoracic strain. He also found
her to have left shoulder impingement syndrome. In a report
dated March 5, 1991, he stated that the most likely cause of
her problems was repetitive activity at work. In a report
dated September 20, 1991, he noted that she had not improved
with therapy. He also stated that his opinion on causation
was based upon her statements that she had not had prior
problems (ex. 4). Dr. Fitzgibbons rated claimant as having
a 7 percent permanent impairment to the body as a whole due
to her back and shoulder problems.

Mary was also evaluated by Peter M. Cimino, M.D. He
diagnosed her as having chronic lumbar spondylosis. He
stated that it was difficult to determine whether the
symptoms which she related to him were truly due to a back
injury (ex. 10).

In early 1993 Mary was also evaluated by Jay J. Parsow,
a physiatrist. Dr. Parsow found several conditions which he
indicated were probably work related (ex. 3). Dr. Largen
has concurred with the assessment made by Dr. Parsow (ex.
9).

Mary has also been evaluated and treated for her
psychological problems. Cathy Peters-Midland reported on
October 22, 1991, that Mary is afflicted with situational
depression which appears to be due to back and shoulder pain
as well as financial stress from being unemployed and being
denied workers' compensation benefits (ex. 2).

Psychiatrist David G. Windsor, M.D, reported that Mary
has at least a 10 percent permanent partial impairment on
psychiatric grounds resulting from her injury while she was
employed by Vogel Popcorn. He felt that her work had been
somewhat beneficial to her in that being unable to work
aggravated her psychiatric symptomatology (ex. 1).

Mary was evaluated by Timothy Patterson, D.O. Dr.
Patterson indicated that Mary experienced a great deal of
anxiety regarding returning to work, that the circumstances
of her original injury had become personalized and that,
when combined with the problems she was having at home and
with her children, interfered with her ability to return to
work. He reported that she clearly wants to be pampered and
needs to feel that her original injury was, in fact,

Page 4

legitimate. He found it difficult to support the claim that
she had suffered any psychological injury (ex. 11).

Mary has had considerable problems with her two older
children. Her son has been in prison. Her daughter has
been hospitalized. At about the time of the alleged injury,
Mary was preparing for her daughter to be released from a
hospital setting in order to live with her.

As previously noted, Mary's work was not the type of
thing which would be expected to cause any substantial or
significant injury. Like many types of work it appears to
have the propensity to produce strains, aches and pains
which normally resolve in a matter of a few days or perhaps
weeks. There is nothing in the record of this case, other
than Mary's own stated complaints, which indicates that
whatever happened on or about April 24, 1990, produced any
long-standing physical injury. Objective diagnostic tests
have shown some abnormalities but all those abnormalities
were not the types of things which would develop in a short
period of time and likely preexisted. Mary is of slight
physical build and if would not be unexpected for her to
have difficulty performing moderately heavy physical labor.
Nevertheless, the weights described in the record of this
case do not appear to be anything which would be expected to
cause her a problem. It is particularly noted that Mary
testified to having problems subsequently when performing
activities such as carrying plates of food when she
attempted a part-time job.

It is found that Mary did sustain some type of a strain
injury, possibly to her back or possibly to her left
shoulder, on or about April 24, 1990. Her first day of
absence from work was April 30, 1990. It is further found
that the injury had resolved by May 14, 1990, when she
returned to work. She is therefore entitled to recover
temporary total disability compensation running from May 3,
1990 through May 13, 1990, a span of 1 4/7 weeks, pursuant
to section 85.33.

In the hearing report the parties stipulated that her
gross earnings were $155 per week and that she was single
and entitled to four exemptions. The stipulated rate of
$113.91 is found to be correct.

The events of April 24, 1990, which Mary described have
been found to be correct. Dr. Largen recommended that she
be off work in order to allow her strain injury to resolve.
From the record in this case, there is a considerable
question with regard to whether or not the doctors treating
the physical injury were aware of Mary's psychological
history. It is interesting to note that Dr. Bush has noted
the possibility of some type of psychological overlay (ex.
7).

The evidence from Dr. Patterson seems to provide that
best explanation of what has transpired in this case.
Simply stated, Mary sustained a minor strain type of injury
and then, due to her psychological condition, focused on
what she perceived to be a significant injury, though it was

Page 5

not, and she now believes herself to be physically disabled.
Mary is disabled. The disability is from her psychological
condition, not from any physical injury that occurred on or
about April 24, 1990. The psychological disability does not
have any substantial basis in the April 24, 1990 injury.
That injury merely provided the setting in which the
preexisting psychological condition manifested itself.

The opinions of those physicians who have related
substantial permanent physical disability to the April 24,
1990 injury, appear to have done so without understanding
Mary's underlying psychological history. Their opinions are
therefore given little weight. The opinions of Dr. Windsor
appear to be based upon the assumption that Mary sustained a
substantial physical injury. Accordingly, his opinion which
relates her psychological disability to the work place
injury is rejected as is the opinion of Cathy Peters-Midland
regarding causation. As indicated by Dr. Cimino, there is a
serious question with regard to whether or not the symptoms
Mary experiences are due to any injury to her back. The
greater likelihood is that they have their origin in her
psychological makeup. As indicated by Dr. Patterson, what
has transpired is most likely the manifestation of Mary's
preexisting psychological condition. There is no good
evidence showing that she sustained a psychological injury,
even in the context of an aggravation of a preexisting
condition, as a result of the April 24, 1990 incident.

It is further found that Mary's psychological status is
a factor in her continued physical complaints. It is
particularly noted that the complaints have expanded since
the time of the original injury and have not improved with
any of the treatment which has been provided to her. There
is a substantial possibility that Mary was anxious about her
relationship with Brian Vannatta and also with anticipation
of her daughter's arrival for the summer of 1990. Mary has
demonstrated a practice of focusing on physical complaints
and developing anxiety over her physical complaints. At
hearing she expressed fear of her degenerative disc disease
eventually causing death, yet the medical evidence in the
case shows her degenerative condition to be mild. The
undersigned is unaware of degenerative disc disease every
causing death in anyone, though such an occurrence could
very well be possible through some complication.

It is found that Mary's work probably produced a minor,
temporary physical injury as previously been determined in
this decision. It is further found that the work and work
injury did not play a substantial role in causing or
aggravating any psychological condition or disability. The
physical injury was minor. It did not produce any permanent
disability. In view of those facts it is extremely unlikely
that it could have produced any psychological injury. The
greater likelihood is that Mary was developing anxiety which
manifested itself over the weekend of April 29, 1990. It is
most probable that the work place and work injury merely
provided that setting in which the psychological condition
manifested itself. It should be noted that the undersigned

Page 6

has serious doubt concerning the actual occurrence of any
physical injury, but the undersigned finds Mary to be honest
with regard to her testimony describing the incidents of
April 24, 1990. The events that transpired thereafter,
however, were greatly influenced by her underlying
psychological condition.

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. McDowell v. Town of Clarksville, 241 N.W.2d
904 (Iowa 1976); Musselman v. Cent. Tel. Co., 261 Iowa 352,
154 N.W.2d 128 (1967). The words "arising out of" refer to
the cause or source of the injury. The words "in the course
of" refer to the time, place and circumstances of the
injury. Sheerin v. Holin Co., 380 N.W.2d 415 (Iowa 1986);
McClure v. Union County, 188 N.W.2d 283 (Iowa 1971).

A personal injury contemplated by the workers'
compensation law means an injury, the impairment of health
or a disease resulting from an injury which comes about, not
through the natural building up and tearing down of the
human body, but because of trauma. The injury must be
something which acts extraneously to the natural processes
of nature and thereby impairs the health, interrupts or
otherwise destroys or damages a part or all of the body.
Although many injuries have a traumatic ll recognized that a traumatically induced
psychological injury is compensable. Leffler v. Wilson &
Co., 320 N.W.2d 634 (Iowa App. 1982); Dever v. Armstrong
Rubber Co., 170 N.W.2d 455 (Iowa 1969). The same is true
when the trauma aggravates a preexisting mental condition.
Coughlin v. Quinn Wire and Iron Works, 164 N.W.2d 848 (Iowa
1969). When, however, the work place merely provides the
setting in which the psychological condition manifests
itself, the result is not compensable. Newman v. John Deere
Ottumwa Works of Deere & Co., 372 N.W.2d 199 (1985). An
imagined injury cannot, as a matter of law, form the basis
of a compensable psychological injury.

In this case, it is found that the physical injury did
not produce a psychological injury, to the contrary, the
claimant's preexisting mental status prevented her from
recovering from what appears to have been a very minor
temporary injury.

It should be noted that an employer's policy of setting
some specific time within which injuries are to be reported,
has no effect upon the statutory right of the employee to
receive compensation for an injury. Since employee's cannot
contract to surrender their statutory rights, it is
abundantly clear that an employer cannot, through a
unilaterally imposed policy, deny an employee the rights
provided by chapter 85 of the Code (section 85.18).

The treatment which claimant received with Dr. Largen
is found to have been reasonable. Defendants are therefore
responsible for payment of his charges in the amount of
$679. The other treatments are not shown to have been
caused by any work place injury. Defendants are therefore
not required to pay any of the other medical expenses which
claimant seeks to recover.

Claimant's entitlement to temporary total disability

Page 8

compensation under section 85.32 and 85.33 is determined by
April 30 being the first day of disability and May 13 being
the last with a return to work on May 14. This is a span of
two weeks. Since the compensation begins on the fourth day
of disability, benefits are payable commencing May 3 and
running through May 13, a span of 1 3/7 weeks.

ORDER

IT IS THEREFORE ORDERED that defendants pay Mary
Wakefield one and three-sevenths (1 3/7) weeks of
compensation for temporary total disability at the
stipulated rate of one hundred thirteen and 91/100 dollars
($113.91) per week payable commencing May 3, 1990. The
entire amount thereof is past due and owing and shall be
paid in a lump sum together with interest pursuant to Iowa
Code section 85.30.

It is further ordered that defendants pay claimant's
medical expenses from Medical Clinic, P.C., in the amount of
six hundred seventy-nine dollars ($679).

It is further ordered that the costs of this action are
assessed against defendants pursuant to rule 343 IAC 4.33.

Signed and filed this ____ day of March, 1993.

______________________________
MICHAEL G. TRIER
DEPUTY INDUSTRIAL COMMISSIONER

Copies to:

Mr. Sheldon Gallner
Attorney at Law
803 3rd Ave.
PO Box 1588
Council Bluffs, Iowa 51502

Ms. Carol Knoepfler
Mr. Kirk S. Blecha
Attorneys at Law
1500 Woodmen Tower
Omaha, Nebraska 68102

Page 1

51108.2; 51402.20; 51402.30;
52206; 51801
Filed March 30, 1993
Michael G. Trier

BEFORE THE IOWA INDUSTRIAL COMMISSSIONER
____________________________________________________________

MARY M WAKEFIELD,

Claimant,

vs.
File No. 953015
VOGEL POPCORN COMPANY d/b/a
GOLDEN VALLEY MICROWAVE,
A R B I T R A T I O N
Employer,
D E C I S I O N
and

LUMBERMAN'S UNDERWRITING
ALLIANCE,

Insurance Carrier,
Defendants.
___________________________________________________________

51108.2 51402.20 21402.30 52206 51801

Claimant sustained a minor strain type of injury. She also
had a preexisting mental condition which manifested itself
at about the time she was experiencing the work injury.
There is a very substantial question about whether there had
been any physical injury but that question was resolved in
favor of the claimant. It was found that the mental
condition prevented the claimant from recovering from her
minor injury. She was awarded two weeks temporary total
disability. Her claim for permanent disability was denied.

BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
EARL LOVE, :
:
Claimant, :
: File Nos. 953048
vs. : 1003230
: 1054174
VIKING PUMP, :
A R B I T R A T I O N
Employer, :
: D E C I S I O N
and :
:
LIBERTY MUTUAL INSURANCE :
COMPANY, :
:
Insurance Carrier, :
Defendants. :
____________________________________________________________

STATEMENT OF THE CASE

This is a consolidated contested case proceeding upon
petitions in arbitration filed by claimant Earl Love against
his former employer, Viking Pump, and its insurance carrier,
Liberty Mutual Insurance Company.

This litigation has featured and continues to feature
wildly eccentric procedure. In file number 953048, Mr. Love
alleged a work injury to his right leg on June 4, 1990. In
file number 1003230, he alleged an injury to the "body as a
whole" on January 10, 1991. This petition was apparently
based on a cumulative trauma theory of injury.

These two files were consolidated and came on for
hearing in Waterloo, Iowa on November 29, 1993. Paragraph
one of the hearing assignment order required defendants to
file a first report of injury prior to hearing or face a
specific sanction: closing of the record to further evidence
or activity. Defendants failed to file a first report in
case number 1003230. As a result, that sanction was
imposed.

Claimant thereupon offered an amended petition which
sought to allege an alternative injury date of October 18,
1988. This, of course, was totally improper. Under rule
343 IAC 4.6, a separate date of injury must be alleged and a
separate original notice and petition filed on account of
each claimed injury. It is proper to amend a petition to
allege a different injury date, but not to allege multiple
dates in the alternative.

The amendment had actually been filed in the
commissioner's office on November 18 (11 days before trial),

Page 2

but the document had not been matched with the file.
Notwithstanding the last minute nature of the amendment,
defendants insisted they were not prejudiced and eagerly
waived further notice. Not coincidentally, defendants
produced a first report of injury relative the 1988 injury
claimed, which involved a single traumatic incident. In the
belief (later proved mistaken) that this first report had
actually been filed, the hearing deputy rescinded the
imposition of sanctions. It has since been discovered that
the first report was never filed in the commissioner's
office, but acceptance of the first report at hearing will
be deemed compliance. This decision orders the Division of
Industrial Services to establish a litigated file under
number 1054174.

The record consists of joint exhibits 1-16 and 18-21,
along with the testimony of claimant, David Love, Gale Sells
and Daniel Frommelt. The unnecessarily voluminous exhibits
included multiple copies of numerous documents. Attorneys
Robert Fulton and Kevin Rogers are referred to Iowa Code
section 17A.14(1) and paragraph nine of the standard hearing
assignment order for guidance in future litigation before
this agency.

ISSUES

In file number 953048, the parties stipulated to the
following:

1. Claimant sustained injury arising out of
and in the course of employment on June 4,
1990;

2. The injury caused temporary disability,
the extent of which is no longer in dispute;

3. The injury caused permanent disability
equivalent to a seven percent loss of the
right leg;

4. The proper rate of weekly compensation
is $298.99;

5. Medical benefits are no longer in
dispute; and,

6. Defendants are entitled to credit
against an award of permanent disability
totalling $4,604.45.

The parties presented no issues for resolution under
this file number, as claimant seeks no further benefits.
However, as shall be seen, the parties stipulation as to the
extent of permanent disability is rejected in this decision.

In file number 1003230, the parties stipulated to the
following:

1. An employment relationship existed at
the time of the alleged injury;

Page 3

2. Permanent disability, if any, should be
compensated industrially;

3. The commencement date for permanent
disability benefits is August 19, 1991;

4. Claimant had average gross weekly
earnings of $482.00, was single and entitled
to three exemptions on the date of injury;

5. Entitlement to medical benefits is no
longer in dispute; and,

6. Defendants are entitled to credit for
voluntary payment of benefits totalling
$32,408.02.

Issues presented for resolution include:

1. Whether claimant sustained injury
arising out of and in the course of
employment;

2. Whether the injury caused temporary or
permanent disability;

3. The extent of permanent disability, if
any; and,

4. Whether the claim is barred by failure
to give timely notice under Iowa Code
section 85.23.

Based on the above foundational facts, the parties
calculated the weekly compensation rate at $298.99. The
rate tables published by the commissioner and in effect on
the date of injury show that an individual so situated is
entitled to a benefit rate of $299.00. That rate is hereby
established as the correct rate.

Because of the unique manner in which the 1988
(1054174) claim was presented, the parties did not prepare a
hearing report outlining issues. This decision will
consider the following issues:

1. Whether an employment relationship
existed between claimant and Viking Pump on
October 19, 1988;

2. Whether claimant sustained injury
arising out of and in the course of
employment;

3. Whether the injury caused permanent
disability; and,

4. The nature and extent of permanent
disability, if any.

Page 4

It will be assumed that claimant was also single and
entitled to three exemptions on October 19, 1988. The first
report of injury accepted for filing reflects gross weekly
wages of $447.60 (40 hours at a wage of $11.19). The rate
tables in effect at that time show that the proper
compensation rate is $279.28, which is hereby adopted as the
correct rate.

FINDINGS OF FACT

The undersigned deputy industrial commissioner finds:

Earl Love, 39 years of age at hearing, is a 1973 high
school graduate. Even though Mr. Love was awarded a high
school diploma, testing indicates that he is functionally
illiterate. Mr. Love's intelligence falls into the
borderline classification, between retarded and low normal.
Except for a six-month welding course in approximately 1975
(a skill claimant has not used vocationally), he has no
further academic or technical training.

Claimant's work history consists of employment in
several factories and a brief stint as a youth worker in a
now-discontinued community program. He was employed by
Viking Pump, a manufacturing facility, from August 21, 1978
through June 8, 1992, when he was discharged due to the
employer's inability to offer work compatible with medical
restrictions.

At Viking, claimant operated a number of machines,
including drills, grinders and milling machines. From 1984
through 1991, claimant operated a rotor, idler mill, a job
that required substantial bending, twisting and reaching,
along with manipulating parts weighing as much as 150
pounds.

Claimant is a large man, over six feet tall and
weighing in the vicinity of 300 pounds. As early as 1977
x-rays disclosed spondylolisthesis, or a 1/2 centimeter
forward displacement of L5 on S1.

Claimant also has a bad right knee, which has twice
been the subject of arthroscopy surgery. The more recent
procedure took place after the 1990 injury in file number
953048. The knee has suffered arthritis, cartilage damage
and aseptic necrosis. The knee very likely will require a
prosthetic replacement at some future time. As will be
discussed below, medical restrictions imposed by claimant's
treating orthopedic specialist relate both to claimant's
back and right knee.

Claimant was injured on October 19, 1988, when he
slipped over a pallet and a piece of equipment fell on his
leg. Claimant testified to an injury to the right leg, but
the initial treating physician, Jay W. Keiser, M.D.,
reported injury to the left leg (although the "aching" went
up into the left hip and also reportedly bothered the right
leg). Dr. Keiser reported subjective tenderness over the
sciatic nerve, particularly on the right side. Initial
assessment was of musculoskeletal back pain. According to

Page 5

the first report of injury, claimant did not lose time from
work.

Dr. Keiser then referred claimant to Dr. Delbridge, a
board certified orthopedic surgeon who testified by
deposition on January 27, 1993. Dr. Delbridge was the
primary treating physician for this injury, and also
claimant's subsequent right knee injury (953048).

Dr. Delbridge first saw claimant for this problem on
November 14, 1988, and charted complaints of pain in the
back down into the left thigh and calf. Clinical diagnosis
following x-ray studies was of low back pain with
spondylosis at L4 and 5 and probable mild spondylolisthesis
at L5-S1. Dr. Delbridge also ordered a magnetic resonance
imaging study which disclosed a probable left-sided
herniated disc at L5-S1. This study was consistent with
claimant's report of a tingling sensation at the bottom of
the left foot. Dr. Delbridge correctly notes that claimant
is unlikely to have the medical sophistication to realize
the consistency of this subjective complaint. Claimant was
returned to work with general light duty restrictions,
including a 20 pound lifting restriction and limitation to a
40-hour week. Mr. Love continued working with similar
restrictions until injuring his right knee in 1990. This
injury resulted in a second arthroscopic procedure at the
hands of Dr. Delbridge and permanent impairment. Dr.
Delbridge assigned a 20 percent impairment to the leg, seven
percent of which was attributable to the 1990 injury, which
aggravated a preexisting condition.

In file number 1003230, claimant alleges a back injury
on January 10, 1991. As it happens, he was seen by Dr.
Delbridge on that date. The entire chart note follows:

Earl was seen. He is getting by. He is working.
He has a little catching in his knee, a little
catching in his back, but is getting by. We will
see him in about 2 months.

The evidence does not show that claimant sustained a
work injury on January 10, 1991.

Dr. Delbridge eventually concluded that as a result of
the combined knee and back injuries, claimant would be
unable to return to Viking Pump in the foreseeable future.
He rated impairment as the result of the back injury at 12
percent of the body as a whole. Absent significant
preexisting problems, he attributed that entire impairment
to the work injury of October 18, 1988.

As to restrictions, Dr. Delbridge testified:

A. Mr. Love, if he were to do some type of
work at this point, would have to have fairly
stringent restrictions. He would have to avoid
repeated hard gripping because of his carpal
tunnel. Now, that would not preclude picking up
light objects or reaching for light objects or
even bending his wrist to some extent. But

Page 6

repeated hard gripping would likely get him into
problems. So I would recommend that he not do
repeated hard gripping.

He has a great deal of difficulty standing up.
There are days when he can't stand very well
because of his back. And he also has trouble
getting around because of his knee. I would
recommend that he stand no more than half an hour
at a time, and no more than two hours out of
eight.

And as far as sitting is concerned, he can sit
for one hour, but he is limited by his back. And
then he would have to get up and around a little
bit. he can sit six hours out of eight. He can
do only minimal walking.

He can occasionally lift ten pounds, but his
maximum lift is probably about 20. But he cannot
repetitively lift and carry. And he can't carry
because he can't walk very well because of his
knee. And he can't lift a lot because of his
back. He cannot squat at all because his knee
just does not allow it. It would immediately
swell, in all probability, if he did that. He
can't lift anything from below knee level. If he
did, he would probably get into trouble with his
back. And he certainly is not a candidate for
repetitive stooping, bending or twisting, as far
as his back is concerned.

(Delbridge Deposition, Pages 31 & 32)

The June 1990 knee injury involved a torn lateral
meniscus which Dr. Delbridge felt was probably related to
the work injury, and an aggravation of preexisting
conditions of chondromalacia, arthritis and aseptic
necrosis. However, sequela of the knee injury are much more
significant. The following uncontroverted testimony is of
crucial significance:

Q. Did his condition worsen then from March,
'89 until early '91, in regard to his back?

A. His back had some -- it came and went. But
his back never really worsened a lot, except as
related to his knee. And his knee worsened.

Q. Right.

A. And it caused him to limp. And he limped a
good deal. And when he started limping and he had
an abnormal gait, then that certainly aggravated
his back.

Q. Was it then more the knee problem than the
back problem that eventually forced him to leave
work?

Page 7

A. Well, it was both, but the knee problem did
play a significant role, because he -- because he
limped.

Q. We.., if the knee is causing the back
problems, it seems to me that the knee would be
the culprit here, if you will?

A. Well, no.

MR. FULTON: Just a minute, I am going to
object to this as being argumentative. And the
question has been asked and answered.

A. It didn't really cause the back problem,
because the back problem is his congenital
problems, plus his herniated disc. But it did
tend to aggravate his situation, because here's a
man who's a great big guy, who is overweight, who
has a bad knee, and some problems with his back,
including a herniated disc. And now he is walking
with an abnormal gait because his knee hurts.
And, yes, it did bother him.

(Delbridge Deposition, Pages 59-60)

Because claimant has no neurological deficit, Dr.
Delbridge does not recommend surgery. The knee will only
get worse, to result probably in a future prosthetic
replacement.

Page 8

Two vocational experts involved in this case agree that
without further training, there is little or any work that
claimant can now perform in the competitive labor market.
Claimant, both personally and through counsel, has requested
that training be provided. At one point, training at the
Hawkeye Institute of Technology was arranged, but funding
was withdrawn by defendants, allegedly because the agency
(by coincidence, this deputy) refused to order vocational
rehabilitation benefits under Iowa Code section 85.70 where
liability on the underlying claim remained disputed.

CONCLUSIONS OF LAW

The party who would suffer loss if an issue were not
established has the burden of proving that issue by a
preponderance of the evidence. Iowa R. App. P. 14(f).

I. January 10, 1991 (1003230)

No injury occurred on January 10, 1991. Claimant fails
to meet his burden of proof as to that alleged injury.

II. October 19, 1988 (1054174)

Page 9

Claimant's testimony and the contemporaneous medical
records established that he sustained injury in a fall at
work on October 19, 1988.

Since claimant has an impairment to the body as a
whole, an industrial disability has been sustained.
Industrial disability was defined in Diederich v. Tri-City
Ry. Co., 219 Iowa 587, 258 N.W.2d 899 (1935) as follows: "It
is therefore plain that the legislature intended the term
'disability' to mean 'industrial disability' or loss of
earning capacity and not a mere 'functional disability' to
be computed in the terms of percentages of the total
physical and mental ability of a normal man."

Functional impairment is an element to be considered in
determining industrial disability which is the reduction of
earning capacity, but consideration must also be given to
the injured employee's age, education, qualifications,
experience, motivation, loss of earnings, severity and situs
of the injury, work restrictions, inability to engage in
employment for which the employee is fitted and the
employer's offer of work or failure to so offer. Olson v.
Goodyear Serv. Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963);
McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980);
Barton v. Nevada Poultry Co., 253 Iowa 285, 110 N.W.2d 660
(1961).

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.

Following the 1988 back injury, claimant returned to
light duty work with a 20 pound lifting restriction and a
restriction against working overtime. The lifting
restriction alone would have foreclosed claimant from many
of the jobs he had previously performed, but did not result
in permanent total disability because claimant continued to
work in gainful and productive employment. Considering the
factors set forth above, it is concluded that claimant
sustained an industrial disability attributable to the 1988
back injury equivalent to 20 percent of the body as a whole,
or 100 weeks.

III. June 4, 1990 (953048)

Although the parties stipulated only to a leg injury,
Dr. Delbridge's testimony establishes that the injury to
claimant's knee aggravated Mr. Love's preexisting back
condition, resulting in much more onerous medical
restrictions. The aggravation of claimant's back injury, as
a sequela of the knee injury, extends that injury into the
body as a whole. Therefore, the entire injury is to be
compensated industrially.

While a claimant is not entitled to compensation for
the results of a preexisting injury or disease, its mere
existence at the time of a subsequent injury is not a
defense. Rose v. John Deere Ottumwa Works, 247 Iowa 900, 76
N.W.2d 756 (1956). If the claimant had a preexisting

Page 10

condition or disability that is materially aggravated,
accelerated, worsened or lighted up so that it results in
disability, claimant is entitled to recover. Nicks v.
Davenport Produce Co., 254 Iowa 130, 115 N.W.2d 812 (1962);
Yeager v. Firestone Tire & Rubber Co., 253 Iowa 369, 112
N.W.2d 299 (1961).

Total disability does not mean a state of absolute
helplessness. Permanent total disability occurs where the
injury wholly disables the employee from performing work
that the employee's experience, training, education,
intelligence and physical capacities would otherwise permit
the employee to perform. See McSpadden v. Big Ben Coal Co.,
288 N.W.2d 181 (Iowa 1980); Diederich v. Tri-City Ry. Co.,
219 Iowa 587, 258 N.W. 899 (1935).

A finding that claimant could perform some work despite
claimant's physical and educational limitations does not
foreclose a finding of permanent total disability, however.
See Chamberlin v. Ralston Purina, File No. 661698 (App.
October 29, 1987); Eastman v. Westway Trading Corp., II Iowa
Industrial Commissioner Report 134 (App. 1982).

In Guyton v. Irving Jensen Co., 373 N.W.2d 101 (Iowa
1985), the Iowa court formally adopted the "odd-lot
doctrine." Under that doctrine a worker becomes an odd-lot
employee when an injury makes the worker incapable of
obtaining employment in any well-known branch of the labor
market. An odd-lot worker is thus totally disabled if the
only services the worker can perform are "so limited in
quality, dependability, or quantity that a reasonably stable
market for them does not exist." Guyton, 373 N.W.2d at 105.

The burden of persuasion on the issue of industrial
disability always remains with the worker. When a worker
makes a prima facie case of total disability by producing
substantial evidence that the worker is not employable in
the competitive labor market, the burden to produce evidence
of suitable employment shifts to the employer, however. If
the employer fails to produce such evidence and if the trier
of fact finds the worker does fall in the odd-lot category,
the worker is entitled to a finding of total disability.
Guyton, 373 N.W.2d at 106. Even under the odd-lot
doctrine, the trier of fact is free to determine the weight
and credibility of evidence in determining whether the
worker's burden of persuasion has been carried, and only in
an exceptional case would evidence be sufficiently strong as
to compel a finding of total disability as a matter of law.
Guyton, 373 N.W.2d at 106.

Except for a brief period doing youth work, a position
no longer available, claimant has worked his entire life in
factory jobs. His severe restrictions appear to foreclose
him from such work in the future. Illustrative is the
inability of Viking Pump to offer claimant further work,
even with the clear financial incentive this litigation
provides. He is functionally illiterate. His intelligence
does not suggest great potential for extensive retraining.
Indeed, defendants have offered no retraining whatsoever.
The mere fact that the agency cannot order 85.70 benefits

Page 11

before liability is established does not suggest that
defendants cannot provide rehabilitation on a voluntary
basis, especially where industrial disability may
potentially be reduced. As the result of claimant's injury
of June 4, 1990, he is at this time an odd lot employee
under a total industrial disability. Permanent total
disability benefits shall be awarded effective August 19,
1991, as the parties have stipulated. Permanent total
disability is not subject to apportionment. Permanent total
disability does not necessarily encompass the concept of
absolute perpetuity. If claimant at some future time
redevelops earning capacity, review-reopening is available
to defendants.

ORDER

THEREFORE, IT IS ORDERED:

In case number 1003230:

Claimant takes nothing.

In case number 1054174:

Defendants shall pay claimant one hundred
(100) weeks of permanent partial disability
benefits at the rate of two hundred
seventy-nine and 28/100 dollars ($279.28)
per week commencing October 19, 1988.

All accrued benefits shall be paid in a lump
sum together with statutory interest.

Costs are assessed to defendants.

In case number 953048:

Defendants shall pay claimant permanent
total disability benefits at the rate of two
hundred ninety-eight and 99/100 dollars
($298.99) per week commencing August 19,
1991 and continuing during such time as
claimant remains under a total industrial
disability.

Defendants shall have credit totalling
thirty-two thousand four hundred eight and
02/100 dollars ($32,408.02).

All accrued benefits shall be paid in a lump
sum together with statutory interest.

Costs are assessed to defendants.

Signed and filed this ____ day of April, 1994.

Page 12

________________________________
DAVID R. RASEY
DEPUTY INDUSTRIAL COMMISSIONER

Copies To:

Mr Robert D Fulton
Attorney at Law
6th Flr First National Bldg
PO Box 2634
Waterloo Iowa 50704

Mr Kevin R Rogers
Attorney at Law
528 W 4th Street
PO Box 1200
Waterloo Iowa 50704

2901; 1803.1; 1804; 1806; 2206
Filed April 6, 1994
DAVID R. RASEY

BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
EARL LOVE, :
:
Claimant, :
: File Nos. 953048
vs. : 1003230
: 1054174
VIKING PUMP, :
A R B I T R A T I O N
Employer, :
: D E C I S I O N
and :
:
LIBERTY MUTUAL INSURANCE :
COMANY, :
:
Insurance Carrier, :
Defendants. :
____________________________________________________________

2901; 1803.1; 1804; 1806; 2206
Consolidated contested case included a claimed leg injury in
1990 and a back injury in 1991. Defendants failed to file a
first report for the 1991 claim, so evidence and activity
was cut off pursuant to the hearing assignment order.
Claimant then sought to amend his petition to allege a 1988
back injury in the alternative. Defendants, who produced a
first report for the 1988 injury eagerly waived notice and
insisted that they were not prejudiced by the late
amendment.

Even though it is improper under current rules to allege
multiple injury dates in the alternative, the hearing deputy
rescinded the sanction against defendants and allowed
litigation to proceed on all three claims. Later, it was
discovered that the 1988 first report had never been filed,
but acceptance of the first report at hearing was deemed
compliance with paragraph one of the hearing assignment
order. The agency was ordered to set up a third litigated
file for the 1988 back injury.

It was eventually determined that the 1988 injury caused 20
percent industrial disability. Although claimant sought no
further relief at hearing in the 1990 leg injury claim, the
parties stipulation was rejected. It was found that altered
gait as a result of the leg injury aggravated claimant's

Page 2

preexisting back condition as a sequela, thus extending the
injury into the body as a whole. Claimant was determined to
be totally disabled under the odd lot theory in the 1990
claim. No 1991 injury was found.

The unnecessarily voluminous record contained numerous
duplicate copies of documents. Counsel were referred to
Iowa Code 17A.14(1) and paragraph nine of the standard
hearing assignment order for guidance in further litigation.