Page 1 before the iowa industrial commissioner ____________________________________________________________ : PAMELA J. WOLVER, : : Claimant, : : vs. : : File No. 954492 FRIENDSHIP MANOR CARE CENTER, : : 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 proceeding in arbitration brought by claimant, Pamela Wolver, against her former employer, Friendship Manor Care Center, and its insurance carrier, Liberty Mutual Insurance Company. Claimant has alleged a work-related injury occurring on February 16, 1990. The matter came on for hearing before the undersigned deputy industrial commissioner on October 30, 1991, at Des Moines, Iowa. The evidence in the case consists of joint exhibits 1 through 9; claimant's exhibits A and B; and, testimony from the claimant; claimant's mother, Darlene Davis; claimant's husband; Raymond Wolver; the former director of nursing, Jackie Cochran; certified nurse's aide, Camella Ent; rehabilitation assistant Laura Bergman; certified medications aide, Charlotte Fleming; staff nurse Kathleen Herman; secretary Patty Gasper; and, the health care administrator, Patrick Luft. issues The prehearing report indicates the following issues were presented for resolution: 1. Whether claimant received an injury on February 16, 1990, which arose out of and in the course of her employment; 2. Whether there is a causal relationship between the alleged injury and the disabilities; 3. Whether claimant is entitled to temporary disability or healing period benefits, or permanent partial or total disability benefits; Page 2 4. Whether claimant is entitled to medical benefits as governed by Iowa Code section 85.27; and, 5. Whether claimant is an odd-lot employee. Defendants have raised the affirmative defense of lack of timely notice of the injury as provided for under Iowa Code section 85.23. findings of fact The undersigned deputy, having reviewed all the evidence received, finds the following facts: Pamela Wolver was born on July 6, 1959. At the time of the hearing, she was 32 years of age. She is a 1977 graduate of Grinnell High School, in Grinnell, Iowa. She continued her education by taking night courses at the Marshalltown Community College through employment with GTE. She received certificates in information, data and word processing. She also has obtained a nurse's aide certificate. During high school, claimant worked as a waitress. Upon graduation, she worked for her GTE in the automation department. In March of 1989, claimant began working for Friendship Manor Care Center, beginning as a nurse's aide and in October 1989, a certified nurse's aide. Her job duties consisted of the overall care of patients. Claimant testified that on February 16, 1990, as she was leaning over a bed trying to change the sheets and undergarments of a resident, Velma Burnham, the resident hit her several times on the lower back. Claimant testified that she heard a "crack" in her low back. Claimant proceeded to finish her work, and reported the incident to Jackie Cochran, director of nursing at the facility. According to the claimant, Ms. Cochran told her to report to the head nurse, Kathy Herman, to fill out an incident report. Claimant testified that she told numerous co-employees about the incident, including: Cam Ent; Laura Bergman; Patty Gasper; and, Jackie Cochran. Claimant also stated that when she spoke to Jackie Cochran regarding the incident, she also showed Ms. Cochran her back which, according to claimant, had red spots which were due to the incident with the resident. Next, claimant went to her mother's house at approximately 1:00 p.m. Darlene Davis, claimant's mother, stated that she observed welts on claimant's back, which were red, white and blue in color. Ms. Davis stated that when claimant entered the house, she could barely walk and told her mother that she had been hit at work. Page 3 Mrs. Davis called Jerome Wehr, M.D., a family practitioner, in Grinnell, Iowa. Although claimant stated that she told both the nurse and Dr. Wehr of the incident at work, Dr. Wehr's notes, dated February 16, 1990, indicate: "Low back pain secondary to strain with radiation of pain into the legs with negative neurologic exam. Negative straight leg raise." (Joint Exhibit 1, page 96) In his deposition, Dr. Wehr indicated that if claimant had told him of a work-related incident, he would have documented the information in his notes (Jt. Ex. 7, pp. 23- 24, 33). Apparently, claimant's husband, Raymond Wolver, also accompanied claimant to the doctor. He testified that he did not see any marks on claimant's back prior to or during Dr. Wehr's examination. Claimant was given a prescription for Voltaren and was to return to Dr. Wehr if the symptoms persisted. Claimant returned to work and on February 17, 18, 19 and 21, 1990, and worked seven and one-half hour shifts on each day. Her last day of work at the facility was March 1, 1990, when she worked one hour and subsequently took a medical leave of absence (Jt. Ex. 4). Claimant continued to see Dr. Wehr and underwent a CT scan on March 6, 1990. The results of the CT scan revealed a bulging disc at the L4-L5 level, with possible lateral herniation at the L5-S1 level. She was referred to R.P. Reschly, M.D., for further treatment. She was initially treated on March 16, 1990, and Dr. Reschly's notes indicate: "This 30-year-old female is referred by Dr. Wehr regarding a back problem. The patient works as a certified nurse aide at Friendship Manor. She has had no previous problems, and she had the gradual onset of low back pain on March 1st. She has no known injuries that she can recall at the present time." (Jt. Ex. 1, p. 92) Upon examination, claimant displayed pain in the low back, left buttock and down the lateral side of the left thigh. Objective findings were "equivocal," but Dr. Reschly contemplated an MRI scan or a myelogram (Jt. Ex. 1, p. 92). Claimant returned to Dr. Reschly one week later, and his notes indicate the following: This patient simply does not strike me as being as painful as apparently is true, but it may be one of those failures of communication between the doctor and the patient. I am going to go ahead and get an epidural injection for the patient, and I have asked her back in ten days. We will get an MRI scan in the future if she has no relief from the epidural injection. Obviously the patient needs to stay off work. (Jt. Ex. 1, p. 92) Page 4 Claimant continued to treat with Dr. Reschly, and on follow-up visits, he noted that she had gained some additional mobility in her low back following the epidural injections. His notes indicate that claimant continued to complain of pain around both ankles, although he indicated that this pain was independent of the back pain. In May of 1990, claimant was released from Dr. Reschly's care with a lifting restriction of not more than 30 pounds (Jt. Ex. 1, pp. 90-92). In August of 1990, claimant returned to Dr. Wehr, apparently requesting a disability impairment rating. Dr. Wehr recommended physical therapy and that she see an orthopedic surgeon for the rating (Jt. Ex. 1, p. 82). Claimant underwent physical therapy at Grinnell General Hospital for approximately one month (Jt. Ex. 1, pp. 7-79). In September of 1990, claimant saw Robert Hayne, M.D., a neurological specialist. Upon his review of the CT scan, he recommended surgical treatment for a herniated disc at the fifth lumbar interspace on the right side (Jt. Ex. 1, p. 76). She was scheduled for surgery on November 13, 1990, and on October 17, 1990, again visited Dr. Hayne having encountered another episode of low back pain which radiated into both lower extremities (Jt. Ex. 1, pp. 74-75). Although no hospital records were offered into evidence, apparently claimant underwent a successful laminectomy performed by Dr. Hayne, who later on felt that claimant had sustained an 8 percent impairment to the body as a whole "as a result of the symptomatology requiring a laminectomy on December 13, 1990." (Jt. Ex. 2) Claimant has a history of mental illness, including two hospitalizations for a chemical imbalance which produces schizophrenia. Symptoms displayed by claimant have been visual and auditory hallucinations (Jt. Ex. 1, pp. 97-135). Physically, claimant's past history is unremarkable, al though she was involved in an automobile accident at the age of 16 or 17. For the injury sustained, she underwent physical therapy for approximately three years following the accident. However, there is no evidence that claimant sustained any type of permanent injury in the automobile accident. analysis and conclusions of law The first issue to be addressed is whether claimant received an injury on February 16, 1990, which arose out of and in the course of her employment with the defendant employer, Friendship Manner Care Center. An employee is entitled to compensation for any and all personal injuries which arise out of and in the course of the employment. Section 85.3(1). Page 5 Claimant has the burden of proving by a preponderance of the evidence that the injury arose out of and in the course of the employment. McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa 1976). The injury must both arise out of and be in the course of the employment. Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 402, 68 N.W.2d 63 (1955) and cases cited at pp. 405-406 of the Iowa Report. See also Sister Mary Benedict v. St. Mary's Corp., 255 Iowa 847, 124 N.W.2d 548 (l963) and Hansen v. State of Iowa, 249 Iowa 1147, 91 N.W.2d 555 (1958). The words "out of" refer to the cause or source of the injury. Crowe, 246 Iowa 402, 68 N.W.2d 63. The words "in the course of" refer to the time and place and circumstances of the injury. McClure v. Union et al. Counties, 188 N.W.2d 283 (Iowa 1971); Crowe, 246 Iowa 402, 68 N.W.2d 63. "An injury occurs in the course of the employment when it is within the period of employment at a place the employee may reasonably be, and while he is doing his work or something incidental to it." Cedar Rapids Comm. Sch. Dist. v. Cady, 278 N.W.2d 298 (Iowa 1979), McClure, 188 N.W.2d 283; Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967). Defendants' case included testimony from Jackie Cochran, who held the position of director of nursing at the time of the alleged incident. As director of nursing, she was familiar with the claimant and stated that she thoroughly reviewed with the claimant the procedures to follow in case of a workers' compensation injury. Ms. Cochran said that claimant told her she had been hit and hurt by the resident, Velma Burnham. The witness also denied that claimant contacted her in the office on February 16, 1990, and Ms. Cochran denied that she told claimant to report to Nancy Herman, the charge nurse on duty. Additionally, the witness offered that she specifically asked the claimant if she had been injured at work, and claimant stated she did not remember getting hurt at work. Also testifying on behalf of the defendants was Camella Ent, a certified nurse's aide at the Friendship Manor Care Center. She was familiar with claimant, and had worked with her for approximately two years. Ms. Ent testified that claimant never told her about the episode with Velma Burnham or any other residents, and that she was unaware that claimant had sustained an injury to her low back while at work. The witness was also familiar with the resident, Velma Burnham, and described her as being approximately four feet four inches tall and weighing 130 pounds. She did indicate that the resident had a reputation of trying to hit or slap people. Laura Bergman also testified for the defendants. She is a rehabilitation assistant with the Friendship Manor Care Center. She is familiar with the claimant, and testified that claimant never told her about the incident with Velma, Page 6 and was unaware that claimant had been hurt or injured while at work. Ms. Bergman was also familiar with Velma Burnham and stated that this resident would try to swat at people, but was unable to hit hard. Although she described the resident as at times being difficult, she stated that it was not so much as to fear safety. This witness described Velma as weighing approximately 100 pounds. Another witness and employee of the Friendship Manor Care Center was Charlotte Fleming who works as a certified medications aide. She also offered that she was never told by the claimant that claimant was injured while at work, and was unaware of any low back injury claimant had sustained. She also was aware that the resident, Velma Burnham, had a reputation of trying to swat people, but would never hurt anyone. She described the resident as being approximately four feet tall, and weighing 124 pounds. The staff nurse, Kathleen Herman, also testified at the hearing. She was claimant's supervisor in February of 1990. She testified that claimant did not report the injury to her, and she did not remember any incident involving the claimant and the resident. She stated that incident reports are filled out for even the most minor incident, and that the report is then given to the director of nursing. Patty Gasper, a secretary and bookkeeper for defendant Center, also testified. She indicated that she was familiar with the claimant, and stated that the claimant did not report any work-related injury. She did state that a first report was filled out in July of 1990, which she stated was the first she knew of any incident regarding the claimant and a work-related injury. She described the resident as being approximately four feet tall, and weighing between 115 to 120 pounds. The witness stated she had no knowledge of the incident. Finally, Patrick Luft, the health care administrator at the facility, also testified on behalf of the defendants. He remembers that on March 1, 1990, he was involved in a discussion with Jackie Cochran and the claimant and discussed a medical leave of absence. He stated that claimant was asked whether the injury was work related, and claimant stated that it was not. He also remembered a meeting with the claimant and her husband in his office on or about March 15, 1990, and that both the claimant and her husband both asked whether the injury would be covered by workers' compensation. He testified that he told them to proceed to the nurse's station to fill out an incident report if claimant believed it was work related. He further stated that claimant never returned to the center after March 15, 1990, and at no time explained to him the incident with Velma Burnham, the resident accused of striking and hurting claimant. Mr. Luft stated that the first time he knew a claim was being made was in July of 1990 when he received a letter from claimant's attorney. As is many times the case, claimant presents a completely different version of the incident than what is remembered by the defendant. Initially, claimant's own Page 7 attorney was unsure of the date claimant was injured, as he sent a notice to the employer that claimant was injured on April 24, 1990. It would seem logical that the attorney received this information from the claimant herself. Likewise, claimant applied for unemployment benefits in May of 1990, and stated that she sustained a ruptured disc in her back, and went on to state that "the lifting aggravated the condition." Claimant wrote on the unemployment appli cation that "on February 16, , I started having back pain. On February 22, 1990, [I] started seeing doctor." (Cl. Ex. B, pp. 36-37) Patty Gasper also testified that during the unemployment hearing, claimant did not mention the attack by the resident, Velma Burnham. In determining whether claimant has sustained her burden of proof, it is necessary for the undersigned to look at both the consistency and credibility of claimant's rendition of the facts. Both Dr. Reschly's and Dr. Wehr's notes are in direct conflict with claimant's recollection and testimony regarding the events that led to her physical problems and medical treatment. As stated under the Facts section of this decision, Dr. Wehr's notes make no reference to a work- related incident which caused the back pain. Likewise, Dr. Reschly's notes indicate that claimant was unable to remember an injury which caused a "gradual" onset of low back pain. If claimant had sustained an injury while at work on February 16, 1990, it seems reasonable that she would remember the incident one month later, when she first visited Dr. Reschly. Likewise, his notes are inconsistent with claimant's description of the injury, which she stated produced immediate pain and necessitated medical treatment. Although the descriptions of the resident, Velma Burnham, were varied, it seems that the resident would be unable to seriously hurt someone while in a prone position having her undergarments changed. Likewise, claimant's story has several versions, and although it would be acceptable to the undersigned to have a variance of several days of when an incident actually occurred, it seems unfortunate that claimant testified that she told a group of co-employees who later testified at the hearing stating that she did not tell any of them that she had been injured by the resident. Although it has been the experience of the undersigned deputy that nurses' assistants are likely to injure their lower backs while working, unfortunately, claimant has failed to sustain her burden of proof and show that she was injured while working at the care center. As a result, claimant takes nothing from these proceedings. order THEREFORE, it is ordered: That claimant take nothing from these proceedings. Page 8 That defendants shall pay the costs of this proceeding. Signed and filed this ____ day of December, 1991. ________________________________ PATRICIA J. LANTZ DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr Joel Greer Attorney at Law 112 W Church St Marshalltown IA 50158 Mr James C Huber Attorney at Law 500 Liberty Bldg Des Moines IA 50309 Mr John C Heinicke Attorney at Law 920 Main St Grinnell IA 50112 5-1100 Filed December 5, 1991 Patricia J. Lantz before the iowa industrial commissioner ____________________________________________________________ : PAMELA J. WOLVER, : : Claimant, : : vs. : : File No. 954492 FRIENDSHIP MANOR CARE CENTER, : : 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. : ___________________________________________________________ 5-1100 Claimant failed to sustain her burden of proof to show that she sustained an injury which arose out of and in the course of her employment. The history given to several doctors made no mention of a work-related injury, and claimant's testimony was inconsistent with the documentary evidence presented. BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ JOANN SEVERINO, Claimant, vs. File No. 954502 RUAN TRANSPORTATION CORP., A P P E A L Employer, D E C I S I O N and RELIANCE INSURANCE COMPANY, 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 February 10, 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 July, 1994. ________________________________ BYRON K. ORTON INDUSTRIAL COMMISSIONER Copies To: Mr. Harry W. Dahl, Sr. Attorney at Law 974 73rd St., Suite 16 Des Moines, Iowa 50312 Ms. Iris J. Post Attorney at Law P.O. Box 10434 Des Moines, Iowa 50306 1803; 1802; 2701; 4100; 5-1700 Filed July 20, 1994 Byron K. Orton BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ JOANN SEVERINO, Claimant, vs. File No. 954502 RUAN TRANSPORTATION CORP., A P P E A L Employer, D E C I S I O N and RELIANCE INSURANCE COMPANY, Insurance Carrier, Defendants. ____________________________________________________________ 1803; 1802 Found claimant incurred a 40 percent industrial disability and a healing period of June 8, 1990 through March 10, 1992 except for a period beginning July 22, 1991 through October 6, 1991, as a result of her June 7, 1990 work injury. 2701 Found claimant is entitled to go to inpatient or outpatient pain clinic recommended by Dr. Friedgood. The employer may choose one of the pain clinics recommended by the doctor and defendants shall pay the costs. 4100 Found claimant is not an odd-lot candidate. 5-1700 Found defendants are entitled to credit for the long-term disability benefits claimant received from a policy solely paid for by the defendants. BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ JOANN K. SEVERINO, : : Claimant, : : vs. : : File No. 954502 RUAN TRANSPORTATION CORP., : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : RELIANCE INSURANCE COMPANY, : : Insurance Carrier, : Defendants. : ___________________________________________________________ STATEMENT OF THE CASE This case came on for hearing on December 28, 1993 at Des Moines, Iowa. This is a proceeding in arbitration wherein claimant seeks compensation for permanent partial disability benefits as a result of an alleged injury occurring on June 7, 1990. The record in the proceeding consists of the testimony of the claimant and Jack Reynolds; claimant's exhibits 1, 2(a) through 2(s), 3, 4, 5, 6; and, defendants' exhibits A through K. There are two additional defendants' exhibits 1 and 2 which were offered in evidence concerning the argument on the hearing report filed in this case. Those two exhibits strictly have to do with said hearing report issue that was ruled upon at the hearing. ISSUES The issues for resolution are: 1. The nature and extent of claimant's permanent disability and entitlement to disability benefits and the commencement of any benefits, awarded; 2. An 85.27 alternate care issue; 3. Under 85.38(2( whether defendants are entitled to credit for payments made to claimant under a disability policy; and, 4. Whether claimant is an odd-lot candidate. FINDINGS OF FACT The undersigned deputy, having heard the testimony and considered all the evidence, finds that: Claimant testified in person and through her deposition (Defendants' Exhibit B) taken March 23, 1992. Claimant is a Page 2 44-year-old high school graduate. She related her work history up to the time she began working for defendant employer in November of 1979, where she is still employed. Her past history involved working in a discount chain doing bookkeeping and accounting, working for Bankers Life, which is now Principal, in the group insurance department. She also worked at a lounge which was owned by an individual whom she later married and worked there until her husband closed it and went out of business. Claimant described what her eight hour day was comprised of in connection with her job with defendant employer in the accounts receivable department. On June 7, 1990, claimant was putting a large box on the desk and filling it and was to set it on the floor near her desk. Someone indicated to her that she couldn't leave it there so she carried it 20 feet. When she picked it up she felt a pain in her lower back. She called her husband to come and get her. Claimant then related the medical services she sought. Claimant indicated that Thomas Carlstrom, M.D., performed surgery on her in December of 1990. Claimant related that she had back surgery in 1987 from which she said she received good results and that she had gotten over it and had no restrictions except she had a work weight limit of 25 to 40 pounds. She said normally nothing at work exceeded that limit. Claimant said that her problems were different from her December 1990 surgery and that her left leg was like it was dead and she drags it. Claimant had her first surgery in July 1990 as a result of this June 7, 1990 injury and after that she was still having low back pain. Dr. Carlstrom referred claimant to Craig DuBois, M.D., who did various tests and prescribed certain therapy. Becky Johnson, from Principal Financial, a rehabilitation individual, talked to claimant on December 23, 1990, and she had no job or suggestions for claimant but indicated she was still trying to find something claimant could do. Claimant said she has had no contact with the rehabilitation person since June 1992 and was given no job prospects. Claimant said she knows of no job opportunities but would like to do a job at home. Claimant said David L. Friedgood, D.O., a neurologist, wanted claimant to get into a pain management program. Claimant indicated she never did go through this type of program. Claimant acknowledged she received long-term disability from an insurance policy with Principal Insurance Company that was totally contributed to by the employer and was a benefit provided for her. She indicated that she originally was getting $755.04 per month until June of 1993, at which time it was ultimately reduced to $600.04 net as the insurance company began taking the required tax withholding, etc., out of the gross amount. Page 3 It appears claimant was receiving workers' compensation benefits in a weekly amount of $198.82 to and including October 11, 1991, and since that time the long-term disability referred to above began. Claimant acknowledged that in February 1987 she had a low back injury at defendant employer and received workers' compensation weekly benefits and 10 percent permanent partial disability. She said Dr. Carlstrom was the treating physician and surgeon. She had surgery in March 1987. Claimant said she returned to work in June 1987 and kept treating with the doctor but does not know how long thereafter but acknowledged that if the medical records show that she saw the doctor until January 1988 she would not dispute that. Claimant acknowledged that she had a weight lifting restriction of 25 to 40 pounds as a result of that injury. Claimant indicated that when she was released to return to work after her June 7, 1990 injury, she intended to work full-time eight hours a day but could only do four hours and she said the doctor agreed to that. Claimant acknowledged that in 1992 she flew to visit her husband's brother. Claimant said her husband is currently disabled. Claimant said she has never had a driver's license so she took the bus to her work. David L. Friedgood, D.O., testified through his deposition on December 21, 1993, that he is a neurologist and that he first saw claimant in November of 1992. He understood at that time that claimant had had two additional low back surgeries at L4-5 performed by Dr. Carlstrom pursuant to an injury on June 7, 1990. The doctor agreed with Dr. Carlstrom that claimant's two surgical procedures in 1990 were precipitated by a lifting incident in June of 1990 at claimant's place of employment. He also indicated that claimant had a preexisting injury to her back which made it more likely that she would injure it a second time. He again emphasized that the cause of the second surgery and the ultimate third surgery was caused by the claimant's injury in 1990. (Claimant's Exhibit 4, pages 6-7) He acknowledged that the claimant indicated to him that she had good results from the 1987 L4-5 surgery with a return to work but that the subsequent two surgeries were not as successful. His examination indicated claimant had decreased sensation in the left leg and no left ankle reflex. He concluded that she had damage to the left fifth and lumbar fifth and first sacral nerve roots. He opined that claimant did have pain resulting from the June 1990 injury and subsequent surgery. He was referred to his November 20, 1992 report (page 2) in which he indicated claimant was in quite a bit of difficulty functioning anywhere at normal level because of her pain. He prescribed the pain center but he understood it was not provided to her. The doctor said he is very Page 4 familiar with the pain center and works with them on a regular basis. He indicated they do work in a general sense. He said they don't cure people but they give a patient understanding of their problem and work with them to get them more functional in teaching him to deal with their incurable symptoms. The doctor opined that claimant is a candidate for the pain center and that she should get involved with it. The doctor then described subsequent visits with claimant. He indicated that on her next visit she was having right-sided pain which she indicated likely resulted from her overcompensating and using her right leg a little differently due to her left leg problem. The doctor described the various other visits and exams claimant had with him, the last being November 22, 1993. He indicated claimant continued to have pain in her low back and down her left leg and that she was still getting residuals of her 1990 injury and two resulting surgeries. The doctor opined that claimant cannot work because of her severe pain and that he was still recommending a pain clinic in which she would also get a vocational counselor and psychological counselor, therapy and exercise in connection with said program. He further stated that if his recommendation for treatment was carried out claimant should expect a lot less pain and discomfort and that she would be more functional and he would expect her to get back to a point where she would be able to work on a part-time basis and hopefully eventually a full-time basis. He saw nothing on her physical examination that would preclude that. The doctor indicated that claimant cannot work because of her severe pain. He indicated he did not believe Dr. Carlstrom assumed any of claimant's pain in his evaluation but based his permanent impairment strictly on a functional impairment. The doctor emphasized again that he did not think everything has been done for this woman that could be done and he mentioned several places in which there are good pain clinics. The doctor indicated he had given claimant the restriction of 25 pounds and no repetitive lifting. He further indicated that claimant's job as an accounting clerk at defendant employer fell within these restrictions and there is nothing functionally that prevents claimant from returning to her employment but that it is her complaints of pain. He further indicated that his recommendation of a pain clinic to deal with claimant's chronic pain helped people get back to work in employment whereas if they are unable to deal with their pain they tend not to be functional. (Cl. Ex. 4, pp. 21-23) John M. Severino, claimant's husband, testified through his deposition taken January 7, 1993. (Def. Ex. A) Mr. Severino indicated that he and his wife watch their grandchildren on occasion but that his wife will not watch them alone if he is not there because they want to be picked up. Two of the grandchildren are ages 4 and 2 and she has not picked them up since her injury. He also indicted they have another grandchild who is less than a year old and she Page 5 has carried that child. He said his wife has a concern regarding her back in relation to picking up the kids. He said she walks with a limp, dragging motion, and sometimes walks with a cane. He said she performs very few activities around the home. Mr Severino said that claimant has not worked since her injury other than trying to go back to defendant employer on one occasion and she applied at a telemarketing job. Randy J. Sackett testified through his deposition taken June 28, 1993. (Def. Ex. C) Mr. Sackett is the director of human resources for defendant employer and has held this position approximately three and one-half years at the time of his deposition. He indicated he had nothing that indicated claimant should not return to employment and that if she was released to return to work he would make every effort to find a position for claimant and it wouldn't necessarily be the same position she had at the time of her injury but would be comparable. He acknowledged that the wages would be the same. He acknowledged that he attempted to bring claimant back at shorter hours per day in 1991 and it was to be for approximately four hours per day and would gradually increase. He indicated that in fact claimant's hours decreased to the point that they were not getting in the hours so he understood it was suggested claimant go back for some more rehabilitation. She then went back on workers' compensation leave. He understood there was nothing derogatory as to claimant's work or employment history with defendant employer. Linda Cornell testified through her deposition on June 20, 1993, that she is employed with defendant employer as accounts receivable supervisor and has worked there for 19 1/2 years. She was acquainted with the claimant as a fellow employee and worked in the same area as claimant. She described the nature of claimant's business which was working basically with Avis Rental Agreements. This job required her to take files from the file cabinet, put then in a box, box them up and send them over to the annex once a month. She further described the size of the boxes, approximate number of files, etc. She said claimant did a good job and was very knowledgeable about the job as she had been at it for several years. When claimant came back to work to try initially four hours a day, Ms. Cornell indicated the jobs were sort of make work for the claimant and Ms. Cornell knew claimant couldn't lift and understood that was the instruction from the doctor. She said claimant was slower at moving. She said the claimant did the work fine and didn't notice any difference on the way she did the work before the injury complaint. Defendants' exhibit I, page 9, is the department of radiology report of Iowa Methodist which indicates that in February of 1987 claimant had a disc herniation protruding centrally and on the left side at the 4-5 interspace. It would appear to the undersigned from the evidence that Page 6 claimant recovered at least from this event as far as Dr. Carlstrom's February 18, 1988 opinion in which he indicated claimant had a 10 percent body as a whole impairment. The evidence seems to indicate that claimant got along well and this condition that existed at that time up through the February 1988 letter of Dr. Carlstrom was not bothering claimant at the time of her June 7, 1990 injury. The reports of Dr. Carlstrom are confusing and there are some of the same but also different correspondence from Dr. Carlstrom that is presented by the defendants and the claimant. An October 10, 1991 report of Dr. Carlstrom shows he opined a 20 percent body as a whole impairment. On March 10, 1992, he opined a 20 percent body as a whole impairment. On April 30, 1992, he opined a 10 to 12 percent body as a whole impairment. On June 18, 1992, he opined a 10 to 12 percent body as a whole impairment and indicated there was no change since April 1992. In October 1992, he indicated in his report that he thought that part-time light duty activity would be in order and he recommended it. The undersigned did not see anything in the record to show any noticeable change between the March 10 and April 30 reports in which he went from 20 percent down to 10 to 12 percent. In Dr. Friedgood's December 19, 1993 deposition (Claimant's exhibit 4), he referred to Dr. Carlstrom's October 1991 impairment rating of 20 percent of the body as a whole. There is no indication that the doctor disagreed with that. In the doctor's April 1992 letter (Cl. Ex. 2(L), p. 117) he went on to indicate that claimant also sustained an impairment due to other procedures and he considered those separately. This seems to indicate that there would be additional impairment to the 10 to 12 percent or 20 percent body as a whole but there is no further indication of that being specifically set out as an add-on. Page 22 of defendants' exhibit H (answers to interrogatories), the claimant answered interrogatory number 24 by indicating that Dr. Carlstrom opined that claimant had sustained a 10 to 12 percent permanent partial disability to the body as a whole and that she sustained a 20 percent permanent partial disability rating to the body as a whole which is separate and above from the leg injury rating. The undersigned wonders if the doctor was trying to take the place of the deputy and determine claimant's industrial disability or was he confusing disability with impairment which is often done by the medical profession. There is still nowhere in the record that indicates two separate impairments, one 10 to 12 and another add-on which would reach a 20 percent permanent partial impairment. Where the claimant is getting the idea that there is two separate impairment ratings on two different parts of the body is unknown to the undersigned. It does appear to the undersigned that Dr. Carlstrom in his impairment opinions is not taking into consideration claimant's pain which it appears from the evidence is real and that he was strictly relying on the impairments Page 7 resulting from the two surgeries in 1990 which has clearly been indicated by the record to have resulted from the June 1990 work injury. The doctor did in his March 1992 letter indicate that future work activity of the claimant will need to be significantly restricted with avoidance of heavy lifting, 20 pounds being about the maximum, and avoidance of forward bending, twisting, prolonged sitting, or standing an hour in any one position being considered about maximum. Claimant's exhibit 1 is Dr. Friedgood's reports and notes to which is referred to in his deposition and the undersigned sees no reason to further set them out herein. The undersigned is surprised that with the number of reports Dr. Friedgood wrote, he did not give his own individual impairment rating. It is clear that he strongly suggested claimant enter a structured pain clinic program and that she will need regular physical therapy support and psychological care and vocational rehabilitation counseling. (Cl. Ex. 1, June 16, 1993 report, page 2) Jerome B. Bashara, M.D., made an evaluation on August 5, 1993, and opined that claimant had a 17 percent permanent partial impairment of the body as a whole related to her injury at work in June of 1990, and recommended a permanent lifting restriction but no excessive repetitive bending, stooping or twisting of her lower back. (Cl. Ex. 2(A)) Claimant's exhibit 2(B) is the records from the Iowa Methodist Hospital and the Pain Management Center. It appears to the undersigned that this is not the pain clinic or type of treatment Dr. Friedgood was recommending. It appears claimant was getting more or less consulting-type recommendations and guidance as a result of going to this Iowa Methodist Pain Management Center under the care of Dr. DuBois. Claimant's exhibit 2(D) is a report of the Crawford Health and Rehabilitation Services. It would appear on page 31 of said report that they opine that claimant may have benefit from a formal rehabilitation/pain management program, however, they said she was currently enrolled with Dr. DuBois. It would appear to the undersigned that they are recommending something similar to Dr. Friedgood and not necessarily what she was having done through Iowa Methodist Pain Management or Dr. DuBois. This opinion was reiterated in later reports (Cl. Ex. 2(D), pp. 34 and 39). In that same February 10, 1992 report, they refer to Dr. Carlstrom's 20 percent permanent partial disability rating to the body as a whole. The undersigned believes they mean permanent impairment rating. Defendants' Exhibit K is the disability policy and it is obvious to the undersigned this is a policy totally paid for by the employer. There is no dispute that claimant incurred a work injury on June 7, 1990 which arose out of and in the course of her employment and there is a dispute as to the extent of Page 8 any temporary total disability or healing period. Defendants agree that there is some permanent disability and it is the extent of said disability which is one of the issues in dispute. The undersigned finds that claimant has a permanent impairment and permanent restrictions. As indicated earlier, there is a question as to the extent of that impairment but it appears to the undersigned to be as high as 20 percent and under no circumstances less than 10 percent of claimant's body as a whole. Claimant has had two back surgeries resulting from her June 7, 1990 injury. Claimant has worked very little since her injury, having gone back to work and attempted to work initially four hours a day and hoping to work up to full employment but never reached that goal. In fact, she was unable to comply with the four hours per day. It appears the defendant employer tried to accommodate the claimant. It appears that the nature of the work the employer provided to accommodate the claimant was within her restrictions but the pain claimant was having affected her concentration and affected her ability to actually do the work that was otherwise within her restrictions. Dr. Friedgood recommended some qualified pain clinics that claimant should go to. He emphasized this would not cure claimant but would and could very well help her in her pain management and with the proper counseling, that would enable her to go back to full-time employment. It appears this had been recommended by another doctor but never approved by defendants. Dr. Carlstrom seemed to indicate that claimant did have some pain management but it is obvious to the undersigned that the type of pain management was ineffective and was not the type that could be effective and as the type recommended by Dr. Friedgood who had special knowledge in working with the proper type of pain clinic that would fit within his idea of a qualified pain clinic. It appears the pain management that claimant may have had at Iowa Methodist was more on a consulting and recommending-type of situation and was not the type of pain clinic that claimant needed or would benefit from. The employer, of course, can reduce the industrial disability if in fact a proper pain clinic inpatient or outpatient program was used. Defendants apparently felt it was not necessary or took risks that they would rather take their chances with the extent of claimant's industrial disability without making an attempt. This must have been an economic decision and yet at this stage it is yet to be seen whether it was a good economic decision on behalf of defendants. The undersigned finds that in regard to the issue of alternate care, claimant is entitled to go to one of the pain clinics recommended by Dr. Friedgood and that defendants shall have the right to pick one of those suggested by Dr. Friedgood. It appears to the undersigned that with claimant not being employed, an inpatient program would be the best under the circumstances. Therefore, if Dr. Friedgood suggests that an inpatient pain clinic under Page 9 the circumstances would be the best, then claimant is entitled to have an inpatient pain clinic program versus an outpatient program set up and she shall have the right to go to it. Of course, hopefully, this will help claimant and may reduce claimant's ultimate industrial disability and may result in a reopening of this matter. Claimant shall comply with the requirements and dictates of the pain clinic and follow the procedures without fail and without missing any sessions. The undersigned finds that the claimant has a severe permanent impairment and restrictions and that she also has a loss of income and earning capacity. The undersigned further finds that claimant is not an odd-lot candidate and is not totally permanently disabled and that claimant has not made a strong effort to find employment or make application or inquire as to employment. The undersigned believes that claimant is feeling more at ease now at home, particularly with her husband being disabled and that it is more convenient for her to stay at home and not seek employment and continue to be on long-term disability and/or workers' compensation. The undersigned believes that claimant needs more motivation and more effort to try to help improve herself. There is an investigative report and two surveillance videos represented by defendants' exhibit G. Those do raise a question as to the extent of claimant's ability to do things and yet claimant is not totally disabled and should be expected to carry on certain normal life functions and should be able to do those same functions even though she may be in pain in doing them. Claimant is not an invalid. The undersigned is concerned that claimant may convince herself eventually that she is totally disabled if she does not motivate herself and make further attempts for employment or to improving herself. Taking into consideration claimant's medical history prior to and after her injury; her work experience; her transferable skills; the extent of her permanent impairment; her age and education; the location and severity of her injury; the extent of her healing period; her motivation; and the employer's attempt to accommodate her and inability to accommodate her due to her injury, the undersigned finds that claimant has incurred a 40 percent industrial disability. The undersigned further finds that any preexisting condition claimant had was not affecting her at the time of her injury and that under Bearce v. FMC Corporation, 465 N.W.2d 531 (Ia. App. 1991), there is no offsetting of any prior permanent impairment against any ultimate impairment and its effect on the ultimate conclusion and determination of claimant's industrial disability. There is a dispute regarding claimant's healing period to the extent that claimant contends if claimant is not totally disabled her healing period ended June 16, 1993. Defendants contend it ended on October 10, 1991, at which time the doctor opined claimant had a 20 percent permanent impairment. The undersigned notes that on claimant's Page 10 exhibit 2(L), page 119, the doctor also indicates in the October 11, 1991 report that he did think her symptoms might improve somewhat. The undersigned does not believe that claimant in fact had reached maximum healing on October 10, 1991. As indicated earlier, Dr. Carlstrom's reports are somewhat confusing as to what in fact he finally concluded claimant's permanent impairment is and what made him change in certain letters the extent of claimant's permanent impairment to her body as a whole. The undersigned finds that the March 10, 1992 letter (Cl. Ex. 2(L), p. 118) is a better date to determine that claimant reached maximum healing. In that same letter, he indicated that claimant was to begin vocational rehabilitation in October 1991 and he hadn't seen her since. It would appear that he thought it might help claimant and, therefore, the undersigned finds that claimant's healing period ended on March 10, 1992. The undersigned further finds that claimant did attempt to return to work part-time and was unable to continue. Therefore, said healing period was interrupted July 22, 1991 through October 6, 1991. As to the 85.38(2) issue, the evidence is clear that the long-term disability policy was paid for by the defendants and there was no contribution to the premium by the claimant. Defendants are therefore to be given credit for any benefits paid under the group plan. Any credit to be given shall be the net long-term disability payments. In other words, the undersigned understands that the gross payment was $755.04 and that after deducting the required withholding taxes and social security, the claimant's net amount she was to receive is $600.04. The evidence indicates that claimant was receiving the gross amount at one time until later it was determined that these benefits were taxable and subject to the normal withholding of taxes. There was a discussion at the hearing and the undersigned emphasizes that it is the net amount that is the offset against any workers' compensation benefits as a credit and the parties are responsible for determining the amount that has been paid and the extent of the credit following the guidelines of decision set out herein. CONCLUSIONS OF LAW Functional impairment is an element to be considered in determining industrial disability which is the reduction of earning capacity, but consideration must also be given to the injured employee's age, education, qualifications, expe rience and inability to engage in employment for which the employee is fitted. Olson v. Goodyear Serv. Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963); Barton v. Nevada Poultry, 253 Iowa 285, 110 N.W.2d 660 (1961). A finding of impairment to the body as a whole found by a medical evaluator does not equate to industrial disability. Impairment and disability are not synonymous. The degree of industrial disability can be much different than the degree of impairment because industrial disability references to loss of earning capacity and impairment Page 11 references to anatomical or functional abnormality or loss. Although loss of function is to be considered and disability can rarely be found without it, it is not so that a degree of industrial disability is proportionally related to a degree of impairment of bodily function. Factors to be considered in determining industrial dis ability include the employee's medical condition prior to the injury, immediately after the injury, and presently; the situs of the injury, its severity and the length of the healing period; the work experience of the employee prior to the injury and after the injury and the potential for rehabilitation; the employee's qualifications intellectually, emotionally and physically; earnings prior and subsequent to the injury; age; education; motivation; functional impairment as a result of the injury; and inability because of the injury to engage in employment for which the employee is fitted. Loss of earnings caused by a job transfer for reasons related to the injury is also relevant. Likewise, an employer's refusal to give any sort of work to an impaired employee may justify an award of disability. McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980). These are matters which the finder of fact considers collectively in arriving at the determination of the degree of industrial disability. There are no weighting guidelines that indicate how each of the factors are to be considered. Neither does a rating of functional impairment directly correlate to a degree of industrial disability to the body as a whole. In other words, there are no formulae which can be applied and then added up to determine the degree of industrial disability. It therefore becomes necessary for the deputy or commissioner to draw upon prior experience as well as general and specialized knowledge to make the finding with regard to degree of industrial disability. See Christensen v. Hagen, Inc., Vol. 1 No. 3 State of Iowa Industrial Commissioner Decisions 529 (App. March 26, 1985); Peterson v. Truck Haven Cafe, Inc., Vol. 1 No. 3 State of Iowa Industrial Commissioner Decisions 654 (App. February 28, 1985). Compensation for permanent partial disability shall begin at the termination of the healing period. Compensation shall be paid in relation to 500 weeks as the disability bears to the body as a whole. Section 85.34. 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 Page 12 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. Apportionment of disability between a preexisting condition and an injury is proper only when some ascertainable portion of the ultimate industrial disability existed independently before an employment-related aggravation of disability occurred. Bearce v. FMC Corporation, 465 N.W.2d 531 (Iowa 1991); Varied Enterprises, Inc. v. Sumner, 353 N.W.2d 407 (Iowa 1984). Hence, where employment is maintained and earnings are not reduced on account of a preexisting condition, that condition may not have produced any apportionable loss of earning capacity. Bearce, 465 N.W.2d at 531. Likewise, to be apportionable, the preexisting disability must not be the result of another injury with the same employer for which compensation was not paid. Tussing v. George A. Hormel & Co., 461 N.W.2d 450 (Iowa 1990). The burden of showing that disability is attributable to a preexisting condition is placed upon the defendant. Where evidence to establish a proper apportionment is absent, the defendant is responsible for the entire disability that exists. Bearce, 465 N.W.2d at 536-37; Sumner, 353 N.W.2d at 410-11. The employer shall furnish reasonable surgical, medical, dental, osteopathic, chiropractic, podiatric, physical rehabilitation, nursing, ambulance and hospital services and supplies for all conditions compensable under the workers' compensation law. The employer shall also allow reasonable and necessary transportation expenses incurred for those services. The employer has the right to choose the provider of care, except where the employer has denied liability for the injury. Iowa Code section 85.27. Holbert v. Townsend Engineering Co., Thirty-second Biennial Report of the Industrial Commissioner 78 (Review-reopen 1975). It is further concluded that: Claimant's work injury on June 7, 1990, caused claimant to incur a 40 percent industrial disability. Claimant is entitled to alternate care. Defendants shall pay for claimant to go through a pain clinic and defendants have the right to choose the pain Page 13 clinic from those recommended by Dr. Friedgood and claimant is entitled to an inpatient or outpatient clinic. Defendants shall receive credit under the provisions of Iowa Code section 85.38(2) for the disability benefits paid by the defendant employer's long-term disability plan and that said credit shall be the net amount of said disability payments after the required taxes are deducted. Claimant's healing period began on June 8, 1990 through April 10, 1992, except for a period of time beginning July 22, 1991 through October 6, 1991. Claimant is not an odd-lot candidate. ORDER THEREFORE, it is ordered: That defendants shall pay unto claimant healing period benefits at the rate of one hundred ninety-eight and 82/100 dollars ($198.82) per week for the period beginning June 8, 1990 up to July 21, 1991, and October 7, 1991 up through March 10, 1992, totaling eighty point two eight six (80.286) weeks. That defendants shall pay unto claimant two hundred (200) weeks of permanent partial disability benefits at the rate of one hundred ninety-eight and 82/100 dollars ($198.82) beginning March 11, 1992. That defendants shall pay accrued weekly benefits in a lump sum and shall receive credit against the award for weekly benefits previously paid. It appears the defendants paid one hundred point two eighty-six (100.286) weeks of benefits. Also, as indicated in said decision, there would be credit to be determined by the parties for the net long-term disability benefits that have been paid to claimant that may be within the one hundred point two eight six (100.286) weeks of benefits referred to herein. That defendant shall provide alternate care as provided herein. That defendants shall pay interest on benefits awarded herein as set forth in Iowa Code section 85.30. That defendants shall pay the costs of this action, pursuant to rule 343 IAC 4.33. That defendants shall file an activity report upon payment of this award as required by this agency, pursuant to rule 343 IAC 3.1. Signed and filed this ____ day of February, 1994. Page 14 ------------------------------ BERNARD J. O'MALLEY DEPUTY INDUSTRIAL COMMISSIONER Copies to: Mr Virgil Moore Attorney at Law 2454 SW Ninth St Des Moines IA 50315 Mr Harry W Dahl III Attorney at Law 974 73rd St Ste 16 Des Moines IA 50312 Ms Iris J Post Attorney at Law 2222 Grand Ave P O Box 10434 Des Moines IA 50306 1803; 1802; 2701 4100; 5-1700 Filed February 10, 1994 Bernard J. O'Malley BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ JOANN K. SEVERINO, : : Claimant, : : vs. : : File No. 954502 RUAN TRANSPORTATION CORP., : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : RELIANCE INSURANCE COMPANY, : : Insurance Carrier, : Defendants. : ___________________________________________________________ 1803; 1802 Found claimant incurred a 40 percent industrial disability and a healing period of June 8, 1990 through March 10, 1992 except for a period beginning July 22, 1991 through October 6, 1991, as a result of her June 7, 1990 work injury. 2701 Found claimant is entitled to go to inpatient or outpatient pain clinic recommended by Dr. Friedgood. The employer may choose one of the pain clinics recommended by the doctor and defendants shall pay the costs. 4100 Found claimant is not an odd-lot candidate. 5-1700 Found defendants are entitled to credit for the long-term disability benefits claimant received from a policy solely paid for by the defendants. Page 1 BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ : PHYLLIS SMITH, : : Claimant, : : File Nos. 991514 vs. : 954626 : PAMIDA, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : CRUM & FORSTER INSURANCE, : : Insurance Carrier, : Defendants. : ___________________________________________________________ STATEMENT OF THE CASE This case came on for hearing on February 23, 1993, at Fort Dodge, Iowa. This is a proceeding in arbitration wherein claimant seeks compensation for permanent partial disability benefits as a result of two alleged injuries, one occurring on May 30, 1990 (file No. 954626), and another on July 8, 1991 (file No. 991514. The record in the proceeding consists of the testimony of the claimant and claimant's husband, Jerry Smith; joint exhibits 1 through 10; and, claimant's exhibits I and II, and defendants' exhibits A, B and C. ISSUES The issues for resolution as to the May 30, 1990 claim are: 1. Whether claimant incurred a permanent disability which is causally related to the May 30, 1990 injury; and, 2. Claimant's entitlement to 85.27 medical benefits, the issue being whether there is a causal connection as to the medical incurred. The issues for resolution as to the alleged July 8, 1991 injury are: 1. Whether claimant incurred an injury that arose out of and in the course of her employment on July 8, 1991; 2. Whether there is a causal connection as to claimant's alleged disability and her July 8, 1991 alleged work injury; 3. The nature and extent of claimant's disability and entitlement to disability benefits; and, Page 2 4. Claimant's entitlement to 85.27 medical benefits, the issue being authorization and causal connection. FINDINGS OF FACT The undersigned deputy having heard the testimony and considered all the evidence, finds: Claimant is a 37-year-old high school graduate who has no other post high school education other than she took a medical assistant class at a community college. Claimant testified as to her work history prior to beginning employment with the defendant employer on August 20, 1981. None of these prior jobs helped her develop any particular skill but they did involve claimant having to do certain lifting and various manual labor jobs. Claimant said she also played basketball in high school from which she graduated in 1975. Claimant testified as to an August 14, 1987 back injury which she incurred as a result of lifting, carrying and stacking cases of oil that were delivered to defendant employer. Claimant testified that from September 1987 to June 1990, she had no medical treatment for her back and her condition had cleared up by September 1987. Claimant indicated that she did not have a problem with her back on the jobs she had done prior to beginning work for the defendant employer. Claimant described her various jobs at defendant employer and indicated that her present job as an area leader is the same job she has had since 1982. This job involves taking care of the automotive, sporting goods, toys, holiday items, artificial flowers and the pet departments. She ordered the supplies, stocked shelves, set up ads, etc. Claimant described what occurred on May 30, 1990, when she incurred her alleged injury. Claimant stated that at that time they had a greenhouse outside of the store. She was requested by the manager to pick over and sort certain plants, trees and shrubs, condense them together on certain pallets, coordinate them in a certain place and water them sufficiently. After the claimant had done this for two or three hours the manager changed his mind and told her to bring all the plants up to the front of the building which was a distance of approximately 50 to 60 feet from where she had just finished organizing them. Claimant indicated that the plants were in certain groupings and that the trees were in one, two or five gallon buckets and some were in burlap balls. She indicated that she would drag the burlap ball trees one by one and those items on pallets she would pull by tying a rope and taking turns pulling backwards and forwards. Claimant said that she had moved eight or ten of these pallets plus moving some other items when her back started to hurt. She indicated that the weather was hot and that Page 3 she worked all day outside from 9:00 to 5:00 p.m. Claimant said that just before 5:00 she went inside and her back still ached and she was hurting from her shoulders to her hips so she went home and used a heating pad. She indicated she saw a chiropractor the next day and went for three or four treatments. Claimant then saw Maurice L. Northup, M.D., on June 14, 1990, and was taken off work and was off work up to and not including October 17, 1990. She was paid workers' compensation benefits for this period of time which involves 16.714 weeks plus $399.83 temporary partial disability through November 2, 1990. Claimant indicated that Dr. Northup has been her family doctor since she was in kindergarten. Claimant then was asked questions and referred to claimant's exhibit I which is a chronological list of events from August 20, 1981 through October 21, 1992, and involves visits to the doctor, etc. Claimant was released to work on October 18, 1990, and at first there was a 10 pound lifting restriction but by November 14, 1990, the lifting limit was 20 pounds (Claimant's Exhibit II, pages 7-10). Claimant testified that on a return to work in October 1990, she tried to follow the restrictions but was not always able to do so. She gave an example of an instance in which on July 8, 1991, her assistant manager at the time requested her to move some oil cases that were in the back of the store and to fill the aisle as there was apparently another shipment of oil coming in. Claimant related that her restrictions were still in place and that there were other high school boys there to help but that she was told to move this oil, so she did what the employer told her. She indicated it took her about an hour or an hour and a half to move the cases of oil. She indicated that her back began aching that evening. Claimant indicated that when she got home she went to the bedroom and attempted to plug in the alarm clock. She was not able to reach the electric cord so she got down on the floor on all fours and felt a sudden pain in her back and fell completely to the floor. She then got back on her hands and knees and her back began tightening up. Claimant indicated that between October 1990 and July 8, 1991, she had felt good and back to her old routine of house duties and doing her job at work despite her restrictions. She said that during these nine months she was doing okay within her restrictions and that the manager would have someone else do the lifting for her so she could keep within her restrictions. She basically indicated that she was having no back trouble until the July 8, 1991 incident. She said the pain occurred in the same place in July 1991 as it did in May 1990. Claimant said she went back to work the following Monday (one week later) and the employer told her that it was too much of a risk for her to work until she saw a doctor so she was sent home. She next saw William A. Roberts, M.D., on August 7, 1991. Claimant was asked why Dr. Roberts' records reflect that she told him she had an Page 4 incident involving her back one week previously. Claimant did not know but emphasized that the incident the doctor had to be talking about was the alarm clock incident which was one month earlier. Claimant indicated that surgery was necessary and called defendant insurance company as to setting up this surgery. She indicated she heard nothing from the insurance company by a return reply so she went through the one week of blood workup and two or three days before surgery was to occur she received notice from the insurance company that workers' compensation would not pay for her surgery (Cl. Ex. I, p. 16). Claimant referred to the fact that said September 3, 1991 letter and exhibit referred to a May 30, 1990 injury and not the July 8, 1991 incident. Claimant said she went ahead with the surgery anyway as she couldn't take the pain any longer. Claimant described the nature of her surgery which involved putting rods and plates in her back and fusing bone in the L5-S1 area. She said the rods and anchors are still in her back and pelvis. Claimant referred to joint exhibit 6, page 4, as to the description of the surgery. Said exhibit describes the procedure performed as a spinal decompression of the L5-S1 nerve roots with reduction of spondylolisthesis and stabilization utilizing pedicular screws and isola rods utilizing the Lugac Galveston technique for pelvic fixation (Jt. Ex. 6, p. 4) Claimant referred to joint exhibit 7, page 19, as to her restrictions, one which is lifting no more than 20 pounds. She indicated her restrictions were the same in 1992 as they were before her surgery and that she is working today with the same restrictions. Claimant indicates that the defendant employer provides her with help in lifting and any repetitiveness but her area of responsibility at work is the same. She likes her current manager and if defendant employer continues its present situation concerning her she could continue to work without problems. Claimant then asked about her appointment with Daniel J. McGuire, M.D., an orthopedic surgeon, on December 22, 1992. She related that she had her meeting with him and the exam recorded and had asked ahead of time whether it was okay and she got permission. She was then alarmed when the doctor mentioned in his notes, page 5 of defendants' exhibit B, that he was incredibly despondent because the claimant tape recorded the process that day. The undersigned finds that comment rather amusing and strange, since on page 3 of said notes he stated that claimant was taping that office interview. On page 1 of defendants' exhibit B, the doctor indicated he was about ready to cry because he was embarrassed concerning the story that he obtained from the claimant. Such comment is rather startling. Page 7 of defendants' exhibit B, which is the transcript of the recorded meeting with the doctor on December 22, 1992, specifically shows that Dr. McGuire at the very beginning of the meeting said it was fine to tape record the conversations. The undersigned gives no weight to Dr. McGuire's report as he leaves the impression he is too emotionally involved with the patient's exam. He appears Page 5 despondent and in a crying mood when dealing with this case for no logical reasonable medical reason. Claimant said that she continued her activities of bowling, playing softball and water-skiing after the 1987 incident but that she has not bowled now for several years, has played no softball since 1990. She has not skied since 1987 nor played any softball after 1987 She then indicated that she and her husband owned a boat and she has skied one or two times but not in 1990. On cross-examination, claimant was asked as to her testimony that she had no back problems prior to 1987. She said no and hesitated for some time and indicated she was confused and does not remember. She was then asked about a July 20, 1978 record of Dr. Roberts (Jt. Ex. 6, p. 10) in which she referred to a low back pain. Claimant was also referred to joint exhibit 2, page 31, in which she marked that she had received workers' compensation for small back injury. This document is dated March 12, 1981. When asked again whether she had ever had back injury prior to 1981, she indicated she didn't remember and then indicated she possibly saw a chiropractor one or two times for her shoulder. Claimant appeared very confused. Claimant did not ever recall receiving workers' compensation. When asked about a back brace and if she ever wore one, she was very confused and initially seemed to indicate that she had never worn a back brace but eventually upon questioning and because there was a reference to a brace in her medical records which would involve a period prior to 1990, claimant seemed to indicate that there was a type of brace or cloth corset that she had worn but she could not recall any particulars concerning it. The undersigned is alarmed at the lack of recall and the claimant's inability to recall certain events, particularly since there are other events that she can recall. Claimant did not admit to any memory or mental problems. Claimant indicated that she then could recall a workers' compensation matter in which she hurt her finger in a door but again had no recollection of her having stated on a document that she had received workers' compensation for an injury to her lower back in 1978. It is hard to believe that claimant mixed up a finger injury with a back injury. Basically, claimant does not remember a 1978 back problem. Claimant then was questioned concerning Dr. Roberts' July 1991 visit in which there is nothing in his record showing a history as to claimant loading an aisle with oil (Jt. Ex. 6, pp. 3 and 4). She indicated she remembered telling him about it but it is obvious he didn't write it down. The undersigned notes that she had a difficult time remembering many things that may be important and yet seems to remember that she told him this even though the doctor didn't write it down. Claimant again seemed very confused. Claimant's husband, Jerry Smith, testified that he knew claimant for the last seven or eight years and that after living together approximately two years, they married in 1988. He said that claimant played volleyball, softball and Page 6 they also bought a Tri-Hull boat in the summer of 1988. He indicated that they had purchased a Torpedo to ride on and also skis. He said claimant water-skied in July and August of 1989 but did not play softball after 1988 season because the city league dissolved. He recalled claimant's 1987 back problems but indicated that after seeing the doctor a couple of time he doesn't remember claimant having more physical problems until June of 1990 after she was moving the trees at her employer's place of business. He recalled that claimant wore a canvas-type corset prior to 1987 but never wore it more than one week at a time. He said he didn't know anything about a brace and didn't know that one had been prescribed. William A. Roberts, M.D., an orthopedic surgeon, testified through his deposition on January 25, 1993 (Defendants' Ex. A). He indicated that he specializes in spine surgery and 75 percent of his practice deals with spinal disorders. His first contact with claimant was on September 26, 1990, and the referral to him was through a relative of claimant's and not through another doctor. He related the history that claimant gave him and indicated that by the time she had come to see him at the office her symptoms had improved and were minimal at the time. He indicated the various tests and the nature of the examination he gave her and it appears that her examination was normal and he felt her symptoms at the time of the initial evaluation were those of mechanical low back pain secondary to her Grade II isthmic spondylolisthesis of the lumbosacral junction (Def. Ex. A, p. 8). The doctor was asked concerning the history he had written down that claimant indicated she had low back discomfort over the past 12 years. He was not able to tell when the spondylolisthesis came into existence in claimant's low back and indicated pain is not a determining factor when it begins. He said the vast majority occurs during the person's teen years but may not develop until the patients are in their 20's or 30's. In September 1990, he did not consider claimant a surgical candidate and it would be the patient determining whether she wanted the ultimate surgery and not the doctor in this type of situation. He related that her functional capacity assessment was done around October 1990 at a self limiting lifting weight of 20 pounds. He indicated that claimant's threshold of pain was such that at the 20 pound limit she was no longer able to lift because of her pain (Def. Ex. A, p. 10). The doctor indicated he next saw claimant in May of Page 7 1991, at which time he told the claimant that if she became incapacitated she could see him on an as-needed basis. Other than that, it appeared he could do nothing for her. The doctor then testified he saw claimant next time around August 7, 1991, at which time she related to him that she had an episode approximately one week earlier in which she had extreme pain and could not get up off the floor and needed assistance of two or three individuals in order to get up. It is obvious this is the event that occurred when she was down on all fours trying to plug in an alarm clock. It is also reflected in the doctor's office notes of August 7, 1991, on joint exhibit 6, page 3. There is nothing in the doctor's notes that would indicate the work injury or event earlier that day at defendant employer's in which claimant testified that she was moving cases of oil and felt some discomfort. Claimant indicated on this August date that she was desirous of surgery and on September 17, 1991, the doctor performed a decompression and fusion of L4 to the sacrum with isola rods. The procedure performed was described as spinal decompression of the L5-S1 nerve roots with reduction of spondylolisthesis and stabilization utilizing pedicular screws and isola rods utilizing the Lugac Galveston fixation (Jt. Ex. 6, p. 4). In March of 1992, the doctor put a weight restriction of 30 pounds and also opined on August 21, 1992, that claimant had a 10 percent impairment as a result of the two level fusion for spondylolisthesis without residual symptoms and an additional 7 percent due to the limitation of the lumbar motion which resulted in a total of 17 percent permanent functional impairment (Jt. Ex. 6, pp, 6; Def. Ex. A, p. 15). The doctor indicated that a person going through the surgical procedure usually desires such when the situation gets so bad that the claimant can no longer stand the pain. The doctor indicated that with this type of spondylolisthesis, a particular mechanical problem with the back results because of or as a reflection of cumulative trauma. The repetitive loading of soft tissue would eventually lead to in certain patients soft tissue failure and increasing pain, decreasing function and subsequent incapacitation. The doctor wasn't surprised that claimant ended up with a surgical procedure. The doctor could not say it was this particular incident or that particular incident that resulted in the procedure but that each episode has a role to play that only results in a person's decision to have surgery. The doctor could not apportion it out to say one had a greater impact than another. The doctor was asked and emphasized again that the only history he had of an incident that was away from the work place was when he saw claimant on August 7, 1991, and the claimant had given him her history update. He has no other record of an incident. The undersigned might note the record shows that this one incident the doctor noted had to be the incident in which claimant was attempting to plug in an alarm clock. It appears the letter of October 3, 1991 (Jt. Ex. 6, p. 17) sums up the problem and difficulty in this case as to trying to determine a causation of claimant's difficulty. The doctor related that it was Page 8 indeed difficult to determine what particular event has led to the fact that claimant has decided to undergo surgical stabilization. He believed that it was a culmination of repeated loading and stress across the lumbosacral junction, some which has occurred at work and some which has not. He indicated it was impossible for him to clearly tell what percent of her symptoms are a reflection of aggravation due to work and which are a reflection of aggravation of activities not performed at work. Claimant's exhibit C is a transcript of a telephone conversation on July 10, 1990 between the claimant and a representative of the defendant insurance company. There had been questions asked of the claimant concerning whether she ever wore a back brace. There has been some mention of this earlier in this decision. Claimant basically could not recall of any back brace and this exhibit was then offered into evidence. On page 4 of said exhibit claimant specifically referred to the fact that she was fitted for a back brace and wore it for several years. She then lost it but then was later fitted with another brace and wore it for awhile. The undersigned has a hard time believing that the claimant could not recall having a brace and particularly could not recall wearing anything until this exhibit was brought forth. She later acknowledged that she had a corset-type brace made of canvas-like material. She was also asked if she had any other injuries to her back at any other time and she indicated on page 7 that she was not aware of any even though it was obvious she had a back injury from a trauma in 1987 besides having her other back problems from her back condition. In the same telephone conversation, she indicated that she does very little swimming and hardly any water-skiing. In her testimony in court, she indicated she had not water-skied after 1987 (Def. Ex. C, p. 8). Joint exhibit 2, page 9, reflects an answer to interrogatory in which the defendant employer related two incident in 1991 in which they were notified that claimant was having problems with her back. One was on June 24, 1991, in which claimant called the employer that her back was bothering her as a result of a long drive coming back from a vacation in Minnesota. Testimony during the trial indicated that claimant was on a several day fishing trip in Minnesota and when she came back she asked to take off four days as vacation because of her back being stiff and pain after her trip. The other incident in the answer to interrogatory reflects claimant called defendant employer on July 8, 1991, informing them that she had injured her back while attempting to put a plug into an outlet at home. There is nothing concerning notifying the employer that she was injured moving cases of oil. Joint exhibit 4, page 4, is a September 10, 1987 x-ray report that shows claimant had a stage I spondylolisthesis and a spondylosis of L5 and osteoarthritis involving both sacroiliac joints. X-rays done on June 4, 1990, represented by joint exhibit 4, page 5, show that at that time claimant had a grade II spondylolisthesis of L5 on S1 and there appears to be bilateral spondylolysis at the pars Page 9 interarticularis of L5 and the disc space of the L4-5 level is narrowed. Page 8 of said exhibit reflects that on June 14, 1990, claimant gave a history of only a July 28, 1978 low back pain but mentioned nothing of her prior back history or her 1987 injury. Joint exhibit 5, page 2, reflects that on July 13, 1990, Edwin A. Crowell, M.D., who officed with Dr. Northup, indicated that claimant has had back trouble off and on for many years and that she has an obvious spondylolisthesis with a big step-off. His notes further indicate that claimant's spine is unstable and that she has had trouble for many years and will probably not do well. As to claimant's May 30, 1990 injury, the parties stipulated that claimant incurred an injury that arose out of and in the course of her employment and paid 16.714 weeks of healing period or temporary total disability benefits. These were paid at a rate of $129.90 but the parties agreed that they should have been paid at $145.99 and defendants agreed that the difference will be paid. Claimant contends that she incurred another injury on July 8, 1991. It appears in both cases claimant contends permanent disability was incurred. Claimant has had a long history of back problems extending for several years before her May 30, 1990 injury. Claimant is currently 37 years of age and at age 32 she already had a diagnosed grade I spondylolisthesis condition. By June of 1990, she had reached a grade II. Spondylolisthesis is not caused by a trauma. It is a condition that is hereditary and usually begins at least by the time a person is in their teens and often starts developing in their 20's and 30's. The medical history and record in this case shows that claimant was sitting on a medical condition that could be aggravated by even a small amount of activity whether it be work or nonwork. The restrictions that claimant ultimately was given pursuant to her injuries or alleged injuries were actually restrictions that would have been advisable for claimant to follow even prior to any real showing of symptoms because of her back condition which was gradually developing and worsening. Claimant has been involved in various activities, both work and nonwork, that could have an aggravating effect on her spondylolisthesis condition. Claimant has been active in various athletic events and nonwork situations. As Dr. Roberts has mentioned, there are many things that could be causing claimant's problems and he could not pinpoint any one thing. There is no doctor or medical record that specifically causally connects any permanent condition that claimant may have to either the May 30, 1989 or the July 8, 1991 alleged injuries. The parties agree that claimant did incur an injury on May 30, 1990, and payments for temporary total disability or healing period was paid. There is no evidence or medical record that indicates claimant incurred a permanent injury or disability as a result of that injury. Claimant had Page 10 returned to work. She had a 20 pound restriction but this restriction was advisable because of claimant's condition which the undersigned also finds to be spondylolisthesis and finds was not caused by any injury. The undersigned finds that on May 30, 1990, she had a temporary aggravation of her preexisting back condition but that no permanency resulted therefrom. The undersigned finds that the claimant has not carried her burden to show there was a causal connection as to a permanent disability. The undersigned finds, therefore, that there is no industrial disability incurred because of the May 30, 1990 low back injury. As an additional issue, claimant seeks medical benefits, as represented on joint exhibit 9. Joint exhibit 9 is an itemization of certain bills which includes bills represented for both alleged injuries. Although no separate bills were enclosed and the defendants have not specifically challenged those bills incurred from May 1, 1991, inclusively back to June 1, 1990, they acknowledged that they were authorized but contend there is no causal connection. The undersigned finds that the defendants are responsible for those bills represented on joint exhibit 9 beginning June 1, 1990 through May 1, 1991. The undersigned finds that claimant takes nothing further regarding the May 30, 1990 low back injury. As to the July 8, 1991 alleged injury, the undersigned has considerable concern based on the medical record as to whether an injury occurred that arose out of and in the course of claimant's employment. Just prior to that date, claimant had returned from a fishing vacation and requested four additional days before returning to work after said vacation because she had back pain and stiffness in her back. Claimant is known to water ski. Even though the record is contradictory as to when she last skied it appears she skied more recently than what she testified to. There were several areas in her testimony and in a telephone conversation in which she did not appear to honestly state the same or similar facts, depending on to whom she was talking to or giving a history to, and also her lack of memory in certain areas is suspicious. Claimant contends that on July 8, 1991, she injured her back at work while moving cases of oil. Yet, when she saw the doctor on August 7, 1991, she indicated she was having increased discomfort and referred to an episode a week earlier in which she could not get up off the floor and needed the assistance of two individuals to help her get up. It is obvious the incident that was referred to one week earlier had to have been the incident that claimant testified to in which she was crawling on the floor in order to plug an alarm into the wall socket. In claimant's testimony in court, she seemed to indicate that the incident of crawling on the floor occurred the evening of the same day at work that she claimed she moved cases of oil. The undersigned believes that taking the record as a whole and Page 11 other things concerning claimant's testimony that the doctor's record is accurate and reflects the fact that claimant was in there on August 7, 1991 because of this alarm clock incident in which she felt sharp pain in her back and had to be helped to get up off the floor and that it wasn't as a result of moving cases of oil. One would think that she would have mentioned that to the doctor. Claimant's next visit to the doctor was in September 1991 and she shortly thereafter had her surgery. It appears to the undersigned that this surgery was something that stabilized her increasing, damaging spondylolisthesis condition and that this condition needed to be stabilized because of claimant's preexisting condition and that this preexisting condition was not substantially or materially aggravated or lighted up by a July 8, 1991 alleged injury. Claimant now has 30 pound restrictions. As indicated earlier, this would not be an unreasonable restriction taking into consideration claimant's condition prior to May 30, 1990, due to her back condition. There is no medical doctor or report that specifically causally connects claimant's current condition or need for surgery to a specific injury on July 8, 1991. The record indicates that there could be one or more of several causes for claimant's problems. In addition thereto, claimant did not fully disclose her true medical history to some of the doctors. These could have been important in the ultimate decision or conclusion or opinion by the doctor. We do not have here a latent, inactive preexisting condition. We have a situation which one could describe as a time bomb ready to explode and that there were just as many nonwork activities or incidents that could cause claimant's problems as there is work activities. Again, it is clear from Dr. Roberts' notes that claimant was in to see him because of the incident in which she was attempting to plug in the alarm clock, the incident she was referring to as happening one week before August 7, 1991. Claimant requested medical bills to be paid by defendants. Said bills are represented on joint exhibit 9 and those particularly related to this July 8, 1991 alleged injury would begin July 24, 1991 through September 29, 1991. The undersigned finds that claimant has failed in her burden to prove that she incurred an injury that arose out of and in the course of her employment on July 8, 1991, and further failed to prove any causal connection as to claimant's alleged medical condition and ultimate surgery and any July 8, 1991 alleged injury. In light of the above ruling, the undersigned therefore finds that defendants are not responsible for any of claimant's medical bills incurred as a result of an alleged July 8, 1991 injury and are not responsible for any of those bills on joint exhibit 9 beginning July 24, 1991 to the present. Page 12 It is therefore found that claimant takes nothing as a result of an alleged injury on July 8, 1991, and that claimant pays the costs as to file No. 991514. CONCLUSIONS OF LAW Claimant has the burden of proving by a preponderance of the evidence that she received an injury on July 8, 1991, which arose out of and in the course of her employment. McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. 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 injuries of May 30, 1990 and July 8, 1991, are causally related to the disability on which she now bases her claim. Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). Lindahl v. L. O. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945). A possibility is insufficient; a probability is necessary. Burt v. John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955). The question of causal connection is essentially within the domain of expert testimony. Bradshaw v. Iowa Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). However, expert medical evidence must be considered with all other evidence introduced bearing on the causal connection. Burt, 247 Iowa 691, 73 N.W.2d 732. The opinion of experts need not be couched in definite, positive or unequivocal language. Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974). However, the expert opinion may be accepted or rejected, in whole or in part, by the trier of fact. Id. at 907. Further, the weight to be given to such an opinion is for the finder of fact, and that may be affected by the completeness of the premise given the expert and other surrounding circumstances. Bodish, 257 Iowa 516, 133 N.W.2d 867. See also Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967). While a claimant is not entitled to compensation for the results of a preexisting injury or disease, the mere existence at the time of a subsequent injury is not a defense. Rose v. John Deere Ottumwa Works, 247 Iowa 900, 908, 76 N.W.2d 756, 760-61 (1956). If the claimant had a preexisting condition or disability that is aggravated, accelerated, worsened or lighted up so that it results in disability, claimant is entitled to recover. Nicks v. Davenport Produce Co., 254 Iowa 130, 115 N.W.2d 812, 815 (1962). The Iowa Supreme Court cites, apparently with approval, the C.J.S. statement that the aggravation should be material if it is to be compensable. Yeager v. Firestone Tire & Rubber Co., 253 Iowa 369, 112 N.W.2d 299 (1961); 100 C.J.S. Workmen's Compensation sec. 555(17)a. As to the May 30, 1990 injury, it is further concluded that claimant was temporary totally disabled and as stipulated by the parties received 16.714 weeks of Page 13 compensation at the rate of $129.90, plus claimant received $399.82 in temporary partial disability benefits through November 2, 1990. Defendants will pay as agreed the additional amount between $129.90 and the actual rate of $145.99. It is further concluded that defendants are to pay claimant's medical expenses as shown on joint exhibit 9 beginning June 1, 1990 through May 1, 1991, and that claimant did not incur any permanent disability or industrial disability as a result of a May 30, 1990 work injury. Claimant takes nothing further from this proceeding. As to the July 8, 1991 alleged injury, represented by file No. 991514, it is further concluded that claimant did not incur a low back injury which arose out of and in the course of her employment on July 8, 1991, and that there was no causal connection between claimant's alleged permanent disability and her ultimate surgery in September 1991 to any July 8, 1991 alleged work injury. Claimant did not incur any permanent or industrial disability as a result of her alleged July 8, 1991 work injury. Defendants are not responsible for claimant's medical bills represented by joint exhibit 9 concerning bills beginning July 24, 1991 to the present. Claimant lacked credibility. Claimant takes nothing in this proceeding. ORDER THEREFORE, it is ordered: That regarding the May 30, 1990 alleged injury (file No. 954626), claimant takes nothing further from these proceedings. That defendants shall pay the costs of this action, pursuant to rule 343 IAC 4.33. That regarding the July 8, 1991 alleged injury (file No. 991514), claimant takes nothing from these proceedings. That claimant shall pay the costs of this action, pursuant to rule 343 IAC 4.33. Signed and filed this ____ day of March, 1993. ______________________________ BERNARD J. O'MALLEY DEPUTY INDUSTRIAL COMMISSIONER Page 14 Copies to: Mr Tito Trevino Attorney at Law 801 Carver Bldg P O Box 1680 Fort Dodge IA 50501 Mr Harry W Dahl Attorney at Law 974 73rd St Ste 16 Des Moines IA 50312 5-1108; 5-1400; 5-2503; 5-1100 Filed March 5, 1993 Bernard J. O'Malley BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ : PHYLLIS SMITH, : : Claimant, : : File Nos. 991514 vs. : 954626 : PAMIDA, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : CRUM & FORSTER INSURANCE, : : Insurance Carrier, : Defendants. : ___________________________________________________________ 5-1108; 5-1404 Found claimant failed to prove she incurred an industrial disability as a result of her May 30, 1990 low back injury. Claimant was paid temporary total disability and some temporary partial disability benefits but took nothing further from proceedings. 5-2503 Found defendants responsible for some medical expenses resulting from May 30, 1990 work injury. 5-1100; 5-1108; 5-1400 Found claimant did not prove she incurred an injury that arose out of and in the course of her employment on July 8, 1991, nor did she prove any causal connection between the alleged injury and her low back condition. 5-2503 Claimant denied recovery for medical benefits and surgery as to the alleged July 8, 1991 injury.