BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
 
 
 GEORGE REDD,
 
 
 
      Claimant,    
 
 
 
 vs.
 
                                          File No. 966304
 
 LAMONT LIMITED,                            
 
 
 
      Employer,                             A P P E A L
 
                               
 
 and                                      D E C I S I O N
 
 
 
 USF & G,
 
 
 
      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.
 
 
 
                              ISSUE
 
 
 
      The issue on appeal is:
 
 
 
 Whether claimant has proved that he sustained an injury which 
 
 arose out of and in the course of his employment on July 26, 1990.
 
 
 
                         FINDINGS OF FACT
 
 
 
      The findings of fact contained in the proposed agency 
 
 decision filed March 10, 1992 are adopted as set forth below. 
 
 Segments designated by asterisks (*****) indicate portions of the 
 
 language from the proposed agency decision that have been 
 
 intentionally deleted and do not form a part of this final agency 
 
 decision. Segments designated by brackets ([ ]) indicate language 
 
 that is in addition to the language of the proposed agency 
 
 decision.
 
 
 
 Having considered all the evidence received, together with the 
 
 appearance and demeanor of the witnesses, the following findings 
 
 of fact are made.
 

 
 
 
 
 
 
 
 REDD V. LAMONT LIMITED
 
 Page 2
 
 
 
 
 
 
 
 There is an irreconcilable conflict in the evidence presented by 
 
 the respective parties. Claimant asserts that he injured his low 
 
 back and neck while turning a cabinet frame which he was in the 
 
 process of assembling; that the frame weighed approximately 50 
 
 pounds; that he reported injuring his neck and back to co-worker 
 
 Lisa Rose Welborn and supervisor Jim Belger; that he spoke with 
 
 his supervisor, Belger, on the following day; and, that when he 
 
 sought medical treatment at the Fort Madison Community emergency 
 
 room on July 28, he gave a history of injuring his back and neck 
 
 while at work. At hearing, Redd told of a popping and tearing 
 
 sensation while at work on July 26, 1990, and that it was followed 
 
 by extreme pain, profuse sweating and a feeling of nausea. He 
 
 reported vomiting later on a number of occasions. Welborn and 
 
 Belger both testified at hearing to the effect that the only thing 
 
 Redd complained of on July 26, 1990, was his lower abdomen and a 
 
 kidney stone condition for which he was scheduled to be off work 
 
 and having surgery within a few days following July 26, 1990. 
 
 Belger placed the weight of the frame at 35 pounds. Redd denied 
 
 having pain from his kidney condition; his only admitted complaint 
 
 was a problem urinating. Belger testified that Redd had complained 
 
 of pain associated with the kidney condition. Welborn is no longer 
 
 employed by Lamont, but Belger is now a plant manager in the 
 
 Lamont organization.
 
 
 
 According to Belger, his first knowledge that Redd claimed any 
 
 work-related injury or injury to his neck or back came 
 
 approximately three weeks following the kidney stone surgery at 
 
 which time Redd requested workers' compensation claim forms and 
 
 reported having crushed a vertebra on his last day of work.
 
 
 
 A review of the exhibits in this case shows that Redd was seeking 
 
 medical care for a urinary tract problem and that his treating 
 
 urologist was Edeliro A. Escobar, M.D. The physician's records 
 
 indicate that claimant sought treatment because of increasing pain 
 
 which had its onset approximately two years earlier (Joint Exhibit 
 
 15, page 5). This record is in direct conflict with the claimant's 
 
 testimony that pain was not one of the symptoms of his urinary 
 
 tract problem. The first page of joint exhibit 15 shows that Redd 
 
 sought treatment on July 3, 1990, for pain in what was described 
 
 as his left flank area and that the assessment made was that he 
 
 had kidney stones.
 
 
 
 The third page of exhibit 15 shows that when Redd presented 
 
 himself at the hospital on July 28, 1990, he did complain of pain 
 
 in his neck and left arm as well as nausea. The report notes that 
 
 Redd placed the onset approximately three days earlier, but also 
 
 states that there was no known trauma or previous injury. The 
 
 record shows that Redd received physical therapy treatment for his 
 
 neck complaints commencing August 13, 1990 (Jt. Ex. 15, pages 8-
 
 10).
 

 
 
 
 
 
 
 
 REDD V. LAMONT LIMITED
 
 Page 3
 
 
 
 
 
 
 
 A report from Charles Kennard, M.D., who attended Redd when he 
 
 first presented to the hospital emergency room on July 28, 1990, 
 
 indicates that Redd was readmitted later on July 28, 1990, under 
 
 the direction of Dr. Escobar when a urinalysis showed numerous red 
 
 blood cells (Jt. Ex. 13). The report indicates that Dr. Escobar 
 
 had apparently related to Dr. Kennard that the claimant's pain and 
 
 complaints could be a result of renal colic or renal irritation 
 
 and that, if numerous blood cells were found, it would indicate 
 
 such an irritation. The first mention of any relationship between 
 
 lifting at work and the claimant's neck pain is in a physical 
 
 therapy treatment plan report which appears to be dated on or 
 
 about August 13, 1990, a date two to three weeks after the surgery 
 
 (Jt. Ex. 15, p. 8).
 
 
 
 Redd received treatment for his neck complaints at the University 
 
 of Iowa Hospitals and Clinics. On September 25, 1990, fusion 
 
 surgery of the claimant's C5-6 and C6-7 cervical spine was 
 
 performed. The operation record shows the existence of a large 
 
 hard osteophyte on the C5 body and a smaller osteophyte on the C6 
 
 body. Ruptured disc materials were removed (Jt. Ex. 8). The 
 
 treating surgeon, Christopher M. Loftus, M.D., has related the 
 
 cervical problem with a work-related injury (Jt. Ex. 2). Dr. 
 
 Loftus also provided an impairment rating of eight percent of the 
 
 whole person referable to the cervical condition and five percent 
 
 due to degenerative changes in the claimant's lumbar spine for a 
 
 total of thirteen percent of the whole person (Jt. Ex. 1).
 
 
 
 During the course of claimant's treatment, he was diagnosed as 
 
 having axonel polyneuropathy of undetermined etiology which was 
 
 responsible for his lower extremity complaints (Jt. exhibits 16-
 
 18). It is noted that, from the information available in the 
 
 record of this case, it appears as though Dr. Loftus was not aware 
 
 of the episodes of vomiting which afflicted claimant commencing on 
 
 July 26, 1990 (Jt. Ex. 3). Dr. Loftus is not shown to have had an 
 
 accurate understanding of Redd's work activities.
 
 
 
 Redd has obtained treatment for his neck and back condition at the 
 
 Sister Kenny Institute in Minneapolis, Minnesota (Jt. Exs. 4-6).
 
 
 
 The type of work which Redd was performing does not appear to be 
 
 the type of activity or trauma which would be expected to produce 
 
 a herniated cervical disc, cause the formation of osteophytes or 
 
 cause any degenerative lower back condition. The type of work does 
 
 not appear to be anything which could reasonably be expected to 
 
 significantly aggravate any type of preexisting degenerative 
 
 condition.****There is nothing to indicate that nausea was 
 
 produced by anything other than the urinary tract condition as is 
 
 indicated in exhibit 13.
 

 
 
 
 
 
 
 
 REDD V. LAMONT LIMITED
 
 Page 4
 
 
 
 
 
 
 
 ****[It is not probable that claimant's work aggravated 
 
 preexisting degenerative conditions in his neck and lower back.] 
 
 The claimant's denial of pain symptoms associated with his urinary 
 
 tract condition is found to be incorrect as established by the 
 
 medical records, namely exhibit 15, pages I and 5. The testimony 
 
 from claimant that he reported a popping or tearing sensation and 
 
 neck and low back pain to Lisa Rose Welborn and Jim Belger is not 
 
 sufficiently strong to outweigh their contrary testimony. It is 
 
 found that the evidence fails to show it to be more likely than 
 
 not that the onset of the claimant's neck and back symptoms began 
 
 on July 26, 1990, while he was lifting cabinet frames which he was 
 
 assembling at his place of employment.****In view of the 
 
 uncertainty regarding the history which Dr. Loftus relied upon 
 
 when expressing his opinion of causation as found in exhibit 2, 
 
 that opinion will not be relied upon to establish the existence of 
 
 a causal connection between the employment and the cervical 
 
 condition. The leg complaints appear to be very likely related to 
 
 the axonel polyneuropathy which is not shown to be a work-related 
 
 condition.
 
 
 
                        CONCLUSIONS OF LAW
 
 
 
      The conclusions of law contained in the proposed agency 
 
 decision filed March 10, 1992 are adopted as set forth below. 
 
 Segments designated by asterisks (*****) indicate portions of the 
 
 language from the proposed agency decision that have been 
 
 intentionally deleted and do not form a part of this final agency 
 
 decision. Segments designated by brackets ([ ]) indicate language 
 
 that is in addition to the language of the proposed agency 
 
 decision.
 
 
 
 Claimant has the burden of proving by a preponderance of the 
 
 evidence that he received an injury on July 26, 1990, which arose 
 
 out of and in the course of his employment. McDowell v. Town of 
 
 Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. Cent. Tel. 
 
 Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
 
 
 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).
 
 
 
 The claimant has the burden of proving by a preponderance of the 
 
 evidence that the injury of July 26, 1990, is causally related to 
 
 the disability on which he now bases his claim. Bodish v. Fischer. 
 
 Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). Lindahl v. L. O. Boqqs, 
 
 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 Hosp., 251 Iowa 375, 101 N.W.2d 167 
 
 (1960).
 

 
 
 
 
 
 
 
 REDD V. LAMONT LIMITED
 
 Page 5
 
 
 
 
 
 
 
 While it is certainly possible that George Redd experienced the 
 
 onset of neck pain in the manner which he described at hearing, 
 
 his testimony in that regard is not corroborated by any coworker 
 
 [sic], supervisor or written medical report issued promptly 
 
 following the incident. He most certainly did have pain complaints 
 
 regarding his neck and placed those pain complaints as having 
 
 their onset on July 26, 1990. There is, however, nothing in the 
 
 early records which attributes those complaints to his employment 
 
 in any fashion. It is not until a report issued in mid-August that 
 
 any reference to his work is suggested as a source of the neck 
 
 complaints. When viewed in light of the testimony from Lisa Rose 
 
 Welborn and Jim Belger, it is determined that George Redd has 
 
 failed to prove, by a preponderance of the evidence, that he 
 
 injured his neck at work on July 26, 1990, or that his neck 
 
 condition for which he subsequently underwent surgery and remains 
 
 to have residual complaints was in any manner caused or 
 
 substantially aggravated by any part of his employment duties on 
 
 July 26, 1990, or at any other time. It is therefore concluded 
 
 that George Redd is not entitled to recover for his neck condition 
 
 or the expenses of treating that neck condition from the employer 
 
 and its insurance carrier in this case.
 
 
 
 The record with regard to the claimant's lower back condition and 
 
 leg complaints is even less favorable to the claimant's claim than 
 
 that regarding his neck condition. The physicians attribute the 
 
 leg symptoms to a polyneuropathy of undetermined origin. They 
 
 report that they have no evidence that a spinal cord injury would 
 
 cause peripheral nerve damage of the type which claimant exhibits 
 
 (Jt. Ex. 18). In view of this, the claimant has failed to prove, 
 
 by a preponderance of the evidence, that any condition affecting 
 
 his low back or legs is related to any work injury that might have 
 
 occurred on July 26, 1990. To the contrary, the evidence fails to 
 
 support the claimant's claim of any work injury having occurred on 
 
 July 26, 1990, whatsoever.
 
 
 
 The claimant's burden is to prove his claim by a preponderance of 
 
 the evidence. This requires that the evidence in the record show 
 
 it to be more likely than not that the claimant was injured and 
 
 that the injury produced the injury upon which this claim is 
 
 based.****[Claimant has not met his burden of proof.]
 
 
 
 It is therefore concluded that George Redd has failed to prove, by 
 
 a preponderance of the evidence, that he sustained any injury 
 
 which arose out of and in the course of his employment with the 
 
 employer on or about July 26, 1990.
 
 
 
 WHEREFORE, the decision of the deputy is affirmed.
 

 
 
 
 
 
 
 
 REDD V. LAMONT LIMITED
 
 Page 6
 
 
 
 
 
 
 
                                ORDER
 
      
 
      THEREFORE, IT IS ORDERED:
 
      
 
      That the claimant take nothing from this proceeding.
 
      
 
      That claimant shall pay the costs of this matter including 
 
 the transcription of the hearing.
 
 
 
      Signed and filed this 27th day of August, 1992.
 
 
 
 
 
 
 
 
 
 
 
                                   BYRON K. ORTON
 
                                   INDUSTRIAL COMMISSIONER
 
 
 
 Copies To:
 
 
 
 Mr. George E. Wright
 
 Attorney at Law
 
 607 Eighth Street
 
 Fort Madison, Iowa  52627
 
 
 
 Mr. John D. Stonebraker
 
 Mr. Mark D. Cleve
 
 Attorneys at Law
 
 P.O. Box 2746
 
 Davenport, Iowa  52809
 
 
 
 
 
 
 
 
 
 
 
 
                                                  5-1402.20
 
                                                  Filed August 27, 1992
 
                                                  BYRON K. ORTON
 
 
 
                  BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
 
 
 GEORGE REDD,
 
 
 
      Claimant,
 
 vs.                                              File No. 966304
 
 
 
 LAMONT LIMITED,                                    A P P E A L
 
 
 
      Employer,                                  D E C I S I O N
 
 and
 
 
 
 USF & G,
 
 
 
      Insurance Carrier,
 
      Defendants.
 
 
 
 
 
 
 
 5-1402.20
 
 
 
 Claimant's credibility was determined not to be sufficiently 
 
 strong to overcome conflicting evidence regarding the onset of 
 
 his symptoms.
 
 
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            GEORGE REDD,                  :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :         File No. 966304
 
                                          :
 
            LAMONT LIMITED,               :      A R B I T R A T I O N
 
                                          :
 
                 Employer,                :         D E C I S I O N
 
                                          :
 
            and                           :
 
                                          :
 
            U S F & G,                    :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding in arbitration brought by George 
 
            Redd against his former employer, Lamont Limited, and its 
 
            insurance carrier, U S F & G, based upon an alleged injury 
 
            of July 26, 1990.  Redd asserts that he injured his neck and 
 
            low back while assembling a frame for a wicker bathroom 
 
            cabinet.  He seeks compensation for healing period, 
 
            permanent disability and payment of medical expenses.
 
            
 
                 Defendants deny that Redd sustained any injury which 
 
            arose out of and in the course of his employment on July 26, 
 
            1990, and further deny that any alleged injury is a 
 
            proximate cause of any disability which has afflicted him or 
 
            of any medical treatment and resulting expenses which he has 
 
            incurred.
 
            
 
                 The case was heard and fully submitted at Davenport, 
 
            Iowa, on March 5, 1992.  The record consists of testimony 
 
            from George Redd, Gwendolyn Redd, Lisa (Rose) Welborn and 
 
            James Belger.  The evidence also consists of jointly offered 
 
            exhibits 1 through 19 and claimant's exhibit 1.
 
            
 
                                 findings of fact
 
            
 
                 Having considered all the evidence received, together 
 
            with the appearance and demeanor of the witnesses, the 
 
            following findings of fact are made.
 
            
 
                 There is an irreconcilable conflict in the evidence 
 
            presented by the respective parties.  Claimant asserts that 
 
            he injured his low back and neck while turning a cabinet 
 
            frame which he was in the process of assembling, that the 
 
            frame weighed approximately 50 pounds, that he reported 
 
            injuring his neck and back to coworker Lisa Rose Welborn and 
 
            supervisor Jim Belger, that he spoke with his supervisor, 
 
            Belger, on the following day and that, when he sought 
 
            medical treatment at the Fort Madison Community emergency 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            room on July 28, he gave a history of injuring his back and 
 
            neck while at work.  At hearing, Redd told of a popping and 
 
            tearing sensation while at work on July 26, 1990, and that 
 
            it was followed by extreme pain, profuse sweating and a 
 
            feeling of nausea.  He reported vomiting later on a number 
 
            of occasions.  Welborn and Belger both testified at hearing 
 
            to the effect that the only thing Redd complained of on July 
 
            26, 1990, was his lower abdomen and a kidney stone condition 
 
            for which he was scheduled to be off work and having surgery 
 
            within a few days following July 26, 1990.  Belger placed 
 
            the weight of the frame at 35 pounds.  Redd denied having 
 
            pain from his kidney condition; his only admitted complaint 
 
            was a problem urinating.  Belger testified that Redd had 
 
            complained of pain associated with the kidney condition.  
 
            Welborn is no longer employed by Lamont, but Belger is now a 
 
            plant manager in the Lamont organization.
 
            
 
                 According to Belger, his first knowledge that Redd 
 
            claimed any work-related injury or injury to his neck or 
 
            back came approximately three weeks following the kidney 
 
            stone surgery at which time Redd requested workers' 
 
            compensation claim forms and reported having crushed a 
 
            vertebra on his last day of work.
 
            
 
                 A review of the exhibits in this case shows that Redd 
 
            was seeking medical care for a urinary tract problem and 
 
            that his treating urologist was Edeliro A. Escobar, M.D.  
 
            The physician's records indicate that claimant sought 
 
            treatment because of increasing pain which had its onset 
 
            approximately two years earlier (joint exhibit 15, page 5).  
 
            This record is in direct conflict with the claimant's 
 
            testimony that pain was not one of the symptoms of his 
 
            urinary tract problem.  The first page of joint exhibit 15 
 
            shows that Redd sought treatment on July 3, 1990, for pain 
 
            in what was described as his left flank area and that the 
 
            assessment made was that he had kidney stones.
 
            
 
                 The third page of exhibit 15 shows that, when Redd 
 
            presented himself at the hospital on July 28, 1990, he did 
 
            complain of pain in his neck and left arm as well as nausea.  
 
            The report notes that Redd placed the onset approximately 
 
            three days earlier, but also states that there was no known 
 
            trauma or previous injury.  The record shows that Redd 
 
            received physical therapy treatment for his neck complaints 
 
            commencing August 13, 1990 (joint exhibit 15, pages 8-10).
 
            
 
                 A report from Charles Kennard, M.D., who attended Redd 
 
            when he first presented to the hospital emergency room on 
 
            July 28, 1990, indicates that Redd was readmitted later on 
 
            July 28, 1990, under the direction of Dr. Escobar when a 
 
            urinalysis showed numerous red blood cells (joint exhibit 
 
            13).  The report indicates that Dr. Escobar had apparently 
 
            related to Dr. Kennard that the claimant's pain and 
 
            complaints could be a result of renal colic or renal 
 
            irritation and that, if numerous blood cells were found, it 
 
            would indicate such an irritation.  The first mention of any 
 
            relationship between lifting at work and the claimant's neck 
 
            pain is in a physical therapy treatment plan report which 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            appears to be dated on or about August 13, 1990, a date two 
 
            to three weeks after the surgery (joint exhibit 15, page 8).
 
            
 
                 Redd received treatment for his neck complaints at the 
 
            University of Iowa Hospitals and Clinics.  On September 25, 
 
            1990, fusion surgery of the claimant's C5-6 and C6-7 
 
            cervical spine was performed.  The operation record shows 
 
            the existence of a large hard osteophyte on the C5 body and 
 
            a smaller osteophyte on the C6 body.  Ruptured disc 
 
            materials were removed (joint exhibit 8).  The treating 
 
            surgeon, Christopher M. Loftus, M.D., has related the 
 
            cervical problem with a work-related injury (joint exhibit 
 
            2).  Dr. Loftus also provided an impairment rating of eight 
 
            percent of the whole person referable to the cervical 
 
            condition and five percent due to degenerative changes in 
 
            the claimant's lumbar spine for a total of thirteen percent 
 
            of the whole person (joint exhibit 1).
 
            
 
                 During the course of claimant's treatment, he was 
 
            diagnosed as having axonel polyneuropathy of undetermined 
 
            etiology which was responsible for his lower extremity 
 
            complaints (joint exhibits 16-18).  It is noted that, from 
 
            the information available in the record of this case, it 
 
            appears as though Dr. Loftus was not aware of the episodes 
 
            of vomiting which afflicted claimant commencing on July 26, 
 
            1990 (joint exhibit 3).  Dr. Loftus is not shown to have had 
 
            an accurate understanding of Redd's work activities.
 
            
 
                 Redd has obtained treatment for his neck and back 
 
            condition at the Sister Kenny Institute in Minneapolis, 
 
            Minnesota (joint exhibits 4-6).
 
            
 
                 The type of work which Redd was performing does not 
 
            appear to be the type of activity or trauma which would be 
 
            expected to produce a herniated cervical disc, cause the 
 
            formation of osteophytes or cause any degenerative lower 
 
            back condition.  The type of work does not appear to be 
 
            anything which could reasonably be expected to significantly 
 
            aggravate any type of preexisting degenerative condition.  
 
            On the other hand, violent vomiting has been known to 
 
            aggravate degenerative conditions and produce herniated 
 
            discs.  There is nothing to indicate that nausea was 
 
            produced by anything other than the urinary tract condition 
 
            as is indicated in exhibit 13.
 
            
 
                 It is found to be possible that the claimant's work did 
 
            in some manner aggravate preexisting degenerative conditions 
 
            in his neck and lower back or produce the disc problems.  It 
 
            is, however, found to be just as possible that a preexisting 
 
            degenerative condition in his back and neck was aggravated 
 
            or the disc problem was caused by vomiting or some other 
 
            unidentified off-work activity.  The claimant's denial of 
 
            pain symptoms associated with his urinary tract condition is 
 
            found to be incorrect as established by the medical records, 
 
            namely exhibit 15, pages 1 and 5.  The testimony from 
 
            claimant that he reported a popping or tearing sensation and 
 
            neck and low back pain to Lisa Rose Welborn and Jim Belger 
 
            is not sufficiently strong to outweigh their contrary 
 
            testimony.  It is found that the evidence fails to show it 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            to be more likely than not that the onset of the claimant's 
 
            neck and back symptoms began on July 26, 1990, while he was 
 
            lifting cabinet frames which he was assembling at his place 
 
            of employment.  It is found to be at least as likely that 
 
            the claimant's neck and low back symptoms had their onset at 
 
            some other time and place.  In view of the uncertainty 
 
            regarding the history which Dr. Loftus relied upon when 
 
            expressing his opinion of causation as found in exhibit 2, 
 
            that opinion will not be relied upon to establish the 
 
            existence of a causal connection between the employment and 
 
            the cervical condition.  The leg complaints appear to be 
 
            very likely related to the axonel polyneuropathy which is 
 
            not shown to be a work-related condition.
 
            
 
                                conclusions of law
 
            
 
                 Claimant has the burden of proving by a preponderance 
 
            of the evidence that he received an injury on July 26, 1990, 
 
            which arose out of and in the course of his employment. 
 
            McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa 
 
            1976); Musselman v. Cent. Tel. Co., 261 Iowa 352, 154 N.W.2d 
 
            128 (1967). 
 
            
 
                 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).
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury of July 26, 
 
            1990, is causally related to the disability on which he now 
 
            bases his claim.  Bodish v. Fischer, Inc., 257 Iowa 516, 133 
 
            N.W.2d 867 (1965).  Lindahl v. L. O. Boggs, 236 Iowa 296, 18 
 
            N.W.2d 607 (1945).  A possibility is insufficient; a 
 
            probability is necessary.  Burt v. John Deere Waterloo 
 
            Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955).  The 
 
            question of causal connection is essentially within the 
 
            domain of expert testimony.  Bradshaw v. Iowa Methodist 
 
            Hosp., 251 Iowa 375, 101 N.W.2d 167 (1960). 
 
            
 
                 While it is certainly possible that George Redd 
 
            experienced the onset of neck pain in the manner which he 
 
            described at hearing, his testimony in that regard is not 
 
            corroborated by any coworker, supervisor or written medical 
 
            report issued promptly following the incident.  He most 
 
            certainly did have pain complaints regarding his neck and 
 
            placed those pain complaints as having their onset on July 
 
            26, 1990.  There is, however, nothing in the early records 
 
            which attributes those complaints to his employment in any 
 
            fashion.  It is not until a report issued in mid-August that 
 
            any reference to his work is suggested as a source of the 
 
            neck complaints.  When viewed in light of the testimony from 
 
            Lisa Rose Welborn and Jim Belger, it is determined that 
 
            George Redd has failed to prove, by a preponderance of the 
 
            evidence, that he injured his neck at work on July 26, 1990, 
 
            or that his neck condition for which he subsequently 
 
            underwent surgery and remains to have residual complaints 
 
            was in any manner caused or substantially aggravated by any 
 
            part of his employment duties on July 26, 1990, or at any 
 
            other time.  It is therefore concluded that George Redd is 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            not entitled to recover for his neck condition or the 
 
            expenses of treating that neck condition from the employer 
 
            and its insurance carrier in this case.
 
            
 
                 The record with regard to the claimant's lower back 
 
            condition and leg complaints is even less favorable to the 
 
            claimant's claim than that regarding his neck condition.  
 
            The physicians attribute the leg symptoms to a 
 
            polyneuropathy of undetermined origin.  They report that 
 
            they have no evidence that a spinal cord injury would cause 
 
            peripheral nerve damage of the type which claimant exhibits 
 
            (joint exhibit 18).  In view of this, the claimant has 
 
            failed to prove, by a preponderance of the evidence, that 
 
            any condition affecting his low back or legs is related to 
 
            any work injury that might have occurred on July 26, 1990.  
 
            To the contrary, the evidence fails to support the 
 
            claimant's claim of any work injury having occurred on July 
 
            26, 1990, whatsoever.
 
            
 
                 The claimant's burden is to prove his claim by a 
 
            preponderance of the evidence.  This requires that the 
 
            evidence in the record show it to be more likely than not 
 
            that the claimant was injured and that the injury produced 
 
            the injury upon which this claim is based.  The claimant's 
 
            credibility is not sufficiently strong to overcome the 
 
            conflicting evidence which is found in the record of this 
 
            case.
 
            
 
                 It is therefore concluded that George Redd has failed 
 
            to prove, by a preponderance of the evidence, that he 
 
            sustained any injury which arose out of and in the course of 
 
            his employment with the employer on or about July 26, 1990.
 
            
 
                                      order
 
            
 
                 IT IS THEREFORE ORDERED that the claimant, George Redd, 
 
            take nothing from this proceeding.
 
            
 
                 IT IS FURTHER ORDERED that the costs of this action are 
 
            assessed against the claimant pursuant to rule 343 IAC 4.33.
 
            
 
                 Signed and filed this ______ day of ____________, 1992.
 
            
 
                 
 
            
 
                 
 
                 
 
                                          ______________________________
 
                                          MICHAEL G. TRIER
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. George E. Wright
 
            Attorney at Law
 
            607 Eighth Street
 
            Fort Madison, Iowa  52627
 
            
 
            Mr. John D. Stonebraker
 
            Mr. Mark D. Cleve
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            Attorneys at Law
 
            P.O. Box 2746
 
            Davenport, Iowa  52809
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                               5-1402.20
 
                                               Filed March 10, 1992
 
                                               MICHAEL G. TRIER
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            GEORGE REDD,                  :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :         File No. 966304
 
                                          :
 
            LAMONT LIMITED,               :      A R B I T R A T I O N
 
                                          :
 
                 Employer,                :         D E C I S I O N
 
                                          :
 
            and                           :
 
                                          :
 
            U S F & G,                    :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
            5-1402.20
 
            Claimant's credibility was determined not to be sufficiently 
 
            strong to overcome conflicting evidence regarding the onset 
 
            of his symptoms.
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                          5-1402.40
 
                                          Filed February 27, 1992
 
                                          Patricia J. Lantz
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            BARBARA COMBS,                :
 
                                          :       File No. 966318
 
                 Claimant,                :
 
                                          :
 
            vs.                           :     A R B I T R A T I O N
 
                                          :
 
            CONTAINER CORPORATION,        :        D E C I S I O N
 
                                          :
 
                 Employer,                :
 
                 Self-Insured,            :
 
                 Defendant.               :
 
                                          :
 
            ___________________________________________________________
 
            
 
            5-1402.40
 
            Claimant failed to appear for the hearing.
 
            Based on the medical evidence provided, claimant was not 
 
            entitled to additional benefits.  She failed to prove by a 
 
            preponderance of the evidence that she had any disability 
 
            attributable to a work-related injury.
 
            
 
            
 
 
            
 
      
 
            
 
            
 
            
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            JOANN ARMSTRONG,              :
 
                                          :
 
                 Claimant,                :     File Nos. 966321
 
                                          :               966322
 
            vs.                           :
 
                                          :
 
            COUNTY MARKET,                :
 
                                          :     A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            SENTRY INSURANCE,             :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This case came on for hearing on August 26, 1993, at 
 
            Des Moines, Iowa.  These are proceedings in arbitration 
 
            wherein claimant seeks compensation for permanent partial 
 
            disability benefits as a result of alleged injuries 
 
            occurring on May 3, 1989 and February 19, 1990.  The record 
 
            in the proceedings consists of the testimony of claimant; 
 
            claimant's husband, Troy Armstrong; Gordy Smock; Shirley 
 
            Goings; and, joint exhibits 1 through 50.
 
            
 
                                      ISSUES
 
            
 
                 The issue regarding the May 3, 1989 alleged injury 
 
            (File No. 966321) is
 
            
 
                 1.  Whether claimant's injury is a body as a whole 
 
            injury or a scheduled member injury.  Claimant is claiming a 
 
            left hand injury, depression and shoulder problems.  If a 
 
            scheduled injury is found it would be to claimant's left 
 
            hand
 
            
 
                 The issues regarding the February 19, 1990 injury (File 
 
            No. 966322) are:
 
            
 
                 1.  Whether the injury arose out of and in the course 
 
            of claimant's employment on February 19, 1990;
 
            
 
                 2.  Whether there is a causal connection as to 
 
            claimant's alleged disability and a work injury on February 
 
            19, 1990;
 
            
 
                 3.  The nature and extent of claimant's permanent 
 
            partial disability and entitlement to disability benefits, 
 
            if any; and,
 
            
 
                 4.  Whether claimant gave timely notice under the 
 
            provisions of Iowa Code section 85.23.
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 The undersigned deputy, having heard the testimony and 
 
            considered all the evidence, finds that:
 
            
 
                 Claimant is a forty-three year old who went through the 
 
            tenth grade and has not received a GED.  Claimant quit 
 
            school to work.  Claimant also testified through her 
 
            deposition on April 4, 1991, represented by joint exhibit 
 
            48.
 
            
 
                 Claimant related her work history which involves 
 
            working in a department store and grocery store as a cashier 
 
            or in a fast food restaurant.  On May 3, 1989, claimant was 
 
            working for defendant employer County Market which formerly 
 
            operated under the name of Gordy's.  She began to work for 
 
            Gordy's in 1970 and has worked for this operation since that 
 
            date until February 19, 1990, which was her last day of work 
 
            for defendant.  During this 20 year period of time, claimant 
 
            described the nature of her work which involved both meat 
 
            wrapping and at times being a cashier.
 
            
 
                 Claimant described in detail the nature of her meat 
 
            wrapping job and what it entailed and the various weights 
 
            she would lift.  She indicated she would be lifting 20 or 30 
 
            pounds at times.  Claimant said she worked at both the 
 
            Waterloo and Cedar Falls store and that the store in Cedar 
 
            Falls was opened in 1989 and she was moved to that store.  
 
            She indicated that the equipment for processing meat was not 
 
            as good as the equipment at the Waterloo store.
 
            
 
                 Claimant indicated she never did injure herself at the 
 
            Waterloo store and did not miss any work.  Claimant said 
 
            that when she was transferred to the Cedar Falls store in 
 
            April 1989, the job she did as a meat wrapper was the same 
 
            as she did in Waterloo but was done in part differently as 
 
            she had to place the items on the tray and lift them 
 
            differently and the machine operated a little bit 
 
            differently at the Cedar Falls store.
 
            
 
                 Claimant described how she was injured on May 3, 1989.  
 
            Claimant described the nature of her cut which was across 
 
            the palm of her left hand and her thumb.  Claimant was taken 
 
            to the hospital emergency room, given a tetanus shot, was 
 
            stitched up and returned to defendant employer's store with 
 
            her supervisor, Fran (Francis) Macek.  Claimant indicated 
 
            her hand hurt but defendant had just received a replacement 
 
            sticker machine that put out the weight and price of the 
 
            meat product and the supervisor wanted her to see how the 
 
            machine ran and learn its operation since it was different 
 
            than the one they had been just previously using.  Claimant 
 
            then was allowed to go home.
 
            
 
                 Claimant indicated she worked the next scheduled work 
 
            day which she believed was approximately the second day 
 
            after her injury.  She wore a cotton glove over left hand 
 
            but could not use it so she did all of her work in lifting 
 
            with the right hand and body and used her left extremity in 
 
            the wrist area mainly as a balancing or support when lifting 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            trays of meat or needing some support and balance.
 
            
 
                 Claimant testified that when she returned to work she 
 
            was using her right hand more instead of her left hand.  She 
 
            began hurting in her right arm and into her shoulder and 
 
            back   It appeared to be getting worse in June and July of 
 
            1989 and she testified she complained to her supervisor, 
 
            Fran Macek.  She told Ms. Macek she thought she had pulled a 
 
            muscle.  She related her going to Thomas F. Thornton, M.D., 
 
            after complaining to Fran.  She indicated everyone in her 
 
            work place knew she was having trouble and additional 
 
            problems.
 
            
 
                 Claimant related that Shirley Goings, the personnel 
 
            manager with defendant employer, also knew of claimant's 
 
            situation and that claimant thought it was a pulled muscle.
 
            
 
                 Claimant then referred to joint exhibit 7, page 1, 
 
            which reflects her appointment with Dr. Thornton on 
 
            September 14, and his referral to David F. Poe, M.D., page 
 
            3.  Claimant indicated that she had taken three weeks off 
 
            for the therapy through Dr. Poe, an orthopedic surgeon.  
 
            Claimant then returned to work in October of 1989 after this 
 
            therapy and performed the same work in the same way still 
 
            using her right side.  She indicated that she became so bad 
 
            that she couldn't take the pain in her arm, right shoulder 
 
            and back anymore so she quit on February 19, 1990.
 
            
 
                 Claimant indicated that Dr. Poe had told her not to go 
 
            back to work and that no one released her to go back to work 
 
            except Dr. Poe released her to return to regular work duties 
 
            on October 15, 1990 (Jt. Ex. 49).
 
            
 
                 Claimant said she went back to work willing to try even 
 
            though she was having problems which included at that time 
 
            pain in her face and a film over her eyes.  She was still 
 
            having pain in her right side and shoulder and that her left 
 
            hand was still sore in the same spot as it was before.
 
            
 
                 Claimant related her trip to Iowa City Hospital and did 
 
            not seem to get much satisfaction from the treatment there.  
 
            It appeared they weren't sure what was claimant's problem 
 
            but claimant's family doctor then thought she may be 
 
            suffering from depression.  Medication helped so claimant 
 
            then went to see some psychiatrist.  Claimant now believes 
 
            that she is suffering from depression but in her early 
 
            diagnoses of that she didn't believe it.  She has seen 
 
            several psychiatrists but now is under the care of Matthew 
 
            S. Targoff, D.O.
 
            
 
                 Arnold E. Delbridge, M.D., did surgery on claimant's 
 
            hand in June of 1992, in the area where the spot was 
 
            previously tender.  She said the doctor set the nerve back 
 
            but it was still tender and she demonstrated in court the 
 
            tenderness of her hand.
 
            
 
                 Claimant was then asked questions concerning her 
 
            attempt to return to work in October 1990.  Claimant said 
 
            that she went to defendant employer's meat department and 
 
            Francis Macek said claimant's job had been terminated but 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            she nor anyone else knew when it was terminated.  She 
 
            indicated she also asked the store manager who indicated the 
 
            same but didn't know when her job was terminated.
 
            
 
                 Claimant then indicated she got mad and went upstairs 
 
            to further inquire and someone indicated that they may have 
 
            a job with a third shift with less money but no one told her 
 
            to come back or signed her up for a job.  It also appears to 
 
            the undersigned that claimant did not further pursue any 
 
            further attempt with this employer nor did the employer 
 
            follow up.
 
            
 
                 On cross-examination, she indicated that Fran Macek and 
 
            Steve Blake said she was fired.  He indicated to her that 
 
            another person was doing her job since claimant wasn't 
 
            there.  Claimant acknowledged that after fighting with the 
 
            employer, they offered her a job as cashier and then 
 
            indicated it really wasn't an offer and that it paid less 
 
            money.  Claimant indicated she had filed for unemployment 
 
            and the parties then agreed to submit joint exhibit 50 which 
 
            was a copy of the job service decision which awarded 
 
            unemployment compensation benefits.
 
            
 
                 The question was asked as to whether claimant told the 
 
            employment agency that she was able to work when she applied 
 
            for unemployment which infers that one is willing and ready 
 
            to work.  While it appears claimant didn't think she was 
 
            able to go to work and hadn't worked or done the particular 
 
            job for defendant employer for eight months, she indicated 
 
            she told the unemployment agency that she would try to see 
 
            if she could do the job.
 
            
 
                 Claimant acknowledged that she applied for social 
 
            security sometime prior to 1990 and that she has been denied 
 
            social security benefits.  It appears she has appealed that 
 
            decision.  Claimant doesn't think she can do anything now 
 
            and indicates that she doesn't want to leave the house and 
 
            wants to be by herself.
 
            
 
                 Troy F. Armstrong, claimant's husband, testified that 
 
            claimant's current mental problems began when a doctor had 
 
            told her she could return to work and when she went to work, 
 
            they told her she was terminated.  He said this affected her 
 
            as she had never before been fired or told she was incapable 
 
            to work during their 22 years of marriage.
 
            
 
                 Mr. Armstrong testified that before his wife's injury 
 
            they bowled in a mixed league, she could do the housework, 
 
            mixed well with people and liked to work.  She has been 
 
            unable to bowl since she cut her left hand and since the 
 
            additional problems developed, she no longer likes to meet 
 
            with people or be around people, including former friends.  
 
            He gave an example that they may be talking and she would 
 
            all of a sudden get up and leave and go into the bedroom and 
 
            start crying.  In many cases, he never knows when she might 
 
            do this and that she wants to be alone.
 
            
 
                 Mr. Armstrong indicated that after claimant returned to 
 
            work after having cut her left hand, her left wrist would be 
 
            black and blue from balancing things on it.  He indicated 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            she couldn't hold things with her left hand.  He said she 
 
            began to complain that her shoulder blade hurt and his wife 
 
            had told him she had told her boss of her problem.  He 
 
            testified as to some of claimant's doctor appointments and 
 
            therapy.  He thought claimant's face problems were due to 
 
            nerves.  He said he didn't want to believe that she had 
 
            depression.
 
            
 
                 Mr. Armstrong was asked as to problems there may have 
 
            been at home that might have caused claimant's depression.  
 
            He was asked concerning his mother-in-law who had lived with 
 
            them for approximately 12 years and who had breast cancer.  
 
            He indicated she is now in remission and did require care 
 
            but has not needed it in the last five years.  He said he 
 
            didn't find this to be a stressful situation and that his 
 
            mother-in-law had gone through the chemotherapy treatment.
 
            
 
                 Gordy J. Smock has worked at both of the defendant 
 
            employer's stores and has been employed with them for a 
 
            total of seven and one-half years.  He began working at the 
 
            Cedar Falls store in 1986, approximately one week after 
 
            claimant was transferred to that store.  He is a meat cutter 
 
            and when he cuts the meat is sent down on rollers to the 
 
            meat wrappers.
 
            
 
                 He agreed with the claimant's testimony as to the type 
 
            of job she did and what she had to do in wrapping the meat, 
 
            etc.  He agreed that the equipment of the Cedar Falls store 
 
            is different than at the Waterloo store and that it was 
 
            harder because it only had a shrink tunnel and all of the 
 
            meat had to be wrapped by hand which was different from 
 
            Waterloo.
 
            
 
                 He was present and saw claimant cut her hand on May 3, 
 
            1989.  He called the boss, Fran, and claimant was taken to 
 
            the hospital and returned back and helped for a short time 
 
            with the new ticker machine they had just obtained.
 
            
 
                 He said claimant got along well with people and was 
 
            friendly and talked to him and others.  He said she was able 
 
            to do the job and got along well and was willing to help 
 
            other.  In fact, he said claimant was better when it came to 
 
            friendliness with others than he and that she was a good 
 
            worker.
 
            
 
                 He said claimant was gone one or two days after this 
 
            hand incident and upon her return she would take a tray with 
 
            the right hand and put it on or balance it on her left 
 
            wrist.  He said she would wrap the meat as it was done 
 
            before but that she had to use her right hand to pull the 
 
            trays and the meat because of the condition of her left 
 
            hand.
 
            
 
                 He said claimant complained and continued to have 
 
            problems upon her return and that she eventually complained 
 
            of her back, right arm and neck hurting and she cried.  She 
 
            thought it was a pulled muscle.  He indicated that other 
 
            workers knew claimant was having problems and that Fran 
 
            along with the others are in this one large room area all 
 
            together and they see each other.
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            
 
                 He said he has never seen claimant cry before since 
 
            this injury and the pain she was having except on one 
 
            occasion which claimant had an argument with her boss.
 
            
 
                 Mr. Smock demonstrated how the meat is wrapped and 
 
            indicated that he has done some wrapping when the claimant 
 
            was gone.  It is obvious to the undersigned that to 
 
            efficiently perform this job, it is important to have two 
 
            hands.  It is also obvious that the way the claimant 
 
            described how she had to do it after her injury, there would 
 
            be a necessity to still have help from some part of the left 
 
            extremity even with the increased work and use of the right 
 
            hand.
 
            
 
                 Shirley Goings is the personnel manager with defendant 
 
            employer and has been employed with defendant employer for 
 
            17 years.  She has been the personnel manager since 
 
            September 1984.  She oversees both the Cedar Falls and 
 
            Waterloo stores.  She was present in court when claimant 
 
            testified as to the incident in which she cut her hand.
 
            
 
                 Ms. Goings indicated the first she knew about the 
 
            alleged 1990 injury was a letter from claimant's attorney 
 
            which she apparently received in December of 1990.  Ms. 
 
            Goings insisted that the claimant never told her that her 
 
            shoulder problems related to an injury and that claimant 
 
            never requested that her right shoulder bills be submitted 
 
            to the workers' compensation carrier.  Claimant indicated 
 
            she apparently sent the bills to her husband's employer's 
 
            insurance company.
 
            
 
                 Ms. Goings contends that she offered claimant a job and 
 
            indicated that she would pay the claimant the same wages she 
 
            was getting as a meat wrapper.
 
            
 
                 Ms. Goings disagreed as to claimant's contention that 
 
            she had told the claimant that her shoulder problems was not 
 
            covered by workers' compensation.  She emphasized claimant 
 
            never asked her to file a workers' compensation claim and 
 
            she never said it would or would not be covered.
 
            
 
                 Ms. Goings acknowledged that the company has a policy 
 
            as to one missing work and if one is off, they need a doctor 
 
            to state the reason.  She said that if an employee brings in 
 
            a note to this effect, okay, but the employer doesn't ask 
 
            for a note from the doctor.  She acknowledged she never 
 
            asked the claimant to bring in a report from Dr. Thornton or 
 
            Dr. Poe.
 
            
 
                 Ms. Goings acknowledged that she appeared at the 
 
            unemployment hearing and told the judge that she had offered 
 
            claimant work as a cashier and the claimant refused.  She 
 
            acknowledged that the claimant did get unemployment 
 
            compensation.  Ms. Goings was unable to explain why claimant 
 
            got unemployment benefits when defendant employer had a job 
 
            available.  Ms. Goings again indicated she thought claimant 
 
            quit.
 
            
 
                 Although it appears there is some confusion in Ms. 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            Goings' testimony as to whether she knew claimant had neck 
 
            and shoulder problems, near the end of her 
 
            cross-examination, it appeared that she indicated she knew 
 
            claimant had shoulder and neck problems but emphasized that 
 
            claimant did not attribute it to her work or that Ms. Goings 
 
            didn't think it was work connected.
 
            
 
                 Claimant has pled two injuries, one on May 3, 1989 and 
 
            one on February 19, 1990, but also further acknowledges that 
 
            the undersigned could find that the February 19, 1990 injury 
 
            was a sequela of the May 3, 1989 injury and was not in fact 
 
            a new injury.  Defendants do not deny that claimant incurred 
 
            an injury on May 3, 1989 and contend it was to the left hand 
 
            and are paying on that basis and on the only impairment 
 
            rating issued herein by any doctor.
 
            
 
                 The undersigned finds that claimant incurred an injury 
 
            on May 3, 1989, when she cut her hand and that subsequently 
 
            after healing she returned to work in October of 1989 and 
 
            favored her left hand that had ten stitches thereon.  The 
 
            undersigned finds that claimant has a very tender and sore 
 
            spot on her left hand that to this day is still very tender 
 
            to the touch even though external appearances show it is 
 
            completely healed.
 
            
 
                 There is no dispute that upon claimant returning to 
 
            work she continued to do her meat wrapping job.  This nature 
 
            of her work was demonstrated not only by her but also by a 
 
            Mr. Smock and it is obvious to the undersigned that this 
 
            incurred considerable use of the hands and if one did not 
 
            have full use of both hands, that it is necessary that 
 
            claimant had to use her right upper extremity and hands much 
 
            more than she did before.  She was then using her left hand 
 
            for balancing.  The undersigned therefore finds that we do 
 
            not have two injuries but, in fact, claimant's complaints to 
 
            her right shoulder and neck is a sequela of her May 3, 1989 
 
            injury.
 
            
 
                 The above finding disposes of defendants' affirmative 
 
            defense that the defendants did not have timely notice under 
 
            the provisions of Iowa Code section 85.23 as to any February 
 
            19, 1990 injury.  The undersigned finds that even if it was 
 
            not determined the February 19, 1990 incident was a sequela 
 
            to the May 3, 1989 injury, that in fact defendant employer 
 
            did have timely notice of problems claimant was having and 
 
            therefore the affirmative defense of defendants' would have 
 
            failed in either situation.
 
            
 
                 Arnold E. Delbridge, M.D., an orthopedic surgeon, 
 
            testified by deposition on April 21, 1992.  Dr. Delbridge 
 
            did not treat claimant but saw her on two occasions, 
 
            November 6, 1991 and March 6, 1992.  He testified as to his 
 
            diagnosis which included a laceration of the radial digital 
 
            nerve of the left index finger.  He emphasized that it was 
 
            purely a sensory nerve.  He indicated that at the time of 
 
            her visit she had a neuroma formation and that there was 
 
            extreme hypersensitivity in the distal palm where the cut is 
 
            and that that is where the neuroma formation was located.  
 
            He said that when it is touched even lightly pain shoots 
 
            down the finger and there is extreme hypersensitivity in 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            that area.
 
            
 
                 At the time his deposition was taken he indicated and 
 
            recommended that the area should be explored and possible 
 
            surgery because claimant was only able to use the ulnar 
 
            three fingers and the thumb to pick up something because 
 
            anything that touched her palm resulted in her not being 
 
            able to grip it because of the high sensitivity (Jt. Ex. 1, 
 
            p. 8).  He couldn't guarantee that any surgery would result 
 
            in less hypersensitivity.  He indicated that because of 
 
            recovering from the surgery, claimant would be limited to 
 
            light duty and mainly in a one handed-type job that would 
 
            require some help from her injured hand.  He indicated that 
 
            it is unlikely full duty unrestricted work would occur in 
 
            this claimant ever, but there should be some improvement.  
 
            He also indicated that there would be some limitation 
 
            because there is a problem with claimant's right upper 
 
            extremity and that she would have difficulty doing work 
 
            above the shoulder level (Jt. Ex. 1, p. 11).  He indicated 
 
            claimant's problem with her right upper extremity is the 
 
            result of overuse syndrome that he had diagnosed.  He also 
 
            referred to Dr. Poe talking about claimant's overuse 
 
            syndrome (Jt. 1, p. 12).
 
            
 
                 The doctor indicated that claimant had an impingement 
 
            sign.  She had pain to the subacromial area of her shoulder 
 
            (Jt. Ex. 1, p. 16).  He acknowledged that an overuse 
 
            syndrome is a difficult problem to rate and also indicated 
 
            that the AMA Guides do not go far enough and are hazy in 
 
            attempting to rate that condition (Jt. Ex. 1, pp. 17-18).  
 
            The doctor indicated it was unlikely for claimant to be able 
 
            to return to her job that she had as long as her 
 
            hypersensitivity persists because of it being a two handed 
 
            job.  He also indicated that until the neuroma is taken care 
 
            of she is very limited with her left hand.  The doctor 
 
            emphasized that claimant should have surgery to her left 
 
            hand if there is any hope of improvement and he is willing 
 
            to do it if the defendant insurance authorizes it.  The 
 
            doctor emphasized again that there has been a permanent 
 
            impairment to claimant's right upper extremity which he 
 
            connected to the left hand but the recovery to her right 
 
            upper extremity is currently incomplete.  The doctor 
 
            described a neuroma as a bulbous glob of nerve tissue that 
 
            can get quite sizable and is often very sensitive (Jt. Ex. 
 
            1, p. 32).
 
            
 
                 He said claimant's condition had not changed much 
 
            between her November 6, 1991 and March 6, 1992 visit to him.  
 
            He indicated that there was a permanent impairment to 
 
            claimant's right upper extremity (Jt. 1, pp. 29, 33).
 
            
 
                 Daniel J. McGuire, M.D., testified through his 
 
            deposition on May 6, 1992.  He examined claimant first on 
 
            August 9, 1991, and then again on April 9, 1992.  This 
 
            deposition was typical of Dr. McGuire's and his reports in 
 
            which a lot of verbiage an comments are made and are often 
 
            of little substance.   It would appear that he doesn't 
 
            believe in or doesn't believe the words "overuse syndrome" 
 
            should be used (Jt. Ex. 2, p. 45).  The undersigned sees no 
 
            use in trying to set out anything more of this doctor's 
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            deposition.  
 
            
 
                 Joint exhibit 3 is the reports and some records of Dr. 
 
            Delbridge.  His records show progression reports concerning 
 
            claimant's condition and he makes certain impairment 
 
            conclusions.  He first saw claimant at her attorney's 
 
            request on November 6, 1991 for an evaluation.  He 
 
            subsequently saw her again on March 6, 1992, and then saw 
 
            her several times in 1992 and 1993.
 
            
 
                 Dr. Delbridge's July 22, 1993 letter indicates that 
 
            claimant had reached maximal improvement on February 8, 
 
            1993.  He indicates she could not return to her original job 
 
            and he did anticipate that she would be able to return to 
 
            her previous job in the foreseeable future.
 
            
 
                 The doctor had written a June 7, 1993 report in which 
 
            at that time he opined that claimant had a 5 percent left 
 
            hand impairment due to a 25 percent impairment of the left 
 
            index finger and gave her an additional 5 percent impairment 
 
            since she still had some high sensitivity because of the 
 
            recovering nerve.  This evaluation was an improvement over 
 
            previous ones that he had made.
 
            
 
                 He also opined that claimant still has an overuse 
 
            syndrome and at times some limitation of motion of the right 
 
            upper extremity and he opined that she had a right upper 
 
            extremity impairment at 10 percent and converted that to 6 
 
            percent of the whole person.
 
            
 
                 On July 15, 1993, the doctor referred to the 
 
            restrictions that he had given to the insurance company 
 
            regarding the claimant on June 7, 1993, which he indicated 
 
            were the same restrictions she had on February 8, 1993.  The 
 
            limits were raised to the extent that she could now use both 
 
            hands up to 10 pounds of repetitive lifting as long as she 
 
            does not have to work above chest level and does no repeated 
 
            reaching or pulling.  She also is to maintain restrictions 
 
            against hard gripping of the right hand.   Claimant has 
 
            hypersensitivity in her left hand but it does appear to be 
 
            improving over time (Jt. Ex. 3, pp. 22-26).
 
            
 
                 There are several other reports of doctors and medical 
 
            records that are represented by joint exhibits 4 through 8.  
 
            The undersigned sees no reason to detail them in light of 
 
            this total decision.
 
            
 
                 The undersigned might note at this point that in 
 
            September of this year the deputies have been instructed to 
 
            by the industrial commissioner to keep their decisions as 
 
            short as possible while still complying with the law and 
 
            supreme court.
 
            
 
                 Joint exhibit 10, dated April 28, 1992, indicates that 
 
            R.M. Akbar, M.D., saw claimant on that date for psychiatric 
 
            evaluation as a referral from the Disability Determination 
 
            Services in Des Moines.  His diagnosis in part was that 
 
            claimant had a dysthymic chronic pain disorder and anxiety 
 
            disorder or somatizaton disorder and had a history of injury 
 
            to her left hand and a chronic neck, back and lower back 
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
            pain.  He further concluded that claimant definitely 
 
            presents with a syndrome of depression which was directly 
 
            related to her chronic pain disorder, she was impaired in 
 
            her ability to interact with her coworkers, is not able to 
 
            carry out instructions in a meaningful manner in the work 
 
            place, and that her activities around home are quite limited 
 
            as a result of her chronic pain (Jt. Ex. 10).
 
            
 
                 There are additional medical records and reports 
 
            reflected by joint exhibits 11 through 22.  The undersigned 
 
            believes it is not necessary to set out these records for 
 
            the reasons previously stated in regard to certain other 
 
            medical exhibits.
 
            
 
                 Interrogatories 23 through 39 are medical bills.  The 
 
            parties have stipulated, depending on my decision, as to the 
 
            payment or nonpayment of the same.
 
            
 
                 Joint exhibit 40 has basically to do with the rate and 
 
            since it was stipulated to, the undersigned does not see any 
 
            importance for most of that exhibit.
 
            
 
                 Joint exhibit 42 is a report from Dr. N.S. Pangilinan, 
 
            M.D., a psychiatrist, whose May 11, 1993 report was made 
 
            obviously upon referral for social security purposes.  This 
 
            doctor's history of claimant is similar to other 
 
            psychiatrists as to the problems claimant has been having 
 
            since her 1989 and 1990 episodes or alleged injuries.  This 
 
            doctor opined that claimant appears to be suffering from 
 
            moderate to severe depression despite being maintained on 
 
            anti-depressant medication.
 
            
 
                 Joint exhibit 43 is a report from Ralph Scott, Ph.D., a 
 
            licensed psychologist, who issued a psychological evaluation 
 
            report on April 10, 1993.  This summary indicates that 
 
            claimant was cooperative during the evaluation but was 
 
            extremely somber and pessimistic.  He indicates her overall 
 
            behavior was consistent with depressed mood.  Her aptitude 
 
            testing, both verbal and nonverbal tasks, was in the upper 
 
            range of the borderline classification to the very lowest 
 
            rung of the low average classification (p. 3).  He also 
 
            reflected that these scores are not considered fully 
 
            representative of claimant's cognitive potentials given the 
 
            evidence that the emotional factors depress the quality of a 
 
            number of her responses.  The psychologist did not believe 
 
            claimant could successfully perform under the conditions of 
 
            competitive employment.  Like some of the other psychiatrist 
 
            reports, this report indicates that claimant was able to 
 
            handle cash.  The inference on this which is clear from 
 
            other reports is that this was done for social security 
 
            purposes and that if she received benefits she would be able 
 
            to handle them on her own.
 
            
 
                 Joint exhibit 47 is an August 17, 1993 report from 
 
            Michael J. Taylor, M.D.  Although the letterhead does not 
 
            indicate any way that he is a psychiatrist, he is known as 
 
            such.  The claimant was referred to him through the 
 
            defendants' attorney.  He indicated the most appropriate 
 
            diagnosis for claimant was that her current psychiatric 
 
            problem was a major depressive disorder.  He also indicated 
 

 
            
 
            Page  11
 
            
 
            
 
            
 
            
 
            that it had excellent prognosis which you could expect with 
 
            aggressive treatment with anti-depressant medication and 
 
            that if such was done, she would have no permanent 
 
            psychiatric limitations.  He was the only psychiatrist that 
 
            indicated claimant could be improved with aggressive 
 
            anti-depressant medication and that she would then have no 
 
            permanent psychiatric limitations.  Of course, this doctor 
 
            saw claimant not only once, but it was just approximately 
 
            one week before the hearing.  Defendants have denied 
 
            liability so claimant hasn't been treated at defendants' 
 
            cost assuming Dr. Taylor is correct.
 
            
 
                 There are two files in this case, one alleging a May 3, 
 
            1989 injury to the left hand and the ultimate resulting 
 
            psychological problems resulting therefrom, and a February 
 
            19, 1990 injury to her right shoulder and back and alleges a 
 
            body as a whole injury.
 
            
 
                 It is also obvious not only from the evidence, 
 
            statement from counsel, and a hearing report that two 
 
            petitions are filed but likewise the issue is whether the 
 
            February 19, 1990 injury is a sequela of the May 3, 1989 
 
            injury.  If that is found, then in fact we have one injury 
 
            that occurred on May 3, 1989, and the rate for that injury 
 
            the parties stipulated to.
 
            
 
                 The undersigned believes that the greater weight of 
 
            medical evidence clearly shows that claimant's problems 
 
            began with her hand injury on May 3, 1989 and because of the 
 
            nature of the hand injury, the sensitivity, and claimant's 
 
            motivation to continue to work, that she favored her right 
 
            side which was necessary in order to perform her job with 
 
            defendant employer, which job involved basically meat 
 
            wrapping.  Two individuals, including claimant, described 
 
            the action necessary in order to perform her job and wrap 
 
            meat and it is obvious to the undersigned that it really 
 
            required a full use of two hands to efficiently do the job.  
 
            It is further obvious that the claimant had to balance 
 
            things on her left wrist but had to extensively use the 
 
            right side of her body to perform her job.  The undersigned 
 
            finds that because of claimant changing the nature of 
 
            performing her job and having to use her right upper 
 
            extremities more than usual did cause claimant's problems 
 
            with her right shoulder and into her body as a whole.  
 
            Evidence of this is found in numerous medical reports and 
 
            history.  The undersigned finds that there was only the one 
 
            injury of May 3, 1989, and that the sequela to that resulted 
 
            in claimant's further injury and that there was not a 
 
            separate traumatic injury on February 19, 1990.
 
            
 
                 There is no denial that claimant had a left hand injury 
 
            and in fact defendants voluntarily paid for that injury that 
 
            they feel is strictly to the left hand and paid a healing 
 
            period connected therewith.  Defendants dispute that there 
 
            was any psychological injury resulting from her May 3, 1989 
 
            hand injury and also deny that any injury occurred on 
 
            February 19, 1990, or that there was even a sequela to her 
 
            May 3, 1989 injury.  The undersigned finds that the greater 
 
            weight of medical evidence disproves defendants' contention.
 
            
 

 
            
 
            Page  12
 
            
 
            
 
            
 
            
 
                 This above finding disposes of defendants' contention 
 
            involving the February 19, 1990 alleged injury that there 
 
            was lack of timely notice under the provisions of Iowa Code 
 
            section 85.23.  This issue is moot in light of the above 
 
            findings but even if there had been two separate injuries 
 
            concluded in the facts of this case, the defendants would 
 
            have failed on the timely notice issue in light of the 
 
            claimant's complaints and the record of evidence in this 
 
            case.
 
            
 
                 The undersigned finds that claimant's May 3, 1989 
 
            injury and the sequela thereto caused claimant to not only 
 
            have an impairment to her left hand, but also an overuse 
 
            syndrome to her right upper extremity (shoulder) and into 
 
            her body as a whole and believes that the opinion of Dr. 
 
            Delbridge is supported by the greater weight of evidence.  
 
            The undersigned finds that claimant has a 5 percent 
 
            impairment to her hand as a result of a 25 percent 
 
            impairment of her left index finger and that she has an 
 
            additional 5 percent impairment due to her hypersensitivity 
 
            because of her recovering nerve, giving her a total of 10 
 
            percent impairment to her left hand.  Claimant also has 
 
            impairment to her right upper extremity of 10 percent which 
 
            is 6 percent of the body as a whole.  These impairments are 
 
            per the opinion of Dr. Delbridge (Jt. Ex. 3) which the 
 
            undersigned feels are accurate and the best medical 
 
            evidence.  Dr. Delbridge uses the word "right upper 
 
            extremity" but it is obvious in his reports and the evidence 
 
            that he feels this injury is to claimant's shoulder and goes 
 
            into her body as a whole.  Using the combined charts and 
 
            converting the 10 percent impairment to the hand to the 
 
            upper extremity and then to the body as a whole results in a 
 
            5 percent body as a whole and a 6 percent body as a whole, 
 
            and on the combined charts results in claimant having an 11 
 
            percent impairment to the body as a whole as to the above.  
 
            The undersigned finds that the greater weight of medical 
 
            evidence shows that the above impairment is caused by 
 
            claimant's May 3, 1989 injury and the sequela in 1990.
 
            
 
                 Claimant also contends psychological injury.  It is 
 
            apparent to the undersigned that claimant has a depressive 
 
            condition or a condition that causes her to appear depressed 
 
            and without warning to cry and withdraw.  The undersigned 
 
            believes this is real.  There is also testimony in addition 
 
            to the various doctor reports which involved several 
 
            psychiatrists that refer to claimant's depression and her 
 
            overall psychiatric condition.  The record shows that 
 
            claimant was not having any psychiatric problems prior to 
 
            her May 3, 1989 injury.  Claimant has been a good worker and 
 
            motivated prior to injury.  There is no other explanation of 
 
            what caused claimant's psychiatric problems other than her 
 
            injury and the resulting circumstances flowing therefrom 
 
            which included the sequela in 1990 and the fact that she did 
 
            not and wasn't able to do her job, her losing her job and 
 
            the fact that benefits have basically been denied as far as 
 
            her depression and her shoulder and body as a whole injury.
 
            
 
                 Defendants contend that claimant was offered a job back 
 
            in October 1990.  Claimant contends that although she was 
 
            released to work and was going to try to work, she felt she 
 

 
            
 
            Page  13
 
            
 
            
 
            
 
            
 
            was not able to.  It appears undisputed that claimant was 
 
            not offered her meat wrapping job back as it had already 
 
            been filled.  It is obvious from the record that claimant 
 
            would not have been able to perform that job even if it had 
 
            been offered to her.
 
            
 
                 Defendants contend that they offered her another job 
 
            that she could do and claimant disputes this.  It is a 
 
            matter of who the undersigned is to believe.  The 
 
            undersigned believes that this is best settled by looking at 
 
            joint exhibit 50 which is an October 30, 1990 decision of 
 
            the Job Service of Iowa in which the dispute was resolved.  
 
            Claimant was awarded unemployment compensation benefits and 
 
            the employer did not appeal said decision.  It is obvious 
 
            from that exhibit that both parties presented evidence to 
 
            support their position.  This Job Service decision is 
 
            conclusive and upholds claimant's contention.
 
            
 
                 The undersigned believes that the employer could have 
 
            made a more concerted effort to offer claimant employment if 
 
            it was sincere in doing so or had employment available and 
 
            could have followed up either on that occasion or pursuant 
 
            to the unemployment compensation hearing.  This defendant is 
 
            the most logical company to employ this claimant.  Because 
 
            of the nature of that company, it is hard to believe that 
 
            they wouldn't have a job for her.  The undersigned believes 
 
            that had they made a concerted effort, this could have gone 
 
            a long way in claimant's psychological recovery.
 
            
 
                 Although some psychiatrists seemed to indicate 
 
            claimant's inability to perform her past job and also leave 
 
            the impression of an inability of doing many other jobs, the 
 
            undersigned believes that once this litigation is over, this 
 
            may help solve some of her problems.  This decision also 
 
            might cause some effort on the part of the defendant to work 
 
            with the claimant toward some type of employment.  There is 
 
            some indication from at least one psychiatrist that maybe a 
 
            more aggressive treatment of claimant might enable her to 
 
            get back into the workforce.  The undersigned believes 
 
            getting claimant back into some type of job she can handle 
 
            and working her into that job will also be helpful.  
 
            Claimant has applied, it appears on more than one occasion, 
 
            for social security disability benefits and they have been 
 
            denied to date.
 
            
 
                 The parties agree that claimant was off work on 
 
            February 19, 1990 through February 8, 1993, and the 
 
            defendants paid a healing period beginning June 15, 1992, 
 
            when claimant had her last hand surgery through February 8, 
 
            1993.  The parties are disputing as to whether claimant 
 
            should receive healing period benefits beginning February 
 
            19, 1990 up to but not including June 15, 1992.  That 
 
            dispute for healing period appears to arise from the dispute 
 
            as to whether an injury occurred on February 19, 1990 or 
 
            whether it was a sequela of the May 3, 1989 injury.
 
            
 
                 In light of the above finding that we have one injury 
 
            and that any occurrence on February 19, 1990 was a sequela 
 
            of the May 3, 1989 injury, the undersigned finds that 
 
            claimant is entitled to additional healing period beginning 
 

 
            
 
            Page  14
 
            
 
            
 
            
 
            
 
            February 19, 1990 up to and not including June 15, 1992.  
 
            The undersigned agrees that the healing period already paid 
 
            for June 15, 1992 through February 8, 1993 is owed and 
 
            claimant was entitled to that but that appears not to be an 
 
            issue.  Defendants have not denied that claimant had a left 
 
            hand injury on May 3, 1989.  Defendants contend that that 
 
            was her only injury and was a scheduled injury.
 
            
 
                  The undersigned therefore finds that claimant has 
 
            incurred an injury on May 3, 1989 with a sequela to that 
 
            injury on February 19, 1990, and that these arose out of and 
 
            in the course of claimant's employment and caused claimant 
 
            to incur healing period, impairments to the body as a whole 
 
            injury and industrial disability, and that such industrial 
 
            disability does include claimant having suffered 
 
            psychological damage.
 
            
 
                 The undersigned therefore finds that taking into 
 
            consideration claimant's age, pre and post-work and medical 
 
            history, her motivation, nature of her impairments, extent 
 
            of her healing period, the nature and location of her 
 
            injury, her restrictions, claimant's potential for 
 
            vocational rehabilitation, her intelligence, her emotional 
 
            condition, her education, and the employer's inability to 
 
            give claimant suitable work after injury, claimant has 
 
            incurred a 75 percent industrial disability.
 
            
 
                 Medical benefits under Iowa Code section 85.27 are in 
 
            dispute but the dispute basically has to do with causal 
 
            connection.  The parties had agreed that if in fact causal 
 
            connection was found as to the February 19, 1990 injury or 
 
            sequela to the May 3, 1989 injury, the medical would not be 
 
            in dispute and the medical that is in evidence herein would 
 
            be paid by defendants.  The undersigned therefore finds that 
 
            defendant are responsible for the medical represented by the 
 
            various exhibits.
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                 Claimant has the burden of proving by a preponderance 
 
            of the evidence that she received an injury on May 3, 1989, 
 
            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 injury of May 3, 
 
            1989, is 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 
 

 
            
 
            Page  15
 
            
 
            
 
            
 
            
 
            connection.  Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion 
 
            of experts need not be couched in definite, positive or 
 
            unequivocal language.  Sondag v. Ferris Hardware, 220 N.W.2d 
 
            903 (Iowa 1974).  However, the expert opinion may be 
 
            accepted or rejected, in whole or in part, by the trier of 
 
            fact.  Id. at 907.  Further, the weight to be given to such 
 
            an opinion is for the finder of fact, and that may be 
 
            affected by the completeness of the premise given the expert 
 
            and other surrounding circumstances.  Bodish, 257 Iowa 516, 
 
            133 N.W.2d 867.  See also Musselman, 261 Iowa 352, 154 
 
            N.W.2d 128 (1967).
 
            
 
                 An injury to a scheduled member which, because of 
 
            aftereffects (or compensatory change), creates impairment to 
 
            the body as  whole entitles claimant to industrial 
 
            disability.  Barton v. Nevada Poultry Co., 253 Iowa 285, 110 
 
            N.W.2d 660 (1961).  Dailey v. Pooley Lumber Co., 233 Iowa 
 
            758, 10 N.W.2d 569 (1943).
 
            
 
                 If a claimant contends he has industrial disability he 
 
            has the burden of proving his injury results in an ailment 
 
            extending beyond the scheduled loss.  Kellogg v. Shute and 
 
            Lewis Coal Co., 256 Iowa 1257, 130 N.W.2d 667 (1964).
 
            
 
                 For example, a defendant employer's refusal to give any 
 
            sort of work to a claimant after he suffers his affliction 
 
            may justify an award of disability.  McSpadden v. Big Ben 
 
            Coal Co., 288 N.W.2d 181 (Iowa 1980).
 
            
 
                 Functional impairment is an element to be considered in 
 
            determining industrial disability which is the reduction of 
 
            earning capacity, but consideration must also be given to 
 
            the injured employee's age, education, qualifications, expe
 
            rience and inability to engage in employment for which he is 
 
            fitted.  Olson v. Goodyear Service Stores, 255 Iowa 1112, 
 
            125 N.W.2d 251 (1963).  Barton v. Nevada Poultry, 253 Iowa 
 
            285, 110 N.W.2d 660 (1961).
 
            
 
                 A finding of impairment to the body as a whole found by 
 
            a medical evaluator does not equate to industrial disabil
 
            ity.  This is so as impairment and disability are not syn
 
            onymous.  Degree of industrial disability can in fact be 
 
            much different than the degree of impairment because in the 
 
            first instance reference is to loss of earning capacity and 
 
            in the latter to anatomical or functional abnormality or 
 
            loss.  Although loss of function is to be considered and 
 
            disability can rarely be found without it, it is not so that 
 
            a degree of industrial disability is proportionally related 
 
            to a degree of impairment of bodily function.
 
            
 
                 Factors to be considered in determining industrial dis
 
            ability include the employee's medical condition prior to 
 
            the injury, immediately after the injury, and presently; the 
 
            situs of the injury, its severity and the length of healing 
 
            period; the work experience of the employee prior to the 
 
            injury, after the injury and potential for rehabilitation; 
 
            the employee's qualifications intellectually, emotionally 
 
            and physically; earnings prior and subsequent to the injury; 
 
            age; education; motivation; functional impairment as a 
 
            result of the injury; and inability because of the injury to 
 

 
            
 
            Page  16
 
            
 
            
 
            
 
            
 
            engage in employment for which the employee is fitted.  Loss 
 
            of earnings caused by a job transfer for reasons related to 
 
            the injury is also relevant.  These are matters which the 
 
            finder of fact considers collectively in arriving at the 
 
            determination of the degree of industrial disability.
 
            
 
                 There are no weighting guidelines that indicate how 
 
            each of the factors are to be considered.  There are no 
 
            guidelines which give, for example, age a weighted value of 
 
            ten percent of the total value, education a value of fifteen 
 
            percent of total, motivation - five percent; work experience 
 
            - thirty percent, etc.  Neither does a rating of functional 
 
            impairment directly correlate to a degree of industrial 
 
            disability to the body as a whole.  In other words, there 
 
            are no formulae which can be applied and then added up to 
 
            determine the degree of industrial disability.  It therefore 
 
            becomes necessary for the deputy or commissioner to draw 
 
            upon prior experience, general and specialized knowledge to 
 
            make the finding with regard to degree of industrial dis
 
            ability.  See Peterson v. Truck Haven Cafe, Inc., (Appeal 
 
            Decision, February 28, 1985); Christensen v. Hagen, Inc., 
 
            (Appeal Decision, March 26, l985).
 
            
 
                 It is further concluded that claimant incurred an 
 
            injury on May 3, 1989, which arose out of and in the course 
 
            of her employment, and that there was a sequela to said 
 
            injury on February 19, 1990.
 
            
 
                 The original injury and sequela caused claimant to 
 
            incur an impairment to her left hand, an impairment to her 
 
            right shoulder that went into the body as a whole, and 
 
            caused psychological injury all of which caused claimant an 
 
            industrial disability of 75 percent.
 
            
 
                 Claimant's injury and sequela thereto caused claimant 
 
            to incur a healing period beginning February 19, 1990 
 
            through February 8, 1993, of which the healing period of 
 
            June 15, 1992 through February 8, 1993 has been paid by 
 
            defendants, thereby leaving a healing period due and owing 
 
            of 120.571 weeks.
 
            
 
                 Medical expenses that have been incurred that are 
 
            represented by the exhibits herein are the obligation of 
 
            defendants.
 
            
 
                 As to the February 19, 1990 alleged injury represented 
 
            by file number 966322, that was not a separate traumatic 
 
            injury but was a sequela of the May 3, 1989 injury referred 
 
            to above represented by file number 966321, and because of 
 
            this conclusion all of the other issues specifically set out 
 
            in reference to that particular file are moot.
 
            
 
                 The parties stipulated to a rate of $159.26, but 
 
            according to the Guide To Iowa Workers' Compensation Claim 
 
            Handling (Benefit Schedule), the correct rate for a May 3, 
 
            1989 injury (married with three exemptions with a weekly 
 
            wage of $220.19), the correct rate would be $152.66.
 
            
 
                                      ORDER
 
            
 

 
            
 
            Page  17
 
            
 
            
 
            
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 That the defendants shall pay unto claimant healing 
 
            period benefits at the rate of one hundred fifty-two and 
 
            66/100 dollars ($152.66) for the period beginning February 
 
            19, 1990 through February 8, 1993, which defendants have 
 
            already paid for the period of June 15, 1992 through 
 
            February 8, 1993, thereby leaving a balance of healing 
 
            period benefits owing of one hundred twenty point five seven 
 
            one (120.571) weeks.
 
            
 
                 That defendants shall pay unto claimant three hundred 
 
            fifty (350) weeks of permanent partial disability benefits 
 
            at the rate of one hundred fifty-two and 66/100 dollars 
 
            ($152.66) beginning February 9, 1993.
 
            
 
                 That defendants are responsible for the payment of 
 
            medical benefits represented by the medical bill exhibits in 
 
            evidence herein.
 
            
 
                 That defendants shall pay accrued weekly benefits in a 
 
            lump sum and shall receive credit against the award for 
 
            weekly benefits previously paid.  Defendants have previously 
 
            paid fifty-three point one four three (53.143) weeks at the 
 
            rate of one hundred fifty-nine and 26/100 dollars ($159.26) 
 
            which weeks included the part of the healing period referred 
 
            to above which has been paid.
 
            
 
                 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 September, 1993.
 
            
 
            
 
            
 
                                          ______________________________
 
                                          BERNARD J. O'MALLEY
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies to:
 
            
 
            Mr Robert Fulton
 
            Attorney at Law
 
            First Natl Bldg  6th Flr
 
            E 4th and Sycamore
 
            P O Box 2634
 
            Waterloo IA 50704-2634
 
            
 
            Mr Harry Dahl Sr
 
            Attorney at Law
 
            974 73rd St  Ste 16
 
            Des Moines IA 50312
 
 
 
 
 
 
 
 
            
 
 
 
                   
 
 
 
 
 
                                          5-2503; 5-1100; 5-1108.50
 
                                          5-1803; 5-1802
 
                                          Filed September 15, 1993
 
                                          Bernard J. O'Malley
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            JOANN ARMSTRONG,              :
 
                                          :
 
                 Claimant,                :     File Nos. 966321
 
                                          :               966322
 
            vs.                           :
 
                                          :
 
            COUNTY MARKET,                :
 
                                          :     A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            SENTRY INSURANCE,             :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            5-1100; 5-1803; 5-1108.50
 
            Found claimant incurred an injury that arose out of and in 
 
            the course of her employment on May 3, 1989 causing claimant 
 
            to injure her left hand.  Also found that additional injury 
 
            occurred as a sequela of the May 3, 1989 work injury causing 
 
            claimant a body as a whole injury to her right shoulder and 
 
            depression.  Claimant was awarded 75 percent industrial 
 
            disability .
 
            
 
            5-1802; 5-2503
 
            Claimant was awarded additional healing period benefits and 
 
            medical benefits.
 
            
 
            5-1100; 5-1108.50
 
            Claimant recovered nothing as to a February 19, 1990 alleged 
 
            injury as a separate injury but the events on February 19, 
 
            1990 were found to be a sequela of the May 3, 1989 work 
 
            injury.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            ROBERT D. CROUCH,             :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :       File No. 966325
 
            VIKING FREIGHT SERVICE TRANS.,:
 
                                          :    A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            PROTECTIVE INSURANCE COMPANY, :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
                          STATEMENT OF THE CASE
 
            
 
                 This is a proceeding in arbitration brought by Robert 
 
            D. Crouch, claimant, against Viking Freight Service Trans., 
 
            employer, hereinafter referred to as Viking, and Protective 
 
            Insurance Company, insurance carrier, defendants, for work
 
            ers' compensation benefits as a result of an alleged injury 
 
            on February 3, 1990.  On April 13, 1992, a hearing was held 
 
            on claimant's petition and the matter was considered fully 
 
            submitted at the close of this hearing.
 
            
 
                 The parties have submitted a prehearing report of con
 
            tested issues and stipulations which was approved and 
 
            accepted as a part of the record of this case at the time of 
 
            hearing.  The oral testimony and written exhibits received 
 
            during the hearing are set forth in the hearing transcript. 
 
            
 
                 According to the prehearing report, the parties have 
 
            stipulated to the following matters:
 
            
 
                 1.  On February 3, 1990, claimant received an injury 
 
            arising out of and in the course of his employment with 
 
            Viking.
 
            
 
                 2.  Claimant is entitled to temporary total or healing 
 
            period benefits from February 3, 1990 through October 31, 
 
            1990 and defendants agree that he was not working at this 
 
            time. 
 
            
 
                 3.  The injury is a cause of permanent industrial 
 
            disability to the body as a whole, the extent of which is in 
 
            dispute.
 
            
 
                 4.  At the time of injury, claimant's gross rate of 
 
            weekly compensation was $575.00.  He was married and enti
 
            tled to two exemptions.  Therefore, claimant is entitled to 
 
            a weekly rate of compensation of $351.43 according to the 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            Industrial Commissioner's published rate booklet for FY 90.
 
            
 
                 5.  With reference to the requested medical benefits, 
 
            it was stipulated that the fees and treatment were reason
 
            able.
 
            
 
                                      ISSUES
 
            
 
                 The parties submitted the following issues for determi
 
            nation in this proceeding:
 
            
 
                  I. The extent of claimant's entitlement to permanent 
 
            disability benefits; and,
 
            
 
                 II. The extent of claimant's entitlement to medical 
 
            benefits.
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 Having heard the testimony and considered all of the 
 
            evidence, the deputy industrial commissioner finds as 
 
            follows:
 
            
 
                 A credibility finding is necessary to this decision as 
 
            defendants placed claimant's credibility at issue during 
 
            cross-examination as to the nature and extent of the injury 
 
            and disability.  From his demeanor while testifying, 
 
            claimant is found credible.
 
            
 
                 Claimant worked as an over-the-road semi driver from 
 
            1973 until the work injury herein.  Claimant started driving 
 
            with Viking in the fall of 1989.  At the time of injury, 
 
            claimant was driving with his wife as team driver and it was 
 
            agreed that he was grossing $575.00 per week but he had to 
 
            drive 70 hours per week to achieve this rate.  As a part of 
 
            this job, claimant was required to load and unload pallets.  
 
            Claimant's itinerary took him almost everywhere in the con
 
            tinental United States.  
 
            
 
                 On or about February 3, 1990, claimant injured his 
 
            neck, mid-back and low back when he slipped and fell from 
 
            the cab of his truck to the ground, striking the running 
 
            board on the way down.  Claimant was taken to the hospital 
 
            by his wife and he received emergency care. He was then 
 
            referred to Behrouz Rassekh, M.D., who diagnosed aggravation 
 
            of a prior existing spondylolysis of the cervical spine.  
 
            Claimant was then referred for treatment to Michael T. 
 
            O'Neil, M.D., a board certified orthopedic surgeon.  
 
            Although claimant complained of neck pain, Dr. O'Neil 
 
            reported that his primary complaint to him in March 1990 was 
 
            mid-back pain and coccyx and sacrum pain.  At that time, 
 
            claimant stated that he had no prior back pain other than 
 
            occasional stiffness of the neck.  Claimant was treated by 
 
            Dr. O'Neil over the next several months for chronic pain 
 
            until November 1, 1990, when the doctor opined that claimant 
 
            had reached maximum healing.  Dr. O'Neil's treatment 
 
            remained conservative and despite continuing pain, which the 
 
            doctor believes is a permanent symptom, the surgery has not 
 
            been recommended.  
 
            
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
                 Based upon the opinions of Dr. O'Neil expressed in the 
 
            record, it is found that the work injury of February 3, 1990 
 
            aggravated prior degenerative but asymptomatic conditions 
 
            and was a cause of a 30 percent permanent partial impairment 
 
            to the body as a whole.  Also based upon Dr. O'Neil's views, 
 
            as a result of this injury, claimant should not return to 
 
            work requiring repetitive lifting, stooping or bending or 
 
            lifting in excess of 25-30 pounds.  Dr. O'Neil also recom
 
            mends against employment requiring prolonged sitting or 
 
            standing over two hours without a change of position.   
 
            There is a contrary opinion from another orthopedic surgeon 
 
            in the record but he was only a one time evaluator.  Due to 
 
            Dr. O'Neil's much greater clinical knowledge of claimant's 
 
            condition, his views were given the greater weight.  Video 
 
            tapes and photos of claimant performing various activities 
 
            around his home were reviewed but not found to be particu
 
            larly helpful in arriving at this decision.  Claimant was 
 
            not observed doing anything inconsistent with the restric
 
            tions imposed by Dr. O'Neil.
 
            
 
                 Claimant's medical condition before the work injury was 
 
            excellent and he had no functional impairments or ascertain
 
            able disabilities despite a pre-existing condition of 
 
            spondylolisthesis in various portions of his back.  Claimant 
 
            was able to fully perform physical tasks involving heavy 
 
            lifting; repetitive lifting, bending, twisting and stooping; 
 
            and, prolonged standing and sitting.  Due to his current 
 
            physical limitations, claimant's medical condition prevents 
 
            him from returning to his former work as an over- the-road 
 
            truck driver or any other work requiring claimant to violate 
 
            his work restrictions.  The fact that claimant cannot return 
 
            to work as a truck driver was a matter not disputed by 
 
            either of the two vocational rehabilitation consultants 
 
            retained in this case.
 
            
 
                 Claimant is in his late 40's, married and has only an 
 
            eleventh grade formal education. He has earned his GED.  
 
            Claimant's significant past employment consists of route 
 
            delivery/salesman for a bread company, including a short 
 
            time as a supervisor over other salesman and employment as a 
 
            trucker.  
 
            
 
                 Given his age and lack of financial resources, claimant 
 
            has limited potential for vocational retraining via educa
 
            tion.  Vocational counselors retained in this case possessed 
 
            quite divergent views.  The counselor retained by defendants 
 
            stated that claimant is excluded from only 35 percent of the 
 
            labor market by his work restrictions and his earnings could 
 
            equal or exceed his income at the time of injury in such 
 
            jobs as trucking dispatcher or vehicle sales.  The counselor 
 
            retained by claimant opined that claimant is excluded from 
 
            49 percent of the labor market and only has potential earn
 
            ings of a little over $200.00 per week.  The estimate of 
 
            loss of earning capacities ranged from 0-5 percent to 56-60 
 
            percent.  The estimates of lost earning capacity were not 
 
            helpful to the undersigned. The opinions with reference to 
 
            loss of jobs and estimates of potential income were more 
 
            helpful but neither opinion was convincing.  The undersigned 
 
            believes the truth to lie in between the two opinions.  
 
            
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
                 Claimant has not returned to work and currently works 
 
            only as campground caretaker at his place of residence.  
 
            Claimant has not made much of an effort to look for suitable 
 
            work.  The rehabilitation counselor hired by claimant who 
 
            stated that this was not unusual for disabled workers who 
 
            are suddenly faced with unemployment and are not familiar 
 
            with job hunting techniques.  However, claimant has not even 
 
            contacted job service to register as a person looking for 
 
            work. He must assume some responsibility for his current 
 
            unemployment.  
 
            
 
                 Due to all of the factors above, the work injury of 
 
            February 3, 1990, is found to be a cause of a 30 percent 
 
            loss of earning capacity.  
 
            
 
                 The disputed medical expenses set forth in the prehear
 
            ing report are found causally connected to the February 3, 
 
            1990 injury.  This finding is based upon the uncontroverted 
 
            views of Dr. O'Neil expressed in his reports and deposition 
 
            testimony.
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                  I.  Claimant must establish by a preponderance of the 
 
            evidence the extent of weekly benefits for permanent dis
 
            ability to which claimant is entitled.  As the claimant has 
 
            shown that the work injury was a cause of permanent physical 
 
            impairment or limitation upon activity involving the body as 
 
            a whole, the degree of permanent disability must be measured 
 
            pursuant to Iowa Code section 85.34(2)(u).  However, unlike 
 
            scheduled member disabilities, the degree of disability 
 
            under this provision is not measured solely by the extent of 
 
            a functional impairment or loss of use of a body member.  A 
 
            disability to the body as a whole or an "industrial disabil
 
            ity" is a loss of earning capacity resulting from the work 
 
            injury.  Diederich v. Tri-City Railway Co., 219 Iowa 587, 
 
            593, 258 N.W. 899 (1935).  A physical impairment or restric
 
            tion on work activity may or may not result in such a loss 
 
            of earning capacity.  Examination of several factors deter
 
            mines the extent to which a work injury and a resulting med
 
            ical condition caused an industrial disability.  These fac
 
            tors include the employee's medical condition prior to the 
 
            injury, immediately after the injury and presently; the 
 
            situs of the injury, its severity and the length of healing 
 
            period; the work experience of the employee prior to the 
 
            injury, after the injury and potential for rehabilitation; 
 
            the employee's qualifications intellectually, emotionally 
 
            and physically; earnings prior and subsequent to the injury; 
 
            age; education; motivation; functional impairment as a 
 
            result of the injury; and inability because of the injury to 
 
            engage in employment for which the employee is fitted.  Loss 
 
            of earnings caused by a job transfer for reasons related to 
 
            the injury is also relevant.  See Peterson v. Truck Haven 
 
            Cafe, Inc., (Appeal Decision, February 28, 1985).
 
            
 
                 In the case sub judice, it was found that claimant suf
 
            fered a 30 percent loss of his earning capacity as a result 
 
            of the work injury.  Such a finding entitles claimant to 150 
 
            weeks of permanent partial disability benefits as a matter 
 
            of law under Iowa Code section 85.34(2)(u) which is 30 per
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            cent of 500 weeks, the maximum allowable number of weeks for 
 
            an injury to the body as a whole in that subsection. 
 
            
 
                 II.  Pursuant to Iowa Code section 85.27, claimant is 
 
            entitled to payment of reasonable medical expenses incurred 
 
            for treatment of a work injury.  Claimant is entitled to an 
 
            order of reimbursement if he has paid those expenses.  
 
            Otherwise, claimant is entitled only to an order directing 
 
            the responsible defendants to make such payments directly to 
 
            the provider.  See Krohn v. State, 420 N.W.2d 463 (Iowa 
 
            1988).
 
            
 
                 In the case at bar, all of the requested expenses were 
 
            found causally connected to the injury.  Their reasonable
 
            ness were never in question.  Payment will be ordered 
 
            accordingly.
 
            
 
                                      ORDER
 
            
 
                 1.  Defendants shall pay to claimant one hundred fifty 
 
            (150) weeks of permanent partial disability benefits at a 
 
            rate of three hundred fifty-one and 43/l00 dollars ($351.43) 
 
            per week from November 1, 1990.
 
            
 
                 2.  Defendants shall pay to claimant healing period 
 
            benefits as agreed to in the prehearing report.
 
            
 
                 3.  Defendants shall pay the medical expenses listed in 
 
            the prehearing report.  Claimant shall be reimbursed for any 
 
            of these expenses paid by him.  Otherwise, defendants shall 
 
            pay the provider directly along with any lawful late payment 
 
            penalties imposed upon the account by the provider.
 
            
 
                 4.  Defendants shall pay accrued weekly benefits in a 
 
            lump sum and shall receive credit against this award for all 
 
            benefits previously paid.  
 
            
 
                 5.  Defendants shall pay interest on weekly benefits 
 
            awarded herein as set forth in Iowa Code section 85.30. 
 
            
 
                 6.  Defendants shall pay the costs of this action pur
 
            suant to rule 343 IAC 4.33, including reimbursement to 
 
            claimant for any filing fee paid in this matter.
 
            
 
                 7.  Defendants shall file activity reports on the pay
 
            ment of this award as requested by this agency pursuant to 
 
            rule 343 IAC 3.1.
 
            
 
            
 
                 Signed and filed this ____ day of May, 1992.
 
            
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          LARRY P. WALSHIRE
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            
 
            Mr. Steven H. Howard
 
            Attorney at Law
 
            1000 North 72nd Street
 
            Omaha, Nebraska  68114
 
            
 
            Mr. Martin E. Spellman
 
            Attorney at Law
 
            1024 2nd Street
 
            Box 550
 
            Perry, Iowa  50220
 
            
 
            Mr. W. Curtis Hewett
 
            Attorney at Law
 
            35 Main Place
 
            P O Box 249
 
            Council Bluffs, Iowa  51502
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                          5-1803
 
                                          Filed May 28, 1992
 
                                          LARRY P. WALSHIRE
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            ROBERT D. CROUCH,             :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :       File No. 966325
 
            VIKING FREIGHT SERVICE TRANS.,:
 
                                          :    A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            PROTECTIVE INSURANCE COMPANY, :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
            
 
            5-1803
 
            
 
            
 
                 Non-precedential, extent of disability case.