BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
            PATSY LOU GRUBB,    
 
                      
 
                 Claimant, 
 
                      
 
            vs.       
 
                                                 File No. 971318
 
            THE PARTS HOUSE,    
 
                                                   A P P E A L
 
                 Employer, 
 
                                                 D E C I S I O N
 
            and       
 
                      
 
            GREAT WEST CASUALTY COMPANY,  
 
                      
 
                 Insurance Carrier,  
 
                 Defendants.    
 
            ____________________________________________________________
 
            The record, including the transcript of the hearing before 
 
            the deputy and all exhibits admitted into the record, has 
 
            been reviewed de novo on appeal.  The decision of the deputy 
 
            filed December 31, 1991 is affirmed and is adopted as the 
 
            final agency action in this case.
 
            Claimant shall pay the costs of the appeal, including the 
 
            preparation of the hearing transcript.
 
            Signed and filed this ____ day of July, 1992.
 
            
 
            
 
            
 
            
 
                                      ________________________________
 
                                              BYRON K. ORTON
 
                                         INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Harold B. Heslinga
 
            Attorney at Law
 
            118 North Market St.
 
            Oskaloosa, Iowa 52577
 
            
 
            Mr. Stephen W. Spencer
 
            Attorney at Law
 
            P.O. Box 9130
 
            Des Moines, Iowa 50306-9130
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                 9998
 
                                                 Filed July 30, 1992
 
                                                 Byron K. Orton
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
            PATSY LOU GRUBB,    
 
                      
 
                 Claimant, 
 
                      
 
            vs.       
 
                                                 File No. 971318
 
            THE PARTS HOUSE,    
 
                                                  A P P E A L
 
                 Employer, 
 
                                                 D E C I S I O N
 
            and       
 
                      
 
            GREAT WEST CASUALTY COMPANY,  
 
                      
 
                 Insurance Carrier,  
 
                 Defendants.    
 
            ____________________________________________________________
 
            
 
            9998
 
            
 
                 Summary affirmance of deputy's decision filed December 
 
            31, 1991.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            PATSY LOU GRUBB,              :
 
                                          :
 
                 Claimant,                :
 
                                          :         File No. 971318
 
            vs.                           :
 
                                          :      A R B I T R A T I O N
 
            THE PARTS HOUSE,              :
 
                                          :         D E C I S I O N
 
                 Employer,                :
 
                                          :
 
            and                           :
 
                                          :
 
            GREAT WEST CASUALTY COMPANY,  :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 Patsy Lou Grubb filed a petition in arbitration 
 
            alleging that she sustained an injury arising out of and in 
 
            the course of her employment with defendant The Parts House 
 
            on November 20, 1990.  She now seeks benefits under the Iowa 
 
            Workers' Compensation Act from that employer and its 
 
            insurance carrier, defendant Great West Casualty Company.
 
            
 
                 A hearing was held in Ottumwa, Iowa, on December 17, 
 
            1991.  The record consists of joint exhibits 1 through 10, 
 
            claimant's exhibits 1 through 5 and the testimony of 
 
            claimant and Dick Grubb.
 
            
 
                                      issues
 
            
 
                 The parties have stipulated to the extent of claimant's 
 
            entitlement to temporary total disability or healing period 
 
            (if defendants are liable for the injury), that any 
 
            permanent disability is an industrial disability and that 
 
            the appropriate rate of weekly compensation is $155.61.
 
            
 
                 Issues presented for resolution include:
 
            
 
                 1.  Whether an employment relationship existed between 
 
            Patsy Lou Grubb and The Parts House on November 21, 1990;
 
            
 
                 2.  Whether claimant sustained an injury arising out of 
 
            and in the course of employment on that date;
 
            
 
                 3.  Whether the alleged injury caused either temporary 
 
            or permanent disability and the extent of the latter; and,
 
            
 
                 4.  The extent of entitlement to medical benefits.
 
            
 
                                 findings of fact
 
            
 
                 The undersigned deputy industrial commissioner finds:
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
                 Patsy Lou Grubb, 57 years of age at hearing, is 
 
            currently married to Dick Grubb, but the parties are now 
 
            engaged in dissolution of marriage proceedings.
 
            
 
                 Shortly after the 1971 marriage, Dick and Patsy Grubb 
 
            formed a corporation known as Grubb Oil, Inc., after Dick 
 
            became a Standard Oil jobber for the area.  Claimant was and 
 
            is vice-president/secretary and, with her husband, one of 
 
            the two stockholders.  Over time, the family business 
 
            expanded.  Monte Transport, Inc., was set up as a second 
 
            corporation to handle long distance trucking concerns.  The 
 
            Parts House, defendant in this case, is a wholly owned 
 
            unincorporated subsidiary of Grubb Oil, Inc.  The Parts 
 
            House engages in retail sales of automobile and farm 
 
            equipment parts, oxygen and acetylene gases, and operates a 
 
            repair business.
 
            
 
                 Claimant began working as a part-time bookkeeper, one 
 
            day a week.  Her duties gradually expanded until she was 
 
            working on a full-time basis by approximately 1977.  Ms. 
 
            Grubb did the books for all three business enterprises.
 
            
 
                 On November 21, 1990, claimant and a customer of The 
 
            Parts House went to a detached building to obtain a tank of 
 
            acetylene gas.  This out building is equipped with a large 
 
            wooden door 14 feet on a side.  The door is solid wood, has 
 
            no windows and is very heavy.  It hangs from sliders on a 
 
            track.  While opening the door, claimant twisted and pushed 
 
            when it stuck.  She thereupon felt a twinge in her lower 
 
            back, although not really a pain.  The next day was 
 
            Thanksgiving and the business was closed.  Claimant worked 
 
            the following Friday and on every subsequent work day until 
 
            December 1, 1990.  She testified at hearing that her back 
 
            began to hurt, became worse each day, and that pain began 
 
            radiating down her left leg within 1-2 days.  On December 2, 
 
            claimant found herself scarcely able to get out of bed after 
 
            three tries and pain was the worst she has ever experienced.  
 
            Her daughter, Roxanne Minner, who testified by deposition on 
 
            September 12, 1991, took her to Grinnell Hospital.
 
            
 
                 Grinnell Hospital records show that claimant described 
 
            a one-week history of left lower back discomfort on December 
 
            2 which, "over the last 2 days, has begun to radiate down 
 
            the posterior aspect of her left leg, down to her ankle."  
 
            Those chart notes were prepared by Robert Minor, M.D., 
 
            emergency room physician.  The apparent intake sheet 
 
            prepared by the emergency room is illegible with respect to 
 
            certain handwritten notes in the "Nurse Assessment" section, 
 
            which presumable would detail the first history given.  
 
            Roxanne Minner testified that she heard the history, but did 
 
            not recall details.
 
            
 
                 Roxanne Minner took claimant home to her own house 
 
            where she remained three or four days under Ms. Minner's 
 
            care.  Asked if she had had any conversation with claimant 
 
            as to the cause of her injury, Ms. Minner testified that 
 
            claimant talked about opening the door at The Parts House, 
 
            but also that she "wasn't sure how it happened."  Later, she 
 
            testified that she was unsure claimant mentioned the door 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            incident prior to being seen at Mercy Hospital Medical 
 
            Center on December 5.  She also testified:
 
            
 
                 Q.  Okay.  Did you ever have any conversation with 
 
                 Patsy over her back hurting as she came up out of 
 
                 a chair?
 
            
 
                 A.  I remember her saying that.  I can't remember 
 
                 when it was said, but I remember her saying that 
 
                 she noticed when she got up out of the chair at 
 
                 Thanksgiving time it really hurt or there was a 
 
                 twinge and pain.
 
            
 
                 Q.  Just so that we're clear, we're talking about 
 
                 a time period last November, December; is that 
 
                 correct?
 
            
 
                 A.  Thanksgiving time.
 
            
 
                 Q.  But 1990?
 
            
 
                 A.  Right.
 
            
 
            (Roxanne Minner deposition, page 17, lines 12 through 25)
 
            
 
                 Claimant did not improve during several days of bed 
 
            rest after visiting Grinnell Hospital.  Ms. Minner called 
 
            family physician James Paulson, M.D., (He did not see 
 
            claimant personally) who suggested treatment at Mercy 
 
            Hospital Medical Center in Des Moines.
 
            
 
                 Claimant was seen in the emergency room there by Scott 
 
            Erwood, M.D., on December 5, 1990.  Dr. Erwood is a 
 
            neurosurgeon and testified by deposition on September 17, 
 
            1991.
 
            
 
                 Dr. Erwood's contemporaneous chart notes reflect that 
 
            claimant gave a history of arising from a large chair 
 
            approximately ten days before, resulting in the onset of 
 
            discomfort in the back and left lower extremity: discomfort 
 
            which had steadily worsened over the past several days.  
 
            Left leg pain was present but improved at the time of this 
 
            visit.  Dr. Erwood ordered magnetic resonance imaging 
 
            studies, which resulted in a diagnosis of left-sided disc 
 
            herniation at L4-5.  Dr. Erwood recommenced immediate 
 
            surgery, but claimant declined until after assuring herself 
 
            of that physician's qualifications after consulting with Dr. 
 
            Paulson.
 
            
 
                 Thereafter, Dr. Erwood performed surgery on December 
 
            17.  Results were favorable.  Although Dr. Erwood assesses 
 
            Ms. Grubb as having sustained a nine percent functional 
 
            impairment to the body as a whole, he has not assigned 
 
            specific medical restrictions, advising claimant to do what 
 
            she can do.  Chart notes of December 20 (signed January 12, 
 
            1991) described the December 5 visit as follows:
 
            
 
                 She indicates she has had discomfort for the past 
 
                 ten days, which came on after getting out of a big 
 
                 chair.  She developed immediate pain in the low 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
                 back followed by leg pain.  This gradually 
 
                 increased and was aggravating by riding.  In 
 
                 addition, she described of the left lower 
 
                 extremity for the past three days.
 
            
 
            (Exhibit 5, page 4)
 
            
 
                 Although incomplete, the last sentence of the above 
 
            quote probable refers in some way to increased or 
 
            exacerbated left leg pain over the past three days, as this 
 
            would seem to fit the context (and be consistent with the 
 
            Grinnell Hospital chart notes of December 2).
 
            
 
                 In his deposition testimony, Dr. Erwood reiterated his 
 
            chart notes and indicated that he received no different 
 
            history as to the onset of symptoms before claimant left the 
 
            hospital on December 20.  He noted that a telephone 
 
            conversation to his nurse made reference to the door 
 
            incident on the day before Thanksgiving.  Asked about the 
 
            likely cause of claimant's herniated disc, Dr. Erwood 
 
            responded:
 
            
 
                 A.  Okay.  The only thing I can say as far as the 
 
                 cause of this disk herniation is that when the 
 
                 patient was initially seen, this event of about 
 
                 Thanksgiving time was not reported to me.  It was 
 
                 reported in retrospect after she had had surgery.
 
            
 
                 Can you have a disk herniation by pushing on a 
 
                 door or some heavy object?  Yes.  Do many patients 
 
                 not even know what caused the disk herniation, 
 
                 wake up from sleep with pain?  Yes, so that the 
 
                 quote, "cause" of the disk herniation can be at 
 
                 times not clear.
 
            
 
                 And I don't think I can clear up the issue, I 
 
                 guess is where I'm coming from.  I can only tell 
 
                 you what was reported to me.  I can tell you that 
 
                 I signed a document that detailed what my nurse 
 
                 was told by the patient subsequently.  Could it 
 
                 have happened that way?  I suppose so.  It wasn't 
 
                 initially reported to me that way however.
 
            
 
            (Dr. Erwood deposition, page 12, line 25 through page 13, 
 
            line 17)
 
            
 
                 And:
 
            
 
                 A.  Certainly.  I think the real question here in 
 
                 trying to determine the cause of this disk 
 
                 herniation is did Mrs. Grubb have radicular 
 
                 symptoms prior to December 5, 1990, when she came 
 
                 in and gave me this -- or prior to the ten days, 
 
                 which would have been what, end of November 
 
                 sometime, you know, did she have radicular 
 
                 symptoms immediately after this injury, or was it, 
 
                 in fact, only after getting out of a large chair 
 
                 that she developed leg pain?
 
            
 
                 That's to me the key factor.  If she had had left 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
                 leg pain before getting out of that chair and 
 
                 reporting that history to me, then I would be 
 
                 concerned that the disk predated getting out of a 
 
                 large chair.  If on the other hand she had only 
 
                 back pain and back discomfort, which is typically 
 
                 a muscular symptom, prior to getting out of that 
 
                 large chair, then I would think there's little 
 
                 evidence to suggest that the disk herniation had 
 
                 occurred prior to that event, that 
 
                 getting-out-of-the-chair episode.
 
            
 
            (Dr. Erwood deposition, page 16, line 19 through page 17, 
 
            line 14)
 
            
 
                    
 
            
 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            conclusions of law
 
            
 
                 The parties dispute whether an employment relationship 
 
            existed between claimant and The Parts House on November 21, 
 
            1990.  Claimant and Dick Grubb both testified credibly that 
 
            such a relationship existed.  The record contains no 
 
            contradictory evidence.  Claimant has met her burden of 
 
            proof on this issue.
 
            
 
                 The claimant also has the burden of proving by a 
 
            preponderance of the evidence that she received an injury on 
 
            November 21, 1990, 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. Cent. Tel. Co., 261 Iowa 352, 
 
            154 N.W.2d 128 (1967). 
 
            
 
                 The words "out of" refer to the cause or source of the 
 
            injury.  Crowe v. DeSoto Consol. School Dist., 246 Iowa 402, 
 
            68 N.W.2d 63 (1955). 
 
            
 
                 The words "in the course of" refer to the time and 
 
            place and circumstances of the injury.  McClure v. Union, 
 
            et al., Counties, 188 N.W.2d 283 (Iowa 1971); Crowe v. 
 
            DeSoto Consol. School Dist., 246 Iowa 402, 68 N.W.2d 63 
 
            (1955).
 
            
 
                 Claimant also has the burden of proving by a 
 
            preponderance of the evidence that the injury of November 
 
            21, 1990, 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 
 
            Hosp., 251 Iowa 375, 101 N.W.2d 167 (1960). 
 
            
 
                 However, expert medical evidence must be considered 
 
            with all other evidence introduced bearing on the causal 
 
            connection.  Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion 
 
            of experts need not be couched in definite, positive or 
 
            unequivocal language.  Sondag v. Ferris Hardware, 220 N.W.2d 
 
            903 (Iowa 1974).  However, the expert opinion may be 
 
            accepted or rejected, in whole or in part, by the trier of 
 
            fact.  Id. at 907.  Further, the weight to be given to such 
 
            an opinion is for the finder of fact, and that may be 
 
            affected by the completeness of the premise given the expert 
 
            and other surrounding circumstances.  Bodish, 257 Iowa 516, 
 
            133 N.W.2d 867.  See also Musselman v. Cent. Tel. Co., 261 
 
            Iowa 352, 154 N.W.2d 128 (1967).
 
            
 
                 Patsy Grubb was a credible witness, at least insofar as 
 
            this observer does not believe she would knowingly testify 
 
            to a falsehood.  It is accepted as fact that she experienced 
 
            a twinge as she described while opening a heavy wooden door 
 
            in the course of her duties as an employee of The Parts 
 
            House on November 21, 1990.  Although she did not directly 
 
            testify to the chair incident on the next day, Thanksgiving, 
 
            the record makes clear that something of this sort occurred 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            on that day that was sufficiently significant that claimant 
 
            pointed to this incident and no other when she gave her 
 
            history to Dr. Erwood on December 5.
 
            
 
                 There is no doubt but that claimant sustained a disc 
 
            herniation that required surgical treatment.  It remains to 
 
            be determined whether the herniation occurred while claimant 
 
            was opening the door or at some other time, such as when she 
 
            arose from a chair on Thanksgiving day.  The "incident" of 
 
            November 21 is not a "injury" unless it caused damage.  
 
            Therefore, the issues of "arising out of" and causal 
 
            connection shall be treated as essentially identical.
 
            
 
                 Claimant testified at hearing that radicular symptoms 
 
            appeared one or two days following the claimed work injury.  
 
            Histories taken at the Grinnell Hospital and by Dr. Erwood 
 
            suggest that radicular symptoms came on much later, perhaps 
 
            only a day or two before December 2 (when claimant visited 
 
            the Grinnell Hospital).  The history claimant gave 
 
            contemporaneously is more reliable than her testimony at 
 
            hearing, both because it was contemporaneous (and not 
 
            subject to the vagaries of memory over a year later, and 
 
            after pursuing litigation) and because it was offered to 
 
            assist medical practitioners in claimant's hour of need, 
 
            rather than at a remote hearing where the only relief sought 
 
            is the award of compensation benefits.
 
            
 
                 It is possible that the door incident of November 21 in 
 
            fact directly caused the disc herniation of which claimant 
 
            now complains.  However, it must be concluded that claimant 
 
            has failed to meet her burden of proof in establishing a 
 
            probability that it in fact so caused the herniation.  
 
            Claimant worked for several days after this incident without 
 
            need or treatment.  The (largely illegible) chart notes of 
 
            the Grinnell Hospital do not show history of the door 
 
            incident, and claimant made note only of the chair-rising 
 
            incident when she saw Dr. Erwood on December 5.  Claimant's 
 
            daughter was unsure as to whether she had even heard of the 
 
            door incident until after that hospitalization.  Mr. Grubb 
 
            apparently did not learn of the incident until some time 
 
            later.  On balance, Dr. Erwood's opinion favors defendants, 
 
            since he looks at the development of radicular symptoms as 
 
            tending to be most closely related to the development of an 
 
            actual herniation.  As has been seen, chart notes reflect 
 
            that these symptoms came on much later, not the one or two 
 
            days testified to by claimant.
 
            
 
                 Accordingly, it must be held that claimant has failed 
 
            to meet her burden of proof in establishing a work injury 
 
            arising out of and in the course of employment and causing 
 
            the disc herniation that has resulted in functional 
 
            impairment.
 
            
 
                 The other issues are thereby rendered moot.
 
            
 
                                      order
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 Claimant shall take nothing from this proceeding.
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            
 
                 Costs of this proceeding are assessed to defendants 
 
            pursuant to rule 343 IAC 4.33.
 
            
 
                 Signed and filed this ______ day of ____________, 1991.
 
            
 
                 
 
            
 
                 
 
                 
 
                                          ______________________________
 
                                          DAVID RASEY
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Harold B. Heslinga
 
            Attorney at Law
 
            118 North Market Street
 
            Oskaloosa, Iowa  52577
 
            
 
            Mr. Stephen W. Spencer
 
            Attorney at Law
 
            Suite 300, Fleming Building
 
            P.O. Box 9130
 
            Des Moines, Iowa  50306-9130
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                               5-1402.20
 
                                               Filed December 31, 1991
 
                                               DAVID RASEY
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            PATSY LOU GRUBB,              :
 
                                          :
 
                 Claimant,                :
 
                                          :         File No. 971318
 
            vs.                           :
 
                                          :      A R B I T R A T I O N
 
            THE PARTS HOUSE,              :
 
                                          :         D E C I S I O N
 
                 Employer,                :
 
                                          :
 
            and                           :
 
                                          :
 
            GREAT WEST CASUALTY COMPANY,  :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
            
 
            5-1402.20
 
            Evidence failed to show that disc herniation was caused by 
 
            work incident.
 
            
 
 
         
 
         
 
         
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         ____________________________________________________________
 
                                       :
 
         TIMOTHY R. KUNKEL,            :
 
                                       :
 
              Claimant,                :
 
                                       :
 
         vs.                           :
 
                                       :         File No. 971491
 
         STOCKMEN'S,                   :
 
                                       :      A R B I T R A T I O N
 
              Employer,                :
 
                                       :         D E C I S I O N
 
         and                           :
 
                                       :
 
         EMPLOYERS MUTUAL CASUALTY     :
 
         COMPANY,                      :
 
                                       :
 
              Insurance Carrier,       :
 
              Defendants.              :
 
         ___________________________________________________________
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              This is a proceeding in arbitration upon the petition of 
 
         claimant, Timothy Kunkel, against his employer, Stockmen's Inc., 
 
         and its insurance carrier, Employer's Mutual Companies, 
 
         defendants.  The case was heard on September 20, 1993 at the 
 
         Woodbury County courthouse in Sioux City, Iowa.  The record 
 
         consists of the testimony of claimant.  The record also consists 
 
         of the testimony of Jane E. Williams, adjuster for workers' 
 
         compensation.  Finally, the record consists of joint exhibits 1-
 
         42.
 
         
 
                                     ISSUES 
 
         
 
              The issues for determination are:  1) whether claimant is 
 
         entitled to any healing period or any permanent partial 
 
         disability benefits; 2) whether claimant is entitled to any 
 
         medical benefits pursuant to section 85.27 of the Iowa Code; and, 
 
         3) whether claimant is entitled to any penalty benefits pursuant 
 
         to section 86.13 of the Iowa Code.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              The deputy, having heard the testimony and considered all 
 
         the evidence, finds:
 
         
 
              Claimant is 34 years old.  After his high school education 
 
         claimant held positions as a seed cleaner, a cook and a janitor.  
 
         Approximately 15 years ago, claimant was diagnosed with diabetes.  
 
         Claimant testified he has an insulin injection once a day and 
 
         that he had experienced some problems with his diabetes because 
 
         he had fluctuating sugar counts.
 
         
 
              Claimant sustained a work-related injury on December 17, 
 
         1990 when he slipped on the pavement and fell to the ground.  At 
 
         the time of the work injury, claimant had only been employed for 
 

 
         
 
         Page   2
 
         
 
         
 
         
 
         
 
         three hours as a janitor in the janitorial department.  The 
 
         parties have stipulated that the work injury arose out of and in 
 
         the course of claimant's employment.  
 
         
 
              The parties have also stipulated that the work injury 
 
         resulted in some temporary disability and some permanent 
 
         disability.  The parties are in disagreement as to the nature and 
 
         extent of the disability.
 
         
 
              On the date in question, claimant was sprawled on the ground 
 
         where he was discovered by his supervisor.  Claimant testified he 
 
         returned to work and completed the remainder of his shift.  That 
 
         evening claimant sought emergency medical treatment for his right 
 
         ankle.  R. Cassens, M.D., attended to claimant's ankle.  In the 
 
         hospital note the physician wrote:
 
         
 
              Right ankle is edematous and tender on the lateral 
 
              side.  There is a significant amount of edema 
 
              obliterating the contour around the lateral malleolus.  
 
              There is tenderness along this area, no discoloration.  
 
              There is little tenderness along the medial malleolus.  
 
              The patient is able to dorsi and plantar flex his toes 
 
              minimally due to discomfort.  He is unable to rotate or 
 
              evert or invert the right foot due to discomfort.  
 
              There is no crepitus with motion.  Tibialis posterior 
 
              and dorsalis pedis pulses are intact. Capillary refill 
 
              in the toenail beds of the right foot is approximately 
 
              two seconds.  Sensation to light touch is intact in all 
 
              dermatomes of the right foot.  There is no tenderness 
 
              along the lateral aspect of the lower leg.  No knee 
 
              tenderness or right hip tenderness.  VITAL SIGNS:  
 
              Temperature 99.8, pulse 88, respirations 18, blood 
 
              pressure 130/60.  X-ray of the right ankle and foot 
 
              shows a distal right malleolar fracture.
 
         
 
              ASSESSMENT:
 
         
 
              1.  Fracture of the distal lateral malleolus, right.
 
         
 
              2.  Right ankle sprain.
 
         
 
              PLAN:
 
         
 
              Will air cast the right ankle.  The patient will be 
 
              placed on crutches.  He should keep ice over the right 
 
              lateral malleolus overnight and intermittently as long 
 
              as the swelling persists.  He should not bear weight on 
 
              the right lower extremity.  He should keep the right 
 
              lower extremity elevated as much as possible.  He was 
 
              given a prescription for Ibuprofen 600 mg., 1 po tid, 
 
              dispensed 20.  He was told to take this medication with 
 
              food.  He was warned of possible GI irritation due to 
 
              this medication and will watch for epigastric 
 
              discomfort, blood in the stool or black and tarry 
 
              stools, and will discontinue the medication and seek 
 
              medical advice immediately.  He is to follow-up in two 
 
              days with his local physician.  He should see his local 
 
              physician regarding the right distal malleolar 
 
              fracture.  The patient states he does not have a local 
 
              doctor, and was given the local medical society number 
 

 
         
 
         Page   3
 
         
 
         
 
         
 
         
 
              to help find a physician.  He was advised to find a 
 
              physician immediately tomorrow so he can be seen on 
 
              Wednesday.
 
         
 
         (Exhibit, page 129)
 
         
 
              X-rays were taken on the same evening.  The radiologist, 
 
         O.E. Selander, M.D., noted:
 
         
 
              THERE IS A NON-DISPLACED FRACTURE OF THE TIP OF THE 
 
              LATERAL MALLEOLUS WITH ASSOCIATED SOFT TISSUE SWELLING.  
 
              LUNGS OTHERWISE APPEAR NORMAL.
 
         
 
              IMP:  FRACTURED LATERAL MALLEOLUS.
 
         
 
         (Ex., p. 131)
 
         
 
               Claimant then sought medical attention from a general 
 
         practitioner, Larry L. Hansen, M.D.  The first consultation 
 
         occurred on December 19, 1990.  Initially, Dr. Hansen diagnosed 
 
         claimant's condition as:  "Nondisplaced right lateral malleolus 
 
         fracture" (Ex., p. 103).
 
         
 
              One week later claimant returned to Dr. Hansen for follow up 
 
         care for a right lateral malleolar fracture.  Claimant also 
 
         requested medical attention because he was feeling poorly.  He 
 
         had experienced nocturnal diaphoresis, swollen glands, sore 
 
         throat, anorexia and abnormal blood sugars.  Dr. Hansen ordered 
 
         certain blood tests.  He is prescribed ceftin which is a 
 
         cephalosporin antibiotic and which is used to fight bacterial 
 
         infections (The Pill Book 5th ed. 1992 at page 124-125).
 
         
 
              Approximately, two months after the work injury, Dr. Hansen 
 
         removed claimant's ankle cast.  The office note of February 18, 
 
         1991 indicated the following relative to claimant's condition:
 
         
 
              This young white male seen today for follow-up of 
 
              lateral malleolus fracture.  Still has some swelling 
 
              there.  Injury occurred almost two months ago, December 
 
              18th.
 
         Cast was removed.  Radiographs demonstrate incomplete 
 
         ossification.  There is minimal tenderness at site.  
 
         Really no edema.  Weight 153.  BP 124/80.
 
         
 
              A:  Right lateral malleolus fracture.
 
         
 
              P:  Posterior splint for the next two weeks.  May 
 
              partial weight bear on this.  Recheck in two weeks.  
 
              Radiographs at that time.  
 
         
 
         (Ex., p. 108)
 
         
 
              In June of 1991, claimant's attorney contacted the treating 
 
         physician relative to claimant's condition.  Dr. Hansen authored 
 
         a report.  It provided in part:
 
         
 
                 To answer your other questions, Mr. Kunkel's 
 
              work-related injury was a severe sprain of the right 
 
              ankle.  Because of a separate distal fibular ossicle, 
 
              radiographs were initially interpreted as a fracture of 
 

 
         
 
         Page   4
 
         
 
         
 
         
 
         
 
              the lateral malleolus.  He was therefore initially 
 
              treated for a fracture.  Thereafter, he has had 
 
              continued problems with pain and stiffness in the 
 
              ankle.  I believe these complaints may gradually 
 
              improve with time or they may be static.
 
         
 
              In regards to your question regarding diabetes 
 
              mellitus; diabetes mellitus can impair circulation 
 
              which is required for the healing process.  
 
              Additionally, due to a number of factors, wounds may 
 
              not heal as well with diabetes mellitus, especially in 
 
              the case of uncontrolled hyperglycemia.  There also may 
 
              be some diabetes-induced nerve damage which can impair 
 
              the patient's sensation in the lower extremity making 
 
              re-injury of conditions such as an ankle sprain much 
 
              more likely.  These factors were taken into account in 
 
              Mr. Kunkel's treatment.
 
         Finally, the diagnostic blood tests were not directly related to 
 
         his Worker's Compensation injury.  He had complaints of malaise 
 
         and cervical lymphadenopathy upon presentation here associated 
 
         with jaundice.  Laboratory investigation undertaken at St. Luke's 
 
         Regional Medical Center was performed to evaluate this and any 
 
         possible interaction this may have had upon his ankle injury. 
 
         
 
         (Ex., pp. 122-123)
 
         
 
              In April and June of 1991, claimant was also examined by 
 
         David G. Paulsrud, M.D., an orthopedic specialist.  Later the 
 
         specialist evaluated claimant for purposes of making an 
 
         evaluation.  Dr. Paulsraud opined:
 
         
 
              He still has some swelling in his ankle from time to 
 
              time when he uses it.  His x-rays today are unchanged.  
 
              Examination demonstrates 10o of dorsiflexion, 40o of 
 
              plantar flexion, 10o of inversion, and 10o of eversion.  
 
              He has a 10% permanent partial impairment of his lower 
 
              extremity.
 
         
 
         (Ex., p. 83)
 
         
 
              Claimant continued medical care with Dr. Hansen for the work 
 
         injury.  The office note of July 11, 1991 indicated claimant's 
 
         poor progress with respect to his right ankle injury.  It stated:
 
         
 
              This young white male is seen today for follow-up right 
 
              ankle sprain.  States he has lost 2 part time jobs due 
 
              to this ankle.  Just cannot tolerate being on his foot 
 
              greater than four hours.  Continues to have pain over 
 
              the lateral malleolus.  He also complains today of his 
 
              leg feeling rather numb and cold.  He has had pain and 
 
              popping in his knee.  He has also had some pain in the 
 
              inguinal region especially his rotation of the hip.  No 
 
              swelling here.
 
         
 
              Right ankle is normal to examination.  Foot is 
 
              remarkable for absence of the dorsalis pedis pulse.  
 
              Right knee does demonstrate some apparent laxity of the 
 
              anterior and posterior cruciate ligaments.  Otherwise 
 
              negative.  His right hip has normal range of motion.  
 
              No inguinal lymphadenopathy.
 

 
         
 
         Page   5
 
         
 
         
 
         
 
         
 
         1.  Right ankle sprain, current symptomology unrelated.  
 
         2.  Likely vascular insufficiency secondary to diabetes 
 
         mellitus, type II.  Reported good control.
 
         
 
              Prescribed some nonsteroidals for his arthritic 
 
              complaints.  Will continue with current work 
 
              restrictions for the next one month.  Recheck at that 
 
              time.  I have indicated that if he has further problems 
 
              with his ankle, he should seek orthopedic consultation 
 
              again, either with Dr. Paulsrud again or another 
 
              specialist if he desires.  Could work up his vascular 
 
              insufficiency at any time he desires.  Otherwise plan 
 
              on discharging him from follow-up at the end of one 
 
              month as we really have nothing further to offer from 
 
              this office.
 
         
 
         (Ex., p. 110)
 
         Dr. Hansen determined claimant reached maximum medical 
 
         improvement in August of 1991.  Dr. Hansen discharged claimant 
 
         from the physician's care in the same month.  The physician also 
 
         opined there was no relationship between claimant's right ankle 
 
         with its poor ability to heal and claimant's diabetes mellitus 
 
         (Ex., p. 125).
 
         
 
              In September of 1991, claimant was evaluated by Frederick R. 
 
         Entwistle, M.D., a physiatrist at Central Plains Clinic Ltd.  The 
 
         evaluator opined in relevant portion:
 
         
 
                 It would certainly appear the patient had a severe 
 
              sprain of his right ankle and now has a fair amount of 
 
              discomfort with standing.  As mentioned, he apparently 
 
              tried standing 4 hours with some lighter type work and 
 
              he said the pain got worse and he couldn't do it.
 
         
 
                 I think one might want to consider a support type 
 
              stocking if he does have swelling in his foot and ankle 
 
              when he stands, which I did not objectively find at 
 
              this time.  I also think it might be wise a nerve 
 
              conduction velocity study of both lower extremities by 
 
              a neurologist looking for any evidence of diabetic 
 
              induced nerve damage.  These studies should be done 
 
              bilaterally, not just on one lower extremity.  I also 
 
              think the patient would benefit by a bone scan to see 
 
              if there is any evidence that any reflex sympathetic 
 
              dystrophy could be playing a part at this time.
 
         
 
                 If these studies are normal, then I think the 
 
              patient would benefit by a graduated structured work 
 
              hardening type program to get him back to gainful 
 
              employment with a lessening of his pain symptomatology.
 
         
 
                 I don't think Tim Kunkel could return to work at 
 
              this time, unless it was a job where he was sitting for 
 
              perhaps a 1/2 hour to 45 minutes and then could get up 
 
              and move around a bit.  Based on the fact that he 
 
              states he is unable to stand for more than 4 hours at 
 
              one time.  Diabetes, clearly as Dr. Hanson pointed out, 
 
              can impact the healing process, as well as effect 
 
              nerves.  I think the healing of this severe ankle 
 
              sprain has clearly done very well with full range of 
 

 
         
 
         Page   6
 
         
 
         
 
         
 
         
 
              motion of the ankle and good stability.  The reason for 
 
              the burning pain however might be on the diabetic 
 
              aspect and that is why I think the nerve conduction 
 
              velocity studies should be done, as well as a bone 
 
              scan.  If there are any questions concerning this 
 
              report, please feel free to contact me.
 
         
 
         (Ex., p. 93)
 
         
 
              Nerve conduction studies which were done in October of 1991 
 
         showed the following with respect to claimant's right ankle:
 
         
 
              Exam compatible with a general polyneuropathy such as 
 
              diabetes however the right sural sensory is more 
 
              significantly involved then would be expected compared 
 
              to the other nerve conduction studies.
 
         
 
         (Ex., p. 95)
 
         
 
              Claimant had a bone scan at the same time he had the nerve 
 
         conduction studies.  T. A. Schultz, M.D., interpreted the tests 
 
         as follows:
 
         
 
              FINAL IMPRESSION:  1) Abnormal Three Phase Bone Scan to 
 
              right ankle.  The findings are suggestive of 
 
              osteomyelitis, however, would consider any sort of 
 
              localized vascular process such as ongoing healing 
 
              fracture, etc.  Recommend clinical and/or radiographic 
 
              correlation.  If osteomyelitis is a consideration, 
 
              Gallium scanning may be appropriate.  The above 
 
              findings do not strongly suggest reflex sympathetic 
 
              dystrophy.
 
         
 
         (Ex., p. 97)
 
         
 
              Claimant also traveled to Iowa City for the purposes of 
 
         being evaluated by specialists in the Department of Orthopedics 
 
         at the University of Iowa.  James D. Neopola, M.D., and Randy G. 
 
         Delacore, M.D., were the evaluating orthopedic specialists.  The 
 
         clinical note for October 10, 1991 indicated:
 
         Radiographs:  AP, lateral and Mortise view of the right ankle 
 
         reveal a well-healed slightly mal-united distal lateral malleolar 
 
         fracture.  There are some mild calcifications of the ankle joint 
 
         laterally.  There are no other signs of degenerative joint 
 
         disease.
 
         Assessment/Plan:  It is felt that Mr. Kunkel has healed his 
 
         lateral malleolus fracture well, however, demonstrates persistent 
 
         weakness and symptoms of weakness and intermittent swelling with 
 
         prolonged standing.  It is felt that he should definitely undergo 
 
         some regimen of strengthening exercises.  We will send him down 
 
         to PT for dorsiflexor and evertor strengthening protocol.  We 
 
         will also have him fit with an ankle lacer for stability for 
 
         prolonged standing.  We think that he should return to work 
 
         part-time at first and slowly return to full-time work as 
 
         tolerated.  It was also recommended that he begin 
 
         anti-inflammatory medication for his symptoms.  Prescription for 
 
         Ibuprofin 800 mg.  TID with meals was given.  He should return to 
 
         clinic in 6-8 weeks for clinical follow-up.
 
         
 
         (Ex., p. 161)
 

 
         
 
         Page   7
 
         
 
         
 
         
 
         
 
         
 
              In March of 1992, claimant was again evaluated.  He had a 
 
         functional capacity evaluation at Siouxland Rehabilitation 
 
         Center.  The evaluating team recommended:
 
         E. Summary of Findings
 
              Mr. Kunkel's major limiting factors were found to be poor 
 
         body mechanics and decreased cardiovascular fitness.  His 
 
         strength and range of motion were within normal limits.  At 
 
         no time during the evaluation did his right ankle 
 
         limit him from performing functional job tasks.
 
         
 
         Recommendations
 
              For the purpose of returning to work we recommend           
 
         that certain lifting restrictions be implemented in order to 
 
         reduce Mr. Kunkel's risk of injury.  Please  refer to the 
 
         attached grid sheet for these recommendations.
 
              This rehabilitation program is appropriate for any          
 
         individual who has experienced a job related injury with 
 
         disabling effects that will not permit participation 
 
         in work situations.  The FCE results indicated that Mr. 
 
         Kunkel's work capacity is not limited by physical 
 
         impairments.  Therefore he is not a good candidate for 
 
         admission into our work hardening program.
 
         
 
         (Ex., p. 88)
 
         
 
              Mr. Kunkel sought another evaluation for his right ankle.  
 
         On August 11, 1993, claimant was seen by Chas. E. Keenan, Jr., 
 
         DPM.  The podiatrist issued an opinion on August 12, 1993.  He 
 
         opined:
 
         
 
                 Upon examination of the right foot and ankle there 
 
              is no edema, no discoloration, and range of motion 
 
              studies are normal except for slightly limited 
 
              dorsiflexion.  No pain is illicited with palpation of 
 
              the lateral malleolus and the surrounding ligamentous 
 
              structures.  The ankle mortise is stable.  The patient 
 
              does state that he hears a "popping" noise in his 
 
              ankle, but the range of motion studies did not reveal 
 
              this.  There was no crepitus with motion.  Posterior 
 
              pulses are palpable, but dorsal pulses are barely 
 
              palpable.  There is absent hair growth on both feet.  
 
              His skin is cool, especially his toes.  The patient 
 
              states his feet have a tendency to be cold.  Mr. Kunkel 
 
              does have slight hammer toe deformities bilaterally of 
 
              the second, third, and fourth digits.
 
            Upon review of x-ray reports and x-rays I do believe there was 
 
         a fracture of the distal portion of the fibula.  The patient does 
 
         relate that when he fell his foot was severely inverted.  This 
 
         would cause an avuision [sic] fracture.  X-rays were taken on 
 
         August 11 and showed complete healing of the fracture site.  This 
 
         would rule out the diagnosis of an accessory ossicle of the 
 
         fibula.
 
            In regards to the questions addressed in your August 9 letter, 
 
         my opinions are:
 
         
 
                 1.  Mr. Kunkel has a 10% permanent partial                      
 
              disability because of a fractured ankle                       
 
              sustained in his fall at Stockmen's
 
         
 
                 2.  His injuries were a result of his fall at                
 

 
         
 
         Page   8
 
         
 
         
 
         
 
         
 
              Stockmen's.
 
         
 
                 3.  I see no problem for future employment                   
 
              opportunities.
 
         
 
                 4.  Possible restrictions would be limitations of               
 
              time spent working on his feet.
 
         
 
                 5.  His diabetic condition will have no impact on               
 
              his injury and impairment rating.
 
         
 
         (Ex., pp. 188-189)
 
         
 
              Dr. Keenan's opinion concurred with the opinion of Dr. 
 
         Paulsrud.  Both evaluating physicians deemed claimant as having a 
 
         10 percent impairment to the right foot.
 
         
 
              Claimant was able to return to gainful employment.  However, 
 
         as of the date of the hearing, claimant had only been employed on 
 
         an occasional basis.  He worked for his sister in her upholstery 
 
         business.  The position was only part-time.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury is a proximate cause of the 
 
         disability on which the claim is based.  A cause is proximate if 
 
         it is a substantial factor in bringing about the result; it need 
 
         not be the only cause.  A preponderance of the evidence exists 
 
         when the causal connection is probable rather than merely 
 
         possible.  Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa 
 
         1980); Holmes v. Bruce Motor Freight, Inc., 215 N.W.2d 296 (Iowa 
 
         1974).
 
         
 
              The question of causal connection is essentially within the 
 
         domain of expert testimony.  The expert medical evidence must be 
 
         considered with all other evidence introduced bearing on the 
 
         causal connection between the injury and the disability.  The 
 
         weight to be given to any expert opinion is determined by the 
 
         finder of fact and may be affected by the accuracy of the facts 
 
         relied upon by the expert as well as other surrounding 
 
         circumstances.  The expert opinion may be accepted or rejected, 
 
         in whole or in part.  Sondag v. Ferris Hardware, 220 N.W.2d 903 
 
         (Iowa 1974); Anderson v. Oscar Mayer & Co., 217 N.W.2d 531 (Iowa 
 
         1974); Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 
 
         (1965).
 
         
 
              A personal injury contemplated by the worker 
 
         injuries sustained is statutory. The statute conferring this 
 
         right can also fix the amount of compensation payable for 
 
         different specific injuries.  The employee is not entitled to 
 
         compensation except as the statute provides.  Soukup v. Shores 
 
         Co., 222 Iowa 272, 268 N.W. 598 (1936).
 
         
 
              Compensation for permanent partial disability begins at 
 
         termination of the healing period.  Section 85.34(2).  Permanent 
 
         partial disabilities are classified as either scheduled or 
 
         unscheduled.  A specific scheduled disability is evaluated by the 
 
         functional method; the industrial method is used to evaluate an 
 
         unscheduled disability. Simbro v. Delong's Sportswear, 332 N.W.2d 
 
         886 (Iowa 1983); Graves v. Eagle Iron Works, 331 N.W.2d 116 (Iowa 
 
         1983); Martin v. Skelly Oil Co., 252 Iowa 128, 106 N.W.2d 95 
 
         (1960).
 
         
 
              An injury to a scheduled member may, because of after 
 
         effects or compensatory change, result in permanent impairment of 
 
         the body as a whole.  Such impairment may in turn be the basis 
 
         for a rating of industrial disability.  It is the anatomical 
 
         situs of the permanent injury or impairment which determines 
 
         whether the schedules in section 85.34(2)(a) - (t) are applied.  
 
         Lauhoff Grain v. McIntosh, 395 N.W.2d 834 (Iowa 1986); 
 
         Blacksmith, 290 N.W.2d 348 (Iowa 1980); Dailey v. Pooley Lumber 
 
         Co., 233 Iowa 758, 10 N.W.2d 569 (1943).  Soukup, 222 Iowa 272, 
 
         268 N.W. 598 (1936).
 
         
 
              Claimant has proven by a preponderance of the evidence that 
 
         he has sustained a work-related injury.  Medical evidence 
 
         supports claimant's claim that the injury is permanent in nature.  
 
         The impairment is 10% to the lower extremity.  According to 
 
         section 85.34(2)(o), claimant is entitled to 22 weeks of 
 
         permanent partial disability benefits.  Claimant has not 
 
         established that his injury extends beyond the scheduled member, 
 
         despite claimant's diabetes which is a pre-existing condition.  
 
         The parties have stipulated that this injury is a scheduled 
 
         member injury to the right lower extremity.
 
         
 
              Claimant's next claim is for increased healing period 
 
         benefits.  Section 85.34(1) provides that healing period benefits 
 
         are payable to an injured worker who has suffered permanent 
 
         partial disability until (1) the worker has returned to work; (2) 
 
         the worker is medically capable of returning to substantially 
 

 
         
 
         Page  10
 
         
 
         
 
         
 
         
 
         similar employment; or (3) the worker has achieved maximum 
 
         medical recovery.  The healing period can be considered the 
 
         period during which there is a reasonable expectation of 
 
         improvement of the disabling condition.  See Armstrong Tire & 
 
         Rubber Co. v. Kubil, 312 N.W.2d 60 (Iowa Ct. App. 1981).  Healing 
 
         period benefits can be interrupted or intermittent.  Teel v. 
 
         McCord, 394 N.W.2d 405 (Iowa 1986).  Claimant is alleging that he 
 
         is owed healing period benefits from December 17, 1990 through 
 
         May 31, 1992.  Defendants maintain that healing period benefits 
 
         are only due from December 17, 1990 through August 8, 1991.  
 
         
 
              There is no question, Dr. Hansen has opined that claimant 
 
         had reached maximum medical improvement as of the end of August 
 
         1991.  However, claimant was unable to return to full time work 
 
         as of that date.  It is this deputy industrial commissioner's 
 
         determination that as of March 20, 1992, claimant was able to 
 
         return to gainful employment which was substantially similar to 
 
         the employment which claimant had held as of the date of the work 
 
         injury.  On the March 20th date, experts at the Siouxland 
 
         Rehabilitation Center opined that claimant was capable of 
 
         performing janitorial duties as of that date (Ex., p. 88).
 
         
 
              In light of the above, claimant is entitled to 65.714 weeks 
 
         of healing period benefits from December 17, 1990 through March 
 
         20, 1992 and at the stipulated rate of $127.10 per week.  
 
         
 
              The next issue to address is the issue dealing with medical 
 
         expenses pursuant to section 85.27 of the Iowa Code.  Claimant is 
 
         not entitled to be reimbursed for certain medical expenses which 
 
         were related to treatment for claimant's "flu like symptoms."  
 
         Those symptoms were unrelated to the injury to the right lower 
 
         extremity.  Likewise, certain blood tests which were ordered by 
 
         Dr. Hansen were unrelated to claimant's work injury.  Rather 
 
         those tests were ordered because of claimant's flu like symptoms.  
 
         Defendants are now responsible for unrelated medical care and 
 
         bills.  
 
         
 
              Defendants are responsible for the following:
 
         
 
                  Walgreen's        12/19/90     $5.09
 
                  Walgreen's         1/05/91     $5.09
 
                                                 _____
 
         
 
                     Total                      $10.18
 
         
 
                  Hy-Vee            12/18/90    $ 3.87
 
         
 
              Claimant also testified that as of the date of the hearing, 
 
         he was entitled to mileage as follows:  "20 miles at .21 per 
 
         mile = $4.20.  Claimant is entitled to $18.25 in medical 
 
         expenses."
 
         
 
              The final issue to address is the issue dealing with penalty 
 
         benefits pursuant to section 86.13 of the Iowa Code.  Section 
 
         86.13 permits an award of up to 50 percent of the amount of 
 
         benefits delayed or denied if a delay in commencement or 
 
         termination of benefits occurs without reasonable or probable 
 
         cause or excuse.  The standard for evaluating the reasonableness 
 
         of defendants' delay in commencement or termination is whether 
 
         the claim is fairly debatable.  Where a claim is shown to be 
 

 
         
 
         Page  11
 
         
 
         
 
         
 
         
 
         fairly debatable, defendants do not act unreasonably in denying 
 
         payment.  See Stanley v. Wilson Foods Corp., File No. 753405 
 
         (App. August 23, 1990); Seydel v. Univ. of Iowa Physical Plant, 
 
         File No. 818849 (App. November 1, 1989).
 
         
 
              Claimant presented absolutely no evidence on this issue.  
 
         Claimant has not proven by a preponderance of the evidence that 
 
         he is entitled to any benefits pursuant to section 86.13.
 
         
 
                                      ORDER
 
         
 
              Defendants shall pay unto claimant twenty-two (22) weeks of 
 
         permanent partial disability benefits at the stipulated rate of 
 
         one hundred twenty-seven and 10/l00 dollars ($127.10) per week 
 
         commencing on March 21, 1992.
 
         
 
              Defendants shall also pay unto claimant sixty-five point 
 
         seven-one-four (65.714) weeks of healing period benefits from 
 
         December 17, 1990 through March 20, 1992 at the stipulated rate 
 
         of one hundred twenty-seven and 10/l00 dollars ($127.10) per 
 
         week.
 
         
 
              Defendants shall also pay unto claimant eighteen and 25/l00 
 
         dollars ($18.25) in reimbursable medical expenses.
 
         
 
              Defendants shall take credit for all permanent partial 
 
         disability benefits previously paid to claimant.
 
         
 
              Accrued benefits are to be paid in a lump sum together with 
 
         statutory interest at the rate of ten percent (10%) per year.
 
         
 
              Costs are taxed to defendants pursuant to rule 343 IAC 4.33.
 
         
 
              Defendants shall file a claim activity report as requested 
 
         by this division and pursuant to rule 343 IAC 3.1.
 
         
 
         
 
         
 
              Signed and filed this ____ day of March, 1994.
 
         
 
         
 
         
 
         
 
         
 
                                       ______________________________               
 
                                       MICHELLE A. McGOVERN
 
                                       DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Ms. Patricia K. Wengert
 
         Attorney at Law
 
         632 - 640 Badgerow Building
 
         P O Box 1194
 
         Sioux City, Iowa  51102
 
         
 
         Mr. Steven E. Ort
 
         Attorney at Law
 
         121 West Main
 
         P O Box 143
 

 
         
 
         Page  12
 
         
 
         
 
         
 
         
 
         New London, Iowa  52645
 
         
 
         Mr. William G. Brewer
 
         Attorney at Law
 
         6305 SW 9th  St4 1
 
         Des Moines, Iowa  50315
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                               5-1802
 
                                               Filed March 17, 1994
 
                                               MICHELLE A McGOVERN
 
            
 
                      BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                      
 
            TIMOTHY R. KUNKEL,  
 
                      
 
                 Claimant, 
 
                      
 
            vs.       
 
                                                File No. 971491
 
            STOCKMEN'S,    
 
                                              A R B I T R A T I O N
 
                 Employer, 
 
                                                D E C I S I O N
 
            and       
 
                      
 
            EMPLOYERS MUTUAL CASUALTY     
 
            COMPANY,  
 
                      
 
                 Insurance Carrier,  
 
                 Defendants.    
 
            ___________________________________________________________
 
            
 
            
 
            5-1802
 
            Claimant was awarded additional healing period benefits
 
            
 
 
            
 
            
 
            
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
            
 
            JULIA ALLEN,     
 
                        
 
                 Claimant,   
 
                        
 
            vs.         
 
                                                 File No. 971728
 
            STATE OF IOWA-INSURANCE DIV.,   
 
                                                   A P P E A L
 
                 Employer,   
 
                                                 D E C I S I O N
 
            and         
 
                        
 
            STATE OF IOWA,   
 
                        
 
                 Insurance Carrier,    
 
                 Defendants.      
 
            ____________________________________________________________
 
            
 
            The record, including the transcript of the hearing before 
 
            the deputy and all exhibits admitted into the record, has 
 
            been reviewed de novo on appeal.
 
            
 
                                       ISSUE
 
            
 
            The issue on appeal is:  Whether the deputy's determination 
 
            of the claimant's credibility is supported by substantial 
 
            evidence.
 
            
 
                                FINDINGS OF FACT
 
            
 
            The findings of fact contained in the proposed agency 
 
            decision filed September 22, 1993 are adopted as final 
 
            agency action.
 
            
 
                              CONCLUSIONS OF LAW
 
            
 
            The conclusions of law contained in the proposed agency 
 
            decision filed September 22, 1993 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 she received an injury on October 12, 
 
            1990, which arose out of and in the course of her 
 
            employment.  McDowell v. Town of Clarksville, 241 N.W.2d 
 
            904, 908 (Iowa 1976); Musselman v. Central Telephone Co., 
 
            154 N.W.2d 128, 130 (Iowa 1967).  The words "arising out of" 
 
            have been interpreted to refer to the cause and origin of 
 
            the injury.  McClure v. Union County, 188 N.W.2d 283, 287 
 
            (Iowa 1971); Crowe v. DeSoto Consolidated School District, 
 
            68 N.W.2d 63, 65 (Iowa 1955).  The words "in the course of" 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            refer to the time, place and circumstances of the injury.  
 
            McClure, 188 N.W.2d at 287; Crowe, 68 N.W.2d at 65.  An 
 
            injury occurs in the course of the employment when it is 
 
            within the period of employment at a place the employee may 
 
            reasonably be, and while the employee is doing work assigned 
 
            by the employer or something incidental to it.  Cedar Rapids 
 
            Community School District v. Cady, 278 N.W.2d 298, 299 (Iowa 
 
            1979), McClure, 188 N.W.2d at 287; Musselman, 154 N.W.2d at 
 
            130. 
 
            
 
                 The supreme court has defined a personal injury for the 
 
            purposes of workers' compensation cases.  Almquist v. 
 
            Shenandoah Nurseries, 218 Iowa 724, 254 N.W. 35, 38 (1934).  
 
            In this case the court found that a personal injury, is an 
 
            injury to the body, the impairment of health, or a disease, 
 
            not excluded by the Workers Compensation Act, which comes 
 
            about, not through the natural building up and tearing down 
 
            of the human body, but because of a traumatic or other hurt 
 
            or damage to the health or body of an employee.  The injury 
 
            to the human body must be something, whether an accident or 
 
            not, that acts extraneously to the natural processes of 
 
            nature, and thereby impairs the health, overcomes, injures, 
 
            interrupts, or destroys some function of the body, or 
 
            otherwise damages or injures a part or all of the body.  
 
            
 
                 The Almquist court further observed that while a 
 
            personal injury does not include an occupational disease 
 
            under the Workmen's Compensation Act, yet an injury to the 
 
            health may be a personal injury.  A personal injury includes 
 
            a disease resulting from an injury.  However, the result of 
 
            changes in the human body incident to the general processes 
 
            of nature do not amount to a personal injury.  This is true, 
 
            even though natural change may come about because the life 
 
            has been devoted to labor and hard work.  Results of those 
 
            natural changes do not constitute a personal injury even 
 
            though the same brings about impairment of health or the 
 
            total or partial incapacity of the functions of the human 
 
            body. 
 
            
 
                 An injury must both arise out of and in the course of 
 
            employment.  To arise out of employer refers to the cause of 
 
            the source of the injury.  Crowe, 246 Iowa 402, 68 N.W.2d 
 
            63.  The words "in the course of employment" refer to the 
 
            time, place and circumstances of the injury.  McClure, 188 
 
            N.W.2d 283.
 
            
 
     
 
            
 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            At the hearing, claimant alleged that on October 12, 1990, 
 
            while holding an individual who was having a seizure, his 
 
            chair broke and they both fell to the ground.  Claimant 
 
            produced no corroborating witnesses to the incident.  
 
            Claimant lost no time from work until November 22, 1990.  
 
            Although claimant alleges that she immediately told her 
 
            supervisor of the incident, a first report of injury 
 
            received by the industrial commissioner's office on January 
 
            4, 1991, indicates that the employer first knew of 
 
            claimant's condition on December 24, 1990 (ex. D).  
 
            
 
                 ***** Dr. Johnson reported on January 16, 1991, as 
 
            follows:  "Julia tried to support the patient, her chair 
 
            broke, she fell back and experienced pain in the low back.  
 
            She then had onset of discomfort extending down the right 
 
            leg."  (ex. 1-1).  On February 13, 1991, claimant reported 
 
            to Dr. Boulden that after she fell to the floor, she 
 
            developed low back pain a few days later (ex. 1-4).  
 
            Claimant told the physician at the University of Iowa that 
 
            her back pain began two days after the October 12, 1990 
 
            incident (ex. 7-47).  On January 3, 1991, Dr. Haag reported 
 
            that claimant had an accident at work the end of September 
 
            or the first part of October and her back has hurt since 
 
            (ex. 4-29).  
 
            
 
                 Despite the above assertions, it must be noted that on 
 
            October 15, 1990, three days after the alleged incident, 
 
            claimant was seen in the emergency room with complaints of 
 
            left facial muscle spasms which started when she was playing 
 
            bingo on October 14, 1990.  She was admitted as an inpatient 
 
            for further evaluation.  It was noted that claimant had been 
 
            under a great deal of stress and the physician was unsure 
 
            whether her speech and memory problems were related to the 
 
            stress or to a transient ischemic attack.  A complete workup 
 
            was performed and the results were negative.  At no time 
 
            during the course of her hospitalization did claimant 
 
            mention the October 12, 1990 work incident and presented 
 
            with no musculoskeletal complaints, including low back pain 
 
            (ex. A-2). 
 
            
 
                 On November 26, 1990, claimant presented to Mercy 
 
            Medical Clinic where she saw Dr. Haag.  Her complaints were 
 
            referable to a cold in her chest and the possibility of 
 
            bronchitis.  She also stated that she has been down for 
 
            three weeks with discomfort in the lower lumbar area.  She 
 
            made no mention of a work incident or injury (ex. 4-23).  
 
            She returned to Dr. Haag for follow-up evaluations on 
 
            November 29, 1990; December 6, 1990; December 10, 1990; and 
 
            December 14, 1990.  At no time during any of those visits 
 
            did she relate to Dr. Haag that she experienced a traumatic 
 
            incident at work which could have possibly caused her back 
 
            discomfort (ex. 4-23-28).
 
            
 
                 On December 18, 1990, claimant was seen in the 
 
            emergency room with complaints of neck, shoulder and back 
 
            pain.  She reported a nine-week history of low back pain but 
 
            denied any history of trauma (ex. 9-63).  It was not until 
 
            December 27, 1990, when she saw Dr. Flapan that she mentions 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            the alleged October 12, 1990 work incident (ex. 5-41).  
 
            *****  She told Dr. Johnson that another individual sat down 
 
            beside her desk (ex. 1-1).  She told Dr. Wirtz that she was 
 
            sitting on a chair and fell off to the left side with 
 
            another person on top of her (ex. 3-22).  Dr. Green was told 
 
            that the person sitting next to her had a seizure and in her 
 
            attempt to protect him from falling she sustained an injury 
 
            to her back (ex. 5-42).  She told Dr. Flapan that she 
 
            injured her back when trying to protect an individual 
 
            standing near her desk from falling while he was having a 
 
            seizure (ex. 5-41).
 
            
 
                 *****
 
            [Claimant's version of her injury is accepted as truthful.  
 
            Claimant gave accounts of how the injury occurred to several 
 
            doctors on several occasions.  For all practical purposes, 
 
            the accounts are consistent and are not refuted by other 
 
            evidence in the record. 
 
            Although the record also contains occasions when claimant 
 
            denied trauma to her doctors, the record as a whole shows 
 
            that claimant has been consistent in asserting the October 
 
            12, 1990 incident as the source of her present back 
 
            problems.  In addition, the record contains evidence that 
 
            claimant suffers from memory loss as a result of a series of 
 
            strokes, which would also account for those occasions when 
 
            claimant failed to mention the seizure incident to her 
 
            physicians.  Thus, it is concluded that claimant did suffer 
 
            an injury arising out of and in the course of her employment 
 
            on October 12, 1990 while trying to assist an office visitor 
 
            who suffered an epileptic seizure.  
 
            
 
            Claimant also bears the burden of proof to show that her 
 
            present condition is causally connected to her work injury.  
 
            Claimant's x-rays in December of 1990 led to the conclusion 
 
            that claimant suffered from degenerative disc disease.  In 
 
            December of 1990, Dr. Flapan diagnosed claimant's condition 
 
            as inflammatory arthritis.  Dr. Rodney E. Johnson, M.D., in 
 
            January of 1991, stated that claimant's condition was one of 
 
            myofascial pain, and that her symptoms were disproportionate 
 
            to the work injury.  Dr. Peter Wirtz also stated that 
 
            claimant's back condition was due to degenerative disc 
 
            disease and not caused by her work injury.  
 
            However, Keith Riggins, M.D., upon referral from claimant's 
 
            attorney, felt that claimant's condition was a herniated 
 
            disc, and that the condition was caused by claimant's fall 
 
            on October 12, 1990.   
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            Dr. Boulden, after initially diagnosing degenerative disc 
 
            disease, stated in August of 1993 that claimant's condition 
 
            was causally connected to her October 12, 1990 injury, and 
 
            assigned a rating of seven percent permanent partial 
 
            impairment.   Dr. Boulden stated that he agreed with Dr. 
 
            Riggins' "cause and effect relationship," but at the same 
 
            time Dr. Boulden stated he also agreed with "Dr. Wirtz's 
 
            report since nothing has ever been said in his report about 
 
            a herniated disc."  Dr. Wirtz found in his report that there 
 
            was no causal connection between claimant's symptoms and her 
 
            work injury.  Although confusing, this  statement is read to 
 
            mean that Dr. Boulden felt that Dr. Wirtz's opinion on 
 
            causation was incorrect because Dr. Wirtz was not aware of 
 
            the disc herniation.  At any rate, clearly Dr. Boulden 
 
            states that claimant's current condition is caused by her 
 
            work injury.
 
            
 
            Both Dr. Riggins and Dr. Boulden have expressed an opinion 
 
            that claimant's current back condition is at least in part 
 
            caused by her work injury.  Dr. Wirtz's opinion that the 
 
            back condition is not caused by the work injury is based on 
 
            a report that fails to mention the presence of claimant's 
 
            herniated disc.  The testimony of Dr. Riggins and Dr. 
 
            Boulden will be given the greater weight.  Claimant has 
 
            carried her burden of proof to show that her present back 
 
            condition is at least in part caused by her work injury of 
 
            October 12, 1990.  
 
            
 
                 Functional impairment is an element to be considered in 
 
            determining industrial disability which is the reduction of 
 
            earning capacity, but consideration must also be given to 
 
            the injured employee's age, education, qualifications, 
 
            experience and inability to engage in employment for which 
 
            the employee is fitted.  Olson v. Goodyear Serv. Stores, 255 
 
            Iowa 1112, 125 N.W.2d 251 (1963); Barton v. Nevada Poultry, 
 
            253 Iowa 285, 110 N.W.2d 660 (1961).
 
            
 
                 A finding of impairment to the body as a whole found by 
 
            a medical evaluator does not equate to industrial 
 
            disability.  Impairment and disability are not synonymous.  
 
            The degree of industrial disability can be much different 
 
            than the degree of impairment because industrial disability 
 
            references to loss of earning capacity and impairment 
 
            references to anatomical or functional abnormality or loss.  
 
            Although loss of function is to be considered and disability 
 
            can rarely be found without it, it is not so that a degree 
 
            of industrial disability is proportionally related to a 
 
            degree of impairment of bodily function.
 
            
 
                 Factors to be considered in determining industrial dis
 
            ability include the employee's medical condition prior to 
 
            the
 
            
 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            injury, immediately after the injury, and presently; the 
 
            situs of the injury, its severity and the length of the 
 
            healing period; the work experience of the employee prior to 
 
            the injury and after the injury and the potential for 
 
            rehabilitation; the employee's qualifications 
 
            intellectually, emotionally and physically; earnings prior 
 
            and subsequent to the injury; age; education; motivation; 
 
            functional impairment as a result of the injury; and 
 
            inability because of the injury to engage in employment for 
 
            which the employee is fitted.  Loss of earnings caused by a 
 
            job transfer for reasons related to the injury is also 
 
            relevant.  Likewise, an employer's refusal to give any sort 
 
            of work to an impaired employee may justify an award of 
 
            disability.  McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 
 
            (Iowa 1980).  These are matters which the finder of fact 
 
            considers collectively in arriving at the determination of 
 
            the degree of industrial disability.
 
            
 
                 There are no weighting guidelines that indicate how 
 
            each of the factors are to be considered.  Neither does a 
 
            rating of functional impairment directly correlate to a 
 
            degree of industrial disability to the body as a whole.  In 
 
            other words, there are no formulae which can be applied and 
 
            then added up to determine the degree of industrial 
 
            disability.  It therefore becomes necessary for the deputy 
 
            or commissioner to draw upon prior experience as well as 
 
            general and specialized knowledge to make the finding with 
 
            regard to degree of industrial disability.  See Christensen 
 
            v. Hagen, Inc., Vol. 1 No. 3 State of Iowa Industrial 
 
            Commissioner Decisions 529 (App. March 26, 1985); Peterson 
 
            v. Truck Haven Cafe, Inc., Vol. 1 No. 3 State of Iowa 
 
            Industrial Commissioner Decisions 654 (App. February 28, 
 
            1985).
 
            
 
                 Compensation for permanent partial disability shall 
 
            begin at the termination of the healing period.  
 
            Compensation shall be paid in relation to 500 weeks as the 
 
            disability bears to the body as a whole.  Iowa Code section 
 
            85.34.
 
            
 
            Claimant was 55 years old at the time of the hearing, and 
 
            had a ninth grade education.  Claimant has an eleven percent 
 
            impairment rating for her back as a result of the work 
 
            injury imposed by Dr. Riggins, as well as a restriction 
 
            against repetitive lifting and lifting over 20 pounds.  Dr. 
 
            Boulden also stated that claimant's condition is causally 
 
            connected to her work injury and assigned a five percent 
 
            impairment rating.  Claimant is still employed with 
 
            employer.  
 
            
 
            Based on these and all other factors of industrial 
 
            disability, claimant is found to have an industrial 
 
            disability of 15 percent as a result of her work injury of 
 
            October 12, 1990.  
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            There is no indication in the record that claimant suffered 
 
            any back problems prior to her work injury.  Although part 
 
            of claimant's present disability may be attributable to an 
 
            aggravation of her degenerative disc disease, clearly this 
 
            condition was not disabling prior to her work injury.  An 
 
            apportionment is not appropriate.  Bearce v. FMC 
 
            Corporation, 465 N.W.2d 531 (Iowa 1991).]
 
            
 
            WHEREFORE, the decision of the deputy is reversed.
 
            
 
                              ORDER
 
            
 
            THEREFORE, it is ordered:
 
            
 
            That defendants are to pay unto claimant healing period 
 
            benefits from November 26, 1990 to March 21, 1991, at the 
 
            rate of two hundred fifty-one and 35/100 dollars ($251.35) 
 
            per week.
 
            
 
            That defendants are to pay unto claimant seventy-five (75) 
 
            weeks of permanent partial disability benefits at the rate 
 
            of two hundred fifty-one and 35/100 dollars ($251.35) per 
 
            week.
 
            
 
            That defendants shall pay accrued weekly benefits in a lump 
 
            sum.
 
            
 
            That defendants shall pay interest on unpaid weekly benefits 
 
            awarded herein as set forth in Iowa Code section 85.30.
 
            
 
            That defendants is to be given credit for benefits 
 
            previously paid.
 
            
 
            That defendants shall pay claimant's medical expenses.  
 
            Defendants shall pay the future medical expenses of claimant 
 
            necessitated by his work injury.
 
            
 
                 That defendants shall file claim activity reports as 
 
            required by this agency pursuant to rule 343 IAC 3.1(2).
 
            That defendants shall pay the costs of this matter including 
 
            the transcription of the hearing.  
 
            
 
            Signed and filed this ____ day of March, 1994.
 
            
 

 
            
 
            Page   8
 
            
 
 
 
 
 
                                          --------------------------
 
                                           BYRON K. ORTON
 
                                           INDUSTRIAL COMMISSIONER
 
            
 
            
 
            Copies To:
 
            
 
            Mr. Christopher D. Spaulding
 
            Attorney at Law
 
            840 Fifth Ave.
 
            Des Moines, Iowa 50309-1398
 
            
 
            Mr. James F. Christenson
 
            Assistant Attorney General
 
            Tort Claims Division
 
            Hoover State Office Bldg.
 
            Des Moines, Iowa 50319
 
            
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                             1108; 1803
 
                                             Filed March 28, 1994
 
                                             Byron K. Orton
 
            
 
                      BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
            
 
            JULIA ALLEN,     
 
                        
 
                 Claimant,   
 
                        
 
            vs.         
 
                                                  File No. 971728
 
            STATE OF IOWA-INSURANCE DIV.,   
 
                                                    A P P E A L
 
                 Employer,   
 
                                                  D E C I S I O N
 
            and         
 
                        
 
            STATE OF IOWA,   
 
                        
 
                 Insurance Carrier,    
 
                 Defendants.      
 
            ____________________________________________________________
 
            
 
            
 
            1108; 1803
 
            Claimant was credible in relating her injury, which involved 
 
            falling from her chair after moving to help a visitor at her 
 
            desk who suffered an epileptic seizure.  Claimant proved 
 
            causal connection and was awarded 15 percent industrial 
 
            disability.
 
            
 
 
            
 
    
 
            
 
            
 
            
 
            
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            JULIA ALLEN,                  :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 971728
 
            STATE OF IOWA-INSURANCE DIV., :
 
                                          :  A R B I T R A T I O N
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            STATE OF IOWA,                :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This is a proceeding in arbitration brought by Julia 
 
            Allen, claimant, against Insurance Division, employer, and 
 
            State of Iowa, insurance carrier, defendants, to recover 
 
            benefits under the Iowa Workers' Compensation Act as a 
 
            result of an injury sustained on October 12, 1990.  This 
 
            matter came on for hearing before the undersigned deputy 
 
            industrial commissioner on September 16, 1993, in Des 
 
            Moines, Iowa.  The record was considered fully submitted at 
 
            the close of the hearing.  The claimant was present and 
 
            testified.  The documentary evidence identified in the 
 
            record consists of claimant's exhibits 1 through 11 and 
 
            defendants' exhibits A through F.
 
            
 
                                      ISSUES
 
            
 
                 Pursuant to the hearing report and order approving same 
 
            dated September 16, 1993 the parties have presented the 
 
            following issues for resolution:
 
            
 
                 1.  Whether claimant sustained an injury on October 12, 
 
            1990, which arose out of and in the course of employment 
 
            with employer;
 
            
 
                 2.  Whether the alleged injury is the cause of 
 
            temporary disability during a period of recovery;
 
            
 
                 3.  Whether the alleged injury is a cause of permanent 
 
            disability;
 
            
 
                 4.  The extent of temporary or permanent disability, if 
 
            any; and
 
            
 
                 5.  Whether claimant is entitled to medical benefits 
 
            under Iowa Code section 85.27.
 
            
 
                                 FINDINGS OF FACT
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
                 The undersigned has carefully considered all the 
 
            testimony given at the hearing, arguments made, evidence 
 
            contained in the exhibits herein, and makes the following 
 
            findings:
 
            
 
                 Claimant was born on May 9, 1938, and completed the 
 
            ninth grade of school.  Her work activity has been as a 
 
            waitress, nurse's aide, check sorter, mail girl, and 
 
            clerical worker.  She commenced working for employer in 
 
            1975.  In 1979 she terminated her employment in order to 
 
            work with her husband who was an over-the-road truck driver.  
 
            She returned to state employment in 1981.  She is classified 
 
            as a clerk 4.  Claimant testified that on October 12, 1990, 
 
            a young man who was visiting his mother at work had a 
 
            seizure.  This occurred while he was sitting in a chair next 
 
            to her.  In an attempt to control his shaking, she grabbed 
 
            and held him in her arms.  He was shaking so vigorously that 
 
            his chair broke and he fell toward her and overturned her 
 
            chair and they both fell to the floor.  She stated she 
 
            reported the incident to her supervisor, Beth Stuchel, 
 
            Deputy Insurance Commissioner.  She lost no time from work 
 
            until Monday, November 26, 1990.  She stated that although 
 
            she initially felt some pain in the small of her back which 
 
            radiated down her right leg, it was not severe enough to 
 
            preclude her from working until November 23, 1990, when she 
 
            could not get out of bed.  
 
            
 
                 The pertinent medical evidence reveals that on November 
 
            26, 1990, claimant presented to Mercy Medical Clinic where 
 
            she saw her family doctor, S.W. Haag, M.D.  Her symptoms 
 
            were referable to a chest cold and lower lumbar pain.  She 
 
            was diagnosed with bronchitis and myofascial strain.  
 
            Medication was prescribed.  A follow-up visit on November 
 
            29, 1990, noted improvement in her condition.  Later, her 
 
            condition deteriorated (exhibit 4-23-27).  On December 9, 
 
            1990, she presented to Mercy Hospital emergency room.  
 
            X-rays of the lumbosacral spine revealed disc space 
 
            narrowing and L4-5 indicative of degenerative disc disease 
 
            and facet arthropathy at L5-S1 (ex. 9-59).  
 
            
 
                 Claimant's back symptomatology did not improve and Dr. 
 
            Haag referred her for an MRI evaluation.  On December 18, 
 
            1990, claimant presented to Mercy Hospital emergency room 
 
            with a nine-week history of low back pain.  She denied any 
 
            history of trauma.  She related that she had no prior 
 
            history of back problems.  Her complaints were also 
 
            referable to aching in her shoulders and neck without any 
 
            history of trauma to these areas.  She underwent C spine and 
 
            bilateral shoulder x-rays which were interpreted as 
 
            negative.  The verbal report obtained from Dr. Grissom 
 
            revealed MRI findings of disc degeneration at L4-5 and L5-S1 
 
            with no evidence of disc herniation (ex. 9, pp. 60-64).
 
            
 
                 The MRI report is exhibit 9, pages 72 through 74.  
 
            Nicholas DeVries, M.D., read the results as showing the 
 
            following:
 
            
 
                 1.  L4-5 right lateral protrusion/HNP, posteriorly 
 
                 depressing the right L5 nerve root, narrowing the 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
                 right lateral recess and causing moderate right 
 
                 foraminal stenosis as detailed above.
 
            
 
                 2.  Small central noncompressive protrusion of the 
 
                 L5-S1 disc.
 
            
 
                 3.  Mild to moderate degeneration of the L4-5 and 
 
                 5-S1 discs for age.
 
            
 
                 Claimant was referred by Dr. Haag to Iowa Orthopaedic 
 
            Center.  She saw Marshall Flapan, M.D., on December 27, 
 
            1990.  Claimant related a 12-week history of discomfort in 
 
            both arms and low back with radiation to the right lower 
 
            extremity.  She attributed her symptoms to an incident at 
 
            work while trying to protect an individual who was standing 
 
            near her desk at work from having a seizure and hurting 
 
            himself.  She denied any history of back problems.  On 
 
            examination she was able to bend over and touch her 
 
            midtibias.  Straight leg raising tests were bilaterally 
 
            negative.  Motor testing failed to demonstrate any weakness 
 
            of the muscle groups in the lower extremity.  Dr. Flapan 
 
            felt her symptoms were suggestive of inflammatory arthritis.  
 
            She was advised to continue taking Voltaren twice a day (ex. 
 
            5-41).
 
            
 
                 On January 3, 1991, claimant met with Dr. Haag.  He 
 
            discussed with her the results of Dr. Flapan's evaluation.  
 
            She stated that she was unhappy with his consult.  She also 
 
            stated that she had an accident at work the end of September 
 
            or the first part of October and her back has hurt ever 
 
            since.  She was referred to Thomas Bower, L.P.T., for 
 
            physical therapy (ex. 4-29).
 
            
 
                 Claimant was evaluated by Mr. Bower on January 3, 1991.  
 
            She related the onset of symptoms to October 1, 1990.  She 
 
            was unable to identify any trauma.  Claimant also presented 
 
            with complaints of bilateral shoulder pain.  On January 10, 
 
            1991, claimant presented with more significant problems with 
 
            her shoulders than with her lower back.  Mr. Bower requested 
 
            that Dr. Haag evaluate the situation (ex. 6, 43-46).
 
            
 
                 Dr. Haag referred claimant to the Iowa Institute of 
 
            Orthopaedics.  On January 16, 1991, she was examined by 
 
            Rodney E. Johnson, M.D.  Dr. Johnson reported as follows, 
 
            "Apparently she was at her desk, another individual sat down 
 
            beside her desk and proceeded to have a seizure.  The 
 
            individual was going to fall forward.  Julia tried to 
 
            support the patient, her chair broke, she fell back and 
 
            experienced pain in the low back." (ex. 1-1).  
 
            
 
                 After examination, Dr. Johnson had no explanation for 
 
            claimant's acute onset of arm pain and shoulder pain.  He 
 
            requested a cervical MRI which was negative.  Dr. Johnson 
 
            felt that the majority of her pain was myofascial.  He noted 
 
            that her complaints were disproportionate to her physical 
 
            findings (ex. 1-1-3).
 
            
 
                 Dr. Haag then referred claimant to William R. Boulden, 
 
            M.D.  She told him that on October 12, 1990, when a person 
 
            in the chair next to her seized, she grabbed him around the 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            waist, his chair broke and they both fell down.  A few days 
 
            later she developed low back pain which increased and went 
 
            down her leg.  She stated that by Thanksgiving, she could 
 
            barely walk.  Dr. Boulden reviewed her x-rays and felt that 
 
            her pathology was due to degenerative disc disease at L4-5 
 
            (ex. 1-4-5).
 
            
 
                 Claimant saw Dr. Boulden for follow-up evaluation on 
 
            March 20, 1991.  At this time, her leg pain had subsided and 
 
            she stated that she was 100 percent better.  He released her 
 
            to return to work effective March 21, 1991.  He stated that 
 
            she should move around her desk every half hour or so (ex. 
 
            1-6).
 
            
 
                 On August 8, 1991, claimant saw Kirk D. Green, D.O.  
 
            She presented with complaints of intermittent leg pain and 
 
            paresthesias.  Dr. Green stated there was nothing more he 
 
            was able to do for her and recommended evaluation at the 
 
            University of Iowa Spine Clinic (ex. 5-42).
 
            
 
                 Claimant presented to the University of Iowa Medical 
 
            Center on October 16, 1991.  AP and lateral 
 
            flexion/extension films of the lumbar spine were obtained.  
 
            These were reviewed along with her MRI which was performed 
 
            in December 1990.  A mild L4-5 bulge was observed.  The 
 
            plain films were essentially unremarkable.  The 
 
            rehabilitation consultant felt that claimant would not be a 
 
            good candidate for their two-week outpatient program (ex. 
 
            7-8).
 
            
 
                 Claimant was involved in a motor vehicle accident on 
 
            November 29, 1992.  She testified that she fractured her 
 
            clavicle (ex. B-3).
 
            
 
                 Claimant was referred by defendants to Peter Wertz, 
 
            M.D., on May 13, 1993.  An examination revealed full range 
 
            of motion and no neurologic involvement.  Dr. Wertz 
 
            indicated that claimant's lumbar degenerative disc disease 
 
            is a natural progressive condition and he cannot relate the 
 
            October 1990 incident as a cause of her impairment.  He 
 
            stated that her disease relates to a 5 percent impairment of 
 
            the body as a whole (ex. 3-21-22).
 
            
 
                 Claimant was referred by her attorney to Keith W. 
 
            Riggins, M.D., for evaluation on July 20, 1993.  Claimant 
 
            related that her condition has been essentially stable since 
 
            March 21, 1991.  Dr. Riggins read the MRI performed on 
 
            December 18, 1990, as demonstrating herniation of the L4-5 
 
            disc on the right with impingement on the nerve roots at 
 
            that level.  He stated as follows:  "Ms. Allen's current 
 
            impairment is felt to be secondary to presence of herniated 
 
            nucleus pulposus at the L4-5, right, which is considered due 
 
            to her episode of fall described as occurring in the course 
 
            of her employment in October of 1990."  (ex. 2-19).
 
            
 
                 Dr. Riggins gave claimant an 11 percent permanent 
 
            impairment rating and restricted her from performing 
 
            activities requiring repetitive forward bending beyond 30 
 
            degrees, repetitively lifting of greater than 20 pounds or 
 
            occasional lifting of greater than 30 pounds, or prolonged 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            sitting or standing in one position (ex. 2-19-20).
 
            
 
                 On August 13, 1993, Dr. Boulden reported to claimant's 
 
            attorney as follows:  "Based on the history that you have 
 
            enclosed to us, it is my opinion that the accident that she 
 
            described in October of 1990 was the incident or factor to 
 
            cause her to develop sciatica pain from a herniated disc."  
 
            (ex. 1-7).
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                 The first issue to be determined is whether claimant 
 
            sustained an injury on October 12, 1990, arising out of and 
 
            in the course of employment with employer.
 
            
 
                 Claimant has the burden of proving by a preponderance 
 
            of the evidence that she received an injury on October 12, 
 
            1990, which arose out of and in the course of her 
 
            employment. McDowell v. Town of Clarksville, 241 N.W.2d 904, 
 
            908 (Iowa 1976); Musselman v. Central Telephone Co., 154 
 
            N.W.2d 128, 130 (Iowa 1967).  The words "arising out of" 
 
            have been interpreted to refer to the cause and origin of 
 
            the injury.  McClure v. Union County, 188 N.W.2d 283, 287 
 
            (Iowa 1971);   Crowe v. DeSoto Consolidated School District, 
 
            68 N.W.2d 63, 65 (Iowa 1955).  The words "in the course of" 
 
            refer to the time, place and circumstances of the injury.  
 
            McClure, 188 N.W.2d at 287; Crowe, 68 N.W.2d at 65.  An 
 
            injury occurs in the course of the employment when it is 
 
            within the period of employment at a place the employee may 
 
            reasonably be, and while the employee is doing work assigned 
 
            by the employer or something incidental to it.  Cedar Rapids 
 
            Community School District v. Cady, 278 N.W.2d 298, 299 (Iowa 
 
            1979), McClure, 188 N.W.2d at 287; Musselman, 154 N.W.2d at 
 
            130. 
 
            
 
                 The supreme court has defined a personal injury for the 
 
            purposes of workers' compensation cases.  Almquist v. 
 
            Shenandoah Nurseries, 254 N.W. 35, 38 (Iowa 1934).  In this 
 
            case the court found that a personal injury, is an injury to 
 
            the body, the impairment of health, or a disease, not 
 
            excluded by the Workers Compensation Act, which comes about, 
 
            not through the natural building up and tearing down of the 
 
            human body, but because of a traumatic or other hurt or 
 
            damage to the health or body of an employee.  The injury to 
 
            the human body must be something, whether an accident or 
 
            not, that acts extraneously to the natural processes of 
 
            nature, and thereby impairs the health, overcomes, injures, 
 
            interrupts, or destroys some function of the body, or 
 
            otherwise damages or injures a part or all of the body.  
 
            
 
                 The Almquist court further observed that while a 
 
            personal injury does not include an occupational disease 
 
            under the Workmen's Compensation Act, yet an injury to the 
 
            health may be a personal injury.  A personal injury includes 
 
            a disease resulting from an injury.  However, the result of 
 
            changes in the human body incident to the general processes 
 
            of nature do not amount to a personal injury.  This is true, 
 
            even though natural change may come about because the life 
 
            has been devoted to labor and hard work.  Results of those 
 
            natural changes do not constitute a personal injury even 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            though the same brings about impairment of health or the 
 
            total or partial incapacity of the functions of the human 
 
            body. 
 
            
 
                 An injury must both arise out of and in the course of 
 
            employment.  To arise out of employer refers to the cause of 
 
            the source of the injury.  Crowe, 246 Iowa 402 68 N.W.2d 63.  
 
            The words "in the course of employment" refer to the time, 
 
            place and circumstances of the injury.  McClure, 188 N.W.2d 
 
            283.
 
            
 
                 At the hearing, claimant alleged that on October 12, 
 
            1990, while holding an individual who was having a seizure, 
 
            his chair broke and they both fell to the ground.  Claimant 
 
            produced no corroborating witnesses to the incident.  
 
            Claimant lost no time from work until November 22, 1990.  
 
            Although claimant alleges that she immediately told her 
 
            supervisor of the incident, a first report of injury 
 
            received by the industrial commissioner's office on January 
 
            4, 1991, indicates that the employer first knew of 
 
            claimant's condition on December 24, 1990 (ex. D).  
 
            
 
                 The documentary evidence compels the undersigned to 
 
            find that claimant did not sustain an injury arising out of 
 
            and in the course of her employment with employer on October 
 
            12, 1990.  Dr. Johnson reported on January 16, 1991, as 
 
            follows:  "Julia tried to support the patient, her chair 
 
            broke, she fell back and experienced pain in the low back.  
 
            She then had onset of discomfort extending down the right 
 
            leg."  (ex. 1-1).  On February 13, 1991, claimant reported 
 
            to Dr. Boulden that after she fell to the floor, she 
 
            developed low back pain a few days later (ex. 1-4).  
 
            Claimant told the physician at the University of Iowa that 
 
            her back pain began two days after the October 12, 1990 
 
            incident (ex. 7-47).  On January 3, 1991, Dr. Haag reported 
 
            that claimant had an accident at work the end of September 
 
            or the first part of October and her back has hurt since 
 
            (ex. 4-29).  
 
            
 
                 Despite the above assertions, it must be noted that on 
 
            October 15, 1990, three days after the alleged incident, 
 
            claimant was seen in the emergency room with complaints of 
 
            left facial muscle spasms which started when she was playing 
 
            bingo on October 14, 1990.  She was admitted as an inpatient 
 
            for further evaluation.  It was noted that claimant had been 
 
            under a great deal of stress and the physician was unsure 
 
            whether her speech and memory problems were related to the 
 
            stress or to a transient ischemic attack.  A complete workup 
 
            was performed and the results were negative.  At no time 
 
            during the course of her hospitalization did claimant 
 
            mention the October 12, 1990 work incident and presented 
 
            with no musculoskeletal complaints, including low back pain 
 
            (ex. A-2). 
 
            
 
                 On November 26, 1990, claimant presented to Mercy 
 
            Medical Clinic where she saw Dr. Haag.  Her complaints were 
 
            referable to a cold in her chest and the possibility of 
 
            bronchitis.  She also stated that she has been down for 
 
            three weeks with discomfort in the lower lumbar area.  She 
 
            made no mention of a work incident or injury (ex. 4-23).  
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            She returned to Dr. Haag for follow-up evaluations on 
 
            November 29, 1990; December 6, 1990; December 10, 1990; and 
 
            December 14, 1990.  At no time during any of those visits 
 
            did she relate to Dr. Haag that she experienced a traumatic 
 
            incident at work which could have possibly caused her back 
 
            discomfort (ex. 4-23-28).
 
            
 
                 On December 18, 1990, claimant was seen in the 
 
            emergency room with complaints of neck, shoulder and back 
 
            pain.  She reported a nine-week history of low back pain but 
 
            denied any history of trauma (ex. 9-63).  It was not until 
 
            December 27, 1990, when she saw Dr. Flapan that she mentions 
 
            the alleged October 12, 1990 work incident (ex. 5-41).  
 
            However there are conflicting versions of the incident in 
 
            the record.  She told Dr. Johnson that another individual 
 
            sat down beside her desk (ex. 1-1).  She told Dr. Wertz that 
 
            she was sitting on a chair and fell off to the left side 
 
            with another person on top of her (ex. 3-22).  Dr. Green was 
 
            told that the person sitting next to her had a seizure and 
 
            in her attempt to protect him from falling she sustained an 
 
            injury to her back (ex. 5-42).  She told Dr. Flapan that she 
 
            injured her back when trying to protect an individual 
 
            standing near her desk from falling while he was having a 
 
            seizure (ex. 5-41).
 
            
 
                 Claimant appeared at the hearing and testified that she 
 
            injured her back while holding a young man who was having a 
 
            seizure.  She stated she reported the incident to her 
 
            supervisor.  However, this is refuted by the first report of 
 
            injury.  She stated that the incident was witnessed by other 
 
            workers but none appeared to give corroborating testimony.  
 
            There is evidence in the record which conflicts with her 
 
            description of the injury.  She sought medical treatment 
 
            three days after the alleged injury and made no mention of 
 
            the incident or the injury.  
 
            
 
                 The credibility of a witness is always at issue.  
 
            Claimant's inconsistent statements make it impossible to 
 
            support a recovery in this case.  Accordingly, it is 
 
            determined that claimant did not sustain an injury which 
 
            arose out of and in the course of her employment with 
 
            employer.  Claimant has not met her burden of proof.  
 
            
 
                 This determination is dispositive of the entire case 
 
            and further analysis is unnecessary.
 
            
 
                           
 
            
 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
                                    ORDER
 
            
 
                 THEREFORE IT IS ORDERED:
 
            
 
                 Claimant shall take nothing from these proceedings.
 
            
 
                 The parties shall pay their own costs.
 
            
 
                 Signed and filed this ____ day of September, 1993.
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          JEAN M. INGRASSIA
 
                                          DEPUTY INDUSTRIAL COMMISSIONER    
 
            
 
            Copies to:
 
            
 
            Mr. Roger Owens
 
            Mr. Christopher Spaulding
 
            Attorneys at Law
 
            840 5th Ave.
 
            Des Moines, Iowa  50309-1398
 
            
 
            Mr. James Christenson
 
            Assistant Attorney General
 
            Hoover State Office Bldg
 
            Des Moines, Iowa  50319
 
            
 
            
 
                 
 
            
 
 
            
 
            
 
            
 
            
 
                                       51100
 
                                       Filed September 22, 1993
 
                                       Jean M. Ingrassia
 
            
 
                       BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                      
 
            JULIA ALLEN,   
 
                      
 
                 Claimant, 
 
                      
 
            vs.       
 
                                                File No. 971728
 
            STATE OF IOWA-INSURANCE DIV., 
 
                                             A R B I T R A T I O N
 
                 Employer, 
 
                                                D E C I S I O N
 
            and       
 
                      
 
            STATE OF IOWA, 
 
                      
 
                 Insurance Carrier,  
 
                 Defendants.    
 
            ___________________________________________________________
 
            
 
            51100
 
            Claimant did not prove by a preponderance of the evidence 
 
            that she sustained a back injury as a result of a 
 
            work-related incident.  Claimant appeared at the hearing and 
 
            testified to suffering a traumatic event.  She did not 
 
            report the event to her supervisor until two months 
 
            afterwards.  The incident was apparently witnessed by others 
 
            but none appeared to corroborate claimant's testimony.  The 
 
            record contained inconsistent statements made to physicians.  
 
            Claimant's inconsistent statements make it impossible to 
 
            support a recovery in this case.
 
            
 
 
 
 
 
 
 
 
 
 
 
 
 
 
            BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
_________________________________________________________________
 
DANIEL G. LEE,   
 
            
 
     Claimant,   
 
            
 
vs.         
 
                                     File No. 972228
 
TERRA INTERNATIONAL, INC.,      
 
                                       A P P E A L
 
     Employer,   
 
                
 
and                                  D E C I S I O N
 
            
 
PACIFIC EMPLOYERS INSURANCE,    
 
            
 
     Insurance Carrier,    
 
     Defendants.      
 
_________________________________________________________________
 
The record has been reviewed de novo on appeal.  The dismissal of the 
 
deputy filed November 4, 1994 is affirmed and is adopted as the final 
 
agency action in this case.
 
 
 
Because neither party filed a brief on appeal this matter will be 
 
considered generally without any specified errors.  The issues 
 
considered by the deputy was:  Whether claimant has shown cause why his 
 
claim should not be dismissed for failure to comply with the prehearing 
 
process.
 
 
 
Claimant shall pay the costs of the appeal, including the preparation 
 
of the hearing transcript.
 
Signed and filed this ____ day of April, 1995.         
 
                                _______________________________
 
                                BYRON K. ORTON           
 
                                INDUSTRIAL COMMISSIONER
 
 
 
Copies To:
 
 
 
Ms. Kay E. Dull
 
Attorney at Law
 
509 Ninth Street
 
Sioux City, Iowa 51101
 
 
 
Ms. Judith Ann Higgs
 
Attorney at Law
 
P.O. Box 3086
 
Sioux City, Iowa 51102-3086
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                               2906
 
                               Filed April 28, 1995
 
                               BYRON K. ORTON
 
 
 
            BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
_________________________________________________________________
 
            
 
DANIEL G. LEE,   
 
            
 
     Claimant,   
 
            
 
vs.         
 
                                      File No. 972228
 
TERRA INTERNATIONAL, INC.,      
 
                                        A P P E A L
 
     Employer,   
 
               
 
and                                  D E C I S I O N
 
            
 
PACIFIC EMPLOYERS INSURANCE,    
 
            
 
     Insurance Carrier,    
 
     Defendants.      
 
_________________________________________________________________
 
2906
 
Claimant's claim was dismissed.  Claimant failed to show cause why the 
 
matter should not be dismissed for failure to comply with the 
 
prehearing process.  Claimant's counsel failed to appear for prehearing 
 
as ordered.  Claimant failed to cooperate with the timely filing of a 
 
prehearing conference report.
 
 
            
 
            
 
            
 
            
 
            
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            MICHAEL HUDSON,               :
 
                                          :       File No. 972480
 
                 Claimant,                :
 
                                          :    A R B I T R A T I O N
 
            vs.                           :
 
                                          :       D E C I S I O N
 
            GRIFFIN PIPE PRODUCTS,        :
 
                                          :
 
                 Employer,                :
 
                 Self-Insured,            :
 
                 Defendant.               :
 
            ___________________________________________________________
 
            
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This is a proceeding in arbitration brought by Michael 
 
            Hudson, claimant, against Griffin Pipe Products, employer, 
 
            hereinafter referred to as Griffin, a self-insured 
 
            defendant, for workers' compensation benefits as a result of 
 
            an alleged injury on January 17, 1991.  On September 29, 
 
            1994, 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 hearing report of 
 
            contested issues and stipulations which was approved and 
 
            accepted as a part of the record of this case at the time of 
 
            hearing.  The oral testimony and written exhibits received 
 
            during the hearing are set forth in the hearing transcript.
 
            
 
                 According to the hearing report, the parties have 
 
            stipulated to the following matters:
 
            
 
                 1.  On January 17, 1991, claimant received an injury 
 
            arising out of and in the course of employment with Griffin.
 
            
 
                 2.  Claimant is seeking temporary total or healing 
 
            period benefits only from June 18, 1992 through July 5, 1992 
 
            and defendant agrees that he was not working at this time. 
 
            
 
                 3.  If the injury is found to have caused permanent 
 
            disability, the type of disability is an industrial 
 
            disability to the body as a whole.
 
            
 
                 4.  If permanent partial disability benefits are 
 
            awarded, they shall begin as of January 24, 1992.
 
            
 
                 5.  At the time of injury claimant's gross rate of 
 
            weekly compensation was $562.00; he was married; and, he was 
 
            entitled to four exemptions.  Therefore, claimant's weekly 
 
            rate of compensation is $353.15 according to the Industrial 
 
            Commissioner's published rate booklet for this injury. 
 
            
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
                 6.  It was stipulated that the providers of the 
 
            requested medical expenses would testify as to their 
 
            reasonableness and defendant is not offering contrary 
 
            evidence.
 
            
 
                                      ISSUES
 
            
 
                 The parties submitted the following issues for 
 
            determination in this proceeding:
 
            
 
                  I.  The extent of claimant's entitlement to 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:
 
            
 
                 Claimant has worked for Griffin since September 1990 as 
 
            a electrician and continues in this employment at the 
 
            present time. His duties require him on occasion to perform 
 
            heavy lifting, bending, squatting, climbing and prolonged 
 
            sitting, standing and walking.
 
            
 
                 The injury in January 1991 involved a crush injury to 
 
            claimant's pelvis when he became entangled in an overhead 
 
            crane that he was repairing.  Claimant was hospitalized 
 
            after the injury until January 25, 1991.  Since his recovery 
 
            from the various crush fractures, claimant has complained of 
 
            low back, hip and leg pain and he was been under the care of 
 
            a number of physicians since that time for these same pain 
 
            complaints.  Except for epidural injections, claimant's care 
 
            has remained conservative with use of medication and 
 
            physical therapy.  No physician to date has recommended 
 
            surgery for what is most often described as lumbar strain.
 
            
 
                 Claimant did not like his first physician and his care 
 
            was transferred to Michael O'Neil, M.D., an orthopedic 
 
            surgeon.  In June 1991 Dr. O'Neil refused to further treat 
 
            claimant and his care was transferred to Michael McGuire, 
 
            M.D., another orthopedic surgeon.  Dr. McGuire eventually 
 
            refused to treat claimant in June 1992.  Both of these 
 
            physicians ended treatment when claimant admitted to them 
 
            that he was forging their prescriptions to obtain pain 
 
            medications.  The last episode with Dr. McGuire resulted in 
 
            claimant's prosecution and felony conviction for which he 
 
            received a suspended sentence with probation.
 
            
 
                 Upon being told by Dr. McGuire that he would prosecute, 
 
            claimant on the same day reported to the hospital with 
 
            complaints of suicidal thoughts and depression.  He then was 
 
            hospitalized and evaluated by Michael Egger, M.D., a 
 
            psychiatrist who states that claimant suffered at the time 
 
            from a major depressive disorder "related to chronic pain 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            residual to his industrial accident."  Upon previous 
 
            referral by Dr. McGuire, claimant had been evaluated by a 
 
            pain control center.  Richard Belatti, Jr., M.D., from that 
 
            center, in February 1992 diagnosed three conditions:  
 
            substance abuse with drug seeking behavior, manipulative 
 
            personality and chronic lumbar strain, hip pain and shoulder 
 
            pain.  He recommended a comprehensive pain management 
 
            treatment program but this was not authorized by defendant.
 
            
 
                 Claimant returned to work in March 1992 with 
 
            restrictions against heavy work and prolonged walking.  In 
 
            October 1993 claimant was sent by defendant to Anil Agarwal, 
 
            M.D., who removed all restrictions.  Claimant now performs 
 
            regular duty with some accommodations for his complaints.  
 
            All physicians involved in this case indicate that claimant 
 
            has reached maximum healing for the physical components of 
 
            the 1991 work injury.  Dr. Eggers continues to treat 
 
            claimant's mental problems.
 
            
 
                 Claimant now admits to heavy use of alcohol.  He has 
 
            been recently convicted of drunk driving and has lost his 
 
            license to drive as a result.  Claimant again received a 
 
            suspended sentence with probation.  Despite his pain 
 
            complaints and legal difficulties, claimant remains employed 
 
            at Griffin in his same electrician job. However, fellow 
 
            employees have begun to harass him and claimant is worried 
 
            he may lose his job.
 
            
 
                 At hearing, claimant blames the work injury for all of 
 
            his current pain and legal problems stemming from drug and 
 
            alcohol abuse.  He states that he lead a Christian life with 
 
            his wife and kids prior to the injury and was heavily 
 
            involved in his own "street" ministry.  Claimant attended 
 
            two bible schools following graduation from high school.  He 
 
            denied any prior use of drugs or alcohol.
 
            
 
                 However, the full extent of claimant's on-going pain 
 
            complaints cannot be believed.  His forgery activity and 
 
            drug abuse behavior is wholly inconsistent with his claimed 
 
            Christian values.  The denial of prior use of drugs or 
 
            alcohol likewise is questionable.  At hearing, claimant 
 
            admitted to having the drug "phenobarbital" in his system at 
 
            the time of drug testing in conjunction with his 
 
            pre-employment physical at Griffin, but claims this occurred 
 
            due to use of an over-the-counter drug "Primatine" for his 
 
            bronchitis.  In this agency's experience and expertise, 
 
            barbiturate drugs are not available in his country without a 
 
            prescription.
 
            
 
                 However, despite his credibility problems, claimant has 
 
            a documented serious work injury causing extensive lost time 
 
            and permanent disability.  Almost every physician who has 
 
            rendered an opinion in this case opines that claimant has 
 
            suffered a permanent partial impairment of from 5 percent to 
 
            19 percent to the body as a whole due to his crush fracture 
 
            injury.  Therefore, it is found that the work injury of 
 
            January 17, 1991 is a cause of some extent of significant 
 
            permanent disability to the body as a whole.
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
                 What cannot be found is that his pain is so severe that 
 
            he is unable to continue at Griffin without heavy use of 
 
            alcohol or drugs.  Since the time of injury, claimant has 
 
            been manipulative and constantly demanding that his 
 
            physicians provide him with potent pain killing drugs or he 
 
            would resort to alcohol abuse.  Also, since the time of 
 
            injury, most physicians found this pain complaints to be far 
 
            beyond what they would expect.
 
            
 
                 With reference to the June 1992 hospitalization and the 
 
            major depressive disorder.  It is found that such a 
 
            condition or its treatment by Dr. Egger is casually related 
 
            to the 1991 injury.  Admittedly, this hospitalization 
 
            occurred shortly after his confrontation with Dr. McGuire 
 
            over his forgery of prescriptions but this was known by Dr. 
 
            Eggers who rendered an uncontroverted opinion causally 
 
            relating the mental condition he diagnosed to the industrial 
 
            accident.  Also, given his past involvement with claimant, 
 
            Dr. Eggers appears to be the best physician to render 
 
            continuing care of claimant's mental problems in the future.
 
            
 
                 Given the circumstances of the injury and the views of 
 
            treating physicians, it must be found that claimant suffers 
 
            from some ongoing pain.  Even after claimant's first 
 
            prescription problems with Dr. O'Neal, Dr. McGuire 
 
            recommended a pain clinic to help claimant deal with these 
 
            problems but this was not offered by defendant.  Treatment 
 
            of claimant's mental depression and treatment and evaluation 
 
            by a pain clinic would appear appropriate in this case to 
 
            determine the full extent of his pain.
 
            
 
                 With reference to claimant's industrial disability, 
 
            without completion of treatment for his mental and pain 
 
            problems, there can be no final assessment of industrial 
 
            disability or permanent impairment caused by the injury.  
 
            Such assessment must await such time as maximum improvement 
 
            is reached for all work-related conditions.
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                 I.  The question of causal connection is essentially 
 
            within the domain of expert medical opinion.  Bradshaw v. 
 
            Iowa Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167 
 
            (1960).  The opinion of experts need not be couched in 
 
            definite, positive or unequivocal language and the expert 
 
            opinion may be accepted or rejected, in whole or in part, by 
 
            the trier of fact.  Sondag v. Ferris Hardware, 220 N.W.2d 
 
            903 (Iowa 1974).  The weight to be given to such an opinion 
 
            is for the finder of fact to determine from the completeness 
 
            of the premise given the expert or other surrounding 
 
            circumstances.  Bodish v. Fischer, Inc., 257 Iowa 516, 133 
 
            N.W.2d 867 (1965).
 
            
 
                 Furthermore, if the available expert testimony is 
 
            insufficient alone to support a finding of causal 
 
            connection, such testimony may be coupled with non-expert 
 
            testimony to show causation and be sufficient to sustain an 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            award.  Giere v. Aase Haugen Homes, Inc., 259 Iowa 1065, 146 
 
            N.W.2d 911, 915 (1966).  Such evidence does not, however, 
 
            compel an award as a matter of law.  Anderson v. Oscar Mayer 
 
            & Co., 217 N.W.2d 531, 536 (1974).  To establish 
 
            compensability, the injury need only be a significant 
 
            factor, not be the only factor causing the claimed 
 
            disability.  Blacksmith v. All-American, Inc., 290 N.W.2d 
 
            348, 354 (1980).  In the case of a preexisting condition an 
 
            employee is not entitled to recover for the results of a 
 
            preexisting injury or disease but can recover for an 
 
            aggravation thereof which resulted in the disability found 
 
            to exist.  Olson v. Goodyear Service Stores, 255 Iowa 1112, 
 
            125 N.W.2d 251 (1963).
 
            
 
                 A finding of the extent of permanent disability was not 
 
            possible at this time given claimant's need for further 
 
            evaluation and treatment for mental and pain complaints.  
 
            However, claimant is entitled to weekly benefits for 
 
            temporary total or healing period benefits under Iowa Code 
 
            section 85.33 or 85.34(1) from the date of injury until 
 
            claimant returns to work; until claimant is medically 
 
            capable of returning to substantially similar work to the 
 
            work he was performing at the time of injury; or, until it 
 
            is indicated that significant improvement from the injury is 
 
            not anticipated, whichever occurs first.
 
            
 
                 In this case, claimant has not reached maximum healing 
 
            but has returned to work.  However, he was off again in June 
 
            1992 for treatment of a work-related mental condition and is 
 
            entitled to weekly benefits for that period of time.  A 
 
            temporary return of work following a work injury does not 
 
            preclude the reinstitution of temporary total disability 
 
            benefits when an employee is compelled to leave work a 
 
            second time as a result of the same injury.  See Junge v. 
 
            Century Engineering Corp, II IA Industrial Commissioner 
 
            Reports 219 (Appeal Decision 1981).  As claimant returned to 
 
            work again and remains at work, he is not entitled to 
 
            further weekly benefits until the extent of permanency can 
 
            be determined.
 
            
 
                 II.  Pursuant to Iowa Code section 85.27, claimant is 
 
            entitled to payment of reasonable medical expenses incurred 
 
            for treatment of a work injury.  In the case at bar, the 
 
            only medical dispute involved the treatment of claimant's 
 
            depression by Dr. Eggers and others and referral of claimant 
 
            to a pain center.  These conditions were found work related 
 
            and medical benefits will be awarded.
 
            
 
                                      ORDER
 
            
 
                 1. Defendant shall pay to claimant additional temporary 
 
            total disability or healing period benefits from June 18, 
 
            1992 through July 5, 1992 at the rate of three hundred 
 
            fifty-three and 15/l00 dollars ($353.15) per week.
 
            
 
                 2.  Defendant shall provide at its expense treatment of 
 
            claimant's depression and mental problems by Dr. Eggers and 
 
            shall provide claimant reasonable treatment at any reputable 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            pain management center chosen by defendant.
 
            
 
                 3.  Defendant shall pay accrued weekly benefits in a 
 
            lump sum and shall receive credit against this award for all 
 
            benefits previously paid.
 
            
 
                 4.  Defendant shall pay interest on unpaid weekly 
 
            benefits awarded herein as set forth in Iowa Code section 
 
            85.30. 
 
            
 
                 5.  Defendant shall pay the costs of this action 
 
            pursuant to rule 343 IAC 4.33, including reimbursement to 
 
            claimant for any filing fee paid in this matter.
 
            
 
            
 
            
 
                 Signed and filed this ____ day of October, 1994.
 
            
 
            
 
            
 
                                          ______________________________
 
                                          LARRY P. WALSHIRE
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Sheldon M. Gallner
 
            Attorney at Law
 
            803 Third Ave
 
            PO Box 1588
 
            Council Bluffs  IA  51502
 
            
 
            Mr. W. Curtis Hewett
 
            Attorney at Law
 
            35 Main Place
 
            PO Box 249
 
            Council Bluffs  IA  51502
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                             5-1803
 
                                             Filed October 25, 1994
 
                                             LARRY P. WALSHIRE
 
            
 
                      BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                      
 
            MICHAEL HUDSON,     
 
                                               File No. 972480
 
                 Claimant, 
 
                                            A R B I T R A T I O N
 
            vs.       
 
                                                D E C I S I O N
 
            GRIFFIN PIPE PRODUCTS,   
 
                      
 
                 Employer, 
 
                 Self-Insured,  
 
                 Defendant.     
 
            ___________________________________________________________
 
            5-1803
 
            
 
            Non-precedential, extent of disability case.