BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
            
 
            MARTHA HOEVET,   
 
                        
 
                 Claimant,   
 
                        
 
            vs.         
 
                                                   File No. 973115
 
            STACYVILLE COMMUNITY       
 
            NURSING HOME,    
 
                                                    A P P E A L
 
                 Employer,   
 
                                                   D E C I S I O N
 
            and         
 
                        
 
            INA INSURANCE COMPANY,     
 
                        
 
                 Insurance Carrier,    
 
                 Defendants.      
 
            ____________________________________________________________
 
           
 
            The record, including the transcript of the hearing before 
 
            the deputy and all exhibits admitted into the record, has 
 
            been reviewed de novo on appeal.
 
            
 
                                   ISSUES
 
            
 
            The issues on appeal are:  Whether claimant sustained an 
 
            injury arising out of and in the course of her employment on 
 
            January 12, 1991; the nature and extent of claimant's 
 
            alleged disability; whether a penalty should be assessed; 
 
            and how costs should be assessed.
 
            
 
                               FINDINGS OF FACT
 
            
 
            The findings of fact contained in the proposed agency 
 
            decision filed November 20, 1992 are adopted as set forth 
 
            below.  Segments designated by brackets ([ ]) indicate 
 
            language that is in addition to the language of the proposed 
 
            agency decision.
 
            
 
                 Claimant, Martha Hoevet, was born on March 1, 1949.  At 
 
            the time of the hearing, she was 43 years of age.  Claimant 
 
            is married and has one dependent child.  She is 5 feet 3 
 
            inches and weighs approximately 195 pounds.
 
            
 
                 Claimant completed the tenth grade but did not graduate 
 
            from high school.  Apparently, she has not received her GED.
 
            
 
                 For the past fifteen years claimant has been a 
 
            certified nurse's aide.  Her primary employer during her 
 
            career has been the defendant nursing home, although from 
 
            September of 1990 through December of 1990, claimant also 
 
            held part-time employment with a nursing home facility in 
 
            Austin, Minnesota.  As a nurse's aide, claimant's duties 
 
            have included providing total care for patients/residents at 
 
            the Stacyville Community Nursing Home.  Specifically, her 
 

 
            
 
            Page   2
 
            
 
            
 
            duties included bathing and feeding patients and assisting 
 
            them to the commode.  Claimant also helped residents with 
 
            hygiene needs.
 
            
 
                 On Saturday, January 12, 1991, claimant was working 
 
            with Millie Fredericks, another nurse's aide.  According to 
 
            claimant, they were working together and were assigned to 
 
            the south wing which housed Barbara Koenigs, a patient who 
 
            was bedridden.  An exhibit shows that claimant was assigned 
 
            to work on the north wing of the nursing home.  (Joint 
 
            Exhibit 25)  Barbara Koenigs was assigned to the south wing.  
 
            Testimony provided that workers were to help each other in 
 
            wings other than those to which they were assigned.  Because 
 
            of her physical limitations, Ms. Koenigs was required to use 
 
            a portable commode located beside her bed.  As claimant and 
 
            Ms. Fredericks helped the resident from the commode to the 
 
            bed, claimant felt pain in her back and fell forward onto 
 
            the bed.  She told Ms. Fredericks that she had hurt her 
 
            back.  Ms. Fredericks' deposition testimony comports with 
 
            claimant's testimony given at the hearing.  (Jt. Ex. 36, 
 
            page 13)
 
            
 
                 Claimant went to the head nurse on duty, Roberta 
 
            Gaffey, and asked for aspirin to relieve the back pain she 
 
            felt after helping the resident.  She finished her shift and 
 
            worked the following day, however, she was not able to 
 
            perform all of the required job duties, particularly the 
 
            lifting duties and called upon co-employees to help her.  
 
            Claimant continued to work her normal shifts, but on January 
 
            15, 1991, she sought treatment from Joseph P. Mlinar, M.D., 
 
            a family practice physician with the Austin Medical Clinic 
 
            in Austin, Minnesota.  He prescribed Parafon Forte and 
 
            ibuprofen.  The following day, after her husband telephoned 
 
            Dr. Mlinar and stated that claimant was getting 
 
            progressively worse, she was admitted to the St. Olaf 
 
            Hospital in Austin, Minnesota.  (Jt. Ex. 31)
 
            
 
                 While in the hospital, claimant underwent a CT scan of 
 
            the back which noted mild bulging at the L4-5 and L5-S1 
 
            regions.  Degenerative arthritis was present throughout the 
 
            lumbar spine.  The final diagnoses was that of acute lumbar 
 
            sacral strain and obesity.  She was discharged to return 
 
            home and it was recommended that she lose weight and 
 
            increase exercising and activities.  She was advised to do 
 
            no lifting of more than ten
 
            
 
            
 
            Page   3
 
            
 
            
 
            pounds for the next two weeks.  While in the hospital, 
 
            claimant was treated by John M. Toso, M.D. (Jt. Ex. 2 and 
 
            28)  
 
            
 
                 Eventually, claimant was referred to E. A. Crowell, 
 
            M.D., an orthopedic specialist at the Mason City Clinic [in 
 
            February 1991].  He reviewed her x-rays of the lumbar spine 
 
            which showed multiple traction spurs and old limbus avulsion 
 
            fractures at two levels.  He recommended a bone scan to 
 
            provide further diagnostic evaluations.  His physical 
 
            examination did not reveal positive results on any of the 
 
            standard tests, and he was of the opinion that claimant had 
 
            sustained a [common] low back strain.  [He found nothing to 
 
            suggest a ruptured disc or nerve-root irritation and no 
 
            evidence of a mass lesion.  He predicted that progress would 
 
            be slow but claimant would be able to return to normal 
 
            activities.]  (Jt. Ex. 19)
 
            
 
                 In February of 1991, approximately three weeks after a 
 
            representative from the insurance company took claimant's 
 
            statement (Jt. Ex. 13), a rehabilitation specialist, Deanna 
 
            Harris, R.N., became involved with the management of 
 
            claimant's medical care.  Ms. Harris sent claimant to R. 
 
            Emerson at the Mason City Clinic.  The history taken from 
 
            claimant shows that claimant was at work as a nurse's aide 
 
            when she began to experience back pain.  Specifically, Dr. 
 
            Emerson's notes state:  "She sent to help a patient into 
 
            bed, slipped and twisted her back as [she] fell into bed 
 
            with the patient.  She felt a ripping sensation in her lower 
 
            back, had sharp pain at first." (Jt. Ex. 11)  Dr. Emerson's 
 
            examination revealed that claimant had decreased range of 
 
            motion of the lumbosacral spine on forward flexion but full 
 
            right and left bilateral bending.  Straight leg tests were 
 
            negative.  He recommended abdominal strengthening exercises, 
 
            weight loss and increased activities such as walking and 
 
            using a stationary bicycle.  He advised that claimant could 
 
            return to light duty work on March 25 and probably full duty 
 
            on April 8, 1991. (Jt. Ex. 11)
 
            
 
                 Claimant returned to work part-time as a nurse's aide 
 
            with no restrictions on March 25, 1991.  After two weeks, 
 
            she was restored to full duty employment and continued to 
 
            experience back pain.  She returned to Dr. Mlinar in May of 
 
            1991, was taken off of work and was referred to Sherwin 
 
            Goldman, M.D.  The history taken reflects that claimant had 
 
            a lifting injury at work on January 15, 1991.  Present 
 
            symptoms included low back pain in the center of the spine 
 
            with radiation to just below the knee on the left side.  The 
 
            majority of the pain occurred on flexion and extension.  Dr. 
 
            Goldman made note of claimant's height and weight (5 feet 3 
 
            inches and 195 pounds) and observed her difficulty when 
 
            walking on her heels and toes as well as pain in the low 
 
            back when squatting and hopping.  The examination revealed 
 
            further that claimant had tenderness in the middle of the 
 
            low back, poor muscle contractions and very little voluntary 
 
            lumbar motion.  Claimant was able to perform straight leg 
 
            raising with considerable low back pain.  His preliminary 
 

 
            
 
            Page   4
 
            
 
            
 
            impression was that of lumbar myofascial pain.  The results 
 
            of an EMG were normal and the MRI scan shows no evidence of 
 
            a herniation or potential radicular process.  Final 
 
            recommendations included proper work restrictions, weight 
 
            loss, PMNR and trigger point injections.  (Jt. Ex. 32)
 
            
 
                 Throughout some of August 1991, claimant underwent 
 
            treatment from the Mayo Pain Clinic.  (Jt. Exs. 16 and 32)  
 
            The final diagnosis was that of chronic lumbar myofascial 
 
            pain with chronic pain syndrome.  No permanent impairment 
 
            was noted.  (Jt. Ex. 15)
 
            
 
                 In November of 1991, Dr. Toso recommended that claimant 
 
            undergo physical therapy from November through December 1991 
 
            and January of 1992 to March of 1992.  The notes which 
 
            document her visits are very terse and do not provide any 
 
            final diagnoses or recommendations.  (Jt. Ex. 27)
 
            
 
                 A final note from Dr. Toso dated March 5, 1992, 
 
            recommends claimant not lift more than 30 pounds for twelve 
 
            months with a reassessment in March of 1993.  (Jt. Ex. 3)  
 
            [In his assessment when he saw claimant on March 5, 1992 Dr. 
 
            Toso noted remarkable interval improvement in the 
 
            flexibility and strength of her back and a resultant 
 
            decrease in her pain.  He increased her lifting restrictions 
 
            to 30 pounds and was to reassess in one year.  He noted a 
 
            very high risk for chronic back problems with increased 
 
            workload.  He indicated that he was hopeful claimant could 
 
            work as a nurse's aide without restrictions if she lost 
 
            weight and continued her home exercise program.  He agreed 
 
            with the Mayo Clinic assessment that there was not any 
 
            evidence of permanent physical impairment.]
 
            
 
                 Dr. Toso was deposed on August 13, 1992.  He confirms 
 
            his recommendation that claimant lift not more than 30 
 
            pounds and recommends that she continue home exercises and 
 
            lose weight.  He stated that he did not think she was a 
 
            malingerer, and at one time suggested she pursue employment 
 
            that would not require lifting abilities.  He did not have 
 
            an opinion as to whether claimant's condition was work 
 
            related nor did he state that claimant had a permanent 
 
            impairment but reiterated that myofascial pain is permanent.  
 
            He indicated that claimant's weight is a factor in her 
 
            complaints of back pain.  (Jt. Ex. 33)
 
            
 
                 [Dr. Toso described the diagnosis of chronic lumbar 
 
            myofascial pain with chronic pain syndrome in the following 
 
            manner:
 
            First, chronic lumbar myofascial pain, myofascial would 
 
            state that the pain stems from muscle and fascia.  Lumbar 
 
            meaning the area of the muscle and fascia involved.  So this 
 
            is extrinsic or outside of the vertebral column.  And 
 
            chronic meaning it's been lasting for more than, say, one or 
 
            two months, ongoing pain.  Chronic pain syndrome diagnosis 
 
            would imply that the patient is having ongoing problem with 
 
            chronic pain that is resistant to multiple medical 
 
            interventions.
 
            
 
            (Jt. Ex. 33, p. 11)]
 

 
            
 
            Page   5
 
            
 
            
 
            
 
                 Dr. Mlinar was deposed on August 13, 1992.  He was of 
 
            the opinion that the cause of claimant's back pain was due 
 
            to an incident at the nursing home wherein claimant was 
 
            lifting a basket of wet clothes.  He diagnosed chronic 
 
            lumbar myofascial pain with chronic pain syndrome and was 
 
            unsure of the restrictions under which claimant was working.  
 
            He deferred further comments to the current treating 
 
            physicians.  (Jt. Ex. 34)
 
            
 
                 Dr. Goldman was deposed on September 10, 1992.  He 
 
            reiterated that his examination revealed a great amount of 
 
            pain, and his final diagnosis was that of chronic lumbar 
 
            myofascial pain with chronic pain syndrome.  He was unable 
 
            to state what claimant's prognosis might be, but related her 
 
            complaints to an injury at the nursing home.  (Jt. Ex. 35)  
 
            [After seeing claimant for evaluation beginning July 15, 
 
            1991 Dr. Goldman wrote that "from a musculoskeletal 
 
            standpoint, we did not find any evidence of any permanent 
 
            physical impairment."  (Jt. Ex. 15)  In his deposition Dr. 
 
            Goldman described chronic pain syndrome as "a process that 
 
            goes on past the normal healing time and where all measures 
 
            usually fail."  (Jt. Ex. 35, p. 8)  He did not place 
 
            specific work restrictions on claimant but did say the 
 
            injury had caused claimant restriction of activities.  (Jt. 
 
            Ex. 35, pp. 7 and 15)]
 
            
 
                 Two coworkers, Mildred Fredericks and Roberta Gaffey, 
 
            were also deposed.  Ms. Fredericks corroborates claimant's 
 
            testimony that they were helping a resident, Barbara 
 
            Koenigs, into bed when claimant hurt her back.  Roberta 
 
            Gaffey, the staff nurse on duty at the time of the incident, 
 
            recalls claimant telling her that she had hurt her back.  
 
            She, too, corroborates claimant's testimony and elaborated 
 
            on the somewhat lax procedures used at the nursing home when 
 
            employees injured themselves on the job.  She portrayed 
 
            claimant as a very good, conscientious worker.  (Jt. Exs. 36 
 
            and 37)
 
            
 
                 The administrator of the facility testified at the 
 
            hearing.  Anita Adams has been the administrator for 13 
 
            years, and has been employed by the home for 25 years.  
 
            Currently, she supervises the staff and assumes total 
 
            management of the facility.  The majority of her testimony 
 
            is in direct conflict with that of claimant's.  She 
 
            indicated that Roberta Gaffey was not working on the day 
 
            claimant was allegedly injured.  Ms. Adams also stated that 
 
            claimant and Millie Fredericks were not assigned to work 
 
            together, and that Millie was capable of lying.  Ms. Adams 
 
            admitted she had never spoken to claimant about the 
 
            incident.  She indicated claimant was a good employee.
 
            
 
                 Patricia Nigh, claims representative for the insurance 
 
            carrier, also testified at the hearing.  Ms. Nigh took 
 
            claimant's statement in 1991 and remembered that at the time 
 
            of the statement, claimant was confused about what month it 
 
            was at the time the statement was taken.
 
            
 
                 Ms. Nigh contacted Millie Fredericks, who confirmed 
 
            claimant's version of the incident, but reasoned that the 
 

 
            
 
            Page   6
 
            
 
            
 
            denial of the claim was based on the inconsistencies of the 
 
            histories reflected in the medical reports.  She also stated 
 
            that claimant's weight problem appeared to be the cause of 
 
            any resulting back problems and claimant's inability to 
 
            work.
 
            
 
                              CONCLUSIONS OF LAW
 
            
 
            The conclusions of law contained in the proposed agency 
 
            decision filed November 20, 1992 are adopted as set forth 
 
            below.  Segments designated by asterisks (*****) indicate 
 
            portions of the language from the proposed agency decision 
 
            that have been intentionally deleted and do not form a part 
 
            of this final agency decision.  Segments designated by 
 
            brackets ([ ]) indicate language that is in addition to the 
 
            language of the proposed agency decision.
 
            
 
                 The first issue to be addressed is whether claimant 
 
            sustained an injury on January 11 or January 12, 1990, one 
 
            which arose out of and in the course of her employment.
 
            
 
                 An employee is entitled to compensation for any and all 
 
            personal injuries which arise out of and in the course of 
 
            the employment.  Iowa Code section 85.3(1).
 
            
 
                 Claimant has the burden of proving by a preponderance 
 
            of the evidence that she received an injury on January 11 or 
 
            January 12, 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. Central Telephone Co., 
 
            261 Iowa 352, 154 N.W.2d 128 (1967). 
 
            
 
                 The injury must both arise out of and be in the course 
 
            of the employment.  Crowe v. DeSoto Consol. Sch. Dist., 246 
 
            Iowa 402, 68 N.W.2d 63 (1955) and cases cited at pp. 405-406 
 
            of the Iowa Report.  See also Sister Mary Benedict v. St. 
 
            Mary's Corp., 255 Iowa 847, 124 N.W.2d 548 (l963) and Hansen 
 
            v. State of Iowa, 249 Iowa 1147, 91 N.W.2d 555 (1958).
 
            
 
                 The words "out of" refer to the cause or source of the 
 
            injury.  Crowe, 246 Iowa 402, 68 N.W.2d 63.
 
            
 
                 The words "in the course of" refer to the time and 
 
            place and circumstances of the injury.  McClure v. Union 
 
            et al. Counties, 188 N.W.2d 283 (Iowa 1971); Crowe, 246 Iowa 
 
            402, 68 N.W.2d 63.
 
            
 
                 "An injury occurs in the course of the employment when 
 
            it is within the period of employment at a place the 
 
            employee may reasonably be, and while he is doing his work 
 
            or something incidental to it."  Cedar Rapids Comm. Sch. 
 
            Dist. v. Cady, 278 N.W.2d 298 (Iowa 1979), McClure, 188 
 
            N.W.2d 283; Musselman, 261 Iowa 352, 154 N.W.2d 128.
 
            
 
                 After carefully considering all of the evidence and 
 
            having listened to the testimony, it is clear that claimant 
 
            was working her normal shift at the required date and time.  
 
            It is also evident that she was performing duties required 
 
            by her position as a nurse's aide.  Although there is some 
 
            discrepancy as to the particular wing to which claimant was 
 
            assigned, it should be recognized that coemployees helped 
 
            each other regardless of shift assignments.  Apparently, 
 

 
            
 
            Page   7
 
            
 
            
 
            this practice was quite regular and accepted by the 
 
            employer.  Although some of the histories given to the 
 
            multitude of physicians involved with this case vary 
 
            slightly, the overall impression is that claimant slipped 
 
            while helping a resident into bed and hurt her back.
 
            
 
                 As a result, it is found that claimant sustained an 
 
            injury on January 12, 1991, which arose out of and in the 
 
            course of her employment.
 
            
 
                 The next issue to be addressed is whether there is a 
 
            causal relationship between the alleged injury and 
 
            claimant's disability.
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury of January 12, 
 
            1991, is causally related to the disability on which she now 
 
            bases her claim.  Bodish v. Fischer, Inc., 257 Iowa 516, 133 
 
            N.W.2d 867 (1965).  Lindahl v. L. O. Boggs, 236 Iowa 296, 18 
 
            N.W.2d 607 (1945).  A possibility is insufficient; a 
 
            probability is necessary.  Burt v. John Deere Waterloo 
 
            Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955).  The 
 
            question of causal connection is essentially within the 
 
            domain of expert testimony.  Bradshaw v. Iowa Methodist 
 
            Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). 
 
            
 
                 However, expert medical evidence must be considered 
 
            with all other evidence introduced bearing on the causal 
 
            connection.  Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion 
 
            of experts need not be couched in definite, positive or 
 
            unequivocal language.  Sondag v. Ferris Hardware, 220 N.W.2d 
 
            903 (Iowa 1974).  However, the expert opinion may be 
 
            accepted or rejected, in whole or in part, by the trier of 
 
            fact.  Id. at 907.  Further, the weight to be given to such 
 
            an opinion is for the finder of fact, and that may be 
 
            affected by the completeness of the premise given the expert 
 
            and other surrounding circumstances.  Bodish, 257 Iowa 516, 
 
            133 N.W.2d 867.  See also Musselman, 261 Iowa 352, 154 
 
            N.W.2d 128.
 
            
 
                 Furthermore, if the available expert testimony is 
 
            insufficient alone to support a finding of causal 
 
            connection, such testimony may be coupled with nonexpert 
 
            testimony to show causation and be sufficient to sustain an 
 
            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 (Iowa 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 (Iowa 1980).
 
            
 
                 Dr. Mlinar, claimant's original treating physician, was 
 
            of the opinion that claimant's clinical problems, chronic 
 
            lumbar myofascial pain and chronic pain syndrome, were 
 
            related to the incident at the nursing home.  And, Dr. 
 
            Goldman, who was unable to find any evidence of a permanent 
 
            physical impairment, did state within a reasonable degree of 
 
            medical certainty that claimant's injury caused restriction 
 

 
            
 
            Page   8
 
            
 
            
 
            of activities.
 
            
 
                 [Claimant alleges that she has suffered a permanent 
 
            disability.  Drs. Mlinar, Toso and Goldman agreed that 
 
            claimant has no permanent physical impairment.  However, Dr. 
 
            Goldman has indicated that claimant has restriction of 
 
            activities and Dr. Toso had placed lifting restrictions on 
 
            claimant that were in effect at the time of the hearing in 
 
            this matter.  Both Dr. Toso and Dr. Goldman indicate that 
 
            claimant's condition, chronic lumbar myofascial pain with 
 
            chronic pain syndrome is a lasting condition.  That 
 
            condition had improved but was still in effect when claimant 
 
            was last seen by Dr. Toso in March 1992.  There is 
 
            insufficient medical evidence in the record to conclude that 
 
            claimant's condition had a finite or temporary longevity.  
 
            Based upon the facts of this case claimant had a permanent 
 
            disability at the time of the hearing.]
 
            
 
                 After considering all of the evidence, it is found that 
 
            there is a causal connection between claimant's injury and a 
 
            permanent disability.  As claimant has sustained a permanent 
 
            injury, she is entitled to healing period benefits for the 
 
            time she was off of work.  (See, Iowa Code section 85.34.)
 
            
 
                 The next issue to be addressed is whether claimant has 
 
            sustained a loss of earning capacity.  Since claimant has 
 
            suffered an injury to the body as a whole, her industrial 
 
            disability must be evaluated.
 
            
 
                 Functional impairment is an element to be considered in 
 
            determining industrial disability which is the reduction of 
 
            earning capacity, but consideration must also be given to 
 
            the injured employee's age, education, qualifications, expe
 
            rience and inability to engage in employment for which he is 
 
            fitted.  Olson v. Goodyear Service Stores, 255 Iowa 1112, 
 
            125 N.W.2d 251 (1963).  Barton v. Nevada Poultry, 253 Iowa 
 
            285, 110 N.W.2d 660 (1961).
 
            
 
                 A finding of impairment to the body as a whole found by 
 
            a medical evaluator does not equate to industrial disabil
 
            ity.  This is so as impairment and disability are not syn
 
            onymous.  Degree of industrial disability can in fact be 
 
            much different than the degree of impairment because in the 
 
            first instance reference is to loss of earning capacity and 
 
            in the latter to anatomical or functional abnormality or 
 
            loss.  Although loss of function is to be considered and 
 
            disability can rarely be found without it, it is not so that 
 
            a degree of industrial disability is proportionally related 
 
            to a degree of impairment of bodily function.
 
            
 
                 Factors to be considered in determining industrial dis
 
            ability include the employee's medical condition prior to 
 
            the injury, immediately after the injury, and presently; the 
 
            situs of the injury, its severity and the length of healing 
 
            period; the work experience of the employee prior to the 
 
            injury, after the injury and potential for rehabilitation; 
 
            the employee's qualifications intellectually, emotionally 
 
            and physically; earnings prior and subsequent to the injury; 
 
            age; education; motivation; functional impairment as a 
 
            result of the injury; and inability because of the injury to 
 

 
            
 
            Page   9
 
            
 
            
 
            engage in employment for which the employee is fitted.  Loss 
 
            of earnings caused by a job transfer for reasons related to 
 
            the injury is also relevant.  These are matters which the 
 
            finder of fact considers collectively in arriving at the 
 
            determination of the degree of industrial disability.
 
            
 
                 There are no weighting guidelines that indicate how 
 
            each of the factors are to be considered.  There are no 
 
            guidelines which give, for example, age a weighted value of 
 
            ten percent of the total value, education a value of fifteen 
 
            percent of total, motivation - five percent; work experience 
 
            - thirty percent, etc.  Neither does a rating of functional 
 
            impairment directly correlate to a degree of industrial 
 
            disability to the body as a whole.  In other words, there 
 
            are no formulae which can be applied and then added up to 
 
            determine the degree of industrial disability.  It therefore 
 
            becomes necessary for the deputy or commissioner to draw 
 
            upon prior experience, general and specialized knowledge to 
 
            make the finding with regard to degree of industrial dis
 
            ability.  See Peterson v. Truck Haven Cafe, Inc., (Appeal 
 
            Decision, February 28, 1985); Christensen v. Hagen, Inc., 
 
            (Appeal Decision, March 26, l985).
 
            
 
                 At the time of the injury, claimant was 43 years old.  
 
            She has worked almost 15 years as a nurse's aide, and at 
 
            time has worked both a full-time and a part-time position as 
 
            a nurse's aide.  At the time of the injury, her earnings 
 
            were $5.70 per hour and claimant worked a 40 hour work week 
 
            for the Stacyville Community Nursing Home.
 
            
 
                 Claimant did not finish high school and has not 
 
            obtained her GED.  Claimant has few, if any, transferable 
 
            skills.  The defendant employer has, however, accommodated 
 
            her physical limitations and has been able to employ 
 
            claimant as a nurse's aide, although claimant now only works 
 
            from 7:00 a.m. through 1:00 p.m. five days per week.  She 
 
            administers therapy sessions to the residents and is able to 
 
            work within her restrictions of not lifting more than 30 
 
            pounds.  She stated that she is unable to work full time, 
 
            but it is noted that no physician involved with the case has 
 
            restricted claimant to part-time work.
 
            
 
                 After considering all of the factors, it is found that 
 
            claimant has sustained a five percent industrial disability.
 
            
 
                 The next issue to be addressed is whether claimant is 
 
            entitled to medical benefits provided by Iowa Code section 
 
            85.27.
 
            
 
                 Iowa Code section 85.27 provides, in relevant part:
 
            
 
                    The employer, for all injuries compensable 
 
                 under this chapter or chapter 85A, shall furnish 
 
                 reasonable surgical, medical, dental, osteopathic, 
 
                 chiropractic, podiatric, physical rehabilitation, 
 
                 nursing, ambulance and hospital services and 
 
                 supplies therefor and shall allow reasonably 
 
                 necessary transportation expense incurred for such 
 
                 services.
 
            
 

 
            
 
            Page  10
 
            
 
            
 
                 As claimant has sustained a compensable work injury, 
 
            medical expenses shall be paid by the defendants.
 
            
 
                 *****[The next issue to be resolved is whether claimant 
 
            is entitled to penalty benefits.]
 
            
 
                    If a delay in commencement or termination of 
 
                 benefits occurs without reasonable or probable 
 
                 cause or excuse, the industrial commissioner shall 
 
                 award benefits in addition to those benefits 
 
                 payable under this chapter, or chapter 85, 85A, or 
 
                 85B, up to fifty percent of the amount of benefits 
 
                 that were unreasonably delayed or denied.
 
            
 
                 The agency has established that if an employer and/or 
 
            carrier is unwilling to pay benefits, the compensability of 
 
            the claim for benefits must be fairly debatable.  See, Boyd 
 
            v. Western Home, file number 890207 (Appeal Dec. 1991).  [In 
 
            Covia v. Robinson, No. 302/92-1769, Iowa Supreme Court 
 
            filed October 20, 1993, the Court indicated that the 
 
            standard for determining whether a penalty should be 
 
            assessed is whether the issue is fairly debatable and the 
 
            test is whether there are viable arguments in favor of the 
 
            party.]
 
            
 
                 Defendants' only argument to support their decision not 
 
            to make payments is that they did not believe claimant's 
 
            version of how the injury happened.
 
            
 
                 Employers and their insurance companies are free to 
 
            question a workers' compensation rendition of events at work 
 
            that led to an injury; however, the burden of investigating 
 
            the claim and making an informal decision rests solely with 
 
            them, and should be performed expeditiously and genuinely.
 
            
 
                 In the present case, Ms. Nigh explained that the denial 
 
            of benefits was based on the inconsistent histories in the 
 
            medical records.  The records were received by the 
 
            defendants as late as May of 1991.  Although some 
 
            inconsistencies exist, the undersigned believes that the 
 
            claimant appears to be of very average intelligence and 
 
            lacking the ability to effectively communicate.  All of the 
 
            medical evidence indicates that claimant hurt her back while 
 
            working for the defendant.
 
            
 
                 [Claimant's entitlement to weekly benefits should have 
 
            been known to defendants if the matter had been properly 
 
            investigated.  Claimant did suffer a work-related injury 
 
            that caused her to miss work.  The issue of entitlement to 
 
            benefits during the time claimant missed work was not fairly 
 
            debatable.  Claimant is entitled to 50 percent penalty 
 
            benefits for healing period benefits.
 
            
 
                 However, the medical evidence in this case suggests 
 
            that there was no permanent impairment and that claimant's 
 
            condition might return to normal, although it has not.  The 
 
            issue of whether claimant had suffered a permanent 
 
            disability as a result of her work injury was fairly 
 
            debatable.  Claimant is not entitled to penalty benefits for 
 
            permanent partial disability benefits due.
 

 
            
 
            Page  11
 
            
 
 
 
                 The last issue to be resolved is how costs of this 
 
            matter are to be assessed.  Costs are assessed at the 
 
            discretion of the industrial commissioner.  See Iowa Code 
 
            section 86.40; and rule 343 IAC 4.  The cost of the 
 
            transcript is initially borne by both parties when there is 
 
            an appeal and a cross-appeal.  See rule 343 IAC 4.30.  
 
            Claimant's court costs as more specifically detailed in the 
 
            record shall be paid by the defendants.]
 
            
 
                 *****
 
            WHEREFORE, the decision of the deputy is affirmed and 
 
            modified.
 
            
 
                                     ORDER
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 That defendants shall pay claimant healing period 
 
            benefits from January 15, 1991 through March 25, 1991, and 
 
            May 16, 1991 through July 1, 1991, at the rate of one 
 
            hundred fifty-five and 66/100 dollars ($155.66) per week.
 
            
 
                 That defendants shall pay claimant an award of fifty 
 
            (50) percent of the amount of healing period benefits due 
 
            claimant.
 
            
 
                 That defendants shall pay claimant permanent partial 
 
            disability benefits for twenty-five (25) weeks at the rate 
 
            of one hundred fifty-five and 66/100 dollars ($155.66) per 
 
            week commencing July 2, 1991.
 
            
 
                 That defendants pay claimant accrued amounts in a lump 
 
            sum.
 
            
 
                 That defendants shall pay interest pursuant to Iowa 
 
            Code section 85.30.
 
            That claimant and defendants shall share equally the costs 
 
            of the appeal including transcription of the hearing.  
 
            Defendants shall pay all other costs.
 
            
 
                 That defendants shall pay for medical treatment 
 
            rendered to treat claimant's work injury as governed by Iowa 
 
            Code section 85.27.
 
            
 
                 That defendants shall file an activity report upon 
 
            payment of this award as required by this agency, pursuant 
 
            to rule 343 IAC 3.1.
 
            Signed and filed this ____ day of November, 1993.
 
            
 
            
 
            
 
            
 
                                     ________________________________
 
                                             BYRON K. ORTON
 
                                      INDUSTRIAL COMMISSIONER
 
            
 

 
            
 
            Page  12
 
            
 
 
 
 
 
            Copies To:
 
 
 
            Mr. R. Ronald Pogge
 
            Attorney at Law
 
            2700 Grand Ave.,  Ste 111
 
            Des Moines, IA 50312
 
            
 
            Ms. Janice M. Herfkens
 
            Mr. Charles Cutler
 
            Attorneys at Law
 
            729 Insurance Exch Bldg
 
            Des Moines, IA 50309
 
            
 
 
         
 
         
 
         
 
         
 
                                        5-1100; 1803; 5-2500; 4000.2
 
                                        Filed November 17, 1993
 
                                        Byron K. Orton
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         _________________________________________________________________
 
                     
 
         MARTHA HOEVET,   
 
                     
 
              Claimant,   
 
                    
 
         vs.         
 
                                                File No. 973115
 
         STACYVILLE COMMUNITY       
 
         NURSING HOME,    
 
                                                  A P P E A L
 
              Employer,   
 
                                                D E C I S I O N
 
         and         
 
                     
 
         INA INSURANCE COMPANY,     
 
                     
 
              Insurance Carrier,    
 
              Defendants.      
 
         _________________________________________________________________
 
         
 
         5-1100
 
         Claimant proved by a preponderance of evidence that she sustained 
 
         a work-related injury while attempting to lift a patient.
 
         
 
         1803
 
         Claimant's diagnosis was chronic lumbar myofascial pain with 
 
         chronic pain syndrome.  Although treating physicians did not find 
 
         a permanent impairment, two doctors had placed restrictions on 
 
         claimant's activities.  Claimant's pain had improved but had not 
 
         resolved itself when claimant was last treated.  Claimant's 
 
         restrictions and pain, which had not resolved, indicated that 
 
         claimant had a permanent disability at the time of the hearing.  
 
         Claimant was awarded a five percent industrial disability.
 
         
 
         5-2500
 
         Claimant suffered a work-related injury and was entitled to 
 
         medical care for the injury.
 
         
 
         4000.2
 
         The issue of entitlement to benefits for the time claimant missed 
 
         work was not fairly debatable and a 50 percent penalty was 
 
         assessed for healing period benefits.
 
         Because claimant had no permanent impairment and was improving, 
 
         the issue of entitlement to permanent disability benefits was 
 
         fairly debatable.  Claimant not entitled to penalty benefits for 
 
         permanent disability benefits.
 
         
 
 
            
 
            
 
            
 
            
 
            
 
            
 
                      BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            MARTHA HOEVET,                :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :       File No. 973115
 
            STACYVILLE COMMUNITY          :
 
            NURSING HOME,                 :
 
                                          :     A R B I T R A T I O N
 
                 Employer,                :
 
                                          :        D E C I S I O N
 
            and                           :
 
                                          :
 
            INA INSURANCE COMPANY,        :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This is a proceeding in arbitration brought by Martha 
 
            Hoevet, claimant, against her employer, Stacyville Community 
 
            Nursing Home, and its insurance carrier, INA Insurance 
 
            Company.  Ms. Hoevet seeks workers' compensation benefits 
 
            due to an alleged injury occurring on January 14, 1991, 
 
            which arose out of and in the course of her employment.
 
            
 
                 The record in this case consists of testimony from the 
 
            claimant, Deanna Harris, Patricia Nigh, and Anita Adams; 
 
            and, joint exhibits 2 through 11 and 13 through 37.  The 
 
            case was heard and fully submitted at Mason City, Iowa, on 
 
            October 27, 1992.
 
            
 
                                      ISSUES
 
            
 
                 The parties submit the following issues for resolution:
 
            
 
                 1.  Whether claimant sustained an injury on January 11 
 
            or 12, 1991, which arose out of and in the course of her 
 
            employment;
 
            
 
                 2.  Whether there is a causal relationship between the 
 
            alleged injury and the disability;
 
            
 
                 3.  Whether claimant is entitled to temporary 
 
            disability or healing period benefits or permanent partial 
 
            or total disability benefits;
 
            
 
                 4.  Whether claimant is entitled to medical benefits 
 
            pursuant to Iowa Code section 85.27; and,
 
            
 
                 5.  Whether claimant is entitled to penalty benefits as 
 
            governed by Iowa Code section 86.13.
 
            
 
                 Defendants raised the affirmative defense of whether 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            claimant's medical expenses were authorized.  However, 
 
            current agency precedence has repeatedly stated that if 
 
            liability has been denied on the claim unauthorization of 
 
            medical expenses is not a valid defense.  Therefore, this 
 
            affirmative defense will not be addressed in this decision.
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 The undersigned deputy having reviewed all the evidence 
 
            received, finds the following facts:
 
            
 
                 Claimant, Martha Hoevet, was born on March 1, 1949.  At 
 
            the time of the hearing, she was 43 years of age.  Claimant 
 
            is married and has one dependent child.  She is 5 feet 3 
 
            inches and weighs approximately 195 pounds.
 
            
 
                 Claimant completed the tenth grade but did not graduate 
 
            from high school.  Apparently, she has not received her GED.
 
            
 
                 For the past fifteen years claimant has been a 
 
            certified nurse's aide.  Her primary employer during her 
 
            career has been the defendant nursing home, although from 
 
            September of 1990 through December of 1990, claimant also 
 
            held part-time employment with a nursing home facility in 
 
            Austin, Minnesota.  As a nurse's aide, claimant's duties 
 
            have included providing total care for patients/residents at 
 
            the Stacyville Community Nursing Home.  Specifically, her 
 
            duties included bathing and feeding patients and assisting 
 
            them to the commode.  Claimant also helped residents with 
 
            hygiene needs.
 
            
 
                 On Saturday, January 12, 1991, claimant was working 
 
            with Millie Fredericks, another nurse's aide.  According to 
 
            claimant, they were working together and were assigned to 
 
            the south wing which housed Barbara Koenigs, a patient who 
 
            was bedridden.  An exhibit shows that claimant was assigned 
 
            to work on the north wing of the nursing home (Jt. Ex. 25).  
 
            Barbara Koenigs was assigned to the south wing.  Testimony 
 
            provided that workers were to help each other in wings other 
 
            than those to which they were assigned.  Because of her 
 
            physical limitations, Ms. Koenigs was required to use a 
 
            portable commode located beside her bed.  As claimant and 
 
            Ms. Fredericks helped the resident from the commode to the 
 
            bed, claimant felt pain in her back and fell forward onto 
 
            the bed.  She told Ms. Fredericks that she had hurt her 
 
            back.  Ms. Fredericks' deposition testimony comports with 
 
            claimant's testimony given at the hearing (Joint Exhibit 36, 
 
            page 13).
 
            
 
                 Claimant went to the head nurse on duty, Roberta 
 
            Gaffey, and asked for aspirin to relieve the back pain she 
 
            felt after helping the resident.  She finished her shift and 
 
            worked the following day, however, she was not able to 
 
            perform all of the required job duties, particularly the 
 
            lifting duties and called upon co-employees to help her.  
 
            Claimant continued to work her normal shifts, but on January 
 
            15, 1991, she sought treatment from Joseph P. Mlinar, M.D., 
 
            a family practice physician with the Austin Medical Clinic 
 
            in Austin, Minnesota.  He prescribed Parafon Forte and 
 
            ibuprofen.  The following day, after her husband telephoned 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            Dr. Mlinar and stated that claimant was getting 
 
            progressively worse, she was admitted to the St. Olaf 
 
            Hospital in Austin, Minnesota (Jt. Ex. 31).
 
            
 
                 While in the hospital, claimant underwent a CT scan of 
 
            the back which noted mild bulging at the L4-5 and L5-S1 
 
            regions.  Degenerative arthritis was present throughout the 
 
            lumbar spine.  The final diagnoses was that of acute lumbar 
 
            sacral strain and obesity.  She was discharged to return 
 
            home and it was recommended that she lose weight and 
 
            increase exercising and activities.  She was advised to do 
 
            no lifting of more than ten pounds for the next two weeks.  
 
            While in the hospital, claimant was treated by John M. Toso, 
 
            M.D. (Jt. Ex. 2 and 28).
 
            
 
                 Eventually, claimant was referred to E. A. Crowell, 
 
            M.D., an orthopedic specialist at the Mason City Clinic.  He 
 
            reviewed her x-rays of the lumbar spine which showed 
 
            multiple traction spurs and old limbus avulsion fractures at 
 
            two levels.  He recommended a bone scan to provide further 
 
            diagnostic evaluations.  His physical examination did not 
 
            reveal positive results on any of the standard tests, and he 
 
            was of the opinion that claimant had sustained a low back 
 
            strain (Jt. Ex. 19).
 
            
 
                 In February of 1991, approximately three weeks after a 
 
            representative from the insurance company took claimant's 
 
            statement (Jt. Ex. 13), a rehabilitation specialist, Deanna 
 
            Harris, R.N., became involved with the management of 
 
            claimant's medical care.  Ms. Harris sent claimant to R. 
 
            Emerson at the Mason City Clinic.  The history taken from 
 
            claimant shows that claimant was at work as a nurse's aide 
 
            when she began to experience back pain.  Specifically, Dr. 
 
            Emerson's notes state:  "She sent to help a patient into 
 
            bed, slipped and twisted her back as [she] fell into bed 
 
            with the patient.  She felt a ripping sensation in her lower 
 
            back, had sharp pain at first." (Jt. Ex. 11).  Dr. Emerson's 
 
            examination revealed that claimant had decreased range of 
 
            motion of the lumbosacral spine on forward flexion but full 
 
            right and left bilateral bending.  Straight leg tests were 
 
            negative.  He recommended abdominal strengthening exercises, 
 
            weight loss and increased activities such as walking and 
 
            using a stationary bicycle.  He advised that claimant could 
 
            return to light duty work on March 25 and probably full duty 
 
            on April 8, 1991 (Jt. Ex. 11).
 
            
 
                 Claimant returned to work part-time as a nurse's aide 
 
            with no restrictions on March 25, 1991.  After two weeks, 
 
            she was restored to full duty employment and continued to 
 
            experience back pain.  She returned to Dr. Mlinar in May of 
 
            1991, was taken off of work and was referred to Sherwin 
 
            Goldman, M.D.  The history taken reflects that claimant had 
 
            a lifting injury at work on January 15, 1991.  Present 
 
            symptoms included low back pain in the center of the spine 
 
            with radiation to just below the knee on the left side.  The 
 
            majority of the pain occurred on flexion and extension.  Dr. 
 
            Goldman made note of claimant's height and weight (5 feet 3 
 
            inches and 195 pounds) and observed her difficulty when 
 
            walking on her heels and toes as well as pain in the low 
 
            back when squatting and hopping.  The examination revealed 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            further that claimant had tenderness in the middle of the 
 
            low back, poor muscle contractions and very little voluntary 
 
            lumbar motion.  Claimant was able to perform straight leg 
 
            raising with considerable low back pain.  His preliminary 
 
            impression was that of lumbar myofascial pain.  The results 
 
            of an EMG were normal and the MRI scan shows no evidence of 
 
            a herniation or potential radicular process.  Final 
 
            recommendations included proper work restrictions, weight 
 
            loss, PMNR and trigger point injections (Jt. Ex. 32).
 
            
 
                 Throughout some of August 1991, claimant underwent 
 
            treatment from the Mayo Pain Clinic (Jt. Exs. 16 and 32).  
 
            The final diagnosis was that of chronic lumbar myofascial 
 
            pain with chronic pain syndrome.  No permanent impairment 
 
            was noted (Jt. Ex. 15).
 
            
 
                 In November of 1991, Dr. Toso recommended that claimant 
 
            undergo physical therapy from November through December 1991 
 
            and January of 1992 to March of 1992.  The notes which 
 
            document her visits are very terse and do not provide any 
 
            final diagnoses or recommendations (Jt. Ex. 27).
 
            
 
                 A final note from Dr. Toso dated March 5, 1992, 
 
            recommends claimant not lift more than 30 pounds for twelve 
 
            months with a reassessment in March of 1993 (Jt. Ex. 3).
 
            
 
                 Dr. Toso was deposed on August 13, 1992.  He confirms 
 
            his recommendation that claimant lift not more than 30 
 
            pounds and recommends that she continue home exercises and 
 
            lose weight.  He stated that he did not think she was a 
 
            malingerer, and at one time suggested she pursue employment 
 
            that would not require lifting abilities.  He did not have 
 
            an opinion as to whether claimant's condition was work 
 
            related nor did he state that claimant had a permanent 
 
            impairment but reiterated that myofascial pain is permanent.  
 
            He indicated that claimant's weight is a factor in her 
 
            complaints of back pain (Jt. Ex. 33).
 
            
 
                 Dr. Mlinar was deposed on August 13, 1992.  He was of 
 
            the opinion that the cause of claimant's back pain was due 
 
            to an incident at the nursing home wherein claimant was 
 
            lifting a basket of wet clothes.  He diagnosed chronic 
 
            lumbar myofascial pain with chronic pain syndrome and was 
 
            unsure of the restrictions under which claimant was working.  
 
            He deferred further comments to the current treating 
 
            physicians (Jt. Ex. 34).
 
            
 
                 Dr. Goldman was deposed on September 10, 1992.  He 
 
            reiterated that his examination revealed a great amount of 
 
            pain, and his final diagnosis was that of chronic lumbar 
 
            myofascial pain with chronic pain syndrome.  He was unable 
 
            to state what claimant's prognosis might be, but related her 
 
            complaints to an injury at the nursing home (Jt. Ex. 35).
 
            
 
                 Two coworkers, Mildred Fredericks and Roberta Gaffey, 
 
            were also deposed.  Ms. Fredericks corroborates claimant's 
 
            testimony that they were helping a resident, Barbara 
 
            Koenigs, into bed when claimant hurt her back.  Roberta 
 
            Gaffey, the staff nurse on duty at the time of the incident, 
 
            recalls claimant telling her that she had hurt her back.  
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            She, too, corroborates claimant's testimony and elaborated 
 
            on the somewhat lax procedures used at the nursing home when 
 
            employees injured themselves on the job.  She portrayed 
 
            claimant as a very good, conscientious worker (Jt. Exs. 36 
 
            and 37).
 
            
 
                 The administrator of the facility testified at the 
 
            hearing.  Anita Adams has been the administrator for 13 
 
            years, and has been employed by the home for 25 years.  
 
            Currently, she supervises the staff and assumes total 
 
            management of the facility.  The majority of her testimony 
 
            is in direct conflict with that of claimant's.  She 
 
            indicated that Roberta Gaffey was not working on the day 
 
            claimant was allegedly injured.  Ms. Adams also stated that 
 
            claimant and Millie Fredericks were not assigned to work 
 
            together, and that Millie was capable of lying.  Ms. Adams 
 
            admitted she had never spoken to claimant about the 
 
            incident.  She indicated claimant was a good employee.
 
            
 
                 Patricia Nigh, claims representative for the insurance 
 
            carrier, also testified at the hearing.  Ms. Nigh took 
 
            claimant's statement in 1991 and remembered that at the time 
 
            of the statement, claimant was confused about what month it 
 
            was at the time the statement was taken.
 
            
 
                 Ms. Nigh contacted Millie Fredericks, who confirmed 
 
            claimant's version of the incident, but reasoned that the 
 
            denial of the claim was based on the inconsistencies of the 
 
            histories reflected in the medical reports.  She also stated 
 
            that claimant's weight problem appeared to be the cause of 
 
            any resulting back problems and claimant's inability to 
 
            work.
 
            
 
                         ANALYSIS AND CONCLUSIONS OF LAW
 
            
 
                 The first issue to be addressed is whether claimant 
 
            sustained an injury on January 11 or January 12, 1990, one 
 
            which arose out of and in the course of her employment.
 
            
 
                 An employee is entitled to compensation for any and all 
 
            personal injuries which arise out of and in the course of 
 
            the employment.  Section 85.3(1).
 
            
 
                 Claimant has the burden of proving by a preponderance 
 
            of the evidence that she received an injury on January 11 or 
 
            January 12, 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. Central Telephone Co., 261 
 
            Iowa 352, 154 N.W.2d 128 (1967). 
 
            
 
                 The injury must both arise out of and be in the course 
 
            of the employment.  Crowe v. DeSoto Consol. Sch. Dist., 246 
 
            Iowa 402, 68 N.W.2d 63 (1955) and cases cited at pp. 405-406 
 
            of the Iowa Report.  See also Sister Mary Benedict v. St. 
 
            Mary's Corp., 255 Iowa 847, 124 N.W.2d 548 (l963) and Hansen 
 
            v. State of Iowa, 249 Iowa 1147, 91 N.W.2d 555 (1958).
 
            
 
                 The words "out of" refer to the cause or source of the 
 
            injury.  Crowe, 246 Iowa 402, 68 N.W.2d 63.
 
            
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
                 The words "in the course of" refer to the time and 
 
            place and circumstances of the injury.  McClure v. Union 
 
            et al. Counties, 188 N.W.2d 283 (Iowa 1971); Crowe, 246 Iowa 
 
            402, 68 N.W.2d 63.
 
            
 
                 "An injury occurs in the course of the employment when 
 
            it is within the period of employment at a place the 
 
            employee may reasonably be, and while he is doing his work 
 
            or something incidental to it."  Cedar Rapids Comm. Sch. 
 
            Dist. v. Cady, 278 N.W.2d 298 (Iowa 1979), McClure, 188 
 
            N.W.2d 283; Musselman, 261 Iowa 352, 154 N.W.2d 128.
 
            
 
                 After carefully considering all of the evidence and 
 
            having listened to the testimony, it is clear that claimant 
 
            was working her normal shift at the required date and time.  
 
            It is also evident that she was performing duties required 
 
            by her position as a nurse's aide.  Although there is some 
 
            discrepancy as to the particular wing to which claimant was 
 
            assigned, it should be recognized that coemployees helped 
 
            each other regardless of shift assignments.  Apparently, 
 
            this practice was quite regular and accepted by the 
 
            employer.  Although some of the histories given to the 
 
            multitude of physicians involved with this case vary 
 
            slightly, the overall impression is that claimant slipped 
 
            while helping a resident into bed and hurt her back.
 
            
 
                 As a result, it is found that claimant sustained an 
 
            injury on January 12, 1991, which arose out of and in the 
 
            course of her employment.
 
            
 
                 The next issue to be addressed is whether there is a 
 
            causal relationship between the alleged injury and 
 
            claimant's disability.
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury of January 12, 
 
            1991, is causally related to the disability on which she now 
 
            bases her claim.  Bodish v. Fischer, Inc., 257 Iowa 516, 133 
 
            N.W.2d 867 (1965).  Lindahl v. L. O. Boggs, 236 Iowa 296, 18 
 
            N.W.2d 607 (1945).  A possibility is insufficient; a 
 
            probability is necessary.  Burt v. John Deere Waterloo 
 
            Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955).  The 
 
            question of causal connection is essentially within the 
 
            domain of expert testimony.  Bradshaw v. Iowa Methodist 
 
            Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). 
 
            
 
                 However, expert medical evidence must be considered 
 
            with all other evidence introduced bearing on the causal 
 
            connection.  Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion 
 
            of experts need not be couched in definite, positive or 
 
            unequivocal language.  Sondag v. Ferris Hardware, 220 N.W.2d 
 
            903 (Iowa 1974).  However, the expert opinion may be 
 
            accepted or rejected, in whole or in part, by the trier of 
 
            fact.  Id. at 907.  Further, the weight to be given to such 
 
            an opinion is for the finder of fact, and that may be 
 
            affected by the completeness of the premise given the expert 
 
            and other surrounding circumstances.  Bodish, 257 Iowa 516, 
 
            133 N.W.2d 867.  See also Musselman, 261 Iowa 352, 154 
 
            N.W.2d 128.
 
            
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
                 Furthermore, if the available expert testimony is 
 
            insufficient alone to support a finding of causal 
 
            connection, such testimony may be coupled with nonexpert 
 
            testimony to show causation and be sufficient to sustain an 
 
            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 (Iowa 1974).  To establish 
 
            compensability, the injury need only be a significant 
 
            factor, not be the only factor causing the claimed 
 
            disability.  Blacksmith v. All-Amnerican, Inc., 290 N.W.2d 
 
            348, 354 (Iowa 1980).
 
            
 
                 Dr. Mlinar, claimant's original treating physician, was 
 
            of the opinion that claimant's clinical problems, chronic 
 
            lumbar myofascial pain and chronic pain syndrome, were 
 
            related to the incident at the nursing home.  And, Dr. 
 
            Goldman, who was unable to find any evidence of a permanent 
 
            physical impairment, did state within a reasonable degree of 
 
            medical certainty that claimant's injury caused restriction 
 
            of activities.
 
            
 
                 After considering all of the evidence, it is found that 
 
            there is a causal connection between claimant's injury and a 
 
            permanent disability.  As claimant has sustained a permanent 
 
            injury, she is entitled to healing period benefits for the 
 
            time she was off of work.  (See, Iowa Code section 85.34.)
 
            
 
                 The next issue to be addressed is whether claimant has 
 
            sustained a loss of earning capacity.  Since claimant has 
 
            suffered an injury to the body as a whole, her industrial 
 
            disability must be evaluated.
 
            
 
                 Functional impairment is an element to be considered in 
 
            determining industrial disability which is the reduction of 
 
            earning capacity, but consideration must also be given to 
 
            the injured employee's age, education, qualifications, expe
 
            rience and inability to engage in employment for which he is 
 
            fitted.  Olson v. Goodyear Service Stores, 255 Iowa 1112, 
 
            125 N.W.2d 251 (1963).  Barton v. Nevada Poultry, 253 Iowa 
 
            285, 110 N.W.2d 660 (1961).
 
            
 
                 A finding of impairment to the body as a whole found by 
 
            a medical evaluator does not equate to industrial disabil
 
            ity.  This is so as impairment and disability are not syn
 
            onymous.  Degree of industrial disability can in fact be 
 
            much different than the degree of impairment because in the 
 
            first instance reference is to loss of earning capacity and 
 
            in the latter to anatomical or functional abnormality or 
 
            loss.  Although loss of function is to be considered and 
 
            disability can rarely be found without it, it is not so that 
 
            a degree of industrial disability is proportionally related 
 
            to a degree of impairment of bodily function.
 
            
 
                 Factors to be considered in determining industrial dis
 
            ability include the employee's medical condition prior to 
 
            the injury, immediately after the injury, and presently; the 
 
            situs of the injury, its severity and the length of healing 
 
            period; the work experience of the employee prior to the 
 
            injury, after the injury and potential for rehabilitation; 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            the employee's qualifications intellectually, emotionally 
 
            and physically; earnings prior and subsequent to the injury; 
 
            age; education; motivation; functional impairment as a 
 
            result of the injury; and inability because of the injury to 
 
            engage in employment for which the employee is fitted.  Loss 
 
            of earnings caused by a job transfer for reasons related to 
 
            the injury is also relevant.  These are matters which the 
 
            finder of fact considers collectively in arriving at the 
 
            determination of the degree of industrial disability.
 
            
 
                 There are no weighting guidelines that indicate how 
 
            each of the factors are to be considered.  There are no 
 
            guidelines which give, for example, age a weighted value of 
 
            ten percent of the total value, education a value of fifteen 
 
            percent of total, motivation - five percent; work experience 
 
            - thirty percent, etc.  Neither does a rating of functional 
 
            impairment directly correlate to a degree of industrial 
 
            disability to the body as a whole.  In other words, there 
 
            are no formulae which can be applied and then added up to 
 
            determine the degree of industrial disability.  It therefore 
 
            becomes necessary for the deputy or commissioner to draw 
 
            upon prior experience, general and specialized knowledge to 
 
            make the finding with regard to degree of industrial dis
 
            ability.  See Peterson v. Truck Haven Cafe, Inc., (Appeal 
 
            Decision, February 28, 1985); Christensen v. Hagen, Inc., 
 
            (Appeal Decision, March 26, l985).
 
            
 
                 At the time of the injury, claimant was 43 years old.  
 
            She has worked almost 15 years as a nurse's aide, and at 
 
            time has worked both a full-time and a part-time position as 
 
            a nurse's aide.  At the time of the injury, her earnings 
 
            were $5.70 per hour and claimant worked a 40 hour work week 
 
            for the Stacyville Community Nursing Home.
 
            
 
                 Claimant did not finish high school and has not 
 
            obtained her GED.  Claimant has few, if any, transferable 
 
            skills.  The defendant employer has, however, accommodated 
 
            her physical limitations and has been able to employ 
 
            claimant as a nurse's aide, although claimant now only works 
 
            from 7:00 a.m. through 1:00 p.m. five days per week.  She 
 
            administers therapy sessions to the residents and is able to 
 
            work within her restrictions of not lifting more than 30 
 
            pounds.  She stated that she is unable to work full time, 
 
            but it is noted that no physician involved with the case has 
 
            restricted claimant to part-time work.
 
            
 
                 After considering all of the factors, it is found that 
 
            claimant has sustained a 5 percent industrial disability.
 
            
 
                 The next issue to be addressed is whether claimant is 
 
            entitled to medical benefits provided by Iowa Code section 
 
            85.27.
 
            
 
                 Iowa Code section 85.27 provides, in relevant part:
 
            
 
                    The employer, for all injuries compensable 
 
                 under this chapter or chapter 85A, shall furnish 
 
                 reasonable surgical, medical, dental, osteopathic, 
 
                 chiropractic, podiatric, physical rehabilitation, 
 
                 nursing, ambulance and hospital services and 
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
                 supplies therefor and shall allow reasonably 
 
                 necessary transportation expense incurred for such 
 
                 services.
 
            
 
                 As claimant has sustained a compensable work injury, 
 
            medical expenses shall be paid by the defendants.
 
            
 
                 Finally, claimant has asked for penalty benefits under 
 
            Iowa Code section 86.13
 
            
 
                    If a delay in commencement or termination of 
 
                 benefits occurs without reasonable or probable 
 
                 cause or excuse, the industrial commissioner shall 
 
                 award benefits in addition to those benefits 
 
                 payable under this chapter, or chapter 85, 85A, or 
 
                 85B, up to fifty percent of the amount of benefits 
 
                 that were unreasonably delayed or denied.
 
            
 
                 The agency has established that if an employer and/or 
 
            carrier is unwilling to pay benefits, the compensability of 
 
            the claim for benefits must be fairly debatable.  See, Boyd 
 
            v. Western Home, file number 890207 (Appeal Dec. 1991).
 
            
 
                 Defendants' only argument to support their decision not 
 
            to make payments is that they did not believe claimant's 
 
            version of how the injury happened.
 
            
 
                 Employers and their insurance companies are free to 
 
            question a workers' compensation rendition of events at work 
 
            that led to an injury; however, the burden of investigating 
 
            the claim and making an informal decision rests solely with 
 
            them, and should be performed expeditiously and genuinely.
 
            
 
                 In the present case, Ms. Nigh explained that the denial 
 
            of benefits was based on the inconsistent histories in the 
 
            medical records.  The records were received by the 
 
            defendants as late as May of 1991.  Although some 
 
            inconsistences exist, the undersigned believes that the 
 
            claimant appears to be of very average intelligence and 
 
            lacking the ability to effectively communicate.  All of the 
 
            medical evidence indicates that claimant hurt her back while 
 
            working for the defendant.
 
            
 
                 As a result, claimant is entitled to 50 percent penalty 
 
            benefits for healing period benefits and permanency benefits 
 
            due.  Defendants have presented no persuasive evidence that 
 
            claimant did not sustain a work-related injury.
 
            
 
                                      ORDER
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 That defendants shall pay claimant healing period 
 
            benefits from January 15, 1991 through March 25, 1991, and 
 
            May 16, 1991 through July 1, 1991, at the rate of one 
 
            hundred fifty-five and 66/100 dollars ($155.66) per week.
 
            
 
                 That defendants shall pay claimant an award of fifty 
 
            (50) percent of the amount of healing period benefits due 
 
            claimant.
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
            
 
                 That defendants shall pay claimant permanent partial 
 
            disability benefits for twenty-five (25) weeks at the rate 
 
            of one hundred fifty-five and 66/100 dollars ($155.66) per 
 
            week commencing July 2, 1991.
 
            
 
                 That defendants pay claimant an award of fifty (50) 
 
            percent of the permanent partial disability benefits due 
 
            claimant commencing July 2, 1991.
 
            
 
                 That defendants pay claimant accrued amounts in a lump 
 
            sum.
 
            
 
                 That defendants shall pay interest pursuant to Iowa 
 
            Code section 85.30.
 
            
 
                 That due to the condition of the exhibits, each party 
 
            shall pay their respective costs of this proceeding pursuant 
 
            to rule 343 IAC 4.33.
 
            
 
                 That defendants shall pay for medical treatment 
 
            rendered to treat claimant's work injury as governed by Iowa 
 
            Code section 85.27.
 
            
 
                 That defendants shall file an activity report upon 
 
            payment of this award as required by this agency, pursuant 
 
            to rule 343 IAC 3.1.
 

 
            
 
            Page  11
 
            
 
            
 
            
 
            
 
            Signed and filed this ____ day of November, 1992.
 
            
 
            
 
            
 
            
 
                                   ________________________________
 
                                   PATRICIA J. LANTZ
 
                                   DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr R Ronald Pogge
 
            Attorney at Law
 
            2700 Grand Ave  Ste 111
 
            Des Moines IA 50312
 
            
 
            Ms Janice M Herfkens
 
            Mr Charles Cutler
 
            Attorneys at Law
 
            729 Insurance Exch Bldg
 
            Des Moines IA 50309
 
            
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                               5-1100; 5-4000.2
 
                                               Filed November 20, 1992
 
                                               Patricia J. Lantz
 
            
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            MARTHA HOEVET,                :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :       File No. 973115
 
            STACYVILLE COMMUNITY          :
 
            NURSING HOME,                 :
 
                                          :     A R B I T R A T I O N
 
                 Employer,                :
 
                                          :        D E C I S I O N
 
            and                           :
 
                                          :
 
            INA INSURANCE COMPANY,        :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            5-1100
 
            Claimant proved by a preponderance of the evidence that she 
 
            sustained a work-related injury.
 
            
 
            5-4000.2
 
            Claimant awarded 50% penalty benefits when defendants denied 
 
            claim but performed no investigation until months later.  
 
            All medical evidence indicated that claimant's injury 
 
            happened while at work.
 
            
 
 
         
 
         
 
         
 
         
 
         
 
                  BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         _________________________________________________________________
 
                                         :
 
         JANICE HYLER, Surviving         :
 
         Spouse of EUGENE J. HYLER,      :
 
         Deceased,                       :
 
                                         :
 
              Claimant,                  :
 
                                         :
 
         vs.                             :
 
                                         :        File No. 973135
 
         IOWA STATE EDUCATION            :
 
         ASSOCIATION,                    :
 
                                         :           A P P E A L
 
              Employer,                  :
 
                                         :         D E C I S I O N
 
         and                             :
 
                                         :
 
         CIGNA,                          :
 
                                         :
 
              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.
 
         
 
                                      ISSUES
 
         
 
              Claimant states the following issues on appeal:
 
         
 
         
 
              1.  Whether the deputy erred in denying medical 
 
              benefits incurred for treatment of the personal injury 
 
              between January 18, 1991, and March 7, 1991.
 
         
 
              2.  Whether the deputy erred in failing to find a 
 
              causal relationship between Eugene J. Hyler's personal 
 
              injury on January 18, 1991, and the pulmonary embolism 
 
              which resulted in his death on March 18, 1991.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              The findings of fact contained in the proposed agency 
 
         decision filed May 2, 1994 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.
 
         
 
              There is no dispute that the decedent slipped and fell on 
 

 
         
 
         Page   2
 
         
 
         
 
         
 
         
 
         the ice in the parking lot of a motel in Cherokee, Iowa, on 
 
         January 18, 1991, while on a special assignment with the Iowa 
 
         State Education Association (ISEA).  Jack Hyler, decedent herein, 
 
         was employed by the Iowa State Education Association as a 
 
         Uniserve Director from July 1970 until his death on March 18, 
 
         1991.  The Uniserve Director assists the local membership of the 
 
         Association during collective bargaining.  The director also 
 
         educates the members concerning services and benefits available 
 
         through ISEA and assists members in obtaining those benefits when 
 
         they are wanted or needed.  The director also assists individual 
 
         members with various problems including discharge hearings, 
 
         mediation, etc.  
 
         
 
              During his career with ISEA, decedent employee served in the 
 
         Red Oak office which covered a 14-county region in southwest 
 
         Iowa.  The region includes 47 school districts, area educational 
 
         agencies and community colleges.  Assigned to this Red Oak office 
 
         was John Phillips, another Uniserve Director, and Marilyn Paul, 
 
         the office secretary.  
 
         
 
              Jack Hyler was on special assignment with the ISEA at the 
 
         time of his injury on January 18, 1991.  This project commenced 
 
         in November 1990 and was scheduled to end on March 31, 1991.  The 
 
         special assignment involved working with Uniserve Directors 
 
         throughout Iowa.  Mr. Hyler rented an apartment in Des Moines for 
 
         occasional use during the week because the project required that 
 
         he spend more time at the ISEA central office which was located 
 
         in Des Moines, Iowa.  However, Mr. Hyler also spent some of his 
 
         time at the Red Oak office.  He spent the weekends either at home 
 
         in Red Oak or at his mother-in-law's house in Ames, Iowa.  
 
         
 
              The employer and insurance carrier admit that Jack Hyler was 
 
         an employee of the ISEA.  They also admit that he sustained a 
 
         fractured left ankle on January 18, 1991, in Cherokee, Iowa, and 
 
         that the injury arose out of and in the course of his employment.  
 
         They also agree that he suffered a nondisplaced fracture which 
 
         did not require surgery, pins, needles, or cutting of the skin.  
 
         They agree that a fiberglass walking cast was placed on his left 
 
         leg on January 21, 1991, and the cast was removed and reapplied 
 
         on January 30, 1991.  The cast was removed on March 7, 1991, and 
 
         an ankle air splint was applied.  There is agreement that 
 
         decedent suffered a pulmonary embolism and died on March 18, 
 
         1991.  He was survived by his wife, Janice Hyler, and two adult 
 
         children.  
 
         
 
              The pertinent medical evidence of record indicates that 
 
         decedent had a long history of atherosclerotic disease.  He had 
 
         bilateral carotid endarterectomies and femoral endarterectomy.  
 
         (exhibit 50-2)  He had a history of being over-weight and a heavy 
 
         smoker.  (ex. 51-2)  When evaluated at the Mayo Clinic in 
 
         November of 1988, repeat arterial Doppler studies revealed some 
 
         worsening of the arterial circulation to both legs when compared 
 
         to an earlier study of August 9, 1988.  A translumbar aortography 
 
         showed occlusion of the arterial flow to the right leg.  It was 
 

 
         
 
         Page   3
 
         
 
         
 
         
 
         
 
         felt that a re-do of the aortal femoral bypass would be helpful, 
 
         however, decedent was first advised to lose 20-25 pounds.  (ex. 
 
         54-3)  Decedent's medical history also includes a history of 
 
         hypertension since 1976 secondary to renal artery stenosis, which 
 
         was repaired in 1976.  (ex. 59-2)
 
         
 
              Claimant saw Kevin P. Reagan, M.D., on January 21, 1991, for 
 
         treatment of pain and swelling in his left ankle as a result of a 
 
         fall on January 18, 1991, in Cherokee, Iowa.  X-rays were taken 
 
         and revealed a fracture of the distal left fibula.  J. Richard 
 
         Trinity, M.D., treated claimant in the emergency room at 
 
         Montgomery County Memorial Hospital.  He applied a short-leg 
 
         fiberglass walking cast along with a casted shoe.  On January 30, 
 
         1991, Dr. Trinity removed and reapplied the cast because the 
 
         original one was very loose.  On March 7, 1991, the cast was 
 
         removed and an ankle air splint was applied.  (ex. 1-4)
 
         
 
              Janice Hyler testified that her husband returned to work on 
 
         January 23, 1991.  She stated that during the next two months he 
 
         was less physically active than before and was unable to perform 
 
         many of his usual household chores.  Nevertheless, he met her at 
 
         her mother's home in Ames, Iowa, on March 17, 1991, to help her 
 
         sort out some of her mother's belongings which had to be disposed 
 
         of by the end of March 1991.  That evening, he got up to go to 
 
         the bathroom and complained of back pain.  She stated that she 
 
         rubbed his back and returned to bed.  He moved to another bedroom 
 
         where the bed had a firmer mattress.  Shortly thereafter, she 
 
         heard him moaning and found him sitting on the edge of the bed.  
 
         He told her that he was having a heart attack.  She immediately 
 
         called 911 and he was taken by Mobile Intensive Care Services to 
 
         Mary Greeley Medical Center in Ames, Iowa.
 
         
 
              The medical evidence indicates that when the emergency 
 
         ambulance crew arrived, they found decedent basically asystolic, 
 
         or at least with no palpable pulses.  In the emergency room, 
 
         claimant was attended by James Gohman, M.D.  His notes indicate 
 
         that they were unable to obtain any type of rhythm and had 
 
         extreme difficulty ventilating him.  Shortly thereafter, Mr. 
 
         Hyler died.  (ex. 5-6)
 
         
 
              The cause of death could not be determined by Dr. Gohman.  
 
         Therefore, he got permission from decedent's wife to [have 
 
         performed] ***** an autopsy.  Mrs. Hyler consented to the autopsy 
 
         which was performed at 9:00 a.m. on March 18, 1991.  The 
 
         pathologist incorrectly reported that Mr. Hyler had recently 
 
         underwent surgery for an ankle fracture.  After autopsy, he 
 
         stated that the cause of death was a pulmonary embolism likely 
 
         originating from the deep veins of the leg.  (ex. 6-8)
 
         
 
              [Decedent sustained a nondisplaced fracture to his left 
 
         ankle on January 18, 1991.  Decedent first sought medical 
 
         treatment for this injury on January 21, 1991 and last sought 
 
         treatment on March 7, 1991.
 
         
 

 
         
 
         Page   4
 
         
 
         
 
         
 
         
 
              The parties have previously stipulated that Cigna has paid 
 
         $475.55 in medical expenses.  Claimant has submitted medical 
 
         bills totaling $960.10 for treatment of decedent's ankle between 
 
         January 18, 1991 and March 7, 1991.]
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              The conclusions of law contained in the proposed agency 
 
         decision filed May 2, 1994 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.
 
         
 
              The first issue to be determined is whether decedent's ankle 
 
         injury and subsequent treatment caused or materially aggravated 
 
         his preexisting condition resulting in a massive and fatal 
 
         pulmonary embolism.  
 
         
 
              The party who would suffer loss if an issue were not 
 
         established has the burden of proving that issue by a 
 
         preponderance of the evidence.  Iowa R. of App. P. 14(f).
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the alleged injury actually occurred and that 
 
         it arose out of and in the course of employment.  McDowell v. 
 
         Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. 
 
         Cent. Tel. Co., 261 Iowa 352, 154 N.W.2d 128 (1967).  The words 
 
         "arising out of" refer to the cause or source of the injury.  The 
 
         words "in the course of" refer to the time, place and 
 
         circumstances of the injury.  Sheerin v. Holin Co., 380 N.W.2d 
 
         415 (Iowa 1986); McClure v. Union County, 188 N.W.2d 283 (Iowa 
 
         1971).
 
         
 
              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, 
 

 
         
 
         Page   5
 
         
 
         
 
         
 
         
 
         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 workers' compensation 
 
         law means an injury, the impairment of health or a disease 
 
         resulting from an injury which comes about, not through the 
 
         natural building up and tearing down of the human body, but 
 
         because of trauma.  The injury must be something which acts 
 
         extraneously to the natural processes of nature and thereby 
 
         impairs the health, interrupts or otherwise destroys or damages a 
 
         part or all of the body.  Although many injuries have a traumatic 
 
         onset, there is no requirement for a special incident or an 
 
         unusual occurrence.  Injuries which result from cumulative trauma 
 
         are compensable.  McKeever Custom Cabinets v. Smith, 379 N.W.2d 
 
         368 (Iowa 1985); Olson v. Goodyear Serv. Stores, 255 Iowa 1112, 
 
         125 N.W.2d 251 (1963); Ford v. Goode, 240 Iowa 1219, 38 N.W.2d 
 
         158 (1949); Almquist v. Shenandoah Nurseries, Inc., 218 Iowa 724, 
 
         254 N.W. 35 (1934).  An occupational disease covered by chapter 
 
         85A is specifically excluded from the definition of personal 
 
         injury.  Iowa Code section 85.61(5); Iowa Code section 85A.8.
 
         
 
              Preponderance of the evidence means greater weight of 
 
         evidence; that is, the evidence of superior influence or 
 
         efficacy.  Bauer v. Reavell, 219 Iowa 1212, 216 N.W. 39 (1935).
 
         
 
              A party's burden as to proof is not discharged by creating 
 
         an equipoise.  Volk v. International Harvester Co.,  252 Iowa 
 
         298, 106 N.W.2d 649 (1960).
 
         
 
              A factor is substantial when reasonable persons considering 
 
         that factor would regard it as a cause, that is, as being in some 
 
         pertinent part responsible for the result produced.  See, 
 
         Pedersen v. Kuhr, 201 N.W.2d 711 (Iowa 1972).  
 
         
 
              A factor is substantial when it is material in producing a 
 
         result.  A factor may be substantial without being either 
 
         exclusively or even predominantly the determinant of the result, 
 
         however.  See Jones v. City of Des Moines, 355 N.W.2d 49 (Iowa 
 
         1984); Montgomery Properties v. Economy Forms, 305 N.W.2d 470 
 
         (Iowa 1981).  
 
         
 
              Additionally consider the following:
 
              
 
                 We are cognizant of the fact that the compensation 
 
              law is for the benefit of workers and is to be 
 
              liberally administered to that end.  But it must be 
 
              administered by the application of logical and 
 
              consistent rules or formulas notwithstanding its 
 
              benevolent purpose.  It cannot be made to depend on the 
 
              whim or sympathetic sentiment of the current 
 
              administrator or presiding judge.  We apprehend every 
 
              member of this court is sympathetic to claimant in the 
 
     
 
         
 
         
 
         Page   6
 
         
 
         
 
         
 
         
 
              instant case.  But the compensation statute is not a 
 
              charity.  It is a humanitarian law to be administered, 
 
              not by sympathy, but by logical rules, evolved from the 
 
              determination of many cases under literally countless 
 
              factual variations.  Compensation is to be paid by the 
 
              employer (or [the] insurer) as a matter of contract, 
 
              not as a gratuity.  It is payable only when the facts 
 
              show the injury is within the contract--that it 'arose 
 
              out of and in the course of the contracted employment.'  
 
              Bulman v. Sanitary Farm Dairies, 247 Iowa 488, 494, 
 
              495, 73 N.W.2d (1955).
 
         
 
              Mrs. Hyler contends that decedent's death from a pulmonary 
 
         embolism is the direct and natural result of decedent's 
 
         compensable primary injury to his left ankle.  
 
         
 
              ***** In Oldham v. Scofield and Welch, 222 Iowa 764, 767, 
 
         266 N.W. 480, 482 (Iowa 1936), [the Iowa Supreme Court stated:]
 
              
 
                 The question of whether the disability sustained by 
 
              the employee shall be attributed to the first accident 
 
              or to the later accidents depends on whether or not the 
 
              disability sustained was caused by a change in the 
 
              original condition, or by a recurrence of the original 
 
              injury, or by an independent and subsequent cause.  If 
 
              the employee suffers a compensable injury and 
 
              thereafter suffers further disability which is the 
 
              proximate result of the original injury, such further 
 
              disability is compensable.  Where an employee suffers a 
 
              compensable injury and thereafter returns to work and, 
 
              as a result thereof, his first injury is aggravated and 
 
              accelerated so that he is greater disabled than before, 
 
              the entire disability may be compensated for.
 
         
 
              More recently the court in DeShaw v. Energy Manufacturing 
 
         Co., 192 N.W.2d 777, 780 (Iowa 1971) established this rule:
 
              
 
                 When a workman sustains an injury, later sustains 
 
              another injury, and subsequently seeks to reopen an 
 
              award predicated on the first injury, he must prove one 
 
              of two things:  (a) that the disability for which he 
 
              seeks additional compensation was proximately caused by 
 
              the first injury, or (b) that the second injury (and 
 
              ensuring disability) was proximately caused by the 
 
              first injury.
 
         
 
              ***** The parties have presented [evidence from] six medical 
 
         experts. ***** All of this evidence has been carefully read and 
 
         considered and a careful analysis made of the conflicting 
 
         opinions presented.  
 
         
 
              An expert's opinion based on an incomplete history is not 
 
         necessarily binding on the commissioner.  The opinion must be 
 
         weighed with other facts and circumstances presented.  Musselman 
 

 
         
 
         Page   7
 
         
 
         
 
         
 
         
 
         v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
              A treating physician's testimony is not entitled to greater 
 
         weight as a matter of law than that of a physician who later 
 
         examines claimant in anticipation of litigation.  Weight to be 
 
         given testimony of physician is a fact issue to be decided by the 
 
         industrial commissioner in light of the record the parties 
 
         develop.  In this regard, both parties may develop facts as to 
 
         the physician's employment in connection with litigation; the 
 
         physician's examination at a later date and not when the injuries 
 
         were fresh; his arrangement as to compensation; the extent and 
 
         nature of the physician's examination; the physician's education, 
 
         experience, training, and practice; and all other factors which 
 
         bear upon the weight and value of the physician's testimony.  
 
         Both parties may bring all this information to the attention of 
 
         the fact finder as either supporting or weakening the physician's 
 
         testimony and opinion.  All factors go to the value of the 
 
         physician's testimony as a matter of fact not as a matter of law.  
 
         Rockwell Graphic Systems, Inc. v. Prince, 366 N.W.2d 176, 192 
 
         (Iowa 1985).
 
         
 
              On June 12 and July 25, 1991, Jay Richard Trinity, M.D., 
 
         reported that at no time while in the walking cast or ankle 
 
         splint did decedent have any pain or swelling in his calf or leg, 
 
         except as locally related to the fracture.  He doubted whether 
 
         the pulmonary embolus arose from the leg as a consequence of the 
 
         fracture.  Instead, it was his opinion that the pulmonary embolus 
 
         most likely came from the pelvis and not the leg.  This opinion 
 
         is supported by the fact that decedent was ambulatory the entire 
 
         time and had no symptoms suggestive of thrombophlebitis.  He 
 
         noted that decedent had other risk factors such as obesity and a 
 
         sedentary lifestyle.  However, Dr. Trinity was unable to 
 
         determine the source of the clot.  (ex. 9, pages 1-2)
 
         
 
              Dr. Trinity also testified in a deposition taken on January 
 
         12, 1994.  Dr. Trinity is board certified in general surgery.  A 
 
         regular part of his practice involves the diagnosis and treatment 
 
         of ankle fractures and leg injuries.  Dr. Trinity treated 
 
         claimant's nondisplaced fractured fibula with a fiberglass cast 
 
         which was designed as a walking cast and enabled decedent to 
 
         ambulate.  He stated that decedent's cast needed to be refitted 
 
         on January 30, 1991,  after becoming loose because the swelling 
 
         from the fracture diminished.  At that time, Dr. Trinity stated 
 
         that he did not notice any swelling, discoloration or hardness 
 
         that would indicate the presence of thrombophlebitis or thrombi 
 
         in the lower extremity.  He saw decedent for the last time on 
 
         March 7, 1991.  An x-ray was taken and did not show any unstable 
 
         findings.  Dr. Trinity stated that the origin point for most 
 
         thrombi is somewhere between the groin and the midcalf.  Dr. 
 
         Trinity reiterated his opinion that decedent's pulmonary embolism 
 
         was not caused by his ankle fracture nor was his preexisting 
 
         condition materially or substantially aggravated by it.  (ex. 47)
 
         
 
              James D. Gohman, M.D., reported in a letter to decedent's 
 

 
         
 
         Page   8
 
         
 
         
 
         
 
         
 
         attorney that the autopsy demonstrated the presence of a very 
 
         large pulmonary embolus with complete occlusion of the pulmonary 
 
         trunk and main pulmonary arteries.  He concluded that this caused 
 
         Mr. Hyler's death.  He opined that, "It would appear to me that 
 
         the fracture and subsequent casting would be the event initiating 
 
         the thromboembolic phenomenon."  (ex. 11-1)  Dr. Gohman's 
 
         deposition was taken on December 16, 1993.  Dr. Gohman is a 
 
         specialtist in internal medicine.  He treated decedent in the 
 
         emergency room at Mary Greeley Medical Center the morning of 
 
         March 18, 1991.  He recommended that an autopsy be performed in 
 
         order to ascertain the cause of death.  He did not perform the 
 
         autopsy but received a copy of the report.  The autopsy indicated 
 
         pulmonary embolism, enlarged heart and a history of pulmonary 
 
         hemorrhages.  He defined a pulmonary embolism as the passage of 
 
         venous clot material into the right side of the heart and into 
 
         the lungs, pulmonary vessels.  He testified that the clots 
 
         embolize into the pulmonary vessels and can block the circulation 
 
         through the lungs.  Embolization reduces the flow of blood 
 
         through the venous system and in decedent's case, the blood clot 
 
         stopped in the lung and produced a major obstruction to the flow 
 
         of blood through the lungs so that the blood could no longer pick 
 
         up oxygen to supply the body and death occurred.  Dr. Gohman 
 
         reiterated his opinion that decedent's fracture treated with 
 
         immobilization and casting caused the embolus.  (ex. 44)
 
         
 
              Ronald K. Miller, an orthopedic surgeon, reported on August 
 
         12, 1991, that the fracture, lack of normal motion, because of 
 
         the cast, and inactivity was a substantial contributing factor to 
 
         development of DVT (deep vein thrombosis) in the ilio-inguinal 
 
         area.  It was his opinion that the fatal pulmonary emboli 
 
         developed in decedent's calf and that the fracture and subsequent 
 
         soft tissue swelling was the initial cause of his fatal pulmonary 
 
         emboli.  (ex. 12)  Dr. Miller testified in a deposition taken on 
 
         March 17, 1993.  After considering other factors offered by 
 
         defendants' attorney, Dr. Miller testified that there is a 
 
         reduced likelihood that the ankle fracture caused decedent's 
 
         death.  (ex. 43-30)  
 
         
 
              On October 1, 1991, at the request of Attorney John M. 
 
         French, David W. Kable, M.D., reviewed decedent's medical 
 
         records.  Dr. Kable stated that the only precipitating factor in 
 
         decedent's acute pulmonary embolism was a history of a fractured 
 
         ankle with a casted leg for six weeks.  He stated, "This is a 
 
         well known predisposing factor to the development of deep vein 
 
         thrombosis in the legs.  At the time of Mr. Hyler's death, a 
 
         large amount of clot broke off from the veins in the legs and 
 
         traveled to his lungs, causing almost instant death."  (ex. 13-2)  
 
         Dr. Kable testified in a deposition on December 18, 1993.  Dr. 
 
         Kable is board certified in internal medicine and cardiology.  He 
 
         reiterated his opinion that decedent's ankle fracture and 
 
         subsequent casting and immobilization was in all likelihood the 
 
         major cause of the development of deep venous thrombosis which 
 
         subsequently led to pulmonary embolism.  (ex. 45-15)
 
         
 

 
         
 
         Page   9
 
         
 
         
 
         
 
         
 
              On March 6, 1992, Timothy C. Fitzgibbons, M.D., reviewed 
 
         decedent's medical records.  He rendered an opinion as to the 
 
         cause of Mr. Hyler's death.  He attributed the pulmonary embolism 
 
         to the natural progression of preexisting problems.  He stated 
 
         that the ankle injury did not materially aggravate or accelerate 
 
         decedent's fatal pulmonary embolism.  He offered the opinion that 
 
         most pulmonary emboli do not occur from the deep veins in the leg 
 
         but rather in the pelvic veins and there would be no reason to 
 
         expect decedent to develop clots in his deep pelvic veins from 
 
         his ankle injury.  He stated that the evidence does not support 
 
         any finding that decedent had complaints of swelling or 
 
         discomfort in his leg which would be consistent with a deep vein 
 
         thrombosis.  (ex. 10-2)
 
         
 
              Dr. Fitzgibbons also testified in a deposition taken on 
 
         September 23, 1993.  Dr. Fitzgibbons testified that in his 
 
         opinion, the fracture of the lateral malleolus and subsequent 
 
         treatment with casting did not have a significant effect and was 
 
         not the cause of decedent's fatal pulmonary embolism.  (ex. 41, 
 
         pp. 23-24)  He agreed with Dr. Miller's statement that most deep 
 
         vein thromboses in the calf generally stay in the calf.  However, 
 
         he disagreed with his opinion that the fracture caused decedent's 
 
         pulmonary embolism.  (ex. 41-25)  Dr. Fitzgibbons felt that 
 
         decedent had many risk factors which existed independent of any 
 
         trauma to his ankle and which would have made him susceptible to 
 
         development of a pulmonary embolism.  (ex. 41-59)
 
         
 
              At the request of defendants' attorney, Michael H. Sketch, 
 
         Sr., M.D., professor of medicine and chief, division of 
 
         cardiology at Creighton University, reviewed decedent's medical 
 
         records.  After his review of the record, he stated that within a 
 
         reasonable degree of medical certainty decedent's death was the 
 
         result of a pulmonary embolus which was in no way related to his 
 
         ankle injury of January 13, 1991, nor was it materially 
 
         aggravated or accelerated by that injury.  (ex. 14, pp. 1-2)  Dr. 
 
         Sketch testified in depositions taken on January 13, 1994 and 
 
         February 10, 1994.  Dr. Sketch testified that decedent's autopsy 
 
         was incomplete because it did not discern the origin of the 
 
         massive clot that resulted in his death.  In other words, the 
 
         autopsy did not locate the cause of or the origin of the 
 
         pulmonary embolism.  Dr. Sketch reiterated that, in his opinion, 
 
         decedent's ankle injury did not cause or materially aggravate or 
 
         accelerate the pulmonary embolism which resulted in his death.  
 
         (ex. 46-11)  He stated that the type of massive pulmonary emboli 
 
         which resulted in decedent's death originates in the large veins 
 
         of the thigh or in the pelvis.  The region is located above the 
 
         knee.  Dr. Sketch testified that decedent had predisposing risk 
 
         factors for development of pulmonary emboli including obesity, an 
 
         enlarged heart and severe peripheral vascular disease.  In 
 
         addition, he had abnormal veins in his left leg and the valves in 
 
         the legs were incompetent.  In addition, he had a history of deep 
 
         vein thrombosis.  He stated that it is extremely rare to see 
 
         massive pulmonary embolus in patient's who have walking casts.  
 
         Rather, it is seen with immobilization such as full leg casts and 
 

 
         
 
         Page  10
 
         
 
         
 
         
 
         
 
         complete bed rest.  (exs. 46 and 48)
 
         
 
              The weight to be given any expert opinion is determined by 
 
         the finder of fact and may be effected 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, at 903 (Iowa 1974); Anderson, at 
 
         531 (Iowa 1974); Bodish, at 867 (Iowa 1965).  The greater weight 
 
         of expert opinion does not support claimant's contention that 
 
         decedent's compensable left ankle injury and subsequent medical 
 
         treatment was the proximate cause of a fatal pulmonary embolism 
 
         which resulted in his death.  In making this determination, the 
 
         undersigned has given considerable weight to claimant's treating 
 
         surgeon, Dr. Trinity and to the independent medical opinions of 
 
         Dr. Fitzgibbons and Dr. Sketch.  
 
         
 
              Dr. Gohman testified that in forming his medical opinion he 
 
         relied entirely on the autopsy report.  (ex. 44-22)  He also 
 
         admitted that he had no knowledge of claimant's activities during 
 
         the two-month period his leg was in a cast and he was not totally 
 
         cognizant of decedent's past medical history.  (ex. 44, pp. 
 
         26-29)  Finally, Dr. Gohman admitted that a more complete autopsy 
 
         could have more closely determined the source of the clot in 
 
         question, specifically if the dissection of the veins was 
 
         performed a better determination could have been made.  (ex. 
 
         44-44)  Therefore, Dr. Gohman's opinion is rejected.
 
         
 
              Dr. Trinity and Dr. Sketch formed their medical opinion 
 
         based on the totality of the evidence, including claimant's past 
 
         medical history and predisposing risk factors.  
 
         
 
              Dr. Sketch agreed with Dr. Gohman that the autopsy was 
 
         incomplete and did not demonstrate the origin of the clot.  (ex. 
 
         46-7)  He testified that Mr. Hyler died from a massive pulmonary 
 
         embolus.  He explained that these originate in the large veins of 
 
         the thigh or in the pelvis or the area above the knee.  He 
 
         emphatically stated that decedent's minor left ankle fracture and 
 
         subsequent treatment with casting did not create a significant 
 
         risk factor for development of pulmonary emboli.  Instead, he 
 
         felt that the massive pulmonary embolism was the natural 
 
         progression of decedent's preexisting disease process and other 
 
         significant risk factors.  (ex. 46, pp. 11-22)
 
         
 
              [It is concluded] ***** that the greater weight of the 
 
         evidence supports the findings and medical opinion of Dr. Michael 
 
         Sketch.  A doctor's experience, expertise and board certification 
 
         may accord his testimony greater weight.  Reiland v. Palco, Inc., 
 
         Thirty-second Biennial Report of the Industrial Commissioner 56 
 
         (1975); Dickey v. ITT Continental Baking Co., Thirty-fourth 
 
         Biennial Report of the Industrial Commissioner 89 (1979).  
 
         Accordingly, the undersigned concludes that decedent's left ankle 
 
         injury did not hasten or cause his death.  Therefore, survivor's 
 
         benefits cannot be awarded to decedent's widow.*****
 
         
 

 
         
 
         Page  11
 
         
 
         
 
         
 
         
 
              [Claimant should not bear the expense of any unpaid medical 
 
         bills for treatment of decedent's ankle.  Defendants are to 
 
         satisfy any unpaid medical bills for treatment of decedent's 
 
         ankle between January 18, 1991 and March 7, 1991.]
 
         
 
              WHEREFORE, the decision of the deputy is affirmed and 
 
         modified.
 
         
 
         
 
                                      ORDER
 
                                        
 
            THEREFORE, it is ordered:
 
         
 
         
 
              That defendants satisfy any unpaid medical bills for 
 
         treatment of decedent's ankle between January 18, 1991 and March 
 
         7, 1991.
 
         
 
              That claimant shall take nothing further from these 
 
         proceedings.
 
         
 
              That claimant shall pay the costs of the appeal including 
 
         the transcription of the hearing.  Defendants shall pay all other 
 
         costs.
 
         
 
              Signed and filed this ____ day of October, 1994.
 
         
 
         
 
         
 
         
 
                                  ________________________________
 
                                            BYRON K. ORTON
 
                                       INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. James E. Thorn
 
         Attorney at Law
 
         P.O. Box 398
 
         Council Bluffs, Iowa 51502
 
         
 
         Mr. M. James Daley
 
         Attorney at Law
 
         P.O. Box 1828
 
         Sioux City, Iowa 51102
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
 
 
                                       1805
 
                                       Filed October 17, 1994
 
                                       Byron K. Orton
 
                     
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         _________________________________________________________________
 
         JANICE HYLER, Surviving         :
 
         Spouse of EUGENE J. HYLER,      :
 
         Deceased,                       :
 
                                         :
 
              Claimant,                  :
 
                                         :
 
         vs.                             :
 
                                         :        File No. 973135
 
         IOWA STATE EDUCATION            :
 
         ASSOCIATION,                    :
 
                                         :           A P P E A L
 
              Employer,                  :
 
                                         :         D E C I S I O N
 
         and                             :
 
                                         :
 
         CIGNA,                          :
 
                                         :
 
              Insurance Carrier,         :
 
              Defendants.                :
 
         _________________________________________________________________
 
         1805
 
         
 
              In a proceeding for death benefits decedent's spouse did not 
 
         prove by a preponderance of the evidence that decedent's left 
 
         ankle injury and subsequent treatment caused or materially 
 
         aggravated his preexisting condition so as to result in a massive 
 
         and fatal pulmonary embolism.
 
         
 
 
            
 
            
 
            
 
            
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ------------------------------------------------------------
 
            JANICE HYLER, Surviving       :
 
            Spouse of EUGENE J HYLER,     :
 
            Deceased,                     :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 973135
 
            IOWA STATE EDUCATION ASSOC.:
 
                                          :  A R B I T R A T I O N
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            CIGNA,                        :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ------------------------------------------------------------
 
                              STATEMENT OF THE CASE
 
            
 
                 This is a proceeding in arbitration brought by Janice 
 
            Hyler, surviving spouse of Eugene J. Hyler, deceased, 
 
            claimant, against Iowa State Education Association, 
 
            employer, and Cigna Insurance, insurance carrier, 
 
            defendants, to recover benefits under the Iowa Workers' 
 
            Compensation Act as a result of an injury sustained on 
 
            January 18, 1991.  This matter came on for hearing before 
 
            the undersigned deputy industrial commissioner on April 4, 
 
            1994, in Council Bluffs, 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 joint exhibits 1 
 
            through 74.
 
            
 
                                      ISSUES
 
            
 
                 Pursuant to the hearing report and order approving same 
 
            dated April 4, 1994, the parties have presented the 
 
            following issues for resolution:
 
            
 
                   Whether claimant's January 18, 1991, left ankle 
 
            injury and treatment caused a pulmonary embolism which 
 
            resulted in his death;
 
            
 
                   Whether claimant is entitled to medical benefits 
 
            pursuant to Iowa Code section 85.27; and
 
            
 
                   Whether claimant is entitled to penalty benefits 
 
            pursuant to Iowa Code section 86.13.
 
            
 
                     
 
            
 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
                              FINDINGS OF FACT
 
            
 
                 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:
 
            
 
                 There is no dispute that the decedent slipped and fell 
 
            on the ice in the parking lot of a motel in Cherokee, Iowa, 
 
            on January 18, 1991, while on a special assignment with the 
 
            Iowa State Education Association (ISEA).  Jack Hyler, 
 
            decedent herein, was employed by the Iowa State Education 
 
            Association as a Uniserve Director from July 1970 until his 
 
            death on March 18, 1991.  The Uniserve Director assists the 
 
            local membership of the Association during collective 
 
            bargaining.  The director also educates the members 
 
            concerning services and benefits available through ISEA and 
 
            assists members in obtaining those benefits when they are 
 
            wanted or needed.  The director also assists individual 
 
            members with various problems including discharge hearings, 
 
            mediation, etc.  
 
            
 
                 During his career with ISEA, decedent employee served 
 
            in the Red Oak office which covered a 14-county region in 
 
            southwest Iowa.  The region includes 47 school districts, 
 
            area educational agencies and community colleges.  Assigned 
 
            to this Red Oak office was John Phillips, another Uniserve 
 
            Director, and Marilyn Paul, the office secretary.  
 
            
 
                 Jack Hyler was on special assignment with the ISEA at 
 
            the time of his injury on January 18, 1991.  This project 
 
            commenced in November 1990 and was scheduled to end on March 
 
            31, 1991.  The special assignment involved working with 
 
            Uniserve Directors throughout Iowa.  Mr. Hyler rented an 
 
            apartment in Des Moines for occasional use during the week 
 
            because the project required that he spend more time at the 
 
            ISEA central office which was located in Des Moines, Iowa.  
 
            However, Mr. Hyler also spent some of his time at the Red 
 
            Oak office.  He spent the weekends either at home in Red Oak 
 
            or at his mother-in-law's house in Ames, Iowa.  
 
            
 
                 The employer and insurance carrier admit that Jack 
 
            Hyler was an employee of the ISEA.  They also admit that he 
 
            sustained a fractured left ankle on January 18, 1991, in 
 
            Cherokee, Iowa, and that the injury arose out of and in the 
 
            course of his employment.  They also agree that he suffered 
 
            a nondisplaced fracture which did not require surgery, pins, 
 
            needles, or cutting of the skin.  They agree that a 
 
            fiberglass walking cast was placed on his left leg on 
 
            January 21, 1991, and the cast was removed and reapplied on 
 
            January 30, 1991.  The cast was removed on March 7, 1991, 
 
            and an ankle air splint was applied.  There is agreement 
 
            that decedent suffered a pulmonary embolism and died on 
 
            March 18, 1991.  He was survived by his wife, Janice Hyler, 
 
            and two adult children.  
 
            
 
                 The pertinent medical evidence of record indicates that 
 
            decedent had a long history of atherosclerotic disease.  He 
 
            had bilateral carotid endarterectomies and femoral 
 
            endarterectomy.  (exhibit 50-2).  He had a history of being 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            over-weight and a heavy smoker.  (ex. 51-2).  When evaluated 
 
            at the Mayo Clinic in November of 1988, repeat arterial 
 
            Doppler studies revealed some worsening of the arterial 
 
            circulation to both legs when compared to an earlier study 
 
            of August 9, 1988.  A translumbar aortography showed 
 
            occlusion of the arterial flow to the right leg.  It was 
 
            felt that a re-do of the aortal femoral bypass would be 
 
            helpful, however, decedent was first advised to lose 20-25 
 
            pounds.  (ex. 54-3).  Decedent's medical history also 
 
            includes a history of hypertension since 1976 secondary to 
 
            renal artery stenosis, which was repaired in 1976.  (ex. 
 
            59-2).  
 
            
 
                 Claimant saw Kevin P. Reagan, M.D., on January 21, 
 
            1991, for treatment of pain and swelling in his left ankle 
 
            as a result of a fall on January 18, 1991, in Cherokee, 
 
            Iowa.  X-rays were taken and revealed a fracture of the 
 
            distal left fibula.  J. Richard Trinity, M.D., treated 
 
            claimant in the emergency room at Montgomery County Memorial 
 
            Hospital.  He applied a short-leg fiberglass walking cast 
 
            along with a casted shoe.  On January 30, 1991, Dr. Trinity 
 
            removed and reapplied the cast because the original one was 
 
            very loose.  On March 7, 1991, the cast was removed and an 
 
            ankle air splint was applied.  (ex. 1-4).
 
            
 
                 Janice Hyler testified that her husband returned to 
 
            work on January 23, 1991.  She stated that during the next 
 
            two months he was less physically active than before and was 
 
            unable to perform many of his usual household chores.  
 
            Nevertheless, he met her at her mother's home in Ames, Iowa, 
 
            on March 17, 1991, to help her sort out some of her mother's 
 
            belongings which had to be disposed of by the end of March 
 
            1991.  That evening, he got up to go to the bathroom and 
 
            complained of back pain.  She stated that she rubbed his 
 
            back and returned to bed.  He moved to another bedroom where 
 
            the bed had a firmer mattress.  Shortly thereafter, she 
 
            heard him moaning and found him sitting on the edge of the 
 
            bed.  He told her that he was having a heart attack.  She 
 
            immediately called 911 and he was taken by Mobile Intensive 
 
            Care Services to Mary Greeley Medical Center in Ames, Iowa.
 
            
 
                 The medical evidence indicates that when the emergency 
 
            ambulance crew arrived, they found decedent basically 
 
            asystolic, or at least with no palpable pulses.  In the 
 
            emergency room, claimant was attended by James Gohman, M.D.  
 
            His notes indicate that they were unable to obtain any type 
 
            of rhythm and had extreme difficulty ventilating him.  
 
            Shortly thereafter, Mr. Hyler died.  (ex. 5-6).
 
            
 
                 The cause of death could not be determined by Dr. 
 
            Gohman.  Therefore, he got permission from decedent's wife 
 
            to perform an autopsy.  Mrs. Hyler consented to the autopsy 
 
            which was performed at 9:00 a.m. on March 18, 1991.  The 
 
            pathologist incorrectly reported that Mr. Hyler had recently 
 
            underwent surgery for an ankle fracture.  After autopsy, he 
 
            stated that the cause of death was a pulmonary embolism 
 
            likely originating from the deep veins of the leg.  (ex. 
 
            6-8).  
 

 
            
 
            Page   4
 
            
 
            
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                 The first issue to be determined is whether decedent's 
 
            ankle injury and subsequent treatment caused or materially 
 
            aggravated his preexisting condition resulting in a massive 
 
            and fatal pulmonary embolism.  
 
            
 
                 The party who would suffer loss if an issue were not 
 
            established has the burden of proving that issue by a 
 
            preponderance of the evidence.  Iowa R. of App. P. 14(f).
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the alleged injury 
 
            actually occurred and that it arose out of and in the course 
 
            of employment.  McDowell v. Town of Clarksville, 241 N.W.2d 
 
            904 (Iowa 1976); Musselman v. Cent. Tel. Co., 261 Iowa 352, 
 
            154 N.W.2d 128 (1967).  The words "arising out of" refer to 
 
            the cause or source of the injury.  The words "in the course 
 
            of" refer to the time, place and circumstances of the 
 
            injury.  Sheerin v. Holin Co., 380 N.W.2d 415 (Iowa 1986); 
 
            McClure v. Union County, 188 N.W.2d 283 (Iowa 1971).
 
            
 
                 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 workers' 
 
            compensation law means an injury, the impairment of health 
 
            or a disease resulting from an injury which comes about, not 
 
            through the natural building up and tearing down of the 
 
            human body, but because of trauma.  The injury must be 
 
            something which acts extraneously to the natural processes 
 
            of nature and thereby impairs the health, interrupts or 
 
            otherwise destroys or damages a part or all of the body.  
 
            Although many injuries have a traumatic onset, there is no 
 
            requirement for a special incident or an unusual occurrence.  
 
            Injuries which result from cumulative trauma are 
 
            compensable.  McKeever Custom Cabinets v. Smith, 379 N.W.2d 
 
            368 (Iowa 1985); Olson v. Goodyear Serv. Stores, 255 Iowa 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            1112, 125 N.W.2d 251 (1963); Ford v. Goode, 240 Iowa 1219, 
 
            38 N.W.2d 158 (1949); Almquist v. Shenandoah Nurseries, 
 
            Inc., 218 Iowa 724, 254 N.W. 35 (1934).  An occupational 
 
            disease covered by chapter 85A is specifically excluded from 
 
            the definition of personal injury.  Iowa Code section 
 
            85.61(5); Iowa Code section 85A.8.
 
            
 
                 Preponderance of the evidence means greater weight of 
 
            evidence; that is, the evidence of superior influence or 
 
            efficacy.  Bauer v. Reavell, 219 Iowa 1212, 216 N.W. 39 
 
            (1935).
 
            
 
                 A party's burden as to proof is not discharged by 
 
            creating an equipoise.  Volk v. International Harvester Co.,  
 
            252 Iowa 298, 106 N.W.2d 649 (1960).
 
            
 
                 A factor is substantial when reasonable persons 
 
            considering that factor would regard it as a cause, that is, 
 
            as being in some pertinent part responsible for the result 
 
            produced.  See, Pedersen v. Kuhr, 201 N.W.2d 711 (Iowa 
 
            1972).  
 
            
 
                 A factor is substantial when it is material in 
 
            producing a result.  A factor may be substantial without 
 
            being either exclusively or even predominantly the 
 
            determinant of the result, however.  See Jones v. City of 
 
            Des Moines, 355 N.W.2d 49 (Iowa 1984); Montgomery Properties 
 
            v. Economy Forms, 305 N.W.2d 470 (Iowa 1981).  
 
            
 
                 Additionally consider the following:
 
            
 
                    We are cognizant of the fact that the 
 
                 compensation law is for the benefit of workers and 
 
                 is to be liberally administered to that end.  But 
 
                 it must be administered by the application of 
 
                 logical and consistent rules or formulas 
 
                 notwithstanding its benevolent purpose.  It cannot 
 
                 be made to depend on the whim or sympathetic 
 
                 sentiment of the current administrator or 
 
                 presiding judge.  We apprehend every member of 
 
                 this court is sympathetic to claimant in the 
 
                 instant case.  But the compensation statute is not 
 
                 a charity.  It is a humanitarian law to be 
 
                 administered, not by sympathy, but by logical 
 
                 rules, evolved from the determination of many 
 
                 cases under literally countless factual 
 
                 variations.  Compensation is to be paid by the 
 
                 employer (or [the] insurer) as a matter of 
 
                 contract, not as a gratuity.  It is payable only 
 
                 when the facts show the injury is within the 
 
                 contract--that it 'arose out of and in the course 
 
                 of the contracted employment.'  Bulman v. Sanitary 
 
                 Farm Dairies, 247 Iowa 488, 494, 495, 73 N.W.2d 
 
                 (1955).
 
            
 
                 Mrs. Hyler contends that decedent's death from a 
 
            pulmonary embolism is the direct and natural result of 
 
            decedent's compensable primary injury to his left ankle.  
 
            
 
                 In 1936, the Iowa Supreme Court attempted to supply 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            some guidance for sorting through this type of case in 
 
            Oldham v. Scofield and Welch, 222 Iowa 764, 767, 266 N.W. 
 
            480, 482 (Iowa 1936).
 
            
 
                 The question of whether the disability sustained 
 
                 by the employee shall be attributed to the first 
 
                 accident or to the later accidents depends on 
 
                 whether or not the disability sustained was caused 
 
                 by a change in the original condition, or by a 
 
                 recurrence of the original injury, or by an 
 
                 independent and subsequent cause.  If the employee 
 
                 suffers a compensable injury and thereafter 
 
                 suffers further disability which is the proximate 
 
                 result of the original injury, such further 
 
                 disability is compensable.  Where an employee 
 
                 suffers a compensable injury and thereafter 
 
                 returns to work and, as a result thereof, his 
 
                 first injury is aggravated and accelerated so that 
 
                 he is greater disabled than before, the entire 
 
                 disability may be compensated for.
 
            
 
                 More recently the court in DeShaw v. Energy 
 
            Manufacturing Co., 192 N.W.2d 777, 780 (Iowa 1971) 
 
            established this rule:
 
            
 
                 When a workman sustains an injury, later sustained 
 
                 another injury, and subsequently seeks to reopen 
 
                 an award predicted on the first injury, he must 
 
                 prove one or two things:  (a) that the disability 
 
                 for which he seeks additional compensation was 
 
                 proximately caused by the first injury, or (b) 
 
                 that the second injury (and ensuring disability) 
 
                 was proximately caused by the first injury.
 
            
 
                 The undersigned seeks guidance from the medical experts 
 
            to resolve this complicated issue.  The parties have 
 
            presented six medical experts to assist the undersigned in 
 
            making this determination.  All of this evidence has been 
 
            carefully read and considered and a careful analysis made of 
 
            the conflicting opinions presented.  
 
            
 
                 An expert's opinion based on an incomplete history is 
 
            not necessarily binding on the commissioner.  The opinion 
 
            must be weighed with other facts and circumstances 
 
            presented.  Musselman v. Central Telephone Co., 261 Iowa 
 
            352, 154 N.W.2d 128 (1967).
 
            
 
                 A treating physician's testimony is not entitled to 
 
            greater weight as a matter of law than that of a physician 
 
            who later examines claimant in anticipation of litigation.  
 
            Weight to be given testimony of physician is a fact issue to 
 
            be decided by the industrial commissioner in light of the 
 
            record the parties develop.  In this regard, both parties 
 
            may develop facts as to the physician's employment in 
 
            connection with litigation; the physician's examination at a 
 
            later date and not when the injuries were fresh; his 
 
            arrangement as to compensation; the extent and nature of the 
 
            physician's examination; the physician's education, 
 
            experience, training, and practice; and all other factors 
 
            which bear upon the weight and value of the physician's 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            testimony.  Both parties may bring all this information to 
 
            the attention of the fact finder as either supporting or 
 
            weakening the physician's testimony and opinion.  All 
 
            factors go to the value of the physician's testimony as a 
 
            matter of fact not as a matter of law.  Rockwell Graphic 
 
            Systems, Inc. v. Prince, 366 N.W.2d 176, 192 (Iowa 1985).
 
            
 
                 On June 12 and July 25, 1991, Jay Richard Trinity, 
 
            M.D., reported that at no time while in the walking cast or 
 
            ankle splint did decedent have any pain or swelling in his 
 
            calf or leg, except as locally related to the fracture.  He 
 
            doubted whether the pulmonary embolus arose from the leg as 
 
            a consequence of the fracture.  Instead, it was his opinion 
 
            that the pulmonary embolus most likely came from the pelvis 
 
            and not the leg.  This opinion is supported by the fact that 
 
            decedent was ambulatory the entire time and had no symptoms 
 
            suggestive of thrombophlebitis.  He noted that decedent had 
 
            other risk factors such as obesity and a sedentary 
 
            lifestyle.  However, Dr. Trinity was unable to determine the 
 
            source of the clot.  (ex. 9, pages 1-2).
 
            
 
                 Dr. Trinity also testified in a deposition taken on 
 
            January 12, 1994.  Dr. Trinity is board certified in general 
 
            surgery.  A regular part of his practice involves the 
 
            diagnosis and treatment of ankle fractures and leg injuries.  
 
            Dr. Trinity treated claimant's nondisplaced fractured fibula 
 
            with a fiberglass cast which was designed as a walking cast 
 
            and enabled decedent to ambulate.  He stated that decedent's 
 
            cast needed to be refitted on January 30, 1991,  after 
 
            becoming loose because the swelling from the fracture 
 
            diminished.  At that time, Dr. Trinity stated that he did 
 
            not notice any swelling, discoloration or hardness that 
 
            would indicate the presence of thrombophlebitis or thrombi 
 
            in the lower extremity.  He saw decedent for the last time 
 
            on March 7, 1991.  An x-ray was taken and did not show any 
 
            unstable findings.  Dr. Trinity stated that the origin point 
 
            for most thrombi is somewhere between the groin and the 
 
            midcalf.  Dr. Trinity reiterated his opinion that decedent's 
 
            pulmonary embolism was not caused by his ankle fracture nor 
 
            was his preexisting condition materially or substantially 
 
            aggravated by it.  (ex. 47).
 
            
 
                 James D. Gohman, M.D., reported in a letter to 
 
            decedent's attorney that the autopsy demonstrated the 
 
            presence of a very large pulmonary embolus with complete 
 
            occlusion of the pulmonary trunk and main pulmonary 
 
            arteries.  He concluded that this caused Mr. Hyler's death.  
 
            He opined that, "It would appear to me that the fracture and 
 
            subsequent casting would be the event initiating the 
 
            thromboembolic phenomenon."  (ex. 11-1).  Dr. Gohman's 
 
            deposition was taken on December 16, 1993.  Dr. Gohman is a 
 
            specialtist in internal medicine.  He treated decedent in 
 
            the emergency room at Mary Greeley Medical Center the 
 
            morning of March 18, 1991.  He recommended that an autopsy 
 
            be performed in order to ascertain the cause of death.  He 
 
            did not perform the autopsy but received a copy of the 
 
            report.  The autopsy indicated pulmonary embolism, enlarged 
 
            heart and a history of pulmonary hemorrhages.  He defined a 
 
            pulmonary embolism as the passage of venous clot material 
 
            into the right side of the heart and into the lungs, 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            pulmonary vessels.  He testified that the clots embolize 
 
            into the pulmonary vessels and can block the circulation 
 
            through the lungs.  Embolization reduces the flow of blood 
 
            through the venous system and in decedent's case, the blood 
 
            clot stopped in the lung and produced a major obstruction to 
 
            the flow of blood through the lungs so that the blood could 
 
            no longer pick up oxygen to supply the body and death 
 
            occurred.  Dr. Gohman reiterated his opinion that decedent's 
 
            fracture treated with immobilization and casting caused the 
 
            embolus.  (ex. 44).  
 
            
 
                 Ronald K. Miller, an orthopedic surgeon, reported on 
 
            August 12, 1991, that the fracture, lack of normal motion, 
 
            because of the cast, and inactivity was a substantial 
 
            contributing factor to development of DVT (deep vein 
 
            thrombosis) in the ilio-inguinal area.  It was his opinion 
 
            that the fatal pulmonary emboli developed in decedent's calf 
 
            and that the fracture and subsequent soft tissue swelling 
 
            was the initial cause of his fatal pulmonary emboli.  (ex. 
 
            12).  Dr. Miller testified in a deposition taken on March 
 
            17, 1993.  After considering other factors offered by 
 
            defendants' attorney, Dr. Miller testified that there is a 
 
            reduced likelihood that the ankle fracture caused decedent's 
 
            death.  (ex. 43-30).  
 
            
 
                 On October 1, 1991, at the request of Attorney John M. 
 
            French, David W. Kable, M.D., reviewed decedent's medical 
 
            records.  Dr. Kable stated that the only precipitating 
 
            factor in decedent's acute pulmonary embolism was a history 
 
            of a fractured ankle with a casted leg for six weeks.  He 
 
            stated, "This is a well known predisposing factor to the 
 
            development of deep vein thrombosis in the legs.  At the 
 
            time of Mr. Hyler's death, a large amount of clot broke off 
 
            from the veins in the legs and traveled to his lungs, 
 
            causing almost instant death."  (ex. 13-2).  Dr. Kable 
 
            testified in a deposition on December 18, 1993.  Dr. Kable 
 
            is board certified in internal medicine and cardiology.  He 
 
            reiterated his opinion that decedent's ankle fracture and 
 
            subsequent casting and immobilization was in all likelihood 
 
            the major cause of the development of deep venous thrombosis 
 
            which subsequently led to pulmonary embolism.  (ex. 45-15).
 
            
 
                 On March 6, 1992, Timothy C. Fitzgibbons, M.D., 
 
            reviewed decedent's medical records.  He rendered an opinion 
 
            as to the cause of Mr. Hyler's death.  He attributed the 
 
            pulmonary embolism to the natural progression of preexisting 
 
            problems.  He stated that the ankle injury did not 
 
            materially aggravate or accelerate decedent's fatal 
 
            pulmonary embolism.  He offered the opinion that most 
 
            pulmonary emboli do not occur from the deep veins in the leg 
 
            but rather in the pelvic veins and there would be no reason 
 
            to expect decedent to develop clots in his deep pelvic veins 
 
            from his ankle injury.  He stated that the evidence does not 
 
            support any finding that decedent had complaints of swelling 
 
            or discomfort in his leg which would be consistent with a 
 
            deep vein thrombosis.  (ex. 10-2).  
 
            
 
                 Dr. Fitzgibbons also testified in a deposition taken on 
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            September 23, 1993.  Dr. Fitzgibbons testified that in his 
 
            opinion, the fracture of the lateral malleolus and 
 
            subsequent treatment with casting did not have a significant 
 
            effect and was not the cause of decedent's fatal pulmonary 
 
            embolism.  (ex. 41, pp. 23-24).  He agreed with Dr. Miller's 
 
            statement that most deep vein thromboses in the calf 
 
            generally stay in the calf.  However, he disagreed with his 
 
            opinion that the fracture caused decedent's pulmonary 
 
            embolism.  (ex. 41-25).  Dr. Fitzgibbons felt that decedent 
 
            had many risk factors which existed independent of any 
 
            trauma to his ankle and which would have made him 
 
            susceptible to development of a pulmonary embolism.  (ex. 
 
            41-59).
 
            
 
                 At the request of defendants' attorney, Michael H. 
 
            Sketch, Sr., M.D., professor of medicine and chief, division 
 
            of cardiology at Creighton University, reviewed decedent's 
 
            medical records.  After his review of the record, he stated 
 
            that within a reasonable degree of medical certainty 
 
            decedent's death was the result of a pulmonary embolus which 
 
            was in no way related to his ankle injury of January 13, 
 
            1991, nor was it materially aggravated or accelerated by 
 
            that injury.  (ex. 14, pp. 1-2).  Dr. Sketch testified in 
 
            depositions taken on January 13, 1994 and February 10, 1994.  
 
            Dr. Sketch testified that decedent's autopsy was incomplete 
 
            because it did not discern the origin of the massive clot 
 
            that resulted in his death.  In other words, the autopsy did 
 
            not locate the cause of or the origin of the pulmonary 
 
            embolism.  Dr. Sketch reiterated that, in his opinion, 
 
            decedent's ankle injury did not cause or materially 
 
            aggravate or accelerate the pulmonary embolism which 
 
            resulted in his death.  (ex. 46-11).  He stated that the 
 
            type of massive pulmonary emboli which resulted in 
 
            decedent's death originates in the large veins of the thigh 
 
            or in the pelvis.  The region is located above the knee.  
 
            Dr. Sketch testified that decedent had predisposing risk 
 
            factors for development of pulmonary emboli including 
 
            obesity, an enlarged heart and severe peripheral vascular 
 
            disease.  In addition, he had abnormal veins in his left leg 
 
            and the valves in the legs were incompetent.  In addition, 
 
            he had a history of deep vein thrombosis.  He stated that it 
 
            is extremely rare to see massive pulmonary embolus in 
 
            patient's who have walking casts.  Rather, it is seen with 
 
            immobilization such as full leg casts and complete bed rest.  
 
            (exs. 46 and 48).
 
            
 
                 The weight to be given any expert opinion is determined 
 
            by the finder of fact and may be effected 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, at 903 
 
            (Iowa 1974); Anderson, at 531 (Iowa 1974); Bodish, at 867 
 
            (Iowa 1965).  The greater weight of expert opinion does not 
 
            support claimant's contention that decedent's compensable 
 
            left ankle injury and subsequent medical treatment was the 
 
            proximate cause of a fatal pulmonary embolism which resulted 
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
            in his death.  In making this determination, the undersigned 
 
            has given considerable weight to claimant's treating 
 
            surgeon, Dr. Trinity and to the independent medical opinions 
 
            of Dr. Fitzgibbons and Dr. Sketch.  
 
            
 
                 Dr. Gohman testified that in forming his medical 
 
            opinion he relied entirely on the autopsy report.  (ex. 
 
            44-22).  He also admitted that he had no knowledge of 
 
            claimant's activities during the two-month period his leg 
 
            was in a cast and he was not totally cognizant of decedent's 
 
            past medical history.  (ex. 44, pp. 26-29).  Finally, Dr. 
 
            Gohman admitted that a more complete autopsy could have more 
 
            closely determined the source of the clot in question, 
 
            specifically if the dissection of the veins was performed a 
 
            better determination could have been made.  (ex. 44-44).  
 
            Therefore, Dr. Gohman's opinion is rejected.
 
            
 
                 Dr. Trinity and Dr. Sketch formed their medical opinion 
 
            based on the totality of the evidence, including claimant's 
 
            past medical history and predisposing risk factors.  
 
            
 
                 Dr. Sketch agreed with Dr. Gohman that the autopsy was 
 
            incomplete and did not demonstrate the origin of the clot.  
 
            (ex. 46-7).  He testified that Mr. Hyler died from a massive 
 
            pulmonary embolus.  He explained that these originate in the 
 
            large veins of the thigh or in the pelvis or the area above 
 
            the knee.  He emphatically stated that decedent's minor left 
 
            ankle fracture and subsequent treatment with casting did not 
 
            create a significant risk factor for development of 
 
            pulmonary emboli.  Instead, he felt that the massive 
 
            pulmonary embolism was the natural progression of decedent's 
 
            preexisting disease process and other significant risk 
 
            factors.  (ex. 46, pp. 11-22).  
 
            
 
                 The undersigned concludes that the greater weight of 
 
            the evidence supports the findings and medical opinion of 
 
            Dr. Michael Sketch.  A doctor's experience, expertise and 
 
            board certification may accord his testimony greater weight.  
 
            Reiland v. Palco, Inc., Thirty-second Biennial Report of 
 
            the Industrial Commissioner 56 (1975); Dickey v. ITT 
 
            Continental Baking Co., Thirty-fourth Biennial Report of the 
 
            Industrial Commissioner 89 (1979).  Accordingly, the 
 
            undersigned concludes that decedent's left ankle injury did 
 
            not hasten or cause his death.  Therefore, survivor's 
 
            benefits cannot be awarded to decedent's widow.  This 
 
            determination is dispositive of the entire case and further 
 
            analysis is unnecessary.
 
            
 
                                     ORDER
 
            
 
                 THEREFORE IT IS ORDERED:
 
            
 
                 That claimant shall take nothing from these 
 
            proceedings.
 
            
 
                 The costs of this action are assessed to defendants 
 
            pursuant to rule 343 IAC 4.33.  
 
            
 
     
 
            
 
            
 
            Page  11
 
            
 
            
 
            
 
            
 
                 Signed and filed this ________ day of May, 1994.
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          JEAN M. INGRASSIA
 
                                          DEPUTY INDUSTRIAL COMMISSIONER    
 
            
 
            Copies to:
 
            
 
            Mr. James E. Thorn
 
            Attorney at Law
 
            2nd Flr - Northwestern Bell Bldg
 
            310 Kanesville Blvd
 
            PO Box 398
 
            Council Bluffs, Iowa  51502
 
            
 
            Mr. M James Daly
 
            Attorney at Law
 
            PO Box 1828
 
            Sioux City, Iowa  51102
 
            
 
                 
 
            
 
 
            
 
            
 
            
 
            
 
                                               1805
 
                                               Filed May 2, 1994
 
                                               Jean M. Ingrassia
 
            
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ------------------------------------------------------------
 
            JANICE HYLER, Surviving  
 
            Spouse of EUGENE J HYLER,     
 
            Deceased, 
 
                      
 
                 Claimant, 
 
                      
 
            vs.       
 
                                                File No. 973135
 
            IOWA STATE EDUCATION ASSOC.
 
                                             A R B I T R A T I O N
 
                 Employer, 
 
                                                D E C I S I O N
 
            and       
 
                      
 
            CIGNA,    
 
                      
 
                 Insurance Carrier,  
 
                 Defendants.    
 
            ------------------------------------------------------------
 
           
 
            
 
            1805
 
            In a proceeding for death benefits decedent's spouse did not 
 
            prove by a preponderance of the evidence that decedent's 
 
            left ankle injury and subsequent treatment caused or 
 
            materially aggravated his preexisting condition so as to 
 
            result in a massive and fatal pulmonary embolism.
 
            
 
 
            
 
            
 
            
 
            
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ------------------------------------------------------------
 
            LARRY R PLAIN,                :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 973431
 
            JOHN MORRELL AND COMPANY,     :
 
                                          :  A R B I T R A T I O N
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            HOME INSURANCE COMPANY,       :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ------------------------------------------------------------
 
                              STATEMENT OF THE CASE
 
            
 
                 This is a proceeding in arbitration brought by Larry R. 
 
            Plain based upon a stipulated injury of December 19, 1990.  
 
            Claimant seeks additional compensation for healing period.  
 
            He contends that he is entitled to a running award.  In the 
 
            event that a running award is not awarded, he seeks a 
 
            determination of permanent partial disability.  Claimant 
 
            also seeks payment of medical expenses shown in exhibits B, 
 
            C and D and transportation expenses.  The rate of 
 
            compensation is in dispute based upon the number of 
 
            exemptions.  Claimant also seeks a penalty under the fourth 
 
            unnumbered paragraph of section 86.13.
 
            
 
                 The case was heard at Sioux City, Iowa, on November 18, 
 
            1993.  The record consists of testimony from Larry R. Plain 
 
            and Eugene Huls.  The record contains joint exhibits 1 
 
            through 62 and claimant's exhibits A through D.  
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 Larry Plain injured his back on or about December 19, 
 
            1990, while rolling carcasses as they came out of the 
 
            dehairing machine.  He received conservative care and on 
 
            December 27, 1990, was released to light duty.  (exhibits 4, 
 
            5 and 11).  Larry was off work again from January 11, 1991 
 
            until February 28, 1991.  (exs. 12-17).  Effective February 
 
            28, 1991, he resumed work with restrictions which consisted 
 
            of a ten-pound weight restriction, prohibition against 
 
            bending and stooping and a four-hour work day for one week 
 
            followed by a six-hour work day the second week.  On March 
 
            8, 1991, the six-hour work week was continued.  (exs. 
 
            17-18).  Larry continued to work with restrictions while 
 
            obtaining medical care until August 22, 1991, at which time 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            permanent restrictions were imposed.  (exs. 19-30).  Those 
 
            permanent restrictions were that he observe a 20-pound 
 
            weight restriction when lifting, pushing and pulling.  He 
 
            was to avoid repetitive twisting and stooping.  (ex. 31, 
 
            page 1).  
 
            
 
                 Throughout the course of the care Larry had received 
 
            physical therapy, prescription medications and an epidural 
 
            flood.  None of the treatment was particularly successful.  
 
            An MRI conducted on July 2, 1991, showed central and left 
 
            posterior extrusion of his L4-5 intervertebral disc.  
 
            Surgery was not, however, recommended.  (exs. 31, p. 3 and 
 
            37).  Earlier tests had shown a compression fracture of the 
 
            L4 vertebral body.  It cannot be determined whether or not 
 
            that fracture occurred on December 1990, but such an 
 
            occurrence on that date appears unlikely.  (exs. 7, p. 6; 8, 
 
            p. 6 and 31 p. 22).  
 
            
 
                 John Kuhnlein, D.O., one of claimant's predominant 
 
            treating physicians, rated his permanent impairment at 6 
 
            percent.  (ex. 32).  Ralph F. Reeder, M.D., a neurosurgeon 
 
            to whom claimant was referred, also rated claimant as having 
 
            a 6 percent permanent impairment.  Dr. Reeder went on to 
 
            say, "I would state that I feel that this work-related 
 
            injury has predisposed this patient for future possibilities 
 
            of frank disc herniation and sciatica and this must be kept 
 
            in mind over his working lifetime."  (ex. 44).  
 
            
 
                 In October 1991 claimant left Sioux City and went to 
 
            Terry, Mississippi.  According to claimant the work at John 
 
            Morrell was too stressful for his back.  He has also given 
 
            contradictory statements regarding why he chose to move to 
 
            Mississippi.
 
            
 
                 Claimant lived in Mississippi for several months and 
 
            held at least two different jobs before entering into a 
 
            course of medical care with William C. Warner, M.D., in 
 
            October 1992.  (ex. 47).  According to claimant he was 
 
            referred to Dr. Warner by the insurance carrier in this 
 
            case.  Claimant's testimony in that regard is accepted as 
 
            being correct since Dr. Warner's reports indicate that a 
 
            copy was sent to G.A.B. in Des Moines, Iowa.  (exs. 47 and 
 
            48).  In accordance with Dr. Warner's recommendation 
 
            claimant was then referred to Bernard S. Patrick, M.D., a 
 
            neurosurgeon.  According to Dr. Patrick he obtained 
 
            permission to treat claimant from Katie Eiler at G.A.B. in 
 
            Des Moines.  (ex. 52).  Dr. Patrick's reports indicate that 
 
            a copy was sent to G.A.B. and those reports which are in 
 
            evidence contain a stamp showing that they were received by 
 
            G.A.B. on March 15, 1993.  (exs. 49, 50, 51 and 56).  It is 
 
            found that Drs. Warner and Patrick are physicians who were 
 
            selected and designated to provide care by the defendants 
 
            and the care was expressly authorized by defendants.  
 
            
 
                 Claimant underwent diskectomy surgery on March 19, 
 
            1993.  (ex. 57).  He was released from active medical care 
 
            on October 19, 1993, at which time it was noted that he was 
 
            doing well, generally.  (ex. 55).  Dr. Patrick went on to 
 
            state that claimant was capable of performing light to 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            moderate work but that his recuperation was not complete and 
 
            was not anticipated to be complete until late spring or 
 
            early summer 1994.  Dr. Patrick also indicated that claimant 
 
            had a 25 percent impairment but that he expected it to 
 
            diminish to 10 percent by approximately April 1994 which was 
 
            when he anticipated claimant would reach full recovery.  
 
            (ex. 55).  
 
            
 
                 In evaluating this case is it noted the Larry R. Plain 
 
            has made a number of inconsistent statements on a number of 
 
            occasions.  His credibility is quite suspect, despite the 
 
            fact that Eugene Huls, the kill floor supervisor, indicated 
 
            that claimant was not a whiner or complainer and that if 
 
            claimant said his back was hurting that he would believe the 
 
            claimant.  Huls also established that rolling hogs is very 
 
            heavy work.  He characterized it as work for a young man.  
 
            Huls agreed that a person with back trouble would have 
 
            difficulty performing one of the jobs claimant was assigned 
 
            to perform when he was working on restricted duty.  
 
            
 
                 It is noted that the point of surgery was the same area 
 
            of the claimant's spine as that which Dr. Reeder had 
 
            previously found to be impaired.  Dr. Reeder's statements in 
 
            his August 22, 1991, report clearly indicate that there is a 
 
            causal connection between those continued problems and the 
 
            original work injury. 
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the alleged injury 
 
            actually occurred and that it arose out of and in the course 
 
            of employment.  McDowell v. Town of Clarksville, 241 N.W.2d 
 
            904 (Iowa 1976); Musselman v. Cent. Tel. Co., 261 Iowa 352, 
 
            154 N.W.2d 128 (1967).  The words "arising out of" refer to 
 
            the cause or source of the injury.  The words "in the course 
 
            of" refer to the time, place and circumstances of the 
 
            injury.  Sheerin v. Holin Co., 380 N.W.2d 415 (Iowa 1986); 
 
            McClure v. Union County, 188 N.W.2d 283 (Iowa 1971).
 
            
 
                 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 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            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).
 
            
 
                 There is every reason in the record of this case to 
 
            doubt the claimant's credibility in view of his inconsistent 
 
            statements.  His activities are not consistent with those of 
 
            a person who has a strong work ethic.  Nevertheless, his 
 
            complaints of continued pain while he remained working at 
 
            John Morrell and Company are corroborated by an objectively 
 
            identifiable physiological abnormality and by the testimony 
 
            from Eugene Huls.  It is found that Larry Plain did continue 
 
            to have symptoms which were a result of the injury in this 
 
            case while he remained working at John Morrell and Company.  
 
            Claimant has not, however, convinced the undersigned that 
 
            those symptoms were so severe as to cause him to need to 
 
            leave the employment.
 
            
 
                 Claimant was employed while in Mississippi.  He 
 
            undoubtedly engaged in other activities which do not appear 
 
            in the record in this case.  There was certainly ample 
 
            opportunity for him to sustain additional injury and there 
 
            is no practical way in which defendants could ever disprove 
 
            claimant's statement that denied any intervening injury.  
 
            The record shows that claimant is not reluctant to fabricate 
 
            when it serves his purposes.  The nontestimonial evidence in 
 
            this case is quite strong, however, in support of his claim.  
 
            Namely, the evidence shown on the MRI scans and the evidence 
 
            provided by Drs. Reeder and Patrick.  It is important that 
 
            the identical area of claimant's spine was treated on both 
 
            occasions.  That evidence is sufficiently strong to prove, 
 
            by a preponderance of the evidence, that the December 19, 
 
            1990 injury was a substantial factor in producing the need 
 
            for the surgery that claimant underwent on March 19, 1993.  
 
            Accordingly, claimant has carried his burden of proving 
 
            proximate cause for that surgery and the related period of 
 
            recuperation.  
 
            
 
                 Further, as discussed in detail later in this decision, 
 
            defendants are equitably estopped from denying payment for 
 
            care they expressly authorized and directed.
 
            
 
                 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 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. Kubli, 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 was working in Sioux City, Iowa, and also 
 
            worked in the state of Mississippi.  It was not until March 
 
            15, 1993, that he entered into aggressive care which led to 
 
            the surgery of March 19, 1993.  It is therefore concluded 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            that the healing period resumes effective March 15, 1993.
 
            
 
                 At the time of hearing none of the three events 
 
            provided by the healing period statute had occurred to 
 
            terminate the healing period entitlement.  Claimant was in a 
 
            recuperative status.  He had not returned to work.  This 
 
            employer had not offered to rehire him.  He was not 
 
            medically capable of returning to work substantially similar 
 
            to that in which he was engaged at the time of injury.  He 
 
            had not achieved maximum medical improvement.  Accordingly, 
 
            claimant is entitled to a running award of healing period.  
 
            As indicated by Dr. Patrick, it is expected that the healing 
 
            period will end by attainment of maximum medical improvement 
 
            on or about April 1, 1994.  This is only, however, a 
 
            projection.  
 
            
 
                 The employer shall furnish reasonable surgical, 
 
            medical, dental, osteopathic, chiropractic, podiatric, 
 
            physical rehabilitation, nursing, ambulance and hospital 
 
            services and supplies for all conditions compensable under 
 
            the workers' compensation law.  The employer shall also 
 
            allow reasonable and necessary transportation expenses 
 
            incurred for those services.  The employer has the right to 
 
            choose the provider of care, except where the employer has 
 
            denied liability for the injury.  Section 85.27.  Holbert v. 
 
            Townsend Engineering Co., Thirty-second Biennial Report of 
 
            the Industrial Commissioner 78 (Review-reopen 1975).
 
            
 
                 With regard to the medical expenses incurred by 
 
            claimant as shown at exhibits B, C and D, defendants dispute 
 
            causal connection and the reasonableness of the charges.  It 
 
            is well established that when an employer exercises the 
 
            right to control the care, that the employer is liable to 
 
            pay for the costs of the care it authorized.  Blankenship v. 
 
            Smithway Motor Express, file number 798884 (App. Dec. May 
 
            20, 1989); Butcher v. Valley Sheet Metal, IV Industrial 
 
            Commissioner Report 49 (App. Dec. 1983); Munden v. Bil Mar 
 
            Foods of Iowa, Inc., file number 800797 (Arb. Dec. June 22, 
 
            1989); Pote v. Mickow Corp., file number 694639 
 
            (review-reopening decision June 17, 1986); Schofield v. W. 
 
            A. Klinger, Inc., file number 531753 (review-reopening 
 
            decision December 28, 1984).  Simply stated, when an 
 
            employer chooses the physician, the employer cannot then 
 
            hold the employee accountable for ascertaining that the 
 
            charges from that physician are reasonable or that the care 
 
            provided by that physician is reasonable.  Defendants have a 
 
            statutory duty to provide prompt, reasonable care.  
 
            Defendants are in control under those circumstances and 
 
            cannot, after the fact, seek to escape liability for the 
 
            results of their action.  
 
            
 
                 Equitable estoppel applies in workers' compensation 
 
            proceedings.  Paviglio v. Firestone Tire and Rubber Co., 167 
 
            N.W.2d 636 (Iowa 1969); Mousel v. Bituminous Material and 
 
            Supply Co., 169 N.W.2d 763 (Iowa 1969); Secrest v. Galloway, 
 
            239 Iowa 168 (1948).  A false representation is anything 
 
            which produces upon the mind a false impression conducive to 
 
            action.  Dierking v. Bellas Hess Super Store, 258 N.W.2d 312 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            (Iowa 1977).  In accordance with past dealings and the Iowa 
 
            workers' compensation law when the employer directed 
 
            claimant to obtain care from Drs. Warner and Patrick the 
 
            employer impliedly represented to claimant that they would 
 
            pay the costs incurred in that care.  It was certainly 
 
            reasonable for claimant to rely upon that representation and 
 
            cooperate with the care which had been provided by 
 
            defendants.  Accordingly, where an employer or its insurance 
 
            carrier exercises its right to control the care and direct 
 
            the employee to a particular physician, those defendants are 
 
            then responsible for payment of the charges incurred by the 
 
            employee with that physician.  They cannot choose the care 
 
            and then later argue that the care they chose was 
 
            unreasonable or that the charges from the provider they 
 
            selected are unreasonable.
 
            
 
                 Defendants could have simply denied claimant's request 
 
            to seek other care and denied liability for further care.  
 
            If they had done so, claimant would certainly have the 
 
            burden of proving the reasonableness of the care, proximate 
 
            cause and reasonableness of the charges.  Claimant could 
 
            have then obtained care from any source which was available 
 
            to him.  The right to chose care which the Iowa law provides 
 
            to employers carries with it responsibilities.  Those 
 
            responsibilities include providing reasonable and prompt 
 
            care.  It also includes responsibility to pay for the care 
 
            that the employer directs.  Accordingly, claimant is 
 
            entitled to recover his medical expenses as set forth in 
 
            exhibits B, C and D.  Claimant is also entitled to recover 
 
            his mileage expenses as set forth in claimant's exhibit A.  
 
            At $.21 per mile, the amount is $102.90.  
 
            Industrial disability or loss of earning capacity is a 
 
            concept that is quite similar to impairment of earning 
 
            capacity, an element of damage in a tort case.  Impairment 
 
            of physical capacity creates an inference of lessened 
 
            earning capacity.  The basic element to be determined, 
 
            however, is the reduction in value of the general earning 
 
            capacity of the person, rather than the loss of wages or 
 
            earnings in a specific occupation.  Post-injury earnings 
 
            create a presumption of earning capacity.  The earnings are 
 
            not synonymous with earning capacity and the presumption may 
 
            be rebutted by evidence showing the earnings to be an 
 
            unreliable indicator.  Bearce v. FMC Corp., 465 N.W.2d 531 
 
            (Iowa 1991); DeWall v. Prentice, 224 N.W.2d 428, 435 (Iowa 
 
            1974); Carradus v. Lange, 203 N.W.2d 565 (Iowa 1973); 
 
            Holmquist v. Volkswagon of America, Inc., 261 N.W.2d 516 
 
            (Iowa App. 1977) A.L.R.3d 143; Michael v. Harrison County, 
 
            Thirty-fourth Biennial Report of the Industrial Commissioner 
 
            218 (1979); 2 Larson Workmen's Compensation Law, sections 
 
            57.21 and 57.31.
 
            
 
                 Permanent partial disability compensation is payable at 
 
            the end of the healing period.  Healing period can be 
 
            intermittent and when that situation occurs the permanent 
 
            partial disability compensation is payable at times when 
 
            healing period is not being paid.  Teel, 394 N.W.2d 405 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            (Iowa 1986).  From the record it is not absolutely clear 
 
            when claimant's initial period of recuperation ended.  It 
 
            appears that claimant had worked reduced hours until May 17, 
 
            1991, at which time Dr. Kuhnlein allowed claimant to work 
 
            eight hours per day, albeit with activity restrictions.  
 
            When claimant was working reduced hours he as in a temporary 
 
            partial disability status.  Accordingly, the permanent 
 
            partial disability compensation is payable commencing May 
 
            18, 1991.  (ex. 31, p. 12).
 
            
 
                 Claimant had physical restrictions when he last worked 
 
            at John Morrell & Company.  It is expected that he will 
 
            continue to have physical restrictions when his recuperation 
 
            from surgery is completed.  According to Dr. Patrick, those 
 
            restrictions should be no more restrictive than those that 
 
            were in effect at the time claimant left John Morrell and 
 
            Company.  In fact, his condition will likely be better than 
 
            it was when he left employment with John Morrell and 
 
            Company.  It is sometimes difficult to differentiate 
 
            speculation and a valid medical prognosis.  In this case, 
 
            claimant's recovery was sufficiently far along when he was 
 
            last seen by Dr. Patrick to render Dr. Patrick's expectation 
 
            of ultimate recovery a medical prognosis based upon 
 
            probability rather than mere speculation.  Accordingly, it 
 
            is appropriate to assess the degree of permanent disability 
 
            at this time rather than to conduct another proceeding.
 
            
 
                 It is determined that when all material factors of 
 
            industrial disability are considered, that Larry R. Plain 
 
            has a 25 percent permanent partial disability as a result of 
 
            the injury in this case.  This entitles him to recover 125 
 
            weeks of permanent partial disability compensation from May 
 
            18, 1991 through March 14, 1993, a span of 95 2/7 weeks.  
 
            Accordingly, claimant will be entitled to recovery an 
 
            additional 29 5/7 weeks of permanent partial disability 
 
            compensation when the current healing period ends.
 
            
 
                 The only remaining issue in this case is the claimant's 
 
            marital status and number of exemptions to be used in 
 
            computing his rate of compensation.  From the testimony 
 
            given at hearing it is clear that claimant was single.  
 
            There is no indication that he was married in December 1990.  
 
            Claimant's 1989 income tax returns show three children being 
 
            claimed as income tax dependents.  It should be noted that 
 
            it is income tax exemption status which section 85.61(6) 
 
            uses to determine the rate.  Keeling v. Cedar Rapids Comm. 
 
            School, file number 891809 (App. Dec. February 26, 1993).  
 
            According to claimant's testimony at hearing, claimant was 
 
            living with his fianc,e, Charlene Deal, at the time of his 
 
            injury together with her five children, three of which are 
 
            his children.  The three identified by claimant as being his 
 
            children were Larry Plain, Jr., born July 24, 1990; Takitya 
 
            Plain, born October 5, 1989 and Charletta Plain, born 
 
            November 30, 1988.  Accordingly to claimant he also has 
 
            another son, Demarius Plain, who lives at Waterloo, Iowa, 
 
            and for whom claimant has been adjudicated as father and 
 
            ordered to pay support.  It is noted that claimant did claim 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            Demarius as an exemption on his 1988 income tax return.  
 
            Dependency leading to an exemption for purposes of 
 
            withholding taxes under Iowa Code section 85.61(6) and (9) 
 
            is determined by the rules and regulations of the Internal 
 
            Revenue Service.  In the absence of any evidence to the 
 
            contrary, it is presumed that a parent supports his children 
 
            in accordance with applicable support orders.  It is 
 
            likewise presumed that a parent is entitled to claim those 
 
            children that he supports as exemptions on tax returns, in 
 
            the absence of evidence to the contrary.  Biggs v. Charles 
 
            Donner, d/b/a Donner Trucking, Fort Dodge, II Iowa 
 
            Industrial Commissioner Report 34 (App. Dec. 1982).  
 
            Accordingly, under the record made in this case, Larry Plain 
 
            is entitled to himself and four children as exemptions.  His 
 
            rate should therefore be computed with him being single with 
 
            five exemptions.  With stipulated earnings of $405.73 per 
 
            week, his rate of compensation is $265.16 per week.  
 
            Claimant's 1990 income tax return would be of the greatest 
 
            significance but it was not entered into evidence.
 
            
 
                 It is determined that defendants' position in this case 
 
            was not unreasonable.  Accordingly a penalty will not be 
 
            assessed.
 
            
 
                                      ORDER
 
            
 
                 IT IS THEREFORE ORDERED that defendants pay Larry Plain 
 
            thirty-five and four-sevenths (35 4/7) weeks of compensation 
 
            for healing period at the rate of two hundred sixty-five and 
 
            16/100 dollars ($265.16) per week payable commencing March 
 
            15, 1993.  Defendants shall continue to pay healing period 
 
            until the healing period is terminated by one of the three 
 
            events provided by law.  
 
            
 
                 It is further ordered that defendants pay Larry Plain 
 
            one hundred twenty-five (125) weeks of compensation for 
 
            permanent partial disability at the rate of two hundred 
 
            sixty-five and 16/100 dollars ($265.16) per week with 
 
            ninety-five and two-sevenths (95 2/7) weeks thereof 
 
            commencing May 18, 1991, and with the remaining twenty-nine 
 
            and five-sevenths (29 5/7) weeks thereof to be paid 
 
            commencing at the end of the currently ongoing healing 
 
            period.
 
            
 
                 It is further ordered that defendants recompute 
 
            claimant's previous workers' compensation entitlements and 
 
            adjust the same to provide for payment at the rate of two 
 
            hundred sixty-five and 16/100 dollars ($265.16) per week.
 
            
 
                 It is further ordered that defendants pay interest on 
 
            all past due and accrued amounts at the rate provided in 
 
            section 85.30 of the Code.
 
            
 
                 It is further ordered that defendants pay the following 
 
            medical expenses:
 
                 St. Dominique Hospital              $4,983.75
 
                 Bernard S. Patrick, M.D.             4,015.00
 
                 Curtis W. Kaine, M.D.                  650.00
 
            It is further ordered that defendants pay Larry R. Plain 
 
            travel expenses in the amount of one hundred two and 90/100 
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            dollars ($102.90).
 
            
 
                 It is further ordered that defendants pay the costs of 
 
            this action pursuant to rule 343 IAC 4.33.
 
            
 
                 It is further ordered that defendants file claim 
 
            activity reports as requested by this agency pursuant to 
 
            rule 343 IAC 3.1.
 
            
 
     
 
            
 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
            Signed and filed this __________ day of February, 1994.
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          MICHAEL G. TRIER
 
                                          DEPUTY INDUSTRIAL COMMISSIONER    
 
            
 
            Copies to:
 
            
 
            Mr. Joe Cosgrove
 
            Attorney at Law
 
            505 5th St, STE 400
 
            Sioux City, Iowa  51101
 
            
 
            Ms. Judith Ann Higgs
 
            Attorney at Law
 
            701 Pierce St, STE 200
 
            PO Box 3086
 
            Sioux City, Iowa  51102
 
            
 
            
 
 
            
 
            
 
            
 
            
 
                                          1803 3700 1402.40 2101 2501 
 
                                          1802 3002 1108.50
 
                                          Filed February 14, 1994
 
                                          Michael G. Trier
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ------------------------------------------------------------
 
            LARRY R PLAIN,                :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 973431
 
            JOHN MORRELL AND COMPANY,     :
 
                                          :  A R B I T R A T I O N
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            HOME INSURANCE COMPANY,       :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ------------------------------------------------------------
 
            2101 2501
 
            Defendants held to be estopped from contesting 
 
            reasonableness of care, reasonableness of charges and 
 
            causation with regard to care provided by the expressly 
 
            authorized physician to whom they directed claimant.
 
            
 
            1802
 
            Healing period not terminated by restricted release to 
 
            return to work where claimant did not return to work, was 
 
            not capable of performing similar work, was still improving 
 
            medically, and employer did not offer restricted work.
 
            
 
            3002
 
            Rate exemptions.  All biological children are presumed to be 
 
            exemptions unless evidence shows the parent to not be 
 
            entitled to the child as an income tax exemption.
 
            
 
            1108.50
 
            MRI showing same lesion at time of subsequent surgery as had 
 
            been found earlier when conservative care was rendered 
 
            relied upon to establish causation.
 
            
 
            1803 3700 1402.40
 
            Claimant was sufficiently close to end of healing period 
 
            that the physician's prognosis was a probability rather than 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            speculation.  Twenty-five percent permanent partial 
 
            disability awarded.