BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            MARILYN GILES,                :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 979227
 
            DES MOINES GOLF & COUNTRY     :
 
            CLUB,                         :
 
                                          :  A R B I T R A T I O N
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            U S F & G,                    :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This is a proceeding in arbitration brought by Marilyn 
 
            Giles, claimant, against Des Moines Golf and Country Club, 
 
            employer, and U S F & G, insurance carrier, defendants, to 
 
            recover benefits under the Iowa Workers' Compensation Act as 
 
            a result of an injury sustained on September 16, 1990.  This 
 
            matter came on for hearing before the undersigned deputy 
 
            industrial commissioner on June 18, 1992, in Des Moines, 
 
            Iowa.  The record was considered fully submitted at the 
 
            close of the hearing.  The claimant was present and 
 
            testified.  Also present and testifying was Donald Giles, 
 
            claimant's husband.  The documentary evidence identified in 
 
            the record consists of joint exhibits 1 through 7 and 9 
 
            through 13 and claimant's exhibit 8.
 
            
 
                                      ISSUES
 
            
 
                 Pursuant to the prehearing report and order dated June 
 
            18, 1992, the parties have presented the following issues 
 
            for resolution:
 
            
 
                 1.  Whether claimant sustained an injury on September 
 
            16, 1990, which arose out of and in the course of employment 
 
            with employer;
 
            
 
                 2.  Whether the alleged injury was the cause of 
 
            temporary and permanent disability;
 
            
 
                 3.  The extent of entitlement to weekly compensation 
 
            for temporary total disability or healing period benefits, 
 
            if defendants are liable for the injury;
 
            
 
                 4.  The extent of entitlement to weekly compensation 
 
            for permanent disability, if defendants are liable for the 
 
            injury; and
 
            
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
                 5.  Whether claimant is entitled to medical expenses 
 
            under Iowa Code section 85.27.
 
            
 
                                 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:
 
            
 
                 Claimant was born on January 9, 1943, and graduated 
 
            from high school in 1961.  Claimant's work history is 
 
            primarily in the food service industry as a bakery/deli 
 
            manager, waitress, salad maker, and cook.  Her highest rate 
 
            of pay was $8 an hour when she worked for employer from 
 
            December 1989 to September 1990.  Claimant testified that on 
 
            Sunday, September 16, 1990, while working in employer's 
 
            kitchen and preparing the evening salad bar, she slipped and 
 
            fell on salad oil and strained her low back.  That evening 
 
            she went to Iowa Methodist Hospital's emergency room and was 
 
            given some muscle relaxants.  She saw S. Bunge, M.D., her 
 
            treating physician, on September 19, 1990.  He provided no 
 
            treatment and returned her to work with a 10-pound lifting 
 
            restriction.  Claimant testified that she reported to work 
 
            at 6 a.m. on September 20, 1990, and was expected to perform 
 
            duties contrary to her medical restrictions.  During the 
 
            course of the day, her low back pain became so severe that 
 
            she quit her job.  Claimant was off work until May 1991 when 
 
            she was hired by The Women's Club at Hoyt Sherman as a 
 
            banquet server.  She worked between 20-25 hours per week and 
 
            earned $5 an hour.  She worked there until October 1991 when 
 
            she and her husband moved to the state of Minnesota.  
 
            Claimant has not worked since October 1991.  She has filed 
 
            an application for social security disability benefits.  
 
            
 
                 The medical evidence of record reveals that claimant's 
 
            medical history is significant for back problems.  On April 
 
            28, 1973, she was diagnosed with a herniated disc at L4-5 
 
            and underwent lumbar laminectomy at Fairview-Southdale 
 
            Hospital in Edina, Minnesota (exhibit 13, page 184).  On 
 
            December 18, 1974, claimant was diagnosed with a herniated 
 
            nucleus pulposus at L4-5, on the right.  Surgery was 
 
            performed by Dr. Chiu at Mount Carmel East Hospital in 
 
            Columbus, Ohio (ex. 13, p. 162).  Claimant was treated for 
 
            recurrent low back symptoms with epideral injections and 
 
            manipulations in 1977 and 1978 (ex. 13, pp. 163 & 165).  
 
            
 
                 Claimant came under the care of Steven G. Bunge, M.D., 
 
            on September 19, 1983.  She initially presented with 
 
            complaints of headaches.  Other office visits were for 
 
            various aches and pains.  In June 1985 she underwent a CAT 
 
            scan and chemistry profile which was normal.  A referral was 
 
            made by Dr. Bunge to Thomas A. Carlstrom, M.D., neurologist, 
 
            for evaluation on July 16, 1985.  He found no neurologic 
 
            abnormalities and diagnosed myofascial neck symptoms.  
 
            During a July 2, 1990, visit, claimant was still complaining 
 
            of severe headaches in the cervical neck region (ex. 13, pp. 
 
            1-89 & 107-160).
 
            
 
                 Claimant presented to Dr. Bunge on August 24, 1990, 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            with complaints of mid-thoracic back pain, discomfort in the 
 
            right hip, right knee, and right leg area.  She related 
 
            these symptoms to frequent lifting of 50 pounds at work.  
 
            Dr. Bunge diagnosed myofascial strain and restricted 
 
            claimant to lifting no more than 10 pounds (ex. 2, p. 8).  
 
            On September 5, 1990, she presented with complaints of 
 
            continuing lower back pain without radiation into her right 
 
            lower leg and right lower thoracic pain.  A return visit on 
 
            September 19, 1990, brought complaints of increased 
 
            tenderness in the low back region.  Dr. Bunge indicated that 
 
            she may return to work but should avoid lifting more than 10 
 
            pounds.  On September 21, 1990, claimant reported to Dr. 
 
            Bunge that her back hurt so much that she had to quit her 
 
            job.  Because of continuing complaints, Dr. Bunge referred 
 
            her to the low back institute for evaluation (ex. 2, pp. 1 & 
 
            6-9).
 
            
 
                 Claimant was seen by Dr. Carlstrom at Iowa Methodist 
 
            Low Back Institute on October 4, 1990.  He reported that his 
 
            examination was consistent with myofascial pain disorder 
 
            with diffuse paravertebral tenderness and slightly 
 
            diminished range of motion of her back.  Surgical 
 
            intervention was deemed unnecessary (ex. 4, p. 2).
 
            
 
                 It appears from the record that claimant received no 
 
            medical treatment until January 19, 1991.  At this time, she 
 
            presented to Dr. Bunge with complaints of pain in the low 
 
            thoracic region and intermittent headaches.  She also 
 
            complained of some tenderness in her right breast.  On March 
 
            6, 1991, she presented for a follow-up examination.  At this 
 
            time, she was having less neck and low back discomfort and 
 
            her condition appeared significantly improved.  On May 2, 
 
            1991, she reported a decrease in headaches and a much 
 
            improved back condition (ex. 2, pp. 3-4).
 
            
 
                 Dr. Bunge last saw claimant on September 9, 1991.  At 
 
            that time, she reported that she was working 40 hours per 
 
            week in two part-time jobs.  She was decorating cakes in one 
 
            job and doing some cooking preparation work in the other.  
 
            Neither job required a significant amount of lifting (ex. 2, 
 
            p. 5).
 
            
 
                 On August 20, 1991, claimant was referred by her 
 
            attorney to Ronald C. Evans, D.C., chiropractic orthopedist, 
 
            for evaluation.  A radiographic examination was performed 
 
            and revealed Grade I and II spondylosis at L4-L5, L5-S1 
 
            (post-surgical).  It was his opinion that claimant, as a 
 
            result of a work-related trauma on September 16, 1990, 
 
            sustained moderate to severe lumbosacral sprain complicated 
 
            by prior discectomies at L4-L5 and L5-S1 (ex. 5).
 
            
 
                 Dr. Bunge testified in a deposition on February 18, 
 
            1992.  He opined that claimant's fall in September 1990 
 
            probably aggravated her preexisting back condition.  He 
 
            stated that claimant reached maximum medical improvement 
 
            between three and six months after her initial injury.  Dr. 
 
            Bunge also stated that claimant's 10-pound lifting 
 
            restriction has not changed from 1984 to the present.  He 
 
            indicated that the fall in 1991 constituted a temporary 
 
            aggravation of her low back condition.   When he last saw 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            her in September 1991, she had no complaints about her low 
 
            back (ex. 3).
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                 Claimant has the burden of proving by a preponderance 
 
            of the evidence that she received an injury on September 16, 
 
            1990, which arose out of and in the course of her 
 
            employment. McDowell v. Town of Clarksville, 241 N.W.2d 904, 
 
            908 (Iowa 1976); Musselman v. Central Telephone Co., 154 
 
            N.W.2d 128, 130 (Iowa 1967).  The words "arising out of" 
 
            have been interpreted to refer to the cause and origin of 
 
            the injury.  McClure v. Union County, 188 N.W.2d 283, 287 
 
            (Iowa 1971);   Crowe v. DeSoto Consolidated School District, 
 
            68 N.W.2d 63, 65 (Iowa 1955).  The words "in the course of" 
 
            refer to the time, place and circumstances of the injury.  
 
            McClure, 188 N.W.2d at 287; Crowe, 68 N.W.2d at 65.  An 
 
            injury occurs in the course of the employment when it is 
 
            within the period of employment at a place the employee may 
 
            reasonably be, and while the employee is doing work assigned 
 
            by the employer or something incidental to it.  Cedar Rapids 
 
            Community School District v. Cady, 278 N.W.2d 298, 299 (Iowa 
 
            1979), McClure 188 N.W.2d at 287; Musselman, 154 N.W.2d at 
 
            130. 
 
            
 
                 The supreme court has defined a personal injury for the 
 
            purposes of workers' compensation cases.  Almquist v. 
 
            Shenandoah Nurseries, 254 N.W. 35, 38 (Iowa 1934).  In this 
 
            case the court found that a personal injury, is an injury to 
 
            the body, the impairment of health, or a disease, not 
 
            excluded by the Workers Compensation Act, which comes about, 
 
            not through the natural building up and tearing down of the 
 
            human body, but because of a traumatic or other hurt or 
 
            damage to the health or body of an employee.  The injury to 
 
            the human body must be something, whether an accident or 
 
            not, that acts extraneously to the natural processes of 
 
            nature, and thereby impairs the health, overcomes, injures, 
 
            interrupts, or destroys some function of the body, or 
 
            otherwise damages or injures a part or all of the body.  
 
            
 
                 While a claimant is not entitled to compensation for 
 
            the results of a preexisting injury or disease, its mere 
 
            existence at the time of a subsequent injury is not a 
 
            defense.  Rose v. John Deere Ottumwa Works, 247 Iowa 900, 76 
 
            N.W.2d 756 (1956).  If the claimant had a preexisting 
 
            condition or disability that is materially aggravated, 
 
            accelerated, worsened or lighted up so that it results in 
 
            disability, claimant is entitled to recover.  Nicks v. 
 
            Davenport Produce Co., 254 Iowa 130, 115 N.W.2d 812 (1962); 
 
            Yeager v. Firestone Tire & Rubber Co., 253 Iowa 369, 112 
 
            N.W.2d 299 (1961).
 
            
 
                 The greater weight of the evidence supports the finding 
 
            that on September 16, 1990, claimant slipped and fell while 
 
            performing work-related duties with employer.  She was 
 
            treated at Iowa Methodist Medical Center emergency room that 
 
            same day.  Her complaints were referable to left knee and 
 
            hip pain as well as lower back pain radiating into the left 
 
            buttock (ex. 1).  Although the incident was not witnessed, 
 
            James Murray, claimant's supervisor at the time, testified 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            in a deposition on May 7, 1992, that he learned of the 
 
            incident the day it happened and he wrote up an accident 
 
            report.  He testified that he had no reason to disbelieve 
 
            claimant that she slipped and fell while at work (ex. 7).  
 
            Accordingly, claimant has met her burden of proof that she 
 
            sustained an injury on September 16, 1990, which arose out 
 
            of and in the course of employment with employer.
 
            
 
                 Since claimant has suffered an injury, the next 
 
            question to be resolved is whether the injury has caused a 
 
            permanent disability.  The claimant has the burden of 
 
            proving by a preponderance of the evidence that the injury 
 
            of September 16, 1990, is causally related to the disability 
 
            on which she now bases her claim.  Bodish v. Fischer, Inc., 
 
            133 N.W.2d 867, 868 (Iowa 1965);  Lindahl v. L. O. Boggs, 18 
 
            N.W.2d 607, 613-14 (Iowa 1945).  A possibility is 
 
            insufficient; a probability is necessary.  Burt v. John 
 
            Deere Waterloo Tractor Works, 73 N.W.2d 732, 738 (Iowa 
 
            1955).  The question of causal connection is essentially 
 
            within the domain of expert testimony.  Bradshaw v. Iowa 
 
            Methodist Hospital, 101 N.W.2d 167, 171 (Iowa 1960).  Expert 
 
            medical evidence must be considered with all other evidence 
 
            introduced bearing on the causal connection.  Burt, 73 
 
            N.W.2d at 738.  The opinion of the experts need not be 
 
            couched in definite, positive or unequivocal language.  
 
            Sondag v. Ferris Hardware, 220 N.W.2d 903, 907 (Iowa 1974).  
 
            Moreover, the expert opinion may be accepted or rejected, in 
 
            whole or in part, by the trier of fact.  Sondag, 220 N.W.2d 
 
            at 907.  Finally, 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 
 
            material circumstances.  Bodish, 133 N.W.2d at 870; 
 
            Musselman, 154 N.W.2d at 133.  The supreme court has also 
 
            observed that greater deference is ordinarily accorded 
 
            expert testimony where the opinion necessarily rests on 
 
            medical expertise.  Sondag, 220 N.W.2d at 907.
 
            
 
                 The greater weight of the evidence in this case 
 
            supports the finding that claimant suffered a temporary 
 
            aggravation of a preexisting back condition.  Emergency care 
 
            at Iowa Methodist was provided by Dr. Peterson.  He 
 
            prescribed medication and discharged her home ambulatory 
 
            (ex. 1, p. 3).  On September 19, 1990, claimant was released 
 
            to return to work by Dr. Bunge with the admonition not to 
 
            lift more than 10 pounds.  This restriction had been 
 
            previously imposed by Dr. Bunge prior to the September 16, 
 
            1990, incident because of her chronic neck problems and 
 
            previous low back problems (ex. 3, p. 19).  Claimant 
 
            returned to work on September 19, 1990, and submitted a 
 
            notice of resignation effective September 20, 1990 (ex. 12, 
 
            p. 29).  Claimant testified that she was advised by Dr. 
 
            Bunge to quit work, however, a clinical note dated September 
 
            21, 1990, states that "Marilyn reports that her back hurt 
 
            too much at work and she had to quit her job yesterday." 
 
            (ex. 2, p. 6).  
 
            
 
                 Dr. Bunge testified that claimant incurred a temporary 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            aggravation of her preexisting back condition when she fell 
 
            on September 16, 1990 (ex. 3, pp. 20-21).  He also stated 
 
            that "I believe she probably had worsening lower back 
 
            symptoms for probably six months after the fall,..." (ex. 3, 
 
            p. 21).  He reiterated that claimant had a "temporary 
 
            aggravation" despite the fact that the AMA Guides at Roman 
 
            II(B) assigned a 5 percent impairment rating.  He further 
 
            stated "I don't understand how they can say it's a permanent 
 
            injury if it goes away in six months." (ex. 3, p. 23).  Dr. 
 
            Carlstrom concurred with Dr. Bunge's opinion and reported on 
 
            October 17, 1990, that he saw claimant earlier in the month 
 
            for complaints of myofascial headaches, back and neck pain.  
 
            "She complained of this discomfort since a fall about one 
 
            month ago, and, at this point, I don't think she will be 
 
            considered to have a permanent impairment." (ex. 4, p. 3).
 
            
 
                 Accordingly, claimant has not met her burden of proof 
 
            as to entitlement to permanent partial disability benefits.
 
            
 
                 Claimant bears the burden of proof as to entitlement to 
 
            temporary total disability benefits.  "Temporary total 
 
            disability does not necessarily contemplate that all 
 
            residuals from an injury must be completely healed and 
 
            returned to normal.  It is only when the evidence shows that 
 
            because of the effects of the injury gainful employment 
 
            cannot be pursued."  McDonald v. Wilson Foods Corp., 
 
            Thirty-fourth Biennial Report of the Industrial Commissioner 
 
            199 (App. Dec. 1979).
 
            
 
                 The most appropriate end to the temporary total 
 
            disability period should coincide with the termination of 
 
            active treatment of the work injury.  Montez v. Heinz USA, 
 
            II-2 State of Iowa Industrial Commissioner Decisions 661, 
 
            664 (1985).  
 
            
 
                 "`Active treatment' is a vigorous form of medical or 
 
            surgical treatment aiming at an immediate cure."  Schmidt's 
 
            Attorney Dictionary of Medicine.
 
            
 
                 It is determined that claimant proved entitlement to 
 
            temporary total disability benefits from September 16, 1990 
 
            through September 19, 1990, when she was released to return 
 
            to work by her treating physician.  There is no evidence in 
 
            the record that claimant underwent a vigorous form of 
 
            medical or surgical treatment after this date.  Continued 
 
            visits to physicians without recommendations for active 
 
            medical treatment will not extend temporary total disability 
 
            benefits.  Howard v. Whitehall Transportation, file number 
 
            779866 (App. Dec. May 14, 1991).  Although Dr. Bunge felt, 
 
            based on claimant's subjective symptoms, that she should be 
 
            evaluated at the Low Back Institute, Dr. Carlstrom did not 
 
            recommend surgery or any other form of medical treatment on 
 
            October 4, 1990 (ex. 4, p. 2).  
 
            
 
                 Compensation for temporary total disability benefits 
 
            begins on the fourth day of disability with respect to 
 
            injuries that do not result in permanent partial disability.  
 
            Iowa Code section 85.32.  Claimant is not entitled to 
 
            benefits for the first three days of lost time.  Claimant 
 
            testified that she was off work on September 17, 18 and 19.  
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            On September 19, Dr. Bunge released her to return to work 
 
            with the same restrictions she had prior to the injury.  
 
            Claimant testified that she reported for work on September 
 
            20, 1990, but felt that her severe pain interfered with her 
 
            ability to perform her work duties and she was forced to 
 
            quit.  The record contains a handwritten note from claimant, 
 
            dated September 19, 1990, resigning effective September 20, 
 
            1990.  A postscript states, "I'm sorry but I came in my low 
 
            back hurt so I'm going to go back home." (ex. 12, p. 29).  
 
            Claimant alleges that she was taken off work by Dr. Bunge.  
 
            However, the record does not support claimant's allegations 
 
            in this regard.  Dr. Bunge's office notes indicate he was 
 
            informed by claimant that she had decided to take herself 
 
            off work due to low back pain.  Claimant has not sustained 
 
            her burden of proving that she was authorized to be off work 
 
            by any physician.  Therefore, claimant is not eligible to 
 
            receive temporary total disability benefits.  
 
            
 
                 The next issue to be determined is whether claimant is 
 
            entitled to medical benefits under Iowa Code section 85.27.
 
            
 
                 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).
 
            
 
                 Employer has denied liability for claimant's injury 
 
            throughout the processing of this claim.  Claimant's claim 
 
            has been determined to be compensable under chapter 85.  
 
            Therefore, defendants shall pay to claimant all reasonable 
 
            and necessary medical and transportation expenses incurred 
 
            during the course of treatment for her work-related injury.  
 
            
 
                                      ORDER
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 That defendants pay all medical and mileage expenses 
 
            incurred by claimant for treatment of her work-related 
 
            injury on September 16, 1990.  
 
            
 
                 That defendants pay all costs pursuant to rule 343 IAC 
 
            4.33.
 
            
 
                 That defendants file claim activity reports as required 
 
            by the agency.
 
            
 
                 Signed and filed this ____ day of July, 1992.
 
            
 
            
 
            
 
            
 
                                          ______________________________
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
                                          JEAN M. INGRASSIA
 
                                          DEPUTY INDUSTRIAL COMMISSIONER    
 
            
 
            Copies to:
 
            
 
            Mr. Barry Moranville
 
            Attorney at Law
 
            1601 22nd St, STE 212
 
            West Des Moines, Iowa  50265
 
            
 
            Ms. Iris Post
 
            Attorney at Law
 
            2222 Grand Ave
 
            Des Moines, Iowa  50306
 
            
 
                 
 
            
 
 
         
 
 
 
 
 
         
 
                                                51100 1803 52500
 
                                                Filed July 10, 1992
 
                                                Jean M. Ingrassia
 
 
 
                   BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         ____________________________________________________________
 
                   
 
         MARILYN GILES, 
 
                   
 
              Claimant, 
 
                   
 
         vs.       
 
                                                File No. 979227
 
         DES MOINES GOLF & COUNTRY     
 
         CLUB,     
 
                                           A R B I T R A T I O N
 
              Employer, 
 
                                               D E C I S I O N
 
         and       
 
                   
 
         U S F & G,     
 
                   
 
              Insurance Carrier,  
 
              Defendants.    
 
         ___________________________________________________________
 
         
 
         5-1100
 
         Claimant proved by a preponderance of the evidence that she 
 
         sustained a work-related injury on September 16, 1990.
 
         
 
         1801
 
         Claimant was off three days due to her work-related injury.  She 
 
         was released by her treating physician to return to work on the 
 
         third day.  She returned to work on September 20, 1990, and 
 
         voluntarily submitted a notice of resignation.  Claimant contends 
 
         that she was taken off work by her physician.  The record does 
 
         not support this contention.  Continued visits to physicians 
 
         without recommendations for active medical treatment will not 
 
         extend temporary total disability benefits.  Howard v. Whitehall 
 
         Transportation, file number 779866 (App. Dec. May 14, 1991).  
 
         Claimant not eligible for temporary total disability benefits.  
 
         Iowa Code section 85.32.
 
         
 
         5-2500
 
         The employer has to the right to choose the provider of care, 
 
         except where employer has denied liability for the injury.  Iowa 
 
         Code section 85.27; Holbert v. Townsend Engineering Co., 
 
         Thirty-second Biennial Report of the Industrial Commissioner 78 
 
         (Review-reopen 1975).
 
         Claimant entitled to reasonable and necessary medical and 
 
         transportation medical expenses incurred during the course of 
 
         treatment for her work-related injury.
 
         
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
                                          51802 51401 51402.40 51803 
 
                                          4001 4000.1 4001.2 2906
 
                                          Filed April 23, 1991
 
                                          Walter R. McManus, Jr.
 
            
 
                           before the iowa industrial 
 
                                   commissioner
 
            ____________________________________________________________
 
                                          :
 
            CLINT MORRISON,               :
 
                                          :
 
                 Claimant,                : File Nos. 843176 
 
                                          :           979253
 
                                          :           979254
 
            vs.                           :
 
                                          :    A R B I T R A T I O N
 
                                          :
 
            CITY OF AMES,                 :      D E C I S I O N
 
                                          :
 
                 Employer,                :
 
                 Self-Insured,            :
 
                 Defendant.               :
 
            ___________________________________________________________
 
            
 
            51802
 
            Claimant awarded healing period benefits for two periods of 
 
            temporary disability based on the evidence from (1) 
 
            claimant's testimony; (2) company records; and (3) the sole 
 
            treating physician.
 
            
 
            51401 51402.40
 
            Claimant had three different injuries on three different 
 
            injury dates from lifting three different patients.  The 
 
            sole treating physician said all three incidents contributed 
 
            to his surgery and resulting disability.  The permanent 
 
            partial disability and credit against it were allocated 
 
            one-third to each injury since no specific allocation 
 
            percentage was given by the physician, even though the 
 
            physician said the last injury caused the surgery.
 
            
 
            51803
 
            Claimant, age 34 when injured, was foreclosed from his 
 
            highly skilled and highly paid job as a paramedic.  He had 
 
            two lumbar laminectomies.  Doctor first awarded 12 percent 
 
            permanent impairment and later raised it to 19 percent.  
 
            Defendant's doctor awarded 10 percent permanent functional 
 
            impairment.  Both doctors limited lifting to no more than 50 
 
            pounds at most.  Claimant's doctor required a change of 
 
            positions while working.  Claimant still had an unstable 
 
            back which required a body cast and later a full-time form 
 
            fitting body brace.  Iowa State Vocational rehabilitation 
 
            counsellor recommended college and claimant attended one 
 
            year, getting very high grades in school, until he ran out 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            of money.  Claimant awarded 55 percent industrial 
 
            disability.
 
            
 
            4001 4000.1 4001.2
 
            Claimant was awarded 50 percent penalty benefits for 
 
            four-month period after defendant terminated healing period 
 
            benefits and did not begin permanent partial disability 
 
            benefits after an impairment rating was given.  There was 
 
            some evidence defendant was trying to force a settlement on 
 
            claimant.
 
            Claimant was awarded a second period of 50 percent penalty 
 
            benefits for 40 weeks for only paying claimant the 
 
            impairment rating when claimant was obviously entitled to 
 
            far more for industrial disability after two lumbar 
 
            laminectomies, resulting unstable back, foreclosed from 
 
            performing as a paramedic and projections of up to 50 
 
            percent of actual wage loss.  Also, claimant chose to attend 
 
            college based on recommendation of the Iowa State 
 
            Rehabilitation counsellor that the treating physician 
 
            recommended to claimant and college is costly.
 
            
 
            2906
 
            Defendant ordered to file two additional first reports of 
 
            injury (Iowa Code section 86.11) and also submit form 2a's 
 
            showing benefits paid prior to hearing which they had failed 
 
            to do as of time of hearing.  Rule 343 IAC 3.1.
 
            Claimant's motion to amend the petition to conform to the 
 
            proof neither granted or denied because deputies determine 
 
            all issues raised by the evidence within the issues 
 
            designated on the hearing assignment order.  Defendant's 
 
            contention that the statute of limitations had run on the 
 
            latter two injuries was groundless because defendant had 
 
            treated all three injuries as one and were fully prepared to 
 
            defend the action based on the evidence presented.
 
            Defendant employer made an ex parte communication, but the 
 
            deputy declined to impose any sanction on account of it.  
 
            Likewise, deputy declined to recuse himself from writing the 
 
            decision because defendant should not be allowed to use its 
 
            own misconduct to obtain a change of deputy.
 
            
 
 
            
 
            
 
            
 
            
 
            
 
            
 
                   BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            KATHY L. LONG,                :
 
                                          :
 
                 Claimant,                :
 
                                          :      File No. 979258
 
            vs.                           :
 
                                          :
 
            K-MART CORPORATION,           :
 
                                          :    A R B I T R A T I O N
 
                 Employer,                :
 
                 Self-Insured,            :       D E C I S I O N
 
                 Defendant.               :
 
                                          :
 
            ___________________________________________________________
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This matter came on for hearing on July 20, 1992, in 
 
            Storm Lake, Iowa.  The claimant seeks permanent partial 
 
            disability benefits as a result of an alleged injury 
 
            occurring on August 10, 1989.  The evidence consists of the 
 
            testimony of the claimant; claimant's exhibits 1 through 21 
 
            (exhibit 22 was marked but not offered); and, defendants' 
 
            exhibit 1, pages 1 through 181.
 
            
 
                                      ISSUES
 
            
 
                 The issues for resolution are;
 
            
 
                 1.  Whether claimant's temporary or permanent 
 
            disability is causally related to her August 10, 1989 
 
            injury;
 
            
 
                 2.  The extent of claimant's permanent disability and 
 
            entitlement to disability benefits;
 
            
 
                 3.  Whether claimant is entitled to medical benefits 
 
            under Iowa Code section 85.27.  The issue is causal 
 
            connection and authorization and involves a $1,640.88 
 
            chiropractic bill, a $88.31 hospital bill and a $291.71 drug 
 
            bill.
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 The undersigned having read all the evidence and heard 
 
            the testimony, find that:
 
            
 
                 Claimant is 31 years old.  She did not graduate from 
 
            high school or obtain a GED.  She has had one plus year at 
 
            the Iowa Lakes Community College in a criminal justice 
 
            program learning to be a police officer.  She also received 
 
            a cosmetologist degree and license to be a cosmetologist in 
 
            California.  Claimant testified she does not practice 
 
            cosmetology and did not work for anyone but did do something 
 
            at home for awhile.
 
            
 
                 Claimant related her other work history which involved 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            working in a restaurant, Hardee's, Super Valu, and worked 
 
            herself up to manager of Happy Dog fast food restaurant in 
 
            California at $6.00 plus per hour.
 
            
 
                 Claimant moved to Iowa approximately three years ago 
 
            and began working at K-Mart in July 1989, beginning at $3.75 
 
            per hour as a part-time worker working approximately 35 
 
            hours or less per week.  Claimant related that she actually 
 
            worked sometimes more than 35 hours but was still not 
 
            considered full time.  Claimant testified she had no health 
 
            problems prior to beginning work in 1989 for defendant.
 
            
 
                 Claimant related her work duties and how she was 
 
            injured on August 10, 1989.  Basically, claimant's injury 
 
            occurred when an oversized truck bed tool box storage chest, 
 
            estimated to weigh 80 pounds, was tossed from an upper 
 
            storage area in the store down to another person who was 
 
            standing ready to catch the chest.  Claimant was standing 
 
            nearby and the throw was off course and hit claimant on the 
 
            head.  Claimant said that no one broke the fall of the chest 
 
            and it knocked her forward causing her to become dizzy.  She 
 
            indicated she saw little stars, her vision was blurred and 
 
            she felt funny.
 
            
 
                 Claimant was near the end of her shift that day.  
 
            Claimant indicated she did not report this incident at first 
 
            as plenty of people saw it.  Claimant later went to Rex J. 
 
            Jones, D.C. to get checked out as her neck was stiff.  
 
            Claimant indicated that when she went to Dr. Jones she was 
 
            asked as to whether defendant knew she was coming.  Claimant 
 
            related "no" and so subsequently the claimant told Laurie at 
 
            K-Mart.  Claimant said that at first K-Mart said nothing as 
 
            to any particular doctor she should go to so she continued 
 
            to go to Dr. Jones.  Claimant eventually went to David 
 
            Robison, D.O., in family practice, around August 21, 1989.  
 
            Defendant apparently had arranged for this doctor to see 
 
            claimant earlier and she missed her first appointment as she 
 
            did not know the appointment had been made and the doctor 
 
            called her.  Claimant stated that Dr. Robison told her he 
 
            saw no reason why she couldn't continue to see Dr. Jones as 
 
            the services he was performing would be similar to the 
 
            physical therapy that he would recommend.  Eventually, the 
 
            defendant wrote a letter to claimant on October 16, 1989, 
 
            indicating she should no longer go to Dr. Jones as he was 
 
            not authorized and that she should only go to Dr. Robison.  
 
            Claimant indicated she continued to see Dr. Jones as he was 
 
            helping her and she had the impression that Dr. Robison 
 
            okayed this.
 
            
 
                 Claimant testified that she gave notice to defendant 
 
            approximately two weeks before her injury that she was going 
 
            to leave for another job.
 
            
 
                 Claimant never missed any work with defendant and upon 
 
            leaving approximately two days or so after August 10, 1989, 
 
            she began work on the night shift at Super Valu.  Claimant 
 
            described her job at Super Valu as a light duty job.
 
            
 
                 Claimant testified she quit her job in the spring of 
 
            1991 at Super Valu after a dispute with her boss.   At the 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            time, she was making $5.30 per hour.  Claimant next worked 
 
            for approximately a month at the Taco House and then began 
 
            working on March 3, 1991 at Casey's.  Claimant said she did 
 
            not tell Casey management of her physical problems as she 
 
            didn't think they would hire her.  She described her duties 
 
            at Casey's as physical labor, cleaning, unloading trucks, 
 
            and stocking shelves.  She began at approximately $4.50 per 
 
            hour and at the time of her deposition in August 1991, she 
 
            was making $4.75 (Def. Ex. 1, p. 43).  She is still working 
 
            at Casey's.
 
            
 
                 Claimant related the medical problems she was having 
 
            pursuant to her August 10, 1989 injury.  These involved 
 
            pain, neck spasms, particularly when she would be doing 
 
            certain activities or working at certain types of jobs.
 
            
 
                 Claimant related an incident on July 13, 1991, when she 
 
            went to the hospital after she had been unloading a large 
 
            truck of products at Casey's.  She indicated that night she 
 
            had spasms in her neck and back and that she hurt very much.  
 
            She indicated she got out of bed the next day and her neck 
 
            popped.  She couldn't move her neck and went to the hospital 
 
            emergency room.  She indicated she returned to Dr. Jones for 
 
            continued treatments.
 
            
 
                 Claimant related her headaches started after unloading 
 
            the truck.  They also would start when she would do 
 
            housework such as waxing floors.  Claimant testified that 
 
            the spasms oftentimes lasted two days and sometimes would 
 
            last as long as four days.  Claimant contends she is limited 
 
            in her ability to turn her head left and right or up and 
 
            down without discomfort.  She indicated the pain is at the 
 
            base of the skull of her neck.
 
            
 
                 Claimant related that the spasms occurred even when she 
 
            was doing nothing that would otherwise cause spasms.
 
            
 
                 Claimant related she had no other injuries since August 
 
            10, 1989 other than an auto accident.  It is obvious to the 
 
            undersigned that this was insignificant and has no bearing 
 
            on this case and therefore will not be set out in any more 
 
            detail.
 
            
 
                 Claimant related the fact that a company, Stylecraft, 
 
            which makes furniture, was hiring 400 people locally in the 
 
            area beginning at $6.00 per hour.  Claimant said she applied 
 
            for this job and was hired but did not accept the job as she 
 
            believes she could not handle it because of the various 
 
            things involved such as pushing and pulling, etc.
 
            
 
                 Rex J. Jones, D.C., testified through his deposition on 
 
            May 7, 1992 (Claimant's Exhibit 18).  The doctor related 
 
            claimant's history and diagnosis.  He diagnosed claimant 
 
            when he saw her first on August 10, 1992, that she had a 
 
            post-traumatic cervicalgia, basically severe headache, 
 
            cervical muscle spasm, occipital neuralgia, mild fasciitis 
 
            and subscapular neuralgia.  The doctor causally connected 
 
            claimant's condition to her August 10, 1989 injury and also 
 
            opined that claimant's injuries were permanent in nature 
 
            (Cl. Ex. 18, pp. 7-9).  The doctor said he is also familiar 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            with Dr. Robison's records and diagnoses when he saw 
 
            claimant first on August 21, 1989.  He indicated he thought 
 
            Dr. Robison's findings were consistent with the findings 
 
            that he made.  At the time of his deposition testimony, the 
 
            doctor believed that claimant would have some ongoing 
 
            problems such as recurring headache problems and aggravation 
 
            of her condition of her mid and upper back and the muscles 
 
            in her neck when she lifts or aggravates it.  The doctor 
 
            testified that he rated claimant as 10 percent permanent 
 
            partial impairment in February 1990, and on the newer Guides 
 
            that took in the soft tissue injury ratings, he then opined 
 
            claimant had a 20 percent whole person impairment on August 
 
            2, 1990.  He causally connected this impairment to claimant 
 
            August 10, 1989 injury (Cl. Ex 18, pp. 14-17).
 
            
 
                 The doctor indicated that with his experience with the 
 
            type of injury claimant has that she will continue to 
 
            develop trigger points in the muscle that are usually 
 
            permanent.  He described trigger points as those areas in 
 
            the muscle that were damaged and the muscle heals with scar 
 
            tissue and the muscle is not as elastic and doesn't have the 
 
            stretch and flexibility that it once had (Cl. Ex. 18, pp. 
 
            20, 21).  The doctor indicated that if claimant has periodic 
 
            exacerbations, they could be the result of residuals from 
 
            claimant's injury.
 
            
 
                 The doctor agreed that there was no significant change 
 
            in terms of claimant's symptoms, range of motion and 
 
            complaints between the first impairment rating in February 
 
            of 1990 and the second impairment rating in April of 1992.  
 
            He indicated the real change came in the revision of the AMA 
 
            Guides, third edition, where they became more specific with 
 
            a particular type of injury that claimant incurred and the 
 
            doctor indicated he could more clearly rate what was 
 
            actually happening with a patient under these revisions (Cl. 
 
            Ex. 18, pp. 25, 26).
 
            
 
                 Dr. Jones did not impose any limitations on claimant 
 
            nor does he know of any other medical writer writing any 
 
            weight or lifting limitations.  Dr. Jones indicated that he 
 
            is reluctant to impose limitations as he wants an individual 
 
            to put out as much as they can and get by with it.  He 
 
            thinks this is the only way he can get them back to full 
 
            function (Cl. Ex. 18, p. 28).
 
            
 
                 The doctor acknowledged that he received a copy of the 
 
            letter dated October 16, 1989, indicating that he was no 
 
            longer the company authorized medical care provider.  Dr. 
 
            Jones also acknowledged that he did not have anything in his 
 
            record indicating that the claimant was further referred to 
 
            him for treatment after that date by any other company 
 
            doctor or defendant.
 
            
 
                 The doctor indicated that he last saw claimant on April 
 
            2, 1992, for evaluation and prior to that he had not seen 
 
            claimant since July 1991 until December 1991, as far as 
 
            treatment relating to workers' compensation.  He indicated 
 
            he did see claimant for three visits in August when she had 
 
            an automobile accident.  He indicated that accident wasn't 
 
            much and the claimant wasn't really hurt (Cl. Ex. 18, pp. 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            35, 36).  The doctor indicated that the July 13, 1991 
 
            incident resulted from claimant having a severe episode and 
 
            ended up in the emergency room of the hospital.  He 
 
            indicated she was having muscle spasms and headaches.
 
            
 
                 David Robison, D.O., is certified in family practice.  
 
            He testified through his deposition on May 7, 1992.  He 
 
            first saw claimant on August 21, 1989, for what he 
 
            understood to be a work-related injury at K-Mart.  The 
 
            doctor acknowledged that when the claimant first came in to 
 
            see him on August 21, 1989, she told him that she had 
 
            already seen a chiropractor approximately four days before.  
 
            Dr. Robison thought the clinic he was with was the company 
 
            authorized doctor for K-Mart but he wasn't absolutely sure.  
 
            He indicated it was not unusual for corporations to refer 
 
            people to chiropractors prior to seeking a medical doctor's 
 
            opinion.
 
            
 
                 Dr. Robison indicated that since claimant had already 
 
            seen Dr. Jones, the chiropractor, and according to his 
 
            notes, she was getting some relief from Dr. Jones' 
 
            treatment, and since on his examination he found that 
 
            claimant had some evidence of a cervical strain with muscle 
 
            spasms secondary to her injury, he felt that claimant could 
 
            continue as far as he was concerned with the chiropractor 
 
            since it was benefiting her.  He indicated that he then 
 
            expected her to go back to Dr. Jones as long as she 
 
            continued to progress and if she didn't get better, she 
 
            should return to him for further treatment (Cl. Ex. 17, pp. 
 
            8-10).
 
            
 
                 Dr. Robison said he did not see claimant again until 
 
            April 3, 1990, but understood that the company had made an 
 
            appointment for her for an evaluation on February 19, but K-
 
            Mart had not notified claimant of that appointment.
 
            
 
                 Dr. Robison said did not know or have any information 
 
            that claimant was no longer to see Dr. Jones, the 
 
            chiropractor (Cl. Ex. 17, p. 11).
 
            
 
                 Dr. Robison said he did not place any restrictions or 
 
            limitations on the claimant and he did not know that 
 
            claimant had switched employment.  The doctor acknowledged 
 
            that he did prescribe some medicine for the claimant and 
 
            that when he saw her back on April 9, 1990, she was still 
 
            having a lot of spasms and tenderness in her upper back and 
 
            he did recommend that she continue chiropractic therapy 
 
            which was helping her on an aggressive physical program.  He 
 
            did not think at that time it was necessary to warrant an 
 
            orthopedic referral (Cl. Ex. 17, p. 16).  Although Dr. 
 
            Robison indicated that at one time he determined a 10 
 
            percent impairment to claimant's body as a whole, he 
 
            emphasized that he does not do impairment ratings and is not 
 
            trained to do them and that his 10 percent is strictly his 
 
            opinion and a guess.  He further indicated that it would be 
 
            fair to say that the deputy who may hear this case should 
 
            not rely upon his 10 percent opinion.  He, likewise, was not 
 
            able to determine when claimant reached maximum medical 
 
            recovery because he hadn't seen her that much and her 
 
            appointments were so far apart (Cl. Ex. 17, p. 22).
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            
 
                 The doctor also understood that the motor vehicle 
 
            accident claimant had in August 1991 was not much of an 
 
            accident from what he heard from Dr. Jones.
 
            
 
                 Dr. Robison acknowledged that based on the examination 
 
            of claimant on August 21, 1989, he did send a report to 
 
            defendant indicating that claimant had a cervical muscle 
 
            strain with muscle spasms secondary to trauma (Cl. Ex. 17, 
 
            p. 28).
 
            
 
                 The doctor explained what can or cannot cause 
 
            claimant's headaches, namely, it is a complicated area with 
 
            many nerves, muscles and ligaments and an irritation to the 
 
            occipital nerve in the area could cause or explain 
 
            claimant's headaches.  He also indicated that this is an 
 
            area where it is hard to objectively determine the cause or 
 
            whether there is actual headaches and one relies on 
 
            subjective complaints of the patient.
 
            
 
                 The doctor could not determine whether claimant would 
 
            have these headaches in the future as he has not seen the 
 
            claimant that much or seen her in follow-up but he assumed 
 
            since claimant has had this injury this long and still has 
 
            the complaints one could assume that claimant would continue 
 
            to have problems.  He also indicated that future 
 
            chiropractic care or physical therapy of some type would be 
 
            beneficial to claimant with the injuries she has (Cl. Ex. 
 
            17, p. 32).
 
            
 
                 The doctor did acknowledge that on his April 9, 1990 
 
            visit that he objectively observed tenderness of claimant's 
 
            cervical strap muscles, particularly posteriorly along the 
 
            sternocleidomastoid muscles.  These are muscles that go from 
 
            the sternum to the clavicle to the back and the mastoid 
 
            which are on the base of the skull posteriorly.  He said 
 
            claimant on that day was tender along the trapezius 
 
            bilaterally which is the large muscle in the back that goes 
 
            up the back of the neck to the base of the skull and down 
 
            from the base of the skull in a trapezoid or a diamond 
 
            pattern, then to the base of the skull bilaterally out to 
 
            the corners of the shoulders and then down the small of the 
 
            back (Cl. Ex. 17, pp. 34, 35).
 
            
 
                 There are some medical reports or records which will 
 
            not necessarily be referred to in that the two doctors 
 
            involved, Dr. Jones and Dr. Robison referred to their 
 
            various reports and records in their deposition testimony.
 
            
 
                 Claimant's exhibits 6 is Dr. Jones' February 8, 1990 
 
            impairment rating to the whole body of 10 percent.
 
            
 
                 Claimant's exhibit 9 is a letter from Dr. Robison to 
 
            defendant employer.  This letter touches on the issue of 
 
            authorized care as to the chiropractic treatment being given 
 
            to claimant.  In this letter, the doctor indicates that as 
 
            long as claimant is improving or getting relief from 
 
            chiropractic treatment, he suspects she has not reached her 
 
            maximum medical improvement.  He also seems to indicate that 
 
            since she has had her problems for approximately eight 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            months, she may have a permanent impairment rating.  The 
 
            undersigned believes this letter gives credence to the fact 
 
            that the authorized physician, Dr. Robison, is acknowledging 
 
            continued treatment by the chiropractor and as he indicated 
 
            in his deposition testimony, he thought the treatment she 
 
            was getting from the chiropractor would be similar or the 
 
            same as what she would get if he prescribed physical therapy 
 
            and therefore did not prescribe physical therapy.
 
            
 
                 Claimant's exhibit 10 is the April 7, 1992 letter of 
 
            Dr. Jones who examined claimant on April 2, 1992 for an 
 
            impairment rating requested by claimant's attorney.  In this 
 
            letter, the doctor opined claimant had a final whole person 
 
            impairment of 20 percent.
 
            
 
                 Claimant's exhibit 13 is a January 13, 1991 record of a 
 
            Spencer Municipal Hospital admission in which the diagnosis 
 
            was muscle spasm in the neck.  The hospital bill for this 
 
            visit was $88.31 and is in dispute.  Defendant contends this 
 
            bill and treatment is not causally connected to any August 
 
            1989 injury and was from some other cause.  The evidence 
 
            does not show there is another injury and it seems to be the 
 
            result of an exacerbation of her August 1989 injury.  
 
            Therefore, the undersigned finds the hospitalization is the 
 
            result of that August 1989 injury and, likewise, the bill 
 
            should be paid by defendant.
 
            
 
                 Claimant's exhibit 15 is the chiropractic bill of Dr. 
 
            Jones in which the stipulated balance of $1,640.80 is still 
 
            owed.  Defendant's exhibit 1, page 97, is an October 16, 
 
            1989 letter from K-Mart to claimant, a copy of which was 
 
            sent to Dr. Jones in which they indicate that no further 
 
            chiropractic care will be covered under the workers' 
 
            compensation benefits and that Dr. Jones' services are not 
 
            authorized by this office.  The undersigned touched upon 
 
            this area earlier.  Notwithstanding this letter on which 
 
            defendant relies heavily as proving that Dr. Jones was not 
 
            authorized and therefore the amount of the bill is in 
 
            dispute for services rendered since around that date and are 
 
            not authorized, this does not eliminate or overcome the fact 
 
            that Dr. Robison in his testimony and his records okayed, 
 
            authorized, acknowledged or acquiesced in the type of 
 
            treatment that Dr. Jones was giving.  It is very clear from 
 
            the record that had claimant not been getting treatment from 
 
            the chiropractor which was a form of physical therapy as far 
 
            as Dr. Robison is concerned, he would have prescribed the 
 
            same but was satisfied basically with what Dr. Jones was 
 
            doing.
 
            
 
                 It is obvious  from hearing the testimony and the 
 
            positions of the parties that defendant is irritated because  
 
            the claimant was working such a short period of time for 
 
            defendant.  Claimant began work July 20, 1989 and was 
 
            allegedly injured on August 10, 1989, and her last day of 
 
            work was August 13, 1989.  Claimant left the employment not 
 
            because of her injury as she had already approximately two 
 
            weeks previously given notice to K-Mart that she was going 
 
            to quit for another job.  To the defendant, the overall 
 
            factual situation looks suspicious because of the time 
 
            frames referred to above.
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            
 
                 Healing period or temporary total disability is not an 
 
            issue as claimant did not miss work because of the August 
 
            10, 1989 injury.
 
            
 
                 The undersigned finds that claimant was injured on 
 
            August 10, 1989, while working at K-Mart.  The medical 
 
            evidence shows that claimant's complaints are mostly at this 
 
            current time subjective and yet there is evidence that there 
 
            was injury and muscle spasms and that these have occurred 
 
            off and on.  Dr. Robison has observed some of these.  
 
            Although Dr. Robison was clear that much of claimant's 
 
            complaints are subjective and it is hard to make a specific 
 
            determination as to whether they are real or not, the 
 
            undersigned believes that there is sufficient evidence 
 
            taking everything as a whole that claimant is still having 
 
            some problems and that her August 10, 1989 injury has 
 
            resulted in claimant having a chronic condition resulting 
 
            therefrom which results in claimant having problems, 
 
            particularly when she does certain activities.  Dr. Jones 
 
            also opines that claimant has a permanent impairment as a 
 
            result of the August 10, 1989 injury.  There is no dispute 
 
            that claimant incurred an injury that arose out of and in 
 
            the course of her employment on August 10, 1989.  The 
 
            dispute basically is to whether claimant has any permanent 
 
            disability and the extent of such permanent disability.  The 
 
            undersigned finds that the greater weight of medical 
 
            evidence and testimony supports the fact that claimant did 
 
            incur a work-related injury on August 10, 1989, that has 
 
            caused claimant to suffer her current problems and has 
 
            resulted in a current impairment.
 
            
 
                 The undersigned believes that the extent of claimant's 
 
            current problems are not as extreme as the claimant wants 
 
            the undersigned or others to believe.
 
            
 
                 Claimant's employment and basically has been in the 
 
            area of word processing, cashiering, and working in fast 
 
            food restaurants or service type stores, stocking shelves, 
 
            cleaning and servicing customers.  Her income has been 
 
            minimal and beginning around or a little above the minimum 
 
            wage with some increases through periodic raises or 
 
            promotions.  Her salary or hourly wage at the time of 
 
            leaving K-Mart was $4.00 per hour.  She was hired at $3.75 
 
            per hour (Def. 1, p. 141).  She was working on a part-time 
 
            basis.  At the time claimant was working at Super Valu, in 
 
            which she was terminated around February 1991, claimant was 
 
            making $5.00 per hour and when she began at Casey's in March 
 
            1991, she was making $4.75 per hour.  While working at the 
 
            Happy Dog restaurant in California around October 1979 to 
 
            September 1985, her salary ranged from $3.55 to $6.00 per 
 
            hour at which time she and quit to go to cosmetology school.
 
            
 
                 Dr. Jones ultimately opined up to a 20 percent 
 
            permanent impairment after having originally opined a 10 
 
            percent permanent impairment.  He explained his reason for 
 
            revising his original rating.  Dr. Robison was reluctant to 
 
            opine any percentage as he does not do that and does not 
 
            have the expertise or experience but seemed to indicate that 
 
            if he had to, it would be around 10 percent.  It is obvious 
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            from his reply that he did not want anyone to rely upon it.  
 
            It is also clear from his evidence that he believes claimant 
 
            has a permanent impairment even though at the present time 
 
            it is mainly subjective.  As indicated earlier, he believes 
 
            that considering the nature of the injury and other factors, 
 
            claimant is suffering at least to some extent in that her 
 
            injury has caused a chronic condition that would have healed 
 
            by now and not having healed leaves him to opine there is a 
 
            permanent injury.
 
            
 
                 There are no restrictions placed on the claimant by 
 
            either doctor even though Dr. Jones seemed to indicate that 
 
            he does not place restrictions unless absolutely necessary 
 
            as that tends to hold the patient back from attempting and 
 
            trying to work through their problem.
 
            
 
                 There is no evidence of a loss of income.  In fact, 
 
            claimant is making more now than she was making when she 
 
            left K-Mart.  She was making $4.00 approximately at K-Mart 
 
            and now is making $5.15.  It appears she is working full 
 
            time now and appears to be receiving other benefits wherein 
 
            at K-Mart she was part-time and did not receive other 
 
            benefits.
 
            
 
                 Claimant is young, 31 years of age, and in addition to 
 
            her high school education attended one year at a community 
 
            college in the criminal justice field.  It appears she would 
 
            like to continue in this field.  She does have a cosmetology 
 
            degree but does not seem to want to pursue that.
 
            
 
                 Taking into consideration claimant's age, her prior 
 
            medical and work history, her education, location and 
 
            severity of her injury, motivation, the fact that she had no 
 
            healing period, has lost no work, impairment, lack of 
 
            restrictions, no loss of income, and all the other criteria 
 
            used in determining industrial disability, the undersigned 
 
            finds that claimant has incurred a 7 percent industrial 
 
            disability.  The benefits are to begin August 10, 1989.
 
            
 
                 Claimant contends that the chiropractor bill with a 
 
            balance of $1,640.88, should be paid by defendant.  
 
            Defendant contends it was not authorized and not causally 
 
            connected.  Based on the prior comments concerning causal 
 
            connection, the undersigned finds that the chiropractor 
 
            bill, the $88.31 hospital bill, and the $299.71 drug bill 
 
            are causally connected to claimant's August 10, 1989 injury 
 
            and were incurred as a result of that work injury.  As far 
 
            as authorization, the undersigned finds that Dr. Robison, 
 
            the company doctor, would have recommended claimant have 
 
            physical therapy but clearly further indicated that since 
 
            she was going to the chiropractor she should continue to do 
 
            so as he felt she was getting the therapy (chiropractic 
 
            treatment) and was receiving the same effect as any physical 
 
            therapy he would prescribe, which would be with someone 
 
            other than a chiropractor.  Notwithstanding the letter 
 
            defendant wrote to claimant indicating the chiropractor was 
 
            not authorized, the undersigned finds the evidence is clear 
 
            that Dr. Robison, who was an authorized doctor, clearly gave 
 
            indication and the impression to claimant to continue.  It 
 
            is also obvious that the doctor thought some treatment, 
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
            physical therapy or chiropractic treatment, was necessary to 
 
            help claimant with her medical condition caused by the 
 
            August 10, 1989 injury.  The undersigned therefore finds 
 
            that defendant shall pay the chiropractor bill, hospital 
 
            bill and drug bill.
 
            
 
                 The undersigned would call attention to the parties 
 
            that there was unnecessary or duplicated pages or exhibits 
 
            in this record.  As an example but not necessarily limited 
 
            thereto is the fact that in defendant's exhibit 1, pages 
 
            144, 147 and 149 are identical and pages 145 and 148 are 
 
            identical.  Also, the undersigned does not see the necessity 
 
            of claimant's registration card or release of information 
 
            record or the importance of an application for a fidelity 
 
            bond.
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury of August 10, 
 
            1989, is causally related to the disability on which  she 
 
            now bases her claim.  Bodish v. Fischer, Inc., 257 Iowa 516, 
 
            133 N.W.2d 867 (1965).  Lindahl v. L. O. Boggs, 236 Iowa 
 
            296, 18 N.W.2d 607 (1945).  A possibility is insufficient; a 
 
            probability is necessary.  Burt v. John Deere Waterloo 
 
            Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955).  The 
 
            question of causal connection is essentially within the 
 
            domain of expert testimony.  Bradshaw v. Iowa Methodist 
 
            Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). 
 
            
 
                 However, expert medical evidence must be considered 
 
            with all other evidence introduced bearing on the causal 
 
            connection.  Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion 
 
            of experts need not be couched in definite, positive or 
 
            unequivocal language.  Sondag v. Ferris Hardware, 220 N.W.2d 
 
            903 (Iowa 1974).  However, the expert opinion may be 
 
            accepted or rejected, in whole or in part, by the trier of 
 
            fact.  Id. at 907.  Further, the weight to be given to such 
 
            an opinion is for the finder of fact, and that may be 
 
            affected by the completeness of the premise given the expert 
 
            and other surrounding circumstances.  Bodish, 257 Iowa 516, 
 
            133 N.W.2d 867.  See also Musselman v. Central Telephone 
 
            Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
            
 
                 If claimant has an impairment to the body as a whole, 
 
            an industrial disability has been sustained.  Industrial 
 
            disability was defined in Diederich v. Tri-City Railway Co., 
 
            219 Iowa 587, 593, 258 N.W.2d 899, 902 (1935) as follows: 
 
            "It is therefore plain that the legislature intended the 
 
            term `disability' to mean `industrial disability' or loss of 
 
            earning capacity and not a mere `functional disability' to 
 
            be computed in the terms of percentages of the total 
 
            physical and mental ability of a normal man."
 
            
 
                 Functional impairment is an element to be considered in 
 
            determining industrial disability which is the reduction of 
 
            earning capacity, but consideration must also be given to 
 
            the injured employee's age, education, qualifications, 
 
            experience and inability to engage in employment for which 
 
            he is fitted.  Olson v. Goodyear Service Stores, 255 Iowa 
 

 
            
 
            Page  11
 
            
 
            
 
            
 
            
 
            1112, 1121, 125 N.W.2d 251, 257 (1963).
 
            
 
                 It is further concluded that:
 
            
 
                 Claimant incurred a work injury on August 10, 1989, 
 
            resulting in claimant having a permanent impairment to her 
 
            body as a whole and a chronic condition and a 7 percent 
 
            industrial disability.
 
            
 
                 As a result of claimant's August 10, 1989 work injury, 
 
            claimant has had no loss of income and no restrictions or 
 
            limitations placed on her by any medical doctor or 
 
            chiropractor.
 
            
 
                 Claimant incurred no healing period benefits as she 
 
            lost no time from work as a result of her August 10, 1989 
 
            injury.
 
            
 
                 Claimant incurred chiropractor bill that had a balance 
 
            due at the day of the hearing of $1,640.88.  This bill was 
 
            indirectly authorized by a company authorized doctor and 
 
            defendant is to pay the same.
 
            
 
                 Claimant incurred an $88.31 hospital bill and a $299.71 
 
            drug bill which were causally connected to claimant's August 
 
            10, 1989 injury and should be paid by defendant.  The 
 
            hospital bill resulted from an incident that exacerbated 
 
            claimant's August 10, 1989 injury but did not cause a new 
 
            injury.
 
            
 
                           
 
            
 
            
 
            Page  12
 
            
 
            
 
            
 
            
 
                                      ORDER
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 That claimant is entitled to thirty-five (35) weeks of 
 
            permanent partial disability benefits at the weekly rate of 
 
            one hundred thirteen and 44/100 dollars ($113.44), beginning 
 
            August 10, 1989.
 
            
 
                 That defendant shall pay the following medical bills:
 
            
 
                 Rex J. Jones, D.C.            $1,640.88
 
                 Spencer Municipal Hospital        88.31
 
                 Drug bill                        299.71
 
            
 
                 Claimant shall be held harmless from liability thereon.
 
            
 
                 That defendants shall pay accrued weekly benefits in a 
 
            lump sum and shall receive credit against the award for 
 
            weekly benefits previously paid.  Defendant has paid no 
 
            disability benefits.
 
            
 
                 That defendants shall pay interest on benefits awarded 
 
            herein as set forth in Iowa Code section 85.30.
 
            
 
                 That defendants shall pay the costs of this action, 
 
            pursuant to rule 343 IAC 4.33.
 
            
 
                 That defendants shall file an activity report upon 
 
            payment of this award as required by this agency, pursuant 
 
            to rule 343 IAC 3.1.
 
            
 
                 Signed and filed this ____ day of August, 1992.
 
            
 
            
 
            
 
                                          ______________________________
 
                                          BERNARD J. O'MALLEY
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            Copies to:
 
            
 
            Mr David A Scott
 
            Attorney at Law
 
            407 Grand Ave
 
            P O Box 3046
 
            Spencer IA 51301
 
            
 
            Mr Joel T Greer
 
            Attorney at Law
 
            112 W Church St
 
            Marshalltown IA 50158
 
            
 
            
 
                 
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                               5-1108; 5-1803; 5-2503
 
                                               Filed August 5, 1992
 
                                               Bernard J. O'Malley
 
            
 
                       BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            KATHY L. LONG,                :
 
                                          :
 
                 Claimant,                :
 
                                          :      File No. 979258
 
            vs.                           :
 
                                          :
 
            K-MART CORPORATION,           :
 
                                          :    A R B I T R A T I O N
 
                 Employer,                :
 
                 Self-Insured,            :       D E C I S I O N
 
                 Defendant.               :
 
                                          :
 
            ___________________________________________________________
 
            
 
            5-1108; 5-1803
 
            Found claimant's work injury caused no healing period, but 
 
            did cause a permanent impairment, no restrictions and a 7 
 
            percent industrial disability.
 
            
 
            5-1108; 5-2503
 
            Found defendant is responsible to pay claimant's 
 
            chiropractor, hospital and drug bill which resulted from 
 
            claimant's work injury.
 
            
 
 
         
 
         
 
         
 
         
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         ____________________________________________________________
 
                                       :
 
         WILLIAM FORT,                 :
 
                                       :      File Nos. 979264
 
              Claimant,                :                979263
 
                                       :
 
         vs.                           :        A P P E A L
 
                                       :
 
         IBP, INC.,                    :      D E C I S I O N
 
                                       :
 
              Employer,                :
 
              Self-Insured,            :
 
              Defendant.               :
 
         ___________________________________________________________
 
         
 
                                   INTRODOUCTION
 
         
 
              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:
 
         
 
                I.  Whether claimant was entitled to healing period 
 
              benefits after being discharged from employer.
 
         
 
               II.  Whether claimant sustained permanent partial 
 
              disability as a result of work related injury and, if 
 
              so, its extent.
 
         
 
              III.  Whether claimant is entitled to reimbursement for 
 
              medical expenses.
 
         
 
                                 FINDINGS OF FACT
 
 
 
         The findings of fact contained in the proposed agency decision 
 
         filed March 30, 1992 are adopted as final agency action.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              The conclusions of law contained in the proposed agency 
 
         decision filed March 30, 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.
 
         
 
              There is no dispute that claimant sustained work-related 
 
         injuries on July 25, 1990 and March 7, 1991.  Claimant requests 
 
         healing period benefits from March 8, 1991 through December 6, 
 
         1991 when Dr. Shay indicated he had obtained maximum medical 
 
         improvement.  Claimant also alleges that he is entitled to 
 
         permanent disability benefits based on Dr. Shay's assessment of 
 
         his back impairment and the visual loss in his right eye.
 
         
 

 
         
 
         Page   2
 
         
 
         
 
         
 
         
 
              *****Claimant has the burden of proof in this case.  He must 
 
         show by a preponderance of the evidence that his injuries are 
 
         causally related to the disability on which he now bases his 
 
         claim.
 
         
 
              Bodish v. Fischer, Inc., 133 N.W.2d 867, 868 (Iowa 1965); 
 
         Lindahl v. L. O. Boggs, 18 N.W.2d 607, 613-14 (Iowa 1945).  A 
 
         possibility is insufficient; a probability is necessary.  Burt v. 
 
         John Deere Waterloo Tractor Works, 73 N.W.2d 732, 738 (Iowa 
 
         1955).  The question of causal connection is essentially within 
 
         the domain of expert testimony.  Bradshaw v. Iowa Methodist 
 
         Hospital, 101 N.W.2d 167, 171 (Iowa 1960).  Expert medical 
 
         evidence must be considered with all other evidence introduced 
 
         bearing on the causal connection.  Burt, 73 N.W.2d at 738.  The 
 
         opinion of the experts need not be couched in definite, positive 
 
         or unequivocal language.  Sondag v. Ferris Hardware, 220 N.W.2d 
 
         903, 907 (Iowa 1974).  Moreover, the expert opinion may be 
 
         accepted or rejected, in whole or in part, by the truer of fact.  
 
         Sondag, 220 N.W.2d at 907.  Finally, 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 material circumstances.  Bodish, 133 N.W.2d at 870; 
 
         Musselman, 154 N.W.2d at 133.  The Supreme Court has also 
 
         observed that greater deference is ordinarily accorded expert 
 
         testimony where the opinion necessarily rests on medical 
 
         expertise.  Sondag, 220 N.W.2d at 907.
 
         
 
              *****Claimant lost no time from work as a result of either 
 
         injury.  No doctor took him off work for medical care and 
 
         treatment.  Claimant returned to work the same day he injured his 
 
         back and although he worked with restrictions, no physician said 
 
         he was unable to work.  Likewise, claimant was released to return 
 
         to work the same day he incurred his eye injury.  The fact that 
 
         claimant voluntarily terminated his employment with employer by 
 
         refusing to cooperate with their request for a urine specimen, is 
 
         no fault of employer and does not entitle claimant to either 
 
         temporary total disability or healing period benefits.
 
         
 
              Claimant relies solely on Dr. Shay to support his 
 
         contentions that he suffered a permanent impairment to his back.  
 
         Dr. Shay is not a medical physician, he is a chiropractor.  Two 
 
         medical physicians, one a family practitioner and the other an 
 
         orthopedic surgeon, dispute Dr. Shay's findings that the claimant 
 
         is permanently impaired due to his back injury.  Dr. Dean 
 
         released claimant to full activity with no restrictions on August 
 
         24, 1990.  (Ex. 5)  Dr. Smith, an orthopedic surgeon, noted that 
 
         x-rays of claimant's thoracic and lumbar spine were normal and 
 
         showed no degenerative changes, fractures or disc space 
 
         narrowing.  He commented that claimant's complaints significantly 
 
         outweighed any objective abnormalities and in fact, he found 
 
         inconsistencies in claimant's physical examination leading the 
 
         undersigned to believe that he exaggerate his symptoms in order 
 
         to appear more disabled than he really was.  In any event, Dr. 
 
         Smith concluded that based on the AMA guidelines, claimant did 
 
         not have any permanent impairment.
 
         
 
              Pain that is not substantiated by clinical findings is not a 
 
         substitute for impairment.  Waller v. Chamberlain Mfg., II Iowa 
 
         Industrial Commissioner Report 419, 425 (1981);  Godwin v. 
 
         Hicklin GM Power, II Iowa Industrial Commissioner Report 170 
 

 
         
 
         Page   3
 
         
 
         
 
         
 
         
 
         (1981).
 
         
 
              Giving greater weight to the findings of Dr. Smith rather 
 
         than Dr. Shay, it is concluded that claimant's subjective 
 
         complaints of pain are far out of proportion to clinical and 
 
         laboratory findings in the record and not entitled to significant 
 
         weight and consideration.  Accordingly, claimant is not entitled 
 
         to disability benefits on file number 979263.
 
         
 
              [Although claimant has failed to carry his burden of proof 
 
         that he has any resulting disability from his back injury, 
 
         nevertheless, the medical treatment provided by Dr. Shay was in 
 
         response to claimant's back injury at work.  Defendants have 
 
         denied liability for claimant's injuries, and thus cannot deny 
 
         liability for claimant's medical treatment on the basis that it 
 
         was unauthorized.  The treatment by Dr. Shay was clearly related 
 
         to claimant's back injury at work.  The fact that Dr. Shay's 
 
         opinion on permanency was not given greater weight in the 
 
         determination of disability does not affect the fact that his 
 
         treatment was rendered in connection with claimant's work injury.  
 
         Defendant employer is liable for the medical bills of Dr. Shay.]
 
         
 
              As to claimant's alleged permanent eye impairment, the 
 
         medical evidence leaves no doubt that claimant is not permanently 
 
         impaired.  Dr. Sadeghi, a physician who specializes in the 
 
         diagnosis and medical and surgical treatment of diseases and 
 
         defects of the eye and related structures, stated emphatically 
 
         that claimant's eye injury did not cause any permanent damage.  
 
         (Ex. 4)  Claimant's selected optometrist agreed with this 
 
         assessment.  He stated that claimant's ocular health appeared 
 
         within normal limits and there was no permanent damage from his 
 
         March 1991 injury which affected either his cornea or lens.   
 
         (Ex. 6)
 
         
 
              Accordingly, claimant has not met his burden of proof and 
 
         failed to show by a preponderance of the evidence that his eye 
 
         injury caused any permanent disability.  Therefore, he takes 
 
         nothing in file number 979264.
 
         
 
              The employer has the right to choose the provider of care in 
 
         workers' compensation cases, except where they have denied 
 
         liability for the injury.  Iowa Code section 85.27.  Claimant's 
 
         treatment by Dr. Shay was not authorized by defendant nor 
 
         causally related to the disability on which he now bases his 
 
         claim.  Therefore, claimant is not entitled to be reimbursed for 
 
         expenses incurred for chiropractic treatments by Dr. Shay. 
 
         
 
              WHEREFORE, the decision of the deputy is affirmed and 
 
         modified.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, it is ordered:
 
         
 
              That claimant takes nothing in file number 979263.
 
         
 
              That claimant is entitled to medical benefits for the 
 
         services of Dr. Shay in file number 979294.
 
         
 
              That the parties shall each pay their own costs in this 
 

 
         
 
         Page   4
 
         
 
         
 
         
 
         
 
         action pursuant to rule 343 IAC 4.33.
 
         
 
              
 
         
 
              Signed and filed this ____ day of August, 1993.
 
         
 
         
 
         
 
         
 
                                       ________________________________
 
                                                BYRON K. ORTON
 
                                            INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. David W. Newell
 
         Attorney at Law
 
         323 East 2nd Street
 
         P O Box 175
 
         Muscatine, Iowa  52761
 
         
 
         Mr. John M. Comer
 
         Attorney at Law
 
         P O Box 515
 
         Dakota City, Nebraska  68731
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
 
 
                                             5-1802; 5-1803; 2501
 
                                             Filed August 31, 1993
 
                                             BYRON K. ORTON
 
                   
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         ____________________________________________________________
 
                                       :
 
         WILLIAM FORT,                 :
 
                                       :      File Nos. 979264
 
              Claimant,                :                979263
 
                                       :
 
         vs.                           :        A P P E A L
 
                                       :
 
         IBP, INC.,                    :      D E C I S I O N
 
                                       :
 
              Employer,                :
 
              Self-Insured,            :
 
              Defendant.               :
 
         ___________________________________________________________
 
         
 
         5-1802
 
         Claimant is not entitled to either temporary total disability 
 
         benefits or healing period benefits.  Claimant lost no time from 
 
         work as a result of a back injury on July 25, 1990.  He returned 
 
         to work at the same rate of pay the same day he was injured.
 
         Claimant had a temporary right eye injury when hot steaming lard 
 
         sprayed in his eye on March 7, 1991.  He was released to return 
 
         to work that same day.  Claimant was requested to give a urine 
 
         specimen as per company policy, to determine whether he was under 
 
         the influence of alcohol or drugs at the time of the injury.  
 
         Claimant gave two diluted specimens and refused to give a third.  
 
         He knew that the ramifications for refusing to cooperate was loss 
 
         of his job.  The fact that claimant was separated from his job 
 
         with employer for good cause does not entitle him to temporary or 
 
         healing period benefits as of the day of separation March 8, 
 
         1991.  No doctor ever took claimant off work for either injury.
 
         
 
         5-1803
 
         Claimant failed to prove by a preponderance of the evidence that 
 
         he sustained permanent injury to his back and right eye.  An 
 
         orthopedic surgeon noted that claimant's thoracic and lumbar 
 
         spine x-rays were normal, with no degenerative changes, no 
 
         fractures or disc space narrowing.  He noted that claimant's 
 
         subjective complaints significantly outweighed any objective 
 
         abnormalities.
 
         
 
         As to claimant's eye injury, an ophthalmologist noted 
 
         emphatically that claimant's injury caused no permanent damage to 
 
         his eye.  This was supported by claimant's own physician.
 
         The greater weight of the evidence supports the finding that 
 
         claimant is not entitled to any permanent disability benefits as 
 
         a result of his eye injury.
 

 
         
 
 
 
 
 
 
 
         
 
         2501
 
         
 
         Although ultimately claimant was found to have suffered no 
 
         disability as a result of his work injury, his medical expenses 
 
         were compensable.  The fact that the services were rendered by a 
 
         physician whose opinion on causal connection and extent of 
 
         impairment were rejected does not alter the fact that his 
 
         services were in response to the work injury and are compensable.
 
         
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            WILLIAM FORT,                 :
 
                                          :
 
                 Claimant,                :      File Nos. 979263
 
                                          :                979264
 
            vs.                           :
 
                                          :    A R B I T R A T I O N
 
            IBP, INC.,                    :
 
                                          :      D E C I S I O N
 
                 Employer,                :
 
                 Self-Insured,            :
 
                 Defendant.               :
 
            ___________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding in arbitration brought by William 
 
            Fort, claimant, against IBP, self-insured employer, to 
 
            recover benefits under the Iowa Workers' Compensation Act as 
 
            a result of injuries sustained on July 25, 1990 and March 7, 
 
            1991.  This matter came on for hearing before the 
 
            undersigned deputy industrial commissioner on March 19, 
 
            1992.  The record was considered fully submitted at the 
 
            close of the hearing.  The record in this case consists of 
 
            testimony from claimant, Laester Smith, Sherri Lynn Wilson, 
 
            and Cheryl Schmitt; claimant's exhibits 1-6 and defendant's 
 
            exhibits A-F and H.
 
            
 
                                      issues
 
            
 
                 Defendant admits that claimant sustained injuries on 
 
            July 25, 1990 and March 7, 1991, which arose out of and in 
 
            the course of employment with employer.  The parties present 
 
            the following issues for resolution:
 
            
 
                 1.  Whether claimant's injuries are a cause of 
 
            temporary and permanent disability;
 
            
 
                 2.  The extent of entitlement to weekly compensation 
 
            for temporary and permanent disability benefits, if any;
 
            
 
                 3.  The number of exemptions to which claimant is 
 
            entitled; and,
 
            
 
                 4.  The extent of entitlement to medical benefits under 
 
            Iowa Code section 85.27.
 
            
 
                     
 
            
 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            findings of fact
 
            
 
                 The undersigned has carefully considered all of the 
 
            testimony given at the hearing, arguments made, evidence 
 
            contained in the exhibits, and makes the following findings:
 
            
 
                 Claimant was born on December 10, 1957, and completed 
 
            the eleventh grade of school.  He received his GED 
 
            certificate while serving in the US Army.  He attended two 
 
            years of college in New Orleans and studied drafting.  He 
 
            commenced employment with IBP as a laborer on August 23, 
 
            1989.  On July 25, 1990, he injured his back when a catwalk 
 
            on which he was standing gave way.  He lost no time from 
 
            work due to this injury.  On March 7, 1991, hot lard 
 
            splashed into his right eye while changing steam lines.  His 
 
            employment with IBP ended on March 9, 1991.
 
            
 
                 Claimant's medical file card indicates that he was sent 
 
            by employer to Muscatine Health Center on July 28, 1990, for 
 
            the injury he incurred on July 25, 1990.   On August 3, 
 
            1990, the company sent claimant to Forrest Dean, M.D., for 
 
            evaluation.  He diagnosed low back strain and prescribed 
 
            Naprosyn and Darvocet for severe pain.  He limited 
 
            claimant's work activities and employer put him on light 
 
            duty at the same rate of pay.  Claimant was not taken off 
 
            work because of back pain.  (Exhibit 5).
 
            
 
                 Dr. Dean last saw claimant on June 5, 1991.  At that 
 
            time, it was his impression that claimant had reached 
 
            maximum medical improvement and had no permanent back 
 
            impairment.  (Ex. B).
 
            
 
                 On March 7, 1991, claimant was admitted to Muscatine 
 
            General Hospital Emergency Room with complaints of burning 
 
            and watering of his right eye after it was sprayed with hot 
 
            steam and lard.  His eye was irrigated and eye drops were 
 
            inserted.  His eye was then patched.
 
            
 
                 On March 8, 1991, he was seen by opthalmologist, 
 
            Jahangir Sadeghi, M.D.  On April 1, 1991, Dr. Sadeghi 
 
            reported that, on examination, claimant's visual acuity was 
 
            20/300 in the right eye.  There was some burning of the 
 
            cornea.  Again, eye drops were inserted and his eye was 
 
            patched.  When seen for follow-up evaluation on March 13, 
 
            1991, his visual acuity was measured 20/200-1 in the right 
 
            eye.  Although his cornea still had some effect from the 
 
            burn, it was much less than before.  The rest of his eye 
 
            examination was normal.  Dr. Sadeghi indicated that 
 
            claimant's poor vision in his right eye was the result of 
 
            needing eye glasses and not because of his injury.  It was 
 
            his opinion that the burn did not cause any permanent damage 
 
            to claimant's eye.  (Ex. 4).
 
            
 
                 No physician took claimant off work due to his eye 
 
            injury.  In fact, he was released for restricted duty on 
 
            March 7, 1991, the restriction being not to work around 
 
            moving machinery.  (Ex. 5).
 
            
 
                 Testimony taken at the hearing reveals that claimant's 
 
            employment with employer ended on March 8, 1991.  As per 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            company policy, claimant was asked to produce a urine sample 
 
            after the accident on March 7, 1991, to determine whether he 
 
            was either under the influence of alcohol or drugs when the 
 
            accident occurred.  Claimant produced two specimens both of 
 
            which had thermometer readings below an acceptable range.  
 
            He was asked for a third sample but he refused.  Claimant 
 
            understood that refusing to provide an acceptable urine 
 
            sample would jeopardize his status as an employee with the 
 
            company.  Claimant felt he was being harassed and refused to 
 
            cooperate with employer and walked off the job.
 
            
 
                 Without authorization from employer, claimant initiated 
 
            chiropractic treatment with Jeffrey Shay, D.C., on July 25, 
 
            1991.  While under the care of Dr. Shay, claimant had 
 
            cervical and lumbar x-rays taken and was treated with 
 
            electrical stimulation, manipulation, and ultrasound.  
 
            Claimant has been charged $815 by Dr. Shay which employer 
 
            has refused to pay.  (Ex. 3).  
 
            
 
                 On September 23, 1991, Dr. Shay reported to claimant's 
 
            attorney that, in his opinion, claimant has suffered a 
 
            post-traumatic sprain to both his cervical and lumbar areas.  
 
            He based his findings on a thermographic study performed on 
 
            September 12, 1991, and x-rays of the cervical and lumbar 
 
            spine on July 25, 1991 and September 12, 1991.  (Ex. 1)
 
            
 
                 On December 4, 1991, Dr. Shay gave claimant with an 
 
            impairment rating of 12 percent based on findings from range 
 
            of motion studies of the cervical and lumbar spine.  (Ex. 
 
            2).
 
            
 
                 Employer referred claimant to Koert R. Smith, M.D., 
 
            orthopedic surgeon, for evaluation on February 7, 1992.  In 
 
            addition to a comprehensive examination, x-rays were 
 
            obtained of claimant's thoracic and lumbar spine.  These 
 
            were normal and revealed no degenerative changes, fractures 
 
            or disc space narrowing.  Dr. Smith's assessment was 
 
            thoracic lumbar spine contusion, with subjective complaints 
 
            that significantly outweigh any objective abnormalities.  He 
 
            noted conflicting physical findings on examination where 
 
            straight leg raising was negative in a sitting position but 
 
            positive in a supine position.  He also noted active motor 
 
            testing inconsistencies demonstrated by claimant's ability 
 
            to walk on his heels and toes with no difficulty and able to 
 
            squat on both legs with also no apparent difficulty but 
 
            breaking against resistance with active motor testing.  It 
 
            was Dr. Smith's opinion that claimant does not have any 
 
            permanent impairment to his back as a result of his July 25, 
 
            1990 injury and no restrictions were imposed.  (Ex. A).
 
            
 
                 Claimant was referred by his attorney to Brian Davis, 
 
            O.D., optometrist, for evaluation on December 30, 1991.  Mr. 
 
            Davis reported on January 9, 1992, in pertinent part that:  
 
            "William's ocular health appeared within normal limits.  
 
            There appeared to be no permanent damage from his March 
 
            incidents affecting neither the cornea or lens of the eye."  
 
            He indicated that claimant's previous prescription was 
 
            causing his right eye to work excessively hard and was 
 
            responsible for complaints of burning and watering in that 
 
            eye.  Mr. Davis gave him a new prescription.  (Ex. 6).
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            
 
                                conclusions of law
 
            
 
                 There is no dispute that claimant sustained 
 
            work-related injuries on July 25, 1990 and March 7, 1991.  
 
            Claimant requests healing period benefits from March 8, 1991 
 
            through December 6, 1991 when Dr. Shay indicated he had 
 
            obtained maximum medical improvement.  Claimant also alleges 
 
            that he is entitled to permanent disability benefits based 
 
            on Dr. Shay's assessment of his back impairment and the 
 
            visual loss in his right eye.
 
            
 
                 Claimant's contentions are without merit.  Claimant has 
 
            the burden of proof in this case.  He must show by a 
 
            preponderance of the evidence that his injuries are causally 
 
            related to the disability on which he now bases his claim.
 
            
 
                 Bodish v. Fischer, Inc., 133 N.W.2d 867, 868 (Iowa 
 
            1965); Lindahl v. L. O. Boggs, 18 N.W.2d 607, 613-14 (Iowa 
 
            1945).  A possibility is insufficient; a probability is 
 
            necessary.  Burt v. John Deere Waterloo Tractor Works, 73 
 
            N.W.2d 732, 738 (Iowa 1955).  The question of causal 
 
            connection is essentially within the domain of expert 
 
            testimony.  Bradshaw v. Iowa Methodist Hospital, 101 N.W.2d 
 
            167, 171 (Iowa 1960).  Expert medical evidence must be 
 
            considered with all other evidence introduced bearing on the 
 
            causal connection.  Burt, 73 N.W.2d at 738.  The opinion of 
 
            the experts need not be couched in definite, positive or 
 
            unequivocal language.  Sondag v. Ferris Hardware, 220 N.W.2d 
 
            903, 907 (Iowa 1974).  Moreover, the expert opinion may be 
 
            accepted or rejected, in whole or in part, by the trier of 
 
            fact.  Sondag, 220 N.W.2d at 907.  Finally, 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 material circumstances.  Bodish, 133 N.W.2d 
 
            at 870; Musselman, 154 N.W.2d at 133.  The Supreme Court has 
 
            also observed that greater deference is ordinarily accorded 
 
            expert testimony where the opinion necessarily rests on 
 
            medical expertise.  Sondag, 220 N.W.2d at 907.
 
            
 
                 While the evidence clearly demonstrates that claimant 
 
            suffered some temporary disability as a result of his July 
 
            25, 1990 back injury and his March 7, 1991 eye injury, 
 
            claimant lost no time from work as a result of either 
 
            injury.  No doctor took him off work for medical care and 
 
            treatment.  Claimant returned to work the same day he 
 
            injured his back and although he worked with restrictions, 
 
            no physician said he was unable to work.  Likewise, claimant 
 
            was released to return to work the same day he incurred his 
 
            eye injury.  The fact that claimant voluntarily terminated 
 
            his employment with employer by refusing to cooperate with 
 
            their request for a urine specimen, is no fault of employer 
 
            and does not entitle claimant to either temporary total 
 
            disability or healing period benefits.
 
            
 
                 Claimant relies solely on Dr. Shay to support his 
 
            contentions that he suffered a permanent impairment to his 
 
            back.  Dr. Shay is not a medical physician, he is a 
 
            chiropractor.  Two medical physicians, one a family 
 
            practitioner and the other an orthopedic surgeon, dispute 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            Dr. Shay's findings that the claimant is permanently 
 
            impaired due to his back injury.  Dr. Dean released claimant 
 
            to full activity with no restrictions on August 24, 1990.  
 
            (Ex. 5).  Dr. Smith, an orthopedic surgeon, noted that 
 
            x-rays of claimant's thoracic and lumbar spine were normal 
 
            and showed no degenerative changes, fractures or disc space 
 
            narrowing.  He commented that claimant's complaints 
 
            significantly outweighed any objective abnormalities and in 
 
            fact, he found inconsistencies in claimant's physical 
 
            examination leading the undersigned to believe that he 
 
            exaggerate his symptoms in order to appear more disabled 
 
            than he really was.  In any event, Dr. Smith concluded that 
 
            based on the AMA guidelines, claimant did not have any 
 
            permanent impairment.
 
            
 
                 Pain that is not substantiated by clinical findings is 
 
            not a substitute for impairment.  Waller v. Chamberlain 
 
            Mfg., II Iowa Industrial Commissioner Report 419, 425 
 
            (1981);  Godwin v. Hicklin GM Power, II Iowa Industrial 
 
            Commissioner Report 170 (1981).
 
            
 
                 Giving greater weight to the findings of Dr. Smith 
 
            rather than Dr. Shay, the undersigned concludes that 
 
            claimant's subjective complaints of pain are far out of 
 
            proportion to clinical and laboratory findings in the record 
 
            and not entitled to significant weight and consideration.  
 
            Accordingly, claimant takes nothing in file number 979263.
 
            
 
                 As to claimant's alleged permanent eye impairment, the 
 
            medical evidence leaves no doubt that claimant is not 
 
            permanently impaired.  Dr. Sadeghi, a physician who 
 
            specializes in the diagnosis and medical and surgical 
 
            treatment of diseases and defects of the eye and related 
 
            structures, stated emphatically that claimant's eye injury 
 
            did not cause any permanent damage.  (Ex. 4).  Claimant's 
 
            selected optometrist agreed with this assessment.  He stated 
 
            that claimant's ocular health appeared within normal limits 
 
            and there was no permanent damage from his March 1991 injury 
 
            which affected either his cornea or lens.  (Ex. 6).
 
            
 
                 Accordingly, claimant has not met his burden of proof 
 
            and failed to show by a preponderance of the evidence that 
 
            his eye injury caused any permanent disability.  Therefore, 
 
            he takes nothing in file number 979264.
 
            
 
                 The employer has the right to choose the provider of 
 
            care in workers' compensation cases, except where they have 
 
            denied liability for the injury.  Iowa Code section 85.27.  
 
            Claimant's treatment by Dr. Shay was not authorized by 
 
            defendant nor causally related to the disability on which he 
 
            now bases his claim.  Therefore, claimant is not entitled to 
 
            be reimbursed for expenses incurred for chiropractic 
 
            treatments by Dr. Shay. 
 
            
 
                                      order
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 Claimant takes nothing in file numbers 979263 and 
 
            979264.
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            
 
                 This issue is dispositive of the entire case and 
 
            further analysis is unnecessary.
 
            
 
                 The parties shall each pay their own costs in this 
 
            action pursuant to rule 343 IAC 4.33.
 
            
 
                 Signed and filed this ____ day of March, 1992.
 
            
 
            
 
            
 
            
 
                                          
 
            ________________________________
 
                                          JEAN M. INGRASSIA
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr David W Newell
 
            Attorney at Law
 
            323 East 2nd Street
 
            PO Box 175
 
            Muscatine Iowa 52761
 
            
 
            Ms Marie L Welsh
 
            Attorney at Law
 
            PO Box 515 
 
            Dept #41
 
            Dakota City Nebraska 68731
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
                                          5-1802 - 5-1803
 
                                          Filed March 30, 1992
 
                                          JEAN M. INGRASSIA
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            WILLIAM FORT,                 :
 
                                          :
 
                 Claimant,                :      File Nos. 979263
 
                                          :                979264
 
            vs.                           :
 
                                          :    A R B I T R A T I O N
 
            IBP, INC.,                    :
 
                                          :      D E C I S I O N
 
                 Employer,                :
 
                 Self-Insured,            :
 
                 Defendant.               :
 
            ___________________________________________________________
 
            
 
            5-1802
 
            Claimant is not entitled to either temporary total 
 
            disability benefits or healing period benefits.  Claimant 
 
            lost no time from work as a result of a back injury on July 
 
            25, 1990.  He returned to work at the same rate of pay the 
 
            same day he was injured.
 
            Claimant had a temporary right eye injury when hot steaming 
 
            lard sprayed in his eye on March 7, 1991.  He was released 
 
            to return to work that same day.  Claimant was requested to 
 
            give a urine specimen as per company policy, to determine 
 
            whether he was under the influence of alcohol or drugs at 
 
            the time of the injury.  Claimant gave two diluted specimens 
 
            and refused to give a third.  He knew that the ramifications 
 
            for refusing to cooperate was loss of his job.  The fact 
 
            that claimant was separated from his job with employer for 
 
            good cause does not entitle him to temporary or healing 
 
            period benefits as of the day of separation March 8, 1991.  
 
            No doctor ever took claimant off work for either injury.
 
            
 
            5-1803
 
            Claimant failed to prove by a preponderance of the evidence 
 
            that he sustained permanent injury to his back and right 
 
            eye.  An orthopedic surgeon noted that claimant's thoracic 
 
            and lumbar spine x-rays were normal, with no degenerative 
 
            changes, no fractures or disc space narrowing.  He noted 
 
            that claimant's subjective complaints significantly 
 
            outweighed any objective abnormalities.
 
            As to claimant's eye injury, an ophthalmologist noted 
 
            emphatically that claimant's injury caused no permanent 
 
            damage to his eye.  This was supported by claimant's own 
 
            physician.
 
            The greater weight of the evidence supports the finding that 
 
            claimant is not entitled to any permanent disability 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            benefits as a result of his eye injury.
 
            
 
 
            
 
            
 
            
 
            
 
            
 
                      BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
            KEVIN SHIPLEY,                   File No. 979288
 
                      
 
                 Claimant, 
 
                                         A R B I T R A T I O N
 
            vs.       
 
                                            D E C I S I O N
 
            DELAVAN, INC., 
 
                      
 
                 Employer, 
 
                 Defendant.     
 
                      
 
            ___________________________________________________________
 
                             STATEMENT OF THE CASE
 
            
 
            This is a proceeding in arbitration brought by Kevin 
 
            Shipley, claimant, against Delavan, Inc., employer, to 
 
            recover benefits under the Iowa Workers' Compensation Act 
 
            for an alleged injury occurring on or about May 22, 1990.  
 
            This matter was to come on for hearing July 13, 1992, in Des 
 
            Moines, Iowa, at 1:30 p.m.
 
            
 
            The undersigned and the defendants were present.  Claimant 
 
            did not appear.
 
            
 
            Claimant failed to present any evidence in support of the 
 
            allegations found in his original notice and petition.  
 
            Neither an agreement for settlement nor a request for 
 
            continuance is on file with the industrial commissioner.
 
            Claimant has the burden of proving by a preponderance of the 
 
            evidence that he received an injury which arose out of and 
 
            in the course of his employment.  McDowell v. Town of 
 
            Clarksville, 241 N.W.2d 904 (Iowa 1976).
 
            
 
            WHEREFORE, IT IS FOUND:
 
            1.  Claimant did not appear at the scheduled time and place 
 
            of hearing.
 
            2.  The undersigned deputy industrial commissioner was 
 
            present and prepared to proceed to hearing.
 
            3.  Neither an agreement for settlement nor a request for 
 
            continuance is on file with the industrial commissioner.
 
            4.  Claimant failed to present any evidence to support 
 
            allegations of a compensable work injury.
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            THEREFORE, it is ordered:
 
            
 
            Claimant has failed to meet his burden of proof that he 
 
            sustained an injury which arose out of and in the course of 
 
            his employment.
 
            
 
            THEREFORE, it is ordered:
 
            
 
            That claimant take nothing from this proceeding.
 
            
 
            That costs are taxed to the claimant.  Division of 
 
            Industrial Services Rule 343-4.33.
 
            
 
            Signed and filed this ____ day of July, 1992.
 
            
 
            
 
            
 
             
 
                                    ________________________________
 
                                          PATRICIA J. LANTZ
 
                                     DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr Kevin Shipley
 
            2008 Lay Street
 
            Des Moines, Iowa 50317
 
            CERTIFIED & REGULAR MAIL
 
            
 
            Mr. Tim Wegman
 
            Attorney at Law
 
            218 Sixth Avenue
 
            P.O. Box 9130
 
            Des Moines, Iowa 50306-9130
 
            
 
            
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                  5-1400; 5-1402
 
                                                  Filed July 16, 1992
 
                                                  Patricia J. Lantz
 
 
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
            KEVIN SHIPLEY,                      File No. 979288
 
                      
 
                 Claimant, 
 
                                            A R B I T R A T I O N
 
            vs.       
 
                                               D E C I S I O N
 
            DELAVAN, INC., 
 
                      
 
                 Employer, 
 
                 Defendant.     
 
                      
 
            ___________________________________________________________
 
            
 
            5-1400; 5-1402
 
            Claimant did not appear at the hearing.  No evidence in 
 
            support of allegations of a compensable work injury was 
 
            presented and claimant therefore failed to meet her burden 
 
            of proof.