BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            MARILYN BERGERT,              :
 
                                          :
 
                 Claimant,                :
 
                                          :      File Nos. 903793
 
            vs.                           :                979289
 
                                          :
 
            WILSON FOODS,                 :
 
                                          :     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 case came on for hearing on July 21, 1992, at 
 
            Storm Lake, Iowa.  This is a proceeding in arbitration 
 
            wherein claimant seeks compensation for permanent partial 
 
            disability benefits as a result alleged injuries occurring 
 
            on December 13, 1988 and January 7, 1991.  The record in the 
 
            proceedings consist of the testimony of the claimant, and 
 
            Pat Luse, D.C.; and, joint exhibits 1 through 30.
 
            
 
                 The parties agreed to the claimant amending her 
 
            petition to insert in file number 979289 the injury date of 
 
            January 7, 1991 in lieu of December 15, 1990.  
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 Claimant is a 48-year-old high school graduate who 
 
            testified that she had no medical problems including her 
 
            hands, arms and shoulders prior to beginning work for Wilson 
 
            Foods in August 1979.
 
            
 
                 Claimant described in detail the various jobs she held 
 
            at Wilson Foods since 1979.  These jobs included but were 
 
            not necessarily limited to pace boning, the weiner room, the 
 
            package department, sausage, belly department, cut floor, 
 
            the kill floor, stylexing, palletizing, tenderloin 
 
            department, wrapping and boxing department.  Claimant 
 
            indicated that in these jobs she always stood and that these 
 
            were fast moving production line type jobs.  Claimant 
 
            indicated that if a particular job set out for eight hours 
 
            could be done in six hours then they would be able to go 
 
            home two hours early.  Claimant indicated the amount of 
 
            products she must handle at a particular job per hour and 
 
            the weights that were involved in certain jobs.  The weights 
 
            varied up to 65 pounds.
 
            
 
                 Claimant indicated that for four or five years she was 
 
            on the 800 list or gang which meant that she would be sent 
 
            all over the plant and did not own a particular job.  She 
 
            would go where the company needed the work done.
 
            
 
                 Claimant indicated that because of her small hands and 
 

 
            
 
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            features it was harder for her to do the work and hold 
 
            certain products that was required in her job.  The 
 
            undersigned did notice that claimant does have small hands 
 
            and features.
 
            
 
                 Claimant indicated her first symptoms appeared in the 
 
            early 1980's and involved her left elbow and that in the 
 
            last five years from 1987 to 1992, her elbow developed more 
 
            pain through her work.  She said it was better after her 
 
            surgery but then became worse again.  Claimant emphasized 
 
            there was no single trauma that caused her problems.
 
            
 
                 Claimant's attention was called to joint exhibit 1 in 
 
            which Thomas P. Ferlic, M.D., indicated claimant was having 
 
            a problem with her left elbow and right elbow on July 5, 
 
            1989.  She was also referred to joint exhibit 24 in which 
 
            Mark Wheeler, M.D., noted on February 2, 1989, claimant's 
 
            left elbow and wrist problem.
 
            
 
                 Claimant contends that currently her elbows pop at 
 
            times, her arms swell and she cannot do certain things 
 
            because of her arms and wrists.  She indicated she cannot 
 
            talk on the phone with her hands up, cannot play tennis, and 
 
            loses concentration at work.  She said she has crepitation 
 
            of the left elbow.  Claimant said that her hands began 
 
            sleeping and she couldn't grip things.  She first noticed 
 
            this in 1990 and her condition got so bad in both of her 
 
            hands that she had left wrist surgery in January 1991.  
 
            Claimant said around this time she was working in the 
 
            stylexing department which required using a hook to grab and 
 
            reach for a ham with the left hand and then use the right 
 
            hand with a electric knife to cut the ham and roll it over, 
 
            etc.  She indicated the hams weigh from 30 to 65 pounds.  
 
            Claimant then had right wrist surgery in February 1991.
 
            
 
                 She indicated that in May of 1991 when Dr. Ferlic 
 
            issued a disability rating, he did not perform any tests nor 
 
            any sensory testing.  He gave her a 5 percent permanent 
 
            partial impairment rating on each hand.
 
            
 
                 Claimant said she then returned to work in May of 1991 
 
            at the stylexing job.  She stated her hands again started to 
 
            swell and would fall asleep at night and she would drop 
 
            things unexpectedly.  Claimant indicated she does not feel 
 
            her wrists are any better now after the surgery and that 
 
            they hurt in her palm area and on the top side of the wrist.  
 
            She said if she squeezes her hands it feel like electricity 
 
            going through them. 
 
            
 
                  Claimant testified when she was young she played a lot 
 
            of tennis but quit after knee surgery in 1976 or 1977.  
 
            Claimant did say that she played a little tennis after her 
 
            knee injury but hasn't played since her wrist surgery.
 
            
 
                 Claimant acknowledged she has not seen Dr. Ferlic or 
 
            any other orthopedic surgeon since May of 1991 and the only 
 
            doctor she has seen for her problems involving her wrists or 
 
            hands was to be evaluated by Dr. Luse in February of 1992.
 
            
 
                 Claimant testified she has not missed many days due to 
 

 
            
 
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            her alleged injuries and emphasized that the reason she is 
 
            still working at Wilson is that she has bills to play, 
 
            children in college and there is nothing else she can do.
 
            
 
                 Pat Luse, D.C., testified in person.  He went into 
 
            detail as to the nature of his evaluation of claimant, the 
 
            instruments he used.  In fact, he brought into the court 
 
            room some of the particular measuring instruments he used.
 
            
 
                 Dr. Luse did an evaluation around August 2, 1990, and 
 
            opined at that time an impairment to claimant's right wrist 
 
            of 13 percent and left wrist of 9 percent.  These were prior 
 
            to claimant's surgeries.
 
            
 
                 On February 18, 1992, the doctor said he again 
 
            evaluated claimant's left elbow and both wrists and 
 
            explained the tests and the guides he used in arriving at 
 
            his 15 percent permanent impairment to her left and right 
 
            upper extremity.  The doctor indicated that claimant's 
 
            problems were the result of repetitive nature of her work at 
 
            Wilson Foods and that her problems were not caused by a 
 
            single trauma.  The doctor acknowledged that his impairment 
 
            ratings were higher in 1992 after claimant had her surgery 
 
            than before.  He also indicated that the newer guides gave a 
 
            greater rating than the older guides he used in 1990.  Dr. 
 
            Luse acknowledged there was an increase in claimant's grip 
 
            strength after surgery even though his impairment rating was 
 
            higher after the surgery.  Dr. Luse said that his first 
 
            rating in 1990 was lower than it should be so he is not 
 
            necessarily concluding that claimant's impairment increased 
 
            after surgery even though the actual ratings he gave are 
 
            higher after claimant's surgery.
 
            
 
                 Dr. Luse also agreed that precise mathematics is not 
 
            the sole determining factor in using the guides but that 
 
            some judgment is involved.  He also did not believe Dr. 
 
            Ferlic used the guides or mathematical calculations when he 
 
            arrived at his 5 percent impairment rating.
 
            
 
                 Joint exhibit 16, page 4, indicates that the first note 
 
            concerning pain on claimant's right upper extremity was 
 
            November 23, 1988, which involved the right hand and finger.  
 
            Shortly thereafter, claimant was complaining of a numb Left 
 
            hand and the pain in her elbow in December of 1988, and on 
 
            January 18, 1989, the doctor's notes indicate pain left 
 
            elbow, has carpal tunnel.  In June of 1989, she was 
 
            complaining as to both elbows (Joint Exhibit 16, page 5).  
 
            The notes reflect claimant's January and February 1991 
 
            surgery to the left and right hand respectively.
 
            
 
                 It does not appear that claimant lost any time from 
 
            work in 1988 and 1989 or 1990.  In looking at various 
 
            exhibits in which claimant went in for an appointment when 
 
            she was complaining of pain and a particular upper 
 
            extremity, it appears on the date of the appointment the 
 
            doctor returned her to work that day or the next day (Jt. 
 
            Exs. 1, 2 and 3).  In fact, on joint exhibit 3, on December 
 
            5, 1990, the doctor returned claimant to regular duty until 
 
            her surgery that was to be scheduled in January of 1991. In 
 
            none of those exhibits are there are any restrictions or 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            work limitations set out.  Joint exhibit 4 is the operative 
 
            report showing claimant's January 7, 1991 carpal tunnel 
 
            syndrome surgery on the left.  Also, a lateral antebranchium 
 
            cutaneous nerve entrapment at the elbow (Jt. Ex. 4).  Joint 
 
            exhibit 6 is claimant's operative report showing claimant's 
 
            February 12, 1991 carpal tunnel syndrome surgery on the 
 
            right.  These were both performed by Ferlic.  There is no 
 
            dispute in this case as to healing period.  On May 7, 1991, 
 
            Dr. Ferlic indicated in joint exhibit 13 that claimant could 
 
            return to work.  It is obvious the parties agreed the 
 
            healing period must have ended on May 20, 1991, as they 
 
            agreed that any benefits that would be awarded would begin 
 
            May 21, 1991.
 
            
 
                 On July 5, 1991, claimant was complaining about 
 
            tenderness over both elbows but Dr. Ferlic could not 
 
            determine the etiology of her discomfort.  He advised her to 
 
            return in one week and claimant did on July 13, 1991, at 
 
            which time it doesn't seem the doctor could determine 
 
            anything further but offered claimant corticosteroid 
 
            injections but claimant did not want one.  He indicated 
 
            claimant could return to work.  Joint exhibit 14, page 5, 
 
            reflects a May 7, 1991 note of Dr. Ferlic in which he 
 
            indicated claimant returned today and was doing essentially 
 
            well.  She was having a little more problem with her left 
 
            than her right but she told them that she was very satisfied 
 
            with the left elbow release and she felt like it had 
 
            benefited her quite well. He concluded that he would rate 
 
            the patient for disability.  The undersigned believes the 
 
            doctor meant impairment.
 
            
 
                 Joint exhibit 15 is a May 8, 1991 letter from Dr. 
 
            Ferlic in which he wrote Keith O. Garner, M.D., that he 
 
            opined claimant had reached maximum medical healing and that 
 
            the patient has a 5 percent disability of each hand 
 
            separately on the basis of her carpal tunnel release.  He 
 
            indicated he did not rate her for her left lateral 
 
            antibronchial cutaneous nerve release as he did not believe 
 
            that would become a functional or clinical problem.  Joint 
 
            exhibit 24 reflects a report by Dr. Wheeler in which 
 
            claimant visited with him on February 2, 1989.  At that 
 
            time, his examination showed that claimant had marked 
 
            tenderness over the medial epicondyle, slightly over the 
 
            ulnar nerve also.  He indicated that he related claimant's 
 
            medial epicondylitis to her work but that she felt better 
 
            when she was off work for a week's vacation.  He indicated 
 
            her work aggravates her condition.  He indicated she could 
 
            return to work after being off for two weeks and return to 
 
            him if necessary.  At the time of her visit she was 
 
            complaining of her left elbow and hand problems.
 
            
 
                 Joint exhibit 25 is an orthopedic evaluation by Joshua 
 
            Kimelman, D.O., dated January 24, 1990, at which time 
 
            pursuant to his examination he had the impression that 
 
            claimant had chronic epicondylitis bilaterally by history.  
 
            It seems that he was more impressed or put more attention on 
 
            claimant's right knee and agreed with Dr. Wheeler that she 
 
            had a 10 percent permanency to that right knee.  As regards 
 
            claimant's other diffuse musculoskeletal complaints, he at 
 
            that time saw no evidence of permanency or dysfunction and 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            he had no further recommendation for diagnostic tests or 
 
            treatment.
 
            
 
                 Joint exhibit 28 is Dr. Luse's August 2, 1990 
 
            evaluation in which he opined a total impairment to 
 
            claimant's left wrist of 9 percent, right wrist 13 percent, 
 
            right elbow 5 percent, and right knee 10 percent.  In that 
 
            report, the doctor referred to  October 15, 1981 and April 
 
            27, 1987 injuries in which claimant alleged she injured her 
 
            knee by slipping on the grading in 1981 and incurred 
 
            repetitive motion trauma to both arms in 1987.  In Dr. 
 
            Luse's report of February 18, 1992, he opined in summary on 
 
            page 6 of joint exhibit 26 that claimant had a total 
 
            impairment of her right upper extremity of 15 percent and a 
 
            total impairment of her left upper extremity of a net 15 
 
            percent.
 
            
 
                 In the doctor's oral testimony at the hearing he 
 
            acknowledged when he opined a 13 and 9 percent impairment to 
 
            claimant's right and left wrist respectively in August 1990. 
 
            When he later issued his impairments in 1992, he indicated 
 
            that he was not only updating them and using a more updated 
 
            impairment guide but that he was conservative in his prior 
 
            rating.  In his 1992 report, he refers to the upper 
 
            extremities.  It is also obvious that he was addressing 
 
            claimant's left elbow problem in which he indicated that 
 
            claimant had popping of the left elbow with movement.  He 
 
            also in his 1992 report refers to claimant's right medium 
 
            nerve and left medium nerve due to entrapment neuropathy and 
 
            crepitation of the left elbow.  The undersigned believes 
 
            that Dr. Luse is taking the total upper extremity impairment 
 
            which includes the wrist and the elbow in arriving at his 
 
            impairments and that is why he is referring to the upper 
 
            extremity and not the wrist.
 
            
 
                 There seems to be confusion taking Dr. Luse's February 
 
            18, 1992 report as a whole.  He does not address anything as 
 
            to claimant having a right elbow problem and yet he uses the 
 
            right upper extremity terminology notwithstanding the fact 
 
            that it looks like he sees only a right wrist problem.
 
            
 
                 Claimant contends that she incurred an injury to her 
 
            left hand and elbow on December 13, 1988.  There is 
 
            insufficient evidence in the record to indicate that the 
 
            claimant did in fact incur a compensable injury on December 
 
            13, 1988.  It appears from the record that claimant was 
 
            having some problems and that an ultimate cumulative injury 
 
            was in its earlier stages but had not come into fruition 
 
            under the law.  The undersigned therefore finds that 
 
            claimant has failed in her burden of proof to prove that she 
 
            incurred a cumulative injury on December 13, 1988, that 
 
            arose out of and in the course of her employment and further 
 
            failed to prove that there is any causal connection between 
 
            that alleged injury and the impairments or disability from 
 
            which claimant alleges she currently has.
 
            
 
                 As to claimant's January 7, 1991 injury which she 
 
            originally pled as a December 15, 1990 injury, the 
 
            undersigned finds that the greater weight of medical 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            testimony and evidence shows that claimant did incur a 
 
            cumulative injury to her right hand and left hand 
 
            simultaneously.  It appears that claimant first missed work 
 
            on January 7, 1991, which is the date she had her carpal 
 
            tunnel syndrome surgery on her left and also a lateral 
 
            antibroncium cutaneous nerve entrapment at the elbow (Jt. 
 
            Ex. 4).  Then, on February 12, 1991, she had her second 
 
            surgery which involved a carpal tunnel syndrome surgery on 
 
            her right.  The evidence is clear that claimant was 
 
            developing this condition cumulatively over a period of 
 
            time. Claimant's leaving work for her surgery established 
 
            the injury date for this simultaneous bilateral carpal 
 
            tunnel.  It is not unusual that a person in such a situation 
 
            will have surgeries several months apart so that one will 
 
            not be completely incapacitated.  It is a judgment call as 
 
            to whether it best to have both of them at the same time or 
 
            sometime apart.  These two surgeries were approximately five 
 
            weeks apart.  Claimant worked in a meat packing industry, 
 
            which industry is known for the repetitive type of work.  
 
            The evidence is clear that claimant's job with defendant 
 
            involved continuous repetitive work in which a requirement 
 
            to keep up with others and reach certain quotas was evident.  
 
            Claimant also complained of elbow injuries.  The evidence 
 
            shows that claimant did incur a cumulative injury in her 
 
            left elbow area and that she had surgery as to her nerve 
 
            entrapment at the left elbow.
 
            
 
                 Dr. Ferlic, who performed the surgery, opined a 5 
 
            percent permanent impairment to claimant's hands as a result 
 
            of carpal tunnel surgeries but indicated that he did not 
 
            think there would be any functional impairment as to her 
 
            elbow injury when he issued a report on May 8, 1991 (Jt. Ex. 
 
            15).  It appears that as time went by and claimant was 
 
            returned to work Dr. Ferlic's conclusion as to the elbow did 
 
            not come true.  The undersigned believes that claimant did 
 
            incur an impairment to her left elbow area which has not 
 
            been addressed later by Dr. Ferlic.
 
            
 
                 Dr. Luse did address claimant's left elbow impairment 
 
            as well as addressing claimant's left and right carpal 
 
            tunnel problems.
 
            
 
                 The undersigned believes that Dr. Ferlic, the 
 
            orthopedic surgeon who performed surgery on claimant is best 
 
            able to opine claimant's impairment due to the fact that he 
 
            was not only a surgeon but treated claimant.  Dr. Luse 
 
            strictly saw claimant as an evaluator and he is also a 
 
            chiropractor and is not able to perform surgery and it would 
 
            be outside of his expertise.  The undersigned does believe 
 
            that since Dr. Luse did address claimant's elbow area, there 
 
            is some impairment because of claimant's left elbow problem.  
 
            The record shows that Dr. Ferlic did not or possibly was not 
 
            given an opportunity to do any further updating concerning 
 
            claimant's left elbow after his May 1990 report.  Likewise, 
 
            the undersigned does not believe that Dr. Luse's 15 percent 
 
            impairment of the left and right extremity is accurate, 
 
            particularly since they are identical impairments and yet it 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            is obvious from Dr. Luse's report that there is more wrong 
 
            with the claimant's left upper extremity than the right due 
 
            to the epicondylitis condition of the left elbow.
 
            
 
                 The undersigned finds that claimant did incur a carpal 
 
            tunnel syndrome condition on the left and right and 
 
            epicondylitis on claimant's left elbow which arose out of 
 
            and in the course of her employment on January 7, 1991, and 
 
            that this work injury caused claimant to have her carpal 
 
            tunnel surgery on the left and nerve entrapment surgery at 
 
            the left elbow on January 7, 1991, and the right carpal 
 
            tunnel surgery on February 12, 1991, and that this work 
 
            injury and surgery caused claimant to incur a 5 percent 
 
            impairment to her right wrist and an impairment to her left 
 
            hand and left elbow area resulting in a total impairment to 
 
            claimant's left arm (upper extremity) of 10 percent.
 
            
 
                 The undersigned finds that claimant's injuries are a 
 
            simultaneous bilateral injury occurring on January 7, 1990, 
 
            and that said injuries shall be compensation under 
 
            85.34(2)(s), and that any weekly payments shall begin May 
 
            21, 1991.
 
            
 
                 Taking 5 percent permanent impairment to claimant's 
 
            right hand equals 5 percent to her upper extremity which 
 
            converts to 3 percent of the body as a whole.  Claimant's 10 
 
            percent permanent partial impairment to her upper extremity 
 
            converts to 6 percent body as a whole.  Converting the 6 
 
            percent and 3 percent under the provisions of 85.34(2)(s) 
 
            and the charts of the AMA Guides to the Evaluation of 
 
            Permanent Impairment, (3rd ed.) results in claimant having a 
 
            9 percent body as a whole injury as a result of her 
 
            cumulative January 7, 1991 work injury.  Nine times 500 
 
            weeks equals 45 weeks.  Claimant is entitled to 45 weeks of 
 
            benefits payable at the rate of $259.55.
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                 Claimant has the burden of proving by a preponderance 
 
            of the evidence that she received injuries on December 13, 
 
            1988 and January 7, 1991, which arose out of and in the 
 
            course of her employment. McDowell v. Town of Clarksville, 
 
            241 N.W.2d 904 (Iowa 1976); Musselman v. Central Telephone 
 
            Co., 261 Iowa 352, 154 N.W.2d 128 (1967). 
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injuries of December 
 
            13, 1988 and January 7, 1991, is causally related to the 
 
            disability on which she now bases her claim.  Bodish v. 
 
            Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).  Lindahl 
 
            v. L. O. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945).  A 
 
            possibility is insufficient; a probability is necessary.  
 
            Burt v. John Deere Waterloo Tractor Works, 247 Iowa 691, 
 
            73 N.W.2d 732 (1955).  The question of causal connection is 
 
            essentially within the domain of expert testimony.  Bradshaw 
 
            v. Iowa Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167 
 
            (1960). 
 
            
 
                 However, expert medical evidence must be considered 
 
            with all other evidence introduced bearing on the causal 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            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).
 
            
 
                 It is not necessary that claimant prove her disability 
 
            results from a sudden unexpected traumatic event.  It is 
 
            sufficient to show that a disability developed gradually or 
 
            progressively from work activity over a period of time.  
 
            McKeever Custom Cabinets v. Smith, 379 N.W.2d 368 (Iowa 
 
            1985).  The McKeever court also held that the date of injury 
 
            in a gradual injury case is the time when pain prevents the 
 
            employee from continuing to work.  In McKeever the injury 
 
            date coincides with the time claimant was finally compelled 
 
            to give up his job.  This date was then utilized in 
 
            determining rate and the timeliness of the claimant's claim 
 
            under Iowa Code section 85.26 and notice under Iowa Code 
 
            section 85.23.
 
            
 
                 Iowa Code section 85.34(2)(2) provides, in part:  "The 
 
            loss of both arms, or both hands, or both feet, or both 
 
            legs, or both eyes, or any two thereof, caused by a single 
 
            accident, shall equal five hundred weeks and shall be 
 
            compensated as such."
 
            
 
                 Workers' compensation benefits for permanent partial 
 
            disability of two members caused by a single accident is a 
 
            scheduled benefit under Iowa Code section 85.34(2)(s) and 
 
            that the degree of impairment caused by a partial loss must 
 
            be computed on the basis of functional, rather than 
 
            industrial disability.  Simbro v. DeLong's Sportswear, 332 
 
            N.W.2d 886 (1983).
 
            
 
     
 
            
 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            As to claimant's alleged December 13, 1988 injury, it is 
 
            concluded that:
 
            
 
                 Claimant has failed to prove that she incurred an 
 
            injury that arose out of and in the course of her employment 
 
            and that such work injury caused claimant any permanent 
 
            partial impairment or disability.
 
            
 
                 As to claimant's January 7, 1991 injury, it is further 
 
            concluded that:
 
            
 
                 Claimant incurred a cumulative simultaneous bilateral 
 
            carpal tunnel injury and an injury to her left elbow that 
 
            arose out of and in the course of claimant's employment on 
 
            January 7, 1991 and that said injury caused claimant to 
 
            incur surgery on January 7, 1991 and February 12, 1991, and 
 
            that these surgeries and claimant's injury resulted in 
 
            claimant incurring an impairment to her left upper extremity 
 
            which included an impairment to her left hand, left elbow 
 
            and her right hand.
 
            
 
                 Claimant incurred a 9 percent body as a whole injury 
 
            under the provisions of 85.34(2)(s) entitling her to 45 
 
            weeks of benefits at the rate of $259.55.
 
            
 
                                      ORDER
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 As to claimant's December 13, 1988 alleged injury, file 
 
            number 903793, claimant takes nothing from that proceeding.
 
            
 
                 As to claimant's January 7, 1991 cumulative injury 
 
            represented by file number 979289, it ordered that:
 
            
 
                 Defendant shall pay unto claimant forty-five (45) weeks 
 
            of permanent partial disability benefits at the rate of two 
 
            hundred fifty-nine and 55/100 dollars ($259.55), beginning 
 
            May 21, 1991.
 
            
 
                 Defendant shall pay the accrued weekly benefits in a 
 
            lump sum and shall receive credit against the award for 
 
            weekly benefits previously paid.  The parties stipulated 
 
            that claimant has been paid thirty (30) weeks of permanent 
 
            partial disability benefits and all her healing period 
 
            benefits at the rate of two hundred fifty-four and 02/100 
 
            dollars ($254.02).
 
            
 
                 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 a first report of injury for 
 
            the January 7, 1991 injury (file number 979289).
 
            
 
                 That defendants shall file an activity report upon 
 
            payment of this award as required by this agency, pursuant 
 
            to rule 343 IAC 3.1.
 

 
            
 
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                 Signed and filed this ____ day of August, 1992.
 
            
 
            
 
            
 
                                          ______________________________
 
                                          BERNARD J. O'MALLEY
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            Copies to:
 
            
 
            Mr Harry H Smith
 
            Mr Dennis McElwain
 
            Attorneys at Law
 
            632-640 Badgerow Bldg
 
            P O Box 1194
 
            Sioux City IA 51102
 
            
 
            Mr David L Sayre
 
            Attorney at Law
 
            223 Pine St
 
            P O Box 535
 
            Cherokee IA 51012
 
            
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                5-1100; 5-1108; 5-1808
 
                                                Filed August 20, 1992
 
                                                Bernard J. O'Malley
 
            
 
                        BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            MARILYN BERGERT,              :
 
                                          :
 
                 Claimant,                :
 
                                          :      File Nos. 903793
 
            vs.                           :                979289
 
                                          :
 
            WILSON FOODS,                 :
 
                                          :     A R B I T R A T I O N
 
                 Employer,                :
 
                 Self-Insured,            :       D E C I S I O N
 
                 Defendant.               :
 
                                          :
 
            ___________________________________________________________
 
            
 
            5-1100; 5-1108; 5-1808
 
            Found claimant incurred a simultaneous cumulative bilateral 
 
            injury on January 7, 1991, that arose out of and in the 
 
            course of claimant's employment and caused claimant to incur 
 
            two surgeries on January 7, 1991 and February 12, 1991, 
 
            respectively, all of which resulted in claimant being 
 
            impaired and entitled to 45 weeks of permanent partial 
 
            disability benefits under 85.34(2)(s).  File No. 979289.
 
            Found no December 13, 1988 injury that arose out of and in 
 
            the course of claimant's employment and no causal 
 
            connection.  Claimant took nothing from the case.  File No. 
 
            903793.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            ROBERT J. WOLFE,              :
 
                                          :
 
                 Claimant,                :      File No. 979295
 
                                          :
 
            vs.                           :   A R B I T R A T I O N
 
                                          :
 
            ORAL B LABORATORIES,          :      D E C I S I O N
 
                                          :
 
                 Employer,                :
 
                 Self-Insured,            :
 
                 Defendant.               :
 
            ___________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 Claimant, Robert Wolfe, seeks benefits under the Iowa 
 
            Workers' Compensation Act upon his petition in arbitration 
 
            against defendant self-insured employer Oral B Laboratories 
 
            based upon allegations of a work injury to the upper 
 
            extremities on March 1, 1991.
 
            
 
                 This cause came on for hearing in Cedar Rapids, Iowa on 
 
            January 4, 1993.  Testimony was received from claimant, 
 
            Marty Holbrook, Al Morris and Marcy Kuhl.  Exhibits received 
 
            into evidence include joint exhibits 1-7, defendant's 
 
            exhibits A and C-K, and claimant's exhibits 1-8 and 12-18.  
 
            Defendant lodged objections to claimant's 9, 10 and 11.  
 
            Ruling was reserved.  Those objections are overruled as to 
 
            exhibits 9 and 11, each of which are hereby received into 
 
            evidence.  Defendant's objection to exhibit 10 is sustained.
 
            
 
                 On December 30, 1992, claimant filed an application for 
 
            extension of time in which to submit evidence.  The 
 
            application was considered and overruled at hearing.
 
            
 
                                      issues
 
            
 
                 The parties have stipulated to the existence of an 
 
            employment relationship on March 1, 1991, to the rate of 
 
            compensation ($383.45 per week) and that defendant is not 
 
            entitled to credit for benefits voluntarily made prior to 
 
            hearing.  Claimant waived his allegation of occupational 
 
            disease under Iowa Code chapter 85A.
 
            
 
                 Issues presented for resolution include:
 
            
 
                 1.  Whether claimant sustained injury arising out of 
 
            and in the course of his employment on March 1, 1991;
 
            
 
                 2.  Whether the injury caused either temporary or 
 
            permanent disability;
 
            
 
                 3.  The extent of temporary total disability or healing 
 
            period;
 
            
 
                 4.  The extent and commencement date of permanent 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            partial disability (it being stipulated that if a work 
 
            injury caused permanent disability, it is a scheduled member 
 
            disability to the upper extremities);
 
            
 
                 5.  Entitlement to medical benefits; and,
 
            
 
                 6.  Entitlement to penalty benefits under Iowa Code 
 
            section 86.13.
 
            
 
                 With regard to medical benefits, defendant stipulated 
 
            that the fees charged for medical services and supplies are 
 
            fair and reasonable and incurred for reasonable and 
 
            necessary treatment.  Causal connection to a work injury was 
 
            disputed, as was authorization of those expenses by 
 
            defendant.  The authorization defense was ruled invalid at 
 
            hearing, as defendant waived the right to control the course 
 
            of medical treatment by denying liability on the claim.
 
            
 
                                 findings of fact
 
            
 
                 The undersigned deputy industrial commissioner finds:
 
            
 
                 Robert "Jack" Wolfe has been employed by Oral B 
 
            Laboratories since 1977.  Defendant manufactures 
 
            toothbrushes.  Claimant has held a number of jobs, but was 
 
            employed as a mold technician for approximately nine years 
 
            prior to the claimed work injury.
 
            
 
                 The job of mold technician involves setting up, 
 
            adjusting, and overseeing the operation of a number of 
 
            machines which manufacture plastic toothbrush handles.  From 
 
            time to time, new molds must be placed in the machines, 
 
            which involves loosening and tightening nuts with wrenches, 
 
            flipping switches, and removing and replacing water lines.  
 
            The latter responsibility at one time required removing and 
 
            replacing numerous clamps, but now the machines are equipped 
 
            with "quick-connect" water lines.  The position also 
 
            required a certain amount of lifting.
 
            
 
                 For approximately four years prior to March 1, 1991, 
 
            claimant had bilateral symptoms of pain in the arms and 
 
            numbness in his fingers.  On March 1, his symptoms worsened 
 
            and he was unable to flex the terminal digits of both his 
 
            right thumb and index finger.  
 
            
 
                 Claimant was first seen on March 11 by the company 
 
            doctor, Dr. Sun.  His associate, Erich Streib, M.D., 
 
            diagnosed right median nerve palsy and right elbow pain and 
 
            swelling which was "most likely" due to injury or sickness 
 
            arising out of employment.  Claimant testified that he gave 
 
            Dr. Streib a detailed history, including a description of 
 
            his job responsibilities.
 
            
 
                 Dr. Streib referred claimant to Walter J. Hales, M.D., 
 
            who performed right sided surgery on March 26, 1991.  Pre- 
 
            and post operative diagnoses were of proximal compression 
 
            neuropathy of the median nerve (pronator syndrome), 
 
            compression somewhere above the innervation of the pronator 
 
            teres muscle of the median nerve.  The procedure was 
 
            described as a release of the median nerve from the proximal 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            arm to the distal forearm.
 
            
 
                 Based on claimant's verbal history, Dr. Hales rendered 
 
            a "strong opinion" on June 20, 1991 that claimant's problem 
 
            was work related.  Dr. Hales had made arrangements to 
 
            actually examine the work place, but then decided to leave 
 
            Iowa in favor of practice in the state of Oregon and was 
 
            unable to attend.  He did not feel it was necessary to do so 
 
            based on the history given him by claimant.
 
            
 
                 Claimant's care was given over to William W. Eversmann, 
 
            Jr., M.D., of the same office.  Dr. Eversmann continued 
 
            treatment and eventually conducted an on-site view of the 
 
            mold technician job on August 3, 1992 at the Oral B plant in 
 
            Iowa City.  Dr. Eversmann's chart notes of August 12 
 
            described the duties in some detail and concluded:
 
            
 
                 In some [sic] total then, based on the information 
 
                 that I was provided on August 3, 1992, I cannot in 
 
                 fact identify any pronation risk which would 
 
                 contribute to a pronator syndrome such as was 
 
                 handled in the case of Robert J. Wolfe.  I further 
 
                 have reviewed the clinic note of March 25, 1991 of 
 
                 Dr. Hales.  Dr. Hales indicates that he worked as 
 
                 a mechanic.  He noted that there was a lot of 
 
                 pulling and tugging on wrenches and other tools in 
 
                 his repair work on the machines.  I saw little 
 
                 evidence of this activity.  Based on the 
 
                 information supplied by Dr. Hales I would suggest 
 
                 that I cannot confirm his findings of a work 
 
                 related injury.  Having viewed the exact job 
 
                 rather than the patient's description of it as Dr. 
 
                 Hales had made a decision with, I cannot confirm 
 
                 the origin as being work related based on my 
 
                 viewing in the work place.
 
            
 
            (Joint Exhibit 1, Pages 11-12).
 
            
 
                 Dr. Eversmann's chart notes of October 6, 1992, 
 
            specifically stated that: "I do not feel that he has a 
 
            work-related injury, certainly not one that provided him wit 
 
            [sic] a pronator syndrome for which he has been treated."
 
            
 
                 Claimant, however, insists that although Dr. Eversmann 
 
            accurately described the mold technician job as it existed 
 
            in 1992, the job had been substantially changed through 
 
            plant modernization since the injury date asserted in 1991.  
 
            He is supported in this allegation by fellow employee Marty 
 
            Holbrook.  However, Al Morris, first shift supervisor and 
 
            molding process engineer (supervisor of mold technicians) 
 
            testified that modernization occurred earlier, and that the 
 
            job viewed by Dr. Eversmann was "exactly the same" as in 
 
            March 1991, and, for that matter, in March 1990, 1989 or 
 
            even 1988.  Mr. Morris pointed out that the machines which 
 
            required loosening and tightening nuts to replace molding 
 
            dies were replaced in 1986 (this being one of the major 
 
            pronation/supination duties described by claimant).  Given 
 
            his familiarity with the job, access to plant records, lack 
 
            of interest in this litigation and general demeanor, the 
 
            testimony of Al Morris is found more persuasive than that of 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            claimant and Marty Holbrook with respect to the timing of 
 
            plant modernization.
 
            
 
                 For that reason, the opinion of Dr. Eversmann is found 
 
            more persuasive than those of Dr. Hales and Dr. Streib with 
 
            respect to causation, since Dr. Eversmann actually saw 
 
            claimant's job as it is performed, while Dr. Hales and Dr. 
 
            Streib based opinions on claimant's verbal description.
 
            
 
                 The opinion of Dr. Ware as to causation is found 
 
            irrelevant, since he was treating claimant for an unrelated 
 
            allergic problem.  His opinion as to causation related to 
 
            that problem, rather than the median nerve symptoms under 
 
            consideration here.
 
            
 
                                conclusions of law
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the alleged injury 
 
            actually occurred and that it arose out of and in the course 
 
            of employment.  McDowell v. Town of Clarksville, 241 N.W.2d 
 
            904 (Iowa 1976); Musselman v. Cent. Tel. Co., 261 Iowa 352, 
 
            154 N.W.2d 128 (1967).  The words "arising out of" refer to 
 
            the cause or source of the injury.  The words "in the course 
 
            of" refer to the time, place and circumstances of the 
 
            injury.  Sheerin v. Holin Co., 380 N.W.2d 415 (Iowa 1986); 
 
            McClure v. Union County, 188 N.W.2d 283 (Iowa 1971).
 
            
 
                 This requirement is satisfied by showing a causal 
 
            relationship between the employment and the injury.  Sheerin 
 
            v. Holin Co., 380 N.W.2d 415 (Iowa 1986).  
 
            
 
                 The question of causal connection is essentially within 
 
            the domain of expert testimony.  The expert medical evidence 
 
            must be considered with all other evidence introduced 
 
            bearing on the causal connection between the injury and the 
 
            disability.  The weight to be given to any expert opinion is 
 
            determined by the finder of fact and may be affected by the 
 
            accuracy of the facts relied upon by the expert as well as 
 
            other surrounding circumstances.  The expert opinion may be 
 
            accepted or rejected, in whole or in part.  Sondag v. Ferris 
 
            Hardware, 220 N.W.2d 903 (Iowa 1974); Anderson v. Oscar 
 
            Mayer & Co., 217 N.W.2d 531 (Iowa 1974); Bodish v. Fischer, 
 
            Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).
 
            
 
                 Dr. Streib and Dr. Hales have opined that a causal 
 
            nexus exists between the employment and claimant's 
 
            disability.  Dr. Hales was a treating physician.  Both 
 
            opinions are based on claimant's verbal description of his 
 
            job.
 
            
 
                 Dr. Eversmann also is a treating physician, although he 
 
            did not perform surgery.  He took over care from Dr. Hales 
 
            when the latter physician moved out of state.  Unlike Drs. 
 
            Streib and Hales, Dr. Eversmann had an opportunity to view 
 
            claimant's actual job in detail.  His opinion that the job 
 
            did not cause claimant's disability is more persuasive than 
 
            the opinions of Drs. Hales and Streib.
 
            
 
                 Accordingly, it must be concluded that claimant has 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            failed to meet his burden of proof in establishing that he 
 
            sustained an injury arising out of and in the course of 
 
            employment.  Other issues are thereby rendered moot.
 
            
 
                                      order
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 Claimant shall take nothing from this proceeding.
 
            
 
                 Costs are assessed to defendant pursuant to rule 343 
 
            IAC 4.33.
 
            
 
                 Signed and filed this ____ day of January, 1993.
 
            
 
            
 
            
 
            
 
                                          
 
            ________________________________
 
                                          DAVID R. RASEY
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr Matthew J Petrzelka
 
            Attorney at Law
 
            115 3rd Street SE
 
            Suite 1200
 
            Cedar Rapids Iowa 52401
 
            
 
            Mr John M Bickel
 
            Attorney at Law
 
            500 Firstar Bank Building
 
            PO Box 2107
 
            Cedar Rapids Iowa 52406
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                      1108.50
 
                      Filed January 19, 1993
 
                      DAVID R. RASEY
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            ROBERT J. WOLFE,              :
 
                                          :
 
                 Claimant,                :      File No. 979295
 
                                          :
 
            vs.                           :   A R B I T R A T I O N
 
                                          :
 
            ORAL B LABORATORIES,          :      D E C I S I O N
 
                                          :
 
                 Employer,                :
 
                 Self-Insured,            :
 
                 Defendant.               :
 
            ___________________________________________________________
 
            
 
            1108.50
 
            Claimant underwent a median nerve release after he developed 
 
            upper extremity symptoms which he alleged were caused by 
 
            pronation/supination activities at work.  Based upon 
 
            claimant's description of his job, the treating surgeon 
 
            found that a causal nexus existed.  When the treating 
 
            surgeon moved out of state, the physician who continued 
 
            claimant's care actually visited the plant and viewed 
 
            claimant's exact job.  Based on this view, that physician 
 
            concluded that the job did not cause the median nerve 
 
            symptoms.  The second opinion was found move persuasive.
 
            
 
 
            
 
 
 
                      
 
 
 
 
 
                       BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
            HELEN H. DAVIS,       
 
                        
 
                 Claimant,   
 
                        
 
            vs.         
 
                                                 File No. 979357
 
            ROSE HAVEN NURSING HOME,   
 
                                                  A P P E A L
 
                 Employer,   
 
                                                 D E C I S I O N
 
            and         
 
                        
 
            ALLIED MUTUAL INSURANCE CO.,    
 
                        
 
                 Insurance Carrier,    
 
                 Defendants.      
 
            ____________________________________________________________
 
            
 
            The record, including the transcript of the hearing before 
 
            the deputy and all exhibits admitted into the record, has 
 
            been reviewed de novo on appeal.  The decision of the deputy 
 
            filed March 11, 1993 is affirmed and is adopted as the final 
 
            agency action in this case.
 
            Defendants shall pay the costs of the appeal, including the 
 
            preparation of the hearing transcript.
 
            Signed and filed this ____ day of July, 1993.
 
            
 
            
 
                                   ________________________________
 
                                            BYRON K. ORTON
 
                                      INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Thomas J. Currie
 
            Attorney at Law
 
            3401 Williams Blvd SW
 
            P O Box 998
 
            Cedar Rapids, Iowa  52406-0998
 
            
 
            Mr. David L. Jenkins
 
            Attorney at Law
 
            801 Grand Avenue
 
            Suite 3700
 
            Des Moines, Iowa  50309-2727
 
            
 
 
            
 
 
 
 
 
                    
 
 
 
                                               2206; 1108; 1803; 3700
 
                                               Filed July 26, 1993
 
                                               BYRON K. ORTON
 
            
 
                      BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
          
 
            HELEN H. DAVIS,       
 
                        
 
                 Claimant,   
 
                        
 
            vs.         
 
                                                 File No. 979357
 
            ROSE HAVEN NURSING HOME,   
 
                                                  A P P E A L
 
                 Employer,   
 
                                                 D E C I S I O N
 
            and         
 
                        
 
            ALLIED MUTUAL INSURANCE CO.,    
 
                        
 
                 Insurance Carrier,    
 
                 Defendants.      
 
            ____________________________________________________________
 
           
 
            
 
            2206; 1108
 
            Minor work incidents were held to have "lighted up" or 
 
            aggravated a calcified, necrotic intradural tumor, later 
 
            surgically removed.
 
            
 
            1803
 
            Although no medical restrictions were imposed, industrial 
 
            disability of 15 percent was awarded, based on history of 
 
            back surgery, unoperated bulging or herniated (but, now 
 
            asymptomatic) disc and failure to provide continued 
 
            employment.
 
            
 
            3700
 
            Claimant was discharged, allegedly for job misconduct.  Job 
 
            Service determination to the contrary was given preclusive 
 
            effect.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            HELEN H. DAVIS,               :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 979357
 
            ROSE HAVEN NURSING HOME,      :
 
                                          :    A R B I T R A T I O N
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            ALLIED MUTUAL INSURANCE       :
 
            COMPANY,                      :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 Claimant Helen Davis seeks benefits under the Iowa 
 
            Workers' Compensation Act upon her petition in arbitration 
 
            against defendant employer Rose Haven Nursing Home and its 
 
            insurance carrier, Allied Mutual Insurance Company.  
 
            Claimant asserts that she sustained a work injury to the 
 
            back on March 13, 1991; in particular, she alleges that two 
 
            incidents at work aggravated or "lit up" a previously 
 
            unknown condition, a calcified tumor near the spinal cord.
 
            
 
                 This cause came on for hearing in Cedar Rapids, Iowa on 
 
            January 6, 1993.  The following exhibits were received into 
 
            evidence: joint exhibits 1-6, claimant's exhibits 1-17 and 
 
            defendants' exhibits A-F.  The following witnesses testified 
 
            at hearing: claimant, Kimberly Holst, Alice Prince, Sharon 
 
            Fry and David Yearian.
 
            
 
                                      ISSUES
 
            
 
                 The parties have stipulated to the existence of an 
 
            employment relationship between claimant and Rose Haven 
 
            Nursing Home on March 13, 1991.  They have also stipulated 
 
            to the proper rate of compensation ($199.14 per week).  
 
            
 
                 Issues presented for resolution include:
 
            
 
                 1.  Whether claimant sustained injury arising out of 
 
            and in the course of her employment on March 13, 1991;
 
            
 
                 2.  Whether the injury caused either temporary or 
 
            permanent disabilities;
 
            
 
                 3.  The extent of each, if any;
 
            
 
                 4.  Entitlement to medical benefits.
 
            
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
                 With respect to medical benefits, it was stipulated 
 
            that the providers of medical services would testify in the 
 
            absence of contrary evidence that fees were reasonable and 
 
            incurred for reasonable and necessary treatment.  Causal 
 
            connection to the work injury was disputed.  Defendants also 
 
            disputed whether those expenses were authorized, but this 
 
            defense was ruled invalid at hearing, as defendants 
 
            forfeited the right to control the course of medical 
 
            treatment by denying liability on the claim.
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 The undersigned deputy industrial commissioner finds:
 
            
 
                 Helen Davis, 47 years of age at hearing, is a 1963 high 
 
            school graduate.  She took a course in practical nursing at 
 
            the University of Iowa in 1966 and became licensed as a LPN.  
 
            She is currently taking courses in a registered nursing 
 
            program and anticipates receiving her Associates of Arts 
 
            Degree in Spring, 1993.
 
            
 
                 Claimant worked as a nurse's aide from 1963 to 1966, on 
 
            a part time basis while in school and on a full time basis 
 
            otherwise.  Thereafter, she has continued working as an LPN 
 
            in the health care field with similar duties for a variety 
 
            of employers through the present date.  She now has largely 
 
            paper work duties for a home health care supplier.
 
            
 
                 Ms. Davis was employed by Rose Haven as a staff nurse 
 
            from early 1990 through April 19, 1991, when she was 
 
            discharged by Nursing Home Administrator, David Yearian.
 
            
 
                 Prior to March 13, 1991, claimant had no history of 
 
            back problems and had never sought medical care with respect 
 
            to her back.  On that date, she was working the p.m. shift, 
 
            and found it necessary to deliver two medical cardexes 
 
            weighing approximately seven pounds to Director of Nurses 
 
            Alice Prince, who was supervising that shift.  Claimant, 
 
            five feet ten inches tall, had to lean slightly over a wall 
 
            39 inches high and four inches thick to place the cardex on 
 
            the desk, roughly two feet away.  The desk was of roughly 
 
            standard height, approximately eight inches below the 
 
            opening in the adjacent wall.
 
            
 
                 Upon doing so, claimant experienced a sharp "grabbing" 
 
            sensation in the lower back with discomfort radiating to the 
 
            legs bilaterally.  She described this "grabbing" as similar 
 
            to a sharp muscle cramp.  Although Ms. Davis described the 
 
            incident as somewhat dramatic in nature (even that she was 
 
            unable to move for approximately two minutes), Alice Prince 
 
            noticed only that claimant grimaced and said "ouch," which 
 
            did not particularly concern or impress her that anything 
 
            was seriously wrong.
 
            
 
                 However, Prince also claimed that it was unnecessary 
 
            for claimant to bend (perhaps, except slightly) to place the 
 
            cardexes on the desk.  Common observation reveals that for a 
 
            five foot ten inch individual of normal proportions to place 
 
            a seven pound object held in both hands on a 31 inch surface 
 
            at a distance of two feet requires bending nearly 45 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            degrees.  The finder of fact does not accept that claimant 
 
            was able to pass over the cardexes without bending.
 
            
 
                 Claimant was able to walk off the pain.  However, she 
 
            suffered a recurrence later that same shift when she was 
 
            helping a resident up from her chair after dinner.  Ms. 
 
            Davis testified that her back has been sore ever since.
 
            
 
                 In any event, she was able to finish her shift and was 
 
            not scheduled to work the next day.  Although it is a little 
 
            unclear, judging from claimant's recorded statement of April 
 
            12, 1991 (to an insurance adjuster), she may have had 
 
            perhaps four more recurrences by the following day.
 
            
 
                 On March 15, claimant contacted her family physician, 
 
            Janet Gilbert, M.D.  This contact was by telephone; Dr. 
 
            Gilbert charted (erroneously, as "2"-15-91) that low back 
 
            pain had started Wednesday at work (February 13 and March 13 
 
            both fell on a Wednesday) and prescribed Ibuprofen and 
 
            Flexeril by phone. Claimant was taken off work.
 
            
 
                 Defendants suggest that this note reflects an injury 
 
            dating back to February 15, almost a month before the work 
 
            incidents complained of.  In a letter dated June 8, 1992, 
 
            Dr. Gilbert herself recognized that her chart note was in 
 
            error and should have been dated March 15.  That note itself 
 
            goes on to state that if claimant was not better, she should 
 
            call for an appointment on Monday, March 18.  This notation 
 
            would, of course, make no sense whatsoever if were recorded 
 
            on February 15.
 
            
 
                 On March 15, claimant's telephone complaint to Dr. 
 
            Gilbert was of low back pain.  She was first seen by Dr. 
 
            Gilbert on March 25, at which time she was described as 
 
            "much much better but still having some pain."  Dr. Gilbert 
 
            noted right sided pain in the greater sciatic notch and very 
 
            mildly positive straight leg raising on that side.  
 
            Assessment was of sacroiliac pain from inflammation.  
 
            Claimant was returned to work on a part time basis the same 
 
            day with restrictions.
 
            
 
                 The return to work did not go well.  Claimant saw Dr. 
 
            Gilbert again on March 28 complaining of increased pain 
 
            while sitting and was referred to an orthopedic physician, 
 
            Lawrence C. Strathman, M.D.
 
            
 
                 Dr. Strathman first saw claimant on March 28 with 
 
            complaints of pain localized to the low back.  Impression 
 
            was of acute low back strain.  Dr. Strathman charted that 
 
            claimant gave history of her legs going weak during the 
 
            nurses' station incident, this being consistent with 
 
            claimant's later testimony.
 
            
 
                 Chart notes of April 2 indicate that claimant 
 
            apparently phoned in complaining that she was unable to work 
 
            due to pain and burning in the back.  Dr. Strathman took her 
 
            off work until the next appointment, April 5.  Claimant 
 
            still complained of soreness, especially if sitting or 
 
            standing for a long time.  The discomfort was low over the 
 
            sacrum, more to the left side.  Claimant had discomfort 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            leaning to the left and extending.  However, straight leg 
 
            raising was negative.  Claimant was returned to work with 
 
            restrictions.
 
            
 
                 Ms. Davis continued to work until April 19.  The events 
 
            of that night precipitated her discharge.  Claimant felt put 
 
            upon by working with what she considered too few staff 
 
            members.  Alice Prince did not feel the staff size was 
 
            unusual and reported that claimant was angry on that night.  
 
            Sharon Fry, activity director, believed that claimant was 
 
            unreasonably prickly and upset, although claimant reported 
 
            that Fry was actually the one out of sorts.
 
            
 
                 Fry wrote out a letter to the administrator on April 22 
 
            regarding these events.  The letter was hand written.  
 
            Someone, presumably Administrator David Yearian or someone 
 
            at his direction, reduced this letter to a typed document.  
 
            Fry had ended her letter with the following paragraph:
 
            
 
                 I found the evening of 4-19-91 to be a relatively 
 
                 calm and quiet night.  There were no major 
 
                 disruptions or problems while I was there.  It was 
 
                 a routine shift.
 
            
 
                 The individual who typed Fry's letter altered that 
 
            paragraph as follows:
 
            
 
                 I found the evening of 4-19-91 to be a relatively 
 
                 calm and quiet night with the exception of the 
 
                 disruption caused by Helen Davis.
 
            
 
                 Sharon Fry signed both letters.  The "correction" of 
 
            the final paragraph is indicative of a conscious effort to 
 
            manufacture evidence by someone on behalf of defendant Rose 
 
            Haven.
 
            
 
                 In any event, claimant was discharged.  Although 
 
            defendants would have us believe this discharge was for job 
 
            misconduct, this is an issue that has already been litigated 
 
            and decided adversely.  A representative of Job Service of 
 
            Iowa (a sister agency to this) determined in a decision 
 
            dated August 29, 1991, that Rose Haven failed to furnish 
 
            sufficient evidence to establish misconduct for purposes of 
 
            unemployment compensation eligibility.  This adjudication is 
 
            entitled to preclusive effect.  Board of Supervisors, 
 
            Carroll County v. Chicago & North Western Transp. Co., 260 
 
            N.W.2d 813 (Iowa 1977).
 
            
 
                 In May, Dr. Strathman ordered a computerized tomography 
 
            scan which disclosed a probable herniated disc at L5-S1.  By 
 
            May 9, claimant found her symptoms "quite extreme" and 
 
            magnetic resonance imaging studies were ordered.  The MRI 
 
            discovered a lesion in the region of the conus medullaris 
 
            (the cone shaped lower end of the spinal cord at the level 
 
            of the upper lumbar vertebrae).  Then, a myelogram agreed.
 
            
 
                 By this time, claimant's severe symptoms were left 
 
            sided, and extending to the left leg.  Dr. Chad Abernathey 
 
            noted on July 17 that he did not believe the right sided 
 
            disc defect was contributing significantly to 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            symptomatology.  He recommended a surgical exploration of 
 
            L1-2 lesion, but defendants refused treatment in the belief 
 
            that the lesion and its symptomatology were not work 
 
            related.
 
            
 
                 On February 3, 1992, Dr. Abernathey wrote that he did 
 
            not feel that the lesion was secondary to the work related 
 
            injury, but that the small disc bulge might be.  However, he 
 
            suggested that the treating surgeon would have the best feel 
 
            for whether or not the lesion was the cause of 
 
            symptomatology and whether or not it was trauma related.
 
            
 
                 At the University of Iowa Hospitals and Clinics, 
 
            claimant underwent surgical removal of the lesion or tumor 
 
            on June 12, 1991.  Attending staff surgeon was Patrick W. 
 
            Hitchon, M.D.; resident surgeon was Richard K. Osenbach, 
 
            M.D.  Apparently both physicians participated in the 
 
            procedure, although claimant understood that Dr. Osenbach 
 
            was the primary surgeon.  The procedure was defined as 
 
            T12-L2 laminectomy, resection of intradural extramedullary 
 
            tumor.
 
            
 
                 Fortunately, the operation was successful.  Dr. Hitchon 
 
            reported on June 13 that claimant was now free of radicular 
 
            pain, although she continued to complain of incisional pain.  
 
            Before leaving the hospital, claimant required further 
 
            surgery to repair spinal fluid leakage, but no permanent 
 
            damage resulted.
 
            
 
                 Pathologist Gary L. Baumbach reported that the 
 
            intradural mass was probably a myxopapillary ependymoma that 
 
            had undergone extreme degeneration and regression, although 
 
            the diagnosis was somewhat presumptive in that the entire 
 
            mass was necrotic and contained no viable neoplastic cells.
 
            
 
                 On August 12, 1991, Dr. Hitchon wrote that claimant 
 
            could seek employment with a 30 pound weight lifting 
 
            restriction for three months from the last operation (June 
 
            23), but thereafter the restriction "may be lifted without 
 
            limitation."  Claimant was to be seen again for follow-up in 
 
            one year.
 
            
 
                 Claimant saw Dr. Hitchon again on September 21, 1992.  
 
            He reported on September 30 that claimant was found to be 
 
            neurologically intact and had no evidence of any permanent 
 
            impairment.  She was not expected to have one in the future 
 
            in the absence of tumor recurrence.
 
            
 
                 No physician has imposed permanent restrictions 
 
            relating either to the tumor or the lumbar disc problem.  
 
            Claimant, on the other hand, voluntarily limits her lifting 
 
            to 20 pounds and complains of residual pain ("like a 
 
            bruise") which is exacerbated if she stands, sits, bends, or 
 
            stoops extensively.  She claims that Dr. Hitchon verbally 
 
            advised her to "watch" lifting, bending and body alignment, 
 
            but no written restrictions of any kind appear of record.  
 
            The petition in this case was filed on May 10, 1991.  
 
            Claimant has had adequate time and opportunity to obtain 
 
            evidence of any restrictions imposed by Dr. Hitchon since 
 
            she has been represented by counsel.  If a party has the 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            power to produce more explicit and direct evidence than this 
 
            hearsay assertion, but does not, it may properly be inferred 
 
            that such other evidence would lay open deficiencies in its 
 
            case.  Crosser v. Iowa Dept. of Public Safety, 240 N.W.2d 
 
            682 (Iowa 1976).  Claimant has failed to prove the existence 
 
            of any medically imposed permanent restrictions relating to 
 
            the work injury of March 13, 1991.
 
            
 
                 Dr. Osenbach offered a detailed report dated September 
 
            25, 1991.  With respect to the "slightly bulging disc" on 
 
            the right at L5-S1, he felt it "possible" that the disc was 
 
            causally related to the transient right leg pain and that it 
 
            was "certainly possible" that the work incident of March 13 
 
            was causally related.  Dr. Osenbach did not believe the disc 
 
            problem caused the tumor to become symptomatic but pointed 
 
            out that "on occasion some tumors and cysts within the 
 
            spinal canal can become symptomatic following a episode of 
 
            trauma such as a lifting injury."  The doctor specified that 
 
            he could not state unequivocally that such a relationship 
 
            did exist.  However the doctor further noted that given the 
 
            temporal onset of symptoms following injury and the fact 
 
            that those symptoms had essentially resolved with the 
 
            removal of the tumor, one could "certainly argue the case" 
 
            for a causal nexus.
 
            
 
                 In a letter to claimant's attorney dated June 24, 1992, 
 
            Dr. Osenbach opined "that there is certainly greater than 
 
            50% chance that the precipitation of Mrs. Davis's symptoms 
 
            was related to the injury sustained at her job."  Defendants 
 
            strenuously argue that this constitutes a conflict with the 
 
            doctor's previous opinion and suggest that his credibility 
 
            is destroyed.  This writer sees no such conflict.
 
            
 
                 Claimant was also seen for evaluation by James B. 
 
            Worrell, M.D., in November 1992.  Dr. Worrell assigned a ten 
 
            percent impairment rating to the body as a whole (one 
 
            percent due to loss of motion of the spine, seven percent 
 
            due to the unoperated L5-S1 disc on the right and two 
 
            percent for sensory loss impairment of the left leg).  In a 
 
            letter dated December 2, 1992, he opined that claimant's 
 
            "back symptoms" were causally related to the work injury and 
 
            that he agreed with Dr. Osenbach's comments "[a]s far as the 
 
            relationship to the tumor."  Apparently then, Dr. Worrell 
 
            believes that the bulging or herniated disc was causally 
 
            related to the work injury under review.  Dr. Worrell did 
 
            not suggest any physical restrictions, although he 
 
            apparently was given an incorrect history of a 30 pound 
 
            lifting restriction and very limited patient care.  
 
            
 
                 Claimant's medical records were also reviewed by Daniel 
 
            J. McGuire, M.D., although he did not physically examine 
 
            claimant.  Dr. McGuire is a board certified orthopedic 
 
            surgeon and a frequent defense expert in litigation before 
 
            this agency.  In Dr. McGuire's view, the work incident of 
 
            March 13 neither caused the tumor nor caused it to become 
 
            symptomatic.  He believed that if trauma had caused the 
 
            tumor to become symptomatic, symptoms should have become and 
 
            remained constant, rather than changing over the first few 
 
            weeks.  He also found significant that the surgeon's report 
 
            and pathology reports did not indicate hemorrhage into the 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            tumor, which he would have expected had trauma caused the 
 
            onset of symptomatology.  Indeed, Dr. McGuire believed the 
 
            surgical and pathology reports to be "the most convincing 
 
            evidence" that the work incident did not cause the tumor to 
 
            become symptomatic.
 
            
 
                 It is found that claimant did experience two work 
 
            incidents on March 13, 1991 as she described.  As discussed 
 
            below, those incidents caused the spinal tumor to become 
 
            symptomatic, all of which directly resulted in two surgical 
 
            procedures.
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                 Although it is agreed that an employment relationship 
 
            existed between Helen Davis and Rose Haven Nursing Home on 
 
            March 13, 1991, the parties dispute whether claimant 
 
            sustained injury arising out of and in the course of 
 
            employment as she alleges.  
 
            
 
                 Claimant has the burden of proving by a preponderance 
 
            of the evidence that the alleged injury actually occurred 
 
            and that it arose out of and in the course of employment.  
 
            McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa 
 
            1976); Musselman v. Cent. Tel. Co., 261 Iowa 352, 154 N.W.2d 
 
            128 (1967).  The words "arising out of" refer to the cause 
 
            or source of the injury.  The words "in the course of" refer 
 
            to the time, place and circumstances of the injury.  Sheerin 
 
            v. Holin Co., 380 N.W.2d 415 (Iowa 1986); McClure v. Union 
 
            County, 188 N.W.2d 283 (Iowa 1971).
 
            
 
                 Claimant also has the burden of proving by a 
 
            preponderance of the evidence that the injury is a proximate 
 
            cause of the disability on which the claim is based.  A 
 
            cause is proximate if it is a substantial factor in bringing 
 
            about the result; it need not be the only cause.  A 
 
            preponderance of the evidence exists when the causal 
 
            connection is probable rather than merely possible.  
 
            Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa 
 
            1980); Holmes v. Bruce Motor Freight, Inc., 215 N.W.2d 296 
 
            (Iowa 1974).
 
            
 
                 It has been also said that the "arising out of" 
 
            requirement is satisfied by showing a causal relationship 
 
            between the employment and the injury.  Sheerin v. Holin 
 
            Co., 380 N.W.2D 415 (Iowa 1986).
 
            
 
                 The question of causal connection is essentially within 
 
            the domain of expert testimony.  The expert medical evidence 
 
            must be considered with all other evidence introduced 
 
            bearing on the causal connection between the injury and the 
 
            disability.  The weight to be given to any expert opinion is 
 
            determined by the finder of fact and may be affected by the 
 
            accuracy of the facts relied upon by the expert as well as 
 
            other surrounding circumstances.  The expert opinion may be 
 
            accepted or rejected, in whole or in part.  Sondag v. Ferris 
 
            Hardware, 220 N.W.2d 903 (Iowa 1974); Anderson v. Oscar 
 
            Mayer & Co., 217 N.W.2d 531 (Iowa 1974); Bodish v. Fischer, 
 
            Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).
 
            
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
                 A personal injury contemplated by the workers' 
 
            compensation law means an injury, the impairment of health 
 
            or a disease resulting from an injury which comes about, not 
 
            through the natural building up and tearing down of the 
 
            human body, but because of trauma.  The injury must be 
 
            something which acts extraneously to the natural processes 
 
            of nature and thereby impairs the health, interrupts or 
 
            otherwise destroys or damages a part or all of the body.  
 
            Although manylatively light 
 
            weight, it is magnified in a bending position with the arms 
 
            outstretched, much as a lever on a fulcrum.  This is clearly 
 
            a vulnerable posture.  Physicians have frequently testified 
 
            before this agency that even minor twists and turns or 
 
            lifting may cause injury or even herniate a disc; more than 
 
            one has pointed out that even a sneeze can do so.  The 
 
            second incident, when claimant was helping a resident rise 
 
            from a chair, is much more typical of the onset of back 
 
            symptomatology, since it involved relatively strenuous 
 
            lifting.  Taken together, these two incidents led to and 
 
            "lighted up" the discovery and eventual surgical excision of 
 
            claimant's spinal tumor.  Since, at minimum, these incidents 
 
            caused claimant to be off work from March 15 through March 
 
            25 and April 2 through April 5, an injury arising out of and 
 
            in the course of employment has been established.
 
            
 
                 Testing eventually uncovered two separate problems: a 
 
            right-sided disc bulge or herniation at L5-S1 (medical 
 
            opinion varies as to which) and the tumor at the top of the 
 
            lumbar spine.  Causation as to these problems must be 
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            discussed separately.
 
            
 
                 With respect to the bulging or herniated disc, Dr. 
 
            Hitchon expressed no opinion, Dr. Osenbach found only a 
 
            "possibility" of a causal nexus and Dr. Worrell was able to 
 
            state quite definitely that "her back symptoms" were 
 
            causally related, which presumably includes the lumbar disc, 
 
            since his impairment rating included the disc.  Dr. McGuire 
 
            did not address this question.  However, claimant has 
 
            basically not had right-sided symptoms since the early weeks 
 
            following injury.  Still, the only two physicians to express 
 
            an opinion find, respectively, a possibility that the 
 
            bulging disc was caused by the injury and a "definite" 
 
            opinion on causality.  The weight of the evidence 
 
            establishes that the pathological disc condition at L5-S1, 
 
            whether the same be merely bulging or actually herniated, is 
 
            causally related to the work injury.
 
            
 
                 There is a range of opinion with respect to the tumor.  
 
            Claimant does not allege that the work caused her tumor, but 
 
            only that it was caused to become symptomatic.  Since, as 
 
            seen above, an aggravation or "lighting up" of a preexisting 
 
            condition is compensable, this allegation is sufficient if 
 
            it is proven.
 
            
 
                 Dr. Hitchon wrote on November 16, 1992, that he could 
 
            not incriminate any event as being directly or indirectly 
 
            responsible for the tumor.  He does not express an opinion 
 
            either way on whether any incident caused the tumor to 
 
            become symptomatic.  Thus, his opinion is irrelevant to 
 
            claimant's theory of the case.  Dr. Osenbach, the other 
 
            treating surgeon, finds there to be a greater than 50 
 
            percent chance that the work injury caused the onset of 
 
            symptoms.  Of course, it will be noted that claimant was 
 
            asymptomatic before the incident and symptomatic afterwards.  
 
            It is hardly unreasonable to find significance in this 
 
            strictly temporal relationship.  Similarly, Dr. Worrell has 
 
            opined that a causal relationship exists.
 
            
 
                 This leaves Dr. McGuire.  Dr. McGuire never saw 
 
            claimant, but only reviewed certain medical records.  In his 
 
            letter of December 4, 1992, he betrays unfamiliarity even 
 
            with those, in that he reports that the board certified 
 
            physicians who were "caring" for claimant "did not feel the 
 
            work incident caused the tumor or caused the tumor to become 
 
            symptomatic."  This assertion is clearly erroneous.  Dr. 
 
            McGuire relies heavily upon the surgical report and the 
 
            pathology report in reaching his opinion.  However, the only 
 
            one of the actual surgeons to offer an opinion as to the 
 
            causation of symptoms reached an opposite conclusion.  And, 
 
            it is noted that in the experience of this agency, Dr. 
 
            McGuire is well known for consistently offering 
 
            defense-friendly opinions in litigated cases.  Under Iowa 
 
            Code section 17A.14(5), the agency's experience, technical 
 
            competence and specialized knowledge may be utilized in the 
 
            evaluation of evidence.
 
            
 
                 All things considered, the opinions of Drs. Osenbach 
 
            and Worrell are entitled to greater weight than the opinion 
 
            of Dr. McGuire.
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
            
 
                 Since this decision finds that claimant sustained 
 
            permanent disability, it is necessary to determine the 
 
            extent of her healing period.  Under Iowa Code section 
 
            85.34(1), healing period is compensable beginning on the 
 
            date of injury and continuing until the employee has 
 
            returned to work, it is medically indicated that significant 
 
            improvement from the injury is not anticipated, or until the 
 
            employee is medically capable of returning to substantially 
 
            similar employment, whichever first occurs.  Healing period 
 
            can be interrupted or intermittent.  Willis v. LeHigh 
 
            Portland Cement Co., 2-1 Iowa Industrial Commissioner 
 
            Decisions 485 (1984).
 
            
 
                 The record shows that claimant was off work from March 
 
            15 through March 25 (11 days), April 2 through April 5 (4 
 
            days) and from June 12 through "three months" from the 
 
            second surgery, which occurred on June 23.  Therefore, it is 
 
            held that the final segment of healing period ran from June 
 
            12 through September 23, 1991 (14 weeks, 6 days).  The total 
 
            is 17 weeks, 0 days.
 
            
 
                 Next, it is appropriate to turn to the question of 
 
            permanent partial disability.
 
            
 
                 Functional impairment is an element to be considered in 
 
            determining industrial disability which is the reduction of 
 
            earning capacity, but consideration must also be given to 
 
            the injured employee's age, education, qualifications, expe
 
            rience and inability to engage in employment for which the 
 
            employee is fitted.  Olson v. Goodyear Serv. Stores, 255 
 
            Iowa 1112, 125 N.W.2d 251 (1963); Barton v. Nevada Poultry, 
 
            253 Iowa 285, 110 N.W.2d 660 (1961).
 
            
 
                 A finding of impairment to the body as a whole found by 
 
            a medical evaluator does not equate to industrial 
 
            disability.  Impairment and disability are not synonymous.  
 
            The degree of industrial disability can be much different 
 
            than the degree of impairment because industrial disability 
 
            references to loss of earning capacity and impairment 
 
            references to anatomical or functional abnormality or loss.  
 
            Although loss of function is to be considered and disability 
 
            can rarely be found without it, it is not so that a degree 
 
            of industrial disability is proportionally related to a 
 
            degree of impairment of bodily function.
 
            
 
                 Factors to be considered in determining industrial dis
 
            ability include the employee's medical condition prior to 
 
            the injury, immediately after the injury, and presently; the 
 
            situs of the injury, its severity and the length of the 
 
            healing period; the work experience of the employee prior to 
 
            the injury and after the injury and the potential for 
 
            rehabilitation; the employee's qualifications 
 
            intellectually, emotionally and physically; earnings prior 
 
            and subsequent to the injury; age; education; motivation; 
 
            functional impairment as a result of the injury; and 
 
            inability because of the injury to engage in employment for 
 
            which the employee is fitted.  Loss of earnings caused by a 
 
            job transfer for reasons related to the injury is also 
 
            relevant.  Likewise, an employer's refusal to give any sort 
 

 
            
 
            Page  11
 
            
 
            
 
            
 
            
 
            of work to an impaired employee may justify an award of 
 
            disability.  McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 
 
            (Iowa 1980).  These are matters which the finder of fact 
 
            considers collectively in arriving at the determination of 
 
            the degree of industrial disability.
 
            
 
                 There are no weighting guidelines that indicate how 
 
            each of the factors are to be considered.  Neither does a 
 
            rating of functional impairment directly correlate to a 
 
            degree of industrial disability to the body as a whole.  In 
 
            other words, there are no formulae which can be applied and 
 
            then added up to determine the degree of industrial 
 
            disability.  It therefore becomes necessary for the deputy 
 
            or commissioner to draw upon prior experience as well as 
 
            general and specialized knowledge to make the finding with 
 
            regard to degree of industrial disability.  See Christensen 
 
            v. Hagen, Inc., Vol. 1 No. 3 State of Iowa Industrial 
 
            Commissioner Decisions 529 (App. March 26, 1985); Peterson 
 
            v. Truck Haven Cafe, Inc., Vol. 1 No. 3 State of Iowa 
 
            Industrial Commissioner Decisions 654 (App. February 28, 
 
            1985).
 
            
 
                 Compensation for permanent partial disability shall 
 
            begin at the termination of the healing period.  
 
            Compensation shall be paid in relation to 500 weeks as the 
 
            disability bears to the body as a whole.  Section 85.34.
 
            
 
                 At present, claimant has no medically imposed physical 
 
            restrictions.  For obvious reasons, self-imposed 
 
            restrictions are much less reliable in determining extent of 
 
            industrial disability.  There is nothing claimant could do 
 
            before that she cannot do now in terms of medical 
 
            restriction.  There are, however, two factors supporting an 
 
            award of industrial disability.  Claimant's surgical history 
 
            and unoperated lumbar disc may cause her to be a less 
 
            desirable employee in the eyes of at least some potential 
 
            employers.  And, defendants refused to give claimant 
 
            continued employment following the injury.  This, of itself, 
 
            may justify an award.  McSpadden v. Big Ben Coal Co., 288 
 
            N.W.2d 181 (Iowa 1980); Pigneri v. Ringland-Johnson-Crowley, 
 
            Number 838742 (Appeal Decision, July 31, 1991).  The 
 
            commissioner has awarded ten percent industrial disability 
 
            where this was the only apparent factor supporting an award.  
 
            Galli v. Advanced Drainage Systems, Inc., Number 825795 
 
            (Appeal Decision, November 30, 1989).
 
            
 
                 Considering then these factors in specific and the 
 
            record otherwise in general, it is held that claimant has 
 
            sustained a permanent industrial disability equivalent to 
 
            fifteen percent of the body as a whole, or 75 weeks.  
 
            Claimant's assertion that she should be awarded additional 
 
            industrial disability because Administrator Yearian has 
 
            persisted in denying any injury whatsoever is rejected as an 
 
            improper factor in determining industrial disability.
 
            
 
                 The parties also dispute entitlement to medical 
 
            benefits, although it is agreed that providers of services 
 
            would testify in the absence of contrary evidence that fees 
 
            charged were fair and reasonable and incurred for reasonable 
 
            and necessary treatment.  The expenses are attached as an 
 

 
            
 
            Page  12
 
            
 
            
 
            
 
            
 
            addendum to the prehearing report as follows:
 
            
 
            Anesthesiologists Office Svc         $   336.00
 
            Cedar Rapids Radiologists                770.00
 
            Iowa Medical Clinic, P.C.                447.00
 
            The University of Iowa
 
            Hospitals and Clinics                 28,896.54
 
            Williamsburg Family Practice Ctr          66.00
 
            Marengo Memorial Hospital                199.00
 
            Mercy Medical Center                   3,817.30
 
            Medical Mileage (1,564 miles)            328.44
 
            Prescriptions                             51.08
 
                                                 $34,911.36
 
            
 
                 Causal relationship is established as per the foregoing 
 
            analysis.  Defendants shall pay the above medical bills.
 
            
 
                           
 
            
 
            
 
            Page  13
 
            
 
            
 
            
 
            
 
                                      ORDER
 
            
 
                 THEREFORE IT IS ORDERED:
 
            
 
                 Defendants shall pay seventeen (17) weeks of 
 
            intermittent healing period benefits (March 15 through March 
 
            25, April 2 through April 5, and June 12 through September 
 
            23, 1991) at the stipulated rate of one hundred ninety-nine 
 
            and 14/100 dollars ($199.14), totalling three thousand three 
 
            hundred eighty-five and 38/100 dollars ($3,385.38).
 
            
 
                 Defendants shall pay unto claimant seventy-five (75) 
 
            weeks of permanent partial disability benefits commencing 
 
            September 24, 1991, at the stipulated rate, totalling 
 
            fourteen thousand nine hundred thirty-five and 50/100 
 
            dollars ($14,935.50).
 
            
 
                 All accrued weekly benefits shall be paid in a lump sum 
 
            together with statutory interest.
 
            
 
                 Defendants shall pay the medical bills set forth above 
 
            totalling thirty-four thousand nine hundred eleven and 
 
            36/100 dollars ($34,911.36).
 
            
 
                 Defendants shall file claim activity reports as 
 
            required by the agency and upon compliance with this award.
 
            
 
                 Costs of this action are assessed to defendants 
 
            pursuant to rule 343 IAC 4.33.
 
            
 
                 Signed and filed this ____ day of March, 1993.
 
            
 
            
 
            
 
            
 
                                          
 
                                       ________________________________
 
                                          DAVID R. RASEY
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr Thomas J Currie
 
            Attorney at Law
 
            3401 Williams Blvd SW
 
            PO Box 998
 
            Cedar Rapids Iowa 52406-0998
 
            
 
            Mr David L Jenkins
 
            Attorney at Law
 
            801 Grand Avenue
 
            Suite 3700
 
            Des Moines Iowa 50309-2727
 
            
 
 
            
 
 
 
                
 
                
 
                                            2206; 1108; 1803; 3700
 
                                            Filed March 11, 1993
 
                                            DAVID R. RASEY
 
            
 
                   BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                      
 
            HELEN H. DAVIS,     
 
                      
 
                 Claimant, 
 
                      
 
            vs.       
 
                                             File No. 979357
 
            ROSE HAVEN NURSING HOME, 
 
                                             A R B I T R A T I O N
 
                 Employer, 
 
                                             D E C I S I O N
 
            and       
 
                      
 
            ALLIED MUTUAL INSURANCE  
 
            COMPANY,  
 
                      
 
                 Insurance Carrier,  
 
                 Defendants.    
 
            ___________________________________________________________
 
            
 
            2206; 1108
 
            
 
            Minor work incidents were held to have "lighted up" or 
 
            aggravated a calcified, necrotic intradural tumor, later 
 
            surgically removed.
 
            
 
            1803
 
            Although no medical restrictions were imposed, industrial 
 
            disability of 15 percent was awarded, based on history of 
 
            back surgery, unoperated bulging or herniated (but, now 
 
            asymptomatic) disc and failure to provide continued 
 
            employment.
 
            
 
            3700
 
            Claimant was discharged, allegedly for job misconduct.  Job 
 
            Service determination to the contrary was given preclusive 
 
            effect.
 
            
 
 
            
 
            
 
            
 
            
 
            
 
                      BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                      
 
            ARTHUR JEFFREY BATES,    
 
                      
 
                 Claimant, 
 
                      
 
            vs.       
 
                                                 File No. 979525
 
            WOLFE MASONRY COMPANY, INC.,  
 
                                              A R B I T R A T I O N
 
                 Employer, 
 
                                                 D E C I S I O N
 
            and       
 
                      
 
            HAWKEYE-SECURITY INSURANCE    
 
            COMPANY,  
 
                      
 
                 Insurance Carrier,  
 
                 Defendants.    
 
            ___________________________________________________________
 
                              STATEMENT OF THE CASE
 
            
 
                 Claimant Arthur Bates seeks Iowa workers' compensation 
 
            benefits pursuant to his petition in arbitration against his 
 
            employer, Wolfe Masonry Company, Inc., and insurance carrier 
 
            Hawkeye-Security Insurance Company.  Mr. Bates sustained an 
 
            injury to his back in a fall on March 19, 1991.  A hearing 
 
            was thereupon held in Des Moines, Iowa on April 1, 1993.  
 
            The record consists of claimant's exhibits 1 through 17, 
 
            defendants' exhibits A and B, and the testimony of claimant 
 
            and Leonard Wolfe.  
 
            
 
                                      ISSUES
 
            
 
                 The parties have stipulated that claimant sustained 
 
            injury arising out of and in the course of his employment on 
 
            March 19, 1991, that the injury caused temporary disability 
 
            from March 20 through July 14, 1991, to the rate of 
 
            compensation ($161.50), and that defendants are entitled to 
 
            credit for voluntary payment of 35 weeks of permanent 
 
            partial disability benefits.
 
            
 
                 Issues presented for resolution include:
 
            
 
                 1.  Whether the injury caused permanent disability;
 
            
 
                 2.  If so, the extent of claimant's industrial 
 
            disability; and,
 
            
 
                 3.  Entitlement to medical benefits.
 
            
 
                 With respect to medical benefits, defendants dispute 
 
            whether fees or prices charged by the provider (of a 
 
            hospital bed) are fair and reasonable, whether that 
 
            treatment was reasonable and necessary, and whether the 
 
            expense is causally connected either to the work injury or 
 
            to the medical condition upon which the claim is based.  
 
            Authorization was disputed by defendants, but that defense 
 
            was ruled invalid at hearing because defendants denied 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            liability on the claim, thus forfeiting the right to control 
 
            medical care.  
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 The undersigned deputy industrial commissioner finds:
 
            
 
                 Arthur Bates, 34 years of age at hearing, is a 1977 
 
            high school graduate.  Prior to the work injury, Mr. Bates 
 
            completed one semester of community college work in 
 
            drafting.  He has since returned to school and anticipates 
 
            receiving an Associate of Arts degree in drafting technology 
 
            in May 1993.  Mr. Bates has maintained a B average in his 
 
            studies.  There is no showing that defendants have helped 
 
            finance his continued education.  
 
            
 
                 Claimant's work history includes being a bottle sorter 
 
            and route salesman for a soft drink bottler, concrete block 
 
            mason, armored car driver and messenger, packing house 
 
            worker (almost five years), construction laborer, part-time 
 
            taxi cab driver and two separate stints as a laborer for 
 
            defendant Wolfe Masonry Company.  Claimant was so employed 
 
            for approximately four months at age 20, and again for one 
 
            and one-half days prior to the subject work injury.  
 
            Claimant also anticipates accepting work as a production 
 
            manager for Able Waterproofing after receiving his 
 
            Associate's degree.  He participated in a job training 
 
            program with that employer for nine weeks during the summer 
 
            of 1992.
 
            
 
                 Claimant was injured on his second day on the job (as a 
 
            laborer earing $6.50 per hour) when a scaffold broke and he 
 
            fell roughly 12 or 13 feet.  X-ray examination at Iowa 
 
            Methodist Medical Center disclosed slightly comminuted, 
 
            wedge-type acute compression fracture deformities at 
 
            vertebral bodies T9, T10, and T11.  Claimant's treating 
 
            physician was Daniel J. McGuire, M.D..  
 
            
 
                 Dr. McGuire found claimant to be neurologically intact 
 
            and the spine was stable.  He was discharged home on March 
 
            23, 1991 for bed rest of 20 to 22 hours per day.
 
            
 
                 Claimant rented a hospital bed for this purpose for one 
 
            month at a cost of $100.  The record does not show that this 
 
            item was prescribed by Dr. McGuire.  
 
            
 
                 On May 9, Dr. McGuire released claimant to return to 
 
            part-time work (three to four hours per day) with a 
 
            restriction against lifting more than 30 to 40 pounds.  
 
            Chart notes of May 24 reflect that claimant still had back 
 
            pain and that Dr. McGuire told him this might continue for 
 
            the rest of his life, but that the associated disability was 
 
            "small."
 
            
 
                 On June 13, Dr. McGuire encouraged claimant to return 
 
            to work at four hours per day with a lifting restriction of 
 
            50 pounds.  However, claimant was not allowed to return to 
 
            work.  On July 11, Dr. McGuire released him to return to 
 
            "full duty."  Claimant attempted to return to work for 
 
            one-half day before he and another worker were released.  
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            Claimant has made further attempts to return to work with 
 
            Wolfe Masonry, but has not been hired (although other 
 
            workers have been hired).  Leonard Wolfe, defendants' owner, 
 
            testified that claimant was not a good worker.  Of course, 
 
            this is inconsistent with the fact that he was hired for a 
 
            second time prior to the work injury, and briefly put back 
 
            to work afterwards.
 
            
 
                 It does not appear that Dr. McGuire has imposed any 
 
            permanent restrictions.  Claimant was found to have reached 
 
            maximum medical improvement on August 22, 1991.  Dr. McGuire 
 
            estimated a permanent "disability" (read as "impairment") of 
 
            seven percent according to American Medical Association 
 
            Guidelines.  Claimant was released PRN (return as needed).  
 
            
 
                 Claimant was also seen for evaluation on October 10, 
 
            1992, by Jack W. Brindley, M.D..  Like Dr. McGuire, Dr. 
 
            Brindley is an orthopedic surgeon.  Dr. Brindley found 
 
            claimant's prognosis to be "somewhat guarded," and estimated 
 
            physical impairment to the body as a whole as 10 percent.  
 
            Dr. Brindley also recommended restrictions against lifting 
 
            in excess of 50 pounds and against frequent bending.  
 
            
 
                 Dr. Brindley's proposed restrictions appear more 
 
            suitable to claimant's current condition than the 
 
            unrestricted release from Dr. McGuire.  Claimant currently 
 
            suffers discomfort when he stands or sits in excessive of 30 
 
            minutes, finds bending and pushing difficult, and is less 
 
            able to engage in certain recreational activities such as 
 
            motorcycle riding, golf and bowling.
 
            
 
                 Claimant has sought other work while attending school 
 
            (full-time since August 1991).  One employer, a meat packer, 
 
            refused employment due to claimant's medical history.  While 
 
            this refusal to hire may relate to claimant's back 
 
            condition, it may equally well relate to his heart condition 
 
            (rheumatic fever as a child, and a later history of 
 
            "galloping" heart rate diagnosed as paroxysmal 
 
            supraventricular tachycardia or atrial fibrillation). 
 
            
 
                         ANALYSES AND CONCLUSIONS OF LAW
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury is a proximate 
 
            cause of the disability on which the claim is based.  A 
 
            cause is proximate if it is a substantial factor in bringing 
 
            about the result; it need not be the only cause.  A 
 
            preponderance of the evidence exists when the causal 
 
            connection is probable rather than merely possible.  
 
            Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa 
 
            1980); Holmes v. Bruce Motor Freight, Inc., 215 N.W.2d 296 
 
            (Iowa 1974).
 
            
 
                 The question of causal connection is essentially within 
 
            the domain of expert testimony.  The expert medical evidence 
 
            must be considered with all other evidence introduced 
 
            bearing on the causal connection between the injury and the 
 
            disability.  The weight to be given to any expert opinion is 
 
            determined by the finder of fact and may be affected by the 
 
            accuracy of the facts relied upon by the expert as well as 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            other surrounding circumstances.  The expert opinion may be 
 
            accepted or rejected, in whole or in part.  Sondag v. Ferris 
 
            Hardware, 220 N.W.2d 903 (Iowa 1974); Anderson v. Oscar 
 
            Mayer & Co., 217 N.W.2d 531 (Iowa 1974); Bodish v. Fischer, 
 
            Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).
 
            
 
                 Defendants dispute that the injury caused permanent 
 
            disability.  While Dr. McGuire did not impose medical 
 
            restrictions, he has rated permanent impairment to the body 
 
            as a whole, which implies loss of function.  He also has 
 
            suggested that claimant may have lifelong pain.  Claimant's 
 
            post-injury history suggests that this is true.  Dr. 
 
            Brindley has also rated impairment and has suggested medical 
 
            restrictions.  
 
            
 
                 No physician whatsoever has testified that the injury 
 
            did not cause permanent disability.  Claimant has 
 
            unquestionably met his burden of proof on the issue.
 
            
 
                 Claimant has sustained industrial disability.  
 
            Industrial disability was defined in Diederich v. Tri-City 
 
            Ry. Co., 219 Iowa 587, 258 N.W.2d 899 (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, motivation, loss of earnings, severity and situs 
 
            of the injury, work restrictions, inability to engage in 
 
            employment for which the employee is fitted and the 
 
            employer's offer of work or failure to so offer.  Olson v. 
 
            Goodyear Serv. Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963); 
 
            McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980); 
 
            Barton v. Nevada Poultry Co., 253 Iowa 285, 110 N.W.2d 660 
 
            (1961).
 
            
 
                 Compensation for permanent partial disability shall 
 
            begin at the termination of the healing period.  
 
            Compensation shall be paid in relation to 500 weeks as the 
 
            disability bears to the body as a whole.  Section 85.34.
 
            
 
                 The restrictions suggested by Dr. Brindley seem more 
 
            consistent with claimant's current condition of ill-being 
 
            than the unconditional release by Dr. McGuire.  Also, Dr. 
 
            Brindley has had the opportunity to see claimant more 
 
            recently than Dr. McGuire, although for evaluation as 
 
            opposed to treatment.  It is not necessarily the case that a 
 
            treating physician's testimony is to be given more weight 
 
            than a later examining physician.  Rockwell Graphics 
 
            Systems, Inc. v. Prince, 366 N.W.2d 187 (Iowa 1985).  
 
            
 
                 Dr. Brindley's restrictions will foreclose claimant 
 
            from some of the jobs he has previously held, including soft 
 
            drink route sales (tanks weigh from 50 to 60 pounds) masonry 
 
            laborer (Leonard Wolfe concedes that a laborer must lift at 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            least 90 pounds) and some packing house work (which requires 
 
            substantial lifting and bending).  Defendants are not 
 
            entitled to substantial "credit" for claimant's subsequent 
 
            educational attainments because they have not contributed to 
 
            the cost.  Nonetheless, it is incontrovertible in light of 
 
            those attainments that claimant had a true capacity for 
 
            retraining at the time of injury.  Claimant has lost 
 
            substantial earnings through his lengthy unemployment 
 
            following the injury and defendant's refusal or inability to 
 
            offer continued employment is, by itself, a factor 
 
            justifying an award of industrial disability, see McSpadden 
 
            v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980) and numerous 
 
            subsequent cases decided by this agency.
 
            
 
                 Considering then these factors in specific and the 
 
            record otherwise in general, it is held that claimant has 
 
            sustained an industrial disability equivalent to 20 percent 
 
            to the body as a whole, or 100 weeks.  
 
            
 
                 Under Iowa Code section 85.27, defendants are required 
 
            to furnish reasonable services and supplies to treat an 
 
            injured employee.  The only "medical" item in dispute is the 
 
            $100 hospital bed rental.  While this may seem to be a 
 
            common sense item for an injured worker sent home to 20 to 
 
            22 hours of bed rest per day, the record fails to show that 
 
            rental of this bed was medically prescribed.  It is 
 
            claimant's burden to prove "the necessity of treatment and 
 
            the reasonableness of charges."  The latter requires expert 
 
            opinion under current agency precedent.  Anderson v. High 
 
            Rise Construction Specialists, Inc., file number 850096 
 
            (App. Decn. July 31, 1990).  Accordingly, claimant is not 
 
            entitled to reimbursement on this record.
 
            
 
                                      ORDER
 
            
 
                 THEREFORE IT IS ORDERED:
 
            
 
                 Defendants shall pay unto claimant one hundred (100) 
 
            weeks of permanent partial disability at the stipulated rate 
 
            of one hundred sixty-one and 56/100 dollars ($161.56) 
 
            commencing July 14, 1991.  
 
            
 
                 Defendants shall have credit for thirty-five (35) weeks 
 
            of permanent partial disability voluntarily paid prior to 
 
            hearing.
 
            
 
                 All accrued benefits shall be paid in a lump sum 
 
            together with statutory interest.
 
            
 
                 Defendants shall file a claim activity report upon 
 
            compliance.
 
            
 
                 Costs of this action are assessed to defendants.
 
            
 
                 Signed and filed this ____ day of May, 1993.
 
            
 
            
 
            
 
            
 
                                         
 

 
            
 
            Page   6
 
            
 
            
 
            
 
                                          -----------------------------
 
                                          DAVID R. RASEY
 
                                          DEPUTY INDUSTRIAL COMMISSIONER    
 
            
 
            Copies to:
 
            
 
            Mr. J. Terrence Denefe
 
            Attorney at Law
 
            104 South Court Street
 
            PO Box 493
 
            Ottumwa, IA  52501
 
            
 
            Mr. Thomas Henderson
 
            Attorney at Law
 
            1300 First Interstate Bank Bldg.
 
            Des Moines, IA  50309
 
            
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                 5-1803; 2504
 
                                                 Filed May 5, 1993
 
                                                 David R. Rasey
 
            
 
                      BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                      
 
            ARTHUR JEFFREY BATES,    
 
                      
 
                 Claimant, 
 
                      
 
            vs.       
 
                                                 File No. 979525
 
            WOLFE MASONRY COMPANY, INC.,  
 
                                             A R B I T R A T I O N
 
                 Employer, 
 
                                                 D E C I S I O N
 
            and       
 
                      
 
            HAWKEYE-SECURITY INSURANCE    
 
            COMPANY,  
 
                      
 
                 Insurance Carrier,  
 
                 Defendants.    
 
            ___________________________________________________________
 
            
 
            5-1803
 
            Industrial disability was determined.
 
            
 
            2504
 
            
 
            Although claimant was released home for 20 to 22 hours per 
 
            day of bed rest following three level thoracic fracture, he 
 
            failed to present expert testimony that the rental of a 
 
            hospital bed was reasonable (or that it was medically 
 
            prescribed).  Reimbursement on this item was denied.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            WILLIAM W. PIERCE,            :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :       File No. 979540
 
            MENEFEE DRYWALL COMPANY, INC.,:
 
                                          :    A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            CNA INSURANCE COMPANIES,      :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
                          STATEMENT OF THE CASE
 
            
 
                 This is a proceeding in arbitration brought by William 
 
            W. Pierce, claimant, against Menefee Drywall Company, Inc., 
 
            employer, hereinafter referred to as Menefee, and CNA, 
 
            insurance carrier, defendants, for workers' compensation 
 
            benefits as a result of an alleged injury on March 12, 1991.  
 
            On March 9, 1993, a hearing was held on claimant's petition 
 
            and the matter was considered fully submitted at the close 
 
            of this hearing.
 
            
 
                 The parties have submitted a hearing report of con
 
            tested issues and stipulations which was approved and 
 
            accepted as a part of the record of this case at the time of 
 
            hearing.  The oral testimony and written exhibits received 
 
            during the hearing are set forth in the hearing transcript.
 
            
 
                 According to the prehearing report, the parties have 
 
            stipulated to the following matters:
 
            
 
                 1.  An employer-employee relationship existed between 
 
            claimant and Menefee at the time of the alleged injury.
 
            
 
                 2.  Claimant is seeking temporary total or healing 
 
            period benefits only from March 13, 1991 through May 7, 1991 
 
            and from May 16, 1991 through August 16, 1991 and defendants 
 
            agree that if they are liable for the injury, claimant is 
 
            entitled to such benefits for these periods of time.
 
            
 
                 3.  At the time of injury claimant's gross rate of 
 
            weekly compensation was $526.00; he was single; and he was 
 
            entitled to one exemption.  Therefore, claimant's weekly 
 
            rate of compensation is $303.72 according to the Industrial 
 
            Commissioner's published rate booklet for this injury.
 
            
 
                                      ISSUES
 
            
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
                 The parties submitted the following issues for determi
 
            nation in this proceeding:
 
            
 
                  I.  Whether claimant received an injury arising out of 
 
            and in the course of employment; and,
 
            
 
                 II.  The extent of claimant's entitlement to disability 
 
            benefits.
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 Having heard the testimony and considered all of the 
 
            evidence, the deputy industrial commissioner finds as 
 
            follows:
 
            
 
                 A credibility finding from claimant's demeanor was not 
 
            possible as claimant failed to appear for hearing and only 
 
            testified by written deposition out of the presence of the 
 
            undersigned administrative law judge.
 
            
 
                 Claimant worked for Menefee as a drywaller from July 
 
            1990 until August 1991.  His duties consisted of hanging 
 
            drywall and framing. 
 
            
 
                 On or about March 12, 1991, claimant injured his back 
 
            after lifting a 130 pound sheet of drywall with a fellow 
 
            employee.  Claimant twisted and he felt a snap in the back.  
 
            The pain grew worse during the course of the day and 
 
            claimant could resume working the next couple of days.  
 
            After calling in, claimant was referred by Menefee to a 
 
            physician for treatment.  This finding is based upon 
 
            claimant's uncontroverted deposition testimony and the 
 
            medical records.
 
            
 
                 As a result of the injury of March 12, 1991, claimant 
 
            was absent from his work at the times stipulated in the 
 
            hearing report upon the advice of his physicians.  Following 
 
            the injury, Robert S. Tomas, M.D., treated claimant 
 
            initially.  When claimant's condition failed to improve, he 
 
            was referred to Thomas J. Hughes, M.D., a family practi
 
            tioner and a specialist in occupational medicine.  This 
 
            treatment was conservative and consisted of absence from 
 
            work, medication and physical therapy.  Claimant was 
 
            returned to work with restrictions against heavy lifting and 
 
            deep bending but still experienced pain after only a few 
 
            hours work.  Claimant was taken off work a second time with 
 
            additional therapy.  Claimant was last treated by Dr. Hughes 
 
            on August 5, 1991.  At that time, Dr. Hughes felt there was 
 
            nothing else he could offer by way of treatment and he 
 
            released claimant back to work without restrictions.
 
            
 
                 Claimant did not return to work in August 1991.  He 
 
            called Menefee on the day he was to report for work and 
 
            explained that he could not show up as he had moved his 
 
            residence and could not afford the cost of travel and motel 
 
            expenses.  Claimant explained that his weekly benefit check 
 
            from the workers' compensation carrier was delayed and he 
 
            did not have money available.  Menefee then fired claimant 
 
            for refusing to return to work.
 
            
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
                 From the evidence submitted, it could not be found that 
 
            the work injury of March 12, 1991 was a cause of permanent 
 
            impairment to the body as a whole.  No permanent work 
 
            restrictions were imposed by Dr. Hughes in his release for 
 
            work in August 1991.  Dr. Hughes explained in his September 
 
            1991 report that he was reluctant to give claimant a perma
 
            nency rating due to inconsistent testing results.  He stated 
 
            that he might give a five percent rating but no more.  This 
 
            is insufficient medical evidence of impairment.  Also, 
 
            claimant's current physical condition is unknown as he chose 
 
            not to appear and give testimony at hearing.
 
            
 
                 Furthermore, it is impossible to determine claimant's 
 
            current loss of earning capacity or industrial loss, if any, 
 
            that may be due to the injury.  Claimant, in his deposition, 
 
            states he was not physically capable of returning to dry
 
            walling employment and had made some unsuccessful attempts 
 
            to do so.  However, again, claimant's failure to appear for 
 
            hearing negates an examination of claimant's current employ
 
            ment situation.
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                  I.  Claimant has the burden of proving by a preponder
 
            ance of the evidence that claimant received an injury aris
 
            ing out of and in the course of employment.  The words "out 
 
            of" refer to the cause or source of the injury.  The words 
 
            "in the course of" refer to the time and place and circum
 
            stances of the injury.  See generally, Cedar Rapids Commu
 
            nity Sch. v. Cady, 278 N.W.2d 298 (Iowa 1979); Crowe v. 
 
            DeSoto Consol. Sch. Dist., 246 Iowa 402, 68 N.W.2d 63 
 
            (1955).  An employer takes an employee subject to any 
 
            active or dormant health impairments. A work connected 
 
            injury which more than slightly aggravates the condition is 
 
            considered to be a personal injury.  Ziegler v. U.S. Gypsum, 
 
            252 Iowa 613, 620, 106 N.W.2d 591 (1961), and cases cited 
 
            therein.
 
            
 
                 In the case sub judice, claimant's deposition testimony 
 
            and the medical records was uncontroverted as to the occur
 
            rence of the injury at the time specified in the petition 
 
            herein.
 
            
 
                 II.  As claimant failed to show that he suffered perma
 
            nent impairment or disability from the injury, he is not 
 
            entitled to an award of permanent disability benefits.  
 
            Claimant is entitled to temporary total disability benefits 
 
            under Iowa Code section 85.33(1) but he already has been 
 
            paid in excess of his entitlement stipulated to in the hear
 
            ing report. 
 
            
 
                                      ORDER
 
            
 
                 1.  Claimant's petition is dismissed with prejudice and 
 
            he shall take nothing from this proceeding.
 
            
 
                 2.  Claimant shall pay the costs of this action pur
 
            suant to rule 343 IAC 4.33.
 
            
 
            
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
                 Signed and filed this ____ day of April, 1993.
 
            
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          LARRY P. WALSHIRE
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Michael J. Schuster
 
            Attorney at Law
 
            318 South River Park Drive
 
            Guttenberg, Iowa  52052
 
            
 
            Mr. Elliott R. McDonald, Jr.
 
            Attorney at Law
 
            P O Box 2746
 
            Davenport, Iowa  52809
 
            
 
 
            
 
 
 
                      
 
                          
 
                                                 5-1803
 
                                                 Filed April 6, 1993
 
                                                 LARRY P. WALSHIRE
 
            
 
                       BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                      
 
            WILLIAM W. PIERCE,  
 
                      
 
                 Claimant, 
 
                      
 
            vs.       
 
                                                File No. 979540
 
            MENEFEE DRYWALL COMPANY, INC.,
 
                                             A R B I T R A T I O N
 
                 Employer, 
 
                                                D E C I S I O N
 
            and       
 
                      
 
            CNA INSURANCE COMPANIES, 
 
                      
 
                 Insurance Carrier,  
 
                 Defendants.    
 
            ___________________________________________________________
 
            
 
            
 
            
 
            5-1803 - Non-precedential, extent of disability case.