9999
 
            Filed August 30, 1991
 
            Byron K. Orton
 
            DRR
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            BARBARA J. WOLFE,   :
 
                      :
 
                 Claimant, :
 
                      :
 
            vs.       :
 
                      :   File Nos. 730638/775865
 
            IOWA MEAT PROCESSING,    :
 
                      :         A P P E A L
 
                 Employer, :
 
                      :       D E C I S I O N
 
            and       :
 
                      :
 
            CHUBB GROUP OF INSURANCE CO.  :
 
            and ARGONAUT INSURANCE CO.,   :
 
                      :
 
                 Insurance Carriers, :
 
                      :
 
            and       :
 
                      :
 
            SECOND INJURY FUND, :
 
            
 
                 Defendants.    :
 
            ___________________________________________________________
 
            
 
            9999
 
            Summary affirmance of deputy's decision filed November 3, 
 
            1989, with short additional analysis.
 
            
 
 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         BARBARA J. WOLFE,
 
          
 
                Claimant,
 
                                              File  Nos. 730638
 
          VS.                                            775865
 
          
 
          IOWA MEAT PROCESSING COMPANY,       A R B I T R A T I 0 N
 
          
 
               Employer,                      D E C I S I 0 N
 
          
 
          and
 
          
 
          CHUBB GROUP OF INSURANCE CO.
 
          and ARGONAUT INSURANCE CO.,
 
          
 
               Insurance Carriers,
 
          
 
          and
 
          
 
          SECOND INJURY FUND,
 
          
 
               Defendants.
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              These are proceedings in arbitration brought by claimant 
 
         Barbara J. Wolfe against defendant employer Iowa Meat Processing 
 
         Company, defendant insurance carrier Argonaut Insurance Companies 
 
         (730638). defendant insurance carrier Chubb Group of Insurance 
 
         Companies (775865), and defendant Second Injury Fund of Iowa to 
 
         recover benefits under the Iowa Workers' Compensation Act as the 
 
         result of injuries allegedly sustained on January 17, 1983 
 
         (730638) and September 17, 1984 (775865).  These matters came on 
 
         for hearing before Deputy Industrial Commissioner Garry Woodward 
 
         in Sioux City, Iowa, on April 20, 1988.  Each case was considered 
 
         fully submitted at the close of hearing, although all parties 
 
         subsequently filed briefs.
 
         
 
              The record in this proceeding consists of claimant's 
 
         testimony at hearing and by deposition and joint exhibits 1 
 
         through 38.  The file contains joint exhibit 39, which was never 
 
         mentioned or admitted on record.  The second page of that exhibit 
 
         is independently in evidence as the first page of joint exhibit 
 
         25. However, the first page of that exhibit does not appear to 
 
         otherwise have been independently entered, and for that reason 
 
         has not been considered.
 
         
 
              After the record was closed, Deputy Woodward discontinued 
 
         his employment with the Division of Industrial Services.  By 
 
         Order of the industrial commissioner entered July 22, 1988, 
 
         jurisdiction of these matters for the purpose of preparing
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         WOLFE V. IOWA MEAT PROCESSING COMPANY
 
         Page 2
 
         
 
         
 
         and filing a proposed agency decision was transferred to the 
 
         undersigned.
 
         
 
                                      ISSUES
 
         
 
              Pursuant to the prehearing report submitted by the parties 
 
         (but apparently not approved by Deputy Woodward at hearing or 
 
         otherwise on the record) in case number 730638, the parties have 
 
         stipulated: That an employment relationship between claimant and 
 
         employer existed at the time of the alleged injury; that claimant 
 
         sustained an injury on January 17, 1983, arising out of and in 
 
         the course of that employment; that the injury is causally 
 
         related to both temporary and permanent disability; that healing 
 
         period benefits were to commence on March 29, 1983; that 
 
         claimant's appropriate rate of compensation is $284.92; that 
 
         medical benefits are no longer in dispute; that defendants paid 
 
         40 3/7 weeks healing period benefits and 37 1/2 weeks permanent 
 
         partial disability related to the right arm at the stipulated 
 
         rate.
 
         
 
              The following issues in case number 730638 are presented for 
 
         determination: The extent of claimant's entitlement to 
 
         compensation for healing period benefits; the extent of 
 
         claimant's entitlement to compensation for permanent disability; 
 
         the commencement date for permanent partial disability, if 
 
         awarded; the type of permanent disability claimant sustained; 
 
         taxation of costs.
 
         
 
              Pursuant to the prehearing report submitted by the parties 
 
         (but not approved of record by Deputy Woodward) in case number 
 
         775865, the parties have stipulated: That an employment 
 
         relationship existed between claimant and employer at the time of 
 
         the alleged injury; that the appropriate rate of weekly 
 
         compensation is $217.67; that all requested medical benefits have 
 
         been or will be paid by defendants; that defendants paid benefits 
 
         in the sum of $3,748.68 prior to hearing.
 
         
 
              The following issues in case number 775865 are presented for 
 
         determination: Whether claimant sustained an injury on September 
 
         17, 1984, arising out of and in the course of his stipulated 
 
         employment; whether the injury bears a causal relationship to 
 
         temporary or permanent disability; the extent of claimant's 
 
         entitlement to compensation for temporary total disability, 
 
         healing period or permanent partial disability; the commencement 
 
         date for permanent partial disability; the type of permanent 
 
         disability; whether defendant should be reimbursed $50 by reason 
 
         of claimant's failure to appear for medical examination; taxation 
 
         of costs.
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              Also at issue is the extent of liability on the part of the 
 
         Second Injury Fund of Iowa.
 
         
 
                              REVIEW OF THE EVIDENCE
 
         
 
              Claimant testified that she is 36 years of age and a high 
 
         school graduate.  She began, but did not complete, a 
 
         correspondence
 
         
 
         
 
         WOLFE V. IOWA MEAT PROCESSING COMPANY
 
         Page 3
 
         
 
         
 
         art class.  She anticipated.beginning a graphic communications 
 
         course at Western Iowa Tech in August, 1988.
 
         
 
              Claimant testified that her work history included part-time 
 
         work as a seamstress while in high school, after which she took 
 
         full-time employment with that business.  She worked in the 
 
         laundry for a motel, worked for IBP (a meat packer) for 
 
         approximately 30 days, worked about 4-5 months as a waitress for 
 
         a pizza restaurant, worked on a light assembly job for about two 
 
         years for an electronics company, worked in catalog, telephone 
 
         and cash register as a part-time Christmas employee for a 
 
         department store chain, and began her employment with defendant 
 
         or a predecessor meat packing company in approximately April, 
 
         1981.  Claimant had returned to work with defendant approximately 
 
         one week prior to the hearing, having accepted a job "flipping 
 
         bellies."
 
         
 
              Claimant testified that she suffered no hand or arm problems 
 
         prior to beginning employment with defendant employer or its 
 
         predecessor.  However, she indicated that she began suffering 
 
         bilateral problems in approximately 1982.  When she first sought 
 
         medical attention in January, 1983, she was then having problems 
 
         with both hands and arms.  However, claimant testified that her 
 
         problems more severely impacted upon the right arm, hand and 
 
         fingers.  She suffered achiness, "locking down" of the fingers, 
 
         and intermittent numbness.
 
         
 
              Claimant first complained to company nurses and was referred 
 
         to Morningside Family Practice, where she was seen by several 
 
         physicians over time.  Claimant was first seen on January 17, 
 
         1983, and was treated with pills and a recommendation that she 
 
         soak her hands at home.  Claimant was returned to work without 
 
         time off and told to come back if she continued having 
 
         difficulties.
 
         
 
              Claimant visited Morningside Family Practice on several 
 
         occasions, and was eventually referred to John, ' Dougherty, M.D. 
 
         Dr. Dougherty eventually performed a carpal tunnel release and 
 
         trigger finger release of three fingers on April 27, 1983.
 
         
 
              Claimant testified further that she was then off work for 
 
         approximately nine months before returning to light duty in 
 
         January, 1984.  Claimant testified that her right hand and arm 
 
         were still bothering her despite the surgery, so that she 
 
         attempted to compensate by using her left hand and arm to a 
 
         greater extent.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Claimant further testified that her left arm began 
 
         developing worse problems after her return to work and that she 
 
         eventually sought medical attention to the left side on September 
 
         13, 1984.  When asked what kind of troubles she had been having, 
 
         she indicated the arm had been falling asleep, burning and 
 
         hurting, stinging and that the whole arm generally ached.  
 
         Claimant then saw Kevin A. Weidman, M.D., and D. L. Johnson, M.D. 
 
         of Orthopaedic Center, P.A. Dr. Johnson performed carpal
 
         
 
         
 
         WOLFE V. IOWA MEAT PROCESSING COMPANY 
 
         Page 4
 
         
 
         
 
         tunnel surgery to the left side on February 17, 1986.  Claimant 
 
         testified that Dr. Johnson returned her to work without 
 
         restrictions approximately two weeks later.  However, she 
 
         indicated rather emphatically that she did not believe 
 
         the.unrestricted release was justified.
 
         
 
              In approximately March, 1987, claimant and  others  went out 
 
         on strike.  She noticed that her hands and arms still bothered 
 
         her, but were much improved as opposed to times when she had to 
 
         work.  Claimant indicated that when she returned to work 
 
         approximately one week prior to hearing, she noticed additional 
 
         problems such that she now has both hands falling asleep, the 
 
         left more than the right.  She stated that her wrists, fingers 
 
         and arms ache, get stiff, tingle, burn and get numb.  She 
 
         described the pain as extending to her elbows bilaterally.
 
         
 
              When asked what she is now unable to do that she could do 
 
         before developing bilateral extremity problems, claimant 
 
         indicated that often her children and husband do housework, that 
 
         she has suffered a loss of grip strength, that her fingers "just 
 
         flip out" and that she has a problem with dropping items, having 
 
         broken a lot of coffee cups.
 
         
 
              Claimant was rather extensively questioned by the various 
 
         attorneys in this case concerning her complaints when she first 
 
         sought medical treatment in 1983.  She consistently indicated 
 
         that, although she was suffering problems bilaterally, it was 
 
         then her right hand and arm that actually caused her to leave 
 
         work and led to surgery to the right side.  Claimant indicated 
 
         the first time she had gone off work by reason of left hand or 
 
         arm problems was in February, 1986.
 
         
 
              Claimant also testified that three physicians have advised 
 
         her to leave packinghouse employment: Drs.  Budensiek, Redwine 
 
         and Butler.
 
         
 
              Claimant also testified to a slip and fall in 1986 after her 
 
         second surgery.  She described Dr. Johnson as advising that the 
 
         problem was perhaps a sprain, and that it would get better in a 
 
         few days.  Claimant further testified that the condition did 
 
         improve.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Claimant also testified that she did not seek work in any 
 
         active sense from the time she went on strike until returning to 
 
         employment one week prior to hearing.
 
         
 
              Medical records of the Morningside Family Practice medical 
 
         group dated January 19, 1983 reflect claimant's first complaints 
 
         to a medical practitioner.  Daniel M. Rhodes, M.D., noted sore 
 
         right third and fourth fingers and sore left wrist and that 
 
         claimant occasionally wakes up in the middle of the night with 
 
         tingling in her fingers, both hands, left greater than right.  
 
         Claimant complained of the fingers locking and of weakness and 
 
         pain.  Claimant showed a negative Tinel's sign bilaterally.  Dr. 
 
         Rhodes had an impression of mild carpal tunnel syndrome,
 
         
 
         
 
         WOLFE V. IOWA MEAT PROCESSING COMPANY
 
         Page 5
 
         
 
         
 
         left greater than right, and right trigger finger with some 
 
         tendonitis.
 
         
 
              Richard Budensiek, D.O., reported on March 31, 1983, that 
 
         claimant had been seen Wednesday night (a standard calendar shows 
 
         this to have been March 30), and given wrist splints and Motrin.  
 
         Claimant showed a positive Tinel's sign, apparently on the right 
 
         side.  Dr. Budensiek had an impression of carpal tunnel syndrome 
 
         and advised claimant to remain off work until the next Tuesday, 
 
         which would have been April 4, 1983.
 
         
 
              Dr. Rhodes reported on April 5, 1983, that claimant showed 
 
         positive Tinel's and Phalen's signs bilaterally and noted that 
 
         claimant was still off work.  Dr. Rhodes injected claimant in 
 
         both wrists and had an impression of carpal tunnel syndrome, 
 
         right greater than left, and myofascitis of the right arm.
 
         
 
              Claimant was seen again by Dr. Rhodes on April 8 and April. 
 
         11, 1983, without apparent improvement.  Dr. Rhodes then referred 
 
         claimant to Dr. Dougherty.  Claimant was not seen again at 
 
         Morningside Family Practice until September, 1984, and then with 
 
         respect to her left side.
 
         
 
              John J. Dougherty, M.D., of Orthopaedic Associates of Sioux 
 
         City, P.D., saw claimant on April 15, 1983.  Claimant was then 
 
         complaining of pain in both wrists and arms and the right 
 
         fingers.  Dr. Dougherty noted that the left side was not too bad 
 
         and did not bother claimant that much, although she might have a 
 
         slight tendency to triggering.  X-rays of the hands and wrists 
 
         were essentially negative.  Dr. Dougherty's impression was of 
 
         stenosing tenosynovitis, right long, ring and little fingers, 
 
         with a suggestion of some on the left, but not bad, and possible 
 
         carpal tunnel syndrome.  As did Dr. Rhodes, Dr. Dougherty had 
 
         some question as to claimant's emotional stability.
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              Claimant was referred for electromyographic studies on April 
 
         20, 1983.  B. Krysztofiak, M.D., reported motor distal latency of 
 
         the right median nerve to be in high level or normal and a 
 
         slowing of conduction of the motor fibers on the right median 
 
         nerve across the wrist.  Motor sensory latencies of the left 
 
         median nerve were normal and ulnar nerve conduction was normal 
 
         bilaterally.  The results of the studies were suggestive of the 
 
         presence of early carpal tunnel syndrome on the right side.
 
         
 
              Dr. Dougherty performed surgery to the right side on April 
 
         27, 1983.  That procedure involved a release of the tendon sheath 
 
         on the right long, ring and little fingers followed by a partial 
 
         synovectomy to the little finger with a carpal tunnel release and 
 
         partial synovectomy of the carpal tunnel. Thereafter, Dr. 
 
         Dougherty's diagnosis was stenosing tenosynovitis right long, 
 
         ring and little fingers and carpal tunnel syndrome with chronic 
 
         synovitis.
 
         
 
         
 
         WOLFE V. IOWA MEAT PROCESSING COMPANY
 
         Page 6
 
         
 
         
 
              Dr. Dougherty saw claimant repeatedly through August, 1983.  
 
         Claimant appeared to form a keloid at the site of surgery and was 
 
         slow in recovering.  Dr. Dougherty was of the view that claimant 
 
         was not actively participating i.n her own rehabilitation.  As of 
 
         August 9, 1983, Dr. Dougherty reported that claimant continued to 
 
         crepitate and recommended that claimant return to work if she 
 
         could be found a light-duty job.  He wrote to a claim examiner 
 
         for Argonaut Insurance Companies on August 25, 1983, stating his 
 
         view that it would be beneficial for claimant to return to work 
 
         using her hand as much as possible, although not on a knife.  Dr. 
 
         Dougherty did not see claimant again until November 5, 1987.
 
         
 
              Claimant returned to Morningside Family Practice on 
 
         September 17, 1984.  Dr. Budensiek's notes of that date reflect 
 
         that claimant had left arm soreness radiating up into the jaw and 
 
         down into the muscles between the first and second digits of the 
 
         left hand, and that this began today when claimant began 
 
         "flipping bellies." Claimant showed tenderness of the left thumb 
 
         and muscles between the thumb and first finger with positive 
 
         Tinel's and Phalen's signs. Dr. Budensiek had an impression of 
 
         thenar myositis with possible. early carpal tunnel syndrome.
 
         
 
              Dr. Budensiek reported on September 20, 1984, that claimant 
 
         had some numbness of the second and third fingertips, had no 
 
         crepitations or swelling over the extensor tendons, a normal 
 
         range of motion, and mildly positive Phalen's and Tinel's signs.  
 
         His impression was of mild carpal tunnel syndrome, left wrist, 
 
         and mild tenosynovitis of the left extensor tendons of the hand, 
 
         resolving.  Claimant was treated with rest and splints.  The 
 
         notes of September 17 and 20 indicate that claimant was taken off 
 
         work on September 17, 1984 and released to return to work on 
 
         September 24, 1984.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Claimant was seen by John N. Redwine, D.O., on December 11, 
 
         1984.  His impression was of left-sided carpal tunnel syndrome; 
 
         Dr. Redwine advised that claimant could continue light duty at 
 
         work, but should return for an EMG.  Dr. Redwine saw claimant 
 
         again on December 14 and December 19, finding that Tinel's sign 
 
         was negative on the latter date, claimant had good range of 
 
         motion, that claimant's nerve conduction studies were normal, and 
 
         that claimant's left wrist carpal tunnel syndrome had resolved.  
 
         The Iowa Meat Processing plant was at that time shut down.
 
         
 
              Dr. Redwine saw claimant again with complaints of swelling 
 
         and tenderness in the right hand on April 11, 1985 and claimant 
 
         saw Dr. Budensiek on April 19, 1985.
 
         
 
              On referral from Dr. Dougherty, claimant was seen by Bruce 
 
         Butler, M.D., on December 5, 1983.  She had not yet returned to 
 
         work as of that date.  Examination showed no evidence of 
 
         recurrence of carpal tunnel syndrome on the tight, claimant had 
 
         no real sensory change compared to her "normal" hand or to the 
 
         ulnar nerve fingers, although she might have a little bit of 
 
         ulnar nerve discomfort at the elbow.  Claimant lacked
 
         
 
         
 
         WOLFE V. IOWA MEAT PROCESSING COMPANY 
 
         Page 7
 
         
 
         
 
         full flexion of the fingers of which she made complaint, and also 
 
         of soreness.  Dr. Butler was unwilling to determine a final 
 
         disability rating until at least a year from surgery and until 
 
         claimant had reached maximum range of motion.
 
         
 
              Dr. Butler saw claimant again on February 22, 1984, at which 
 
         time she was doing well.  She was then working full-time on a 
 
         lighter job and had excellent range of wrist motion, finger 
 
         extension and finger flexion, although still some slight loss of 
 
         full flexion.
 
         
 
              On April 18, 1984, Dr. Butler reported that claimant's right 
 
         carpal tunnel was basically improved and her trigger finger 
 
         completely resolved.  Dr. Butler noted that claimant had been 
 
         shifted around on her job from various types of work because of 
 
         inability to handle various occupations, including the use of a 
 
         Wizard knife.  Dr. Butler did not feel claimant had a recurrent 
 
         carpal tunnel syndrome and had no trigger finger.  Further, he 
 
         stated:
 
         
 
              On my examination, if I put all the fingers in the palm and 
 
              touch the palm, she can hold them in that position but tells 
 
              me she is holding them there with her little finger which is 
 
              very difficult to do.  In any event, she has residual 
 
              discomfort and slight sensory loss from the carpal tunnel 
 
              surgery.  This is not unusual, and I would consider that she 
 
              has a 10% impairment of the right upper extremity secondary 
 
              to chronic residuals of carpal tunnel syndrome.  This is 
 
              based on figures obtained from the American Medical 
 
              Association Guide to the Evaluation of Impairment.  In 
 
              addition, we would concur that she has a slight loss of 
 
              flexion in all fingers, being able to flex within a half 
 
              inch of the palm in all digits, and I would consider this as 
 
              a proximal interphalangeal joint problem and rate it as loss 
 
              of 20 degrees motion in each of the four PIP joints which 
 
              would be a 12% impairment of each of the four digits.  A 12% 
 
              impairment of the index finger is a 3% impairment of the 
 
              hand.  A 12% impairment of the long finger is a 2% 
 

 
              
 
 
 
 
 
 
 
 
 
 
 
              impairment of the hand.  A 12% impairment of the ring finger 
 
              is a 1% impairment of the hand.  A 12% impairment of the 
 
              little finger is a 1% impairment of the hand.  Accordingly, 
 
              she would have a 7% impairment of the hand for lost motion 
 
              in her fingers; a 7% impairment of the hand as a 6% 
 
              impairment of the extremity. .Combining this with a 10% 
 
              impairment of the extremity for a chronic carpal tunnel 
 
              syndrome, she would have a 15% impairment of the involved 
 
              right upper extremity.
 

 
              
 
 
 
 
 
 
 
 
 
 
 
              
 
              I feel at this time maximum benefit of medical and surgical 
 
              treatment has been obtained.  I do not see any need for any 
 
              further follow-up.
 
              
 
              
 
         WOLFE V. IOWA MEAT PROCESSING COMPANY
 
         Page 8
 
         
 
         
 
              Dr Butler saw claimant again on June 10, 1985, but found 
 
         claimant basically unchanged since her previous disability rating 
 
         and with "nothing for her to worry about at this time."
 
         
 
              Claimant saw Kevin A. Weidman, M.D., on December 23, 1985, 
 
         with complaints of left hand and wrist pain with numbness that 
 
         awakened her at night.  She had positive Phalen's and Tinel's 
 
         signs and also light thenar atrophy.  Dr. Weidman had an 
 
         impression that claimant would need carpal tunnel surgery and 
 
         provided her a return to work with limitations of no lifting over 
 
         ten pounds, no knives, and no work greater than eight hours per 
 
         day.
 
         
 
              Dr. Weidman saw claimant again on January 13, 1986.  She had 
 
         made no real improvement since her previous visit, despite an 
 
         injection in the wrist and elbow.
 
         
 
              Claimant then underwent surgery to the left side on February 
 
         17, 1986.  This was described as a left carpal tunnel release 
 
         with medial neurolysis, division tendon sheath left first and 
 
         second dorsal compartments.  The surgery was performed by D. L. 
 
         Johnson, M.D. Dr. Johnson's diagnosis was of left carpal tunnel 
 
         syndrome, tenosynovitis first and second dorsal compartments left 
 
         wrist.
 
         
 
              Dr. Johnson reported on March 3, 1986 that claimant's wounds 
 
         were clean and dry and that she had better sensation in her hand, 
 
         but some tugging of the flexors to the long and ring fingers.  He 
 
         recommended that she use the hand as tolerated and reported that 
 
         claimant had no specific restrictions at that time.
 
         
 
              Dr. Johnson reported seeing claimant again on March 19, 
 
         1986.  Claimant at that time complained of inability to perform 
 
         her job because of difficulties with the left hand.  Claimant 
 
         reported some limitation of motion and some stiffness in the 
 
         wrist and hand in the flexor tendons as well as the extensor 
 
         tendons and pain referred up the arm.  Wounds were well healed.  
 
         Dr. Johnson recommended physical therapy and took her off work 
 
         for two weeks.
 
         
 
              Dr. Johnson reported seeing claimant again on April 2, 1986, 
 
         at which time she reported burning pain in the first dorsal web 
 
         space on the left and also up along the brachial radialis 
 
         proximal to her incisions.  Strength was improving.  Claimant 
 
         still had a little stiffness at the extremes of motion of the 
 
         wrist, but Dr. Johnson believed that claimant could return to 
 
         unrestricted activity and believed that use of her wrist was an 
 
         important factor in rehabilitation.  He reduced claimant's 
 
         physical therapy by two-thirds and recommended that she return in 
 
         two to three months.  However, claimant returned on April 10, 
 
         1986, suffering from an exacerbation of her tenosynovitis when 
 
         she fell on the left hand.  She was taken off work for the 
 
         remainder of the week and released to light-duty work for the 
 
         week following that.  Claimant was seen again on April
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         WOLFE V. IOWA MEAT PROCESSING COMPANY
 
         Page 9
 
         
 
         
 
         21 and June 11, 1986.  She was released without restrictions on 
 
         the latter date.
 
         
 
              Thereafter, claimant saw Dr. Butler again on October 5, 
 
         1987, for reevaluation of both upper extremities.  He found 
 
         claimant's impairment to be basically unchanged from April, 1984.  
 
         On the left, claimant showed a well-healed two-inch incision just 
 
         above the wrist on the ulnar side and had a slight decrease in 
 
         sensation as a residual of her carpal tunnel surgery.  Dr. Butler 
 
         considered patients who had undergone a carpal tunnel release 
 
         surgically to have a permanent ten percent impairment of the 
 
         extremity based on a slight permanent loss of sensation and grip 
 
         strength.  Dr. Butler felt that claimant had reached maximum 
 
         benefit of medical and surgical treatment and was fit for 
 
         performing light duty as long as there was no heavy lifting, 
 
         pushing and pulling involved.  Dr. Butler then wrote to attorney 
 
         Harry W. Dahl on November 23, 1987 to clarify that his ten 
 
         percent impairment of the left extremity corresponded to an 
 
         eleven percent impairment of the hand.  He wrote:
 
         
 
              Your questions about cause and effect are difficult to 
 
              answer.  We know that if a patient has carpal tunnel 
 
              syndrome on one side that the chance of occurrence on the 
 
              other side is greater than in the patient who has not had 
 
              any carpal tunnel syndrome.  Some feel that the need to work 
 
              the so-called normal side harder while the initial side 
 
              recovers may bring on the symptoms.  It might not have come 
 
              on or that might have come on much later, that is probably 
 
              where this girl sits.  My judgement would be that since both 
 
              occurred relatively at the same time that the second side 
 
              became involved because the first side did not do a good 
 
              days work, so I would think that this would make this job 
 
              related on both sides.
 
         
 
              Claimant was seen again by Dr. Dougherty on November 5, 
 
         1987.  Dr. Dougherty wrote to attorney Judith Higgs on November 
 
         10 of that year.  At that time, claimant had not worked since 
 
         March, due to the previously noted labor dispute.  After 
 
         reviewing reports from Drs.  Butler, Johnson and Nitz and his own 
 
         records, Dr. Dougherty concluded that claimant was probably doing 
 
         most everything she wanted to at that point and that she would be 
 
         working, but for the strike.  Dr. Dougherty further opined that 
 
         claimant had sustained a 5-7 percent permanent partial impairment 
 
         of both hands.  On the left, this probably could include a little 
 
         bit of the wrist; on the right, a little bit of the fingers.  He 
 
         went on to state:
 
         
 
              As I mentioned, I think both of them would be more related 
 
              to the hand, which would extrapolate to essentially the same 
 
              thing as far as the arm.  As far as functional impairment, I 
 
              don't [sic] think she has any significant functional 
 
              impairment.. I think she does pretty much what she wants to 
 
              do.  It would be my opinion that
 

 
              
 
 
 
 
 
 
 
 
 
 
 
              
 
              
 
         WOLFE V. IOWA MEAT PROCESSING COMPANY 
 
         Page 10
 
         
 
         
 
              perhaps she may have some discomfort if she overuses her 
 
              hands.  I don't think there is any significant problems with 
 
              the elbow at this point in time.  As far as the injury to 
 
              the right and left side developing simultaneously, on 
 
              reviewing the records, appears the right bothered her first 
 
              and then the left subsequently came along and began to give 
 
              her some discomfort.  As I recall, following the surgery on 
 
              her right hand, I followed her thru about August of 1983 and 
 
              I was having a tremendous amount of difficulty in getting 
 
              her range of motion.  That seems to be pretty well returned 
 
              now.  Basically, I think she is doing OK.  Would see no 
 
              reason why she couldn't be working if there was not a 
 
              strike.  I don't think anything else is indicated as far as 
 
              further treatment and I would feel that is her disability.
 
         
 
              Exhibits of record reflect that attorney Judith Higgs 
 
         (representing employer and Chubb Group of Insurance Companies) 
 
         wrote claimant's present and then attorney, Harry H. Smith, on 
 
         April 7, 1987 to note that an independent medical evaluation had 
 
         been scheduled for claimant with Dr. Dougherty on September 9, 
 
         1987 and asking Mr. Smith to inform claimant of the appointment.  
 
         Ms. Higgs also requested that if claimant could not attend for 
 
         any reason, that Mr. Smith let her know immediately so that the 
 
         appointment could be rescheduled.  Claimant testified that she 
 
         never knew of the appointment.  There is no evidence that Mr. 
 
         Smith did not receive the letter from Ms. Higgs.  In any event, 
 
         Dr. Dougherty submitted a charge of $50 for the missed 
 
         appointment.
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              An employee is entitled to compensation for any and all 
 
         personal injuries which arise out of and in the course of the 
 
         employment.  Section 85.3(l).
 
         
 
              The injury must both arise out of and be in the course of 
 
         the employment.  Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 
 
         402, 68 N.W.2d 63 (1955) and cases cited at pp. 405-406 of the 
 
         Iowa Report.  See also Sister Mary Benedict v. St. Mary's 
 
         Corp., 255 Iowa 847, 124 N.W.2d 548 (1963) and Hansen v. State of 
 
         Iowa, 249 Iowa 1147, 91 N.W.2d 555 (1958).
 
         
 
         The words "out of" refer to the cause or source of the injury.  
 
         Crowe v. DeSoto Consol.  Sch.  Dist., 246 Iowa 402, 68 N.W.2d 63 
 
         (1955).
 
         
 
              The words "in the course of" refer to the time and place and 
 
         circumstances of the injury.  McClure v. Union et al. Counties, 
 
         188 N.W.2d 283 (Iowa 1971); Crowe v. DeSoto Consol. Sch. Dist., 
 
         246 Iowa 402, 68 N.W.2d 63 (1955).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              The supreme court of Iowa in Almquist v. Shenandoah 
 
         Nurseries, 218 Iowa 724, 254 N.W. 35 (1934) at 731-32, discussed 
 
         the definition
 
         
 
         WOLFE V. IOWA MEAT PROCESSING COMPANY 
 
         Page 11
 
         
 
         
 
         of personal injury in workers' compensation cases as follows:
 
         
 
              While a personal injury does not include an occupational 
 
              disease under the workmen's Compensation Act, yet an injury 
 
              to the health may be a personal injury [Citations omitted.] 
 
              Likewise a personal injury includes a disease resulting from 
 
              an injury .... The result of changes in the human body 
 
              incident to the general. processes of nature do not amount 
 
              to a personal injury.  This must follow, even though such 
 
              natural change may come about because the life has been 
 
              devoted to labor and hard work.  Such resuit of those 
 
              natural changes does not constitute a personal injury even 
 
              though the same brings about impairment of health or the 
 
              total or partial incapacity of the functions of the human 
 
              body.
 
              
 
                 ....
 
              
 
              A personal injury, contemplated by the Workmen's 
 
              Compensation Law, obviously means an injury to the body, the 
 
              impairment of health, or a disease, not excluded by the act, 
 
              which comes about, not through the natural building up and 
 
              tearing down of the human body, but because of a traumatic 
 
              or other hurt or damage to the health or body of an 
 
              employee. [Citations omitted.] The injury to the human body 
 
              here contemplated must be something, whether an accident or 
 
              not, that acts extraneously to the natural processes of 
 
              nature and thereby impairs the health, overcomes, injures, 
 
              interrupts, or destroys some function of the body, or 
 
              otherwise damages or injures a part or all of the body.
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injuries of January 17, 1983 and September 
 
         17, 1984 are causally related to the disability on which she now 
 
         bases her claim.  Bodish v. Fischer, Inc., 257 Iowa 516, 133 
 
         N.W.2d 867 (1965).  Lindahl v. L.O. Boggs, 236 Iowa 296, 18 
 
         N.W.2d 607 (1945).  A possibility is insufficient; a probability 
 
         is necessary.  Burt v. John Deere Waterloo Tractor Works, 247 
 
         Iowa 691, 73 N.W.2d 732 (1955).  The question of causal 
 
         connection is essentially within the domain of expert testimony.  
 
         Bradshaw  v. Iowa Methodist Hospital, 251 Iowa 375, 101 N.W.2d 
 
         167 (1960).
 
         
 
              However, expert medical evidence must be considered with all 
 
         other evidence introduced bearing on the causal connection.  
 
         Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion of experts need 
 
         not be couched in definite, positive or unequivocal language. 
 
         Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974).  However, 
 
         the expert opinion may be accepted or rejected, in whole or in 
 
         part, by the trier of fact.  Id. at 907.  Further, the weight to 
 
         be given to such an opinion is for the finder of fact, and that 
 
         may be affected by the completeness of the premise given the 
 
         expert and other surrounding circumstances.  Bodish, 257
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         WOLFE V. IOWA MEAT PROCESSING COMPANY
 
         Page 12
 
         
 
         
 
         Iowa 516, 133 N.W.2d 867.  See also Musselman v. Central 
 
         Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
              While a claimant is not entitled to compensation for the 
 
         results of a preexisting injury or disease, the mere existence at 
 
         the time of a subsequent injury is not a defense.  Rose v. John 
 
         Deere Ottumwa Works, 247 Iowa 900, 908, 76 N.W.2nd 756 (1956).  
 
         If the claimant had a preexisting condition or disability that is 
 
         aggravated, accelerated worsened or lighted up so that it results 
 
         in disability, claimant is entitled to recover.  Nicks v 
 
         Davenport Produce Co., 254 Iowa 130, 115 N.W.2d 812 (1962).
 
         
 
              When an aggravation occurs in the performance of an 
 
         employer's work and a causal connection is established, claimant 
 
         may recover to the extent of the impairment.  Ziegler v. United 
 
         States Gypsum Co., 252 Iowa 613, 620, 106 N.W.2d 591 (1960).
 
         
 
              The right of a worker to receive compensation for injuries 
 
         sustained which arose out of and in the course of employment is 
 
         statutory.  The statute conferring this right can also fix the 
 
         amount of compensation to be paid for different specific 
 
         injuries, and the employee is not entitled to compensation except 
 
         as provided by the statute.  Soukup v. Shores Co., 222 Iowa 272, 
 
         268 N.W. 598 (1936).
 
         
 
              The most serious bone of contention in this case is how many 
 
         injuries claimant sustained and when they were sustained.  
 
         Claimant did not suffer single, traumatic incidents.  Rather, she 
 
         developed bilateral carpal tunnel syndrome over a period of time: 
 
         that is to say, a cumulative injury.  Two recent decisions have 
 
         dealt with this issue.  Himshoot v. Montezuma Mfg., file numbers 
 
         672778 and 738235 (App.  Decn.  April 15, 1988) and Johnson v. 
 
         George A. Hormel & Co., file numbers 782796 and 792733 (App. 
 
         Decn. June 21, 1988) held that bilateral carpal tunnel syndrome 
 
         is one injury when symptoms for both hands occur at the same 
 
         time, even though, in Himshoot, the treatment and surgery for 
 
         each arm occurred on different dates about a year apart.  In 
 
         Himshoot, claimant experienced numbness in both hands and pain 
 
         that went up into her arms, the right arm worse than the left, a 
 
         funny feeling in the right index finger, loss of grip strength 
 
         and a ganglion cyst on the right wrist.  In this case, it is 
 
         undisputed in the record that claimant first made complaint on 
 
         January 19, 1983 with sore right third and fourth fingers and 
 
         sore left wrist and tingling in the fingers of both hands, left 
 
         greater than right (based on the subsequent history, Dr. Rhodes 
 
         may well have confused the two sides).  Dr. Rhodes had an initial 
 
         impression of mild carpal tunnel syndrome, left greater than 
 
         right and right trigger finger with some tendonitis.  On April 5, 
 
         1983, claimant showed bilateral positive Tinel's and Phalen's 
 
         signs.  She was treated with injections in both wrists and Dr. 
 
         Rhodes continued to express his impression of bilateral carpal 
 
         tunnel syndrome, right greater than left.  When claimant saw Dr. 
 
         Dougherty on
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         WOLFE V. IOWA MEAT PROCESSING COMPANY 
 
         Page 13
 
         
 
         
 
         April 15, 1983, his impression was of stenosing tenosynovitis, 
 
         long, ring and little fingers on the right, with a suggestion of 
 
         some on the left, but not bad, and possible carpal tunnel 
 
         syndrome.
 
         
 
              Dr. Butler noted that the problems with each hand came on at 
 
         essentially the same time.
 
         
 
              Even though claimant's left side  appreciably  worsened in 
 
         the year following her right side surgery, it is clear that her 
 
         condition arose from cumulative trauma and manifested itself 
 
         bilaterally at the time she first sought medical attention.  
 
         Under the authority of Himshoot and Johnson, it must be held that 
 
         claimant's bilateral carpal tunnel syndrome is one injury because 
 
         symptoms for both hands occurred at the same time.
 
         
 
              The parties do not truly dispute whether claimant suffered 
 
         work-related injuries, but dispute as to when and how many.  It 
 
         is stipulated that claimant sustained an injury arising out of 
 
         and in the course of her employment on January 17, 1983.  
 
         Although the stipulation relates to claimant's right hand, there 
 
         is no real. dispute that the left hand was also then involved.  
 
         There is no evidence that claimant's disability arose from any 
 
         other source beyond employment.  Dr. Butler, for one, specified 
 
         his opinion that claimant's disability is job related on both 
 
         sides, although he was of the view that a second injury affected 
 
         claimant's left side.  However, in this context the date of 
 
         injury is a legal, not a medical question.  It is held that 
 
         claimant has established causal connection between the work 
 
         injury and disability resulting from her bilateral carpal tunnel 
 
         syndrome.
 
         
 
              Although the parties have stipulated to an injury date of 
 
         January 17, 1983, it appears that claimant did not actually miss 
 
         work until March 29, 1983.  In cumulative injury cases, the last 
 
         day of work is the injury date rather than when an individual 
 
         first made complaint to a medical practitioner. McKeever Custom 
 
         Cabinets v. Smith, 379 N.W.2d 368 (Iowa 1985).
 
         
 
              Healing period can be interrupted or intermittent.  Willis 
 
         v. Lehigh Portland Cement Co., II-1 Iowa Industrial Commissioner 
 
         Decisions 45 (1984); Teel v. McCord, 394 N.W.2d 405 (Iowa 1986).  
 
         Claimant's healing period is intermittent.  As stipulated, it 
 
         began on March 29, 1983.  Claimant was released to a light-duty 
 
         job on August 9, 1983, by Dr. Dougherty.  This ended the first 
 
         segment of healing period, although.claimant had not at that time 
 
         reached maximum medical improvement in terms of the complete 
 
         termination of healing period.  The record reflects that claimant 
 
         was again off work, this time for her left side, from September 
 
         17 through September 24, 1984.  Claimant next missed work when 
 
         she underwent surgery on February 17, 1986.  She was released 
 
         without restrictions on March 3, 1986, but was later taken off 
 
         work for two weeks from March 19, 1986 to April 2, 1986.  
 
         Claimant was at that time released to return to unrestricted 
 
         activity, which ended her healing period.  Under Iowa Code
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         WOLFE V. IOWA MEAT PROCESSING COMPANY 
 
         Page 14
 
         
 
         
 
         section 85.34(l), healing period ends when 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.    Although 
 
         claimant had been released without restrictions on March 3, it 
 
         appears that this release was premature because of the continued 
 
         healing period from March 19 through April 2, 1986.  Thus, 
 
         claimant's total healing period in four distinct segments is 24 
 
         weeks, 3 days.  Permanent partial disability commences April 2, 
 
         1986.
 
         
 
              Workers' compensation benefits for permanent partial 
 
         disability of two scheduled members caused by a single accident 
 
         is a scheduled benefit under Iowa Code section 85.34(2)(s); the 
 
         degree of disability must be computed on a functional basis and 
 
         not on an industrial basis.  Simbro v. DeLong's Sportswear, 332 
 
         N.W.2d 886 (Iowa 1983).
 
         
 
              Dr. Butler opined on April 18, 1984, that claimant had 
 
         sustained a 15% impairment of the right upper extremity.  This 
 
         was based on a 7% impairment of the hand, which he then combined 
 
         with a general 10% impairment of the right upper extremity, which 
 
         he apparently feels should be assigned by reason of chronic 
 
         residuals of carpal tunnel syndrome.  However, a review of his 
 
         letter indicates that all of claimant's functional impairment 
 
         appears to be in the hand or fingers, rather than the arm.  Dr. 
 
         Butler wrote on November 23, 1987 to express the view that 
 
         claimant had sustained an 11% impairment of the left hand.  Dr. 
 
         Dougherty was of the view that claimant had sustained a 5-7% 
 
         permanent partial impairment of each hand; on the left, this 
 
         would include a little bit of the wrist, while on the right, a 
 
         little bit of the fingers.  Agency expertise and experience has 
 
         evolved to generally indicate a 5% rating of the hand after 
 
         successful carpal tunnel surgery and 10% or greater for surgery 
 
         not completely successful.  Rinehardt v. John Morrell & Co., file 
 
         number 769079 (App. Decn. August 17, 1988).
 
         
 
              In this case, it is clear that claimant's impairment is to 
 
         the hand or wrist and not the arm, although she has some pain to 
 
         her elbows.  It is also clear that her surgeries have not been 
 
         completely successful.  Pain in the forearm following carpal 
 
         tunnel surgery does not extend the injury into the arm absent 
 
         evidence of disability or impairment to the arm.  Streeter v. 
 
         Iowa Meat Processing Co., file numbers 730461 and 809945 (App. 
 
         Decn. March 31, 1989).
 
         
 
              Based on the foregoing, it is held that claimant has 
 
         sustained a 7% permanent partial impairment of her right hand and 
 
         an 11% permanent partial impairment of her left hand.  Under 
 
         Simbro, supra, the impairments should be combined and expressed 
 
         as a percentage of 500 weeks, even though not calculated 
 
         industrially.  Under the Guides to the Evaluation of 
 
         Permanent Impairment, published by the American Medical 
 
         Association, a 7% impairment of the hand corresponds to a 6% 
 
         impairment of the upper extremity, while an 11% impairment of the 
 
         hand corresponds to a 10% impairment of the upper extremity.  A 
 
         6% impairment of the upper extremity
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         WOLFE V. IOWA MEAT PROCESSING COMPANY 
 
         Page 15
 
         
 
         
 
         corresponds to 4% of the whole person, while a 10% impairment of 
 
         the upper extremity corresponds to a 6% impairment of the whole 
 
         person.  The combined values chart published in the guides shows 
 
         that the total of a 4% and a 6% whole body impairment is 10%.  
 
         Therefore, claimant shall be awarded 10% of 500 weeks, or 50 
 
         weeks of permanent partial disability.
 
         
 
              Because claimant's condition has been found to be only one 
 
         injury, the Second Injury Fund of Iowa is not liable for benefits 
 
         because claimant does not have a "second" injury within the 
 
         meaning of the Second Injury Compensation Act, Iowa Code section 
 
         85.63, et seq.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              THEREFORE, based on the evidence presented, the following 
 
         ultimate facts are found:
 
         
 
              1. At all times relevant, claimant was employed by defendant 
 
         Iowa Meat Processing.
 
         
 
              2. Although it was stipulated by the concerned parties that 
 
         claimant sustained an injury arising out of and in the course of 
 
         that employment on January 17, 1983, claimant first lost work by 
 
         reason of that injury on March 29, 1983.
 
         
 
              3. Claimant had developed symptoms of bilateral carpal 
 
         tunnel syndrome as of March 29, 1983, although at that time, the 
 
         symptoms were more severe on the right side.
 
         
 
              4. Claimant underwent surgery for her right-sided carpal 
 
         tunnel syndrome on April 27, 1983 and for her left-sided carpal 
 
         tunnel syndrome on February 17, 1986.
 
         
 
              5. Claimant's work injury of March 29, 1983 is causally 
 
         related to disability of both claimant's left hand and right 
 
         hand.
 
         
 
              6. Claimant has sustained a functional impairment of 7% of 
 
         her right hand and of 11% of her left hand.
 
         
 
              7.Because of claimant's injury, she missed work from March 
 
         29 to August 9, 1983, from September 17 through September 24, 
 
         1984, from February 17, 1986 to March 3, 1986, and from March 19, 
 
         1986 to April 2, 1986.  This is a total of 24 weeks, 3 days.
 
         
 
              8.As stipulated, defendants Iowa Meat Processing Company and 
 
         Argonaut Insurance Company paid claimant 40 3/7 weeks and 37 1/2 
 
         weeks of compensation at the stipulated rate of $288.46 prior to 
 
         hearing.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              WHEREFORE, based on the principles of law previously stated, 
 
         the following conclusions of law are made:
 
         
 
         
 
         WOLFE V. IOWA MEAT PROCESSING COMPANY
 
         Page 16
 
         
 
         
 
              1. Claimant sustained an injury known as bilateral carpal 
 
         tunnel syndrome on March 29, 1983.
 
         
 
              2. Claimant's injury was to her left hand and to her right 
 
         hand.
 
         
 
              3. Claimant's injury directly caused a healing period that 
 
         was intermittent in nature as set forth in the findings of fact 
 
         above.
 
         
 
              4. Claimant has sustained a permanent partial disability by 
 
         reason of her work injury of March 29, 1983, of 7% to her right 
 
         hand and 11% to her left hand.  Pursuant to Simbro v. DeLong's 
 
         Sportswear, 332 N.W.2d 886 (Iowa 1983), compensation for 
 
         permanent partial disability of two scheduled members caused by a 
 
         single accident is a scheduled benefit under Iowa Code section 
 
         85.34(2)(s); the degree of disability must be computed on a 
 
         functional basis, but converted to a percentage of 500 weeks.  
 
         Claimant's permanent partial disability is 10% of 500, or 50 
 
         weeks.
 
         
 
              5. Claimant is not entitled to recovery against the Second 
 
         Injury Fund of Iowa because she has not sustained a second 
 
         injury.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              Claimant shall take nothing from this proceeding with 
 
         respect to file number 775865 or from the Second Injury Fund of 
 
         Iowa.
 
         
 
              Defendants Iowa Meat Processing Company and Argonaut 
 
         Insurance Company are liable to claimant to the extent of 
 
         twenty-four (24) weeks, three (3) days of healing period benefits 
 
         at the stipulated rate of two hundred eighty-four and 92/100 
 
         dollars ($284.92), totalling six thousand nine hundred sixty and 
 
         31/100 dollars ($6,960.31).
 
         
 
              Defendants Iowa Meat Processing Company and Argonaut 
 
         Insurance Company are liable to claimant to the extent of fifty 
 
         (50) weeks of permanent partial disability benefits at the 
 
         stipulated rate of two hundred eighty-four and 92/100 dollars 
 
         ($284.92), totalling fourteen thousand two hundred forty-six and 
 
         00/100 dollars ($14,246.00).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Defendants Iowa Meat Processing Company and Argonaut 
 
         Insurance Company are entitled to credit for alll benefits 
 
         voluntarily paid prior to hearing; because the credit exceeds 
 
         claimant's entitlement, claimant shall take nothing further in 
 
         file number 730638.
 
         
 
         
 
         WOLFE V. IOWA MEAT PROCESSING COMPANY
 
         Page 17
 
         
 
         
 
              Each party to this action shall be responsible for its own 
 
         costs pursuant to Division of Industrial Services Rule 343-4.33.
 
         
 
              Because agency records do not reflect voluntary benefits 
 
         paid by Argonaut to the degree stipulated, Argonaut Insurance 
 
         Company shall file a current claim activity report within thirty 
 
         (30) days of the filing date of this decision.
 
         
 
         
 
         
 
              Signed and filed this 3rd day of November, 1989.
 
         
 
         
 
         
 
         
 
         
 
         
 
                                         DAVID RASEY
 
                                         DEPUTY INDUSTRIAL COMMISSIONER
 
          
 
          Copies To:
 
          
 
          Mr. Harry H. Smith
 
          Attorney at Law
 
          P.O. Box 1194
 
          Sioux City, Iowa 51102
 
          
 
          Ms. Judith Ann Higgs
 
          Attorney at Law
 
          200 Home Federal Building
 
          P.O. Box 3086
 
          Sioux City, Iowa  51102
 
          
 
          Mr. Harry W. Dahl
 
          Attorney at Law
 
          974 73rd Street, Suite 16
 
          Des Moines, Iowa  50312
 
          
 
          ms. Joanne Moeller
 
          Assistant Attorney General
 
          Tort Claims Division
 
          Hoover State Office Building
 
          Des Moines, Iowa  50319
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                                         2207, 2209, 3202
 
                                         Filed November 3, 1989
 
                                         DAVID RASEY
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         BARBARA J. WOLFE,
 
          
 
               Claimant,
 
                                         File  Nos. 730638
 
          VS.                                       775865
 
          
 
          IOWA MEAT PROCESSING COMPANY,  A R B I T R A T I O N
 
          
 
               Employer,                 D E C I S I 0 N
 
          
 
          and
 
          
 
          CHUBB GROUP OF INSURANCE CO.
 
          and ARGONAUT INSURANCE CO.,
 
          
 
               Insurance Carriers,
 
          
 
          and
 
          
 
          SECOND INJURY FUND,
 
          
 
               Defendants.
 
         
 
         
 
         2207, 2209, 3202
 
         
 
              Bilateral. carpal tunnel was one injury when symptoms 
 
         developed together, although much worse on one side first.  
 
         Himshoot and Johnson followed.  Because there was only one injury 
 
         date, SecoNd Injury Fund and insurance carrier on date of alleged 
 
         second injury (when other hand got worse) were not liable.
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         NATHAN E. GUNDERSON,
 
         
 
              Claimant,
 
         
 
         vs.
 
                                                     File  No. 731189
 
         LEHIGH PORTLAND CEMENT CO.,
 
                                                  A R B I T R A T I O N
 
              Employer,
 
                                                     D E C I S I O N
 
         and
 
         
 
         TRAVELERS INSURANCE COMPANIES,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding in arbitration brought by Nathan E. 
 
         Gunderson against Lehigh Portland Cement Company, his former 
 
         employer, and the Travelers Insurance Companies.
 
         
 
              The case was heard and fully submitted at Mason City, Iowa 
 
         on January 8, 1988.  The record in the proceeding consists of 
 
         testimony from Nathan E. Gunderson, Kimberly Engler, Roger 
 
         Marquardt and Louis Fazing.  The record also contains claimant's 
 
         exhibits 1 through 5 and defendants' exhibit A.
 
         
 
                                      ISSUES
 
         
 
              Claimant seeks further benefits based upon the alleged 
 
         injury of April 12, 1983.  Claimant seeks additional healing 
 
         period, permanent partial disability and expenses of medical 
 
         treatment.  The issues presented by the parties at the time of 
 
         hearing are whether claimant sustained an injury on April 12, 
 
         1983 which arose out of and in the course of employment; whether 
 
         the alleged injury is a proximate cause of any treatment, 
 
         temporary or permanent disability; determination of the 
 
         claimant's entitlement, if any, to compensation for healing 
 
         period and permanent partial disability; and, determination of 
 
         claimant's entitlement to expenses of medical treatment under 
 
         section 85.27.
 
         
 
                               SUMMARY OF EVIDENCE
 
         
 
              The following is a summary of evidence presented in this 
 
         case.  Only the evidence most pertinent to this decision is 
 
         discussed, but all of the evidence received at the hearing was 
 
         considered in arriving at this decision.  Conclusions about what 
 
         the evidence showed are inevitable with any summarization.  The 
 
         conclusions in the following summary should be considered to be 
 
         preliminary findings of fact.
 
         
 
              Nathan E. Gunderson is a 46-year-old man who lives at 
 
         Mason City, Iowa.  Gunderson graduated from high school in 
 

 
         
 
         
 
         
 
         GUNDERSON V. LEHIGH PORTLAND CEMENT CO.
 
         PAGE   2
 
         
 
         1960.  He was trained as a truck driver in the National Guard.  
 
         Before commencing employment with Lehigh Portland Cement, he 
 
         held a number of different positions including working at a car 
 
         lot, painting houses, delivering furniture and appliances, 
 
         working as a grain elevator laborer, driving a petroleum tank 
 
         truck and management trainee for a variety store chain.
 
         
 
              Gunderson became employed by Lehigh in 1969 as a yard 
 
         laborer.  Over the years he held a number of different jobs.  
 
         In 1981, he was in the electric shop where he earned in excess 
 
         of $27,000 per year.  A force reduction occurred subsequently 
 
         and, on April 12, 1983, Gunderson was again working as a yard 
 
         laborer earning in excess of $12.00 per hour.
 
         
 
              Gunderson testified that, on April 12, 1983, he was 
 
         driving a Heister forklift truck through the yard moving 
 
         pallets of material.  Gunderson stated that it was cold, that 
 
         he was driving fast on a rough road and that the bouncing 
 
         caused his back to hurt.  Claimant stated that he reported the 
 
         injury to a supervisor, Chris Breen, who arranged a doctor's 
 
         appointment.  Claimant related that exhibit 1-12, a letter from 
 
         J. K. Coddington, M.D., dated April 12, 1983, accurately 
 
         reflects what happened.  Claimant testified that Dr. Coddington 
 
         kept him off work until November and that, during the course of 
 
         treatment, he was referred to Wayne Janda, M.D., an orthopaedic 
 
         surgeon.  Claimant related that Dr. Janda's notes of June 15, 
 
         1983 reflect what claimant told Dr. Janda (exhibit 1-1, page 
 
         7).
 
         
 
              Claimant was treated conservatively with medication and 
 
         therapy under the direction of Dr. Janda until claimant was 
 
         released to return to work on or about November 7, 1983 
 
         (exhibits 1-1, page 11; 1-21).  Dr. Janda diagnosed claimant's 
 

 
         
 
         
 
         
 
         GUNDERSON V. LEHIGH PORTLAND CEMENT CO.
 
         PAGE   3
 
         
 
         condition as being herniated nucleus pulposus L5-Sl as shown by 
 
         a CT scan (exhibits 1-1, pages 9-19; 1-18).  Dr. Janda 
 
         initially imposed a 60-pound lifting restriction, but then 
 
         changed it to 40 pounds and also restricted claimant from 
 
         performing overtime work (exhibit 1-1, pages 11-15).  Claimant 
 
         worked as a yard laborer from November, 1983 until May 14, 1984 
 
         when a strike occurred.  Claimant continued to treat with Dr. 
 
         Janda during the period he had resumed working and further saw 
 
         Dr. Janda subsequent to the onset of the strike.  In 1984, Dr. 
 
         Janda recommended that claimant consider vocational retraining 
 
         (exhibits 1-1, page 14; 1-24).  Claimant testified that he was 
 
         able to perform his work at Lehigh within the restrictions set 
 
         by  Dr. Janda.
 
         
 
              While claimant was off work in 1983, he was evaluated by 
 
         William R. Boulden, M.D., an orthopaedic surgeon.  Dr. Boulden 
 
         noted that claimant exhibited bulging of the discs at both the 
 
         L4-5 and L5-Sl levels, but that the discs were not actually 
 
         herniated.  Dr. Boulden indicated that claimant may eventually 
 
         develop actual herniation because of the bulging, but that 
 
         herniation is a condition which can develop in a person who had 
 
         not been previously injured.  Dr. Boulden felt that the only 
 
         appropriate restrictions at that time would be use of proper 
 
         back mechanics (exhibits 1-19; 1-20).
 
         
 
              Lehigh alleged that claimant had participated in 
 
         misconduct during the strike and, when claimant attempted to 
 
         return to work on June 7, 1984, he was not rehired.  Claimant 
 
         and the employer eventually settled the dispute by placing 
 
         claimant on a disability pension which provides him with 
 
         approximately $430 per month.
 
         
 
              Gunderson testified that he enrolled at the North Iowa 
 

 
         
 
         
 
         
 
         GUNDERSON V. LEHIGH PORTLAND CEMENT CO.
 
         PAGE   4
 
         
 
         Area Community College in June, 1985.  Claimant has two 
 
         associate's degrees, one in liberal arts and the other in 
 
         business.  He had accumulated 89 hours of college credit by the 
 
         time of hearing.  Claimant stated that he needs an additional 
 
         128 hours to obtain a bachelor's degree through the program in 
 
         which he currently participates.  It is conducted on the NIACC 
 
         campus by Buena Vista College.  Claimant stated that his course 
 
         of study deals with management information systems and that he 
 
         is knowledgeable in the field of computer programming.  
 
         Claimant has an excellent academic record.
 
         
 
              Claimant testified that, during the period of January to 
 
         September 16, 1985, his condition was relatively stable.  He 
 
         stated that, on September 16, 1985, he awoke, stretched in bed, 
 
         felt something pop and experienced a lot of intense pain in his 
 
         low back.  Claimant stated that, after two days of seeking 
 
         relief by lying on the living room floor, he went to the 
 
         hospital emergency room for medical treatment where he was seen 
 
         by.Dr. Janda and referred to the Mayo Clinic.
 
         
 
              Claimant testified that he had surgery at the Mayo Clinic 
 
         and that exhibit 4 contains the bills from that operation.  
 
         Claimant stated that the surgery was a success, but that he 
 
         continued to have back pain and muscle cramps in his legs.  In 
 
         June, 1987, claimant underwent a second surgery which he also 
 
         characterized as being successful, but he continues to have 
 
         some residual low back pain and cramps in his legs.  Claimant 
 
         testified that he is unable to shovel, perform continuous 
 
         lifting or perform continuous sitting.  Claimant stated that he 
 
         is currently restricted from lifting more than 15 or 20 pounds 
 
         and that he has been advised to avoid doing anything that is 
 
         aggravating.
 
         
 

 
         
 
         
 
         
 
         GUNDERSON V. LEHIGH PORTLAND CEMENT CO.
 
         PAGE   5
 
         
 
              Claimant testified that he has applied for a variety of 
 
         jobs, one of which is a computer operator job with Cerro Gordo 
 
         County which pays $3.35 per hour and provides no fringe 
 
         benefits.  Since leaving employment with Lehigh, claimant has 
 
         held a variety of short-term or part-time jobs.  During the 
 
         summer of 1986, he worked at Van Horn's Truck Museum for which 
 
         he was paid $3.50 per hour.  He worked for a local television 
 
         station operating a camera, teleprompter and video machine for 
 
         which he was paid $3.35 per hour.  He has tutored other 
 
         students in computer language.  During 1987, he earned $81.00 
 
         welding for the Iowa Traction Railroad.  Claimant stated he 
 
         felt that he would have been physically capable of working 
 
         after the strike if he had been rehired.  Claimant has also 
 
         applied for maintenance electrician jobs.  He stated that he 
 
         did not feel capable of performing them, but needed the money.  
 
         Claimant had completed a four-year maintenance electrician 
 
         training program while employed at Lehigh Portland Cement.
 
         
 
              Claimant's treatment at the Mayo Clinic was performed 
 
         primarily by M. J. Ebersold, M.D.  Surgery was performed on 
 
         October 7, 1985 to excise an extruded fifth lumbar 
 
         intervertebral disc on the right (exhibits 1-30, page 3; 1-31).  
 
         On April 8, 1987, Dr. Ebersold indicated that claimant's back 
 
         problems, the initial surgery and the residual disability, 
 
         which he determined was nine percent of the whole person, were 
 
         all causally connected to the April 12, 1983 injury (exhibit 
 
         1-43).  Dr. Ebersold also indicated that the second surgery, 
 
         performed in June, 1987, was likewise related to the initial 
 
         trauma of April 12, 1983 (exhibits 1-44; 1-45).
 
         
 
              Kimberly Engler, a qualified vocational consultant, 
 
         testified that, at the time of hearing, claimant's job skills 
 
         would probably provide him with an income level of 
 

 
         
 
         
 
         
 
         GUNDERSON V. LEHIGH PORTLAND CEMENT CO.
 
         PAGE   6
 
         
 
         approximately $12,000 per year and that, upon completion of the 
 
         Buena Vista College program, he could expect to earn in the 
 
         range of $18,000-$20,000 per year.  Engler stated that many 
 
         employers are reluctant to hire a person who has had an 
 
         oil-the-job injury.
 
         
 
              Roger Marquardt, a qualified vocational consultant, stated 
 
         that, if claimant finishes the four-year education and works 
 
         closely with a placement office, the claimant could expect to 
 
         approach, or possibly exceed, the level of earnings that he 
 
         would be experiencing if he were still employed at Lehigh.  
 
         Marquardt stated that claimant had prospects of earning in the 
 
         range of $7.76 per hour to in excess of $20.00 per hour in the 
 
         computer programmer and computer systems analyst fields.  
 
         Marquardt stated that claimant had aptitude for retail 
 
         management positions where the range of pay is from $3.58 per 
 
         hour to $13.85 per hour.
 
         
 
              Marquardt expressed the opinion that it would be most 
 
         beneficial for claimant to pursue his education in the computer 
 
         field or, in the alternative, that claimant obtain a job where 
 
         the employer would provide him with further training in order 
 
         to increase his skills.
 
         
 
              Louis Fazing, safety and training supervisor at Lehigh 
 
         since 1981, stated that, since 1984, there have been two pay 
 
         increases at Lehigh of $4.00 per hour each in 1986 and 1987.  
 
         Fazing stated that the total wage and fringe benefit package at 
 
         Lehigh costs the employer approximately $20.00 per hour.
 
         
 
                        APPLICABLE LAW AND ANALYSIS
 
         
 
              Claimant has the burden of proving by a preponderance of the 
 
         evidence that he received an injury on April 12, 1983 which arose 
 
         out of and in the course of his employment.  McDowell v. Town of 
 
         Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. Central 
 

 
         
 
         
 
         
 
         GUNDERSON V. LEHIGH PORTLAND CEMENT CO.
 
         PAGE   7
 
         
 
         Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
              Claimant's appearance and demeanor were observed as he 
 
         testified.  His testimony was considered in light of the other 
 
         evidence in the record.  The claimant is found to be a credible 
 
         witness.  It is therefore determined that claimant was injured 
 
         while operating a forklift truck on April 12, 1983 as claimant 
 
         alleged and testified.
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury of April 12, 1983 is causally 
 
         related to the disability on which he now bases his claim.  
 
         Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). 
 
         Lindahl v. L.O. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945).  A 
 
         possibility is insufficient; a probability is necessary.  Burt v. 
 
         John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 
 
         (1955).  The question of causal connection is essentially within 
 
         the domain of expert testimony.  Bradshaw v. Iowa Methodist 
 
         Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960.
 
         
 
              However, expert medical evidence must be considered with all 
 
         other evidence introduced bearing on the causal connection.  
 
         Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion of experts need 
 
         not be couched in definite, positive or unequivocal language.  
 
         Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974).  However, 
 
         the expert opinion may be accepted or rejected, in whole or 
 
         in.part, by the trier of fact.  Id. at 907.  Further, the weight 
 
         to be given to such an opinion is for the finder of fact, and 
 
         that may be affected by the completeness of the premise given the 
 
         expert and.other surrounding circumstances.  Bodish, 257 Iowa 
 
         516, 133 N.W.2d 867.  See also Musselman v. Central Telephone 
 
         Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
              Drs. Ebersold and Janda relate claimant's herniated lumbar 
 
         disc to the April 12, 1983 injury.  Both surgeries were performed 
 
         to treat that disc.  Dr. Ebersold relates both surgeries to the 
 
         April 12, 1983 injury.  While Dr. Boulden indicated that 
 
         individuals without a prior injury can develop a herniated disc, 
 
         he did not state that such was the most common scenario.  In 
 
         fact, Dr. Boulden apparently recognized that further problems 
 
         with the disc were foreseeable.  It is therefore found and 
 
         concluded that the injury of April 12, 1983 is a proximate cause 
 
         of Gunderson's herniated L5 lumbar disc, of both surgeries 
 
         employed to treat the condition and of the claimant's residual 
 
         disability with regard to his low back.
 
         
 
              Since defendants have been found to be responsible for 
 
         proximately causing the disc injury, defendants are therefore 
 
         responsible for all expenses of treatment under the provisions of 
 
         Iowa Code section 85.27. Claimant's exhibit 4 itemizes those 
 
         expenses which total $17,824.51.
 
         
 
              Claimant seeks additional healing period compensation under 
 
         the provisions of Iowa Code section 85.34 from the date of May 
 
         14, 1984 until whatever date Gunderson actually returns to 
 
         gainful employment.  Claimant's healing period was ended by his 
 
         return to work in November, 1983 for which claimant acknowledges 
 
         receipt of full payment.  Claimant's lack of employment 
 
         subsequent to the May 14, 1984 strike was not attributable to his 
 
         physical condition.  It is not until September 16, 1985 that 
 

 
         
 
         
 
         
 
         GUNDERSON V. LEHIGH PORTLAND CEMENT CO.
 
         PAGE   8
 
         
 
         claimant's physical condition disabled him beyond the permanent 
 
         partial disability that existed following the November, 1983 
 
         return to work.  The medical bills indicate that claimant was 
 
         hospitalized from October 1 through October 14, 1985 when the 
 
         first surgery was performed.  The record does not contain any 
 
         direct evidence with regard to the time when claimant"s 
 
         recuperation from that surgery was substantially completed.  
 
         Claimant stated that he had a return visit two weeks after being 
 
         released from the hospital.  No direct medical evidence appears 
 
         in the record to specify the recovery period from either surgery.  
 
         The burden of proving that entitlement rests upon the claimant.  
 
         Agency expertise, however, makes it apparent that some extended 
 
         period of recovery follows lumbar disc surgery and an award for a 
 
         relatively short healing period is warranted.  In view of the 
 
         lack of other evidence in the record, it is determined that the 
 
         healing period entitlement is ten weeks commencing September 16, 
 
         1985 for the first surgery and eight weeks commencing June 22, 
 
         1987.
 
         
 
              As a claimant has an impairment to the body as a whole, an 
 
         industrial disability has been sustained.  Industrial disability 
 
         was defined in Diederich v. Tri-City Railway Co., 219 Iowa 587, 
 
         593, 258 N.W. 899, 902 (1935) as follows:  "It is therefore plain 
 
         that the legislature intended the term 'disability' to mean 
 
         'industrial disability' or loss of earning capacity and not a 
 
         mere 'functional disability' to be computed in the terms of 
 
         percentages of the total physical and mental ability of a normal 
 
         man."
 
         
 
              Functional disability is an element to be considered in 
 
         determining industrial disability which is the reduction of 
 
         earning capacity, but consideration must also be given to the 
 
         injured employee's age, education, qualifications, experience and 
 
         inability to engage in employment for which he is fitted.  Olson 
 
         v. Goodyear Service Stores, 255 Iowa 1112, 1121 125 N.W.2d 251, 
 
         257 (1963).
 
         
 
              Industrial disability or loss of earning capacity is a 
 
         concept that is quite similar to impairment of earning capacity, 
 
         an element of damage in a tort case.  Impairment of physical 
 
         capacity creates an inference of lessened earning capacity.  The 
 
         basic element to be determined, however, is the reduction in 
 
         value of the general earning capacity of the person, rather than 
 
         the loss of wages or earnings in a specific occupation.  
 
         Post-injury earnings create a presumption of earning capacity.  
 
         The earnings are not synonymous with earning capacity and the 
 
         presumption may be rebutted by evidence showing the earnings to 
 
         be an unreliable indicator.  Carradus v. Lange, 203 N.W.2d 565 
 
         (Iowa 1973); Holmquist v. Volkswagon of America, Inc., 261 N.W.2d 
 
         516 (Iowa App. 1977) A.L.R.3d 143; Michael v. Harrison County, 
 
         34th Biennial Report, 218 (1979): 2 Larson Workmen's Compensation 
 
         Law, sections 57.21 and 57.31.
 
         
 
              Industrial disability is to be evaluated as the claimant 
 
         exists immediately following recuperation from the injury.  
 
         Speculation into the future is to be avoided.  Stewart v. Crouse 
 
         Cartage Co., file number 738644, Appeal Decision, February 20, 
 
         1987.  An employee's aptitude for academic pursuits is to be 
 
         considered.  However, defendants who did not provide substantial 
 
         retraining, such as two or four years of college, do not directly 
 

 
         
 
         
 
         
 
         GUNDERSON V. LEHIGH PORTLAND CEMENT CO.
 
         PAGE   9
 
         
 
         benefit, through a reduced disability award, from the employee's 
 
         initiative and economic expenditures made to qualify for a new 
 
         vocation which provides enhanced earning potential.  The 
 
         termination of claimant's employment with Lehigh does not appear 
 
         to have been related to his physical condition or injury.  To 
 
         determine whether or not the accusation of claimant engaging in 
 
         misconduct during the strike was warranted is not within the 
 
         province of the undersigned.  Despite the fact that the 
 
         termination of claimant's employment in 1984 was not related to 
 
         the condition of his back, it is apparent that he would not now 
 
         be capable of performing that same type of heavy work as he 
 
         performed at that time and that it would have eventually become 
 
         imperative for him to change occupations.  When all the 
 
         appropriate factors of industrial disability are considered, it 
 
         is determined that claimant has a 40% permanent partial 
 
         disability as a result of the injuries he sustained on April 12, 
 
         1983.
 
         
 
              The disability award is payable commencing November 15, 
 
         1983, the day after the stipulated end of the initial healing 
 
         period.  It was apparent that claimant had some permanent 
 
         disability at that time due to the restrictions referred to in 
 
         Dr. Janda's notes.  Teel v. McCord, 394 N.W.2d 405 (Iowa 1986).
 
         
 
                                 FINDINGS OF FACT
 
         
 
              1.  On April 12, 1983, Nathan E. Gunderson injured his low 
 
         back while operating a forklift truck as part of the duties of 
 
         his employment with Lehigh Portland Cement Company.
 
         
 
              2.  Following that injury, claimant was off work and 
 
         temporarily disabled until he resumed employment on November 15, 
 
         1983 as stipulated by the parties.
 
         
 
              3.  The injury of April 12, 1983 was a substantial factor in 
 
         producing a permanent condition in claimant's lumbar spine which 
 
         ultimately required the surgical treatment which was performed at 
 
         the Mayo Clinic on or about October 1, 1985 and again on or about 
 
         June 25, 1987.
 
         
 
              4.  Gunderson was totally disabled and medically incapable 
 
         of performing work in employment substantially similar to that he 
 
         performed at the time of injury from September 16, 1985 until 
 
         November 24, 1985, a period of ten weeks, which is a reasonable 
 
         allowance for recovery from surgery.
 
         
 
              5.  Claimant was totally disabled and medically incapable of 
 
         performing work in employment substantially similar to that he 
 
         performed at the time of injury from June 22, 1987 until August 
 
         16, 1987, a period of eight weeks, a reasonable amount of time 
 
         for recovering from the 1987 surgery.
 
         
 
              6.  All medical treatment received by claimant, as evidenced 
 
         by the charges contained in exhibit 4, was reasonable treatment 
 
         for the injury of April 12, 1983.
 
         
 
              7.  The trauma that Gunderson sustained on April 12, 1983 
 
         was a substantial factor in producing the surgeries that he 
 
         underwent on his low back in 1985 and 1987 and of the residual 
 
         permanent disability in his low back.
 

 
         
 
         
 
         
 
         GUNDERSON V. LEHIGH PORTLAND CEMENT CO.
 
         PAGE  10
 
         
 
         
 
              8.  Gunderson has experienced a 40% reduction in his earning 
 
         capacity as a result of the injuries he sustained on April 12, 
 
         1983.
 
         
 
              9.  Nathan Gunderson, and all the other witnesses who 
 
         testified at hearing, are fully credible.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              1.  This agency has jurisdiction of the subject matter of 
 
         this proceeding and its parties.
 
         
 
              2.  Nathan E. Gunderson sustained an injury to his low back 
 
         on April 12, 1983 which arose out of and in the course of his 
 
         employment with Lehigh Portland Cement Company.
 
         
 
              3.  Gunderson is entitled to recover eighteen additional 
 
         weeks of compensation for healing period with ten weeks thereof 
 
         payable commencing September 16, 1985 and with eight weeks 
 
         thereof payable commencing June 22, 1987.
 
         
 
              4.  Nathan E. Gunderson has sustained a 40% permanent 
 
         partial disability under the provisions of Iowa Code section 
 
         85.34(2)(u) which entitles him to receive 200 weeks of 
 
         compensation for permanent partial disability.
 
         
 
              5.  The compensation for permanent partial disability is 
 
         payable commencing November 15, 1983, but is to be interrupted by 
 
         the additional eighteen weeks of healing period awarded.
 
         
 
              6.  Defendants are entitled to credit for the fifty weeks of 
 
         permanent partial disability compensation previously paid.
 
         
 
              7.  Defendants are responsible under the provisions of Iowa 
 
         Code section 85.27 for payment of all of claimant's medical 
 
         expenses as contained in exhibit 4 in the total amount of 
 
         $17,824.51 plus mileage in the amount of $273.00.
 
         
 
              8.  Claimant's permanent partial disability is to be 
 
         evaluated as he exists at the end of his recuperation, with 
 
         consideration given to his experience, aptitudes and all other 
 
         material factors, but without speculation with regard to whether 
 
         he will in fact complete a particular course of study or obtain a 
 
         particular job.
 
         
 
              9.  Defendants who do not pay the costs of retraining an 
 
         employee subsequent to the employee's injury are not entitled to 
 
         directly benefit from enhancement of the employee's earning 
 
         capacity which results from substantial retraining acquired by 
 
         the employee at his own expense.
 
         
 
                                      ORDER
 
         
 
              IT IS THEREFORE ORDERED that defendants pay claimant 
 
         eighteen (18) weeks of compensation for healing period at the 
 
         stipulated rate of three hundred five and 66/100 dollars 
 
         ($305.66) per week with ten (10) weeks thereof payable commencing 
 
         September 16, 1985 and with the remaining eight (8) weeks payable 
 
         commencing June 22, 1987.
 

 
         
 
         
 
         
 
         GUNDERSON V. LEHIGH PORTLAND CEMENT CO.
 
         PAGE  11
 
         
 
         
 
              IT IS FURTHER ORDERED that defendants pay claimant two 
 
         hundred (200) weeks of compensation for permanent partial 
 
         disability at the stipulated rate of three hundred five and 
 
         66/100 dollars ($305.66) per week payable commencing November 15, 
 
         1983.  Defendants are entitled to credit against the award for 
 
         the fifty (50) weeks of benefits previously paid.  Payment of 
 
         permanent partial disability is to be suspended for periods when 
 
         healing period compensation for the same injury is being paid.
 
         
 
              IT IS FURTHER ORDERED that defendants pay claimant's 
 
         expenses listed in exhibit 4, under the provisions of section 
 
         85.27, as follows:
 
         
 
              Wal-Mart                     09-18-85 thru   $    38.32
 
                                           10-19-85
 
              St. Joseph Mercy Hospital    09-22-85             47.25
 
              Dr. Janda                    09-27-85             24.00
 
              St. Joseph Mercy Hospital    09-29-85            531.00
 
              Dr. Janda                    10-01-85             30.00
 
              Dr. Hayreh                   10-01-85             90.00
 
              Radiologists of Mason City   10-05-85            180.00
 
              Mayo Clinic                  10-16-85          4,023.95
 
              St. Mary's Hospital          10-17-85          3,507.04
 
              Dr. Janda                    10-22-85             60.00
 
              Mayo Clinic                  07-07-87          4,932.00
 
              St. Mary's Hospital          10-01-87          4,360.95
 
              Totals                                       $17,824.51
 
         
 
              IT IS FURTHER ORDERED that defendants pay claimant two 
 
         hundred seventy-three and 00/100 dollars ($273.00) in mileage and 
 
         transportation expenses.
 
         
 
              IT IS FURTHER ORDERED that defendants pay the costs of this 
 
         proceeding pursuant to Division of Industrial Services Rule 
 
         343-4.33.
 
         
 
              IT IS FURTHER ORDERED that defendants file Claim Activity 
 
         Reports as requested by this agency pursuant to Division of 
 
         Industrial Services Rule 343-3.1.
 
         
 
         
 
              Signed and filed this 14th day of November, 1988.
 
         
 
         
 
         
 
         
 

 
         
 
         
 
         
 
         GUNDERSON V. LEHIGH PORTLAND CEMENT CO.
 
         PAGE  12
 
         
 
         
 
                                          
 
                                          
 
                                          
 
                                          MICHAEL G. TRIER
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         
 
         Copies To:
 
         
 
         Mr. Robert W. Pratt
 
         Attorney at Law
 
         1913 Ingersoll Avenue
 
         Des Moines, Iowa 50309
 
         
 
         Mr. C. Bradley Price
 
         Mr. Mark A. Wilson
 
         Attorneys at Law
 
         30 Fourth Street NW
 
         P.O. Box 1953
 
         Mason City, Iowa 50401
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                            1402.20, 1402.30, 1802, 1803
 
                                            Filed November 14, 1988
 
                                            MICHAEL G. TRIER
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         NATHAN E. GUNDERSON,
 
         
 
              Claimant,
 
         
 
         vs.
 
                                                       File  No. 731189
 
         LEHIGH PORTLAND CEMENT CO.,
 
                                                    A R B I T R A T I O N
 
              Employer,
 
                                                       D E C I S I O N
 
         and
 
         
 
         TRAVELERS INSURANCE COMPANIES,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         1402.20, 1402.30, 1802, 1803
 
         
 
              The claimant was found to be credible.  His testimony was 
 
         relied upon to establish the alleged injury.  Expert medical 
 
         opinions established causal connection between the injury and the 
 
         treatment and disability.
 
         
 
              The claimant underwent two separate back surgeries, but the 
 
         evidence did not provide any specific statement regarding 
 
         release, return to work or maximum improvement.  Agency expertise 
 
         was relied upon to assign a conservative healing period for each 
 
         surgery.  Ten weeks and eight weeks were allowed.
 
         
 
              The injury forced the claimant out of occupations which 
 
         involve physical labor.  The employee's education at the time of 
 
         injury was limited to high school and some electrician training 
 
         provided by the employer during his employment.  Claimant was 
 
         awarded 40% permanent partial disability despite the fact that he 
 
         is currently attending college and has maintained an excellent 
 
         academic record.  Testimony from vocational consultants showed 
 
         that, without retraining, his earning capacity was extremely 
 
         restricted, but that, with retraining, he had some reasonable 
 
         expectation of eventually obtaining a level of earnings 
 
         comparable to those he would have if he were still employed by 
 
         the employer.  Claimant's employment with the employer was 
 
         terminated for reasons unrelated to his disability (possible 
 
         misconduct), but it was clear that he would not have been 
 
         physically capable of continuing to perform that employment.
 
         
 
 
 
                                                
 
 
        
 
 
 
 
 
        
 
        
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
        
 
                                                               
 
                                                               
 
        RUTH ANN (GAJESKI) CARTER,
 
        
 
            Claimant,
 
                                                          File No. 
 
        732627
 
        vs.
 
                                                          A R B I T R A 
 
        T I O N
 
        OSCAR MAYER COMPANY,
 
                                                          D E C I S I O 
 
        N
 
            Employer,
 
            Self-Insured,                             F I L E D
 
            Defendant.
 
                                                      APR 17 1989
 
        
 
                                                 INDUSTRIAL SERVICES
 
        
 
        
 
                                      INTRODUCTION
 
        
 
             This is a proceeding in arbitration brought by Ruth Ann 
 
             (Gajeski) Carter against Oscar Mayer Company, her self-insured 
 
             employer, based upon an injury of May 16, 1983.
 
        
 
            The case was consolidated for hearing with file number 
 
        830031 and was heard and fully submitted at Davenport, Iowa on 
 
        July 7, 1988. The record in this proceeding consists of 
 
        testimony from claimant and from Monica Murphy. The record also 
 
        contains claimant's exhibits 1 through 9 and defendant's exhibits 
 
        A through DD.
 
        
 
                                      ISSUES
 
        
 
             Claimant seeks compensation for permanent partial disability 
 
             affecting her neck, shoulder and back based upon the May 16, 1983 
 
             injury. The issues for determination include whether or not any 
 
             condition affecting claimant's neck, shoulder or back was 
 
             proximately caused by the events that occurred on May 16, 1983, 
 
             the extent, if any, of permanent partial disability resulting 
 
             from that incident and whether or not claimant's claim is barred 
 
             by lack of notice under the provisions of Code section 85.23.
 
        
 
                                 SUMMARY OF EVIDENCE
 
        
 
             The following is a summary of evidence presented in this 
 
             case. Of all the evidence received at the hearing, only that 
 
             considered most pertinent to this decision is discussed. 
 
             ConcLusions about what the evidence showed are inevitable with 
 
             any summarization. The conclusions in the following summary 
 
             should be considered to be preliminary findings of fact.
 
        
 
            Ruth Ann Carter is a 27-year employee of Oscar Mayer 
 
        Company. On May 16, 1983 she was lifting a tub of meat weighing 
 
        40-60 pounds when she experienced the onset of pain. Claimant 
 
        testified that the pain was in her groin and also in her shoulder 
 
        and that she reported the incident to the plant nurse, including 
 

 
        
 
 
 
 
 
        pain in her groin and shoulder areas. Claimant stated that she 
 
        saw Gordon A. Flynn, M.D., at the plant and was then sent on to 
 
        Dr. Bishop at the clinic. Dr. Flynn's note of May 18, 1983 
 
        contains no reference of neck, shoulder or back complaints 
 
        (exhibit D, page 1). Claimant was diagnosed as having bilateral 
 
        hernia and underwent bilateral inguinal hernioplasty on June 22, 
 
        1983 (exhibit S) . Claimant returned to work August 15, 1983 
 
        (exhibit DD, page 18). A note from Dr. Flynn dated September 9, 
 
        1983 indicates that claimant complained of right arm and elbow 
 
        problems. The following note which is dated April 17, 1984 notes 
 
        complaints of pain in the right shoulder which had been present 
 
        for almost a year and which had started with lifting tubs 
 
        (exhibit D, page 2). Subsequent to that date, other records 
 
        found in the exhibits contain references to claimant complaining 
 
        of neck, shoulder and back pain.
 
        
 
             Claimant was referred to Byron W. Rovine, M.D., a 
 
             neurosurgeon. Dr. Rovine, in his report dated May 4, 1984, 
 
             concluded that claimant had cervicobrachial pain syndrome of 
 
             undetermined etiology. The report indicates that claimant told 
 
             him that she had similar symptoms prior to May of 1983. Dr. 
 
             Rovine found no objective neurological evidence of cervical 
 
             radiculopathy (exhibit H).
 
        
 
            Claimant was also treated by Richard A. Roski, M.D. In a 
 
        report dated November 7, 1985, Dr. Roski states:
 
        
 
             ...I think it is related to a chronic muscle strain that may 
 
             be secondary to her injury in 1983.
 
             
 
             Claimant was also seen by John E. Sinning, M.D., an 
 
             orthopaedic surgeon. Dr. Sinning concluded that claimant has 
 
             degenerative cervical disc disease of a long-standing origin 
 
             which existed prior to claimant's 1983 accident. Dr. Sinning 
 
             felt that the degenerative disc disease is the source of 
 
             claimant's symptoms. He declined to relate claimant's complaints 
 
             to the 1983 accident (exhibit R, pages 9-11).
 
        
 
            Records show that claimant was hospitalized in Zion, 
 
        Illinois in 1982 for problems dealing with her neck (exhibits F, 
 
        G, H and T).
 
        
 
                            APPLICABLE LAW AND ANALYSIS
 
        
 
             In this case, claimant makes claim only for disability 
 
             regarding her neck, shoulder and back. She specifically made no 
 
             claim for permanent disability connected to the hernias which she 
 
             had experienced. She specifically made no claim for any healing 
 
             period or temporary total disability.
 
        
 
             The record clearly shows that claimant did sustain an injury 
 
             on May 16, 1983. The fact that the employer's records do not 
 
             make note of shoulder complaints is not particularly persuasive 
 
             since claimant was clearly afflicted with an apparently more 
 
             acute condition in the nature of the hernias. Further, an 
 
             employee's notice of injury need not contain every symptom. It 
 
             need only inform the employer that an injurious event has 
 
             occurred. Moudry v. Protivin Fire Department, file number 
 
             753632, (App. Decn., August 16, 1988).
 
        
 
            Claimant has the burden of proving by a preponderance of the 
 
        evidence that she received an injury on May 16, 1983 which arose 
 
        out of and in the course of her employment. McDowell v. Town of 
 
        Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. Central 
 
        Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
        
 

 
        
 
 
 
 
 
            The claimant has the burden of proving by a preponderance of 
 
        the evidence that the injury of May 16, 1983 is causally related 
 
        to the disability on which she now bases her claim. Bodish v. 
 
        Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). Lindahl v. 
 
        L.O. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945). A possibility is 
 
        insufficient; a probability is necessary. Burt v. John Deere 
 
        Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955). The 
 
        question of causal connection is essentially within the domain of 
 
        expert testimony. Bradshaw v. Iowa Methodist Hospital, 251 Iowa 
 
        375, 101 N.W.2d 167 (1960).
 
        
 
            However, expert medical evidence must be considered with all 
 
        other evidence introduced bearing on the causal connection. 
 
        Burt, 247 Iowa 691, 73 N.W.2d 732. The opinion of experts need 
 
        not be couched in definite, positive or unequivocal language. 
 
        Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974). However, 
 
        the expert opinion may be accepted or rejected, in whole or in 
 
        part, by the trier of fact. Id. at 907. Further, the weight to 
 
        be given to such an opinion is for the finder of fact, and that 
 
        may be affected by the completeness of the premise given the 
 
        expert and other surrounding circumstances. Bodish, 257 Iowa 
 
        516, 133 N.W.?d 867. See also Musselman v. Central Telephone 
 
        Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
        
 
             In view of claimant's preexisting degenerative cervical 
 
             condition, it is certainly easy to believe that the lifting 
 
             incident of which she testified could have aggravated that 
 
             condition. Aggravation of a preexisting degenerative condition 
 
             is an injury which normally resolves itself with a few weeks of 
 
             rest. Claimant was off work for hernia surgery for several weeks 
 
             following May 16, 1983. Any injury in the nature of an 
 
             aggravation should have resolved in that period.
 
        
 
            The record of this case fails to contain any expert medical 
 
        opinion which relates claimant's current complaints to that May 
 
        16, 1983 incident. Claimant's own testimony is not found to be 
 
        sufficient to establish by a preponderance of the evidence that 
 
        any injury to her cervical spine, back or shoulder was permanent 
 
        in nature. The greater weight of evidence from the physicians is 
 
        to the contrary. The most supportive of claimant's condition is 
 
        Dr. Roski who simply states that the condition be secondary to 
 
        her injury in 1983. Dr. Rovine states that her condition is of 
 
        undetermined origin while Dr. Sinning states that the current 
 
        complaints are simply due to the degenerative condition.
 
        
 
             While claimant may very likely have experienced a temporary 
 
             aggravation of a preexisting condition with regard to her 
 
             shoulder and cervical spine in the events that occurred on May 
 
             16, 1983, the evidence fails to show that any disability 
 
             resulting therefrom extended beyond the time that claimant was 
 
             disabled for the hernias. The evidence further fails to show, by 
 
             a preponderance of the evidence, that any injury or aggravation 
 
             affecting claimant's neck, shoulder or back produced any 
 
             permanent disability.
 
        
 
                                 FINDINGS OF FACT
 
        
 
             1. The evidence in this case fails to show that it is 
 
             probable that claimant experienced any permanent disability as a 
 
             result of the events which occurred on May 16, 1983 at her place 
 
             of employment.
 
        
 
            2. The evidence does establish that claimant had a 
 
        preexisting degenerative condition in her cervical spine prior to 
 
        May 16, 1983.
 
        
 

 
        
 
 
 
 
 
            3. The evidence in this case is consistent with an 
 
        aggravation of a preexisting condition or a muscle strain having 
 
        occurred on May 16, 1983. Injuries of that nature normally 
 
        resolve within the amount of time that claimant was off work 
 
        under treatment for the hernias.
 
        
 
                                 CONCLUSIONS OF LAW
 
        
 
             1. This agency has jurisdiction of the subject matter of 
 
             this proceeding and its parties.
 
        
 
            2. Claimant has failed to prove, by a preponderance of the 
 
        evidence, that she sustained any permanent partial disability 
 
        involving the condition of her neck, shoulder or back in the 
 
        incidents that occurred on May 16, 1983.
 
        
 
                                      ORDER
 
        
 
             IT IS THEREFORE ORDERED that claimant take nothing from this 
 
             proceeding.
 
        
 
             IT IS FURTHER ORDERED that the costs of this action are 
 
             assessed against claimant pursuant to Division of Industrial 
 
             Services Rule 343-4.33.
 
        
 
            Signed and filed this 17th day of April, 1989.
 
        
 
        
 
        
 
        
 
        
 
        
 
                                       MICHAEL G. TRIER
 
                                       DEPUTY INDUSTRIAL COMMISSIONER
 
        
 
        Copies To:
 
        
 
        Mr. Albert J. Stafne, Jr.
 
        Mr. Thomas H. Preacher
 
        Attorneys at Law
 
        2535 Tech Drive, Suite 200
 
        Bettendorf, Iowa 52722
 
        
 
        Mr. Richard M. McMahon
 
        Ms. Vicki L. Seeck
 
        Attorneys at Law
 
        600 Union Arcade Building
 
        111 East Third Street
 
        Davenport, Iowa 52801-1550
 
        
 
        
 
 
        
 
 
 
 
 
        
 
        
 
                                            51402.30, 51402.40, 51803
 
                                            Filed April 17, 1989
 
                                            MICHAEL G. TRIER
 
        
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
        
 
        
 
        RUTH ANN (GAJESKI) CARTER,
 
        
 
            Claimant,
 
                                              File No. 732627
 
        vs.
 
                                           A R B I T R A T I O N
 
        OSCAR MAYER COMPANY,
 
                                               D E C I S I O N
 
            Employer,
 
            Self-Insured,
 
             Defendant.
 
             
 
             
 
        51402.30, 51402.40, 51803
 
        
 
             Claimant suffered an injurious strain while lifting which 
 
             produced a hernia. The issue in this case was whether it also 
 
             affected her neck, shoulder or back. Claimant had no expert 
 
             medical evidence to support her claim and the claim was denied.
 
             
 
        
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         DENNIS SANBORN,
 
         
 
              Claimant,
 
                                               File Nos. 732672 & 830408
 
         vs.
 
                                                A R B I T R A T I O N
 
         GRISSEL COMPANY, INC.,
 
                                                   D E C I S I O N
 
               Employer,
 
         
 
         and
 
         
 
         ROYAL INSURANCE COMPANY and
 
         IOWA CONTRACTORS WORKERS'
 
         COMPENSATION GROUP,
 
         
 
              Insurance Carrier
 
              Defendants.
 
         
 
         
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding brought by Dennis Sanborn, claimant, 
 
         against Grissel Company, Inc., employer, and Royal Insurance 
 
         Company and Iowa Contractors Workers' Compensation Group, 
 
         insurance carriers, defendants.  These cases come upon petitions 
 
         for arbitration for benefits as a result of alleged injuries 
 
         occurring on May 20, 1983 and on October 8, 1984.  The cases were 
 
         heard by former Deputy Industrial Commissioner Garry D. Woodward 
 
         on March 30, 1988.  The cases were fully submitted on that date.  
 
         On July 13, 1988, the cases were transferred to the undersigned 
 
         by David E. Linquist, Industrial Commissioner.  A transcript of 
 
         the hearing was received by the division on October 12, 1988.
 
         
 
              Pursuant to prehearing reports, the parties stipulated to 
 
         various issues at trial.
 
         
 
              With reference to file number 732672, the parties stipulated 
 
         that claimant sustained an injury on May 20, 1983 which arose out 
 
         of and in the course of his employment.  At the time of the 
 
         injury, the insurance carrier was Iowa Contractors Workers' 
 
         Compensation Group.
 
         
 
              At the time of the injury which allegedly occurred in 
 
         October of 1984, the insurance carrier was Royal Insurance 
 
         Company.
 
         
 
              The record consists of the testimony of claimant, the 
 
         testimony of Roger Marquardt, a vocational rehabilitation 
 
         specialist.  The record also consists of exhibits 1-13 
 
         inclusive.
 
         
 
                                    ISSUES
 
         
 
              The issues presented by the parties at the time of the 
 
         prehearing and the hearing are:  (1) Whether claimant received an 
 
         injury which arose out of and in the course of employment; (2) 
 

 
         
 
         
 
         
 
         SANBORN V. GRISSEL COMPANY, INC.
 
         PAGE   2
 
         
 
         
 
         Whether there is a causal connection between the alleged injury 
 
         and the disability; and, (3) Whether claimant is entitled to 
 
         temporary disability/healing period benefits or permanent partial 
 
         or total disability benefits.
 
         
 
                                 FACTS PRESENTED
 
         
 
              Claimant was employed as a sheet metal worker for defendant. 
 
          Claimant had been employed in that capacity since 1973.  He last 
 
         worked for defendant in October of 1984.  At the time of the 
 
         hearing, claimant was six feet two inches tall; he weighed 
 
         approximately 350 pounds.  Claimant reported that since the age 
 
         of nine or ten, he had experienced problems with his weight.
 
         
 
              Medical records indicate that since the 1960's, claimant has 
 
         had recurring back pain.  As early as 1968, there is evidence of 
 
         physical problems, including numbness in the legs.  Leland 
 
         Hawkins, M.D., in his consultation notes writes:
 
         
 
              ...In the right lower extremity, the patient had 
 
              weakness of the right extensors and of the ankle and 
 
              toes on his right side.  He felt this may have been 
 
              from his original episode of back pain that had 
 
              occurred back in the late '60's ....
 
         
 
              The medical records of James A. Smrha, M.D., for August of 
 
         1974, reveal the following:
 
         
 
              Injured back lifting pipes onto scaffold.  Severe pain.  
 
              X-ray shows cortical bone torn from anterior surface of 
 
              upper portion of L5.  Dr. Strathman consult.  Severe LS 
 
              strain.  Fitted with lumbosacral support.
 
         
 
              Dr. Smrha's medical records also reveal the following:
 
         
 
              Feb. '79:  Injured back 3 months prior to this visit.  
 
              Helping carry aheavy [sic] beam.  Able to function, but 
 
              two days ago had another heavy lift and now back is 
 
              very sore.  Wt - 400#.  Severe LS strain.  Appt. made 
 
              with Dr. Anderson in Ia. City.  Pt. wants gastric 
 
              stapling done.
 
         
 
              After the injury in May of 1983, Dr. Smrha again treated 
 
         claimant for back problems.  Dr. Smrha's notes provide:
 
         
 
              May '83:  Severe LS strain from heavy lift 
 
              yesterday.  Bp-132/66. p-68   Admitted tohospital 
 
              [sic].  Dr. Hawkins consult.  July '83:  fairly 
 
              comfortable. On Naprosyn bid.  Unable to dorsiflex 
 
              right foot-- Sept. 84.
 
         
 
              Claimant was referred to Dr. Hawkins from Dr. Smrha after 
 
         the injury in May of 1983.  Dr. Hawkins, in his consultation 
 
         record reports:
 
         
 
              ...The patient's plain X-rays demonstrated some 
 
              degenerative changes with narrowing of the L-4,5 and 
 
              L-5, S-2 disc space.
 
         
 
              Because of the 1983 injury claimant was paid 11 weeks of 
 
         compensation at the rate of $381.22 per week.  Claimant, later 
 
         returned to work.
 
         
 

 
         
 
         
 
         
 
         SANBORN V. GRISSEL COMPANY, INC.
 
         PAGE   3
 
         
 
         
 
              After the 1983 injury, claimant testified in his 
 
              deposition:
 
         
 
              Q.  Where there any other ways that your back bothered 
 
              you in terms of your everyday activities after 1983 
 
              that had not previously bothered you?
 
         
 
              A.  Other than the fact you just had to be a little 
 
              more careful in what you done, no.
 
         
 
              Q.  Would you feel pain in sitting after 1983?
 
         
 
              A.  Now, we are getting into -- I never really paid all 
 
              that much attention.  It's basically been the lifting 
 
              and all that.  I would say not very much, if any.  The 
 
              only thing I noticed between 83 and '84 was the leg 
 
              getting a little worse and having to be careful on the 
 
              back as far as how I moved.
 
         
 
              Q.  And you described the leg as being in your ankle 
 
              and foot region, is that right?
 
         
 
              A.  Right.
 
         
 
              Q.  Did you notice any pain in the back of your thighs 
 
              extending down from your back during that period of 
 
              time?
 
         
 
              A.  Not that I can recall right off.
 
         
 
              Q.  Okay.  After you returned to work, were you unable 
 
              to perform some of the aspects of your job the way you 
 
              had before?
 
         
 
              A.  No, I pretty much done everything.  I would say if 
 
              you wouldn't be able to do your job, they just plain 
 
              wouldn't have you there.  We would get a load of steel 
 
              in, we would have to unload the steel right along with 
 
              the rest of the people, you know.
 
         
 
              Q.  Would it be fair to say after you returned to work, 
 
              your job involved essentially the same functions as you 
 
              had before?
 
         
 
              A.  I would say yes.
 
         
 
         (Exhibit 11, page 54, line 20 to page 56, line 1)
 
         
 
              Claimant testified that he was not certain whether the 
 
         alleged injury in October of 1984 occurred on the fourth or on 
 
         the eighth.  However, at his deposition, claimant revealed he 
 
         felt a pain when he attempted to push a sheet of metal onto 
 
         sawhorses.  Claimant testified he felt a sharp knife-like pain 
 
         through his lower back. (Ex. 11, p. 65, 11. 4-25)
 
         
 
              Subsequent to the 1984 injury, claimant was treated by James 
 
         Turner, M.D. Dr. Turner performed a laminectomy.  In his 
 
         deposition, Dr. Turner provided his diagnosis of claimant:
 
         
 
              ... When this -- the lamina or the overlying bone -- 
 
              was removed, the underlying nerve root was -- my note 
 
              says "severely compressed."  The root was gradually 
 
              immobilized and retracted, gotten out of the way, and 
 

 
         
 
         
 
         
 
         SANBORN V. GRISSEL COMPANY, INC.
 
         PAGE   4
 
         
 
         
 
              then a small fragment of disc material was removed and 
 
              the disc space was further explored.
 
         
 
              There was also a bony ridge present -- -- osteophyte, 
 
              if you will -- and this was removed to give the nerve 
 
              root more room at the 3-4 level.  Because of the root 
 
              cut on the myelogram, this level was explored.
 
         
 
              There appeared to be a moderate amount of pressure, and 
 
              this was relieved with bony decompression. obvious disc 
 
              herniation.  Otherwise, it was an uneventful closure.  
 
              Subcutaneous fat was placed around the roots to try to 
 
              prevent future scarring, and the wound was closed.
 
         
 
         (Ex. 12, pp. 8-9, 11. 11-5)
 
         
 
              Claimant received physical therapy.  He worked on weight 
 
         loss, general conditioning and he was seen by various 
 
         rehabilitation counselors.  Claimant was last seen by Dr. Turner 
 
         on June 2, 1986.
 
         
 
              Nearly one year after the 1984 injury, claimant was referred 
 
         to R. F. Neiman, M.D., for purposes of evaluation by defendant, 
 
         Royal Insurance Company.  Dr. Neiman advised a more aggressive 
 
         approach to treatment.
 
         
 
              After the evaluation by Dr. Neiman, claimant was referred to 
 
         Professional Rehabilitation Management, Inc., by defendant, Royal 
 
         Insurance Company.  Claimant was assigned to Janice Craven, M.A., 
 
         a counselor with P.R.M.  Ms. Craven attempted to secure part-time 
 
         employment for claimant as a clerk or as an employee conducting 
 
         inventory or performing telemarketing.  No employment was 
 
         obtained.  Claimant was later enrolled in the Kirkwood Community 
 
         College Skill Centers program.  However, after training in the 
 
         computer area, claimant was released from the program.
 
         
 
               According to John Hughes, counselor at Kirkwood, claimant 
 
         was released from the program because:
 
         
 
              ... [W]e have explored all your limitations and based 
 
              upon your report of an inability to sit for a moderate 
 
              amount of time and the infrequent lifting limitations 
 
              you experience it would appear that you are handicapped 
 
              too severe for services.  I would encourage you to 
 
              recontact us when/if your limitations stabilize.
 
         
 
         (Ex. 8)
 
         
 
              Since the date of the 1984 injury, claimant has not been 
 
         employed on either a full or part-time basis.  Claimant is able 
 
         to visit friends during the day.  He is also able to fish and to 
 
         mow his yards with a riding lawnmower.
 
         
 
                                  APPLICABLE LAW
 
         
 
              An employee is entitled to compensation for any and all 
 
         personal injuries which arise out of and in the course of the 
 
         employment. section 85.3(l).
 
         
 
              Claimant has the burden of proving by a preponderance of the 
 
         evidence that he received injuries on May 20, 1983 and October 8, 
 
         1984 which arose out of and in the course of his employment.  
 
         McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); 
 

 
         
 
         
 
         
 
         SANBORN V. GRISSEL COMPANY, INC.
 
         PAGE   5
 
         
 
         
 
         Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 
 
         (1967).
 
         
 
              The injury must both arise out of and be in the course of 
 
         the employment.  Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 
 
         402, 68 N.W.2d 63 (1955) and cases cited at pp. 405-406 of the 
 
         Iowa Report.  See also Sister Mary Benedict v. St. Mary's Corp., 
 
         255 Iowa 847, 124 N.W.2d 548 (1963) and Hansen v. State of Iowa, 
 
         249 Iowa 1147, 91 N.W.2d 555 (1958).
 
         
 
              The words "out of" refer to the cause or source of the 
 
         injury.  Crowe, 246 Iowa 402, 68 N.W.2d 63 (1955).
 
         
 
               The words "in the course of" refer to the  time  and  place 
 
         and circumstances of the injury.  McClure v. Union et al. 
 
         Counties, 188 N.W.2d 283 (Iowa 1971); Crowe, 246 Iowa 402, 68 
 
         N.W.2d 63 (1955).
 
         
 
              "An injury occurs in the course of the employment when it is 
 
         within the period of employment at a place the employee may 
 
         reasonably be, and while he is doing his work or something 
 
         incidental to it."  Cedar Rapids Comm. Sch. Dist. v. Cady, 278 
 
         N.W.2d 298 (Iowa 1979); McClure, 188 N.W.2d 283 (Iowa 1971); 
 
         Musselman, 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 May 20, 1983 and October 8, 
 
         1984 are causally related to the disability on which he now bases 
 
         his claim.  Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 
 
         (1965).  Lindahl v. L.O. Boggs, 236 Iowa 296, 18 N.W.2d 607 
 
         (1945).  A possibility is insufficient; a probability is 
 
         necessary.  Burt v. John Deere Waterloo Tractor Works, 247 Iowa 
 
         691, 73 N.W.2d 732 (1955).  The question of causal connection is 
 
         essentially within the domain of expert testimony.  Bradshaw v. 
 
         Iowa Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960).
 
         
 
              However, expert medical evidence must be considered with all 
 
         other evidence introduced bearing on the causal connection.  
 
         Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion of experts need 
 
         not be couched in definite, positive or unequivocal language.  
 
         Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974).  However, 
 
         the expert opinion may be accepted or rejected, in whole or in 
 
         part, by the trier of fact.  Id. at 907.  Further, the weight to 
 
         be given to such an opinion is for the finder of fact, and that 
 
         may be affected by the completeness of the premise given the 
 
         expert and other surrounding circumstances.  Bodish, 257 Iowa 
 
         516, 133 N.W.2d 867.  See also Musselman, 261 Iowa 352, 154 
 
         N.W.2d 128 (1967).
 
         
 
              While a claimant is not entitled to compensation for the 
 
         results of a preexisting injury or disease, the mere existence at 
 
         the time of a subsequent injury is not a defense.  Rose v. John 
 
         Deere Ottumwa Works, 247 Iowa 900, 908, 76 N.W.2nd 756,    
 
         (1956).  If the claimant  had  a  preexisting  condition or 
 
         disability that is aggravated, accelerated, worsened or lighted 
 
         up so that it results in disability, claimant is entitled to 
 
         recover.  Nicks v Davenport Produce Co., 254 Iowa 130, 115 N.W.2d 
 
         812,     (1962).
 
         
 
              When an aggravation occurs in the performance of an 
 
         employer's work and a causal connection is established, claimant 
 
         may recover to the extent of the impairment.  Ziegler v. United 
 
         States Gypsum Co., 252 Iowa 613, 620), 106 N.W.2d 591,     
 

 
         
 
         
 
         
 
         SANBORN V. GRISSEL COMPANY, INC.
 
         PAGE   6
 
         
 
         
 
         (1960).
 
         
 
              Our supreme court has stated many times that a claimant may 
 
         recover for a work connected aggravation of a preexisting 
 
         condition.  Almquist v. Shenandoah Nurseries, 218 Iowa 724, 254 
 
         N.W. 35 (1934).  See also Auxier v. Woodward State Hospital Sch., 
 
         266 N.W.2d 139 (Iowa 1978); Gosek v. Garmer and Stiles Co., 158 
 
         N.W.2d 731 (Iowa 1968); Barz v. Oler, 257 Iowa 508, 133 N.W.2d 
 
         704 (1965); Olson v. Goodyear Service Stores, 255 Iowa 1112, 125 
 
         N.W.2d 251 (1963); Yeager v. Firestone Tire & Rubber Co., 253 
 
         Iowa 369, 112 N.W.2d 299 (1961); Ziegler, 252 Iowa 613, 106 
 
         N.W.2d 591 (1960).
 
         
 
              An employer takes an employee subject to any active or 
 
         dormant health impairments, and a work connected injury which 
 
         more than slightly aggravates the condition is considered to be a 
 
         personal injury.  Ziegler, 252 Iowa 613, 620, 106 N.W.2d 591 
 
         (1960), and cases cited.
 
         
 
              An employee is not entitled to recover  for  the  results of 
 
         a preexisting injury or disease but can recover for an 
 
         aggravation thereof which resulted in the disability found to 
 
         exist.  Olson, 255 Iowa 1112, 125 N.W.2d 251 (1963); Yeager, 253 
 
         Iowa 369, 112 N.W.2d 299 (1961); Ziegler, 252 Iowa 613, 106 
 
         N.W.2d 591 (1960).  See also Barz v. Oler, 257 Iowa 508, 133 
 
         N.W.2d 704 (1965); Almquist, 218 Iowa 724, 254 N.W. 35 (1934).
 
         
 
              An injury is the producing cause; the disability, however, 
 

 
         
 
         
 
         
 
         SANBORN V. GRISSEL COMPANY, INC.
 
         PAGE   7
 
         
 
         
 
         is the result, and it is the result which is compensated.  Barton 
 
         v. Nevada Poultry Co., 253 Iowa 285, 110 N.W.2d 660 (1961); 
 
         Dailey v. Pooley Lumber Co., 233 Iowa 758, 10 N.W.2d 569 
 
         (1943).
 
         
 
              Functional disability is an element to be considered in 
 
         determining industrial disability which is the reduction of 
 
         earning capacity, but consideration must also be given to the 
 
         injured employee's age, education, qualifications, experience and 
 
         inability to engage in employment for which he is fitted.  Olson, 
 
         255 Iowa 1112, 125 N.W.2d 251 (1963).  Barton, 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. This 
 
         is so as impairment and disability are not synonymous.  Degree of 
 
         industrial disability can in fact be much different than the 
 
         degree of impairment because in the first instance reference is 
 
         to loss of earning capacity and in the later 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 
 
         disability include the employee's medical condition prior to the 
 
         injury, immediately after the injury, and presently; the situs of 
 
         the injury, its severity and the length of healing period; the 
 
         work experience of the employee prior to the injury, after the 
 
         injury and potential for rehabilitation; the employee's 
 
         qualifications intellectually, emotionally and physically; 
 
         earnings prior and subsequent to the injury; age; education; 
 
         motivation; functional impairment as a result of the injury; and 
 
         inability because of the injury to engage in employment for which 
 
         the employee is fitted.  Loss of earnings caused by a job 
 
         transfer for reasons related to the injury is also relevant.  
 
         These are matters which the finder of fact considers collectively 
 
         in arriving at the determination of the degree of industrial 
 
         disability.
 
         
 
              There are no weighting guidelines that indicate how each of 
 
         the factors are to be considered.  There are no guidelines which 
 
         give, for example, age a weighted value of ten percent of the 
 
         total value, education a value of fifteen percent of total, 
 
         motivation - five percent; work experience - thirty percent, etc. 
 
          Neither does a rating of functional impairment directly 
 
         correlate to a degree of industrial disability to the body as a 
 
         whole.  In other words, there are no formulae which can be 
 
         applied and then added up to determine the degree of industrial 
 
         disability.  It therefore becomes necessary for the deputy or 
 
         commissioner to draw upon prior experience, general and 
 
         specialized knowledge to make the finding with regard to degree 
 
         of industrial disability.  See Peterson v. Truck Haven Cafe, 
 
         Inc., (Appeal Decision, February 28, 1985); Christensen v. 
 
         Hagen, Inc., (Appeal Decision, March 26, 1985).
 
         
 
              In Parr v. Nash Finch Co., (Appeal Decision, October 31, 
 
         1980) the industrial commissioner, after analyzing the decisions 
 
         of McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980) and 
 
         Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa 1980), 
 
         stated:
 
         
 

 
         
 
         
 
         
 
         SANBORN V. GRISSEL COMPANY, INC.
 
         PAGE   8
 
         
 
         
 
              Although the court stated that they were looking for 
 
              the reduction in earning capacity it is undeniable that 
 
              it was the "loss of earnings" caused by the job 
 
              transfer for reasons related to the injury that the 
 
              court was indicating justified a finding of "industrial 
 
              disability."  Therefore, if a worker is placed in a 
 
              position by his employer after an injury to the body as 
 
              a whole and because of the injury which results in an 
 
              actual reduction in earning, it would appear this would 
 
              justify an award of industrial disability.  This would 
 
              appear to be so even if the worker's "capacity" to earn 
 
              has not been diminished.
 
         
 
              For example, a defendant employer's refusal to give any sort 
 
         of work to a claimant after he suffers his affliction may justify 
 
         an award of disability.  McSpadden, 288 N.W.2d 181 (Iowa 1980).
 
         
 
              Similarly, a claimant's inability to find other suitable 
 
         work after making bona fide efforts to find such work may 
 
         indicate that relief would be granted.  McSpadden, 288 N.W.2d 181 
 
         (Iowa 1980)
 
         
 
                                     ANALYSIS
 
         
 
              Claimant has established that he sustained injuries which 
 
         arose out of and in the course of his employment.  In both case 
 
         files, claimant has demonstrated he was performing duties for 
 
         defendant when claimant was injured on May 20, 1983 and again on 
 
         October 8, 1984.
 
         
 
              While it is true claimant has had a prior history of back 
 
         problems, there is sufficient evidence to establish that 
 
         claimant's present condition is causally related to the two 
 
         injuries which are at issue.  Medical testimony supports this 
 
         contention.
 
         
 
              Dr. Turner, in his deposition, testified under 
 
         cross-examination as follows:
 
         
 
                 The first is, do you have an opinion as to whether 
 
              the October '84 incident that I have described and 
 
              asked you to assume, the pushing of the sheet metal, 
 
              was a causal contributing or aggravating factor causing 
 
              the problems that you began treating and for which you 
 
              did surgery?
 
         
 
                  ...
 
         
 
              Q.  Do you have an opinion?
 
         
 
              A.  Yes, I have an opinion.
 
         
 
              Q.  What is the opinion?
 
         
 
              A.  I think that the alleged injury described to cause 
 
              an aggravation of Mr. Sanborn's degenerative disc 
 
              syndrome probably resulting in a small acute fragment 
 
              herniation of his disc.
 
         
 
                   MR. TEMPLER:  Injury or injuries?
 
         
 
                   THE WITNESS:  Aggravation of -- I'm using a 
 
              cautious "injury" and a significant aggravation.  There 
 

 
         
 
         
 
         
 
         SANBORN V. GRISSEL COMPANY, INC.
 
         PAGE   9
 
         
 
         
 
              is no question that he had pre-existing problems.
 
         
 
              Q.  My next question is:  Do you have an opinion as to 
 
              whether the described incident of May 20, 1983, the 
 
              incident involving the lifting of tools onto the pickup 
 
              truck, whether that was a causal contributing or 
 
              aggravating factor in bringing on the problems that you 
 
              treated and for which you performed surgery?
 
         
 
              A.  Yes, I have an opinion.
 
         
 
              Q.  And what is the opinion?
 
         
 
              A.  I feel that that episode again was a significant 
 
              cause or significant aggravation of his overall 
 
              condition.
 
         
 
         (Ex. 12, p. 16, 11. 9-15, p. 17, 11. 8-25, p. 18, 11. 1-7)
 
         
 
              Claimant has also established that he has a permanent 
 
         partial disability.  Dr. Turner has determined claimant has a 
 
         functional impairment rating of 25 percent.  That functional 
 
         impairment rating involves the aggravation of claimant's 
 
         preexisting back condition.  He writes in his office notes for 
 
         June 2, 1986:
 
         
 
              Recheck.  Status quo since last visit.  Exam is 
 
              unchanged.  Continue with 25 percent permanent 
 
              impairment rating of man as a whole.  I feel that he 
 
              has now reached a stable plateau and can be rated 
 
              permanently.
 
         
 
              Dr. Turner, in his deposition, also opined;
 
         
 
              Q.  Doctor, you rated the man as having 25 percent 
 
              impairment; is it possible for you, or not, to separate 
 
              or divide that impairment between the incidents of May 
 
              20, 1983 and October of 1984?
 
         
 
                  ...
 
         
 
              A.  I have an opinion -- and it is not an opinion, it 
 
              is somewhat arbitrary, but I would divide it as half 
 
              and half, 12 and a half and 12 and a half.
 
         
 
              If somebody wanted to say 10 and 15, or 15 and 10, I 
 
              certainly wouldn't quibble with it.
 
         
 
         (Ex. 12, p. 18, 11. 14-1-8, p. 19, 11. 1-6)
 
         
 
              Q.  With regard to the ratings that you gave him there 
 
              and the rating that Mr. Vonderhaar questioned you about 
 
              which was at 25 percent, these are based upon the 
 
              orthopedics manual for the evaluation of impairment, 
 
              isn't that correct?
 
         
 
              A.  Correct.
 
         
 
              Q.  And as the treating physician of Dennis Sanborn, in 
 
              giving him the 25 percent rating which you did, and 
 
              indicated to Mr. Vonderhaar you did, you are giving 
 
              your patient the benefit of all doubts, are you not?
 
         
 

 
         
 
         
 
         
 
         SANBORN V. GRISSEL COMPANY, INC.
 
         PAGE  10
 
         
 
         
 
              A.  Probably.
 
         
 
              Q.  In other words, I'm not suggesting that that is an 
 
              inaccurate impairment rating, but that if you were to 
 
              rate it on the high or low side, that would mitigate 
 
              towards the high side, would it not?
 
         
 
              A.  I think I'm within acceptable limits, and I freely 
 
              admit I'm probably on the upper side of that.
 
         
 
         (Ex. 12, p. 34, 1. 25, p. 35, 11. 1-21)
 
         
 
              Dr. Turner further opined ms calculations were arbitrary.  
 
         He states:
 
         
 
              Q.  At one point in your examination -- I'm sorry, I 
 
              guess it was your cross-examination by Mr. Bickel, you 
 
              attempted to differentiate, and I think I don't recall 
 
              your specific words, but attribute some percentage of 
 
              that 25 percent you gave him in June of 1986 to the '83 
 
              injury versus the '84 injury, and at one point in time, 
 
              you said maybe 12 and a half, 12 and a half; and then 
 
              one point you said 10 or 15:  Did you mean 10 in '83, 
 
              and 15 in '84?
 
         
 
              A.  Or vice-versa.
 
         
 
              Q.  Is that variable?
 
         
 
              A.  It's arbitrary, and there isn't a scientific way of 
 
              doing it.  It's purely that.
 
         
 
              Q.  Is there any     would your opinion be any 
 
              different if you were aware of the fact, as you may be 
 
              now, if Mr. Sanborn didn't work during that may '83 to 
 
              October '84?
 
         
 
              A.  I would still tend to be arbitrary and tend to 
 
              split it between the two.
 
         
 
                   MR. TEMPLER:  I think that's all I have.
 
         
 
                   MR. VONDERHAAR:  Doctor, I just have three or 
 
              four.
 
         
 
         (Ex. 12, p. 47, 11. 1-25)
 
         
 
              Finally, Dr. Turner, in his deposition, reports on 
 
         recrossexamination:
 
         
 
              Q.  Doctor, we have talked extensively about his past 
 
              history of problems dating back to '68 forward, 
 
              degenerative changes in his disc that were noted in Dr. 
 
              Strathman's records in the mid 1970s; with regard to 
 
              the impairment rating that you have assigned the 
 
              patient, what percentage of that impairment rating of 
 
              25 percent would you attribute to his condition of 
 
              health relating to his spine before the year 1983?
 
         
 
              A.  I guess that's tough to say.  You know, I think 
 
              that you have to be take an honest look and some of it 
 
              has to go back, and I don't know.
 
         
 

 
         
 
         
 
         
 
         SANBORN V. GRISSEL COMPANY, INC.
 
         PAGE  11
 
         
 
         
 
              Q.  If you had to put a number on it and we were asking 
 
              you to do your best in that, what would you do?
 
         
 
              A.  On the basis of, if I still understand, prior to 
 
              '83, the episodes that he had did not at any period of 
 
              time result in any prolonged periods off work, and he 
 
              was always able to get back into a work situation; 
 
              that's basically why I didn't tend to put much on it.
 
         
 
              Q.  But there would be something that ---
 
         
 
              A.  Yes, I think there has to be something, and you 
 
              know, I don't know what's fair.  You can probably, you 
 
              might -- I don't think anybody could say it would be 5 
 
              percent before '83 and then 10/10, something like that.  
 
              And it's a pure -- you know, it's like Solomon trying 
 
              to divide up a baby on the thing.  I don't know what's 
 
              fair, but I agree with you, I think you have to say 
 
              that there would be something prior to then.
 
         
 
              Q.  And lawyers call upon you frequently to exercise 
 
              the wisdom of Solomon and divide the baby, don't they?
 
         
 
              A.  Yeah, and that's why I freely admit we come up with 
 
              some things that are very arbitrary.
 
         
 
              Q.  But your best medical judgment would be the 5 
 
              percent of the amount would be attributable?
 

 
         
 
         
 
         
 
         SANBORN V. GRISSEL COMPANY, INC.
 
         PAGE  12
 
         
 
         
 
         
 
              A.  Yes, and then you have got 20, and you can fight 
 
              about that, you know, one way or the other, whichever 
 
              way you want to go.  But I think the gross figures are 
 
              fair -- relatively so, at least.
 
         
 
         (Ex. 12, p. 49, 11. 3-25, p. 50, 11. 1-25)
 
         
 
              Claimant was later evaluated by Richard F. Neiman, M.D., 
 
         pursuant to a request made by Jane Collentine, R.N., for 
 
         Professional Rehabilitation Management, Inc.  Dr. Neiman, in his 
 
         letter to Ms. Collentine wrote:
 
         
 
              Your client, Dennis Sanborn, returned for examination 
 
              on 7/2/86.  Since the visit last year he has lost 
 
              approximately 80 pounds of weight.  I think he needs to 
 
              be commended for the weight reduction.  Unfortunately, 
 
              despite the weight reduction, he has not improved as 
 
              far as the back pain.  He still has a rather profound 
 
              footdrop on the right side with evidence of sciatic 
 
              nerve irritation with straight leg test being positive 
 
              approximately 70 degrees in both sitting and supine 
 
              position.  He still has some paravertebral muscle 
 
              spasm.  When he tries to bend forward he lists to the 
 
              left.  Looking back through my notes I still think 
 
              there is the possibility of recurrent disc at the L4-5 
 
              level.  I would normally suggest referral to Dr. Edward 
 
              Dykstra for a second opinion since Dr. Turner seems to 
 
              wish not to do anything further regarding the back.  I 
 
              discussed the matter with Dennis who is inclined to 
 
              proceed with a conservative course since he feels going 
 
              into rehabilitation perhaps is the better route.  
 
              Dennis is frankly concerned about the possibility of 
 
              intensification of the pain with a second operation.  
 
              At this stage I would suggest a rating of 25% permanent 
 
              disability on the whole body.  I would, however, like 
 
              to recheck him in 6 months just to make sure things are 
 
              going well.  If he has intensification of the pain or 
 
              something else happens in the future, I would certainly 
 
              like to see him before 6 months.
 
         
 
              In the cases at hand, claimant is able to attribute each 
 
         injury to a separate and distinct occurrence or event.  Claimant, 
 
         in detail, described the respective incidents which gave rise to 
 
         the medical treatments from Dr. Turner.  The evidence does 
 
         support a finding that this is not the type of case which falls 
 
         under the McKeever doctrine.  Rather, the fact pattern in the 
 
         instant case, resembles the facts in Babe v. Greyhound Lines, 
 
         Inc., Nos. 706132, 790714, Appeal Decision filed February 29, 
 
         1988.  In Babe, the claimant received back injuries over the 
 
         course of several years.  The industrial commissioner determined 
 
         the Babe case was distinguishable from McKeever because in Babe 
 
         the injuries were traumatic rather than repetitive.  Also, in 
 
         Babe, claimant had missed more than three days from work 
 
         following each separate injury.
 
         
 
              In the case sub judice, claimant suffered an injury on May 
 
         20, 1983.  Unlike the first injury in McKeever, however, claimant 
 
         did miss time from work.  In McKeever, the repetitive nature of 
 
         claimant's work and the gradual worsening of the condition meant 
 
         that the employee had no single, identifying event putting him on 
 
         notice of a work-related injury.
 
         
 

 
         
 
         
 
         
 
         SANBORN V. GRISSEL COMPANY, INC.
 
         PAGE  13
 
         
 
         
 
              By contrast, the instant cases are different.  Claimant can 
 
         clearly identify the events which precipitated his injuries.  It 
 
         is irrelevant for determining liability whether the date of the 
 
         injury is October 4, 1984 or October 8, 1984.  What is relevant 
 
         is the fact that claimant can recall the precise event which gave 
 
         rise to the missed work time.  Claimant related his calendar 
 
         reflects an injury date of October 8, 1984.  There is no evidence 
 
         to indicate the date was other than October 8, 1984.  In both 
 
         cases, claimant missed work subsequent to the "event."  Claimant 
 
         has established there were two separate injuries which aggravated 
 
         his preexisting condition.
 
         
 
              In the cases at hand, there is also uncontroverted medical 
 
         testimony from Dr. Turner regarding the liability for any 
 
         functional impairment.  Dr. Turner, the treating physician, 
 
         determined a five percent functional impairment was attributable 
 
         to preexisting injuries.  He also determined the remaining 
 
         impairment figure, 20 percent, should be evenly divided between 
 
         the two defendants.
 
         
 
              Healing period benefits are also at issue with respect to 
 
         file number 830408.  The evidence supports a permanent impairment 
 
         rating.  Defendant, Royal Insurance Company, maintains that if 
 
         healing period benefits are due for the October 8, 1984 injury, 
 
         then the period expired on June 3, 1985, the date, a preliminary 
 
         impairment rating was provided by Dr. Turner.  Claimant alleges 
 
         the healing period ended on June 2, 1986, the date a final 
 
         impairment rating was provided by Dr. Turner.
 
         
 
              Section 85.34(l) of the Iowa Code (1987) governs the award 
 
         of healing period benefits.  That section provides:
 
         
 
              If an employee has suffered personal injury causing 
 
              permanent partial disability for which compensation is 
 
              payable as provided in subsection 2 of this section, 
 
              the employer shall pay to the employee compensation for 
 
              a healing period, as provided in section 85.37, 
 
              beginning on the date of injury, and until the employee 
 
              has returned to work or it is medically indicated that 
 
              significant improvement from the injury is not 
 
              anticipated or until the employee is medically capable 
 
              of returning to employment substantially similar to the 
 
              employment in which the employee was engaged at the 
 
              time of injury, whichever occurs first.
 
         
 
              With respect to the matters before the undersigned, claimant 
 
         was not able to return to work on June 3, 1985, the date after 
 
         that date, or on June 2, 1986.  Therefore, the date claimant 
 
         returned to work cannot be used as the date for ending healing 
 
         period benefits.  However, Dr. Turner, on June 2, 1986, medically 
 
         indicated claimant would not reach further improvement.  He wrote 
 
         in his clinical notes for that date:
 
         
 
              Status quo since last visit.  Exam is unchanged.  
 
              Continue with 25 percent impairment rating of man as a 
 
              whole.  I feel that he has now reached a stable 
 
              plateau and can be rated permanently.
 
         
 
         (Emphasis added)
 
         
 
              Under section 85.34(l), June 2, 1986 is the date on which it 
 
         was determined claimant would not improve, consequently, that is 
 
         the date on which the healing period ended.
 

 
         
 
         
 
         
 
         SANBORN V. GRISSEL COMPANY, INC.
 
         PAGE  14
 
         
 
         
 
         
 
              The next issue which must be addressed is the issue of 
 
         industrial disability.  Claimant asserts lie has an industrial 
 
         disability which exceeds any functional impairment rating.  There 
 
         is no question there has been a loss of earnings since the 
 
         October 8, 1984 injury date.  Claimant has not worked since that 
 
         date.
 
         
 
              In June of 1985, Dr. Turner described the type of 
 
         rehabilitation program which should involve claimant.  Dr. Turner 
 
         wrote the following in a letter dated June 21, 1985:
 
         
 
              ... At this time I feel that it is exceedingly doubtful 
 
              that he will be able to return to work that involves 
 
              unlimited bending, twisting particularly in restricted 
 
              quarters or in awkard [sic) positions ....
 
         
 
              I think every effort should be made at potential 
 
              vocational retraining knowing full well that it is 
 
              exceedingly difficult with today's economic climate in 
 
              this area.
 
         
 
              After June 2, 1986, claimant was placed in various 
 
         vocational rehabilitation programs by defendant, Royal Insurance 
 
         Company.  Defendant hired Janice Craven of Professional 
 
         Rehabilitation Management, Inc., to work with claimant.  She 
 
         attempted to secure a part-time position for claimant as a clerk 
 
         or as a telemarketer in the Cedar Rapids area.  Ms. Craven was 
 
         unsuccessful in securing the same.  No position was ever acquired 
 
         by P.R.M.
 
         
 
              Claimant was also sent to the East Central Iowa Employment 
 
         and Training Consortium and Private Industry Council which is the 
 
         agency that monitors the Job Training Partnership Act.  Diane 
 
         Early, employment coordinator, was unable to assist claimant as 
 
         "...he has a broad interest in several fields.  However, he has 
 
         many limitations due to his physical condition, ruling out all of 
 
         the choices."  Ms. Early did refer claimant to the Kirkwood 
 
         Skills Center for vocational rehabilitation.
 
         
 
              While at the Kirkwood Skills Center, claimant demonstrated 
 
         an interest in computers.  Nevertheless, claimant did not 
 
         satisfactorily complete the program.  This was primarily due to 
 
         the fact claimant was unable to sit for periods greater than 20 
 
         minutes.
 
         
 
              Since claimant's release from the Kirkwood Skills Center, he 
 
         has demonstrated little if any motivation to seek other 
 
         employment, or to engage in additional rehabilitation.  Claimant 
 
         has decreased rather than increased his level of activity since 
 
         his release from the Kirkwood program.  The record is devoid of 
 
         any evidence which shows claimant has attempted to seek 
 
         employment since his participation in the program at Kirkwood.
 
         
 
              Roger Marquardt, a vocational rehabilitation specialist was 
 
         hired by claimant to testify as an expert witness at claimant's 
 
         hearing.  Even he stated claimant could be encountering a lack of 
 
         motivation. (Transcript p. 102, 11. 13-22).
 
         
 
              Claimant, despite his lack of motivation to seek employment 
 
         has been able to successfully complete the following tasks at 
 
         home: mowing the two and one-half acre lawn with a riding mower, 
 
         shoveling snow with a snowblower while riding a lawn mower, 
 

 
         
 
         
 
         
 
         SANBORN V. GRISSEL COMPANY, INC.
 
         PAGE  15
 
         
 
         
 
         fishing from a johnboat, loading the riding mower onto a trailer, 
 
         occasionally riding,a dirt bike, visiting friends, loading a 
 
         johnboat onto a truck and repairing small appliances.  Since 
 
         1984, claimant has been unable to ride his dirt bike on a regular 
 
         basis or to.play football.
 
         
 
              Presently, claimant is under restrictions.  Dr. Turner, in 
 
         his deposition, provides the following list of restrictions for 
 
         claimant:
 
         
 
              A.  I think that there are a high percentage of the 
 
              activities he could perform if he could control the 
 
              time when he could rest and when he wouldn't; how much 
 
              he would have to lift, and in what positions ....
 
         
 
         (Ex. 12, p. 31, 11. 12-16)
 
         
 
              In light of the foregoing, claimant has met his burden of 
 
         proving that he has an industrial disability greater than the 25 
 
         percent functional impairment of the body as a whole.  Claimant 
 
         has an industrial disability of 50 percent.. Claimant has 
 
         established there is a loss of earning capacity attributable to 
 
         his back injuries.  Claimant has shown there has been a loss of 
 
         earnings since the two injuries at issue.  Claimant is unable to 
 
         sit or stand for longer than 20 minute periods.  Repeated efforts 
 
         at rehabilitation have been unsuccessful.  Even part-time 
 
         positions have been unobtainable.  Claimant is 43 years old.  He 
 
         has been away from an academic setting. it would be extremely, 
 
         difficult for claimant to commence a college career since he 
 
         cannot even sit for 50 minutes.  Claimant has few skills which 
 
         can transfer to a realistic sedentary position.  Claimant is 
 
         industrially disabled.
 
         
 
                     FINDINGS OF FACT AND CONCLUSIONS OF LAW
 
         
 
              WHEREFORE, based on the evidence presented and the 
 
         principles of law previously stated, the following findings of 
 
         fact and conclusions of law are made:
 
         
 
              FINDING 1.  Claimant sustained a back injury arising out of 
 
         and in the course of his employment on May 20, 1983.
 
         
 
              FINDING 2.  Claimant sustained a back injury arising out of 
 
         and in the course of his employment on October 8, 1984.
 
         
 
              FINDING 3.  As a result of the two injuries above, claimant 
 
         had a laminectomy on October 23, 1984.
 
         
 
              CONCLUSION A.  As a result of the injury on May 20, 1983, 
 
         claimant has an attributable functional impairment of 10 percent 
 
         of the body as a whole.
 
         
 
              CONCLUSION B.  As a result of the injury on October 8, 1934, 
 
         claimant has an attributable functional impairment of 10 percent 
 
         of the body as a whole.
 
         
 
              CONCLUSION C.  As a result of preexisting injuries, claimant 
 
         has an attributable functional impairment of five percent of the 
 
         body as a whole.
 
         
 
              FINDING 4.  Claimant is a 43 year old obese man who has 
 
         limited experience outside of the sheet metal industry.
 
         
 

 
         
 
         
 
         
 
         SANBORN V. GRISSEL COMPANY, INC.
 
         PAGE  16
 
         
 
         
 
              FINDING 5.  As a result of the injuries sustained on May 20, 
 
         1983 and on October 8, 1984, claimant has not been able to secure 
 
         employment and has had a loss of earnings.
 
         
 
              CONCLUSION D.  Claimant has met his burden of proving he has 
 
         a 50 percent permanent partial disability attributable in equal 
 
         proportions to each defendant insurance carrier.
 
         
 
              FINDING 6.  Claimant was in the healing period from October 
 
         8, 1984 to June 2, 1986.
 
         
 
              CONCLUSION E.  From defendant, Royal Insurance Company, 
 
         claimant is entitled to 33 6/7 weeks of healing period benefits 
 
         at the weekly rate of $355.72.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, defendants are to pay unto claimant two hundred 
 
         fifty (250) weeks of permanent partial disability benefits.  The 
 
         first one hundred twenty-five (125) weeks shall be at the rate of 
 
         three hundred eighty-one and 22/100 dollars ($381.22) per week.  
 
         The second one hundred twenty-five (125) weeks shall be at the 
 
         rate of three hundred fifty-five and 72/100 dollars ($355.72). 
 
         Each defendant insurance carrier shall bear its proportional 
 
         share.
 
         
 
              Defendant, Royal Insurance Company, is to pay unto claimant 
 
         thirty-three and Sixth-sevenths (33 6/7) weeks of healing period 
 

 
         
 
         
 
         
 
         SANBORN V. GRISSEL COMPANY, INC.
 
         PAGE  17
 
         
 
         
 
         benefits at the rate of three hundred fifty-five and 72/100 
 
         dollars ($355.72).
 
         
 
              Payments that have accrued shall be paid in a lump sum 
 
         together with statutory interest thereon pursuant to Iowa Code 
 
         section 85.30.
 
         
 
              Costs of this action are assessed equally against the 
 
         defendants pursuant to Division of Industrial Services Rule 
 
         343-4.33.
 
         
 
              Defendants shall file a claim activity report upon payment 
 
         of this award.
 
         
 
         
 
              Signed and filed this 7th day of December, 1988.
 
         
 
         
 
         
 
         
 
         
 
                                     MICHELLE A. McGOVERN
 
                                     DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Phil Vonderhaar
 
         Attorney at Law 
 
         40 Fifth Ave.
 
         Des Moines, Iowa  50309
 
         
 
         Mr. Mark L. Zaiger
 
         Mr. John M. Bickel
 
         Attorneys at Law
 
         500 MNB Bldg.
 
         P. O. Box 2107
 
         Cedar Rapids, Iowa  52406
 
         
 
         Mr. John A. Templer
 
         Mr. Dean C. Mohr
 
         Attorneys at Law
 
         3737 Woodland, STE 437
 
         West Des Moines, Iowa  50265
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                1803
 
                                                Filed December 7, 1988
 
                                                MICHELLE A. McGOVERN
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         DENNIS SANBORN,
 
         
 
              Claimant,
 
                                           File Nos. 732672 & 830408
 
         vs.
 
                                             A R B I T R A T I O N
 
         GRISSEL COMPANY, INC.,
 
                                                D E C I S I O N
 
              Employer,
 
         
 
         and
 
         
 
         ROYAL INSURANCE COMPANY and
 
         IOWA CONTRACTORS WORKERS'
 
         COMPENSATION GROUP,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
         1803
 
         
 
              Claimant awarded 50 percent industrial disability subsequent 
 
         to injury of claiinant's back.