Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            PAMELA S. WILLER,             :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 732780
 
            IOWA MEAT PROCESSING          :
 
            COMPANY,                      :
 
                                          :        A P P E A L
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            ARGONAUT INSURANCE COMPANIES, :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 Defendants appeal and claimant cross-appeals from an 
 
            arbitration decision awarding healing period benefits and 
 
            permanent partial disability benefits based upon an 
 
            industrial disability of 55 percent.
 
            
 
                 The record on appeal consists of the transcript of the 
 
            arbitration hearing and joint exhibits A through H and J 
 
            through R.  Both parties filed briefs on appeal.
 
            
 
                                      issue
 
            
 
                 The dispositive issue on appeal is whether there is a 
 
            causal connection between claimant's injury and an alleged 
 
            disability.
 
            
 
                              review of the evidence
 
            
 
                 The arbitration decision filed September 30, 1988 
 
            adequately and accurately reflects the pertinent evidence 
 
            and it will not be reiterated herein.
 
            
 
                                  applicable law
 
            
 
                 The citations of law in the arbitration decision are 
 
            appropriate to the issues and evidence.
 
            
 
                                     analysis
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury of May 5, 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 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            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).
 
            
 
                 Claimant was examined by several physicians.  The 
 
            doctors at the University of Iowa Hospitals said the 
 
            etiology of claimant's symptoms was unknown.  (Exhibit A, 
 
            page 3)  Joel T. Cotton, M.D., indicated uncertain etiology.  
 
            (Ex. C, p. 2)  David G. Paulsrud, M.D., thought claimant's 
 
            condition appeared to be congenital.  (Ex. D)  D. M. Nitz, 
 
            M.D., a neurologist, indicated that claimant's symptoms were 
 
            "most likely related to persistent posture from occupation."  
 
            (Ex. F, p. 2)  John N. Redwine, D.O., and Daniel M. Rhodes, 
 
            M.D., two company physicians treated claimant on the basis 
 
            that her condition was the result of employment activity but 
 
            did not give an opinion as to causal connection.  (Ex. G)  
 
            Claimant was treated by Don Meylor, D.C., for about six 
 
            months and he attributed claimant's condition to multiple 
 
            factors including "work stress (primarily patient's work 
 
            posture and work conditions), organic and/or functional 
 
            physiological imbalances (demonstrated by lab results) and 
 
            thoracic and cervical vertebrae misalignments."  (Ex. K)  
 
            Paul From, M.D., ruled out thoracic outlet syndrome but S. 
 
            R. Winston, M.D., a neurosurgeon, refused to rule it out.  
 
            (Ex. D, pp. 3-7 and 14-16).
 
            
 
                 John Dougherty, M.D., an orthopedic surgeon, was 
 
            claimant's principle treating physician.  Although on 
 
            cross-examination by claimant's counsel he stated that it 
 
            was reasonable to assume that claimant's problems were work 
 
            related, he frequently wrote "etiology (?)" in office notes.  
 
            He indicated in his deposition that he was not sure why 
 
            claimant's scapula rides up and he was unsure of the 
 
            etiology.  
 
            
 
                 In summary, the medical evidence in this case is that 
 
            the examining physicians who did offer an opinion of the 
 
            cause of claimant's condition were not in agreement and were 
 
            uncertain as to the cause.  The conclusion that must be 
 
            reached when all of Dr. Dougherty's deposition is read 
 
            together is that he simply could not explain claimant's 
 
            problems.  When pressed, he agreed that it was reasonable to 
 
            assume that claimant's problems were related to her work.  
 
            His opinion falls short of saying that claimant's work 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            injury was the probable cause of her alleged disability.
 
            
 
                 While claimant's problems may be frustrating to both 
 
            her and the physicians dealing with her, she must prove by a 
 
            preponderance of the evidence that a work injury caused 
 
            those problems.  Demonstrating that the problems might not 
 
            be related to any other cause does not in this case meet 
 
            claimant's burden of proof.  Claimant has not met the burden 
 
            of proving that the work injury on May 5, 1983 is the cause 
 
            of her alleged disability.
 
            
 
                                 findings of fact
 
            
 
                 1.  Claimant was employed by employer on May 5, 1983 in 
 
            a job that required her to transfer packages of meat 
 
            weighing from one pound to 35 pounds in a twisting movement 
 
            by transferring the meat from a conveyor belt on her right 
 
            to another conveyor belt behind her body.
 
            
 
                 2.  On May 5, 1983 claimant experienced severe spasms 
 
            in her right shoulder and other symptoms in her face, neck, 
 
            back, arm, hand and rib cage and that her fingers turned 
 
            purple.
 
            
 
                 3.  Several possible neurological problems, which might 
 
            have caused claimant's symptoms, were ruled out.
 
            
 
                 4.  Two neurologists and a neurosurgeon could not find 
 
            any pathological neurological reason for claimant's 
 
            symptoms.
 
            
 
                 5.  Claimant received treatment and evaluation on the 
 
            basis that her problems were work related.
 
            
 
                 6.  The cause of claimant's condition is unknown.
 
            
 
                                conclusion of law
 
            
 
                 Claimant has not proved that a work injury on May 5, 
 
            1983 was the cause of her alleged disability.
 
            
 
                 WHEREFORE, the decision of the deputy is reversed.
 
            
 
                                      order
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 That claimant take nothing from these proceedings.
 
            
 
                 That defendants pay the costs of this proceeding 
 
            including the costs of transcription of the arbitration 
 
            hearing.
 
            
 
                 Signed and filed this ____ day of February, 1990.
 
            
 
                 
 
            
 
            
 
            
 
                                          
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            ________________________________
 
                                                 DAVID E. LINQUIST
 
                                              INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. David E. Vohs
 
            Attorney at Law
 
            340 Insurance Centre
 
            507 7th St.
 
            Sioux City, Iowa 51101
 
            
 
            Mr. Harry W. Dahl
 
            Mr. Barry Moranville
 
            Attorneys at Law
 
            974 73rd St., Suite 16
 
            Des Moines, Iowa 50312
 
            
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
            5-1402.40, 5-1803
 
            Filed February 19, 1990
 
            David E. Linquist
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            PAMELA S. WILLER,             :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 732780
 
            IOWA MEAT PROCESSING          :
 
            COMPANY,                      :
 
                                          :        A P P E A L
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            ARGONAUT INSURANCE COMPANIES, :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            5-1402.40, 5-1803
 
            Claimant's unusual and serious condition of the right 
 
            shoulder manifested itself while claimant was performing her 
 
            job.  Her job involved performing repetitive work over a 
 
            long period of time in an awkward position.  Claimant was 
 
            examined by several physicians who were not in agreement and 
 
            were uncertain as to the cause of claimant's condition.  
 
            Claimant's principle treating physician simply could not 
 
            explain claimant's problems.  It was held that claimant 
 
            failed to prove a work injury was the cause of her alleged 
 
            disability.  Deputy reversed on appeal.
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                   BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         PAMELA S. WILLER,
 
         
 
              Claimant,
 
         
 
         vs.
 
                                                File No.  732780
 
         IOWA MEAT PROCESSING,
 
                                             A R B I T R A T I O N
 
              Employer,
 
                                                D E C I S I O N
 
         and
 
         
 
         ARGONAUT INSURANCE CO.,
 
         
 
               Insurance Carrier,
 
               Defendants.
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding in arbitration brought by Pamela S. 
 
         Willer, claimant, against Iowa Meat Processing Company, employer, 
 
         and Argonaut Insurance Company, insurance carrier, defendants for 
 
         benefits as the result of an injury that occurred on May 5, 1983.  
 
         A hearing was held on September 24, 1987, at Sioux City, Iowa, 
 
         and the case was fully submitted at the close of the hearing.  
 
         The record consists of the testimony of Pamela S. Willer, 
 
         claimant, Curtis Willer, claimant's husband, Denise Ruden, 
 
         claimant's friend and neighbor, Linda Hall, employer's workers' 
 
         compensation representative, Gail Leonhardt, defendants' 
 
         vocational rehabilitation consultant and Joint Exhibits A through 
 
         H and J through R.  Defendants provided a transcript to the 
 
         industrial commissioner's file.  Both attorneys submitted 
 
         excellent briefs.
 
         
 
                                   STIPULATIONS
 
         
 
              The parties stipulated to the following matters:
 
         
 
              That an employer-employee relationship existed between 
 
         claimant and employer at the time of the injury.
 
         
 
              That claimant sustained an injury on May 5, 1983, which 
 
         arose out of and in the course of employment with employer.
 
         
 
              That the injury was the cause of some temporary disability 
 
         during a period of recovery.
 
         
 
              That the type of permanent disability, if the injury is 
 
         found to be a cause of permanent disability, is industrial 
 
         disability to the body as a whole.
 
         
 
              That the rate of compensation, in the event of an award, is 
 
         $275.24 per weeks.
 
         
 
              That all requested medical benefits have been or will be 
 
         paid.
 
         
 

 
         
 
         
 
         
 
         WILLER V. IOWA MEAT PROCESSING
 
         PAGE   2
 
         
 
         
 
              That defendants do not seek credit for any benefits paid 
 
         prior to hearing under an employee nonoccupational group health 
 
         plan.
 
         
 
              That defendants are entitled to a credit for workers' 
 
         compensation benefits paid prior to hearing in the amount of 
 
         $275.24 per week for 160 3/7 weeks.
 
         
 
              That there are no bifurcated claims.
 
         
 
                                      ISSUES
 
         
 
              The parties submitted the following issues for determination 
 
         at the time of the hearing.
 
         
 
              Whether the injury was the cause of permanent disability.
 
         
 
              Whether claimant is entitled to temporary or permanent 
 
         disability benefits, and if so, the nature and extent of 
 
         benefits.
 
         
 
              Whether claimant is an odd-lot employee.
 
         
 
                             SUMMARY OF THE EVIDENCE
 
         
 
              All of the evidence was examined and considered.  The 
 
         following is a summary of the evidence most pertinent to this 
 
         decision.
 
         
 
              Claimant was 27 years old at the time of the injury and 31 
 
         years old at the time of the hearing.  She graduated from high 
 
         school and has had no additional formal education or training.  
 
         Claimant performed clerical tasks for a hospital for about six 
 
         months and she also worked as a sales clerk in a retail store for 
 
         approximately six months.  Otherwise, from 1974 until this injury 
 
         in 1983, a period of approximately nine years, she has been 
 
         employed by various meat packing and processing plants in 
 
         different parts of the country.  Claimant has worked on the line 
 
         doing knife jobs and she has also worked in quality control.  At 
 
         one time, she occupied a very important supervisory position in 
 
         quality control.  Everything that went out the plant had to be 
 
         okayed by her at all times (Transcript pages 20 & 21).  Claimant 
 
         denied and there is no evidence of any serious injuries or 
 
         illnesses prior to this injury.
 
         
 
              Claimant started to work for this employer, which is no 
 
         longer in business, on January 5, 1981, on the production line 
 
         using straight knives and Whizard knives.  When claimant was five 
 
         months pregnant with her first child, she bid on and received a 
 
         job making boxes in the cry-o-vac department.  However, rather 
 
         than making boxes, she ended up at the end of the line inspecting 
 
         final product and moving it from one conveyor belt to another.  
 
         Claimant's first child was born on January 20, 1982.  Prior to 
 
         that she experienced fatigue on her right side and spasms in her 
 
         right shoulder because she was constantly twisting to the right 
 
         (Tr. p. 31).
 
         
 
              After the first child was born, claimant returned to work in 
 
         March of 1982.  She continued to do the same job when she 
 
         returned to work.  This job required her to pick up hams, 
 
         tenderloins, tenders, pork butts and other meat products, which 
 
         weighed anywhere from one pound to 30 pounds, and transfer them 
 
         from a conveyor belt on her right to a conveyor belt that was 
 

 
         
 
         
 
         
 
         WILLER V. IOWA MEAT PROCESSING
 
         PAGE   3
 
         
 
         
 
         behind her.  She continued to do this job from March of 1982 
 
         until the time of her injury on May 5, 1983 (Tr. pp. 32-35).
 
         
 
              About a month prior to the injury date, her right arm would 
 
         become numb, tingly and go to sleep.  Her right hand swelled up. 
 
          She lost strength and mobility in her right arm.  Her head would 
 
         pull down to her right shoulder in a twisted position and she 
 
         could not straighten it back up again.  Claimant alleged she 
 
         reported this to her foreman several times.  Prior to May 5, 
 
         1983, her right scapula would ride up, but it would not pop out 
 
         away from her body (Tr. pp. 41, 42, & 68).  After May 5, 1983, 
 
         the shoulder blade would pop out away from her body and rise up 
 
         about three inches.  Exhibit Q is a photograph which shows the 
 
         protruding scapula.  It also shows that her right shoulder is 
 
         higher than her left shoulder (Tr. pp. 35-37).
 
         
 
              On May 5, 1983, claimant lifted a package of three full 
 
         loins which weighed somewhere between 26 pounds and 30 pounds.  
 
         This caused her to have spasms in her back and in her right 
 
         shoulder blade (Tr. pp. 39 & 67).  The spasms were so bad that 
 
         she thought she was having a heart  attack (Tr. p. 39).  Her 
 
         right arm became numb and her right palm and fingers turned 
 
         purple like they were not receiving circulation (Tr. pp. 54 & 70) 
 
         .  Claimant maintained that this has happened several times since 
 
         then.  She further alleged that it happens several times a day 
 
         and that when it occurs she cannot do anything with her arm (Tr. 
 
         p. 54).  These spasms might cause her to lie down for several 
 
         hours or several days (Tr. p. 55).
 
         
 
              On May 5, 1983, the plant nurse sent claimant to see John 
 
         Redwine, D.O.  Dr. Redwine reported significant spasm and 
 
         prominence of the right scapula.  He noted that claimant was in a 
 
         great deal of pain.  On may 13, 1983, Dr. Redwine recorded that 
 
         this was the worst case of severe spasm that he had ever seen.  
 
         Daniel M. Rhodes, M.D., Dr. Redwine's associate, sent claimant to 
 
         see John Dougherty, M.D., an orthopedic surgeon on May 20, 1983 
 
         (Ex. G).
 
         
 
              Claimant was treated by Dr. Dougherty from May 23, 1983 
 
         until November 13, 1985.  Claimant was hospitalized for four or 
 
         five days for tests and physical therapy and treatment with a 
 
         TENS unit.  The physical therapy and TENS unit were discontinued 
 
         because they made it worse.  Claimant related that she also saw a 
 
         chiropractor, Don Meylor, D.C., in Le Mars, for about six months 
 
         until the insurance company refused to pay his bills.  Claimant 
 
         testified that both Dr. Dougherty and Dr. Meylor were able to get 
 
         the scapula down temporarily but it never stayed down.  Claimant 
 
         demonstrated that she could only raise her right arm 
 
         approximately chest high.  Her right arm is her dominant arm.  
 
         Sitting in one position aggravates her condition.  Claimant 
 
         testified that Dr. Dougherty, nor did any other doctor, say that 
 
         she could go back to work in the packing plant.  Claimant 
 
         testified that she could no longer do her old job.  She also 
 
         admitted that she had not tried to do any other kind of a job 
 
         either.  She testified that she inquired about some job 
 
         descriptions for jobs that she saw advertised in the Le Mars 
 
         newspaper, but that she did not find anything that she believed 
 
         she was able to do.  Claimant revealed she took a short course to 
 
         learn to write children's stories but that she has not sold any.  
 
         Claimant testified that she can only type one single spaced page 
 
         until she has spasms and has to take a break.  Spasms in her 
 
         right shoulder are triggered by picking up her child, vacuuming 
 
         the floor, reaching up in the cabinet to pick up a dish or 
 

 
         
 
         
 
         
 
         WILLER V. IOWA MEAT PROCESSING
 
         PAGE   4
 
         
 
         
 
         opening the refrigerator door.  She said she cannot drive when 
 
         she has spasms.  She maintained that she has spasms two or three 
 
         times a day at least.
 
         
 
              Gail Leonhardt, vocational rehabilitation consultant, tried 
 
         to arrange for claimant to learn to work a computer and operate a 
 
         computer business in her home.  Claimant insisted that she could 
 
         not work eight hours a day or even two hours a day (Tr. pp. 57 & 
 
         58).  Claimant did not believe she could be a secretary for eight 
 
         hours a day.  Claimant asserted that she does not leave home very 
 
         much because she never knows when she will suffer a spasm and 
 
         that it will be necessary to find a place to lie down.  Claimant 
 
         testified that she was having spasms on the day of the hearing 
 
         and demonstrated how the right scapula protrudes away from her 
 
         body approximately three inches.
 
         
 
              Claimant stated that she has not improved since the date of 
 
         the injury on May 5, 1983.  She added that she has never had 
 
         surgery for this condition (Tr. p. 68).  Claimant further related 
 
         that her second child was born on June 25, 1985.  This child was 
 
         born with a spinal condition known as spina bifida.  Claimant 
 
         asserted that this child required a great deal of extra care, 
 
         especially when she was sleeping.  The child was on a heart and 
 
         lung monitor to prevent dying from crib death.  Claimant 
 
         testified that she had to be prepared to administer CPR if 
 
         necessary.  Claimant testified again that since her injury she 
 
         has never made an application for employment anywhere (Tr. p. 
 
         77).
 
         
 
              Curtis Willer, claimant's husband, testified that he met 
 
         claimant in October of 1982.  He and claimant were married on 
 
         February 26, 1983.  He stated that claimant had no problem with 
 
         her right arm and back at that time.  His testimony corroborated 
 
         claimant's testimony about the condition of the right shoulder 
 
         and arm.  Willer stated that claimant has not improved at all 
 
         since May of 1983; he said that her situation has either remained 
 
         the same or gotten worse.  The witness described that claimant's 
 
         shoulder blade will come clear up, her head will twist to the 
 
         right until her right cheek is resting on her right shoulder, her 
 
         eyes will droop, her mouth will twist, she has trouble keeping 
 
         her balance if she tries to walk, and her speech is blurred.  She 
 
         appears to be in pain.  He maintained that she cannot do normal 
 
         housework and that she cannot vacuum (Tr. pp. 78-88).
 
         
 
              Denise Ruden testified that she is a friend of claimant and 
 
         that she sees claimant and talks with her frequently.  Two weeks 
 
         ago, claimant was mixing a batter of zucchini bread when all of a 
 
         sudden she dropped the spoon, her shoulder came up, her shoulder 
 
         blade popped out, her head came to the right side, claimant began 
 
         speaking very slowly and deliberately to form each word and she 
 
         held her arm next to her side.  Her palm and finger tips turned a 
 
         little purple (Tr. pp. 88-98).
 
         
 
              Gail Leonhardt, defendants' vocational rehabilitation 
 
         counselor, testified that he saw claimant four times on August 6, 
 
         1986, September 17, 1986, October 15, 1986, and November 23, 
 
         1986.  He tried to arrange a situation where claimant could be 
 
         trained to operate her own in-home computer service as a 
 
         self-employed person, but claimant's husband opposed it because 
 
         their youngest child had to be monitored and watched constantly 
 
         during all of her waking hours.  Claimant's husband felt that the 
 
         child was the main priority and that claimant would not be able 
 
         to work in the house or out of the house.  At that point, 
 

 
         
 
         
 
         
 
         WILLER V. IOWA MEAT PROCESSING
 
         PAGE   5
 
         
 
         
 
         Leonhardt terminated contact with claimant.  Leonhardt testified 
 
         that he felt claimant could be trained on computers as well as in 
 
         other areas.  He said that claimant had a normal IQ with a 
 
         numerical deficit but with an offsetting high verbal aptitude.  
 
         He added that her appearance is good, she has a degree of 
 
         sophistication and appears polished.  He said she is people 
 
         orientated and has a good personality.  She has a high school 
 
         diploma, clerical experience, sales experience, has studied 
 
         children's literature and has quality control supervisory 
 
         experience, all of which are transferable skills.  He stated that 
 
         her supervisory experience in quality control gives her good 
 
         discriminating ability.  After he terminated his contacts, 
 
         neither claimant, nor claimant's attorney nor did the insurance 
 
         carrier contact him after the second child no longer required 
 
         constant care.  He believed that if claimant requested it, that 
 
         he could assist her in finding employment now (Tr. pp. 99-116).
 
         
 
              Leonhardt said that she met with Dr. Dougherty on September 
 
         11, 1986, for about an hour.  Dr. Dougherty told Leonhardt that 
 
         claimant had a peculiar situation that he (Dr. Dougherty) did not 
 
         understand.  He stated that Dr. Dougherty did not tell him how 
 
         much claimant was able to work at that time, but focused his 
 
         conversation on claimant's peculiar injury.  Leonhardt stated the 
 
         first that he knew that claimant could work eight hours a day was 
 
         after he read Dr. Dougherty's deposition which was not given 
 
         until February 19, 1987 (Ex. O).  Leonhardt expressed the opinion 
 
         that claimant was not employable but that she could be retrained 
 
         to be employable.  Leonhardt said he believed and accepted Dr. 
 
         Dougherty's opinion that claimant could be employed eight hours a 
 
         day even though Dr. Dougherty had not seen claimant after 
 
         September 11, 1986, which was when he and Dr. Dougherty met and 
 
         discussed claimant's condition.  Leonhardt was forced to admit 
 
         that he changed his testimony at the hearing from the testimony 
 
         that he gave earlier in his deposition in a number of respects 
 
         (Ex. N).  Leonhardt concluded by saying that claimant does have 
 
         the scapula problem which causes severe limitations but he 
 
         thought that she could work around these limitations in data 
 
         processing, telecommunications or teletechnology, feeding data 
 
         into a keyboard, filing, some record keeping and making telephone 
 
         calls.
 
         
 
              At the hearing, claimant took a position at a typewriter in 
 
         the court room and demonstrated that she could not get her right 
 
         arm up to the typewriter but was forced to insert the paper with 
 
         her left hand.  She maintained that she could not keep her right 
 
         hand on the keyboard.  Claimant gave a typing demonstration that 
 
         demonstrated that she could not legibly type a simple sentence 
 
         dictated to her by her counsel (Ex. R).
 
         
 
              Dr. Dougherty recorded that he first saw claimant on May 23, 
 
         1983, for constant pain in her right neck, shoulder and arms of 
 
         one month duration allegedly due to continuous lifting at work.  
 
         Her right shoulder was higher than her left shoulder.  She had a 
 
         prominent trapezius on the right and a high rising scapula on -he 
 
         right.  X-rays showed her right shoulder and right scapula were 
 
         higher than her left shoulder and scapula.  X-rays also showed 
 
         scoliosis to the left in the cervical spine and to the right in 
 
         the dorsal spine.  The dorsal spine also showed minimal kyphosis. 
 
          Dr. Dougherty gave this diagnosis:
 
         
 
              Pain in the neck and right upper thoracic cage, 
 
              etiology (?), marked muscle spasms of the trapezius, 
 
              marked elevation of the scapula on the right, with a 
 

 
         
 
         
 
         
 
         WILLER V. IOWA MEAT PROCESSING
 
         PAGE   6
 
         
 
         
 
              scoliosis to the right in the dorsal to the left in the 
 
              cervical spine, must rule out a central nervous system 
 
              lesion, with what appears to be a little drooping of 
 
              the right eyelid.
 
         
 
         (Ex. E, p. 21)
 
         
 
              Dr. Dougherty wrote to Dr. Rhodes on May 23, 1983, that as 
 
         near as he could tell, the high riding was of recent origin.  She 
 
         said she never had it before (Ex. E, p. 18). Dr. Dougherty wrote 
 
         to Dr. Rhodes on May 24, 1983, that he had hospitalized claimant 
 
         to rule out a central nervous system lesion (Ex. E, P. 19).
 
         
 
              The Marion Health Center admission history and physical 
 
         examination on May 24, 1983, discloses complaints related to Dr. 
 
         Dougherty which began about a month ago.  Claimant described (1) 
 
         tingling in the right side of her face; (2) right shoulder felt 
 
         bruised and warm; (3) right hand discolored; (4) reduced strength 
 
         in right hand; (5) knot over the right shoulder; (6) Charlie 
 
         horse in her base of her neck and over the right shoulder; (7) 
 
         drooping eyelid on the right; (8) headaches in the occipital 
 
         area; (9) loss of balance while standing; and, (10) dizziness 
 
         while changing position.  Dr. Dougherty noted that claimant had 
 
         been working in an awkward position and had been working up to 
 
         ten hours a day when the onset occurred (Ex. E, pp. 27 & 28) .
 
         
 
              Dr. Dougherty called in D.M. Nitz, M.D., a neurologist, to 
 
         examine claimant at the Marion Health Center on May 24, 1983, for 
 

 
         
 
         
 
         
 
         WILLER V. IOWA MEAT PROCESSING
 
         PAGE   7
 
         
 
         
 
         possible neurological causes for her complaints.  He noted that 
 
         claimant was working ten hours a day, six days a week, moving 
 
         meat which weighed from 9 to 35 pounds from left to right in a 
 
         bent over position when she developed spasms in the right 
 
         trapezius area. X-rays of the right shoulder showed an elevated 
 
         right scapula.  Patient denied any previous similar problems.  
 
         Dr. Nitz did not find a neurological problem.  He concluded as 
 
         follows:
 
         
 
              IMPRESSION:  1)  Severe muscle spasm, right trapezius, 
 
              with involvement of the sternocleidomsatoid-pectoralis 
 
              muscle group--most likely related to persistent posture 
 
              from occupation.  
 
                           2)  Intermittent neurogenic claudication, 
 
              brachial plexus right side.  
 
                           3)  Muscle contraction headaches.
 
         
 
         (Ex. F, pp. 1 & 2)
 
         
 
              Dr. Dougherty indicated that Dr. Nitz did rule out central 
 
         nervous system problems.
 
         
 
              On June 3, 1983, Dr. Dougherty said that claimant was not 
 
         significantly different.  Claimant said that she felt something 
 
         scraping under her scapula.  For reasons of his own choosing, Dr. 
 
         Dougherty chose to record that claimant has only been married to 
 
         this present husband for three months, her mother-in-law is 
 
         living with her and she has a 16 month old child by a previous 
 
         marriage (Ex. E, p. 22)
 
         
 
              On June 13, 1983, Dr. Dougherty noted that it does improve. 
 
         on June 23, 1983, he said that she was getting along better.  He 
 
         said that she was improving, but slowly (Ex. E, p. 22).
 
         
 
              On July 28, 1983, he noted that she is getting along better 
 
         (Ex. E, p. 23).  On July 29, 1983, the scapula was sticking up 
 
         again and Dr. Dougherty said he did not know what to do with her, 
 
         it just keeps recurring (Ex. E, p. 23).  On August 16, 1983, Dr. 
 
         Dougherty again stated he did not know what to do with this 
 
         patient (Ex. E, p. 24).  After the examination on August 16, 
 
         1983, Dr. Dougherty completed a Physicians Report for Argonaut 
 
         Insurance Company.  At item number six, he indicated that the 
 
         injury was caused, aggravated or accelerated by patients alleged 
 
         employment activity by putting three x's in the yes block.  
 
         However, at item three, description of injury, he continued to 
 
         say "etiology (?)", (Ex. E, p. 17).  On September 6, 1983, she 
 
         was not getting along any different.  Dr. Dougherty ordered a 
 
         second EMG.  There was improvement in that the second EMG showed 
 
         less muscle spasms than the previous EMG (Ex. E, p. 14).
 
         
 
              On September 19, 1983, claimant sought out Donald J. Meylor, 
 
         D.C., for chiropractic care.  Dr. Meylor's diagnosis is as 
 
         follows:
 
         
 
              DIAGNOSIS:  Conclusions drawn from examinations 
 
              performed indicated a scapula humeralmyopathy (measured  
 
              elevation of scapula from A-P full spine x-rays was 
 
              approximately 2 inches) with attendant severe myospasm, 
 
              severe myalgia and pronounced muscle weakness.  
 
              Contributing factors appeared to be multiple and 
 
              included:  work stress (primarily patient's work 
 
              posture and work conditions), organic and/or functional 
 
              physiological imbalances (demonstrated by lab results) 
 

 
         
 
         
 
         
 
         WILLER V. IOWA MEAT PROCESSING
 
         PAGE   8
 
         
 
         
 
              and thoracic and cervical vertebrae misalignments.
 
         
 
         (Ex. K, p. 1)
 
         
 
              Claimant said she saw Dr. Meylor for about six months.  His 
 
         treatment brought temporary relief and he was able to bring the 
 
         scapula down temporarily, but it never did stay down.
 
         
 
              Claimant saw Dr. Dougherty again on March 13, 1984.  At this 
 
         time he recorded that she either passed out or got light headed 
 
         twice during his examination.  The lady from the vocational 
 
         rehabilitation company was present for the examination.  Claimant 
 
         still had a marked high riding scapula and a marked amount of 
 
         spasm (Ex. E, pp. 25 & 26).  In a letter dated April 10, 1984, 
 
         Dr. Dougherty questioned whether the scoliosis conceivably 
 
         contributed to the high riding scapula.  He said that claimant's 
 
         scapula will go down, but with the least amount of activity the 
 
         muscles go into tremendous spasm and it pulls up again (Ex. E, p. 
 
         15).  On July 5, 1984, Dr. Dougherty completed a Physical 
 
         Capabilities Form on Iowa Meat Processing letterhead stationary.  
 
         He said that he last saw claimant on March 13, 1984.  At that 
 
         time, she was not capable of returning to any type of work (Ex. 
 
         E, p. 12).
 
         
 
              Claimant was next seen at the Medical Occupational 
 
         Evaluation Center (MOEC) at Mercy Hospital in Des Moines on 
 
         August 13, 14, and 15, 1984, by several doctors and other 
 
         professionals.
 
         
 
              Paul From, M.D., reported that claimant had actually had 
 
         distress for approximately one year prior to May 5, 1983.  He 
 
         took an extremely long and detailed history which revealed 
 
         several complaints in many parts of her body with explicit 
 
         details.  Her physical examination disclosed decreased range of 
 
         motion to the right.  There was some increase in the trapezius, a 
 
         high riding scapula and the trapezius was tight and tender.  A 
 
         peripheral arterial evaluation ruled out thoracic outlet syndrome 
 
         (Ex. P, pp. 3-14).
 
         
 
              S.R. Winston, M.D., a neurosurgeon at the MOEC, said that 
 
         claimant's problem was two and one-half years old or longer.  He 
 
         said her symptoms appeared while using a Whizard knife at work 
 
         and they continued until the acute onset in May of 1983.  He 
 
         reported that the problem tends to get some better but then 
 
         lifting or doing repetitive movements exacerbate her difficulty 
 
         of cramping in the right shoulder and loss of feeling in the 
 
         right upper extremity.  By holding her right arm in a dependant 
 
         resting position, and putting pressure on the top of the 
 
         trapezius, causes the spasm and the elevation and the forward 
 
         movement of the scapula to abate and gives her some relief from 
 
         this difficulty.  Dr. Winston's examination discloses marked 
 
         limited motion of the right upper extremity and that she will 
 
         irmmediately develop incredible muscle spasms in the trapezius, 
 
         supraspinatus and all associated musculature around the scapula.  
 
         He found that she had no pathologic neurologic signs, but he 
 
         could not rule out thoracic outlet syndrome and for an 
 
         intermediate diagnosis called it a neurogenic claudication.  Dr. 
 
         Winston thought she was limited to sedentary work and probably 
 
         should be retrained (Ex. P, pp. 14-16).
 
         
 
              Todd J. Hines, Ph.D., saw claimant at the MOEC on August 15, 
 
         1984.  She had a diary of her complaints.  She did not see 
 
         herself as completely disabled.  His evaluation and tests 
 

 
         
 
         
 
         
 
         WILLER V. IOWA MEAT PROCESSING
 
         PAGE   9
 
         
 
         
 
         reflected a strong pattern of somatic conversion which very 
 
         likely functions to exacerbate her experience of pain and 
 
         distress.  Her basic personality nature appears to contain many 
 
         factors of a hysterical nature.  Emotional factors intensify her 
 
         impairment, but this is not evidence of malingering.  Somatic 
 
         conversion is not a conscious process.  He stated she could 
 
         successfully engage in rehabilitation training (Ex. P, pp. 17 & 
 
         18).  Dr. Hines concluded as follows:
 
         
 
              In summary, Pamela Willer does present psychological 
 
              variables which very likely cause her experience of 
 
              pain, symptoms and disability to be worse than the 
 
              physiological anomaly might suggest.  This process is 
 
              most accurately seen as an element of her 
 
              characteristic psychological style and does not 
 
              represent an emotional disorder caused or exacerbated 
 
              by her injury.  Psychological treatment in any form is 
 
              not likely to be helpful and the most therapeutic 
 
              course of action would be to return to work as quickly 
 
              as possible in some vocational situation significantly 
 
              different from that in which she experienced injury.
 
         
 
         (Ex. P, p. 18)
 
         
 
              Andrea Burt, L.P.T., a licensed physical therapist at the 
 
         MOEC, extensively tested and measured claimant and determined 
 
         that she has sustained a 22 percent permanent functional 
 
         impairment based upon the American Medical Association's, Guide 
 
         to the Evaluation of Permanent Impairment, second edition, based 
 
         on limitation of range of motion.  She too, understood that 
 
         claimant first noticed trouble in 1982, but did not seek help 
 
         until May 5, 1983.  Burt carefully traced the development of the 
 
         problem and the course of treatment for it from the beginning to 
 
         the current date.  Large deficits were found in the right 
 
         shoulder flexion-extension and abduction and adduction (Ex. P, 
 
         pp. 19-23).
 
         
 
              Burt made the following findings:
 
         
 
              Postural exam reveals a slight forward head.  Her right 
 
              scapula is abducted and rotated upward.  The right 
 
              shoulder and right hip are also high.  A scoliosis 
 
              exists at the T11 - L1 region which is concave to the 
 
              left.. A leg length discrepancy was found with the 
 
              right leg being about one-half inch longer than the 
 
              left.  She does use a lift in her shoe most of the 
 
              time.
 
         
 
         (Ex. P,  p. 20)
 
         
 
              James L. Blessman, M.D., saw claimant at the MOEC on August 
 
         15, 1984.  He said that she had a fibromyalgia and fibrositis.  
 
         He recommended pain management therapy and additional physical 
 
         therapy.
 
         
 
              Robert A. Jones, B.S., and G. Patrick Weigel, M.A., two 
 
         occupational therapists at the MOEC, examined claimant.  They 
 
         speculated that possibly she could return to her old job.  
 
         Claimant expressed a desire to return to school and become a high 
 
         school counselor or some other related professional.  They said 
 
         claimant has average intelligence and strong concern for other 
 
         people.  Her interest patterns are similar to child care, 
 
         cosmetology, elementary school teaching, teacher's aid and 
 

 
         
 
         
 
         
 
         WILLER V. IOWA MEAT PROCESSING
 
         PAGE  10
 
         
 
         
 
         medically orientated blue collar occupations.  Religion is an 
 
         important element in her life.
 
         
 
              Claimant demonstrated excellent hand/eye/foot coordination 
 
         and her upper extremity range of motion activities were far above 
 
         other female patients.  Her attitude was good.  She demonstrated 
 
         no physical problems and had no pain complaints during the entire 
 
         performance of her work samples.  They hoped that she could 
 
         return to work for her old employer.  If not, she should try to 
 
         work in a day care center or an educational setting as a 
 
         teacher's aid (Ex. P, pp. 28-32).
 
         
 
              Dr. From gave the final summary to conclude the MOEC report. 
 
          He stated that claimant should return to gainful employment but 
 
         preferably in an area different from that in which she sustained 
 
         her injury.  He said there was disagreement as to whether she had 
 
         reached her maximum medical recuperation.  He stated that she had 
 
         some permanent functional impairment.  He said claimant sustained 
 
         an impairment of approximately 20 percent but some of this may 
 
         not be permanent but might improve.  Claimant's emotional 
 
         problems were not related to or aggravated by this injury (Ex. P, 
 
         pp. 33-40).
 
         
 
              Dr. Dougherty's final examination was performed on November 
 
         19, 1985.  He said that claimant had a difficult second pregnancy 
 
         and that she had to stay in bed most of the time.  She was 
 
         hospitalized one or more times during this pregnancy.  After the 
 
         baby weighed ten pounds it was difficult to carry her.  Claimant 
 
         does vacuum but it bothers her.  The scapula is about the same.  
 
         Her whole arm and shoulder ache.  She is right handed.  She has 
 
         gained 15 pounds.  He had read the MOEC report and did not agree 
 
         that there was a thoracic outlet syndrome and he did not agree 
 
         that surgery would be of any benefit.  Dr. Dougherty felt the 
 
         right scapula was more rigid and persistent in riding high than 
 
         it was a year and one-half ago when he last saw her on March 13, 
 
         1984.  Dr. Dougherty commented that none of the medical examiners 
 
         have been able to explain this problem and that it is difficult 
 
         to explain why it has persisted based primarily on a so-called 
 
         work injury.  He speculated that the scoliosis might have some 
 
         influence on the high riding scapula.  He felt claimant was 
 
         entitled to a 25 percent permanent functional impairment of the 
 
         right upper extremity which converts to 15 percent of the body as 
 
         a whole.  Five percent should be added for disability to the 
 
         spine.  His total permanent functional impairment rating was 20 
 
         percent of the body as a whole.  He thought that claimant was 
 
         worse than she was when he last saw her on March 13, 1984, but 
 
         that it was not bothering her as much.  He did not feel that she 
 
         could return to work in the packing house line of work.  He added 
 
         that she should not do heavy work and should not lift above her 
 
         head.  She should have the opportunity to get up and move around 
 
         from a sitting job.  He concluded by stating again that he did 
 
         not truly understand her problem (Ex. E, pp. 7-9).
 
         
 
              Claimant was examined by David G. Paulsrud, M.D., an 
 
         orthopedic surgeon, on April 8, 1986, at the request of her 
 
         lawyer.  She stated that she has had continuous pain in her neck, 
 
         shoulder and intrascapular area without any real significant 
 
         relief.  Dr. Paulsrud stated that the elevation of the scapula 
 
         appeared to be congenital, but she stated that she was not aware 
 
         of it until her injury.  He found that claimant had a full range 
 
         of motion in her shoulder and neck, but she said the motion 
 
         caused aching in her shoulder.  He found that claimant's x-rays 
 
         from 1983 to 1985 were unchanged.  The 1983 tangential films 
 

 
         
 
         
 
         
 
         WILLER V. IOWA MEAT PROCESSING
 
         PAGE  11
 
         
 
         
 
         demonstrated deformity of the superior medial border of the 
 
         scapula with a rather pronounced hook at this point.  He added 
 
         that her back demonstrated moderate scoliosis and a great deal of 
 
         lumbar lordosis (Ex. D).
 
         
 
              Claimant was examined by Joel T. Cotton, M.D., a neurologist 
 
         in Omaha, on June 30, 1986, at the request of defendants.  He 
 
         recorded that the chief complaint was continuous right shoulder 
 
         spasm and inability to lift and hold heavy objects in her right 
 
         hand for any length of time.  His examination found the right 
 
         shoulder more shrugged than the left with continuous spasm 
 
         activity present in the right trapezius muscles superiorly.  He 
 
         concluded that her neurological examination was normal with these 
 
         comments:
 
         
 
              Clinical Impression:  This patient's neurological 
 
              examination at this time is normal.  She shows 
 
              persistent elevation of the right shoulder which is of 
 
              uncertain etiology.  It is not in my opinion on a 
 
              primary neurological basis.  I can specifically 
 
              demonstrate no evidence of damage to either the 
 
              trapezius muscle itself nor to the nerve supply to the 
 
              muscle, originating from either the spinal cord, 
 
              cervical nerve roots, or peripheral nerves in the 
 
              shoulder innervating it.  Since this problem in my 
 
              opinion does not originate on a primary neurological 
 
              basis, I do not feel there is any neurological 
 
              impairment in this individual and therefore find no 
 
     
 
         
 
         
 
         
 
         
 
         WILLER V. IOWA MEAT PROCESSING
 
         PAGE  12
 
         
 
         
 
              disability in this person from a neurological 
 
              standpoint.  She does not specifically in my opinion 
 
              have either a "thoracic outlet syndrome" nor does this 
 
              appear to represent a carpal tunnel syndrome.  I 
 
              furthermore do not feel it originates from a "pinched 
 
              nerve" originating from the neck.  In addition, it is 
 
              not in my opinion a true "myosotis" as defined 
 
              medically.  I have no specific recommendations 
 
              concerning treatment of this individual.  According to 
 
              the patient she has had no significant improvement in 
 
              her symptoms in the last year.  This would suggest to 
 
              me a state of permanency.  I am unable to state whether 
 
              there will be any recovery of function in the future as 
 
              again in my opinion, this problem is not a primary 
 
              neurological abnormality involving either spinal cord, 
 
              peripheral nerves, nerve roots, or the trapezius muscle 
 
              itself.  There is no reason from a neurological 
 
              standpoint that I would restrict this individual's 
 
              activity.
 
         
 
         (Ex. C, p. 2)
 
         
 
              Claimant was examined at the University of Iowa on June 16, 
 
         1987, and again on July 28, 1987, at the request of Dr. 
 
         Dougherty.  Claimant reported that the right scapula is all right 
 
         when she is lying supine; but if she is erect for more than 30 
 
         minutes she experiences spasm and excruciating pain on the 
 
         elevation of her right arm.  Upon examination the doctors noted 
 
         that intermittently during examination the muscles surrounding 
 
         the scapula would go into spasm with marked elevation.  Dr. 
 
         Ruffin and Clark (full names unknown) concluded:  "Impression:  
 
         1) scapular right parascapular muscle spasm with pain and 
 
         disability, 2) workmen's comp. case related to #1.  At this time 
 
         we are unable to define the pathologic cause of this problem" 
 
         (Ex. A, pp. 3 & 4).
 
         
 
              An MRI, EMG and NCV were ordered.  On July 28, 1987, the MRI 
 
         and the NCV were reported as normal.  The EMG demonstrated spasms 
 
         of the trapezius, romboids and cervical parasppinals muscles.  
 
         Drs. Martin, Mysnyk and Clark (full names unknown) reported as 
 
         follows:  "Impression:  The patient seems to be suffering from 
 
         pain/spasm in her muscles/fascia, etiology is unknown at this 
 
         time" (Ex. A, p. 3).  They concluded by saying that their 
 
         diagnostic studies were negative to date and that they had 
 
         nothing further to offer to claimant.
 
         
 
              Dr. Dougherty gave a deposition on February 19, 1987 (Ex. 
 
         O). He stated that he last saw claimant on November 19, 1985.  He 
 
         gave her a 20 percent permanent functional impairment at that 
 
         time.  He found that claimant was able to sit, walk and stand but 
 
         that she should be able to move around a little bit.  She can 
 
         bend at the waist, twist and she could work at a keyboard.  She 
 
         can drive an automobile with provision for rest stops (Ex. O, pp. 
 
         12-14).  He stated that she has spinal problems of 
 
         scoliosis,kyphosis and lordosis.  He felt that improved posture 
 
         would decrease her discomfort (Ex. O, pp. 14 & 15).  Dr. 
 
         Dougherty testified that claimant could work eight hours a day 
 
         (Ex. O, p. 16).  He stated that he did not agree that the rising 
 
         scapula was a congenital matter because it never happened to her 
 
         before this injury and when he first started to treat her he 
 
         could get it down again (Ex. O, p. 18).
 
         
 
              Dr. Dougherty said it was reasonable to assume that this 
 

 
         
 
         
 
         
 
         WILLER V. IOWA MEAT PROCESSING
 
         PAGE  13
 
         
 
         
 
         problem was caused by her work initially.  He suspected central 
 
         nervous system problems but they were ruled out.  He stated that 
 
         he was not saying that this injury was not related to her work.  
 
         He said that his major problem was that he cannot explain why the 
 
         scapula continues to pop out (Ex. O, pp. 20-23).
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury of May 5, 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.2d 867.  See also Musselman v. Central Telephone 
 
         Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
              Claimant described in detail to her examining physicians and 
 
         other professionals, as well as at the hearing, the precise 
 
         repetitive physical movements of twisting her body to the right 
 
         and behind her in a bent over position while transferring 
 
         packages of meat weighing from one pound to 35 pounds.  She 
 
         described the gradual onset of symptoms in her right side--face, 
 
         neck, shoulder, arm, hand, fingers, breast and rib cage.  This 
 
         evidence is not disputed, controverted or contradicted.  There is 
 
         a discrepancy as to whether symptoms first occurred one month 
 
         prior to May 5, 1983, or one year or more prior to May 5, 1983.  
 
         This discrepancy, however, is determined to be immaterial.  It is 
 
         entirely possible that some physicians interpreted the history 
 
         that she gave differently than others.
 
         
 
              Dr. Redwine and Dr. Rhodes, two company physicians, accepted 
 
         the description of a work related injury, treated her on that 
 
         basis and did not suggest any other cause for her complaints (Ex. 
 
         G).  The same thing can be said with respect to Dr. Nitz, the 
 
         neurologist selected by Dr. Dougherty.  Furthermore, Dr. Nitz did 
 
         say "most likely related to persistent posture from occupation" 
 
         (Ex. F, p. 2).
 
         
 
              Dr. Meylor, the chiropractor, states that a contributing 
 
         factor was "work stress (primarily patient's work posture and 
 
         work condition)."
 
         
 
              Dr. From accepted the claimant's version of how the problem 
 
         arose and stated that the peripheral artery evaluation ruled out 
 
         thoracic outlet syndrome (Ex. P, pp. 3-14).
 
         
 
              Dr. Winston, a neurosurgeon, found no pathologic neurologic 
 

 
         
 
         
 
         
 
         WILLER V. IOWA MEAT PROCESSING
 
         PAGE  14
 
         
 
         
 
         signs.  He speculated that the problem might be a neurogenic 
 
         claudication.  He refused to rule out thoracic outlet syndrome 
 
         (Ex. P, pp. 14-16).
 
         
 
              Dr. Hines, the psychologist, seemed to accept claimant's 
 
         version of a work-related injury.  He added that emotional 
 
         factors probably unknowingly intensify her impairment.  Burt, the 
 
         licensed physical therapist, Weigel and Jones, the occupational 
 
         therapists, and Dr. Blessman appeared to accept claimant's 
 
         version of how the injury occurred.
 
         
 
              In summary, none of the professionals at the MOEC disputed 
 
         claimant's version of how the injury occurred.
 
         
 
              Dr. Paulsrud said that the elevated scapula appears to be 
 
         congenital, but he did not state that claimant's spasms and other 
 
         symptomatology were not caused as claimant described (Ex. D).  
 
         Dr. Cotton, a neurologist, said that claimant did not have 
 
         thoracic outlet syndrome.  He said her problem was not a 
 
         neurological problem.  He did believe that her condition was 
 
         permanent.  Otherwise, he did not express his opinion on causal 
 
         connection or the degree of impairment (Ex. C).
 
         
 
              The University of Iowa physicians confirmed claimant's 
 
         symptomatology but could not define the cause for it.
 
         
 
              Dr. Dougherty, the principle treating physician, at all 
 
         times stated that he could not explain claimant's problem, in 
 
         particular, he stated that he could not explain why the scapula 
 
         popped out.  Frequently he wrote etiology (?).  He never disputed 
 
         that any of the other symptoms were caused by her work.  He did 
 
         not say the protruding scapula problem was not caused by work; he 
 
         simply stated that he did not understand it.  He proceeded to and 
 
         continued to treat claimant on the history which she gave.  Dr. 
 
         Dougherty speculated on intracerebral lesion, thoracic outlet 
 
         syndrome and some central nervous symptom problem.  These 
 
         possibilities were ruled out by Dr. Nitz, Dr. Cotton and the 
 
         University of Iowa doctors.
 
         
 
              Eventually, in his deposition on February 19, 1987, Dr. 
 
         Dougherty said it was reasonable to assume that her work caused 
 
         this injury.  He said that he had ruled out the neurological 
 
         problems that he was concerned about.  He stated that he was not 
 
         saying that it was not caused by her work.
 
         
 
              On the Physicians Report to Argonaut, on August 16, 1983, 
 
         Dr. Dougherty checked the block to indicate that the injury was 
 
         caused by work even if he did put a question mark after the word 
 
         etiology to show that he did not know the exact mechanism or 
 
         cause and effect relationship between the job and the injury (Ex. 
 
         E, p. 17).
 
         
 
              Defendants indicated in their brief that they proceeded to 
 
         pay claimant several weeks of benefits under the impression that 
 
         Dr. Dougherty thought this was a work-related injury.  They first 
 
         learned that he questioned the causal connection at the time of 
 
         his deposition on February 19, 1987.
 
         
 
              From the foregoing, it is determined that the injury of May 
 
         5, 1983, was the cause of both temporary and permanent 
 
         disability.
 
         
 
              It is entirely possible that Dr. Paulsrud is correct in his 
 

 
         
 
         
 
         
 
         WILLER V. IOWA MEAT PROCESSING
 
         PAGE  15
 
         
 
         
 
         belief that the protruding scapula is congenital.  Claimant does 
 
         have a number of bodily deformities--cervical and dorsal 
 
         scoliosis, dorsal kyphosis, lumbar lordosis and one leg is longer 
 
         than the other.  Nevertheless, the employer takes the employee as 
 
         is and therefore takes her subject to any active or dormant 
 
         health problems.  Lawyer & Higgs, Iowa Workers' Compensation--Law 
 
         & Practice, section 4-2, page 21.  Claimant's problem developed 
 
         while working on the job doing repetitive work in an awkward bent 
 
         over position.  The weight of the evidence is that the job caused 
 
         the injury.  A number of other causes were explored and all of 
 
         them were rejected.  No other cause has been proven.  Claimant's 
 
         account of how the injury occurred was not disputed, controverted 
 
         or contradicted.
 
         
 
               Iowa Code section 85.34(l) provides that claimant is 
 
         entitled to healing period benefits until (1) she returns to 
 
         work; (2) is capable of performing substantially similar 
 
         employment; or (3) it is medically indicated that medical 
 
         improvement is no longer anticipated.
 
         
 
              In this case, claimant is entitled to healing period 
 
         benefits from May 5, 1983, to March 13, 1984.  Dr. Dougherty 
 
         noted on June 13 that claimant was improving (Ex. E, p. 22).  On 
 
         July 8, 1983, she was getting along better (Ex. E, p. 23).  On 
 
         September 7, 1983, Dr. Dougherty said the second EMG showed less 
 
         muscle spasm than the previous one (Ex. E, p. 14).  It wasn't 
 
         until March 13, 1984, that Dr. Dougherty failed to record any 
 
         impairment whatsoever (Ex. E, pp. 15, 25 & 26).  Therefore, it is 
 
         determined that claimant achieved maximum medical improvement on 
 
         March 13, 1984.
 
         
 
              As 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).
 
         
 
              Dr. Dougherty awarded claimant a permanent functional 
 
         impairment rating of 20 percent of the body as a whole.  The MOEC 
 
         awarded a permanent functional impairment rating of 22 percent, 
 
         which Dr. From rounded down to 20 percent.  Dr. Dougherty and 
 
         other physicians and professionals indicated that claimant could 
 
         not return to her former employment.
 
         
 
              At age 31, claimant is young enough to be retrained.  Conrad 
 
         v. Marquette School, Inc., IV Iowa Industrial Commissioner Report 
 
         74, 78 (1984).  Leonhardt testified that claimant could be 
 
         retrained.  Claimant is intelligent and presents a good 
 
         appearance.  Leonhardt described her as sophisticated and 
 
         polished.  Claimant has clerical, sales, supervisory, and 
 
         discriminating transferable skills.  Claimant can write and is 
 

 
         
 
         
 
         
 
         WILLER V. IOWA MEAT PROCESSING
 
         PAGE  16
 
         
 
         
 
         good with words and is good with people.  She is a person of good 
 
         moral character and her religious beliefs are important in her 
 
         life.  Her work record is excellent.  The first nine years of her 
 
         employment history was devoted to the meat packing industry.  She 
 
         worked for this employer for approximately three years prior to 
 
         her injury.  She can no longer do this kind of work.  Therefore, 
 
         many of the highest paying and easiest to obtain jobs are now 
 
         foreclosed to claimant.  Michael v. Harrison County, 
 
         Thirty-fourth Biennial Report of the Industrial Commissioner 218, 
 
         219 (1979); Rohrberg v. Griffin Pipe Products Co., I Iowa 
 
         Industrial Commissioner Report 282 (1981).  Leonhardt, 
 
         defendants' vocational rehabilitation consultant, testified that 
 
         claimant is not employable, but that she can be retrained.  
 
         Retraining is an expensive matter.
 
         
 
              Claimant did not sustain the burden of proof by a 
 
         preponderance of the evidence that she is permanently totally 
 
         disabled either under general principles of workers' compensation 
 
         law or as an odd-lot employee.  First of all, claimant told Dr. 
 
         Hines that she did not feel that she was completely disabled back 
 
         in August of 1984.  Second, claimant admitted twice that she has 
 
         never actually sought or made any attempt to be employed since 
 
         the injury.  She contacted no employers; she completed no job 
 
         applications.  Since claimant has made no showing of an effort to 
 
         find other employment; there is no showing of what claimant can 
 
         do within the boundaries of her disability and restrictions.  
 
         Schofield v. Iowa Beef Processors, Inc., II Iowa Industrial 
 
         Commissioner Report 334, 336 (1981).
 

 
         
 
         
 
         
 
         WILLER V. IOWA MEAT PROCESSING
 
         PAGE  17
 
         
 
         
 
         
 
              In addition, claimant introduced no evidence of an attempt 
 
         to be gainfully employed either with or without the help of the 
 
         vocational rehabilitation service that was provided to her by 
 
         defendants.  Since claimant has not demonstrated a bona fide 
 
         effort to return to gainful employment in the area of residence, 
 
         she has failed to make a prime facia case of permanent total 
 
         disability under the odd-lot doctrine.  Guyton v. Irving Jensen 
 
         Co., 373 N.W.2d 101 (Iowa 1985); Emshoff v. Petroleum 
 
         Transportation Services, Inc., file no. 753723, appeal decision 
 
         March 31, 1987.  The evidence reveals a number of disincentives 
 
         or reasons why claimant might not be motivated to return to 
 
         gainful employment.  First of all, at the time of the injury 
 
         claimant's first child, by her first husband, was only 
 
         approximately one year old.  Second, claimant had only been 
 
         married for three months to her present husband when the injury 
 
         occurred.  Third, she became pregnant with her second child 
 
         sometime in the fall of 1984.  Dr. Dougherty said that claimant 
 
         was sick in bed most of the time and was even hospitalized some 
 
         of the time during this pregnancy.  Fourth, when the second child 
 
         was born on June 25, 1985, it was a spina bifida child and 
 
         required claimant's constant care.  Fifth, claimant told 
 
         Leonhardt that her husband said that he did not want her to work 
 
         either inside or outside of the home either one.  Sixth, the 
 
         evidence clearly shows what Dr. Hines pointed out.  Claimant does 
 
         present psychological variables which cause her to experience 
 
         pain, symptoms and disability worse than the physiological 
 
         anomaly might suggest (Ex. P, p. 18).
 
         
 
              Jones and Weigel, occupational therapists at the MOEC, felt 
 
         that claimant could work back on August 15, 1984.
 
         
 
              Regarding her performance on the Work Samples, we note 
 
              that Pam turned in some very good scores when compared 
 
              to our other female patients.  She demonstrated 
 
              excellent hand/eye/foot coordination and her upper 
 
              extremity range of motion activities were far above 
 
              average when compared to our other female patients.  
 
              She demonstrated good work habits and motivation and 
 
              she had a good, competitive spirit.  She appeared to be 
 
              quite enthused in her performance of the Work Samples.  
 
              Although she was very physically active throughout her 
 
              performance of the Work Samples, she demonstrated no 
 
              physical problems and had no pain complaints during her 
 
              entire performance of the Work Samples.
 
         
 
         (Ex. P, pp. 31 & 32)
 
         
 
              Claimant has been performing the tasks of wife, mother of 
 
         two small children and homemaker since the injury occurred.  
 
         These are three of the most difficult tasks to perform under any 
 
         conditions in the employment world.  Claimant actually ceased to 
 
         obtain active medical treatment after she saw Dr. Dougherty on 
 
         March 13, 1984, and Dr. Meylor a short time after that.
 
         
 
              Therefore, based upon the foregoing considerations and all 
 
         of the factors that go into a determination of industrial 
 
         disability, it is determined that claimant has sustained an 
 
         industrial disability of 55 percent to the body as a whole.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              Wherefore, based upon the foregoing evidence the following 
 

 
         
 
         
 
         
 
         WILLER V. IOWA MEAT PROCESSING
 
         PAGE  18
 
         
 
         
 
         findings of fact are made.
 
         
 
              That claimant was employed by employer on May 5, 1983, in a 
 
         job that required her to transfer packages of meat weighing from 
 
         one pound to 35 pounds in a twisting movement by transferring the 
 
         meat from a conveyor belt on her right to another conveyor belt 
 
         behind her body.
 
         
 
              That on May 5, 1983, claimant experienced severe spasms in 
 
         her right shoulder and other symptoms in her face, neck, back, 
 
         arm, hand and rib cage and that her fingers turned purple.
 
         
 
              That claimant gave this work history for the acute onset of 
 
         her problem to numerous physicians.
 
         
 
              That none of these many doctors ever disputed claimant's 
 
         history as the cause of the injury.
 
         
 
              That several possible neurological problems, which might 
 
         have caused claimant's symptoms, were ruled out.
 
         
 
              That two neurologists and a neurosurgeon could not find any 
 
         pathological neurological reason for claimant's symptoms.
 
         
 
              That Dr. Redwine, Dr. Rhodes and Dr. Dougherty all treated 
 
         claimant on the basis of the history of the work injury which she 
 
         described to them.
 
         
 
              That Dr..Nitz, said that the injury was most likely related 
 
         to the persistent posture of her occupation.
 
         
 
              That Dr. Dougherty completed a Physicians Report for the 
 
         insurance company and checked a block which indicated that 
 
         claimant's problem was work related.
 
         
 
              That Dr. Dougherty gave a deposition that he initially 
 
         assumed that claimant's symptoms were work related even though he 
 
         could not explain why her scapula protruded.
 
         
 
              That Dr. Dougherty stated that he was not stating that her 
 
         injury was not work related.
 
         
 
              That all of the physicians and other professionals at the 
 
         MOEC proceeded on the history which claimant gave that described 
 
         a work-related injury from repetitive motions at work in an 
 
         awkward position over a long period of time.
 
         
 
              That there is no evidence of any other cause of the injury 
 
         other than the description related by claimant.
 
         
 
              That claimant was unable to work after the injury on May 5, 
 
         1983.
 
         
 
              That claimant reached maximum medical improvement on March 
 
         13, 1984.
 
         
 
              That Dr. Dougherty awarded a 20 percent permanent functional 
 
         impairment of the body as a whole and Burt, the licensed physical 
 
         therapist at the MOEC, awarded claimant a 22 percent impairment.
 
         
 
              That claimant cannot return to her former employment in the 
 
         packing house.
 
         
 

 
         
 
         
 
         
 
         WILLER V. IOWA MEAT PROCESSING
 
         PAGE  19
 
         
 
         
 
              That claimant is limited to sedentary work.
 
         
 
              That claimant will probably need to be retrained in order to 
 
         obtain further employment.
 
         
 
              That claimant has not endeavored to find any employment 
 
         since the injury on May 5, 1983, and has completed no job 
 
         applications and contacted no prospective employers.
 
         
 
              That claimant has not seriously explored vocational 
 
         rehabilitation or applied for vocational rehabilitation benefits 
 
         under the workers' compensation law.
 
         
 
              That no medical professional has indicated or suggested that 
 
         claimant is permanently totally disabled.
 
         
 
              That Dr. Hines found that claimant's psychological nature 
 
         intensified claimant's pain, symptoms and impairment.
 
         
 
              That claimant is married and has two small children at 
 
         home.
 
         
 
              That claimant has sustained an industrial disability of 55 
 
         percent of the body as a whole.
 
         
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              WHEREFORE, based upon the evidence presented and the 
 
         foregoing principles of law, the following conclusions of law are 
 
         made.
 
         
 
              That the injury of May 5, 1983, was the cause of both 
 
         temporary and permanent disability.
 
         
 
              That claimant is entitled to 44.714 weeks of healing period 
 
         benefits from May 5, 1983 to March 13, 1984.
 
         
 
              That claimant is entitled to 275 weeks of permanent partial 
 
         disability based upon an industrial disability of 55 percent of 
 
         the body as a whole, commencing on March 13, 1984.
 
         
 
              That claimant is not permanently totally disabled either is 
 
         an odd-lot employee or otherwise under the workers' compensation 
 
         law.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              That defendants pay to claimant forty-four point seven one 
 
         four (44.714) weeks of healing period benefits at the rate of two 
 
         hundred seventy-five and 24/100 dollars ($275.24) per week in the 
 
         total amount of twelve thousand three hundred seven and 08/100 
 
         dollars ($12,307.08) for the period from May 5, 1983 to March 13, 
 
         1984.
 
         
 
              That defendants pay to claimant two hundred seventy-five 
 
         (275) weeks of permanent partial disability at the rate of two 
 
         hundred seventy-five and 24/100 dollars ($275.24) per week in the 
 
         total amount of seventy-five thousand six hundred ninety-one 
 
         dollars ($75,691) commencing on March 13, 1984.
 
         
 

 
         
 
         
 
         
 
         WILLER V. IOWA MEAT PROCESSING
 
         PAGE  20
 
         
 
         
 
              That all accrued benefits are to be paid in a lump sum.
 
         
 
              That interest will accrue pursuant to Iowa Code section 
 
         85.30.
 
         
 
              That defendants are entitled to a credit for one hundred 
 
         sixty point four two nine (160.429) weeks of workers' 
 
         compensation benefits paid prior to hearing at the rate of two 
 
         hundred seventy- five and 24/100 dollars ($275.24) per week in 
 
         the total amount of forty-four thousand one hundred fifty-six and 
 
         48/100 dollars ($44,156.48).
 
         
 
              That defendants pay the costs of this proceeding pursuant to 
 
         Division of Industrial Services Rule 343-4.33.
 
         
 
              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 30th day of September, 1988.
 
         
 
         
 
         
 
                                          WALTER R. McMANUS, JR.
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         
 
         
 
         Copies to:
 
         
 
         Mr. David Vohs
 
         Attorney-at-Law
 
         STE 340 Insurance Ctr
 
         507 7th St
 
         Sioux City, Iowa  51101
 
         
 
         Mr. Harry Dahl
 
         Attorney-at-Law
 
         974 73rd St., STE 16
 
         Des Moines, Iowa 50312
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                              1402.40; 1802; 1803;
 
                                              2209; 4100
 
                                              Filed September 30, 1988
 
                                              WALTER R. McMANUS, JR.
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         PAMELA S. WILLER,
 
         
 
              Claimant,
 
         
 
         vs.
 
                                                File No.  732780
 
         IOWA MEAT PROCESSING,
 
                                             A R B I T R A T I O N
 
              Employer,
 
                                                D E C I S I O N
 
         and
 
         
 
         ARGONAUT INSURANCE CO.,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
         1402.40; 1802; 1803; 2209
 
         
 
              Claimant sustained a serious injury to her right shoulder 
 
         from performing repetitive work over a long period of time in an 
 
         awkward position.  She was awarded approximately ten months of 
 
         healing period benefits from the date of injury to a point when 
 
         it was determined from doctors notes that she had attained 
 
         maximum medical improvement.  Claimant was awarded 55 percent 
 
         industrial disability.  Permanent functional impairment ratings 
 
         were 20 and 22 percent.  Claimant was foreclosed from production 
 
         line work in the future and restricted to sedentary work.  
 
         Defendants' vocational consultant said claimant was unemployable 
 
         at the time of the hearing but that she could be retrained.
 
         
 
         4100
 
         
 
              Claimant had a number of disincentives to work of a personal 
 
         nature and had not made any attempt of any kind to find 
 
         employment or to cooperate with the vocational rehabilitation 
 
         assistance offered by defendants.
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                   BEFORE THE IOWA DIVISION OF INDUSTRIAL SERVICES
 
         
 
         
 
         MARIETTA COYLE,
 
         
 
             Claimant,                            File Nos. 733550/727272
 
                                                              830411
 
         vs
 
                                                        A P P E A L
 
         SHELLER-GLOBE CORPORATION,
 
                                                        R U L I N G
 
              Self-Insured,
 
              Employer,
 
                                                         F I L E D
 
         and
 
                                                        JAN 20 1988
 
         SECOND INJURY FUND OF IOWA,
 
                                               IOWA INDUSTRIAL COMMISSIONER
 
              Defendants.
 
         
 
         
 
              Division of industrial Services Rule 343-4.27 states in 
 
              part:
 
         
 
                   No appeal shall be separately taken under this or 4.25 
 
              (17A, 86) from an interlocutory decision, order or ruling of 
 
              a deputy industrial commissioner.  A decision, order or 
 
              ruling is interlocutory if it does not dispose of the 
 
              contested case, unless the sole issue remaining for 
 
              determination is claimant's entitlement to additional 
 
              compensation for unreasonable denial or delay of payment 
 
              pursuant to Iowa Code section 86.13.
 
         
 
              The ruling filed December 16, 1987, which is the subject 
 
         matter of this appeal, is not dispositive of the contested case 
 
         and therefore interlocutory.
 
         
 
              THEREFORE, the appeal filed December 24, 1987 is hereby 
 
         dismissed.
 
         
 
         
 
              Signed and filed this 20th day of January, 1988.
 
         
 
         
 
         
 
         
 
         
 
         
 
                                               DAVID E. LINQUIST
 
                                            INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Arthur C. Hedberg, Jr.
 
                                                
 
                                                         
 
         Attorney at Law
 
         840 Fifth Avenue
 
         Des Moines, Iowa  50309
 
         
 
         Mr. Harry W. Dahl
 
         Attorney at Law
 
         974 73rd St., Suite 16
 
         Des Moines, Iowa  50312
 
         
 
         Mr. Craig Kelinson
 
         Assistant Attorney General
 
         Tort Claims Division
 
         Hoover State Office Bldg.
 
         Des Moines, Iowa  50319
 
 
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         LOIS HERRING,                                File No. 733671
 
         
 
              Claimant,                                 A P P E A L
 
         
 
         vs.                                          D E C I S I O N
 
         
 
         ARMOUR DIAL, INC.,                              F I L E D
 
         
 
              Employer,                                 MAR 28 1988
 
              Self-Insured,
 
              Defendant.                       IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              Claimant appeals from a review-reopening decision awarding 
 
         benefits based on a 25 percent impairment of claimant's left 
 
         upper extremity.  The deputy denied benefits for industrial 
 
         disability holding that claimant did not establish that she 
 
         sustained a disability to the body as a whole.
 
         
 
              The record on appeal consists of the transcript of the 
 
         review-reopening hearing and joint exhibits 1 through 11.  The 
 
         deputy took official notice of the exhibits received into evidence 
 
         at the arbitration hearing in this matter on August 27, 1984.  
 
         Only claimant-appellant has filed a brief on appeal.
 
         
 
                                     ISSUES
 
         
 
              Claimant states the following issue on appeal:  "The 
 
         deputy's finding that the claimant's impairment and disability 
 
         are limited to the arm and the scheduled portion of the Code as 
 
         opposed to the body as a whole and unscheduled part of the Code 
 
         is error."
 
         
 
                           REVIEW OF THE EVIDENCE
 
         
 
              The review-reopening decision reflects the pertinent 
 
         evidence and it will not be totally reiterated herein.
 
         
 
              The deputy made the following findings of fact in the 
 
         arbitration decision filed in this matter:
 
         
 
                   Claimant sustained an injury arising out of and in the 
 
              course of her employment when she strained herself while 
 
              separating two cartons of canned meat which were glued 
 
              together.
 
         
 
                   Claimant's injury resulted in a reflex sympathetic 
 
              dystrophy with an underlying carpal tunnel syndrome.
 
         
 
                                                
 
                                                         
 
                   Claimant had a carpal tunnel release performed June 3, 
 
              1983.  The release did not relieve claimant's symptoms.
 
         
 
                   Claimant had a series of ganglion blocks in February 
 
              1984.  These resulted in some improvement in her symptoms.
 
         
 
                   Claimant will require at least a second series of 
 
              ganglion blocks to return to her preinjury status.
 
         
 
                   Claimant has not recovered to the extent that she can 
 
              return to work substantially similar to that in which she 
 
              was engaged when injured.
 
         
 
                   Claimant has not yet returned to work for defendant.
 
         
 
                   Claimant has incurred medical expenses related to her 
 
              April 28, 1983 injury.  These include medical mileage of the 
 
              1270 miles in 1983 and of 840 miles in 1984, and costs for a 
 
              series of ganglion.
 
         
 
         (Arbitration Decision, page 13)
 
         
 
              Claimant's injury occurred on April 28, 1983.  Since the 
 
         arbitration hearing, claimant underwent a second series of 
 
         ganglion blocks on December 5, 1984.  The ganglion blocks were of 
 
         little benefit to claimant.  See joint exhibit 5.  D. K. Nelson, 
 
         M.D., claimant's treating physician, states his impression of 
 
         claimant's condition in his January 8, 1985 notes:  "Impression: 
 
         She has clinical evidence of ulnar neuropathy or C8 radiculopathy 
 
         also improved condition of reflex sympathetic dystrophy."  (Joint 
 
         Exhibit 5)
 
         
 
              Dr. Nelson referred claimant to a Dr. Blair for a second 
 
         opinion.  Dr. Blair examined and treated claimant on three 
 
         occasions from March 12, 1985 through April 23, 1985.  In his 
 
         March 12, 1985 clinical notes, Dr. Blair states:
 
         
 
              EXAM:  Exam reveals the left upper extremity appears the 
 
              same in size, color and texture to the right upper 
 
              extremity.  The forearm measured 18 cm proximal to the 
 
              radial styloid, is 1 cm less in diameter than the right.  
 
              The left upper extremity is slightly cooler than the left 
 
              throughout.  Color is the same.  The skin on the left hand 
 
              is slightly dryer than the right.  She has full ROM of the 
 
              shoulder, elbow, wrist and fingers.  No swelling, no 
 
              particular tenderness to touch except the posterior arm.  
 
              Neck has full ROM without reproduction of symptoms.
 
         
 
              IMP:  The patient was seen and examined with Dr. Blair.  We 
 
              feel she is in a late stage of an almost completely 
 
              recovered reflex sympathetic dystrophy now with persistent 
 
              dysesthesias, cold intolerance.
 
         
 
         (Jt. Ex. 7)
 
         
 
                                                
 
                                                         
 
              In his April 23, 1985 clinical notes, Dr. Blair states:
 
         
 
              PHYSICAL EXAM:  Exam shows the skin to be apparently dryer 
 
              than on the other side and slightly shiny.  Strength in her 
 
              deltoid, triceps, wrist flexion and extension on the left is 
 
              all 4+/5 compared with the right and strength in her biceps 
 
              is 5- compared with 5 on the right.
 
         
 
              IMP:  The patient was seen with Dr. Blair and it was felt 
 
              that she has received some relief from the TENS unit and 
 
              that the headaches that she described could be due to 
 
              improper placement of the pads.  She was therefore sent down 
 
              to PT for review of the proper use of the TENS unit and will 
 
              return in 2 months for f/u.  When she does return AP and 
 
              lateral flexion extension views of her spine will be 
 
              obtained to rule out any pathology here causing her 
 
              symptoms.
 
         
 
         (Jt. Ex. 8)
 
         
 
              On May 13, 1985, Dr. Nelson performed surgery on claimant 
 
         for left ulnar neuropathy.  See joint exhibit 7, page 10.  On 
 
         subsequent visits, Dr. Nelson's notes reflect that claimant was 
 
         experiencing shoulder and neck pain, but claimant retained full 
 
         range of motion in her shoulders.  See joint exhibits 8-10.
 
         
 
              On May 7, 1986, Dr. Nelson examined claimant for the purpose 
 
         of evaluating claimant's impairment:
 
         
 
                   I saw Mrs. Herring on May 7, 1986.  At that time I felt 
 
              that her healing had plateaued and at that time I ended her 
 
              healing period.  I estimated her permanent physical 
 
              impairment to be 25% of the upper extremity, this equates to 
 
              a 15% whole man extremity.  Her symptoms and disability are 
 
              the result of her injury at work on May 1, 1983.  I feel 
 
              that her condition is permanent and have no other 
 
              recommendations for treatment.
 
         
 
         (Jt. Ex. 11)
 
         
 
              In the arbitration decision, the deputy states the following 
 
         concerning claimant's prior medical history:
 
         
 
                   Claimant recited that repetitive raising of her left 
 
              arm remains a problem.  Claimant reported that she had 
 
              injured a tendon in her upper left arm at work in 1979 and 
 
              that she had missed "quite a bit" of work when hospitalized 
 
              for stomach problems prior to the April 28, 1983 incident.
 
         
 
                   On cross examination, claimant elaborated concerning 
 
              her 1979 injury.  She stated she ruptured a tendon while 
 
              lifting cases of chili from a pallet.  She testified that 
 
              the muscle in her upper left arm "caved in."  Claimant was 
 
              off work because of this injury from January 10, 1979 
 
              through April 1, 1980.  She reported a Dr. Browning treating 
 
                                                
 
                                                         
 
                   her condition and performed surgery about 1.5 inches above 
 
              her wrist on her forearm.  She stated the doctor described 
 
              such as "clearing out a tunnel" but "didn't call it a carpal 
 
              tunnel."  Claimant stated returning to her regular job 
 
              following her injury was "quite an adjustment."  She 
 
              reported that she experienced a dull ache in her wrist 
 
              following this injury.  Claimant disclosed that she was 
 
              hospitalized in 1982 for severe headaches.  She recited that 
 
              tests at that time revealed a pinched nerve.  Claimant 
 
              admitted she had experienced pain at the base of her skull 
 
              before 1983 and that such radiated into both shoulders.  
 
              Claimant relayed that in May 1983 she displaced a rib while 
 
              loading meat into her home freezer.
 
         
 
         (Arb Dec. p. 3)
 
         
 
                                  APPLICABLE LAW
 
         
 
              The citations of law are appropriate to the issues and 
 
         evidence.
 
         
 
                                    ANALYSIS
 
         
 
              Contrary to claimant's argument, the greater weight of 
 
         evidence supports the deputy's finding that claimant's disability 
 
 
 
                   
 
                                                         
 
         is limited to the left upper extremity.
 
         
 
              Claimant states that she experiences pain in her left 
 
         shoulder, but Dr. Nelson's clinical notes reveal that claimant 
 
         retains full range of motion in the left shoulder.  The 
 
         arbitration decision discloses that claimant experienced pain 
 
         problems in the neck and both shoulders before the injury of 
 
         April 28, 1983.  This fact weakens the causal connection between 
 
         claimant's neck and shoulder complaints and her April 28, 1983 
 
         work injury.  The evidence claimant presented just failed to meet 
 
         her burden.
 
         
 
                               FINDINGS OF FACT
 
         
 
              1.  Claimant reached maximum medical improvement on May 7, 
 
         1986.
 
         
 
              2.  As a result of claimant's April 28, 1983 work injury, 
 
         claimant suffers a 25 percent impairment of the left upper 
 
         extremity.
 
         
 
                              CONCLUSIONS OF LAW
 
         
 
              Claimant is entitled to healing period benefits from April 
 
         28, 1983 through May 7, 1986.
 
         
 
              Claimant is entitled to permanent partial disability 
 
         benefits based upon a 25 percent impairment of the left upper 
 
         extremity.
 
         
 
              WHEREFORE, the decision of the deputy is affirmed.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, it is ordered:
 
         
 
              That defendant pay claimant healing period benefits for the 
 
         period from April 28, 1983 through May 7, 1986 at the rate of two 
 
         hundred sixty-eight and 08/100 dollars ($268.08) per week.
 
         
 
              That defendant pay claimant sixty-two point five (62.5) 
 
         weeks of permanent partial disability benefits at the rate of two 
 
         hundred sixty-eight and 08/100 dollars ($268.08) per week 
 
         commencing May 8, 1986.
 
         
 
              That defendant shall pay accrued amounts in a lump sum 
 
         together with interest pursuant to Iowa Code section 85.30.
 
         
 
              That defendant shall receive credit for all benefits already 
 
         paid.
 
         
 
              That claimant shall pay the costs of this appeal in 
 
         accordance with Division of Industrial Services Rule 343-3.1.
 
         
 
              Signed and filed this 28th day of March, 1988.
 
                                                
 
                                                         
 
         
 
         
 
         
 
                                                    DAVID E. LINQUIST
 
                                                 INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Robert W. Pratt
 
         Attorney at Law
 
         1913 Ingersoll Ave.
 
         Des Moines, Iowa  50309
 
         
 
         Mr. Larry Shepler
 
         Attorney at Law
 
         600 Union Arcade Bldg.
 
         Davenport, Iowa  52801-1550
 
 
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                 1402.40 - 1803.1
 
                                                 Filed March 28, 1988
 
                                                 DAVID E. LINQUIST
 
         
 
                   BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         LOIS HERRING,
 
         
 
              Claimant,                              File No. 733671
 
         
 
         vs.
 
                                                      A P P E A L
 
         ARMOUR DIAL, INC.,
 
                                                    D E C I S I 0 N
 
              Employer,
 
              Self-Insured,
 
              Defendant.
 
         
 
         
 
         1402.40 - 1803.1
 
         
 
              Claimant failed to establish an injury to the body as a 
 
         whole.  Although claimant experienced pain in her neck and 
 
         shoulder she retained full range of motion in her left shoulder. 
 
         Claimant had similar neck and shoulder pain before her work 
 
         injury.
 
         
 
         
 
         
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                            :
 
            SANDRA CORBIN,                  :
 
                                            :
 
                 Claimant,                  :
 
                                            :
 
            vs.                             :
 
                                            :        File No. 733687
 
            MERCY HOSPITAL MEDICAL CENTER,  :
 
                                            :     A R B I T R A T I O N
 
                 Employer,                  :
 
                                            :        D E C I S I O N
 
            and                             :
 
                                            :
 
            AETNA CASUALTY & SURETY COMPANY,:
 
                                            :
 
                 Insurance Carrier,         :
 
                 Defendants.                :
 
            ___________________________________________________________
 
            
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding in arbitration brought by Sandra 
 
            Corbin, claimant, against Mercy Hospital Medical Center, 
 
            employer (hereinafter referred to as Mercy), and Aetna 
 
            Casualty & Surety Company, insurance carrier, defendants, 
 
            for workers' compensation benefits as a result of an alleged 
 
            injury on May 17, 1983.  On April 2, 1990, a hearing was 
 
            held on claimant's petition and the matter was considered 
 
            fully submitted at the close of this hearing.
 
            
 
                 The parties have submitted a prehearing report of con
 
            tested issues and stipulations which was approved and 
 
            accepted as a part of the record of this case at the time of 
 
            hearing.  Oral testimony and written exhibits were received 
 
            during the hearing from the parties.  The exhibits offered 
 
            into the evidence are listed in the prehearing report.
 
            
 
                 According to the prehearing report, the parties have 
 
            stipulated to the following matters:
 
            
 
                 1.  On May 17, 1983, claimant received an injury which 
 
            arose out of and in the course of his employment with Mercy.
 
            
 
                 2.  Claimant is seeking temporary total disability or 
 
            healing period benefits for the times off work listed in the 
 
            prehearing report and defendants agree that she was not 
 
            working during those times.
 
            
 
                 3.  If the injury is found to have caused permanent 
 
            disability, the type of disability is an industrial disabil
 
            ity to the body as a whole.
 
            
 
                 4.  Claimant's rate of weekly compensation in the event 
 
            of an award of weekly benefits from this proceeding shall be 
 
            $177.16.
 
            
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
                 5.  With reference to the medical expenses requested by 
 
            claimant, it was agreed that the providers would testify 
 
            that they are fair and reasonable and defendants are not 
 
            offering contrary evidence.  It was agreed that these 
 
            expenses are causally connected to the left shoulder condi
 
            tion upon which a portion of the claim herein is based but 
 
            that the issue of the causal connection of the left shoulder 
 
            condition to the work injury remained at issue.
 
            
 
                                      issues
 
            
 
                 The parties submitted the following issues for determi
 
            nation in this proceeding:
 
            
 
                   I.  Whether claimant received an injury to the left 
 
            shoulder arising out of and in the course of employment.
 
            
 
                 It was urged by defendants that the left shoulder 
 
            injury or a cumulative trauma issue was not before this 
 
            deputy commissioner.  However, on July 3, 1988, claimant 
 
            filed an amended petition alleging a fall on May 17, 1983 as 
 
            well as an injury from "daily stresses and strains of 
 
            employment."  This condition was labeled in this petition as 
 
            bilateral impingement syndrome to the arms, shoulders and 
 
            neck.  It is rather clear that a cumulative trauma along 
 
            with the fall incident has been alleged.  Also, there has 
 
            been no bifurcation of any issue raised in the petition.
 
            
 
                  II.  Whether the left shoulder injury claim is barred 
 
            as not asserted within two years of the last payment of ben
 
            efits under Iowa Code section 85.26 or barred for failure to 
 
            provide 90 day notice to Mercy under Iowa Code section 
 
            85.23.
 
            
 
                 III.  The extent of claimant's entitlement to disabil
 
            ity benefits for her right and left shoulder conditions.
 
            
 
                  IV.  The extent of claimant's entitlement to medical 
 
            benefits for the left shoulder condition.
 
            
 
                                 findings of fact
 
            
 
                 Having heard the testimony and considered all the 
 
            evidence, this deputy industrial commissioner finds as 
 
            follows:
 
            
 
                 A credibility finding is necessary to this decision as 
 
            defendants placed claimant's credibility at issue during 
 
            cross-examination as to the nature and extent of the injury 
 
            and disability.  From her demeanor while testifying, 
 
            claimant is found credible.
 
            
 
                 Claimant has worked for Mercy since March 1975 and con
 
            tinues to do so at the present time.  Her duties for the 
 
            most part involve housekeeping and cleaning work.  At the 
 
            time of the alleged work injury, claimant was an instrument 
 
            technician.  Claimant had been performing this job for a 
 
            number of years prior to the injury.  In this job she 
 
            cleaned and prepared surgical instruments for reuse in the 
 
            operating rooms.  As a part of this job, claimant was to 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            pick up the instruments from the operating rooms and trans
 
            port them on carts to the cleaning area.  The four wheeled 
 
            carts used by claimant were five feet high and two feet 
 
            square containing three or four shelves.  Claimant would 
 
            place the instruments into trays which weighed from 15 to 20 
 
            pounds each and placed these trays on to shelves in the 
 
            carts.  The carts would contain two to ten trays at a time.  
 
            Claimant would then push or pull the carts to the cleaning 
 
            area.  The trays containing the instruments were then placed 
 
            by claimant into various vats for cleaning and steriliza
 
            tion.  For the last year claimant has been assigned to wash
 
            ing dishes which does not violate the current work restric
 
            tions imposed in 1989 against repetitive lifting and lifting 
 
            over 20 pounds.
 
            
 
                 On or about May 17, 1983, claimant fell in the Mercy 
 
            parking lot injuring her right shoulder, arm and neck.  
 
            Claimant suffered no bone fractures but began to experience 
 
            chronic pain in the right shoulder and neck radiating down 
 
            to the right arm.  She also experienced numbness of the 
 
            right arm, hand and fingers.  Claimant was initially treated 
 
            with medication and physical therapy and returned to work on 
 
            June 19, 1983.
 
            
 
                 However, claimant continued to experience chronic pain 
 
            and was eventually sent to an orthopedic surgeon, William 
 
            Boulden, M.D., in September of 1983.  Dr. Boulden diagnosed 
 
            right shoulder A/C joint separation and treated claimant for 
 
            this condition.  This treatment included steroid injections, 
 
            physical therapy, installation of a nerve stimulation device 
 
            and cervical traction.  When claimant appeared to improve 
 
            from the traction, Dr. Boulden released claimant to return 
 
            to work on October 10, 1983.  In November 1983, Dr. Boulden 
 
            stated that claimant would have no permanent partial impair
 
            ment from the injury stating that a home traction unit which 
 
            he prescribed would eventually correct the problem.  
 
            Claimant returned to Dr. Boulden in January 1984 with con
 
            tinuing complaints.  Dr. Boulden then said that he was going 
 
            to try a "neuroprobe" and that if that treatment did not 
 
            work, claimant would have to consider a change of duties.  
 
            There is no other further reports in the record from Dr. 
 
            Boulden.
 
            
 
                 Claimant continued to experience right shoulder pain 
 
            and she was referred to another orthopedic surgeon, Marshall 
 
            Flapan, M.D., in February 1985.  Dr. Flapan diagnosed a 
 
            rotator cuff tear in the right shoulder and following unsuc
 
            cessful conservative treatment, Dr. Flapan surgically cor
 
            rected the tear in July 1985.  Claimant was off work from 
 
            March 14, 1985 through March 15, 1985 and from July 3, 1985 
 
            through October 20, 1985.  Dr. Flapan restricted claimant to 
 
            light duty work with a 25 pound lifting restriction when 
 
            claimant returned to work.  Dr. Flapan also advised against 
 
            the pushing and pulling of carts and against repetitive 
 
            lifting.  Claimant, however, continued to work in her 
 
            instrument cleaning job.
 
            
 
                 In March 1985, claimant began to complain to Dr. Flapan 
 
            of left shoulder pain.  Claimant reported this condition to 
 
            an insurance claims representative at approximately the same 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            time.  The employer's insurance carrier received reports 
 
            from Dr. Flapan of this condition soon after they were 
 
            prepared.
 
            
 
                 In April 1987, claimant began treating with another 
 
            orthopedic surgeon, Paul K. Ho, M.D., for her now bilateral 
 
            shoulder, neck and arm pain.  Dr. Ho diagnosed impingement 
 
            syndrome of the right shoulder, A/C joint arthritis and 
 
            myofascial pain syndrome.  Dr. Ho treated claimant with 
 
            physical therapy and medication but claimant remained on the 
 
            instrument job at Mercy.
 
            
 
                 In February 1988, claimant was evaluated by James 
 
            Nepola, M.D., an Assistant Professor in the Orthopedics 
 
            Department of the University of Iowa Hospitals and Clinics.  
 
            Dr. Nepola diagnosed bilateral shoulder impingement with 
 
            right rotator cuff tear and recommended surgery on the right 
 
            shoulder.  This surgery was performed and claimant was off 
 
            work as a result from May 13, 1988 through June 23, 1989.  
 
            When he released claimant to return to work, Dr. Nepola 
 
            imposed a restriction against repetitive lifting with the 
 
            right upper extremity due to the right shoulder problem.
 
            
 
                 As a result of her fall at work on May 17, 1983, 
 
            claimant has a six percent permanent partial impairment to 
 
            the body as a whole.  This finding is based upon the views 
 
            of Dr. Nepola who was the most recent treating physician.  
 
            Dr. Nepola also opined that the right shoulder impingement 
 
            was causally connection to the original fall injury of May 
 
            17, 1983.  Dr. Boulden's contrary opinion concerning perma
 
            nent partial impairment was rendered long ago and was based 
 
            upon the assumption that claimant's continuing problems 
 
            would be corrected by the cervical traction device he pre
 
            scribed.  This did not occur.
 
            
 
                 Claimant also suffers from a five percent permanent 
 
            partial impairment to the body as a whole from her left 
 
            shoulder problem.  However, claimant did not establish that 
 
            this condition was due to the fall at work in 1983 or due to 
 
            repetitive trauma.  Claimant is basing her claim of repeti
 
            tive trauma on the report dated June 29, 1989, by Robert 
 
            McLain, D.O., who was apparently acting for Dr. Nepola.  Dr. 
 
            McLain stated in this report that claimant's discomfort at 
 
            the time was due to "daily stresses and strains of employ
 
            ment."  However, in the same report Dr. McLain had discussed 
 
            that claimant would be suffering occasional discomfort when 
 
            she used her right arm above shoulder level.  It appears 
 
            from a reading of the entire report that Dr. McLain was not 
 
            causally connecting all of claimant's problems to her work.  
 
            He appears to be simply explaining the cause of her current 
 
            discomfort while performing her current job.  Therefore, 
 
            absent a supportive opinion from a physician, a finding 
 
            could not be made that the left shoulder condition, occur
 
            ring almost three years after the injury, was causally 
 
            related to that injury.  The lack of a finding that the left 
 
            shoulder condition is work related does not affect the award 
 
            of temporary total disability benefits in this case as it 
 
            does not appear that any of these times off work were due to 
 
            the left shoulder problems but due primarily to the right 
 
            shoulder problems.
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            
 
                 As a result of the work injury of May 17, 1983, 
 
            claimant has suffered only a ten percent loss of earning 
 
            capacity.  Claimant's work restrictions against lifting over 
 
            20 pounds and against repetitive lifting is due primarily to 
 
            the right shoulder condition.  Although claimant has some 
 
            disability due to the left shoulder problems, this is minor 
 
            compared to the right shoulder problems.  Claimant is 50 
 
            years of age and has only a formal eleventh grade education.  
 
            However, claimant has earned her GED.  Claimant's past 
 
            employment has been as a waitress, cook and as a salesclerk 
 
            in addition to her duties at Mercy.  Claimant is physically 
 
            capable of returning to much of the type of work she per
 
            formed prior to her employment at Mercy.  Claimant has 
 
            changed jobs as a result of the right shoulder problems but 
 
            this has not resulted in a loss of income.  Mercy is accom
 
            modating satisfactorily for claimant's disability.  Claimant 
 
            appears to have low potential for vocational rehabilitation 
 
            but such rehabilitation is unnecessary at this time as 
 
            claimant's employment appears suitable and stable.
 
            
 
                                conclusions of law
 
            
 
                   I.  Claimant has the burden of proving by a prepon
 
            derance of the evidence that claimant received an injury 
 
            which arose out of and in the course of employment.  The 
 
            words "out of" refer to the cause or source of the injury.  
 
            The words "in the course of" refer to the time and place and 
 
            circumstances of the injury.  See Cedar Rapids Community 
 
            Sch. v. Cady, 278 N.W.2d 298 (Iowa 1979); Crowe v. DeSoto 
 
            Consol. Sch. Dist., 246 Iowa 402, 68 N.W.2d 63 (1955).  An 
 
            employer takes an employee subject to any active or dormant 
 
            health impairments, and a work connected injury which more 
 
            than slightly aggravates the condition is considered to be a 
 
            personal injury.  Ziegler v. United States Gypsum Co., 252 
 
            Iowa 613, 620, 106 N.W.2d 591 (1960) and cases cited 
 
            therein.
 
            
 
                 In the case sub judice, claimant failed to show by a 
 
            preponderance of the evidence that the left shoulder prob
 
            lems arose out of and in the course of her employment at 
 
            Mercy.
 
            
 
                  II.  The affirmative defenses of untimeliness and lack 
 
            of notice involves the alleged left shoulder injury.  As 
 
            claimant failed to show that the left shoulder problems were 
 
            work related, these affirmative defensives are moot.
 
            
 
                 III.  Claimant must establish by a preponderance of the 
 
            evidence the extent of weekly benefits for permanent dis
 
            ability to which claimant is entitled.  As the claimant has 
 
            shown that the work injury was a cause of a permanent physi
 
            cal impairment or limitation upon activity involving the 
 
            body as a whole, the degree of permanent disability must be 
 
            measured pursuant to Iowa Code section 85.34(2)(u).  
 
            However, unlike scheduled member disabilities, the degree of 
 
            disability under this provision is not measured solely by 
 
            the extent of a functional impairment or loss of use of a 
 
            body member.  A disability to the body as a whole or an 
 
            "industrial disability" is a loss of earning capacity 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            resulting from the work injury.  Diederich v. Tri-City 
 
            Railway Co., 219 Iowa 587, 593, 258 N.W. 899 (1935).  A 
 
            physical impairment or restriction on work activity may or 
 
            may not result in such a loss of earning capacity.  The 
 
            extent to which a work injury and a resulting medical condi
 
            tion has resulted in an industrial disability is determined 
 
            from examination of several factors.  These factors include 
 
            the employee's medical condition prior to the injury, imme
 
            diately 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.  Olson v. Goodyear Service Stores, 255 Iowa 1112, 
 
            1121, 125 N.W.2d 251, 257 (1963).  See Peterson v. Truck 
 
            Haven Cafe, Inc., (Appeal Decision, February 28, l985).
 
            
 
                 In the case sub judice, it was found that claimant has 
 
            suffered a ten percent loss of earning capacity as a result 
 
            of the work injury.  Based upon such a finding, claimant is 
 
            entitled as a matter of law to 50 weeks of permanent partial 
 
            disability benefits under Iowa Code section 85.34(2)(u) 
 
            which is ten percent of 500 weeks, the maximum allowable for 
 
            an injury to the body as a whole in that subsection.
 
            
 
                 Under Iowa Code section 85.34(l), claimant is entitled 
 
            to healing period benefits from the time she was off work as 
 
            set forth in the prehearing report.  This totals 80 2/7 
 
            weeks and such will be awarded.  Claimant's healing period 
 
            ended when she returned to work on June 24, 1990.
 
            
 
                  IV.  The requested medical expenses involve treatment 
 
            for the left shoulder.  As this was not found work related, 
 
            the expense cannot be awarded.
 
            
 
                                      order
 
            
 
                 1.  Defendants shall pay to claimant fifty (50) weeks 
 
            of permanent partial disability benefits at the rate of one 
 
            hundred seventy-seven and 16/l00 dollars ($177.16) per week 
 
            from June 24, 1989.
 
            
 
                 2.  Defendants shall pay to claimant healing period 
 
            benefits at the rate of one hundred seventy-seven and 16/l00 
 
            dollars ($177.16) per week for the time period set forth in 
 
            the prehearing report which totals eighty and two-sevenths 
 
            (80 2/7) weeks.
 
            
 
                 3.  Defendants shall pay accrued weekly benefits in a 
 
            lump sum and shall receive credit against this award for 
 
            weekly benefits previously paid.
 
            
 
                 4.  Defendants shall pay the interest on weekly bene
 
            fits awarded herein as set forth in Iowa Code section 85.30.
 
            
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
                 5.  Defendants shall pay the cost of this action pur
 
            suant to Division of Industrial Services Rule 343-4.33.
 
            
 
                 6.  Defendants shall file activity reports on the pay
 
            ment of this award as requested by this agency pursuant to 
 
            Division of Industrial Services Rule 343-3.1.
 
            
 
            
 
                 Signed and filed this ____ day of August, 1990.
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          LARRY P. WALSHIRE
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            
 
            
 
            
 
            
 
            Copies To:
 
            
 
            Mr. Kenneth B. Thomson
 
            Attorney at Law
 
            1000 - 73rd St
 
            Suite 10  Westgate Plaza
 
            Des Moines  IA  50311
 
            
 
            Mr. Glenn Goodwin
 
            Attorney at Law
 
            4th Flr Equitable Bldg
 
            Des Moines  IA  50309
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                    5-1803
 
                                                    Filed August 2, 1990
 
                                                    LARRY P. WALSHIRE
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                            :
 
            SANDRA CORBIN,                  :
 
                                            :
 
                 Claimant,                  :
 
                                            :
 
            vs.                             :
 
                                            :        File No. 733687
 
            MERCY HOSPITAL MEDICAL CENTER,  :
 
                                            :     A R B I T R A T I O N
 
                 Employer,                  :
 
                                            :        D E C I S I O N
 
            and                             :
 
                                            :
 
            AETNA CASUALTY & SURETY COMPANY,:
 
                                            :
 
                 Insurance Carrier,         :
 
                 Defendants.                :
 
            ___________________________________________________________
 
            
 
            
 
            
 
                 5-1803 - Extent of disability benefits.