BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
        
 
        
 
        RONALD LEE MILLER,
 
        
 
            Claimant,                   File No. 750109
 
        
 
        vs.                                 A P P E A L
 
        
 
        CITY OF DAVENPORT,               D E C I S I O N
 
        
 
            Employer,
 
            Self-Insured,
 
            Defendant.
 
        
 
                                 STATEMENT OF THE CASE
 
        
 
        Claimant appeals from an arbitration decision awarding permanent 
 
        partial disability benefits.
 
        
 
        The record on appeal consists of the transcript of the 
 
        arbitration proceeding and joint exhibits 1 through 12. Both 
 
        parties filed briefs on appeal.
 
        
 
                                      ISSUE
 
        
 
        Claimant states the following issue on appeal: "The evidence, 
 
        taken as a whole, does not support the deputy's finding of only 5 
 
        percent industrial disability."
 
        
 
         The arbitration decision adequately and accurately reflects the 
 
        pertinent evidence and it will not be set forth herein.
 
        
 
                                 APPLICABLE LAW
 
        
 
        The citations of law in the arbitration decision are appropriate 
 
        to the issue and the evidence.
 
        
 
                                      ANALYSIS
 
        
 
        The analysis of the evidence in conjunction with the law is 
 
        adopted.
 
        
 
                                 FINDINGS OF FACT
 
        
 
        1. Claimant was a sanitation worker for the city of Davenport on 
 
        November 10, 1983.
 
        
 
        MILLER v. CITY OF DAVENPORT
 
        Page 2
 
        
 
        
 
        2. Claimant injured his back at work on November 10, 1983 when a 
 
        refrigerator struck his low back.
 
        
 
        3. Claimant aggravated his back in March 1984 in an attempt to 
 
        return to his work as a sanitation engineer.
 
        
 
        4. Claimant had preexisting back complaints but no long-term 
 
        disability prior to his November 1983 work injury.
 
        
 
        5. Claimant now has little or no objective neurological or other 
 
        medical findings; claimant has moderate subjective findings 
 

 
        
 
 
 
 
 
        generally of pain resulting from chronic muscle strain.
 
        
 
        6. Claimant has not been assigned a permanent partial impairment 
 
        rating but physicians agree he cannot return to one hundred 
 
        percent normal functioning.
 
        
 
        7. Claimant was able to perform his duties as a sanitation worker 
 
        prior to November 10, 1983.
 
        
 
        8. Claimant's unwillingness to pursue an aggressive physical 
 
        fitness program is a significant factor in his continuing 
 
        problems and demonstrates a lack of motivation to rehabilitate 
 
        himself.
 
        
 
        9. Claimant was 36 years old at the time of the hearing and has a 
 
        work history as a heavy manual laborer.
 
        
 
        10. Claimant completed ninth grade and has obtained a GED.
 
        
 
        11. Claimant has no restrictions on walking, standing, or 
 
        sitting.
 
        
 
        12. Claimant has a 35 pound lifting restriction and has 
 
        restrictions on bending, stooping and carrying.
 
        
 
        13. Claimant's employer has retained him in city work and is 
 
        committed to retaining him in city work.
 
        
 
        14. Claimant has not attempted vocational rehabilitation.
 
        
 
        15. Claimant has been able to perform job duties assigned him 
 
        since his injury although he has experienced discomfort on 
 
        entering and exiting vehicles.
 
        
 
        16. Claimant is earning more now than he earned when injured and 
 
        more than a city sanitation worker with ten years of city 
 
        employment earns.
 
        
 
        17. Claimant has been a city employee for twelve years.
 
        
 
        18. Claimant would have less access to non-city jobs than
 
        
 
        MILLER v. CITY OF DAVENPORT
 
        Page 3
 
        
 
        
 
        would a noninjured worker.
 
        
 
                                 CONCLUSIONS OF LAW
 
        
 
        Claimant has established a causal relationship between his injury 
 
        of November 10, 1983 and the permanent partial disability on 
 
        which he bases his claim.
 
        
 
        Claimant has established an entitlement to an industrial 
 
        disability of five percent on account of his injury.
 
        
 
        WHEREFORE, the decision of the deputy is affirmed.
 
        
 
                                      ORDER
 
                                                
 
        THEREFORE, it is ordered:
 
        
 
        That defendant pay claimant permanent partial disability benefits 
 
        for twenty-five (25) weeks at the rate of two hundred ten and 
 
        83/100 dollars ($210.83). Defendant receive credit in the amount 
 

 
        
 
 
 
 
 
        of three thousand one hundred thirty-eight and 40/100 dollars 
 
        ($3,138.40) as stipulated by the parties.
 
        
 
        That defendant pay any accrued amounts in a lump sum.
 
        
 
        That defendant pay interest pursuant to section 85.30.
 
        
 
        That claimant pay the costs of the appeal including the cost of 
 
        the transcription of the hearing proceeding.
 
        
 
        That defendant file claim activity reports as required by the 
 
        agency.
 
        
 
        
 
        Signed and filed this 30th day of September, 1988.
 
        
 
        
 
        
 
                                          DAVID E. LINQUIST
 
                                       INDUSTRIAL COMMISSIONER
 
        
 
        
 
 
            
 
 
 
 
 
 
 
         
 
                     
 
                      BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         
 
         RONALD LEE MILLER,
 
         
 
              Claimant,                            File No. 750109
 
         
 
         VS.
 
                                                A R B I T R A T I 0 N
 
         CITY OF DAVENPORT,
 
          
 
              Employer,                            D E C I S I 0 N
 
              Self-Insured,
 
              Defendant.
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding in arbitration brought by the claimant, 
 
         Ronald Lee Miller, against his self-insured employer, the City of 
 
         Davenport, to recover benefits under the Iowa Workers' 
 
         Compensation Act, as a result of an injury sustained November 10, 
 
         1983.  This matter came on for hearing before the undersigned 
 
         deputy industrial commissioner in Davenport, Iowa, on May 18, 
 
         1987.  A first report of injury was filed on November 17, 1983.
 
         
 
              The record in this proceeding consists of the testimony of 
 
         claimant, of William Case, and of David Geisler, as well as of 
 
         joint exhibits 1 through 12.
 
         
 
                                      ISSUES
 
         
 
              Pursuant to the prehearing report, the parties stipulated 
 
         that claimant's rate of weekly compensation is $210.83; that the 
 
         commencement date for any permanent partial disability award is 
 
         January 5, 1985; that all healing period or temporary total 
 
         disability which was stipulated to be causally related to 
 
         claimant's work injury has been paid; that claimant did receive 
 
         an injury which arose out of and in the course of his employment 
 
         on the injury date; and that defendant is entitled to a credit of 
 
         $3,138.40 against any permanent partial disability benefits 
 
         awarded claimant.  The issues remaining for resolution are:
 
         
 
              1)  Whether a causal relationship exists between claimant's
 
         injury and claimed permanent partial disability;
 
         
 
              2)  Whether claimant is entitled to permanent partial
 
         disability benefits; and
 
         
 
              3)  The affirmative claimant's failure to mitigate damages.
 
         
 
         
 
                              REVIEW OF THE EVIDENCE
 
         
 
              Claimant testified that he is 36 years old and has completed 
 
         ninth grade and has obtained a GED.  Claimant's work history 
 
         consists of factory labor, fire fighting, combat soldiering, and 
 
         worked for the City of Davenport as a street department, sewage 
 
         department, and sanitation department worker.  All past work 
 

 
         
 
         
 
         
 
         MILLER V. CITY OF DAVENPORT
 
         Page   2
 
         
 
         
 
         involved heavy labor with lifting of to 100 pounds and walking, 
 
         carrying, bending, and stooping.   Claimant was employed in the 
 
         sanitation department on November 10, 1983 when he was injured 
 
         when a refrigerator struck him in the low back and, apparently 
 
         his head, while he was picking up discarded appliances.  Claimant 
 
         was then off work with conservative medical treatment for 
 
         approximately two months.  He returned to work with a light duty 
 
         restriction involving no prolonged standing, stooping, lifting, 
 
         or bending.  Claimant aggravated his back condition in March 1984 
 
         while loading garbage.  Claimant subsequently was off work for 
 
         one and one-half years.
 
         
 
              Claimant returned to work for the city initially working as 
 
         a meter collector.  Claimant collected coins, counted, rolled and 
 
         wrapped them.  Claimant subsequently worked as a meter checker in 
 
         the traffic department.  Claimant reported that he had back pain 
 
         on entering and exiting cars, but otherwise could do that work.  
 
         Claimant is now a swing man in the parking system.  As such, he 
 
         answers phones and takes complaints regarding needed meter 
 
         repairs.  Claimant refused an offered job in the city maintenance 
 
         department with the city as he believed it involved work 
 
         shoveling and lifting sheet rock.
 
         
 
              Claimant agreed he has not sought vocational rehabilitation 
 
         and characterized himself as happy where he is now.  Claimant 
 
         agreed that he irregularly does exercises his physicians 
 
         prescribed and admitted that he had fallen off in performing 
 
         these until physicians advised him to keep them up.  He had not 
 
         done them for several weeks prior to hearing.  Claimant also 
 
         stated that his doctors have advised weight loss and that he is 
 
         now on a 1200 calory diet per his family physician.  He stated he 
 
         has carried his current weight of around 200 pounds since 1975.
 
         
 
              Some disagreement exists in the record as to whether 
 
         claimant has discontinued restoring old cars because of his back.  
 
         Claimant agreed that in his deposition he had stated that he had 
 
         finished an older Chevrolet vehicle and then sold it and was 
 
         uncertain whether his back was a factor in that decision.  He 
 
         later stated that the car required only minimal work and that he 
 
         had not completed another vehicle requiring much more work.
 
         
 
              Claimant's rate of pay at his injury date was $8.08 per 
 
         hour.  He now receives $8.76 per hour.  A sanitation worker with 
 
         ten years' experience now earns $8.66 per hour.  Claimant 
 
         apparently has been employed by the city for approximately twelve 
 
         years.
 
         
 
              William Case, superintendent of the parking system for the 
 
         City of Davenport, testified that he is claimant's supervisor and 
 
         sees claimant daily.  He agreed claimant has difficulty entering 
 
         and exiting vehicles but was capable of walking his meter 
 
         checking beats.  He characterized claimant as now a backup meter 
 
         checker who is on beat only when other checkers are off work.  
 
         Claimant otherwise does clerical work in the meter shop.  Mr. 
 
         Case characterized him as doing this work satisfactorily.  It 
 
         involves no heavy lifting.
 
         
 
              David Geisler, personnel generalist for the City of 
 
         Davenport, monitors workers' compensation cases and is familiar 
 

 
         
 
         
 
         
 
         MILLER V. CITY OF DAVENPORT
 
         Page   3
 
         
 
         
 
         with claimant and claimant's case.  He reported that the 
 
         personnel department recommended, and the city administrator 
 
         approved, that claimant remain with the city and the city 
 
         continue to provide claimant employment at or above his pay rate 
 
         as of his injury date, if at possible, even if that required a 
 
         subsidized job.  The city's philosophy generally is to eliminate 
 
         jobs subsidized in the general fund, which jobs are not revenue 
 
         producing.  Mr. Geisler stated that he, therefore, is trying to 
 
         find other jobs in which to place claimant.  He reported that 
 
         claimant will have a job with the city if possible, but that 
 
         claimant's position is subject to the same contingencies as that 
 
         of other workers.  Additionally, jobs must be available within 
 
         claimant's limitations.  Geisler stated he is familiar with 
 
         claimant's medical background and feels there are a number of 
 
         jobs for which claimant could be considered.  He reported that he 
 
         had interviewed claimant for a trade helper position but that 
 
         claimant had not been provided the job after claimant expressed 
 
         feelings of being unable to physically handle the job.
 
         
 
              Medical records indicate that claimant had low back 
 
         discomfort complaints on May 16, 1977, December 29, 1978, 
 
         November 8, 1979, and September 30, 1983, prior to his work 
 
         injury.
 
         
 
              Gordon A. Flynn, M.D., treated claimant on November 10, 1983 
 
         for complaints of low back pain as well as abdominal and scrotum 
 
         pain.  Examination revealed mainly tenderness over the left 
 
         sacroiliac and gluteal area as well as of the lower abdomen.  
 
         X-rays showed no fractures or other abnormalities.  Diagnosis as 
 
         of November 14, 1983 was of contusion plus an acute low back 
 
         strain.  On November 18, 1983, Dr. Flynn referred claimant to 
 
         Eugene Collins, M.D., a neurosurgeon.  Claimant reappeared at Dr. 
 
         Flynn's office on March 26, 1984 after doing some lifting at work 
 
         on March 20, 1984 and spraining his lower back.  Findings were 
 
         essentially those of a low back sprain with tenderness of the 
 
         paravertebral muscles, particularly on the right.  Claimant was 
 
         then referred to Dr. Collins.  In a report of June 4, 1984, Dr. 
 
         Flynn reported that he last saw claimant on May 14, 1984 with 
 
         symptoms largely resolved.  He reported that claimant had serious 
 
         doubts of his ability to return to the work he had previously 
 
         done and that the doctor could only "in part concur with that 
 
         assessment."
 
         
 
              Dr. Collins reported that neurological examinations after 
 
         the November 1983 and March 1984 incidents revealed decreased 
 
         range of motion of the lower back in all directions as well as 
 
         loss of lordosis and paraspinal tenderness.  No discreet focal 
 
         neurological deficit was present.  A CT of the lumbar spine was 
 
         within normal limits.  After March 1984, claimant was placed on a 
 
         physical therapy and exercise program with satisfactory results 
 
         obtained.  Claimant was seen by Dr. Collins on October 28, 1984 
 
         where physical examination documented a satisfactory range of 
 
         motion with no complaints of pain.  Neurological examination 
 
         remained objectively intact.  Dr. Collins felt that claimant had 
 
         a deconditioned low back or a chronic low back strain which is 
 
         exacerbated by activities such as heavy lifting, bending, 
 
         pushing, pulling, etc.  He felt claimant may not be able to 
 
         function in a job that involved those activities but may do quite 
 
         well in a more sedentary position.
 

 
         
 
         
 
         
 
         MILLER V. CITY OF DAVENPORT
 
         Page   4
 
         
 
         
 
         
 
              Robert J. Chesser, M.D., examined claimant on May 31, 1985. 
 
          He reported that claimant's symptoms [likely] were due to an 
 
         ongoing muscle strain with nothing found to indicate neurological 
 
         deficit or bony abnormality.  He recommended an exercise program 
 
         for claimant to promote lumbar flexion, hamstring stretching and 
 
         abdominal and back extensor strengthening.  He reported that he 
 
         could see nothing to indicate any permanent impairment.  He later 
 
         clarified by stating that while nothing could objectively account 
 
         for claimant's ongoing pain, frequently problems with chronic 
 
         muscle strain may produce ongoing symptoms.
 
         
 
              W. J. Robb, M.D., examined claimant on August 18, 1985.  His 
 
         diagnosis was of recurring mild lumbar strain.  Straight leg 
 
         raising was essentially normal; neurological examination was 
 
         within normal limits.  He felt that claimant's condition was 
 
         stabilized and did not anticipate any deterioration because of 
 
         the November 1983 injury nor appreciable improvement.  He stated 
 
         that claimant's lack of participation in exercises and in an 
 
         aggressive program of physical fitness would play a significant 
 
         role in his lack of improvement or recovery of excellent function 
 
         of the lumbosacral spine.  He reported that objective findings 
 
         were virtually absent while the subjective findings were 
 
         moderate.  He reported that, particularly in the face of 
 
         claimant's lack of aggressive physical fitness, claimant should 
 
         have no restrictions on his walking or his standing, but that 
 
         repetitive bending or stooping should be limited to one-half hour 
 
         at a time, lifting to not exceed 35 pounds, and sitting not 
 
         restricted.
 
         
 
              In his deposition taken February 21, 1986, Dr. Chesser 
 
         identified himself as the attending psychiatrist and medical 
 
         director of the rehabilitation unit of the Franciscan 
 
         Rehabilitation Center.  He opined that, with an exercise program, 
 
         claimant should be able to be rehabilitated to the point where 
 
         claimant has no permanent partial 'disability'; that even though 
 
         such program would not cure his chronic muscle strain, it would 
 
         reduce its impingement on claimant's daily activities.  The 
 
         doctor later stated that claimant's prognosis was guarded for 
 
         significant improvement, however, given the fact that claimant 
 
         had been symptomatic for several years.  The doctor opined that 
 
         it was reasonable for claimant not to be able to return to heavy 
 
         lifting, bending, or carrying on an eight hour per day basis if 
 
         claimant's symptomatology of chronic muscle strain continued.
 
         
 
              In his deposition of February 24, 1987, Dr. Robb identified 
 
         himself as a board certified orthopedic surgeon.  He defined 
 
         heavy lifting as lifting of 75 pounds or more occasionally and 
 
         lifting 50 pounds or more repetitively.  He reported that a 
 
         prolonged period of rehabilitation consisting of exercise and 
 
         whole body physical fitness would be required to correct a 
 
         condition such as claimant's.  He reported that healing of 
 
         claimant's condition will generally take place within four to six 
 
         months but that restoration of function results from 
 
         reconditioning following the injury.  He agreed that claimant is 
 
         currently unable to lift weights of 35 to 100 pounds as required 
 
         of a garbage man and is unable to return to heavy labor 
 
         employment without an aggressive physical fitness program.  He 
 
         characterized claimant as not strongly motivated, but not as a 
 

 
         
 
         
 
         
 
         MILLER V. CITY OF DAVENPORT
 
         Page   5
 
         
 
         
 
         malingerer.  He reported that he could not rate claimant under 
 
         the AMA Guides, but stated claimant cannot return to 100 percent 
 
         normal functioning.
 
         
 
              In a vocational rehabilitation report of May 14, 1987, Doug 
 
         Nelson, rehabilitation consultant, concluded that prior to 
 
         claimant's injury, claimant had access to approximately 40 
 
         percent of occupations requiring a high school equivalency for an 
 
         entry level position.  He reported that following the injury with 
 
         his reduced functional capacity, claimant retained access to 
 
         approximately 23 percent of such jobs, thereby losing, 
 
         approximately 17 percent of his access to realistic and feasible 
 
         employment alternatives.  Mr. Nelson stated that claimant's loss 
 
         of access to the employment market is then 42 percent.  He 
 
         further stated that claimant needs to upgrade his skills for jobs 
 
         seeking and interviewing as he has not appropriately learned how 
 
         to accept and express his residual functioning capacity.
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury of November 10, 1983 is causally 
 
         related to the disability on which he now bases his claim.  
 
         Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).  
 
         Lindahl v. L. O. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945).  A 
 
         possibility is insufficient; a probability is necessary.  Burt v. 
 
         John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 
 
         (1955).  The question of causal connection is essentially within 
 
         the domain of expert testimony.  Bradshaw v. Iowa Methodist 
 
         Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960).
 
         
 
              However, expert medical evidence must be considered with all 
 
         other evidence introduced bearing on the causal connection.  
 
         Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion of experts need 
 
         not be couched in definite, positive or unequivocal language.  
 
         Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974).  However, 
 
         the expert opinion may be accepted or rejected, in whole or in 
 
         part, by the trier of fact.  Id. at 907.  Further, the weight to 
 
         be given to such an opinion is for the finder of fact, and that 
 
         may be affected by the completeness of the premise given the 
 
         expert and other surrounding circumstances.  Bodish, 257 Iowa 
 
         516, 133 N.W.2d 867.  See also Musselman v. Central Telephone 
 
         Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
              While a claimant is not entitled to compensation for the 
 
         results of a preexisting injury or disease, the mere existence at 
 
         the time of a subsequent injury is not a defense.  Rose v. John 
 
         Deere Ottumwa Works, 247 Iowa 900, 908, 76 N.W.2d 756, 760-761 
 
         (1956).  If the claimant had a preexisting condition or 
 
         disability that is aggravated, accelerated, worsened or lighted 
 
         up so that it results in disability, claimant is entitled to 
 
         recover.  Nicks v. Davenport Produce Co., 254 Iowa 130, 115 
 
         N.W.2d 812, 815 (1962).
 
         
 
              The medical evidence generally reflects that claimant had 
 
         had some preexisting back complaints but no long term disability 
 
         from these prior to his November 1983 incident.  Medical evidence 
 
         also suggests that there are little or no objective findings at 
 
         this time but moderate subjective findings.  Likewise, medical 
 

 
         
 
         
 
         
 
         MILLER V. CITY OF DAVENPORT
 
         Page   6
 
         
 
         
 
         evidence suggests that there is no permanent partial impairment 
 
         to claimant but for that resulting from pain related to chronic 
 
         muscle strain.  All physicians appear to agree that claimant's 
 
         unwillingness to pursue an aggressive physical fitness program is 
 
         a significant factor in his continuing problems.  No physician 
 
         has expressly stated that claimant's current condition results 
 
         from either the November 1983 incident or the March 1984 
 
         aggravation of the preexisting condition.  It appears, however, 
 
         that claimant was able to carry out his duties as a sanitation 
 
         worker prior to the November injury and the March aggravation.  
 
         We find, therefore, that the injury and the aggravation were 
 
         factors causally related to claimant's present condition.  We 
 
         also find, however, that claimant's lack of motivation to 
 
         rehabilitate himself is a factor in his condition.  That factor 
 
         is properly considered in assessing claimant's permanent partial 
 
         disability.
 
         
 
              We now consider the issue of permanent partial disability 
 
         benefit entitlement.
 
         
 
         
 
         
 
         
 
              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, 125 N.W.2d 251 (1963).  
 

 
         
 
         
 
         
 
         MILLER V. CITY OF DAVENPORT
 
         Page   7
 
         
 
         
 
         Barton v. Nevada Poultry, 253 Iowa 285, 110 N.W.2d 660 (1961).
 
         
 
               A finding of impairment to the body as a whole found by a 
 
         medical evaluator does not equate to industrial disability.  This 
 
         is so as impairment and disability are not synonymous.  Degree of 
 
         industrial disability can in fact be much different than the 
 
         degree of impairment because in the first instance reference is 
 
         to loss of earning capacity and in the later to anatomical or 
 
         functional abnormality or loss.  Although loss of function is to 
 
         be considered and disability can rarely be found without it, it 
 
         is not so that a degree of industrial disability is 
 
         proportionally related to a degree of impairment of bodily 
 
         function.
 
         
 
              Factors to be considered in determining industrial 
 
         disability include the employee's medical condition prior to the 
 
         injury, immediately after the injury, and presently; the situs of 
 
         the injury, its severity and the length of healing period; the 
 
         work experience of the employee prior to the injury, after the 
 
         injury and potential for rehabilitation; the employee's 
 
         qualifications intellectually, emotionally and physically; 
 
         earnings prior and subsequent to the injury; age; education; 
 
         motivation; functional impairment as a result of the injury; and 
 
         inability because of the injury to engage in employment for which 
 
         the employee is fitted.  Loss of earnings caused by a job 
 
         transfer for reasons related to the injury is also relevant.  
 
         These are matters which the finder of fact considers collectively 
 
         in arriving at the determination of the degree of industrial 
 
         disability.
 
         
 
              There are no weighting guidelines that indicate how each of 
 
         the factors are to be considered.  There are no guidelines which 
 
         give, for example, age a weighted value of ten percent of the 
 
         total value, education a value of fifteen percent of total, 
 
         motivation - five percent; work experience - thirty percent, etc.  
 
         Neither does a rating of functional impairment directly correlate 
 
         to a degree of industrial disability to the body as a whole.  In 
 
         other words, there are no formulae which can be applied and then 
 
         added UP to determine the degree of industrial disability.  It 
 
         therefore becomes necessary for the deputy or commissioner to 
 
         draw upon prior experience, general and specialized knowledge to 
 
         make the finding with regard to degree of industrial disability.  
 
         See Peterson v. Truck Haven Cafe, Inc., (Appeal Decision, 
 
         February 28, 1985); Christensen v. Hagen, Inc., (Appeal Decision, 
 
         March 26, 1985).
 
         
 
         
 
              Claimant is a relatively younger worker and while he has not 
 
         completed high school, has obtained a GED.  He is not strongly 
 
         motivated either to seek vocational rehabilitation or to restore 
 
         his own functional capacity.  He has restrictions which preclude 
 
         his doing heavy lifting or being involved in bending or stooping. 
 
          He apparently has no restrictions on walking, standing, or 
 
         sitting.  Claimant's employer has done a commendable job of 
 
         retaining him in positions available and appears strongly 
 
         motivated to continue to retain claimant.  Claimant's earnings 
 
         now are greater than his earnings on his injury date and greater 
 
         than he would be earning were he still retained in the position 
 
         he held at that time.  Claimant is performing satisfactorily in 
 

 
         
 
         
 
         
 
         MILLER V. CITY OF DAVENPORT
 
         Page   8
 
         
 
         
 
         the position he now holds.  His employer continues to search for 
 
         positions within city government which would be in less jeopardy 
 
         for claimant than his current general fund subsidized position.  
 
         Claimant has no permanent partial impairment rating, but 
 
         physicians agree that he cannot return to 100 percent normal 
 
         functioning given the prolonged time following his actual injury 
 
         in which he has continued to be symptomatic and in which he has 
 
         not completed any type of aggressive rehabilitation program.  
 
         That fact likely precludes claimant's easily finding employment 
 
         elsewhere should he, for personal reasons or for reasons related 
 
         to the contingencies of all workers, need to leave work with the 
 
         city.  Were that to happen, claimant's access to the job market 
 
         would be less than it would have been prior to his injury.  As 
 
         noted, part of that potential lack of access can be attributed to 
 
         the injury itself and part to claimant's lack of motivation to 
 
         engage in those recommended activities which would rehabilitate 
 
         him.  Claimant's lack of motivation and the probability of his 
 
         long term security in city employment make his loss of earning 
 
         capacity limited.  We find that claimant has sustained a 
 
         permanent partial disability of five percent on account of his 
 
         injury.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              WHEREFORE, IT IS FOUND:
 
         
 
              Claimant was a sanitation worker for the City of Davenport 
 
         on November 10, 1983.
 
         
 
              Claimant injured his back at work on November 10, 1983 when 
 
         a refrigerator struck his low back.
 
         
 
              Claimant aggravated his back in March 1984 in an attempt to 
 
         return to his work as a sanitation engineer.
 
         
 
              Claimant had preexisting back complaints but no long-term 
 
         disability prior to his November 1983 work injury.
 
         
 
         
 
              Claimant now has little or no objective neurological or 
 
         other medical findings; claimant has moderate subjective findings 
 
         generally of pain resulting from chronic muscle strain.
 
         
 
              Claimant has not been assigned a permanent partial 
 
         impairment rating but physicians agree he cannot return to one 
 
         hundred Percent normal functioning.
 
         
 
              Claimant was able to perform his duties as a sanitation 
 
         worker prior to November 10, 1983.
 
         
 
              Claimant's unwillingness to pursue an aggressive physical 
 
         fitness program is a significant factor in his continuing 
 
         problems and demonstrates a lack of motivation to rehabilitate 
 
         himself.
 
         
 
              Claimant is 36 years old and has a work history as a heavy 
 
         manual laborer.
 
         
 
              Claimant completed ninth grade and has obtained a GED.
 

 
         
 
         
 
         
 
         MILLER V. CITY OF DAVENPORT
 
         Page   9
 
         
 
         
 
         
 
              Claimant has no restrictions on walking, standing, or 
 
         sitting.
 
         
 
              Claimant has a 35 pound lifting restriction and has 
 
         restrictions on bending, stooping and carrying.
 
         
 
              Claimant's employer has retained him in city work and is 
 
         committed to retaining him in city work.
 
         
 
              Claimant is comfortable where he is at now and has not 
 
         attempted vocational rehabilitation.
 
         
 
              Claimant has been able to perform job duties assigned him 
 
         since his injury although he has experienced discomfort on 
 
         entering and exiting vehicles.
 
         
 
              Claimant is earning more now than he earned when injured and 
 
         more than a city sanitation worker with ten years of city 
 
         employment earns.
 
         
 
              Claimant has been a city employee for twelve years.
 
         
 
              Claimant would have less access to non-city jobs than would 
 
         a noninjured worker.
 
         
 
              Claimant's lack of motivation is also a factor in any lack 
 
         of access to non-city jobs.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              THEREFORE, IT IS CONCLUDED:
 
         
 
              Claimant has established a causal relationship between his 
 
         injury of November 10, 1983 and the permanent partial disability 
 
         on which he bases his claim.
 
         
 
         
 
              Claimant has established an entitlement to permanent partial 
 
         disability on account of his injury of five percent (5%).
 
         
 
                                      ORDER
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              Defendant pay claimant permanent partial disability benefits 
 
         for twenty-five (25) weeks at the rate of two hundred ten and 
 
         83/100 dollars ($210.83). Defendant receive credit in the amount 
 
         of three thousand one hundred thirty-eight and 40/100 dollars 
 
         ($3,138.40) as stipulated by the parties.
 
         
 
              Defendants pay any accrued amounts in a lump sum.
 
         
 
              Defendants pay interest pursuant to section 85.30.
 
         
 
              Defendant and claimant pay costs pursuant to Division of 
 
         Industrial Services Rule 343-4.33.
 
         
 
              Defendants file claim activity reports as required by the 
 

 
         
 
         
 
         
 
         MILLER V. CITY OF DAVENPORT
 
         Page  10
 
         
 
         
 
         agency.
 
         
 
              Signed and filed this 10th day of July, 1987.
 
         
 
         
 
         
 
         
 
                                          HELEN JEAN WALLESER
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
          
 
          Copies to:
 
          
 
          Mr. J. E. Tobey.III
 
          Attorney at Law
 
          512 E. Locust Street
 
          Davenport, Iowa 52801
 
          
 
          Mr. Steven C. Lussier
 
          Attorney at Law
 
          Legal Department
 
          City Hall
 
          226 West Fourth Street
 
          Davenport, Iowa 52801
 
         
 
         
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                 1803
 
                                                 Filed 7-10-87
 
                                                 Helen Jean Walleser
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         
 
         RONALD LEE MILLER,
 
         
 
              Claimant,                             File No. 750109
 
         VS.
 
                                                  A R B I T R A T I 0 N 
 
         CITY OF DAVENPORT,
 
                                                    D E C I S I 0 N
 
              Employer,
 
              Self-Insured,
 
              Defendant.
 
         
 
         
 
                  
 
         1803
 
         
 
              Claimant, with limited motivation who was retained by 
 
         employer, awarded 5% permanent partial disability on account of 
 
         work-related chronic muscle strain.
 
 
 
         
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            DEAN TUSSING,                 :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :    File Nos. 734985/750400
 
            GEO. A. HORMEL & CO.,         :
 
                                          :          A P P E A L
 
                 Employer,                :
 
                                          :        D E C I S I O N
 
            and                           :
 
                                          :
 
            LIBERTY MUTUAL INSURANCE CO., :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 This case has been remanded by an Iowa Supreme Court 
 
            decision filed October 17, 1990.  The supreme court remanded 
 
            this  case "for a determination of the extent of the 
 
            claimant's permanent partial disability of the body as a 
 
            whole and related benefits."  Tussing v. George A. Hormel & 
 
            Co., 461 N.W.2d 450, 453 (Iowa 1990).
 
            
 
                 The record on remand consists of the transcript of the 
 
            arbitration proceeding, claimant's exhibits 1 through 10, 
 
            and defendants' exhibits A through J.   
 
            
 
                                      issue
 
            
 
                 The issue on remand is the extent of claimant's 
 
            permanent partial disability of the body as a whole as a 
 
            result of claimant's May 9, 1983 work-related injury to his 
 
            right shoulder.
 
            
 
                              review of the evidence
 
            
 
                 The appeal decision filed March 27, 1986 adequately and 
 
            accurately reflects the pertinent evidence and will not be 
 
            totally reiterated herein.
 
            
 
                 Claimant started working for defendant employer on 
 
            October 5, 1954 and was employed in various positions 
 
            throughout the defendant's company.  Prior to the May 9, 
 
            1983 work injury, claimant sustained numerous work-related 
 
            injuries while employed by the defendants.  The most 
 
            relevant injury occurred on June 10, 1970 when claimant 
 
            sustained a work injury to his right shoulder.  Herbert H. 
 
            Kertsen, M.D., treated claimant for this injury and opined 
 
            that claimant sustained a rupture of the right biceps 
 
            muscle.
 
            
 
                 Claimant testified that he injured his right shoulder 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            while attempting to move a hand truck on May 9, 1983.  The 
 
            hand truck became jammed and claimant gave the hand truck a 
 
            jerk to free it when he felt something in his arm hurt.  
 
            Claimant saw a medical aide on June 14, 1983 who gave 
 
            claimant pain pills and took him off work.  Claimant 
 
            continued to have pain in his right shoulder.
 
            
 
                 Claimant was treated by Kenton L. Moss, M.D., starting 
 
            on June 14, 1983 for right shoulder pain.  Dr. Moss 
 
            prescribed anti-inflammatory medication and placed claimant 
 
            on a twenty pound weight restriction.  Claimant returned two 
 
            months later with continued right shoulder pain and Dr. Moss 
 
            instructed claimant to return in ten days for a follow-up 
 
            appointment.  Claimant did not return to Dr. Moss until 
 
            December 8, 1983.  Dr. Moss referred claimant to another 
 
            physician.
 
            
 
                 Claimant was seen by Horst G. Blume, M.D., on August 2, 
 
            1983 for the pain in his right biceps.  In a letter dated 
 
            May 29, 1984 Dr. Blume opined that:
 
            
 
                 [T]he patient's right biceps muscle has been 
 
                 injured on several occasions and the recent injury 
 
                 on May 9, 1983, is an aggravation of a 
 
                 pre-existing condition.  The disability to the 
 
                 right arm is permanent and is about 20-25% to the 
 
                 arm.  This is the result of a number of accidents 
 
                 as I see the end result now.
 
            
 
            (Claimant's Exhibit 5.)
 
            
 
                 Claimant was first seen by Robert J. Weatherwax, M.D., 
 
            on February 20, 1984.  Claimant complained of bilateral 
 
            shoulder pain.  Claimant underwent arthroscopic surgery 
 
            which confirmed Dr. Weatherwax's opinion that claimant 
 
            sustained a rotator cuff tear in the right shoulder area.  
 
            Claimant underwent anterior acromioplasty, resection distal 
 
            clavicle and coracoacromial ligament, and repair of the 
 
            massive rotator cuff pathology on July 20, 1984.  
 
            (Claimant's exhibit 3, page 3.)
 
            
 
                 In a letter to claimant's attorney, dated September 20, 
 
            1984, Dr. Weatherwax was asked to provide claimant with an 
 
            impairment rating on account of the right shoulder injury.  
 
            Dr. Weatherwax stated:
 
            
 
                 I anticipate he has continued improvement regards 
 
                 to his right shoulder in particular which has been 
 
                 operated on as you know.  I will say, though, that 
 
                 either criteria established by the American 
 
                 Academy of Orthopaedic Surgery as well as those 
 
                 established by the American Medical Association 
 
                 for evaluating impairment, loss of the biceps 
 
                 tendon on one side represents approximately 10% 
 
                 upper limb impairment and resection of the distal 
 
                 clavicle part of the surgical procedure carried 
 
                 out represents another 5%.  Additional impairment 
 
                 on the right shoulder would then be based on loss 
 
                 of motion and strength that can only be determined 
 
                 at least 4 to 6 months in the future.
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            
 
            (Cl. Ex. 2.)
 
            
 
                                     applicable law
 
            
 
                 If claimant has an impairment to the body as a whole, 
 
            an industrial disability has been sustained.  Industrial 
 
            disability was defined in Diederich v. Tri-City Railway Co., 
 
            219 Iowa 587, 593, 258 N.W.2d 899, 902 (1935) as follows: 
 
            "It is therefore plain that the legislature intended the 
 
            term `disability' to mean `industrial disability' or loss of 
 
            earning capacity and not a mere `functional disability' to 
 
            be computed in the terms of percentages of the total 
 
            physical and mental ability of a normal man."
 
            
 
                 Functional impairment is an element to be considered in 
 
            determining industrial disability which is the reduction of 
 
            earning capacity, but consideration must also be given to 
 
            the injured employee's age, education, qualifications, 
 
            experience and inability to engage in employment for which 
 
            he is fitted.  Olson v. Goodyear Service Stores, 255 Iowa 
 
            1112, 125 N.W.2d 251 (1963).  Barton v. Nevada Poultry, 253 
 
            Iowa 285, 110 N.W.2d 660 (1961).
 
            
 
                 A finding of impairment to the body as a whole found by 
 
            a medical evaluator does not equate to industrial 
 
            disability.  This is so as impairment and disability are not 
 
            synonymous.  Degree of industrial disability can in fact be 
 
            much different than the degree of impairment because in the 
 
            first instance reference is to loss of earning capacity and 
 
            in the latter to anatomical or functional abnormality or 
 
            loss.  Although loss of function is to be considered and 
 
            disability can rarely be found without it, it is not so that 
 
            a degree of industrial disability is proportionally related 
 
            to a degree of impairment of bodily function.
 
            
 
                 Factors to be considered in determining industrial 
 
            disability include the employee's medical condition prior to 
 
            the injury, immediately after the injury, and presently; the 
 
            situs of the injury, its severity and the length of healing 
 
            period; the work experience of the employee prior to the 
 
            injury, after the injury and potential for rehabilitation; 
 
            the employee's qualifications intellectually, emotionally 
 
            and physically; earnings prior and subsequent to the injury; 
 
            age; education; motivation; functional impairment as a 
 
            result of the injury; and inability because of the injury to 
 
            engage in employment for which the employee is fitted.  Loss 
 
            of earnings caused by a job transfer for reasons related to 
 
            the injury is also relevant.  These are matters which the 
 
            finder of fact considers collectively in arriving at the 
 
            determination of the degree of industrial disability.
 
            
 
                 There are no weighting guidelines that indicate how 
 
            each of the factors are to be considered.  There are no 
 
            guidelines which give, for example, age a weighted value of 
 
            ten percent of the total value, education a value of fifteen 
 
            percent of total, motivation - five percent; work experience 
 
            - thirty percent, etc.  Neither does a rating of functional 
 
            impairment directly correlate to a degree of industrial 
 
            disability to the body as a whole.  In other words, there 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            are no formulae which can be applied and then added up to 
 
            determine the degree of industrial disability.  It therefore 
 
            becomes necessary for the deputy or commissioner to draw 
 
            upon prior experience, general and specialized knowledge to 
 
            make the finding with regard to degree of industrial 
 
            disability.   See Peterson v. Truck Haven Cafe, Inc., 
 
            (Appeal Decision, February 28, 1985); Christensen v. Hagen, 
 
            Inc., (Appeal Decision, March 26, 1985).
 
            
 
                                     analysis
 
            
 
                 The injury to claimant's right shoulder on May 9, 1983 
 
            was an aggravation of a preexisting right shoulder injury.  
 
            The supreme court determined that: 
 
            
 
                 It is not possible to establish what, if any, 
 
                 portion of his present disability is attributable 
 
                 to the prior condition of that shoulder.  
 
                 Consequently, this situation is similar to that 
 
                 presented in Varied Enterprises, Inc. v. Sumner, 
 
                 353 N.W.2d 407, 410-11 (Iowa 1984), where it was 
 
                 not possible to attribute a correlative measure of 
 
                 disability to two or more distinct injuries.
 
            
 
                    ....
 
            
 
                    In the present case, the claimant's prior 
 
                 injury was related to the employment.  In 
 
                 addition, as we have noted, it has not and cannot 
 
                 be established that some ascertainable prior 
 
                 industrial disability existed from the earlier 
 
                 injuries.  (Emphasis by the Court.)
 
            
 
            Tussing, 461 N.W.2d at 453.
 
            
 
                 Two physicians provided claimant with impairment 
 
            ratings.  Dr. Blume opined that claimant sustained a 
 
            functional impairment of 20 to 25 percent of his right upper 
 
            extremity on account of his right shoulder injury.  Dr. 
 
            Blume's rating was provided prior to claimant's right 
 
            shoulder surgery.  Dr. Weatherwax performed the surgery and 
 
            had the opportunity to observe claimant's injury.  Dr. 
 
            Weatherwax opined that claimant had a 15 percent functional 
 
            impairment to his right upper extremity, but that the 
 
            impairment was incomplete as it did not include claimant's 
 
            loss of motion or strength.  There is no evidence as to 
 
            claimant's final impairment rating from Dr. Weatherwax.  Dr. 
 
            Blume's functional impairment rating will be used as a basis 
 
            to determine that claimant had a 20 percent functional 
 
            impairment of the right upper extremity. 
 
            
 
                 While the physicians who provided impairment ratings to 
 
            claimant's right arm, it has been held several times that an 
 
            injury to a shoulder is not an injury to an arm.  Alm v. 
 
            Morris Barick Cattle Co., 240 Iowa 1174, 38 N.W.2d 161 
 
            (1949); Nazarenus v. Oscar Mayer & Co., II Iowa Industrial 
 
            Commissioner Report 281 (Appeal Decision, February 24, 
 
            1982); Godwin v. Hicklin G.M. Power, II Iowa Industrial 
 
            Commissioner Report 170 (Appeal Decision, August 7, 1981).  
 
            These cases held that the shoulder is not included in Iowa 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            Code section 85.35(2)(m), which refers to the arm and that 
 
            the shoulder is not described as a scheduled member in any 
 
            of the other scheduled member paragraphs in Iowa Code 
 
            section 85.35(2).  Therefore, it is determined that claimant 
 
            sustained an injury to the body as a whole.  Claimant's 
 
            functional impairment rating of the right upper extremity is 
 
            converted to an impairment of the body as a whole using the 
 
            Guides to the Evaluation of the Permanent Impairment, third 
 
            edition, published by the American Medical Association.  A 
 
            20 percent impairment of the right upper extremity converts 
 
            to 12 percent functional impairment of the body as a whole.
 
            
 
                 Claimant was in healing period from June 14, 1983 
 
            through June 19, 1983.  Claimant was also in healing period 
 
            from June 7, 1984 through June 10, 1984 and from July 17, 
 
            1984 through January 8, 1985, the date of the hearing.
 
            
 
                 Claimant was employed with the defendants for more than 
 
            30 years.  His work experience prior to his employment with 
 
            the defendant employer is limited to agricultural work.  
 
            Claimant is a high school graduate.  The majority of 
 
            claimant's work experience is limited to manual labor.  Dr. 
 
            Weatherwax testified that claimant is limited to work in 
 
            sedentary positions as a result of work-related injury.
 
            
 
                 Claimant was born October 7, 1924 and was 58 years old 
 
            when he sustained the injury to his right shoulder.  
 
            Claimant was seen by D. E. Fisher, M.D., for his shoulder.  
 
            In his office notes dated April 23, 1984, Dr. Fisher stated 
 
            that claimant hoped to retire in another two years if he 
 
            could maintain his work status from a medical standpoint.  
 
            (Cl. Ex. 6, p. 2.)  Claimant had not returned to work at the 
 
            time of the arbitration hearing.  A recent appeal decision 
 
            stated:
 
            
 
                 The approach of later years when it can be 
 
                 anticipated that under normal circumstances a 
 
                 worker would be retiring is, without some clear 
 
                 indication to the contrary, a factor which can be 
 
                 considered in determining the loss of earning 
 
                 capacity or industrial disability which is 
 
                 causally related to the injury.  Becke v. 
 
                 Turner-Busch, Inc., 34 Report of the Iowa 
 
                 Industrial Commissioner 34 (Appeal Decision 1979); 
 
                 Merrill v. Eaton Corp., Appeal Decision, May 9, 
 
                 1990; Barkdoll v. American Freight System, Inc., 
 
                 Appeal Decision, June 28, 1988.
 
            
 
            Boyd v. Western Home, Appeal Decision, filed June 29, 1991.
 
            
 
                 Claimant's work-related right shoulder injury has 
 
            caused only a slight reduction in claimant's earning 
 
            capacity.  Therefore, it is determined that claimant has an 
 
            industrial disability of 15 percent of the body as a whole 
 
            as a result of the May 9, 1983 work-related injury to his 
 
            right shoulder.
 
            
 
                                findings of facts
 
            
 
                 1.  Claimant was born October 7, 1924 and was a high 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            school graduate.
 
            
 
                 2.  Claimant started working for the defendant employer 
 
            on October 5, 1954.  Claimant held various positions 
 
            throughout the company.  The majority of claimant's work was 
 
            manual labor.
 
            
 
                 3.  Claimant sustained numerous work-related injuries 
 
            while employed by the defendant employer.  The most relevant 
 
            injury occurred in 1970 when claimant sustained a rupture of 
 
            the long head biceps tendon.  
 
            
 
                 4.  On May 9, 1983, claimant sustained a work-related 
 
            injury to his right shoulder when he attempted to free a 
 
            hand truck which had become stuck.  
 
            
 
                 5.  The May 9, 1983 right shoulder injury necessitated 
 
            surgery to repair a right rotator cuff tear.  
 
            
 
                 6.  As a result of the work-related injury, claimant 
 
            sustained a 20 percent functional impairment of the right 
 
            upper extremity.  This converts to a 12 percent functional 
 
            impairment of the body as a whole.
 
            
 
                 7.  Claimant was off work June 14, 1983 through June 
 
            19, 1983 and from June 7, 1984 through June 10, 1984 and 
 
            from July 17, 1984 through January 8, 1985, the date of the 
 
            arbitration hearing.
 
            
 
                 8.  Claimant is near retirement age and experienced 
 
            only a slight reduction of earning capacity as a result of 
 
            the May 9, 1983 work-related shoulder injury.
 
            
 
                 9.  At the time of the hearing, claimant was restricted 
 
            to sedentary work by Dr. Weatherwax.
 
            
 
                 10.  Claimant sustained 15 percent reduction in earning 
 
            capacity as a result of the work-related shoulder injury.
 
            
 
                                conclusion of law
 
            
 
                 Claimant sustained a 15 percent permanent partial 
 
            disability of the body as a whole as a result of claimant's 
 
            May 9, 1983 work-related injury to his right shoulder.
 
            
 
                                      order
 
            
 
                 THEREFORE, it is ordered
 
            
 
                 That defendants shall pay unto claimant healing period 
 
            benefits for the periods from June 14, 1983 through June 19, 
 
            1983 and from June 7, 1984 through June 10, 1984 and from 
 
            July 17, 1984 through January 8, 1985 at the stipulated rate 
 
            of two hundred ninety-eight and 01/100 dollars ($298.01) per 
 
            week.
 
            
 
                 That defendants shall pay unto claimant seventy-five 
 
            weeks of permanent partial disability benefits at the 
 
            stipulated rate of two hundred ninety-eight and 01/100 
 
            dollars ($298.01) per week.
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            
 
                 That defendants shall pay to claimant or the provider 
 
            of the medical service all the unpaid medical and hospital 
 
            bills that claimant has sustained as a result of the May 9, 
 
            1983 work-related injury to his right shoulder.
 
            
 
                 That defendants shall pay these amounts in a lump sum 
 
            and receive credit against the award for any amounts 
 
            previously paid. 
 
            
 
                 That defendants shall pay interest on benefits awarded 
 
            as set forth in Iowa Code section 85.30.
 
            
 
                 That defendants file a claim activity reports as 
 
            requested by this agency pursuant to rule 343 IAC 4.1.
 
            
 
                 That claimant and defendants shall equally pay the cost 
 
            of this action on remand.
 
            
 
                 Signed and filed this ____ day of July, 1991.
 
            
 
            
 
            
 
                                          
 
            ________________________________
 
                                                   CLAIR R. CRAMER
 
                                           ACTING INDUSTRIAL 
 
            COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Robert L. Ulstad
 
            Attorney at Law
 
            P.O. Box 1678
 
            Fort Dodge, Iowa 50501
 
            
 
            Mr. Tito Trevino
 
            Attorney at Law
 
            503 Snell Bldg.
 
            P.O. Box 1680
 
            Fort Dodge, Iowa 50501
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            5-1803
 
            Filed July 23, 1991
 
            Clair R. Cramer
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            DEAN TUSSING,                 :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :    File Nos. 734985/750400
 
            GEO. A. HORMEL & CO.,         :
 
                                          :          A P P E A L
 
                 Employer,                :
 
                                          :        D E C I S I O N
 
            and                           :
 
                                          :
 
            LIBERTY MUTUAL INSURANCE CO., :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            5-1803
 
            This case was remanded by the Iowa Supreme Court to 
 
            determine the extent of claimant's permanent partial 
 
            disability of the body as a whole as a result of claimant's 
 
            May 9, 1983 work-related injury to his right shoulder.
 
            Claimant was born October 7, 1924 and was 58 years old when 
 
            he sustained his injury.  Claimant told one of his 
 
            physicians that he intended on retiring in two years if his 
 
            shoulder would hold out.  Claimant had not returned to work 
 
            at the time of the arbitration decision.  The majority of 
 
            claimant's work experience is limited to manual labor.
 
            Two physicians provided functional impairment ratings of 
 
            claimant's right upper extremity.  One physician provided a 
 
            rating but stated that it was incomplete as it did not 
 
            include loss of motion.  Twenty percent functional 
 
            impairment to the right upper extremity was relied upon to 
 
            determine claimant's industrial disability.
 
            Held that claimant has an industrial disability of 15 
 
            percent of the body as a whole as a result of the May 9, 
 
            1983 work-related injury to his right shoulder.
 
            
 
 
        
 
 
 
 
 
                       BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
        
 
        
 
        HARVEY R. SMITH
 
        
 
            Claimant,                   File No. 750419
 
        
 
        vs.                                 A P P E A L
 
        
 
        FRENCH & HECHT,                   D E C I S I O N
 
        
 
            Employer,
 
            Self-insured,
 
            Defendant.
 
        
 
        
 
                                 STATEMENT OF THE CASE
 
        
 
        Defendant appeals from an arbitration decision awarding claimant 
 
        25 weeks of permanent partial disability benefits for the right 
 
        arm and 7.5 weeks of permanent partial disability benefits for 
 
        the left arm.
 
        
 
        The record on appeal consists of the transcript of the 
 
        arbitration hearing and joint exhibits 1 through 30. Both parties 
 
        filed briefs on appeal.
 
        
 
                                      ISSUES
 
        
 
        Defendant states the following issues on appeal:
 
        
 
        I. Claimant's claim is barred by the applicable statute of 
 
        limitations, Iowa Code section 85.26.
 
        
 
        II. The deputy industrial commissioner's decision failed to give 
 
        proper credit to respondent for prior payments made to claimant.
 
        
 
        III. Claimant failed to meet his burden of proof that there was a 
 
        causal connection between his alleged injury and disability.
 
        
 
        IV. The deputy industrial commissioner erred in his award of 
 
        disability of 3% of the left arm and 10% of the right arm.
 
        
 
                                 REVIEW OF THE EVIDENCE
 
        
 
        Claimant has worked for defendant employer from 1973 as a salvage 
 
        grinder. Claimant described this work:
 
        
 
        SMITH v. FRENCH & HECHT
 
        Page 2
 
        
 
        
 
        Q. What does a salvage grinder do?
 
        
 
        A. Any rim or wheel that comes through inspection station, it is 
 
        -- if it has a hole in it, it is welded, if it has excess weld 
 
        on it, either the inside or the outside, it has to be ground 
 
        down smooth. If there's-- it has to meet company specifications 
 
        as far as quality so if there's any high welds, we call them high 
 
        welds where there's tools that didn't actually cut the weld off 
 
        properly, you grind that down smooth.
 
        
 
        (Transcript, page 12)
 

 
        
 
 
 
 
 
        
 
        On January 27, 1977, claimant injured his right hand at work for 
 
        defendant employer when someone turned on a machine while 
 
        claimant was using a wrench on that machine. Claimant was 
 
        treated for this injury by William R. Whitmore, M.D. In his 
 
        examination note, Dr. Whitmore states:
 
        
 
        27 January 1977 - This patient seen in the emergency room at 
 
        Mercy hospital after an injury sustained at work. He was holding 
 
        a wrench and it got caught in machinery injuring the lateral 
 
        border of his right hand. Dr. Chamany examined the patient and 
 
        obtained an x-ray and showed a severely comminuted but not 
 
        markedly displaced fracture of the 5th metacarpal. Overlying 
 
        this was a distally based U shaped laceration and flap over the 
 
        dorsal ulnar border of the hand With some extension into the 
 
        hyperthenar muscles. Tendon function was intact both flexion 
 
        and extension. He does have sensory discrimination on the ulnar 
 
        border of the little finger.
 
        
 
        I recommended admission and exploration of the wound with 
 
        debridement and closure under general anesthesia and this was 
 
        carried out about 2 hours later. No digital nerve interruption 
 
        was found surgically but a considerable amount of grease was 
 
        taken out of the wound. There was some contusion of the distally 
 
        based flap and this was debrided.
 
        
 
        (Joint exhibit 1, page 1 )
 
        
 
        Dr. Whitmore opines in a July 6, 1977 note that claimant has a 
 
        well healed scar over the ulnar border of the hand with no real 
 
        limited function or impairment found. Dr. Whitmore reiterates 
 
        this opinion in a May 8, 1978 letter to defendant employer: "I 
 
        saw Mr. Smith on 6 July 1977 for final evaluation of his right 
 
        hand. In my opinion he has no permanent physical impairment or 
 
        limited physical function to the hand. He does have a scar in
 
        
 
        SMITH V. FRENCH & HECHT
 
        Page 3
 
        
 
        
 
        the area which is well healed." (Jt. Ex. 2)
 
        
 
        Claimant was also examined with regard to permanency resulting 
 
        from the 1977 injury by Leo J. Miltner, M.D., on December 7, 
 
        1978. Dr. Miltner disagrees with Dr. Whitmore's assessment of 
 
        claimant's impairment and opines:
 
        
 
        We must remember that this man is a year around worker. In cool 
 
        or colder weather he notices coldness and irritable sensitivity 
 
        on outer side of right hand; this includes the fourth and fifth 
 
        fingers and bit of the mid finger. It is not possible to have an 
 
        impairment of this type in part of the hand without involving 
 
        indirectly the rest of that right hand.
 
        
 
        According to my review of this record, there is some minor 
 
        measurable symptomatic and functional impairment of the hand as a 
 
        whole as stated. I believe that his subjective and objective 
 
        complaints are credible.
 
        
 
        In view of the conclusions mentioned above, the extent of the 
 
        disability should read, a minimum of 5 to 10% of the hand as a 
 
        whole.
 
        
 
        (Jt. Ex. 5)
 
        
 
         Claimant Was paid permanent partial disability benefits based on 
 

 
        
 
 
 
 
 
        five percent of the hand ($1,653). Claimant returned to work at 
 
        his job as a grinder.
 
        
 
        In 1981, claimant began experiencing numbness in his right hand 
 
        which awakened him at night. On May 8, 1978, claimant went to Dr. 
 
        Whitmore concerning this problem. Dr. Whitmore advised claimant 
 
        that "this may be something different or something not related to 
 
        his injury, such as a carpal ulnar tunnel syndrome. Advised him 
 
        that nerve conduction and EMG studies might be helpful...." (Jt. 
 
        Ex. 23, p. 2). On follow-up, Dr. Whitmore advised that the nerve 
 
        conduction studies failed to confirm the diagnosis of carpal 
 
        tunnel syndrome but felt that it may be too early to show 
 
        anything on the tests. Claimant continued to have numbness in his 
 
        right hand and went to the emergency room on June 11, 1982 
 
        complaining of numbness. On November 16, 1983, he again returned 
 
        complaining of numbness:
 
        
 
        11-16-83 He comes in again today, having continued problems with 
 
        his right hand. About a month ago he woke up with considerable 
 
        numbness in his right He saw Dr. Beckman, who first gave him some 
 
        Motrin and then tried a splint. Since then he
 
        
 
        SMITH V. FRENCH & HECHT
 
        Page 4
 
        
 
        
 
        has been waking, maybe 2 dozen times with numbness in his hand. 
 
        He rubs it, shakes it and it improves.
 
        
 
        On exam, he has full grip. He has a well healed scar over his 
 
        area of injury. He has diminution of sensation of the tips of the 
 
        index, long and ring finger. Palpably he has some softening and 
 
        loss of mass of the thenar emminence of the right hand. He has a 
 
        positive Tinel sign over the median nerve. Acute flexion of the 
 
        wrist maintained with some force starts the onset of paresthesia 
 
        in the long and ring finger.
 
        
 
        IMPRESSION: Carpal tunnel syndrome, right wrist.
 
        
 
        Don't feel that this has anything to do with his old injury. I 
 
        recommended carpal ligament release, to be done on the 28th of 
 
        November, St. Luke's Hospital. Probably will explore the ulnar 
 
        nerve at the same time. this was discussed with him and he agrees 
 
        to surgery.
 
        
 
        (Jt. Ex. 23, p. 3)
 
        
 
        Claimant underwent surgery, release of volar carpal ligament 
 
        right wrist, on November 28, 1983. Claimant was released to 
 
        return to work without restrictions on January 16, 1984.
 
        
 
        On July 11, 1984, claimant returned to the doctor with problems 
 
        with his left hand:
 
        
 
        7-11-84 In for examination in regard to his left hand. It started 
 
        bothering about one month ago with going to sleep. He was taken 
 
        off his grinding job and complained of his whole hand being 
 
        numb and shooting up pains at the arm. wakes him up at night 
 
        occasionally but actually he tells me that pain has been 
 
        significant only one time that lasted for 4 months and possible 3 
 
        times a week for shorter periods of time. It does not wake him at 
 
        night.
 
        
 
        He has had occasional short jabs of pain in the palm of his right 
 
        hand.
 
        
 

 
        
 
 
 
 
 
        On exam shows good motion, the scar in the right wrist is well 
 
        healed.
 
        
 
        Feel we should rule out carpal tunnel syndrome in this man since 
 
        there seems to be some conflict involved and would recommend 
 
        objective testing in this manner.
 
        
 
        SMITH v. FRENCH & HECHT
 
        Page 5
 
        
 
        
 
        Advised him today however that I do not think that the symptoms 
 
        were of sufficient magnitude to warrant any expectation of 
 
        surgery. Nerve conduction studies arranged and will get in touch 
 
        with him after those are completed.
 
        
 
        (Jt. Ex. 23, p. 5)
 
        
 
        Claimant continued to have difficulties with his left hand and on 
 
        September 26, 1984 he was scheduled for left carpal tunnel 
 
        release:
 
        
 
        9-26-84 Mr. Smith has had increasing symptoms of carpal tunnel 
 
        bilaterally left greater than right. On examination he has good 
 
        finger range of motion. two point discrimination is 3-4 mm. 
 
        throughout. There is no thenar muscle atrophy. Phalen's test and 
 
        Tinel's test are moderately positive over the median nerve at the 
 
        wrist. A copy of Dr. Collins' consultation note is included in 
 
        the chart. He suggested repeat electrodiagnostic studies and 
 
        these were performed on 9-21-84. These studies still show 
 
        increased insertional activities in the C8-T1 distribution and in 
 
        addition the sensory and motor latencies of both median nerves 
 
        are prolonged with respect to normal and with respect to the 
 
        electrodiagnostic studies performed on 7-12-84. We are going to 
 
        proceed with left carpal tunnel release under local anesthesia as 
 
        an outpatient when convenient with him and at the same time we 
 
        will inject the right carpal tunnel with Cortisone. He is not 
 
        having symptoms referrable to the neck region currently and we 
 
        will defer investigation of this presently.
 
        
 
        (Jt. Ex. 23, p. 6)
 
        
 
        This surgery was performed on October 4, 1984. Claimant was 
 
        released to return to work with restrictions of no repetitive 
 
        lifting or gripping and released without restriction on December 
 
        6, 1984. In an October 22, 1984 letter, Richard R. Ripperger, 
 
        M.D., who offices with Dr. Whitmore and performed claimant's 
 
        October 1984 carpal tunnel surgery, opines that "Mr. Smith's 
 
        carpal tunnel syndrome in the left and right wrists is aggravated 
 
        by his work at French and Hecht." (Jt. Ex. 23, p. 1)
 
        
 
        In a December 18, 1985 note Dr. Ripperger opines that claimant 
 
        has a 10 percent impairment to the right upper extremity and a 
 
        three percent impairment to the left upper extremity.
 
        
 
        In a June 23, 1983 letter to claimant's attorney, Dr. Whitmore 
 
        clarifies a statement he made in the November 16, 1983 clinical
 
        
 
        SMITH V. FRENCH & HECHT
 
        Page 6
 
        
 
        
 
        note:
 
        
 
        On the 16th of November 1983, in my clinical notes, I stated 
 
        "Don't feel this has anything to do with his old injury . I said 
 

 
        
 
 
 
 
 
        nothing about a new injury but felt that the condition he was 
 
        complaining of at that time was not related to his laceration and 
 
        fracture in 1977.
 
        
 
        (Jt. Ex. 25)
 
        
 
        Claimant described the grinding job as requiring him to turn rims 
 
        weighting up to 175 pounds by himself using his wrists. Claimant 
 
        opined that he had to grind 300 to 350 rims per day. Claimant 
 
        also opined that the gripping of the rims gave him the most 
 
        difficulty. Claimant testified that he is right-handed. Claimant 
 
        stated that after the 1983 surgery he began using his left hand 
 
        more than the right and subsequently began having problems with 
 
        his left hand.
 
        
 
        Claimant related that when he was off work from October 4, 1984 
 
        through December 10, 1984 he received group insurance benefits 
 
        totaling $1,302. Claimant currently works for defendant employer 
 
        as a janitor. Claimant opined that his right hand lacks grip 
 
        strength and motion and stated that he has numbness in the finger 
 
        tips of his right hand. Claimant identified the attachment to the 
 
        prehearing report as accurately reflecting mileage he traveled to 
 
        and from doctors for treatment of his right or left wrist. 
 
        Claimant testified that he aid not recall marking the box on 
 
        joint exhibit 22 indicating that his condition was not related to 
 
        his employment. Claimant stated that his left arm is weak and 
 
        gets tired easily. Claimant denied that he currently experiences 
 
        any numbness in his left arm or hand. Claimant could not recall 
 
        stating in his deposition that he had no left arm or hand 
 
        problems.
 
        
 
                                 APPLICABLE LAW
 
        
 
        Claimant has the burden of proving by a preponderance of the 
 
        evidence that he received injuries which arose out of and in the 
 
        course of employment. McDowell v. Town of Clarksville, 241 N.W.2d 
 
        904 (Iowa 1976); Musselman v. Central Telephone Co., 261 Iowa 
 
        852, 154 N.W.2d 128 (1967).
 
        
 
        An employee is entitled to compensation for any and all personal 
 
        injuries which arise out of and in the course of the employment. 
 
        Section 85.3(1).
 
        
 
        The injury must both arise out of and be in the course of the 
 
        employment. Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 402, 68 
 
        N.W.2d 63, (1555) and cases cited at pp. 405-406 of the Iowa 
 
        Report. See also Sister Mary Benedict v. St. Mary's Corp.,
 
        
 
        SMITH v. FRENCH & HECHT
 
        Page 7
 
        
 
        
 
        255 Iowa 847, 124 N.W.2d 548 (1963) and Hansen v. State of Iowa,
 
        249 Iowa 1147, 91 N.W.2d 555 (1958).
 
        
 
        The words "out of" refer to the cause or source of the injury. 
 
        Crowe, 246 Iowa 402, 68 N.W.2d 63.
 
        
 
        The words "in the course of " refer to the time and place and 
 
        circumstances of the injury. McClure v. Union et al. Countries, 
 
        188 N.W.2d 283 (Iowa 1971); Crowe, 246 Iowa 402, 68 N.W.2d 63.
 
        
 
        "An injury occurs in the course if the employment when it is 
 
        within the period of employment at a place the employee may 
 
        reasonably be, and while he is doing his work or something 
 
        incidental to it." Cedar Rapids Comm. Sch. Dist. v. Cady, 278 
 

 
        
 
 
 
 
 
        N.W.2d 298 (Iowa 1979), McClure, 188 N.W.2d 283, Musselman, 261 
 
        Iowa 352, 154 N.W.2d 128.
 
        
 
        The claimant has the burden of proving by a preponderance of the 
 
        evidence that the injuries are causally related to the disability 
 
        on which he now bases his claim. Bodish v. Fischer, Inc., 257 
 
        Iowa 516, 133 N.W.2d 867 (1965). Lindahl v. L.O. Boggs, 236 
 
        Iowa 296, N.W.2d (1945). A possibility is insufficient; a 
 
        probability is necessary. Burt v. John Deere Waterloo Tractor 
 
        Works, 247 Iowa 691, 73 N.W.2d 732 (1955). The question of 
 
        causal connection is essentially within the domain of expert 
 
        testimony. Bradshaw v. Iowa Methodist Hospital, 251 Iowa 375, 
 
        101 N.W.2d 167 (1960).
 
        
 
        However, expert medical evidence must be considered with all 
 
        other evidence introduced bearing on the causal connection. 
 
        Burt, 247 Iowa 691, 73 N.W.2d 732. The opinion of experts need 
 
        not be couched in definite, positive or unequivocal language. 
 
        Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974). However, 
 
        the expert opinion may be accepted or rejected, in whole or in 
 
        part, by the trier of fact. Id. at 907. Further, the weight to 
 
        be given to such an opinion is for the finder of fact, and that 
 
        may be affected by the completeness of the premise given the 
 
        expert and other surrounding circumstances. Bodish, 257 Iowa 
 
        516, 133 N.W.2d 867. See also Musselman, 261 Iowa 352, 154 
 
        N.W.2d 128.
 
        
 
        In McKeever Custom Cabinets v. Smith, 379 N.W.2d 368 (Iowa 1985), 
 
        the court affirmed the commissioner's use of the cumulative 
 
        injury rule to decide the issues of time of injury and liability 
 
        of the appropriate carrier in factually appropriate cases. 
 
        Regarding the issues of time if injury, the court states:
 
        
 
        The third subsidiary question relates to the effect of the 
 
        finding of cumulative injury upon the two-year statute of 
 
        limitations: When did the "injury" occur for time-limitation 
 
        purposes? Again we have a legal question.
 
        
 
        SMITH V. FRENCH & HECHT
 
        Page 8
 
        
 
        
 
        Larson cites two rules which have been applied in the gradual 
 
        injury cases: the injury occurs when pain prevents the employee 
 
        from continuing to work, or when the pain occasions the need for 
 
        medical attention. Larson,  39.50, at 7-350.28.
 
        
 
        We incline toward the former of these alternatives; clearly the 
 
        employee is disabled and injured when, because of pain or 
 
        physical inability, he can no longer work. (Citations omitted)
 
        
 
        Smith's wrist pain finally compelled him to give up his job about 
 
        May 1, 1981. We hold that he had one compensable injury, that it 
 
        occurred for time limitation purposes when Smith gave up his job, 
 
        and that the two-year statute of limitations then began to run. 
 
        He commenced this compensation proceeding in August 1981, within 
 
        the limitation period. the proceeding is not barred by section 
 
        85.26
 
        
 
        Id. at 374-5.
 
        
 
                                      ANALYSIS
 
        
 
        Defendant contends that the statute of limitations on claimant's 
 
        right arm injury began to run in 1981. For support of this 
 
        contention, defendant cites the following testimony:
 

 
        
 
 
 
 
 
        
 
        Q. At times when your hand would hurt so bad at night that you 
 
        would wake up, would you miss work the following day?
 
        
 
        A. There's a good chance of it, yes.
 
        
 
        Q. So if you were complaining of waking up to the doctor at night 
 
        in August of 1981, would you have missed some work at that time 
 
        or prior to that time because of the numbness in your right hand? 
 
        Is there a good chance of that?
 
        
 
        A. Yes.
 
        
 
        (Tr., p. 46)
 
        
 
        Q. It was my understanding that you said that if you were being 
 
        woken up, you probably were missing work as early as what the 
 
        records show and that would be august of 1981, Exhibit 1, page 
 
        two.
 
        
 
        A. I would believe so.
 
        
 
        (Tr., p. 57)
 
        
 
        SMITH V. FRENCH & HECHT
 
        Page 9
 
        
 
        
 
        As the statute of limitations defense is an affirmative defense, 
 
        defendant has the burden of establishing by the greater weight of 
 
        evidence that claimants Claim is barred by the statute of 
 
        limitations in section 85.26. Dart v. Sheller-Globe Corporation, 
 
        II Industrial Commissioner Report 99, 101 (Appeal decision 1982). 
 
        Merely asking claimant if there is a good chance he may have 
 
        missed some work does not satisfy defendant's burden. In 
 
        McKeever, the court held that a claimant's injury arises for 
 
        purposes of application of the cumulative injury rule when 
 
        because of pain an employee can no longer work. In this case, 
 
        the record reveals that claimant was no longer able to work 
 
        because of pain on November 3, 1983 when a Dr. Beckman (no first 
 
        name in record) restricted claimant's work to no use of the right 
 
        wrist. claimant's petition was filed timely on December 15, 1983.
 
        
 
        Defendant also argues that claimant's carpal tunnel syndrome in 
 
        the right arm is not related to repetitive trauma but rather is 
 
        related to claimant's 1977 injury. In support of this argument, 
 
        defendant refers to joint Exhibits 13 in which Dr. Whitmore 
 
        indicates that claimants right carpal tunnel syndrome is related 
 
        to claimant's 1977 injury. This is contrary to Dr. Whitmore's 
 
        November 16, 1983 clinical note in which he states: "Don't feel 
 
        that this has anything to do with his old injury." See Joint 
 
        Exhibit 23, page 3, and Dr. Whitmore's June 25, 1985 letter in 
 
        which he states: "I said nothing about a new injury but felt 
 
        that the condition he was complaining of at that time was not 
 
        related to his laceration and fracture in 1977." See Joint 
 
        Exhibit 25. Dr. Whitmore's written statements in the 1985 letter 
 
        and 1983 clinical note are found to be more credible and more 
 
        consistent with the record as a whole than the statement on the 
 
        form.
 
        
 
        Defendant makes a similar argument with respect to causal 
 
        connection of claimant's left carpal tunnel syndrome by 
 
        contending that joint exhibit 22 reveals that claimant's left 
 
        carpal tunnel syndrome is not related to his employment. 
 
        Defendant also refers to Dr. Miltner's statement that claimant 
 
        had problems with his right hand brought on by the use of a 
 

 
        
 
 
 
 
 
        hammer at home. Defendant does not suggest how this hammering 
 
        affects claimant's left carpal tunnel syndrome.
 
        
 
        Contrary to defendant's argument, Dr. Ripperger opines in his 
 
        October 22, 1984 letter that "It is my opinion that Mr. Smith's 
 
        carpal tunnel syndrome in the left and right wrists is aggravated 
 
        by his work at French and Hecht." (Jt. Ex. 23) It is a well 
 
        settled principle that an aggravation of a preexisting condition 
 
        is compensable. The greater weight of evidence establishes that 
 
        claimant's left carpal tunnel syndrome is related to claimant's 
 
        employment with defendant employer.
 
        
 
        SMITH V. FRENCH & HECHT
 
        Page 10
 
        
 
        
 
        Defendant claims that the deputy erred in awarding claimant 
 
        permanent partial disability benefits based on a three percent 
 
        impairment to the left arm. Defendant maintains that claimant was 
 
        not truthful in his testimony concerning left arm conditions At 
 
        his deposition, claimant indicated that he had no problems with 
 
        his left hand, but at the hearing claimant related that his left 
 
        arm is weaker and gets tired easier. In his impairment 
 
        evaluation, Dr. Ripperger states: "He claimants states that he 
 
        is having no problems with his left hand or wrist." (Jt. Ex. 27) 
 
        This statement reflects that Dr. Ripperger considered in his 
 
        rating of claimant's left upper extremity impairment that 
 
        claimant was not experiencing difficulty with his left hand or 
 
        wrist. Claimant's testimony does not defeat the deputy's finding 
 
        that claimant has a three percent permanent impairment to the 
 
        left upper extremity. The greater weight of evidence establishes 
 
        that claimant suffers a 10 percent permanent impairment to the 
 
        right upper extremity.
 
        
 
        Defendant seeks a credit pursuant to Iowa Code section 85.38(2) 
 
        for sick leave benefits paid to claimant. This issue was not 
 
        listed on the hearing assignment order and was not decided by the 
 
        deputy. Therefore, the issue or credit under section 85.38(2) is 
 
        not properly before this agency. Moreover, defendant has not made 
 
        a record sufficient to establish that the sick leave benefits 
 
        were paid under a qualifying group plan under section 85.38
 
        
 
        Failure to properly raise the issue of 85.38 credit was 
 
        considered by the Iowa Supreme Court in Kronn v. State, 420 
 
        N.W.2d 463 (Iowa 1988)
 
        
 
        Krohn urges that the State should not be permitted to satisfy its 
 
        obligations for medical and hospital expenses through the credit 
 
        device outlined in section 85.38(2). This contention is premised 
 
        on his assertion that the State waived its right to do so by 
 
        indicating in a prehearing report form that a section 85.38(2) 
 
        credit was not involved. We do not believe that this circumstance 
 
        serves to deny the State the benefit of the statutory credit. 
 
        When an employer's of nation for medical and hospital services 
 
        under the workers' compensation laws has been established, 
 
        section 85.58(2) appears to provide 2 method by which the 
 
        employer may act unilaterally to satisfy those liabilities.
 
        
 
        Id. at 465.
 
        
 
        This issue was also considered by the industrial commissioner in 
 
        Olson v. Department of Transportation, Appeal Decision (filed 
 
        October 30, 1985.):
 
        
 
        SMITH V. FRENCH & HECHT
 
        Page 11
 

 
        
 
 
 
 
 
        
 
        
 
        The final issue claimant presents here is whether the deputy 
 
        erred in allowing the issue of credit under section 85.38 to be 
 
        presented at hearing. Claimant argues that this issue was not 
 
        raised by defendant employer at the time the final prehearing 
 
        order was filed, and therefore employer waived the right to raise 
 
        it at the hearing.
 
        
 
        The question involved here is analogous to the question raised in 
 
        cases where employer-overpayment of healing period benefits has 
 
        occurred. In these cases it has been found that not allowing an 
 
        employer credit for mistaken overpayment would "unjustly enrich 
 
        the claimant" without serving a specific policy of the statute. 
 
        See Unified Concern For Children v. Caputo,320 N.W.2d 643, 645 
 
        (Iowa App. 1982). To deny the defendants here the right to credit 
 
        for defendants' failure to raise the issue at prehearing would be 
 
        unjust and would give claimant an unfair windfall. Therefore, 
 
        defendant employer is allowed to take whatever credit they 
 
        believe is appropriate for long term disability payments in 
 
        accordance with Iowa Code section 85.38(2), and if claimant 
 
        believes the credit taken is improper, he may petition this 
 
        agency for relief.
 
        
 
        Defendants shall not take a credit in this case because of 
 
        claimant's use of his vacation entitlement.
 
        
 
        Regarding sick leave benefits, defendants may take whatever 
 
        credit they believe is appropriate and if claimant believes the 
 
        credit taken is improper he may petition this agency for relief. 
 
        See Iowa Code section 85.38(3).
 
        
 
        Although the issue of credit under section 85.38 is not properly 
 
        before this agency, defendants' will be allowed to take whatever 
 
        credit they believe is appropriate, and if claimant believes the 
 
        credit taken is improper, he may petition this agency for relief.
 
        
 
        Defendant also seeks a credit for permanent partial disability 
 
        benefits paid to claimant for the 1977 injury. As the 1977 injury 
 
        has already been found to be not causally related to claimant's 
 
        present disability, defendant is not entitled to credit for 
 
        permanent partial disability benefits paid for claimant's 1977 
 
        injury.
 
        
 
        SMITH V. FRENCH & HECHT
 
        Page 12
 
        
 
        
 
                                 FINDINGS OF FACT
 
        
 
        1. Claimant was employed by defendant as a salvage grinder which 
 
        required him to use his wrists to turn up to 350 wheel rims per 
 
        day, each wheel rim weighing from five to 175 pounds.
 
        
 
        2. Claimant operated a hand-held air grinder.
 
        
 
        3. Claimant first noticed numbness in his right hand in 1978.
 
        
 
        4. On November 3, 1983, claimant was restricted to no work 
 
        involving repeated pronation and supination of the right wrist.
 
        
 
        5. On November 16, 1983, claimant was diagnosed as having carpal 
 
        tunnel syndrome in the right wrist and on November 28, 1983, 
 
        surgery was performed to treat the carpal tunnel syndrome.
 
        
 
        6. Claimant was off work as a result of the right carpal tunnel 
 

 
        
 
 
 
 
 
        surgery from November 28, 1983 through January 16, 1984.
 
        
 
        7. As a result of the right carpal tunnel syndrome, claimant 
 
        suffers a 10 percent permanent impairment to the right upper 
 
        extremity.
 
        
 
        8. Claimant sustained a work injury on November 3, 1983 resulting 
 
        in right carpal tunnel syndrome.
 
        
 
        9. Claimant returned to work as a salvage grinder after the right 
 
        carpal tunnel surgery and began favoring his left hand.
 
        
 
        10. Claimant reported numbness in his left hand on July 11, 1984 
 
        and was taken off or his grinding job.
 
        
 
        11. On September 26, 1984, claimant was diagnosed as having left 
 
        carpal tunnel syndrome and on October 4, 1984, surgery was 
 
        performed to treat the carpal tunnel syndrome.
 
        
 
        12. Claimant was off work as a result of the left carpal tunnel 
 
        surgery from October 4, 1984 through December 10, 1984.
 
        
 
        13. As a result of the left carpal tunnel syndrome, claimant 
 
        suffers a three percent permanent impairment to the left upper 
 
        extremity.
 
        
 
        14. Claimant sustained a work injury on July 11, 1983 resulting 
 
        in left carpal tunnel syndrome.
 
        
 
                                 CONCLUSIONS OF LAW
 
        
 
        Claimant has established by a preponderance of the evidence that 
 
        he sustained an injury to his right upper extremity arising out 
 
        of and in the course of his employment on November 3, 1983.
 
        
 
        SMITH V. FRENCH & HECHT
 
        Page 13
 
        
 
        
 
        Claimant has established by a preponderance of the evidence that 
 
        he suffers a 10 percent permanent impairment to the right upper 
 
        extremity as a result of the November 3, 1983 injury.
 
        
 
        Claimant has established by a preponderance of the evidence that 
 
        he sustained an injury to his left upper extremity arising out of 
 
        and in the course of his employment on July 11, 1984.
 
        
 
        Claimant has established by a preponderance of the evidence that 
 
        he suffers a three percent permanent impairment to the left upper 
 
        extremity as a result of the July 11, 1984 injury.
 
        
 
        WHEREFORE, the decision of the deputy is affirmed and modified.
 
        
 
                                      ORDER
 
        
 
        THEREFORE, it is ordered:
 
        
 
        That defendant pay to claimant healing period benefits for the 
 
        periods claimant was off work; November 28, 1983 through January 
 
        16, 1984, and October 4, 1984 through December 10, 1984.
 
        
 
        That defendant pay to claimant twenty-five (25) weeks of 
 
        permanent partial disability benefits at the rate of two hundred 
 
        twenty-six and 50/100 dollars ($226.50) per week commencing 
 
        January 17, 1984.
 
        
 

 
        
 
 
 
 
 
        That defendant pay to claimant seven point five (7.5) weeks of 
 
        permanent partial disability benefits at the rate of two hundred 
 
        twenty-six and 50/100 dollars ($226.50) per week commencing 
 
        December 11, 1984.
 
        
 
        That defendant pay accrued weekly benefits in a lump sum together 
 
        with interest pursuant to Iowa Code section 85.30.
 
        
 
        That defendant pay claimant for medical expenses in the amount of 
 
        one hundred forty-three and 04/100 dollars ($143.04).
 
        
 
        That defendant pay the costs of this action, including the costs 
 
        of the transcription of the hearing proceeding pursuant to 
 
        Division of Industrial Services Rule 343-4.33.
 
        
 
        That defendant shall file activity reports upon the payment of 
 
        this award as requested by this agency pursuant to Division of 
 
        Industrial Services Rule 343-3.1.
 
        
 
        That another file be opened for the July 11, 1984 injury.
 
        
 
        That defendant shall file with this agency a first report of 
 
        injury on each of the two injuries within twenty (20) days of the 
 
        filing of this decision.
 
        
 
        SMITH V. FRENCH & HECHT
 
        Page 14
 
        
 
        
 
        Signed and filed this 23 day of August, 1988.
 
        
 
        
 
        
 
                                          DAVID E. LINQUIST
 
                                      INDUSTRIAL COMMISSIONER
 
        
 
        
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         
 
         HARVEY R. SMITH,
 
         
 
              Claimant,                         File No. 750419
 
         
 
         vs.
 
                                                 A P P E A L
 
         FRENCH & HECHT,
 
                                               D E C I S I O N
 
              Employer,
 
              Self-Insured,
 
              Defendant.
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              Defendant appeals from an arbitration decision awarding 
 
         claimant 25 weeks of permanent partial disability benefits for 
 
         the right arm and 7.5 weeks of permanent partial disability 
 
         benefits for the left arm.
 
         
 
              The record on appeal consists of the transcript of the 
 
         arbitration hearing and joint exhibits 1 through 30.  Both 
 
         parties filed briefs on appeal.
 
         
 
         
 
                                      ISSUES
 
         
 
              Defendant states the following issues on appeal:
 
         
 
              I.  Claimant's claim is barred by the applicable 
 
              statute of limitations, Iowa Code section 85.26.
 
         
 
              II.  The deputy industrial commissioner's decision 
 
              failed to give proper credit to respondent for prior 
 
              payments made to claimant.
 
         
 
              III. Claimant failed to meet his burden of proof that 
 
              there was a causal connection between his alleged 
 
              injury and disability.
 
         
 
              IV.  The deputy industrial commissioner erred in his 
 
              award of disability of 3% of the left arm and 10% of 
 
              the right arm.
 
         
 
         
 
                          REVIEW OF THE EVIDENCE
 
         
 
              Claimant has worked for defendant employer from 1973 as a 
 
         salvage grinder.  Claimant described this work: 
 
         
 
              Q.  What does a salvage grinder do?
 
         
 
              A.  Any rim or wheel that comes through inspection 
 
              station, it is -- if it has a hole in it, it is welded, 
 
              if it has excess weld on it, either the inside or the 
 
              outside, it has to be ground down smooth.  If there's 
 
              -- it has to meet company specifications as far as 
 

 
       
 
       SMITH V. FRENCH & HECHT       
 
       PAGE 2
 
 
 
              
 
              quality so if there's any high welds, we call them high 
 
              welds where there's tools that didn't actually cut the 
 
              weld off properly, you grind that down smooth.
 
         
 
         (Transcript, page 12)
 
         
 
              On January 27, 1977, claimant injured his right hand at work 
 
         for defendant employer when someone turned on a machine while 
 
         claimant was using a wrench on that machine.  Claimant was 
 
         treated for this injury by William R. Whitmore, M.D. in his 
 
         examination note, Dr. Whitmore states:
 
         
 
                 27 January 1977 - This patient seen in the emergency 
 
              room at Mercy Hospital after an injury sustained at 
 
              work.  He was holding a wrench and it got caught in 
 
              machinery insuring the lateral border of his right 
 
              hand.  Dr. Chamany examined the patient and obtained an 
 
              x-ray and showed a severely comminuted but not markedly 
 
              displaced fracture of the 5th metacarpal.  Overlying 
 
              this was a distally based U shaped laceration and flap 
 
              over the dorsal ulnar border of the hand with some 
 
              extension into the hyperthenar muscles.  Tendon 
 
              function was intact both flexion and extension.  He 
 
              does have sensory discrimination on the ulnar border of 
 
              the little finger.
 
         
 
                 I recommended admission and exploration of the wound 
 
              with debridement and closure under general anesthesia 
 
              and this was carried out about 2 hours later.  No 
 
              digital nerve interruption was found surgically but a 
 
              considerable amount of grease was taken out of the 
 
              wound.  There was some contusion of the distally based 
 
              flap and this was debrided.
 
         
 
         (Joint Exhibit 1, page 1)
 
         
 
              Dr. Whitmore opines in a July 6, 1977 note that claimant has 
 
         a well healed scar over the ulnar border of the hand with no real 
 
         limited function or impairment found.  Dr. Whitmore reiterates 
 
         this opinion in a May 8, 1978 letter to defendant employer:  I 
 
         saw Mr. Smith on 6 July 1977 for final evaluation of his right 
 
         hand.  In my opinion he has no permanent physical impairment or 
 
         limited physical function to the hand.  He does have a scar in 
 
         the area which is well healed." (Jt. Ex. 2)
 
         
 
              Claimant was also examined with regard to permanency 
 
         resulting from the 1977 injury by Leo J. Miltner, M.D., on 
 
         December 7, 1978.  Dr. Miltner disagrees with Dr. Whitmore's 
 
         assessment of claimants impairment and opines:
 
         
 
                 We must remember that this man is a year around 
 
              worker.  In cool or colder weather, he notices coldness 
 
              and irritable sensitivity on outer side of right hand; 
 
              this includes the fourth and fifth fingers and bit of 
 
              the mid finger.  It is not possible to have an 
 
              impairment of this type in part of the hand without 
 
              involving indirectly the rest of that right hand.
 
         
 
                 According to my review of this record, there is some 
 
              minor measurable symptomatic and functional impairment 
 
              of the hand as a whole as stated.  I believe that his 
 
              subjective and objective complaints are credible.
 
         
 
                 In view of the conclusions mentioned above, the 
 
              extent of the disability should read, a minimum of 5 to 
 
              10% of the hand as a whole.
 
         
 
         (Jt. Ex. 5)
 
         
 
              Claimant was paid permanent partial disability benefits 
 
       
 
 
 
 
 
         SMITH V. FRENCH & HECHT
 
         PAGE 3
 
 
 
 
 
 
 
         based on five percent of the hand ($1,653).  Claimant returned to 
 
         work at his job as a grinder.
 
         
 
              In 1981, claimant began experiencing numbness in his right 
 
         hand which awakened him at night.  On May 8, 1978, claimant went 
 
         to Dr. Whitmore concerning this problem.  Dr. Whitmore advised 
 
         claimant that "this may be something different or something not 
 
         related to his injury, such as a carpal ulnar tunnel syndrome.  
 
         Advised him that nerve conduction and EMG studies might be 
 
         helpful..." (Jt. Ex. 23, p. 2).  On follow-up, Dr. Whitmore 
 
         advised that the nerve conduction studies failed to confirm the 
 
         diagnosis of carpal tunnel syndrome but felt that it may be too 
 
         early to show anything on the tests.  Claimant continued to have 
 
         numbness in his right hand and went to the emergency room on June 
 
         11, 1982 complaining of numbness.  On November 16, 1983, he again 
 
         returned complaining of numbness:
 
         
 
                 11-16-83  He comes in again today, having continued 
 
              problems with his right hand.  About a month ago he 
 
              woke up with considerable numbness in his right hand 
 
              but especially in the long and ring fingers.  He saw 
 
              Dr. Beckman, who first gave him some Motrin and then 
 
              tried a splint.  Since then he has been waking, maybe 2 
 
              dozen times with numbness in his hand.  He rubs it, 
 
              shakes it and it improves.
 
         
 
                 On exam, he has full grip.  He has a well healed 
 
              scar over his area of injury.  He has diminution of 
 
              sensation of the tips of the index, long and ring 
 
              finger.  Palpably he has some softening and loss of 
 
              mass of the thenar eminence of the right hand.  He has 
 
              a positive Tinel sign over the median nerve.  Acute 
 
              flexion of the wrist maintained with some force starts 
 
              the onset of paresthesia in the long and ring finger.
 
         
 
                 IMPRESSION:  Carpal tunnel syndrome, right wrist.
 
         
 
                 Don't feel that this has anything to do with his old 
 
              injury.  I recommended carpal ligament release, to be 
 
              done on the 28th of November, St. Luke's Hospital.  
 
              Probably will explore the ulnar nerve at the same time.  
 
              This was discussed with him and he agrees to surgery.
 
         
 
         (Jt. Ex. 23, p. 3)
 
         
 
              Claimant underwent surgery, release of volar carpal ligament 
 
         right wrist, on November 28, 1983.  Claimant was released to 
 
         return to work without restrictions on January 16, 1984.
 
         
 
              On July 11, 1984, claimant returned to the doctor with 
 
         problems with his left hand:
 
         
 
              7-11-84 in for examination in regard to his left hand.  
 
              It started bothering about one month ago with going to 
 
              sleep.  He was taken off his grinding lob and 
 
              complained of his whole hand being numb and shooting up 
 
              pains at the arm.  Wakes him up at night occasionally 
 
              but actually he tells me that pain has been significant 
 
              only one time that lasted for 4 months and possible 3 
 
              times a week for snorter periods of time.  It does not 
 
              wake him at night.
 
         
 
                 He has had occasional short jabs of pain in the palm 
 
              of his right hand.
 
         
 
                 On exam shows good motion, the scar in the right 
 
              wrist is well healed.
 
         
 
                 Feel we should rule out carpal tunnel syndrome in 
 
              this man since there seems to be some conflict involved 
 

 
              
 
              
 
              SMITH V. FRENCH & HECHT
 
              PAGE 4
 
              
 
              
 
              and would recommend objective testing in this manner.
 
         
 
                 Advised him today however that I do not think that 
 
              the symptoms were of sufficient magnitude to warrant 
 
              any expectation of surgery.  Nerve conduction studies 
 
              arranged and will get in touch with him after those are 
 
              completed.
 
         
 
         (Jt. Ex. 23, p. 5)
 
         
 
              Claimant continued to have difficulties with his left hand 
 
         and on September 26, 1984 he was scheduled for left carpal tunnel 
 
         release:
 
         
 
                 9-26-84  Mr. Smith has had increasing symptoms of 
 
              carpal tunnel bilaterally left greater than right.  On 
 
              examination he has good finger range of motion.  Two 
 
              point discrimination is 3-4 mm. throughout.  There is 
 
              no thenar muscle atrophy.  Phalen's test and Tinels 
 
              test are moderately positive over the median nerve at 
 
              the wrist.  A copy of Dr. Collins' consultation note is 
 
              included in the chart.  He suggested repeat 
 
              electrodiagnostic studies and these were performed on 
 
              9-21-84.  These studies still show increased 
 
              insertional activities in the C8-Tl distribution and in 
 
              addition the sensory and motor latencies of both median 
 
              nerves are prolonged with respect to normal and with 
 
              respect to the electrodiagnostic studies performed on 
 
              7-12-84.  We are going to proceed with left carpal 
 
              tunnel release under local anesthesia as an outpatient 
 
              when convenient with him and at the same time we will 
 
              inject the right carpal tunnel with Cortisone.  He is 
 
              not having symptoms referrable to the neck region 
 
              currently and we will defer investigation of this 
 
              presently.
 
         
 
         (Jt. Ex. 23, p. 6)
 
         
 
              This surgery was performed on October 4, 1984.  Claimant was 
 
         released to return to work with restrictions of no repetitive 
 
         lifting or gripping and released without restriction on December 
 
         6, 1984.  In an October 22, 1984 letter, Richard R. Ripperger, 
 
         M.D., who offices with Dr. Whitmore and performed claimant's 
 
         October 1984 carpal tunnel surgery, opines that "Mr. Smith's 
 
         carpal tunnel syndrome in the left and right wrists is aggravated 
 
         by his work at French and Hecht." (Jt. Ex. 23, p. 1)
 
         
 
              In a December 18, 1985 note Dr. Ripperger opines that 
 
         claimant has a 10 percent impairment to the right upper extremity 
 
         and a three percent impairment to the left upper extremity.
 
         
 
              In a June 23, 1983 letter to claimants attorney, Dr. 
 
         Whitmore clarifies a statement he made in the November 16, 1983 
 
         clinical note:
 
         
 
                 On the 16th of November 1983, in my clinical notes, 
 
              I stated "Don't feel this has anything to do with his 
 
              old injury".  I said nothing about a new injury but 
 
              felt that the condition he was complaining of at that 
 
              time was not related to his laceration and fracture in 
 
              1977.
 
         
 
         (Jt. Ex. 25)
 
         
 
              Claimant described the grinding job as requiring him to turn 
 
         rims weighing up to 175 pounds by himself using his wrists.  
 
         Claimant opined that he had to grind 300 to 350 rims per day.  
 
         Claimant also opined that the gripping of the rims gave him the 
 
         most difficulty.  Claimant testified that he is right-handed.  
 
         Claimant stated that after the 1983 surgery he began using his 
 

 
         
 
         SMITH V. FRENCH & HECHT
 
         PAGE 4
 
         
 
         
 
         
 
         left hand more than the right and subsequently began having 
 
         problems with his left hand.
 
         
 
              Claimant related that when he was off work from October 4, 
 
         1984 through December 10, 1984 he receives group insurance 
 
         benefits totaling $1,302.  Claimant currently works for defendant 
 
         employer as a janitor.  Claimant opined that his right hand lacks 
 
         grip strength and motion and stated that he has numbness in the 
 
         finger tips of his right hand.  Claimant identified the 
 
         attachment to the prehearing report as accurately reflecting 
 
         mileage he traveled to and from, doctors for treatment of his 
 
         right or left wrist.  Claimant testified that he did not recall 
 
         marking the box on joint exhibit 22 indicating that his condition 
 
         was not related to his employment.  Claimant stated that his left 
 
         arm is weak and gets tired easily.  Claimant denied that he 
 
         currently experiences any numbness in his left arm or hand.  
 
         Claimant could not recall stating in his deposition that he had 
 
         no left arm or hand problems.
 
         
 
                                  APPLICABLE LAW
 
         
 
              Claimant has the burden of proving by a preponderance of the 
 
         evidence that he received injuries which arose out of and in the 
 
         course of employment.  McDowell v. Town of Clarksville, 241 
 
         N.W.2d 904 (Iowa 1976); Musselman v. Central Telephone Co., 261 
 
         Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
              An employee is entitled to compensation for any and all 
 
         personal injuries which arise out of and in the course of the 
 
         employment.  Section 85.3(l).
 
         
 
              The injury must  both arise out of and be in the course of 
 
         the employment.  Crowe v  DeSoto Consol. Sch. Dist. , 246 Iowa 
 
         402, 68 N.W.2d 63 (1955) and cases cited at pp. 405-406 of the 
 
         Iowa Report.  See also Sister Mary Benedict v. St. Mary's Corp., 
 
         255 Iowa 847, 124 N.W.2d 548 (1963) and Hansen v. State of Iowa, 
 
         249 Iowa 1147, 91 N.W.2d 555 (1958).
 
         
 
              The words "out of" refer to the cause or source of the 
 
         injury.  Crowe, 246 Iowa 402, 68 N.W.2d 63.
 
         
 
              The words "in the course of" refer to the time and place and 
 
         circumstances of the injury.  McClure v. Union et al. Counties, 
 
         188 N.W.2d 283 (Iowa 1971); Crowe, 246 Iowa 402, 68 N.W.2d 63.
 
         
 
              "An injury occurs in the course of the employment when it is 
 
         within the period of employment at a place the employee may 
 
         reasonably be, and while he is doing his work or something 
 
         incidental to it."  Cedar Rapids Comm. Sch. Dist. v. Cady, 278 
 
         N.W.2d 298 (Iowa 1979), McClure, 188 N.W.2d 283, Musselman, 261 
 
         Iowa 352, 154 N.W.2d 128.
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injuries are causally related to the 
 
         disability on which he now bases his claim.  Bodish v. Fischer, 
 
         Inc., 257 Iowa 516, 133 14.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 introduces 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 
 

 
         
 
         SMITH V. FRENCH & HECHT
 
         PAGE 4
 
         
 
         
 
         
 
         be given to such an opinion is for the finder of fact, and that 
 
         may be affected by the completeness of the premise given the 
 
         expert and other surrounding circumstances.  Bodish, 257 Iowa 
 
         516, 133 N.W.2d 867.  See also Musselman, 261 Iowa 352, 154 
 
         N.W.2d 128.
 
         
 
              In McKeever Custom Cabinets v. Smith, 379 N.W.2d 368 (Iowa 
 
         1985), the court affirmed the commissioner's use of the 
 
         cumulative injury rule to decide the issues of time of injury and 
 
         liability of the appropriate carrier in factually appropriate 
 
         cases.  Regarding the issue of time of injury, the court states:
 
         
 
                 The third subsidiary question relates to the effect 
 
              of the finding of cumulative injury upon the two-year 
 
              statute of limitations:  when did the "injury" occur 
 
              for time-limitation purposes?  Again we have a legal 
 
              question.
 
         
 
                 Larson cites two rules which have been applied in 
 
              the gradual injury cases:  the injury occurs when pain 
 
              prevents the employee from continuing to work, or when 
 
              the pain occasions the need for medical attention.  
 
              Larson, SS39.50, at 7-350.28.
 
         
 
                 We incline toward the former of these alternatives; 
 
              clearly the employee is disabled and injured when, 
 
              because of pain or physical inability, he can no longer 
 
              work. (Citations omitted)
 
         
 
                 Smiths wrist pain finally compelled him to give up 
 
              his job about May 1, 1981.  We hold that he had one 
 
              compensable injury, that it occurred for time 
 
              limitation purposes when Smith gave up his job, and 
 
              that the two-year statute of limitations then began to 
 
              run.  He commenced this compensation proceeding in 
 
              August 1981, within the limitation period.  The 
 
              proceeding is not barred by section 85.26(l).
 
         
 
         Id. at 374-5.
 
         
 
                                     ANALYSIS
 
         
 
              Defendant contends that the statute of limitations on 
 
         claimants right arm, injury began to run in 1981.  For support of 
 
         this contention, defendant cites the following testimony:
 
         
 
              Q.  At times when your hand would hurt so bad at night 
 
              that you would wake up, would you miss work the 
 
              following day?
 
         
 
              A.  There's a good chance of it, yes.
 
         
 
              Q.  So it you were complaining of waking up to the 
 
              doctor at night in August of 1981, would you have 
 
              missed some work at that time or prior to that time 
 
              because of the numbness in your right hand?  Is there a 
 
              good chance of that?
 
         
 
              A.  Yes.
 
         
 
         (Tr., p. 46)
 
         
 
              Q.  It was my understanding that you said that if you 
 
              were being woken up, you probably were missing work as 
 
              early as what the records show and that would be August 
 
              of 1981, Exhibit I , page two.
 
         
 
              A.  I would believe so.
 
         
 
         (Tr., p. 57)
 

 
          
 
          SMITH V. FRENCH & HECHT
 
          PAGE 4
 
 
 
         
 
              Defendant presents no other evidence to establish the dates 
 
         when claimant was off work, the length of time claimant was off 
 
         work or the reason claimant was off work.  As the statute of 
 
         limitations defense is an affirmative defense, defendant has the 
 
         burden of establishing by the greater weight of evidence that 
 
         claimant's claim is barred by the statute of limitations in 
 
         section 85.26.  Dart v. Sheller-Globe Corporation, II Industrial 
 
         Commissioner Report 99, 101 (Appeal Decision).  Merely asking 
 
         claimant if there is a good chance he may nave missed some work 
 
         does not satisfy defendant's burden.  In McKeever, the court held 
 
         that a claimants injury arises for purposes of application of the 
 
         cumulative injury rule when because of pain an employee can no 
 
         longer work.  In this case, the record reveals that claimant was 
 
         no longer able to work because of pain on November 3, 1983 when a 
 
         Dr. Beckman (no first name in record) restricted claimants work 
 
         to no use of the right wrist.  Claimant's petition was filed 
 
         timely on December 15, 1983.
 
         
 
              Defendant also argues that claimant's carpal tunnel syndrome 
 
         in the right arm is not related to repetitive trauma but rather 
 
         is related to claimants 1977 injury.  In support of this 
 
         argument, defendant refers to Joint Exhibit 13 in which Dr. 
 
         Whitmore indicates that claimants right carpal tunnel syndrome is 
 
         related to claimant's 1977 injury.  This is contrary to Dr. 
 
         Whitmores November 16, 1983 clinical note in which he states:  
 
         "Don't feel that this has anything to do with his old injury."  
 
         See Joint Exhibit 23, page 3, and Dr. Whitmores June 25, 1985 
 
         letter in which he states:  "I said nothing about a new injury 
 
         but felt that the condition he was complaining of at that time 
 
         was not related to his laceration and fracture in 1977."  See 
 
         Joint Exhibit 25.  Dr. Whitmore's written statements in the 1985 
 
         letter and 1983 clinical note are found to be more credible and 
 
         more consistent with the record as a whole than the statement on 
 
         the form.
 
         
 
              Defendant makes a similar argument with respect to causal 
 
         connection of claimant's left carpal tunnel syndrome by 
 
         contending that joint exhibit 22 reveals that claimants left 
 
         carpal tunnel syndrome is not related to his employment.  
 
         Defendant also refers to Dr. Miltners statement that claimant had 
 
         problems with his right hand brought on by the use of a hammer at 
 
         home.   Defendant does not suggest how this hammering affects 
 
         claimant's left carpal tunnel syndrome.
 
         
 
              Contrary to defendants argument, Dr. Ripperger opines in his 
 
         October 22, 1984 letter that  "It is my opinion that Mr. Smith's 
 
         carpal tunnel syndrome in the left and right wrists is aggravated 
 
         by his work at French and Hecht." (Jt. Ex. 23)  It is a well 
 
         settled principle that an aggravation of a a preexisting 
 
         condition is compensable.  The greater weight of evidence 
 
         establishes that claimants left carpal tunnel syndrome is related 
 
         to claimant's employment with defendant employer.
 
         
 
              Defendant claims that the deputy erred in awarding claimant 
 
         permanent partial disability benefits based on a three percent 
 
         impairment to the left arm.  Defendant maintains that claimant 
 
         was not truthful in his testimony concerning left arm condition. 
 
          At his deposition, claimant indicated that he had no problems 
 
         with his left hand, but at the hearing claimant related that his 
 
         left arm is weaker and gets tired easier.  In his impairment 
 
         evaluation, Dr. Ripperger states:  "He [claimant] states that he 
 
         is having no problems with his left hand or wrist." (Jt. Ex. 27) 
 
         This statement reflects that Dr. Ripperger considered in his 
 
         rating of claimants left upper extremity impairment that claimant 
 
         was not experiencing difficulty with his left hand or wrist.  
 
         Claimants testimony does not defeat the deputy's finding that 
 
         claimant has a three percent permanent impairment to the left 
 
         upper extremity.  The greater weight of evidence establishes that 
 
         claimant suffers a 10 percent permanent impairment to the right 
 

 
              
 
              
 
              
 
         SMITH V. FRENCH & HECHT
 
         PAGE 4
 
         
 
         
 
         
 
         upper extremity.
 
         
 
              Defendant seeks a credit pursuant to Iowa Code section 
 
         85.38(2) for sick leave benefits paid to claimant. This issue was 
 
         not listed on the hearing assignment order and was not decided by 
 
         the deputy.  Therefore, the issue of credit under section 
 
         85.38(2) is not properly before this agency.  Moreover, defendant 
 
         has not made a record sufficient to establish that the sick leave 
 
         benefits were paid under a qualifying group plan under section 
 
         85.38.
 
         
 
              Failure to properly raise the issue of 85.38 credit was 
 
         considered by the Iowa Supreme Court in Krohn v. State, 420 
 
         N.W.2d 463 (Iowa 1988)
 
         
 
                 Krohn urges that the State should not be permitted 
 
              to satisfy its obligations for medical and hospital 
 
              expenses through the credit device outlined in section 
 
              85.38(2).  This contention is premised on his assertion 
 
              that the State waived its right to do so by indicating 
 
              in a prehearing report form that a section 85.38(2) 
 
              credit was not involved.  We do not believe that this 
 
              circumstance serves to deny the State the benefit of 
 
              the statutory credit.  When an employer's obligation 
 
              for medical and hospital services under the workers' 
 
              compensation laws has been established, section 
 
              85.38(2) appears to provide a method by which the 
 
              employer may act unilaterally to satisfy those 
 
              liabilities.
 
         
 
         Id. at 465.
 
         
 
              This issue was also considered by the industrial 
 
         commissioner in Olson v. Department of Transportation, Appeal 
 
         Decision (filed October 30, 1985):
 
         
 
                 The final issue claimant presents here is whether 
 
              the deputy erred in allowing the issue of credit under 
 
              section 85.38 to be presented at hearing.  Claimant 
 
              argues that this issue was not raised by defendant 
 
              employer at the time the final prehearing order was 
 
              filed, and therefore employer waived the right to raise 
 
              it at the hearing.
 
         
 
                 The question involved here is analogous to the 
 
              question raised in cases where employer-overpayment of 
 
              healing period benefits has occurred. In those cases it 
 
              has been found that not allowing an employer credit for 
 
              mistaken overpayment would "unjustly enrich the 
 
              claimant" without serving a specific policy of the 
 
              statute.  See United Concern For Children v. Caputo, 
 
              320 N.W.2d 643, 645 (Iowa App. 1982).  To deny the 
 
              defendants here the right to credit for defendants' 
 
              failure to raise the issue at prehearing would be 
 
              unjust and would give claimant an unfair windfall.  
 
              Therefore, defendant employer is allowed to take 
 
              whatever credit they believe is appropriate for long 
 
              term disability payments in accordance with Iowa Code 
 
              section 85.38(2), and if claimant believes the credit 
 
              taken is improper, he may petition this agency for 
 
              relief.
 
         
 
                 Defendants shall not take a credit in this case 
 
              because of claimant's use of his vacation entitlement.
 
         
 
                 Regarding sick leave benefits, defendants may take 
 
              whatever credit they believe is appropriate and if 
 
              claimant believes the credit taken is improper he may 
 
              petition this agency for relief.  See Iowa Code section 
 
              85.38(3).
 

 
              
 
              
 
         SMITH V. FRENCH & HECHT
 
         PAGE 4
 
 
 
 
 
         
 
              Although the issue of credit under section 85.38 is not 
 
         properly before this agency, defendant will be allowed to take 
 
         whatever credit they believe is appropriate, and if claimant 
 
         believes the credit taken is improper, he may petition this 
 
         agency for relief.
 
         
 
              Defendant also seeks a credit for permanent partial 
 
         disability benefits paid to claimant for the 1977 injury.  As the 
 
         1977 injury has already been found to be not causally related to 
 
         claimants present disability, defendant is not entitled to credit 
 
         for permanent partial disability benefits paid for claimant's 
 
         1977 injury.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              1.  Claimant was employed by defendant as a salvage grinder 
 
         which required him to use his wrists to turn up to 350 wheel rims 
 
         per day, each wheel rim weighing from five to 175 pounds.
 
         
 
              2.  Claimant operated a hand-held air grinder.
 
         
 
              3.  Claimant first noticed numbness in his right hand in 
 
         1978.
 
         
 
              4.  On November 3, 1983, claimant was restricted to no work 
 
         involving repeated pronation and supination of the right wrist.
 
         
 
              5.  On November 16, 1983, claimant was diagnosed as having 
 
         carpal tunnel syndrome in the right wrist and on November 28, 
 
         1983, surgery was performed to treat the carpal tunnel syndrome.
 
         
 
              6.  Claimant was off work as a result of the right carpal 
 
         tunnel surgery from November 28, 1983 through January 16, 1984.
 
         
 
              7.  As a result of the right carpal tunnel syndrome, 
 
         claimant suffers a 10 percent permanent impairment to the right 
 
         upper extremity.
 
         
 
              8.  Claimant sustained a work injury on November 3, 1983 
 
         resulting in right carpal tunnel syndrome.
 
         
 
              9.  Claimant returned to work as a salvage grinder after the 
 
         right carpal tunnel surgery and began favoring his left hand.
 
         
 
             10.  Claimant reported numbness in his left hand on July 11, 
 
         l984 and was taken off of his grinding job.
 
         
 
             11.  On September 26, 1984, claimant was diagnosed as having 
 
         left carpal tunnel syndrome and on October 4, 1984, surgery was 
 
         performed to treat the carpal tunnel syndrome.
 
         
 
             12.  Claimant was off work as a result of the left carpal 
 
         tunnel surgery from October 4, 1984 through December 10, 1984.
 
         
 
             13.  As a result of the left carpal tunnel syndrome, claimant 
 
         suffers a three percent permanent impairment to the left upper 
 
         extremity.
 
         
 
             14.  Claimant sustained a work injury on July 11, 1983 
 
         resulting in left carpal tunnel syndrome.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              Claimant has established by a preponderance of the evidence 
 
         that he sustained an injury to his right upper extremity arising 
 
         out of and in the course of employment his November 3, 1983.
 
         
 
              Claimant has established by a preponderance of the evidence 
 
         that he suffers a 10 percent permanent impairment to the right 
 

 
         
 
              
 
        SMITH V. FRENCH & HECHT
 
        PAGE 4
 
         
 
         
 
         
 
         upper extremity as a result of the November 3, 1983 injury.
 
         
 
              Claimant has established by a preponderance of the evidence 
 
         that he sustained an injury to his left upper extremity arising 
 
         out of and in the course of his employment on July 11, 1984.
 
         
 
              Claimant has established by a preponderance of the evidence 
 
         that he suffers a three percent permanent impairment to the left 
 
         upper extremity as a result of the July 11, 1984 injury.
 
         
 
              WHEREFORE, the decision of the deputy is affirmed and 
 
         modified.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, it is ordered:
 
         
 
              That defendant pay to claimant healing period benefits for 
 
         the periods claimant was off work; November 28, 1983 through 
 
         January 16, 1984, and October 4, 1984 through December 10, 1984.
 
         
 
              That defendant pay to claimant twenty-five (25) weeks of 
 
         permanent partial disability benefits at the late of two hundred 
 
         twenty-six and 50/100 dollars ($226.50) per week commencing 
 
         January 17, 1984.
 
         
 
              That defendant pay to claimant seven point five (7.5) weeks 
 
         of permanent partial disability benefits at the rate of two 
 
         hundred twenty-six and 50/100 dollars ($226.50) per week 
 
         commencing December 11, 1984.
 
         
 
              That defendant pay accrued weekly benefits in a lump sum 
 
         together with interest pursuant to Iowa Code section 85.30.
 
         
 
              That defendant pay claimant for medical expenses in the 
 
         amount of one hundred forty-three and 04/100 dollars ($143.04).
 
         
 
              That defendant pay the costs of this action, including the 
 
         costs of the transcription of the hearing proceeding pursuant to 
 
         Division of Industrial Services Rule 343-4.33.
 
         
 
              That defendant shall file activity reports upon the payment 
 
         of this award as requested by this agency pursuant to Division of 
 
         Industrial Services Rule 343-3.1.
 
         
 
              That another file be opened for the July 11, 1984 injury.
 
         
 
              That defendant shall file with this agency a first report of 
 
         injury on each of the two injuries within twenty (20) days of the 
 
         filing of this decision.
 
         
 
         
 
              Signed and filed this 23rd day of August, 1988.
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
                                               DAVID E. LINQUIST
 
                                               INDUSTRIAL COMMISSIONER
 
         
 
         Copies to:
 
         
 
         Mr. James M. Hood
 
         Attorney at Law
 
         302 Union Arcade Building
 
         Davenport, Iowa 52801
 
         
 

 
              
 
              
 
        SMITH V. FRENCH & HECHT
 
        PAGE 4
 
 
 
 
 
 
 
         Mr. Larry L. Shepler
 
         Mr. Craig A. Levien
 
         Attorneys at Law
 
         600 Union Arcade Bldg.
 
         Davenport, Iowa 52801
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                               2402; 1402.40; 1803; 1701
 
                                               Filed August 23, 1988
 
                                               David E. Linquist
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         HARVEY R. SMITH,
 
         
 
              Claimant,                          File No. 750419
 
         
 
         vs.                                       A P P E A L
 
         
 
         FRENCH & HECHT,                         D E C I S I O N
 
         
 
              Employer,
 
              Self-Insured,
 
              Defendant.
 
         
 
         
 
         
 
         2402
 
         
 
              Claimant found to have filed his claim within the statute of 
 
         limitations of section 85.26.  Claimant filed within two years 
 
         after time when because of pain he could no longer work.  See 
 
         McKeever, 379 N.W.2d 368 (Iowa 1985).  Defendant has the burden 
 
         or proving claimant's claim is not timely.  Merely asking 
 
         claimant if he may have missed some work does not satisfy 
 
         defendant's burden.
 
         
 
         1402.40; 1803
 
         
 
              The greater weight of medical evidence established that 
 
         claimant's carpal tunnel syndrome was related to his employment 
 
         and resulted in a three percent impairment to the left arm and a 
 
         10 percent impairment to the right arm.
 
         
 
         1701
 
         
 
              Defendant is entitled to take whatever credit it believes is 
 
         appropriate pursuant to section 85.38(2) and claimant may 
 
         petition the agency if he believes the credit taken is improper.
 
         
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                   BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
 
 
      DAVID MALLOY,
 
 
 
           Claimant,
 
 
 
      vs.
 
                                            File Nos. 750585/731149
 
      FLOYD VALLEY PACKING CO.,
 
                                                 A P P E A L
 
           Employer,
 
                                              D E C I S I O N
 
      and
 
 
 
      ARGONAUT INSURANCE COMPANY
 
      and NORTHWESTERN NATIONAL
 
 
 
           Insurance Carriers,      
 
 
 
 
 
 
 
 The record, including the transcript of the hearing before the 
 
 deputy and all exhibits admitted into the record, has been 
 
 reviewed de novo on appeal. The decision of the deputy filed July 
 
 23, 1990 is affirmed and is adopted as the final agency action in 
 
 this case with the following additional analysis:
 
 
 
 Generally speaking, a plant layoff affects all employees equally, 
 
 and a layoff would not constitute a non-physical change of 
 
 condition justifying an award of further benefits under review-
 
 reopening. However, in this case the record shows that claimant, 
 
 after his injury, was unable to perform the duties of the job he 
 
 returned to without physical assistance from fellow employees. 
 
 When the employer shut down the plant and laid claimant off, he 
 
 lost this accommodation. Claimant, in competing for employment 
 
 after the layoff, cannot request or expect a similar 
 
 accommodation arrangement from a new employer. As a result, 
 
 claimant's loss of earning capacity has increased above and 
 
 beyond that which existed at the time of the earlier settlement. 
 
 At that time, claimant was employed in large part because of the 
 
 accommodation of his fellow workers. Now claimant is unemployed 
 
 in large part because he has lost that accommodation. Claimant 
 
 has suffered a change of condition and further loss of earning 
 
 capacity above and beyond that suffered by his co-workers that 
 
 were laid off.
 
 
 
 Defendants shall pay the costs of the appeal, including the 
 
 preparation of the hearing transcript.
 

 
 
 
 
 
 
 
 
 
 
 
 MALLOY V. FLOYD VALLEY PACKING CO. 
 
 Page 2
 
 
 
 
 
 
 
 
 
      Signed and filed this ~ day of August, 1992.
 
      
 
      
 
      
 
      
 
      
 
                                                  BYRON K. ORTON
 
                                             INDUSTRIAL COMMISSIONER
 
 
 
 Copies To:
 
 
 
 Mr. MacDonald Smith
 
 Attorney at Law
 
 P O Box 1194
 
 Sioux City, Iowa  51102
 
 
 
 Mr. Harry W. Dahl
 
 Attorney at Law
 
 974 73rd Street
 
 Suite 16
 
 Des Moines, Iowa  50312
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                  9999
 
                                                  Filed August 26, 1992
 
                                                  BYRON K. ORTON
 
                               
 
 
 
                  BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
 
 
      DAVID MALLOY,
 
 
 
           Claimant,
 
      
 
      vs.
 
                                              File Nos. 750585/731149
 
      FLOYD VALLEY PACKING CO.,
 
                                                  A P P E A L
 
           Employer,
 
                                                D E C I S I O N
 
    and
 
 
 
      ARGONAUT INSURANCE COMPANY
 
      and NORTHWESTERN NATIONAL,
 
 
 
      Insurance Carriers, Defendants.
 
      
 
      
 
      
 
 9 999
 
 
 
 Summary affirmance of deputy's decision filed July 23, 1990, 
 
 with short additional analysis.
 
 
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                     :
 
            DAVID MALLOY,            :
 
                                     :
 
                 Claimant,           :
 
                                     :        File No. 750585
 
            vs.                      :
 
                                     :
 
            FLOYD VALLEY PACKING CO.,:     A R B I T R A T I O N
 
                                     :
 
                 Employer,           :        D E C I S I O N
 
                                     :
 
            and                      :
 
                                     :
 
            ARGONAUT INSURANCE       :
 
            COMPANIES,               :
 
                                     :
 
                 Insurance Carrier,  :
 
                 Defendants.         :
 
            ___________________________________________________________
 
                                     :
 
            DAVID MALLOY,            :
 
                                     :
 
                 Claimant,           :
 
                                     :        File No. 731149
 
            vs.                      :
 
                                     :
 
            FLOYD VALLEY PACKING CO.,:         R E V I E W -
 
                                     :
 
                 Employer,           :       R E O P E N I N G
 
                                     :
 
            and                      :        D E C I S I O N
 
                                     :
 
            NORTHWESTERN NATIONAL    :
 
            
 
                 Insurance Carrier,  :
 
                 Defendants.         :
 
            
 
            ___________________________________________________________
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This is a combined proceeding in both arbitration and 
 
            review-reopening brought by David Malloy, claimant, again 
 
            Floyd Valley Packing Co., employer, hereinafter referred to 
 
            as Floyd Valley, and both Argonaut and Northwestern 
 
            National, insurance carriers, defendants, for workers' 
 
            compensation benefits as a result of alleged injuries on 
 
            July 19, 1982 and November 19, 1983.  A prior Iowa Code 
 
            section 86.13 settlement for the July 19, 1982 injury was 
 
            filed and approved by this agency in November 1984.  On 
 
            March 22, 1990, a hearing was held on claimant's petitions 
 
            filed herein and the matter was considered fully submitted 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            at the close of the hearing.
 
            
 
                 The parties have submitted a prehearing report of 
 
            contested 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 July 19, 1982, and again on November 19, 1983, 
 
            claimant received injuries which arose out of and in the 
 
            course of employment with Floyd Valley.
 
            
 
                 2.  With reference to the injury of November 19, 1983, 
 
            if defendants are held liable for the injury, claimant's 
 
            entitlement to temporary total disability or healing period 
 
            benefits extend from November 21, 1983 through January 10, 
 
            1984.
 
            
 
                 3.  If the injury of November 19, 1983 is found to have 
 
            caused permanent disability, the type of disability is an 
 
            industrial disability to the body as a whole.
 
            
 
                 4.  If permanent disability benefits are awarded with 
 
            reference to the July 19, 1982 injury, such benefits will be 
 
            begin on September 29, 1983.  With reference to the November 
 
            19, 1983 injury, permanent partial disability benefits will 
 
            begin as of January 11, 1984.
 
            
 
                 5.  Claimant's rate of weekly compensation in the event 
 
            of an award of weekly benefits from this proceeding shall be 
 
            $214.51 for the November 19, 1983 injury and $243.07 for the 
 
            July 19, 1982 injury.
 
            
 
                 6.  Northwestern National Insurance coverage ended on 
 
            September 30, 1982 and Argonaut Insurance Company coverage 
 
            extended from October 1, 1982 through December 1, 1983.
 
            
 
                                      issues
 
            
 
                 The parties submitted the following issues for 
 
            determination in this proceeding:
 
            
 
                   I.  Whether there has been a change of condition 
 
            since the 1984 settlement warranting a re-evaluation of 
 
            permanent disability caused as a result of the injury of 
 
            July 19, 1982; and,
 
            
 
                  II.  The causal connection and extent of claimant's 
 
            entitlement to additional disability benefits as a result of 
 
            each of the two work injuries herein.
 
            
 
            
 
                                 findings of fact
 
            
 
                 Having heard the testimony and considered all the 
 
            evidence, the deputy industrial commissioner finds as 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            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 his 
 
            disability.  From his demeanor while testifying, claimant is 
 
            found credible.
 
            
 
                 Claimant is a 34-year-old meat packing worker from 
 
            Sloan, Iowa.  Claimant primarily worked in sanitation jobs 
 
            for Floyd Valley from May 19, 1974 until the packing plant 
 
            closed for economic reasons in March 1985.  During his 
 
            employment, claimant cleaned and scrubbed equipment and 
 
            facilities using high pressure hoses, shovels, brooms and 
 
            other cleaning materials.  In the latter part of his 
 
            employment at Floyd Valley, claimant worked in the laundry 
 
            department washing employer furnished frocks and cleaning 
 
            the laundry room.  All this work was heavy manual labor 
 
            except that the laundry job appeared to be somewhat lighter 
 
            duty although it required heavy lifting on occasion.
 
            
 
                 On or about July 19, 1982, claimant injured his neck or 
 
            cervical area of the spine and the thoracic area of his 
 
            spine while lifting a heavy wooden plank at work.  Although 
 
            the initial treating physician at the time felt that the 
 
            injury was not serious, the later treating neurosurgeon, 
 
            Horst C. Blume, M.D., opined from claimant's continuing and 
 
            chronic complaints after the injury that claimant sustained 
 
            a 5 percent permanent partial impairment to the body as a 
 
            whole as a result of the injury.  Dr. Blume also causally 
 
            related chronic headaches to the injury and opined that 
 
            claimant would continue to have these headaches in the 
 
            future.  Claimant was returned to light duty work in 
 
            September 1983.  Apparently, no formal restrictions were 
 
            imposed by Dr. Blume.  Claimant then began working in the 
 
            laundry which was somewhat lighter work than working near 
 
            the line in the packing plant.  Occasionally, however, this 
 
            work even required heavy lifting and repetitive bending and 
 
            reaching.  On November 19, 1984, claimant settled his 
 
            workers' compensation claim against Floyd Valley as a result 
 
            of the July 19, 1982 injury wherein Floyd Valley agreed that 
 
            claimant suffered a work injury and a resulting 7 1/2 
 
            percent permanent partial disability to the body as a whole.  
 
            Benefits were paid accordingly under this settlement which 
 
            remained subject to review-reopening.
 
            
 
                 In October 1982 and December 1984, claimant injured his 
 
            left knee for which he received extensive treatment and was 
 
            again placed on light duty status.  Treating physicians 
 
            opined that claimant suffered a 7 percent permanent partial 
 
            impairment to the leg as a result of these knee injuries.  
 
            Claimant was restricted from climbing stairs in the laundry 
 
            job.
 
            
 
                 On November 19, 1983, claimant reinjured his cervical 
 
            and thoracic spine and his low back from a fall after 
 
            receiving an electrical shock in the laundry room.  Claimant 
 
            was off work from November 21, 1983 until January 10, 1984, 
 
            at which time he returned to work in the laundry room.  
 
            Claimant was unable to fully perform heavy work in the 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            laundry room after this injury.  The testimony of fellow 
 
            employees that they began to help claimant perform heavy 
 
            lifting after the shock injury was uncontroverted in the 
 
            record.  Claimant continued in the laundry job with the 
 
            assistance of fellow employees until the plant closed in 
 
            March 1985.
 
            
 
                 In June 1985, claimant injured his upper and lower back 
 
            in a motor vehicle accident unrelated to his work.  Claimant 
 
            received medical treatment for this injury and a $6,000 
 
            settlement as a result of a personal injury claim arising 
 
            from this accident.
 
            
 
                 As a result of the November 1983 injury to the lumbar 
 
            spine, claimant suffered a 7 1/2 percent permanent partial 
 
            impairment to the body as a whole and is restricted by this 
 
            disability from performing extensive heavy work.  This 
 
            finding is based upon the uncontroverted opinions of the 
 
            only physician to render an opinion on the matter, Anil K. 
 
            Agarwal, M.D., an orthopedic surgeon.  The treating 
 
            physician, Dr. Blume, did not render a permanent partial 
 
            impairment opinion with reference to the 1983 injury.  Dr. 
 
            Blume stated that the November 1983 incident injured the 
 
            lumbar spine and that the cervical spine was only 
 
            temporarily aggravated.  Another orthopedic surgeon, Patrick                                 
 
            E. Clare, M.D., suggested that claimant should seek light 
 
            duty type of work in the future.  Dr. Agarwal opined without 
 
            contradiction in the record that the 1985 auto injury only 
 
            temporarily aggravated his low back condition and did not 
 
            permanently worsen claimant's condition.
 
            
 
                 The record indicates that claimant has had occasional 
 
            upper and lower back problems following injuries both on and 
 
            off work before any of the above injury dates discussed in 
 
            this case but he had no ascertainable disabilities prior to 
 
            the work injuries in this case.  No physician has opined 
 
            that any of the prior injuries resulted in permanent partial 
 
            impairment or work restrictions.  Claimant's testimony 
 
            considering his ability to perform heavy work after each of 
 
            these prior injuries is uncontroverted.
 
            
 
                 Claimant has a history of psychological difficulties 
 
            from depression requiring treatment, including individual 
 
            and group psychotherapy and use of medication.  No 
 
            physician, however, has opined that these problems cause 
 
            permanent disability or in any way interfered with his 
 
            occupational pursuits.
 
            
 
                 As a result of the combined disability from permanent 
 
            partial impairment due to the July 1982 injury and the plant 
 
            closure of March 16, 1985; the permanent partial impairment 
 
            as a result of the November 19, 1983 injury; and, permanent 
 
            partial impairment from the knee injuries, claimant has 
 
            suffered an additional 75 percent loss of earning capacity 
 
            since the settlement in 1984.  The three injuries contribute 
 
            equally to this disability.  The additional loss of earning 
 
            capacity from the July 19, 1982 and the November 19, 1983 
 
            injuries (the only two injuries at issue in this case) is 50 
 
            percent, each injury contributing one-half towards the loss.  
 
            Physical impairment to the body as a whole from the neck and 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            back injuries were roughly equal.  Claimant was able to 
 
            return to work after each injury and the effects of both of 
 
            these injuries were greatly aggravated by the plant closure 
 
            on March 16, 1985.  Claimant has been unable to secure full-
 
            time employment since the plant closure and to return to the 
 
            level of income he was receiving at Floyd Valley.  Claimant 
 
            has made several attempts, including attempted relocation, 
 
            to find suitable replacement employment.  Claimant currently 
 
            operates his own business on a self-employment basis 
 
            performing handyman, plumbing and septic tank work.  
 
            However, he continues to earn less money than his job at 
 
            Floyd Valley.  Claimant has very limited potential 
 
            vocational rehabilitation due to the lack of education.  
 
            Vocational testing indicates a learning disability.  
 
            Vocational exhibits reveal a possible benefit can be derived 
 
            from vocational counseling but no such counseling has been 
 
            offered by defendants.
 
            
 
                                conclusions of law
 
            
 
                 I.  In a review-reopening proceeding, claimant has the 
 
            burden of establishing by a preponderance of the evidence 
 
            that he suffered a change of condition or a failure to 
 
            improve as medically anticipated as a proximate result of 
 
            the original injury subsequent to the date of the award or 
 
            the agreement for compensation under review, which entitles 
 
            him to additional compensation.  Deaver v. Armstrong Rubber 
 
            Co., 170 N.W.2d 455 (Iowa 1969); Meyers v. Holiday Inn of 
 
            Cedar Falls, 272 N.W.2d 24 (Iowa Court of Appeals or Iowa 
 
            CT. App. 1978).  Such a change of condition is not limited 
 
            to a physical change of condition.  A change in earning 
 
            capacity subsequent to the original award which is 
 
            proximately caused by the original injury also constitutes a 
 
            change in condition under Iowa Code section 85.26(2) and 
 
            86.14(2).  See McSpadden v. Big Ben Coal Co., 288 N.W.2d 192 
 
            (Iowa 1980); Blacksmith v. All-American, Inc., 290 N.W.2d 
 
            348 (Iowa 1980).
 
            
 
                 In the case sub judice, claimant has shown a 
 
            nonphysical change in his earning capacity following a 
 
            settlement sufficient to warrant review-reopening of 
 
            claimant's award under the provisions of section 86.14(2).  
 
            Nelson v. Keokuk Steel Casting, (Appeal Decision filed July 
 
            24, 1986).  The future loss of a job is not to be predicted 
 
            when the original award is made.  Assessment of the impact 
 
            upon earning capacity is to be made when the loss of a job 
 
            occurs.  See Umphress v. Armstrong Rubber Co., (Appeal 
 
            Decision filed August 27, 1987).
 
            
 
                 Claimant must establish by a preponderance of the 
 
            evidence the extent of weekly benefits for permanent 
 
            disability to which claimant is entitled.  As the claimant 
 
            has shown that the work injury was a cause of a permanent 
 
            physical 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 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            "industrial disability" is a loss of earning capacity 
 
            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 
 
            condition 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, immediately after the injury and presently; the 
 
            situs of the injury, its severity and the length of healing 
 
            period; the work experience of the employee prior to the 
 
            injury, after the injury and potential for rehabilitation; 
 
            the employee's qualifications intellectually, emotionally 
 
            and physically; earnings prior and subsequent to the injury; 
 
            age; education; motivation; functional impairment as a 
 
            result of the injury; and inability because of the injury to 
 
            engage in employment for which the employee is fitted.  Loss 
 
            of earnings caused by a job transfer for reasons related to 
 
            the injury is also relevant.  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 an additional 75 percent loss of earning capacity, 
 
            above the 7.5 percent agreed to in the 1984 settlement, as a 
 
            result of all of the various work injuries causing permanent 
 
            partial impairment.  However, it was further found that only 
 
            50 percent was due to the two neck and back injuries at 
 
            issue in this case and that each injury was equally 
 
            responsible.  Based upon such findings, claimant is entitled 
 
            as a matter of law to 250 weeks of permanent partial 
 
            disability benefits under Iowa Code section 85.34(s)(u) 
 
            which is 50 percent of 500 weeks, the maximum allowable for 
 
            an injury to the body as a whole under that subsection.  
 
            Floyd Valley as insured by Northwestern National will be 
 
            ordered to pay 125 weeks at the stipulated weekly rate from 
 
            September 29, 1983, the date stipulated as the commencement 
 
            date in the prehearing report.  Floyd Valley as insured by 
 
            Argonaut will be ordered to pay 125 weeks at the stipulated 
 
            weekly rate from January 11, 1984, the commencement date 
 
            stipulated to in the prehearing report.
 
            
 
                 As claimant has established entitlement to permanent 
 
            partial disability as a result of the November 19, 1983 
 
            injury, claimant is entitled to the weekly benefits for 
 
            healing period as stipulated in the prehearing report to the 
 
            extent stipulated in the prehearing report and such benefits 
 
            will be awarded.
 
            
 
                                      order
 
            
 
                 1.  Defendant Floyd Valley as insured by Northwestern 
 
            National Insurance Company shall pay to claimant, one 
 
            hundred twenty-five (125) weeks of permanent partial 
 
            disability benefits at the rate of two hundred forty-three 
 
            and 07/100 dollars ($243.07) per week from September 29tcw, 
 
            1983.  Defendant Floyd Valley as insured by Argonaut 
 
            Insurance Company shall pay to claimant, one hundred 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            twenty-five (125) weeks of permanent partial disability 
 
            benefits at the rate of two hundred fourteen and 51/100 
 
            dollars ($214.51) per week from January 11, 1984.
 
            
 
                 2.  Defendants as insured by Argonaut shall pay to 
 
            claimant, healing period benefits from November 21, 1983 
 
            through January 10, 1984, at the rate of two hundred 
 
            fourteen and 51/100 dollars ($214.51) per week.
 
            
 
                 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 interest on weekly benefits 
 
            awarded herein as set forth in Iowa Code section 85.30.
 
            
 
                 5.  Defendants shall pay the costs of this action 
 
            pursuant to Division of Industrial Services Rule 343-4.33.  
 
            Each defendant insurance carrier will pay one-half the cost.
 
            
 
                 6.  Defendants shall file activity reports upon the 
 
            payment of this award as requested by this agency pursuant 
 
            to Division of Industrial Services Rule 343-3.1.
 
            
 
            
 
                 Signed and filed this ____ day of July, 1990.
 
            
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          LARRY P. WALSHIRE
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr MacDonald Smith
 
            Attorney at Law
 
            P O Box 1194
 
            Sioux City IA 51102
 
            
 
            Mr Harry W Dahl
 
            Attorney at Law
 
            974 73rd St Ste 16
 
            Des Moines IA 50312
 
            
 
            Mr James M Cosgrove
 
            Attorney at Law
 
            1109 Badgerow Bldg
 
            P O Box 1828
 
            Sioux City IA 51102
 
            
 
            
 
                 
 
            
 
 
            
 
 
 
 
 
                                          1803
 
                                          Filed July 23, 1990
 
                                          Larry P. Walshire
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                     :
 
            DAVID MALLOY,            :
 
                                     :
 
                 Claimant,           :
 
                                     :        File No. 750585
 
            vs.                      :
 
                                     :
 
            FLOYD VALLEY PACKING CO.,:     A R B I T R A T I O N
 
                                     :
 
                 Employer,           :        D E C I S I O N
 
                                     :
 
            and                      :
 
                                     :
 
            ARGONAUT INSURANCE       :
 
            COMPANIES,               :
 
                                     :
 
                 Insurance Carrier,  :
 
                 Defendants.         :
 
            ___________________________________________________________
 
                                     :
 
            DAVID MALLOY,            :
 
                                     :
 
                 Claimant,           :
 
                                     :        File No. 731149
 
            vs.                      :
 
                                     :
 
            FLOYD VALLEY PACKING CO.,:         R E V I E W -
 
                                     :
 
                 Employer,           :       R E O P E N I N G
 
                                     :
 
            and                      :        D E C I S I O N
 
                                     :
 
            NORTHWESTERN NATIONAL    :
 
                                     :
 
                 Insurance Carrier,  :
 
                 Defendants.         :
 
            
 
            ___________________________________________________________
 
            
 
            1803
 
            
 
            
 
                 Two extended permanent disability benefits.  There were 
 
            two injuries, one was previously settled.  It was held that 
 
            a plant closure was a change of condition sufficient to 
 
            reopen the settlement award.  It was found that the 
 
            subsequent injury and the change of condition resulted from 
 
            the original injury and caused an additional 50 percent loss 
 
            of earning capacity, each injury contributing one-half.  The 
 
            two insurance carriers involved were ordered to pay one-half 
 
            of the disability.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            JAMES WIEBERS,                :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 751080
 
            WESTINGHOUSE ELECTRIC,        :
 
                                          :        A P P E A L
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            LIBERTY MUTUAL INSURANCE CO., :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                                        
 
            
 
                              statement of the case
 
            
 
                 Claimant appeals from an arbitration decision denying 
 
            claimant permanent partial disability benefits.
 
            
 
                 The record on appeal consists of the transcript of the 
 
            arbitration hearing; joint exhibits 1 through 22; and 
 
            defendants' exhibit A.  Both parties filed briefs on appeal.
 
            
 
                                      issues
 
            
 
                 Claimant states the issues on appeal are:
 
            
 
                 A.  Whether there is a relationship between the 
 
                 work injury and any alleged permanent partial 
 
                 disability.
 
            
 
                 B.  The nature and extent of such disability.
 
            
 
                              review of the evidence
 
            
 
                 The arbitration decision dated April 19, 1989 
 
            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 analysis of the evidence in conjunction with the 
 
            law in the arbitration decision is adopted.
 
            
 
                                 findings of fact
 
            
 
                 1.  Kerry L. Jensen, M.D., the first treating 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            physician, Eugene E. Herzberger, M.D., the second treating 
 
            physician, who was also claimant's choice of physicians and 
 
            James E. Ives, M.D., all stated that claimant did not 
 
            sustain any permanent impairment or disability and none of 
 
            these doctors imposed any restrictions on claimant's 
 
            activities.
 
            
 
                 2.  John R. Walker, M.D., imposed no permanent 
 
            restrictions or limitations on claimant's activities and 
 
            recommended against any objective tests at this time.
 
            
 
                 3.  Claimant returned to work as a millwright in 1984 
 
            and 1985 after claimant's injury.
 
            
 
                 4.  Claimant performed a number of labor and skilled 
 
            labor jobs that require dexterity and physical strength and 
 
            is currently self-employed as a repairman and restorer of 
 
            damaged houses.
 
            
 
                 5.  Claimant did not sustain a permanent impairment or 
 
            permanent disability as a result of the injury on November 
 
            12, 1983.
 
            
 
                 6.  Claimant's treatment with Louie L. Burkert, D.C., 
 
            and Dr. Herzberger was not authorized by defendants.
 
            
 
                                conclusions of law
 
            
 
                 Claimant failed to prove by the greater weight of the 
 
            evidence that the injury of November 12, 1983 was the cause 
 
            of permanent impairment or permanent disability.
 
            
 
                 Claimant is not entitled to permanent partial 
 
            disability benefits.
 
            
 
                 Claimant is not entitled to the payment of the medical 
 
            expenses incurred with Dr. Burkert, Dr. Herzberger nor Dr. 
 
            Walker.
 
            
 
                 WHEREFORE, the decision of the deputy is affirmed.
 
            
 
                                      order
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 That no additional amounts are owed by defendants to 
 
            claimant as a result of the injury of November 12, 1983.
 
            
 
                 That claimant pay the costs of this action including 
 
            the costs of transcription of the arbitration hearing.
 
            
 
                 Signed and filed this ______ day of February, 1990.
 
            
 
            
 
            
 
                                         ___________________________
 
                                              DAVID E. LINQUIST
 
                                           INDUSTRIAL COMMISSIONER
 
            
 
                 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            Copies To:
 
            
 
            Mr. Barry Moranville
 
            Attorney at Law
 
            974 73rd St., Ste. 16
 
            Des Moines, Iowa 50312
 
            
 
            Mr. Greg Egbers
 
            Attorney at Law
 
            600 Union Arcade Bldg.
 
            Davenport, Iowa 52801
 
            
 
                 
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                          1402.40
 
                                          Filed February 28, 1990
 
                                          DAVID E. LINQUIST
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            JAMES WIEBERS,                :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 751080
 
            WESTINGHOUSE ELECTRIC,        :
 
                                          :        A P P E A L
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            LIBERTY MUTUAL INSURANCE CO., :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            1402 40
 
            Claimant's treating physician stated that claimant did not 
 
            sustain any permanent impairment nor imposed any 
 
            restrictions on claimant's activities.  Therefore, claimant 
 
            failed to prove by the greater weight of the evidence that 
 
            the injury of November 12, 1983 was the cause of permanent 
 
            impairment.
 
            
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         JAMES WIEBERS,                  :
 
         
 
               Claimant,                 :
 
          :
 
          VS. :                                       File No. 751080
 
          :
 
          WESTINGHOUSE ELECTRIC,         :        A R B I T R A T I O N
 
          :
 
               Employer,                 :             D E C I S I O N
 
          :
 
          and :
 
              :
 
          LIBERTY MUTUAL INSURANCE CO.,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
                                   INTRODUCTION
 
                                        
 
              This is a proceeding in arbitration brought by James 
 
         Wiebers, claimant, against Westinghouse Electric, employer, and 
 
         Liberty Mutual Insurance Company, insurance carrier, defendants, 
 
         for benefits as the result of an injury that occurred on November 
 
         12, 1983.  A hearing was held in Davenport, Iowa, on February 19, 
 
         1988, and the case was fully submitted at the close of the 
 
         hearing.  The record consists of the testimony of James Wiebers, 
 
         claimant, Daniel Bark, union representative, joint exhibits 1 
 
         through 22 and defendants' exhibit A. Defendants ordered a 
 
         transcript of the hearing for the industrial commissioner's file.  
 
         Both attorneys prepared and submitted outstanding 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 November 12, 1983, 
 
         which arose out of and in the course of employment with employer.
 
         
 
              That the injury was  the  cause  of  temporary  disability, 
 
         that claimant was paid temporary disability benefits from 
 
         November 17, 1983 through February 6, 1984, and that claimant's 
 
         entitlement to temporary disability benefits is not a disputed 
 
         issue in this case at this time.
 
         
 
              That the type of permanent disability, if the injury is 
 
         found to be a cause of permanent disability, is industrial
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         WIEBERS  VS. WESTINGHOUSE ELECTRIC
 
         Page 2
 
         
 
         
 
         disability to the body as a whole.
 
         
 
              That the commencement date of permanent partial disability 
 
         benefits, in the event such benefits are awarded, is February 7 , 
 
         1984.
 
         
 
              That the rate of compensation, in the event of an award, is 
 
         $362.30 per week.
 
         
 
              That the fees charged for medical services or supplies are 
 
         fair and reasonable.
 
         
 
              That the causal connection of the disputed medical expenses 
 
         for treatment of a medical condition upon which claimant is now 
 
         basing his claim is admitted, but the causal connection of this 
 
         condition to a work injury remains a disputed issue to be decided 
 
         by these proceedings.
 
         
 
              That defendants claim no credit for benefits paid prior to 
 
         hearing under an employee nonoccupational group health plan.
 
         
 
              That defendants are entitled to a credit for 30 days of 
 
         workers' compensation benefits paid after February 6, 1984, 
 
         during the 30 day period of the auxier notice.
 
         
 
              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 permanent disability 
 
         benefits.
 
         
 
              Whether claimant is entitled to certain medical expenses, 
 
         more specifically, Dr. Burkert - $87, Dr. Herzberger - $22 and 
 
         Dr. Walker - $293.
 
         
 
                             SUMMARY OF THE EVIDENCE
 
         
 
              Of all of the evidence that was introduced, the following is 
 
         a summary of the evidence most pertinent to this decision.
 
         
 
              Claimant was 28 years old at the time of the injury and 32 
 
         years old at the time of the hearing.  He is a high school 
 
         graduate; he received four years of millwright trade school 
 
         training through the local union and was trained in CPR, chemical 
 
         warfare and demolitions when he was in the army between January 
 
         4, 1976 and December 13, 1978.  Claimant became an apprentice 
 
         millwright in March of 1979, completed the training course and 
 
         became a journeyman millwright in 1983.  A millwright welds
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         WIEBERS VS. WESTINGHOUSE ELECTRIC 
 
         Page 3
 
         
 
         
 
         and puts up conveyors, sets machinery, pumps and motors, climbs 
 
         steel and works in nuclear plants.  This job requires lifting up 
 
         to 100 pounds.  It requires twisting, bonding and stooping.  The 
 
         job also requires climbing on the top of conveyors, underneath 
 
         compressors and inside of turbines.
 
         
 
              Claimant said he was working for Westinghouse at Interstate 
 
         Power in Clinton, Iowa, dismantling a turbine at the time of his 
 
         injury on November 12, 1983.  Claimant denied any prior accidents 
 
         or illnesses related to his neck.  Claimant testified that he was 
 
         earning $13 to $14 per hour as a millwright.
 
         
 
              Claimant described that he was operating an overhead crane, 
 
         with a hand held remote control device and he was walking 
 
         backwards, when he suddenly and unexpectedly stepped on a two 
 
         inch steel cable, fell and hit the back of his head.  Claimant 
 
         said that he immediately jumped up and kept on working because he 
 
         was embarrassed that he fell on the cable.  He related that he 
 
         continued to work that day, but experienced pain up and down the 
 
         left side of his neck.  As the day went on, the right side of his 
 
         neck started to stiffen up also, but he was able to finish the 
 
         day.  The following day he worked a few hours and then told the 
 
         boss that he could not stand the pain and went home.  The second 
 
         day after the injury, on November 14, 1983, claimant said that he 
 
         went to see Kerry L. Jensen, M.D., a family practice doctor 
 
         (transcript pages 10-16).
 
         
 
              Claimant told that he also saw Louie L. Burkert, D.C., a 
 
         chiropractor, for neck ache and headache (tr. p. 17; exhibit 2).  
 
         There is a medical bill from Dr. Burkert in the amount of $87 
 
         attached to the prehearing report.  Claimant saw Dr. Burkert on 
 
         November 17, 1983, November 19, 1983, November 21, 1983, 
 
         September 1, 1984 and September 8, 1984.  Dr. Burkert thought 
 
         that claimant's symptoms were caused by the injury because he did 
 
         not have them before.  Dr. Burkert did not assess a permanent 
 
         impairment rating or impose any restrictions.  He did refer 
 
         claimant to another physician for further muscle and nerve 
 
         examination (exs. 11 & 18).
 
         
 
              Dr. Jensen recorded on November 14, 1983, that claimant had 
 
         strained his neck and bumped his head.  He diagnosed contusion to 
 
         the head and muscular strain to the neck.  X-rays were 
 
         unremarkable.  He took claimant off work until November 16, 1983, 
 
         because claimant did not think he could do his job which required 
 
         bending and lifting (ex. 1).  Claimant continued to see Dr. 
 
         Jensen on November 17, 1983, November 21, 1983 and January 26, 
 
         1984.  During this period of time, claimant received extensive 
 
         physical therapy from Gary VandeKamp, L.P.T., and other physical 
 
         therapists associated with him (ex. 3 & 4).  VandeKamp made the 
 
         following findings on January 26, 1984;
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              ASSESSMENT: Satisfactory restoration of functional mobility 
 
              in the cervical spine.  Strength testing
 
         
 
         
 
         
 
         WIEBERS VS. WESTINGHOUSE ELECTRIC 
 
         Page 4
 
         
 
         
 
              likewise indicates satisfactory recovery.  Light duties 
 
              about his home are now tolerable without restrictive neck 
 
              pain.
 
         
 
         (ex. 4)
 
         
 
              Ruth Krishman, S.P.T., reported on February 6, 1984, that 
 
         claimant's range of motion for rotation and side bending was now 
 
         pain free within 95 to 100 percent of motion.  Palpation 
 
         continues to produce no points of tenderness.  She then made this 
 
         assessment: "Functional strength and range of motion have been 
 
         achieved.  Home exercise program has been demonstrated and 
 
         competence in it.  The patient was discharged and the treatment 
 
         discontinued." (tr. p. 45; ex. 5).
 
         
 
              Dr. Jensen wrote to the insurance carrier as follows on 
 
         February 7, 1984:
 
         
 
              This is regarding Mr. James Wiebers.  Based on my findings 
 
              from the examination of January 26, 1984, and considering 
 
              the recommendation of the physical therapist whose statement 
 
              of January 26 is also enclosed, it is my feeling that Mr. 
 
              James Wiebers can return to work as of February 6, 1984.
 
         
 
         (ex. 6)
 
         
 
              On February 10, 1984, Dr. Jensen recorded that claimant was 
 
         unhappy with his decision that he could return to work, disputed 
 
         it and said that he intended to see another physician (tr. p. 45; 
 
         ex. 7).
 
         
 
              Claimant testified that he then went to see Eugene E. 
 
         Herzberger, M.D., an orthopedic surgeon, in Dubuque, Iowa, 
 
         because Dr. Jensen would not say that claimant was 100 percent 
 
         healed (tr. pp. 17-19) and the union hall told claimant that he 
 
         was to get a release for 100 percent (tr. pp. 45-47).
 
         
 
              Claimant then saw Dr. Herzberger on February 17, 1984, and 
 
         March 14, 1984.  He diagnosed ligamentis muscle strain and 
 
         prescribed a cervical collar for several weeks (tr. 17; exs. 8 & 
 
         9).  The neck brace gave claimant the most relief (tr. p. 22).  
 
         On April 23, 1984, Dr. Herzberger said that claimant was released 
 
         to return to work (tr. p. 45; ex. 10).
 
         
 
              On May 2, 1984, claimant was examined by James E. Ives, 
 
         M.D., an orthopedic surgeon in the same firm as Dr. Jensen.  He 
 
         diagnosed resolved cervical strain with only minimal symptoms.  
 
         He saw no need to limit claimant's activities and said that he 
 
         could return to his previous level of employment.  He did not 
 
         assess any impairment rating and did not impose any restrictions 
 
         or limitations (tr. p. 49; ex. 7).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         WIEBERS VS. WESTINGHOUSE ELECTRIC
 
         Page 5
 
         
 
         
 
              On May 28, 1985, Dr. Herzberger said that he did not believe 
 
         that claimant would maintain a permanent partial disability (ex. 
 
         13).
 
         
 
              Claimant saw John R. Walker, M.D., an orthopedic surgeon, on 
 
         May 31, 1985.  He said that claimant complained of: (1) headaches 
 
         in the occipital area, (2) constant posterior cervical spine pain 
 
         on both sides of his neck that radiates into the right shoulder, 
 
         and (3) stiffness and loss of range of motion in the cervical 
 
         spine in turning his head to the right.
 
         
 
              Dr. Walker's physical examination found: (1) muscle spasm 
 
         with full forward flexion, (2) loss of motion turning his head to 
 
         the right, and (3) flexion and extension were within normal 
 
         limits, but painful at both extremes.
 
         
 
              X-rays showed a tiny sharp pointed spur at the anterior 
 
         cervical border of the body C-5.
 
         
 
              Dr. Walker said claimant can be rated at a 10 percent 
 
         permanent impairment of the body as a whole.  He recommended 
 
         against myelogram, CT scans, etc.  He said that he would probably 
 
         do well in his present employment (ex. 14, pp. 1-5).
 
         
 
              On December 10, 1985, Dr. Walker said that the x-rays taken 
 
         on May 2, 1984, after the injury, showed a complete reversal of 
 
         the cervical curve (ex. 15, p. 2).  On March 18, 1986, Dr. Ives 
 
         said that claimant had no permanent impairment when he saw him on 
 
         May 2, 1984 (ex. 16).
 
         
 
              On September 3, 1986, Dr. Jensen restated that on February 
 
         10, 1984, he did not find any significant persisting problems in 
 
         claimant's neck, he had a note from the physical therapist that 
 
         said the patient was pain free and within 95-100 percent of 
 
         motion, and it was his opinion that claimant had a good response 
 
         from the physical therapy with return of normal function at that 
 
         time (ex. 17).
 
         
 
              On November 3, 1986, Thomas A. Carlstrom, M.D., a 
 
         neurosurgeon wrote to claimant's counsel that he could not 
 
         comment on the case unless he was able to examine claimant (ex. 
 
         19).
 
         
 
              Dr. Walker gave a deposition on August 25, 1986, in which he 
 
         stated that he was a board certified orthopedic surgeon, 65 years 
 
         of age and had been in practice for over 37 years (ex. 20, pp. 
 
         3-8).  In his deposition testimony he corrected his medical 
 
         report of May 31, 1985, by stating that the tiny spur on the 
 
         x-ray was at the inferior border of the body of C-4, rather than 
 
         the anterior body of C-5 (ex. 14, p. 4; ex. 20, p. 16).  In his 
 
         deposition, Dr. Walker testified that after his examination of 
 
         May 31, 1985, he diagnosed: (1) sprain of the cervical spine, (2) 
 
         headaches from chronic sprain of the cervical spine, (3) possible 
 
         disc disruption or herniated
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         WIEBERS VS. WESTINGHOUSE ELECTRIC 
 
         Page 6
 
         
 
         
 
         disc at C-4, and (4) minimal post-traumatic osteoarthritic change 
 
         at C-4 indicated by the small spur.  Dr. Walker said that he felt 
 
         that claimant had a permanent impairment of 10 percent of the 
 
         body as a whole caused by the fall injury of November 12, 1983 
 
         (ex. 20, pp. 18 & 19).
 
         
 
              Dr. Walker testified that claimant had an avulsion type of 
 
         injury to the ligaments between the body of C-4 and C-5, the 
 
         anterior spinal ligament, as indicated by where the spur is and 
 
         also indicated by marked posterior paraspinal muscle spasm which 
 
         he could both see and feel.  Claimant also presented evidence of 
 
         Barre-Lieou syndrome which is a foraminal syndrome which causes a 
 
         large array of referred physical symptoms such as headache, 
 
         blurring of vision, chest pain, pain down both arms, pain in the 
 
         back of the head, tinnitus, double vision; however, this man's 
 
         pain was localized in the back of the neck which produced 
 
         headaches.  Dr. Walker testified that the x-ray showing the 
 
         spurring between the body of C-4 and C-5 was evidence of joint 
 
         disruption which produced muscle spasm (ex. 20, pp. 21-27).
 
         
 
              On cross-examination, Dr. Walker conceded that he had not 
 
         examined any of the other medical reports and that he had not 
 
         examined the x-rays taken on November 12, 1983.  He said that the 
 
         spur that he was talking about was not on the x-ray taken on May 
 
         2, 1984 (ex. 20, pp. 27-37).
 
         
 
              Dr. Walker testified that since the spur was not on the 
 
         earlier x-rays, but appeared later he would credit it to this 
 
         injury (ex. 20, p. 37).  Dr. walker said that he was familiar 
 
         with the Guides to Evaluation of Permanent Impairment, second 
 
         edition, published by the American Medical Association and the 
 
         guides published by the American Academy of Orthopedic Surgeons, 
 
         but he relies on his own personal experience in awarding 
 
         impairment ratings rather than the guides (ex. 20, p. 28).
 
         
 
              Dr. Herzberger testified by deposition on October 17, 1986.  
 
         He stated that he is a board certified neurosurgeon.  He said 
 
         that claimant came to see him at the suggestion of one of 
 
         claimant's friends or acquaintances.  He stated that claimant's 
 
         neurological examination was normal except for some mild 
 
         limitation of motion of neck movements in all directions.  His 
 
         grip strength was excellent.  His x-rays taken after the injury 
 
         were normal.  Claimant had no radicular pain indicative of a disc 
 
         herniation.
 
         
 
              Dr. Herzberger testified that he diagnosed ligamentis muscle 
 
         strain.  The neck collar was continued on May 14, 1984, and again 
 
         on May 27, 1984, because it relieved his discomfort.  On May 23, 
 
         1984, the patient was better and he said he would like to return 
 
         to work.  Dr. Herzberger gave him a statement to return to work 
 
         on April 23, 1984, without restrictions.  He stated that if he 
 
         had imposed restrictions, they would not
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         WlEBERS VS. WESTINGHOUSE ELECTRIC
 
         Page 7
 
         
 
         
 
         be permanent, they would only be temporary.
 
         
 
              On May 28, 1985, he wrote a letter to claimant's counsel 
 
         that in his opinion claimant did not maintain a permanent partial 
 
         disability.  The basis of that opinion was because claimant did 
 
         not have any evidence of nerve root involvement either by history 
 
         at the time of the injury or by Dr. Herzberger's examination.  In 
 
         absence of nerve root involvement, the normal diagnosis is 
 
         ligament-muscle injury and this type of injury resolves 
 
         spontaneously in time (ex. 21, pp. 3-9).
 
         
 
              Dr. Herzberger said that it was necessary to examine the 
 
         x-ray with the assistance of a magnifying glass in order to 
 
         identify a faint very small spur on the inferior aspect of C-4 
 
         anteriorly (ex. 21, pp. 9 & 10).  He said that if the spur is not 
 
         on the 1984 x-ray that you would be justified to assume that it 
 
         is the result of this injury, but it just confirms the history 
 
         because the spur is not expected to be symptomatic; because on 
 
         the anterior side there are not any nerve roots that can be 
 
         compressed.  An anterior spur this small is supposed to be 
 
         asymptomatic.  Dr. Herzberger stated that the tiny spur did not 
 
         change his opinion that there was no permanent partial disability 
 
         because of this injury.  Dr. Herzberger also testified that it is 
 
         possible to have these spurs from a number of trivial things that 
 
         develop throughout a person's lifetime without any injury (ex. 
 
         21, pp. 10 & 11).
 
         
 
              Dr. Herzberger said that the spur was so small it required 
 
         magnification to see it.  He testified that he believed that most 
 
         radiologists would consider this to be a normal spine.  He 
 
         repeated that claimant had no abnormal neurological findings.  He 
 
         said that claimant had a mild spasm because he couldn't move his 
 
         neck perfectly well in all directions.  Dr. Herzberger did not 
 
         believe that claimant had an avulsion type of injury, because 
 
         clinically he wasn't bad enough for it and his x-rays were 
 
         normal.  Usually if there is a severe avulsion, there would be 
 
         some change on those original x-rays taken after the accident 
 
         (tr. pp. 12-16).
 
         
 
              Dr. Herzberger said that the tiny C-4 bone spur could be 
 
         caused by this injury if it was not on the x-rays immediately 
 
         after the injury.  He could not tell if it was on those x-rays 
 
         because he did not examine them with a magnifying glass at that 
 
         time.  In any event, the tiny bone spur would not cause pain 
 
         because of its anterior position (ex. 21, pp. 17 & 18).
 
         
 
              On April 30, 1984, the insurance carrier notified claimant 
 
         that they had not authorized Dr. Herzberger and therefore, would 
 
         not have any responsibility for any bills from him (ex. 22).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Claimant testified that when he returned to work, in 
 
         approximately March or April of 1984, that he worked for two 
 
         weeks for employer at Palo and another two week for Ringland 
 
         Johnson at Hawkeye
 
         
 
         
 
         
 
         WIEBERS VS. WESTINGHOUSE ELECTRIC 
 
         Page 8
 
         
 
         
 
         at approximately $13 to $14 per hour.  Claimant testified that 
 
         these were the only two millwright jobs that he performed after 
 
         his injury (Tr. pages 23-25, 34-36, 40, 51 & 52).  'Claimant 
 
         further testified that he did not work at all as a millwright out 
 
         of the union hall in 1985 (tr. p. 52).
 
         
 
              Claimant testified that there was a lot of  millwright work 
 
         available, but he quit millwright work because the lifting, 
 
         standing, looking up and climbing gave his neck problems.  He 
 
         testified that he was forced to find a lesser job that would be 
 
         easier on his body and less strain on his neck.  Therefore, he 
 
         took a warehouse job at Savannah Army Depot at $8 per hour.  
 
         Claimant testified that he did not work for anyone else in the 
 
         Mississippi valley area, but he did draw unemployment 
 
         compensation once or twice before he moved to Mesa, Arizona, 
 
         where he is now self-employed repairing houses for resale, 
 
         earning approximately $800 per month.  Claimant testified that he 
 
         performed a number of other jobs in Mesa when he first arrived 
 
         there such as security guard, apartment maintenance, foreman in a 
 
         fabrication shop and that he also built a building for a friend 
 
         for a bar putting up walls, nailing, sweeping and labor work (tr. 
 
         pp. 25-30).
 
         
 
              Claimant testified that at the present time his only 
 
         complaint has been spasm off and on depending on the weather.  He 
 
         stated that he can only look up for approximately 10 minutes at a 
 
         time.  The right side of his neck is worse than the left.  
 
         Claimant testified that he is seeing a chiropractor in Mesa, who 
 
         snaps his neck back at least three times, if not more, per week.  
 
         No medical evidence for this treatment was placed in evidence.  
 
         Claimant said that he lost his ability to engage in sports such 
 
         as football, baseball and bowling because he cannot take the 
 
         jarring on his neck.  He admitted that he was throwing a softball 
 
         with his daughter, even though he was not supposed to do it, when 
 
         he broke some bones in his foot (tr. pp. 30-32; ex. 12).
 
         
 
              Daniel Bark, assistant business agent for the millwright 
 
         local, testified that he dispatched members to work projects.  He 
 
         explained that millwrights work on industrial machinery in 
 
         industrial plants--anything from putting conveyors on to working 
 
         on nuclear turbines and steel mills.  It is hard work and 
 
         requires lifting up to 100 pounds.  It requires standing, 
 
         stooping, bending and the agility to climb and to get into 
 
         cramped spaces.  Millwrights get work through the union hall.  
 
         Contractors contact the union and the union dispatches 
 
         millwrights to the contractors.  There have been many jobs for 
 
         millwrights since claimant quit working.  The hourly rate of a 
 
         millwright is $16.30 per hour and the total package is $20.17 
 
         which includes a number of union negotiated benefits (tr. pp. 
 
         59-65).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Bark examined defendants' exhibit A. He identified it as 
 
         union records which were initiated and maintained by union 
 
         representatives in his local.  Defendants' exhibit A, page
 
         
 
         
 
         
 
         WIEBERS VS. WESTINGHOUSE ELECTRIC
 
         Page 9
 
         
 
         
 
         4 shows that claimant worked as a millwright six times in 1984 
 
         and three times in 1985.
 
         
 
              Defendants' exhibit A, page 5, illustrates that in 1982 
 
         claimant worked in the months of January, April, May, June, July, 
 
         September, October and December.  He did not work in the 
 
         February, March, August and November.
 
         
 
              In 1983, claimant worked in February, March, October and 
 
         November.  He did not work in January, April, May, June, July, 
 
         August, September and December (ex.  A, p. 5).
 
         
 
              In 1984, claimant worked in July, September, October and 
 
         December.  In July he worked for Ringland Johnson for 28 hours 
 
         and earned $494.40; he worked for Ringland Johnson again in July 
 
         for 32 hours and earned $409.60. In September he worked 136 hours 
 
         for Huxtable Hammond Co. and earned $1,680.96. He worked again in 
 
         September for Ringland Johnson for 72 hours and earned $1,472.36. 
 
         He worked in October for Ringland Johnson for 108 hours and 
 
         earned $2,543.16. In December he worked for Ringland Johnson for 
 
         16 hours and earned $461.44 (ex.  A, p. 4).
 
         
 
              In 1985, claimant worked in January, February and March.  In 
 
         January he worked for Ringland Johnson for 25 1/2 hours earning 
 
         $498.52; in February he worked for Berry Development for 169 
 
         hours and earned $2,399.41; in March he worked for Berry 
 
         Development again for 4 hours and earned $54.28 (ex.  A, p. 4).
 
         
 
              Claimant was recalled to the witness stand, but was not able 
 
         to reconcile the differences between his testimony and 
 
         defendants' exhibit A. Claimant testified that in 1984 he only 
 
         worked two weeks for employer and two weeks for Ringland Johnson 
 
         as a millwright.  Defendants' exhibit A shows that claimant 
 
         worked out of the union hall on six different occasions in July, 
 
         September, October and December for a total of 392 hours and that 
 
         he earned $7,061.92. Defendants' exhibit A further indicates that 
 
         claimant worked on three different occasions, January, February 
 
         and March of 1985 for a total of 198.5 hours and that he earned 
 
         $2,952.21.
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury of November 12, 1983, is causally 
 
         related to the disability on which he now bases his claim.  
 
         Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). 
 
         Lindahl v. L.O. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945).  A 
 
         possibility is insufficient; a probability is necessary. Burt v. 
 
         John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 
 
         (1955).  The question of causal connection is essentially within 
 
         the domain of expert testimony.  Bradshaw v. Iowa Methodist
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         WIEBERS VS. WESTINGHOUSE ELECTRIC
 
         Page 10
 
         
 
         
 
         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 did not sustain the burden of proof by a 
 
         preponderance of the evidence that the injury of November 12, 
 
         1983, was the cause of permanent impairment or disability.  It is 
 
         noted that Dr. Jensen took claimant off work in the first place 
 
         because claimant did not feel that he could do his job.  Dr. 
 
         Jensen did not give his own independent evaluation of whether 
 
         claimant could do his job or not.  It would appear as though Dr. 
 
         Jensen had little or no objective evidence of injury from x-rays 
 
         or clinical examination that he recorded in his office notes.  
 
         Nevertheless, he intensively treated claimant's symptoms with an 
 
         enormous amount of physical therapy, five times a week from 
 
         November 21, 1983, to January 23, 1984; three times a week after 
 
         that until January 30, 1984; and twice a week until February 6, 
 
         1984. on January 26, 1984, Gary VandeKamp, L.P.T., the physical 
 
         therapist, gave the assessment that claimant had satisfactory 
 
         restoration of functional mobility in the cervical spine.  He 
 
         said strength testing likewise indicated satisfactory recovery.  
 
         He indicated that light duties about his home were now tolerable 
 
         without restrictive back pain (ex. 4).
 
         
 
              On February 6, 1984, Ruth Krisham, S.P.T., another physical 
 
         therapist, said that range of motion for rotation and side 
 
         bending was then pain free within 95 to 100 percent of motion.  
 
         Palpitation continued to produce no points of tenderness.  The 
 
         assessment stated that functional strength and range of motion 
 
         had been achieved.  A home exercise program had been explained to 
 
         claimant and he had demonstrated competence in it. Claimant was 
 
         discharged and treatment was discontinued (ex. 5).
 
         
 
              Dr. Jensen said that based on his examination on January 26, 
 
         1984, that claimant could return to work on February 6, 1984 (ex. 
 
         6).  Dr. Jensen did not award an impairment rating and he did not 
 
         impose any restrictions.  Dr. Jensen reconfirmed this finding on 
 
         September 3, 1986 (ex. 17).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Claimant testified that the union told him to get a 
 
         statement from the doctor that he was 100 percent healed.  
 
         However, this
 
         
 
         
 
         
 
         WIEBERS VS. WESTINGHOUSE ELECTRIC 
 
         Page 11
 
         
 
         
 
         requirement was not verified by Bark, the assistant business 
 
         agent for the union, who was present in the courtroom and 
 
         testified at the hearing for claimant, nor was this requirement 
 
         supported by any other evidence.  Based on reason alone, it would 
 
         seem unusual that a union would require a doctor to certify that 
 
         an injured employee was 100 percent recovered before he could 
 
         return to work.  Even if the union did impose this requirement, 
 
         it is immaterial because there is nothing in the workers' 
 
         compensation statutes or case law that impose a requirement that 
 
         an injured worker must be 100 percent healed before he is 
 
         expected to return to work.  Quite often, if not frequently, or 
 
         most of the time possibly, injured workers are not 100 percent 
 
         healed when they return to work.  Therefore, even if it is true 
 
         that Dr. Jensen refused to give claimant a statement that he was 
 
         100 percent healed as claimant alleged, it was not a 
 
         justification to see Dr. Herzberger without the authorization of 
 
         the insurance carrier or employer since defendants admitted 
 
         liability in their answer to the petition and had provided 
 
         claimant with extensive care up to that time.  Under these 
 
         circumstances, defendants were entitled to choose the care (Iowa 
 
         Code section 85.27); Barnhart v. MAQ, Inc., 1 Iowa Industrial 
 
         Commissioner Report 16 (appeal decision 1981).  Therefore, 
 
         defendants are not liable for the medical expense of Dr. 
 
         Herzberger in the amount of $22.  Likewise, when claimant 
 
         returned to see Dr. Burkert, the chiropractor, in September of 
 
         1984, it was not authorized by defendants and they are not liable 
 
         for the bill of Dr. Burkert in the amount of $87 (medical 
 
         expenses attached to the prehearing report).
 
         
 
              On April 30, 1984, defendants notified claimant in writing 
 
         that they had not authorized Dr. Herzberger and would not be 
 
         responsible for the payment of his bill (ex. 22).
 
         
 
              Of significance in weighing the evidence in this case, is 
 
         the fact that Dr. Herzberger, a neurosurgeon, was claimant's own 
 
         choice of physician.  Dr. Herzberger diagnosed ligamental muscle 
 
         strain of the cervical region.  He prescribed a neck collar for 
 
         several weeks and told claimant that he could return to work on 
 
         April 23, 1984 (exs. 7-9).  On May 28, 1985, Dr. Herzberger said 
 
         that claimant did not sustain a permanent partial disability (ex. 
 
         13).  As Dr. Herzberger pointed out in his deposition, claimant 
 
         chose to come from Comanche to Dubuque to see him on the 
 
         recommendation of friends or acquaintances and therefore, 
 
         claimant must have reposed some special confidence in him.  Dr. 
 
         Herzberger awarded no permanent impairment rating and did not 
 
         impose any restrictions on claimant's working abilities.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Dr. Ives, an orthopedic surgeon, on May 2, 1984, said that 
 
         claimant had resolved cervical strain and said that he could 
 
         return to his previous level of employment.  His symptoms were 
 
         minimal and there was no need to limit his activities.  Dr. Ives 
 
         did not award an impairment rating and imposed no restrictions 
 
         (ex. 7).  On March 18, 1986, Dr. Ives said again
 
         
 
         
 
         
 
         WIEBERS VS. WESTINGHOUSE ELECTRIC
 
         Page 12
 
         
 
         
 
         that he did not feel that this man would suffer any permanent 
 
         impairment due to his neck injury (ex, 16)..
 
         
 
              Dr. Walker's conclusion of 10 percent permanent partial 
 
         impairment of the body as a whole is not supported by the AMA 
 
         Guides or the orthopedic surgeons guide.  Furthermore, it is not 
 
         strongly supported by his own medical findings.  Headaches, 
 
         cervical sprain, pain which is not radicular, neck stiffness, 
 
         muscle spasm, minimal loss of motion turning his head to the 
 
         right are factors that are normally not the basis for an 
 
         impairment rating irrespective of whether they occur individually 
 
         or altogether at one time.  Dr. Walker conceded that he did not 
 
         use either the AMA Guides or the orthopedic surgeons guide to 
 
         arrive at his 10 percent rating.  He said it was simply a matter 
 
         of his own professional judgment (ex. 20, p. 38).  None of the 
 
         doctors? including Dr. Walker, thought that the injury was 
 
         serious enough to order a myelogram, an electromyogram, a 
 
         computerized tomography scan, a magnetic resonance imaging scan 
 
         or.a nerve conduction test.  On the contrary, Dr. Walker 
 
         recommended against objective testing of this kind (ex. 14).
 
         
 
              Dr. Walker's mention of a tiny spur at the anterior border 
 
         of C-5, which he corrected to be at the inferior border of C-4, 
 
         appears to be miniscule.  Dr. Walker himself called it tiny.  Dr. 
 
         Herzberger said in his deposition that the spur was so tiny that 
 
         he could not see it with the naked eye.  He had to use a 
 
         magnifying glass in order to see it.  Dr. Herzberger said it 
 
         could be caused by the injury or it could be caused by a number 
 
         of other things that occur over the course of a person's 
 
         lifetime.  He could not tell if it was on-the November 1983 
 
         x-rays because he did not examine them with a magnifying glass.  
 
         Furthermore, he testified that if the tiny anterior spur were 
 
         caused by this injury, it would not cause pain because of its 
 
         anterior position away from the nerve roots (ex. 21, pp. 16-18).  
 
         Dr. Herzberger also contradicted Dr. Walker's opinion that 
 
         claimant sustained an avulsion type of injury.  Dr. Herzberger 
 
         said that if there is a severe avulsion there would be some 
 
         change on the original x-rays after the accident (ex. 21, pp. 14 
 
         & 15).
 
         
 
              Dr. Herzberger said that on April 23, 1984, that claimant 
 
         was better and claimant told the doctor that he would like to 
 
         return to work.  Therefore, it would appear that claimant 
 
         requested to return to work on April 23, 1984 (ex. 21, p. 7).  
 
         Dr. Herzberger repeated that claimant had no permanent partial 
 
         disability because he had no nerve root involvement either by 
 
         history or present at the time of his examination.  Claimant had 
 
         a ligament-muscle injury and these injuries resolve spontaneously 
 
         in time.  Sometimes it may take a year or two, but patients 
 
         usually recover quite well (ex. 21, pp. 8 & 9).  Dr. Walker's 
 
         opinion that the tiny spur was the cause of impairment and 
 
         disability was strongly controverted by Dr. Herzberger's opinion.  
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         In this case, Dr. Herzberger's opinion is preferred over Dr.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         WIEBERS VS. WESTINGHOUSE ELECTRIC
 
         Page 13
 
         
 
         
 
         Walker's opinion not only because he was a treating physician, 
 
         but his opinion is also the most consistent with the other 
 
         evidence in this case, it was consistent with the other 
 
         physicians in this case and it was consistent with the fact that 
 
         none of the doctors, including Dr. Walker, found it necessary to 
 
         order any objective tests other than simple x-rays.  Furthermore, 
 
         this is not the usual competition between claimant's doctor and 
 
         defendants' doctor.  In this case, Dr. Herzberger was claimant's 
 
         own choice of physician.  Rockwell Graphics Systems, Inc. v. 
 
         Prince, 366 N.W.2d 187, 192 (Iowa 1985).
 
         
 
              In summary, Dr. Jensen, a family practitioner and a treating 
 
         physician, Dr. Herzberger, a neurosurgeon and a treating 
 
         physician, and Dr. Ives, an orthopedic surgeon, were thoroughly 
 
         familiar with claimant's case and found no permanent impairment 
 
         and imposed no restrictions.  Dr. Walker, who only saw claimant 
 
         on one occasion for the express purpose of obtaining a permanent 
 
         impairment rating for a workers' compensation claim approximately 
 
         one and one-half years after the injury occurred, based his 10 
 
         percent rating on items which normally do not warrant an 
 
         impairment rating, such as aches, pain, spasm and stiffness.
 
         
 
              Dr. Walker's testimony concerning the tiny bone spur and the 
 
         avulsion type of injury was controverted, contradicted and 
 
         rebutted by Dr. Herzberger who was also claimant's physician.  
 
         Dr. Burkert, the chiropractor, did not give an opinion on the 
 
         subject of impairment or restrictions.  Dr. Berkert did say on 
 
         September 14, 1984, that claimant had definite improvement of the 
 
         cervical spine and that the cervical motion and structure had 
 
         improved dramatically (ex. 11).
 
         
 
              Clearly the weight of the evidence, the greater weight of 
 
         the evidence, the preponderance of the evidence, the most medical 
 
         opinions in sheer numbers, the most convincing and persuasive 
 
         medical opinions, the evidence that makes the strongest 
 
         impression, the medical conclusion that is soundly based on the 
 
         objective medical findings from the doctors having the greatest 
 
         opportunity for knowledge of the situation, and the greater 
 
         amount of credible evidence supports the position of Dr. Jensen, 
 
         Dr. Herzberger and Dr. Ives.  The greater weight of the evidence 
 
         is that claimant did not sustain a permanent partial impairment 
 
         or disability which was caused by this injury.
 
         
 
              Support for the opinion of these doctors is found in the 
 
         fact that claimant himself told Dr. Herzberger on April 23, 1984, 
 
         that he wanted to return to work.  Furthermore, claimant did go 
 
         back to work and performed the duties of a millwright for a total 
 
         of 392 hours in the months of July, September, October and 
 
         December of 1984 and earned a total of  $7,061.92. Also, he 
 
         performed a total of 198.5 hours in January, February and March 
 
         of 1985 as a millwright earning $2,952.21 in the first three 
 
         months of 1985 (ex.  A).  In Arizona, claimant testified that he 
 
         could perform and does perform general maintenance
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         WIEBERS VS. WESTINGHOUSE ELECTRIC
 
         Page 14
 
         
 
         
 
         work on houses and apartments and that he built a building for a 
 
         bar for a friend.  The work he has been doing seems to be about 
 
         as strenuous as the work of a millwright.  Bark did not testify 
 
         that claimant could not do millwright work, but on the contrary 
 
         sent claimant out on many millwright jobs.
 
         
 
              Claimant himself testified that at the present time his only 
 
         complaint has been spasm off and on depending on the weather and 
 
         that he can only look up for about ten minutes at a time.  
 
         According to most of the doctors and based upon agency expertise 
 
         [Iowa Administrative Procedure Act 14A.14(5)] this degree of 
 
         injury would not support an impairment rating.  Claimant said 
 
         that he cannot engage in sports, but broke bones is his foot 
 
         while throwing a softball with his daughter.  The fact he has 
 
         chosen to abstain from football and bowling is not indicative of 
 
         a permanent injury in as much as none of the doctors enjoined him 
 
         from playing these sports.  Nor did any of the many doctors tell 
 
         claimant to quit work as a millwright or to move to Arizona.
 
         
 
              Therefore, the nonmedical evidence, as well as the medical 
 
         evidence, does not support the proposition that claimant 
 
         sustained a permanent impairment or a permanent disability.  In 
 
         conclusion, claimant has not sustained the burden of proof by a 
 
         preponderance of the evidence that the injury of November 12, 
 
         1983, was the cause of permanent impairment or permanent 
 
         disability.  Therefore, claimant is not entitled to permanent 
 
         partial disability benefits.
 
         
 
              Since Dr. Herzberger and Dr. Burkert were not authorized 
 
         physicians by the defendants, then defendants are not liable for 
 
         the payment of their bills.
 
         
 
              Claimant has requested the payment of a bill in the amount 
 
         of $293 from Dr. Walker for the independent medical evaluation 
 
         under Iowa Code section 85.39. Since this matter was not raised 
 
         at the prehearing conference and designated as a hearing issue on 
 
         the hearing assignment order, it cannot be decided as a disputed 
 
         hearing issue in this case.  Hearing deputies determine only 
 
         issues raised at the prehearing conference and designated as 
 
         hearing issues on the hearing assignment order.  Presswood v. 
 
         Iowa Beef Processors, Inc., file number 735442 (appeal decision 
 
         November 14, 1986); Rahn v. Siouxland Towing and Auto Body, 
 
         Inc., file no. 797004, filed October 20, 1987; Pulju v. Iowa Beef 
 
         Processors, Inc., file number 804656 and 814502, filed February 
 
         9, 1988; Fisher v. American Freight Systems, Inc., file number 
 
         797015, filed September 26, 1988 and Crawford v. Tama Meat 
 
         Packing Corp., file number 803960, filed March 28, 1989.
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
                                 FINDINGS OF FACT
 
         
 
              Therefore, based upon the evidence presented, the following 
 
         findings of fact are made.
 
         
 
         
 
         
 
         WIEBERS VS. WESTINGHOUSE ELECTRIC
 
         Page 15
 
         
 
         
 
              That Dr. Jensen, the first treating physician, Dr. 
 
         Herzberger, the second treating physician, who was also 
 
         claimant's choice of physician and Dr. Ives all stated.that 
 
         claimant did not sustain any permanent impairment or disability 
 
         and none of these doctors imposed any restrictions on claimant's 
 
         activities.
 
         
 
              That Dr. Walker imposed no permanent restrictions or 
 
         limitations on claimant's activities and recommended against any 
 
         objective tests at this time.
 
         
 
              That claimant actually returned to work as a millwright in 
 
         1984 and 1985, worked several hours and earned a substantial 
 
         amount of money as a millwright after the injury.  That claimant 
 
         has performed a number of labor and skilled labor jobs that 
 
         require dexterity and physical strength and is currently 
 
         self-employed as a repairman and restorer of damaged houses.
 
         
 
              That claimant did not sustain a permanent impairment or 
 
         permanent disability as a result of the injury of November 12, 
 
         1983.
 
         
 
              That claimant's treatment with Dr. Burkert and Dr. 
 
         Herzberger was not authorized by defendants.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              Wherefore, based upon the evidence presented and the 
 
         foregoing principles of law the following conclusions of law are 
 
         made.
 
         
 
              That claimant did not sustain the burden of proof by a 
 
         preponderance of the evidence that the injury of November 12, 
 
         1983, was the cause of permanent impairment or permanent 
 
         disability.
 
         
 
              That claimant is not entitled to permanent partial 
 
         disability benefits.
 
         
 
              That claimant is not entitled to the payment of the medical 
 
         expenses incurred with Dr. Burkert, Dr. Herzberger, and Dr. 
 
         Walker.
 
         
 
                                      ORDER
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              That no additional amounts are owed by defendants to 
 
         claimant as the result of the injury of November 12, 1983.
 
         
 
              That the costs of this action are charged to claimant 
 
         pursuant to Division of Industrial Services Rule 343-4-33, except 
 
         the cost of the transcript which defendants offered to pay for at 
 
         the hearing.
 
         
 
         
 
         
 
         WIEBERS VS. WESTINGHOUSE ELECTRIC
 
         Page 16
 
         
 
         
 
              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 19th day of April, 1989.
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
                                         WALTER R. McMANUS, JR.
 
                                         DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies to:
 
         
 
         Mr. Barry Moranville
 
         Attorney at Law
 
         974 73rd St. STE 16
 
         Des Moines, IA  50312
 
         
 
         Mr. Greg Egbers
 
         Attorney at Law
 
         600 Union Arcade Bldg
 
         Davenport, IA 52801
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                                         51401; 51402.4; 51402.60; 51803; 
 
                                         52501; 52502; 52503; 52700 
 
                                         Filed April 19, 1989
 
                                         WALTER R. McMANUS, JR.
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         JAMES WIEBERS,
 
         
 
               Claimant,
 
         
 
          VS. :                                       File No. 751080
 
         
 
          WESTINGHOUSE ELECTRIC,         :         A R B I T R A T I O N
 
         
 
               Employer,                 :             D E C I S I O N
 
         
 
          and :
 
         
 
          LIBERTY MUTUAL INSURANCE CO.,
 
         
 
               Insurance Carrier,
 
               Defendants.
 
         
 
         
 
         
 
         51401; 51402.4;  51402.60;  51803
 
         
 
              Claimant did not prove the injury was the cause of any 
 
         permanent impairment or disability.
 
         
 
         52501; 52502; 52503, 52700
 
         
 
              Claimant sought additional medical care which was 
 
         unauthorized and it was not allowed.