1108.10, 1108.20, 2202
 
                                              2204, 2206
 
                                              Filed May 17, 1989
 
                                              MICHAEL G. TRIER
 
        
 
                       BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
        
 
        
 
        ROBERT F. DUNCAN,
 
        
 
            Claimant,
 
        
 
        vs.                                    File No. 768954
 
        
 
        THORP ELECTRIC,                      A R B I T R A T I O N
 
        
 
            Employer                           D E C I S I O N
 
        
 
        and
 
        
 
        UNION INSURANCE COMPANY,
 
        
 
            Insurance Carrier,
 
             Defendants.
 
                       
 
                       
 
        1108.10, 1108.20, 2202, 2204, 2206
 
        
 
             Claimant was afflicted with preexisting coronary artery 
 
             disease. He worked in a setting which provided a relatively high 
 
             level of stress, but a level which was not out of the ordinary 
 
             for the stresses commonly endured by all employees. Claimant 
 
             engaged in an instance of unusually strenuous physical exertion, 
 
             but the coronary event which led to his heart attack was already 
 
             underway prior to the time of that exertion. Claimant's claim 
 
             was denied.
 
        
 
        
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         KEVIN R. MEYER,
 
         
 
              Claimant,
 
         
 
         vs.
 
                                               File No. 768965
 
         BORK TRANSPORT,
 
                                            A R B I T R A T I O N
 
              Employer,
 
                                               D E C I S I O N
 
         and
 
         
 
         GREAT WEST CASUALTY COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              This is a proceeding in arbitration brought by claimant, 
 
         Kevin R. Meyer, against defendant employer, Bork Transport, and 
 
         defendant insurance carrier, Great West Casualty Company (the 
 
         caption appears to be in error as "Great Western Casualty 
 
         Company") to recover benefits under the Iowa Workers' 
 
         Compensation Act as the result of an injury which allegedly 
 
         occurred July 3, 1984.  This matter came on for hearing before 
 
         the undersigned deputy industrial commissioner on October 28, 
 
         1988 in Des Moines, Iowa, and was considered fully submitted on 
 
         that date.  Claimant appeared pro se.  Defendants appeared by 
 
         attorney Stephen W. Spencer.
 
         
 
              Because claimant failed to comply with the Hearing 
 
         Assignment Order by exchanging a list of all witnesses to be 
 
         called at the hearing and a list of all proposed exhibits at 
 
         least fifteen days prior to the hearing date, he was barred from 
 
         presenting testimonial or documentary evidence.  The only 
 
         evidence submitted consisted of defendants' exhibits 1, 2 and 3.
 
         
 
                                      ISSUES
 
         
 
              Pursuant to the Hearing Assignment Order (claimant failed to 
 
         take steps to prepare a pre-hearing report), the issues that 
 
         remain for determination include whether claimant received an 
 
         injury which arose out of and in the course of employment; 
 
         whether there is a causal relationship between the alleged injury 
 
         and disability; whether claimant is entitled to disability 
 
         benefits; whether claimant is entitled to medical benefits; rate; 
 
         and, taxation of costs.
 
         
 
                              REVIEW OF EVIDENCE
 
         
 
              Claimant's petition alleged that he injured himself on July 
 
         3, 1984 while driving an oil truck.  He alleged that he slipped 
 
         and fell from oil on his boot.  As claimant was barred from 
 
         presenting evidence, no evidence in the record supports those 
 
         allegations.
 

 
         
 
         
 
         
 
         MEYER V. BORK TRANSPORT
 
         PAGE   2
 
         
 
         
 
         
 
              Defendants' exhibits 1, 2 and 3 indicate that claimant was 
 
         seen by J. B. Neiweem, M.D., and Peter D. Wirtz, M.D.
 
         
 
              Dr. Neiweem's x-ray report of September 4, 1984 indicated 
 
         that x-rays demonstrated no evidence of fracture around 
 
         claimant's ankle.  His letter of January 19, 1985 indicated that 
 
         his impression was that claimant sustained a mild strain to the 
 
         right ankle, and that he would have no permanent disability.
 
         
 
              Dr. Wirtz indicated in his report of January 7, 1987, that 
 
         claimant had a healed right ankle sprain which had left him with 
 
         no functional or anatomic impairment.
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              An employee is entitled to compensation for any and all 
 
         personal injuries which arise out of and in the course of the 
 
         employment.  Section 85.3(l).
 
         
 
              Claimant has the burden of proving by a preponderance of the 
 
         evidence that he received an injury on July 3, 1984 which arose 
 
         out of and in the course of his employment.  McDowell v. Town of 
 
         Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. Central 
 
         Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
              The injury must both arise out of and be in the course of 
 
         the employment.  Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 
 
         402, 68 N.W.2d 63 (1955) and cases cited at pp. 405-406 of the 
 
         Iowa Report.  See also Sister Mary Benedict v. St. Mary's Corp., 
 
         255 Iowa 847, 124 N.W.2d 548 (1963) and Hansen v. State of Iowa, 
 
         249 Iowa 1147, 91 N.W.2d 555 (1958).
 
         
 
              The words "out of" refer to the cause or source of the 
 
         injury.  Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 402, 68 
 
         N.W.2d 63 (1955).
 
         
 
              The words "in the course of" refer to the time and place and 
 
         circumstances of the injury.  McClure v. Union et al. Counties, 
 
         188 N.W.2d 283 (Iowa 1971); Crowe v. DeSoto Consol. Sch. Dist. 
 
         246 Iowa 402, 68 N.W.2d 63 (1955).
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury of July 3, 1984 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 
 

 
         
 
         
 
         
 
         MEYER V. BORK TRANSPORT
 
         PAGE   3
 
         
 
         
 
         516, 133 N.W.2d 867.  See also Musselman v. Central Telephone Co.,
 
         261 Iowa 352, 154 N. W.2d 128 (1967).
 
         
 
              There is no evidence in the record supporting the allegation 
 
         that claimant suffered an injury on July 3, 1984, that the injury 
 
         arose out of or in the course of his employment, that the 
 
         claimant suffered disability as a result of the alleged injury, 
 
         or that the alleged injury is causally connected to any alleged 
 
         disability.  The only evidence in the record shows that claimant 
 
         has suffered no permanent disability.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              Therefore, based on the evidence presented, the following 
 
         ultimate facts are found:
 
         
 
              1.  Claimant has failed to establish that he suffered a work 
 
         injury on July 3, 1984.
 
         
 
              2.  Claimant has failed to establish any period of inability 
 
         to work resulting from his alleged accident.
 
         
 
              3.  Claimant has failed to establish that his alleged injury 
 
         was related to his employment.
 
         
 
              4.  Claimant has failed to establish any permanent 
 
         disability resulting from his alleged injury.
 
         
 
              5.  Claimant has failed to show any causal connection 
 
         between his employment and any injury or resulting disability.
 
         
 
              6.  The record affirmatively shows that claimant suffered no 
 
         permanent disability from his alleged injury.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              Wherefore, based on the principles of law previously stated, 
 
         the following conclusions of law are made:
 
         
 
              1.  Claimant has failed to establish that he suffered an 
 
         injury on July 3, 1984.
 
         
 
              2.  Claimant has failed to establish that his alleged injury 
 
         arose out of and in the course of his employment.
 
         
 
              3.  Claimant has failed to establish any causal connection 
 
         between the alleged injury and alleged disability.
 
         
 
              4.  Claimant has failed to establish either temporary or 
 
         permanent disability resulting from his alleged injury.
 
         
 
              5.  Claimant has failed to establish medical expenses caused 
 
         by his alleged injury.
 
         
 
              6.  Claimant has failed to present evidence establishing his 
 
         rate of compensation in the event that such were to be awarded.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              Claimant shall take nothing from this proceeding.
 
         
 

 
         
 
         
 
         
 
         MEYER V. BORK TRANSPORT
 
         PAGE   4
 
         
 
         
 
              Costs of this action are assessed against claimant pursuant 
 
         to Division of Industrial Services Rule 343-4.33.
 
         
 
              Signed and filed this 1st day of November, 1988.
 
         
 
         
 
         
 
         
 
         
 
                                        DAVID RASEY
 
                                        DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         
 
         Copies To:
 
         
 
         Mr. Kevin R. Meyer
 
         7807 Kelly Court
 
         Erie, Illinois 61250
 
         REGULAR AND CERTIFIED MAIL
 
         
 
         Mr. Stephen W. Spencer
 
         Attorney at Law
 
         Suite 300, Fleming Building
 
         P.O. Box 9130
 
         Des Moines, Iowa 50306-9130
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                 1402
 
                                                 Filed November 1, 1988
 
                                                 DAVID RASEY
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         KEVIN R. MEYER,
 
         
 
              Claimant,
 
         
 
         vs.
 
                                               File No. 768965
 
         BORK TRANSPORT,
 
                                            A R B I T R A T I O N
 
              Employer,
 
                                               D E C I S I O N
 
         and
 
         
 
         GREAT WEST CASUALTY COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
         1402
 
         
 
              Pro se claimant was barred from presenting evidence for 
 
         failure to submit witness and exhibits lists as per hearing 
 
         assignment order.  Therefore, his burden of proof could not be 
 
         met on any issue.
 
         
 
 
         
 
 
 
 
 
                                            2402; 3202; 3203
 
                                            Filed January 7, 1991
 
                                            DAVID RASEY
 
         
 
                     before the iowa industrial commissioner
 
         ____________________________________________________________
 
                                       :
 
         ROBIN D. BOHL,                :
 
                                       :
 
              Claimant,                :
 
                                       :
 
         vs.                           :
 
                                       :         File Nos. 769025
 
         ARMOUR FOOD COMPANY,          :                   853390
 
                                       :
 
              Employer,                :      A R B I T R A T I O N
 
                                       :
 
         and                           :         D E C I S I O N
 
                                       :
 
         TRAVELERS INSURANCE COMPANY   :
 
         and THE HARTFORD,             :
 
                                       :
 
              Insurance Carriers,      :
 
                                       :
 
         and                           :
 
                                       :
 
         SECOND INJURY FUND,           :
 
                                       :
 
              Defendants.              :
 
         ____________________________________________________________
 
         
 
         2402; 3203
 
         
 
              Section 85.26 limitations defense held applicable to Second 
 
         Injury Fund claims.
 
         
 
         3202
 
         
 
              Claimant underwent knee surgery in 1979, causing impairment 
 
         but minimal industrial disability.  He alleged right arm injuries 
 
         of 1984 and 1987, seeking Second Injury Fund benefits in both 
 
         cases.  Each case was settled between claimant, employer and 
 
         defendant, leaving only Second Injury Fund claims.  The 1984 case 
 
         was barred by limitations.
 
         
 
              The 1984 injury was found to be due to a traumatic incident, 
 
         but the 1987 injury was found to be a separate cumulative injury 
 
         to the same member (which was predisposed to injury because of 
 
         the 1984 trauma).  Claimant twice underwent surgery to reposition 
 
         the ulnar nerve.  He was advised to discontinue work involving 
 
         heavy lifting or forceful use of the right forearm.  Claimant was 
 
         a certified carpenter and, at the time of injury, worked on a 
 
         loading dock.  He was 38 years old at the time of hearing and a 
 
         suitable candidate for retraining, but had sustained a diminution 
 
         of his earning capacity due to the arm injury.  He was awarded 30 
 
         percent industrial disability, but Second Injury Fund was given 
 
         "credit" for the impairment to the left leg and all impairment to 
 
         the right arm, due to both the 1984 and 1987 injuries.  All of 
 
         his industrial disability relating to the arm was attributable to 
 
         the 1987 injury.
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         LU ELLEN HUSS,
 
         
 
              Claimant,
 
         
 
         VS.
 
                                                         File No. 769042
 
         
 
         BOLTON & HAY, INC.,
 
                                                           A P P E A L
 
              Employer,
 
                                                         D E C I S I 0 N 
 
         and
 
         
 
         GREAT AMERICAN INSURANCE
 
         COMPANIES,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              Defendants appeal from a commutation decision granting full 
 
         commutation of death benefits to claimant as decedent's spouse.
 
         
 
              The record on appeal consists of the transcript of the 
 
         commutation proceeding and claimant's exhibits 1, 2 and 3. Both 
 
         parties have filed briefs on appeal.
 
         
 
                                      ISSUES
 
         
 
              Defendants state the following issues on appeal:
 
         
 
              1.  Whether the commutation is in claimant's best interests. 
 
         (Defendants' appeal brief issues I and II are combined herein.)
 
         
 
              2.  The proper amount of benefits to be commuted.
 
         
 
                              REVIEW OF THE EVIDENCE
 
         
 
              Review of the record indicates the summary of evidence in 
 
         the commutation decision is adequate and will not be reiterated 
 
         herein.
 
         
 
                                  APPLICABLE LAW
 
         
 
              The commutation decision cites law appropriate to the issues 
 
         herein.
 
         
 
         
 
                                     ANALYSIS
 
         
 
         
 
              Claimant has requested full commutation of weekly death 
 
         benefits.  As she is claiming death benefits as the widow of a 
 
         deceased worker, the requirement of a determinable period during 
 

 
         
 
         
 
         
 
         HUSS V. BOLTON & HAY, INC.
 
         Page   2
 
         
 
         
 
         which compensation is payable is met.
 
         
 
              Claimant is presently 69 years old.  She is a retired 
 
         schoolteacher with a college education, although she lacks a 
 
         degree.  She has no dependents.  She is presently financially 
 
         stable, owning a debt-free home, as well as over $57,000 in 
 
         interest-bearing savings.  Her income, which is based on workers' 
 
         compensation, social security and the earned interest, is 
 
         approximately $2,279 per month.  Her expenses are $1,895 per 
 
         month.  She owns a $15,000 car, which has a debt against it of 
 
         only $3,000.  Claimant followed financial advice from her 
 
         son-in-law, Robert Van Dyke, in borrowing the amount rather than 
 
         cashing in a certificate of deposit that earned a higher rate of 
 
         interest than she would pay on the borrowed money.  Claimant 
 
         stated she also consults her sons on financial matters and has 
 
         two bankers who can give her advice.
 
         
 
              Her main concern is catastrophic illness and the need for 
 
         nursing home care.  She desires to have the commuted funds 
 
         available in case of either eventuality.  Both of her parents 
 
         died of cancer.  However, she does have both Medicare and a 
 
         Medicare supplement health insurance policy to meet the expenses 
 
         of an illness.  Both she and Robert Van Dyke stressed that 
 
         flexibility and availability of the funds were of primary 
 
         importance to her.  Although a commutation request could be made 
 
         once either or both concerns actually arose, she viewed the delay 
 
         in court proceedings to obtain a commutation as detrimental.
 
         
 
              She has no definite plan for the proceeds of a commutation 
 
         if it is granted.  Options she is considering include investing 
 
         in a second home in Des Moines to be nearer her family, doctor 
 
         and dentist; investing in an annuity; and providing for her 
 
         grandchildren's education.  She plans to invest the commutation, 
 
         if it is granted, in a certificate of deposit until she can 
 
         decide which option, or combination of options, to pursue.  She 
 
         has several persons she can, and does, rely upon for financial 
 
         advice.
 
         
 
              Much of the testimony centered on the annuity option.  This 
 
         option was recommended to her by her son-in-law, Robert Van Dyke, 
 
         an insurance and investment counselor.  It was pointed out by 
 
         defendants that claimant's income from an annuity and her 
 
         increased tax liability for annuity payments would result in $140 
 
         less spendable income to her each month.  Nevertheless, Robert 
 
         Van Dyke testified that he felt this disadvantage was more than 
 
         offset by the financial advantage of flexibility and 
 
         availability.  Claimant also stated a willingness to suffer a 
 
         reduction in income to have the commuted funds available to her.
 
         
 
              It was also determined that the type of annuity recommended 
 
         by Van Dyke was a 10-year period certain annuity, as opposed to a 
 
         life-only annuity.  Under the former, claimant would receive 
 
         monthly payments, but if she was to die before the term of the 
 
         annuity expired, her heirs would then receive the remainder of 
 
         her contributions.  Under the latter plan, all benefits would 
 
         cease upon death.  It was determined that the income difference 
 
         to claimant between the two plans was only $4 per month.  There 
 
         is a probable early surrender charge of ten percent the first 
 
         year, decreasing by one percent each year thereafter, should 
 

 
         
 
         
 
         
 
         HUSS V. BOLTON & HAY, INC.
 
         Page   3
 
         
 
         
 
         claimant need access to the funds in an annuity for an 
 
         emergency.
 
         
 
             Section 85.45 states that a commutation of benefits will not 
 
         be granted unless commutation is in the claimant's best 
 
         interests.  In applying the relevant factors, claimant's 
 
         personal, family and financial circumstances and the 
 
         reasonableness of the plan for the commuted funds are to be 
 
         considered.
 
         
 
              Claimant's age is 69.  She is well educated and of sound 
 
         mind.  Her health is good.  Her family is grown, she lives alone 
 
         and she has no dependents.  Her financial condition is sound, 
 
         with a steady source of income which will be lessened under her 
 
         plan.
 
         
 
              As to the reasonableness of claimant's plan for the commuted 
 
         funds, the record shows that her plans are at present speculative 
 
         and conjectural.  She states her plan is indefinite, but will be 
 
         decided upon after she receives the funds.  Her tentative plans 
 
         include a fund for the education of her grandchildren.  However, 
 
         such a use of commuted funds is not for her direct benefit and 
 
         not an intended purpose for workers' compensation benefits.  A 
 
         tentative plan is to purchase a house but the availability and 
 
         price is mere speculation.  Another contemplated use of the funds 
 
         would be an investment in an annuity.  Yet the record clearly 
 
         shows this will result in a loss of income to claimant and an 
 
         increased tax burden.  The stated reason for requesting 
 
         commutation, the need to meet the expenses of catastrophic 
 
         illness or nursing home costs, is speculative.  Claimant is 
 
         presently in good health, and has both Medicare and a Medicare 
 
         supplement health insurance policy to meet the costs of illness.  
 
         She has no immediate plans or need to utilize a nursing home.  If 
 
         an illness should develop, the receipt of weekly workers' 
 
         compensation benefits will provide protected income to claimant 
 
         and a means of meeting those bills.
 
         
 
              Under both Diamond v. Parsons Co., 256 Iowa 915, 129 N.W.2d 
 
         608 (1964) and Dameron v. Neumann Bros., Inc., 339 N.W.2d 160 
 
         (Iowa 1983), both cited in the deputy's commutation decision, the 
 
         above factors are to be used in a "best interest balancing test," 
 
         with the claimant's preference and the benefits of commutation 
 
         weighed against the potential detriments of commutation.  Since 
 
         claimant's plans for the commuted funds are, at this point, 
 
         speculative and conjectural at best, it is impossible to make a 
 
         determination that her plan is in her best interests.  In 
 
         addition, some of her contemplated uses of the commuted funds are 
 
         not in her best interests or for her benefit.
 
         
 
              Therefore, claimant has failed to prove that a commutation 
 
         of her benefits should occur.
 
         
 
         
 
                                 FINDINGS OF FACT
 
         
 
              1.  Claimant's husband received an injury on July 9, 1984, 
 
         which arose out of and in the course of his employment and which 
 
         caused his death.
 
         
 

 
         
 
         
 
         
 
         HUSS V. BOLTON & HAY, INC.
 
         Page   4
 
         
 
         
 
              2.  Claimant was born on October 18, 1918.
 
         
 
              3.  Claimant was in good physical and mental health at the 
 
         time of the hearing.
 
         
 
              4.  Claimant's level of education includes college-level 
 
         courses, as well as 40 years of teaching experience.
 
         
 
              5.  Claimant has a history of cancer in her family.
 
         
 
              6.  Claimant has no dependents.
 
         
 
              7.  Claimant has assets which include a home valued at 
 
         $95,000 without encumbrance and $57,000 in savings.
 
         
 
              8.  Claimant's present income exceeds her expenses.
 
         
 
              9.  Claimant has sought and followed financial advice in the 
 
         past.
 
         
 
             10.  Claimant's plans for any commuted funds are indefinite, 
 
         but tentatively contemplate investment in another house, an 
 
         annuity or an education fund for her grandchildren.
 
         
 
             11.  Claimant's tentative plan to utilize a portion of the 
 
         commuted funds for an educational fund for her grandchildren is 
 
         not in her best interests and is contrary to the purpose of 
 
         workers' compensation benefits.
 
         
 
             12.  Claimant's plans for the commuted funds are speculative 
 
         and conjectural.
 
         
 
         
 
             13.  In the event of a catastrophic illness, the continuation 
 
         of weekly workers' compensation benefits would better serve 
 
         claimant's needs than a commutation.
 
         
 
                                CONCLUSION OF LAW
 
         
 
              Claimant has failed to prove that a full commutation of 
 
         workers' compensation death benefits is in her best interests.
 
         
 
              WHEREFORE, the decision of the deputy is reversed.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, it is ordered:
 
         
 
              That claimant's application for full commutation is denied.
 
         
 
              That each party pay their own costs in the hearing 
 
         proceeding and defendants shall pay the costs of the appeal 
 
         including the transcription of the hearing proceeding.
 
         
 
         
 
              Signed and filed this 31st day of December, 1987.
 
         
 
         
 
         
 

 
         
 
         
 
         
 
         HUSS V. BOLTON & HAY, INC.
 
         Page   5
 
         
 
         
 
         
 
         
 
                                                 DAVID E.LINQUIST
 
                                                 INDUSTRIAL COMMISSIONER
 
         
 
         
 
         Copies To:
 
         
 
         Mr. James R. Van Dyke
 
         Attorney at Law
 
         225 East Seventh Street
 
         Box 486
 
         Carroll, Iowa 51401
 
         
 
         Mr. David Shinkle
 
         Mr. Jack W. Rogers
 
         Attorneys at Law
 
         1040 Des Moines Building
 
         Des Moines, Iowa 50309
 
         
 
         
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                    3303.10
 
                                                    Filed December 31, 1987
 
                                                    DAVID E. LINQUIST
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         LU ELLEN  HUSS,
 
         
 
              Claimant,
 
         
 
         VS.
 
                                                     File No. 769042
 
         BOLTON & HAY, INC.,
 
                                                        A P P E A L
 
              Employer,
 
                                                      D E C I S I 0 N
 
         and
 
         
 
         GREAT AMERICAN INSURANCE
 
         COMPANIES,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         3303.10
 
         
 
              Full commutation denied where claimant's plans for commuted 
 
         funds were indefinite, speculative and conjectural; and where one 
 
         of contemplated uses was not for her benefit (education fund for 
 
         grandchildren).
 
 
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                   BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         
 
         ROBERT RIENHARDT,
 
         
 
              Claimant,
 
                                                   File No.  769079
 
         vs.
 
         
 
         JOHN MORRELL & CO.                     A R B I T R A T I O N
 
         
 
              Employer,                            D E C I S I O N
 
              Self-Insured
 
              Defendant.
 
         
 
         
 
         
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding in arbitration brought by Robert 
 
         Rienhardt, claimant, against John Morrell & Co., employer and 
 
         self-insured defendant for benefits as the result of an injury 
 
         which occurred on September 7, 1983.  A hearing was held in Storm 
 
         Lake, Iowa on September 1, 1987 and the case was fully submitted 
 
         at the close of the hearing.  The record consists of the 
 
         testimony of Robert Rienhardt (claimant), Paula Rienhardt 
 
         (claimant's wife), James Leibfried (co-employee), Dennis L. 
 
         Howrey (personnel manager), Claimant's Exhibits 1 through 7 and 
 
         Defendant's Exhibit A.  Both attorneys submitted good 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 September 7, 1983, 
 
         which arose out of and in the course of employment with 
 
         employer;
 
         
 
              That the injury was the cause of both temporary and 
 
         permanent disability;
 
         
 
              That claimant's entitlement to temporary disability benefits 
 
         has already been paid and is not an issue in this case at this 
 
         time;
 
         
 
              That the type of permanent disability is scheduled member 
 
         disability to both the right and left upper extremities;
 
         
 
              That the commencement date for permanent partial disability 
 
         benefits is March 24, 1984;
 
         
 
              That the weekly rate of compensation, in the event of an 
 
         award, is $156.99 per week;
 
         
 
              That the affirmative defenses of Iowa Code sections 85.23 
 
         and 85.26 shown on the hearing assignment have been waived by 
 

 
         
 
         
 
         
 
         RIENHARDT V. JOHN MORRELL & CO.
 
         PAGE   2
 
         
 
         
 
         defendants;
 
         
 
              That medical benefits are not an issue in this case at this 
 
         time;
 
         
 
              That defendants make no claim for credits for benefits paid 
 
         prior to hearing either as employee nonoccupational group health 
 
         plan benefits or as workers' compensation benefits; and,
 
         
 
              That there are no bifurcated claims.
 
         
 
                                      ISSUE
 
         
 
              The parties presented only one issue for determination at 
 
         the time of the hearing.
 
         
 
              Whether claimant is entitled to permanent partial disability 
 
         benefits, and if so, what is the extent of his entitlement.
 
         
 
                             SUMMARY OF THE EVIDENCE
 
         
 
              All of the evidence was examined and considered.  The 
 
         following is a summary of the pertinent evidence.
 
         
 
              Claimant first worked for employer,for three weeks in 1981. 
 
          His preemployment physical examination on March 21, 1981, showed 
 
         no abnormalities of his extremities (Exhibit 1).  Claimant 
 
         started to work again for employer on September 1, 1983.  He made 
 
         boxes for one and one-half days.  Then he put hot hogs in the 
 
         cooler for one and one-half days.  On the fourth day he was 
 
         assigned to pull leaf lard.  Pulling leaf lard consists of 
 
         manually pulling the fat off of the ribs on the inside of the hog 
 
         with your fingers and hands as the carcass comes by on an 
 
         assembly line.  It is hard work and it is fast work.  James 
 
         Leibfried testified that it is strenuous work.  He added that it 
 
         is more difficult for a tall person like claimant, because a tall 
 
         person has to stoop to reach inside the hog.  Leibfried further 
 
         testified, that normally there is a break-in period during which 
 
         three or four employees pull leaf lard in order to give the new 
 
         person a chance to learn while being assisted by three other 
 
         employees.
 
         
 
              Claimant testified that he was assigned to pull leaf lard 
 
         with only one other employee.  The other employee was pulled off 
 
         the line to do another job and claimant ended up doing this job 
 
         all by himself.  Claimant testified that on the very first day 
 
         that he pulled leaf lard, his hands went numb.  On the second 
 
         day, he could not straighten his arms.  These days were his 
 
         fourth and fifth days on the job.  He pulled leaf lard for three 
 
         or four more days.
 
         
 
              Claimant reported his problems to the plant nurse and she 
 
         sent him to see Robert D. Hranac, M.D., the company doctor.  This 
 
         doctor also happened to be claimant's personal physician.
 
         
 
              Claimant next saw Thomas M. Wilson, M.D., a nerve specialist 
 
         in Minneapolis, Minnesota, who performed an electromyographic 
 
         test.  After that claimant was sent to see R. L. Linsheid, M.D., 
 
         at the Mayo Clinic.  Claimant then saw Ronald O. Wyatt, M.D., an 
 
         orthopedic surgeon in Sioux Falls, South Dakota, who performed 
 
         carpal tunnel surgery on his right hand on April 6, 1983 and on 
 
         his left hand on April 20, 1983.  Claimant also saw William J. 
 
         Moreau, D.C., briefly.
 

 
         
 
         
 
         
 
         RIENHARDT V. JOHN MORRELL & CO.
 
         PAGE   3
 
         
 
         
 
         
 
              There is no medical report, medical information or 
 
         deposition from Dr. Hranac placed in evidence by either party.
 
         
 
              There is an electromyography report from Dr. Wilson dated 
 
         September 21, 1983.  Dr. Wilson concluded as follows:
 
         
 
              INTERPRETATION:
 
         
 
              Although Mr. Rienhardt's symptoms are apparently of 
 
              rather brief duration, the severity of the symptoms and 
 
              of the electrical abnormalities in this young man 
 
              warrant surgical treatment for his carpal tunnel 
 
              syndromes.
 
         
 
         (Ex. 5)
 
         
 
              On October 21, 1983, Dr. Linsheid said that he saw claimant 
 
         on October 19, 1983.  He diagnosed bilateral carpal tunnel 
 
         syndrome and concurred that claimant probably required surgical 
 
         decompression of the nerve (Ex. 6).
 
         
 
              Dr. Moreau said that he saw claimant on December 7, 1983, 
 
         for bilateral carpal tunnel syndrome which originated while 
 
         pulling leaf lard on September 7, 1983.  Dr. Moreau agreed that 
 
         surgical decompression was needed (Ex. 4).  Dr. Wyatt first saw 
 
         claimant on April 3, 1984.  He stated that claimant began having 
 
         trouble in both hands about seven months ago (Ex. 3, page 2).  
 
         Dr. Wyatt released the right hand on April 6, 1984.  The 
 
         operative report shows that the incision was in the palm of the 
 
         right hand (Ex. A, deposition ex. 1, p. 7).  The left hand was 
 
         released on April 20, 1984.  The operative report verifies that 
 
         the incision for the left hand was made in the palm of the hand 
 
         (Ex. 3, p. 3; Ex. A, dep. ex. 1, p. 5).  Dr. Wyatt rated 
 
         claimant's impairment as follows on April 16, 1987:  "Under your 
 
         state compensation laws, I would give this patient a 5% permanent 
 
         physical impairment and loss of physical function to the right 
 
         and to the left upper extremity." (Ex. A, dep. ex. 1, p. 8)
 
         
 
              On April 13, 1987, there was some confusion between Dr. 
 
         Wyatt and defendant's counsel as to whether there was no 
 
         impairment or an impairment of one percent of the body as a whole 
 
         (Ex. A, dep. ex. 1, p. 9).  On April 16, 1987, the above five 
 
         percent rating to each upper extremity was apparently given to 
 
         clear up this confusion (Ex. A, dep. ex. 1, p. 8).  Dr. Wyatt did 
 
         not explain what written medical guides, if any, that he used to 
 
         arrive at these percentages.  Nor did Dr. Wyatt explain what 
 
         physical factors he used in order to arrive at these 
 
         percentages.
 
         
 
              In his deposition dated August 18, 1987, Dr. Wyatt testified 
 
         that he is an orthopedic surgeon (Ex. A, p. 4).  Dr. Wyatt 
 
         identified his curriculum vitae which shows that he has been a 
 
         board certified orthopedic surgeon since September of 1974 and 
 
         also shows that he is a clinical associate professor in the 
 
         surgery department at the University of South Dakota Medical 
 
         School (Ex. A, dep. ex. 1, p. 1).  Dr. Wyatt reported that 
 
         claimant had bilateral carpal tunnel syndrome (Ex. A, p. 5).  In 
 
         his deposition he reiterated his impairment rating in these 
 
         words:
 
         
 
              Q.  And would you relate to the Industrial Commissioner 
 
              what physical permanent functional impairment this 
 

 
         
 
         
 
         
 
         RIENHARDT V. JOHN MORRELL & CO.
 
         PAGE   4
 
         
 
         
 
              individual Robert Rienhardt sustained to both the left 
 
              and to the right?
 
         
 
              A.  I gave the patient a five percent permanent 
 
              physicaL impairment loss of function to his right and 
 
              to his left upper extremity.
 
         
 
         (Ex. A, pp. 6 & 9)
 
         
 
              In his deposition, Dr. Wyatt was not asked whether he used a 
 
         rating guide, and if so, what guide he used.  Dr. Wyatt was not 
 
         asked to explain how or why he arrived at the five percent rating 
 
         (Ex. A, pp. 1-12).
 
         
 
              Claimant saw Dr. Wyatt on May 1, 1984, to remove the 
 
         stitches from his left hand (Ex. A, dep. ex. 1, p. 2).  Claimant 
 
         saw Dr. Wyatt one more time on May 22, 1984, at which time he was 
 
         released to return to work (Ex. A, dep. ex. 1, p. 3).  Claimant 
 
         testified that Dr. Wyatt did not conduct. any tests to determine 
 
         his grip strength, sensory pain or his range of motion on either 
 
         of these two occasions.
 
         
 
              C. B. Carignan, Jr., M.D., a family practice physician in 
 
         Okoboji, Iowa, performed an independent medical examination and 
 
         evaluation at the request of claimant on March 13, 1987.  Dr. 
 
         Carignan testified as to his physical findings in these words:
 
         
 
              Q.  Doctor, going to Robert Reinhardt [sic], would you 
 
              relate to the Industrial Commissioner what you obtained 
 
              from him in the history and what you found as far as 
 
              his bilateral carpal tunnel condition is concerned.
 
         
 
              A.  Well, I first saw him on March 13 of this year.  At 
 
              that time he stated that he had had a bilateral carpal 
 
              tunnel operation by Dr. Wyatt in Sioux Falls.  He came 
 
              in to get his current situation evaluated.  At that 
 
              time we examined him and found that the main problem 
 
              remaining was some numbness in the hands.  We also 
 
              found that the patient was right-handed.  He had well 
 
              healed surgical scars from his previous surgery.  He 
 
              was complaining of bothersome numbness in his hands.  
 
              We did light touch, pin wheel, sharp touch, pressure, 
 
              and so forth and range of motion studies on the 
 
              gentleman and found that he had completely normal range 
 
              of motion and strength.  However, there was definite 
 
              paresthesia of both hands.
 
         
 
         (Ex. 7, pp. 6 & 7)
 
         
 
              Dr. Carignan explained his permanent functional impairment 
 
         rating as follows:
 
         
 
                 Well, due to the paresthesia, he had a 15 percent 
 
              impairment of one upper extremity and 10 percent of the 
 
              left upper extremity, 15 percent of the right, which is 
 
              equilavent [sic] to a 9 percent whole body impairment 
 
              of the right upper extremity and 6 percent whole body 
 
              impairment of the left, equivalent to 15 percent of the 
 
              whole person.  Actually the findings were very similar 
 
              both on the right and left hand, with paresthesia in 
 
              the medial little finger, the ring, middle, and the 
 
              medial aspect of the index finger, and of the thumb on 
 
              both hands, the difference of rating being that the 
 

 
         
 
         
 
         
 
         RIENHARDT V. JOHN MORRELL & CO.
 
         PAGE   5
 
         
 
         
 
              dominant hand is rated at a higher disability than the 
 
              nondominant hand.  So the result was that he had a 15 
 
              percent impairment of the right hand and a 10 percent 
 
              impairment of the left, upper extremity, that is --
 
         
 
         (Ex. 7, pp. 8 & 9)
 
         
 
              Dr. Carignan said that he used the Guides to Evaluation of 
 
         Permanent Impairment, second edition, published by the American 
 
         Medical Association.  However, he did not further explain how or 
 
         what factors caused him to arrive at these percentages (Ex. 7, p. 
 
         9).
 
         
 
              Dr. Carignan said that an impairment rating can be given at 
 
         any time, but he preferred to wait until 18 months after surgery 
 
         (Ex. 7, pp. 9 & 10).  Claimant related to Dr. Carignan that in 
 
         his computer training course he had difficulty handling small 
 
         parts, holding the pencil, writing and grasping a hammer because 
 
         of the numbness in his hands (Ex. 7, p. 11).  Dr. Carignan 
 
         believed that removing leaf lard could cause carpal tunnel 
 
         syndrome to develop in a matter of two or three days (Ex. 7, p. 
 
         13).  Dr. Carignan said that previously he had performed carpal 
 
         tunnel surgeries but had quit performing surgery approximately 
 
         five years ago (Ex. 7, pp. 14 & 15).
 
         
 
              Defendant's counsel looked at Dr. Carignan's notes and 
 
         noticed that Dr. Carignan had changed his rating.  The following 
 
         exchange then occurred and Dr. Carignan's testimony concluded as 
 
         follows:
 
         
 
              Q.  Doctor, in looking at your notes, it looks like 
 
              those numbers were changed on that rating.
 
         
 
              A.  Yeah, they were.  I misread the table is what 
 
              happened so they went lower.  I had actually rated him 
 
              a little higher, and then I got to looking at the table 
 
              and I was on the wrong line so I wrote over them again, 
 
              got the right numbers down.  I don't remember whether I 
 
              had different glasses on or what, but I remember that.  
 
              So actually it would have been higher except I took 
 
              another look and it was less.
 
         
 
              Q.  And so then you changed the numbers.
 
         
 
              A.  Right, got it right.
 
         
 
              Q.  Looks like you indicated in your notes here that 
 
              the individual had a mild -- and you underlined mild -- 
 
              superficial sensory impairment.
 
         
 
              A.  Thats right.  He still has deep touch.  What he's 
 
              really lost is discrimination. his light touch mainly 
 
              is what's impaired.
 
         
 
         (Ex. 7, pp. 17 & 18)
 
         
 
              Dr. Carignan gave a written report which is essentially the 
 
         same as his testimony (Ex. 2).  Dr. Carignan more particularly 
 
         described claimant's impairment problem in the following 
 
         language:
 
         
 
              Q.  Doctor, did this patient relate to you what he is 
 
              doing at the present time?
 

 
         
 
         
 
         
 
         RIENHARDT V. JOHN MORRELL & CO.
 
         PAGE   6
 
         
 
         
 
         
 
              A.  I'm not sure that he did.  I think he said he was 
 
              in training to be an electronics repairman at Southwest 
 
              Minn -- Tech up at Jackson, I believe.
 
         
 
              Q.  Okay.  So he's attempting to rehabilitate himself 
 
              as far as you know; is that correct?
 
         
 
              A.  That's correct.
 
         
 
              Q.  And did he relate to you specifically what was 
 
              happening to him with his hands as far as doing fine 
 
              work in electrical repair situations?
 
         
 
              A.  Well, I didn't ask it that way.  I said, "How does 
 
              this actually bother you now" and he said, well, 
 
              because of the numbness, he has difficulty handling 
 
              small parts, which, of course, he must do in the course 
 
              of repairing computers and so forth, little screws and 
 
              little bolts and things, and he said it was terribly 
 
              frustrating.  He had trouble telling whether or not he 
 
              had ahold of the thing and when he tried to start it 
 
              into the hole and so forth that it caused a great deal 
 
              of problems and frustration.  At his training he also 
 
              noticed some problems holding a pencil for very long, 
 
              writing.  His hands would get numb and held tend to 
 
              have difficulty knowing whether or not he had ahold of 
 
              the pencil.
 

 
         
 
         
 
         
 
         RIENHARDT V. JOHN MORRELL & CO.
 
         PAGE   7
 
         
 
         
 
         
 
              Q.  Okay.
 
         
 
              A.  He noticed some problems with things like, oh, 
 
              grasping a hammer or something like that.  Held have to 
 
              look at his hand to make sure that he had ahold of it 
 
              right.
 
         
 
              Q.  Okay.  Doctor, would these problems in your 
 
              opinion, based on reasonable medical certainty, be 
 
              problems which this patient would permanently have to 
 
              face for the remainder of his life?
 
         
 
              A.  At this stage of the game, probably.
 
         
 
         (Ex. 7, pp. 10 & 11)
 
         
 
              Claimant testified that he returned to work light duty doing 
 
         light cleaning and maintenance jobs.  Eventually, he performed 
 
         other jobs such as whipping hogs, the garbage man job and a scoop 
 
         shovel job until the plant closed in April of 1985.  Claimant 
 
         testified that he was never able to do the leaf lard job again.
 
         
 
              When the plant closed, claimant chose to terminate his 
 
         employment and take severance pay rather than to move to Sioux 
 
         Falls, South Dakota and continue his employment with employer.  
 
         When claimant could not find employment in other packing houses 
 
         and his unemployment compensation ran out, he then consulted 
 
         vocational rehabilitation services and took tests.  The 
 
         vocational rehabilitation people recommended and claimant agreed 
 
         to become a student at the Southwest Minnesota Technical 
 
         Institute.  He has attended one year and plans to graduate in 
 
         another year on July 31, 1988.  His grade point average is 3.8.  
 
         His family has been living on food stamps and welfare.
 
         
 
              Claimant stated that he uses his hands in his computer 
 
         training.  Some days his hands work okay.  Other days they are 
 
         puffy and swollen and he has trouble handling small parts.  Both 
 
         hands have numbness and pain off and on.  Prior to this injury, 
 
         claimant could bowl, play softball, fish, bow hunt, garden, 
 
         shovel snow, paint, hammer and do farm labor work.  Now he can 
 
         bowl only about one-half of a game.  Then he no longer has the 
 
         strength to hold the ball.  His ability to write and type is 
 
         diminished.  If he tries to hammer, his hand goes numb.  His 
 
         sleep is disturbed because he has difficulty getting his hands 
 
         comfortable.  Claimant stated that he gardens a little and can 
 
         mow the yard.  Activity causes his small fingers and ring fingers 
 
         to go numb.  His middle fingers are only affected a slight 
 
         amount.  His index fingers are not affected at all.
 
         
 
              Claimant's wife, Paula Rienhardt, testified that when he 
 
         tries to bowl, he drops the ball, when he tries to fish, his 
 
         thumb cannot work the lever and he has trouble pulling the string 
 
         to bow hunt.  When he tries to bale hay or do farm work he gets 
 
         pain in his hands.  The numbness in his hands wakes him up at 
 
         night when he is sleeping.  His hands are puffy and stiff.  He 
 
         cannot open a fruit jar.  Sometimes he drops the coffee cup he is 
 
         holding when his thumb gives away.  He cannot do hard physical 
 
         labor like hammering, putting on shingles, baling hay or 
 
         shoveling snow.  When he attempts to do these things he gets pain 
 
         in his hands and they go numb.
 
         
 
              Jim Leibfried corroborated claimant's testimony that the 
 

 
         
 
         
 
         
 
         RIENHARDT V. JOHN MORRELL & CO.
 
         PAGE   8
 
         
 
         
 
         leaf lard job is very hard to do and that claimant has 
 
         demonstrated difficulty bowling, fishing and bow hunting.
 
         
 
              Dennis Howrey, personnel manager, testified that claimant 
 
         could have transferred to Sioux Falls, South Dakota but chose 
 
         instead to terminate his employment and take severance pay.  
 
         Claimant returned to work after the surgery and got along well on 
 
         the job until the plant closed in April of 1985.
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              The right of a worker to receive compensation for injuries 
 
         sustained which arose out of and in the course of employment is 
 
         statutory.  The statute conferring this right can also fix the 
 
         amount of compensation to be paid for different specific 
 
         injuries, and the employee is not entitled to compensation except 
 
         as provided by the statute.  Soukup v. Shores Co., 222 Iowa 272, 
 
         268 N.W. 598 (1936).
 
         
 
              Both Dr. Wyatt and Dr. Carignan rated the right and left 
 
         upper extremity.  The parties stipulated that claimant sustained 
 
         a scheduled member injury to the right and left upper extremity. 
 
          However, Iowa Code section 85.34(2)(a) through (t) does not show 
 
         the upper extremity as one of the specifically designated 
 
         scheduled members.  Subsection (1) provides 190 weeks for the 
 
         loss of a hand and subsection (m) provides 250 weeks for the loss 
 
         of an arm.  Both of claimants surgeries were in the hand.  
 
         Claimant's complaints of pain and numbness were in his hands.  
 
         Physicians frequently issue impairment ratings in terms of the 
 
         upper extremity even though the physical ailment, the medical 
 
         abnormality, the derangement or impairment is in the hand.  
 
         VanBlarcom v. FDL Foods, Inc., file no. 796651 (May 16, 1988).
 
         
 
              Even if claimant's impairment had extended to the wrist, the 
 
         wrist is still considered to be a part of the hand.  Elam v. 
 
         Midland Manufacturing, II Iowa Industrial Commissioner Report, 
 
         141 (Appeal Decision 1981).  In this case, claimant Dr. Wyatt, 
 
         Dr. Carignan and claimant's wife specifically talked about 
 
         claimant's hands.  Therefore, it is determined that claimant's 
 
         disability is to the hands.  When the conversion charts found at 
 
         table nine, page ten of the AMA Guides are examined, it can be 
 
         seen that there is little, and sometimes no difference in value 
 
         between the hand and the upper extremity.
 
         
 
              Dr. Wyatt eventually awarded a five percent permanent 
 
         functional impairment rating to each upper extremity.  This is 
 
         also the equivalent of a five percent impairment of each hand as 
 
         shown in table nine, page ten of the AMA Guides.
 
         
 
              Normally, a rating of a board certified orthopedic surgeon 
 
         would be the preferred rating.  Richland v. Palco, Inc., 
 
         Thirty-second Biennial Report the Industrial Commissioner, 56 
 
         (1975); Dickey v. ITT Continental Baking Co., Thirty-fourth 
 
         Biennial Report of the Industrial Commissioner Report, 89 (1979). 
 
          In addition, Dr. Wyatt was the treating physician, whereas, Dr. 
 
         Carignan was only hired for the limited purpose of giving a 
 
         rating for the further purpose of having the rating used in 
 
         litigation to obtain an award of workers' compensation benefits.  
 
         Rockwell Graphics Systems, Inc. v. Prince, 366 N.W.2d 187, 192 
 
         (Iowa 1985).
 
         
 
              Dr. Wyatt's rating in this case is not highly probative or 
 
         persuasive.  First of all, Dr. Wyatt saw claimant for the last 
 

 
         
 
         
 
         
 
         RIENHARDT V. JOHN MORRELL & CO.
 
         PAGE   9
 
         
 
         
 
         time on May 22, 1984, which was only approximately one month 
 
         after the second surgery and before claimant had attempted to 
 
         return to work and use his hands in employment again.  Secondly, 
 
         Dr. Wyatt did not give his.rating until three years later on 
 
         April 16, 1987, but he had not seen or talked to claimant since 
 
         May 22, 1984.  Thirdly, according to claimant's testimony, Dr. 
 
         Wyatt did not perform any physical tests for range of motion, 
 
         sensation or strength.  Fourth, Dr. Wyatt gives no basis for his 
 
         rating.  It is simply a bare conclusion, a number standing alone, 
 
         without the slightest explanation of the factors or facts used to 
 
         arrive at this number.  Fifth, Dr. Wyatt did not indicate whether 
 
         he used the AMA Guides, the orthopedic guides, some other medical 
 
         guides or no guides at all.  Sixth, there was confusion between 
 
         Dr. Wyatt and defendant's counsel on April 13, 1987, as to 
 
         whether claimant had no impairment, or a one percent impairment 
 
         of the body as a whole before Dr. Wyatt eventually settled on the 
 
         five percent rating to each upper extremity on April 16, 1987.
 
         
 
              Dr. Carignan is in fact, an examining and evaluating 
 
         physician for the purposes of litigation and therefore, to some 
 
         degree, he may possibly be a partisan advocate in the litigation.  
 
         Dr. Carignan is not a board certified orthopedic surgeon, 
 
         neurosurgeon or general surgeon.  He is not a treating physician 
 
         responsible for the outcome of claimant's medical treatment and 
 
         the result of that treatment.  Dr. Carignan granted that he was 
 
         even forced to revise his original rating downward because it was 
 
         incorrect because it was too high.  Even his lowered rating of 15 
 
         percent impairment following carpal tunnel surgery is higher than 
 
         is generally seen for carpal tunnel cases.  Furthermore, when Dr. 
 
         Carignan combined nine percent and six percent and arrived at 15 
 
         percent, this too was an incorrect calculation on his part.  The 
 
         combined values chart, on page 240, of the AMA Guides shows that 
 
         the combined value of nine percent and six percent is 14 
 
         percent.
 
         
 
              Dr. Carignan deducted five percent for the nondominant 
 
         extremity as is suggested at page 2 of the AMA Guides, in the 
 
         paragraph entitled "Nonpreferred Upper Extremity".  This 
 
         paragraph reads as follows:
 
         
 
              Nonpreferred Upper Extremity-Since the basic tasks of 
 
              everyday living are more dependent upon the preferred 
 
              upper extremity than upon the nonpreferred one, 
 
              dysfunction of the nonpreferred extremity results in 
 
              less impairment than dysfunction of the preferred.  
 
              Therefore, when the impairment of an upper extremity 
 
              has been determined to be between 5% and 50%, the value 
 
              should be reduced by 5% if the impairment is of the 
 
              nonpreferred extremity.  If the determined value is 51% 
 
              to 100%, the value should be reduced by 10% if the 
 
              impairment is of the nonpreferred extremity.  For 
 
              example, a 60% impairment would become 60%-(60% x 10%) 
 
              = 54%.
 
         
 
              First of all it should be stated that the provisions of this 
 
         paragraph are not usually applied in workers' compensation 
 
         practice in carpal tunnel cases.  Secondly it should be stated 
 
         that the wording of this paragraph, in particular the words 
 
         "tasks of everyday living" would seem to apply more to industrial 
 
         disability rather than scheduled member disability.  Third, Dr. 
 
         Carignan did not properly apply the deduction for the nondominant 
 
         or nonpreferred extremity.  Dr. Carignan simply deducted five 
 
         percent.  The instructions however, are that you are to deduct 
 

 
         
 
         
 
         
 
         RIENHARDT V. JOHN MORRELL & CO.
 
         PAGE  10
 
         
 
         
 
         five percent of the rating and not simply a flat five percent on 
 
         all ratings.  Following the example in this paragraph the proper 
 
         application of the deduction would be as follows: 15% - (15% x 
 
         5%) = 14.25%.  Therefore, application of this paragraph results 
 
         in an insignificant change in the overall impairment rating.  For 
 
         these reasons nothing is deducted for the nondominant hand in 
 
         this case.
 
         
 
              This case may be the kind of a case that the authors had 
 
         reference to in Lawyer and Higgs, Iowa Workers' Compensation -Law 
 
         & Practice, section 13-4 at pages 111 & 112, when the authors 
 
         remarked:
 
         
 
              "Scheduled member cases are always good candidates for 
 
              settlement.  In the routine matter, the defendant's 
 
              physician will provide one impairment rating; the 
 
              claimant's doctor another.  If the case goes to 
 
              hearing, barring some inadequacy in history, inequality 
 
              in qualifications of the experts or insufficiency in 
 
              examination, the ratings will be added and divided by 
 
              two.
 
         
 
              This case however, is not decided on such an arbitrary 
 
         basis.  As between the two doctors, Dr. Carignan gives us the 
 
         greatest insight into claimant's actual impairment and disability 
 
         and the physical factors affecting claimant's fingers and hands 
 
         upon which his opinion is based.  Dr. Carignan did perform more 
 
         detailed testing than did Dr. Wyatt based on the evidence in this 
 
         record of trial.  Claimant testified that Dr. Wyatt did no 
 
         testing.  Dr. Carignan said he performed light touch, pin wheel, 
 
         sharp touch, pressure range of motion and strength tests.  Also, 
 
         Dr. Carignan's evaluation was performed after claimant had three 
 
         years of healing and three years of opportunity to recoup the use 
 
         of his fingers and hands.  Agency expertise and experience has 
 
         evolved to generally indicate that a five percent rating of the 
 
         hand is somewhat common following a successful carpal tunnel 
 
         surgery to the hand.  Iowa Administrative Procedure Act 
 
         17A.14(5).  Likewise, an impairment rating of ten percent of the 
 
         hand or greater indicates a surgery that was not completely 
 
         successful or in any event, resulted in more impairment than the 
 
         more successful cases. (VanBlarcom, file no. 796651, filed May 
 
         16, 1988).  In this case, Dr. Carignan, claimant, claimant's wife 
 
         and Leibfried all testified that claimant has some serious 
 
         residual effects from his carpal tunnel syndrome and his carpal 
 
         tunnel surgery.  Although claimant still has deep touch, he has 
 
         lost significant light touch discrimination (Ex. 7, pp. 17 & 18).  
 
         His range of motion and grip strength are normal, but claimant 
 
         has lost significant sensation in his fingers and hands.  
 
         Claimant drops his bowling ball and his coffee cup.  He has 
 
         greater difficulty writing and typing.  He cannot maneuver and 
 
         manipulate small screws and bolts without difficulty.  Claimant 
 
         has difficulty baling hay, shoveling sidewalks, using a hammer, 
 
         operating a fishing reel and pulling on a bowstring.  Long term 
 
         use of his hands in manual labor causes pain and numbness.  This 
 
         evidence is not controverted.  Therefore, based on the foregoing 
 
         factors and considerations and applying agency expertise and 
 
         experience it is determined that claimant has sustained a ten 
 
         percent permanent functional impairment to each hand.
 
         
 
              Claimant testified, and the doctors verified, that 
 
         claimant's carpal tunnel syndrome was bilateral and occurred in 
 
         each hand at the same time.  Dr. Wilson, Dr. Linsheid, Dr. Moreau 
 
         and Dr. Wyatt all described bilateral carpal tunnel syndrome.  
 

 
         
 
         
 
         
 
         RIENHARDT V. JOHN MORRELL & CO.
 
         PAGE  11
 
         
 
         
 
         Dr. Wyatt said claimant began having trouble in both hands at the 
 
         same time (Ex. 3, p. 2).  Therefore, even though neither attorney 
 
         mentioned it at the hearing or in their briefs, it clearly 
 
         appears that this injury is governed by Iowa Code section 
 
         85.34(2)(s) which reads as follows:
 
         
 
                 The loss of both arms, or both hands, or both feet, 
 
              or both legs, or both eyes, or any two thereof, caused 
 
              by a single accident, shall equal five hundred weeks 
 
              and shall be compensated as such, however, if said 
 
              employee is permanently and totally disabled he may be 
 
              entitled to benefits under subsection 3.
 
         
 
              Applying the AMA Guides at table nine, page ten, it shows 
 
         that a ten percent impairment of the hand converts to a nine 
 
         percent impairment of the upper extremity.  Then, table 20 on 
 
         page 23 shows that a nine percent impairment of the upper 
 
         extremity converts to a five percent impairment of the whole 
 
         person.  Then, the combined values chart on page 240, snows that 
 
         the combined value of five percent of the right hand and five 
 
         percent of the left hand gives a combined value of ten percent of 
 
         the whole person.  Applying ten percent to 500 weeks as provided 
 
         by Iowa Code section 85.34(2)(s) yields a 50 week entitlement to 
 
         permanent partial disability.  Claimant is entitled to 50 weeks 
 
         of permanent partial disability at the stipulated rate of $156.99 
 
         per week in the total amount of $7,849.50.
 
         
 
                                 
 

 
         
 
         
 
         
 
         RIENHARDT V. JOHN MORRELL & CO.
 
         PAGE  12
 
         
 
                                 
 
                                 FINDING OF FACT
 
         
 
              Wherefore, based upon the evidence presented the following 
 
         finding of fact is made:
 
         
 
              That claimant sustained a ten percent permanent functional 
 
         impairment of the right hand and a ten percent permanent 
 
         functional impairment of the left hand.
 
         
 
                                CONCLUSION OF LAW
 
         
 
              WHEREFORE, based upon the evidence presented and the 
 
         foregoing principles of law the following conclusion of law is 
 
         made:
 
         
 
              That claimant is entitled to 50 weeks of permanent partial 
 
         disability based upon Iowa Code section 85.34(2)(s).
 
         
 
                                      ORDER
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              That defendant pay to claimant fifty (50) weeks of permanent 
 
         partial disability benefits at the rate of one hundred fifty-six 
 
         and 99/100 dollars ($156.99) per week in the total amount of 
 
         seven thousand eight hundred forty-nine and 50/100 dollars 
 
         ($7,849.50) commencing on March 24, 1985;
 
         
 
              That these benefits are to be paid to claimant in a lump 
 
         sum;
 
         
 
              That interest will accrue pursuant to Iowa Code section 
 
         85.30;
 
         
 
              That defendant pay the costs of this action pursuant to 
 
         Division of Industrial Services Rule 343-4.33; and,
 
         
 
              That defendant file claim activity reports as requested by 
 
         this agency pursuant to Division of Industrial Services Rule 
 
         343-3.1.
 
         
 
         
 
              Signed and filed this 17th day of August, 1988.
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
                                          WALTER R. McMANUS, JR.
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         
 
         Copies to:
 
         
 
         Mr. E.W. Wilcke
 
         Attorney at Law
 
         826 1/2 Lake St.
 
         P.O. Box 455
 
         Spirit Lake, Iowa 51460
 
         
 
         Mr. Dick Montgomery
 
         Attorney at Law
 

 
         
 
         
 
         
 
         RIENHARDT V. JOHN MORRELL & CO.
 
         PAGE  13
 
         
 
         
 
         Professional Bldg,
 
         P.O. Box 7038
 
         Spencer, Iowa 51301
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                          1402.40; 1402.40; 2601; 2902
 
                                          1803
 
                                          Filed August 17, 1988
 
                                          WALTER R. McMANUS, JR.
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         ROBERT RIENHARDT,
 
         
 
              Claimant,
 
                                                  File No.  769079
 
         vs.
 
         
 
         JOHN MORRELL & CO.                    A R B I T R A T I O N
 
         
 
              Employer,                           D E C I S I O N
 
              Self-Insured
 
              Defendant.
 
         
 
         
 
         
 
         1402.40
 
         
 
              Both physicians rated the upper extremities and parties 
 
         stipulated that the injury was to the upper extremities.  
 
         Claimant's surgeries for bilateral carpal tunnel were performed 
 
         in his hands, his complaints were in his hands, and his 
 
         impairment and disability was in his hands.  Section 85.34(2)(a) 
 
         to (t) does not list the upper extremity as a scheduled member.  
 
         It does list the hand and the arm.  Claimant's disability was 
 
         determined to be in the hands, but because the injuries arose 
 
         simultaneously claimant was awarded benefits under Section 
 
         86.34(2)(s).
 
         
 
         1402.40, 2601, 2902
 
         
 
              Several deficiencies of both rating physicians were pointed 
 
         out.  Claimant's independent examiner and evaluator was preferred 
 
         over the treating physician who was a board certified orthopedic 
 
         surgeon because he provided more information for the basis of his 
 
         rating.
 
         
 
         1803
 
         
 
              Treating physician awarded five percent of each upper 
 
         extremity.  Claimant's evaluator awarded 15 percent of each upper 
 
         extremity.  Claimant awarded ten percent of each hand, converted 
 
         to upper extremity, converted to body as a whole, and combined to 
 
         ten percent of 500 weeks for 50 weeks of permanent partial 
 
         disability.  So much of the AMA Guides that deducts five percent 
 
         of the impairment for the nondominant (nonpreferred extremity) 
 
         was not used for the reasons stated in the decision.