BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         DANIEL MORRIS,
 
         
 
              Claimant,
 
                                                   File No.  787574
 
         VS.
 
                                               A R B I T R A T I 0 N
 
         CITY OF DES MOINES, IOWA,
 
                                                  D E C I S I 0 N
 
              Employer,
 
              Self-Insured,
 
              Defendant.
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding in arbitration brought by Daniel R. 
 
         Morris, claimant, against the City of Des Moines, Iowa, employer 
 
         and self-insured defendant for benefits as a result of an injury 
 
         that occurred on February 7, 1985.  A hearing was held on August 
 
         21, 1987 in Des Moines, Iowa and the case was fully submitted at 
 
         the close of the hearing.  The record consists of the testimony 
 
         of Daniel R. Morris (claimant), Michael E. Peterson (safety 
 
         administrator) and Elizabeth A. Barstad (rehabilitation 
 
         specialist) and Joint Exhibits one through 158.  Both attorneys 
 
         prepared and submitted outstanding briefs in support of their 
 
         respective clients.  The exhibit list and the exhibits were 
 
         exceptionally well prepared.  They were carefully arranged 
 
         chronologically, clearly indexed and were very neat, orderly and 
 
         readable.
 
         
 
                                   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 February 7, 1985 which 
 
         arose out of and in the course of employment with employer.
 
         
 
              That the type of permanent disability, if the injury is 
 
         found to be a cause of permanent disability, is industrial 
 
         disability to the body as a whole.
 
         
 
              That in the event of an award, the weekly rate of 
 
         compensation is $233.82 per week.
 
         
 
              That the fees charged for medical services or supplies are 
 
         fair and reasonable and that the provider of the supplies and
 
         services would testify that they were for reasonable and 
 
         necessary treatment of the injury and defendant is not offering 
 
         contrary evidence.
 
         
 
              That no claim is made for credits pursuant to Iowa Code 
 
         section 85.38(2) for previous payment of benefits under an 
 

 
         
 
         
 
         
 
         MORRIS V. CITY OF DES MOINES, IOWA
 
         Page   2
 
         
 
         employee nonoccupational group health plan.
 
         
 
              That defendant is entitled to a credit for workers' 
 
         compensation benefits paid prior to the hearing for 54 and 2/7 
 
         weeks at the rate of $233.82 per week.
 
         
 
              That there are no bifurcated claims.
 
         
 
         
 
                                     ISSUES
 
         
 
              The parties submitted the following issues for determination 
 
         at the time of the hearing:
 
         
 
              Whether the injury is the cause of temporary disability.
 
         
 
              Whether the injury is the cause of permanent disability.
 
         
 
              Whether claimant is entitled to temporary disability 
 
         benefits, and if so, the nature and extent of benefits.
 
         
 
              Whether claimant is entitled to permanent disability 
 
         benefits, and if so, the nature and extent of benefits.
 
         
 
              Whether claimant is entitled to certain medical expenses 
 
         under the provisions of Iowa Code section 85.27.
 
         
 
              Whether claimant is entitled to an independent medical 
 
         examination under the provisions of Iowa Code section 85.39.
 
         
 
              Whether claimant is an odd lot employee.
 
         
 
         
 
                             SUMMARY OF THE EVIDENCE
 
         
 
              All of the evidence was examined and considered.  The 
 
         following is a summary of the pertinent evidence.
 
         
 
              Claimant, who was born on January 11, 1943, was 41 years old 
 
         at the time of the injury and 44 years old at the time of the 
 
         hearing.  He discontinued high school in the eleventh grade.  He 
 
         then entered the United States Army from 1960 to 1964.  While in 
 
         the army he obtained his G.E.D. (general education development) 
 
         certificate.  Claimant testified that during high school he did 
 
         well in shop classes.  Also, before entering the army he 
 
         delivered papers on a paper route.
 
         
 
              Past employments include work as a mechanic and vehicle 
 
         maintenance work in the army.  Claimant then worked as an 
 
         assistant manager for Hudson Oil Company at which time he pumped 
 
         gas and kept timesheets for other employees.  He then got a 
 
         better job with Jenkins Oil Company where he performed minor 
 
         mechanical repairs and serviced automobiles.  Next he performed 
 
         maintenance and repairs on the assembly line at AMF Western Tool.  
 
         He also worked as a spray painter there.  After that, he moved to 
 
         California and worked for Reynolds Aluminum as a coil operator.  
 
         He also performed maintenance and inspection work for Reynolds.  
 

 
         
 
         
 
         
 
         MORRIS V. CITY OF DES MOINES, IOWA
 
         Page   3
 
         
 
         He worked for the Iowa State Highway Commission on a road crew as 
 
         a maintenance man (Exhibit 145).  He also engaged in a private 
 
         tree removal business with other family members.  Claimant denied 
 
         any serious injuries or health problems prior to this injury.  
 
         All of his prior employments required manual labor or physical 
 
         activities with his arms.
 
         
 
              Claimant testified that he started to work for employer in 
 
         1969.  His employment application, however, is dated May 18, 1970 
 
         (Ex. 145).  He passed a preemployment physical examination on May 
 
         26, 1970 (Ex. 143).  He was appointed to the job of laborer in 
 
         the Sewage Treatment Plant Division of the Public Works 
 
         Department on May 27, 1970 (Ex. 108).  He was appointed sewage 
 
         treatment plant helper on August 17, 1970 (Ex. 107).  Claimant 
 
         earned a Waste Water Treatment Plant Operator Certificate on 
 
         August 25, 1971 that certified that claimant was qualified to 
 
         operate a grade II waste water treatment plant (Ex. 148).
 
         
 
              Claimant was promoted to assistant sewage treatment plant 
 
         operator on June 19, 1972 (Ex. 103).  He operated, inspected and 
 
         maintained technical equipment.  The job called for knowledge of 
 
         the materials and equipment used in the operation of water and 
 
         sewage treatment plants; ability to read and interpret from gages 
 
         the operating status of plant equipment; mechanical aptitude; 
 
         ability to follow written and oral reports; ability to keep 
 
         simple records; and ability to supervise the work of others (Ex. 
 
         151).
 
         
 
              On December 4, 1972, claimant requested voluntary demotion 
 
         to Sewage Treatment Plant Operator (Ex. 101).  On July 21, 1980 
 
         claimant became Pumping Station Maintenance Worker (Ex. 96).  
 
         This was the job claimant was performing at the time of this 
 
         injury.  Claimant's duties were to inspect and maintain pumping 
 
         station equipment.  Claimant testified that he inspected pumping 
 
         stations, changed pumps, repacked pumps, mowed the grass, washed 
 
         the windows, mopped the floors and maintained the buildings.  The 
 
         job description called for the following knowledge and 
 
         abilities:
 
         
 
                 Knowledge and Abilities:  Knowledge of the care and 
 
              operation of sewage pumping stations and equipment.
 
                 Knowledge of the materials, methods and tools
 
              required to maintain such equipment.
 
                 Ability to operate electrical and mechanical 
 
              equipment and to detect flaws or defects in operation.
 
                 Ability to follow oral and written instructions; 
 
              ability to prepare reports.
 
                 Ability to serve as a lead person over a small crew 
 
              and to maintain effective working relationships with 
 
              them and with superiors.
 
                 Ability to operate a motor vehicle safety [sic] and 
 
              efficiently.
 
         
 
         (Ex. 150)
 
         
 
              Claimant's work record and ratings were good (Exs. 109-116) 
 
         except for a reprimand for an unauthorized coffee break on 
 
         November 26, 1981 (Ex. 118).
 
         
 
              Claimant reported a number of accidents and injuries over 
 

 
         
 
         
 
         
 
         MORRIS V. CITY OF DES MOINES, IOWA
 
         Page   4
 
         
 
         his 15 years of employment with employer but none of them 
 
         involved his right shoulder (Exs. 119-138).  Claimant testified 
 
         that he was always able to return to work and perform manual 
 
         labor after each of these incidents.  Claimant stressed several 
 
         times in his testimony that all of his jobs required physical, 
 
         manual labor and the extensive use of his arm.
 
         
 
              On February 7, 1985 claimant was working at the Neola 
 
         Pumping Station behind Lutheran Hospital with Robert Lumely.  
 
         They were carrying a pump housing down the steps into the pumping 
 
         station.  Lumely slipped and claimant caught the weight of the 
 
         pump housing causing a burning sensation in his right shoulder.  
 
         At lunch time, claimant reached for his jacket and could not lift 
 
         his arm.  His ring finger was swollen.. Claimant went to the 
 
         Mercy Hospital emergency room and was then sent home.  The 
 
         following morning he went to the Employee Health Clinic at the 
 
         armory and reported the injury (Ex. 92).
 
         
 
              Randy Miller, D.O., treated claimant on February 7, 1985 and 
 
         again on February 13, 1985.  Dr. Miller reported on February 15, 
 
         1985 that claimant had a resolving right shoulder strain.  Dr. 
 
         Miller recorded that claimant had been unable to work since the 
 
         time of the injury on February 7, 1985 (Ex. 91).  Claimant 
 
         returned to work on February 18, 1985 (Exs. 89 & 91).  Claimant 
 
         was then taken off work again and sent to see Scott B. Neff, 
 
         D.O., on February 27, 1985 (Ex. 87 & 88).  Claimant received the 
 
         normal physical therapy for this type of injury on February 27, 
 
         1985 from Thomas W. Bower, L.P.T., due to a limited range of 
 
         motion (Ex. 86).
 
         
 
              On February 27, 1985, Dr. Neff speculated that claimant 
 
         could have a hemorrhagic subacromial bursitis and impingement 
 
         syndrome.  He prescribed medications and increased the physical 
 
         therapy.  Dr. Neff did not believe claimant had a rotator cuff 
 
         tear.  He said that claimant should not work (Ex. 85).  A bone 
 
         scan was ordered on March 6, 1985 (Ex. 82).  The bone scan did 
 
         not show any increased uptake in the right AC joint and his 
 
         passive range of motion was normal except for some crepitus and 
 
         pain with abduction.  Claimant was released to return to work on 
 
         regular duty without specific limitations on March 18, 1985 (Exs. 
 
         77-79).  At the hearing, however, claimant testified that he was 
 
         only released to return to work to light duty.  Claimant further 
 
         contended that he had never been released to return to work to 
 
         full duty at any time after the injury.  Claimant did, however, 
 
         return to work on March 18, 1985.
 
         
 
              On September 13, 1985, claimant reported to the Employee 
 
         Health Clinic that he was having trouble with his shoulder again. 
 
          Claimant was referred to Dr. Neff again (Ex. 75 & 76).  Dr. Neff 
 
         said on September 18, 1985 that claimant complained of more pain 
 
         and crepitus in his right shoulder and tingling and numbness in 
 
         his right arm if he tried to work above shoulder level (Ex. 74).
 
         
 
              Mr. Bower reported to Dr. Neff on September 23, 1985 that an 
 
         EMG did not demonstrate any abnormality (Ex. 72).  An arthrogram 
 
         did not show a rotator cuff tear.  Cervical spine films were 
 
         normal for his age.  A NEER subacromial impingement diagnostic 
 
         test, however, was positive for shoulder impingement.  A 
 
         resection of the coracoacromial ligament, acromioplasty and 
 
         resection of the subacromial bursa was proposed.  If performed, 
 

 
         
 
         
 
         
 
         MORRIS V. CITY OF DES MOINES, IOWA
 
         Page   5
 
         
 
         claimant would be limited to sedentary work for two weeks and 
 
         then could not do laboring work for from four to six weeks (Ex. 
 
         63).  Claimant requested a second opinion on the surgery (Ex. 
 
         61).  Robert F. Breedlove, M.D., also diagnosed impingement 
 
         syndrome of the right shoulder and he also recommended the 
 
         surgery (Ex. 58).
 
         
 
              The surgery was performed on October 29, 1985 (Ex. 52).  
 
         Claimant was taken off work on September 24, 1985 (Exs. 70 & 71).  
 
         Claimant was scheduled to return to work on light duty on January 
 
         23, 1986 (Exs. 36-38).  When claimant complained of pain on 
 
         January 31, 1986 he was then kept off work again until February 
 
         7, 1986 (Ex. 34).  Claimant actually requested to go back to his 
 
         regular duty, instead of light duty on February 4, 1986 and the 
 
         physical therapist thought that he could do so (Ex. 32).
 
         
 
              On February 28, 1986 claimant continued to complain about 
 
         right shoulder pain (Ex. 29).  Claimant was then sent to the 
 
         Sports Medicine Center at Iowa Methodist Medical Center on March 
 
         21, 1986 for extensive physical therapy (Ex. 27).  When the 
 
         physical therapy hurt his shoulder on March 27, 1986 (Ex. 26), 
 
         Dr. Miller then took claimant off work again on March 28, 1986 
 
         (Ex. 25) until April 2, 1986 when he was returned to work light 
 
         duty with no use of the right shoulder (Exs. 22 & 23).
 
         
 
              On April 21, 1986, after claimant continued to complain of 
 
         right shoulder pain, even on light duty , claimant was sent home 
 
         by Kenneth Schultheis, D.O. (Ex. 19).  On the same date, April 
 
         21, 1986, claimant was directed to go to the pain center at Mercy 
 
         Hospital Medical Center (Ex. 17).  Dr. Schultheis then released 
 
         claimant to work again on light duty on May 2, 1986 (Exs. 13, 
 
         15.& 16).
 
         
 
              Claimant maintained that there was no light duty work in his 
 
         department.  He was given one light duty job in the parts room 
 
         but that involved using his right arm and reaching.  Claimant 
 
         therefore, contended that he could not perform that job.  
 
         Claimant was then assigned another job washing walls in the 
 
         library.  After doing this job for only approximately two hours, 
 
         his right shoulder swelled up clear out to the center of his 
 
         chest.  Claimant was assigned another job where he was directed 
 
         to dig a hole with a shovel.  After attempting to do this for two 
 
         hours, he was forced to go home at break time.  Claimant was 
 
         assigned still another job to take inventory.  Claimant contended 
 
         that this job required writing and the writing caused his arm to 
 
         hurt.  Claimant testified that it felt like the bones in his 
 
         shoulder were rubbing together.
 
         
 
              On April 28, 1986, James Blessman, M.D., reported that 
 
         claimant stated that he had intractable pain in his right 
 
         shoulder which actually increased rather than decreased after the 
 
         surgery.  Claimant stated that he was having trouble sleeping.  
 
         Furthermore, the pain in his shoulder was causing him to be very 
 
         irritable.  Dr. Blessman recommended that claimant be admitted to 
 
         the Mercy Hospital Pain Center (Ex. 14).
 
         
 
              A week earlier on April 21, 1986, Dr. Schultheis reported 
 
         that claimant told him that he could no longer do his job even on 
 
         light duty due to the pain.  Claimant told Dr. Schultheis that he 
 
         just could not work eight hours a day (Ex. 19).  Dr. Schultheis 
 

 
         
 
         
 
         
 
         MORRIS V. CITY OF DES MOINES, IOWA
 
         Page   6
 
         
 
         then reported on May 5, 1986 that claimant requested a disability 
 
         rating from him because claimant felt that he could no longer 
 
         handle the job (Ex. 12).
 
         
 
              Claimant testified that when he left the city in late June 
 
         or early July of 1986, that there was very little that he could 
 
         do with his right arm that did not irritate it.  Claimant 
 
         testified that he could not raise his right arm up above his 
 
         waist.  Working below his waist he only had approximately 
 
         one-halt of the strength in his right arm.  Claimant averred that 
 
         his arm constantly ached like a dull toothache and that it has 
 
         continued to feel that way even up to the time of the hearing.  
 
         Claimant explained that he refused to go to the Pain Center 
 
         because he needed to work in order to get money.  It was 
 
         demonstrated on cross-examination however, that claimant's work 
 
         was in the evening hours and that claimant could have worked and 
 
         also gone to the Pain Clinic at the same time.
 
         
 
              On May 7, 1986, Mr. Bower assessed a 17 percent permanent 
 
         functional impairment of the right upper extremity (Ex. 9).  On 
 
         the same date, Dr. Neff found that claimant still had pain over 
 
         the right AC joint.  Claimant, however, declined to have another 
 
         bone scan to see it degenerative changes had occurred.  Claimant 
 
         contended that the earlier bone scan gave him a rash on his legs.  
 
         Dr. Neff contended that the rash on his legs was not related to 
 
         the bone scan.  At this time claimant also asserted that he was 
 
         having severe headaches which began in his neck and go into his 
 
         face (Ex. 9).  At the request of Dr. Schultheis (Ex. 8)   Dr. 
 
         Neff fractioned Mr. Bower's permanent functional impairment 
 
         rating of 17 percent.  Dr. Neff assigned 12 percent of the rating 
 
         to claimant's work-related injury and five percent of this rating 
 
         to normal wear and tear that occurs with advancing age and 
 
         activities unrelated to work (Ex. 7).  Dr. Neff imposed no 
 
         limitations or restrictions at this time (Exs. 7 & 9).  At the 
 
         time of claimant's final visit to the Employee Health Clinic on 
 
         July 2, 1986, Dr. Blessman said that he believed that claimant's 
 
         pain was real; that claimant could perform some limited duty; but 
 
         that claimant was poorly motivated to return to work.  At that 
 
         time, he modified claimant's restrictions even further to enable 
 
         him to return to work by stating that claimant should not lift 
 
         more than five pounds.  Dr. Blessman added that claimant refused 
 
         to do even this.  Again, he recommended that claimant try the 
 
         Pain Center (Ex. 6).
 
         
 
              Claimant was examined quite thoroughly and evaluated by a 
 
         physician of his own choice, Paul From, M.D., on July 18, 1986.  
 
         Dr. From reported that claimant had decreased range of motion of 
 
         the neck, especially to the right.  There was limitation of 
 
         motion in the right shoulder with abduction limited to 90 
 
         degrees.  Claimant also demonstrated a limitation of internal 
 
         rotation.  Claimant complained of pain and numbness in his 
 
         shoulder which Dr. From said were due to this injury.  He found 
 
         that claimant sustained an impairment of ten to 12 percent of the 
 
         body as a whole (Ex. 4).
 
         
 
              Marshall Flapan, M.D., examined and evaluated claimant on 
 
         January 15, 1987.  He said that claimant continued to have pain 
 
         and discomfort in his right shoulder which claimant said was 
 
         worse after the surgery than prior to the surgery.  Dr. Flapan 
 
         related that claimant feels discomfort after only one hour of 
 

 
         
 
         
 
         
 
         MORRIS V. CITY OF DES MOINES, IOWA
 
         Page   7
 
         
 
         use.  Actively claimant could not abduct more than 60 degrees.  
 
         Passively Dr. Flapan could abduct his shoulder to 110 degrees.  
 
         Claimant demonstrated less grip strength on the right than on the 
 
         left.  Dr. Flapan diagnosed:
 
         
 
              DIAGNOSIS:
 
         
 
              1)  Chronic shoulder pain and discomfort secondary to a 
 
              work-related accident in February of 1985.
 
         
 
              2)  Post-op febrosis of the right shoulder secondary to 
 
              above.
 
         
 
              3)  Status post op:  Impingement release right shoulder 
 
              over a year ago.
 
         
 
         (Ex. 3, page 2)
 
              Dr. Flapan found that claimant sustained a 20 percent 
 
         permanent functional impairment of the right upper extremity as a 
 
         result of the work-related injury (Ex. 3, p. 2).  He recommended 
 
         the following restrictions:
 
         
 
              RESTRICTIONS
 
         
 
                 It is my opinion at this time that Mr. Daniel Morris 
 
              is able to work at some type of sedentary activity 
 
              which does not require the extensive use of his right 
 
              upper extremity.  I doubt if he would be employable in 
 
              any occupation which required the use of his hands 
 
              above the level of his shoulders.  Pulling and pushing 
 
              with the right upper extremity should be restricted.  
 
              Weight lifting would be okay, probably, lifting nothing 
 
              higher than the level of his waist.
 
         
 
         (Ex. 3, p. 2)
 
         
 
              Dr. Flapan had nothing further to offer in the way of 
 
         treatment.  He stated that claimant's healing period had ended. 
 
         he felt that with time and without abusing his shoulder that 
 
         claimant's discomfort will tend to disappear (Ex. 3, p. 3).
 
         
 
              Claimant chose to see Craig A. Wignall, D.C., in September 
 
         of 1986.  Claimant admitted that he was not referred there by 
 
         employer.  He also admitted that he did not notify employer that 
 
         he was going to see Dr. Wignall and he did not ask permission to 
 
         see Dr. Wignall.  Dr. Wignall made a report on April 9, 1987.  He 
 
         stated that the entire right shoulder was irritated, range of 
 
         motion was moderately reduced, there was evidence of fibrosis and 
 
         myofacitis.  Dr. Wignall stated that he did not believe 
 
         claimant's shoulder would ever be normal again.  He added that 
 
         claimant would need treatments two to four times a month to 
 
         prevent further deterioration (Ex. 2).  Claimant testified that 
 
         he saw Dr. Wignall because his wife went there first.  Dr. 
 
         Wignall told claimant's wife that he could help claimant.  
 
         Claimant testified that Dr. Wignall manually moved his arm, then 
 
         used a shocker and then put some deep heating stuff in his arm.  
 
         The pain would go away for about two hours and then it would come 
 
         back again.
 
         
 
              A very detailed Functional Capacity Evaluation was performed 
 

 
         
 
         
 
         
 
         MORRIS V. CITY OF DES MOINES, IOWA
 
         Page   8
 
         
 
         at Mercy Pain Center on July 30, 1987.  It showed that claimant 
 
         had pain in his right shoulder which limited his ability to use 
 
         his right upper extremity (Ex. 1).
 
         
 
              On July 31, 1987 James L. Blessman, M.D., reported to 
 
         defendants vocational rehabilitation specialist, Elizabeth A. 
 
         Barstad, that claimant could lift 50 pounds infrequently and 25 
 
         pounds or less frequently.  Claimant was totally restricted from 
 
         climbing a ladder and should not work in extreme cold 
 
         temperatures on a regular basis.  Dr. Blessman added that 
 
         claimant should do no lifting above waist level and no reaching 
 
         above shoulder level (Ex. 1, pp. 6 & 7).
 
         
 
              On September 23, 1986, claimant was evaluated by Robert W. 
 
         Jones, B.S. and G. Patrick Weigel, M.A., two vocational 
 
         rehabilitation specialists.  They also reported that claimant 
 
         told them that the surgery increased his perceived pain and his 
 
         ability to abduct, but the surgery had enabled him to flex his 
 
         arm to shoulder level.  Claimant also reported that any physical 
 
         activity of any kind with his right arm aggravated his right 
 
         shoulder.  Claimant also reported to them that he had leg cramps 
 
         and dermatitis which began two or three days after the bone scan 
 
         and these symptoms have continued every since.
 
         
 
              Claimant completed the pencil and paper portion of several 
 
         tests:  the General Aptitude Battery Test (GATB), the Career 
 
         Assignment Inventory (CAI), Volpar Component Work Samples number 
 
         four for upper extremity range of motion and number eleven for 
 
         hand, eye and foot coordination.  Claimant manifested 
 
         difficulties in writing with his right arm and reaching.  His 
 

 
         
 
         
 
         
 
         MORRIS V. CITY OF DES MOINES, IOWA
 
         Page   9
 
         
 
         test results were average and showed that he could do the vast 
 
         majority of occupations found in the Dictionary of Occupational 
 
         Titles (DOT) (Ex. 3, pp. 4-8).
 
         
 
              These men reported that claimant's employment interests were 
 
         blue collar types of jobs working with things rather than people.  
 
         They said claimant was a good repairman and enjoyed that work.  
 
         He displayed steady work habits and good concentration.  Claimant 
 
         avoided using his right arm.  Weigel and Jones recommended that 
 
         claimant return to work with the city of Des Moines in a light 
 
         duty capacity within his restrictions with the possibility of 
 
         eventually being able to work without restrictions.  Claimant 
 
         testified that the city never called him in and offered him any 
 
         employment after they received this evaluation.
 
         
 
              Claimant testified that his current condition is that when 
 
         he moves his shoulder it feels like the bones are rubbing 
 
         together.  He cannot handle the vibration of a chain saw.  He can 
 
         no longer fish because he cannot crank the reel with his dominant 
 
         right arm.
 
         
 
              Claimant testified that his current employment is that he 
 
         and his wife clean two buildings.  He does this work simply to 
 
         pay the bills.  The duties are to take out the trash, dust and 
 
         mop the floor.  Claimant testified that he is able to perform 
 
         these tasks.  Claimant testified variously that this job requires 
 
         one to two hours per day and at another point two to four hours 
 
         per day.  He added, however, that he himself could only work 
 
         approximately one hour and then he would have to take a break and 
 
         rest because of the pain in his right arm.  Claimant first 
 
         testified that could not remember, but later testified, that he 
 
         aid in fact start this job in January of 1986, even before he 
 
         returned to work with the city after his surgery on October 29, 
 
         1985.  He did not return to work for the city until February of 
 
         1986.  Claimant further admitted that he was doing the tasks 
 
         required by this job at the same time that he told the city he 
 
         was unable to perform the light duty or modified work provided by 
 
         them.  Claimant explained however, that he did not know of any 
 
         city job where you can work only one hour and then take a break.  
 
         Claimant related that if he tried to work three or four hours it 
 
         would hurt so bad that he would not be able to sleep.
 
         
 
              Claimant testified that he and his wife divide $1,065.00 per 
 
         month for doing this job.   His share then, is $532.50 per month.  
 
         He testified that he formerly earned $768.00 biweekly from the 
 
         city.  Claimant testified that Dr. Neff's statements in his 
 
         letter of May 14, 1986 about this employment are false.  Dr. Neff 
 
         had said:
 
         
 
              Mr. Bower tells me that this patient is leaving the 
 
              employment of the city to supervise a janitorial crew 
 
              that is run by his brother, and he is content to do 
 
              that, and will make more money than he is currently 
 
              making at his city job.
 
         
 
              Obviously, that is a positive situation for him, and 
 
              there is certainly no reason to restrict him from that 
 
              activity of his choice.
 
         
 
                                      *  *  *
 

 
         
 
         
 
         
 
         MORRIS V. CITY OF DES MOINES, IOWA
 
         Page  10
 
         
 
         
 
              In light of his expressed wishes to Mr. Tom Bower, we 
 
              will certainly release him him from our care, to assume 
 
              his new occupation as supervisor of a janitorial 
 
              cleaning service.
 
         
 
         (Ex. 9)
 
         
 
              Claimant conceded that he has not sought any other kind of 
 
         employment elsewhere because he did not believe he could find 
 
         anything.  He testified that he was never offered any vocational 
 
         rehabilitation by employer.  He was informed at one time that 
 
         someone would contact him, but nobody ever did.  Claimant 
 
         testified that he has no plans to seek any other or different 
 
         employment in the future.  Claimant stated that he can no longer 
 
         do woodworking at home because his right hand cannot hang on to 
 
         the skill saw.  He cannot do any of his old city jobs because he 
 
         is unable to work eight hours a day.
 
         
 
              Claimant admitted that no doctor told him that he could not 
 
         do light work eight hours a day for the city.  This was simply 
 
         his own personal decision.  He also acknowledged that it was his 
 
         own personal decision to take a leave of absence.  He granted 
 
         that no doctor had recommended to him that he take a leave of 
 
         absence from his job.  He admitted that no one told him not to 
 
         lift.  He doesn't do it however, because when he gets objects to 
 
         waist level he begins losing his strength.
 
         
 
              Claimant's basic position was that the city offered him no 
 
         employment that he could perform within his limitations.  
 
         Claimant testified that he never did say that he did not want to 
 
         work at all.  He only complained about what effected his shoulder 
 
         and arm.
 
         
 
              Michael E. Peterson, safety administrator for the city, 
 
         testified that he was aware of the injury on February 7, 1985.  
 
         His first contact with claimant was in February of 1986 when 
 
         claimant returnee to work.  Claimant called him and asked him 
 
         about a disability settlement.  Peterson testified that claimant 
 
         not only received workers' compensation benefits while he was off 
 
         work but also "J time" which is a supplement from the city that 
 
         is equivalent to approximately 115 percent to 120 percent of 
 
         claimant's net salary.  Peterson related that claimant was 
 
         offered light duty in March and April of 1985 but would not 
 
         cooperate with the job modifications provided by the city.  There 
 
         was no medical evidence or explanation for why claimant could not 
 
         do these jobs.  Claimant was not held to any strict standard.  
 
         The only objective in providing these jobs was to supply some 
 
         work hardening to allow claimant to build up to regular 
 
         employment again.  Peterson testified that claimant made some 
 
         effort but there was no explanation for why he could not do what 
 
         the doctors expected him to do.  Many of the tasks assigned to 
 
         claimant could have been performed left handed.
 
         
 
              Claimant would simply go home saying that he could not take 
 
         the pain.  Peterson said that Dr. Neff told him that claimant was 
 
         not interested in working for the city in any capacity.  At 
 
         claimant's request he was given 60 days medical leave of absence 
 
         and an additional 30 days of pay in approximately July of 1986.  
 
         Claimant is currently on extended leave of absence without 
 

 
         
 
         
 
         
 
         MORRIS V. CITY OF DES MOINES, IOWA
 
         Page  11
 
         
 
         benefits.  Peterson testified that claimant told him that he 
 
         refused to go to the Mercy Pain Center because he could not 
 
         handle it with his financial obligations.  Peterson said that he 
 
         offered to start claimant's permanent partial disability benefits 
 
         but claimant still declined to go to the pain center.  Peterson 
 
         thought it was inconsistent that claimant could not work due to 
 
         pain but at the same time refused to go to the pain center for 
 
         treatment for his pain.  Peterson said that claimant told him 
 
         that he did not want to try any other jobs with the city.  
 
         Claimant thought his own job was the easiest job.  Peterson 
 
         stated that claimant used up all of his medical leave and comp 
 
         time and was then put on extended leave of absence.  Peterson 
 
         concluded that claimant simply did not want to work for the 
 
         city.
 
         
 
              After Dr. Neff rated claimant and discharged claimant from 
 
         treatment, claimant did not ask for any further medical treatment 
 
         from the city.  Claimant never contacted the city again to ask 
 
         for any employment.  After claimant's evaluation by Weigel and 
 
         Jones, claimant did not call Peterson and ask for a job.  
 
         Peterson said he felt the burden was on the claimant to contact 
 
         him if he wanted a job with the city.  Peterson said that he felt 
 
         no duty to contact claimant after he received the report of 
 
         Weigel and Jones.  He related that the city job structure is such 
 
         is that it is not possible to simply tailor up a job for claimant 
 
         to do within his restrictions.  All of the jobs are either civil 
 
         service or union.jobs. You must either apply or bid in order to 
 
         receive one of these jobs.  As to claimant's future status with 
 
         the city, Peterson said he is waiting to see what claimant's real 
 
         interest is after the workers' compensation matter is resolved.  
 
         Placing the claimant on a extended leave of absence status makes 
 
         it easier for claimant to be reemployed.  Claimant said that he 
 
         had not heard of Dr. Wignall until the date of the hearing.
 
         
 
              Elizabeth A. Barstad, a rehabilitation specialist, testified 
 
         that she evaluates disabled persons and assists them in returning 
 
         to their former job or in finding other employment.  She was 
 
         hired by the city to do a vocational assessment.  She did not 
 
         interview claimant personally in this case.  She met him for the 
 
         first time at the hearing.  She did review his job history, his 
 
         medical reports, claimant's deposition of March 10, 1987 and the 
 
         work capacity evaluation of January 15, 1987.  Barstad contended 
 
         that it is neither helpful nor harmful to meet the claimant in 
 
         person in order to perform an evaluation.  She said that 
 
         claimant's GATBY scores showed an educational level of two years 
 
         beyond high school.  Her primary consideration was the 
 
         restrictions recommended by Dr. Blessman.  On July 31, 1987, Dr. 
 
         Blessman said that claimant could lift 50 pounds infrequently, 25 
 
         pounds or less frequently, he was prohibited from climbing 
 
         ladders, he should not work in extremely cold temperatures, he 
 
         should not lift above his waist and he should not reach above 
 
         shoulder level.
 
         
 
              Barstad testified that her computer printout demonstrated 
 
         over 100 jobs from the Dictionary of Occupational Titles (DOT) 
 
         that claimant had the ability to perform.  She listed the 
 
         following job categories within claimant's ability (1) janitor 
 
         maintenance; (2) mail sorting; (3) security guard; (4) 
 
         electronics jobs; (5) dispatcher; (6) clerical jobs and (7) 
 
         supervisory jobs. Barstad testified that claimant was employable.  
 

 
         
 
         
 
         
 
         MORRIS V. CITY OF DES MOINES, IOWA
 
         Page  12
 
         
 
         She stated that she based her opinion upon Dr. Blessman's 
 
         recommended restrictions and not upon the claimant's self-imposed 
 
         restrictions.  Barstad admitted that she was not asked to find a 
 
         job for claimant but only to find the availability of jobs that 
 
         he could do.  Barstad further testified that she contacted a 
 
         number of employers and found a number of job openings in these 
 
         same categories that she felt claimant could perform.
 
         
 
                             APPLICABLE AND ANALYSIS
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury of February 7, 1985 is causally 
 
         relates 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. 0. 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 132 
 
         (1955).  The question of causal connection is essentially within 
 
         the domain of expert testimony.  Bradshaw v. Iowa Methodist 
 
         Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960).
 
         
 
              However, expert medical evidence must be considered with all 
 
         other evidence introduced bearing on the causal connection.  
 
         Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion of experts need 
 
         not be couched in definite, positive or unequivocal language.  
 
         Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974).  However, 
 
         the expert opinion may be accepted or rejected, in whole or in 
 
         part, by the trier of fact.  Id. at 907.  Further, the weight to 
 
         be given to such an opinion is for the finder of fact, and that 
 
         may be affected by the completeness of the premise given the 
 
         expert and other surrounding circumstances.  Bodish,.257 Iowa 
 
         516, 133 N.W.2d 867.  See also Musselman v. Central Telephone 
 
         Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
              Claimant did sustain the burden of proof by a preponderance 
 
         of the evidence that the injury was the cause of both temporary 
 
         and permanent disability.  Although claimant has had a number of 
 
         injuries and health problems, he had sustained no problems with 
 
         his right shoulder prior to this injury.  All of the doctors 
 
         proceeded on the history of the injury to the shoulder which 
 
         occurred on February 7, 1985.  No other cause is suggested either 
 
         directly or indirectly in any of the evidence.
 
         
 
              Claimant is entitled to temporary disability benefits for 
 
         the periods of time that he was taken off work by the doctors.  
 
         These periods of time are as follows:
 
         
 
              (1) 02-07-85 to 02-18-85         (Exs. 89 & 91)
 
              (2) 02-27-85 to 03-18-85         (Exs. 87 & 88; Exs. 77-79)
 
              (3) 09-24-85 to 02-07-86         (Exs. 70 & 71; Ex. 34)
 
              (4) 03-28-86 to 04-02-86         (Ex. 25; Exs. 22 & 23)
 
              (5) 04-21-86 to 05-02-86         (Ex. 19; Exs. 13, 15 & 16)
 
         
 
              Even though Dr. Neff assessed an impairment rating on March 
 
         14, 1986, which is the date frequently used for maximum medical 
 
         improvement, claimant is nevertheless, only entitled to payment 
 
         for the periods of time when the doctors took him off work as set 
 
         out above.  For the same reason claimant is not entitled to 
 
         temporary disability benefits until Dr. Flapan happened to 
 
         mention gratuitously that claimant's healing period had ended on 
 

 
         
 
         
 
         
 
         MORRIS V. CITY OF DES MOINES, IOWA
 
         Page  13
 
         
 
         January 15, 1987.
 
         
 
              As to permanent disability, claimant has not sustained the 
 
         burden of proof by a preponderance of the evidence that he is 
 
         permanently and totally disabled.  Diederich v. Tri-City R. Co., 
 
         219 Iowa 287 258 N.W. 899 (1935).  Nor can it be said that 
 
         claimant is permanently and totally disabled under the odd lot 
 
         doctrine as defined by the Iowa Supreme Court in the case of 
 
         Guyton v. Irving Jensen Co., 373 N.W.2d 101 (Iowa 1985).  In 
 
         order to make out a prima facie case, claimant must first 
 
         demonstrate a bona fide effort to return to gainful employment in 
 
         the area of his residence.  Claimant testified that he had not 
 
         sought any employment of any kind anywhere since his injury.  He 
 
         had not made any attempt to return to work for the city based 
 
         upon his own personal determination that the city does not have 
 
         any jobs that he can do.  Claimant has singularly and 
 
         unilaterally determined that there is no other employment in the 
 
         competitive labor market that he can perform and therefore, he 
 
         has made no attempt of any kind to find any employment anywhere.  
 
         Therefore, claimant has failed to make a prime facie case of 
 
         permanent total disability based upon the odd lot doctrine.  
 
         Emshoff v. Petroleum Trans. Services, file no. 753723 (Appeal 
 
         decision March 31, 1987).  Claimant has also demonstrated no 
 
         anatomical, organic or physical abnormality that has been 
 
         identified by any of the medical practitioners which would make 
 
         out a primie facie case of permanent total disability.  None of 
 
         the doctors suggested that claimant is not able to work at all.  
 
         On the contrary, a number of the medical practitioners 
 
         recommended that claimant could work within certain restrictions.  
 
         Claimant's self-determination of disability then is not supported 
 
         or corroborated by any of the medical evidence or any other 
 
         evidence in the record.
 
         
 
              Furthermore, as pointed out by defense counsel in her brief, 
 
         claimant's past employment accomplishments and his current 
 
         abilities based upon the testimony of Weigel, Jones and Barstad 
 
         place claimant well beyond the typical unskilled, unemployable, 
 
         odd lot employee.  Claimant has also failed to make out a prime 
 
         facie case for this reason that he is an odd lot employee.
 
         
 
              Even if claimant had made out a prime facie case as an odd 
 
         lot employee, defendant demonstrated through (1) the testimony of 
 
         Weigel, Jones, and Barstad; (2) the functional capacity 
 
         evaluation and (3) the testimony of Dr. Blessman, that even 
 
         though claimant has restrictions, he is still very employable in 
 
         a number of occupations for which openings are usually available 
 
         and were actually available at the time of the hearing.
 
         
 
              If claimant has an impairment to the body as a whole, an 
 
         industrial disability has been sustained.  Industrial disability 
 
         was defined in Diederich, 219 Iowa 587, 593, 258 N.W. 899, 902 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 disabilityO to be 
 
         computed in the terms of percentages of the total physical and 
 
         mental ability of a normal man.O
 
         
 
              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 
 

 
         
 
         
 
         
 
         MORRIS V. CITY OF DES MOINES, IOWA
 
         Page  14
 
         
 
         injured employee's age, education, qualifications, experience and 
 
         inability to engage in employment for which he is fitted.  Olson 
 
         v. Goodyear Service Stores, 255 Iowa 1112, 1121, 125 N.W.2d 251, 
 
         257 (1963).
 
         
 
              The operative phrase then in industrial disability is loss 
 
         of earning capacity.  Ver Steegh v. Rolscreen, IV Iowa Industrial 
 
         Commissioner Report 377 (1984).
 
         
 
              Claimant was 41 years old at the time of the injury and 44 
 
         years old at the time of the hearing.  He is therefore, in the 
 
         middle part of his working life.  His loss of future earnings 
 
         from employment due to his disability is more serious than would 
 
         be the case for a younger or an older individual.  See Beck v. 
 
         Turner-Busch, Inc., Thirty-fourth Biennial Report of the Iowa 
 
         Industrial Commissioner 34 (1979); Walton v. B & H Tank Corp., II 
 
         Iowa Industrial Commissioner Report 426 (1981).
 
         
 
              At the same time, claimant is young enough to be retrained. 
 
          The feasibility of retraining is one of the considerations 
 
         involved in determining industrial disability.  Conrad v. 
 
         Marquette School, Inc., IV Iowa Industrial Commissioner Report 
 
         74, 78 (1984).
 
         
 
              Claimant testified that he was told that he would be 
 
         contacted by a vocational rehabilitation person but that he was 
 
         never contacted.  Therefore, defendant made no attempt to 
 
         vocationally rehabilitate claimant.  Schelle v. HyGrade Food 
 
         Products, Thirty-third Biennial Report of the Industrial 
 
         Commissioner 121 (1977).
 

 
         
 
         
 
         
 
         MORRIS V. CITY OF DES MOINES, IOWA
 
         Page  15
 
         
 
         
 
              At the same time, claimant did not seek private vocational 
 
         rehabilitation or the services of the State of Iowa Vocational 
 
         Rehabilitation Services on his own initiative.  Defendant has 
 
         demonstrated that they made an effort to modify approximately 
 
         four jobs in order to meet claimant's restrictions.  Claimant's 
 
         contention that he could not perform these jobs was not supported 
 
         or corroborated by the doctors or any other evidence.  On the 
 
         contrary, claimant did acknowledge that he was doing the 
 
         janitorial service job as a self-employed person with his wife 
 
         even prior to the time that he was released to return to work for 
 
         the city after his surgery.  Claimant's explanation of a dull 
 
         ache and constant pain in his right shoulder and arm, even though 
 
         they are true, are not a substitute for medical findings of 
 
         impairment. Waller v. Chamberlain Mfg., II Iowa Industrial 
 
         Commissioner Report 419, 425 (1981).
 
         
 
              An employee making a claim for industrial disability will 
 
         benefit by a showing of some attempt to find work.  Hild v. 
 
         Natkin & Co., I Iowa Industrial Commissioner Report 144 (Appeal 
 
         Decision 1981); Bientema v. Sioux City Engineering Co., II Iowa 
 
         Industrial Commissioner Report 24 (1981); Cory v. Northeastern 
 
         States Portland Cement Co., Thirty-third Bienniel Report of the 
 
         Industrial Commissioner 104 (1976).
 
         
 
              Since claimant has made no showing of any effort to find any 
 
         kind of employment, then there is no evidence from which it can 
 
         be determined what claimant can and cannot do within the 
 
         boundaries of his disability and limitations of persistent pain. 
 
          Schofield v. Iowa Beef Processors, Inc., II Iowa Industrial 
 
         Commissioner Report 334, 336 (1981).  Claimant's unsupported 
 
         statement that he can only work approximately one hour with his 
 
         right arm before he has to quit is not sufficient to sustain an 
 
         award of permanent total disability or an extremely large award 
 
         of permanent partial disability.
 
         
 
              Nevertheless, claimant has established a substantial amount 
 
         of industrial disability.  Most of claimant's former employments 
 
         during the last 15 years with the city and even prior to that are 
 
         now foreclosed to claimant because of his lifting restrictions, 
 
         no climbing of ladders restrictions, no work in extreme cold 
 
         temperature restriction, no lifting above waist level restriction 
 
         and no reaching above shoulder level restriction.  These 
 
         restrictions will cause a sizable reduction in claimant's earning 
 
         capacity.  Michael v. Harrison County, Thirty-fourth Bienniel 
 
         Report of the Industrial Commissioner 218, 220 (Appeal Decision 
 
         1979).
 
         
 
              At the same time, claimant's post injury earnings are not 
 
         synonymous with his loss of earning capacity.  Post injury 
 
         earnings create an inference of earning capacity commensurate 
 
         with them, but are rebuttable by evidence showing them to be an 
 
         unreliable basis for estimating earning capacity.  2 Larson 
 
         WorkmenOs Compensation Law, section 57.21(d).  Post injury 
 
         earnings are not synonymous with earning capacity.  2 Larson, 
 
         sections 57.21, 57.31.  This is particularly true in view of 
 
         claimant's lack of motivation to perform the modified jobs 
 
         provided by the city based on the testimony of Peterson, the 
 
         doctors and the Employee Health Clinic.  Post injury earnings are 
 
         also no indicator in a situation where claimant has made no 
 

 
         
 
         
 
         
 
         MORRIS V. CITY OF DES MOINES, IOWA
 
         Page  16
 
         
 
         effort or any attempt to look for work within his abilities in 
 
         the competitive labor market based upon the testimony of Weigel, 
 
         Jones and Barstad.
 
         
 
              Dr. Neff found claimant's permanent functional impairment to 
 
         be 12 percent of the right upper extremity.  This converts to 
 
         seven percent of the body as a whole using the Guides to the 
 
         Evaluation of Permanent Impairment, second edition of the 
 
         American Medical Association, table 20, on page 23.
 
         
 
              Dr. From stated that claimant's permanent functional 
 
         impairment was ten to 12 percent of the body as a whole.
 
         
 
              Dr. Flapan determined that claimant's permanent functional 
 
         impairment rating was 20 percent of the right upper extremity and 
 
         using the AMA Guides again this converts to 12 percent of the 
 
         body as a whole.
 
         
 
              Dr. Blessman did not give a permanent functional impairment 
 
         rating.
 
         
 
              Claimant has sustained a significant permanent functional 
 
         impairment of the body as a whole.  Also, claimant's restrictions 
 
         imposed by Dr. Blessman are significant.  At the same time, 
 
         claimant did not satisfactorily  explain why he could not do the 
 
         modified jobs provided by the city when the doctors felt that he 
 
         should be able to do them.  Claimant did not satisfactorily 
 
         explain why he has not sought employment within his restrictions 
 
         within the competitive labor market.  Claimant did not 
 
         satisfactorily explain why he did not accept the treatment at the 
 
         Pain Center which defendant was willing to pay for when claimant 
 
         said that he was unable to work due to his pain.  Claimant 
 
         testified that he needed to work to obtain money.  However, 
 
         Peterson testified that claimant was offered the payment of 
 
         permanent partial disability benefits while he took treatment at 
 
         the Pain Center.  It was also established that the Pain Center 
 
         hours did not conflict with claimant's job which was primarily in 
 
         the late afternoon and evening hours.  Employers are responsible 
 
         for the reduction in earning capacity caused by the injury.  They 
 
         are not responsible for a reduction in actual earnings because 
 
         the employee resists returning to work.  Williams v. Firestone 
 
         Tire and Rubber Co., III Iowa Industrial Commissioner Report 279 
 
         (1982).
 
         
 
              Based on the foregoing considerations and all of the factors 
 
         that are considered in determining industrial disability, it is 
 
         determined that claimant has sustained a 30 percent industrial 
 
         disability to the body as a whole.
 
         
 
              Claimant asserted that he has had a rash on his legs and leg 
 
         cramps ever since the bone scan ordered by Dr. Neff.  Fairly 
 
         early in Iowa workers' compensation law the Supreme Court decided 
 
         that where an accident occurs to an employee in the usual course 
 
         of his employment, the employer is liable for all consequences 
 
         that naturally and proximately flow from the accident.  Oldham v. 
 
         Scofield & Welch, 222 Iowa 764, 767-68, 266 N.W. 480, 269 N.W. 
 
         925 (1936); Lindeken v. Lowden, 229 Iowa 645, 295 N.W. 112 
 
         (1940).
 
         
 
              It has long been established that whenever the treatment 
 

 
         
 
         
 
         
 
         MORRIS V. CITY OF DES MOINES, IOWA
 
         Page  17
 
         
 
         employed for an injury aggravated or increased the disability 
 
         initially caused by the injury, the employer and it's insurance 
 
         carrier remain responsible for all of the resulting disability.  
 
         Injury resulting from treatment is considered as having been 
 
         proximately caused by the original injury.  Heumphreus v. State, 
 
         334 N.W.2d 757 (Iowa 1983); Bradshaw v. Iowa Methodist Hospital, 
 
         251 Iowa 375, 101 N.W.2d 167 and Cross v. Hermanson Bros., 235 
 
         Iowa 739, 16 N.W.2d 616 (1944).
 
         
 
              Dr. Neff however, stated that the rash was unrelated to the 
 
         bone scan (Ex. 9).  Claimant also admitted on cross-examination 
 
         that this condition had not caused him any disability.  
 
         Therefore, it is determined that claimant has not sustained the 
 
         burden of proof by a preponderance of the evidence that the leg 
 
         rash and cramps are sequellae of this injury.  Even if he had 
 
         done so, claimant has conceded that this condition caused no 
 
         disability.  Therefore, claimant is not entitled to any 
 
         additional disability benefits based upon the alleged leg rash 
 
         and leg cramps.
 
         
 
              Iowa Code section 85.27 requires the employer to furnish 
 
         reasonable medical treatment.  It also gives employer the right 
 
         to choose the care, except in the case of an emergency or in a 
 
         situation where the industrial commissioner has ordered alternate 
 
         care.  Claimant testified that he personally chose to see Dr. 
 
         Wignall.  He admitted that he did not ask employer for permission 
 
         to see Dr. Wignall.  Employer had already supplied Dr. Neff, Dr. 
 
         Miller and Dr. Schultheis that claimant could see at any time for 
 
         authorized care.  There was no emergency.  There was no 
 
         application for alternate care.  Consequently it is determined 
 
         that claimant is not entitled to reimbursement for the medical 
 
         expense or medical mileage to receive treatment from Dr. 
 
         Wignall.
 
         
 
              Iowa Code section 85.39 provides:
 
         
 
                 If an evaluation of permanent disability has been 
 
              made by a physician retained by the employer and the 
 
              employee believes this evaluation to be too low, the 
 
              employee shall, upon application to the commissioner 
 
              and upon delivery of a copy of the application to the 
 
              employer and its insurance carrier, be reimbursed by 
 
              the employer the reasonable fee for a subsequent 
 
              examination by a physician of the employee's own 
 
              choice, and reasonably necessary transportation 
 
              expenses incurred for the examination.
 
         
 
               Defense counsel contends that claimant must serve a request 
 
         on defendant in order to be entitled to an independent 
 
         examination and that claimant failed to serve such a request on 
 
         either the defendant employer or the industrial commissioner.  In 
 
         Pirozek v. Swift Independent Packing, (File nos. 753642, 753643 
 
         and 724893) (Appeal Decision February 18, 1987) the industrial 
 
         commissioner, Robert C. Landess, held that service of notice or a 
 
         request in advance of the independent medical examination is not 
 
         required by the statute.  Commissioner Landess held as follows:
 
         
 
                 Claimant sought an independent medical examination 
 
              by a physician of his own choice.  Although application 
 
              was not made prior to the examination, the condition 
 

 
         
 
         
 
         
 
         MORRIS V. CITY OF DES MOINES, IOWA
 
         Page  18
 
         
 
              precedent of an evaluation made by an employer retained 
 
              physician was present.  The application is now made for 
 
              reimbursement of the reasonable fee of the examination.  
 
              The provision for reimbursement does not come into play 
 
              until, as here, the defendants' liability is 
 
              established.  See McSpadden v. Big Ben Coal Co., 288 
 
              N.W.2d 181, 1984 (Iowa 1980).  The allowance of the 
 
              reasonable fee for such examination is correct.
 
         
 
              Dr. From's fee in the amount of $400.00, although high, 
 
         cannot be said to be unreasonable, in light of the extensive 
 
         examination he made and the lengthy report on the status of 
 
         claimant's physical condition.  It is not necessary for claimant 
 
         to serve a request upon defendant or the industrial commissioner 
 
         prior to the examination.  It is not necessary to apply for an 
 
         examination prior to the actual examination itself.  The 
 
         operative factors are a prior evaluation performed by a physician 
 
         retained by the employer which the employee believes to be too 
 
         low and a determination that defendant is liable for the injury. 
 
         in conclusion then, it is determined that claimant is entitled to 
 
         payment for the examination of Dr. From in the amount of $400.00. 
 
         No claim was made for reasonable transportation expense for this 
 
         examination, therefore, no decision is made on this point at this 
 
         time.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              Therefore, based upon the evidence presented the following 
 
         findings of fact are made:
 
         
 
              That the injury of February 7, 1985, caused claimant to be 
 
         off work during the periods described in the foregoing section of 
 
         this decision entitled Applicable Law and Analysis.
 
         
 
              That the injury of February 7, 1985, was the cause of a 
 
         significant permanent functional impairment to the body as a 
 
         whole rated by Dr. Neff at seven percent, Dr. From at ten to 12 
 
         percent and Dr. Flapan at 12 percent.
 
         
 
              That the restrictions of lifting 50 pounds infrequently, 25 
 
         pounds or less frequently, no climbing ladders, no work in 
 
         extremely cold temperatures, no lifting above waist level and no 
 
         reaching above shoulder level are significant work restrictions.
 
         
 
              That claimant is unable to perform most of his former 
 
         employments with this employer and other employers.in the past.
 
         
 
              That claimant is intelligent, versatile and has been able to 
 
         obtain the objectives that he set for himself in the past.
 
         
 
              That there are several other types of employment which 
 
         claimant could perform based upon the testimony on Barstad, 
 
         Weigel, Jones, the functional capacity evaluation and the reports 
 
         of Dr. Blessman and Dr. Flapan.
 
         
 
              That claimant himself, singularly and unilaterally, 
 
         determined: (1) that he cannot perform any of the modified light 
 
         duty jobs provided to him by employer; (2) that employer had 
 
         absolutely no jobs that he could perform and that it was 
 
         necessary for him to quit working entirely for that reason and 
 

 
         
 
         
 
         
 
         MORRIS V. CITY OF DES MOINES, IOWA
 
         Page  19
 
         
 
         (3) that there are no jobs that he could perform in the 
 
         competitive job market and therefore he has made no effort to 
 
         seek any employment of any kind since the injury.
 
         
 
              That claimant is currently working in self-employment with 
 
         his wife in a janitorial service.
 
         
 
              That there was no medical evidence or any other evidence of 
 
         any kind in support of claimant's testimony that he could not 
 
         perform the modified jobs provided by employer or that he is 
 
         unable to find work that he can do in the competitive labor 
 
         market in the area of Des Moines, Iowa.
 
         
 
              That Dr. Wignall was not an authorized physician by the 
 
         employer but on the contrary claimant admitted that this was his 
 
         own choice of physician and that he did not seek permission from 
 
         employer to see Dr. Wignall.
 
         
 
              That claimant obtained an independent medical examination 
 
         from Dr. From and incurred a $400.00 expense for this 
 
         examination.
 
         
 
              That claimant sustained a 30 percent industrial disability 
 
         to the body as a whole.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              WHEREFORE, based upon the evidence presented and the 
 
         foregoing principles of law the following conclusions of law are 
 
         made:
 
         
 
              That the injury was the cause of both temporary and 
 
         permanent disability.
 
         
 
              That claimant is entitled to healing period benefits for the 
 
         periods described in the Applicable Law and Analysis section of 
 
         this decision.
 
         
 
              That claimant is entitled to 150 weeks of permanent partial 
 
         disability benefits based upon a 30 percent industrial disability 
 
         to the body as a whole.
 
         
 
              That claimant is not entitled to be reimbursed for the 
 
         treatment of Dr. Wignall or his transportation expenses to see 
 
         Dr. Wignall.
 
         
 
              That claimant is entitled to be reimbursed for the 
 
         independent medical examination performed by Dr. From in the 
 
         amount of $400.00.
 
         
 
         
 
              That claimant did not sustain the burden of proof by a 
 
         preponderance of the evidence that he is permanently and totally 
 
         disabled as an odd lot employee or otherwise.
 
         
 
         
 
                                      ORDER
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 

 
         
 
         
 
         
 
         MORRIS V. CITY OF DES MOINES, IOWA
 
         Page  20
 
         
 
              That defendants pay healing period,benefits to claimant as 
 
         follows:
 
         
 
         (1) 1.714 weeks from February 7 to February 18, 1985.
 
         (2) 2.857 weeks from February 27 to March 18, 1985.
 
         (3)19.571 weeks from September 24, 1985 to February 7, 1986.
 
         (4) 0.857 weeks from March 28 to April 2, 1986.
 
         (5) 1.714 weeks from April 21 to May 2, 1986.
 
         
 
              A total of 26.713 weeks at the rate of two hundred 
 
         thirty-three and 82/100 dollars ($233.82) per week in the total 
 
         amount of six thousand two hundred forty-six and 91/100 dollars 
 
         ($6,246.03).
 
         
 
              That defendants pay to claimant one hundred fifty (150) 
 
         weeks of permanent partial disability benefits at the rate of two 
 
         hundred thirty-three and 82/100 dollars ($233.82) per week in the 
 
         total amount of thirty-five thousand seventy three dollars 
 
         ($35,073.00) commencing on February 19, 1985 and as interrupted 
 
         by the subsequent periods of healing period benefits in the 
 
         foregoing paragraph.
 
         
 
              That defendant is entitled to a credit for fifty-four point 
 
         two eight six (54.286) weeks of workers' compensation benefits 
 
         paid prior to hearing.
 
         
 
              That all accrued amounts are to be paid in a lump sum.
 
         
 
              That interest will accrue pursuant to Iowa Code section 
 
         85.30.
 

 
         
 
         
 
         
 
         MORRIS V. CITY OF DES MOINES, IOWA
 
         Page  21
 
         
 
         
 
              That defendant pay to claimant or the provider of services 
 
         the amount of four hundred dollars ($400.00) for the independent 
 
         medical examination performed by Dr. From.
 
         
 
              That defendant pay for the costs of this action pursuant to 
 
         Division of Industrial Services Rule 343-4.33.
 
         
 
              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 12th day of May, 1988.
 
         
 
         
 
         
 
         
 
         
 
         
 
                                         WALTER R. McMANUS, JR.
 
                                         DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Robert McKinney
 
         Attorney at Law
 
         P.O. Box 209
 
         Waukee, Iowa 50263
 
         
 
         Ms. Anne Clark
 
         Assistant City Attorney
 
         City hall
 
         Des Moines, Iowa 50307
 
         
 
         
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                 1401; 1402.40; 1802;
 
                                                 1803; 1804; 4100;
 
                                                 2501; 2502
 
                                                 Filed May 12, 1988
 
                                                 WALTER R. McMANUS, JR.
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         DANIEL MORRIS,
 
         
 
              Claimant,
 
                                                    File No.  787574
 
         VS.
 
                                                 A R B I T R A T I 0 N
 
         CITY OF DES MOINES, IOWA,
 
                                                    D E C I S I 0 N
 
         
 
              Employer,
 
              Self-Insured,
 
              Defendant.
 
         
 
         
 
         1401; 1402.40
 
         
 
              Claimant's unilateral and singular determination (1) that he 
 
         could not perform any of the light work provided by employer; (2) 
 
         that employer had no regular duty jobs that he could do eight 
 
         hours a day and; (3) that there were no jobs in the competitive 
 
         employment market that he could do, was not supported by the 
 
         medical evidence.  On the contrary, the doctors and three 
 
         vocational rehabilitation specialists thought there were jobs 
 
         claimant could do with certain limitations and restrictions.
 
         
 
         1802
 
         
 
              Claimant awarded various periods of healing period benefits 
 
         when doctors took claimant off work from time to time.  Claimant 
 
         was not allowed healing period benefits up until the first doctor 
 
         awarded an impairment rating or even later when another doctor 
 
         said claimant's healing period had ended.
 
         
 
         1803; 1804; 4100
 
         
 
              Claimant was held not to be permanently and totally disabled 
 
         under either Diederich or Guyton.  Claimant had sought no 
 
         employment at all; claimed he was unable to do the light duty 
 
         provided by employer; but was able to do similar work in a 
 
         self-employment job with his wife.  Claimant awarded 30 percent 
 
         industrial disability based on seven percent and 12 percent 
 
         impairment ratings to the body as a whole and various common 
 
         industrial disability factors.
 
         
 
         2501
 
         
 
              Claimant was not awarded large bill for chiropractic 
 
                                                
 
                                                         
 
         treatments and mileage.  He admitted that he did not request it 
 
         or get permission for it.  Employer had provided three competent 
 
         physicians.  The treatment was unauthorized.
 
         
 
         2502
 
         
 
              Claimant was awarded $400.00 for an independent medical 
 
         examination even though he did not apply for it prior to 
 
         hearing.
 
 
 
         
 
 
        
 
 
 
 
 
        
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
        
 
        
 
        CLEO COLLINSON,
 
        
 
            Claimant,
 
        
 
        vs.
 
                   File No. 787601
 
        DES MOINES REGISTER,
 
                     A P P E A L
 
            Employer,
 
                   D E C I S I O N
 
        and
 
        
 
        LIBERTY MUTUAL INSURANCE CO.,              F I L E D
 
        
 
            Insurance Carrier,                  MAR 31 1989
 
            Defendants.
 
                                         IOWA INDUSTRIAL COMMISSIONER
 
        
 
        
 
                                 STATEMENT OF THE CASE
 
        
 
             Claimant appeals from an arbitration decision denying 
 
             permanent partial disability benefits as the result of an alleged 
 
             injury on February 5, 1985.
 
        
 
            The record on appeal consists of the transcript of the 
 
        arbitration hearing; joint exhibits A through H, L through N, P, 
 
        R through II, and KK through OO; and defendants' exhibits 1 
 
        through 3. Both parties filed briefs on appeal.
 
        
 
                                      ISSUE
 
        
 
             Claimant states the following issue on appeal: "Did the 
 
             deputy industrial commissioner err in determining that claimant's 
 
             work injuries were only temporary in nature and did not justify 
 
             an award of industrial disability benefits?"
 
        
 
                                 REVIEW OF THE EVIDENCE
 
        
 
             The arbitration decision adequately and accurately reflects 
 
             the pertinent evidence and it will not be set forth herein.
 
        
 
                                 APPLICABLE LAW
 
        
 
             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).
 
        
 
             When an aggravation occurs in the performance of an 
 
             employer's work and a causal connection is established, claimant 
 
             may recover to the extent of the impairment. Ziegler v. United 
 
             States Gypsum Co., 252 Iowa 613, 620, 106 N.W.2d 591, 595 (1960).
 
        
 

 
        
 
 
 
 
 
            The Iowa Supreme Court cites, apparently with approval, the 
 
        C.J.S. statement that the aggravation should be material if it is 
 
        to be compensable. Yeager v. Firestone Tire & Rubber Co., 253 
 
        Iowa 369, 112 N.W.2d 299 (1961); 100 C.J.S. Workmen's 
 
        Compensation section 555(17)a.
 
        
 
                                      ANALYSIS
 
        
 
             On appeal, claimant urges that the evidence shows he did 
 
             sustain permanent disability as a result of his February 5, 1985 
 
             work injury. The medical evidence sharply conflicts. Both 
 
             William R. Boulden, M.D., and Walter B. Eidbo, M.D., agree that 
 
             claimant had a preexisting degenerative back condition. Both Dr. 
 
             Boulden and Dr. Eidbo agree that claimant's work aggravated that 
 
             condition. The conflict in the medical testimony hinges on 
 
             whether that aggravation produced temporary or permanent 
 
             disability.
 
        
 
            Dr. Eidbo stated that claimant had no prior disability 
 
        concerning his back stemming from the 1963 lumbar laminectomy, 
 
        and bases this opinion in part on claimant's related history of 
 
        not having any problems with his back from 1963 until the work 
 
        injury of February 5, 1985. However, it was brought out on 
 
        cross-examination that claimant did have further problems with 
 
        his back after the 1963 surgery, including being off work for one 
 
        month in 1967 due to back pain, and being off work again for one 
 
        month in 1976 due to back pain. In addition, Dr. Boulden 
 
        testified that under the AMA Guidelines, a lumbar laminectomy is 
 
        an intrusive surgery which would result in a minimum of five 
 
        percent impairment regardless of the completeness of the 
 
        patient's recovery.
 
        
 
            Dr. Boulden is an orthopedic surgeon, whereas Dr. Eidbo is 
 
        not. Dr. Boulden treated claimant, whereas Dr. Eidbo did not. 
 
        Dr. Boulden saw claimant and received claimant's version of the 
 
        events at a point in time closer to the February 5, 1985 injury 
 
        than did Dr. Eidbo. Dr. Eidbo saw claimant after the incidents 
 
        of pain claimant experienced in the shower at home, and after 
 
        claimant carried heavy concrete blocks. Either of these 
 
        incidents could have contributed to claimant's back condition to 
 
        an equal or greater extent as the February 5, 1985 incident.
 
        
 
             Dr. Boulden testified that claimant did not suffer any 
 
             permanent effects of the February 5, 1985 work injury. Dr. 
 
             Boulden attributed the incident of pain on February 5, 1985, to 
 
             claimant's preexisting degenerative arthritis. Dr. Boulden also 
 
             stated that claimant's degenerative arthritis would be expected 
 
             to produce incidents of pain such as claimant experienced on 
 
             February 5, 1985.
 
        
 
            The testimony of Dr. Boulden will be given the greater 
 
        weight. The greater weight of the medical evidence indicates 
 
        that claimant's February 5, 1985 injury did not result in any 
 
        permanent impairment or disability.
 
        
 
                                 FINDINGS OF FACT
 
        
 
             1. Claimant was employed by defendant Des Moines Register 
 
             on February 5, 1985.
 
        
 
            2. Claimant had a degenerative arthritic condition of his 
 
        back prior to his employment with defendant.
 
        
 
            3. Claimant underwent a lumbar laminectomy in 1963.
 
        
 
            4. Claimant was off work for one month due to back pain in 
 

 
        
 
 
 
 
 
        1967.
 
        
 
            5. Claimant was off work for one month due to back pain in 
 
        1976.
 
        
 
            6. Claimant experienced back pain on February 5, 1985.
 
        
 
            7. Claimant's incident of back pain on February 5, 1985, 
 
        resulted in temporary disability only.
 
        
 
            8. Claimant has been compensated for his temporary total 
 
        disability as a result of his February 5, 1985 injury.
 
        
 
                                 CONCLUSIONS OF LAW
 
        
 
             Claimant's work injury of February 5, 1985, resulted in 
 
             temporary total disability.
 
        
 
            Claimant's work injury of February 5, 1985 did not result in 
 
        permanent disability.
 
        
 
            WHEREFORE, the decision of the deputy is affirmed.
 
        
 
                                      ORDER
 
        
 
             THEREFORE, it is ordered:
 
        
 
            That claimant shall take nothing further from these 
 
        proceedings.
 
        
 
             That claimant is to pay the costs of this action.
 
             
 
             
 
             Signed and filed this 31st day of March, 1989.
 
             
 
             
 
             
 
             
 
             
 
                                             DAVID E. LINQUIST
 
                                           INDUSTRIAL COMMISSIONER
 
        
 
        Copies To:
 
        
 
        Mr. Thomas M. Werner
 
        Attorney at Law
 
        1150 Polk Blvd.
 
        Des Moines, Iowa 50311
 
        
 
        Mr. W. C. Hoffmann
 
        Mr. Joseph S. Cortese, II
 
        Attorneys at Law
 
        500 Liberty Bldg.
 
        Des Moines, Iowa 50309
 
        
 
        
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         CLEO COLLINSON,
 
         
 
              Claimant,
 
         
 
         vs.
 
                                                   File No. 787601
 
         DES MOINES REGISTER,
 
                                                     A P P E A L
 
              Employer,
 
                                                   D E C I S I O N
 
         and
 
         
 
         LIBERTY MUTUAL INSURANCE CO.,               F I L E D
 
         
 
              Insurance Carrier,                    MAR 31 1989
 
              Defendants.
 
                                           IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              Claimant appeals from an arbitration decision denying 
 
         permanent partial disability benefits as the result of an alleged 
 
         injury on February 5, 1985.
 
         
 
              The record on appeal consists of the transcript of the 
 
         arbitration hearing; joint exhibits A through H, L through N, P, 
 
         R through II, and KK through OO; and defendants' exhibits 1 
 
         through 3.  Both parties filed briefs on appeal.
 
         
 
                                      ISSUE
 
         
 
              Claimant states the following issue on appeal:  "Did the 
 
         deputy industrial commissioner err in determining that claimant's 
 
         work injuries were only temporary in nature and did not justify 
 
         an award of industrial disability benefits?"
 
         
 
                              REVIEW OF THE EVIDENCE
 
         
 
              The arbitration decision adequately and accurately reflects 
 
         the pertinent evidence and it will not be set forth herein.
 
         
 
                                  APPLICABLE LAW
 
         
 
              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).
 
         
 

 
         
 
         
 
         
 
         COLLINSON V. DES MOINES REGISTER
 
         Page   2
 
         
 
         
 
              When an aggravation occurs in the performance of an 
 
         employer's work and a causal connection is established, 
 
         claimant may recover to the extent of the impairment.  Ziegler 
 
         v. United States Gypsum Co., 252 Iowa 613, 620, 106 N.W.2d 591, 
 
         595 (1960).
 
         
 
              The Iowa Supreme Court cites, apparently with approval, 
 
         the C.J.S. statement that the aggravation should be material if 
 
         it is to be compensable.  Yeager v. Firestone Tire & Rubber 
 
         Co., 253 Iowa 369, 112 N.W.2d 299 (1961); 100 C.J.S. Workmen's 
 
         Compensation section 555(17)a.
 
         
 
                                  ANALYSIS
 
         
 
              On appeal, claimant urges that the evidence shows he did 
 
         sustain permanent disability as a result of his February 5, 1985 
 
         work injury.  The medical evidence sharply conflicts.  Both 
 
         William R. Boulden, M.D., and Walter B. Eidbo, M.D., agree that 
 
         claimant had a preexisting degenerative back condition.  Both Dr. 
 
         Boulden and Dr. Eidbo agree that claimant's work aggravated that 
 
         condition.  The conflict in the medical testimony hinges on 
 
         whether that aggravation produced temporary or permanent 
 
         disability.
 
         
 
              Dr. Eidbo stated that claimant had no prior disability 
 
         concerning his back stemming from the 1963 lumbar laminectomy, 
 
         and bases this opinion in part on claimant's related history of 
 
         not having any problems with his back from 1963 until the work 
 
         injury of February 5, 1985.  However, it was brought out on 
 
         cross-examination that claimant did have further problems with 
 
         his back after the 1963 surgery, including being off work for one 
 
         month in 1967 due to back pain, and being off work again for one 
 
         month in 1976 due to back pain.  In addition, Dr. Boulden 
 
         testified that under the AMA Guidelines, a lumbar laminectomy is 
 
         an intrusive surgery which would result in a minimum of five 
 
         percent impairment regardless of the completeness of the 
 
         patient's recovery.
 
         
 
              Dr. Boulden is an orthopedic surgeon, whereas Dr. Eidbo is 
 
         not.  Dr. Boulden treated claimant, whereas Dr. Eidbo did not. 
 
         Dr. Boulden saw claimant and received claimant's version of the 
 
         events at a point in time closer to the February 5, 1985 injury 
 
         than did Dr. Eidbo.  Dr. Eidbo saw claimant after the incidents 
 
         of pain claimant experienced in the shower at home, and after 
 
         claimant carried heavy concrete blocks.  Either of these 
 
         incidents could have contributed to claimant's back condition to 
 
         an equal or greater extent as the February 5, 1985 incident.
 
              Dr. Boulden testified that claimant did not suffer any 
 
         permanent effects of the February 5, 1985 work injury.  Dr. 
 
         Boulden attributed the incident of pain on February 5, 1985, to 
 
         claimant's preexisting degenerative arthritis.  Dr. Boulden also 
 
         stated that claimant's degenerative arthritis would be expected 
 
         to produce incidents of pain such as claimant experienced on 
 
         February 5, 1985.
 

 
         
 
         
 
         
 
         COLLINSON V. DES MOINES REGISTER
 
         Page   3
 
         
 
         
 
         
 
              The testimony of Dr. Boulden will be given the greater 
 
         weight.  The greater weight of the medical evidence indicates 
 
         that claimant's February 5, 1985 injury did not result in any 
 
         permanent impairment or disability.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              1.  Claimant was employed by defendant Des Moines Register 
 
         on February 5, 1985.
 
         
 
              2.  Claimant had a degenerative arthritic condition of his 
 
         back prior to his employment with defendant.
 
         
 
              3.  Claimant underwent a lumbar laminectomy in 1963.
 
         
 
              4.  Claimant was off work for one month due to back pain in 
 
         1967.
 
         
 
              5.  Claimant was off work for one month due to back pain in 
 
         1976.
 
         
 
              6.  Claimant experienced back pain on February 5, 1985.
 
         
 
              7.  Claimant's incident of back pain on February 5, 1985, 
 
         resulted in temporary disability only.
 
         
 
              8.  Claimant has been compensated for his temporary total 
 
         disability as a result of his February 5, 1985 injury.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              Claimant's work injury of February 5, 1985, resulted in 
 
         temporary total disability.
 
         
 
              Claimant's work injury of February 5, 1985 did not result in 
 
         permanent disability.
 
         
 
              WHEREFORE, the decision of the deputy is affirmed.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, it is ordered:
 
         
 
              That claimant shall take nothing further from these 
 
         proceedings.
 
         
 
              That claimant is to pay the costs of this action.
 
         
 
         
 
              Signed and filed this 31st day of March, 1989.
 
         
 
         
 
         
 
         
 
         
 
                                               DAVID E. LINQUIST
 
                                             INDUSTRIAL COMMISSIONER
 
         
 

 
         
 
         
 
         
 
         COLLINSON V. DES MOINES REGISTER
 
         Page   4
 
         
 
         
 
         Copies To:
 
         
 
         Mr. Thomas M. Werner
 
         Attorney at Law
 
         1150 Polk Blvd.
 
         Des Moines, Iowa  50311
 
         
 
         Mr. W. C. Hoffmann
 
         Mr. Joseph S. Cortese, II
 
         Attorneys at Law
 
         500 Liberty Bldg.
 
         Des Moines, Iowa  50309
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                            1801
 
                                            Filed January 26, 1988
 
                                            LARRY P. WALSHIRE
 
         
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         CLEO COLLINSON,
 
         
 
              Claimant,
 
         
 
         vs.
 
                                                      FILE NO. 787601
 
         DES MOINES REGISTER,
 
                                                   A R B I T R A T I 0 N
 
              Employer,
 
                                                      D E C I S I 0 N
 
         and
 
         
 
         LIBERTY MUTUAL INSURANCE CO.,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         1801
 
         
 
              Claimant was denied additional disability benefits and 
 
         medical benefits as a result of a failure to establish causal 
 
         connection of his continued back problems to an injury which 
 
         appeared to only temporarily aggravate a longstanding preexisting 
 
         arthritis.
 
 
 
         
 
         
 
 
        
 
 
 
 
 
        
 
        
 
                                          2602
 
                                          Filed March 31, 1989
 
                                          DAVID E. LINQUIST
 
        
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
        
 
        
 
        CLEO COLLINSON,
 
        
 
             Claimant,
 
             
 
        vs.
 
                                                File No. 787601
 
        DES MOINES REGISTER,
 
                                                   A P P E A L
 
             Employer,
 
                                                 D E C I S I O N
 
        and
 
        
 
        LIBERTY MUTUAL INSURANCE CO.,
 
        
 
             Insurance Carrier,
 
             Defendants.
 
             
 
             
 
        2602
 
        
 
             Claimant had a preexisting laminectomy. One physician 
 
             stated since claimant had no problems between the laminectomy and 
 
             the new injury, the laminectomy did not result in any permanency. 
 
             However, it was brought out on cross-examination that claimant 
 
             did miss work twice due to back problems subsequent to the 
 
             laminectomy. Second doctor testified that a laminectomy is an 
 
             intrusive surgery and will always result in at least five percent 
 
             impairment under AMA guides. Second doctor was an orthopedic 
 
             surgeon, first doctor was not. Second doctor treated claimant, 
 
             first doctor did not. Second doctor saw claimant closer in time 
 
             to event. Testimony of second doctor given greater weight. 
 
             Claimant's injury held to be a temporary aggravation of earlier 
 
             condition.
 
             
 
        
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                   BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         PENNY LERCH,
 
         
 
              Claimant,
 
         
 
         vs.                                      File Nos. 787695,
 
                                             830006, 830007 & 830008
 
         FARMSTEAD FOODS,
 
                                               A R B I T R A T I 0 N
 
              Employer,
 
                                                 D E C I S I 0 N
 
         and
 
                                                     F I L E D
 
         SENTRY INSURANCE COMPANY,
 
                                                    DEC 13 1989
 
              Insurance Carrier,
 
                                          IOWA INDUSTRIAL COMMISSIONER
 
         and
 
         
 
         THE SECOND INJURY FUND,
 
         
 
              Defendants.
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              This is a combined proceeding in arbitration brought by 
 
         Penny Lerch, claimant, against Farmstead Foods, employer 
 
         (hereinafter referred to as Farmstead), and its insurance 
 
         carrier, Sentry Insurance Company, and The Second Injury Fund, a 
 
         special fund created under the statutes of the State of Iowa, for 
 
         workers' compensation benefits as a result of alleged injuries on 
 
         February 13, 1985 or May 28, 1986; July 10, 1985, May 29, 1986; 
 
         and June 23, 1986.  On May 17, 1989, a hearing was held on 
 
         claimant's petition and the matter was considered fully submitted 
 
         at the close of this hearing.
 
         
 
              The parties have submitted a prehearing report of contested 
 
         issues and stipulations which was approved and accepted as a part 
 
         of the record in 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.  An employee-employer relationship existed between 
 
         claimant and Farmstead at the time of the alleged injuries;
 
         
 
              2.  If the injuries are found to have caused permanent 
 
         disability, the type of disability in the claim against Farmstead 
 
         is a scheduled member disability to the arm;
 
                                                      
 
                                                               
 
         
 
              3.  Claimant's rate of weekly compensation in the event of 
 
         an award of weekly benefits as a result of any of the alleged 
 
         injuries shall be $220.25; and,
 
         
 
              4.  All requested medical benefits have been or will be paid 
 
         by defendants.
 
         
 
                                    ISSUES
 
         
 
              The parties submitted the following issues for determination 
 
         in this proceeding:
 
         
 
                I.  Whether claimant received any injury arising out of 
 
         and in the course of employment;
 
         
 
               II.  Whether there is a causal relationship between any of 
 
         the alleged  work injuries and the claimed disabilities; and,
 
         
 
              III.  The extent of claimant's entitlement to weekly 
 
         benefits for disability from Farmstead and the Second Injury 
 
         Fund.
 
         
 
                              STATEMENT OF THE FACTS
 
         
 
              The following is a brief statement highlighting some of the 
 
         more pertinent evidence presented.  Whether or not specifically 
 
         referred to in this statement, all of the evidence received at 
 
         the hearing was independently reviewed and considered in arriving 
 
         at this decision.  Any conclusions about the evidence contained 
 
         in the following statement should be viewed as preliminary 
 
         findings of fact.
 
         
 
              Claimant testified that she worked with Farmstead and its 
 
         predecessor company, Wilson Foods, as a meat cutter from May 13, 
 
         1974 until she terminated this employment on May 28, 1986. 
 
         Claimant stated that her duties primarily involved ham boning and 
 
         sectioning using a powered Wizard knife.  All of her work was 
 
         performed in a cold environment of 35 to 40 degrees Fahrenheit. 
 
         Claimant testified that most of such, work required rapid, 
 
         repetitive movement of the hands and arms.  Claimant stated at 
 
         hearing that she left this employment upon the recommendation of 
 
         her physicians and her inability to continue in meat cutting work 
 
         without experiencing recurrent symptoms of pain, numbness and 
 
         swelling in her hands and arms from repetitive work activity.
 
         
 
              Claimant testified that before her employment in 1974, she 
 
         was in good health and experienced no problems with her arms or 
 
         hands.  However, only a few months after being hired she began to 
 
         experience chronic numbness and swelling and pain in her hand and 
 
         wrist while performing her job.  She was diagnosed by Leland 
 
         Hawkins, M.D., in October 1974, as suffering from bilateral 
 
         carpal tunnel syndrome and he performed a surgical release of 
 
         affected tissue in her wrists.  Claimant then returned to work 
 
         with no restrictions.  Two years later in July 1976, Dr. Hawkins 
 
                                                      
 
                                                               
 
         diagnosed tenosynovitis of the long and ring fingers of 
 
         claimant's right hand and a second surgery releasing pressure on 
 
         the nerves was performed.  Claimant again returned to work 
 
         without restrictions. In July 1977, claimant reported to a 
 
         physician that she had trouble with right arm and thumb swelling.  
 
         This doctor stated at the time that the problem could be overuse 
 
         syndrome or rheumatoid arthritis.  In October 1979, claimant 
 
         reported symptoms of right shoulder pain.  In 1980, claimant 
 
         complained to her physicians of left shoulder pain diagnosed at 
 
         that time as soft tissue strain.
 
         
 
              In February 1985, claimant reported to Hugh P. MacMenamin, 
 
         M.D., an orthopedic surgeon, that she was experiencing chronic 
 
         upper left arm pain radiating down to her thumb and index finger 
 
         associated with left sided cervical or neck pain off and on for 
 
         several years.  Dr. MacMenamin felt that the problem was cervical 
 
         disc syndrome at the time but referred claimant to another 
 
         orthopedic surgeon, Steven Eyanson, M.D., for evaluation of 
 
         possible rheumatoid arthritis.  Dr. Macmenamin did not believe 
 
         that this problem was work related.  After his evaluation in June 
 
         1985, Dr. Eyanson found little to suggest arthritis and felt that 
 
         the pain may be degenerative joint changes due to claimant's 
 
         obesity.  He offered no further explanation of claimant's 
 
         shoulder and hand pain.  Claimant was off work several timed due 
 
         to recurrence of symptoms.
 
         
 
              On June 25, 1985, William W. Eversmann, Jr., M.D., another 
 
         orthopedic surgeon, examined claimant for multiple complaints in 
 
         both of her arms and hands and diagnosed two overuse syndromes, 
 
         namely:  recurrent carpal tunnel syndrome on the right and 
 
         bilateral deQuervain's tenosynovitis.  Dr. Eversmann performed a 
 
         surgical release of affected tissue for these conditions on July 
 
         10, 1985.  Claimant returned to work after recovery from this 
 
         surgery without restriction but again was off work several times 
 
         for recurrence of symptoms over the following year.
 
         
 
              On May 28, 1986, claimant returned to Dr. Eversmann with 
 
         complaints of left thumb triggering and release surgery for this 
 
         thumb problem was performed on May 29.  On June 17, 1986, Dr. 
 
         Eversmann diagnosed right thumb triggering and a release was 
 
         likewise performed on June 23, 1986.  According to Dr. 
 
         Eversmann's records, claimant told him that the right thumb 
 
         problem occurred earlier but she did not mention this to the 
 
         doctor as she did not want both of her hands surgically treated 
 
         at the same time. Claimant was released to return to work on 
 
         August 8, 1986, but did not do so.
 
         
 
              Claimant was again evaluated by Dr. Eyanson who referred 
 
         claimant to the Mayo Clinic and to the University of Iowa 
 
         Hospitals and Clinics for evaluation of possible arthritis or 
 
         other inflammatory joint disease.  Such a disease process was 
 
         ruled out after these evaluations with only an additional 
 
         diagnosis of polyarthritis of unknown cause.  Dr. Eyanson also 
 
         reports a possible fibrositis which he opines could have been 
 
         aggravated by her meat cutting work at Farmstead.
 
                                                      
 
                                                               
 
         
 
              Despite the reports submitted by Dr. Eyanson and others for 
 
         other possible causes of claimant's problems, Dr. Eversmann 
 
         stated on July 18, 1986, in his office notes, that:  "...There is 
 
         no question...that her overuse syndromes have been a contant 
 
         [sic] and continuing state of her employment.and that her 
 
         condition...continues to be related to her employment, as it has 
 
         been in weeks and months past...."
 
         
 
              Dr. Eversmann attempted to rate claimant's permanent 
 
         impairment on more than one occasion but claimant's symptoms were 
 
         not present during any of these rating sessions.  Due to an 
 
         absence of deficients in range of motion, grip strength and 
 
         sensation at the times he evaluated claimant, Dr. Eversmann 
 
         opined claimant had no permanent partial impairment.  However, he 
 
         clearly states that claimant should avoid her meat cutting work 
 
         at Farmstead due to her overuse syndromes as the likelihood of a 
 
         recurrence of symptoms and impairment is fairly high.  Claimant 
 
         has followed this recommendation and has not returned to work 
 
         with Farmstead.
 
         
 
              After leaving Farmstead, claimant has underwent surgery 
 
         involving a stomach bypass to reduce her obesity and she has lost 
 
         considerable weight as a result.
 
         
 
 
 
                                    
 
                                                               
 
              Claimant has now returned to work as a convenience clerk and 
 
         as a receptionist.  She states that her hands are not as strong 
 
         as they were before and that she is never pain free.  She 
 
         complains that her hands and arms hurt with activity and limits 
 
         both her household, employment and recreational activities.  She 
 
         states:that she takes nonprescription medication on a regular 
 
         basis.
 
         
 
         
 
                       APPLICABLE LAW AND ANALYSIS
 
         
 
              Note:  A credibility finding is necessary to this decision 
 
         as defendants place claimant's credibility at issue during 
 
         cross-examination as to the nature and extent of the injury and 
 
         disability.  From her demeanor while testifying, claimant will be 
 
         found credible.
 
         
 
              Claimant has the burden of proving by a preponderance of the 
 
         evidence that claimant received an injury which arose out of and 
 
         in the course of employment.  The words "out of" refer to the 
 
         cause or source of the injury.  The words "in the.course of" 
 
         refer to the time and place and circumstances of the injury.  
 
         See Cedar Rapids Community Sch. v. Cady, 278 N.W. 2d 298 (Iowa 
 
         1979); Crowe v. DeSoto Consol. Sch. Dist. , 246 Iowa 402, 68 
 
         N.W.2d 63 (1955). An employer takes an employee subject to any 
 
         active or dormant health impairments, and a work connected injury 
 
         which more than slightly aggravates the condition is considered 
 
         to be a personal injury.  Ziegler v. United States Gypsum Co., 
 
         252 Iowa 613, 620, 106 N.W.2d 591 (1960) and cases cited 
 
         therein.
 
         
 
              It is not necessary that claimant prove her disability 
 
         results from a sudden unexpected traumatic event.  It is 
 
         sufficient to show that the disability developed gradually or 
 
         progressively from work activity over a period of time.  McKeever 
 
         Custom Cabinets v. Smith, 379 N.W.2d 368 (Iowa 1985).  The 
 
         McKeever court also held that the date of injury in gradual 
 
         injury cases is a time when pain prevents the employee from 
 
         continuing to work.
 
         
 
              The question of causal connection is essentially within the 
 
         domain of expert medical opinion.  Bradshaw v. Iowa Methodist 
 
         Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960).  The opinion of 
 
         experts need not be couched in definite, positive or unequivocal 
 
         language and the expert opinion may be accepted or rejected, in 
 
         whole or in part, by the trier of fact.  Sondag v. Ferris 
 
         Hardware, .220 N.W.2d 903 (Iowa 1974).  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 v. Fischer, Inc., 257 
 
         Iowa 516, 133 N.W.2d 867 (1965).
 
         
 
              Furthermore, if the available expert testimony is 
 
         insufficient alone to support a finding of causal connection, 
 
         such testimony may be coupled with nonexpert testimony to show 
 
                                                      
 
                                                               
 
         causation and be sufficient to sustain an award.  Giere v. Asse 
 
         Haugen Homes, Inc., 259 Iowa 1065, 146 N.W.2d 911, 915 (1966). 
 
         Such evidence does not, however, compel an award as a matter of 
 
         law.  Anderson v. Oscar Mayer & Co., 217 N.W.2d 531, 536 (Iowa 
 
         1974).  To establish compensability, the injury need only be a 
 
         significant factor, not be the only factor causing the claimed 
 
         disability.  Blacksmith, 290 N.W.2d 348, 354.  In the case of a 
 
         preexisting condition, an employee is not entitled to recover for 
 
         the results of a preexisting injury or disease but can recover 
 
         for an aggravation thereof which resulted in the disability found 
 
         to exist.  Olson v. Goodyear Service Stores, 255 Iowa 1112, 125 
 
         N.W.2d 251 (1963).
 
         
 
              In the case sub judice, claimant has shown by a 
 
         preponderance of the evidence that claimant's repetitive work as 
 
         a meat cutter at Farmstead is a cause of her bilateral arm and 
 
         hand overuse syndromes.  The existence of arthritis or some other 
 
         joint disease process has not been diagnosed as a causative 
 
         factor beyond a possibility.  The views of Dr. Eyanson are not as 
 
         convincing as the clear causal connection views of Dr. Eversmann.  
 
         Dr. Eversmann's views are the most consistent with claimant's 
 
         credible testimony that her symptoms usually appeared following 
 
         repetitive work at Farmstead.  Therefore, it will be found that 
 
         the diagnosed overuse syndromes are causally related to 
 
         claimant's work at Farmstead.
 
         
 
              With reference to the alleged injury date of February 13, 
 
         1985 and the absences from work between that date and June 1985, 
 
         claimant's complaints of hand and arm pain were associated with 
 
         left shoulder and neck pain.  Initially treating physicians did 
 
         not relate any of these complaints to claimant's work and felt 
 
         that claimant had rheumatoid arthritis.  Although that diagnosis 
 
         has now been rejected, still no physician in this case has 
 
         related left shoulder and neck pain to claimant's work.  
 
         Therefore, no work injury could be found during this time and the 
 
         times off work prior to June 1985 for shoulder and neck pain or 
 
         other pain associated with that condition are not compensable.
 
         
 
              However, on June 25, 1985, from complaints given by claimant 
 
         at the time, Dr. Eversmann clearly.diagnosed two work related 
 
         overuse syndrome conditions namely; recurrent carpal tunnel 
 
         syndrome of the right arm and deQuervain's tenosynovitis of both 
 
         the right and left arms.  Release surgery was performed in July 
 
         1985.  Claimant was absent from work several times after the 
 
         initial diagnosis for treatment of these overuse syndrome 
 
         conditions.  For the purposes of this decision, the exact injury 
 
         date for the gradual injury is not important but the most 
 
         appropriate date would be the first day of absence from work, June 
 
         26, 1985, following the initial diagnosis, not the date of 
 
         surgery, July 10, 1985, as was alleged in the petition.  
 
         Therefore, for purposes of awarding temporary total disability 
 
         benefits, an injury date of June 26, 1985 will be found for the 
 
         injuries of recurrent carpal tunnel syndrome and bilateral 
 
         deQuervain's tenosynovitis. The undersigned may choose an injury 
 
         date other than the one plead in the petition in cumulative trauma 
 
                                                      
 
                                                               
 
         cases so long as timeliness is not an issue with reference to the 
 
         new injury date. McCoy v. Donaldson Company, Inc., case no. 
 
         752670, Appeal Decision filed April 28, 1989.  As claimant's 
 
         petition herein was filed in August 1986, there is no problem with 
 
         the timeliness of the claim under Iowa Code section 85.26 by 
 
         utilizing the June 26, 1985 date.
 
         
 
              On May 28, 1986, claimant left her employment initially for 
 
         the reason of receiving treatment for her thumb problems but she 
 
         did not return to work.  Therefore, an injury date of May 28, 
 
         1986 not May 29, 1986 as alleged in the petition, will be found 
 
         for the injury to the right and left trigger thumbs and temporary 
 
         total disability will be awarded accordingly.  Again, timeliness 
 
         is not at issue with reference to this new injury date.
 
         
 
              Finally, the date of May 28, 1986, is also found to be the 
 
         injury date for purposes of awarding permanent partial disability 
 
         as a result of all the overuse syndrome claims in this case 
 
         namely:  right recurrent carpal tunnel syndrome, bilateral 
 
         deQuervain's tenosynovitis and the right and left thumb 
 
         triggering.  This date was chosen because it was the date 
 
         claimant was compelled by these conditions to permanently leave 
 
         her employment at Farmstead.  Admittedly, Dr. Eversmann did not 
 
         provide an impairment rating.  However, permanent partial 
 
         disability can be awarded without such a rating even under the 
 
         holding of Auxier v. Woodward State Hosp. Sch., 266 N.W.2d 139 
 
         (Iowa 1978).  The medical evidence is clear that claimant suffers 
 
         from a permanent partial impairment or a permanent partial loss 
 
         of use of her hands and arms from overuse syndrome.  Dr. 
 
         Eversmann clearly states that claimant can no longer perform 
 
         rapid repetitive movements of her hands without a recurrence of 
 
         symptoms.  To suggest that claimant has no permanent partial 
 
         impairment because she did not experience these symptoms at the 
 
         time she was evaluated is illogical.  Had she been performing 
 
         repetitive work at the time, she would have experienced those 
 
         symptoms.  This administrative law judge can see no difference 
 
         between a functional loss due to a limited range of motion and a 
 
         functional loss due to limited ability to perform rapid movements 
 
         over a period of time.  The concept of permanent partial 
 
         disability for a scheduled member disability is not static but a 
 
         dynamic concept and must take into account real limitations in 
 
         the use of one's hands and arms.  Furthermore, there does not 
 
         appear to be any permanent impairment prior to May 28, 1986, as 
 
         claimant was always able before that time to be repaired, 
 
         medicated and braced up by her physicians to allow her to 
 
         continue in the injurious repetitive work activity at Farmstead.  
 
         No physician, before claimant left work on May 28, 1986, ever 
 
         placed a permanent restriction upon claimant's physical activity 
 
         consisting of no prolonged rapid repetitive movements in a cold 
 
         environment.  Had they done so, claimant would probably not have 
 
         been allowed to return to work by Farmstead.
 
         
 
              The parties stipulated that the permanent disability claim 
 
         against Farmstead is limited to the schedule for permanent 
 
         disability to arms.
 
                                                      
 
                                                               
 
         
 
              When the result of an injury is loss to a scheduled member, 
 
         the compensation payable is limited to that set forth in the 
 
         appropriate subdivision of Code section 85.34(2).  Barton v. 
 
         Nevada Poultry Co., 253 Iowa 285, 110 N.W.2d 660 (1961).  "Loss 
 
         of use" of a member is equivalent to 'loss' of the member.  Moses 
 
         v. National Union C.M. Co. 194 Iowa 819, 184 N.W. 746 (1922). 
 
         Pursuant to Code section 85.34(2)(u) the industrial commissioner 
 
         may equitably prorate compensation payable in those cases wherein 
 
         the loss is something less than that provided for in the 
 
         schedule. Blizek v. Eagle Signal Company, 164 N.W.2d 84 (Iowa 
 
         1969).
 
         
 
              Section 85.34(2)(s) of the Iowa Code states 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 the employee may be entitled to 
 
              benefits under subsection 3.
 
         
 
              The Iowa Supreme Court concluded with reference to a 1984 
 
         amendment to the above subsection that the plain and unambiguous 
 
         language in the amendment of paragraph (s) which set out a 
 
         definite schedule of benefits shows a clear intent by the 
 
         legislature to make the loss of two specified members a scheduled 
 
         loss.  A partial loss under paragraph (s) must be determined by 
 
         evidence of the functional loss rather than the industrial loss. 
 
         Simbro v. Delong's Sportswear, 332 N.W.2d 886, 889 (Iowa 1983).
 
         
 
              From the evidence submitted and from the specialized 
 
         expertise of this agency in such matters, it is found as a matter 
 
 
 
                       
 
                                                               
 
         of fact that the work injury of May 28, 1986, for all of 
 
         claimant's work related overuse syndromes diagnosed in this case 
 
         is a cause of an eight percent permanent partial impairment to 
 
         each arm which converts under the most recent edition of the AMA 
 
         impairment rating guide to a 15 percent body as a whole 
 
         functional loss.  Claimant has not shown that she is totally 
 
         disabled.  Based upon such a finding, claimant is entitled as a 
 
         matter of law to 75 weeks of permanent partial disability 
 
         benefits under Iowa Code section 85.34(2)(s) which is 15 percent 
 
         of 500 weeks, the maximum allowable for an injury to both arms in 
 
         that subsection.  Although claimant's loss of earning capacity is 
 
         probably greater in percentage due to this functional loss, this 
 
         is not an industrial disability case and under Iowa law the 
 
         undersigned cannot consider the impact of this impairment on 
 
         claimant's earning capacity in awarding permanent partial 
 
         disability benefits.
 
         
 
              Temporary total disability benefits will be awarded for the 
 
         times off work beginning in June 1985 for the overuse syndromes.
 
         
 
              Claimant also seeks additional disability benefits from the 
 
         second injury fund under Iowa Code section 85.63 et. seq.  This 
 
         fund was created to compensate an injured worker for,a permanent 
 
         industrial disability resulting from the combined effect of two 
 
         separate injuries to a scheduled member.  The purpose of such a 
 
         scheme of compensation was to encourage employers to hire or 
 
         retain handicapped workers.  See Anderson v. Second Injury Fund, 
 
         262 N.W.2d 789 (Iowa 1978).  There are three requirements under 
 
         the statute to invoke second injury fund liability.  First, there 
 
         must be a permanent loss or loss of use of one hand, arm, foot, 
 
         leg or, eye.  Secondly, there must be a permanent loss or loss of 
 
         use of another such member or organ through a compensable 
 
         subsequent injury.  Third, there must be a permanent industrial 
 
         disability to the body as a whole arising from both the first and 
 
         second injury which is greater in terms of relative weeks of 
 
         compensation than the sum of the scheduled allowances for those 
 
         injuries.
 
         
 
              In this case, claimant failed to show that there have been 
 
         two separate injuries causing a loss of use to both extremities. 
 
         As discussed above, no permanent partial impairment was found 
 
         prior to May 28, 1986.  The loss of use of both arms was 
 
         simultaneous.  Therefore, the claim against the fund will be 
 
         dismissed.
 
         
 
         
 
                            FINDINGS OF FACT
 
         
 
              1.  Claimant was a credible witness.  Claimant's appearance 
 
         while testifying indicated that she was testifying truthfully.
 
         
 
              2.  Between 1974 and 1986, claimant worked at Farmstead as a 
 
         meat cutter performing rapid repetitive movements of her hands 
 
         and arms in cold environment in her job in the ham boning 
 
         department. The job involved the use of knives including an 
 
                                                      
 
                                                               
 
         electrically powered knife.
 
         
 
              3.  Prior to 1985, claimant had problems dating back to 1974 
 
         with overuse syndromes from repetitive use of her arms and hands 
 
         while working at Farmstead which included bilateral carpal tunnel 
 
         syndrome and finger triggering.  However, claimant always 
 
         returned to work without restrictions following these instances 
 
         and no physician has opined that claimant suffered from any 
 
         permanent impairment or restrictions prior to 1986.
 
         
 
              4.  Between February and June 1985, claimant suffered 
 
         chronic pain of the arms associated with left shoulder and neck 
 
         pain and frequently lost work as a result of this condition.  
 
         Claimant failed to show that this condition was work related.
 
         
 
              5.  On June 26,, 1985, claimant suffered an injury which 
 
         arose out.of and in the course of her employment at Farmstead. 
 
         This injury consists of two overuse syndromes involving her hands 
 
         and arms, from repetitive work at Farmstead.  These conditions 
 
         are recurrent carpal tunnel syndrome and bilateral deQuervain's. 
 
         Claimant's first absence from work due to these conditions 
 
         following the initial diagnosis was June 26, 1985.
 
         
 
              6.  The work injury of June 26, 1985, was a cause of a 
 
         period of temporary total disability from work on the following 
 
         periods of time:  from June 26, 1985 through August 23, 1985; 
 
         September 1, 1985 through September 11, 1985; April 11, 1986, 
 
         April 28, 1986 through May 2, 1986; May 7, 1986;.May 14, 1986; 
 
         and, May 21, 1986. During these periods of time, claimant 
 
         received extensive treatment of her work injuries consisting of 
 
         various treatment modalities such as surgery, limitations on 
 
         activity, medication for pain and inflammation, physical therapy 
 
         and use of support and bracing devices.
 
         
 
              7.  Claimant failed to show that the work injury of June 26, 
 
         1985, was a cause of permanent impairment.  No physician has 
 
         limited claimant's activities and claimant returned to work 
 
         performing all of her repetitive arm and hand movements after 
 
         each absence.
 
         
 
              8.  On May 28, 1986, claimant suffered another injury which 
 
         arose out of and in the course of her employment at Farmstead. 
 
         This injury consists of two overuse syndromes involving her hands 
 
         and arms from her repetitive work at Farmstead set forth in 
 
         finding number 5 above and also right and left thumb triggering. 
 
         On this date, claimant was compelled by these overuse syndromes 
 
         to permanently leave her employment at Farmstead as she could not 
 
         return to repetitive use of her hands and arms upon the 
 
         recommendation of her physicians.
 
         
 
              9.  The work injury of May 28, 1986, was a cause of a period 
 
         of disability from work from May 28, 1986 until August 8, 1986, 
 
         at which time she reached maximum healing and was released to 
 
         return to some sort of suitable employment by her treating 
 
         physician. During this time, claimant received extensive 
 
                                                      
 
                                                               
 
         treatment of her trigger thumb conditions consisting of surgery, 
 
         limitations on activity and medications for pain and 
 
         inflammation.
 
         
 
              10.  The work injury of May 28, 1986, is a cause of an eight 
 
         percent permanent partial impairment to each upper extremity 
 
         which converts to a 15 percent permanent partial impairment to 
 
         the body as a whole as a result of the loss of the repetitive use 
 
         of both of her arms.  Any work involving the arms and hands, 
 
         especially in a cold environment over prolonged periods of time, 
 
         will likely result in severe pain, numbness and swelling.
 
         
 
         
 
                            CONCLUSIONS OF LAW
 
         
 
              Claimant has established under law entitlement to 11 2/7 
 
         weeks of temporary total disability benefits; 10 3/7 weeks of 
 
         healing period benefits; and, 75 weeks of permanent partial 
 
         disability benefits.  Claimant has failed to establish 
 
         entitlement under law to benefits from the second injury fund.
 
         
 
         
 
                                   ORDER
 
         
 
              1.  Defendant Farmstead shall pay to claimant seventy-five 
 
         (75) weeks of permanent partial disability benefits at the rate 
 
         of two hundred twenty and 25/100 dollars ($220.25) per week from 
 
         August 9, 1986.
 
         
 
              2.  Defendant Farmstead shall pay to claimant temporary 
 
         total disability benefits for the periods of time set forth in 
 
         findings of fact number 6 above and healing period benefits from 
 
         May 28, 1986 through August 8, 1986, at the rate of two hundred 
 
         twenty and 25/100 dollars ($220.25) per week.
 
         
 
              3.  Defendant Farmstead shall pay accrued weekly benefits in 
 
         a lump sum and shall receive a credit against this award for 
 
         benefits previously paid.
 
         
 
              4.  Defendant Farmstead shall pay interest on unpaid weekly 
 
         benefits awarded herein as set forth in Iowa Code section 85.30.
 
         
 
              5.  Defendant Farmstead shall pay the cost of this action 
 
         pursuant to Division of Industrial Services Rule 343-4.33.
 
         
 
              6.  Defendant Farmstead shall file activity reports on the 
 
         payment of this award as requested by this agency pursuant to 
 
         Division of Industrial Services Rule 343-3.1.
 
         
 
              7.  The claim against defendant Second Injury Fund is 
 
         dismissed.
 
         
 
              Signed and filed this 13th day of December 1989.
 
         
 
         
 
                                                      
 
                                                               
 
                                 
 
                                       LARRY P. WALSHIRE
 
                                       DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. James E. Shipman
 
         Attorney at Law
 
         1200 MNB Bldg.
 
         Cedar Rapids, IA  52401
 
         
 
         Mr. Harry W. Dahl
 
         Attorney at Law
 
         974 73rd St., Suite 16
 
         Des Moines, IA  50312
 
         
 
         Ms. Joanne Moeller
 
         Assistant Attorney General
 
         Hoover Bldg.
 
         Des Moines, IA  50319
 
         
 
         
 
         
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                      
 
 
            
 
 
 
           
 
 
 
                                            2200
 
                                            Filed December 13, 1989
 
                                            LARRY.P. WALSHIRE
 
         
 
                  BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         PENNY LERCH,
 
         
 
              Claimant,
 
         
 
         vs.                                    File Nos. 787695,
 
                                            830006, 830007 & 830008
 
         FARMSTEAD FOODS,
 
                                             A R B I T R A T I 0 N
 
              Employer,
 
                                                 D E C I S I 0 N
 
         and
 
         
 
         SENTRY INSURANCE COMPANY,
 
 
 
              Insurance Carrier,
 
 
 
         and
 
 
 
         THE SECOND INJURY FUND,
 
 
 
              Defendants.
 
         
 
         
 
         
 
         2200 - cumulative trauma - permanent partial disability
 
         
 
              An overuse syndrome case, although the treating physicians 
 
         could give no permanent impairment rating, the physician did 
 
         state that a return to repetitive work involving the arms would 
 
         result in recurrence of syndrome conditions and that such 
 
         activity should be avoided in the future.  Claimant then ended 
 
         her work in a packing plant.  This was considered a sufficient 
 
         showing of a loss of use of the arms and permanent partial 
 
         disability was awarded for this bilateral loss of repetitive use.  
 
         A 15 percent body as a whole impairment was found as a result of 
 
         a combined disability of 8 percent to each arm.  Second injury 
 
         fund claim was dismissed as the cumulative trauma was found to 
 
         have occurred all at the same time, the day claimant left her 
 
         employment upon the advice of the physicians.
 
         
 
         
 
         
 
 
 
 
 
 
 
 
 
 
 
                                                
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                  BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         STEVEN GOODLEY,
 
         
 
              Claimant,                       File  No. 787802
 
         
 
         vs.                               A R B I T R A T I O N
 
         
 
         TAMA MEAT PACKING CORP.              D E C I S I O N
 
         
 
              Employer,
 
              Self-Insured,
 
              Defendant.
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding in arbitration brought by Steven 
 
         Goodley, claimant, against Tama Meat Packing Corporation, 
 
         employer, and self-insured defendant, for benefits as the result 
 
         of an injury that occurred on February 14, 1985.  A hearing was 
 
         held on September 20, 1988, at Des Moines, Iowa, and the case was 
 
         fully submitted at the close of the hearing.  The record consists 
 
         of the testimony of Steven Goodley, claimant and Joint Exhibits 1 
 
         through 13.  Defendant ordered a transcript and supplied the 
 
         original copy to the industrial commissioner's file.
 
         
 
                                   STIPULATIONS
 
         
 
              The parties stipulated to the following matters at the time 
 
         of the hearing.
 
         
 
              That an employer-employee relationship existed between 
 
         claimant and employer at the time of the injury.
 
         
 
              That claimant sustained an injury on February 14, 1985, 
 
         which arose out of and in the course of employment with 
 
         employer.
 
         
 
              That the injury was the cause of temporary disability from 
 
         February 15, 1985 to March 17, 1985; that claimant was paid 
 
         temporary disability benefits for this period of time and that 
 
         entitlement to temporary disability benefits is not an 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 scheduled 
 
         member disability to the left thumb.
 
         
 
              That the commencement date for permanent partial 
 
         disability benefits, in the event which benefits are awarded, 
 
         is March 17, 1985.
 

 
         
 
         
 
         
 
         GOODLEY V. TAMA MEAT PACKING CORP.
 
         PAGE   2
 
         
 
         
 
              That the rate of compensation is, in the event of 
 
         an.award, $166.03 per week.
 
         
 
              That all requested medical benefits have been or will be 
 
         paid by defendant, except the medical expenses incurred with 
 
         David B. McClain, D.O.
 
         
 
              That Dr. McClain would testify that his bill is fair and 
 
         reasonable and defendants are not offering contrary evidence.
 
         
 
              That defendant makes no claim for credit for either 
 
         employee nonoccupational group health plan benefits or workers' 
 
         compensation permanent partial disability benefits paid to 
 
         claimant prior to hearing.
 
         
 
              That there are no bifurcated claims.
 
         
 
                                   ISSUES
 
         
 
              The parties submitted the following issues for determination 
 
         at the time of the hearing.
 
         
 
              Whether the injury of February 14, 1985, was the cause of 
 
         any permanent disability.
 
         
 
              Whether claimant is entitled to permanent disability 
 
         benefits, and if so, the extent of entitlement.
 
         
 
              Whether claimant is entitled to the payment of the medical 
 
         bill and medical mileage to see Dr. McClain.
 
         
 
         
 
                             SUMMARY OF THE EVIDENCE
 
         
 
              All of the evidence was examined and considered.  The 
 
         following is a summary of the evidence which is most pertinent to 
 
         this decision.
 
         
 
              Claimant was an employee of the employer on February 14, 
 
         1985.  He was previously employed by Pella Meat Packing from 
 
         January of 1984 to March of 1984.  In January of 1984, while 
 
         working for Pella, claimant received a simple cut on his left 
 
         thumb in the joint closest to the fingernail which required three 
 
         stitches.  He did not receive surgery.  Claimant returned to work 
 
         one hour later without restrictions with a bandage on his thumb 
 
         and performed his regular duties thereafter (Transcript pages 
 
         9-14).  Claimant stated that he lost no time from work except for 
 

 
         
 
         
 
         
 
         GOODLEY V. TAMA MEAT PACKING CORP.
 
         PAGE   3
 
         
 
         two hours to have the stitches removed.  His thumb was weak for 
 
         awhile, but he eventually regained full use of his left thumb 
 
         (Tr. pp. 19-20).
 
         
 
              Claimant disclosed this injury to this employer when he 
 
         started to work on May 10, 1984, on the employee medical history 
 
         questionnaire (Exhibit 1, p. 1).  Karen Skala, the nurse who 
 
         helped claimant complete the questionnaire, wrote on it that 
 
         claimant's left thumb snaps at times.  She wrote down "tendonitis 
 
         of the left thumb?" (Ex. 1, p. 2; Tr. pp. 43-45).  Claimant 
 
         agreed that his left thumb and all of his fingers did snap but he 
 
         did not know why.
 
         
 
              On February 14, 1985, claimant was removing the hide from 
 
         the right rear leg of a cow with a very sharp knife in his right 
 
         hand.  He used his left hand to grip and hold the hide and to 
 
         push and pull it into position for cutting.  Claimant testified 
 
         that he was wearing a mesh belly guard, a left forearm guard and 
 
         mesh glove on his left hand as required by employer.  The mesh 
 
         glove had two holes in it.  Claimant testified that he had asked 
 
         for a new mesh glove almost everyday for approximately two weeks, 
 
         but he was told that they did not have one that fit him.  At the 
 
         time of the injury, the knife went through the hole in the left 
 
         mesh glove and it cut his left thumb on the top of the second 
 
         knuckle (Tr. pp. 22-26).
 
         
 
              The plant nurse sent claimant to see D. I. Mallory, D.O.  
 
         Dr. Mallory said that claimant needed to see a specialist and 
 
         sent him to the orthopedic department at the University of Iowa 
 
         Hospital and Clinics in Iowa City.  Fred McQueary, M.D., released 
 
         claimant.to return to work on light duty on March 15, 1985 (Ex. 
 
         3).  Claimant testified that he returned to his regular job.  He 
 
         did not get light duty.  Claimant said that it hurt his left 
 
         thumb to grasp the hide.  It was necessary to use his fingers on 
 
         the left hand and the palm of his hand to grasp the hide after 
 
         the injury.  It felt like needles in his thumb shooting up into 
 
         his forearm.  Claimant testified that at night,.after work, and 
 
         upon waking in the morning, his left thumb was almost immobile 
 
         because it was so stiff.  This had never happened before (Tr. pp. 
 
         27-35).  Claimant testified that the left thumb pain never 
 
         resolved.  Claimant said that he is no longer able to work on his 
 
         truck, finger tighten bolts, use a wrench with his left hand, and 
 
         skin a bull at work.  He said that he has no grip strength in his 
 
         left thumb to pull a cow by the tail or the hoof.  He did not 
 
         have any of these problems prior to this injury.  Claimant 
 
         testified that it is not as bad as it was at work because he is 
 
         now doing the opposite leg (Tr. pp. 36-38).  Claimant testified 
 
         that he, nevertheless, has been able to work at the same job of 
 
         legging for the same amount of pay, but that he now works on the 
 
         other leg (Tr. pp. 58 & 59).  He has no appointments to see any 
 
         physician for this injury at this time (Tr. pp. 61 & 62).  
 
         Claimant testified that he worked even though his thumb hurt 
 
         because the choice was either to work, quit or get fired (Tr. pp. 
 
         66-69).  Claimant acknowledged that he has received two raises 
 
         along with other plant employees since the occurrence of this 
 
         injury (Tr. p. 70).
 
         
 
              A review of the medical evidence shows that Dr. Mallory saw 
 
         claimant on February 14, 1985, for a laceration of the left thumb 
 
         at the MP joint and a transection of the extensor tendon of the 
 

 
         
 
         
 
         
 
         GOODLEY V. TAMA MEAT PACKING CORP.
 
         PAGE   4
 
         
 
         left thumb.  He cleaned and probed the wound, gave claimant a 
 
         diphtheria-tetanus shot and sent him to the orthopedic department 
 
         at the university (Ex. 4).  On February 15, 1985, the extensor 
 
         tendon laceration was repaired and claimant was placed in a 
 
         radial gutter splint (Ex. 5).  Stitches were removed on March 1, 
 
         1985 (Ex. 6).  Dr. McQueary released claimant to return to work 
 
         light duty on March 15, 1985 (Ex. 3).  Dr. McQueary said that 
 
         claimant could possibly return to full duty in two more weeks 
 
         (Ex. 6).  On March 29, 1985, Dr. Adams (full name unknown) and 
 
         James V. Nepola, M.D., stated:  "Examination:  Today he has 
 
         excellent strength of the digit.  He has full range of motion 
 
         that is symmetric with the opposite thumb.  His wound is healed 
 
         well.  I released him to full activity at this time.  We will see 
 
         him back on a PRN basis." (Ex. 6).
 
         
 
              On November 17, 1986, Dr. Nepola stated:
 
         
 
              Mr. Goodley sustained an injury to the extensor tendon 
 
              of his left thumb which was repaired on 2/14/85.  On 
 
              3/29/85 he was seen in our clinic after having healed 
 
              his partial extensor laceration and had "excellent 
 
              strength", full range of motion "symmetric with the 
 
              opposite thumb" and a healed wound.  On the basis of 
 
              that description I cannot imagine any permanency to his 
 
              left thumb.  Therefore, I can say that I do not feel 
 
              that he has any permanent partial impairment.
 
         
 
         (Ex. 7)
 
         
 
              Dr. Malvitz (full name unknown) and Dr. Nepola saw claimant 
 
         again on April 3, 1987, for an evaluation.  They stated that 
 
         claimant's left thumb had healed; that he had no persistent pain 
 
         or other complaints referable to the MCP joint, but that he did 
 
         complain of weakness of the left hand grip which he has noticed 
 
         since this injury.  They said claimant complains of intermittent 
 
         numbness involving the small finger and ring finger but that he 
 
         denied any numbness or tingling in the thumb.  Claimant's 
 
         neurological examination was normal.  The range of motion of the 
 
         left and right MCP joint were the same.  The range of motion of 
 
         the left and right IP was.identical. His grip strength, key pinch 
 
         and hunch tests on the left and right were quite similar.  The 
 
         report concludes as follows:
 
         
 
              The patient was seen and examined with Dr. Nepola.  We 
 
              feel the patient has completely recovered from his 
 
              thumb laceration.  The patient sustained a laceration 
 
              to his extensor tendon which could not be responsible 
 
              for his difficulty with weakness.  He is not having any 
 
              pain or other symptoms referable to the MCP joint or 
 
              extensor laceration.  We do not feel his weakness is 
 
              referable to his laceration, and it is more likely 
 
              secondary to a compression neuropathy of the ulnar 
 
              median nerve or an overuse syndrome.  Should the 
 
              patient or the company request further evaluation, we 
 
              would recommend setting up EMG/NCV to document any 
 
              possible compressive neuropathy.  The patient will 
 
              return to us otherwise on a prn basis.
 
         
 
         (Ex. 2)
 
         
 

 
         
 
         
 
         
 
         GOODLEY V. TAMA MEAT PACKING CORP.
 
         PAGE   5
 
         
 
              Claimant saw David B. McClain, D.O.,on June 26, 1986, for an 
 
         evaluation of his left thumb.  Dr.McClain charged $180 for the 
 
         examination and report.  Claimant stated he traveled 160 miles 
 
         round trip mileage from Tama to Des Moines and back to Tama again 
 
         (Tr. pp. 40, 41 & 54).  Dr.McClain did not write up this report 
 
         until August 25, 1986, at which time he stated as follows:
 
         
 
              Orthopaedic evaluation was carried out June 26, 1986 
 
              with complaints of left thumb pain.  Patient gave a 
 
              history of sustaining a work related trauma February 7, 
 
              1985 [sic].
 
         
 
              Orthopaedic examination of the left thumb revealed a 
 
              healed cicatrix.  Range of motion was decreased.
 
         
 
              Impression:  Healed left extensor thumb.
 
         
 
              It is my opinion he has sustained a permanent partial 
 
              impairment to the hand in the amount of thirty (30) 
 
              percent or to the upper left extremity in the amount of 
 
              twenty-seven (27) percent.
 
         (Ex. 9)
 
         
 
              Dr. McClain amended his report on September 15, 1986, with 
 
         the following words, "I have, at this time, reviewed my records 
 
         and am advising that the injuries suffered by Mr. Goodley is 
 
         limited to his thumb." (Ex. 10).
 
         
 
              Dr. McClain then amended his report again on October 14, 
 
         1986, as follows, "Please refer to my letter of August 25, 1986. 
 
          Disability is to the hand in the amount of thirty (30) percent." 
 
         (Ex. 11).  Dr. McClain then amended his report a third time on 
 
         July 29, 1987:
 
         
 
              In reviewing my records, I find that the previous 
 
              rating issued to you on August 25, 1986 in the mount of 
 
              twenty-seven (27) percent to the upper left extremity 
 
              is in error.  In using the manual for Orthopaedic 
 
              Surgeons in Evaluating Permanent Physical Impairment 
 
              from the American Academy of Orthopaedic Surgeons as 
 
              well as years of clinical practice, it is of my opinion 
 
              that Mr. Goodley has sustained a permanent partial 
 
              impairment in the amount of forty (40) percent to the 
 
              left thumb.
 
         (Ex. 8)
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury of February 14, 1985, 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 
 

 
         
 
         
 
         
 
         GOODLEY V. TAMA MEAT PACKING CORP.
 
         PAGE   6
 
         
 
         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 
 
         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 he sustained a permanent 
 
         disability as a result of the injury which occurred on February 
 
         14, 1985.  Claimant testified that the pain in his left thumb 
 
         never resolved.  However, pain is not mentioned in any of the 
 
         medical reports until Dr. McClain said claimant had left thumb 
 
         pain on August 25, 1986, based on his examination of claimant, 
 
         which took place on June 26, 1986.  This evidence, however, is 
 
         controverted by Dr. Malvitz and Nepola, who reported on April 3, 
 
         1987, that claimant had no persistent pain or other complaints 
 
         referable to his left.thumb MCP joint.  They said that claimant's 
 
         only complaint was loss of grip strength to the left hand after 
 
         this injury.  These doctors attributed the loss of grip strength 
 
         to a compression neuropathy of the ulnar or median nerve or an 
 
         overuse syndrome and recommended that claimant take an EMG/NCV 
 
         for that condition (Ex. 2).  Pain that is not substantiated by 
 
         clinical findings is not a substitute for impairment.  Waller v. 
 
         Chamberlain Manufacturing, II Iowa Industrial Commissioner 
 
         Reports 419, 425 (1981).  Claimant also testified that it was 
 
         difficult to work with his left hand.  According to claimant's 
 
         testimony this was due to a loss of grip strength in his left 
 
         hand.  Dr. Malvitz and Dr. Nepola said that the loss of grip 
 
         strength was due to compression neuropathy and not due to the 
 
         left thumb injury (Ex. 2).
 
         
 
              Claimant did return to work and performed the same job and 
 
         continued to perform it as long as he worked for this employer.  
 
         He testified that he is able to perform his present job with his 
 
         present employer.   Several exhibits from the treating physicians 
 
         at the university show a pattern of complete recovery from the 
 
         thumb injury of February 14, 1985 (Exs. 2, 3, 6 & 7).  Dr. Nepola 
 
         said on November 6, 1986, that claimant had "excellent strength" 
 
         and full range of motion "symmetric with the opposite thumb.O  He 
 
         said that claimant had no permanent disability (Ex. 7).
 
         
 
              The opinion of Dr. Nepola and the other physicians at the 
 
         University of Iowa Orthopedic Department are preferred over the 
 
         opinion of Dr. McClain.  The university physicians were all 
 
         treating physicians.  They were responsible for his ultimate 
 
         recovery.  A number of physicians participated in his care and 
 
         treatment at the university.  The university doctors saw claimant 
 
         on several occasions.  Dr. McClain performed a one time 
 
         evaluation for the purpose of obtaining evidence to be used in 
 
         litigation to obtain workers' compensation benefits.  Rockwell 
 
         Graphics Systems, Inc. v. Prince, 366 N.W.2d 187, 192 (Iowa 
 
         1985).  Furthermore, Dr. McClain's reports are not very clear.  
 
         He wrote a report and then amended it three times.  Claimant had 
 
         an injury to the left thumb.  There was no explanation why Dr. 
 

 
         
 
         
 
         
 
         GOODLEY V. TAMA MEAT PACKING CORP.
 
         PAGE   7
 
         
 
         McClain rated the hand and converted it to the left upper 
 
         extremity.  Such a rating had no application to this case.  
 
         Furthermore, there is no correlation between the hand and left 
 
         upper extremity ratings and the final numerical rating which he 
 
         gave for the left thumb.  The thumb rating does not convert to 
 
         the same numbers that he awarded for the hand and upper 
 
         extremity.  The rating which he gave for the hand and upper 
 
         extremity do not convert backwards to the rating that he 
 
         determined for the thumb.  Dr. McClain did not explain the basis 
 
         for his rating other than to mention right thumb pain and 
 
         decreased range of motion; however, he did not show how these two 
 
         factors were used to arrive at his rating of a 40 percent 
 
         impairment of the left thumb (Ex. 9).  By contrast, the 
 
         University of Iowa doctors took several detailed measurements and 
 
         these were shown in their report.  The detailed physical 
 
         measurements explain in a rational, informative and probative way 
 
         why there was no impairment to the left thumb or to the hand (Ex. 
 
         2).
 
         
 
              In conclusion, based on the foregoing evidence, it is 
 
         determined that claimant did not sustain the burden of proof by a 
 
         preponderance of the evidence that the injury of February 14, 
 
         1985, was the cause of permanent impairment or permanent 
 
         disability.  Therefore, claimant is not entitled to permanent 
 
         disability benefits for this injury.
 
         
 
              No decision is made as to whether claimant is entitled to be 
 
         paid for the expense and mileage of his independent medical 
 
         examination by Dr. McClain under Iowa Code section 85.39.  This 
 
         issue was not raised at the prehearing conference and was not 
 
         designated as a hearing issue on the hearing assignment order.  
 
         Deputies are authorized to determine only those issues raised at 
 
         the prehearing conference and designated as issues on the hearing 
 
         assignment order.  Presswood v. Iowa Beef Processors, Inc., file 
 
         no. 735442 (appeal decision, November 14, 1987); Rahn v. 
 
         Siouxland Towing and Auto Body, file no. 797004, filed October 
 
         20, 1987; Pulju v. Iowa Beef Processors, Inc., file nos. 804656 
 
         and 841502, filed February 9, 1988; Fisher v. American Freight 
 
         Systems, Inc., file no. 797015, filed September 26, 1988; Sachau 
 
         v. Farmland Foods, file no. 759191, filed October 14, 1988.
 
         
 
              The expenses cannot be allowed as costs because claimant is 
 
         not the prevailing party.  Even if claimant had been the 
 
         prevailing party, medical examinations and medical mileage are 
 
         not costs enumerated in Division of Industrial Services Rule 
 
         343-4.33.
 
         
 
              The expenses for the independent examination by Dr. McClain 
 
         cannot be allowed under Iowa Code section 85.27.  This section 
 
         provides for reasonable medical expenses for care and treatment 
 
         of claimant.  Claimant did not see Dr. McClain for care and 
 
         treatment, but rather for an evaluation which is a trial 
 
         preparation expense.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              Wherefore, based upon the evidence presented, the following 
 
         findings of fact are made.
 
         
 
              That claimant sustained an injury on February 14, 1985, when 
 

 
         
 
         
 
         
 
         GOODLEY V. TAMA MEAT PACKING CORP.
 
         PAGE   8
 
         
 
         he lacerated the MCP joint of his left thumb and transected the 
 
         left extensor tendon of the left thumb.
 
         
 
              That the treating physicians at the University of Iowa 
 
         Hospitals and Clinics, Orthopedic Department, said that claimant 
 
         did not sustain a permanent impairment or disability due to the 
 
         left thumb laceration.
 
         
 
              That the physicians at the university said that claimant's 
 
         loss of grip strength in the left hand was not due to the left 
 
         thumb injury, but rather was due to a median or ulnar nerve 
 
         compression neuropathy.
 
         
 
              That the expense for Dr. McClain was not for treatment, but 
 
         rather were for an evaluation in preparation for a claim for 
 
         workers' compensation benefits.
 
         
 
              That claimant's entitlement to an Iowa Code section 85.39 
 
         examination was not designated as a hearing issue on the hearing 
 
         assignment order.
 
         
 
              That Dr. McClain's examination is not sufficiently explained 
 
         and that his many amendments cloud, rather than clarify, what it 
 
         actually means.
 
         
 
         
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              WHEREFORE, based upon the evidence presented and the 
 

 
         
 
         
 
         
 
         GOODLEY V. TAMA MEAT PACKING CORP.
 
         PAGE   9
 
         
 
         principles of law previously discussed, 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 February 14, 
 
         1985, was the cause of permanent impairment or disability.
 
         
 
              That claimant did not prove that he is entitled to permanent 
 
         disability benefits.
 
         
 
              That the charges for Dr. McClain are not allowable as 
 
         medical treatment under Iowa Code section 85.27.
 
         
 
              That no determination is made as to whether claimant is 
 
         entitled to Dr. McClain's expenses as an Iowa Code section 85.39 
 
         examination for the reason that this was not designated as an 
 
         issue on the hearing assignment order.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              That no amounts are due from defendant to claimant.
 
         
 
              That defendant is to pay for the cost of the transcript, 
 
         which they voluntarily ordered; but that all other costs are 
 
         charged to claimant pursuant to Division of Industrial Services 
 
         Rule 343-4.33.
 
         
 
              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 27th day of October, 1988.
 
         
 
         
 
         
 
         
 
         
 
         
 
                                     WALTER R. McMANUS JR.
 
                                     DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         
 
         
 
         
 
         Copies to:
 
         
 
         Mr. Patrick Wilson
 
         Attorney at Law
 
         208 Masonic Temple
 
         Marshalltown, IA 50158
 
         
 
         Mr. W. C. Hoffman
 
         Attorney at Law
 
         1000 Des Moines Bldg
 
         Des Moines, IA 50309
 
 
 
 
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                              1402.40; 1803; 2602; 2502
 
                                              Filed October 27, 1988
 
                                              WALTER R. McMANUS, JR.
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         STEVEN GOODLEY,
 
         
 
              Claimant,                      File No.  787802
 
         
 
         vs.                              A R B I T R A T I O N
 
         
 
         TAMA MEAT PACKING CORP.             D E C I S I O N
 
         
 
              Employer,
 
              Self-Insured,
 
              Defendant.
 
         
 
         
 
         
 
         1402.40; 1803; 2602
 
         
 
              Claimant did not sustain the burden of proof by a 
 
         preponderance of the evidence that his left thumb laceration was 
 
         the cause of any permanent disability or impairment.
 
         
 
         2502
 
         
 
              Claimant was not entitled to reimbursement for an 
 
         independent medical examination and mileage for it, because this 
 
         issue was not discussed at the prehearing conference and not 
 
         designated as a hearing issue on the hearing assignment order.