BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         DOUGLAS G. MUNDEN,
 
         
 
              Claimant,                            File No. 800797
 
         
 
         vs.                                    A R B I T R A T I O N
 
         
 
         BIL MAR FOODS OF IOWA, INC.,              D E C I S I O N
 
         
 
              Employer,                               F I L E D
 
         
 
         and                                         JUN 22 1989
 
         
 
         AMERICAN MOTORISTS INSURANCE,      IOWA INDUSTRIAL COMMISSIONER
 
         COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              This is a proceeding in arbitration brought by Douglas G. 
 
         Munden, claimant, against Bil Mar Foods of Iowa, Inc., employer 
 
         (hereinafter referred to as Bil Mar), and American Motorists 
 
         Insurance Company, insurance carrier, defendants, for workers' 
 
         compensation benefits as a result of an alleged injury on June 
 
         17, 1985.  On October 25, 1988, 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 of this case at the time of hearing.  Oral testimony 
 
         was received during the hearing from claimant and Dale Carver.  
 
         The exhibits received into the evidence at the hearing are listed 
 
         in the prehearing report except for exhibit 5 which was excluded 
 
         at hearing.
 
         
 
              According to the prehearing report, the parties have 
 
         stipulated to the following matters:
 
         
 
              1.  On June 17, 1985, claimant received an injury which 
 
         arose out of and in the course of his employment with Bil Mar.
 
         
 
              2.  The extent of claimant's entitlement to healing period 
 
         benefits consists of a period of time from July 10, 1985, through 
 
         November 5, 1985, a total of 17 weeks.
 
         
 
              3.  The work injury is a cause of permanent disability and 
 
         this disability is a scheduled member disability to the hand.
 
         
 
              4.  If permanent disability benefits are awarded, they shall 
 
                                                
 
                                                         
 
         begin as of January 1, 1986.
 
         
 
              5.  Claimant's rate of weekly compensation for this injury 
 
         is $118.82.
 
         
 
                                    ISSUES
 
         
 
              The parties submitted the following issues for determination 
 
         in this proceeding:
 
         
 
               I.  The extent of claimant's entitlement to weekly benefits 
 
         for permanent disability; and,
 
         
 
              II.  The extent of claimant's entitlement to medical 
 
         benefits.
 
         
 
                           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 received 
 
         contained in the following statement should be viewed as 
 
         preliminary findings of fact.
 
         
 
              Claimant testified that he began to experience pain and 
 
         swelling in his wrists and hands while working as a meat packer 
 
         for Bil Mar.  Claimant states that he was assigned to pulling 
 
         turkey breasts on a repetitive basis.  Claimant said that the 
 
         plant nurse wrapped his wrists daily.  Bil Mar management 
 
         testified that all of their meat packing employees are wrapped 
 
         daily to prevent injury.  They added that claimant had been 
 
         assigned to perform this work for only a brief period of time 
 
         before experiencing problems.  They contended that it was not 
 
         unusual for new employees in the breast pulling jobs to 
 
         experience these programs for a temporary period of time until 
 
         their bodies become adjusted to the work.  Company records also 
 
         indicate that claimant told the plant doctor during his 
 
         preemployment physical that he had arthritis problems in his 
 
         hands in previous meat packing employment.  At the hearing, 
 
         claimant denied having any prior hand problems before the Bil Mar 
 
         employment and states that he was in good health when he 
 
         started.
 
         
 
              Claimant first sought treatment for his hand trouble while 
 
         working for Bil Mar from a company authorized physician, Mark 
 
         Schultz, D.O.  Dr. Schultz diagnosed carpal tunnel syndrome and 
 
         prescribed use of a wrist splint and medication.  Claimant also, 
 
         at that time, complained to Dr. Schultz of right shoulder and 
 
         elbow problems and neck pain.  Dr. Schultz treated claimant until 
 
         mid-July 1985, when he referred claimant to J. D. Fellows, M.D., 
 
         an orthopedic surgeon.  Dr. Fellows likewise diagnosed carpal 
 
         tunnel syndrome in the right wrist and initially attempted 
 
         nonevasive therapy and steroid injections to treat this problem. 
 
                                                
 
                                                         
 
         However, eventually Dr. Fellows performed in September 1985, a 
 
         surgical carpal tunnel release on the right hand after electrical 
 
         studies revealed a mild nerve compression.  In October 1985, 
 
         claimant complained to Dr. Fellows of generalized right sided 
 
         pain in the arms, shoulders and right chest wall which Dr. 
 
         Fellows attributed to functional causes.  In December 1985, 
 
         claimant still complained of neck pain and he was referred by Dr. 
 
         Fellows to Arnis B. Grundberg, M.D., for evaluation.  Dr. 
 
         Grundberg found both residual right carpal tunnel syndrome and 
 
         cervical radiculopathy following his examination of claimant.  
 
         Claimant was then referred by Dr. Fellows to A. Kleider, M.D., a 
 
         neurosurgeon, who, in turn, referred claimant to B. E. 
 
         Krysztofiak, M.D., for electrical testing.  From this testing, 
 
         Dr. Kleider concluded that claimant had a C7 cervical 
 
         radiculopathy.  A myelogram was then performed by Dr. Kleider 
 
         which ruled out a disc problem in the upper spine.  Dr. 
 
         Krysztofiak recommended physical therapy for the right sided 
 
         pain.  Testing by Dr. Krysztofiak indicated that claimant had no 
 
         residual compression from right carpal tunnel syndrome.
 
         
 
              Early in 1986, claimant began receiving chiropractic care 
 
         from Rex J. Jones, D.C.  Dr. Jones attributed claimant's problems 
 
         to recurrent carpal tunnel syndrome and expressed an opinion that 
 
         claimant was in need of further decompression surgery.  He also 
 
         diagnosed residual causalgia or sympathetic reflex peripheral 
 
         neuropathy.  Dr. Jones did not explain the nature of any of these 
 
         conditions in his reports.  What conditions or area of claimant's 
 
         body actually received chiropractic manipulation and supportive 
 
         therapy from Dr. Jones is not clear in the records and was not 
 
         explained by claimant in his testimony or in the file from Dr. 
 
         Jones submitted into evidence.  In March 1986, Dr. Jones reported 
 
         that he believed claimant's disability is greater than his 
 
         impairment rating due to claimant's low education and limited 
 
         employment background.  In July 1986, Dr. Jones informed 
 
         claimant's attorney that further surgery of claimant's carpal 
 
         tunnel syndrome was needed to prevent future damage.
 
         
 
              On April 4, 1986, claimant's attorney received a letter from 
 
         a claim representative of defendant insurance carrier stating 
 
         that the carrier rejected the claim that claimant's neck and 
 
         right upper extremity problems were work related and denied 
 
         payment of the bills submitted, including those from the Marian 
 
         Health Center and the testing bills by Drs. Kleider and 
 
         Krysztofiak.
 
         
 
              In December 1986, claimant was last seen by Dr. Fellows who 
 
         noted continued complaints of pain in both hands and extremities 
 
         which radiated into the shoulders and neck.  Dr. Fellows, at that 
 
         time, concluded that claimant had no permanent neurological 
 
         disorder from carpal tunnel syndrome.  Dr. Fellows then 
 
         prescribed treatment for the right sided pain in the form of 
 
         physical therapy from K. Van Wyk, LPT, which claimant received in 
 
         December 1986 and January 1987.  In October 1987, Dr. Fellows 
 
         reported that it did not appear to him that claimant had 
 
         permanent neurological damage from carpal tunnel syndrome.
 
                                                
 
                                                         
 
         
 
              In May 1987, Steven L. Wolfe, M.D., speciality, if any, 
 
         unknown, reported that he likewise diagnosed carpal tunnel 
 
         syndrome but ruled out from the myelogram study a higher lesion 
 
         in claimant's neck.  He could not find causal connection of 
 
         claimant's original problems to his current complaints in both 
 
         hands, shoulders and headaches.
 
         
 
              In September 1987, claimant was evaluated by Joel Cotton, 
 
         M.D., a neurologist.  Dr. Cotton could not find evidence of any 
 
         disability, neurological or otherwise.  This doctor also did not 
 
         feel that further treatment or chiropractic care was needed.  In 
 
         June 1988, claimant was evaluated by John J. Dougherty, M.D., an 
 
         orthopedic surgeon.  Dr. Dougherty agreed with Dr. Cotton and 
 
         could not find anything significant in claimant's right hand.  He 
 
         could not relate any of claimant's neck or shoulder problems to 
 
         the carpal tunnel syndrome or to claimant's employment at Bil 
 
         Mar. Dr. Dougherty stated that claimant might be entitled to no 
 
         more than one to two percent permanent partial impairment.
 
         
 
              Claimant testified that he did not receive any relief from 
 
         treatment to date.  He testified that he has lost right hand grip 
 
         strength and demonstrated that he could only partially close his 
 
         right hand and cannot make a fist.  He states that he has pain 
 
         into the neck from driving and right leg and low back pain as 
 
 
 
                           
 
                                                         
 
         well.  He complains that he still has night pain and can only 
 
         sleep three hours a night.  He said that he continues to receive 
 
         chiropractic care but that this treatment provides only temporary 
 
         relief.  Claimant is currently working in another packinghouse as 
 
         a forklift truck driver.
 
         
 
                      APPLICABLE LAW AND ANALYSIS
 
         
 
               I.  Claimant stipulated that the type of permanent 
 
         disability in this case is a scheduled member disability to the 
 
         hand.  The issue of whether the injury may or may not have 
 
         extended beyond the hand was only academic given this 
 
         stipulation.
 
         
 
              Permanent partial disabilities are classified as either 
 
         scheduled or unscheduled.  A specific scheduled disability is 
 
         evaluated by the functional method; the industrial method is used 
 
         to evaluate an unscheduled disability.  Martin v. Skelly Oil Co., 
 
         252 Iowa 128, 133, 106 N.W.2d 95, 98 (1960); Graves v. Eagle Iron 
 
         Works, 331 N.W.2d 116 (Iowa 1983); Simbro v. DeLong's Sportswear, 
 
         332 N.W.2d 886, 997 (Iowa 1983).  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).
 
         
 
              From the evidence submitted, it is found as a matter of fact 
 
         that the work injury was a cause of a 1.5 percent loss in the use 
 
         of the hand.  Claimant was most recently evaluated by Dr. 
 
         Dougherty who indicated that claimant's disability does not 
 
         exceed this amount.  A failure of electrical studies to 
 
         objectively demonstrate nerve compression is not necessary to a 
 
         permanent disability award in the experience of this agency.  
 
         Claimant's testimony, as to the extent of his hand problems, 
 
         could not be fully accepted.  Claimant did not appear credible at 
 
         hearing and his testimony concerning his past hand problems were 
 
         inconsistent with prior statements made to physicians in this 
 
         case. Consequently, there was a heavy reliance by the undersigned 
 
         upon the medical expert testimony.  Based upon the above finding 
 
         of impairment, claimant is entitled as a matter of law to 2.85 
 
         weeks of permanent partial disability benefits under Iowa Code 
 
         section 85.34(2)(1) which is 1.5 percent of 190 weeks, the 
 
         maximum allowable number of weeks for an injury to the hand in 
 
         that subsection.  According to the prehearing report, claimant 
 
         has already been paid an excess of this amount and no further 
 
         weekly benefits can be awarded.
 
         
 
              Pursuant to Iowa Code section 85.27, claimant is entitled to 
 
         payment of reasonable medical expenses incurred for treatment of a 
 
                                                
 
                                                         
 
         work injury.  However, claimant is entitled to an order of 
 
         reimbursement only if claimant has paid those expenses.  
 
         Otherwise, claimant is entitled to an order directing the 
 
         responsible defendants to make such payments.  See Krohn v. State, 
 
         420 N.W.2d 463 (Iowa 1988).
 
         
 
              Claimant has shown entitlement to payment of the entire cost 
 
         of the testing of Dr. Kleider and Dr. Krysztofiak.  Defendants 
 
         have no right to refuse to pay for the cost of diagnostic testing 
 
         performed by a physician or a physician to which claimant was 
 
         referred by an authorized physician even where the results of the 
 
         testing show no causal connection to the injury.  See Butcher v. 
 
         Valley Sheet Metal, IV Iowa Industrial Commissioner Report 49 
 
         (Appeal Decision 1983).  Likewise, defendants have no right to 
 
         refuse to pay for treatment prescribed by an authorized physician 
 
         absent clear notice to the claimant that such treatment is not 
 
         authorized.  Notice to claimant's attorney that any further 
 
         treatment for neck or arm pain would not be paid was not given 
 
         until April 4, 1986, in this case.  Failure to pay for previously 
 
         authorized treatment violates the principles of equitable 
 
         estoppel.  Such principles have been applied by this agency in 
 
         other issues such as statute of limitations.  See Paveglio v. 
 
         Firestone Tire & Rubber Co., 167 N.W.2d 636 (Iowa 1969). 
 
         Therefore, defendants will be ordered to pay for the electrical 
 
         and myelogram testing by referred physicians.  The physical. 
 
         therapy ordered by Dr. Fellows will not be ordered paid as it 
 
         involved treatment of right arm and neck pain after notice was 
 
         given that such treatment was not authorized.  Also, these 
 
         conditions are not found to be work related according to the 
 
         greater weight of evidence in this case.
 
         
 
              With reference to the chiropractic care received by claimant 
 
         in this case, although defendants have denied the causal 
 
         connection of such care to the work injury and do not have the 
 
         right to chose the.care, the undersigned cannot determine from 
 
         the records what condition was actually treated by Dr. Jones.  If 
 
         it were for right sided pain involving the neck and right arm, 
 
         such treatment is not the responsibility of defendants as those 
 
         conditions are not found to be work related in this decision. 
 
         Therefore, without a showing of what chiropractic treatment 
 
         modalities were given by Dr. Jones for claimant's right carpal 
 
         tunnel syndrome, it cannot be assumed that such care involved 
 
         right carpal tunnel syndrome and the claim for chiropractic care 
 
         must therefore be denied.
 
         
 
              Given claimant's award for medical benefits in this case, 
 
         costs will be assessed against defendants.
 
         
 
         FINDINGS OF FACT
 
         
 
              1.  The work injury of June 17, 1985, was a cause of a 1.5 
 
         percent permanent partial impairment to the right hand.  Claimant 
 
         continues to experience mild carpal tunnel syndrome problems in 
 
         the right hand following carpal tunnel release surgery.  Claimant 
 
         had problems with his hands prior to his employment at Bil Mar.
 
                                                
 
                                                         
 
         
 
              2.  The following medical expenses are fair and reasonable 
 
         and were incurred by claimant for reasonable and necessary 
 
         treatment of his carpal tunnel condition caused by the work 
 
         injury of June 17, 1985:
 
         
 
             Marian Health Center    1-07-86    $332.00    Ex. 3
 
             Marian Health Center    1-15-86     624.50    Ex. 1
 
             B. Krysztofiak, M.D.    1-28-86      90.00    Ex. 6
 
             Sioux City
 
             Neurosurgery, P.C.,    1/15-16/86   225.00    Ex. D
 
         
 
         No causal connection could be found from the bills from Kenneth 
 
         Van Wyk, LPT, (Ex. C) and those of R. J. Jones, D.C., (Ex. 4).
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              Claimant has established under law entitlement to the 
 
         medical benefits awarded below.  Claimant failed to establish 
 
         entitlement to additional disability benefits.
 
         
 
                                ORDER
 
         
 
              1.  Defendants shall pay the medical expenses found causally 
 
         connected in finding number 2 above.  Claimant shall be 
 
         reimbursed if he has paid any of these expenses.  Otherwise, 
 
         defendants shall pay the provider directly.
 
         
 
              2.  Defendants shall receive credit for previous payments of 
 
         benefits under a non-occupational group insurance plan if 
 
         applicable and appropriate under Iowa Code section 85.38(2).
 
         
 
              3.  Defendants shall pay the costs of this action pursuant 
 
         to Division of Industrial Services Rule 343-4.33.
 
         
 
              4.  Defendants 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.
 
         
 
         
 
              Signed and filed this 22nd day of June, 1989.
 
         
 
         
 
         
 
         
 
         
 
         
 
                                            LARRY P. WALSHIRE
 
                                            DEPUTY INDUSTRIAL 
 
                                            COMMISSIONER
 
         
 
                                                
 
                                                         
 
         Copies To:
 
         
 
         Mr. David A. Scott
 
         Attorney at Law
 
         407 Grand Ave.
 
         P. 0. Box 3046
 
         Spencer, Iowa  51301
 
         
 
         Mr. Thomas M. Plaza
 
         Attorney at Law
 
         200 Home Federal Bldg.
 
         P. 0. Box 3086
 
         Sioux City, Iowa  51102
 
         
 
         
 
         
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                
 
 
            
 
 
 
 
 
        
 
 
 
                                                 51803; 2501
 
                                                 Filed June 22, 1989
 
                                                 LARRY P. WALSHIRE
 
         
 
                BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         DOUGLAS G. MUNDEN,
 
         
 
              Claimant,
 
                                                      File No. 800797
 
         vs.
 
                                                   A R B I T R A T I 0 N
 
         BIL MAR FOODS OF IOWA, INC.,
 
                                                      D E C I S I 0 N
 
              Employer,
 
         
 
         and
 
         
 
         AMERICAN MOTORISTS INSURANCE,
 
         COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         51803 - Non-precedential - extent of permanent partial 
 
         disability
 
         
 
              Claim for additional disability benefits denied as claimant 
 
         was paid weekly benefits in excess of his entitlement.
 
         
 
         2501 - Medical benefits, employer duty to furnish - duty to pay
 
         
 
              Held that employers have no right to deny payment for care 
 
         or diagnostic proceedings given upon referral by an authorized 
 
         physician absent a notice to claimant that such care is not 
 
         authorized even if the care or diagnostic procedures are later 
 
         found not to be causally connected to the injury.  Principles of 
 
         equitable estoppel are applicable to such situations.
 
         
 
         
 
         
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            RANDY AXIOTIS,                :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :         File No. 800819
 
            NORTHERN CEDAR SERVICE CO.,   :
 
                                          :      A R B I T R A T I O N
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            AETNA CASUALTY & SURETY,      :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding in arbitration upon the petition 
 
            of claimant, Randy Axiotis, against his employer, Northern 
 
            Cedar Service Company, and its insurance carrier, Aetna 
 
            Casualty & Surety Company, defendants.  The case was heard 
 
            on August 2, 1990, in Des Moines, Iowa at the office of the 
 
            industrial commissioner.  The record consists of the 
 
            testimony of claimant.  Additionally, the record consists of 
 
            joint exhibits 1-6 and administrative notice was taken of 
 
            the official file, including rate.
 
            
 
                                      issues
 
            
 
                 The issues to be determined are:  1) the nature and 
 
            extent of claimant's permanent disability; and, 2) the 
 
            appropriate rate for weekly benefits.
 
            
 
                                 findings of fact
 
            
 
                 The deputy, having heard the testimony and considered 
 
            all the evidence, finds:
 
            
 
                 Claimant is 29 years old, married and has two children.  
 
            He has held a variety of positions.  Over a five year period 
 
            he has held approximately 10 positions, all of which have 
 
            been in the $5.00 per hour range.  Most of the positions 
 
            have been in construction or in operating heavy equipment 
 
            and trucks.
 
            
 
                 On August 2, 1985, claimant was involved in a work 
 
            related injury.  He was driving a grain truck for 
 
            defendant-employer.  While turning a corner, the load 
 
            shifted in the truck and the truck capsized.  Claimant was 
 
            thrown in the cab.  He hit his body inside the truck 
 
            injuring his chest and lower back.
 
            
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
                 Claimant sought medical attention from S. J. Laaveg, 
 
            M.D., who treated claimant conservatively.  After 
 
            conservative treatment, Dr. Laaveg rated claimant as having 
 
            a three percent permanent partial impairment rating.  The 
 
            physician also restricted claimant from carrying more than 
 
            50 pounds, from lifting from the floor 35 pounds and from 
 
            prolonged sitting or standing of over three to four hours at 
 
            any one time.
 
            
 
                 Because claimant continued to experience difficulties 
 
            with his back, defendant-insurance carrier referred claimant 
 
            to William R. Boulden, M.D., an orthopedic surgeon.  As a 
 
            result of Dr. Boulden's recommendations, an anterior lumbar 
 
            interbody fusion was performed in July of 1986.  A few weeks 
 
            later, a level two decompression laminectomy was performed.  
 
            Claimant participated in a work hardening program subsequent 
 
            to his two surgeries.  Dr. Boulden restricted claimant from 
 
            engaging in bending, stooping, lifting, or twisting his 
 
            back.  Claimant was placed in a medium to heavy job 
 
            category.  Dr. Boulden assessed a 20 percent permanent 
 
            partial impairment rating.
 
            
 
                 For a matter unrelated to this proceeding, claimant was 
 
            incarcerated at Rockwell City.  This took place from July 7, 
 
            1987 until May 29, 1988.
 
            
 
                 After his incarceration, claimant then obtained various 
 
            jobs in industry and construction.  At the time of the 
 
            hearing, claimant had been employed for one month for 
 
            Anderson Construction.  Claimant had been hired as a laborer 
 
            for $7.00 per hour.
 
            
 
                                conclusions of law
 
            
 
                 This division has jurisdiction of the subject matter of 
 
            the proceeding and the respective parties.  The fighting 
 
            issue in this case is the nature and extent of claimant's 
 
            disability, if any.
 
            
 
                 Industrial disability or loss of earning capacity is a 
 
            concept that is quite similar to impairment of earning 
 
            capacity, an element of damage in a tort case.  Impairment 
 
            of physical capacity creates an inference of lessened 
 
            earning capacity.  The basic element to be determined, 
 
            however, is the reduction in value of the general earning 
 
            capacity of the person, rather than the loss of wages or 
 
            earnings in a specific occupation.  Post-injury earnings 
 
            create a presumption of earning capacity.  The earnings are 
 
            not synonymous with earning capacity and the presumption may 
 
            be rebutted by evidence showing the earnings to be an 
 
            unreliable indicator.  Carradus v. Lange, 203 N.W.2d 565 
 
            (Iowa 1973); Holmquist v. Volkswagon of America, Inc., 261 
 
            N.W.2d 516 (Iowa App. 1977) A.L.R.3d 143; Michael v. 
 
            Harrison County, Thirty-fourth Biennial Report of the 
 
            Industrial Commissioner 218 (1979); 2 Larson Workmen's 
 
            Compensation Law, sections 57.21 and 57.31.
 
            
 
                 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 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            the injured employee's age, education, qualifications, 
 
            experience and inability to engage in employment for which 
 
            he is fitted.  Olson v. Goodyear Service Stores, 255 Iowa 
 
            1112, 125 N.W.2d 251 (1963).  Barton v. Nevada Poultry, 253 
 
            Iowa 285, 110 N.W.2d 660 (1961).
 
            
 
                 A finding of impairment to the body as a whole found by 
 
            a medical evaluator does not equate to industrial disabil
 
            ity.  This is so as impairment and disability are not syn
 
            onymous.  Degree of industrial disability can in fact be 
 
            much different than the degree of impairment because in the 
 
            first instance reference is to loss of earning capacity and 
 
            in the latter to anatomical or functional abnormality or 
 
            loss.  Although loss of function is to be considered and 
 
            disability can rarely be found without it, it is not so that 
 
            a degree of industrial disability is proportionally related 
 
            to a degree of impairment of bodily function.
 
            
 
                 Factors to be considered in determining industrial dis
 
            ability include the employee's medical condition prior to 
 
            the injury, immediately after the injury, and presently; the 
 
            situs of the injury, its severity and the length of healing 
 
            period; the work experience of the employee prior to the 
 
            injury, after the injury and potential for rehabilitation; 
 
            the employee's qualifications intellectually, emotionally 
 
            and physically; earnings prior and subsequent to the injury; 
 
            age; education; motivation; functional impairment as a 
 
            result of the injury; and inability because of the injury to 
 
            engage in employment for which the employee is fitted.  Loss 
 
            of earnings caused by a job transfer for reasons related to 
 
            the injury is also relevant.  These are matters which the 
 
            finder of fact considers collectively in arriving at the 
 
            determination of the degree of industrial disability.
 
            
 
                 There are no weighting guidelines that indicate how 
 
            each of the factors are to be considered.  There are no 
 
            guidelines which give, for example, age a weighted value of 
 
            ten percent of the total value, education a value of fifteen 
 
            percent of total, motivation - five percent; work experience 
 
            - thirty percent, etc.  Neither does a rating of functional 
 
            impairment directly correlate to a degree of industrial 
 
            disability to the body as a whole.  In other words, there 
 
            are no formulae which can be applied and then added up to 
 
            determine the degree of industrial disability.  It therefore 
 
            becomes necessary for the deputy or commissioner to draw 
 
            upon prior experience, general and specialized knowledge to 
 
            make the finding with regard to degree of industrial dis
 
            ability.  See Peterson v. Truck Haven Cafe, Inc., (Appeal 
 
            Decision, February 28, 1985);  Christensen v. Hagen, Inc., 
 
            (Appeal Decision, March 26, l985).
 
            
 
                 For example, a defendant employer's refusal to give any 
 
            sort of work to a claimant after he suffers his affliction 
 
            may justify an award of disability.  McSpadden v. Big Ben 
 
            Coal Co., 288 N.W.2d 181 (Iowa 1980).
 
            
 
                 In the case before this division, claimant is 
 
            functionally impaired.  Dr. Boulden, after claimant's two 
 
            back surgeries, has assessed a 20 percent functional 
 
            impairment rating to claimant.  Dr. Boulden has also imposed 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            permanent restrictions on claimant.  However, claimant may 
 
            still perform work in the light, medium, or heavy 
 
            categories.
 
            
 
                 Claimant has sustained a loss of earning capacity.  He 
 
            is still capable of handling jobs in the heavy work cat
 
            egory.  On the date of the hearing, claimant was able to 
 
            perform duties as a construction laborer for more money than 
 
            he had earned while working for defendant-employer.  
 
            Claimant is also capable of factory work.
 
            
 
                 Claimant's prior work record has been sporadic, at 
 
            best.  He has had a history of multiple jobs for only short 
 
            periods of time.  Many of his jobs have been temporary or 
 
            for only the duration of a project.  Claimant has also had a 
 
            history of unemployment.  There are breaks in his work 
 
            history where claimant has had no employment.
 
            
 
                 Subsequent to his work injury, claimant has been less 
 
            than motivated to engage in vocational rehabilitation.  He 
 
            has only minimally cooperated with Jack E. Reynolds, 
 
            vocational specialist.  Claimant is not interested in 
 
            obtaining his GED.  He is not interested in learning a 
 
            particular trade or pursuing the auto mechanic skills he has 
 
            obtained in Rockwell City.
 
            
 
                 Therefore, based upon the principles of law previously 
 
            cited, it is the determination of the undersigned that 
 
            claimant has a 25 percent permanent partial disability.
 
            
 
                 Section 85.34(1), Code of Iowa, provides that healing 
 
            period benefits are payable to an injured worker who has 
 
            suffered permanent partial disability until (1) he has 
 
            returned to work; (2) is medically capable of returning to 
 
            substantially similar employment; or (3) has achieved 
 
            maximum medical recovery.  The indus
 
            
 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            trial commissioner has recognized that healing period 
 
            benefits can be interrupted or intermittent.  Willis v. 
 
            Lehigh Portland Cement Co., Vol. 2-1, State of Iowa 
 
            Industrial Commissioner Decisions 485 (1984).
 
            
 
                 With respect to this case, claimant has been in the 
 
            healing period from August 2, 1985 through April 18, 1986 
 
            and from July 19, 1986 through April 24, 1987.  The healing 
 
            period consists of 77.143 weeks.  Claimant is entitled to 
 
            weekly compensation for the same period.
 
            
 
                 The final issue to address is the rate at which 
 
            claimant is to be compensated.  Claimant alleges he is to be 
 
            compensated at the gross weekly wage rate of $169.23 with 
 
            the weekly benefit rate of $117.04.  This is based on an 
 
            estimation of $2,200.00 for the 13 weeks prior to claimant's 
 
            injury by Rodney Kann, vice president of defendant-employer.
 
            
 
                 Defendants contend in their brief that claimant should 
 
            be paid as follows:
 
            
 
                                Calculation of Rate
 
            Randy Axiotis was employed at Northern Cedar from June 18, 
 
            1985 through August 2, 1985, or seven weeks.  Therefore, the 
 
            deputy must determine the amount the Claimant would have 
 
            earned had he been employed by Northern Cedar for the six 
 
            weeks preceding June 18, 1985.
 
            The Claimant's actual earnings during the seven weeks that 
 
            he was employed by Northern Cedar are detailed in Exhibit 
 
            No. "6".  The average weekly earnings of the Claimant at the 
 
            time of the injury, based on his seven weeks of actual 
 
            employment, were $139.65.  This average is based on the 
 
            following:
 
            
 
                     Period          Hours Worked          Earnings
 
            
 
                      6/18-7/21              42               $ 210.00
 
                       7/2-7/15              52                 260.00
 
                      7/16-7/29              77.5               387.50  
 
            *
 
                       7/30-8/2              24                 120.00
 
                                            195.5             $ 977.50
 
                                              -7                  -7  
 
                                             27.93            $ 139.65
 
            *  Two overtime hours included at straight time rather than 
 
            time and a half.
 
            The parties have stipulated that Randy Axiotis was married 
 
            with three exemptions at the time of the injury.  Therefore, 
 
            the appropriate rate of compensation using the benefit 
 
            schedule for 1985 is $99.13.
 
            The seven weeks of actual employment were typical and 
 
            indicative of the amount of work that would have been 
 
            available for the Claimant at Northern Cedar during the six 
 
            preceding weeks.  The Claimant testified that the summer of 
 
            1985 was rainy and, because the work of Northern Cedar 
 
            occurs outdoors, the laborers were not able to work full 
 
            40-hour weeks.  The Claimant testified that the hours he 
 
            worked during the 7-week period were consistent with the 
 
            hours worked by the other employees of Northern Cedar during 
 
            the two months prior to his employment.
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            The Claimant will no doubt argue that the rate should be 
 
            based on representations made by the Employer in the First 
 
            Report of Injury filed herein.  In Section 41 of the Report, 
 
            the Employer is asked to estimate what the Employee would 
 
            have earned if employed for 13 weeks.  Obviously, the 
 
            evidence presented at hearing should control rather than an 
 
            estimate made at the time of the injury.
 
            After reviewing the evidence, including exhibit 6, and after 
 
            taking administrative notice of the file with respect to 
 
            wage information, the undersigned determines that claimant's 
 
            weekly benefit rate is calculated as follows under section 
 
            85.36(7).  Claimant did not work the 13 weeks preceding his 
 
            injury.  He worked the following six weeks including the 
 
            week of his injury:
 
            
 
                 6-18 to 7-1         42 hours              $ 210.00
 
                  7-2 to 7-15        52  "                   260.00
 
                 7-16 to 7-29      77.5  "                   387.50 *
 
                 7-30 to 8-2         24  "                   120.00 
 
                                    195.5                  $ 977.50 
 
                                      7 weeks            7 = 139.65 
 
            gross
 
                                    27.93 hours worked           weekly 
 
            wages
 
                                          per week
 
            * (No overtime figured)
 
            
 
                 Using the Guide to Iowa Workers Compensation Claim 
 
            Handling, dated July 1, 1985, the appropriate weekly benefit 
 
            rate for a married individual with three exemptions is 
 
            $99.13 per week.  Claimant is entitled to be compensated at 
 
            this weekly benefit rate.
 
            
 
                           
 
            
 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            order
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 Defendants are to pay one hundred twenty-five (125) 
 
            weeks of permanent partial disability benefits at the rate 
 
            of ninety-nine and 13/l00 dollars ($99.13) per week for the 
 
            periods April 19, 1986 to July 18, 1986 and from April 25, 
 
            1987.
 
            
 
                 Defendants are to also pay healing period benefits for  
 
            seventy-seven and one-four-three (77.143) weeks from August 
 
            2, 1985 through April 18, 1986 and from July 19, 1986 
 
            through April 24, 1987.
 
            
 
                 Defendants shall receive credit for all benefits 
 
            previously paid and not credited.
 
            
 
                 Interest shall be paid pursuant to Iowa Code section 
 
            85.30.
 
            
 
                 Costs of the action shall be assessed to defendants 
 
            pursuant to rule 343 IAC 4.33.
 
            
 
                 Defendants shall file a claim activity report as 
 
            requested by this rule 343 IAC 3.1.
 
            
 
            
 
            
 
                 Signed and filed this ____ day of March, 1991.
 
            
 
            
 
            
 
            
 
            
 
                                          ______________________________               
 
            MICHELLE A. McGOVERN
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Robert W. Pratt
 
            Attorney at Law
 
            6959 University Ave
 
            Des Moines  IA  50311
 
            
 
            Ms. Lorraine J. May
 
            Attorney at Law
 
            4th Floor Equitable Bldg
 
            Des Moines  IA  50309
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                           1803
 
                           Filed March 13, 1991
 
                           MICHELLE A. McGOVERN
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            RANDY AXIOTIS, :
 
                      :
 
                 Claimant, :
 
                      :
 
            vs.       :
 
                      :         File No. 800819
 
            NORTHERN CEDAR SERVICE CO.,   :
 
                      :      A R B I T R A T I O N
 
                 Employer, :
 
                      :         D E C I S I O N
 
            and       :
 
                      :
 
            AETNA CASUALTY & SURETY, :
 
                      :
 
                 Insurance Carrier,  :
 
                 Defendants.    :
 
            ___________________________________________________________
 
            
 
            Claimant was awarded a 25% permanent partial disability for 
 
            his back injury.  Claimant was functionally impaired in the 
 
            amount of 20%.  Claimant had sustained some loss of earning 
 
            capacity.  Claimant was prohibited from engaging in 
 
            repetitive bending and twisting.  Claimant was not 
 
            especially motivated.  His prior work record was sporadic.  
 
            Claimant was able to perform as a construction laborer 
 
            subsequent to his surgery.
 
            
 
 
            
 
 
 
 
 
         
 
 
 
                     
 
         
 
                 BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         LEON MCNEAL,
 
         
 
              Claimant,                               File No. 800944
 
         
 
         vs.                                       A R B I T R A T I O N
 
         
 
         IOWA DEPARTMENT OF                           D E C I S I O N
 
         TRANSPORTATION,
 
         
 
              Employer,                                  F I L E D
 
         
 
         and                                            NOV 20 1989
 
         
 
         STATE OF IOWA,                             INDUSTRIAL SERVICES
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
                                INTRODUCTION
 
         
 
              This is a proceeding in arbitration brought by Leon McNeal 
 
         against the Iowa Department of Transportation and state of Iowa 
 
         wherein claimant seeks compensation for permanent partial 
 
         disability resulting from an accident and injuries that occurred 
 
         on July 24, 1985.
 
         
 
              The case was heard and fully submitted at Davenport, Iowa on 
 
         March 27, 1989.  The record in this proceeding consists of 
 
         testimony from the claimant, jointly offered exhibits 1 through 
 
         25 and defendants' exhibits A and B.  The only issue for 
 
         determination is the extent of claimant's entitlement to 
 
         compensation for permanent partial disability.  It should be 
 
         noted that the claimant had a third party claim based upon the 
 
         accident from which his injuries arose, which claimant settled 
 
         for $12,500. Of that amount, $6,148.11 was paid to the state of 
 
         Iowa in satisfaction of its lien for workers' compensation 
 
         benefits which had been paid in the total amount of $8,197.48.  
 
         The difference between the two figures appears to represent legal 
 
         costs incurred in obtaining the third party recovery.
 
         
 
                           SUMMARY OF EVIDENCE
 
         
 
              The following is a summary of evidence presented in this 
 
         case.  Only the evidence most pertinent to this decision is 
 
         discussed, but all of the evidence received at the hearing was 
 
         considered in arriving at this decision.  Conclusions about what 
 
         the evidence offered may show are inevitable with any 
 
         summarization.  The conclusions in the following summary should 
 
         be considered to be preliminary findings of fact.
 
                                                
 
                                                         
 
         
 
              Leon McNeal is a 39-year-old married man who lives at 
 
         Davenport, Iowa.  He has a tenth grade education, but has taken 
 
         some college courses since the accident which is the subject of 
 
         this proceeding.  In 1984, he took a semi-truck driving course.  
 
         He has also had other training relative to jobs he has held.
 
         
 
              Claimant's prior work history included approximately 15 
 
         years working as a machine operator in factories.  He has worked 
 
         as a cook, a mental health officer at the Iowa Security Medical 
 
         Facility, and as an activities person in a home.
 
         
 
              Claimant had been laid off from his regular employer, John 
 
         Deere, and obtained employment with the Iowa Department of 
 
         Transportation.  Claimant's job title was equipment operator I.  
 
         He performed a number of activities, however, including work with 
 
         hand tools such as shovels, jackhammers and wrenches in addition 
 
         to actually operating pieces of equipment.
 
         
 
              On July 24, 1985, claimant was riding in a truck on the 
 
         shoulder of Interstate 80 picking up debris when the truck was 
 
         struck in the rear by another vehicle.  Claimant was thrown from 
 
         the truck.
 
         
 
              Claimant was taken by ambulance to St. Lukes Hospital in 
 
         Davenport, Iowa.  The ambulance attendants indicated that he did 
 
         not seem to be seriously injured (exhibit 4).  While 
 
         hospitalized, various diagnostic tests were conducted.  A CT scan 
 
         showed evidence of injury to the posterior margin of claimant's 
 
         left kidney.  X-rays did not identify any injury to claimant's 
 
         bones or other tissues.  Claimant was discharged on July 26, 1985 
 
         (exhibit 5a).
 
         
 
              Claimant underwent a course of treatment initially under the 
 
         direction of John A. Stoner, M.D., and then came to be treated by 
 
         Ralph H. Congdon, M.D.  Claimant was treated conservatively and 
 
         was administered physical therapy.  With the passage of time, his 
 
         complaints and symptoms were reduced and claimant was released to 
 
         return to work without restrictions effective December 16, 1985 
 
         (exhibit B).
 
         
 
              Upon returning to work, claimant's symptoms increased and 
 
         Dr. Congdon placed claimant back into physical therapy.  
 
         Claimant's symptoms again improved, but, according to claimant, 
 
         never completely resolved.  Claimant remained employed by the 
 
         Department of Transportation until November 13, 1986 when an 
 
         incident while he was working under a truck allegedly caused pain 
 
         in his hands and arms.  Claimant has not since been released to 
 
         return to work or sought employment.
 
         
 
              Claimant is afflicted with hypertension, diabetes and renal 
 
         insufficiency.  The primary treatment for those conditions has 
 
         been received at the University of Iowa Hospitals and Clinics.  A 
 
         physician indicated that the accident of July 24, 1985 did not 
 
         produce claimant's kidney condition.  It was believed that the 
 
                                                
 
                                                         
 
         kidney condition resulted from claimant's hypertension (exhibits 
 
         6d and 17b).
 
         
 
              Michael J. Finan, M.D., a rheumatologist, has characterized 
 
         claimant as having chronic pain syndrome which has its origin in 
 
         soft tissue injury (exhibit 11c).  James H. Hahn, M.D., has also 
 
         characterized claimant as having chronic pain syndrome with 
 
         diffuse myalgias (exhibits 14c and d).  Claimant has been 
 
         evaluated by neurologist Daniel B. Johnson, M.D., who found no 
 
         specific neurological abnormalities, but indicated that he 
 
         suspected claimant had posttraumatic syndrome with chronic pain 
 
         (exhibit 18d).
 
         
 
              Claimant has been examined by psychiatrist D. V. Domingo, 
 
         M.D., who has indicated that claimant has mild depression with a 
 
         borderline IQ as well as his various physical afflictions 
 
         (exhibit 23d).
 
         
 
              Claimant was evaluated by Scott B. Neff, D.O., on July 21, 
 
         1986.  Dr. Neff indicated that claimant has sore muscles, but no 
 
         significant impairment or disability (exhibit 10).
 
         
 
              Claimant's primary treating physician has been orthopaedic 
 
         surgeon Ralph H. Congdon, M.D.  Dr. Congdon issued a report on 
 
         September 16, 1986 in which he stated that claimant has a seven 
 
         percent impairment of the whole body based upon loss of motion 
 
         which has resulted from the injuries that were sustained on July 
 
         24, 1985 (exhibit 1f).  When subsequently deposed, Dr. Congdon 
 
         confirmed that rating (exhibit 1g, page 16).  When deposed, Dr. 
 
         Congdon was no longer actively treating claimant's back.  He 
 
         expressed the opinion that claimant's back condition had 
 
         plateaued in approximately September of 1986 (exhibit 1g, page 
 
         35).  Dr. Congdon stated that his impairment rating had been made 
 
         in accordance with the AMA guides (exhibit 1g, page 48).
 
         
 
              Claimant testified that he has not had a single day without 
 
         pain since the accident of July 24, 1985.  He stated that his 
 
         right leg is now becoming more difficult to manage and that his 
 
         body is in an overall weakened condition.  Claimant stated that 
 
         the pattern of his pain is that it becomes intense over the back 
 
         of his head, that muscles tighten in his neck, shoulder blades, 
 
         mid-back and down his right leg.  He stated that his range of 
 
         neck motion is reduced and that if he tries to extend the range 
 
         of motion, he develops tremendous headaches.  Claimant testified 
 
         that he had been a good athlete when he was in school and 
 
         formerly played ball with his children, but that he is no longer 
 
         able to perform that type of activity.
 
         
 
              Claimant attributes his depression to his continuing pain 
 
         which none of the physicians have been able to successfully 
 
         treat.
 
         
 
                         APPLICABLE LAW AND ANALYSIS
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
                                                
 
                                                         
 
         the evidence that the injury of July 24, 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. 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 732 (1955).  The 
 
         question of causal connection is essentially within the domain of 
 
         expert testimony.  Bradshaw v. Iowa Methodist Hospital, 251 Iowa 
 
         375, 101 N.W.2d 167 (1960).
 
         
 
              However, expert medical evidence must be considered with all 
 
         other evidence introduced bearing on the causal connection.  
 
         Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion of experts need 
 
         not be couched in definite, positive or unequivocal language.  
 
         Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974).  However, 
 
         the expert opinion may be accepted or rejected, in whole or in 
 
         part, by the trier of fact.  Id. at 907.  Further, the weight to 
 
         be given to such an opinion is for the finder of fact, and that 
 
         may be affected by the completeness of the premise given the 
 
         expert and other surrounding circumstances.  Bodish, 257 Iowa 
 
         516, 133 N.W.2d 867.  See also Musselman v. Central Telephone 
 
         Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
              Industrial disability or loss of earning capacity is a 
 
         concept that is quite similar to impairment of earning capacity, 
 
 
 
                         
 
                                                         
 
         an element of damage in a tort case.  Impairment of physical 
 
         capacity creates an inference of lessened earning capacity.  The 
 
         basis element to be determined, however, is the reduction in 
 
         value of the general earning capacity of the person, rather than 
 
         the loss of wages or earnings in a specific occupation.  
 
         Post-injury earnings create a presumption of earning capacity.  
 
         The earnings are not synonymous with earning capacity and the 
 
         presumption may be rebutted by evidence showing the earnings to 
 
         be an unreliable indicator.  Carradus v. Lange, 203 N.W.2d 565 
 
         (Iowa 1973); Holmquist v. Volkswagon of America, Inc., 261 N.W.2d 
 
         516 (Iowa App. 1977) A.L.R.3d 143; Michael v. Harrison County, 
 
         34th Biennial Report, 218 (1979); 2 Larson Workmen's Compensation 
 
         Law, sections 57.21 and 57.31.
 
         
 
              Dr. Congdon has rated claimant as having a seven percent 
 
         impairment while Dr. Neff has found none.  They are the only two 
 
         physicians who have provided impairment ratings.  Claimant was 
 
         released to return to work without restrictions.  However, from 
 
         reading Dr. Congdon's notes, it appears that claimant was advised 
 
         to avoid activities which worsened his symptoms.  Claimant was 
 
         involved in a serious accident.  He was subjected to a quite 
 
         significant impact.  Even Dr. Neff, who examined claimant 
 
         approximately a year after the accident, did not dispute that 
 
         claimant had continuing soreness and discomfort.  The consensus 
 
         of opinion among the physicians who have treated claimant for his 
 
         back complaints is that he has developed chronic pain.
 
         
 
              The objective testing which has been done with regard to 
 
         claimant's back has failed to identify any particular 
 
         abnormality. The characterization of the injury as a soft tissue 
 
         injury or chronic muscle strain is accepted as being essentially 
 
         correct. Such conditions, without objective findings of 
 
         impairment other than subjective stiffness and discomfort, do not 
 
         warrant a large industrial disability award.  In this case, 
 
         claimant did return to work for several months, albeit with the 
 
         assistance of physical therapy treatment.  The fact that claimant 
 
         required physical therapy in order to maintain his employment is 
 
         strong evidence that some degree of permanent disability resulted 
 
         from the accident.  It corroborates Dr. Congdon's rating.
 
         
 
              This case is made more complex by the hypertension, 
 
         diabetes, and renal insufficiency which afflicts claimant.  The 
 
         record also contains indications that claimant exhibited symptoms 
 
         which might have been consistent with a cardiac problem.  
 
         Claimant has been diagnosed as having carpal tunnel syndrome.  Of 
 
         all the conditions which have been shown to afflict the claimant, 
 
         only those regarding his back have been shown to be related to 
 
         the July 24, 1985 accident.  When all the material factors of 
 
         industrial disability are considered, in particular claimant's 
 
         education and work history, coupled with his continuing spinal 
 
         complaints, repeated courses or physical therapy, lack of any 
 
         identified objective abnormalities and the lack of any medically 
 
         directed activity restrictions, it is determined that claimant 
 
         has a ten percent permanent partial disability as a result of the 
 
         July 24, 1985 accident.  This finding includes the result of the 
 
                                                
 
                                                         
 
         depression which Dr. Domingo diagnosed and considered claimant's 
 
         injuries to be primarily chronic soft tissue injuries.
 
         
 
                            FINDINGS OF FACT
 
         
 
              1.  On July 24, 1985, Leon McNeal was a resident of the 
 
         state of Iowa employed by the Iowa Department of Transportation.
 
         
 
              2.  McNeal was injured on July 24, 1985 when the truck in 
 
         which he was riding was struck in the rear by another vehicle, 
 
         causing claimant to be thrown out of the truck.
 
         
 
              3.  As a result of the injuries sustained in that accident, 
 
         Leon McNeal has chronic continuing pain and discomfort affecting 
 
         his neck and back.  The injuries are soft tissue injuries which 
 
         are not readily identified using conventional medical diagnostic 
 
         testing.  Claimant has developed chronic pain and depression as a 
 
         result of the accident.
 
         
 
              4.  Claimant's other medical problems, namely hypertension, 
 
         diabetes, renal insufficiency, carpal tunnel syndrome, dental 
 
         problems, throat problems, and any cardiac condition have not 
 
         been shown by the evidence to have resulted from or been 
 
         substantially aggravated by the July 24, 1985 accident.
 
         
 
              5.  The injuries sustained on July 24, 1985 impaired 
 
         claimant's physical abilities consistent with the rating made by 
 
         Dr. Congdon, but did not make him unable to resume his employment 
 
         as an equipment operator for the Department of Transportation.
 
         
 
              6.  Claimant did require physical therapy in order to 
 
         maintain and perform his duties as an equipment operator 
 
         subsequent to the accident.
 
         
 
              7.  Claimant has sustained a ten percent loss of his earning 
 
         capacity as a result of the permanent injuries sustained in the 
 
         July 24, 1985 accident.
 
         
 
                          CONCLUSIONS OF LAW
 
         
 
              1.  This agency has jurisdiction of the subject matter of 
 
         this proceeding and its parties.
 
         
 
              2.  Claimant sustained a ten percent permanent partial 
 
         disability as a result of the injuries he sustained on July 24, 
 
         1985.  He is entitled to receive 50 weeks of compensation under 
 
         the provisions of Iowa Code section 85.34(2)(u).
 
         
 
              3.  The employer is entitled to credit under the provisions 
 
         of Iowa Code section 85.22 in an amount equal to $3,802.52 less a 
 
         proportionate share of the legal fees and expenses incurred in 
 
         obtaining that third party recovery.
 
         
 
                                   ORDER
 
         
 
                                                
 
                                                         
 
              IT IS THEREFORE ORDERED that defendants pay claimant fifty 
 
         (50) weeks of compensation for permanent partial disability at 
 
         the stipulated rate of one hundred seventy-two and 92/100 dollars 
 
         ($172.92) per week payable commencing December 16, 1985.  The 
 
         entire amount thereof is past due and owing and shall be paid in 
 
         a lump sum together with interest pursuant to Iowa Code section 
 
         85.30.
 
         
 
              IT IS FURTHER ORDERED that defendants are entitled to credit 
 
         pursuant to Iowa Code section 85.22 for the balance of the third 
 
         party recovery, less reasonable legal fees and expenses.
 
         
 
              IT IS FURTHER ORDERED that the costs of this action are 
 
         assessed against defendants as follows:
 
         
 
              Deposition transcript fee              $222.40
 
              Dr. Congdon, expert witness fee         150.00
 
              Orthopaedic Surgery report fees          60.00
 
              J. R. Lee report fee                     30.00
 
              Total                                  $462.40
 
         
 
              IT IS FURTHER ORDERED that defendants file claim activity 
 
         reports as requested by this agency pursuant to Division of 
 
         Industrial Services Rule 343-4.33.
 
         
 
              Signed and filed this 20th day of November, 1989.
 
         
 
         
 
         
 
         
 
         
 
         
 
                                            MICHAEL G. TRIER
 
                                            DEPUTY INDUSTRIAL 
 
                                            COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. John H. Westensee
 
         Attorney at Law
 
         1703 2nd Avenue
 
         Rock Island, Illinois  61201
 
         
 
         Mr. John Baty
 
         Assistant Attorney General
 
         Iowa Department of Transportation
 
         Ames, Iowa  50010
 
         
 
         
 
         
 
 
 
 
 
 
 
 
 
                                                
 
 
            
 
 
 
 
 
                
 
 
 
                 
 
                                                 51402.30, 51803
 
                                                 Filed November 20, 1989
 
                                                 MICHAEL G. TRIER
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         LEON MCNEAL
 
         
 
              Claimant,
 
         
 
         vs.                                          File No. 800944
 
         
 
         IOWA DEPARTMENT OF                        A R B I T R A T I O N
 
         TRANSPORTATION,
 
                                                      D E C I S I O N
 
              Employer,
 
         
 
         and
 
         
 
         STATE OF IOWA,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         51402.30, 51803
 
         
 
              After being rear-ended in the employer's truck and thrown 
 
         from the vehicle, claimant developed chronic back complaints 
 
         which were determined to have their origin in soft tissue 
 
         injuries. Claimant awarded ten percent permanent partial 
 
         disability. Claimant had a number of other physical afflictions 
 
         which were found to not be related to the accident.
 
         
 
         
 
         
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                
 
 
            
 
 
 
 
 
                                
 
 
 
                    
 
                 BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         LEON McNEAL,
 
         
 
              Claimant,                               File No. 800944
 
         
 
         vs.                                             O R D E R
 
         
 
         IOWA DEPARTMENT OF                               N U N C
 
         TRANSPORTATION,
 
                                                           P R O
 
              Employer,
 
                                                          T U N C
 
         and
 
                                                         F I L E D
 
         STATE OF IOWA,
 
                                                        MAY 31 1989
 
              Insurance Carrier,
 
              Defendants.                           INDUSTRIAL SERVICES
 
         
 
         
 
                                 INTRODUCTION
 
         
 
              This matter comes before the undersigned upon the Petition 
 
         for Adjudication of Interest Due, Credits and Total Dollar Amount 
 
         Due on Arbitration Decision filed on behalf of the claimant on 
 
         April 23, 1990 and the answer thereto filed on behalf of the 
 
         employer on May 1, 1990.
 
         
 
                               FINDINGS OF FACT
 
         
 
              Leon McNeal was injured on July 24, 1985.  Following that 
 
         injury, he was paid temporary total disability compensation for 
 
         20 4/7 weeks in the total amount of $3,556.80.  The employer also 
 
         paid medical expenses under section 85.27 in the amount of 
 
         $4,640.68.  As a result of the decision entered November 20, 
 
         1989, claimant was awarded 50 weeks of permanent partial 
 
         disability compensation in the amount of $8,646.00.  The total 
 
         benefits payable to or on behalf of Leon McNeal under Chapter 85 
 
         of The Code are therefore $16,843.48.  Those benefits exceed the 
 
         amount of the third party recovery, $12,500.00.  The employer 
 
         paid the costs in the amount of $462.40 on January 2, 1990.  The 
 
         employer paid the sum of $5,375.81 to the claimant on January 8, 
 
         1990.
 
         
 
              In connection with the third.party recovery, a memorandum of 
 
         agreement was entered into by Raymond J. Conklin, as attorney for 
 
         Leon McNeal, and by Dick Andrews, on behalf of the employer.  At 
 
         the time the agreement was entered into, the employer had paid 
 
         the 20 4/7 weeks of temporary total disability and the $4,640.68 
 
         in medical benefits.  The total paid at that point was $8,197.48.  
 
         As part of that agreement, the employer was refunded the full 
 
         amount that it had then expended, less 25% for attorney fees 
 
                                                
 
                                                         
 
         incurred in obtaining the third party recovery.  Under that same 
 
         document, litigation expenses of $134.00 and attorney fees of 
 
         $1,562.50 were then deducted with the balance of $4,655.39 being 
 
         paid to Leon McNeal.
 
         
 
              Upon examining the record and the arbitration decision 
 
         entered November 20, 1989, it is determined that a computational 
 
         or scrivener's error appears in the conclusions of law wherein 
 
         the amount of the employer's credit is fixed at $3,802.52.  The 
 
         correct amount is actually $500.00 more, namely, $4,302.52.  The 
 
         correct amount is determined by subtracting from the $12,500.00 
 
         third party recovery the sum of $8,197.48 for which the 
 
         employer's subrogation rights had been satisfied.
 
         
 
              It should be noted that the memorandum of agreement dealing 
 
         with the third party settlement does not contain any provision 
 
         which addresses the possibility of further recovery for permanent 
 
         partial disability from the employer or the future relationship 
 
         between the parties.  It further appears that there was some type 
 
         of negotiated settlement due to the fact that the total amount of 
 
         fees paid to McNeal's attorney is approximately 25% of the amount 
 
         received by McNeal.  The distribution of the $12,500.00 does not 
 
         contain any actual payment of fees to McNeal's attorney 
 
         consistent with the reduction of the employer's total 
 
         expenditures from $8,197.48 to $6,148.11.
 
         
 
                            CONCLUSIONS OF LAW
 
         
 
              It could reasonably be asserted that the memorandum of 
 
         agreement entered into at the time of the third party settlement 
 
         was a final agreement and that the employer would not be entitled 
 
         to any further credits in the event that additional benefits 
 
         under Chapter 85 of The Code were payable.  The other reasonable 
 
         assertion is that the agreement was made based upon the 
 
         conditions which existed at that time and was not intended to 
 
         have any particular prospective impact.  The clear provisions of 
 
         Code section 85.22 provide for full and complete subrogation 
 
         rights. Since the memorandum does not contain an express waiver 
 
         regarding future benefits, it is concluded that the agreement 
 
         will be construed in a manNer consistent with section 85.22.  It 
 
         is therefore concluded that the memorandum of agreement satisfied 
 
         $8,197.48 of the employer's subrogation interest against the 
 
         $12,500.00 third party recovery.  The fact that the apparent 25% 
 
         reduction for attorney fees was apparently paid tO McNeal, rather 
 
         than the attorney does not warrant reopening of the agreement 
 
         which the parties made.  Both are bound by that agreement.  The 
 
         remaining portion of the third party settlement which remains 
 
         available to be applied to the employer's subrogation interest is 
 
         $4,302.52.  Since the workers' compensation benefits payable in 
 
         this case exceed the amount of the third party recovery, the 
 
         employer is entitled to the benefit of the entire third party 
 
         settlement, less attorney fees.
 
         
 
              The statute does not speak to the issue of litigation 
 
         expenses, but it is concluded that expenses of litigation which 
 
                                                
 
                                                         
 
         are incurred in obtaining the third party recover are either 
 
         included within the meaning of attorney fees or those expenses of 
 
         obtaining the recovery are deducted in arriving at the recovery 
 
         from which the employer may be indemnified.  To do otherwise 
 
         could result in a situation where an injured employee, who 
 
         successfully pursues a third party recovery and obtains an amount 
 
         approximately equal to the amount paid to or on behalf of the 
 
         employee under Chapter 85 of The Code, would actually end up with 
 
         less than what the employee would have received if no attempt had 
 
         been made to pursue the third party claim.  For example, if 
 
         $25,000.00 of workers' compensation benefits had been paid and 
 
         the employee, through the third party claim, recovered and 
 
         collected a judgment in the amount of $25,000.00, but in doing so 
 
         incurred litigation expenses for investigators, experts and so 
 
         forth in the amount of $5,000.00, a literal reading of the 
 
         statute would result in the employee having expended $5,000.00 in 
 
         litigation expenses, all of which inured to the benefit of the 
 
         employer who would be entitled to recover the entire $25,000.00 
 
         recovery less only the attorney fees involved in obtaining that 
 
         recovery.  Such a result is unconscionable and contrary to the 
 
         often-stated beneficent purpose of the workers' compensation 
 
         statutes.  Caterpillar Tractor Co. v. Shook, 313 N.W.2d 503, 506 
 
         (Iowa 1981); Cedar Rapids Community School v. Cady, 278 N.W.2d 
 
         298 (Iowa 1979); Comingore v. Shenandoah Artificial Ice, Power, 
 
         Heat & Light Co., 208 Iowa 430, 437, 226 N.W. 124 (1929).  Any 
 
         other construction would place the employee in a worse economic 
 
         position than he would have experience if he had not pursued the 
 
         third party claim while at.the same time greatly benefiting the 
 
         employer.  In this case, the employer is entitled to be 
 
         indemnified in the amount of $4,302.52 less the amount of 
 
         attorney fees and litigation expenses properly attributable to 
 
         that $4,302.52.
 
         
 
              In view of the beneficent agreement entered into 
 
         contemporary with the third party settlement, the amount which 
 
         was actually received by McNeal exceeds the amount of the 
 
         remaining available credit.  It is determined that the proper 
 
         method for allocating the attorney fees and litigation expenses 
 
         between McNeal and the employer is to apportion them based upon 
 
         the total amount of the available credit and the total amount 
 
         which was payable to McNeal before the fees and expenses had been 
 
         deducted.  The amounts are therefore $4,302.52 for the employer 
 
         and $6,351.89 for McNeal. McNeal's portion is the difference 
 
         between the total of the $12,500.00 third party recovery and the 
 
         amount actually paid to the employer under the original 
 
         agreement.  The employer's interest is 67.74% of the total.  The 
 
         employer is therefore responsible for 67.74% of the litigation 
 
         expenses and attorney fees.  As shown in the original agreement, 
 
         the fees and expenses total $1,696.50.  Sixty-seven point seven 
 
         four percent of $1,696.50 is $1,149.21.  The final amount of the 
 
         credit available to the employer is therefore $3,153.31.  This is 
 
         arrived at by subtracting $1,696.50, the amount of the employer's 
 
         share of the attorney fees and litigation expenses, from 
 
         $4,302.52, the amount available for the subrogation credit.
 
         
 
                                                
 
                                                         
 
              Under Code section 85.30, interest is computed from the date 
 
         each weekly payment came due until the date of actual payment. 
 
         Teel v. McCord, 394 N.W.2d 405 (Iowa 1986).  When a partial 
 
         payment is paid on an amount, the payment is first applied to the 
 
         interest which has accrued and the remaining part of the payment 
 
         is applied to reduce the principal of the amount.  Interest then 
 
         accrues on that principal balance until the next payment is paid. 
 
         Fockler v. Beach, 32 Iowa 187 (1871); Smith, Twogood & Co. v. 
 
         Coopers, 9 Iowa 376 (1859); Huner v. Doolittle, 3 G Greene 76, 54 
 
         Am. Dec. 489 (Iowa 1851).  Unpaid costs do not accrue interest. 
 
         Arnold v. Arnold, 140 N.W.2d 874 (Iowa 1966).
 
         
 
              The record in this case does not disclose the precise date 
 
         that the amounts paid under the memorandum of agreement for the 
 
         third party settlement were paid to McNeal and the employer.  The 
 
         agreement was filed with this agency on April 15, 1987.  That 
 
         date is therefore determined to be the date of payment of the 
 
         $3,153.31.
 
         
 
              The method of computation of interest shown in the 1989 
 
         benefit schedule issued by the Division of Industrial Services is 
 
         used in making these computations.  The effective date of payment 
 
         of $3,153.31 was April 15, 1987.  At that time, the entire 50 
 
         weeks of permanent partial disability compensation was accrued as 
 
         50 weeks had ended November 30, 1986.  The factor in the schedule 
 
 
 
                            
 
                                                         
 
         for 50 weeks of compensation is 2.3558.  Interest accrued during 
 
         those 50 weeks computes to $407.36.  From December 1, 1986 until 
 
         April 15, 1987 is 19 and 3/7 weeks or 136 days or 37.26% of a 
 
         year.  The interest on the 50 weeks of compensation at 10% per 
 
         annum for the 136 days from December 1, 1986 to April 15, 1987 is 
 
         $322.15.  When added to $407.36, the sum is $729.51.  Therefore, 
 
         of the $3,153.31 credited effective April 15, 1987, $729.51 is 
 
         attributable to interest which was then accrued and the balance 
 
         of $2,423.80 is applied toward permanent partial disability 
 
         compensation.  When subtracted from the total award of $8,646.00, 
 
         the unpaid balance of permanent partial disability was 
 
         $6,222.20.
 
         
 
              The sum of $5,375.81 was paid on January 8, 1990.  When 
 
         interest is computed on $6,222.20 at the rate of 10% per annum 
 
         for the period running from April 16, 1987 through January 8, 
 
         1990, a span of 2.734 years, the interest accrued to January 8, 
 
         1990 is $1,699.90.  When the accrued interest is subtracted from 
 
         the $5,375.81 payment, the remaining unpaid permanent partial 
 
         disability compensation is $3,675.91.  Interest on $3,675.91 
 
         computed from January 9, 1990 to June 1, 1990, a span of 143 days 
 
         or 39.18% of a year, is $143.99.  It is therefore concluded that 
 
         as of June 1, 1990, the employer will owe Leon McNeal the total 
 
         sum of $3,819.90.  If paid prior to June 1, 1990, that total 
 
         should be reduced by $1.01 for each day prior to June 1 that the 
 
         payment is made.  If paid subsequent to June 1, 1990, the total 
 
         should be increased by $1.01 for each day is payment is delayed 
 
         after June 1, 1990.
 
         
 
                                   ORDER
 
         
 
              IT IS THEREFORE ORDERED that the employer pay Leon McNeal 
 
         the additional sum of three thousand eight hundred nineteen and 
 
         90/100 dollars ($3,819.90) payable June 1, 1990.  If not paid on 
 
         June 1, 1990, interest shall be added to the total sum stated at 
 
         the rate of one and 01/100 dollars ($1.01) per day for each day 
 
         that payment is delayed after June 1, 1990.
 
         
 
              IT IS FURTHER ORDERED the costs of this proceeding are 
 
         assessed against the employe
 
         
 
              Signed and filed this 31st day of May, 1990.
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
                                            MICHAEL G. TRIER
 
                                            DEPUTY INDUSTRIAL 
 
                                            COMMISSIONER
 
         
 
         Copies To:
 
         
 
                                                
 
                                                         
 
         Mr. John H. Westensee
 
         Attorney at Law
 
         1703 2nd Avenue
 
         Rock Island, Illinois  61201
 
         
 
         Mr. John Baty
 
         Assistant Attorney General
 
         Iowa Department of Transportation
 
         800 Lincoln Way
 
         Ames, Iowa  50010
 
 
 
         
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                 3400, 3800
 
                                                 Filed May 31, 1990
 
                                                 MICHAEL G. TRIER
 
         
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         LEON McNEAL,
 
         
 
              Claimant,
 
                                                         File No. 800944
 
         vs.
 
                                                            0 R D E R
 
         IOWA DEPARTMENT OF
 
         TRANSPORTATION,                                     N U N C
 
         
 
              Employer,                                       P R 0
 
         
 
         and                                                 T U N C
 
         
 
         STATE OF IOWA,
 
         
 
              Insurance carrier,
 
              Defendants.
 
         
 
         3400, 3800
 
         
 
              Employee obtained third party recovery and entered into 
 
         agreement with employer which returned 75% of the workers' 
 
         compensation benefits the employer had paid to the date of the 
 
         settlement, i.e., temporary total disability/healing period and 
 
         section 85.27 benefits.  The agreement did not mention future 
 
         workers' compensation benefits.  Employee then pursued claim 
 
         against employer and recovered 50 weeks of permanent partial 
 
         disability.
 
         
 
         3400
 
         
 
              Held.  The agreement controlled the temporary total 
 
         disability/healing period and 85.27 benefits and was not to be 
 
         reopened.  The 50 weeks was subject to section 85.22.  The term 
 
         "attorney fees" includes expenses of litigation such as fees for 
 
         investigators and experts.  Those fees were apportioned to the 
 
         balance of the third party recovery actually received by claimant 
 
         to provide a credit against the permanent partial disability 
 
         award.
 
         
 
         3800
 
         
 
              Interest computed according to longstanding rule that 
 
         partial payments are applied first to accrued interest and the 
 
         remainder to reduce the permanent partial disability award.
 
         
 
         
 
 
 
                                                
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         BEVERLY J. WHITSEL,
 
         
 
              Claimant,
 
                                              File No. 801042
 
         VS.
 
                                                 A P P E A L
 
         MARIAN HEALTH CENTER,
 
                                               D E C I S I O N
 
         
 
              Employer,
 
              Self-Insured,
 
              Defendant.
 
         
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              Claimant appeals from an arbitration decision awarding 
 
         temporary total disability benefits as the result of an alleged 
 
         injury on July 12, 1985.  The record on appeal consists of the 
 
         transcript of the arbitration hearing; claimant's exhibits 1 
 
         through 9; and defendant's exhibits A and B. Both parties filed 
 
         briefs on appeal.
 
         
 
                                      ISSUES
 
         
 
              Claimant states the following issues on appeal:
 
         
 
              1. The deputy commissioner erred in determining that the 
 
              claimant's July, 1985 back injury at MHC was not the cause 
 
              of a permanent disability and in determining the amount of 
 
              healing period and medical expense resulting therefrom.
 
              
 
              2. The deputy commissioner erred in determining that 
 
              claimant's bilateral carpal tunnel syndrome was not job 
 
              related and in refusing to award medical benefits, healing 
 
              period/temporary total disability and permanent partial 
 
              disability relative thereto.
 
         
 
                              REVIEW OF THE EVIDENCE
 
         
 
              The arbitration decision adequately and accurately reflects 
 
         the pertinent evidence and it will not be set forth herein.
 
         
 
                                  APPLICABLE LAW
 
         
 
              The citations of law in the arbitration decision are 
 
         appropriate to the issues and the evidence.
 
         
 
         
 
         
 
         WHITSEL VS. MARIAN HEALTH CENTER
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         Page 2
 
         
 
         
 
                                     ANALYSIS
 
         
 
              The analysis of the evidence in conjunction with the law is 
 
         adopted.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              1. Claimant sustained an injury which arose out of and in 
 
         the course of her employment on July 12, 1985, when she fell and 
 
         did the "splits."
 
         
 
              2. Claimant worked part time until July 29, 1985, when she 
 
         sought medical treatment and eventually came under the care of 
 
         John J. Dougherty, M.D.
 
         
 
              3. Claimant was taken off work until released to return 
 
         without restriction on August 29, 1985.
 
         
 
              4. Claimant returned to work but maintained she was unable 
 
         to work and therefore left work again September 9, 1985.
 
         
 
              5. Dr. Dougherty again released claimant to return to work 
 
         November 23, 1985, but claimant declined to do so asserting she 
 
         could not work.
 
         
 
              6. Claimant continues to assert she is completely unable to 
 
         work.
 
         
 
              7. Claimant suffered from a preexisting back condition for 
 
         which she had sought treatment.
 
         
 
              8. Claimant was obese at the time of her fall and suffers 
 
         from a thyroid deficiency.
 
         
 
              9. Claimant has no permanent impairment nor permanent work 
 
         restriction as a result of her fall on July 12, 1985.
 
         
 
              10.Claimant temporarily aggravated, as a result of her fall 
 
         on July 12, 1985, a preexisting condition.
 
         
 
              11.Claimant was diagnosed as having bilateral carpal tunnel 
 
         syndrome on September 12, 1985, and asserts an injury arising out 
 
         of and in the course of her employment.
 
         
 
              12. Claimant's treating physician gave varying opinions on 
 
         causation, which included an opinion that claimant's weight and 
 
         thyroid condition may be 100 percent responsible for her carpal 
 
         tunnel condition; an opinion that claimant's carpal tunnel 
 
         condition was almost invariably related to her work; and an 
 
         opinion that claimant's condition was related to her work.
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         WHITSEL VS. MARIAN HEALTH CENTER
 
         Page 3
 
         
 
         
 
              13. Claimant's bilateral carpal tunnel syndrome is only 
 
         possibly related to her employment.
 
         
 
              14. Claimant had a gastric bypass May 22, 1986, after  which 
 
         she reduced her weight to approximately 110 pounds but which did 
 
         not improve her back condition.
 
         
 
              15. The care of Horst Gunter Blume, M.D., and the expenses 
 
         incurred for bilateral carpal tunnel surgery and gastric bypass 
 
         surgery were not authorized.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              Claimant has failed to establish an injury of September 12, 
 
         1985, that arose out of and in the course of employment.
 
         
 
              Claimant has established a temporary aggravation of a 
 
         preexisting condition as a result of the work injury of July 12, 
 
         1985.
 
         
 
              Claimant has established entitlement to temporary total 
 
         disability benefits for the periods from July 29, 1985 through 
 
         August 28, 1985, inclusive, and September 9, 1985 through 
 
         November 23, 1985, as a result of the work injury of July 12, 
 
         1985.
 
         
 
              Claimant has established entitlement to all disputed medical 
 
         expenses incurred with William P. Isgreen, M.D.
 
         
 
              Claimant has failed to establish the work injury of July 12, 
 
         1985, resulted in any permanent disability.
 
         
 
              WHEREFORE, the decision of the deputy is affirmed.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, it is ordered:
 
         
 
              That defendant is to pay claimant fifteen and two-sevenths 
 
         (15 2/7) weeks of temporary total disability benefits at the 
 
         stipulated rate of one hundred ninety-three and 71/100 dollars 
 
         ($193.71) for the periods from July 29, 1985 through August 28, 
 
         1985, inclusive, and September 9, 1985 through November 23, 1985, 
 
         inclusive.
 
         
 
              That defendant shall receive credit for all disability 
 
         benefits previously paid.
 
         
 
              That defendant shall pay all disputed medical expenses 
 
         incurred with Dr. Isgreen.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         WHITSEL VS. MARIAN HEALTH CENTER
 
         Page 4
 
         
 
         
 
              That payments that have accrued shall be paid in a lump sum 
 
         together with statutory interest thereon pursuant to Iowa Code 
 
         section 85.30.
 
         
 
              That defendant pay the costs of the arbitration proceeding 
 
         and claimant shall pay the costs of this appeal.
 
         
 
              That defendant file activity reports on the payment of this 
 
         award as requested by this agency pursuant to Division of 
 
         Industrial Services Rule 343-3.1.
 
         
 
              Signed and filed this 28th day of April, 1989.
 
         
 
         
 
         
 
                                         DAVID E. LINQUIST
 
                                         INDUSTRIAL COMMISSIONER
 
         
 
         
 
         Copies To:
 
         
 
         Mr. Gary L. Johansen
 
         Attorney at Law
 
         508 Davidson Building
 
         Sioux City, Iowa 51101
 
         
 
         Mr. Frank T. Harrison
 
         Attorney at Law
 
         Terrace Center, Suite 111
 
         2700 Grand Avenue
 
         Des Moines, Iowa 50312
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                                         51100-51801-52501
 
                                         Filed April 28, 1989
 
                                         DAVID E. LINQUIST
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         BEVERLY J. WHITSEL,
 
         
 
              Claimant,
 
                                         File No. 801042
 
         VS.
 
                                            A P P E A L
 
         MARIAN HEALTH CENTER,
 
                                            D E C I S I 0 N
 
              Employer,
 
              Self-Insured,
 
              Defendant.
 
         
 
         
 
         
 
         51100
 
         
 
              Claimant failed to establish an injury arising out of and in 
 
         the course of her employment.
 
         
 
         51801
 
         
 
              Claimant established entitlement to temporary total 
 
         disability benefits for one of her two injuries.
 
         
 
         52501
 
         
 
              Claimant established entitlement to medical benefits for the 
 
         fees of a doctor an authorized physician referred her to.
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         BEVERLY J. WHITSEL,
 
         
 
              Claimant,                            File No. 801042
 
         
 
         vs.
 
                                                A R B I T R A T I 0 N
 
         MARIAN HEALTH CENTER,
 
                                                   D E C I S I 0 N
 
              Employer,
 
              Self-Insured,
 
              Defendant.
 
         
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              This is a proceeding in arbitration brought by Beverly 
 
         Whitsel, claimant, against self-insured employer, Marian Health 
 
         Center, to recover benefits under the Iowa Workers' Compensation 
 
         Act as a result of an injury or alleged injury sustained July 12, 
 
         1985.  This matter came on for hearing before the undersigned 
 
         deputy industrial commissioner December 1, 1987.  The record was 
 
         considered fully submitted at the close of the hearing.  The 
 
         record in this case consists of the testimony of claimant, 
 
         Willard Whitsel, her husband, and Barbara Cowell; claimant's 
 
         exhibits 1 through 9, inclusive, and defendant's exhibits A and 
 
         B.  Both parties have submitted posthearing briefs.
 
         
 
                                      ISSUES
 
         
 
              It must be noted initially that at the beginning of 
 
         claimant's case counsel advised claimant was asserting two 
 
         separate injuries:  First the injury of July 12, 1985 which 
 
         affected claimant's back; and second, an alleged injury of 
 
         September 12, 1985 which resulted in bilateral carpal tunnel 
 
         syndrome surgeries.
 
         
 
              Pursuant to the prehearing report and order submitted and 
 
         approved December 1, 1987, the following issues are presented for 
 
         determination:
 
         
 
              1.  Whether claimant sustained an injury which arose out of 
 
         and in the course of her employment (with regard to the bilateral 
 
         carpal tunnel syndrome only);
 
         
 
              2.  Whether the injury or alleged injury is the cause of 
 
         the disability on which claimant now bases her claim (defendant 
 
         does not dispute the work injury to claimant's back was the 
 
         cause of a temporary disability.  It is disputed whether the 
 
         bilateral carpal tunnel syndrome is causally related to 
 

 
         
 
         
 
         
 
         WHITSEL V. MARIAN HEALTH CENTER
 
         Page   2
 
         
 
         
 
         claimant's employment);
 
         
 
              3.  The nature and extent of claimant's entitlement to 
 
         weekly disability benefits, if any; and
 
         
 
              4.  Claimant's entitlement to certain medical benefits 
 
         provided by Iowa Code section 85.27.
 
         
 
                                FACTS PRESENTED
 
         
 
              Claimant testified she began working for defendant employer 
 
         in May 1977 first as a dietary aide, then as a cook, and last as 
 
         a lead cook.  Claimant was injured in October 1977, when she shut 
 
         a cooler door with her "behind.O  She was off work for a period 
 
         of time and when she returned in approximately January 1978, her 
 
         treating physician opined there was no evidence of permanent 
 
         impairment resulting from the work injury.  Claimant injured her 
 
         ankle in February 1978 in a nonwork-related incident.  She 
 
         explained she was off work for approximately five months and 
 
         during this time experienced back pain.  Claimant eventually 
 
         underwent an ankle fusion and testified that when she returned to 
 
         work after surgery (sometime in 1983) she was in "good shape to 
 
         work" and had no impairment rating from her physician.  Claimant 
 
         testified that she is five feet, one inch tall, that she had been 
 
         obese at the time she was hired by defendant employer weighing 
 
         approximately 200 pounds, and that she has suffered from a 
 
         thyroid deficiency since 1963 which is treated with medication 
 
         and which she did not believe interfered with her ability to 
 
         work.
 
         
 
              Claimant sustained an injury which arose out of and in the 
 
         course of her employment on July 12, 1985 when she fell on a wet 
 
         spot at defendant employer's kitchen and did the "splits." 
 
         Claimant explained she was in "excruciating" pain up and down her 
 
         spine, in her back and neck.  She stated she left work after 
 
         talking with her supervisor, took the weekend off, and although 
 
         she returned the following Monday, was still in pain, had to go 
 
         home early, and could not do all the duties assigned to her.  
 
         Claimant testified she continued reporting to work and leaving 
 
         early each day until July 29, 1985, when, for the first time, she 
 
         sought medical treatment at the emergency room of defendant 
 
         employer.  Claimant stated that the original physician she saw 
 
         did not keep her from work, but when she was referred to John J. 
 
         Dougherty, M.D., he told her she could not work.  Claimant 
 
         described pain up and down her spine and headaches which 
 
         prevented her from doing anything.
 
         
 
              Claimant testified that by late August 1985, she was 
 
         dissatisfied with the care given her by Dr. Dougherty as he told 
 
         her to return to work, that he could find nothing wrong with her 
 
         and because she found him to be rude, inconsiderate, mean and she 
 
         had no faith in him.  Claimant therefore contacted defendant 
 
         employer and requested to see another physician. (See claimant's 
 
         exhibit 8. Claimant testified that she wanted another treating 
 
         physician.  Exhibit 8 refers to a "second opinion."  Claimant 
 
         maintains she wrote what she was told by defendant's employee 
 
         benefits representative.)  Claimant explained she was referred by 
 
         defendant to William P. Isgreen, M.D., who conducted a 
 

 
         
 
         
 
         
 
         WHITSEL V. MARIAN HEALTH CENTER
 
         Page   3
 
         
 
         
 
         neurological examination and diagnosed bilateral carpal tunnel 
 
         syndrome, sent her for a CT scan and provided her with a "no work 
 
         slip."  Claimant was referred to A. Kleider, M.D., surgeon, who 
 
         performed a right carpal tunnel decompression on October 9, 1985 
 
         and a left carpal tunnel decompression on October 23, 1985.  
 
         Claimant explained a numbness and aching she previously felt in 
 
         her hands were gone after surgery although she still had an 
 
         inability to lift.
 
         
 
              Claimant stated that in October 1985, when her weight 
 
         reached 210 pounds, Dr. Isgreen recommended a gastric bypass.  
 
         Claimant described that she could not lift, "could not do 
 
         anything" and was still in pain despite the medication she was 
 
         taking.  Claimant testified that in November 1985 defendant 
 
         employer sent her back to Dr. Dougherty who again released her to 
 
         return to work after taking x-rays.  Claimant did not, however, 
 
         return to work at that time.  In February 1986, Dr. Isgreen 
 
         referred claimant to Larry D. Foster, M.D., who performed a 
 
         gastric bypass on May 22, 1986.  By February 1987 claimant 
 
         reached her current weight of approximately 110 pounds.  Claimant 
 
         stated Dr. Isgreen left his Sioux City practice without releasing 
 
         her to return to work and, when claimant contacted defendant 
 
         employer in late summer 1986 to see if she was still employed, 
 
         claimant explained she was told the employer understood she was 
 
         to have returned to work in November 1985 and that since she 
 
         failed to produce any statement explaining her failure to return, 
 
         her employment status was unclear.  Claimant admitted, however, 
 
         that even if defendant employer had told her to return at that 
 
         time, she could not have so returned as she did not feel capable 
 
         of performing any type of work.  Although she had lost a 
 
         substantial amount of weight, claimant did not feel it improved 
 
         her back condition at all and thought that she still cannot work 
 
         in her present condition.  Claimant acknowledged on 
 
         cross-examination that she has neither applied for nor looked for 
 
         any work because she "can't work" and when defendant had her meet 
 
         with a vocational rehabilitation professional, claimant indicated 
 
         her medical situation had to be resolved first before anything 
 
         could take place.
 
         
 
              Barbara Cowell testified that she has known claimant for 42 
 
         years and during the last two years has seen her four or five 
 
         times each week.  She explained that it has been her observation 
 
         that claimant, because of pain, cannot take walks anymore, cannot 
 
         lift her grandchildren, cannot bend, cannot fix dinner, cannot 
 
         help with the dishes, and that claimant must lie down 
 
         frequently.
 
              Willard Whitsel testified that claimant cannot do housework, 
 
         that she required frequent stops when they travel together, that 
 
         claimant has trouble resting, and that claimant is not lazy 
 
         having done work before.
 
         
 
              Claimant was first seen by John J. Dougherty, M.D., of 
 
         Orthopaedic Associates, of Sioux City, on July 31, 1985, who 
 
         after examination and x-rays rendered a diagnosis of "apparent 
 
         dorsal sprain superimposed upon increased kyphosis,with 
 
         degenerative changes in her back, pain in the back, etiology ? 
 
         with some early cervical spondylosis and headaches, etiology ?, 
 
         probably on a tension basis." (Claimant's Exhibit 1, part III, 
 
         page 50) Dr. Dougherty noted claimant had complaints of pain in 
 

 
         
 
         
 
         
 
         WHITSEL V. MARIAN HEALTH CENTER
 
         Page   4
 
         
 
         
 
         her back nine years previous, that she was once seen by a 
 
         psychiatrist, and that while in Arizona she saw two chiropractors 
 
         because her back was bothering her.  Dr. Dougherty stated:
 
         
 
                 It would be my opinion at this point in time that 
 
              this patient who is obese, who has some degenerative 
 
              changes, has not sustained any significant injury.  
 
              However, I also think that it's going to be a difficult 
 
              problem to get her back to work .... She is hard to 
 
              evaluate and I'm sure there is a psychosomatic overlay 
 
              here based on the multiple complaints she has .... I 
 
              just sense the fact that trying to get her back to work 
 
              will be somewhat of a difficult problem.  Although 
 
              basically, I don't think she sustained any significant 
 
              injury.
 
         
 
         (Cl. Ex. 1, pt. III, p. 51)
 
         
 
              Claimant was released to return to work without restrictions 
 
         on August 29, 1985.  She was next seen by Dr. Dougherty on 
 
         November 22, 1985, who again concluded:
 
         
 
              In my opinion, this patient could be back to work.  I 
 
              think she does have a degenerated disc at L-5, S-1.  
 
              Certainly doesn't appear that any surgical intervention 
 
              is indicated.  She is swaybacked and obese, probably 
 
              has a chronic lumbosacral strain, but I think there is 
 
              very much of a psychosomatic problem here also.
 
         
 
         (Cl. Ex. 1, pt. III, p. 54)
 
         
 
              Claimant was examined by William P. Isgreen, M.D., a 
 
         neurologist, on September 12, 1985 whose impression was low back 
 
         syndrome, cervical syndrome, aggravated by bilateral carpal 
 
         tunnel syndrome and morbid obesity.  Dr. Isgreen recommended 
 
         keeping claimant off work for two or three weeks but added:
 
         
 
              I am not optimistic about getting this lady back to 
 
              work quickly.  There are too many other problems going 
 
              on here to be terribly convinced that we are going to 
 
              get her back into the work force.  Our only salvation 
 
              is that she has a good job and she enjoys working.
 
         
 
         (DefendantOs Exhibit A, page 17)
 
         
 
              The CT scan performed at the request of Dr. Isgreen showed 
 
         mild degenerative changes in the lumbar region and a mid-line 
 
         disc bulge at L5-S1 with some pressure on the thecal sac.  In 
 
         December 1985, Dr. Isgreen reported:
 
         
 
                 As you know from the CT scan, the lady does have 
 
              disc disease with a bulge at the L5/Sl level with 
 
              pressure on the sack [sic].  While I don't think it's a 
 
              surgical problem, particularly with the lady's weight, 
 
              it certainly is a significant defect, and explains her 
 
              symptoms.
 
         
 
                 I think it would be my feeling to have a permanent 
 
              partial impairment on the lady and be done with the 
 

 
         
 
         
 
         
 
         WHITSEL V. MARIAN HEALTH CENTER
 
         Page   5
 
         
 
         
 
              issue.  I don't think there is any way that we are 
 
              going to carry her along and get her back to work as a 
 
              cook. maybe if she shed an enormous amount of weight 
 
              there would be a chance of getting her back to some 
 
              sort of work, but I don't think it's realistic to think 
 
              she is going to go back to work.
 
         
 
         (Def. Ex. A, p. 22)
 
         
 
              In response to claimant's request for clarification, Dr. 
 
         Isgreen wrote to claimant's counsel on January 9, 1986:
 
         
 
                 There is little question that the lady has 
 
              degenerative back disease.
 
         
 
                 It is my contingent that the lady's problem at the 
 
              moment with pain, is mainly because of the bulge at the 
 
              L5, Sl level, and irritation of the thecal sac.  That 
 
              may have well existed before her fall, but if it did, 
 
              it was not symptomatic.
 
         
 
         (Def. Ex. A, p. 24)
 
         
 
              Dr. Isgreen initially diagnosed bilateral carpal tunnel 
 
         syndrome in September 1985, indicating that the condition 
 
         preceded the injury to the back.  Dr. Kleider, who performed the 
 
         surgery, noted that claimant had problems with numbness and 
 
         aching for about four or five years.  Dr. Isgreen opined on 
 
         September 12, 1985:
 
         
 
                 The lady represents to my mind double jeopardy 
 
              syndrome, in that in the arms she has bilateral carpal 
 
              tunnel which has made the neck worse.  This is not 
 
              unusual predicament, and we see this all the time.  The 
 
              carpal tunnel has preceded the injury to the back, but 
 
              generally is work related.  In this lady's case, that 
 
              statement, however, may be not totally accurate since 
 
              her weight and even thyroid state may have predisposed 
 
              her to carpal tunnel.  They may even be 100 per cent 
 
              responsible.
 
         
 
         (Def. Ex. A, p. 15)
 
         
 
              On October 1, 1985, Dr. Isgreen stated:
 
         
 
                 The presence of carpal tunnel in this particular 
 
              case is a bit difficult to get at.  It's not unusual to 
 
              see this sort of a problem in people who do repetitive 
 
              work, and in Mrs. WhitselOs case, it may be indeed work 
 
              related.  When there are problems in the neck, the back 
 
              problems can become even more problematic.
 
         
 
         (Def. Ex. A, p. 19)
 
         
 
         On the same date, he stated:
 
         
 
                 I am not convinced in my mind of minds that carpal 
 
              tunnel is work related.  There is no question that the 
 
              lady's weight and general structure may have something 
 

 
         
 
         
 
         
 
         WHITSEL V. MARIAN HEALTH CENTER
 
         Page   6
 
         
 
         
 
              to do with it, but it's also unusual that carpal tunnel 
 
              is not related to repetitive movements and activities 
 
              such as the lady does on her job.
 
         
 
         (Def. Ex. A, p. 20)
 
         
 
              And finally, on December 10, 1985, he wrote to claimant's 
 
         counsel:
 
         
 
                 The problem of the carpal tunnel I think is work 
 
              related.  I say that with reasonable medical 
 
              probability and from my standpoint that means better 
 
              than fifty per cent.  I would even go higher than that 
 
              and say that it is certainly a 75 to 80 per cent chance 
 
              that it's related to her activities.  One could 
 
              approach the problem in the other direction and 
 
              maintain again with reasonable certainty that a person 
 
              doing housework rarely develops carpal tunnel unless 
 
              there are endocrine or other reasons for doing so.  
 
              It's almost invariably work related and certainly that 
 
              is my opinion here.
 
         
 
         (Def. Ex. A, p. 21)
 
         
 
              Horst G. Blume, M.D., who saw claimant July 7, 1986 opined 
 
         that claimantOs carpal tunnel syndrome in both hands was directly 
 
         related to the claimant's work activity as.she described and that 
 
         she had a partial disability to the right hand of five percent 
 
         and to the left hand of five percent.  Claimant was seen on April 
 
         3, 1987 by Dr. Blume who concluded:
 
         
 
                 Although I have limited information in regard to the 
 
              extent of a disc pathology in the lumbar spine area, I 
 
              would say that she has approximately 8% permanent 
 
              partial impairment to the body as a whole as a result 
 
              of the injury to the low back from the fall on July 12, 
 
              1985, which aggravated a preexisting low back pain with 
 
              a new symptomatology of radicular pain into the right 
 
              leg, within reasonable medical probability.
 
         
 
                 It is also my opinion within reasonable medical 
 
              probability that the patient has a 2% permanent partial 
 
              impairment to the body as a whole to the cervical 
 
              spine, as a result of the same accident on July 12, 
 
              1985, over and above any previously existing 
 
              condition.
 
         
 
                 The patient has requested my help but as you know 
 
              you do not have any authorization for me to do any 
 
              diagnostic testing or treatment.
 
         
 
         (Def. Ex. A, p. 32)
 
         
 
              On the request of defendant, claimant was evaluated by David 
 
         J. Boarini, M.D., neurological surgeon, who examined her, 
 
         reviewed previous x-rays and CT scans and reported:
 
         
 
                 Mrs. Whitsel suffered a minor back injury in July of 
 
              1985.  I can find no evidence of a serious abnormality 
 

 
         
 
         
 
         
 
         WHITSEL V. MARIAN HEALTH CENTER
 
         Page   7
 
         
 
         
 
              at this time.  Her examination is entirely normal and I 
 
              don't believe there is any residual effect from the 
 
              fall she suffered at that time.  I would make no 
 
              further recommendations for therapy, except that she 
 
              should begin a more aggressive set of low-back 
 
              exercises.  I think she can return to work without 
 
              restriction at any time.  I don't believe any further 
 
              tests are indicated.
 
         
 
         (Def. Ex. A, p. 27)
 
         
 
                                  APPLICABLE LAW
 
         
 
              An employee is entitled to compensation for any and all 
 
         personal injuries which arise out of and in the course of the 
 
         employment.  Section 85.3(l).
 
         
 
              The claimant must prove by a preponderance of the evidence 
 
         that her injury arose out of and in the course of her employment. 
 
          Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 
 
         (1967).
 
         
 
              In the course of employment means that the claimant must 
 
         prove her injury occurred at a place where she reasonably may be 
 
         performing her duties.  McClure v. Union, et al., Counties, 188 
 
         N.W.2d 283 (Iowa 1971).
 
         
 
              Arising out of suggests a causal relationship between the 
 

 
         
 
         
 
         
 
         WHITSEL V. MARIAN HEALTH CENTER
 
         Page   8
 
         
 
         
 
         employment and the injury.  Crowe v. DeSoto Consolidated School 
 
         District, 246 Iowa 402, 68 N.W.2d 63 (1955).
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury of July 12, 1985 is causally related 
 
         to the disability on which she now bases her claim.  Bodish v. 
 
         Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).  Lindahl v. 
 
         L. 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 732 (1955).  The 
 
         question of causal connection is essentially within the domain of 
 
         expert testimony.  Bradshaw v. Iowa Methodist Hospital, 251 Iowa 
 
         375, 101 N.W.2d 167 (1960).
 
         
 
              However, expert medical evidence must be considered with all 
 
         other evidence introduced bearing on the causal connection.  
 
         Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion of experts need 
 
         not be couched in definite, positive or unequivocal language.  
 
         Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974).  The 
 
         expert opinion may be accepted or rejected, in whole or in part, 
 
         by the trier of fact.  Id. at 907.  Further, the weight to be 
 
         given to such an opinion is for the finder of fact, and that may 
 
         be affected by the completeness of the premise given the expert 
 
         and other surrounding circumstances.  Bodish, 257 Iowa 516, 133 
 
         N.W.2d 867.  See also Musselman, 261 Iowa 352, 154 N.W.2d 128.
 
         
 
              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 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).
 
         
 
               Iowa Code section 85.33(l) provides:
 
         
 
                 Except as provided in subsection 2 of this section, 
 
              the employer shall pay to an employee for injury 
 
              producing temporary total disability weekly 
 
              compensation benefits, as provided in section 85.32, 
 
              until the employee has returned to work or is medically 
 
              capable of returning to employment substantially 
 
              similar to the employment in which the employee was 
 
              engaged at the time of injury, whichever occurs first.
 
         
 
              Iowa Code section 85.27 provides, in part:
 
         
 
                 The employer, for all injuries compensable under 
 
              this chapter or chapter 85A, shall furnish reasonable 
 
              surgical, medical, dental, osteopathic, chiropractic, 
 
              podiatric, physical rehabilitation, nursing, ambulance 
 
              and hospital services and supplies therefor and shall 
 

 
         
 
         
 
         
 
         WHITSEL V. MARIAN HEALTH CENTER
 
         Page   9
 
         
 
         
 
              allow reasonably necessary transportation expenses 
 
              incurred for such services.
 
         
 
                                    ANALYSIS
 
         
 
              Claimant has made a claim for two separate injuries, one a 
 
         body as a whole as a result of a fall on July 12, 1985 and one an 
 
         alleged injury resulting in bilateral carpal syndrome in 
 
         September 1985.  While defendant agrees claimant's fall in July 
 
         1985 arose out of and in the course of her employment, claimant 
 
         must establish that the bilateral carpal tunnel syndrome arose 
 
         out of and in the course of her employment because defendant 
 
         makes no such admission with regard to this alleged injury.
 
         
 
              As stated above, arising out of suggests a causal 
 
         relationship between the employment and the alleged injury.  Few 
 
         medical professionals have expressed opinions on this issue.  The 
 
         opinion of Dr. Blume is given less weight because of the amount 
 
         of information given to him by claimant who "had difficulty in 
 
         remembering the course of her pain."  Dr. Isgreen, who was 
 
         claimant's treating physician for some time, rendered varying 
 
         opinions beginning with a conclusion that claimant's weight and 
 
         thyroid state may have predisposed her the carpal tunnel and they 
 
         may be even 100 percent responsible to concluding that the carpal 
 
         tunnel is "almost invariably work-related."  A possibility of 
 
         causal connection is not sufficient; a probability is necessary.  
 
         When Dr. Isgreen's opinions are read together, they present no 
 
         more than a possible connection between the work and the carpal 
 
         tunnel syndrome.  Further, Dr. Isgreen presents no rationale for 
 
         his change of opinion and does not relate a clear understanding 
 
         of claimant's former job responsibilities.  Claimant appears to 
 
         be arguing that since nothing else is likely to have caused the 
 
         carpal tunnel syndrome she is entitled to compensation benefits.  
 
         Yet, claimant's own treating physician refers to the possibility 
 
         that it was caused by the thyroid condition and/or her weight.  
 
         While claimant's argument may help her establish a possible 
 
         causal relationship, it does not establish a probable causal 
 
         relationship.  For these reasons, therefore, claimant has failed 
 
         to establish she sustained an injury which arose out of and in 
 
         the course of her employment.
 
         
 
              There can be no dispute that claimant, prior to her fall on 
 
         July 12, 1985, suffered from back pain.  Medical reports contain 
 
         references to back difficulties in 1977 with visits to 
 
         chiropractors for back pain.  There is no dispute, however, that 
 
         claimant fell on July 12, 1985 and as a result sustained an 
 
         injury.  The essential question for resolution is whether 
 
         claimant sustained any permanent impairment or permanent 
 
         disability as a consequence of that fall.
 
         
 
              Claimant's initial treating physician, John J. Dougherty, 
 
         released her to return to work August 29, 1985, opining that 
 
         claimant did not sustain any significant injury although he 
 
         admits, as early as one month post initial medical treatment, 
 
         that it would be a difficult problem to get claimant back to 
 
         work.  Dr. Dougherty reiterates this opinion on December 24, 1985 
 
         stating that claimant has a degenerative disc at L5-Sl and that 
 
         she could be back at work.  Dr. Isgreen, whose opinion is subject 
 
         to serious question because of his varying opinions relating to 
 

 
         
 
         
 
         
 
         WHITSEL V. MARIAN HEALTH CENTER
 
         Page  10
 
         
 
         
 
         claimant's bilateral carpal tunnel syndrome, opined on January 9, 
 
         1986 that the bulge at L5-Sl may have existed before her fall 
 
         although it was not symptomatic.  Because of the questionable 
 
         nature of Dr. Isgreen's opinion, his opinions with regard to 
 
         claimant's back are given less weight.  In light of his own 
 
         medical report, Dr. Blume's opinion is also subject to serious 
 
         question.  On September 19, 1987, he explained that he agreed 
 
         with Dr. Skorey that the lumbar myelogram which was done on June 
 
         26, 1987 did not show any abnormal findings but that the CT scan 
 
         showed evidence of a ruptured lumbar disc at L5-Sl.  It was Dr. 
 
         Blume's opinion that claimant had a ruptured lumbar disc at L5-S1 
 
         confirmed by myelogram and CT scan which was responsible for her 
 
         low back pain.  However, a review of Dr. Skorey's report dated 
 
         June 26, 1987, does not supply any basis for Dr. BlumeOs opinion.  
 
         Dr. Skorey stated, with regard to the myelogram, that the lumbar 
 
         region felt well with no evidence of any defect.  With regard to 
 
         the CT scan, Dr. Skorey stated that there was no evidence of a 
 
         herniated disc from L4 to Sl.  Consequently, the opinion of Dr. 
 
         Blume is also given little weight.  Finally, Dr. Boarini saw 
 
         claimant in February 1987 and opined that claimant suffered a 
 
         minor back injury in July 1985 and that he could see no evidence 
 
         of any abnormality at the time of the examination.  It is 
 
         determined that the opinion of Dr. Dougherty, claimant's original 
 
         treating physician, and the opinion of Dr. Boarini are entitled 
 
         to greater weight.  As a finding of permanent disability 
 
         generally invokes an initial determination of permanent 
 
         impairment or permanent restriction of work activity and neither 
 
         of these physicians find any impairment nor invoke any permanent 
 
         restriction in claimant's work activity, it is determined that 
 
         claimant has not sustained her burden that the work injury of 
 
         July 12, 1985 is the cause of the disability on which she now 
 
         bases her claim.  At most, claimant has established only that the 
 
         work injury of July 12, 1985 was the cause of a temporary 
 
         aggravation of a preexisting condition for which she is entitled 
 
         to be compensated.
 
         
 
              Pursuant to Iowa Code section 85.33(l), claimant is entitled 
 
         to temporary total disability benefits until she has returned to 
 
         work or is medically capable of returning to employment 
 
         substantially similar to the employment to which she was engaged 
 
         at the time of her injury.  It is determined claimant met the 
 
         requirement of this section on December 22, 1985 when Dr. 
 
         Dougherty stated "this patient could be back to work."  
 
         Therefore, claimant is entitled to temporary total disability 
 
         benefits for the period from July 29, 1985 through August 28, 
 
         1985, inclusive, and September 9, 1985 through November 23, 1985 
 
         as a result of the work injury of July 12, 1985.
 
         
 
              Pursuant to Iowa Code section 85.27, the employer is 
 
         obligated to furnish reasonable services and supplies to treat an 
 
         injured employee and has the right to choose the care.  Defendant 
 
         initially authorized the care of Dr. Dougherty and by 
 
         acquiescence the care of Dr. Isgreen.  Therefore, claimant is 
 
         entitled to payment for medical services as a result of their 
 
         care.  As claimant has not established that the surgery for 
 
         bilateral carpal tunnel syndrome was as a result of an injury 
 
         arising out of and in the course of her employment, defendant 
 
         cannot be held liable for the expenses incurred therefor.  
 
         Claimant's surgery for gastric bypass was also not authorized.  
 

 
         
 
         
 
         
 
         WHITSEL V. MARIAN HEALTH CENTER
 
         Page  11
 
         
 
         
 
         Dr. Isgreen made this recommendation to claimant, did not mandate 
 
         such treatment and, since this expense clearly was not an 
 
         emergency and claimant did not seek authorization therefor, 
 
         claimant is not entitled to payment for those disputed medical 
 
         expenses.  Finally, by claimant's own admission, Dr. Blume's care 
 
         was not authorized.  Consequently, defendant cannot be held 
 
         liable for any expenses arising out of his treatment.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              Wherefore, based on all the evidence presented, the 
 
         following findings of fact are made:
 
         
 
              1.  Claimant sustained an injury which arose out of and in 
 
         the course of her employment on July 12, 1985, when she fell and 
 
         did the "splits."
 
         
 
              2.  Claimant worked part time until July 29, 1985, when she 
 
         sought medical treatment and eventually came under the care of 
 
         John J. Dougherty, M.D.
 
              
 
              3.  Claimant was taken off work until released to return 
 
         without restriction on August 29, 1985.
 
         
 
              4.  Claimant returned to work but maintained she was unable 
 
         to work and therefore left work again September 9, 1985.
 
         
 
              5.  Dr. Dougherty again released claimant to return to work 
 
         November 23, 1985, but claimant declined to do so asserting she 
 
         could not work.
 
         
 
              6.  Claimant continues to assert she is completely unable to 
 
         work.
 
         
 
              7.  Claimant suffered from a preexisting back condition for 
 
         which she had sought treatment.
 
         
 
              8.  Claimant was obese at the time of her fall and suffers 
 
         from a thyroid deficiency.
 
         
 
              9.  Claimant has no permanent impairment nor permanent work 
 
         restriction as a result of her fall on July 12, 1985.
 
         
 
             10.  Claimant temporarily aggravated, as a result of her fall 
 
         on July 12, 1985, a preexisting condition.
 
         
 
             11.  Claimant was diagnosed as having bilateral carpal tunnel 
 
         syndrome on September 12, 1985 and asserts an injury arising out 
 
         of and in the course of her employment. 
 
         
 
             12.  Claimant's treating physician rendered varying opinions 
 
         from claimant's weight and thyroid state may be 100 percent 
 
         responsible for the carpal tunnel to the condition, which is 
 
         almost invariably work related, was work related.
 
         
 
             13.  Claimant's bilateral carpal tunnel syndrome is only 
 
         possibly related to her employment.
 
         
 
             14.  Claimant had a gastric bypass May 22, 1986, after which 
 
         she reduced her weight to approximately 110 pounds but which did 
 

 
         
 
         
 
         
 
         WHITSEL V. MARIAN HEALTH CENTER
 
         Page  12
 
         
 
         
 
         not improve her back condition.
 
         
 
             15.  The care of Dr. Blume and the expenses incurred for 
 
         bilateral carpal tunnel surgery and gastric bypass surgery were 
 
         not authorized.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              Wherefore, based on the principles of law previously stated, 
 
         the following conclusions of law are made:
 
         
 
              1.  Claimant has failed to establish an injury of September 
 
         12, 1985 that arose out of and in the course of employment.
 
              
 
              2.  Claimant has established a temporary aggravation of a 
 
         preexisting condition as a result of the work injury of July 12, 
 
         1985.
 
         
 
              3.  Claimant has established entitlement to temporary total 
 
         disability benefits for the periods from July 29, 1985 through 
 
         August 28, 1985, inclusive, and September 9, 1985 through 
 
         November 23, 1985, as a result of the work injury of July 12, 
 
         1985.
 
         
 
              4.  Claimant has established entitlement to all disputed 
 
         medical expenses incurred only with Dr. Isgreen.
 
         
 
              5.  Claimant has failed to establish the work injury of July 
 
         12, 1985 resulted in any permanent disability.
 

 
         
 
         
 
         
 
         WHITSEL V. MARIAN HEALTH CENTER
 
         Page  13
 
         
 
         
 
         
 
                                      ORDER
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              Defendant is to pay claimant fifteen and two-sevenths (15 
 
         2/7 weeks of temporary total disability benefits at the 
 
         stipulated rate of one hundred ninety-three and 71/100 dollars 
 
         ($193.71) for the periods from July 29, 1985 through August 28, 
 
         1985, inclusive, and September 9, 1985 through November 23, 1985, 
 
         inclusive.
 
         
 
              Defendant shall receive credit for all disability benefits 
 
         previously paid.
 
         
 
              Defendant shall pay all disputed medical expenses incurred 
 
         with Dr. Isgreen.
 
         
 
              Payments that have accrued shall be paid in a lump sum 
 
         together with statutory interest thereon pursuant to Iowa Code 
 
         section 85.30.
 
         
 
              A claim activity report shall be filed upon payment of this 
 
         award.
 
         
 
              Costs of this action are assessed against defendant pursuant 
 
         to Division of Industrial Services Rule 343-4.33.
 
         
 
              Signed and filed this 11th day of May, 1988.
 
         
 
         
 
         
 
                                           DEBORAH A. DUBIK
 
                                           DEPUTY INDUSTRIAL COMMISSIONER
 
                   
 
                 
 
         Copies to:
 
         
 
         Mr. Gary L. Johansen
 
         Attorney at Law
 
         508 Davidson Building
 
         Sioux City, Iowa 51101
 
         
 
         Mr. Frank T. Harrison
 
         Attorney at Law
 
         Terrace Center, Suite 111
 
         2700 Grand Avenue
 
         Des Moines, Iowa 50312
 
         
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                    1108.50; 1402.40
 
                                                    1800
 
                                                    Filed May 11, 1988
 
                                                    Deborah A. Dubik
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         BEVERLY J. WHITSEL,
 
         
 
              Claimant,                             File No. 801042
 
         
 
         vs.
 
                                                 A R B I T R A T I 0 N
 
         MARIAN HEALTH CENTER,
 
                                                    D E C I S I 0 N
 
              Employer,
 
              Self-Insured,
 
              Defendant.
 
         
 
         
 
         
 
         1108.50; 1402.40
 
         
 
              Claimant was injured when she fell at work.  While being 
 
         treated for back pain, doctor diagnosed bilateral carpal tunnel 
 
         syndrome.  Doctor gave varying opinions as to causation.  Held 
 
         claimant failed to meet her burden of proof that carpal tunnel 
 
         was caused by her work.
 
         
 
         1800
 
         
 
              Claimant's injury was found only to have caused a temporary 
 
         aggravation of a preexisting condition.
 
 
 
         
 
         
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            BEVERLY J. WHITSEL,           :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :      File No. 801042
 
                                          :
 
            MARIAN HEALTH CENTER,         :
 
                                          :        R E M A N D
 
                 Employer,                :
 
                 Self-Insurecd,           :       D E C I S I O N
 
                 Defendant.               :
 
                                          :
 
            ___________________________________________________________
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 The above captioned matter originally came on for 
 
            hearing before the undersigned deputy industrial 
 
            commissioner on December 1, 1987.  The decision which 
 
            resulted from that proceeding held that claimant established 
 
            a temporary aggravation of a preexisting condition as a 
 
            result of the work injury of July 12, 1985, but had failed 
 
            to establish the work injury resulted in any permanent 
 
            disability.  The decision was affirmed on appeal to the 
 
            industrial commissioner.
 
            
 
                 Claimant sought judicial review in the Iowa District 
 
            Court for Woodbury County and then filed an application for 
 
            leave to present additional evidence.  The court granted 
 
            claimant's application and thus the matter was remanded to 
 
            the undersigned through the industrial commissioner by the 
 
            court.
 
            
 
                 This matter, therefore, came on for remand hearing on 
 
            April 4, 1991, at the county courthouse in Woodbury County.  
 
            The record was fully submitted at the time of the hearing.  
 
            The additional record consists of joint exhibits 1 through 
 
            8.
 
            
 
                                      issues
 
            
 
                 The issues to be decided are whether the additional 
 
            evidence which was submitted at the hearing on April 4, 
 
            1991, now establishes claimant's entitlement to permanent 
 
            partial disability as a result of the July 12, 1985 injury 
 
            and whether claimant is entitled to medical expenses 
 
            pursuant to Iowa Code section 85.27.
 
            
 
                     
 
            
 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            FINDINGS OF FACT
 
            
 
                 The undersigned deputy industrial commissioner, having 
 
            considered all the evidence submitted, finds that:
 
            
 
                 Neither a further review of the evidence submitted at 
 
            the time of the initial hearing nor the additional evidence 
 
            presented at hearing on April 4, 1991, provides support to 
 
            alter the initial decision entered on May 11, 1988.
 
            
 
                 The additional findings which Dr. Skorey acknowledges 
 
            are present on the 1988 MRI neither account for claimant's 
 
            symptoms nor establish a causal connection to the injury of 
 
            July 12, 1985.
 
            
 
                 Further, the medical treatment which claimant underwent 
 
            since the time of the December 1, 1987, hearing was not 
 
            authorized, did not improve claimant's symptoms and was not 
 
            as a result of the July 12, 1985 injury.
 
            
 
                                conclusions of law
 
            
 
                 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); Yeager v. Firestone Tire & Rubber 
 
            Co., 253 Iowa 369, 112 N.W.2d 299 (1961); Ziegler v. United 
 
            States Gypsum Co., 252 Iowa 613, 106 N.W.2d 591 (1960).  See 
 
            also Barz v. Oler, 257 Iowa 508, 133 N.W.2d 704 (1965); 
 
            Almquist v. Shenandoah Nurseries, 218 Iowa 724, 254 N.W. 35 
 
            (1934).
 
            
 
                 As the evidence presented fails to provide support to 
 
            alter the decision entered May 11, 1988, it is concluded 
 
            that claimant has failed to establish the work injury of 
 
            July 12, 1985, resulted in any permanent disability.
 
            
 
                 Iowa Code section 85.27 provides, in part:
 
            
 
                    The employer, for all injuries compensable 
 
                 under this chapter or chapter 85A, shall furnish 
 
                 reasonable surgical, medical, dental, osteopathic, 
 
                 chiropractic, podiatric, physical rehabilitation, 
 
                 nursing, ambulance and hospital services and 
 
                 supplies therefor and shall allow reasonably 
 
                 necessary transportation expenses incurred for 
 
                 such services.
 
            
 
                 The medical treatment which claimant underwent since 
 
            the time of the December 1, 1987 hearing was not authorized, 
 
            did not improve claimant's symptoms, and was not as a result 
 
            of the July 12, 1985 injury.  Therefore, no award of medical 
 
            expenses may be made.
 
            
 
                           
 
            
 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            order
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 The decision of the undersigned deputy industrial 
 
            commissioner entered May 11, 1988, remains as filed.
 
            
 
                 Signed and filed this ____ day of September, 1991.
 
            
 
            
 
                                          ______________________________
 
                                          DEBORAH A. DUBIK
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies to:
 
            
 
            Mr Gary L Johansen
 
            Attorney at Law
 
            508 Davidson Bldg
 
            Sioux City IA 51101
 
            
 
            Mr Bryan J Arneson
 
            Attorney at Law
 
            340 Ins Exch Bldg
 
            Sioux City IA 51101
 
            
 
            Mr Frank T Harrison
 
            Attorney at Law
 
            Terrace Ctr  Ste 111
 
            2700 Grand Ave
 
            Des Moines IA 50312
 
            
 
            
 
                 
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                           5-2906
 
                           Filed September 30, 1991
 
                           Deborah A. Dubik
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            BEVERLY J. WHITSEL,           :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :      File No. 801042
 
                                          :
 
            MARIAN HEALTH CENTER,         :
 
                                          :        R E M A N D
 
                 Employer,                :
 
                 Self-Insurecd,           :       D E C I S I O N
 
                 Defendant.               :
 
                                          :
 
            ___________________________________________________________
 
            
 
            5-2906
 
            District court directed the taking of additional evidence.  
 
            The evidence, once considered, did not alter the original 
 
            decision entered.