BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         CHARLES EVANS,
 
         
 
              Claimant,
 
                                                      File No. 806023
 
         VS.
 
                                                  A R B I T R A T I O N
 
         KASER CORPORATION,
 
                                                      D E C I S I O N
 
              Employer,
 
         
 
         UNITED STATES FIDELITY AND
 
         GUARANTY COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding in arbitration brought by Charles Evans 
 
         against Kaser Corporation, his former employer, and U S F & G, 
 
         the employer's insurance carrier.  The case was heard in Des 
 
         Moines, Iowa on January 30, 1987 and was fully submitted upon 
 
         conclusion of the hearing.
 
         
 
              The record in the proceeding consists of testimony from 
 
         Charles Evans, Elaine Evans, Kenneth Valentine and Ron Swan.  
 
         Also received into evidence were claimant's exhibits 1, 2, 3, 4, 
 
         5, 6, 12, 13 and 14 and defendants' exhibits A, B, C, D, E and 
 
         F.
 
         
 
                                      ISSUES
 
         
 
              The issues identified by the parties for determination are 
 
         whether Evans sustained an injury which arose out of and in the 
 
         course of his employment; whether the alleged injury is a 
 
         proximate cause of temporary or permanent disability; whether the 
 
         alleged injury is a proximate cause for medical expenses incurred 
 
         by Evans; and, determination of the claimant's entitlement to 
 
         compensation for healing period and permanent partial disability.  
 
         Also an issue in the case is the rate of compensation.  The 
 
         employer has raised a defense of lack of notice under the 
 
         provisions of section 85.23 of the Code.  The employer also seeks 
 
         credit, should there be an award, in the amount of unemployment 
 
         benefits paid to Evans.
 
         
 
                             SUMMARY OF EVIDENCE
 
         
 
              Charles Evans is a 46-year-old man who had been employed by 
 
         Kaser Corporation since 1969.
 

 
         
 
         
 
         
 
         EVANS V. KASER CORPORATION
 
         Page   2
 
         
 
         
 
         
 
              Evans testified that in November of 1984 he experienced 
 
         discomfort in his arms while swinging a sledge hammer as part of 
 
         a crew removing hammers from a hammer mill at the employer's 
 
         quarry.  Evans testified that, at the time it occurred, he 
 
         advised his supervisor, Ken Valentine, that he thought he had 
 
         hurt his arms.  Evans stated that Valentine told him to report it 
 
         to Ron Swan, another supervisor.  Evans testified that Swan told 
 
         him to wait for a layoff before doing anything because he would 
 
         draw more money on layoff than from workers' compensation.
 
         
 
              Evans testified that he continued to work, but with 
 
         difficulties and stated that at night his arms were so sore that 
 
         he could hardly straighten them out.  Activities such as 
 
         shoveling and changing hammers aggravated his arms.  No layoff 
 
         occurred and Evans testified that he again talked with Swan on 
 
         April 26, 1985.  He reported that his elbows had continued to 
 
         hurt and that he was then experiencing numbness in his hands and 
 
         increased pain.  Evans testified that he had informed Ken 
 
         Valentine that he had a doctor's appointment on that Saturday, 
 
         but that Valentine told him that he was scheduled to work and 
 
         sent him to see Swan.  Evans testified that Swan denied having 
 
         any prior knowledge of any complaint regarding claimant's arms or 
 
         any layoff that was intended to occur.
 
         
 
              Evans kept his appointment with C. D. Vander Linden, M.D. on 
 
         April 27, 1985 and was advised to stay off work for one week 
 
         (defendants' exhibit A).
 
         
 
              Evans testified that on the next day, Sunday, he gave the 
 
         release from work slip to Ken Valentine and requested a one-week 
 
         vacation, but that the request was denied.  Claimant stayed off 
 
         work and then, when he returned to the quarry to pick up his 
 
         check, was told that he had been laid off.
 
         
 
              Claimant testified that the time off work did not resolve 
 
         the problems in his arms and he was then referred to Jerome G. 
 
         Bashara, M.D.  A diagnosis of bilateral ulnar nerve compression 
 
         was made (claimant's exhibit 13, page 9).  Surgical decompression 
 
         of the condition was performed with surgery on the left arm 
 
         performed on June 27, 1985 and surgery on the right performed on 
 
         August 1, 1985 (defendants' exhibits B and C).
 
         
 
              Dr. Bashara indicated that the cause of claimant's condition 
 
         was repetitive movement or trauma (claimant's exhibit 13, page 
 
         10).  He stated that sledge hammer use over a period of time 
 
         could cause the condition, but that bow hunting would not cause 
 
         it (claimant's exhibit 13, pages 17 and 18).  He had never 
 
         previously seen the condition, in a bilateral form, in a truck 
 
         driver and stated that normal day to day living would not cause 
 
         it (claimant's exhibit 13, page 23).  Dr. Bashara stated that 
 
         conservative treatment in the nature of restricted activity and 
 
         medication is generally attempted prior to surgical treatment 
 
         (claimant's exhibit 13, pages 11 and 12).  He recommended that 
 
         claimant not work after May 16, 1985 and stated that claimant was 
 
         incapacitated from May 16 through September 27, 1985 (claimant's 
 
         exhibit 13, pages 12 and 13).  Dr. Bashara opined that claimant 
 
         had a residual five percent permanent impairment of each arm as a 
 
         result of the condition and treatment (claimant's exhibit 13, 
 

 
         
 
         
 
         
 
         EVANS V. KASER CORPORATION
 
         Page   3
 
         
 
         
 
         page 15).
 
         
 
              In obtaining care for his arms, claimant incurred the 
 
         following medical expenses:
 
         
 
              Exhibit 12 - Knoxville Area Hospital     $1,791.70
 
              Exhibit  2 - Mater Clinic                   697.00
 
              Exhibit  3 - Physiatry Associates           150.00
 
              Exhibit  4 - Iowa Orthopaedics, P.C.      1,915.00
 
              Exhibit  5 - Schmaltz Med Shoppe             12.89
 
         
 
              Total                                    $4,566.59
 
         
 
              Claimant testified that he obtained employment driving a 
 
         truck for Ben Shinn on October 1, 1985.  He stated that he still 
 
         has problems with his elbows in the nature of weakness and 
 
         discomfort.  He demonstrated inability to completely straighten 
 
         his arms.
 
         
 
              Between the time of claimant's layoff from Kaser and his 
 
         return to employment with Shinn, he received unemployment 
 
         benefits in the amount of $3,168.00.  During that time, he 
 
         applied for a number of jobs in order to receive unemployment.  
 
         He certified that he was ready, willing and able to work within 
 
         the context of his medical restrictions.
 
         
 
              Evans stated that between November, 1984 and April, 1985 he 
 
         tried to see if the condition in his arms would improve.
 
         
 
              Elaine Evans, claimant's wife, testified that on a day in 
 
         November, 1984, claimant complained to her that he had hurt his 
 
         arm.  She stated that she tried to get him to go to the doctor 
 
         because he appeared to be in a lot of pain and that the condition 
 
         seemed to slowly worsen.
 
         
 
              Mrs. Evans testified that, following surgery, the condition 
 
         of claimant's arms improved, but that he still has limitations in 
 
         the use of his arms.
 
         
 
              Ken Valentine and Ron Swan denied having any knowledge of 
 
         Evans' making any allegation of injury to his arms until April, 
 
         1985.  Valentine could not recall the exact day.  Valentine 
 
         confirmed that claimant brought the work release from the doctor 
 
         to his home.  Valentine stated that he took the slip to Ron Swan 
 
         and on Monday, told claimant that he was to take three weeks of 
 
         vacation and would then be laid off.  Valentine testified that 
 
         Evans was capable of being a good worker, but had a bad attitude.  
 
         Valentine testified that he makes notes of whenever an injury is 
 
         reported and had no record of claimant reporting any injury prior 
 
         to April.  He stated that the quarry has a waiting list of 
 
         applicants for employment and that those people who are currently 
 
         employed are reluctant to take time off.  Valentine stated that 
 
         claimant was a morale problem at the quarry, but that morale is 
 
         now good and that no one has been hired to replace claimant.
 
         
 
              Ron Swan testified that an injury report is filled out for 
 
         all accidents, no matter how small, and that he had none from 
 
         November of 1984 dealing with claimant's arms.  He denied any 
 
         recollection of claimant reporting injury to his arms in 
 

 
         
 
         
 
         
 
         EVANS V. KASER CORPORATION
 
         Page   4
 
         
 
         
 
         November.  Swan testified that his son may have filled in at the 
 
         quarry after Evans was laid off.  He stated that the decision to 
 
         lay Evans off was made together with Ken Valentine after they 
 
         found out that Evans was going to be taking time off from work.  
 
         Swan confirmed that, of those employed at the quarry, claimant 
 
         was close to having the most seniority with the company.
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              The first issue to be addressed is that of notice under 
 
         section 85.23.  The defense is an affirmative defense with the 
 
         burden of proof resting on the employer.  Mefferd v. Ed Miller & 
 
         Sons, Inc., 33 Biennial Report, Iowa Industrial Commissioner 191 
 
         (1977).
 
         
 
              The discovery rule applies in order to determine the time at 
 
         which the worker is required to give notice.  It is that time 
 
         when the worker realizes the nature, seriousness and probable 
 
         compensable character of the injury.  Robinson v. Dept. of 
 
         Transportation, 296 N.W.2d 809 (Iowa 1980).
 
         
 
              The rule is the same as that which applies to the statute of 
 
         limitations under section 85.26.  The normal rules governing 
 
         statutes of limitations are that they generally do not begin to 
 
         run until some type of recovery is possible.  Stoller Fisheries, 
 
         Inc. v. American Title Insurance Company, 258 N.W.2d 336 (Iowa 
 
         1977).  In this case, Evans had no claim for any type of benefit 
 
         prior to the time he incurred medical expenses with Dr. Vander 
 
         Linden on April 27, 1985.  He had not missed any time from work 
 
         until that date.  A close reading of McKeever Custom Cabinets v.
 
         
 
         
 
         Smith, 379 N.W.2d 368 (Iowa 1985) indicates that cumulative 
 
         injury rule is something that is part of the discovery rule.  It 
 
         is not something which is separate and distinct.  In McKeever, 
 
         the court ruled that a person would not be held to have realized 
 
         the seriousness of a condition resulting, at least in part, from 
 
         cumulative trauma, until the condition required the person to be 
 
         absent from work for purposes of treatment or disability.  It is 
 
         found that in this case the injury is one,which, in part, is a 
 
         result of cumulative trauma with the event of November, 1984 
 
         being one of the major events.  It is further found that Evans 
 
         should not be held to have realized the seriousness of his 
 
         condition until such time as it did not go away while he 
 
         continued to work and it became necessary for him to seek medical 
 
         care.  This would therefore make the date of occurrence of injury 
 
         for purposes of section 85.23 approximately April 27, 1985, the 
 
         date claimant sought medical care and was advised to take off 
 
         work by Dr. Vander Linden.  There is no evidence in the record 
 
         sufficient to hold Evans accountable for knowing that the 
 
         condition in his arms would be sufficiently serious to require 
 
         active treatment in the nature of taking time off work and 
 
         surgery until he entered into the course of medical treatment.  
 
         It was certainly not unreasonable for a worker to continue to 
 
         work, even though experiencing pain, when the injury is one, such 
 
         as in this case, which appears to be something in the nature of a 
 
         relatively minor sprain or strain which could possibly resolve on 
 
         its own with the mere passage of time.  For the section 85.27 
 
         defense to be successful in this case, it would be incumbent upon 
 

 
         
 
         
 
         
 
         EVANS V. KASER CORPORATION
 
         Page   5
 
         
 
         
 
         the employer to show that claimant realized the seriousness of 
 
         his condition more than 90 days prior to April 27, 1985.  The 
 
         only evidence of such in the record would come from claimant's 
 
         own testimony of discussing a desire to take off work with Swan 
 
         and Valentine, which testimony was vehemently denied and refuted 
 
         by Swan and Valentine.  It is therefore concluded that this claim 
 
         is not barred by the provisions of section 85.23.  In deciding 
 
         this issue it is recognized that irreconcilable differences exist 
 
         between the testimony of claimant and testimony from Swan and 
 
         Valentine.  The fact that claimant was laid off as a means of 
 
         terminating his employment, even though he was one of the more 
 
         senior employees, is ample evidence of animosity which casts a 
 
         shadow of doubt upon the credibility of the testimony coming from 
 
         the employer.  In either event, however, either claimant gave 
 
         notice as he testified or he did not and application of the 
 
         discovery rule comes into play.  It is therefore concluded that 
 
         this claim is not barred by the provisions of section 85.23 of 
 
         the code.  It was conceded by the employer that claimant did give 
 
         notice of injury on or about April 26, 1985.
 
         
 
              Claimant urges application of the cumulative injury rule for 
 
         determining the date of injury and the resulting date upon which 
 
         it was necessary to give notice of injury.  Claimant testified
 
         
 
         of an event in November, 1984.  He also testified concerning 
 
         aggravations from shoveling and other activities during the 
 
         several months that he continued to work leading up to his first 
 
         appointment with Dr. Vander Linden on April 27, 1985.  Claimant 
 
         described a worsening of his symptoms including increasing pain 
 
         in his elbows and fingers in each hand becoming numb.  However 
 
         the evidence is characterized, it is clear that the first day of 
 
         disability was April 27, 1985.  A close reading of McKeever 
 
         Custom Cabinets v. Smith, 379 N.W.2d 368 (Iowa 1985) shows the 
 
         case to be a part of the discovery rule which is applied to 
 
         cumulative trauma cases.  It simply provides that a worker is not 
 
         to be held to recognize the seriousness of the injury which 
 
         results from cumulative trauma until it produces disability from 
 
         working.  In this regard, it is consistent with rules generally 
 
         applied to statutes of limitations such as that the period of 
 
         limitations runs from the occurrence of each injury in those 
 
         circumstances where continuing injury exists.  Anderson v. 
 
         Yearous, 249 N.W.2d 855 (Iowa 1977).  A statute does not 
 
         generally begin to run until circumstances have evolved to the 
 
         point that the injured party is entitled to a remedy.  Stoller 
 
         Fisheries, Inc. v. American Title Insurance Co., 258 N.W.2d 336, 
 
         341 (Iowa 1977).  Evans certainly had nothing to recover prior to 
 
         April 27, 1985 when he first missed work and sought medical care 
 
         for his condition.  The worsening of claimant's condition to the 
 
         extent that he sought medical care is evidence which supports 
 
         application of the cumulative injury rule.  It is therefore found 
 
         that claimant's injury was produced, at least in part, by 
 
         cumulative trauma occurring up to and through April 26, 1985.  It 
 
         is therefore found and concluded that the bilateral ulnar nerve 
 
         compression which affected claimant was an injury which arose out 
 
         of and in the course of his employment.  The date of occurrence 
 
         of injury is fixed at April 26, 1985.
 
         
 
              Claimant has the burden of proving by a preponderance of the 
 
         evidence that he received an injury which arose out of and in the 
 

 
         
 
         
 
         
 
         EVANS V. KASER CORPORATION
 
         Page   6
 
         
 
         
 
         course of his employment.  McDowell v. Town of Clarksville, 241 
 
         N.W.2d 904 (Iowa 1976); Musselman v. Central Telephone Co., 261 
 
         Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury of April 27, 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).  The causal 
 
         connection is made by Dr. Bashara in his deposition and in 
 
         claimant's exhibit 1.
 
         
 
         
 
         
 
              Claimant seeks compensation for healing period under section 
 
         85.34(l). Dr. Bashara indicated that claimant's period of 
 
         incapacity ran until approximately October 1, 1985 (claimant's 
 
         exhibit 1, page 2).  In his deposition, Dr. Bashara placed the 
 
         period of incapacity to run from May 16 through September 27, 
 
         1985 (claimant's exhibit 13, page 13).  The deposition testimony 
 
         is accepted as correct for purposes of marking the time at which 
 
         claimant became medical incapable of returning to employment 
 
         substantially similar to that in which he was engaged at the time 
 

 
         
 
         
 
         
 
         EVANS V. KASER CORPORATION
 
         Page   7
 
         
 
         
 
         of injury.  This computes to a healing period of 22 weeks.  There 
 
         is nothing in the record to indicate that claimantOs condition 
 
         had changed substantially subsequent to April 27, 1985 when Dr. 
 
         Vander Linden took him off work until the recovery from the 
 
         surgery performed by Dr. Bashara.
 
         
 
              The parties stipulated that in the event of liability, the 
 
         proper recovery for permanent partial disability is 25 weeks 
 
         representing five percent loss of use of each arm.  This would 
 
         appear to fall under section 85.34(2)(m).  It could be urged that 
 
         the disability should be compensated under section 85.34(2)(s), 
 
         however, the stipulation made by the parties is accepted as 
 
         correct.
 
         
 
              Under the cumulative trauma rule, the rate of compensation 
 
         is determined based upon the 13 weeks preceding the date of 
 
         injury.  The parties stipulated that, if an injury date of April 
 
         27, 1985 was applicable, the rate of compensation would be 
 
         $230.24.  This would appear to be correct using the figures 
 
         provided by claimant's exhibit 14.
 
         
 
              Claimant seeks to recover expenses of treatment.  Those 
 
         expenses may be summarized as follows:
 
         
 
              Knoxville Area Community Hospital       $1,791.70
 
              Mater Clinic                               697.00
 
              Physiatry Associates, P.C.                 150.00
 
              Iowa Orthopaedics,                       1,915.00
 
              Schmaltz Med Shoppe                         12.89
 
         
 
              Total                                   $4,566.59
 
         
 
              A review of the medical records received into evidence shows 
 
         all the charges contained in claimant's exhibits 2, 3, 4, 5 and 
 
         12 to have been incurred for treatment of the bilateral ulnar 
 
         nerve compression.  Those expenses are therefore found to be the 
 
         responsibility of the defendants.
 
         
 
         
 
         
 
              Defendants seek credit for the workers' compensation 
 
         benefits for the amount of unemployment compensation paid to 
 
         Evans.  The general rule, as codified in section 85.38(l) is that 
 
         payments from collateral sources do not satisfy an employer's 
 
         workers' compensation liability [IV Larson Workmen's Compensation 
 
         Law, section 97.51(a)].  There is no statutory provision which 
 
         provides for an offset of unemployment against the employer's 
 
         workers' compensation liability.  To the contrary, Code section 
 
         96.5(5)(b) provides that unemployment benefits are not payable 
 
         for any week for which the individual is receiving compensation 
 
         for temporary disability under the workers' compensation law and 
 
         in subsection C, goes on to provide that the Division of Job 
 
         Service shall recover any overpayment of unemployment 
 
         compensation.  The defendants' request, if granted, could result 
 
         in Evans having to repay the Division of Job Service for the 
 
         excess benefits paid and yet also allow the defendants to receive 
 
         a credit for the payment of those same amounts which are being 
 
         repaid to the Division of Job Service.  The net result would be 
 
         that Evans would end up with neither healing period nor 
 

 
         
 
         
 
         
 
         EVANS V. KASER CORPORATION
 
         Page   8
 
         
 
         
 
         unemployment compensation.  The agency has previously ruled that 
 
         no credit is due for unemployment benefits. [Redd v. Bil Mar 
 
         Foods, Inc., I Iowa Industrial Commissioner Report, 275 (1981)].  
 
         DefendantsO request for credit is therefore denied.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              1.  On April 26, 1985 Charles Evans was a resident of the 
 
         state of Iowa employed by Kaser Corporation in the state of 
 
         Iowa.
 
         
 
              2.  On April 26, 1985 Charles Evans sustained injury to his 
 
         arms through a cumulative trauma process while working as a truck 
 
         driver and performing other duties for his employer.
 
         
 
              3.  Following the injury Evans was medically incapable of 
 
         performing work in employment substantially similar to that he 
 
         performed at the time of injury from April 27, 1985 through 
 
         September 27, 1985 when claimant became medically capable of 
 
         returning to employment substantially similar to that in which he 
 
         was engaged at the time of injury.
 
         
 
              4.  The injury was bilateral ulnar nerve compression in both 
 
         of claimant's arms which resulted from use of a sledge hammer, 
 
         shoveling, driving a truck and other activities in his 
 
         employment, which occurrences continued and caused the condition 
 
         to progressively worsen until April 27, 1985 when claimant first 
 
         sought medical treatment.
 
         
 
              5.  Treatment before the injury was provided by C. D. Vander 
 
         Linden, M.D. at the Mater Clinic, the Knoxville Area Community 
 
         Hospital, Physiatry Associates, Iowa Orthopaedics, P.C. and 
 
         Schmaltz Med Shoppe, in which total costs of $4,566.59 were 
 
         incurred.
 
         
 
              6.  As a result of the injury, claimant has a residual five 
 
         percent impairment of each arm.
 
         
 
              7.  Charles Evans is found to be a credible witness and the 
 
         credibility of the witnesses called by the defense is impaired.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              This agency has jurisdiction of the subject matter of this 
 
         proceeding and its parties.
 
         
 
              Charles Evans sustained injury to both arms which arose out 
 
         of and in the course of his employment with Kaser Corporation 
 
         through a cumulative trauma process which became disabling on 
 
         April 27, 1985.
 
         
 
              Evans is entitled to receive 22 weeks of compensation for 
 
         healing period and 25 weeks of compensation for permanent partial 
 
         disability, all at the stipulated rate of $230.24 per week.
 
         
 
              Unemployment compensation benefits do not constitute a 
 
         proper credit toward the employer's liability for paying 
 
         compensation for healing period or permanent partial disability.
 
         
 

 
         
 
         
 
         
 
         EVANS V. KASER CORPORATION
 
         Page   9
 
         
 
         
 
                                      ORDER
 
         
 
              IT IS THEREFORE ORDERED that defendants pay claimant 
 
         twenty-two (22) weeks of compensation for healing period at the 
 
         rate of two hundred thirty and 24/100 dollars ($230.24) per week 
 
         commencing April 27, 1985.
 
         
 
              IT IS FURTHER ORDERED that defendants pay claimant 
 
         twenty-five (25) weeks of compensation for permanent partial 
 
         disability at the rate of two hundred thirty and 24/100 dollars 
 
         ($230.24) per week commencing September 28, 1985.
 
         
 
              IT IS FURTHER ORDERED that defendants pay claimant four 
 
         thousand five hundred sixty-six and 59/100 dollars ($4,566.59) in 
 
         satisfaction of section 85.27 liability for the following 
 
         expenses:
 
         
 
              Mater Clinic                              $697.00
 
              Physiatry Associates                       150.00
 
              Iowa Orthopaedics, P.C.                  1,915.00
 
              Schmaltz Med Shoppe                         12.89
 
              Knoxville Area Community Hospital        1,791.70
 
         
 
         
 
         
 
         
 
         
 
              IT IS FURTHER ORDERED that all amounts of compensation are 
 
         past due and owing and shall be paid in a lump sum together with 
 
         interest pursuant to section 85.30.
 
         
 
              IT IS FURTHER ORDERED that the costs of this proceeding are 
 
         assessed against defendants pursuant to Rule 343-4.33.
 
         
 
              IT IS FURTHER ORDERED that defendants file Claim Activity 
 
         Reports as requested by the agency pursuant to Rule 343-3.1.
 
         
 
         
 
         
 
              Signed and filed this 26th day of June, 1987.
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
                                          MICHAEL G. TRIER
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Donald G. Beattie
 
         Attorney at Law
 
         204 Eighth Street SE
 
         Altoona, Iowa 50009
 
         
 
         Mr. Ross Sidney
 
         Ms. Iris Post
 

 
         
 
         
 
         
 
         EVANS V. KASER CORPORATION
 
         Page  10
 
         
 
         
 
         Attorneys at Law
 
         2222 Grand Avenue
 
         P.O. Box 10434
 
         Des Moines, Iowa 50306
 
 
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                             2209, 1802, 1700, 1704,
 
                                             1403.30, 2401
 
                                             Filed June 26, 1987
 
                                             MICHAEL G. TRIER
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         CHARLES EVANS,
 
         
 
              Claimant,
 
         
 
         VS.                                        File No. 806023
 
         
 
                                                 A R B I T R A T I 0 N
 
         KASER CORPORATION,
 
                                                    D E C I S I 0 N
 
              Employer,
 
         
 
         UNITED STATES FIDELITY AND
 
         GUARANTY COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
         2209, 1802, 1700, 1704, 1403.30, 2401
 
         
 
              In a record of conflicting evidence the claimant's testimony 
 
         was found to be credible.  The cumulative injury rule was applied 
 
         to bilateral ulnar nerve compression.  The employer's section 
 
         85.23 defense was held to be inapplicable.  The employer sought 
 
         credit for unemployment compensation, but such was denied as 
 
         being inconsistent with section 96.5 of the Code, IV Larson, 
 
         section 51 and prior agency precedent.
 
 
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                   BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         GARY ROACH,
 
         
 
              Claimant,                             File No. 806034
 
         
 
         vs.                                          A P P E A L
 
         
 
         FIRESTONE TIRE RUBBER COMPANY,             D E C I S I O N
 
         
 
              Employer,
 
                                                       F I L E D
 
         and
 
                                                      AUG 24 1989
 
         CIGNA INSURANCE COMPANY,
 
                                                  INDUSTRIAL SERVICES
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              Defendants appeal from an arbitration decision awarding 
 
         healing period benefits and permanent partial disability benefits 
 
         based on an industrial disability of 35 percent of the body as a 
 
         whole.
 
         
 
              The record on appeal consists of the transcript of the 
 
         arbitration hearing and the exhibits listed in the prehearing 
 
         report.  Both.parties filed briefs on appeal.
 
         
 
                                  ISSUES
 
         
 
              The issues on appeal are whether the claimant's injury was 
 
         the cause of permanent partial impairment to the body as a whole 
 
         and the extent of claimant's industrial disability.
 
         
 
                          REVIEW OF THE EVIDENCE
 
         
 
              The arbitration decision dated April 22, 1988, adequately 
 
         and accurately reflects the pertinent evidence and it will not be 
 
         reiterated herein.  However, it should be noted that one of the 
 
         physicians was Sinesio Misol, M.D., orthopedic surgeon.
 
         
 
                              APPLICABLE LAW
 
         
 
              The citations of law in the arbitration decision are 
 
         appropriate to the issues and evidence.
 
         
 
                                 ANALYSIS
 
         
 
              The first issue to be resolved is whether claimant has 
 
         suffered an injury to the body as a whole.  A difficulty in 
 
         resolving this issue is that the medical personnel involved had 
 
                                                
 
                                                         
 
         difficulty in determining the cause of claimant's complaints. 
 
         Claimant was consistent in describing symptoms that included pain 
 
         in the left shoulder and left shoulder blade.  Scott Neff, D.O., 
 
         and Dr. Misol; Judith L. Halverson, L.P.T.; and doctors at the 
 
         University of Iowa Hospitals and Clinics all noted a winging of 
 
         the left scapula.  Also, Robert C. Jones, M.D., and the doctors 
 
         at the University of Iowa Hospitals and Clinics diagnosed 
 
         claimant as having long thoracic nerve injury.  The doctors at 
 
         the University of Iowa Hospitals and Clinics made the diagnosis 
 
         when claimant was referred there by Dr. Misol who had suspected 
 
         an injury to the long thoracic nerve.  Claimant's complaints 
 
         primarily manifest themselves in his inability to use his left 
 
         arm.  The medical evidence which explains that claimant's 
 
         complaints are the result of an injury to the long thoracic nerve 
 
         is not rebutted by any medical evidence from defendants.  The 
 
         actual situs of claimant's injury is his shoulder.  The injury is 
 
         an injury to the body as a whole.
 
         
 
              The next issue to be resolved is the extent of claimant's 
 
         industrially disability.  The defendants correctly note that the 
 
         deputy relied upon the stability of the employer in making a 
 
         determination of industrial disability.
 
         
 
                   Although relied on by the deputy, the relative 
 
              stability or instability of the company claimant presently 
 
              works for is not a relevant factor in the determination of 
 
              industrial disability.  It is apparent that many companies 
 
              may remain in business for years in an unstable condition, 
 
              yet the employees of the company continue to work and suffer 
 
              no loss of income as a result of that instability.  Basing 
 
              an award on such future events would improperly rely on 
 
              speculation. Claimant's award must be based on his present 
 
              condition. Knight v. Prince Manufacturing Co., (Appeal 
 
              Decision June 2, 1989).
 
         
 
              Dr. Jones gave claimant a permanent physical impairment 
 
         rating of five percent and found no limitation of motion of the 
 
         neck or shoulder.  It appears Dr. Jones' rating was therefore to 
 
         the left upper extremity.  Dr. Neff originally opined in February 
 
         1985 that claimant did not have a "profound disability" and 
 
         should be able to continue with essentially normal activity with 
 
         the exception of heavy repetitive pulling with the left arm.  One 
 
         week later Dr. Neff opined that claimant could work without 
 
         limitation or restriction and that claimant has no permanent 
 
         impairment or disability.  Dr. Neff does not explain his rather 
 
         sudden change in opinion and his opinions can be given little 
 
         weight.  Dr. Misol, in March 1985, did not believe that there 
 
         would be permanent partial physical impairment in the long term.  
 
         In November 1986, after consulting "appropriate AMA tables for 
 
         peripheral nerves" Dr. Misol found "the amount of impairment to 
 
         the extremity is 15 percent".  Dr. Misol's change of opinions, if 
 
         any, can be attributed to a later use of the AMA tables which he 
 
         did not use earlier.  Therefore, Dr. Misol's later opinion can be 
 
         given some weight.  In summary, the medical evidence in this case 
 
         indicates that claimant has 5-15 percent permanent impairment to 
 
                                                
 
                                                         
 
         the left upper extremity and a limited impairment to the body as 
 
         a whole.
 
         
 
              Claimant attempted to return to his work at defendant 
 
         employer doing tire building but was unable to do so.  Claimant's 
 
         medical condition prevents him from returning to his former work 
 
         at defendant employer and any other work that he has held in the 
 
         past to which he is best suited.  Claimant is currently working a 
 
         light duty job at defendant employer.
 
         
 
              Claimant was 35 years old at the time of the injury and 
 
         should be in the most productive years of his life.  His 
 
         disability is more severe than would be the case for a younger or 
 
         older individual.  Claimant is motivated to remain employed.  
 
         When all factors are considered, claimant has suffered a 20 
 
         percent loss of earning capacity from his work injury.
 
         
 
                             FINDINGS OF FACT
 
         
 
              1.  Claimant was born in 1948 and was 35 years of age on 
 
         December 14, 1983.
 
         
 
              2.  On December 14, 1983, claimant suffered an injury to his 
 
         left shoulder and mid back consisting of an injury to the long 
 
         thoracic nerve which arose out of and in the course of employment 
 
         at defendant employer.
 
         
 
              3.  The work injury of December 14, 1983, was a cause of a 
 
         permanent partial impairment to the body as a whole and of 
 
         permanent restrictions upon claimant's physical activity 
 
         consisting of no heavy pushing or pulling with his left arm or 
 
         shoulder.
 
         
 
              4.  Claimant has a permanent impairment of 5-15 percent to 
 
         the left upper extremity.
 
         
 
              5.  Claimant has a limited permanent impairment to the body 
 
         as a whole.
 
         
 
              6.  Claimant is unable to return to tire building or most 
 
         other work he has performed in the past which consists mostly of 
 
         heavy manual labor in a manufacturing environment.
 
         
 
              7.  Claimant has suffered a loss of actual earnings.
 
         
 
              8.  Claimant's current job at defendant employer is a 
 
         special light duty job.
 
         
 
              9.  Claimant is a high school graduate.
 
         
 
              10.  Claimant is motivated to be employed.
 
         
 
              11.  There is little evidence to indicate claimant's 
 
         potential for vocational rehabilitation.
 
         
 
                                                
 
                                                         
 
              12.  Claimant has suffered a 20 percent loss of earnings 
 
         capacity as a result of the work injury on December 14, 1983.
 
         
 
                           CONCLUSIONS OF LAW
 
         
 
              Claimant has established that the work injury of December 
 
         14, 1983 was an injury to the body as a whole.
 
         
 
              Claimant has established that he suffered an industrial 
 
         disability of 20 percent as a result of the work injury of 
 
         December 14, 1983.
 
         
 
              WHEREFORE, the decision of the deputy is affirmed and 
 
         modified.
 
         
 
                                   ORDER
 
         
 
              THEREFORE, it is ordered:
 
         
 
              That defendants shall pay to claimant one hundred (100) 
 
         weeks of permanent partial disability benefits at the rate of 
 
         three hundred ninety-eight and 24/100 dollars ($398.24) per week 
 
         from November 21, 1986.
 
         
 
              That defendants shall pay to claimant healing period 
 
 
 
                   
 
                                                         
 
         benefits from April 8, 1986 through August 25, 1986 at the rate 
 
         of three hundred ninety-eight and 24/100 dollars ($398.24) per 
 
         week.
 
         
 
              That defendants shall pay accrued weekly benefits in a lump 
 
         sum.
 
         
 
              That defendants shall pay interest on benefits awarded 
 
         herein as set forth in.Iowa Code section 85.30.
 
         
 
              That defendants shall pay the cost of this action including 
 
         the costs of transcribing the arbitration hearing pursuant to 
 
         Division of Industrial Services Rule 343-4.33.
 
         
 
              That 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 24th day of August, 1989.
 
         
 
         
 
         
 
         
 
         
 
                                               DAVID E. LINQUIST
 
                                            INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. David D. Drake
 
         Attorney at Law
 
         West Towers Office Complex
 
         1200 35th Street, Suite 500
 
         West Des Moines, Iowa  50265
 
         
 
         Mr. Frank T. Harrison
 
         Attorney at Law
 
         Suite 111, Terrace Center
 
         2700 Grand Avenue
 
         Des Moines, Iowa  50312
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                 1803 - 1803.1
 
                                                 Filed August 24, 1989
 
                                                 DAVID E. LINQUIST
 
         
 
                   BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         GARY ROACH,
 
         
 
              Claimant,                                File No. 806034
 
         
 
         vs.
 
                                                        A P P E A L 
 
         FIRESTONE TIRE & RUBBER COMPANY,
 
         
 
              Employer,                                D E C I S I 0 N
 
         
 
         and
 
         
 
         CIGNA INSURANCE COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
         1803 - 1803.1
 
         
 
              Claimant's work injury was to his left shoulder and mid back 
 
         and the long thoracic nerve.  Claimant's injury was an injury to 
 
         the body as a whole.  Claimant, who was 35 years old at time of 
 
         injury, had an impairment of 5-15 percent of the upper extremity. 
 
         Claimant had limited permanent impairment to the body as a whole. 
 
         Claimant found to have a 20 percent industrial disability. 
 
         Deputy's award of 35 percent reduced on appeal.  Deputy 
 
         improperly relied upon the stability of the employer in 
 
         determining industrial disability.
 
 
 
         
 
                                                
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         GARY ROACH,
 
         
 
              Claimant,
 
                                                   FILE NO. 806034
 
         vs.
 
                                                A R B I T R A T I 0 N
 
         FIRESTONE TIRE & RUBBER COMPANY
 
                                                   D E C I S I 0 N
 
              Employer,
 
         
 
         and
 
         
 
         CIGNA INSURANCE COMPANIES,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              This is a proceeding in arbitration brought by Gary Roach, 
 
         claimant, against Firestone Tire & Rubber Company, employer 
 
         (hereinafter referred to as Firestone), and Cigna Insurance 
 
         Companies, insurance carrier, for workers' compensation benefits 
 
         as a result of an alleged injury in December, 1983.  On February 
 
         23, 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 only from claimant.  
 
         The exhibits received into the evidence at the hearing are listed 
 
         in the prehearing report.  According to the prehearing, the 
 
         parties have stipulated to the following matters:
 
         
 
              1.  Claimant's rate of weekly compensation in the event of 
 
         an award of weekly benefits from this proceeding shall be $398.34 
 
         per week.
 
         
 
              2.  Claimant is seeking temporary total disability or 
 
         healing period benefits from April 8, 1986 through August 25, 
 
         1986 in this proceeding and defendants agree that if they are 
 
         held liable for a work injury as alleged, claimant would be 
 
         entitled to healing period benefits for this period of time.
 
         
 
         
 
              3.  If permanent disability benefits are awarded herein, 
 
         such benefits shall begin on November 21, 1986.
 
         
 

 
         
 
         
 
         
 
         ROACH V. FIRESTONE TIRE & RUBBER COMPANY
 
         Page   2
 
         
 
                                    ISSUES
 
         
 
              The parties have submitted the following issues for 
 
         determination in this proceeding:
 
         
 
              I. Whether claimant received an injury arising out of and in 
 
         the course of his employment;
 
         
 
             II. Whether there is a causal relationship between the work 
 
         injury and the claimed disability; and,
 
         
 
            III. The extent of claimant's entitlement to weekly benefits 
 
         for permanent disability.
 
         
 
                             SUMMARY OF THE EVIDENCE
 
         
 
              The following is a summary of evidence presented in this 
 
         case.  For the sake of brevity, only the evidence most pertinent 
 
         to this decision is discussed.  Whether or not specifically 
 
         referred to in this summary, all of the evidence received at the 
 
         hearing was considered in arriving at this decision.  As will be 
 
         the case in any attempted summarization, conclusions about what 
 
         the evidence offered may show are inevitable.  Such conclusions, 
 
         if any, in the following summary should be considered as 
 
         preliminary findings of fact.
 
         
 
              Claimant testified that he has worked for Firestone since 
 
         October, 1976.  Claimant was initially hired as a wire machine 
 
         operator but for approximately seven years prior to the alleged 
 
         work injury, claimant was a tire builder.  Claimant said that 
 
         except for the last year and a half before December, 1983, he was 
 
         building passenger tires.  Such work involved taking of a carcass 
 
         off a rack and building the tire using a tire building machine.  
 
         This involves the attachment of various layers or piles of 
 
         materials onto the carcass.  Claimant stated that the work was 
 
         heavy and involved extensive use of the arms to lift and pull 
 
         materials.  Claimant testified that he was a top tire builder at 
 
         Firestone at the time of the alleged work injury making 
 
         approximately $123.00 per day in a piece work type of pay system.  
 
         Claimant earned $20,000.00 per year at the time of the alleged 
 
         work injury.
 
         
 
              Claimant testified that in December, 1983, while attempting 
 
         to pull a 20 pound tire carcass from a pin rack which failed to 
 
         easily "come off", he experienced a sudden onset of severe pain 
 
         in the form of a burning or throbbing sting behind his left 
 
         shoulder blade.  Claimant stated that this particular area of the 
 
         shoulder had been unusually tired or fatigued during the week 
 
         before the incident but that he did not experience these type of 
 
         symptoms before the pulling incident.  Company records show that 
 
         claimant reported on December 14, 1983, that he "hurt his back 
 
         pulling on a carcass."  Claimant then sought treatment from the 
 
         company doctor on December 16, 1983, John Gustafson, M.D., who 
 
         placed claimant on light duty until January 3, 1984.  Dr. 
 
         Gustafson treated claimant's symptoms with anti-inflammatory and 
 
         pain medications.  Claimant testified that he then returned to 
 
         passenger tire building but continued to experience these same 
 
         symptoms and in addition a "knot" in his left shoulder area which 
 
         "never worked out."  Claimant testified that his pain would 
 
         subside on weekends but flare up again during the week.
 

 
         
 
         
 
         
 
         ROACH V. FIRESTONE TIRE & RUBBER COMPANY
 
         Page   3
 
         
 
         
 
              In November, 1984, claimant said that his condition worsened 
 
         in that the pain would not subside during the weekends.  Claimant 
 
         returned to Dr. Gustafson and he was again placed on light duty 
 
         at Firestone.  Claimant was then referred to an orthopedic 
 
         surgeon, Scott Neff, D.O., in February, 1985.  Claimant underwent 
 
         physical therapy according to the therapist causing claimant's 
 
         pain in the shoulder and arm to worsen.  According to Dr. Neff's 
 
         records, an EMG test at that time was normal.
 
         
 
              With some improvement in his symptoms following therapy Dr. 
 
         Neff returned claimant to full duty at Firestone with the 
 
         recommendation of a continuation of exercises and pain 
 
         medication.  Dr. Neff did not believe that claimant had suffered 
 
         any permanent impairment from the injury.  Claimant objected to 
 
         the views of Dr. Neff and desired another physician.  Claimant 
 
         was then referred by Firestone to S. Misal, M.D., another 
 
         orthopedic surgeon.  According to his records, Dr. Misal 
 
         suspected an injury to the long thoracic nerve of the left 
 
         shoulder and prescribed medications and inactivity of the 
 
         shoulder.  Dr. Misal, however, saw no surgical option or other 
 
         treatment option to improve claimant's condition.
 
         
 
              In March, 1985, Dr. Misal stated as follows:
 
         
 
              I explained to Mr. Roach that this condition is 
 
              self-limiting that no surgical treatment is advised and 
 
              to support my advice, did show him a page of Seddon's 
 
              book, a copy of which is enclosed.
 
         
 
              It is my belief that the patient could continue to 
 
              work, that it would be desirable that he avoid the 
 
              particular movement, that is trying to bring the 
 
              shoulder down with the arm stretched against heavy 
 
              resistance.  I do not believe they will be in the long 
 
              term any permanent partial physical impairment.
 
         
 
              As a result of this report, claimant was returned to tire 
 
         building by Firestone but due to a change in the tire market, 
 
         claimant was transferred to the truck tire department.  Claimant 
 
         testified that only after a couple of days he soon developed a 
 
         recurrence of his symptoms.  Claimant then failed to make the 
 
         required 15 tires per day to qualify for the job and he was laid 
 
         off.  Claimant said that he simply was physically unable to 
 
         perform this work.  Claimant was off work for a period of six 
 
         months.  Claimant has not returned to tire building since this 
 
         lay off from the truck tire department.
 
         
 
              Upon the request of claimant when he was on layoff for some 
 
         sort of treatment to improve his condition, Dr. Misal referred 
 
         claimant for evaluation to the Neurology and Orthopedic 
 
         Departments of the University of Iowa Hospitals and Clinics in 
 
         June, 1985.  The Neurology Department opined that claimant was 
 
         suffering from a probable long thoracic nerve injury as a result 
 
         of the incident in December, 1983.  The Orthopedics Department 
 
         had no other diagnoses and felt that there was a possibility of a 
 
         long thoracic nerve injury.
 
         
 
              In December, 1985, claimant was examined by a neurosurgeon, 
 
         Robert C. Jones, M.D.  Dr. Jones also felt that claimant had some 
 

 
         
 
         
 
         
 
         ROACH V. FIRESTONE TIRE & RUBBER COMPANY
 
         Page   4
 
         
 
         degree of neuropathy involving the long thoracic nerve.  He 
 
         stated at the time that claimant's prognosis was difficult for 
 
         him to assess.
 
         
 
              Dr. Misal continued to see claimant until November, 1986.  
 
         At that time Dr. Misal stated as follows:
 
         
 
              Follow up of this patient that has been diagnosed by 
 
              several examiners as probably having long thoracic 
 
              nerve irritation or stretching or neuropraxia.  He is 
 
              here now to get a rating on the amount of possible 
 
              physical impairment.
 
         
 
              He was laid off for about five months because of the 
 
              restrictions on the job imposed by clinical 
 
              difficulties and then he started to work, he figures 
 
              about 12/15/86 with a 60 lb. restriction.
 
         
 
              The symptoms are about the same as they were and I will 
 
              not be repetitious on that.
 
         
 
              For the purposes of trying to determine the amount of 
 
              physical impairment, I have consulted the appropriate 
 
              AMA tables for peripheral nerves, Table #4 and the 
 
              amount of impairment to the extremity is 15%.
 
         
 
              Dr. Misal describes claimant's future activity restrictions 
 
         as a result of his condition as follows:
 
         
 
              He still has some winging of the scapula but in my 
 
              opinion is less than has been in the past and 
 
              apparently an effort has been made by the Firestone 
 
              people so this man does not have to use that extremity 
 
              in strenuous manner.
 
         
 
              I did tell Mr. Roach that his future, if they get laid 
 
              off at Firestone, would depend on his training, that in 
 
              general, any job where he does not have to use this arm 
 
              for heavy pulling or lifting mostly if the arm is in a 
 
              forward elevation would be all right.
 
         
 
              On August 25, 1986, claimant's physical restrictions were 
 
         raised and he returned to work "laying tires" not tire building. 
 
          Claimant testified that this was also heavy piece work and he 
 
         had trouble handling the big tires.  Claimant said ' that he was 
 
         able to use a hoist but that the work still,aggravated his 
 
         shoulder and arm.  Claimant testified that Dr. Jones prescribed a 
 
         heavy dosage of Motrine during this time and that the medication 
 
         help prevent the onset of severe pain.  In July, 1987, Dr. Jones 
 
         rated claimant's disability as constituting a five percent 
 
         permanent partial impairment under AMA Guidelines.  Dr. Jones did 
 
         not find any limitation of motions in claimant's neck or 
 
         shoulder.
 
         
 
              In November, 1986, claimant sought and obtained a special 
 
         light duty "recorder" job at Firestone apparently only available 
 
         with persons with disabilities.  This job has few physical 
 
         requirements and involves identifying, counting and labeling of 
 
         new tires and entering information into computer terminals.  
 
         Claimant currently is performing this job at Firestone.  Claimant 
 

 
         
 
         
 
         
 
         ROACH V. FIRESTONE TIRE & RUBBER COMPANY
 
         Page   5
 
         
 
         testified that he could be bumped out of this job at any time by 
 
         higher seniority persons with physical difficulties.  Last year 
 
         claimant earned approximately $37,000.00 in this recorder job.  
 
         Claimant testified that despite his current income he would make 
 
         more money as a tire builder if he were physically able to return 
 
         to that type of work.  Claimant said that good tire builders at 
 
         Firestone earn from $140.00 to $200.00 per day over a six day 
 
         week.  Claimant worked seven days per week in his job.
 
         
 
              Claimant testified that he had no chronic shoulder or arm 
 
         difficulties prior to December, 1983.  Claimant's employment 
 
         records at Firestone indicate that claimant reported the 
 
         following prior injuries to his foremans at Firestone since 
 
         1976:
 
         
 
              August 1977 ----- left ribs hurt
 
              November 1979 --- right shoulder began hurting after
 
                                pulling tire carcass at work
 
              August 1981 ----- hurt back pulling turnup  piles on tires
 
              July 1985 ------- hurt lower and mid back picking up a 
 
              bucket
 
         
 
              Each period of injury listed above was followed by a return 
 
         to full duty at work and only involved very brief periods of 
 
         recuperation.  Claimant's medical records at Firestone 
 
         demonstrated a clear and consistent pattern of left shoulder 
 
         complaints and disability including treatment beginning on 
 
         December 14, 1983.
 
         
 
              Claimant is 39 years of age and has a high school education. 
 
          Claimant worked as a bag machine operator performing light to 
 
         medium work for a brief period after high school.  From 1967 to 
 
         1974 claimant worked for a manufacturer of heating and air 
 
         conditioning equipment.  In this job, claimant, for the majority 
 
         of this time, operated a sheet metal press break or shear.  
 
         Claimant was required to manhandle varying sizes of sheet metal 
 
         materials in this job which routinely involved heavy work.  
 
         Claimant said that he did not experience physical difficulties in 
 
         performing such work.  Claimant testified that he left this job 
 
         shortly before the plant shut down when severance pay was offered 
 
         to him.  Claimant then for approximately two years worked for 
 
         Goodyear Retread working in the Curing Department.  Claimant said 
 
         that this work was very heavy and involved the pushing and 
 
         carrying of molds but that he still was physically able to handle 
 
         such work.
 
         
 
              Claimant did not discuss what efforts he may have made to 
 
         secure work outside of Firestone.  Claimant testified that future 
 
         availability at work at Firestone is uncertain.  Firestone 
 
         employment for him has traditionally been unstable.  Claimant has 
 
         been laid off five or six times over the last 10 years.  Claimant 
 
         also is concerned about the fact that he could be bumped out of 
 
         his current job at any time by a higher seniority person who may 
 
         develop disabilities.
 
         
 
              Claimant's appearance and demeanor at the hearing indicated 
 
         that he was testifying in a candid and truthful manner.
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 

 
         
 
         
 
         
 
         ROACH V. FIRESTONE TIRE & RUBBER COMPANY
 
         Page   6
 
         
 
              I.  Claimant has the burden of proving by a preponderance of 
 
         the evidence that claimant received an injury which arose out of 
 
         and in the course of employment.  The words "out of" refer to the 
 
         cause or source of the injury.  The words "in the course of" 
 
         refer to the time and place and circumstances of the injury.  
 
         See Cedar Rapids Community Sch. v. Cady, 278 N.W.2d 298 (Iowa 
 
         1979); Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 402, 68 
 
         N.W.2d 63 (1955).  An employer takes an employee subject to any 
 
         active of dormant health impairments, and a work connected injury 
 
         which more than slightly aggravates the condition is considered 
 
         to be a personal injury.  Ziegler v. United States Gypsum Co., 
 
         252 Iowa 613, 620, 106 N.W.2d 591 (1960) and cases cited 
 
         therein.
 
         
 
              Claimant has clearly shown by the greater weight of the 
 
         evidence that he has suffered a work injury on December 14, 1983. 
 
          Claimant's testimony concerning the facts surrounding the 
 
         incident are uncontroverted and are consistent with the medical 
 
         records and with histories provided to all physicians involved in 
 
         this case.
 
         
 
              II.  The claimant has the burden of proving by a 
 
         preponderance of the evidence that the work injury is a cause of 
 
         the claimed disability.  A disability may be either temporary or 
 
         permanent.  In the case of a claim for temporary disability, the 
 
         claimant must establish that the work injury was a cause of 
 
         absence from work and lost earnings during a period of recovery 
 
         from the injury.  Generally, a claim of permanent disability 
 
         invokes an initial determination of whether the work injury was a 
 
         cause of permanent physical impairment or permanent limitation in 
 
         work activity.  However, in some instances, such as a job 
 
         transfer caused by a work injury, permanent disability benefits 
 
         can be awarded without a showing of a causal connection to a 
 
         physical change of condition.  Blacksmith v. All-American, Inc., 
 
         290 N.W.2d 348, 354 (Iowa 1980); McSpadden v. Big Ben Coal Co., 
 
         288 N.W.2d 181 (Iowa 1980).
 
         
 
              The question of causal connection is essentially within the 
 
         domain of expert medical opinion.  Bradshaw v. Iowa Methodist 
 
         Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960).  The opinion of 
 
         experts need not be couched in definite, positive or unequivocal 
 
         language and the expert opinion may be accepted or rejected, in 
 
         whole or in part, by the trier of fact.  Sondag v. Ferris 
 
         Hardware, 220 N.W.2d 903 (Iowa 1974).  The weight to be given to 
 
         such an opinion is for the finder of fact, and that may be 
 
         affected by the completeness of the premise given the expert and 
 
         other surrounding circumstances.  Bodish v. Fischer, Inc., 257 
 
         Iowa 516, 133 N.W.2d 867 (1965).
 
         
 
              Furthermore, if the available expert testimony is 
 
         insufficient alone to support a finding of causal connection, 
 
         such testimony may be coupled with nonexpert testimony to show 
 
         causation and be sufficient to sustain an award.  Giere v. Aase 
 
         Haugen Homes, Inc., 259 Iowa 1065, 146 N.W.2d 911, 915 (1966).  
 
         Such evidence does not, however, compel an award as a matter of 
 
         law.  Anderson v. Oscar Mayer & Co., 217 N.W.2d 531, 536 (Iowa 
 
         1974).  To establish compensability, the injury need only be a 
 
         significant factor, not be the only factor causing the claimed 
 
         disability.  Blacksmith, 290 N.W.2d 348, 354.  In the case of a 
 
         preexisting condition, an employee is not entitled to recover for 
 

 
         
 
         
 
         
 
         ROACH V. FIRESTONE TIRE & RUBBER COMPANY
 
         Page   7
 
         
 
         the results of a preexisting injury or disease but can recover 
 
         for an aggravation thereof which resulted in the disability found 
 
         to exist.  Olson v. Goodyear Service Stores, 255 Iowa 1112, 125 
 
         N.W.2d 251 (1963).
 
         
 
              In the case sub judice, claimant contends that he has 
 
         suffered disability as a result of a work injury due to permanent 
 
         impairment to the body as a whole.  First, the preponderance of 
 
         the evidence shows a permanent injury or impairment.  The views 
 
         of Dr. Misal and Dr. Roberts are the most convincing as they are 
 
         consistent with claimant's well documented testimony and a 
 
         history of chronic left shoulder problems beginning on December 
 
         14, 1983.  Dr. Misal pointed out that despite a normal EMG test 
 
         he did not feel that it was possible to test for a long thoracic 
 
         nerve injury.  Therefore, a negative EMG test is not convincing 
 
         in this matter.
 
         
 
              Second, the evidence demonstrates that the injury and 
 
         permanent impairment is not confined to the arm.  Most of 
 
         claimant's physicians indicate that the injury involved permanent 
 
         damage to claimant's long thoracic nerve located in the left 
 
         shoulder and mid back area.  Admittedly, there is a conceptual 
 
         problem in determining whether a disability should be measured 
 
         functionally or industrially when a major body joint such as the 
 
         shoulder is involved.  However, a shoulder injury can be a loss 
 
         of a arm or a loss of a body as a whole and the determination 
 
         depends upon the extent of injury.  However, it is well settled 
 
         that it is the anatomical situs of the injury, not the situs of 
 
         the disability caused by the injury which determines whether or 
 
         not to apply the schedules in Iowa Code section 85.34(2)(a-t).  
 

 
         
 
         
 
         
 
         ROACH V. FIRESTONE TIRE & RUBBER COMPANY
 
         Page   8
 
         
 
         Lauhoff Grain v. McIntosh, 395 N.W.2d 834 (Iowa 1986); Dailey v. 
 
         Pooley Lumber Co., 233 Iowa 758, 10 N.W.2d 569 (1943).  Finally, 
 
         it is well settled in Iowa that a shoulder injury is an injury to 
 
         the body as a whole and not to be a scheduled member injury 
 
         simply because of the functions of those joints' impact upon a 
 
         scheduled member.  Lauhoff, 395 N.W.2d 834 (Iowa 1986); Alm v. 
 
         Morris Barick Cattle Co., 240 Iowa 1174, 38 N.W.2d 161 (1949); 
 
         Nazarenus v. Oscar Mayer & Co., II Iowa Industrial Commissioner 
 
         Report 281 (1982); Godwin v. Hicklin G.M. Power, II Iowa 
 
         Industrial Commissioner Report, 170 (1981).
 
         
 
              Third, the greater weight of evidence shows the requisite 
 
         causal connection between the work injury and the permanent 
 
         impairment.  It is well documented that claimant had a history of 
 
         problems stemming from the December, 1983, injury.  There simply 
 
         is no history of chronic serious left shoulder problems before 
 
         December, 1983.
 
         
 
              III.  Claimant must establish by a preponderance of the 
 
         evidence the extent of weekly benefits for permanent disability 
 
         to which claimant is entitled.  As the claimant has shown that 
 
         the work injury was a cause of a permanent physical impairment or 
 
         limitation upon activity involving the body as a whole, the 
 
         degree of permanent disability must be measured pursuant to Iowa 
 
         Code section 85.34(2)(u).  However, unlike scheduled member 
 
         disabilities, the degree of disability under this provision is 
 
         not measured solely by the extent of a functional impairment or 
 
         loss of use of a body member.  A disability to the body as a 
 
         whole or an "industrial disability" is a loss of earning capacity 
 
         resulting from the work injury.  Diederich v. Tri-City Railway 
 
         Co., 219 Iowa 587, 593, 258 N.W. 899 (1935).  A physical 
 
         impairment or restriction on work activity may or may not result 
 
         in such a loss of earning capacity.  The extent to which a work 
 
         injury and a resulting medical condition has resulted in an 
 
         industrial disability is determined from examination of several 
 
         factors.  These factors include the employee's medical condition 
 
         prior to the injury, immediately after the injury and presently; 
 
         the situs of the injury, its severity and the length of healing 
 
         period; the work experience of the employee prior to the injury, 
 
         after the injury and potential for rehabilitation; the employee's 
 
         qualifications intellectually, emotionally and physically; 
 
         earnings prior and subsequent to the injury; age; education; 
 
         motivation.; functional impairment as a result of the injury; and 
 
         inability because of the injury to engage in employment for which 
 
         the employee is fitted.  Loss of earnings caused by a job 
 
         transfer for reasons related to the injury is also relevant.  
 
         Olson, 255 Iowa 1112, 1121, 125 N.W.2d 251, 257 (1963).  See 
 
         Peterson v. Truck Haven Cafe, Inc., (Appeal Decision, February 
 
         28, 1985).
 
         
 
              Claimant's medical condition before the work injury in this 
 
         case was excellent.  He had no functional impairments or 
 
         ascertainable difficulties.  Claimant was able to fully perform 
 
         physical tasks involving heavy lifting and repetitive use of his 
 
         hands.
 
         
 
              Most of claimant's physicians in this case have given 
 
         claimant a significant permanent impairment rating to the body as 
 
         a whole.  The exact percentage figure as to the body as a whole 
 
         is unknown as claimant's physicians incorrectly rated the 
 

 
         
 
         
 
         
 
         ROACH V. FIRESTONE TIRE & RUBBER COMPANY
 
         Page   9
 
         
 
         disability as a percentage of the arm rather than as to the body 
 
         as a whole.  However, a precise rating is unnecessary to award 
 
         permanent disability benefits as the extent of claimant's 
 
         physical restrictions are a much more informative in assessing 
 
         industrial disability or loss of earning capacity then a specific 
 
         percentage of permanency.
 
         
 
              Claimant's physicians have restricted claimant's work 
 
         activities by prohibiting tasks such as heavy and repetitive 
 
         pulling and lifting with his hands.  Claimant credibly testified 
 
         that he is unable to return to tire building or any other work 
 
         which would involve strenuous activity of his left shoulder or 
 
         arm.  Claimant's medical condition prevents him from returning to 
 
         his former work at Firestone and any other work that he has held 
 
         in the past to which he is best suited.
 
         
 
              Claimant is currently working and earning a substantial 
 
         income.  However, despite his current employment claimant has 
 
         suffered a significant permanent loss of earning capacity.  
 
         Claimant's current earnings are only one factor in assessing 
 
         industrial disability.  See Michael v. Harrison County, 
 
         Thirty-Fourth Biennial Report of the Iowa Industrial Commissioner 
 
         218, 220 (1979).  Also, claimant has demonstrated, as pointed out 
 
         in his brief, that his loss of actual earnings range from 27 to 
 
         53 percent when you compare claimant's actual current earnings of 
 
         $567.00 per week with earnings that he would make as a top tire 
 
         builder at the rate of $140.00 to $200.00 per day over a six day 
 
         week.  Claimant's testimony in this regard is uncontroverted in 
 
         the record.
 
         
 
              It was further shown in this case that Firestone is a 
 
         volatile company and highly unstable.  It was also shown that 
 
         claimant is in a precarious situation in that he cannot return to 
 
         tire building or any other heavy labor but can be bumped out of 
 
         his job at any time by a person with higher seniority.  Although 
 
         it is admirable that Firestone has such a light duty job 
 
         available at Firestone, this aspect alone should not be utilized 
 
         by Firestone to escape liability for a substantial industrial 
 
         disability.  Certainly, if he were not working, the potential 
 
         liability would far exceed what will be awarded herein.
 
         
 
              Claimant is 39 years of age and should be in the most 
 
         productive years of his life.  His disability is more severe than 
 
         would be the case for a younger or older individual.
 
         
 
              Claimant has shown considerable motivation to remain 
 
         employed despite experiencing considerable pain from attempting 
 
         to remain as a tire builder prior to becoming "recorder."
 
         
 
              Claimant has a high school education and exhibited average 
 
         intelligence at the hearing.  However, little was shown to 
 
         indicate claimant's potential for vocational rehabilitation.
 
         
 
              After examination of all the factors, it is found as a 
 
         matter of fact that claimant has suffered a 35 percent loss of 
 
         his earning capacity from his work injury.  Based upon such a 
 
         finding, claimant is entitled as a matter of law to 175 weeks of 
 
         permanent partial disability benefits under Iowa Code section 
 
         85.34(2)(u) which is 35 percent of 500 weeks, the maximum 
 
         allowable number of weeks for an injury to the body as a whole in 
 

 
         
 
         
 
         
 
         ROACH V. FIRESTONE TIRE & RUBBER COMPANY
 
         Page  10
 
         
 
         that subsection.
 
         
 
              Given the parties' stipulation, claimant is entitled to an 
 
         award for healing period benefits from April 8, 1986 through 
 
         August 25, 1986.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              1.  Claimant was a credible witness.
 
         
 
              2.  On December 14, 1983, claimant suffered an injury to his 
 
         left shoulder and mid back consisting of an injury to the long 
 
         thoracic nerve which arose out of and in the course of employment 
 
         at Firestone.
 
         
 
              3.  The work injury of December 14, 1983, was a cause of a 
 
         significant permanent partial impairment to the body as a whole 
 
         and of permanent restrictions upon claimant's physical activity 
 
         consisting of no heavy pushing or pulling with his left arm or 
 
         shoulder.
 
         
 
              4.  The work injury of December 14, 1983, and the resulting 
 
         permanent partial impairment was a cause of a 35 percent loss of 
 
         earning capacity.   Claimant is unable to return to tire building 
 
         or most other work he has performed in the past which consists 
 
         mostly of heavy manual labor in a manufacturing environment.  
 
         Claimant has suffered a loss of actual earnings from 27 percent 
 
         to 53 percent from his inability to return to tire building.  
 
         Claimant's current job at Firestone is a special light duty job 
 
         and he could be removed from this job at any time by an employee 
 
         with higher seniority.  Claimant's current employer, Firestone 
 
         Rubber & Tire Company, is a highly volatile employer and 
 
         employment in the company is highly uncertain.  Therefore, 
 
         despite claimant's relatively high income of $37,000 per year 
 
         which appears to be suitable at the present time, such employment 
 
         is not stable.  Claimant is 39 years of age and is a high school 
 
         graduate.  Claimant has no work history or experience in 
 
         sedentary or white collar employment.  Claimant's only work 
 
         history has been in heavy manual labor, the type of work claimant 
 
         can no longer perform.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              Claimant has established by a preponderance of the evidence 
 
         entitlement to the permanent partial disability benefits and 
 
         healing period benefits as awarded below.
 
         
 
                                      ORDER
 
         
 
              1.  Defendants shall pay to claimant one hundred 
 
         seventy-five (175) weeks of permanent partial disability benefits 
 
         at the rate of three hundred ninety-eight and 24/100 dollars 
 
         ($398.24) per week from November 21, 1986.
 
         
 
              2.  Defendants shall pay to claimant healing period benefits 
 
         from April 8, 1986 through August 25, 1986 at the rate of three 
 
         hundred ninety-eight and 24/100 dollars ($398.24) per week.
 
         
 
              3.  Defendants shall pay accrued weekly benefits in a lump 
 
         sum.
 

 
         
 
         
 
         
 
         ROACH V. FIRESTONE TIRE & RUBBER COMPANY
 
         Page  11
 
         
 
         
 
              4.  Defendants shall pay interest on benefits awarded herein 
 
         as set forth in Iowa Code section 85.30.
 
         
 
              5.  Defendants shall pay the cost of this action pursuant to 
 
         Division of Industrial Services Rule 343-4.33.
 
         
 
              6.  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 April, 1988.
 
         
 
         
 
         
 
         
 
                                         LARRY P. WALSHIRE
 
                                         DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         
 
         Copies To:
 
         
 
         Mr. David D. Drake
 
         Attorney at Law
 
         West Towers Office Complex
 
         1200 35th Street, Suite 500
 
         West Des Moines, Iowa 50265
 
         
 
         Mr. Frank T. Harrison
 
         Attorney at Law
 
         Suite 111, Terrace Center
 
         2700 Grand Avenue
 
         Des Moines, Iowa 50312
 
         
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                   1803
 
                                                   Filed April 22, 1988
 
                                                   LARRY P. WALSHIRE
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         GARY ROACH,
 
         
 
              Claimant,
 
                                                    FILE NO. 806034
 
         VS.
 
                                                 A R B I T R A T I 0 N
 
         FIRESTONE TIRE & RUBBER COMPANY
 
                                                    D E C I S I 0 N
 
              Employer,
 
         
 
         and
 
         
 
         CIGNA INSURANCE COMPANIES,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
         1803
 
         
 
              A work injury in the form of a nerve injury was found.  
 
         Claimant, despite his current employment, was awarded 35 percent 
 
         permanent partial disability benefits in that although his 
 
         current employment is suitable, it is not stable.
 
 
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         CHERYL ANN SEAY,
 
         
 
              Claimant,
 
                                                 File Nos. 806040 & 80641
 
         
 
         VS.
 
                                                 A R B I T R A T I 0 N
 
          MONTE ROGERS d/b/a
 
          ADVENTURELAND VIDEO,
 
                                                    D E C I S I O N
 
          
 
                Employer,
 
                Defendant.
 
          
 
          
 
                                   INTRODUCTION
 
         
 
              These matters come on for hearing pursuant to the hearing 
 
         assignment order which was filed on July 21, 1988 by Deputy 
 
         Industrial Commissioner Helenjean Walleser.  According to the 
 
         order, these matters were set for hearing on the 19th day of 
 
         December, 1988 at 1:00 p.m. at the county courthouse in Ottumwa, 
 
         Iowa.
 
         
 
              At the place and time set for the hearing, the attorney for 
 
         claimant, Harold B. Heslinga, appeared.  Claimant did not appear.  
 
         Defendant failed to appear likewise.  No one appeared for 
 
         defendant.
 
         
 
              No official verbatim.record of the oral proceeding was made 
 
         or maintained pursuant to a written stipulation entered into by 
 
         the attorney for claimant.  During the proceeding, Attorney 
 
         Heslinga made a professional statement.  He stated the following:
 
         
 
              1)  That he had forwarded a letter to claimant regarding the 
 
         need to appear at the proceeding;
 
         
 
              2)  That the letter was sent to claimant's last known 
 
         address at: 729 N. 14th, Centerville, IA 52544;
 
         
 
              3)  That the letter was not returned to Attorney Heslinga;
 
         
 
              4)  That Attorney Heslinga had attempted to telephone 
 
         claimant at her last known telephone number but that he was 
 
         unable to reach claimant;
 
         
 
         
 
         
 
         
 
         SEAY V. MONTE ROGERS d/b/a ADVENTURELAND VIDEO 
 
         Page 2
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              5)  That Attorney Heslinga had attempted to contact 
 
         claimant's spouse at the spouse's place of business;
 
         
 
              6)  That on the morning of the hearing, Attorney Heslinga 
 
         was unable to reach claimant's spouse but that he was told had 
 
         physically separated from her husband, and had moved to Chicago, 
 
         Illinois; and,
 
         
 
              7)  That as late as 12:15 p.m. on the day of the hearing, 
 
         Attorney Heslinga reported he had attempted to telephone the 
 
         spouse of claimant at his last known residence, but that Attorney 
 
         Heslinga was unable to reach claimant's spouse.
 
         
 
              At the hearing, claimant presented no evidence.  Therefore, 
 
         claimant failed to prove by a preponderance of the evidence that 
 
         she sustained injuries arising out of and in the course of her 
 
         employment.
 
         
 
                                 FINDING OF FACT
 
                                        
 
              FINDING 1.  Claimant presented no evidence.
 
                                        
 
                                CONCLUSION OF LAW
 
                                        
 
              Claimant failed to prove by a preponderance of the evidence 
 
         that she sustained injuries arising out of and in the course of 
 
         her employment.
 
                                        
 
                                      ORDER
 
                                        
 
              IT IS THEREFORE ORDERED that claimant take nothing from this 
 
         proceeding.
 
         
 
              IT IS THEREFORE ORDERED that the costs of this action are 
 
         assessed against the claimant.
 
         
 
         
 
              Signed and filed this 5th day of January, 1989.
 
         
 
         
 
         
 
         
 
         
 
                                         MICHELLE A. McGOVERN
 
                                         DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         
 
         SEAY V. MONTE ROGERS d/b/a ADVENTURELAND VIDEO 
 
         Page 3
 
         
 
         
 
         Copies To:
 
         
 
         Mr. Harold B. Heslinga
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         Attorney at Law
 
         118 N. Market St.
 
         Oskaloosa, Iowa 52577
 
         
 
         Mr. Monte Rodgers
 
         c/o Ralph Brower 
 
         758 East Mutton Hollow Road 
 
         Kaysville, Utah 84037 
 
         CERTIFIED AND REGULAR MAIL
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                                                           1400; 1402
 
                                                 Filed January 5, 1989
 
                                                 MICHELLE A. McGOVERN
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         CHERYL ANN SEAY,
 
         
 
              Claimant,
 
                                                 File Nos. 806040 & 806041
 
         VS.
 
                                                      A R B I T R A T I O 
 
         N
 
         
 
         MONTE ROGERS d/b/a
 
         ADVENTURELAND VIDEO,                               D E C I S I 0 
 
         N
 
         
 
              Employer,
 
              Defendant.
 
         
 
         
 
         
 
         1400; 1402
 
         
 
              Neither claimant nor defendant appeared at the hearing.  No 
 
         evidence in support of allegations of a compensable work injury 
 
         was presented and claimant therefore failed to meet her burden of 
 
         proof.
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         _________________________________________________________________
 
         
 
         JOHN T. KARNS,
 
         
 
              Claimant,
 
                                                 File NOS. 806042
 
         VS.
 
                                                           801714
 
                                                           735066
 
         FLOYD VALLEY PACKING CO.,
 
         
 
              Employer,
 
                                               A R B I T R A T I 0 N
 
         and
 
                                                 D E C I S I 0 N
 
         ARGONAUT INSURANCE COMPANIES 
 
         and CHUBB GROUP OF INSURANCE
 
         COMPANIES,
 
         
 
         and
 
         
 
         SECOND INJURY FUND OF IOWA,
 
         
 
              Insurance Carriers,
 
              Defendants.
 
         _________________________________________________________________
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding in arbitration brought by the claimant, 
 
         John P. Karns, against his employer, Floyd Valley Packing Co., 
 
         and its insurance carriers, Chubb Group of Insurance Companies, 
 
         and Argonaut Insurance Companies, as well as against the Second 
 
         Injury Fund of Iowa, to recover benefits under the Iowa Workers 
 
         Compensation Act as a result of injuries allegedly sustained on 
 
         March 31, 1983, November 15, 1984, and January 17, 1985.  Prior 
 
         to hearing, the employer and insurance carriers either paid full 
 
         commutations or reached settlements with claimant in the 
 
         respective files.  The proceeding as regards the Second Injury 
 
         Fund was held in Sioux City, Iowa, on February 25, 1987.  But for 
 
         briefs, the record was considered fully submitted at close of 
 
         hearing.
 
         
 
              The record in this proceeding consists of the testimony of 
 
         claimant, and of joint exhibits 1 and 2. The exhibits consist of 
 
         various medical records and reports relative to claimant.
 
         
 
                                   ISSUES
 
         
 
              The parties stipulated that claimant's rate of compensation 
 
         in the event of an award is $215.03. Issues remaining for 
 
         resolution in all files are:
 
         
 
              1)  Whether claimant received an injury which arose out of 
 
         and in the course of his employment;
 
         
 
              2)  Whether a causal relationship exists between claimant's 
 

 
         injuries and his claimed permanent disabilities;
 
         
 
              3)  Whether claimant is entitled to permanent partial or 
 
         permanent total disability benefits including the related 
 
         question of whether claimant is an odd-lot worker; and
 
         
 
              4)  Whether claimant is entitled to benefits under the 
 
         Second Injury Fund Act.
 
         
 
                          REVIEW OF THE EVIDENCE
 
         
 
              Forty-three year old claimant testified that he left school 
 
         at age seventeen or eighteen after completing the fourth grade in 
 
         a special education class.  Claimant has worked predominantly in 
 
         packinghouses, but has also done odd jobs and worked in 
 
         demolition and construction.  Many of his packinghouse positions 
 
         involved either being a utility man or a roustabout.  A 
 
         roustabout is used throughout the packing plant as needed and, 
 
         thereby, learns a variety of packinghouse jobs.  Utility men also 
 
         are used as needed and must know every job in the packinghouse.  
 
         Claimant began work at Floyd Valley Packing in 1972 and worked 
 
         for the company until the plant closed in March 1986.  Claimant 
 
         principally worked as a utility man.  This involved both lifting 
 
         barrels and running knives.  Claimant used both hands when he ran 
 
         knives in that if he ran the knife with his right hand he used 
 
         his left hand to hold the required hook; if he ran the knife with 
 
         his left hand, he then used his right hand to hold the hook.
 
         
 
              Claimant testified that on March 31, 1983, he began to 
 
         experience problems with his left hand while doing regular job 
 
         duties.  Claimant reported to the nurse's station and was 
 
         subsequently referred to Milton A. Grossman, M.D., the company 
 
         doctor.  Dr. Grossman apparently then referred claimant to 
 
         William Krigsten, M.D. Dr. Krigsten hospitalized claimant on May 
 
         25, 1983 and performed a left carpal tunnel decompression on that 
 
         date.  Dr. Krigsten released claimant to return to work on August 
 
         16, 1983.  On August 11, 1983, Dr. Krigsten assigned a ten 
 
         percent impairment of the left wrist.  Claimant reported that 
 
         following his work return, he was able to do his regular job 
 
         although not as well as before.  On January 27, 1984, claimant 
 
         was pulling on a machine at work and tripped over a belt thereby 
 
         twisting his left arm.  Milton A. Grossman, M.D., initially 
 
         examined claimant for that injury and subsequently referred 
 
         claimant back to Dr. William Krigsten.  A fracture of the distal 
 
         radius, left, was diagnosed.  Dr. Krigsten performed a closed 
 
         reduction of commuted fracture of distal radius on February 13, 
 
         1984.  Claimant was released to work on April 23, 1984.  Claimant 
 
         also saw Dr. Grossman on SeptemberE19, 1984 after a stuck hog and 
 
         trolley fell off a rail and hit claimant on the head and 
 
         apparently the left shoulder.  A contusion of the left forehead 
 
         and shoulder was diagnosed.  Dr. Krigsten saw claimant again on 
 
         November 27, 1984.  At that time, claimant was complaining of 
 
         headaches on the left side of the head and face and left arm 
 
         aching.  Strength in the left arm, elbow, hand and fingers were 
 
         normal.  Claimant had normal neck motion, but rotation to the 
 
         left caused left trapezius soreness.  Left shoulder and elbow 
 
         motions were normal.  Krigsten ordered EMG studies as of November 
 
         30, 1984.  Claimant had only minimal improvement of function of 
 
         the left median nerve when those studies were compared to studies 
 
         of May 24, 1983.  The motor and sensory distal latencies of the 
 
         left median nerve were markedly prolonged consistent with the 
 
         presence of a compressive lesion of the left median nerve at the 
 
         wrist.  The EMG studies also revealed definite carpal tunnel 
 
         syndrome on the right.  Dr. Krigsten recommended conservative 
 

 
         
 
         
 
         
 
         KARNS V. FLOYD VALLEY PACKING CO.
 
         Page   3
 
         
 
         
 
         management and light work for claimant for at least four weeks.  
 
         Dr. Krigsten examined claimant on December 17, 1984.  Claimant 
 
         reported aching and throbbing in both arms, mainly in the 
 
         forearms.  Claimant reported throbbing pain and aching on the 
 
         left side of the face.  He had definite clicking of the right AC 
 
         joint.  X-rays of the right shoulder revealed a healed fracture 
 
         of the clavicle with degeneration of the AC joint with excess 
 
         bone.  The left shoulder x-rays showed peritendonitis.
 
         
 
              Alexander Kleider, M.D., a neurosurgeon, first saw claimant 
 
         on February 12, 1984.  Claimant then was apparently having carpal 
 
         tunnel symptoms bilaterally.  Dr. Kleider performed a right 
 
         carpal tunnel decompression on February 15, 1985 and a second 
 
         left carpal tunnel decompression on March 27, 1985.  On May 14, 
 
         1985, Dr. Kleider released claimant for work and from his care.  
 
         Everything seemed well healed at that point.  On July 15, 1985, 
 
         Dr. Kleider responded to a July 2, 1985 letter from the Chubb 
 
         Group Insurance Companies claims department that to his knowledge 
 
         claimant had no [permanent partial] disabilities [as a result of 
 
         either the right carpal tunnel surgery or the left carpal.tunnel 
 
         surgery].
 
         
 
              Claimant returned to work as a utility man at Floyd Valley 
 
         from his May 19, 1985 release until the plant's March 1986 
 
         closing.  Claimant reported that he was always bothered when 
 
         working but that his foreman helped him out quite a bit and that 
 
         he was able to run the forklift.  He helped out on the line, but 
 
         did not work on the line as steadily as he had before his surgery 
 
         He reported that he did not do as many knife jobs and did not 
 
         have to stay on those jobs as steadily as he had to prior to his 
 
         surgery.  Claimant has not worked since the plant closing.  He 
 
         says that his left hand continues to bother him a lot.  At times 
 
         he loses his grip on the left and drops things.  He reported he 
 
         has tingling from the left wrist into his fingers.  He indicated 
 
         he does not have these problems on the right although he had them 
 
         before his right carpal tunnel decompression.  Claimant agreed 
 
         that no doctor has given him physical restrictions on account of 
 
         his carpal tunnel syndrome.
 
         
 
              Claimant reported that since the plant's closing, he has 
 
         done babysitting; he has driven a car; he has worked about his 
 
         home; he has helped other people move furniture and moved 
 
         himself; and he has continued his involvement in union work.  
 
         Claimant had once been a union sergeant-at-arms and a union 
 
         steward.  Claimant reported that in mowing his yard, he must quit 
 
         intermittently because of problems with his left hand.  He knew 
 
         of no other nonemployment activities that his condition prevented 
 
         him from doing.  Clamant reported that he has sought work by 
 
         applying and using Job Service's sixty day search program.  He 
 
         has sought vocational rehabilitation through state vocational 
 
         rehabilitation.  He has signed up for the Job Training 
 
         Partnership Act.  Claimant reported that he has applied for 
 
         almost every job but has not been hired.  He testified a 
 
         personnel worker at John Morrell told him he was not hired for 
 
         packinghouse work there on account of his left hand.  He reported 
 
         that he has not received results as regards the Job Training 
 
         Partnership Act.  Claimant is also attempting to learn to read 
 
         and write.  He reported that state vocational rehabilitation is 
 
         going to send him to school and that he is now just waiting until 
 

 
         
 
         
 
         
 
         KARNS V. FLOYD VALLEY PACKING CO.
 
         Page   4
 
         
 
         
 
         he is told he can go to school.  Claimant reported that 
 
         packinghouse work is all that he knows as he has done that work 
 
         all of his life.  He opined that he could continue to do some 
 
         packinghouse jobs.  He can drive a forklift, could assist on the 
 
         production line, and could make boxes.  Claimant agreed that 
 
         there were few good jobs in Sioux City and that he may have 
 
         applied for jobs at Job Service for which he is not qualified.  
 
         He stated, however, that he would not necessarily know whether he 
 
         was capable of a job unless he tried doing the job.
 
         
 
              A report of John A. McKeekin, Ed.D, licensed psychologist, 
 
         indicates that on the WAIS-R, results for claimant indicated that 
 
         claimant's full-scale IQ is in the borderline range with a verbal 
 
         scale IQ towards the lower end of the borderline range and the 
 
         nonverbal performance scale IQ towards the upper end of the 
 
         borderline range.  At hearing, it was apparent that claimant had 
 
         difficulties thinking abstractly and recalling events in 
 
         appropriate chronological order.
 
         
 
              Horst G. Blume, M.D., a neurosurgeon, examined claimant on 
 
         January 7, 1986.  Dr. Blume stated that claimant then described 
 
         his pain as to the flexor aspect of the forearms and "sharp, 
 
         shooting pain" to the elbows after activity, especially during 
 
         repetitious movements.  He reported claimant described 
 
         paresthesia at the site of the surgery in both flexor aspects of 
 
         the wrists.  On examination, Dr. Blume found hypalgesia in the 
 
         thenar area of the left hand extending a bit to the wrist area 
 
         but not extending into the thumb or any of the other fingers.  
 
         Claimant apparently reported that, from his initial left wrist 
 
         surgery onward, he had persistent numbness in the thenar area. on 
 
         examination, there was local tenderness in the right wrist with a 
 
         small amount of aching on maximum flexion.  A mild dysesthesia in 
 
         the flexor aspect of the mid thumb territory was noted but 
 
         sensation and strength were otherwise normal.  Dr. Blume opined 
 
         that claimant had permanent partial "disability" as a result of 
 
         the carpal tunnel surgery in the right hand of two percent and 
 
         six percent to the left hand, both related to work activities.
 
         
 
              The balance of the evidence was reviewed and considered in 
 
         the disposition of this matter.
 
         
 
                         APPLICABLE LAW AND ANALYSIS
 
         
 
              We first determine whether claimant received injuries which 
 
         arose out of and in the course of his employment.
 
         
 
              Claimant has the burden of proving by a preponderance of the 
 
         evidence that he received injuries on March 31, 1983, November 
 
         15, 1984 and January 17, 1985 which arose out of and in the 
 
         course of his employment.  McDowell v. Town of Clarksville, 241 
 
         N.W.2d 904 (Iowa 1976); Musselman v. Central Telephone Co., 2bl 
 
         Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
              The injury must both arise out of and be in the course of 
 
         the employment.  Crowe v. DeSoto Consol.  Sch.  Dist., 246 Iowa 
 
         402, 68 N.W.2d 63 (1955) and cases cited at pp. 405-406 of the 
 
         Iowa Report.  See also Sister Mary Benedict v. St. Mary's Corp., 
 
         255 Iowa 847, 124 N.W.2d 548 (1963) and Hansen v. State of Iowa, 
 
         249 Iowa 1147, 91 N.W.2d 555 (1958).
 

 
         
 
         
 
         
 
         KARNS V. FLOYD VALLEY PACKING CO.
 
         Page   5
 
         
 
         
 
         
 
              The words "out of" refer to the cause or source of the 
 
         injury.  Crowe, 246 Iowa 402, 68 N.W.2d 63.
 
         
 
              The words "in the course of" refer to the time and place and 
 
         circumstances of the injury.  McClure v. Union et al.  Counties, 
 
         188 N.W.2d 283 (Iowa 1971); Crowe, 246 Iowa 402, 68 N.W.2d 63.
 
         
 
              While claimant was a very poor historian, claimant, through 
 
         his testimony and the medical evidence, has established that he 
 
         has undergone three carpal tunnel decompressions, one on the 
 
         right, two on the left, and that his work duties at Floyd Valley 
 
         produced the need for these surgeries.  Claimant has established 
 
         injuries arising out of and in the course of his employment on or 
 
         about the designated injury dates of March 31, 1983, November 15, 
 
         1984s, or January 7, 1985.
 
         
 
         
 
              We next consider whether a causal relationship exists 
 
              between claimant's injuries and his claimed disabilities.
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injuries of March 31, 1983, November 15, 
 
         1984 and January 17, 1985 are 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).
 
         
 
              Dr. Krigsten assigned claimant a ten percent permanent 
 
         partial impairment of the left wrist following his first carpal 
 
         tunnel decompressions; that is, on August 11, 1983.  Claimant 
 
         returned to work following that surgery.  Claimant had only 
 
         minimally improved function in the left median nerve following 
 
         that surgery, however.  Dr. Kleider performed a second left 
 
         carpal tunnel decompression March 27, 1985.  On July 15, 1985, 
 
         Dr. Kleider reported claimant had no permanent "disability" as a 
 
         result of his left carpal tunnel surgery.  Dr. Horst Blume, an 
 
         examining physician only, opined claimant had a six percent 
 
         permanent partial "disability" of the left hand, apparently on 
 
         the basis of claimant's reports of paresthesia at his surgery 
 
         site and a finding of hypalgesia in the thenor area of the left 
 

 
         
 
         
 
         
 
         KARNS V. FLOYD VALLEY PACKING CO.
 
         Page   6
 
         
 
         
 
         hand.  Claimant reports he continues to have tingling in his left 
 
         wrist into his fingers and he loses his grip and drops things 
 
         with his left hand.  Claimant continued to work at his utility 
 
         man job from his return from his second left carpal tunnel 
 
         release until the plant closing in Spring 1986, however.  
 
         Claimant's self-reported complaints as well as Dr. Blume's 
 
         finding of hypalgesia suggest claimant has some continuing 
 
         impairment of his left wrist.  His ability to continue work 
 
         suggests that impairment is no greater than the six percent Dr. 
 
         Blume assigned.  Dr. Krigsten's original ten percent permanent 
 
         partial impairment rating is discounted as it appears claimant's 
 
         left wrist condition did improve following his second left wrist 
 
         surgery.
 
         
 
              Claimant has failed to establish a permanent disability to 
 
         his right wrist resulting from his right carpal tunnel condition 
 
         and release, however.  Claimant testified he has had no problems 
 
         with his right wrist from his right wrist release onward.  Dr. 
 
         Kleider opined claimant had no permanent partial "disability" on 
 
         account of the right carpal tunnel surgery.  Dr. Blume assigned 
 
         claimant a two percent permanent partial "disability" of the 
 
         right hand after examination.  However, examination findings were 
 
         minimal, at best, and the assigned rating appears a nominal 
 
         rating not reflective of any true permanent disability.  At any 
 
         rate, claimant's own testimony that he had no current right hand 
 
         problems and his treating physician's opinion that he has no 
 
         right hand "disability" counter any weight to be given Dr. 
 
         Blume's rating.
 
         
 
              We consider the Second Injury Fund question.
 
         
 
              There are three requirements for triggering the Second 
 
         Injury Compensation Act found in Iowa Code section 85.63 through 
 
         85.69.  The first is the loss or loss of use of the hand, arm, 
 
         foot, leg or eye.  The second is the loss or loss of use of 
 
         another such member or organ through a compensable injury.  The 
 
         third is that there be permanent disability from both the initial 
 
         and the second loss or loss of use.
 
         
 
              Claimant has failed to establish he is entitled to benefits 
 
         under the Second Injury Fund Act.  Claimant has shown a loss of 
 
         use of both his right and left hand.  Claimant has shown 
 
         permanent disability as to the left hand; as discussed above, he 
 
         had not shown permanent disability as to the right hand.  The 
 
         Act, therefore, is not triggered.
 
         
 
              Because the Act is not invoked and because claimant has 
 
         reached settlements or received commuted benefits from the 
 
         employer and its insurers, we need not reach the question of 
 
         permanent partial disability entitlement or the related odd-lot
 
         
 
         question.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              THEREFORE, IT IS FOUND:
 
         
 
              Claimant developed carpal tunnel syndrome in his left hand 
 
         while working as a utility man at Floyd Valley Packing Co.
 

 
         
 
         
 
         
 
         KARNS V. FLOYD VALLEY PACKING CO.
 
         Page   7
 
         
 
         
 
         
 
              Claimant's left carpal tunnel was decompressed by Dr. 
 
         Krigsten on May 25, 1983.
 
         
 
              Claimant had only minimally improved function of the left 
 
         median nerve following that decompression.
 
         
 
              Claimant developed carpal tunnel syndrome on the right; Dr. 
 
         Kleider performed a right carpal tunnel decompression on February 
 
         15, 1985.
 
         
 
              Dr. Kleider performed a second left carpal tunnel 
 
         decompression on March 27, 1985.
 
         
 
              Claimant returned to work at Floyd Valley after each of his 
 
         surgeries and was able to perform his job duties to the plant's 
 
         closing in Spring 1986.
 
         
 
              Claimant's left hand continues to bother him.  He has 
 
         tingling from the left wrist into his fingers.  He loses his grip 
 
         on the left and drops things.
 
         
 
              Claimant has not had similar problems with his right hand 
 
         since his right carpal tunnel release.
 
         
 
              On examination, claimant has some symptoms of neurological 
 
         dysfunction on the left but only nominal findings on the right.
 
         
 

 
         
 
         
 
         
 
         KARNS V. FLOYD VALLEY PACKING CO.
 
         Page   8
 
         
 
         
 
              Claimant has a permanent loss of use of his left hand on 
 
         account of his left carpal tunnel surgeries.
 
         
 
              Claimant had a temporary loss of use of his right hand on 
 
         account of his right carpal tunnel surgery.
 
         
 
              Claimant has permanent disability on account of his left 
 
         carpal tunnel syndrome.
 
         
 
              Claimant does not have permanent disability on account of 
 
         his right carpal tunnel syndrome.
 
         
 
                              CONCLUSIONS OF LAW
 
         
 
              THEREFORE, IT IS CONCLUDED:
 
         
 
              Claimant received injuries which arose out of and in the 
 
         course of his employment on March 31, 1983, November 15, 1984, 
 
         and January 7, 1985.
 
         
 
              Claimant's injuries to his left hand were causally related 
 
         to the permanent disability on which claimant bases his claim; 
 
         claimant's injury to his right hand is not causally related to 
 
         the permanent disability on which claimant bases his claim.
 
         
 
              Claimant is not entitled to Second Injury Fund  benefits.
 
         
 
                                   ORDER
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              Claimant take nothing further from this proceeding.
 
         
 
              Claimant and defendants share costs of this proceeding 
 
         equally pursuant to Division of Industrial Services Rule 
 
         343-4.33, formerly Industrial Commissioner Rule 500-4.33.
 
         
 
         
 
         
 
              Signed and filed this 30th day of March, 1987.
 
         
 
         
 
                                       
 
                                       HELEN JEAN WALLESER
 
                                       DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies to:
 
         
 
         Mr. Harry Smith
 
         Attorney at Law
 
         P.O. Box 1194
 
         632-640 Badgerow Building
 
         Sioux City, Iowa 51102
 
         
 
         Ms. Shirley Steffe
 
         Assistant Attorney General
 
         Hoover Building
 
         LOCAL
 
 
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                       3202
 
                                                       Filed 3-30-87
 
                                                       Helen Jean Walleser
 
         
 
                  BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         _________________________________________________________________
 
        
 
         JOHN T. KARNS,
 
         
 
              Claimant,
 
                                                 File Nos. 806042
 
         VS.
 
                                                           801714
 
                                                           735066
 
         FLOYD VALLEY PACKING CO.,
 
         
 
         Employer,
 
                                               A R B I T R A T I 0 N
 
         and
 
                                                 D E C I S I 0 N
 
         ARGONAUT INSURANCE COMPANIES
 
         and CHUBB GROUP OF INSURANCE
 
         COMPANIES,
 
         
 
         and
 
         
 
         SECOND INJURY FUND OF IOWA,
 
         
 
              Insurance Carriers,
 
              Defendants.
 
         _________________________________________________________________
 
         
 
         3202
 
         
 
              Second Injury Fund case where claimant established permanent 
 
         loss of use of left hand following two carpal tunnel surgeries to 
 
         that member.  Claimant did not establish any permanent loss of 
 
         use of right hand following successful carpal tunnel surgery.  
 
         Treating physician opined no disability existed; claimant 
 
         testified he had had no problems with the right hand since his 
 
         surgery; examining physician's findings were minimal and two 
 
         percent permanent partial impairment rating appeared to be 
 
         nominal rating only.  No Fund liability found.
 
 
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER 
 
         ________________________________________________________________
 
         DAVID MOORE,
 
         
 
              Claimant,
 
                                                      FILE NO. 806043
 
         VS.
 
                                                   A R B I T R A T I 0 N 
 
         FRENCH & HECHT,
 
                                                      D E C I S I O N
 
              Employer,
 
              Self-Insured,
 
              Defendant.
 
         _________________________________________________________________
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              This is a proceeding in arbitration brought by David Moore, 
 
         claimant, against French & Hecht, employer, hereinafter referred 
 
         to as F & H, a self-insured defendant, for benefits as a result 
 
         of an alleged injury on either June 9, 1984 or June 29, 1984.  On 
 
         March 10, 1987, 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.  The 
 
         exhibits received into the evidence at the hearing are listed in 
 
         the prehearing report.  All of the evidence received at the 
 
         hearing was considered in arriving at this decision.
 
         
 
              The prehearing report contains the following stipulations: 
 
         (1) on either June 9, 1984 or June 29, 1984, claimant received an 
 
         injury which arose out of and in the course of his employment 
 
         with F & H; (2) claimant's rate of compensation in the event of 
 
         an award of weekly benefits from this proceeding shall be $293.06 
 
         per week; and, (3) the medical expenses for which claimant seeks 
 
         reimbursement in this proceeding are fair and reasonable and 
 
         causally connected to the shoulder condition upon which claimant 
 
         is basing his workers' compensation claim in this proceeding.  
 
         However, that the issue of the causal connection of the medical 
 
         expenses to any work injury was an issue which remains contested 
 
         and must be decided in this decision.
 
         
 
              The prehearing report submits the following issues for 
 
         determination in this decision:
 
         
 
               I.  Whether there is a causal relationship between the work 
 
                    injury and the claimed disability;
 
         
 
              II.  The extent of claimant's entitlement to weekly 
 
         disability benefits; and,
 
         
 
              III.  The extent of claimant's entitlement to medical 
 
         benefits under Iowa Code section 85.27.
 

 
         
 
         
 
         
 
         MOORE V. FRENCH HECHT
 
         Page   2
 
         
 
         
 
         
 
                                FINDINGS OF FACT
 
         
 
              1.  Claimant was a credible witness.
 
         
 
              From his appearance and demeanor at the hearing, claimant 
 
         appeared to be testifying in a truthful manner.  Also, physician 
 
         reports submitted into the evidence contain histories of claimed 
 
         injuries and pain complaints which were consistent with 
 
         claimant's testimony.
 
         
 
              2.  Claimant was employed by F & H from 1979 until February 
 
         1985 as a general laborer in their wheel fabrication plant.
 
         
 
              Claimant testified that his duties consisted of work which 
 
         required the regular lifting and handling of wheels, manually or 
 
         mechanically, ranging in weight from 10 to 300 pounds.  Claimant 
 
         stated that he earned approximately $24,000 a year at F & H 
 
         before he quit in February, 1985, "after a new contract."
 
         
 
              3.  In June, 1984, claimant suffered injuries to his right 
 
         shoulder and arm which arose out of and in the course of his 
 
         employment with F & H.
 
         
 
              Claimant testified that he injured his right shoulder when a 
 
         50 to 60 pound wheel fell on him in June, 1984.  Claimant said 
 
         that the shoulder swelled but there was no numbness or tingling 
 
         after this first injury.  Claimant did not seek treatment until 
 
         after a second event in the latter part of June, 1984, following 
 
         a repetitive lifting of wheels onto a press.  In July, 1984, 
 
         claimant received medical treatment for shoulder pain from a Dr. 
 
         Koehler (first name unknown) at the East Kimberly Care Center.  
 
         Dr. Koehler diagnosed acute exacerbation and sprain of the right 
 
         shoulder.  After prescribing moist heat and aspirin, the doctor 
 
         returned claimant to full duty.  Claimant returned to Dr. Koehler 
 
         approximately once a month over the next three months with 
 
         persistent shoulder pain complaints.  Finally, after heavy 
 
         lifting on the paint line, his right hand and two fingers and 
 
         thumb became numb.  Claimant then went to the emergency room at 
 
         Mercy Hospital in Davenport, Iowa.  After x-rays and arthrogram 
 
         revealed no evidence of acromioclavicular (A/C) separation or 
 
         rotator cuff injury, claimant was released with instructions to 
 
         return to home and apply ice to his shoulder.  At that time 
 
         claimant was placed on light duty by Dr. Koehler until November, 
 
         1984.  Claimant then returned to heavy work on the "rim line" 
 
         handling again all sizes and weights of wheels.  Claimant stated 
 
         that the continuous numbness ended except for the tips of his 
 
         fingers.  However, the numbness would return after repetitive 
 
         heavy lifting.  Claimant was then laid off and upon returning to 
 
         work he quit in February, 1985, after a new contract.  Claimant 
 
         did not state precisely why he quit except that he has been a 
 
         self employed over-the-road truck driver since leaving F & H. 
 
         After purchasing a truck, claimant began to haul steel on a route 
 
         from Iowa to the Carolinas.
 
         
 
              After November, 1984, claimant did not receive treatment for 
 
         his shoulder condition again until March 1, 1985, when he 
 
         consulted without first notifying F & H, his family physician, 
 
         Samual Williams, D.O. Dr. Williams believed that there was 
 

 
         
 
         
 
         
 
         MOORE V. FRENCH HECHT
 
         Page   3
 
         
 
         
 
         probably a rotator cuff injury or capsular damage but could not 
 
         be sure without an orthopedic consultation.  Dr. Williams then 
 
         referred claimant to Ralph Congdon, M.D., an orthopedic surgeon.  
 
         Noting the absence of positive findings on the arthogram, Dr. 
 
         Congdon treated claimant with physical therapy for a diagnosed 
 
         condition of "inappropriately rehabilitated muscles." Treatment 
 
         by Dr. Congdon was approved by F & H and claimant was then sent 
 
         for physical therapy in May, 1985, but claimant discontinued this 
 
         therapy after only one session due to his inability to regularly 
 
         schedule therapy sessions due to his truck driving.
 
         
 
              Despite his testimony that he experienced continued problems 
 
         with shoulder swelling, hand numbness and shoulder pain, 
 
         especially after heavy lifting, claimant did not seek treatment 
 
         again until November, 1985.  Claimant returned to Dr. Williams 
 
         who still felt that claimant had a serious shoulder problem.  Dr. 
 
         Williams than referred claimant to a neurologist, Lynn Kramer, 
 
         M.D. According to her report, Dr. Kramer felt that claimant 
 
         "certainly may have the thoracic outlet syndrome" but desired a 
 
         further test called a venous digital angiogram.. This test 
 
         revealed a it mild compression." Dr. Kramer states that she 
 
         cannot determine from her tests whether the obstruction was 20 
 
         percent or greater but that exercises should be considered to see 
 
         if there can be an improvement.  Dr. Kramer also states that this 
 
         confirms the clinical evaluation.  No other reports were 
 
         submitted from Dr. Kramer.  In a letter report to claimant's 
 
         attorney in December of 1985, Dr. Williams states that after 
 
         consultation, claimant "definitely has pathology present." 
 
         Another Physician, Robert J. Chesser, M.D., of unknown specialty, 
 
         indicated in his report of October, 1986, that there had been a 
 
         definite diagnosis of thoracic outlet syndrome by Dr. Kramer.  In 
 
         the notes of a licensed physical therapist who was providing 
 
         therapy to claimant pursuant to instructions from Dr. Kramer, the 
 
         last entry of his notes reads "I am unsure of what is the 
 
         etiology of this fellow's pain."
 
         
 
         
 
              Defendant argues in his brief that the above statement by 
 
         Dr. Kramer, Dr. Williams and Dr. Chesser do not establish by the 
 
         preponderance of the evidence that claimant suffers from thoracic 
 
         outlet syndrome or that any such condition is work related.  
 
         Defendant points out the lack of any definite causal connection 
 
         opinion in the record.  It is the experience of this agency that 
 
         thoracic outlet syndrome is an overuse syndrome consisting of 
 
         compression of the nerves in the thoracic outlet adjacent to the 
 
         neck caused by inflammation of the soft tissues and ligaments in 
 
         the outlet.  Claimant's pain complaints have been consistent and 
 
         continues since the date of injury.  A finding of a nerve 
 
         compression in the test performed by Dr. Kramer is consistent 
 
         with such a condition.  The views of Dr. Congdon that claimant's 
 
         problem is muscular are important but the doctor did not have the 
 
         benefit of a positive EMG test when he made hit diagnosis.  
 
         Therefore, on the whole record the preponderance of the evidence 
 
         establishes that claimant suffers from a thoracic outlet 
 
         condition caused by the injuries in June, 1984.
 
         
 
              4.  The work injury was a cause of a mild permanent partial 
 
         impairment to claimant's body as a whole.
 
         
 

 
         
 
         
 
         
 
         MOORE V. FRENCH HECHT
 
         Page   4
 
         
 
         
 
              Claimant had no previous medical history of any shoulder, 
 
         neck or arm problems prior to June, 1984, and there is no 
 
         evidence of any functional impairment prior to the work injury of 
 
         this case.
 
         
 
              Only two physicians have rendered opinions with reference to 
 
         the extend of claimantOs functional impairment from this thoracic 
 
         outlet syndrome and his right shoulder and arm pain complaints.  
 
         Dr. Chesser opines that claimant does not have functional 
 
         impairment under AMA Guidelines.  As a result of a loss of 
 
         pinprick sensation, however, Dr. Chesser felt that claimant 
 
         warrants at least a one percent impairment.  This opinion is 
 
         confusing because he imposed a significant 50 pound weight 
 
         restriction with no overhead lifting based upon claimant's 
 
         history.  Dr. Williams opines that claimant has a five percent 
 
         body as a whole injury from a 20 percent loss of use of his right 
 
         shoulder.  However, Dr. Williams did not fully explain the basis 
 
         of his opinions.  Claimant testified that he is considerably 
 
         bothered by pain during heavy lifting and prolonged driving of 
 
         his truck.  On the whole record therefore claimant has 
 
         established that he has at least a mild permanent partial 
 
         impairment to his body as a whole as a result of his right 
 
         shoulder condition.
 
         
 
              5.  The work injuries of June, 1984, is a cause of a ten 
 
         percent permanent loss of earning capacity.
 
         
 
              Claimant has demonstrated that he is physically unable to 
 
         return to the type of work he was performing at F & H at the time 
 
         of the work injury due to physician imposed restrictions.  Dr. 
 
         Chesser's physical restrictions are more significant than his 
 
         impairment ratings.  Claimant is not earning as much as he did at 
 
         F & H, but is employed as an over-the-road trucker by his own 
 
         choice.  The availability of truck driving jobs is certainly 
 
         limited by his shoulder complaints.  However, claimant's 
 
         inability to find more profitable trucking jobs appear to be 
 
         primarily the result of a sluggish economy rather than the work 
 
         injury.
 
         
 
              Claimant is 33 years of age, has a high school education and 
 
         exhibited average intelligence at the hearing.  Due to his age, 
 
         his loss of earning capacity is not as great as that of an older 
 
         individual.
 
         
 
              Claimant has average potential for successful vocational 
 
         rehabilitation.
 
         
 
              6.  Claimant has not been reimbursed for reasonable medical 
 
         expenses for the treatment of his work injury in the amount of 
 
         $1,236.60 and for travel to receive medical treatment in the 
 
         amount of 300 miles.
 
         
 
              The above expenses were incurred by claimant for necessary 
 
         treatment of his injury.  They involved the charges setforth in 
 
         the exhibits for treatment by Dr. Williams, Dr. Kramer and tests, 
 
         diagnostic imagining and other hospital services ordered by Dr. 
 
         Williams and Dr. Kramer.
 
         
 
              The only mileage not reimbursed was for travel by claimant 
 

 
         
 
         
 
         
 
         MOORE V. FRENCH HECHT
 
         Page   5
 
         
 
         
 
         to receive treatment from Dr. Williams, Dr. Kramer and Dr. 
 
         Shaffer.  Claimant testified that defendant referred him to see 
 
         Dr. Shaffer.
 
         
 
                              CONCLUSIONS OF LAW
 
         
 
              In this case, there was no controversy raised by the parties 
 
         concerning the applicable law to be followed in the determination 
 
         of the issues.  The foregoing findings were made by applying the 
 
         following principles of law:
 
         
 
              I.  The claimant has the burden of proving by a 
 
         preponderance of the evidence that the work injury is a cause of 
 
         the claimed disability.  A disability may be either temporary or 
 
         permanent.  In the case of a claim for temporary disability, the 
 
         claimant must establish that the work injury was a cause of 
 
         absence from work and lost earnings during a period of recovery 
 
         from the injury.  Generally, a claim of permanent disability 
 
         invokes an initial determination of whether the work injury was a 
 
         cause of permanent physical impairment or permanent limitation in 
 
         work activity.  However, in some instances, such as a job 
 
         transfer caused by a work injury, permanent disability benefits 
 
         can be awarded without a showing of a causal connection to a 
 
         physical change of condition.  Blacksmith v. All-American, Inc., 
 
         290 N.W.2d 348, 354 (Iowa 1980); McSpadden v. Big Ben Coal Co., 
 
         288 N.W.2d 181 (Iowa 1980).
 
         
 
             The question of causal connection is essentially  within  
 
         the
 
         domain of expert medical opinion.  Bradshaw v. Iowa Methodist
 
         Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960).  The opinion of 
 
         experts need not be couched in definite, positive or unequivocal 
 
         language and the expert opinion may be accepted or rejected, in 
 
         whole or in part, by the trier of fact.  Sondag v. Ferris 
 
         Hardware, 220 N.W.2d 903 (Iowa 1974).  The weight to be given to 
 
         such an opinion is for the finder of fact, and that may be 
 
         affected by the completeness of the premise given the expert and 
 
         other surrounding circumstances.  Bodish v. Fischer, Inc., 257 
 
         Iowa 516, 133 N.W.2d 867 (1965).
 
         
 
              Furthermore, if the available expert testimony is 
 
         insufficient alone to support a finding of causal connection, 
 
         such testimony may be coupled with nonexpert testimony to show 
 
         causation and be sufficient to sustain an award.  Giere v. Aase 
 
         Haugen Homes, Inc., 259 Iowa 1065, 146 N.W.2d 911, 915 (196 ). 
 
         Such evidence does not, however, compel an award as a matter of 
 
         law.  Anderson v. Oscar Mayer & Co., 217 N.W.2d 531, 536 (Iowa 
 
         1974).  To establish compensability, the injury need only be a 
 
         significant factor, not be the only factor causing the claimed 
 
         disability.  Blacksmith, 290 N.W.2d 348, 354.  In the case of a 
 
         preexisting condition, an employee is not entitled to recover for 
 
         the results of a preexisting injury or disease but can recover 
 
         for an aggravation thereof which resulted in the disability found 
 
         to exist.  Olson v. Goodyear Service Stores, 255 Iowa 1112, 125 
 
         N.W.2d 251 (1963).
 
         
 
              In the case sub judice, although a finding was made causally 
 
         connecting the work injury to mild permanent functional 
 
         impairment to claimant's body as a whole, such a finding does 
 

 
         
 
         
 
         
 
         MOORE V. FRENCH HECHT
 
         Page   6
 
         
 
         
 
         not, as a matter of law, automatically entitle claimant to 
 
         benefits for permanent disability.  The extent to which this 
 
         physical impairment results in disability was examined under the 
 
         law setforth below.
 
         
 
              II.  Claimant must establish by a preponderance of the 
 
         evidence the extent of weekly benefits for permanent disability 
 
         to which claimant is entitled.  As the claimant has shown that 
 
         the work injury was a cause of a permanent physical impairment or 
 
         limitation upon activity involving the body as a whole, the 
 
         degree of permanent disability must be measured pursuant to Iowa 
 
         Code section 85.34(2)(u).  However, unlike scheduled member 
 
         disabilities, the degree of disability under this provision is 
 
         not measured solely by the extent of a functional impairment or 
 
         loss of use of a body member.  A disability to the body as a 
 
         whole or an "industrial disability" is a loss of earning capacity 
 
         resulting from the work injury.  Diederich v. Tri-City Railway 
 
         Co., 219 Iowa 587, 593, 258 N.W. 899 (1935).  A physical 
 
         impairment or restriction on work activity may or may not result 
 
         in such a loss of earning capacity.  The extent to which a work 
 
         injury and a resulting medical condition has resulted in an 
 
         industrial disability is determined from examination of several 
 
         factors.  These factors include the employee's medical condition 
 
         prior to the injury, immediately after the injury and presently; 
 
         the situs of the injury, its severity and the length of healing 
 
         period; the work experience of the employee prior to the injury, 
 
         after the injury and potential for rehabilitation; the employee's 
 
         qualifications intellectually, emotionally and physically; 
 

 
         
 
         
 
         
 
         MOORE V. FRENCH HECHT
 
         Page   7
 
         
 
         
 
         earnings prior and subsequent to the injury; age; education; 
 
         motivation; functional impairment as a result of the injury; and 
 
         inability because of the injury to engage in employment for which 
 
         the employee is fitted.  Loss of earnings caused by a job 
 
         transfer for reasons related to the injury is also relevant.  
 
         Olson, 255 Iowa 1112, 1121, 125 N.W.2d 251, 257 (1963).  See 
 
         Peterson v. Truck Haven Cafe, Inc., (Appeal Decision, February 
 
         28, 1985).
 
         
 
              At the prehearing conference in this case, claimant 
 
         indicated that he was not relying upon the so called "odd-lot" 
 
         doctrine under the holding in Guyton v. Irving Jensen Co., 373 
 
         N.W.2d 101, 105 (Iowa 1985).
 
         
 
              Based upon a finding of a ten percent loss of earning 
 
         capacity or industrial disability as a result of the injury to 
 
         the body as a whole, claimant is entitled as a matter of law to 
 
         50 weeks of permanent partial disability benefits under Iowa Code 
 
         section 85.34(2)(u) which is ten percent of the 500 weeks 
 
         allowable for an injury to the body as a whole in the 
 
         subsection.
 
         
 
              Benefits will be awarded from September 16, 1984, the time 
 
         of claimant's return from his only lost time from the work injury 
 
         established in the record.
 
         
 
              III.  Employer's are obligated to furnish all reasonable 
 
         medical services for treatment of a work injury under Iowa Code 
 
         section 85.27.
 
         
 
              Defendant claims that treatment by Dr. Williams and Dr. 
 
         Kramer was not authorized and claimant is not entitled to 
 
         reimbursement for such expenses under Iowa Code section 85.27 
 
         which provides employers with the right to chose the care.  
 
         However, section 85.27 applies only to injuries compensable under 
 
         Chapters 85 and 85A of the Code and obligates the employers to 
 
         furnish reasonable medical care.  This agency has held that it is 
 
         inconsistent to deny liability and the obligation to furnish care 
 
         on one hand and at the same time claim a right to chose the care.  
 
         Kindhart v. Fort Des Moines Hotel, (Appeal Decision filed March 
 
         27, 1985); Barnhart v. Mag Incorporated, I Iowa Industrial 
 
         Commissioner Reports l6 (Appeal Decision 1981).
 
         
 
              The right to control the medical care must be conditioned 
 
         upon the establishment of liability for an injury either by 
 
         admission or final agency decision.  Iowa Code section 85.27 does 
 
         not give the employer the right to chose the care without 
 
         affording claimant the right to petition the commissioner to 
 
         resolve disputes concerning such care.  However, this agency does 
 
         not have authority to order an employer to furnish particular 
 
         care unless the employer's liability for an injury under Chapters 
 
         85; 85A or 85B has been established.  Therefore, the right to 
 
         control the care must coincide with this agency's jurisdiction 
 
         over the matter.
 
         
 
              Prior to the date of the hearing, defendant in this case 
 
         denies that claimant suffered any injury which arose out of and 
 
         in the course of employment.  For that reason, defendant did not 
 
         have the right to chose the medical care for claimant's injuries 
 

 
         
 
         
 
         
 
         MOORE V. FRENCH HECHT
 
         Page   8
 
         
 
         
 
         until the date of the hearing.  Therefore, the expenses of the 
 
         treatment provided by Dr. Williams and Dr. Kramer are 
 
         reimbursable because such expenses were incurred prior to the 
 
         date of hearing in this matter.
 
         
 
              Given the findings of fact, claimant is entitled as a matter 
 
         of law to reimbursement in the total sum of $1,208.60. This is 
 
         the sum of the unreimbursed medical expenses plus $72.00 for 
 
         medical mileage.  The medical mileage expenses are reimbursable 
 
         at the rate of $.24 per mile pursuant to Division of Industrial 
 
         Services Rule 343-8.1.
 
         
 
              With reference to assessment of costs, claimant seeks
 
         reimbursement for the costs of a medical evaluation by Dr. 
 
         Chesser.  This could not be reimbursable under Iowa Code section 
 
         85.27 as such services were an evaluation and not treatment under 
 
         Iowa Code section 85.27.  The charged cannot likewise be 
 
         reimbursed under the Department of Industrial Services Rule 
 
         343-4.33 because there is no way one could determine from the 
 
         evidence submitted as to whether the charge is for the 
 
         preparation of the report or the time expended in performing the 
 
         evaluation.  The latter cannot be reimbursed under the costs 
 
         provision.  Therefore, the claim for $125 for the evaluation is 
 
         denied.
 
         
 
                                      ORDER
 
         
 
              IT IS THEREFORE ORDERED as follows:
 
         
 
              1.  Defendant shall pay to claimant fifty (50) weeks of 
 
         permanent partial disability benefits at the rate of two hundred 
 
         ninety-three and 06/100 dollars ($293.06) per week from September 
 
         16, 1984.
 
         
 
              2.  Defendant shall pay claimant the total sum of one 
 
         thousand two hundred eight and 60/100 dollars ($1,208.60) for 
 
         medical expenses.
 
         
 
              3.  Defendant shall pay accrued weekly benefits in a lump 
 
         sum and shall receive a credit against this award for all 
 
         benefits previously paid and for previous payment of benefits 
 
         under a non-occupational group insurance plan, if applicable and 
 
         appropriate under Iowa Code section 85.38(2).
 
         
 
              4.  Defendant shall pay interest on benefits awarded herein 
 
         as setforth in Iowa Code section 85.30.
 
         
 
              5.  Defendant shall pay the costs of this action pursuant to 
 
         Division of Industrial Services Rule 343-4.33.
 
              6.  Defendant shall file activity reports upon the payment 
 
         of this award as requested by this agency pursuant to Division of 
 
         Industrial Services Rule 343-3.1.
 
         
 
         
 
              Signed and filed this 13th day of May, 1987.
 
         
 
                                              
 
                                             LARRY P. WALSHIRE 
 
                                             DEPUTY INDUSTRIAL COMMISSIONER
 
                                             
 
                                             
 
                                             
 
                                            
 
 
 
 
 
         
 
         MOORE V. FRENCH HECHT
 
         Page   9
 
         
 
         
 
         
 
         
 
                     
 
         Copies To:
 
         
 
         Mr. James M. Hood
 
         Attorney at Law
 
         302 Union Arcade Bldg.
 
         Davenport, Iowa 52801
 
         
 
         Mr. Larry L. Shepler
 
         Attorney at Law
 
         600 Union Arcade Bldg.
 
         111 East Third Street
 
         Davenport, Iowa 52801-1550
 
         
 
         
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                     1803
 
                                                     Filed May 13, 1987
 
                                                     LARRY P. WALSHIRE
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         
 
         DAVID MOORE,
 
         
 
              Claimant,                             FILE NO. 806043
 
         VS.
 
                                                 A R B I T R A T I 0 N
 
         FRENCH  &  HECHT,
 
                                                   D E C I S I 0 N
 
              Employer,
 
              Self-Insured,
 
              Defendant.
 
         
 
         
 
         
 
         
 
         
 
          1803
 
         
 
              It was held that there was a causal connection between the 
 
         work injury and slight permanent partial impairment.  Claimant 
 
         had left his job to become involved as a self-employed 
 
         over-the-road trucker.  Claimant was awarded ten percent of 
 
         permanent partial disability benefits.
 
 
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         
 
         DAVID MOORE,
 
                                                      FILE NO. 806043
 
              Claimant,
 
                                                    A D D E N D U M   T O
 
         -vs-
 
                                                   A R B I T R A T I O N
 
         FRENCH & HECHT,
 
                                                      D E C I S I O N
 
              Defendant.
 
         
 
         
 
         
 
         
 
              Subsequent to an inquiry by defendants counsel, the  
 
         undersigned on his own motion believes that due to scriveners 
 
         error and oversight the following should be added to a portion of 
 
         the decision rendered 5/13/87 to eliminate confusion with 
 
         reference to the right of defendant to chose the medical care in 
 
         this case.  This addendum does not materially change the 
 
         decision.
 
         
 
              1. The word Odenies" contained in the second clause of the 
 
         first sentence of the second unnumbered paragraph appearing on 
 
         page 8 of the decision shall be stricken and the following 
 
         inserted in lieu thereof:
 
         
 
              Odenied in its answer to claimant's petition filed herein.O
 
         
 
              2.  The following shall be added following the last sentence 
 
         of the unnumbered paragraph appearing on page 8 of the decision:
 
         
 
                   "This agency has held that it is inconsistent to deny 
 
              liability and the obligation to furnish care on one hand and 
 
              at the same time claim a right to choose the care.  
 
              Kindhart v  Fort Des Moines Hotel (Appeal Dec, March 27, 
 
              1985).  Barnhart v  Mag Incorporated, I la Ind Commr Rpts 16 
 
              (App Dec 1981).  The right to control the medical care must 
 
              be conditioned upon the establishment of liability for an 
 
              injury either by admission or final agency decision.  Iowa 
 
              Code section 85.27 does not give an employer the right  to 
 
              chose the care without affording claimant the right to 
 
              petition the commissioner to resolve disputes concerning 
 
              such care.  However, this agency does not have authority to 
 
              order an employer to furnish any particular care unless the 
 
              employer's liability for an injury under chapters 85, 85A or 
 
              85B has been established.  Therefore, the right to control 
 
              the care must coincide with this agencies jurisdiction over 
 
              the matter."
 
         
 
                                                
 
                                                         
 
         
 
         MOORE V. FRENCH & HECHT
 
         Page 2
 
         
 
         
 
         
 
              The wording contained in the balance of the decision remains 
 
         unchanged.
 
         
 
         
 
         
 
         
 
              Signed and filed this 14th day of May, 1987.
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
                                          LARRY P. WALSHIRE
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         
 
         
 
         Copies to:
 
         
 
         James Hood, Attorney for Claimant
 
         Larry Shepler, Attorney for Defendant
 
 
 
         
 
 
        
 
 
 
 
 
        
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
        
 
        
 
        CURTIS DUFFIE,
 
        
 
            Claimant,
 
                                                File No. 806044
 
        vs.
 
        
 
        JOHN DEERE DUBUQUE WORKS                  A P P E A L
 
        OF DEERE & COMPANY,
 
                                                D E C I S I O N
 
            Employer,
 
            Self-Insured                           F I L E D
 
            Defendant.
 
                                                   MAY 12 1989
 
        
 
                                         IOWA INDUSTRIAL COMMISSIONER
 
        
 
        
 
                             STATEMENT OF THE CASE
 
        
 
             Claimant appeals from an arbitration decision denying 
 
             permanent partial disability benefits as the result of an alleged 
 
             injury on July 2, 1985.
 
        
 
            The record on appeal consists of the transcript of the 
 
        arbitration hearing and joint exhibits 1 through 22. Both 
 
        parties filed briefs on appeal. Claimant filed a reply brief.
 
        
 
                                      ISSUES
 
        
 
             Claimant states the following issues on appeal:
 
        
 
             1. The deputy commissioner incorrectly determined that the 
 
             claimant failed to prove that his injuries arose out of and 
 
             in the course of his employment.
 
             
 
             2. The deputy commissioner should have determined the 
 
             permanent partial disability rating of 50 percent.
 
             
 
                                 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.
 
        
 
                                      ANALYSIS
 
        
 
             The analysis of the evidence in conjunction with the law is 
 
             adopted.
 
        
 
                                 FINDINGS OF FACT
 
        
 
             1. On July 2, 1985, Curtis Duffie was a resident of 
 
             Dubuque, Iowa employed at the John Deere Dubuque Works of Deere & 
 
             Company in Dubuque, Iowa.
 
        
 

 
        
 
 
 
 
 
            2. Claimant's duties and activities of his employment were 
 
        not shown to be a substantial factor in producing the carpal 
 
        tunnel syndrome and ulnar nerve entrapment which he has 
 
        experienced.
 
        
 
                                 CONCLUSIONS OF LAW
 
        
 
             Claimant has failed to prove, by a preponderance of the 
 
             evidence, that he sustained an injury to his hands or arms which 
 
             arose out of and in the course of his employment with John Deere 
 
             Dubuque Works of Deere & Company.
 
        
 
            Claimant has failed to prove, by a preponderance of the 
 
        evidence, that any of the problems and disability that he has 
 
        experienced in his upper extremities were proximately caused by 
 
        any of the duties or activities he performed as part of his 
 
        employment with John Deere Dubuque Works of Deere & Company.
 
        
 
            WHEREFORE, the decision of the deputy is affirmed.
 
        
 
                                      ORDER
 
        
 
             THEREFORE, it is ordered:
 
        
 
            That claimant take nothing from this proceeding.
 
        
 
            That the costs of this action are assessed against the 
 
        claimant pursuant to Division of Industrial Services Rule 
 
        343-4.33.
 
        
 
            Signed and filed this 12th day of May, 1989.
 
        
 
        
 
        
 
        
 
        
 
                                                DAVID E. LINQUIST
 
                                             INDUSTRIAL COMMISSIONER
 
        
 
        Copies To:
 
        
 
        Mr. David A. Lemanski
 
        Attorney at Law
 
        200 Security Building
 
        Dubuque, Iowa 52001
 
        
 
        Mr. Leo McCarthy
 
        Attorney at Law
 
        222 Fischer Building
 
        P.O. Box 239
 
        Dubuque, Iowa 52004-0239
 
        
 
        
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         CURTIS DUFFIE,
 
         
 
              Claimant,
 
         
 
         vs.                                     File  No.  806044
 
         
 
         JOHN DEERE DUBUQUE WORKS              A R B I T R A T I 0 N
 
         OF DEERE & COMPANY,
 
                                                 D E C I S I 0 N
 
              Employer,
 
              Self-Insured,
 
              Defendant.
 
         
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding in arbitration brought by Curtis Duffie 
 
         against John Deere Dubuque Works of Deere & Company, his 
 
         self-insured employer.  The case was heard and fully submitted at 
 
         Dubuque, Iowa on December 17, 1988.  The record in this 
 
         proceeding consists of testimony from Curtis.Duffie, Mervin 
 
         McClenahan, M.D., Vincent Brimeyer, John Zileg and Daniel 
 
         Timmerman.  The record also contains joint exhibits 1 through 19 
 
         and employer's exhibits 20, 21 and 22.
 
         
 
                                      ISSUES
 
         
 
              Curtis Duffie seeks compensation for healing period and 
 
         permanent partial disability based upon the condition of 
 
         claimant's right arm.  Claimant seeks to have the disability 
 
         evaluated industrially.  The issues identified by the parties for 
 
         determination are whether the claimant sustained an injury which 
 
         arose out of and in the course of employment on or about July 2, 
 
         1985; whether the alleged injury is a cause of any temporary or 
 
         permanent disability; determination of the claimant's entitlement 
 
         to compensation for healing period; determination of whether any 
 
         permanent partial disability is limited to a scheduled member of 
 
         the right arm or whether it extends into the body as a whole; 
 
         and, determination of the extent of permanent partial disability 
 
         which has resulted from the alleged injury.  Defendant 
 
         affirmatively defends under Iowa Code sections 85.23 and 85.26.
 
         
 
                               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 showed are inevitable with any summarization.  The 
 
         conclusions in the following summary should be considered to be 
 
         preliminary findings of fact.
 
         
 
              Curtis Duffie is a 56-year-old man who has been employed 
 
         by John Deere since 1966.  Duffie has an eighth grade 
 

 
         
 
         
 
         
 
         DUFFIE V. JOHN DEERE DUBUQUE WORKS OF DEERE & COMPANY
 
         PAGE   2
 
         
 
         education.  He served in the U. S. Army for approximately two 
 
         years during the Korean Conflict and was honorably discharged.
 
         
 
              Prior to commencing employment with John Deere, the 
 
         claimant had been employed by Continental Can Company in 
 
         Chicago, Illinois for approximately 13 years where he worked 
 
         primarily as a press operator and shear operator.  During 
 
         claimant's years of employment with John Deere, he has 
 
         performed a variety of jobs, but since May 9, 1977, he has 
 
         worked almost exclusively as an industrial truck operator.
 
         
 
              According to the testimony of John Zileg and the claimant, 
 
         the position is light work and is considered one of the easier 
 
         jobs in the plant.  Exhibit 20 is a videotape of what Vincent 
 
         Brimeyer, the foreman in the truck repair shop, described as 
 
         typical operation of the forklift truck that claimant 
 
         customarily operates.  Daniel Timmerman, occupational safety 
 
         director, testified that he is the author of exhibit 1, a 
 
         document which shows claimant's work assignments.  Timmerman 
 
         stated that claimant has been primarily a fork truck operator 
 
         since 1973.  Zileg testified that he is not aware of anyone 
 
         developing carpal tunnel syndrome or elbow problems from 
 
         operating forklift trucks.  Zileg stated that claimant has not 
 
         complained of having any problem with his hands or arms and 
 
         that he had no knowledge of claimant's problems until claimant 
 
         was scheduled for surgery.  Zileg stated that claimant now 
 
         performs the job of forklift operator without any apparent 
 
         problems.
 
         
 
               Curtis Duffie testified that he had no problems with his 
 
         hands prior to beginning employment with John Deere.  Claimant 
 
         testified that he first noticed problems with his hands in late 
 
         1982 or in 1983. he experienced numbness and tingling which was 
 

 
         
 
         
 
         
 
         DUFFIE V. JOHN DEERE DUBUQUE WORKS OF DEERE & COMPANY
 
         PAGE   3
 
         
 
         most noticeable when he was in bed at night.  He testified that 
 
         he would awaken with a numb hand and decided to see a doctor.
 
         
 
              Claimant testified that he saw Anthony J. Piasecki, M.D., 
 
         and was informed that he probably had carpal tunnel syndrome.  
 
         Claimant stated that he had not previously heard of carpal 
 
         tunnel syndrome.
 
         
 
              Claimant testified that his problems continued to worsen 
 
         and that he discussed the matter with Mervin McClenahan, M.D., 
 
         the company physician who said that he did not think operating 
 
         a forklift truck would cause it.  Claimant stated that Dr. 
 
         Piasecki told him that the condition was.work-related.
 
         
 
              Claimant testified that the problem worsened with time and 
 
         progressed to a point where he could hardly use his hands and 
 
         was losing his grip.  He stated that the right hand was worse 
 
         than the left.
 
         
 
              Claimant testified that he sought further treatment from 
 
         Patrick Sterrett, M.D., who referred him back to Dr. Piasecki 
 
         for surgery.  Claimant testified that he had surgery on both 
 
         wrists in July, 1985.  He stated that, immediately after 
 
         surgery, they were worse, but that, in six to eight months, 
 
         both had improved and the numbness and tingling went away.  
 
         Claimant complained of residual numbness in the palm of his 
 
         right hand and extending to the two smaller fingers of the 
 
         right hand.
 
         
 
              Claimant continued to seek treatment from other physicians 
 
         including David Field, M.D., Bruce Sprague, M.D., and F. Dale 
 
         Wilson, M.D.  Claimant stated that Dr. Sterrett found a problem 
 
         in his elbow and referred him to Dr. Piasecki for surgery.  
 

 
         
 
         
 
         
 
         DUFFIE V. JOHN DEERE DUBUQUE WORKS OF DEERE & COMPANY
 
         PAGE   4
 
         
 
         Claimant stated that he had ulnar nerve release surgery on his 
 
         right arm in July, 1986.  Claimant stated that, following the 
 
         surgery, he began to experience numbness in the little and ring 
 
         fingers of his right hand.  He stated that it has improved 
 
         somewhat, but is still present.
 
         
 
              Claimant stated that he is a recovering alcoholic and 
 
         regularly attends AA meetings.  He stated that he started 
 
         treatment in 1984 or 1985.  Claimant admitted being a heavy 
 
         drinker prior to 1985.
 
         
 
              Claimant stated that his current problems consist of 
 
         numbness in the right little and ring fingers and on the palm 
 
         of his right hand.  He stated that the right hand is almost 
 
         completely useless and that he has no muscle between the thumb 
 
         and index finger.   Claimant stated that his left hand is not 
 
         as bad as the right.  Claimant reported problems in performing 
 
         activities such as writing or holding anything with his right 
 
         hand.  He complained of loss of grip strength.
 
         
 
              Claimant testified that he continues to seek medical 
 
         treatment for the condition.
 
         
 
              Claimant related that he continues to work as a fork truck 
 
         operator.
 
         
 
              Claimant recalled that he had a problem with his feet, but 
 
         that it went away in late 1985 or 1986 without undergoing 
 
         surgery or taking medication.
 
         
 
              Mervin McClenahan, M.D., the medical director of John 
 
         Deere Dubuque Works, confirmed that claimant does suffer from 
 
         carpal tunnel syndrome, but testified that, in his opinion, 
 

 
         
 
         
 
         
 
         DUFFIE V. JOHN DEERE DUBUQUE WORKS OF DEERE & COMPANY
 
         PAGE   5
 
         
 
         claimant's carpal tunnel syndrome is not related to operating a 
 
         forklift truck.  He felt that the possibility of it being 
 
         work-related was remote.  Dr. McClenahan was unable to identify 
 
         anything in claimant's work history that is a specific cause of 
 
         median or ulnar nerve problems.  He stated that operating a 
 
         forklift truck is not the type of work which typically produces 
 
         carpal tunnel syndrome.
 
         
 
              Dr. McClenahan stated that, in general, the symptoms of 
 
         carpal tunnel syndrome and a peripheral neuropathy can overlap, 
 
         but that, with the peripheral neuropathy, sensory changes are 
 
         most pronounced while, with a compartmental disorder such as 
 
         carpal tunnel syndrome, the greater impact is on motor 
 
         functions.  Dr. McClenahan knew of no other claims for carpal 
 
         tunnel syndrome having been made by forklift drivers.
 
         
 
              Claimant was suspected of having a peripheral neuropathy 
 
         related to his alcohol use when he was seen by Dr. P. Lynn on 
 
         December 27, 1984 (exhibit 5).  Dr. Sterrett made a similar 
 
         diagnosis on January 5, 1985 (exhibit 21).  Dr. Zoltani 
 
         concurred in that diagnosis (exhibit 19).
 
         
 
              Dr. McClenahan testified about alcoholic neuritis.  He 
 
         stated that the damage it causes generally tends to be 
 
         symmetrical and progressive, but it can be partially reversible 
 
         if the patient discontinues alcohol use.
 
         
 
              Dr. Sterrett had diagnosed claimant as having carpal 
 
         tunnel syndrome on December 31, 1983, but at that time, 
 
         claimant elected to live with it rather than seek surgical 
 
         correction (exhibit 5).
 
         
 
              Dr. Piasecki has vacillated on his opinion regarding 
 

 
         
 
         
 
         
 
         DUFFIE V. JOHN DEERE DUBUQUE WORKS OF DEERE & COMPANY
 
         PAGE   6
 
         
 
         whether or not claimant's carpal tunnel and ulnar nerve 
 
         problems are work-related (exhibits 8 and 11).  Dr. Wilson 
 
         expressed the opinion that claimant's condition was 
 
         work-related (exhibits 15 and 16).  Dr. Zoltani diagnosed 
 
         claimant as having a generalized peripheral neuropathy rather 
 
         than any carpal tunnel syndrome (exhibit 19).
 
         
 
                         APPLICABLE LAW AND ANALYSIS
 
         
 
              Claimant has the burden of proving by a preponderance of the 
 
         evidence that he received an injury on July 2, 1985 which arose 
 
         out of and in the course of his employment.  McDowell v. Town of 
 
         Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. Central 
 
         Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
              The words "in the course of" refer to the time and place and 
 
         circumstances of the injury.  McClure v. Union et al. Counties, 
 
         188 N.W.2d 283 (Iowa 1971); Crowe v. DeSoto Consol. Sch. Dist., 
 
         246 Iowa 402, 68 N.W.2d 63 (1955).
 
         
 
              The requirement that the injury arise out of the employment 
 
         deals with the cause and origin of the injury.  The arising out 
 
         of requirement is satisfied by showing a causal relationship 
 
         between the employment and the injury.  Sheerin v. Holin Co., 380 
 
         N.W.2d 415, 417 (Iowa 1986); McClure v. Union et al. Counties, 
 
         188 N.W.2d 283, 287 (Iowa 1971); Musselman v. Central Telephone 
 
         Co., 261 Iowa 352, 154 N.W.2d 128, 130 (1967); Crees v. Sheldahl 
 
         Telephone Co., 285 Iowa 292, 300, 139 N.W.2d 190, 195 (1965).
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the alleged injury is a cause of 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).
 
         
 
              The theory urged by claimant in his petition is that 
 
         constant use of his fingers and hands on various jobs with the 
 
         employer resulted in carpal tunnel syndrome.  At the time of 
 
         hearing, the injury had expanded to include ulnar nerve 
 
         entrapment as well as carpal tunnel syndrome.  The record clearly 
 
         establishes that claimant does have carpal tunnel syndrome and 
 

 
         
 
         
 
         
 
         DUFFIE V. JOHN DEERE DUBUQUE WORKS OF DEERE & COMPANY
 
         PAGE   7
 
         
 
         ulnar nerve entrapment.  In that regard, the opinion of Dr. 
 
         Zoltani is rejected, although claimant may also have a 
 
         generalized peripheral neuropathy as indicated by Dr. Zoltani.
 
         
 
              The primary issue in this case is whether the carpal tunnel 
 
         syndrome and ulnar nerve entrapment were caused by claimant's 
 
         employment with John Deere.  Clearly, claimant has engaged in 
 
         employment duties with John Deere which commonly produce claims 
 
         for carpal tunnel syndrome.  The job of forklift truck operator 
 
         is not, however, one of those positions.  Claimant related that 
 
         the onset of symptoms occurred in early 1983.  It should be noted 
 
         that this is at least five,years after he had ceased performing 
 
         work other than as a forklift truck operator.
 
         
 
              Claimant has not, since the mid-1970's, worked in a position 
 
         of the type which can commonly be associated with carpal tunnel 
 
         syndrome.  The forklift truck operator position is one which 
 
         clearly does not require forceful use of the hands or arms. it is 
 
         a job that he has been able to perform in spite of the impaired 
 
         condition of his upper extremities.  This in and of itself is 
 
         strong evidence that the job is not particularly stressful to the 
 
         hands and arms.  Agency expertise and experience may be relied 
 
         upon in the evaluation of evidence.  Iowa Code section 17A.14(5). 
 
         Dr. McClenahan expressed the opinion that claimant's carpal 
 
         tunnel syndrome and ulnar nerve problems are not related to his 
 
         work as a forklift operator.  Dr. McClenahan is intimately 
 
         familiar with the work of a forklift operator.  It cannot be 
 
         determined whether any of the other physicians are as familiar 
 
         with the exact circumstances of claimant's employment duties.  In 
 
         view of the lack of knowledge regarding whether or not the other 
 
         physicians were fully familiar with claimant's employment duties 
 
         and also based upon agency experience and expertise, the opinion 
 
         expressed by Dr. McClenahan is accepted as being correct.  
 
         Accordingly, it is determined that the claimant has failed to 
 
         carry the burden of proving, by a preponderance of the evidence, 
 
         that any of the ailments in his hands or arms were proximately 
 
         caused by his employment with John Deere & Company.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              1.  On July 2, 1985, Curtis Duffie was a resident of 
 
         Dubuque, Iowa employed at the John Deere Dubuque Works of Deere & 
 
         Company in Dubuque, Iowa.
 
         
 
              2.  Claimant has failed to introduce evidence showing that 
 
         it is more likely than not that the duties and activities of his 
 
         employment were a substantial factor in producing the carpal 
 
         tunnel syndrome and ulnar nerve entrapment which he has 
 
         experienced.
 
         
 
              3.  The assessment of the case made by Mervin McClenahan, 
 
         M.D., is correct.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              1.  This agency has jurisdiction of the subject matter of 
 
         this proceeding and its parties.
 
         
 
              2.  Claimant has failed to prove, by a preponderance of the 
 
         evidence, that he sustained an injury to his hands or,arms which 
 

 
         
 
         
 
         
 
         DUFFIE V. JOHN DEERE DUBUQUE WORKS OF DEERE & COMPANY
 
         PAGE   8
 
         
 
         arose out of and in the course of his employment with John Deere 
 
         Dubuque Works of Deere & Company.
 
         
 
              3.  Claimant has failed to prove, by a preponderance of the 
 
         evidence, that any of the problems and disability that he has 
 
         experienced in his upper extremities were proximately caused by 
 
         any of the duties or activities he performed as part of his 
 
         employment with John Deere Dubuque Works of Deere & Company.
 
         
 
                                      ORDER
 
         
 
              IT IS THEREFORE ORDERED that claimant take nothing from this 
 
         proceeding.
 
         
 
              IT IS FURTHER ORDERED that the costs of this action are 
 
         assessed against the claimant pursuant to Division of Industrial 
 
         Services Rule 343-4.33.
 
         
 
              Signed and filed this 5th day of October, 1988.
 
         
 
         
 
                                         MICHAEL G. TRIER
 
                                         DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         
 
         Copies To:
 
         
 
         Mr. David A. Lemanski
 
         Attorney at Law
 
         200 Security Building
 
         Dubuque, Iowa 52001
 
         
 
         Mr. Leo McCarthy
 
         Attorney at Law
 
         222 Fischer Building
 
         P.O. Box 239
 
         Dubuque, Iowa 52004-0239
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                 1108.50, 1402.30
 
                                                 Filed October 5, 1988
 
                                                 MICHAEL G. TRIER
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         CURTIS DUFFLE,
 
         
 
              Claimant,
 
         
 
         vs.                                     File No. 806044
 
         
 
         JOHN DEERE DUBUQUE WORKS             A R B I T R A T I 0 N
 
         OF DEERE & COMPANY,
 
                                                 D E C I S I 0 N
 
         
 
              Employer,
 
              Self-Insured,
 
              Defendant.
 
         
 
         
 
         
 
         1108.50; 1402.30
 
         
 
              Claimant, a fork truck operator, failed to carry burden of 
 
         proof that his carpal tunnel and ulnar nerve problems were 
 
         work-related.
 
 
 
         
 
 
        
 
 
 
 
 
        
 
                                          51100 - 51108.50
 
                                          Filed May 12, 1989
 
                                          DAVID E. LINQUIST
 
        
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
        
 
        
 
        CURTIS DUFFIE,
 
        
 
            Claimant,
 
                                                  File No. 806044
 
        vs.
 
        
 
        JOHN DEERE DUBUQUE WORKS                   A P P E A L
 
        OF DEERE & COMPANY,
 
                                                 D E C I S I O N
 
            Employer,
 
            Self-Insured,
 
            Defendant.
 
        
 
        
 
        
 
        51100, 51108.50
 
        
 
             Claimant failed to show that his carpal tunnel condition 
 
             arose out of his employment.
 
             
 
        
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         
 
         CURTIS MERRITT,
 
          
 
              Claimant,
 
                                                       File No. 806048
 
          VS.
 
          
 
          CRO SATELLITE SERVICES,                   A R B I T R A T I 0 N
 
          
 
              Employer,                                 D E C I S I 0 N
 
          
 
         and 
 
          
 
          CNA INSURANCE COMPANY,
 
          
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              This is a proceeding in arbitration brought by Curtis 
 
         Merritt, claimant, against CRO Satellite Services (CRO), 
 
         employer, and CNA Insurance Company, insurance carrier, for 
 
         benefits as a result of an alleged injury on July 12, 1984.  A 
 
         hearing was held in Des Moines, Iowa, on February 25, 1987 and 
 
         the case was submitted on that date.
 
         
 
              The record consists of the testimony of claimant and Jack 
 
         Edward Reynolds; claimant's exhibits 1 and 2; and defendants' 
 
         exhibit A.  Neither party filed a brief.
 
         
 
              The parties stipulated that claimant's weekly rate of 
 
         compensation is $243.20; that claimant has been off work from 
 
         July 12, 1984 to date of hearing on February 25, 1987, except 
 
         that he worked several days during this time period; and that 
 
         claimant's injury of July 12, 1984 arose out of and in the course 
 
         of his employment with CRO; and that the section 85.27 issue had 
 
         been informally resolved.
 
         ISSUES
 
         
 
              The contested issues are:
 
         
 
              1)  Whether there is a causal connection between claimant's 
 
         injury of July 12, 1984 and his asserted disability; and
 
         
 
              2)  Nature and extent of disability; claimant has asserted
 
         the odd-lot doctrine or is seeking a running award of healing 
 
         period benefits; defendants assert that claimant is not entitled 
 
         to permanent total disability benefits and that any permanent 
 
         partial disability benefits awarded should commence on August 30, 
 
         1985.
 
         
 
                             SUMMARY OF THE EVIDENCE
 

 
         
 
         
 
         
 
         MERRITT V. CRO SATELLITE SERVICES
 
         Page   2
 
         
 
         
 
         
 
              Claimant testified that he is 30 years old having been born 
 
         on August 22, 1956.  Claimant completed the tenth grade and then 
 
         entered the Marine Corps in March 1974.  He was discharged from 
 
         the Marine Corps in November 1975.  In the Marine Corps he was 
 
         trained to be a truck driver, and he maintained and operated 
 
         large vehicles.  He took a three-month course in the Marine Corps 
 
         to learn how to operate these large vehicles that were mostly big 
 
         trucks.   Claimant received a GED in the Marine Corps.
 
         
 
              Claimant testified that after discharge from the Marine 
 
         Corps he started working at a factory in St. Louis, Missouri, 
 
         driving a forklift and working as a heavy equipment operator for 
 
         six months.  This involved some mechanical work and he was paid 
 
         $3.50 per hour.  He then went into the mobile home remodeling 
 
         business as he had prior experience and training in this area.  
 
         This was basically carpentry work in residential areas and he was 
 
         paid on an hourly basis.  He did this work "off and on" for five 
 
         years which took him up to about 1980.  In 1980, he worked in the 
 
         home improvement business.  In 1981, he made about $21,000 a year 
 
         doing cable installation and construction as an installer 
 
         foreman.  He climbed telephone poles and such in St. Charles, 
 
         Missouri, and St. Charles County, Missouri.  This cable work was 
 
         new to him and he supervised thirteen people on this job.  He was 
 
         paid on a commission basis "based on the amount of work in a 
 
         day." This job was similar to the job he would ultimately had 
 
         with CRO.
 
         
 
              Claimant testified that he started working for CRO in 
 
         October 1983; he actually worked for a subsidiary of CRO entitled 
 
         Star Path Enterprises.  In October 1983, he was paid $1,150 and 
 
         was paid a monthly wage initially with CRO.  Exhibit 2, page 3, 
 
         documents his earnings with CRO.  He characterized the CRO job as 
 
         "the best paying job I ever had and it was much more complex than 
 
         the job I had in 1980 or 1981.'
 
         
 
              Claimant testified that on July 12, 1984, he was building a 
 
         building that was to contain a Ocomputer satellite system 
 
         network" near Creston, Iowa.  He was working with one other 
 
         person at the time and was 'doing the work to put together the 
 
         building.'  The ladder he was working with slipped and claimant 
 
         fell from the top of the ladder at about 4:30 p.m. on July 12, 
 
         1984.  It took him fifteen minutes to get off the ground after 
 
         the fall because of the pain.  The fall jarred his body 
 
         tremendously.  Prior to his fall, he had no prior low back problems
 
         but had experienced cervical problems.  Claimant testified that 
 
         in 1973, he broke his neck in an automobile accident and was 
 
         treated for this injury until March 1974.
 
         
 
              Claimant testified that his "general health" was the "best 
 
         in his lifeO prior to the fall of July 12, 1984.  After the fall, 
 
         he went to Creston for treatment and it was "almost midnight the 
 
         night after the accident.O  The fall caused his back, neck, and 
 
         ankles to hurt.  The day after the accident claimant went to the 
 
         Creston Clinic and was given medication.  CRO was told of 
 
         claimant's fall.  After claimant's initial treatment in Creston, 
 

 
         
 
         
 
         
 
         MERRITT V. CRO SATELLITE SERVICES
 
         Page   3
 
         
 
         
 
         all medical treatment received by claimant has been in Missouri. 
 
          On July 17, 1984, claimant saw K. L. Turner, M.D.  See exhibit 
 
         1, page 4.  Dr. Turner restricted claimant's activities and told 
 
         him to get bedrest and do as little as possible.  Claimant has 
 
         not had surgery as a result of his injury of July 12, 1984, but 
 
         has been hospitalized on three occasions.  The first 
 
         hospitalization was for approximately ten days in August 1984 
 
         when x-rays were taken and claimant was given medication.  In 
 
         November 1984, claimant had a myelogram during a short stay in 
 
         the hospital and was under the treatment of Louis A. Benoist, 
 
         M.D.  The third hospitalization was at a Veterans Administration 
 
         Center in August 1986 unrelated to claimant's back.  Surgery has 
 
         been suggested to claimant.  Claimant is currently on pain 
 
         medication and has seen a psychiatrist.  He first saw a 
 
         psychiatrist in October 1984.  See exhibit 1, page 20.  From 
 
         October 26, 1984, he has seen a psychiatrist and does so on a 
 
         regular basis, which means he sees a psychiatrist every three to 
 
         four weeks.  Claimant saw Michael J. Taylor, M.D., at the request 
 
         of Dorothy Kelley, defense attorney.  Claimant has seen T. J. 
 
         Fitzgerald, Ph.D, on one occasion as his attorney in St. Louis 
 
         ("primary attorney") referred him to Dr. Fitzgerald.  Claimant 
 
         testified that his "secondary attorney," Robert Pratt of Des 
 
         Moines, Iowa, did not refer him to Dr. Fitzgerald.
 
         
 
              Claimant testified that he wants "deeply" to go back to 
 
         work, but is not physically or emotionally able to do so.  He 
 
         stated that it is physically impossible for him to go back to 
 
         work and mentally he cannot cope with repetitious work.  He 
 
         stated that he now has psychiatric problems that he did not have 
 
         prior to his fall on July 12, 1984.  He now seeks isolation and 
 
         now limits his activities.  Prior to July 12, 1984, claimant 
 
         considered himself an outgoing person and his activities were 
 
         "extreme.O  His activities are now "very limited.O
 
         
 
              Claimant testified that he has received a second GED because 
 
         he took a test in October 1986 with a satisfactory result.  He 
 
         testified that the military lost records regarding his first GED.  
 
         Claimant has no other vocational rehabilitation training other 
 
         than his second GED training.  Claimant has applied for social 
 
         security disability benefits which were denied.  His last 
 
         workers' compensation weekly benefit check came on or about 
 
         September 13, 1986.  Claimant sees doctors at the Veterans 
 
         Administration.  He testified that doctors have tried different 
 
         kinds of medication in his case.  Claimant is currently on 
 
         medication for depression and he takes so-called "nerve pills."  
 
         He also takes sleeping medication.  Dr. Fitzgerald tested 
 
         claimant.  See exhibit 1, page 56.  Claimant stated his medical 
 
         restrictions as no lifting, no bending, no twisting about, no 
 
         running, and no climbing.
 
         
 
              Claimant testified that after July 12, 1984, he has not 
 
         looked for work.  However, on February 11, 1985, he tried to 
 
         return to work and worked an entire day, but was unable to return 
 
         to work the next day because of physical problems.  After this 
 
         attempt to return to work, he went to a VA hospital in St. Louis, 
 
         Missouri, and sought pain medication.  He does not know when he 
 
         will be able to return to work.
 
         
 
              Claimant testified that he will be starting a course of 
 

 
         
 
         
 
         
 
         MERRITT V. CRO SATELLITE SERVICES
 
         Page   4
 
         
 
         
 
         study in electronics training in Kentucky.  He stated this is a 
 
         "five hour course for two years."  He stated that the five hours 
 
         is composed of four hours of class and one hour of lab time and 
 
         would enable him to repair computers as a computer technician.  
 
         The total tuition for this Kentucky course is $7,600 and would 
 
         require him to move to Kentucky.
 
         
 
              Claimant has been married for nine years and has three 
 
         children.  He stated that CRO has not "terminated my employment 
 
         to my knowledge.O  However, his last contact with CRO was about 
 
         four months prior to the hearing of February 25, 1987.  There was 
 
         some discussion that CRO is no longer in existence.  Claimant 
 
         stated he will again see Dr. Turner in the near future.  Claimant 
 
         will see William Cone, M.D., on March 14, 1987 about his 
 
         psychiatric condition.  Dr. Cone attempts to explains claimant's 
 
         adverse feelings to him.  Claimant stated that Dr. Cone's 
 
         treatment is helping him.
 
         
 
              On cross-examination, claimant acknowledged that he has 
 
         "ability to contract and subcontract."  He has also done some of 
 
         his own contracting and has measured projects and estimated 
 
         costs.  He is not educated to develop blueprints; however, he 
 
         stated he can do without blueprints.  He acknowledged he has 
 
         general carpentry tools and that he has done remodeling inside 
 
         and outside.  He has helped with the construction of new 
 
         apartments in the past.  While at CRO, he learned about satellite 
 
         dishes and assisted with the electronic aspects of a cable 
 
         network.  He Opicked this up on his own.O
 
         
 
              On cross-examination, claimant testified that cervical 
 
         strain was the reason for his early discharge from the Marine 
 
         Corps and that an automobile accident caused this cervical 
 
         strain.  As a result of this auto accident, he was given a Oten 
 
         percent temporary rating."  He acknowledged seeing the documents 
 
         marked exhibit A. Exhibit 1, page 5, documents a 1973 accident 
 
         that involved a compression fracture to claimant's neck.  Exhibit 
 
         8, page 5, also makes reference to a November 1974 accident, but 
 
         claimant at time of hearing didn't recall this incident.  He 
 
         stated the 1973 accident occurred while he was in the home 
 
         improvement business.  Exhibit A, page 5, refers to the injury of 
 
         November 1974 as a "reinjury."  Claimant testified that when he 
 
         entered the Marine Corps in March 1974, he was "fully recovered." 
 
          Exhibit A, page 6, also makes reference to a cervical injury in 
 
         January 1975 while claimant was in the military and claimant, at 
 
         hearing, testified that this was a Omilitary accident."  Claimant 
 
         acknowledged that after the Marine Corps he Owent from job to 
 
         job."  He once again stated that since July 12, 1984, he has not 
 
         sought employment.  He also acknowledged that his alleged injury 
 
         may have occurred on July 13, 1984.
 
         
 
              On cross-examination, claimant acknowledged that in 1976 he 
 
         injured his low back at home.  In August 1984, Dr. Turner 
 
         admitted claimant to the hospital.  Exhibit 1, page 7, contains a 
 
         history of low back pain at time of admission on August 6, 1984.  
 
         Exhibit 1, page 7, documents no evidence of disc herniation.  
 
         Exhibit 1, page 20, discusses claimant's marital problems.  
 
         Claimant acknowledged that he has stopped conservative treatment. 
 
          Claimant has been advised to seek vocational rehabilitation or 
 
         employment that involves a mixture of standing, walking, and 
 

 
         
 
         
 
         
 
         MERRITT V. CRO SATELLITE SERVICES
 
         Page   5
 
         
 
         
 
         sitting.
 
         
 
              On cross-examination, claimant testified that in the last 
 
         four months he found out that CRO Satellite Services "no longer 
 
         exists."
 
         
 
              On recross-examination, claimant acknowledged that there is 
 
         no evidence of a herniated disc.
 
         
 
              Jack Edward Reynolds testified that he is a vocational 
 
         rehabilitation specialist from Des Moines.  He has a Masters 
 
         Degree in job placement for the severely disabled.  He tries to 
 
         place "displaced workers" by matching their limitations and 
 
         capacities with various job openings.  He looks at both mental 
 
         and physical limitations.  He testified that he is a certified 
 
         rehabilitation counselor.  He does vocational assessment and 
 
         testing.  He states his opinion on the employment capacity of 
 
         disabled workers.  He stated that he has placed a number of 
 
         clients with limitations similar to those of claimant.  He 
 
         reviews medical and testing records on a regular basis and has 
 
         reviewed claimant's file including a review of exhibits 1 and A 
 
         which were received in this case.  He has also reviewed 
 
         claimant's answers to interrogatories and the the entire claims 
 
         file.  He heard all of claimant's testimony on the date of 
 
         hearing, February 25, 1987.  He did not personally interview 
 
         claimant.
 
         
 
         
 
         
 
              Reynolds stated his opinions and conclusions regarding 
 
         claimant.  Reynolds stated that he has done a Ojob system review" 
 
         regarding the areas where claimant could be employed given his 
 
         limitations.  He stated that claimant's cable TV and home 
 
         remodeling background were taken into account in doing this job 
 
         system review.   He also looked at claimant's "preinjury 
 
         capacity."  Reynolds stated his opinion that claimant is capable 
 
         of performing "general employment."  He stated that it was his 
 
         understanding that claimant had a medically imposed lifting 
 
         restriction of "up to fifty pounds" which Reynolds characterized 
 
         as a medium lifting restriction.  Reynolds testified that he was 
 
         hired by defendants in late January 1987.
 
         
 
              Reynolds testified that there are about a dozen jobs 
 
         available to claimant and characterized these jobs as "light 
 
         employment."  Samples of these jobs are 1) motel-hotel clerk; 2) 
 
         small parts assembler; 3) gate attendant; 4) security guard; 5) 
 
         maintenance dispatcher; 6) counter dispatcher; 7) parking lot 
 
         attendant; 8) car attendant; 9) a service establishment job; 10) 
 
         a general labor job; 11) denture finisher; 12) electrical parts 
 
         assembler; and 13) cafe attendant.  Reynolds stated his opinion 
 
         that claimant's training in electronics is feasible for him and 
 
         that he could enter this field at an entry level at about $20,000 
 
         per year.  Reynolds has talked with a counselor from Missouri who 
 
         has administered tests on claimant.  Reynolds and this counselor 
 
         shared information.  Reynolds was hired by defendants in this 
 
         case in order to render an opinion on the employability of 
 
         claimant.  He was employed after the odd-lot doctrine was 
 
         discussed at prehearing.
 
         
 

 
         
 
         
 
         
 
         MERRITT V. CRO SATELLITE SERVICES
 
         Page   6
 
         
 
         
 
              Reynolds stated that even without training claimant could be 
 
         placed in the job market with his medical limitations.  Reynolds 
 
         stated he has had success in a rural setting with similarly 
 
         situated claimants with similar medical restrictions.  He stated 
 
         that claimant could reenter the job market at the entry level "to 
 
         much higher."  However, he then stated that the best claimant 
 
         could probably do at this point in time is $3.50 to $5.00 per 
 
         hour.  Reynolds acknowledged that he is not familiar with the 
 
         labor market where claimant would be seeking employment.  
 
         However, he restated his opinion that claimant is capable of 
 
         getting a job at higher than entry level.
 
         
 
              On cross-examination, claimant's so-called secondary 
 
         attorney, Mr. Pratt, had Reynolds look at exhibit 1, page 72, the 
 
         third full paragraph.  Reynolds then discussed claimant's 
 
         exertional limitations and nonexertional limitations.  Claimant's 
 
         symptoms are set out on exhibit 1, page 71.  Claimant has 
 
         problems concentrating and has a memory problem.  Reynolds 
 
         characterized putting in cable as semi-skilled work.  He stated 
 
         that claimant was doing semiskilled work in July 1984 and based 
 
         on Dr. Taylor's report (exhibit 1, pages 71-73), claimant could 
 
         not return to the work he was doing on July 12, 1984.  Reynolds 
 
         also acknowledged that claimant could only do portions of a home 
 
         improvement job because of his physical limitations.  He also 
 
         acknowledged that a hotel clerk job would take some 
 
         concentration.  Reynolds then acknowledged that some of the jobs 
 
         he described on direct examination would be eliminated in his 
 
         view because of claimant's physical limitations.
 
         
 

 
         
 
         
 
         
 
         MERRITT V. CRO SATELLITE SERVICES
 
         Page   7
 
         
 
         
 
              Reynolds characterized claimant's positive factors as his
 
         work history, GED, contact in the area of his residence, 
 
         appearance, and the fact that he articulates well.  He stated 
 
         that the negative factors are that he has not worked since 1984, 
 
         and his unskilled or semiskilled work background.
 
         
 
              Reynolds testified that claimant's transferable skills are 
 
         1) supervisory ability; 2) ability to learn new jobs easily (he 
 
         acknowledged that this is probably an aptitude rather than a 
 
         skill); 3) skills in using his hands and machine tools; 4) skills 
 
         working with others; and 5) knowledge of electronics.  He then 
 
         stated that the transferable skills could be used in the 
 
         following industries: 1) construction trade; 2) electronics; 3) 
 
         telephone and cable installations; and 4) other unrelated 
 
         industries.  He stated that steady attendance would be important 
 
         in these areas of work.  He then restated his opinion that 
 
         claimant could work on a steady basis.  Reynolds then stated 
 
         again that he talked with claimant's counselor in Missouri about 
 
         tests that were administered and the conclusion was drawn as a 
 
         result of these tests that claimant showed promise academically 
 
         in the field of electronics.
 
         
 
              On redirect, Reynolds stated that in his opinion claimant 
 
         doesn't have a concentration problem.  He then stated that 
 
         claimant's best motivational showing is his interest in returning 
 
         to school as claimant has not physically looked for employment 
 
         subsequent to the injury of July 12, 1984.  Reynolds stated that 
 
         claimant believes he can complete his Kentucky schooling.
 
         
 
              On recross-examination, Reynolds stated his opinion that 
 
         claimant is able to look for routine-type employment on his own 
 
         without vocational assistance.
 
         
 
         Exhibit 1, page 7 (dated August 16, 1984), is authored by Kirby 
 
         Turner, M.D., and reads in part:
 
         
 
              HISTORY: This 27 year old white male was admitted with chief 
 
              complaint of low back pain.  On the 7/12/84, while working 
 
              on construction, fell off a roof and hit in the sitting 
 
              position.  He had a sprained ankle, injury to his back, and 
 
              was treated with pain pills, rest, and muscle relaxants, but 
 
              has had no relief of his pain.  He finally came in and was 
 
              admitted to the hospital to try and get this under control.  
 
              He had a past history of low back injury before.
 
         
 
              Exhibit 1, page 11 (dated August 13, 1984), is authored by 
 
         Dr. P. Massarat and reads:
 
         
 
              CT LUMBAR SPINE: Multiple cuts have been made at the level 
 
              of L-3, down to L-5 which shows no evidence of herniated 
 
              disc.  The cord appears to be in the midline and epidural 
 
              fat shows no evidence of displacement.  Neuroforamina are 
 
              patent and lumbar spinal canal believed to be within normal 
 
              limits.  No significant radiographic abnormalities are 
 
              seen.
 
         
 
              Exhibit 1, page 20 (dated October 26, 1984), is authored by 
 
         William Cone, M.D., a psychiatrist, and reads:
 
         
 

 
         
 
         
 
         
 
         MERRITT V. CRO SATELLITE SERVICES
 
         Page   8
 
         
 
         
 
              Curtis Merritt was seen for 45 minutes.  He is a new patient 
 
              whose birthdate is 08-22-56.  He is a man who was injured on 
 
              his job as a cable tv installer and he has a bad back and 
 
              was just released today from Lucy Lee Hospital where 
 
              apparently they were doing some other tests.  He describes 
 
              marital problems with his wife and difficulties that have to 
 
              do with uncertainty concerning his future.  He is twenty 
 
              eight years old, his wife has recently had a pregnancy and 
 
              delivered a child without feet.  Both parents were very 
 
              upset about this.  Their relationship has been strained and 
 
              he doesn't quite know what he needs to do.  I prescribed 
 
              Xanax 0.5 mgss. 1 or 2 qid, #56, refills times 5. I 
 
              suggested he consider the possibility of counseling for both 
 
              himself and his wife and scheduled him to see me again for 
 
              two weeks to evaluate the medication and see what he thinks 
 
              might be helpful.  He is intelligent and articulate.  There 
 
              is a quality about him that makes me wonder whether he wants 
 
              to solve the problem or whether he wants to have a problem.  
 
              I will try to clarify that impression after my next 
 
              contact.
 
         
 
              Exhibit 1, page 36 (dated February 22, 1985), is authored by 
 
         Joseph H. Miller, M.D., and reads in part:
 
         
 
                   He has had a negative CAT scan.  He does have a slight 
 
              anomaly of the lumbosacral joint but nothing to explain this 
 
              patient's symptoms.  I am afraid I have nothing else to 
 
              offer him.
 
         
 
                   He has also had psychological investigation and he said 
 
              he attempted to go back to work last Fall
 
         
 
         
 
         
 
         
 
         
 
         
 
              [sic] and worked a day and a half but was unable to be 
 
              persistent with it.
 
         
 
              Exhibit 1, pages 46-48 (dated June 27, 1985), is authored by 
 
         Philip G. George, M.D., and reads in part:
 
         
 
              He states that he was released to return to light work in 
 
              February.  He states he was only able to work for a day and 
 
              a half before he had to take off again and has not been back 
 
              at work since.  He states that his ongoing problems are 
 
              severe localized pain in the lumbosacral area whenever he 
 
              tries to bend, twist, lift, push or pull.  He states that 
 
              the pain occasionally radiates into his right leg down to 
 
              the knee, more or less along the lateral aspect of the 
 
              thigh.  He also notes occasional radiation into the left 
 
              buttock and hip area.  He notes no increased pain at this 
 
              time with cough or sneeze.  Bowel and bladder habits have 
 
              been unaffected.  He states the right ankle seems to just 
 
              give out on occasion though he is not aware of specific 
 
              weakness of muscles supporting the ankle or knee on the 
 
              right.  He states the right ankle swells on occasion.  He 
 
              has apparently been tried on numerous medications and 
 

 
         
 
         
 
         
 
         MERRITT V. CRO SATELLITE SERVICES
 
         Page   9
 
         
 
         
 
              presently is taking only Darvocet or Darvon or aspirin when 
 
              he states he can't stand it any more.  He apparently has 
 
              tried Feldene, Motrin, and Indocin on various occasions 
 
              without significant relief ....
 
         
 
         
 
                   ....
 
         
 
         
 
                 ....I have advised him to be careful about bending, 
 
              twisting and lefting [sic] but try to maintain a moderate 
 
              level of physical activity.  Walking, bike riding and 
 
              swimming are excellent exercises.  In my opinion it is not 
 
              feasible to expect him to return to his former employment 
 
              climbing light poles and doing heavy construction work.  I 
 
              have scheduled no return appointments.  No medication was 
 
              prescribed.
 
         
 
              Exhibit 1, page 50 (dated August 21, 1985), is authored by 
 
         Louis A. Benoist, M.D., and reads in part:
 
         
 
              Basically I think that we have all recommended to him that 
 
              he obtain a type of employment where he has a mixture of 
 
              standing, walking and sitting and has restriction on 
 
              climbing.  Actually, I don't suggest that he do any climbing 
 
              at all and that he not have to do any lifting over 50 lbs 
 
              .....
 
         
 
         
 
         
 
         
 
         
 
                  ....
 
                 ....I am going to give him a 10% whole body permanent 
 
              physical impairment loss of physical function based on his 
 
              continuing low back pain and hip pain and secondary 
 
              stiffness.
 
         
 
              Exhibit 1, page 72 (dated November 12, 1986), is authored by 
 
         Michael J. Taylor, M.D., and reads in part:
 
         
 
              Based upon all the information currently available to me, I 
 
              can offer the following opinions and recommendations, all 
 
              within a reasonable degree of medical certainty.  It is my 
 
              opinion that the most appropriate diagnosis for Mr. 
 
              Merritt's current psychiatric condition is Major Depressive 
 
              Disorder.  It is my opinion that his Depressive illness is 
 
              directly causally related to the injury of July of 1984, and 
 
              the physical limitations which have resulted therefrom.  Mr. 
 
              Merritt's Depression is only partially controlled by his 
 
              present regimen of medication.  Psychiatrically, he is 
 
              probably capable of some type of routine, repetitive, 
 
              unskilled work, but I do not believe that he is 
 
              psychiatrically capable of any more complex work than that.  
 
              The prognosis for Mr. Merritt's psychiatric condition is, 
 
              however, good.  It would be important, in my opinion, for 
 
              treatment of the Depression to be focused on the target 
 
              symptoms rather than avoiding weight gain.  Mr. Merritt is 
 
              fully willing to assume responsibility for limiting food 
 

 
         
 
         
 
         
 
         MERRITT V. CRO SATELLITE SERVICES
 
         Page  10
 
         
 
         
 
              intake in spite of appetite stimulation.  Asendin has not 
 
              been demonstrated to be a particularly effective 
 
              antidepressant.  I would urge that more clearly-efficacious 
 
              antidepressants be tried and that augmentation with Lithium 
 
              and/or Ritalin be considered.
 
         
 
              I view Mr. Merritt to be highly motivated to return to work. 
 
               I would recommend that he be involved in some type of 
 
              rehabilitation program to assist him in finding work 
 
              consistent with his physical limitations.  He is not now so 
 
              impaired by his Depression that he could not benefit from 
 
              such a rehabilitation program although I do think that the 
 
              amount of benefit that he received from a vocational 
 
              rehabilitation program could be even further increased when 
 
              his Depression is better treated.
 
         
 
              Exhibit A, page 5, is a military record dated May 6, 1975
 
         that reads in part:
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
              The past medical history reveals that the patient was 
 
              involved in two prior automobile accidents.  The first one 
 
              was approximately in late 1973 at which time the patient 
 
              thinks that he sustained fractures of the cervical spine, 
 
              but he has very poor recollection of the events.  He was 
 
              evidently admitted to the hospital and treated with 
 
              traction.  The patient cannot remember whether this was as 
 
              short as five days or as long as six weeks.  He then had a 
 
              reinjury in November of 1974, but this responded to 
 
              outpatient cervical conservative treatment.  However, 
 
              because of the question of injury to the cervical spine in 
 
              January of 1975, the patient was referred to the Naval 
 
              Regional Medical Center, San Diego, California for further 
 
              diagnostic evaluation and treatment.
 
         
 
              Page 6 of exhibit A contains a description of claimant's 
 
         treatment for the accident of January 1975.
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              I.  The claimant has the burden of proving by a 
 
         preponderance of the evidence that the injury of July 12, 1984 is 
 
         causally related to the disability on which he now bases his 
 
         claim.  Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 
 
         (1965).  Lindahl v. L. 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 5). 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).
 
         
 

 
         
 
         
 
         
 
         MERRITT V. CRO SATELLITE SERVICES
 
         Page  11
 
         
 
         
 
              Dr. Benoist imposed a 10 percent whole body rating in this 
 
         case based on "loss of physical function based on his continuing 
 
         low back pain and hip pain and secondary stiffness."  See exhibit 
 
         1, page 50.  I am convinced that claimant did sustain some 
 
         permanent partial impairment as a result of his work-related 
 
         injury of July 12, 1984.  However, I am unconvinced that his 
 
         work-related injury of July 12, 1984 has rendered him incapable 
 
         of working even if the task or tasks is repetitious.  In other 
 
         words, if claimant is psychologically incapable of working, the 
 
         reasons or reasons for this incapacity is or are unrelated to any 
 
         work incident.
 
         
 
              II. As claimant has an impairment to the body as a whole, an 
 
         industrial disability has been sustained.  Industrial disability 
 
         was defined in Diederich v. Tri-City Railway Co., 219 Iowa 587, 
 
         593, 258 N.W. 899, 902 (1935) as follows: "It is therefore plain 
 
         that the legislature intended the term 'disability' to mean 
 
         'industrial disability' or loss of earning capacity and not a 
 
         mere 'functional disability' to be computed in the terms of 
 
         percentages of the total physical and mental ability of a normal 
 
         man."
 
         
 
              Functional disability is an element to be considered in 
 
         determining industrial disability which is the reduction of 
 
         earning capacity, but consideration must also be given to the 
 
         injured employee's age, education, qualifications, experience and 
 
         inability to engage in employment for which he is fitted.  Olson 
 
         v. Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963).  
 

 
         
 
         
 
         
 
         MERRITT V. CRO SATELLITE SERVICES
 
         Page  12
 
         
 
         
 
         Barton v. Nevada Poultry, 253 Iowa 285, 110 N.W.2d 660 (1961).
 
         
 
              A finding of impairment to the body as a whole found by a 
 
         medical evaluator does not equate to industrial disability.  This 
 
         is so as impairment and disability are not synonymous.  Degree of 
 
         industrial disability can in fact be much different than the 
 
         degree of impairment because in the first instance reference is 
 
         to loss of earning capacity and in the later to anatomical or 
 
         functional abnormality or loss.  Although loss of function is to 
 
         be considered and disability can rarely be found without it, it 
 
         is not so that a degree of industrial disability is 
 
         proportionally related to a degree of impairment of bodily 
 
         function.
 
         
 
              Factors to be considered in determining industrial 
 
         disability include the employee's medical condition prior to the 
 
         injury, immediately after the injury, and presently; the situs of 
 
         the injury, its severity and the length of healing period; the 
 
         work experience of the employee prior to the injury, after the 
 
         injury and potential for rehabilitation; the employee's 
 
         qualifications intellectually, emotionally and physically; 
 
         earnings prior and subsequent to the injury; age; education; 
 
         motivation; functional impairment as a result of the injury; and 
 
         inability because of the injury to engage in employment for which 
 
         the employee is fitted.  Loss of earnings caused by a job 
 
         transfer for reasons related to the injury is also relevant.  
 
         These are matters which the finder of fact considers collectively 
 
         in arriving at the determination of the degree of industrial 
 
         disability.
 
         
 
              There are no weighting guidelines that indicate how each of 
 
         the factors are to be considered.  There are no guidelines which 
 
         give, for example, age a weighted value of ten percent of the 
 
         total value, education a value of fifteen percent of total, 
 
         motivation - five percent; work experience - thirty percent, etc.  
 
         Neither does a rating of functional impairment directly correlate 
 
         to a degree of industrial disability to the body as a whole.  In 
 
         other words, there are no formulae which can be applied and then 
 
         added up to determine the degree of industrial disability.  It 
 
         therefore becomes necessary for the deputy or commissioner to 
 
         draw upon prior experience, general and specialized knowledge to 
 
         .make the finding with regard to degree of industrial disability.  
 
         See Christensen v. Hagen, Inc., (Appeal Decision, March 26,
 
         
 
         
 
         
 
         
 
         1985); Peterson v. Truck Haven Cafe, Inc., (Appeal Decision, 
 
         February 28, 1985).
 
         
 
              It will be found that claimant failed to make the requisite 
 
         prima facie showing described at page 106 of Guyton v. Irving 
 
         Jensen Co., 373 N.W.2d 101 (Iowa 1985) because his work search 
 
         after his work-related injury was insufficient.  See Emshoff v. 
 
         Petroleum Transportation Services, (Appeal Decision filed on 
 
         March 31, 1987) (Claimant must demonstrate a reasonable effort to 
 
         secure employment in the area of his residence as part of his 
 
         prima facie showing that he is an odd-lot employee.)  In sum, I 
 
         think claimant is not particularly well motivated to return to 
 

 
         
 
         
 
         
 
         MERRITT V. CRO SATELLITE SERVICES
 
         Page  13
 
         
 
         
 
         work.  However, as mentioned by Mr. Reynolds, claimant has shown 
 
         some motivation to obtain some additional schooling.  There 
 
         clearly is not a "complete lack of motivation" in this case.  
 
         See Doerfer Div. of CCA v. Nicol, 359 N.W.2d 428, 437 (Iowa 
 
         1984).  Claimant has sustained some loss of earning capacity 
 
         because of the injury of July 12, 1984 given the fact that he 
 
         will have to reenter the labor force at an entry level position.  
 
         Mr. Reynolds' opinion that claimant can find employment above an 
 
         entry level position is not believed if in fact that is his 
 
         opinion.  His testimony on the issue of where or how claimant 
 
         could reenter the labor force was not a model of clarity.  Also, 
 
         I am unwilling to speculate at this point as to whether claimant 
 
         will successfully complete his schooling in Kentucky.
 
         
 
              In a recent appeal decision filed on February 20, 1987 
 
         entitled Thomas A. Stewart v. Crouse Cartage Company and Liberty 
 
         Mutual Insurance Company (No. 738644), the commissioner stated on 
 
         page 2-3:
 
         
 
              Under current conditions taking into account claimant's age, 
 
              work experience, education and loss of earning capacity 
 
              claimant's industrial disability is 50 percent.  Defendants 
 
              argue that if claimant finishes college and chooses business 
 
              as a career, there are a multitude of career choices and the 
 
              opportunities are limitless.  However, it is claimant's 
 
              present earning capacity which is relevant to determine 
 
              claimant's industrial disability.  At this point in time it 
 
              is pure speculation to say what the earning potential of 
 
              claimant would be if he indeed does complete college 
 
              particularly considering his age. (Emphasis supplied.)
 
         
 
              Taking all appropriate factors into account claimant's 
 
         industrial disability is determined to be 40 percent.  Permanent 
 
         partial disability benefits commence on August 21, 1985 as he 
 
         reached maximum healing on that date.  See exhibit 1, page 50.
 
         
 
                                FINDINGS OF FACT
 
         
 
              1.  Claimant was born on August 22, 1956.
 
         
 
              2.  Claimant completed the tenth grade.
 
         
 
              3.  Claimant was in the Marine Corps from March 1974 through 
 
         November 1975 and drove a truck in the Marine Corps.
 
         
 
              4.  Claimant obtain a GED in the Marine Corps and 
 
         subsequently obtained another GED.
 
         
 
              5.  Claimant worked at a number of manual labor jobs after 
 
         his discharge from the military.
 
         
 
              6.  Claimant has worked in the home remodeling business 
 
         doing such things as residential carpentry work.
 
         
 
              7.  Claimant started working for CRO in October 1983 and was 
 
         paid $1,150 per month initially.
 
         
 
              8.  On July 12, 1984, claimant injured his back, among other 
 
         things, when he fell while for working for CRO.
 

 
         
 
         
 
         
 
         MERRITT V. CRO SATELLITE SERVICES
 
         Page  14
 
         
 
         
 
         
 
              9.  Claimant's injury of July 12, 1984 caused some permanent 
 
         partial impairment; his whole body impairment is about 10 
 
         percent.
 
         
 
             10.  Claimant reached maximum healing on August 21, 1985.
 
         
 
             11.  Claimant is currently psychologically able to work.
 
         
 
             12.  Claimant will have to reenter the labor force at an 
 
         entry level position given the amount of time he is off work and 
 
         his physical problems resulting from his injury of July 12, 
 
         1984.
 
         
 
             13.  Claimant could be better motivated to return to work.
 
         
 
             14.  Claimant's industrial disability is 40 percent.
 
         
 
             15.  Claimant's stipulated rate of compensation is $243.20.
 
         
 
                               CONCLUSIONS OF LAW
 
         
 
              1.  Claimant established by a preponderance of the evidence 
 
         that there is a causal connection between his work-related injury 
 
         of July 12, 1984 and some physical whole body impairment.
 
         
 
              2.  Claimant established entitlement to healing period 
 
         benefits from July 12, 1984 through August 20, 1985.
 
         
 
         
 
         
 
            3.  Claimant established entitlement to permanent partial 
 
         disability benefits for two hundred (200) weeks commencing on 
 
         August 21, 1985.
 
         
 
         
 
                                      ORDER
 
         
 
              IT IS THEREFORE ORDERED:
 
         
 
              That defendants pay the weekly disability benefits described 
 
         above.
 
         
 
              That defendants pay accrued benefits in a lump sum and pay 
 
         interest pursuant to section 85.30, The Code.
 
         
 
              That defendants be given credit for benefits already paid to 
 
         claimant.
 
         
 
              That defendants pay the costs of this action, pursuant to 
 
         Division of Industrial Services Rule 343-4.33.
 
         
 
              That defendants shall file claim activity reports, pursuant 
 
         to Industrial Services Rule 343-3.1(2).
 
         
 
              Signed and filed this 17th day of April, 1987.
 
         
 
         
 
         
 

 
         
 
         
 
         
 
         MERRITT V. CRO SATELLITE SERVICES
 
         Page  15
 
         
 
         
 
         
 
         
 
         
 
                                             T. J. McSWEENEY
 
                                             DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies to:
 
         
 
         Mr. Robert W. Pratt
 
         Attorney at Law
 
         1913 Ingersoll Avenue
 
         Des Moines, Iowa 50309-3320
 
         
 
         Ms. Dorothy L. Kelley
 
         Attorney at Law
 
         1000 Des Moines Building
 
         Des Moines, Iowa 50309
 
         
 
         
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                        1402. 40
 
                                                        Filed 4-17-87
 
                                                        T. J. McSweeney
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
                       
 
         CURTIS MERRITT,
 
          
 
              Claimant,
 
                                                    File No. 806048
 
          VS.
 
          
 
          CRO SATELLITE SERVICES,                A R B I T R A T I 0 N
 
          
 
              Employer,                             D E C I S I 0 N
 
          
 
          and
 
          
 
          CNA INSURANCE COMPANY,
 
          
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
         
 
         1402.40
 
         
 
              Held in arbitration that claimant is entitled to 40% 
 
         industrial disability after sustaining work-related back injury.  
 
         Claimant fell off a ladder while working for a cable television 
 
         installation company.   An expert witness testified that claimant 
 
         would have to reenter the labor force at the "entry level."  This 
 
         expert was hired by the defendants.
 
 
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            ROGER RAGEN,                  :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :         File No. 806307
 
            PILCHER CONSTRUCTION,         :
 
                                          :      A R B I T R A T I O N
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            ALLIED INSURANCE,             :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding in arbitration upon the petition 
 
            of claimant, Roger Ragen, against his employer, Pilcher 
 
            Construc-tion, and its insurance carrier, Allied Insurance, 
 
            defendants.  The case was heard in Ottumwa, Iowa at the 
 
            Wappello County Courthouse on September 1, 1989.  The record 
 
            consists of the testimony of claimant.  The record also 
 
            consists of the following exhibits:  claimant's exhibits 1, 
 
            2, 3, 4, 5, 6, 8, 9, 10; defendants' exhibits 1-1, 1-2, 1-3, 
 
            1-4, 1-8, 1-9, 1-10, 1-11, 1-12, 2, 3, 4, 5, 6, 7-2, 7-3, 
 
            7-4, 7-10, 7-11, 7-12, 7-13, 7-14, 7-16, 7-17, 7-18, 7-22, 
 
            7-23, 8-1 to 21, 9 and 10.
 
            
 
                                      issues
 
            
 
                 The sole issues to be determined are:  1) whether there 
 
            is a causal relationship between the alleged injury and the 
 
            disability; 2) whether claimant is entitled to temporary 
 
            disability/healing period benefits or permanent partial 
 
            disability benefits; and, 3) whether there is an overpayment 
 
            of weekly benefits.
 
            
 
                                 findings of fact
 
            
 
                 The deputy, having heard the testimony and considered 
 
            all the evidence, finds:
 
            
 
                 Claimant, at the time of the hearing, was 32.  He is 
 
            widowed with two children.  Claimant dropped out of school 
 
            in the eighth grade.  He has not completed any additional 
 
            education.
 
            
 
                 Claimant commenced his employment with defendant in 
 
            1984.  He was hired as a laborer at $5.50 per hour.  Then he 
 
            was promoted to a bobcat and cat operator as well as a pipe 
 
            layer.  He was paid around $7.00 per hour.  Claimant 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            testified he laid 18 inch plastic pipe for sewer lines.  The 
 
            pipe weighed between 40 and 50 pounds.  Claimant indicated 
 
            he worked six days per week for 12 to 18 hours per day.
 
            
 
                 Claimant sustained a compression fracture at T-12 
 
            because of his work injury on September 30, 1985.  He was 
 
            off through February 2, 1986.  On February 3, 1986, claimant 
 
            was released to return to work.  However, he was not called 
 
            back to work until May 12, 1986.  On that day he was told 
 
            his starting wage would be $6.00 per hour.  Claimant 
 
            believed he was given a cut in pay because of his work 
 
            injury.  He did not work that day.  He voluntarily 
 
            terminated because his wages were cut.
 
            
 
                 Claimant was unemployed from February 3, 1986 to July 
 
            1, 1986.  He then commenced his employment with Tom Hornback 
 
            and Associates as a bricklayer.  Claimant was hired to lay 
 
            brick and block from $7.50 per hour to $10.10 per hour.
 
            
 
                 On June 2, 1989, claimant began working as a bricklayer 
 
            for Grooms and Company in Ottumwa, Iowa.  Claimant did not 
 
            operate heavy equipment.  He was hired at $10.00 per hour 
 
            for 40 hours.  However, claimant voluntarily reduced his 
 
            hours because of personal problems at home.  He testified 
 
            that his position at Grooms did not aggravate his back since 
 
            he was not required to lift.
 
            
 
                                conclusions of law
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury of September 
 
            30, 1985, is causally related to the disability on which he 
 
            now bases his claim.  Bodish v. Fischer, Inc., 257 Iowa 516, 
 
            133 N.W.2d 867 (1965).  Lindahl v. L. O. Boggs, 236 Iowa 
 
            296, 18 N.W.2d 607 (1945).  A possibility is insufficient; a 
 
            probability is necessary.  Burt v. John Deere Waterloo 
 
            Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955).  The 
 
            question of causal connection is essentially within the 
 
            domain of expert testimony.  Bradshaw v. Iowa Methodist 
 
            Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). 
 
            
 
                 The opinions of experts need not be couched in 
 
            definite, positive or unequivocal language.  Sondag v. 
 
            Ferris Hardward, 220 N.W.2d 903 (Iowa 1974).  An opinion of 
 
            an expert based upon an incomplete history is not binding 
 
            upon the commissioner, but must be weighed together with the 
 
            other disclosed facts and circumstances.  Bodish, 257 Iowa 
 
            516, 133 N.W.2d 867 (1965).  The expert medical evidence 
 
            must be considered with all other evidence introduced 
 
            bearing on the causal connection between the injury and the 
 
            disability.  Burt, 247 Iowa 691, 73 N.W.2d 732 (1955).  In 
 
            regard to medical testimony, the commissioner is required to 
 
            state the reasons on which testimony is accepted or 
 
            rejected.  Sondag, 220 N.W.2d 903 (1974).
 
            
 
                 Claimant has established by a preponderance of the 
 
            evidence that he has sustained a temporary total disability.  
 
            However, claimant has not established that claimant has any 
 
            permanent disability.  Jack Brindley, M.D., treated claimant 
 
            for a compression fracture at T-12.  As of January 10, 1986, 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            Dr. Brindley thought it was doubtful whether claimant would 
 
            sustain any permanency.  Dr. Brindley released claimant to 
 
            return to work on February 3, 1986.  The release was given 
 
            without any restrictions imposed upon claimant.  Claimant, 
 
            on May 12, 1986, signed a notarized statement that stated:
 
            
 
                 I Roger Ragen                    Date
 
            State that I am Able to resume my duties and am
 
            to the Best of my Knowledge
 
            able to preform [sic] at 100?? [sic] percent
 
            
 
                 Claimant did not return to construction work on May 12, 
 
            1986.  He testified his reason was based on the wage rate 
 
            promised and not upon the duties assigned.
 
            
 
                 Claimant returned to the construction industry on June 
 
            24, 1986.  He was hired as a bricklayer.  Since that date 
 
            claimant has been able to satisfactorily perform his 
 
            assigned tasks.  He is required to lift 60 pound blocks.  He 
 
            has been able to accomplish that task.
 
            
 
                 The only physician who has provided an impairment 
 
            rating is David Boarini, M.D.  Dr. Boarini has not 
 
            attributed claimant's two percent impairment rating to the 
 
            injury of September 30, 1985.  The physician opines in his 
 
            report of April 27, 1989.
 
            
 
                 In answer to your questions from our April 17th 
 
                 conference regarding Roger Ragen I did assign him 
 
                 a 2% permanent disability rating due to his 
 
                 compression fracture.  This is using the AMA 
 
                 guidelines disability ratings 3rd edition.  As I 
 
                 earlier suggested, he should continue his exercise 
 
                 program and get involved in a weight loss program.  
 
                 I think he's able to continue with his job as a 
 
                 brick layer [sic].  I would not give him any 
 
                 specific restrictions and I do feel that his 
 
                 current problems are mainly due to mechanical back 
 
                 pain, not specifically related to any injury.
 
            
 
                 Dr. Boarini's opinion does not support the requisite 
 
            causal connection necessary to establish a permanent 
 
            disability attributable to the work injury of September 30, 
 
            1985.
 
            
 
                 In light of the foregoing, it is the determination of 
 
            the undersigned that claimant has only sustained a temporary 
 
            total disability as described in section 85.33(1).  That 
 
            section 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.
 
            
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
                 As of February 3, 1986, claimant was medically capable 
 
            of returning to employment substantially similar to the 
 
            employment he held on September 30, 1985, the day he was 
 
            injured.  Therefore, claimant is entitled to temporary total 
 
            disability benefits from September 30, 1985 through February 
 
            2, 1986.  This is a period of 18 weeks.  Claimant is to be 
 
            paid at the stipulated rate of $181.90 per week.  The sum 
 
            equals $3,274.20.  Pursuant to the stipulation, defendants 
 
            have paid claimant $3,664.01.  Claimant has been overpaid.  
 
            He takes nothing further from these proceedings.
 
            
 
                                      order
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 Claimant takes nothing further from these proceedings.
 
            
 
                 Costs of the action shall be assessed to each party 
 
            pursuant to Division of Industrial Services Rule 343-4.33.
 
            
 
            
 
            
 
                 Signed and filed this ____ day of August, 1990.
 
            
 
            
 
            
 
            
 
            
 
                                          ______________________________               
 
            MICHELLE A. McGOVERN
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            Copies To:
 
            
 
            Mr. Stephen D. Lombardi
 
            Attorney at Law
 
            2190 NW 82nd St
 
            Des Moines  IA  50325
 
            
 
            Mr. Richard R. Schlegel, II
 
            Attorney at Law
 
            105 1/2 Market
 
            Ottumwa  IA  52501
 
            
 
            Mr. E. J. Kelly
 
            Attorney at Law
 
            2700 Grand Ave
 
            Suite 111, Terrace Center
 
            Des Moines  IA  50312
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                               5-1801
 
                                               August 30, 1990
 
                                               MICHELLE A McGOVERN
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            ROGER RAGEN,                  :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :         File No. 806307
 
            PILCHER CONSTRUCTION,         :
 
                                          :      A R B I T R A T I O N
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            ALLIED INSURANCE,             :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
            5-1801
 
            Claimant was awarded temporary total disability benefits for 
 
            an injury he sustained on September 30, 1985.