BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            VENITA R. HESS WARD,          :
 
                                          :
 
                 Claimant,                :      File No. 809051
 
                                          :
 
            vs.                           :       R E V I E W-
 
                                                R E O P E N I N G
 
                                          :
 
            FDL FOODS, INC.,              :       D E C I S I O N
 
                                          :
 
                 Employer,                :
 
                 Self-Insured,            :
 
                 Defendant.               :
 
            ___________________________________________________________
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This is a contested case proceeding under Iowa Code 
 
            chapter 17A.  Claimant, Venita Ruth Hess Ward, sustained a 
 
            work related back injury on October 25, 1985 and instituted 
 
            litigation before this agency which eventually resulted in 
 
            an agreement for settlement approved on February 7, 1990.  
 
            The agreement for settlement, in pertinent part, set forth 
 
            that claimant had sustained an industrial disability of 25 
 
            percent.
 
            
 
                 This litigation concerns Ms. Ward's subsequent petition 
 
            for review-reopening against her former employer, FDL Foods, 
 
            Inc.  This matter came on for hearing in Dubuque, Iowa on 
 
            August 4, 1994, and was fully submitted at that time.  The 
 
            record consists of claimant's testimony along with her 
 
            exhibits 1-7 and defendant's exhibits A-F.
 
            
 
                                      ISSUES
 
            
 
                 The parties have stipulated to the following:
 
            
 
                    1.  Entitlement to temporary disability is 
 
                    no longer in dispute;
 
            
 
                    2.  Further permanent disability, if any, 
 
                    should be compensated industrially;
 
            
 
                    3.  The correct rate of weekly compensation 
 
                    is $99.36;
 
            
 
                    4.  Affirmative defenses have not been 
 
                    raised; and,
 
            
 
                    5.  The charges of medical providers are 
 
                    fair and reasonable, and, although it is 
 
                    disputed that the treatment was reasonable 
 
                    and necessary, the providers would testify 
 
                    to the reasonableness of treatment and 
 
                    defendant offers no contrary evidence.
 
            
 
                 Issues presented for resolution include:
 
            
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
                    1.  Whether claimant has sustained a change 
 
                    in condition since the agreement for 
 
                    settlement such as to cause increased 
 
                    industrial disability;
 
            
 
                    2.  Whether medical expenses are causally 
 
                    connected to the work injury; and,
 
            
 
                    3.  Whether disputed medical expenses were 
 
                    authorized.
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 The undersigned deputy industrial commissioner finds:
 
            
 
                 Venita Ward, 37 years of age at hearing, is a life-long 
 
            Dubuque resident.  Ms. Ward dropped out of school in the 
 
            ninth grade and has no further education.  She has work 
 
            experience as a waitress/cook/bartender and commenced work 
 
            with FDL Foods, Inc., in approximately 1983.  FDL Foods 
 
            operates a meat packing operation where claimant held 
 
            several jobs on the cut floor, kill floor and in the bacon 
 
            department.
 
            
 
                 Ms. Ward was initially injured when her knife stuck in 
 
            a ham that fell from the cutting surface, resulting in a 
 
            twisted back.  A ruptured disc at L4-5 was diagnosed and 
 
            eventually excised on February 21, 1986.
 
            
 
                 Although claimant's memory was somewhat uncertain, she 
 
            apparently returned to work for several months following 
 
            recuperation from surgery.  For at least a while, she was on 
 
            light duty work, but it is unclear whether this continued 
 
            until she was eventually laid off.  Ms. Ward was then 
 
            discharged upon allegations that she failed to make a timely 
 
            return upon recall, although unemployment benefits were 
 
            eventually awarded by Job Service of Iowa.  This establishes 
 
            that claimant was not guilty of misconduct at the time.
 
            
 
                 In any event, claimant eventually went to work for a 
 
            large print shop known as Regency Thermographers.  She was 
 
            working at this job when the agreement for settlement was 
 
            approved by the agency in 1990.
 
            
 
                 The agreement for settlement submitted for approval by 
 
            the parties set forth the following stipulation as to 
 
            claimant's condition:
 
            
 
                       The parties further agree that following 
 
                    the injury and necessary healing period, the 
 
                    Claimant returned to work for the employer 
 
                    and, in light of the factors used in 
 
                    determining industrial loss, agree that the 
 
                    Claimant has sustained a 25 percent 
 
                    permanent partial disability to the body as 
 
                    a whole.
 
            
 
                 This stipulation, which was poorly understood by 
 
            claimant was somewhat misleading.  Although claimant 
 
            apparently did return briefly to work for FDL Foods, she had 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            been discharged long before the stipulation was submitted, 
 
            and was working for a different employer.
 
            
 
                 At Regency, claimant held several different positions, 
 
            two of which caused excessive back pain.  Her immediate 
 
            supervisor, a personal friend, removed claimant from the 
 
            "collating" job and arranged for her to take a position 
 
            generating invoices on a computer.  This, however, did not 
 
            lead to any additional transferable skills.  Unfortunately, 
 
            the supervisor next in the chain of command then transferred 
 
            claimant to the "guillotine," a paper cutting machine that 
 
            required substantial stooping and lifting.  Of all the jobs 
 
            at Regency, which employs over 100 people, claimant agrees 
 
            that these are the only two jobs she cannot perform.
 
            
 
                 Claimant was unwilling to disclose her back condition 
 
            to Regency's management, except for her friend.  Regency was 
 
            not given an opportunity to accommodate her back condition, 
 
            and she eventually left the job voluntarily to take a 
 
            position as student union manager at Clarke College in 
 
            Dubuque.  This position pays less and work is only available 
 
            when school is in session.  As a result, claimant has 
 
            suffered a reduction in actual income.
 
            
 
                 Dr. Nemmers had assigned a 15 percent impairment rating 
 
            prior to the agreement for settlement.  In addition, he had 
 
            recommended a "necessary modification of her lifting 
 
            activities," although it is unclear that more specific 
 
            medical restrictions were ever imposed.  Another physician, 
 
            Paulette Lynn, M.D., recommended on February 14, 1989 that 
 
            claimant avoid repetitive bending, stooping or lifting and 
 
            should not lift more than 20 pounds at a time.
 
            
 
                 Since the agreement for settlement was approved, there 
 
            is no showing that any physician has rated impairment higher 
 
            than did Dr. Nemmers, nor has any physician recommended 
 
            additional medical restrictions.
 
            
 
                 Ms. Ward, however, complains of increased pain since 
 
            1990.  It took her several attempts over a period in excess 
 
            of one year to get a new appointment with Dr. Nemmers (whom 
 
            she had not seen since 1988), but she was eventually seen in 
 
            July 1994.  Dr. Nemmers ordered a repeat magnetic resonance 
 
            imaging study, the cost of which constitutes the disputed 
 
            medical expense in this case.  Dr. Nemmers stated in his 
 
            chart notes that Ms. Ward complains of the same pain "but 
 
            she does not blame it on her employer."  In a health 
 
            insurance claim form submitted by Dr. Nemmers, he checked 
 
            the "no" box in response to a question whether the condition 
 
            was related to patient's employment.
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                 The party who would suffer loss if an issue were not 
 
            established has the burden of proving that issue by a 
 
            preponderance of the evidence.  Iowa R. App. P. 14(f).
 
            
 
                 Pursuant to Iowa Code section 86.14(2), in a proceeding 
 
            to reopen an award for payments, inquiry is to be made into 
 
            whether or not the condition of the employee warrants an end 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            to, diminishment of, or increase of compensation previously 
 
            awarded.  A change in condition must be shown to justify 
 
            changing the original award.  Henderson v. Iles, 250 Iowa 
 
            787, 96 N.W.2d 321 (1959).  It is not proper to merely 
 
            redetermine the condition of the employee as adjudicated by 
 
            the former award.  Stice v. Consol. Indus. Coal Co., 228 
 
            Iowa 1031, 291 N.W.2d 452 (1940).
 
            
 
                 A mere difference of opinion of experts or competent 
 
            observers as to the degree of disability arising from the 
 
            original injury is insufficient to justify a different 
 
            determination on a petition for review-reopening; there must 
 
            be substantial evidence of a worsening of the condition not 
 
            contemplated at the time of the first award.  Bousfield v. 
 
            Sisters of Mercy, 249 Iowa 64, 86 N.W.2d 109 (1957).  Or, a 
 
            change in condition may be found where claimant has failed 
 
            to improve to the extent initially anticipated, Meyers v. 
 
            Holiday Inn of Cedar Falls, Iowa, 272 N.W.2d 24 (Iowa App. 
 
            1978).  Additionally, in cases not involving scheduled 
 
            members, a change in earning capacity subsequent to the 
 
            original award which is proximately caused by the original 
 
            injury may constitute a change in condition.  Blacksmith v. 
 
            All-American, Inc., 290 N.W.2d 348 (Iowa 1980).
 
            
 
                 Although Ms. Ward suffers increased pain since 1990, no 
 
            physician has given her an increased impairment rating and 
 
            no physician has recommended any additional medical 
 
            restrictions.  Pain alone does not translate to increased 
 
            industrial disability unless there is some effect on earning 
 
            capacity.
 
            
 
                 While it is true that claimant currently has reduced 
 
            earnings, she does not convince that the direct cause is the 
 
            original work injury.  Claimant voluntarily left Regency 
 
            Thermographers (where she was working at the time of the 
 
            agreement for settlement) for a lower paying job, but did 
 
            not give Regency an opportunity to accommodate her back 
 
            condition.  On the collating job, claimant's direct 
 
            supervisor was able to accommodate her by finding a 
 
            different job.  Claimant's reluctance to disclose her back 
 
            condition is a personal choice, not one attributable to FDL 
 
            Foods.  The Americans with Disability Act of 1990, 42 USC 
 
            12101, Pub.L. 101-336, took effect on July 26, 1992.  This 
 
            is prior to the date claimant left Regency Thermographers.  
 
            Defendant's argument that claimant may have been able to 
 
            exercise rights under the ADA with Regency is well taken.  
 
            The cause of claimant's income reduction is her voluntary 
 
            choice rather than the original injury.  Accordingly, 
 
            claimant has failed to establish the requisite change in 
 
            economic or physical condition as would justify an increased 
 
            award of industrial disability.
 
            
 
                 The remaining issue is the cost of MRI ordered by Dr. 
 
            Nemmers.  The only medical opinion on causation is that the 
 
            study was not related to claimant's employment.  While it is 
 
            very probable that Dr. Nemmers was referring to claimant's 
 
            current employment, rather than the FDL employment, he is 
 
            silent on any causation as to the original injury.  
 
            Accordingly, claimant's proof fails on this issue as well.
 
            
 

 
            
 
            Page   5
 
            
 
            
 
                                      ORDER
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 Claimant takes nothing.
 
            
 
                 Costs are assessed to defendant.
 
            
 
                 Signed and filed this ____ day of August, 1994.
 
            
 
            
 
            
 
            
 
                                          
 
                                            ________________________________
 
                                          DAVID RASEY
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr Michael J Coyle
 
            Mr Michael J Shubatt
 
            Attorneys at Law
 
            200 Security Building
 
            151 W 8th Street
 
            Dubuque Iowa 52001
 
            
 
            Mr James M Heckmann
 
            Attorney at Law
 
            One CyCare Plaza
 
            Suite 216
 
            Dubuque Iowa 52001-6824
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                              1803
 
                                              Filed August 12, 1994
 
                                              DAVID RASEY
 
            
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            VENITA R. HESS WARD,          :
 
                                          :
 
                 Claimant,                :      File No. 809051
 
                                          :
 
            vs.                           :     REVIEW-REOPENING
 
                                          :
 
            FDL FOODS, INC.,              :         DECISION
 
                                          :
 
                 Employer,                :
 
                 Self-Insured,            :
 
                 Defendant.               :
 
            ___________________________________________________________
 
            
 
            1803
 
            Claimant was awarded 25 percent industrial disability in 
 
            agreement for settlement in 1990.  At the time, she had been 
 
            discharged by defendant and was working for a subsequent 
 
            employer, although this was not disclosed to the agency.
 
            Claimant subsequently left her job with a large print shop 
 
            when she was transferred to a machine that required 
 
            substantial exertion.  She did not disclose her back 
 
            condition to that employer or allow for the chance that 
 
            accommodations might be made, even though this was after the 
 
            effective date of the Americans with Disabilities Act.  A 
 
            supervisor who was a personal friend had previously shifted 
 
            her from another difficult job as an accommodation.
 
            No physician had increased claimant's impairment rating or 
 
            medical restrictions.  Her reduction in income was not found 
 
            to be caused by the original injury under these 
 
            circumstances.  No additional award was made in 
 
            review-reopening.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            KAMARIE VISSER,               :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :   File No. 913299 & 809069
 
            ROLSCREEN COMPANY,            :
 
                                          :    A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            EMPLOYER'S MUTUAL COS.,       :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding in arbitration brought by Kamarie 
 
            Visser, claimant, against Rolscreen Company, employer 
 
            (hereinafter referred to as Rolscreen), and Employer's 
 
            Mutual Companies, insurance carrier, defendants, for 
 
            workers' compensation benefits as a result of alleged 
 
            injuries on October 4, 1985 and November 2, 1987.  On 
 
            September 7, 1990, 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 con
 
            tested issues and stipulations which was approved and 
 
            accepted as a part of the record of this case at the time of 
 
            hearing.  The testimony and written exhibits received during 
 
            the hearing are set forth in the hearing transcript.
 
            
 
                 According to the prehearing report, the parties have 
 
            stipulated to the following matters:
 
            
 
                 1.  Claimant suffered the injuries on the dates set 
 
            forth in the petition, both of which arose out of and in the 
 
            course of employment at Rolscreen.
 
            
 
                 2.  Claimant is entitled to healing period benefits set 
 
            forth in the prehearing report.  The only dispute concerning 
 
            healing period is whether the absences from work from 
 
            November 2, 1987 through May of 1988 was due to the injury 
 
            of October 4, 1985 or the injury of November 2, 1987, as the 
 
            rate of compensation is different for the two injuries.
 
            
 
                 3.  If the injuries are found to have caused permanent 
 
            disability, the type of disability is an industrial disabil
 
            ity to the body as a whole.
 
            
 
                 4.  If permanent disability benefits are awarded, they 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            shall begin on May 22, 1988.
 
            
 
                 5.  Claimant's rate of weekly compensation shall be 
 
            $223.82 for the October 4, 1985 injury and $256.50 for the 
 
            November 2, 1987 injury.
 
            
 
                 6.  There is no longer a dispute concerning medical 
 
            benefits.
 
            
 
                                      issue
 
            
 
                 The only issue submitted by the parties for determina
 
            tion in this proceeding at the time of hearing was the 
 
            extent of claimant's entitlement to disability benefits.
 
            
 
                                 findings of fact
 
            
 
                 Having heard the testimony and considered all the evi
 
            dence, the deputy industrial commissioner finds as follows:
 
            
 
                 A credibility finding is necessary to this decision as 
 
            defendants place claimant's credibility at issue during 
 
            cross-examination as to the nature and extent of the injury 
 
            and disability.  From her demeanor while testifying, 
 
            claimant is found credible.
 
            
 
                 Claimant has worked for Rolscreen since September 1983 
 
            and continues to do so at the present time.  Claimant has 
 
            been and continues to be a laborer in the manufacture and 
 
            assembly of windows.  At the time of the work injury, 
 
            claimant was a "jam cladder" but was assigned to temporary 
 
            work as a "sash prep", a job she had performed in the past.  
 
            The sash prep job was heavier work due to the routine lift
 
            ing of window components weighing up to 40 pounds.  At the 
 
            time of the injury, claimant was a Class III and was 
 
            considered "proficient" in her job class.  Class III work is 
 
            entry level work at Rolscreen for assembly/factory work.  
 
            There are a total of nine classes of jobs at Rolscreen.  The 
 
            lower classes are custodians and the higher classes are 
 
            reserved for the highly skilled technical jobs.
 
            
 
                 On or about October 4, 1985, claimant injured her low 
 
            back while lifting.  Her back pain worsened over time and 
 
            she was initially treated for her pain by Kenneth Monsma, 
 
            M.D.  She was later referred to a neurosurgeon, a neurolo
 
            gist, and an orthopedic surgeon due to continuing low back 
 
            pain.
 
            
 
                 Despite her pain, claimant continued working at 
 
            Rolscreen and was promoted to a Class VI position of 
 
            molder-tinner in July 1986.  As this job was very complex, 
 
            claimant was required to complete training to continue in 
 
            the job.  The job had the possibility of further promotion 
 
            to a Class VII.
 
            
 
                 However, claimant's back condition continued to worsen 
 
            even after the promotion.  After further testing, the ortho
 
            pedic surgeon, Donald Berg, M.D., found a herniated disc at 
 
            the L5-Sl level of claimant's spine and performed corrective 
 
            surgery on April 30, 1987.  Claimant returned to work after 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            the surgery on July 13, 1987.  However, Dr. Berg restricted 
 
            claimant's activities by permanently prohibiting lifting 
 
            over 30 pounds along with frequent bending and twisting.  As 
 
            a result, she could not return to the molder-tinner job.  
 
            Claimant was placed in a salvage repair job, a Class III job 
 
            within her restrictions.  Claimant was told that her pay 
 
            would continue at the Class VI level but she was told that 
 
            unless she could bid into a Class IV job within a year, her 
 
            wages would be lowered to the Class III job she was perform
 
            ing.  As claimant did not move to any other class job, her 
 
            wages were subsequently lowered.
 
            
 
                 On or about November 2, 1987, claimant suffered a new 
 
            injury to the low back in the salvage repair job and 
 
            returned to Dr. Berg.  After further testing, Dr. Berg found 
 
            an initial herniation fragment on the right side of the same 
 
            level of claimant's spine that he had previously surgically 
 
            repaired.  The previous herniation involved a fragment on 
 
            the left side.  Corrective surgery was again performed and 
 
            claimant returned to work on May 23, 1988 with permanent 
 
            restrictions against lifting over 25 pounds and no frequent 
 
            bending or twisting.  Claimant then was assigned to "gear 
 
            boxes" which was within her restrictions.  This was another 
 
            Class III job.
 
            
 
                 In 1989, claimant bid for and received a job as 
 
            sweeper-scubber wherein she drives a forklift type vehicle.  
 
            This job was on the graveyard shift which claimant says she 
 
            prefers because she is at home in the morning and early 
 
            evenings with her children.  Claimant is performing this 
 
            Class III job at the present time.
 
            
 
                 Claimant's absences from work between November 22, 1987 
 
            through May 23, 1988, were due to the new injury of November 
 
            2, 1987 and not due to the original injury of October 4, 
 
            1988.  This finding is based upon the views of Dr. Berg who 
 
            found a new herniation fragment in claimant's spine which 
 
            required further surgery.
 
            
 
                 As a result of the work injury of October 4, 1985, 
 
            claimant has a five percent permanent impairment to the body 
 
            as a whole.  Also, as a result of the October 4, 1985 
 
            injury, claimant is permanently restricted from activity in 
 
            that she can perform no lifting over 25 pounds and no fre
 
            quent bending or twisting.  It is found that the injury of 
 
            November 2, 1987 was a new and separate injury but only an 
 
            aggravation as it did not significantly cause additional 
 
            permanent partial impairment.  This view is based upon the 
 
            views of Dr. Berg.  Although he only provided a permanent 
 
            partial impairment rating after the second injury, he felt 
 
            that it was due to the original injury of October 4, 1985 
 
            and the "aggravation injury of November 2, 1987."  The 
 
            doctor's use of the term "aggravation" indicates that he 
 
            felt it was not as serious as the first injury.  Also, Dr. 
 
            Berg's work restrictions did not change materially after the 
 
            second injury.  As Dr. Berg was the primary treating physi
 
            cian, his opinions concerning the extent of claimant's 
 
            impairment and physical restrictions were given considerable 
 
            weight.
 
            
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
                 As a result of the work injury of October 4, 1985, 
 
            claimant has suffered an 18 percent loss of earning capac
 
            ity.  Claimant's medical condition before the work injury 
 
            was excellent and she had no functional impairments or 
 
            ascertainable disabilities.  Claimant was able to fully per
 
            form physical tasks involving heavy lifting and repetitive 
 
            bending and twisting.  As a result of the work injury, 
 
            claimant is no longer able to perform such work.  Claimant's 
 
            medical condition prevents her from performing many higher 
 
            paying jobs at Rolscreen.  Claimant could not return to the 
 
            Class VI job which currently pays well over a $1.00 an hour 
 
            more than her current Class III job.  Defendants argue that 
 
            this job no longer exists on third shift.  However, they do 
 
            admit that this job does exist in other shifts at Rolscreen.  
 
            It is found that claimant may be able to perform other 
 
            higher paying jobs at Rolscreen on other shifts than grave
 
            yard.  Defendants complain that claimant has not bid for any 
 
            of these jobs.  They point out that claimant prefers grave
 
            yard work for family reasons unrelated to her work injury.  
 
            She therefore has little motivation to seek the higher pay
 
            ing jobs on the other shifts.  On the other hand, defendants 
 
            have done little to make any special effort to secure a 
 
            higher paying job for claimant on any shift.  Also, claimant 
 
            expressed reluctance in leaving a job she knows she can per
 
            form for a job she may not be able to perform even after the 
 
            two week trial period.  This reluctance is understandable 
 
            and justified.  The adverse effect of this injury, however, 
 
            upon claimant's ability to earn is lessen by her relative 
 
            youth at age 33, her high school education and her past work 
 
            experience in sedentary jobs such as stockroom attendant, 
 
            receptionist and bookkeeper.  Claimant current earns $10.98 
 
            per hour in her current job which appears stable and suit
 
            able for her work related disability.
 
            
 
                 Due to a lack of additional permanent partial impair
 
            ment, claimant failed to show that the second injury caused 
 
            additional loss of earning capacity.  The work restrictions 
 
            did not materially change after the second injury.  
 
            Claimant's inability to continue in the higher paying Class 
 
            VI job occurred before the second injury.
 
            
 
                                conclusions of law
 
            
 
                 Claimant must establish by a preponderance of the evi
 
            dence 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 indus
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            trial disability is determined from examination of several 
 
            factors.  These factors include the employee's medical con
 
            dition 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 intellec
 
            tually, emotionally and physically; earnings prior and sub
 
            sequent to the injury; age; education; motivation; func
 
            tional 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 trans
 
            fer for reasons related to the injury is also relevant.  
 
            Olson v. Goodyear Service Stores, 255 Iowa 1112, 1121, 125 
 
            N.W.2d 251, 257 (1963).  See Peterson v. Truck Haven Cafe, 
 
            Inc., (Appeal Decision, February 28, l985).
 
            
 
                 In the case sub judice, it was found that claimant suf
 
            fered an 18 percent loss of earning capacity as a result of 
 
            the work injury of October 4, 1985.  Based upon this find
 
            ing, claimant is entitled, as a matter of law, to 90 weeks 
 
            of permanent partial disability benefits under Iowa Code 
 
            section 85.34(2)(u) which is 18 percent of 500 weeks, the 
 
            maximum allowable for an injury to the body as a whole in 
 
            that subsection.  These benefits shall be paid at the stipu
 
            lated rate for the October 4, 1985 injury.
 
            
 
                 The only dispute concerning healing period was the rate 
 
            of compensation.  As it was found that the absences from 
 
            work after November 2, 1987, were due to the new separate 
 
            aggravation injury of November 2, 1987, these absences shall 
 
            be paid at the stipulated rate for the November 2, 1987 
 
            injury.
 
            
 
                          
 
            
 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
             order
 
            
 
                 1.  Defendants shall pay to claimant ninety (90) weeks 
 
            of permanent partial disability benefits at the rate of two 
 
            hundred twenty-three and 82/l00 dollars ($223.82) per week 
 
            from May 22, 1988, less credit for benefits paid.
 
            
 
                 2.  Defendants shall pay healing period benefits after 
 
            November 2, 1987, at the rate of two hundred fifty-six and 
 
            50/l00 dollars ($256.50) per week for the period of time 
 
            stipulated in the prehearing report less credit for the 
 
            benefits paid at the lower rate.
 
            
 
                 3.  Defendants shall pay accrued weekly benefits in a 
 
            lump sum.
 
            
 
                 4.  Defendants shall pay interest on weekly benefits 
 
            awarded herein as set forth in Iowa Code section 85.30.
 
            
 
                 5.  Defendants shall pay the costs of this action pur
 
            suant to Division of Industrial Services Rule 343 IAC 4.33, 
 
            including reimbursement to claimant for any filing fee paid 
 
            in this matter.
 
            
 
                 6.  Defendants shall file activity reports on the pay
 
            ment of this award as requested by this agency pursuant to 
 
            Division of Industrial Services Rule 343 IAC 3.1.
 
            
 
            
 
            
 
                 Signed and filed this ____ day of December, 1990.
 
            
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          LARRY P. WALSHIRE
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Harry W. Dahl
 
            Attorney at Law
 
            974 73rd St
 
            Suite 16
 
            Des Moines  IA  50312
 
            
 
            Mr. Cecil L. Goettsch
 
            Attorney at Law
 
            1100 Des Moines Bldg
 
            Des Moines  IA  50309
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                           5-1803
 
                           Filed December 18, 1990
 
                           LARRY P. WALSHIRE
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            KAMARIE VISSER,               :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :   File No. 913299 & 809069
 
            ROLSCREEN COMPANY,            :
 
                                          :    A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            EMPLOYER'S MUTUAL COS.,       :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
            
 
            
 
            5-1803
 
            Extent of disability benefits.
 
            
 
 
        
 
 
 
 
 
                       BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
                                                
 
                                                
 
        SHERRY PETERS
 
        
 
            Claimant,
 
        
 
        vs.                              File No. 809203
 
        
 
        LAMONI AUTO ASSEMBLIES, INC.,      A P P E A L
 
        
 
            Employer,                   D E C I S I O N
 
        
 
        and
 
        
 
        LIBERTY MUTUAL INSURANCE CO.,
 
        
 
            Insurance Carrier,
 
            Defendants.
 
        
 
        
 
                                 STATEMENT OF THE CASE
 
                                                
 
        Claimant appeals from an arbitration decision awarding temporary 
 
        total disability benefits as the result of an alleged injury on 
 
        October 18, 1985.
 
        
 
        The record on appeal consists of the transcript of the 
 
        arbitration hearing; joint exhibits 1 through 6; and defendants' 
 
        exhibit A. Both parties filed briefs on appeal.
 
        
 
                                      ISSUES
 
                                                
 
        Claimant states the following issues on appeal:
 
        
 
        A. Did claimant sustain an occupational disease?
 
        
 
        B. Is claimant entitled to permanent partial disability based 
 
        upon industrial disability?
 
        
 
        C. In the alternative, is claimant entitled to a physical 
 
        impairment?
 
        
 
                                 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.
 
        
 
        PETERS V. LAMONI AUTO ASSEMBLIES, INC.
 
        Page 2
 
        
 
        
 
        In addition, the following authority is noted:
 
        
 
        Iowa Code section 85A.14 states: "No compensation shall be 
 
        payable under this chapter for any condition of physical or 
 
        mental ill-being, disability, disablement, or death for which 
 
        compensation is recoverable on account of injury under the 
 

 
        
 
 
 
 
 
        workers' compensation law."
 
        
 
                                      ANALYSIS
 
        
 
        Section 85A.14 states that claimant cannot be awarded 
 
        compensation under Iowa Code chapter 85A if benefits would be 
 
        recoverable under chapter 85. The record indicates that claimant 
 
        is entitled to temporary total disability benefits under chapter 
 
        85 in the amount set forth in the arbitration decision. Claimant 
 
        is not entitled to compensation benefits under chapter 85A.
 
        
 
        The analysis contained in the arbitration decision is adopted in 
 
        all other respects.
 
        
 
                                 FINDINGS OF FACT
 
        
 
        1. Claimant was employed by Lamoni Auto Assemblies, Inc., on 
 
        October 18, 1985 and performed repetitive work with her hands as 
 
        a splicer.
 
        
 
        2. Claimant developed a carpal tunnel condition to her left hand 
 
        which required a carpal tunnel release on December 13, 1985.
 
        
 
        3. Claimant was unable to work as a result of the surgery from 
 
        December 13, 1985 until March 3, 1986.
 
        
 
        4. The carpal tunnel syndrome and resulting surgery to the left 
 
        hand did not result in an~ permanent partial impairment.
 
        
 
        5. Claimant also suffered tendonitis in her left foot that was 
 
        caused by her employment but suffered no impairment from this 
 
        injury.
 
        
 
        6. Claimant incurred $67.20 in medical mileage and $169.00 in 
 
        medical expense at Mercy Hospital.
 
        
 
        7. Claimant also suffered from carpal tunnel syndrome to her 
 
        right hand which occurred when she was performing duties as a 
 
        homemaker prior to the time she was employed by employer and that 
 
        this prior carpal tunnel condition to her right hand required 
 
        surgery in 1980 or 1981 prior to her employment with employer.
 
        
 
        PETERS V. LAMONI AUTO ASSEMBLIES, INC.
 
        Page 3
 
        
 
        
 
        8. Claimant continued to have increasing tendonitis symptoms on 
 
        the dorsal aspects of her hands several months after she 
 
        terminated her employment with employer and-was removed from that 
 
        work environment.
 
        
 
                                 CONCLUSIONS OF LAW
 
        
 
        Claimant did sustain the burden of proof by a preponderance of 
 
        the evidence that she sustained an injury to her left hand and 
 
        left foot which arose out of and in the course of her employment 
 
        with employer.
 
        
 
        The injury to the left hand was the cause of temporary total 
 
        disability from December 13, 1985 until March 3, 1986.
 
        
 
        The injury to the left foot was not the cause of any temporary 
 
        disability.
 
        
 
        Neither the injury to the left hand or the left foot was the 
 
        cause of any permanent disability.
 

 
        
 
 
 
 
 
        
 
        Claimant is entitled to temporary total disability benefits for 
 
        the left hand from December 13, 1985 to March 3, 1986.
 
        
 
        Claimant is not entitled to any permanent disability benefits.
 
        
 
        Claimant is entitled to $67.20 in medical Mileage and $169.00 in 
 
        medical expenses at Mercy Hospital.
 
        
 
        Claimant did not sustain the burden of proof by a preponderance 
 
        of the evidence that she sustained an occupational disease.
 
        
 
        WHEREFORE, the decision of the deputy is affirmed.
 
        
 
                                      ORDER
 
        
 
        THEREFORE, it is ordered:
 
        
 
        That defendants pay to claimant eleven point four two nine 
 
        (11.429) weeks of temporary total disability benefits at the rate 
 
        or one hundred fourteen dollars and 38/100 dollars ($114.38) per 
 
        week commencing on December 13, 1985.
 
        
 
        That defendants are entitled to a credit for fifteen point eight 
 
        five seven (15.857) weeks of temporary total disability already 
 
        paid to claimant at the rate of one hundred fourteen and 38/100 
 
        dollars ($114.38) per week prior to hearing for the period from 
 
        December 13, 1985 to April 2, 1986.
 
        
 
        That since the credit to which the defendants are entitled is 
 
        greater than claimant's entitlement to benefits, there is no 
 
        interest due under Iowa Code section 85.30.
 
        
 
        PETERS V. LAMONI AUTO ASSEMBLIES, INC.
 
        Page 4
 
        
 
        
 
        That defendants pay to claimant sixty-seven and 20/100 dollars 
 
        ($67.20) in medical mileage and one hundred sixty-nine dollars 
 
        ($169.00) for the charges at Mercy Hospital.
 
        
 
        That the costs of this action are charged to claimant pursuant to 
 
        Division of Industrial Services Rule 343-4.33.
 
        
 
        That defendants file claim activity reports as requested by this 
 
        agency pursuant to Division of Industrial Services Rule 343-3.1.
 
        
 
        
 
        Signed and filed this 31st day of March, 1989.
 
        
 
        
 
        
 
                                              DAVID E. LINQUIST
 
                                           INDUSTRIAL COMMISSIONER
 
        
 
        
 
 
            
 
 
 
               
 
 
 
 
 
                BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         SHERRY PETERS,
 
         
 
              Claimant,                             File No. 809203
 
         
 
         vs.                                          A P P E A L
 
         
 
         LAMONI AUTO ASSEMBLIES, INC.,              D E C I S I O N
 
         
 
              Employer,                                F I L E D
 
         
 
         and                                          MAR 31 1989
 
         
 
         LIBERTY MUTUAL INSURANCE CO.,       IOWA INDUSTRIAL COMMISSIONER
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              Claimant appeals from an arbitration decision awarding 
 
         temporary total disability benefits as the result of an alleged 
 
         injury on October 18, 1985.
 
         
 
              The record on appeal consists of the transcript of the 
 
         arbitration hearing; joint exhibits 1 through 6; and defendants' 
 
         exhibit A.  Both parties filed briefs on appeal.
 
         
 
                                     ISSUES
 
         
 
              Claimant states the following issues on appeal:
 
         
 
              A.  Did claimant sustain an occupational disease?
 
         
 
              B.  Is claimant entitled to permanent partial disability 
 
              based upon industrial disability?
 
         
 
              C.  In the alternative, is claimant entitled to a physical 
 
              impairment?
 
         
 
                              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.
 
              In addition, the following authority is noted:
 
         
 
              Iowa Code section 85A.14 states:  "No compensation shall be 
 
                                                
 
                                                         
 
         payable under this chapter for any condition of physical or 
 
         mental ill-being, disability, disablement, or death for which 
 
         compensation is recoverable on account of injury under the 
 
         workers' compensation law."
 
         
 
                                  ANALYSIS
 
         
 
              Section 85A.14 states that claimant cannot be awarded 
 
         compensation under Iowa Code chapter 85A if benefits would be 
 
         recoverable under chapter 85.  The record indicates that claimant 
 
         is entitled to temporary total disability benefits under chapter 
 
         85 in the amount set forth in the arbitration decision.  Claimant 
 
         is not entitled to compensation benefits under chapter 85A.
 
         
 
              The analysis contained in the arbitration decision is 
 
         adopted in all other respects.
 
         
 
                              FINDINGS OF FACT
 
         
 
              1.  Claimant was employed by Lamoni Auto Assemblies, Inc., 
 
         on October 18, 1985 and performed repetitive work with her hands 
 
         as a splicer.
 
         
 
              2.  Claimant developed a carpal tunnel condition to her left 
 
         hand which required a carpal tunnel release on December 13, 
 
         1985.
 
         
 
              3.  Claimant was unable to work as a result of the surgery 
 
         from December 13, 1985 until March 3, 1986.
 
         
 
              4.  The carpal tunnel syndrome and resulting surgery to the 
 
         left hand did not result in any permanent partial impairment.
 
         
 
              5.  Claimant also suffered tendonitis in her left foot that 
 
         was caused by her employment but suffered no impairment from this 
 
         injury.
 
         
 
              6.  Claimant incurred $67.20 in medical mileage and $169.00 
 
         in medical expense at Mercy Hospital.
 
         
 
              7.  Claimant also suffered from carpal tunnel syndrome to 
 
         her right hand which occurred when she was performing duties as a 
 
         homemaker prior to the time she was employed by employer and that 
 
         this prior carpal tunnel condition to her right hand required 
 
         surgery in 1980 or 1981 prior to her employment with employer.
 
         
 
              8.  Claimant continued to have increasing tendonitis 
 
         symptoms on the dorsal aspects of her hands several months after 
 
         she terminated her employment with employer and was removed from 
 
         that work environment.
 
         
 
                              CONCLUSIONS OF LAW
 
         
 
              Claimant did sustain the burden of proof by a preponderance 
 
         of the evidence that she sustained an injury to her left hand and 
 
                                                
 
                                                         
 
         left foot which arose out of and in the course of her employment 
 
         with employer.
 
         
 
              The injury to the left hand was the cause of temporary total 
 
         disability from December 13, 1985 until March 3, 1986.
 
         
 
              The injury to the left foot was not the cause of any 
 
         temporary disability.
 
         
 
              Neither the injury to the left hand or the left foot was the 
 
         cause of any permanent disability.
 
         
 
              Claimant is entitled to temporary total disability benefits 
 
         for the left hand from December 13, 1985 to March 3, 1986.
 
         
 
              Claimant is not entitled to any permanent disability 
 
         benefits.
 
         
 
              Claimant is entitled to $67.20 in medical mileage and 
 
         $169.00 in medical expenses at Mercy Hospital.
 
         
 
              Claimant did not sustain the burden of proof by a 
 
         preponderance of the evidence that she sustained an occupational 
 
         disease.
 
         
 
              WHEREFORE, the decision of the deputy is affirmed.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, it is ordered:
 
         
 
              That defendants pay to claimant eleven point four two nine 
 
         (11.429) weeks of temporary total disability benefits at the rate 
 
         of one hundred fourteen dollars and 38/100 dollars ($114.38) per 
 
         week commencing on December 13, 1985.
 
         
 
              That defendants are entitled to a credit for fifteen point 
 
         eight five seven (15.857) weeks of temporary total disability 
 
         already paid to claimant at the rate of one hundred fourteen and 
 
         38/100 dollars ($114.38) per week prior to hearing for the period 
 
         from December 13, 1985 to April 2, 1986.
 
         
 
              That since the credit to which the defendants are entitled 
 
         is greater than claimant's entitlement to benefits, there is no 
 
         interest due under Iowa Code section 85.30.
 
         
 
              That defendants pay to claimant sixty-seven and 20/100 
 
         dollars ($67.20) in medical mileage and one hundred sixty-nine 
 
         dollars ($169.00) for the charges at Mercy Hospital.
 
         
 
              That the costs of this action are charged to claimant 
 
         pursuant to Division of Industrial Services Rule 343-4.33.
 
         
 
              That defendants file claim activity reports as requested by 
 
         this agency pursuant to Division of Industrial Services Rule 
 
                                                
 
                                                         
 
         343-3.1.
 
         
 
         
 
              Signed and filed this 31st day of March, 1989.
 
                                        
 
         
 
         
 
         
 
         
 
         
 
                                                    DAVID E. LINQUIST
 
                                                 INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Dennis L. Hanssen
 
         Attorney at Law
 
         2700 Grand Ave., Suite 111
 
         Des Moines, Iowa  50312
 
         
 
         Mr. W. C. Hoffmann
 
         Attorney at Law
 
         500 Liberty Building
 
         Des Moines, Iowa  50309
 
         
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                
 
                                                         
 
         
 
         
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         SHERRY PETERS,
 
         
 
              Claimant,
 
         
 
         vs.
 
                                                    File No. 809203
 
         
 
         LAMONI AUTO ASSEMBLIES, INC.,
 
                                                 A R B I T R A T I 0 N
 
              Employer,
 
                                                    D E C I S I 0 N
 
         and
 
         
 
         LIBERTY MUTUAL INSURANCE CO.,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding in arbitration brought by Sherry 
 
         Peters, claimant, against Lamoni Auto Assemblies, Inc., employer, 
 
         and Liberty Mutual Insurance Co., insurance carrier for benefits 
 
         as the result of an alleged injury or occupational disease which 
 
         occurred on October 18, 1985.  A hearing was held in Des Moines, 
 
         Iowa on April 20, 1987 and the case was fully submitted at the 
 
         close of the hearing.  The record consists of joint exhibits one 
 
         through six; defendants' exhibit A; the testimony of Sherry 
 
         Peters (claimant), Terry Barnes (group manager), Jim Brackett 
 
         (claim manager) and Steve Roth (production manager).
 
         
 
                                PRELIMINARY MATTER
 
         
 
              The hearing assignment order specifies that one of the 
 
         hearing issues is claimant's entitlement to an Iowa Code section 
 
         85.39 examination.  However, the parties agreed when the hearing 
 
         began that this was not an issue in this case at this time.  No 
 
         evidence was presented on this issue.  No determination will be 
 
         made with respect to an Iowa Code section 85.39 examination.
 
         
 
                                   STIPULATIONS
 
         
 
              The parties stipulated to the following matters.
 
         
 
              That an employer-employee relationship existed between 
 
         claimant and employer at the time of the alleged injury or 
 
         occupational disease.
 
         
 
              That the rate of compensation, in the event of an award of 
 
         weekly benefits, is $114.38 per week.
 
         
 
              That the provider of medical services would testify that 
 
         the fees charged are reasonable and that defendants are not 
 
         offering contrary evidence.
 

 
         
 
         
 
         
 
         PETERS V. LAMONI AUTO ASSEMBLIES, INC.
 
         Page   2
 
         
 
         
 
              That defendants paid claimant 15.857 weeks of workers, 
 
         compensation benefits at the rate of $114.38 per week prior to 
 
         the hearing.
 
         
 
                                    ISSUES
 
         
 
              The parties presented the following issues for determination 
 
         at the time of the hearing.
 
         
 
              Whether claimant sustained an injury on October 18, 1985 
 
         which arose out of and in the course of employment with 
 
         employer.
 
         
 
              Whether the alleged injury is the cause of temporary 
 
         disability during a period of recovery.
 
         
 
              Whether the alleged injury is the cause of permanent 
 
         disability.
 
         
 
              Whether claimant is entitled to temporary disability 
 
         benefits and if so, the nature and extent of benefits.
 
         
 
              Whether claimant is entitled to permanent disability 
 
         benefits and if so, the nature and extent of benefits.
 
         
 
              Whether claimant is entitled to medical benefits under Iowa 
 
         Code section 85.27.
 
         
 
              Whether claimant sustained an occupational disease and if 
 
         so, if she is entitled to industrial disability.
 
         
 
                             SUMMARY OF THE EVIDENCE
 
         
 
              All of the evidence was examined and considered.  The 
 
         following is a summary of the pertinent evidence.
 
         
 
              Claimant is 42 years old.  She attended high school through 
 
         the eleventh grade.  A GED was obtained in May of 1986.  
 
         Claimant's work history prior to commencing employment for 
 
         employer includes the raising of five children, working at a day 
 
         care center and the leasing of newspaper routes.
 
         
 
              Claimant began working for employer on October 29, 1983.  
 
         Employer manufactures wiring harnesses that go under the dash of 
 
         a car and in car windows.  Claimant's first job was inspecting 
 
         harnesses; her second job was taping; her third job was splicing. 
 
          As a splicer, she gathered five wires and clipped them together 
 
         by pushing a foot pedal with her foot.  The splicing job was very 
 
         repetitive.  Claimant testified that she was expected to complete 
 
         360 pieces per hour.  Claimant further testified that she 
 
         exceeded this requirement and actually produced over 3,000 pieces 
 
         per day.  A production record shows that claimant produced 3,486 
 
         pieces on March 26, 1985; 4,231 pieces on March 27, 1985; and 
 
         4,253 on March 28, 1985 (Exhibit 4).  Claimant testified that her 
 
         pay was not dependent on her production; however, keeping the job 
 
         was dependent on her production.  If she and other employees did 
 
         not produce sufficiently there was a shutdown of the line and she 
 
         would be sent home.
 
         
 

 
         
 
         
 
         
 
         PETERS V. LAMONI AUTO ASSEMBLIES, INC.
 
         Page   3
 
         
 
              A performance review on March 28, 1985 rated claimant as an 
 
         outstanding employee (Ex. 5).  The plant manager wrote a letter 
 
         of recommendation about claimant on November 21, 1985 (Ex. 6).
 
         
 
              Claimant admitted that she had trouble with her right hand 
 
         prior to her employment with this employer.  She stated that Dr. 
 
         Phil Sullivan of Leon performed a right carpal tunnel surgery on 
 
         her right hand in approximately 1980 or 1981.  She said that she 
 
         was not employed at this time outside of her home.  Claimant did 
 
         not mention this carpal tunnel condition or this carpal tunnel 
 
         surgery at the time she completed her employment application for 
 
         this employer on September 22, 1982 (Ex. A).
 
         
 
              Claimant did not relate a specific incident or accident with 
 
         her employer for the onset of her problem.  Rather, claimant 
 
         testified that in approximately August of 1985 problems developed 
 
         with her hands.  She was sent to William R. Boulden, M.D., in Des 
 
         Moines in October of 1985.  Claimant stated that her primary 
 
         problem was pain and numbness in her left hand.  She also had 
 
         pain in her right hand.  Claimant stated that her right hand is 
 
         her dominant hand.
 
         
 
              Dr. Boulden's office notes for October 21, 1985 show that 
 
         claimant reported she has had a lump in the middle of the dorsum 
 
         of her hand and tingling in the thumb, long and index fingers for 
 
         about two years. (The doctor did not say it was her left hand but 
 
         it is presumed that he meant the left hand.) The doctor found a 
 
         lot of thickening of the extensor tendon of the dorsal wrist.  
 
         His EMG showed changes but he proceeded conservatively with a 
 
         wrist split and aspirin (Ex. 3. page 16).  Claimant also 
 
         complained of irritation over the front of the left foot (Ex. 3, 
 
         p. 15).
 
         
 
              Thomas W. Bower, L.P.T., reported on October 31, 1985 that 
 
         the EMG revealed mild to moderate carpal tunnel compression on 
 
         the left side (Ex. 3, p. 7).
 
         
 
              On December 5, 1985 Dr. Boulden reported that claimant 
 
         continued to have left hand pain and tingling.  It was now waking 
 
         her up at night.  She did not show improvement with the wrist 
 
         splint.  He recommended a carpal tunnel release and she was 
 
         agreeable to it.  A left carpal tunnel release was performed on 
 
         December 13, 1985.  The follow-up examination on December 24, 
 
         1985 indicated that claimant was not having any problems at all.  
 
         Dr. Boulden did not anticipate any permanency from the operation 
 
         (Ex. 3, pp. 12 & 13).
 
         
 
              On January 20, 1986 Dr. Boulden reported that none of her 
 
         preoperative symptoms were noted but claimant had wrist pain and 
 
         weakness.  He anticipated a release to active duty status in ten 
 
         days (Ex. 3, pp. 8 & 14).
 
         
 
              On February 3, 1986 claimant had nondescript pain and 
 
         recurrence of tingling in her fingers.  She was to wear a wrist 
 
         splint and get active around the house.  Dr. Boulden thought that 
 
         she might be a candidate to return to work in a week (Ex. 3, pp. 
 
         11 & 14).  On February 11, 1986 claimant had complaints in both 
 
         hands and so Dr. Boulden ordered repeat EMGS.  The right hand was 
 
         completely normal.  The left hand showed marked improvement after 
 
         the surgery.  Since grip strength was still decreased claimant 
 

 
         
 
         
 
         
 
         PETERS V. LAMONI AUTO ASSEMBLIES, INC.
 
         Page   4
 
         
 
         was not released to return to work for at least two more weeks 
 
         (Ex. 3, pp. 14 & 19).
 
         
 
              On February 19, 1986 Dr. Boulden said claimant had chronic 
 
         tenosynovitis and that a return to work might aggravate these 
 
         symptoms.  He said that she may need to find other work if she 
 
         continues to have these problems after she returns to work (Ex. 
 
         3,
 
         p. 10 & 16).
 
         
 
              On February 25, 1986 Dr. Boulden found that the extensor 
 
         tendon pain on the top of the left hand was increasing.  
 
         Therefore, he recommended that she not return to work, but 
 
         rather, he recommended she seek different employment where she 
 
         would not have to stress her fingers and hands.  He, 
 
         nevertheless, ended her healing period as of March 3, 1986 and 
 
         said that she could return to work.  He did not specify any 
 
         restrictions (Ex. 3, pp. 9 & 17).  Claimant testified that she 
 
         did not receive any medical treatment for this condition after 
 
         she saw Dr. Boulden on February 25, 1986, with one exception.  
 
         She did see Dr. Ron Miller who told her she had carpal tunnel 
 
         syndrome.  Dr. Miller did not complete a medical report.
 
         
 
              On April 8, 1986 Dr. Boulden wrote a letter to claimant's 
 
         counsel that he treated claimant for tendonitis of the left foot 
 
         and left wrist.  He further stated that these tendonitis problems 
 
         were basically stress phenomenons caused by her work activities. 
 
          He recommended against returning to the kind of work she had 
 
         been doing, otherwise, her problems would occur again (Ex. 3, p. 
 
         5).
 
         
 
              On April 18, 1986 Dr. Boulden and Mr. Bower sent the 
 
         following evaluation to claimant's counsel.
 
         
 
              This patient's EMG previously done in February of 1986 
 
              demonstrated a very slightly prolonged median sensory 
 
              response at the left wrist.  Otherwise, the study was 
 
              completely within normal limits.  There was no evidence 
 
              of axon change.
 
         
 
              The patient's range of motion is good and there is no 
 
              evidence of previously described neurologic change.  
 
              Her grip strength is certainly down and decreased which 
 
              is in my opinion due more to lack of use as opposed to 
 
              actual nerve damage.
 
         
 
              Therefore, by the standards encountered in the AMA 
 
              guides, there is no evidence of permanent impairment.  
 
              Certainly we would advise not performing jobs that 
 
              require repetitive bending of the wrist for prolonged 
 
              periods of time and if she begins to become symptomatic 
 
              then attention needs to be paid to this.
 
         
 
         (Ex. 3, p. 6)
 
         
 
              In May of 1986 claimant obtained her GED.
 
         
 
              On July 8, 1986 Dr. Boulden wrote to defendants' counsel.  
 
         He confirmed that claimant's carpal tunnel syndrome was related 
 
         to claimant's work at Lamoni Auto Assemblies.  He further stated 
 

 
         
 
         
 
         
 
         PETERS V. LAMONI AUTO ASSEMBLIES, INC.
 
         Page   5
 
         
 
         that there was a high incidence of carpal tunnel syndrome for 
 
         this type of work.  He confirmed again, that, he did not feel 
 
         that there was any permanency from the carpal tunnel release (Ex. 
 
         3, p. 18).
 
         
 
              Claimant was examined by Theodore W. Rooney, D.O., at the 
 
         arthritis center at Mercy Hospital in Des Moines on July 23, 1986 
 
         for pain in both hands and left foot.  His physical examination 
 
         showed mild tenosynovitis of the left wrist involving the 
 
         extensor tendon to the middle and index finger.  He said the 
 
         right wrist was unremarkable.  He found no active synovitis in 
 
         her feet.  X-rays of both hands were normal (Ex. 3, pp. 2 & 3).  
 
         His diagnosis was: "l) Status post bilateral carpal tunnel 
 
         syndrome. 2) Probable extensor tendonitis involving both hands, 
 
         that is slowly resolving. 3) Mild tendonitis of the extensor 
 
         tendon of the left big toe." (Ex. 3, p. 1).  Dr. Rooney did not 
 
         award an impairment rating.  In fact, he did not mention 
 
         impairment.  He did say that claimant's carpal tunnel syndrome 
 
         was likely secondary to the repetitive nature of her work.  He 
 
         also added that claimant's increased discomfort over the dorsal 
 
         aspect of both hands was difficult to explain, since she had been 
 
         off work for some time, and this condition usually improves when 
 
         repetitive activities are avoided (Ex. 3, p. 1).
 
         
 
              Claimant saw Dr. Boulden again on February 24, 1987.  She 
 
         had a full range of motion of the left wrist.  Her clinical test 
 
         results were all normal.  Dr. Boulden stated that claimant had 
 
         persistent tendonitis of the left wrist.  Again he stated that he 
 
         declined to award a permanent partial impairment rating (Ex. 3, 
 
         p. 4).
 
              Claimant testified that Dr. Boulden came to the plant from 
 
         Des Moines in late October or the first of November in 1985 
 
         because so many people were getting carpal tunnel syndrome.  This 
 
         was corroborated by Terry Barnes, former plant manager and now 
 
         group manager, in his testimony.
 
         
 
              Jim Brackett, claims supervisor for the insurance carrier, 
 
         stated that he did not send Dr. Boulden to the plant and he did 
 
         not know who did.  The insurance carrier does have a loss 
 
         prevention department but he did not know if they had taken this 
 
         action or not.  He did not know how many carpal tunnel syndrome 
 
         cases have occurred at this plant.
 
         
 
              Claimant testified that when she was released to return to 
 
         work on March 3, 1986 there was no work due to a production 
 
         layoff.  When the layoff ended, in approximately August or 
 
         September of 1986, claimant testified that she was told that she 
 
         could come back to work if Dr. Boulden approved it.  She said 
 
         that her attorney at that time told her that employer was simply 
 
         using this as an opportunity to have her checked again.  Claimant 
 
         conceded however, that it was her decision not to go and see Dr. 
 
         Boulden again.  She further admitted that she did not return to 
 
         work.  She explained that Dr. Boulden had already recommended 
 
         against repetitive work and all of the jobs at employer on the 
 
         floor were repetitive jobs.
 
         
 
              Claimant testified that her current condition is that she 
 
         now drops things, she cannot use a can opener or grip the 
 
         steering wheel of a car.  When she sits she rests her hands on 
 
         the arms of the chair.  She has pain and numbness all the way up 
 

 
         
 
         
 
         
 
         PETERS V. LAMONI AUTO ASSEMBLIES, INC.
 
         Page   6
 
         
 
         her left arm.  Her arms get heavy if they are outstretched.  Her 
 
         left foot prevents her from working on a concrete or hardwood 
 
         floor.  She said that she could do the work of a splicer now, but 
 
         that she could not meet the production requirements of the job.  
 
         Claimant testified that she had looked for employment but all 
 
         that she had been able to find was a part-time job as a maid in a 
 
         hotel.
 
         
 
              Steve Roth, production manager, agreed with claimant's 
 
         description of her job.  He testified that claimant produced 
 
         substantially more than her production goal (Ex. 4).  He said 
 
         that in August of 1986 when production began again at the plant, 
 
         he recommended that claimant see Dr. Boulden before starting back 
 
         to work for her own protection.  He testified that he never heard 
 
         from her again.
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              Claimant has the burden of proving by a preponderance of the 
 
         evidence that she received an injury on October 18, 1985 which 
 
         arose out of and in the course of her 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 October 18, 1985 is causally 
 
         related to the disability on which she now bases her claim.  
 
         Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).  
 
         Lindahl v. L. 0. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945).  A 
 
         possibility is insufficient; a probability is necessary.  Burt v. 
 
         John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 
 
         (1955).  The question of causal connection is essentially within 
 
         the domain of expert testimony.  Bradshaw v. Iowa Methodist 
 
         Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960).
 
         
 
              However, expert medical evidence must be considered with all 
 
         other evidence introduced bearing on the causal connection.  
 
         Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion of experts need 
 
         not be couched in definite, positive or unequivocal language.  
 
         Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974).  However, 
 
         the expert opinion may be accepted or rejected, in whole or in 
 
         part, by the trier of fact.  Id. at 907.  Further, the weight to 
 
         be given to such an opinion is for the finder of fact, and that 
 
         may be affected by the completeness of the premise given the 
 
         expert and other surrounding circumstances.  Bodish, 257 Iowa 
 
         516, 133 N.W.2d 867.  See also Musselman, 261 Iowa 352, 154 
 
         N.W.2d 128.
 
         
 
              The right of a worker to receive compensation for injuries 
 
         sustained which arose out of and in the course of employment is 
 
         statutory.  The statute conferring this right can also fix the 
 
         amount of compensation to be paid for different specific 
 
         injuries, and the employee is not entitled to compensation except 
 
         as provided by the statute.  Soukup v. Shores Co., 222 Iowa 272, 
 
         268 N.W. 598 (1936).
 
         
 
              Permanent partial disabilities are classified as either 
 
         scheduled or unscheduled.  A specific scheduled disability is 
 
         evaluated by the functional method; the industrial method is used 
 
         to evaluate an unscheduled disability.  Martin v. Skelly Oil Co., 
 

 
         
 
         
 
         
 
         PETERS V. LAMONI AUTO ASSEMBLIES, INC.
 
         Page   7
 
         
 
         252 Iowa 128, 133, 106 N.W.2d 95, 98 (1960); Graves v. Eagle 
 
         Iron Works, 331 N.W.2d 116 (Iowa 1983); Simbro v. DeLongOs 
 
         Sportswear, 332 N.W.2d 886, 887 (Iowa 1983).
 
         
 
              If a claimant contends he has industrial disability he has 
 
         the burden of proving his injury results in an ailment extending 
 
         beyond the scheduled loss.  Kellogg v. Shute and Lewis Coal Co., 
 
         256 Iowa 1257, 130 N.W.2d 667 (1964).
 
         
 
              Claimant sustained the burden of proof by a preponderance of 
 
         the evidence that she sustained an injury on October 18, 1985 
 
         which arose out of and in the course of employment with employer. 
 
          Claimant did not describe a specific incident which caused her 
 
         condition, but rather only that she developed pain and numbness 
 
         in her left hand.  Dr. Boulden said that she also complained of 
 
         an irritation over the front of her left foot (Ex. 3, p. 15).  
 
         The EMG performed by Mr. Bower disclosed mild to moderate carpal 
 
         tunnel compression of her left hand (Ex. 3,p. 7).  Dr. Boulden 
 
         performed a carpal tunnel release of the left hand on December 
 
         13, 1985.  Later, on February 11, 1986 Dr. Boulden,noted that 
 
         claimant complained about both hands.  So he performed repeat 
 
         EMGs.  The right hand was normal.  The left hand was still 
 
         decreased (Ex. 3, pp, 14 & 19).  Dr. Boulden, the only treating 
 
         physician, stated that the left hand and left foot conditions 
 
         were tendonitis which are basically stress phenomenons caused by 
 

 
         
 
         
 
         
 
         PETERS V. LAMONI AUTO ASSEMBLIES, INC.
 
         Page   8
 
         
 
         claimant's work activities.  He recommended against returning to 
 
         the same work; otherwise, her symptoms would occur again (Ex. 3, 
 
         p. 5). Dr. Rooney also stated that claimant's carpal tunnel 
 
         syndrome was likely secondary to the repetitive nature of her 
 
         work (Ex. 3, p. 1).
 
         
 
              Claimant, also, sustained the burden of proof by a 
 
         preponderance of the evidence that her left carpal tunnel 
 
         condition was the cause of temporary disability during a period 
 
         of recovery from the date of her surgery until she was released 
 
         to return to work.  Even though Dr. Boulden recommended that 
 
         claimant seek different employment where she would not have to 
 
         stress her fingers and hands, he nevertheless did however release 
 
         claimant to return to work on March 3, 1986 (Ex. 3, pp. 9 & 17).  
 
         Apparently, he felt claimant was medically capable of returning 
 
         to work, but that it was in her best interest not to do so if she 
 
         did not want a recurrence of her symptoms [Iowa Code section 
 
         85.33(l)].
 
         
 
              Claimant therefore, sustained the burden of proof by a 
 
         preponderance of the evidence that she is entitled to temporary 
 
         total disability from the date of the surgery on December 13, 
 
         1985 until the date that Dr. Boulden released claimant to return 
 
         to work on March 3, 1986, a period of 11 weeks and three days.  
 
         Claimant was, however, paid benefits from December 13, 1985 to 
 
         April 2, 1986, a period of 15 weeks and six days, because of the 
 
         necessity of defendant to send claimant a 30 day notice before 
 
         terminating benefits (Iowa Code section 86.13).
 
         
 
              The parties stipulated that defendant is entitled to a 
 
         credit of 15.857 weeks of benefits paid prior to hearing.  
 
         Therefore, claimant is fully paid for her entitlement to 
 
         temporary total disability benefits.
 
         
 
              Claimant did not sustain the burden of proof by a 
 
         preponderance of the evidence that the injury was the cause of 
 
         any permanent disability.  Dr. Boulden and Mr. Bower wrote on 
 
         April 18, 1986 that claimant suffered a slight loss of grip 
 
         strength in the  left hand, probably due to a lack of use, but 
 
         that there was no evidence of permanent impairment (Ex. 3, p. 6).  
 
         The left foot and right hand were not mentioned.  Therefore, it 
 
         is concluded that they were not permanently impaired.  Actually, 
 
         they were only mentioned in passing in the medical evidence.  No 
 
         surgery was performed.  No particular treatment was administered 
 
         (Ex. 3).
 
         
 
              Dr. Rooney said on July 23, 1986 that claimant had mild 
 
         tenosynovitis of the left hand.  He did not mention any permanent 
 
         impairment.  The right hand was unremarkable.  X-rays of both 
 
         hands were normal.  He found no active synovitis in either foot 
 
         (Ex. 3, p. 1).  Therefore, claimant did not sustain the burden of 
 
         proof by a preponderance of the evidence of any entitlement to 
 
         any permanent partial disability benefits for either hand or her 
 
         feet.  No doctor awarded any permanent partial impairment in any 
 
         degree or even suggested any impairment in any of these limbs.
 
         
 
              On July 8, 1986 Dr. Boulden again confirmed that employment 
 
         was the cause of her injuries but that claimant had not sustained 
 
         any permanent impairment (Ex. 3, p. 18).
 
         
 

 
         
 
         
 
         
 
         PETERS V. LAMONI AUTO ASSEMBLIES, INC.
 
         Page   9
 
         
 
              On February 24, 1987 Dr. Boulden examined claimant again.  
 
         All of his clinical tests were normal.  He again refused to award 
 
         any permanent partial impairment (Ex. 3, p. 4).
 
         
 
              Claimant did sustain the burden of proof by a preponderance 
 
         of the evidence that she is entitled to $67.20 for medical 
 
         mileage for one round trip to Des Moines to see Dr. Boulden on 
 
         February 24, 1987 and to see Dr. Rooney on July 23, 1986 (Ex. 2). 
 
         Claimant is also entitled to payment of the bill from Dr. Rooney 
 
         at Mercy Arthritis Center for consultation, lab and x-rays on 
 
         July 23, 1986 in the amount of $169.00 (Ex. 1).  Claimant's claim 
 
         to entitlement to these items was not controverted or disputed by 
 
         defendants.
 
         
 
              With reference to whether claimant sustained an occupational 
 
         disease which is compensable as an industrial disability, 
 
         claimant's attorney made the following presentation of claimant's 
 
         position in his brief.
 
         
 
                 Prior to July 1, 1973 occupational diseases were 
 
              specifically enumerated in Section 85A.9, Iowa Code.  The 
 
              enumerated diseases included "bursitis, synovitis or 
 
              tenosynovitis" and were described as "any process or 
 
              occupation involving continued or repeated pressure on the 
 
              parts affected".  See attached provision.
 
         
 
                 In response to the nineteen essential recommendations of 
 
              the National Commission of State Workmen's Compensation 
 
              Laws, the legislature extensively amended the provisions of 
 
              Chapters 85 and 85A in 1973.  One of the essential 
 
              recommendations was full coverage of work related diseases.  
 
              In respect to this recommendation for an expansion of 
 
              occupational diseases, the legislature repealed Section 
 
              85A.9 and amended Section 85A.8.  The clear intent of the 
 
              legislature was to expand coverage rather than limit 
 
              coverage of occupational diseases.
 
         
 
                 Carpal Tunnel Syndromes clearly fall within, the language 
 
              of "tenosynovitis" and "any process or occupation involving 
 
              continued or repeated pressure on the parts affected".  
 
              These conditions occur as a result of the repetitive 
 
              activities of the hands.
 
         
 
                 The Nebraska Supreme Court has recognized carpal tunnel 
 
              syndrome to be an occupational disease.  The Industrial 
 
              Commissioner has previously recognized "rapid and repetitive 
 
              motions with his right hand and shoulder" as an occupational 
 
              disease.  See attached decisions.
 
         
 
                 Dr. Boulden specifically stated that claimant's problems 
 
              were tenosynovitis and were caused by stress phenomenons 
 
              from her work activities.  He recommended that claimant seek 
 
              different employment where she would not have to stress her 
 
              fingers and hands.
 
         
 
                 As a result of an occupational disease, claimant is 
 
              entitled to have her disability evaluated industrially as 
 
              provided in Section 85A.4 and interpreted by the Supreme 
 
              Court in Doerfer Div. of CCA v. Nichol, 359 N.W.2d 428 (Iowa 
 
              1984).  At page 438, the Supreme Court stated:
 

 
         
 
         
 
         
 
         PETERS V. LAMONI AUTO ASSEMBLIES, INC.
 
         Page  10
 
         
 
         
 
                 Compensation is not awarded for injury, but for 
 
                 disability.  Deaver v. Armstrong Rubber Co., 170 Iowa 
 
                 Code Chapter 85A is determined by a consideration of 
 
                 age, education, qualification, experience and 
 
                 inability, due to injury, to engage in the employment 
 
                 for which the claimant is fitted.  McSpadden, 288 
 
                 N.W.2d at 192.  These factors also apply in 
 
                 determining a claimant's capacity to perform his work 
 
                 or earn equal wages in other suitable employment, the 
 
                 standards for determining disability under Iowa 
 
                 Section 85A.4. Id.
 
         
 
              Iowa Code section 85A.8 defines occupational disease in the 
 
         following language.
 
         
 
                 Occupational disease shall be only those diseases 
 
              which arise out of and in the course of the employee's 
 
              employment.  Such diseases shall have a direct causal 
 
              connection with the employment and must have followed 
 
              as a natural incident thereto from injurious exposure 
 
              occasioned by the nature of the employment.  Such 
 
              disease must be incidental to the character of the 
 
              business, occupation or process in which the employee 
 
              was employed and not independent of the employment.  
 
              Such disease need not have been foreseen or expected 
 
              but after its contraction it must appear to have had 
 
              its origin in a risk connected with the employment and 
 
              to have resulted from that source as an incident and 
 
              rational consequence.  A disease which follows from a 
 
              hazard to which an employee has or would have been 
 
              equally exposed outside of said occupation is not 
 
              compensable as an occupational disease.
 
         
 
              It is true that tenosynovitis has been recognized as an 
 
         occupational disease in Iowa after the adoption of the current 
 
         occupational disease law on July 1, 1973 and Industrial 
 
         Commissioner Robert C. Landess held that when the disability 
 
         extended to the body as a whole claimant was entitled to have her 
 
         disability evaluated industrially.  Johnson v. Franklin Mfg. Co., 
 
         thirty-fourth Biennial Report of the Industrial Commissioner 152, 
 
         154 (Appeal Decision August 30, 1978) (Appealed to District 
 
         Court: Affirmed).  In the Johnson case there was an injury to the 
 
         shoulder and it was points out that since the condition extended 
 
         into the trapezius then it was determined that claimant received 
 
         a disability affecting the body as a whole.
 
         
 
              Claimant also cited the case of Cahalan v. Oscar Mayer, Vol. 
 
         2, No. 1, State of Iowa Industrial Commissioner Decisions 288 
 
         (Filed October 8, 1984) in which Deputy Industrial Commissioner 
 
         Judith Ann Higgs, in a review-reopening decision, held that a 
 
         shoulder condition which resulted from repetitive movements was 
 
         considered to be an occupational disease and was compensated 
 
         industrially.
 
         
 
              Also, in the case of Hall v. Hackman Sheet Metal, Vol. 1, 
 
         No. 3, State of Iowa Industrial Commissioner Decisions 595, 600 
 
         (Filed February 25, 1985) Deputy Industrial Commissioner Helen 
 
         Jean Walleser found that carpal tunnel syndrome of the hands was 
 
         an occupational disease and found that the injury was a scheduled 
 

 
         
 
         
 
         
 
         PETERS V. LAMONI AUTO ASSEMBLIES, INC.
 
         Page  11
 
         
 
         member injury and awarded scheduled member disability benefits.
 
         
 
              In all of these cases, it is noted that the decision follows 
 
         the mandate of the occupational disease law in Iowa Code section 
 
         85A.17 "Compensation payable under this chapter for temporary 
 
         disability, permanent total disability or permanent partial 
 
         disability, shall be such amounts as are provided under the 
 
         workers' compensation law.O
 
         
 
              In the Johnson case, the commissioner pointed out that the 
 
         disability extended to the trapezius and therefore, affected the 
 
         body as a whole and claimant was rated industrially.
 
         
 
              In Cahalan, there was another shoulder injury, it was 
 
         considers affecting the body as a whole and it was rated 
 
         industrially.
 
         
 
              In Hall, the condition affected scheduled members, the 
 
         hands, and it was compensated with scheduled member benefits.
 
         
 
              In the Doerfer case, cited by claimant, which is an Iowa 
 
         Supreme Court case, the condition was compensated industrially; 
 
         but from a reading of the decision it is not possible to 
 
         determine with certainty whether the injury was only to the arms 
 
         and legs, which were mentioned in the decision, or whether the 
 
         disability also extended to other parts of the body, or to the 
 
         entire body.  In any event, the court did not specifically state 
 
         that all occupational diseases were to be rated and compensated 
 
         industrially.
 
         
 
              A comparison is now made between the facts or this case and 
 
         the provisions of Iowa Code section 85A.8.  As to the first 
 
         sentence of the statute, there is evidence in this case that 
 
         claimant's condition arose out of and in the course of employment 
 
         with employer.  Dr. Boulden said that her condition was caused by 
 
         her employment and Dr. Rooney said her condition was secondary to 
 
         her employment.
 
         
 
              As to the second sentence in the statute, there is evidence 
 
         that there is a direct causal connection with employment and that 
 
         the condition followed as a natural incident from injurious 
 
         exposure occasioned by the nature of the employment.  There was 
 
         evidence of other cases of carpal tunnel syndrome at employer's 
 
         plant and that Dr. Boulden came to the plant to inspect it and to 
 
         discuss the matter with employer representatives.
 
         
 
              As to the third sentence of the statute, the evidence of 
 
         other carpal tunnel cases and Dr. Boulden's involvement 
 
         established that claimant's condition was incidental to the 
 
         character of the business.  However, as to the remaining portion 
 
         of the third sentence, it cannot be said that claimant's 
 
         condition was not independent of the employment because claimant 
 
         testified that she had a right carpal tunnel condition in 1980 or 
 
         1981 which was surgically released by Dr. Phil Sullivan before 
 
         she was ever employed by this employer and when she was employed 
 
         at home as a mother and homemaker.  In addition, Dr. Rooney was 
 
         puzzled by the fact that claimant continued to have increased 
 
         discomfort over the dorsal aspect of her hands in September of 
 
         1986 after she had been off work for several months.  He 
 
         explained that work-related tendonitis and bursitis get better 
 

 
         
 
         
 
         
 
         PETERS V. LAMONI AUTO ASSEMBLIES, INC.
 
         Page  12
 
         
 
         over time when the work causing activities are avoided (Ex. 1, p. 
 
         1).
 
         
 
              Likewise, as to the last sentence in the statute, there is 
 
         evidence that claimant suffered from a disease to which she was 
 
         equally exposed outside of her employment.  Consequently, the 
 
         evidence is not sufficient to find,that claimant has sustained an 
 
         occupational disease as defined by Iowa Code section 85A.8.
 
         
 
              Moreover, if claimant were entitled to compensation for an 
 
         occupational disease, and if claimant had received a permanent 
 
         partial impairment rating for her hand, then from the cases cited 
 
         above it would appear that claimant's disability would be 
 
         compensated as a scheduled member condition because it extended 
 
         to the hands only.  Iowa Code section 85A.17, Johnson, 
 
         thirty-fourth Biennial Report of the Industrial Commissioner 152, 
 
         Cahalan, Vol. 2, No. 1, State of Iowa Industrial Commissioner 
 
         Decisions 288, and Hall, Vol. 1, No. 3 State of Iowa Industrial 
 
         Commissioner Decisions 595, all of which are cited above.
 
         
 
              The Nebraska Supreme Court Case cited by claimant, Crosby v. 
 
         American Stores, 298 N.W.2d 157 (Nebraska 1980), did hold that 
 
         carpal tunnel syndrome to the hands was compensable as an 
 
         occupational disease under the Nebraska statute.  However, when 
 
         the Iowa Supreme Court appears to have had the same opportunity, 
 
         it held that a carpal tunnel type of injury to both wrists were 
 
         injuries and claimant was compensated for scheduled member 
 
         injuries rather than awarded industrial disability.  Simbro, 332 
 
         N.W.2d 886.  Industrial disability was not mentioned either 
 
         directly or as dicta.  As a result, the question of whether 
 
         carpal tunnel syndrome is an occupational disease in the view of 
 
         the Iowa Supreme Court, is in doubt at the very least.
 
         
 
              It should be noted that the Iowa Supreme Court has held that 
 
         a personal injury, (a stomach perforation), need not arise out of 
 
         an accident, special incident or unusual occurrence Almquist v. 
 
         Shenandoah Nurseries, Inc., 218 Iowa 724, 254 N.W. 35 (1934), 
 
         but may develop gradually over a period of time, (inhalation of 
 
         poisonous fumes), and fall within the definition of a personal 
 
         injury.  Black v. Creston Auto Co., 225 Iowa 671, 281 N.W. 189 
 
         (1938).
 
         
 
              Likewise, the case of McSpadden v. Big Ben Coal Co., 288 
 
         N.W.2d 181, 190 (Iowa 1980) verified that the concepts of injury 
 
         and occupational disease cannot be used interchangeably.
 
         
 
              In addition, Iowa Code section 85A.14 provides that no 
 
         compensation can be paid for an occupational disease if 
 
         compensation is recoverable as an injury under the workers' 
 
         compensation law.
 
         
 
              In conclusion, it is determined that claimant did not 
 
         sustain the burden of proof by a preponderance of the evidence 
 
         that she sustained an occupational disease as defined by Iowa 
 
         Code section 85A.B.  Furthermore, claimant did not sustain the 
 
         burden of proof by a preponderance of the evidence that she 
 
         sustained any permanent partial impairment to any of her 
 
         members.
 
         
 
                                 FINDINGS OF FACT
 

 
         
 
         
 
         
 
         PETERS V. LAMONI AUTO ASSEMBLIES, INC.
 
         Page  13
 
         
 
         
 
              THEREFORE, based upon the evidence presented the following 
 
         findings of fact are made.
 
         
 
              That claimant was employed by employer on October 18, 1985 
 
         and performed highly repetitive work with her hands as a 
 
         splicer.
 
         
 
              That claimant's work caused a carpal tunnel condition to her 
 
         left hand which required a carpal tunnel release on December 13, 
 
         1985.
 
         
 
              That claimant was unable to work as a result of the surgery 
 
         from December 13, 1985 until March 3, 1986.
 
              
 
              That the carpal tunnel syndrome and resulting surgery to the 
 
         left hand did not result in any permanent partial impairment 
 
         based upon the medical evidence presented in this case.
 
         
 
              That claimant also suffered tendonitis in her left foot that 
 
         was caused by her employment but that she suffered no impairment 
 
         from this injury based upon the medical evidence presented in 
 
         this case.
 
         
 
              That claimant complained of pain and numbness in her right 
 
         hand but failed to prove by the medical evidence that she 
 
         sustained an injury arising out of and in the course of her 
 
         employment as to the right hand.
 
         
 
              That claimant incurred $67.20 in medical mileage and $169.00 
 
         in medical expense at Mercy Hospital.
 

 
         
 
         
 
         
 
         PETERS V. LAMONI AUTO ASSEMBLIES, INC.
 
         Page  14
 
         
 
         
 
              That claimant also suffered from carpal tunnel syndrome to 
 
         her right hand which occurred when she was performing duties as a 
 
         homemaker prior to the time she was employed by employer and that 
 
         this prior carpal tunnel condition to her right hand required 
 
         surgery in 1980 or 1981 prior to her employment with employer.
 
         
 
              That claimant continued to have increasing tendonitis 
 
         symptoms on the dorsal aspects of her hands several months after 
 
         she terminated her employment with employer and was removed from 
 
         that work environment.
 
         
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              WHEREFORE, based upon the evidence presented and the 
 
         principles of law previously discussed the following conclusions 
 
         of law are made.
 
         
 
              That claimant did sustain the burden of proof by a 
 
         preponderance of the evidence that she sustained an injury to her 
 
         left hand and left foot which arose out of and in the course of 
 
         her employment with employer.
 
         
 
              That the injury to the left hand was the cause of temporary 
 
         total disability from December 13, 1985 until March 3, 1986.
 
         
 
              That the injury to the left foot was not the cause of any 
 
         temporary disability.
 
         
 
              That neither the injury to the left hand or the left foot 
 
         was the cause of any permanent disability.
 
         
 
              That claimant is entitled to temporary total disability 
 
         benefits for the left hand from December 13, 1985 to March 3, 
 
         1986.
 
         
 
              That claimant is not entitled to any permanent disability 
 
         benefits.
 
         
 
              That claimant is entitled to $67.20 in medical mileage and 
 
         $169.00 in medical expenses at Mercy Hospital.
 
         
 
              That claimant did not sustain the burden of proof by a 
 
         preponderance of the evidence that she sustained an occupational 
 
         disease.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              That defendants pay to claimant eleven point four two nine 
 
         (11.429) weeks of temporary total disability benefits at the rate 
 
         of one hundred fourteen dollars and 38/100 dollars ($114.38) per 
 
         week in the total amount of one thousand three hundred seven and 
 
         25/100 dollars ($1,307.25) commencing on December 13, 1985.
 
         
 
              That defendants are entitled to a credit for fifteen point 
 
         eight five seven (15.857) weeks of temporary total disability 
 
         already paid to claimant at the rate of one hundred fourteen and 
 

 
         
 
         
 
         
 
         PETERS V. LAMONI AUTO ASSEMBLIES, INC.
 
         Page  15
 
         
 
         38/100 dollars ($114.38) per week prior to hearing for the period 
 
         from December 13, 1985 to April 2, 1986 in the total amount of 
 
         one thousand eight hundred thirteen and 72/100 dollars 
 
         ($1,813.72).
 
         
 
              That since the credit to which the defendants are entitled 
 
         is greater than claimant's entitlement to benefits, there is no 
 
         interest due under Iowa Code section 85.30
 
         
 
              That defendants pay to claimant sixty-seven and 20/100 
 
         dollars ($67.20) in medical mileage and one hundred sixty-nine 
 
         dollars ($169.00) for the charges at Mercy Hospital.
 
         
 
              That the costs of this action are charged to defendants 
 
         pursuant to Division of Industrial Services Rule 343-4.33.
 
         
 
              That defendants file claim activity reports as requested by 
 
         this agency pursuant to Division of Industrial Services Rule 
 
         3.1.
 
         
 
         
 
              Signed and filed this 3rd day of February, 1988.
 
         
 
         
 
         
 
         
 
         
 
         
 
                                          WALTER R. McMANUS, JR.
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Dennis Hanssen
 
         Attorney at Law
 
         Suite 111
 
         Terrace Center
 
         2700 Grand Avenue
 
         Des Moines, Iowa 50312
 
         
 
         Mr. W. C. Hoffmann
 
         Attorney at Law
 
         1000 Des Moines Bldg
 
         Des Moines, Iowa 50309
 
         
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                 1106; 1402.20; 1402.30;
 
                                                 1402.40; 1801; 1803; 
 
                                                 2501; 1108.40; 2203
 
                                                 Filed February 3, 1988
 
                                                 WALTER R. McMANUS, JR.
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         SHERRY PETERS,
 
         
 
              Claimant,
 
         
 
         vs.
 
                                                     File No. 809203
 
         LAMONI AUTO ASSEMBLIES, INC.,
 
                                                  A R B I T R A T I 0 N
 
              Employer,
 
                                                     D E C I S I 0 N
 
         and
 
         
 
         LIBERTY MUTUAL INSURANCE CO.,
 
         
 
              Insurance Carrier,
 
              Defendants
 
         
 
         
 
         
 
         1106; 1402.20; 1402.30; 1402.40; 1801; 1803
 
         
 
              Claimant performed repetitive work splicing wires in a 
 
         factory in assembly line work.  It was held there was an injury 
 
         arising out of and in the course of employment which caused 
 
         temporary total disability.  Neither one of two doctors awarded 
 
         any impairment and therefore it was held claimant was not 
 
         entitled to any permanent partial disability.
 
         
 
         2501
 
         
 
              Claimant allowed medical mileage and doctor bill presented 
 
         at hearing.
 
         
 
         1108.40; 2203
 
         
 
              Tenosynovitis under the facts of this case was held not to 
 
         be an occupational disease because claimant had a right carpal 
 
         tunnel surgery prior to this employment when she was a mother 
 
         and homemaker and she continued to have increasing symptoms 
 

 
         
 
         
 
         
 
         PETERS V. LAMONI AUTO ASSEMBLIES, INC.
 
         Page   2
 
         
 
         several months after her employment ended.
 
         
 
              Iowa Supreme Court held that tenosynovitis or carpal 
 
         tunnel conditions were injuries and rated it as scheduled 
 
         member in Simbro.
 
         
 
              Furthermore, if industrial disease had been found it 
 
         should have been rated as scheduled member and not industrially 
 
         because there was no evidence disability extended beyond the 
 
         members citing Iowa Code section 85A.17 and several Iowa 
 
         industrial commissioner cases.