before the iowa industrial commissioner ____________________________________________________________ : GAYLE SITZMANN, : : Claimant, : : vs. : : DUBUQUE PACKING COMPANY, : File No. 812197 : Employer, : A R B I T R A T I O N : and : D E C I S I O N : SENTRY INSURANCE, : : Insurance Carrier, : : and : : SECOND INJURY FUND OF IOWA, : : Defendants. : ___________________________________________________________ This is a proceeding in arbitration brought by Gayle Sitzmann (claimant) commenced with the filing of a petition on February 22, 1989 against Dubuque Packing Company (Dubuque), employer, and Sentry Insurance (Sentry),(collectively defendants), Dubuque's insurer for worker's compensation benefits, and Second Injury Fund of Iowa (Fund) as a result of an alleged injury to claimant's left hand and arm occurring on December 3, 1985. On March 11, 1991 the matter came on for hearing in Sioux City, Iowa. The parties appeared as follows: the claimant in person and by his counsel Harry H. Smith of Sioux City, Iowa and the Fund by Assistant Attorney General Joanne Mueller of Des Moines, Iowa. Dubuque did not appear as it had entered into a settlement agreement with claimant prior to the hearing and claimant had voluntarily dismissed Dubuque out of the proceeding. The record in this proceeding consisted of the following: 1. The live testimony of the claimant, Gayle Sitzmann. 2. Claimant's exhibits 1-30. 3. Defendants' exhibit A-K. At the close of all evidence, the case was deemed fully submitted. stipulations The parties stipulated to the following matters at the time of the hearing: Page 2 a. The rate of compensation, in the event of an award, is $223.72(1) per week based on a gross weekly wage of $335.93. At the time of the injury claimant was married and had five children. He is entitled to six exemptions. b. Entitlement to medical benefits is not in dispute. c. The costs of this action are not in dispute. Issues The issues for resolution are as follows: 1. Whether Second Injury Fund liability had been triggered. 2. Whether claimant sustained an injury on December 3, 1985 which arose out of and in the course of his employment. 3. Whether a causal relationship exists between claimant's claimed injuries and the claimed disability and the nature and extent of any entitlement to benefits, if any. PRELIMINARY MATTERS At the close of claimant's evidence, claimant moved to amend his petition to conform to the proof regarding injury dates. The Fund vigorously objected to the attempted amendment urging prejudice because the amendment would change the injury dates originally pled and defended by the Fund. The Iowa Rules of Civil Procedure have been adopted by the Industrial Commissioner for use in proceedings before the agency. See, rule 343 IAC 4.35. If the Rules of Civil Procedure are inconsistent with the rules of the Division of Industrial Services, the administrative rules will take precedence. See, rule 343 IAC 4.35. Iowa R. Civ. P. 88 allows a party to amend a pleading, including leave to amend to conform to the proof only with the permission of the court. However, leave to amend, including leave to amend to conform to the proof, is freely given when justice so requires. The Division has adopted a form of this rule. See Rule 343 IAC 4.9(5). Generally, an amendment to a pleading to conform to the proof can be permitted only if it does not substantially change the claim or the defense. W & W Livestock Enterprises, Inc. v. Dennler, 179 N.W.2d 484, 488 (Iowa 1979); Laverty v. Hawkeye Security Insurance Co., 140 N.W.2d 83, 88-9 (Iowa 1966). The agency has broad discretion, in the furtherance of justice, to permit or deny amendments to pleadings including those to conform to the proof. Cedar Falls Building Center, Inc. v. Vietor, 365 N.W.2d 635, 639 (Iowa Ct.App. 1985); Marx Truck Line, Inc. v. Fredericksen, 150 N.W.2d 102, 106-7 (Iowa 1967). If both parties voluntarily provide evidence on an issue without objection, it is beyond the discretion of the agency to deny (1). The rate stipulated to does not exist for a claimant with six exemptions. The correct rate, based on a gross weekly wage of $335.93 and six exemptions is $223.72. The gross wage has been rounded up to $336.00 per week. See, Division of Industrial Services, Guide to Iowa Workers' Compensation Claim Handling, p. 34 (July 1, 1985). The undersigned is not bound by a stipulated rate that does not exist since such a stipulation is contrary to law. Larson v. Eichleay Corp, File No. 701560 Slip Op. at 2 (Iowa Ind. Comm'r App. July 30, 1990). Page 3 amendment to conform to such proof. Cedar Falls Building Center, 365 N.W.2d at 639 Claimant seeks to amend his petition to conform to the evidence regarding the dates of the injuries suffered by claimant. Changing the injury dates on a workers compensation petition constitutes surprise and a substantial change to the Fund's defense of claimant's claim. The Fund might possibly have handled the defense of this claim differently if claimant had alleged other injury dates. Here, the Fund put in issue the injury date and whether claimant was employed by Dubuque at the time of the alleged injury on December 3, 1985. The Fund's evidence shows that claimant did not suffer an injury on the date alleged(2). If the injury dates for the first and second injury are moving targets until the close of the claimant's evidence, the Fund would be unable to mount an adequate defense. Amendments that change the injury date are generally not allowed when the amendment is offered shortly in advance of the hearing date. It would be inconsistent to allow such an amendment at the close of claimant's evidence. Finally, the Fund abandoned an affirmative defense based on the injury dates plead by the claimant. If the claimant is allowed to amend to conform to the proof at this juncture, the Fund would be deprived of an opportunity to raise its affirmative defenses. Consequently, the motion to amend to conform to the proof will be denied. FINDINGS OF FACT After considering all of the evidence and the arguments of counsel, the undersigned makes the following findings of fact and conclusions of law. 1. At the time of the hearing, claimant was 35 years old. He is married and has six children. Claimant has a high school education and has no other training beyond high school. While he was in school, claimant took vocational courses in welding and auto mechanics. After he graduated from high school he worked for a construction company for three years. In August 1976, he began working for Dubuque on the kill floor chiseling heads. Claimant worked for Dubuque until June 27, 1988. He left this employment voluntarily and accepted a position with the city of LeMars, Iowa to work in the municipal water plant. 2. While claimant worked at Dubuque, he had various (2). The evidence shows that claimant asked for a referral on December 3, 1985 for treatment of his worsening left carpal tunnel syndrome. Claimant was not taken off work until January 20, 1986. In accordance with McKeever Custom Cabinets v. Smith, 379 N.W.2d 368, 374 (Iowa 1985) the date of the alleged injury to claimant's left hand was January 20, 1986, the date he could no longer work, and the date the second injury occurred for purposes of establishing Fund liability if cliamant's evidence shows that the injury to claimant's hand was in fact a separate injury. Claimant's left shoulder injury did not occur until September 4, 1986. Claimant had an injury to his left arm on November 11, 1985 that did not result in any permanancy. Page 4 jobs which included the repetitive use of his hands, wrists, shoulders and arms. In addition to chiseling heads, claimant washed tripe, pushed quarters of beef in the cooler, and lugged quarters of beef. Claimant's work was heavy, physical labor. 3. Claimant did not have any prior problems with his hands, wrists, arms or shoulders before he began to work for Dubuque. He was in good health at the time of his employment. Claimant began to have significant health problems in 1985. On March 15, 1985, claimant reported to Medical Associates that his right shoulder was bothering him. On March 19, 1985, claimant indicated that his right shoulder was still causing him pain and limited range of motion and that his right hand had numbness and tingling. Claimant was seen again on March 27, 1985, for his right shoulder and right hand. The right shoulder had resolved itself. However, claimant's injury to his right hand had remained and claimant was referred to Kenneth M. Keane, M.D., for evaluation of the symptoms in his right hand. Claimant was taken off work on March 15, 1985, as a result of the right shoulder complaint and the right hand complaint. 4. Dr. Keane examined claimant on April 4, 1985. At the time of this examination, claimant's chief complaints included pain in his right shoulder and arm, numbness and tingling in his right hand and left wrist and hand symptoms. Dr. Keane concluded that claimant was suffering from bilateral carpal tunnel syndrome. Dr. Keane told claimant that the shoulder and hand problems were different. He recommended that claimant undergo carpal tunnel release surgery on the right because the symptoms were more severe on the right than on the left. However, Dr. Keane did observe that if the symptoms on the left warranted surgical intervention, the left carpal tunnel release should be done while claimant was recovering from the surgery on the right wrist. (Ex. 15, p. 1). Dr. Keane also told claimant that the surgery for his hands would not relieve the symptoms in his shoulder. Claimant had surgery on his right wrist on April 10, 1985. Claimant was returned to work as of May 20, 1985 with no restrictions. Dr. Keane assigned a functional impairment rating of zero to claimant's right hand. 5. Claimant continued to experience symptoms in his left hand. On December 3, 1985, he asked for a referral to Dr. Wheeler for the second carpal tunnel release. Claimant had carpal tunnel release surgery on January 21, 1986. Claimant was taken off work on January 20, 1986. Claimant returned to work on March 5, 1986. Dr. Wheeler indicated that claimant reached maximum medical healing on June 3, 1986 and he assigned a functional impairment rating of five percent to claimant's hand. 6. Dr. Keane concluded that claimant's injuries including the impingement syndrome affecting claimant's shoulders resulted from the repetitive use of his hands, wrists and arms while working at Dubuque. Dr. Keane also Page 5 agreed that claimant's bilateral problems were developing simultaneously even though they manifested themselves on different occasions. Claimant's problems were due to overuse of his hands, wrists, and arms over a period of time rather than a single traumatic event. Dr. Keane concluded that claimant's bilateral conditions were directly caused by and related to his employment at Dubuque and followed as a natural incident of his employment at Dubuque. Finally, Dr. Keane found the claimant's bilateral conditions were incidental to and not independent of his employment at Dubuque (Ex. C). Dr. Keane also agreed that claimant used his hands, wrists, and arms extensively at work and more so than would an individual in the general population. Dr. Keane also found that claimant's repeated bilateral hand, wrist and arm exertions at work caused, aggravated or precipitated his bilateral carpal tunnel syndrome and impingement syndrome. 7. On November 11, 1985, claimant suffered an injury to his left trapezius muscle. This injury resolved itself and claimant returned to work without any permanency. 8. On May 15, 1986, claimant again complained of right shoulder pain. He began a course of physical therapy treatment for right shoulder impingement. The therapy continued until June 6, 1986 when claimant was apparently released from treatment. He was seen again on October 16, 1986, complaining of pain in his right shoulder. He again started on a course of physical therapy. 9. In the meantime, claimant had suffered an injury to his left shoulder/arm on September 4, 1986. Claimant was examined by Earl M. Mumford, M.D., on September 16, 1986 who directed claimant's treatment thereafter. Claimant was kept off work beginning on September 18, 1986. He began physical therapy for his left shoulder in September. He returned to work on September 30, 1986. Claimant had regular physical therapy treatments for both of his shoulders until February 1987. Claimant returned to work February 26, 1986 with restrictions of no overhead work. Claimant's doctors believed that claimant had some type of impingement syndrome in his shoulders or bilateral recurrent rotator cuff tendonitis. In March of 1987, claimant was examined by John J. Dougherty, M.D. He found that claimant had no permanent functional impairment to his left shoulder. Claimant's left shoulder pain continued for the balance of 1987 and into 1988. Claimant's last physical therapy treatment was January 15, 1988. 10. Claimant was examined by Mayo Clinic physician, Robert H. Cofield, M.D., on October 28, 1987. Dr. Cofield did not have accurate dates for claimant's injuries. However, he concluded that claimant did not have an impingement syndrome but that he has recurrent tendon inflammation in his left shoulder related to overuse at work more than impingement. Dr. Cofield did not recommend surgery. He concluded that claimant's complaints of pain would resolve and found no impairment on the left shoulder. Page 6 11. Claimant was also examined by Richard Erdmann, D.C., in October of 1987, for the purpose of giving a functional impairment rating. Dr. Erdmann concluded that claimant had a zero functional impairment rating for his right shoulder and a 13 percent functional impairment rating for his left shoulder. Dr. Erdmann did not rate claimant's hands. 12. In October of 1988, claimant was examined by Horst G. Blume, M.D., for the purposes of evaluating claimant's injury. The focus of Dr. Blume's examination included claimant's left shoulder and both hands. Dr. Blume concluded that claimant had sustained an injury to the left shoulder girdle that left him functionally impaired to the extent of 20 to 30 percent. Dr. Blume also agreed that claimant had suffered a functional impairment to both hands of five percent based on the ratings given by prior physicians.(3) Dr. Blume qualified his ratings with the observation that the treating orthopedists should provide the functional impairment ratings for claimant's conditions (Exhibit 1, page 2). 13. On February 17, 1989, the Division of Industrial Services approved a settlement agreement pursuant to Iowa Code section 86.13 (1991) between claimant, Dubuque and Sentry settling two claims for benefits included in File Numbers 840120 and 840121. The Fund was not a party to this agreement. The defendants and claimant agreed to a payment of $9,600.00 for the injuries to claimant's right shoulder and left shoulder. In the settlement agreement, the parties agreed that claimant had suffered a permanent partial disability to the left arm in the amount of 18 percent and zero percent for the right arm. The parties also agreed that even though the injuries involved both of claimant's shoulders, the injuries did not extend into the body as a whole. CONCLUSIONS OF LAW 1. Whether Second Injury Fund liability had been triggered. The threshold question for resolution in this dispute is whether the claimant's injuries have triggered Fund liability. The claimant urges that the Fund is liable because he has suffered a second injury to a scheduled member, specifically the left hand and arm. The Fund contends that claimant has suffered only one injury. In the alternative, the Fund urges that claimant suffers from an (3). It is difficult to determine whether Dr. Blume thought that another physician had given a rating of five percent to the right hand prior to Dr. Blume's examination. Dr. Blume wrote, "It is also my opinion within reasonable medical probability that the patient has 5% permanent partial impairment to the right hand and 5% to the left hand which has already been rated by another physician and I agree with this rating". A review of the evidence reveals that no such rating was ever given by Dr. Keane, the treating physician for claimant's right hand carpal tunnel syndrome and release surgery. Page 7 occupational disease. In either case, Fund liability is not established. Second Injury Fund liability is governed by Iowa Code section 85.64 (1991). This provision requires that before Fund liability is triggered three requirements must be met by the claimant. First, the employee must have lost or lost the use of a hand, arm, foot, leg or eye. Second, the employee must sustain another loss or loss of use of another member or organ through a compensable injury. Third, permanent disability must exist as to both the initial injury and the second injury. See Allen v. Second Injury Fund, 34 Biennial Rep., Iowa Indus. Comm'r 15, 16 (Arb. 1980); Ross v. Servicemaster-Story Co, 34 Biennial Rep. Iowa Industrial Comm'r 273, 275 (Arb. 1979). The Fund is responsible for the difference between total disability and disability for which the employer at the time of the second injury is responsible. Second Injury Fund v. Mich. Coal Company, 274 N.W.2d 300, (Iowa 1970), Second Injury Fund v. John Deere Component Works, Case No. 88-399, Slip Op. at __ (Iowa February 22, 1989). In connection with proving the first two elements of a Fund entitlement, claimant must first prove that claimant suffered a permanent injury to a scheduled member. Second, claimant must prove a separate permanent injury to a second scheduled member. Lawyer and Higgs, Iowa Workers' Compensation--Law and Practice, section 17-4, (1984) stresses that the employee must have a loss to another member or organ. Manifestation of one injury on two occasions does not satisfy the requirement of a second loss. McMurrin v. Quaker Oats Company, I Iowa Industrial Commissioner Reports 222 (1981). An examination of the injury dates shows that claimant suffered a series of injuries to his right hand and shoulder, his left hand and shoulder and an injury to his left arm. The record shows that claimant suffered an injury to his right shoulder and right hand on March 15, 1985. This date is adopted as the injury date for the first injury because claimant was taken off work on this date. See, McKeever Custom Cabinets v. Smith, 379 N.W.2d 368, 374 (Iowa 1985). There is no evidence in the record that establishes that claimant suffered a permanent injury to either his right hand or arm however. The only doctor who assigned a permanency rating to claimant's right hand was Dr. Blume. It is not clear what his rating is based on. He was agreeing with prior ratings given by the treating physicians. Dr. Keane, the treating physician gave claimant a zero percent functional impairment rating for his hand after claimant had successfully recovered from the surgery. Dr. Blume saw the claimant three years after the surgery was performed and qualified his rating by indicating that the orthopedist who performed the surgery was in a better position to supply a rating for claimant's right hand. Consequently, Dr. Keane's rating is adopted at the correct functional impairment rating for Page 8 claimant's right hand. Without a permanency rating for the right hand, claimant has not established Fund liability with this injury. The only other injury identified as affecting claimant's right upper extremity was to claimant's right shoulder. Claimant's right shoulder injury was never described as extending into the right arm. Claimant's right shoulder injury was diagnosed by Dr. Blume, Dr. Cofield and Dr. Dougherty as a recurrent inflammation involving the rotator cuff. This injury is clearly a part of the shoulder and extends into the body as a whole. The injury is not a loss to the arm. It is well established in Iowa that a shoulder rotator cuff injury is an injury to the body as a whole and not to a scheduled member simply because the function of those joints impacts upon a scheduled member. Alm v. Morris Barrick Cattle Co., 38 N.W.2d 161, 163 (Iowa 1949); Nazarenus v. Oscar Mayer & Co., II Iowa Industrial Commissioner Reports 281 (App. 1982); Godwin v. Hicklin GM Power, II Iowa Industrial Commissioner Reports 170 (App. 1981). But even if claimant's right shoulder problems did extend into the arm and were treated as a scheduled member injury, there is no evidence of permanency. Claimant's shoulder was examined and rated by Dr. Erdmann, a chiropractor, and Dr. Cofield, a shoulder specialist with Mayo Clinic in 1987. Both of these evaluators found that claimant had no permanent disability in his right shoulder. Finally, claimant himself, agreed in the settlement document filed in 1989, that there was no permanency for the right arm. Consequently, because there was no prior permanent loss found for the injuries to claimant's right hand and arm, Fund liability has not been triggered. If the simultaneous injury to the claimant's hands is treated as the first injury, there is still no Fund liability because claimant has not suffered a second injury to another scheduled member. Claimant suffered subsequent injuries to his left arm and left shoulder. The left arm injury in November of 1985 resolved without any permanent impairment. The injury to the left shoulder was an injury that extended into the body as a whole and was not limited to a scheduled member in spite of Dr. Blume's conclusions and the claimant's agreement to make the shoulder injury a scheduled member injury. Dr. Blume was the only doctor to find that claimant had suffered an injury to his left arm. All of claimant's other evaluating and treating physicians found that claimant had suffered an injury to the shoulder. Dr. Erdmann was the only other doctor to functionally rate the shoulder. He concluded there was a 13% impairment that extended into the body as a whole. The other doctors could not find any permanent impairment. Dr. Cofield found that claimant's left shoulder problems would resolve themselves. Dr. Dougherty found that claimant had no permanent impairment from the inflammed tendons in his shoulder and rotator cuff. Page 9 Without more, cliamant has failed to produce sufficient evidence that he suffered a second injury to a scheduled member thereby triggering Fund liability. The remaining issues raised by the claimant are moot since Fund liability has not been triggered. order THEREFORE, it is ordered: 1. Claimant shall take nothing from this proceeding. 2. The motion to amend claimant's petition to conform to the proof is denied. 3. The costs of this action shall be assessed to claimant pursuant to rule 343 IAC 4.33. Signed and filed this ____ day of July, 1991. ________________________________ ELIZABETH A. NELSON DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr Harry H Smith Attorney at Law PO Box 1194 Sioux City Iowa 51102 Ms Joanne Moeller Assistant Attorney General Tort Claims Division Hoover State Office Building Des Moines Iowa 50319 5-2906 - 5-3203 Filed July 18, 1991 ELIZABETH A.NELSON before the iowa industrial commissioner ____________________________________________________________ : GAYLE SITZMANN, : : Claimant, : : vs. : : DUBUQUE PACKING COMPANY, : : File No. 812197 Employer, : : A R B I T R A T I O N and : : D E C I S I O N SENTRY INSURANCE, : : Insurance Carrier, : : and : : SECOND INJURY FUND OF IOWA, : : Defendants. : ___________________________________________________________ 5-2906 At the close of all evidence, claimant moved to amend his petition to conform to the proof. The amendment sought to change the injury dates originally plead. The amendment constituted a substantial change and the motion to amend was denied. 5-3203 Claimant suffered a bilateral carpal tunnel syndrome and subsequent injuries to his left shoulder and left arm. The first injury was identified as an injury to the right hand and arm. Claimant's evidence failed to establish that he had any permanent impairment from the first injury. Additionally, claimant failed to establish that he suffered any permanent impairment to his left arm. The injury to claimant's left arm resolved itself without permanency. The only remaining injury, a left shoulder injury was an injury to the body as a whole and not an injury to a scheduled member. Fund liability was not established. BEFORE THE IOWA INDUSTRIAL COMMISSIONER ERNESTINE C. THOMAS, Claimant, VS. File Nos. 812401 & 716036 BROADLAWNS MEDICAL CENTER MEDICAL PERSONNEL POOL OF A R B I T R A T I O N IOWA, INC.; and CITY OF DES MOINES, IOWA, D E C I S I O N Employer, and ST. PAUL FIRE & MARINE INS. CO.; LIBERTY MUTUAL INSURANCE COMPANY; and CITY OF DES MOINES - SELF-INSURED, Insurance Carriers, and SECOND INJURY FUND OF IOWA, Defendants. STATEMENT OF THE CASE This is a proceeding in arbitration brought by Ernestine C. Thomas, claimant, against Broadlawns Medical Center and its insurance carrier, St. Paul Fire & Marine; Medical Personnel Pool of Iowa, Inc., and its insurance carrier, Liberty Mutual Insurance Company; the City of Des Moines, Iowa who is self-insured; and, the Second Injury Fund of Iowa, defendants, for workers' compensation benefits as a result of alleged injuries on June 22, 1982 and November 11, 1985. On August 29, 1988, a hearing was held on claimant's petition and the matter was considered fully submitted at the close of this hearing. The parties have submitted a prehearing report of contested issues and stipulations which was approved and accepted as a part of the record of this case at the time of hearing. Oral testimony was received during the hearing from claimant and the following witnesses: Michael Peterson, Cynthia Baler, Anne Ulm and Connie Harris. The exhibits received into the THOMAS V. BROADLAWNS MEDICAL CENTER, ET AL Page 2 evidence at the hearing are listed in the prehearing report except that exhibit 2 was not received at the hearing because of duplication. According to the prehearing report, the parties have stipulated to the following matters: 1. Claimant is not seeking additional temporary total disability or healing period benefits for the alleged June 22, 1982 injury. 2. Defendant Broadlawns agreed that claimant suffered a work injury on June 22, 1982 and that claimant is entitled to the temporary total disability payments paid to her for this injury and that claimant's rate of compensation for the injury is $110.62 per week. 3. With reference to the medical bills submitted by claimant at hearing, a list of which was attached to the prehearing report, it was stipulated by all the parties that the providers would testify that they were fair and reasonable and defendants are not offering contrary evidence. The stipulations of the parties with reference to permanent partial disability benefits in the prehearing report could not be deciphered from the documents submitted. ISSUES The parties submitted the following issues for determination in this proceeding: I. Whether claimant received an injury arising out of and in the course of employment on November 11, 1985; II. Whether there is a causal relationship between any of the alleged work injuries and the claimed disabilities; III. The extent of claimant's entitlement to weekly benefits for disability; and, IV The extent of claimant's entitlement to medical benefits. STATEMENT OF THE FACTS The following is a brief statement highlighting the more pertinent facts presented. Whether or not specifically referred to in this statement, all of the evidence received at the hearing was independently reviewed and considered in arriving at this decision. Any conclusions contained in the following statement should be viewed as preliminary findings of fact. THOMAS V. BROADLAWNS MEDICAL CENTER, ET AL Page 3 Claimant is 55 years of age and is a high school graduate. She testified that she worked for Broadlawns as a psychiatric technician from 1982 until a back injury on April 5, 1984. This back injury is not the subject of this proceeding. This proceeding involves a claim of disability from alleged left and right hand/arm injuries involving De Quervians and carpal tunnel syndromes. Claimant worked intermittently for defendant Medical Personnel Pool of Iowa, Inc., as a nursing assistant in the home care of patients between June 25, 1985 and September 17, 1986. This was part-time "on call" type of employment involving such duties as feeding, bathing and light housework for disabled patients. Claimant worked for the City of Des Moines as a school crossing guard from April 15, 1985 through May 28, 1986. Claimant stated that she was not required to lift or carry anything in this job, but the job did involve the waving and outstretching of her arms. Claimant was required to be on duty three times a day for approximately 40 minutes for each time in this crossing guard job. Claimant resigned from the city due to "memory loss" problems which were diagnosed as a result of either severe depression or possible aftereffects of her prior brain concussion while working for Broadlawns. Claimant has settled her claim against Broadlawns for any of her alleged mental or psychiatric difficulties and this agency has approved this settlement under Iowa Code section 85.35. There is no admission of liability in such a settlement. The facts surrounding the work injury of June 22, 1982, are not in dispute. Claimant testified that she was attacked by a deranged patient at Broadlawns who twisted her left wrist and pulled back the thumb of her left hand. Claimant initially was treated for pain and numbness of her hand at Broadlawns but was referred to an orthopedic surgeon, Arnis Grundberg, M.D. As suspected by the referring physician, Dr. Grundberg diagnosed a tendonitis condition called De Quervians syndrome and possible carpal tunnel syndrome. After a normal EMG test in January 1983, claimant was clinically diagnosed for carpal tunnel syndrome as well. Claimant underwent two surgeries in January and March 1983, to correct these problems which, according to Dr. Grundberg, were causally related to the June 22, 1982 injury. Claimant returned to work at Broadlawns in April 1983 and was directed by Dr. Grundberg to use only her right hand for a period of approximately two weeks. Following her return to work, claimant returned to Dr. Grundberg for follow-up care in May and July of 1983. Claimant next returned to Dr. Grundberg in January 1984, complaining of pain and numbness with the left ring finger. Dr. Grundberg did not believe this condition to be work related: In May 1984, claimant sought out the services of Ivan Pakiam, M.D., a specialist in reconstructive and plastic surgery. After his examination of claimant, Dr. Pakiam felt that claimant's left ring finger problems may be due to thoracic outlet syndrome, a condition involving a THOMAS V. BROADLAWNS MEDICAL CENTER, ET AL Page 4 compression of the nerves in the upper thoracic area close to the neck. Dr. Pakiam referred claimant to two other doctors with experience in thoracic outlet syndrome conditions. Claimant also was examined in July 1985 by the orthopedic department of the University of Iowa Hospitals and Clinics. None of these doctors were able to diagnosed thoracic outlet syndrome and Dr. Pakiam testified at his deposition that he would defer to their expertise and he had no explanation for claimant's left ring finger problems. Claimant continued to see Dr. Pakiam on occasion in 1984 and 1985 for left hand problems while she was being treated for her back injury. It was not until his report in November 1985 that Dr. Pakiam mentions any complaints of right sided carpal tunnel syndrome from claimant. At that time, he rated claimant as having a disability consisting of 23 percent on the left and 20 percent on the right both of which were to the upper extremity. In December 1985, Dr. Pakiam reported that claimant is not a good "witness" due to a "lot of chronic aches" and some memory loss. However, the doctor stated that he thought claimant should receive "the benefit of the doubt" and that her condition was aggravated by work both as a crossing guard and "possibly" the Broadlawns incident in 1982. In his deposition, Dr. Pakiam was more assertive and definitely causally connected claimant's right and left hand difficulties to the 1982 injury. He also testified that it was his impression that claimant was required to carry a sign as a crossing guard but that he did not "get specific details in what she did." He stated that if claimant were not required to carry, such work would not be related to her carpal tunnel problems. In April 1986, claimant returned to Dr. Grundberg with complaints of continuing problems with her left hand and a new complaint, according to Dr. Grundberg, of carpal tunnel syndrome in the right hand. According to Dr. Grundberg, claimant inquired about obtaining surgery for her right hand. Dr. Grundberg, in his deposition, explained that he felt claimant was not honest in her complaints because she continued to complain of left hand difficulties despite surgery, but at the same time she was asking for surgery on the right. The doctor stated that he disagreed with claimant's contention that the right hand problems were work related due to the additional use put on the right hand as a result of the left hand problems following the 1982 injury. Dr. Grundberg stated that claimant reported to him that she first experienced the right hand problems in November of 1985 over three years after the original injury. Dr. Grundberg felt that if problems were work related she should have experienced the difficulties sooner. Claimant testified that she did experienced problems sooner in 1983 and had reported these complaints to Dr. Grundberg but he apparently did not record such a history. Dr. Grundberg testified in his deposition THOMAS V. BROADLAWNS MEDICAL CENTER, ET AL Page 5 that he would not have failed to report such new complaints had they been made to him. Dr. Pakiam felt that the right hand problems were work related and continued to treat claimant for these problems in 1986 and 1987, including a surgical release of the right carpal tunnel compartment in September 1986. According to Dr. Pakiam, claimant reached maximum healing in January 1985. Dr. Pakiam's rating for claimant's disability in the right hand remained unchanged after the surgery and extensive attempts at physical therapy. In his deposition, Dr. Grundberg disagreed with the impairment ratings of Dr. Pakiam and, although he was unclear as to what claimant's disability may be, Dr. Grundberg stated that he had never seen carpal tunnel problems have more than a 10 percent impairment of the hand. Scott Neff, D.O., another orthopedic surgeon and Thomas Bower, LPT, examined claimant in October 1987. It was their combined opinion that claimant suffered a five percent permanent partial impairment to the right hand and not to the extremity with no impairment whatsoever to the left hand. From their testing, it was their opinion that it was highly probable that claimant was magnifying her symptoms. Claimant did not appear credible at hearing due to her demeanor and inconsistent testimony. Although she complained of memory loss, it was noted by the undersigned at hearing that she had a fairly good command of the important dates in her claim. APPLICABLE LAW AND ANALYSIS I. Claimant has the burden of proving by a preponderance of the evidence that claimant received an injury which arose out of and in the course of employment. The words "out of" refer to the cause or source of the injury. The words "in the course of" refer to the time and place and circumstances of the injury. See Cedar Rapids Community Sch. v. Cady, 278 N.W.2d 298 (Iowa 1979); Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 402, 68 N.W.2d 63 (1955). An employer takes an employee subject to any active or dormant health impairments, and a work connected injury which more than slightly aggravates the condition is considered to be a personal injury. Ziegler v.United States Gypsum Co., 252 Iowa 613, 620, 106 N.W.2d 591 (1960) and cases cited therein. In the case sub judice,.there is little question that claimant suffered De Quervians syndrome and carpal tunnel syndrome of the left hand after the 1982 incident. The physicians in this case are in full agreement on this.issue. Therefore, claimant has shown a work injury to the left hand during her employment at Broadlawns. THOMAS V. BROADLAWNS MEDICAL CENTER, ET AL Page 6 II. The question of causal connection is essentially within the domain of expert medical opinion. Bradshaw v. Iowa Methodist.Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). The opinion of experts need not be couched in definite, positive or unequivocal language and the expert opinion may be accepted or rejected, in whole or in part, by the trier of fact. Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974). The weight to be given to such an opinion is for the finder of fact, and that may be affected by the completeness of the premise given the expert and other surrounding circumstances. Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). Furthermore, if the available expert testimony is insufficient along to support a finding of causal connection, such testimony may be coupled with nonexpert testimony to show causation and be sufficient to sustain an award. Giere v. Asse Haugen Homes, Inc., 259 Iowa 1065, 146 N.W.2d 911, 915 (1966). Such evidence does not, however, compel an award as a matter of law. Anderson v. Oscar Mayer & Co., 217 N.W.2d 531, 536 (Iowa 1974). In the case sub judice, claimant has not shown by preponderance of the evidence a causal connection between the work injury and the problems with the left ring finger and the right hand and has not shown any evidence to substantiate the claim that the injury of 1982 extended beyond the hand and into the body as a whole. Although Dr. Pakiam felt that the right hand problems were related to the 1982 injury, claimant's primary care physician at the time of the 1982 injury disagreed due to the time lag between the injury and the right hand complaints. Claimant's assertion that she complained to her physicians earlier is not credible and not supported by even the records of Dr. Pakiam. The undersigned believes that Dr. Grundberg's views should be given the greater weight due to his specialized experience in not only orthopedic surgery but orthopedic surgery of the hand. on the other hand, Dr. Pakiam is a plastic surgeon whose experience and training in carpal tunnel syndrome problems is unknown. The claim that the right hand problems were due to work at Medical Personnel Pool of Iowa, Inc., was not supported by any of the physicians. A claim that the crossing guard work was a cause or an aggravation of carpal tunnel syndrome is likewise not supported by any physician in this case. Dr. Pakiam even denied the causal connection where claimant was not required to carry anything. As claimant has not shown a compensable second injury, she is not entitled to benefits from any of the subsequent employers after the Broadlawns employment and is not entitled to benefits from the second injury fund under Iowa Code section 85.63 et.seq. THOMAS V. BROADLAWNS MEDICAL CENTER, ET AL PAGE 7 III. Claimant must establish by a preponderance of the evidence the extent of weekly benefits for permanent disability to which claimant is entitled. Permanent partial disabilities are classified as either scheduled or unscheduled. A specific. scheduled disability is evaluated by the functional method; the industrial method is used to evaluate an unscheduled disability. Martin v. Skelly Oil Co., 252 Iowa .128, 133, 106 N.W.2d 95, 98 (1960); Graves v. Eagle Iron Works, 331 N.W.2d 116 (Iowa 1983); Simbro v. DeLong's Sportswear, 332 N.W.2d 886, 997 (Iowa 1983). when the result of an injury is loss to a scheduled member, the compensation payable is limited to that set forth in the appropriate subdivision of Code section 85.34(2). Barton v. Nevada Poultry Co., 253 Iowa 285, 110 N.W.2d 660 (1961). "Loss of use" of a member is equivalent to 'loss' of the member. Moses v. National Union C.M. Co., 194 Iowa 819, 184 N.W. 746 (1922). Pursuant to Code section 85.34(2)(u) the industrial commissioner may equitably prorate compensation payable in those cases wherein the loss is something less than that provided for in the schedule. Blizek v. Eagle Signal Company, 164 N.W.2d 84 (Iowa 1969). In the case sub judice, Dr. Pakiam rated claimant under AMA Guidelines as having a 23 percent permanent partial impairment and Dr. Neff rated claimant as having a zero impairment. Dr. Grundberg, whose views were given the most weight in causal connection, stated that in his experience claimant should have no more than ten percent permanent partial impairment. From such evidence it is found as a matter of fact that the work injury of June 22, 1985 is a cause of a ten percent loss of use of the left hand. A review of the medical records and the surgical report in the carpal tunnel syndrome repair in March 1983 fails to show that the incision or the anatomical situs of the injury extended beyond the hand. It is the anatomical situs of the injury not the situs of the disability caused by the injury which determines whether or not to apply the schedules in Iowa Code section 85.34(2)(a-t). Lauhoff Grain v. McIntosh, 395 N.W.2d 834 (Iowa 1986); Dailey v. Pooley Lumber Co., 233 Iowa 758, 10 N.W.2d 569 (1943). Based on such a finding, claimant is entitled as a matter of law to 19 weeks of permanent partial disability benefits under Iowa Code section 85.34(2)(1) which is ten percent of 190 weeks, the maximum allowable number of weeks for a loss of a hand in that subsection. IV. Pursuant to Iowa Code section 85.27, claimant is entitled to payment of reasonable medical expenses incurred for treatment of a work injury. However, claimant is entitled to an order of reimbursement only if claimant has paid those expenses. Otherwise, claimant.is entitled only to an order directing the responsible defendants to make such payments. See Krohn v. State 420 N.W.2d 463 (Iowa 1988). THOMAS V. BROADLAWNS MEDICAL CENTER, ET AL Page 8 As only the left hand De Quervians and carpal tunnel syndrome problems are found work related, most of the medical expenses requested by claimant and listed in the prehearing report are not work related as they involve treatment of the left ring finger problem and the right carpal tunnel syndrome. However, the bills from Michael J. Stein, D.O., and the University of Iowa Hospitals and Clinics are related to the 1982 injury as they were incurred for evaluation and diagnosis of a work related left hand problem. FINDINGS OF FACT 1. Claimant was a credible witness. 2. On June 22, 1982, claimant suffered an injury to the left hand which arose out of and in the course of her employment with Broadlawns. This injury involved a tendonitis condition called De Quervians syndrome and carpal tunnel syndrome. Claimant received surgical correction of these problems but never fully recovered to the same condition as before the work injury. Claimant returned to work on April 1, 1983, following a recovery from the two hand surgeries. Neither the anatomical situs of the original injury of June 22, 1982, nor the situs of the corrective surgeries thereafter extended beyond the hand. 3. The work injury of June 22, 1982, was a cause of a ten percent permanent partial impairment to the left hand. Claimant has continuing problems with loss of grip strength, pain and numbness in the left hand which affects her ability to use the hand. 4. The medical expenses listed in the prehearing report, exhibits 3 and 4, are fair and reasonable and were incurred by claimant for reasonable and necessary treatment and diagnosis of her left hand work injury as a result of the incident on June 22, 1982. 5. In November 1985, claimant began to experience carpal tunnel syndrome problems in her right hand which was eventually surgically treated, but the causal connection of these problems and the surgical treatment of those problems to any injury during claimant's employment at Broadlawns, Medical Personnel Pool of Iowa, Inc., and the City of Des Moines, was not shown. CONCLUSIONS OF LAW Claimant has established under law entitlement to only the disability and medical benefits awarded below. THOMAS V. BROADLAWNS MEDICAL CENTER, ET AL PAGE 9 ORDER 1. The claims against defendants, Medical Personnel Pool, Inc.; the City of Des Moines, Iowa; and, the Second injury Fund of Iowa are dismissed with prejudice. 2. Defendants, Broadlawns and St. Paul Fire & Marine Insurance Company, shall pay to claimant nineteen (19) weeks of permanent partial disability benefits at the rate of one hundred ten and 62/100 dollars ($110.62) per week from April 1, 1983. 3. Defendants, Broadlawns and St. Paul Fire & Marine Insurance Company, shall pay the medical expenses for Dr. Stein and the University of Iowa Hospitals and Clinics as set forth in exhibits 3 and 4 which total two thousand six hundred sixty-one and no/100 dollars ($2,661.00). 4. Defendants, Broadlawns and St. Paul Fire & Marine Insurance Company, shall pay accrued weekly benefits in a lump sum and shall receive credit against this award for all benefits previously paid. 5. Defendants, Broadlawns and St. Paul Fire & Marine Insurance Company, shall receive credit for previous payments of benefits under a non-occupational group insurance plan, if applicable and appropriate under Iowa Code section 85.38(2). 6. Defendants, Broadlawns and St. Paul Fire & Marine Insurance Company, shall pay interest on weekly benefits awarded herein as set forth in Iowa Code section 85.30. 7. Defendants, Broadlawns and St. Paul Fire & Marine Insurance Company, and claimant shall each pay an equal share of the costs of this action pursuant to Division of Industrial Services Rule 343-4.33. 8. Defendants, Broadlawns and St. Paul Fire & Marine Insurance Company, shall file activity reports on the payment of this award as requested by this agency pursuant to Division of Industrial Services Rule 343-3.1. Signed and filed this 24th day of April, 1989. THOMAS V. BROADLAWNS MEDICAL CENTER, ET AL PAGE 10 LARRY P.WALSHIRE DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Jon B. Schuster Attorney at Law 303 Locust, Suite 106 Des Moines, Iowa 50309 Mr. Charles E. Cutler Attorney at Law 729 Ins. Exchange Bldg. Des Moines, Iowa 50309 Mr. W. C. Hoffmann Attorney at Law 500 Liberty Bldg. Des Moines, Iowa 50309 Ms. Anne L. Clark Assistant City Attorney City Hall Des Moines, Iowa 50307 Mr. Greg Knoploh Assistant Attorney General Hoover State Office Bldg. Des Moines, Iowa 50319 5110 8 Filed April 24, 1989 LARRY P. WALSHIRE BEFORE THE IOWA INDUSTRIAL COMMISSIONER ERNESTINE C. THOMAS, : : Claimant, : : VS. : : File Nos. 812401 & 716036 BROADLAWNS MEDICAL CENTER : MEDICAL PERSONNEL POOL OF A R B I T R A T I O N IOWA, INC.; and CITY OF DES MOINES, IOWA D E C I S I O N Employer, : : and : : ST. PAUL FIRE & MARINE INS. : CO.; LIBERTY MUTUAL INSURANCE : COMPANY; and CITY OF : DES MOINES - SELF-INSURED, : : Insurance Carriers, : : and : : SECOND INJURY FUND OF IOWA, : : Defendants. : 51108 - Non-presidential causal connection issue Claimant awarded a small amount of permanent partial disability benefits for carpal tunnel syndrome problem of the left hand. BEFORE THE IOWA INDUSTRIAL COMMISSIONER _________________________________________________________________ LAVERN SCHELLHORN, Claimant, File No. 812427 VS. A P P E A L DEERE & COMPANY, R U L I N G Employer, Self-Insured, Defendant. _________________________________________________________________ Rule 500-4.27 states in part: "No appeal shall be separately taken under this or 4.25 (17A, 86) from an interlocutory decision, order or ruling of a deputy industrial commissioner. A decision, order or ruling is interlocutory if it does not dispose of the contested case." The ruling filed June 16, 1987 which is the subject matter of this appeal is not dispositive of the contested case and therefore interlocutory. THEREFORE, the appeal filed July 6, 1987 is hereby dismissed. Signed and filed this 21st day of July, 1987. DAVID E. LINQUIST ACTING INDUSTRIAL COMMISSIONER Copies To: Mr. John E. Behnke Attorney at Law Box F Parkersburg, Iowa 50665 John W. Rathert Attorney at Law 620 Lafayette St. P.O. Box 178 Waterloo, Iowa 50704 Page 1 before the iowa industrial commissioner ____________________________________________________________ : ROBERT FRANGENBERG, : : Claimant, : File Nos: 812510 : 872756 vs. : : A P P E A L WILSON FOODS CORPORATION, : : D E C I S I O N Employer, : Self-Insured, : Defendants. : ___________________________________________________________ The record, including the transcript of the hearing before the deputy and all exhibits admitted into the record, has been reviewed de novo on appeal. Neither party filed briefs on appeal. Therefore, the appeal will be considered generally and without regard to specific issues. The decision of the deputy is affirmed and is adopted as the final agency action in this case. Signed and filed this ____ day of April, 1990. ________________________________ DAVID E. LINQUIST INDUSTRIAL COMMISSIONER Copies To: Mr. Harry H. Smith Mr. Dennis M. McElwain Attorneys at Law P.O. Box 1194 Sioux City, Iowa 51102 Mr. David L. Sayre Attorney at Law 223 Pine St. P.O. Box 535 Cherokee, Iowa 51012 5-9998 File April 16, 1990 DAVID E. LINQUIST before the iowa industrial commissioner ____________________________________________________________ : ROBERT FRANGENBERG, : : Claimant, : Files Nos: 812510 : 872756 vs. : : A P P E A L WILSON FOODS CORPORATION, : : D E C I S I O N Employer, : Self-Insured, : Defendants. : ___________________________________________________________ 5-9998 Deputy's decision summarily affirmed on appeal. BEFORE THE IOWA INDUSTRIAL COMMISSIONER ROBERT FRANGENBERG, File Nos. 812510 & 872756 Claimant, R E V I E W - vs. R E 0 P E N I N G WILSON FOODS CORPORATION, A N D Employer, A R B I T R A T I O N Self-Insured, Defendant. D E C I S I 0 N F I L E D JUL 31 1989 IOWA INDUSTRIAL COMMISSIONER INTRODUCTION File number 812510 is a proceeding for review-reopening. File number 872756 is a proceeding in arbitration. Both cases are brought by Robert Frangenberg, claimant, against Wilson Foods Corporation, self-insured employer. The cases were heard by the undersigned on June 2, 1989, in Storm Lake, Iowa. The record consists of joint exhibits 1-39. The record also consists of the testimony of claimant. ISSUE As a result of the prehearing report and order submitted on June 2, 1989, the issue presented by the parties is: 1. The extent of entitlement to weekly compensation for permanent disability, if defendant is liable for the injuries. STIPULATIONS Prior to the hearing, the parties have entered into a number of stipulations. The stipulations are as follows: 1. The existence of an employer-employee relationship between claimant and employer at the time of the alleged injury; 2. That claimant sustained injuries on September 4, 1985 and June 17, 1987 which arose out of and in the course of employment with employer; 3. That the alleged.injuries are causes of temporary disability during periods of recovery; that the work injuries are causes of permanent disability; 4. That the extent of entitlement to weekly compensation for temporary total disability or healing period, if defendant is liable for the injuries are: File number 812510: 12-17-85 to 12-19-85 1-15-86 to 4-19-86 1-06-87 to 3-22-87 File.number 872756: 7-22-88 to 10-18-88; 5. The type of permanent disability, if the injury is found to be a cause of permanent disability is stipulated to be an industrial disability to the body as a whole as to file number 812510 and the type of permanent disability, if the injury is found to be a cause of permanent disability is stipulated to be a scheduled member disability to the hand as to file number 872756; 6. That the rate of weekly compensation in the event of an award of weekly benefits is stipulated as follows: for file number 812510 is $189.54 per week for file number 872756 is $216.29 per week; and, 7. That defendant paid claimant for file number 812510: 14.286 weeks healing period 12.50 weeks permanent partial disability for file number 872756: 12.5 weeks healing period 9.5 weeks permanent partial disability. FACTS PRESENTED With respect to file number 812510, claimant and defendant entered into a settlement on April 1, 1986. Under the terms of that agreement, the parties agreed in relevant portion that: WILSON FOODS CORPORATION and the undersigned EMPLOYEE of WILSON FOODS CORPORATION acknowledges that the EMPLOYEE has been paid in full for all healing period payments. That all past medical bills have been paid, all additional medical expenses connected with this injury will be born by the employer, and that the EMPLOYEE'S permanent partial disability arising out of an injury at the PLANT on September 4 1985, amounts to 5% of the upper extremity which translates to 12.5 weeks at $189.54 per week, or a total of $2369.25 which will be paid as follows: $1,895.40 commencing on April 19, 1986 and $189.54 per week until fully paid. Claimant is 29-years-old and single. He is predominately, right handed. From September of 1984 to March 10, 1988, claimant worked for defendant. According to claimant's testimony, he worked 90 percent of his time in the pace boning room where he used a knife. Claimant stated he worked as a ham boner which was a position on the line, and that he was required to slice through joints on 400 animals per hour. Claimant testified his shoulder injury was gradual over time. First, his shoulder began popping. Then it swelled and became worse. With regard to the injury on June 17, 1987, claimant stated the injury was gradual as well. He indicated he felt pain in his wrist and in his hand. Then the hand became numb and claimant testified he lost strength in it. Claimant received medical attention from a variety of specialists for both his shoulder and for his hand. M. E. Wheeler, M.D., opined as of March 10, 1986: "Mr. Frangenberg would like disability rating on his shoulder. I feel because of the subluxing biceps tendon he would have a 5% impairment of the upper extremity." Later, Dr. Wheeler determined as of March 7, 1988 and as of April 4, 1988: 3/7/88 OV - The patient continues to be very symptomatic in his right shoulder. He has continued to work but has difficulty doing this. He still complains of paresthesias in the [sic] volar aspect of the forearm and is dropping things. He feels the strength in his right shoulder is markedly decreased also. With range of motion testing today, he had about 100 to 110 degrees of active abduction and flexion. Could not really detect any muscle atrophy. I feel his right radial pulse was less than his left, particularly in abduction. Adson's maneuver was questionably positive. It may be very well that he does have a thoracic outlet syndrome. We will arrange EMG's and nerve conductions by Dr. Krysztofiak. Would consider even an arteriogram in his case.... 4/4/88 OV - Mr. Frangenberg is essentially unchanged. He has about 130 degrees of abduction and 140 degrees of flexion today. I feel his impairment rating in this shoulder is probably unchanged. He does have EMG changes in his hands. He really is not that interested in further surgery. Because of the carpal tunnel symptoms in his hand, would give him a 5% permanent impairment rating of the hand. I have advised him it will be his choice whether to continue to work. He is likely to have recurrence of difficulties if he continues to work.... Dr. Wheeler, on May 20, 1988, determined claimant was restricted as follows: "...In regards to his shoulder, I would limit him to lifting no greater than 40 pounds with the involved arm or working above shoulder level. Repetitive actions at this level tend to aggravate his symptoms." Dr. Wheeler further refined his rating of claimant in the medical report dated May 12, 1989. Dr. Wheeler wrote: In regards to your inquiries on Robert Frangenberg, I feel that the permanent impairment to his right shoulder was caused by or substantially caused by his employment at Wilson Foods. I cannot answer your second question. According to AMA Guideline, impairments about the shoulder are related to the upper extremity and this is what I am going by. I realize there is a discussion in the legal community whether this should be to the body as a whole or to the upper extremity. I am relating it to the upper extremity according to these guidelines. A. J. Woolbrink, M.D., in his report of January 20, 1988, wrote the.following concerning his examination of claimant: On examination, I found Mr. Frangenberg to be 75 inches tall and weigh 229 pounds. He had a normal range of motion of his cervical spine, but had a little tightness in the right trapezius with left side bending. The left shoulder had a normal range of motion without pain or crepitation. The left hand may have had slight crepitation in the wrist flexors, but he had a normal range of motion and no tenderness and normal grip strength in the forearm and hand. At the time of my examination the right shoulder would abduct only 90 degrees and forward flex only 100 degrees. It had 30 degrees of extension, 70 degrees of internal rotation with the arm in abduction and 70 degrees of external rotation with the arm in abduction, but he could reach only to the posterior axillary line and rotational motions were somewhat uncomfortable throughout the range, but especially at extremes. He had enough discomfort with the entire motion so that I could not really say that he had a positive impingement test. There was good strength of the posterior deltoid, but no more than 50 percent of strength of the lateral and anterior deltoid muscles. He had fairly good strength of internal rotation, but less than 50 percent of strength of external rotation in the right shoulder. The right elbow had a normal range of motion without pain. The right wrist and hand also had a normal range of motion. There was tenderness along the flexor tendons. Tinel's was negative. He had no sweat pattern change and had normal sensation throughout the hand. There was no evidence of synovitis in the joints of the wrist or fingers. Grip strength measured 20, 34, and 33 Kg. in the right hand with serial measurements and 53, 47, and 49 Kg. in the left hand. An x-ray of the shoulder was obtained. It does show evidence of the partial acrominectomy, but otherwise is normal. Also, some blood tests were done to check on the possibility of gout. The uric acid was 9.3, with an upper limits of normal 9.0. The remainder of tests related to this were normal. It is my opinion that Mr. Frangenberg has a significant tendinitis of his shoulder and a mild tendinitis of the right forearm. These, in my opinion, are due to the repetitive nature of his work. He also has loss of sensation from apparent injury of the cutaneous branch of the musculocutaneous nerve to the forearm. Patient has a history of an episode of a gouty attack, reported by the patient to have been confirmed by a blood test. The blood test at the present time is only slightly elevated. In my opinion this is not sufficient to make the definite diagnosis of gout at the present time. Also, it is my opinion that this blood test confirms that most of the present symptoms are not directly.related to the gout. At the present time Mr. Frangenberg has an impairment of 15 percent of the right upper extremity due to the loss of motion, strength and sensation about the shoulder. He also has a 10 percent impairment of the upper extremity due to the weakness of the forearm and hand. This combines for a total impairment of 24 percent of the right upper extremity. However, in my opinion, Mr. Frangenberg would benefit significantly by a physical therapy program which included strengthening and conditioning exercises for the shoulder and forearm. I would predict that his impairment will be half or less than it is if he is instructed in and follows a good exercise program. Mr. Frangenberg will always have some restrictions. He will never tolerate work which requires frequent use of his arm above shoulder level or highly repetitive pulling and pushing activities with his right arm. He also may have a tendency to have some tendinitis, which could be related to the possible gout. William H. Fleming, M.D., examined and evaluated claimant relative to thoracic outlet syndrome. Dr. Fleming opined: In evaluation for thoracic outlet syndrome, Mr. Frangenberg has complaints of pain and weakness with the right arm whenever he attempts to do anything above shoulder level. However, he is relatively free of pain which I would relate to a thoracic outlet syndrome except when he raises his arm. On straight elevation of the arms, the left side loses a radial pulse at 45 degrees above horizontal. On the right, he loses his radial pulse slightly below the horizontal position. With Adson's maneuver, the pulse is never obliterated on the left, but is obliterated a very short distance behind perpendicular on the right. I believe this man does have some definite thoracic outlet syndrome on the right, however, I think he is totally unable to sort out what is due to carpal tunnel, what is due to his old injury and operation, and what is due to position changes which would be associated with thoracic outlet syndrome. He reports the electromyograms have been done and confirm the carpal tunnel syndrome on the right, but do not demonstrate thoracic outlet syndrome.... Later, Dr. Fleming changed his diagnosis. In his report of October 11, 1988, the doctor wrote: ...In re-evaluating him for shoulder and thoracic outlet symptoms, I find that most of his symptomatology now centers on stiffness and pulling sensations when he goes through a full range-of-motion with the right shoulder. He certainly has some limitation of range-of-motion in all directions with the right shoulder versus the left. However, the symptoms he notes are those of shoulder stiffness and not those of brachioplexus compression which would be caused by thoracic outlet compression. On examination, he still has a difference in the point at which his radial pulses are obliterated. On the left, he can take the arm up to about 45 degrees above the horizontal before losing pulse and he can also take it about 15 degrees behind perpendicular before losing the pulse. On the right, he loses the pulse with any motion either upward or backward from a horizontal perpendicular position. Interestingly, this is not accompanied by any nerve compression symptoms. On a chronic basis, this man is not presently complaining of any arm pain, weakness, or numbness. Rather he complains only that the shoulder remains stiff. Claimant was also examined by Scott B. Neff, D.O., an orthopedic surgeon. Dr. Neff found the following relative to his initial examination of claimant: ...The incision over the right shoulder area is well healed, and he has numbness and tingling in his right hand. The numbness and tingling occurs with elevation of the right arm, and sometimes occurs with certain positions. His EMG study is absolutely abnormal, according to one he brought, and it shows carpal tunnel syndrome. He also has numbness over the lateral ante-brachial [sic] cutaneous nerve of the forearm, this has been present since the surgery. Passively this shoulder motion is essentially normal and the symptoms of biceps tendon subluxation are no longer present. He does have more pain in his shoulder. Dr. Neff referred claimant to Thomas W. Bower, L.P.T., for an impairment rating. Mr. Bower determined the subsequent information: Active range of motion of the right shoulder shows forward elevation of 105 degrees, extension 40 degrees, abduction 95 degrees, external 90 degrees, and internal rotation 40 degrees. Passively, we were able to move the right shoulder through an extra 10 to 15 degrees of both flexion and abduction when the patient grimaced with pain. Actively, there is approximately 10 to 15 degree decrease than what passive motion is. It was somewhat unusual to find full external and internal rotation with the degree of limitation that the patient is experiencing in both flexion and abduction. The patient does have a positive Phalen's maneuver and positive Tinel's of the right wrist, and he tells me he is not considering carpal tunnel release at this time. Grip strengths do demonstrate approximately 68 percent deficit on the right hand as compared to the left hand. On the basis of these findings, the patient has incurred a 10 percent impairment to the right upper extremity on the basis of the lost shoulder motion. This is based strictly on active motion which is what the AMA guides specifically address. In terms of the right wrist, we are really not able to rate the situation at this time, since indeed probable surgery can decrease [sic] the complaints that he is having. Therefore, the patient, at this point in time, based on the right shoulder, has incurred a 10 percent impairment to the right upper extremity. Thomas P. Ferlic, M.D., an orthopedic surgeon, saw claimant for his wrist.condition only. Dr. Ferlic performed a carpal tunnel release on the right hand. Subsequent to the surgery, Dr. Ferlic determined claimant had a 5 percent functional impairment. APPLICABLE LAW An employee is entitled to compensation for any and all personal injuries which arise out of and in the course of the employment. Section 85.3(l). Claimant has the burden of proving by a preponderance of the evidence that he received injuries on September 4, 1985 and June 17, 1987, which arose out of and in the course of his employment. McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967). The claimant has the burden of proving by a preponderance of the evidence that the injuries of September 4, 1985 and June 17, 1987, are causally related to the disability on which he now bases his claim. Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). Lindahl v. L.O. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945). A possibility is insufficient; a probability is necessary. Burt v. John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955). The question of causal connection is essentially within the domain of expert testimony. Bradshaw v. Iowa Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). However, expert medical evidence must be considered with all other evidence introduced bearing on the causal connection. Burt, 247 Iowa 691, 73 N.W.2d 732. The opinion of experts need not be couched in definite, positive or unequivocal language. Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974). However, the expert opinion may be accepted or rejected, in whole or in part, by the trier of fact. Id. at 907. Further, the weight to be given to such an opinion is for the finder of fact, and that may be affected by the completeness of the premise given the expert and other surrounding circumstances. Bodish, 257 Iowa 516, 133 N.W.2d 867. See also Musselman, 261 Iowa 352, 154 N.W.2d 128 (1967). 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). 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). As a claimant has an impairment to the body as a whole, an industrial disability has been sustained. Industrial disability was defined in Diederich v. Tri-City Railway Co., 219 Iowa 587, 593, 258 N.W. 899, 902 (1935) as follows: "it is therefore plain that the legislature intended the term 'disability' to mean 'industrial disability' or loss of earning capacity and not a mere 'functional disability' to be computed in the terms of percentages of the total physical and mental ability of a normal man." Functional impairment is an element to be considered in determining industrial disability which is the reduction of earning capacity, but consideration must also be given to the injured employee's age, education, qualifications, experience and inability to engage in employment for which he is fitted. Olson v. Goodyear Service Stores, 255 Iowa 1112, 1121 125 N.W.2d 251, 257 (1963). In Parr v. Nash Finch Co., (Appeal Decision, October 31, 1980) the industrial commissioner, after analyzing the decisions of McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980) and Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa 1980), stated: Although the court stated that they were looking for the reduction in earning capacity it is undeniable that it was the "loss of earnings" caused by the job transfer for reasons related to the injury that the court was indicating justified a finding of "industrial disability." Therefore, if a worker is placed in a position by his employer after an injury to the body as a whole and because of the injury which results in an actual reduction in earning, it would appear this would justify an award of industrial disability. This would appear to be so even if the worker's "capacity" to earn has not been diminished. For example, a defendant employer's refusal to give any sort of work to a claimant after he suffers his affliction may justify an award of disability. McSpadden, 288 N.W.2d 181 (Iowa 1980). Similarly, a claimant's inability to find other suitable work after making bona fide efforts to find such work may indicate that relief would be granted. McSpadden, 288 N.W.2d 181 (Iowa 1980) Permanent partial disabilities are classified as either scheduled or unscheduled. A specific scheduled disability is evaluated by the functional method; the industrial method is used to evaluate an unscheduled disability. Martin v. Skelly Oil Co., 252 Iowa 128, 133, 106 N.W.2d 95, 98 (1960); Graves v. Eagle Iron Works, 331 N.W.2d 116 (Iowa 1983); Simbro v. DeLong's Sportswear, 332 N.W.2d 886, 887 (Iowa 1983). In a review-reopening proceeding, claimant has the burden of proof. He must establish that the increased capacity on which his case is based, stems from the original injury. Wagner v. Otis Radio & Electric Co., 254 Iowa 990, 993-994, 119 N.W.2d 751, 753 (1963). The focus of a review-reopening decision is the claimant's condition subsequent to the time of being reviewed. See: Sanford v. Allied Maintenance Corp., IV Iowa Indus. Comm'r Rep. 297 (1984). However, a redetermination of the facts, as provided to the original hearing deputy, is unwarranted. Stice v. Consolidated Ind. Coal Co., 228 Iowa 1031, 1038, 291 N.W. 452, 456 (1940). Also, a mere difference of opinion of experts as to the percentage of disability arising from the original injury is not sufficient to justify a different determination by the deputy hearing the review-reopening proceeding. See: Bousfield v. Sisters of Mercy, 249 Iowa 64, 69, 86 N.W.2d 109 (1957). If there is "substantial evidence of a worsening of condition not contemplated at the time of the first award", a review-reopening is appropriate. Bousfield, supra at 69, Lawyer & Higgs, Iowa Workers' Compensation, section 20-2 at 158. ANALYSIS Claimant has failed to establish there is a change of condition not contemplated at the time the settlement agreement was approved. The treating physician, Dr. Wheeler, determined claimant's shoulder condition in April of 1988, was "essentially unchanged." Likewise, Dr. Wheeler's impairment rating remained unchanged from the rating agreed upon in claimant's settlement agreement. Great weight is accorded to the rating provided by Dr. Wheeler. Dr. Wheeler, an orthopedic surgeon, had treated claimant from December of 1985 to April of 1988. His treatment necessitated at least 14 separate visits with claimant. During this time frame, Dr. Wheeler had ample opportunity to witness any deterioration in claimant's condition. Dr. Wheeler did not note any additional deteriorations. Moreover, claimant's restrictions were reduced rather than increased. In December of 1985, claimant was restricted from lifting 25 pounds with his right arm and hand. As of May of 1988, Dr. Wheeler modified claimant's restrictions. Claimant could lift as much as 40 pounds. While there are separate impairment ratings from Dr. Woolbrink of 15 percent and from Dr. Bower of 10 percent, these ratings seem to be nothing more.than "differences in expert opinion regarding degree of impairment stemming from the original injury." Bousfield, supra. Neither physician discussed a change of physical condition not contemplated by the parties. Dr. Fleming notes claimant has only been experiencing stiffness but not pain or numbness. There is some discussion concerning whether claimant has thoracic outlet syndrome. However, no medical expert causally connects the syndrome to claimant's right shoulder injury. Likewise, while there are restrictions placed upon claimant's use of his right shoulder, no physician has determined claimant is incapable of performing his duties at defendant's establishment. Claimant's decision to return to school for vocational training is a decision made by him. It is not a decision mandated by a physician. It is a purely voluntary endeavor. Therefore, in light of the foregoing, it is the determination of the undersigned that claimant has not established he is entitled to additional benefits for the injury to his right shoulder. With respect to the hand injury, Dr. Wheeler determined claimant had a functional impairment to the hand in the amount of 5 percent. Dr. Woolbrink determined claimant has a 10 percent impairment to the upper extremity. This rating translates to 11 percent of the hand. Dr. Ferlic, the treating surgeon, rated claimant as having a 5 percent functional impairment. He concurred with the opinion of Dr. Wheeler. Mr. Bower did not provide a rating, although he determined claimant's grip strength on the right hand was 68 percent of the grip strength on the left hand. Therefore, based upon the foregoing and based upon: 1) the personal observation of claimant; 2) agency expertise (Iowa Administrative Procedures Act 17A.14(s)); and, 3) claimant's testimony, the undersigned finds the claimant,has a 7 percent permanent partial disability to the hand as a result of his injury on June 17, 1987. As far as healing period is concerned the parties stipulated that claimant was properly paid for benefits for 12.5 weeks. Claimant is not requesting additional healing period benefits. FINDINGS OF FACT AND CONCLUSIONS OF LAW FINDING 1. Claimant and defendant entered into a settlement agreement on April 1, 1986, relative to file number 812510 whereby claimant received payment for 5 percent permanent partial disability of the upper extremity. FINDING 2. Subsequent to engaging in the settlement agreement for file number 812510, there was not a worsening of claimant's shoulder condition. CONCLUSION A. Claimant has not established he is entitled to additional benefits for his right shoulder. CONCLUSION B. Claimant takes nothing additional as a result of file number 812510. FINDING 3. As a result of his injury on June 17, 1987, claimant.sustained an injury to his right hand. FINDING 4. As a result of his injury on June 17, 1987, claimant sustained a functional impairment to his right hand. CONCLUSION C. As a result of his injury on June 17, 1987, claimant sustained a 7 percent permanent partial disability to his right hand. ORDER THEREFORE, defendant is to pay unto claimant on file number 872756 thirteen point three (13.3) weeks of permanent partial disability benefits at the stipulated rate of two hundred sixteen and 29/100 dollars ($216.29) per week as a result of the injury on June 17, 1987. Defendant is to pay unto claimant on file number 872756 twelve point five-seven-one (12.571) weeks of healing period benefits at the stipulated rate of two hundred sixteen and 29/100 dollars ($216.29) per week as a result of the injury on June 17, 1987. Payments that have accrued shall be paid in a lump sum together with statutory interest thereon pursuant to Iowa Code section 85.30. Defendant shall take credit for benefits previously paid. Defendant shall file a claim activity report upon payment of this award. Costs of this action are assessed against defendants pursuant to Division of Industrial Services Rule 343-4.33. Signed and filed this 1st day of July, 1989. MICHELLE A. McGOVERN DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Harry H. Smith Mr. Dennis M. McElwain Attorneys at Law P. 0. Box 1194 Sioux,City, Iowa 51102 Mr. David L. Sayre Attorney at Law 223 Pine St. P. 0. Box 535 Cherokee, Iowa 51012 5-2404; 5-1402.20; 5-1803.1 Filed July 31, 1989 MICHELLE A. McGOVERN BEFORE THE IOWA INDUSTRIAL COMMISSIONER ROBERT FRANGENBERG, File Nos. 812510 & 872756 Claimant, R E V I E W - vs. R E 0 P E N I N G WILSON FOODS CORPORATION, A N D Employer, A R B I T R A T I 0 N Self-Insured, Defendant. D E C I S I 0 N 5-2404; 5-1402.20 Claimant did not prove by a preponderance of the evidence there was a change of condition not contemplated by the parties. 5-1803.1 Claimant awarded a 7 percent disability to the right hand as a result of a cumulative injury.