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.