before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            VICKI DENEKAS,                :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :         File Nos. 794353
 
            AALFS MANUFACTURING COMPANY,  :                   823077
 
                                          :
 
                 Employer,                :      A R B I T R A T I O N
 
                                          :
 
            and                           :         D E C I S I O N
 
                                          :
 
            THE HARTFORD INSURANCE        :
 
            COMPANY and EMPLOYERS MUTUAL  :
 
            COMPANIES,                    :
 
                                          :
 
                 Insurance Carriers,      :
 
                                          :
 
            and                           :
 
                                          :
 
            SECOND INJURY FUND OF IOWA,   :
 
                                          :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 These are proceedings in arbitration upon claimant's 
 
            petitions filed June 26, 1986 (794353) and October 21, 1986 
 
            (823077).
 
            
 
                 In file number 794353, claimant allegedly sustained an 
 
            injury to her wrist (carpal tunnel syndrome) on May 7, 1985 
 
            and now seeks benefits under the Iowa Workers' Compensation 
 
            Act from her employer, Aalfs Manufacturing Company, and its 
 
            insurance carrier at that time, Employers Mutual Insurance 
 
            Company.
 
            
 
                 In case number 823077, claimant sustained an injury to 
 
            her shoulder on April 14, 1986 and seeks benefits under the 
 
            Iowa Workers' Compensation Act from Aalfs and its then 
 
            insurance carrier, The Hartford Insurance Company.  In 
 
            addition, she seeks Second Injury Fund benefits from the 
 
            Second Injury Fund of Iowa.
 
            
 
                 Hearing on these consolidated matters was had in Sioux 
 
            City, Iowa, on March 1, 1990.  In addition to claimant's 
 
            testimony, the record consists of joint exhibits 1 through 
 
            77 [including a videotape deposition marked 76(a)], 
 
            claimant's exhibits 8 and 10 and Second Injury Fund's 
 
            exhibits A and B.  Claimant also offered exhibits 5 and 6 
 
            subject to objection; ruling was reserved.  The objections 
 

 
            
 
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            are now overruled and claimant's exhibits 5 and 6 received 
 
            into evidence.
 
            
 
                 Official notice is hereby taken of the pleadings, 
 
            orders, motions and prehearing conference notes contained in 
 
            the legal file.  The parties have not been given an 
 
            opportunity to object, but it is hereby found that fairness 
 
            to the parties does not require such an opportunity.  Iowa 
 
            Code section 17A.14(4).
 
            
 
                                      issues
 
            
 
                 Pursuant to the prehearing report in case number 
 
            794353, the parties have stipulated:  that an employment 
 
            relationship existed between claimant and Aalfs at the time 
 
            of the alleged injury; that claimant seeks temporary total 
 
            disability or healing period benefits from May 8 through 
 
            October 28, 1985; that the proper rate of weekly 
 
            compensation is $111.53; that affirmative defenses are 
 
            waived; that defendants paid 17 weeks, 5 days of 
 
            compensation at the stipulated rate prior to hearing.
 
            
 
                 Issues presented for resolution in case number 794353 
 
            include:  whether claimant sustained an injury arising out 
 
            of and in the course of her employment on May 7, 1985; 
 
            whether the alleged injury caused temporary or permanent 
 
            disability, the extent of each and the nature of the latter; 
 
            the extent of claimant's entitlement to medical benefits (it 
 
            being stipulated that the fees charged for medical services 
 
            or supplies are fair and reasonable, and that the providers 
 
            would testify in the absence of contrary evidence that the 
 
            treatment was reasonable and necessary, but causal 
 
            connection to the work injury and authorization by 
 
            defendants are disputed); taxation of costs.
 
            
 
                 Pursuant to the prehearing report in case number 
 
            823077, the parties have stipulated:  that claimant 
 
            sustained an injury arising out of and in the course of her 
 
            employment with Aalfs on April 14, 1986; that the injury 
 
            caused temporary and permanent disability; that the 
 
            appropriate rate of weekly compensation is $117.04; that 
 
            defendants paid $11,611.97 denominated as temporary or 
 
            healing period benefits, $1,437.13 denominated permanent 
 
            partial disability benefits and $7,033.00 in medical 
 
            benefits prior to hearing.
 
            
 
                 Issues presented for resolution in case number 823077 
 
            include:  the extent of claimant's entitlement to 
 
            compensation for temporary and permanent disability and the 
 
            nature and commencement date of the latter; the extent of 
 
            claimant's entitlement to medical benefits (it being 
 
            stipulated that the fees charged for medical services or 
 
            supplies are fair and reasonable, but it is disputed whether 
 
            those expenses were incurred for reasonable and necessary 
 
            treatment, whether they are causally connected to the work 
 
            injury or whether they were authorized by defendants); 
 
            Second Injury Fund liability; taxation of costs.
 
            
 

 
            
 
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                 It has long been held that defendants cannot deny 
 
            liability on the claim and also guide the course of 
 
            treatment or assert authorization as a defense.  Barnhart v. 
 
            MAQ, Inc., I Iowa Industrial Commissioner Report 16 (1981).  
 
            In case number 794353, defendants have never conceded 
 
            liability.  It is therefore held that they are not entitled 
 
            to assert a defense based on lack of authorization.  In case 
 
            number 823077, defendants filed an answer specifically 
 
            denying an injury arising out of and in the course of 
 
            employment.  Defendants Aalfs and Hartford continued to deny 
 
            liability until the prehearing conference held on August 2, 
 
            1989, at which time they conceded that claimant had 
 
            sustained an injury arising out of and in the course of 
 
            employment.  It is held that those defendants are not 
 
            entitled to assert the defense of lack of authorization from 
 
            the date of injury through August 1, 1989.  Defendant Second 
 
            Injury Fund of Iowa continued to deny that claimant 
 
            sustained an injury arising out of and in the course of 
 
            employment, but has no liability for medical expenses in any 
 
            event.
 
            
 
                                 findings of fact
 
            
 
                 The undersigned deputy, having heard the testimony and 
 
            considered all of the evidence, finds:
 
            
 
                 Claimant was born on June 1, 1946 and was 43 years of 
 
            age on the date of hearing.  She completed the ninth grade 
 
            and part of tenth grade.
 
            
 
                 Claimant has worked as a dime store clerk, a waitress, 
 
            a sandwich maker for a fast food enterprise, a parts 
 
            solderer for an electronics firm, a bar maid, a cook's 
 
            helper, a baby-sitter, and a seamstress for two enterprises, 
 
            including Aalfs intermittently since 1965.  Her seamstress 
 
            work with Aalfs is the highest level of vocational 
 
            functioning in claimant's work history.  She is apparently 
 
            of average to low average intelligence and upon vocational 
 
            testing (GATB-VG test) by the Iowa Division of Job Service, 
 
            was shown to score in the following percentiles:  Job Family 
 
            I (set-up; supervisory) -- 21; Job Family II (feeding; 
 
            offbearing) -- 6; Job Family III (professional; supervisory) 
 
            -- 31; Job Family IV (clerical; skilled trades) -- 17; Job 
 
            Family V (semi-skilled) -- 9.  However, Secretary I Kay F.  
 
            Christiansen of Job Service wrote on July 6, 1989 that many 
 
            people can successfully perform on the job even with low Job 
 
            Family scores.
 
            
 
                 Claimant has suffered numerous injuries during her 
 
            lifetime.  She was thrown through an automobile windshield 
 
            in a collision at age 5.  She seriously injured her hip at 
 
            about age 12, resulting in a hip replacement in 1960 
 
            repeated in 1983.  She underwent a meniscectomy to the left 
 
            knee in 1984, broke her large toe in an automobile accident 
 
            in 1989, damaged her knee when she fell from a retaining 
 
            wall eight or nine years ago, and injured her left foot when 
 
            she accidentally caught it in a loop of rope, then got in a 
 
            car and the other end of the rope was caught as the car 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            
 
            
 
            moved away.
 
            
 
                 In addition, claimant has alleged the work injuries now 
 
            under review.
 
            
 
                 Beginning in early 1985, claimant began developing 
 
            feelings of numbness and tingling in the right arm and 
 
            wrist.  On May 7 of that year, her hand slipped while she 
 
            was cleaning a machine and she struck her index and middle 
 
            finger and knuckles.  She developed pain and a knot between 
 
            those joints described as the size of a pencil eraser.
 
            
 
                 Claimant was first seen by Thomas L. Duncan, M.D., who 
 
            treated her with a splint and physical therapy, eventually 
 
            referring her to Mark Wheeler, M.D.  In a supplemental 
 
            report dated October 2, 1985, Dr. Duncan reported that 
 
            claimant was able to work part-time October 1 and full-time 
 
            October 8, 1985.  He anticipated no further duration of 
 
            disability unless further problems occurred, but in another 
 
            supplemental report of November 5, 1985, referred the 
 
            question of permanent disability to Dr. Wheeler.
 
            
 
                 Dr. Wheeler, a board-certified orthopaedic surgeon, 
 
            testified by deposition taken May 5, 1988.  He first saw 
 
            claimant in March 1985 upon referral for evaluation of left 
 
            hip and knee pain and then in July for right hand 
 
            complaints.  Following additional nerve conduction tests, he 
 
            diagnosed carpal tunnel syndrome and performed a surgical 
 
            release on August 1, 1985.
 
            
 
                 It is unclear whether Dr. Wheeler himself returned 
 
            claimant to work as opposed to Dr. Duncan.  In any event, 
 
            Dr. Wheeler wrote on October 30 that claimant had been seen 
 
            again on October 28 when she began getting paresthesias in 
 
            the index finger after she felt something pop while using 
 
            her hand heavily at work, so she had obviously returned to 
 
            work sometime before.  Claimant was given a new work release 
 
            to full duty employment effective October 29, 1985.
 
            
 
                 Dr. Wheeler's chart notes of August 12, 1985 reflect 
 
            that claimant's wound was healing well with almost complete 
 
            resolution of symptoms and that she was given a no-work slip 
 
            stating:  "May not return to work for 4 wks."
 
            
 
                 Dr. Duncan's report of July 8, 1985 notes his view that 
 
            claimant's carpal tunnel syndrome happened at work, working 
 
            with fingers and hands.  No physician has expressed a 
 
            contrary view.  No physician has indicated that claimant 
 
            sustained permanent disability by reason of her carpal 
 
            tunnel release.  Claimant testified that her hands still 
 
            bothered her through April 1986, although she was able to 
 
            continue performing her job.  Fingers became numb or tingly 
 
            if she had to stretch fabric.
 
            
 
                 On February 17, 1986, claimant complained to Dr. Duncan 
 
            of tenderness in the right shoulder and anti-inflammatories 
 
            were prescribed at that time.  Claimant had suffered 
 
            intermittent shoulder problems for approximately one year.  
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            
 
            
 
            During the three weeks prior to April 14, claimant's 
 
            shoulder symptoms became worse as she continued to work.  On 
 
            April 14, she suffered an incident when a cart stacked with 
 
            blue jeans began to roll away and claimant grabbed it with 
 
            her right arm, suffering immediate sharp pains to the right 
 
            shoulder radiating to the hand.  D. E. Doorenbos, M.D., an 
 
            associate of Dr. Duncan, saw claimant on that date.  In a 
 
            surgeon's report dated May 23, he indicated his belief that 
 
            his diagnosis of rotator cuff tendonitis was work related.  
 
            Dr. Doorenbos released claimant for light duty on June 6 and 
 
            discharged her on June 26 (a surgeon's report of that date 
 
            also expressed his view that tendonitis of the right 
 
            shoulder was caused or aggravated by machine operation) and 
 
            believed her prognosis good, although lifting should be 
 
            limited to less than ten pounds on a repetitive basis.
 
            
 
                 On April 30, 1986, claimant saw Dr. Wheeler for her 
 
            shoulder pain.  He testified that claimant had been off work 
 
            for two weeks, but that symptoms returned when she attempted 
 
            to resume employment.  Pain was localized to the tip of the 
 
            shoulder.
 
            
 
                 Over the next several months, Dr. Wheeler continued to 
 
            see claimant, although he was following her more for hip 
 
            complaints at that time.  In January 1987, claimant began 
 
            complaining more again of the right shoulder and, at this 
 
            time, of her neck.  An arthrogram performed on May 4, 1987 
 
            showed a tear of rotator cuff muscles, following which Dr. 
 
            Wheeler performed surgery on June 23, 1987.
 
            
 
                 The surgical procedure was described as repair of 
 
            rotator cuff with anterior acromioplasty and resection of 
 
            coracoacromial ligament based on pre- and post-operative 
 
            diagnoses of right shoulder rotator cuff tear.  Dr. 
 
            Wheeler's surgical report reflects that the acromion was 
 
            beveled back from the anterior aspect posteriorly and 
 
            laterally and the coracoacromial ligament was resected.  
 
            Rotator cuff muscles at the supraspinatus insertion were 
 
            pulled back 2-3 centimeters.  Clearly, the surgical 
 
            procedure extended beyond the upper extremity and into 
 
            claimant's body as a whole.
 
            
 
                 Claimant's shoulder was immobilized for a time, but 
 
            physical therapy was eventually prescribed.  On March 3, 
 
            1988, Dr. Wheeler's chart notes reflect that claimant could 
 
            return to work as of the next week with no lifting greater 
 
            than 20 pounds and no working above shoulder level.  On 
 
            March 4, a written work release was sent to claimant 
 
            permitting her to return to work as of March 7 with no 
 
            lifting greater than 20 pounds with the right arm and no 
 
            working above the shoulder.  In addition, restrictions that 
 
            applied to her hip as to no prolonged standing or walking 
 
            still applied and were permanent in nature.  It is not 
 
            claimed that the hip problems relate to the injury under 
 
            review.  However, due to the range of restrictions imposed, 
 
            Aalfs did not accept claimant back as an employee.
 
            
 
                 Dr. Wheeler's chart notes of April 30, 1986 reflect his 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            
 
            
 
            view that claimant's right shoulder pain was associated with 
 
            her work, which called for reaching and lifting.  However, 
 
            he understood that she had no history of previous such 
 
            problems beyond the past several weeks.
 
            
 
                 On March 10, 1988, Dr. Wheeler wrote claimant's 
 
            attorney that she lacked some motion of the shoulder and 
 
            pursuant to American Medical Association guidelines had a 
 
            five percent permanent partial impairment of the upper 
 
            extremity.
 
            
 
                 Dr. Wheeler's chart notes of March 20, 1989 reflect 
 
            that claimant's shoulder was doing very well with minimal 
 
            complaints of pain.  Most of her complaints were with the 
 
            neck, which had been going on for several years and 
 
            gradually getting worse.  She had limited motion of the neck 
 
            in all directions and x-rays showed significant C5-6 disc 
 
            degeneration.  In a letter dated September 11, 1989, Dr. 
 
            Wheeler noted that claimant's previous total hip replacement 
 
            prevented her from prolonged walking, standing or carrying 
 
            greater than 15-20 pounds on a regular basis and that the 
 
            rotator cuff repair limited her ability to work above 
 
            shoulder level or to do heavy lifting greater than 10-20 
 
            pounds with that arm; repetitive use of the shoulder was 
 
            likely to aggravate symptoms.  He further noted that 
 
            claimant had been followed for degenerative disc disease 
 
            which caused a nerve impingement into the arm and some 
 
            weakness.  Claimant would have difficulty with work calling 
 
            for flexion or extension of the neck.  He wrote:
 
            
 
                 Ideally, the work which she would be suited for 
 
                 would be a sedentary desk job.  Stooping, 
 
                 climbing, kneeling and crawling are out of the 
 
                 question.  Work environment handling objects does 
 
                 not enter into this.  Her primary restrictions are 
 
                 also in lifting and carrying.  She should 
 
                 essentially do none of this or expect to do 
 
                 prolonged standing or walking.
 
            
 
                 In a letter dated February 13, 1990, Dr. Wheeler 
 
            expressed his view that claimant's neck pain was the result 
 
            of disc degeneration at C5-6 and not related to her 
 
            employment.
 
            
 
                 Alfredo D. Socarras, M.D., a neurologist, performed a 
 
            neurological examination of claimant on February 5, 1990.  
 
            He found motions of the shoulders to be essentially normal 
 
            and motions of the neck essentially normal, but claimant 
 
            resisted extreme flexion.  He could not find any objective 
 
            evidence of radicular involvement and opined that claimant's 
 
            symptoms were on a muscle skeletal basis.  From the 
 
            neurological standpoint, he found no impairment and did not 
 
            feel that mild degenerative changes at C5 and C6 were the 
 
            cause of claimant's symptomatology.  Dr. Socarras did not 
 
            express a view as to whether the "muscle skeletal" symptoms 
 
            were related to the subject work injury.
 
            
 
                 Claimant was seen at the University of Iowa Hospitals 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            
 
            
 
            and Clinics, Department of Neurology.  Chart notes of John 
 
            R. Absher, M.D., dated April 27, 1989 reflect (as best as 
 
            can be told given some difficult handwriting) that one and 
 
            one-half months before, claimant had looked around at a 
 
            lecture and complained of subsequent neck pain.  On May 6, 
 
            1989, Dr. Absher wrote that EMG/NCV testing reflected no 
 
            evidence of neurological impairment and that the cause of 
 
            claimant's pain was less likely to be due to a neurologic 
 
            problem than a musculoskeletal problem and that claimant's 
 
            lower extremity symptoms could be related to radiculopathy.
 
            
 
                 Claimant was also evaluated by Michael J. Morrison, 
 
            M.D.  Dr. Morrison wrote on December 22, 1988 that cervical 
 
            x-rays revealed degenerative disc disease at C5-C6.  Based 
 
            on his impression of (1) degenerative disc disease, C5-C6, 
 
            (2) status postop left total hip replacement, (3) status 
 
            postop carpal tunnel release, right, (4) status postop 
 
            rotator cuff repair, right shoulder, and (5) status postop 
 
            total lateral meniscectomy, left knee, Dr. Morrison 
 
            recommended restrictions against prolonged walking or 
 
            standing due to the hip replacement along with jumping or 
 
            running, avoidance of frequent use of the arm overhead due 
 
            to the right shoulder surgery, and expressed the view that 
 
            claimant had sustained a 5-10 percent impairment of the 
 
            right upper extremity.
 
            
 
                 Claimant was also seen for evaluation by Gene 
 
            Montgomery, M.D., on November 22, 1985.  Dr. Montgomery 
 
            wrote on December 14 of that year of his impression:  (1) 
 
            degenerative disc disease C5, C6 region; (2) status post 
 
            lateral meniscectomy of left knee; (3) status post left 
 
            total hip replacement and revision; (4) status post carpal 
 
            tunnel release on the right wrist; (5) status post rotator 
 
            cuff repair right shoulder; (6) left pes anserine bursitis; 
 
            (7) myofascial pain syndrome.  He assigned a 5-10 percent 
 
            whole body disability impairment for the right shoulder and 
 
            recommended restrictions against prolonged walking or 
 
            standing, running or jumping due to the hip, against 
 
            squatting or repetitive climbing of stairs or ladders and 
 
            crawling by reason of the pes anserine bursitis, against 
 
            frequent repetitive overhead lifting or lifting of any 
 
            significant weights over five pounds due to the right 
 
            shoulder, and against bending with the neck and head forward 
 
            due to her cervical problems.  In addition, he felt that any 
 
            activities which would require claimant to work with the 
 
            arms in a forward extended position would have significant 
 
            tendency for exacerbation of the triggers in the 
 
            parascapular region and felt that seamstress work would 
 
            exacerbate those symptoms significantly.  In particular, he 
 
            believed that claimant would not be able to work for any 
 
            prolonged period greater than 7-10 minutes with the head 
 
            tilted or the arms in an extended position.  Dr. Montgomery 
 
            did not express a view as to whether claimant's cervical 
 
            problems bore any relationship to the work injury.
 
            
 
                 Claimant has also undergone rather substantial 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            
 
            
 
            vocational rehabilitation evaluation.  However, this 
 
            evidence is of limited value in the present case because so 
 
            many of claimant's restrictions do not relate to the 
 
            shoulder injury as opposed to her hip replacement and 
 
            cervical problems.
 
            
 
                 Claimant also seeks certain medical bills under Iowa 
 
            Code section 85.27 as set forth in her exhibit 8.
 
            
 
                 Wayne R. Meylor, D.C., submitted bills totalling 
 
            $1,536.84 for numerous spinal adjustments, electrical 
 
            stimulations, hydrocolator packs, examinations and 
 
            ultrasound treatments along with various braces and devices 
 
            during 1988.  It is impossible to determine from Dr. 
 
            Meylor's billings what portion thereof relates to the 
 
            shoulder injury.
 
            
 
                 James T. Rogers, M.S., submitted a bill of $530.00 for 
 
            his vocational rehabilitation evaluation and services 
 
            associated therewith.  This is not a medical bill.
 
            
 
                 Dr. Montgomery submitted a bill of $100.00 for his 
 
            evaluation.
 
            
 
                 Dr. Morrison submitted a bill of $150.00, $100.00 of 
 
            which related to examination and x-rays and $50.00 of which 
 
            was for his report.
 
            
 
                 Dr. Wheeler submitted a bill of $50.00 for his letter 
 
            rating claimant's impairment.
 
            
 
                 West Dodge Neurologic Clinic submitted a bill of 
 
            $200.00 for NCV and EMG testing on August 12, 1988.  The 
 
            record does not reflect what physician ordered this testing 
 
            or for what purpose.
 
            
 
                                conclusions of law
 
            
 
                 Claimant has the burden of proving by a preponderance 
 
            of the evidence that she received injuries on or about May 
 
            7, 1985 and April 14, 1986 which arose out of and in the 
 
            course of her employment. McDowell v. Town of Clarksville, 
 
            241 N.W.2d 904 (Iowa 1976); Musselman v. Cent. Tel. Co., 261 
 
            Iowa 352, 154 N.W.2d 128 (1967). 
 
            
 
                 The injury must both arise out of and be in the course 
 
            of the employment.  Crowe v. DeSoto Consol. School Dist., 
 
            246 Iowa 402, 68 N.W.2d 63 (1955) and cases cited at pp. 
 
            405-406 of the Iowa Report.  See also Sister Mary Benedict 
 
            v. St. Mary's Corp., 255 Iowa 847, 124 N.W.2d 548 (l963) and 
 
            Hansen v. State of Iowa, 249 Iowa 1147, 91 N.W.2d 555 
 
            (1958).
 
            
 
                 The words "out of" refer to the cause or source of the 
 
            injury.  Crowe v. DeSoto Consol. School Dist., 246 Iowa 402, 
 
            68 N.W.2d 63 (1955). 
 
            
 
                 The words "in the course of" refer to the time and 
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            
 
            
 
            place and circumstances of the injury.  McClure v. Union, 
 
            et al., Counties, 188 N.W.2d 283 (Iowa 1971); Crowe v. 
 
            DeSoto Consol. School Dist., 246 Iowa 402, 68 N.W.2d 63 
 
            (1955).
 
            
 
                 The supreme court of Iowa in Almquist v. Shenandoah 
 
            Nurseries, 218 Iowa 724, 731-32, 254 N.W. 35, 38 (1934) 
 
            discussed the definition of personal injury in workers' 
 
            compensation cases as follows:
 
            
 
                 While a personal injury does not include an 
 
                 occupational disease under the Workmen's 
 
                 Compensation Act, yet an injury to the health may 
 
                 be a personal injury.  [Citations omitted.]  
 
                 Likewise a personal injury includes a disease 
 
                 resulting from an injury....The result of changes 
 
                 in the human body incident to the general 
 
                 processes of nature do not amount to a personal 
 
                 injury.  This must follow, even though such 
 
                 natural change may come about because the life has 
 
                 been devoted to labor and hard work.  Such result 
 
                 of those natural changes does not constitute a 
 
                 personal injury even though the same brings about 
 
                 impairment of health or the total or partial 
 
                 incapacity of the functions of the human body. 
 
            
 
                    ....
 
                 
 
                 A personal injury, contemplated by the Workmen's 
 
                 Compensation Law, obviously means an injury to the 
 
                 body, the impairment of health, or a disease, not 
 
                 excluded by the act, which comes about, not through the 
 
                 natural building up and tearing down of the human body, 
 
                 but because of a traumatic or other hurt or damage to 
 
                 the health or body of an employee.  [Citations 
 
                 omitted.]  The injury to the human body here 
 
                 contemplated must be something, whether an accident or 
 
                 not, that acts extraneously to the natural processes of 
 
                 nature, and thereby impairs the health, overcomes, 
 
                 injures, interrupts, or destroys some function of the 
 
                 body, or otherwise damages or injures a part or all of 
 
                 the body.
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injuries on or about 
 
            May 7, 1985 and April 14, 1986 are causally related to the 
 
            disability on which she now bases her claim.  Bodish v. 
 
            Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).  Lindahl 
 
            v. L. 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 Hosp., 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 
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
            
 
            
 
            connection.  Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion 
 
            of experts need not be couched in definite, positive or 
 
            unequivocal language.  Sondag v. Ferris Hardware, 220 N.W.2d 
 
            903 (Iowa 1974).  However, the expert opinion may be 
 
            accepted or rejected, in whole or in part, by the trier of 
 
            fact.  Id. at 907.  Further, the weight to be given to such 
 
            an opinion is for the finder of fact, and that may be 
 
            affected by the completeness of the premise given the expert 
 
            and other surrounding circumstances.  Bodish, 257 Iowa 516, 
 
            133 N.W.2d 867.  See also Musselman v. Cent. Tel. Co., 261 
 
            Iowa 352, 154 N.W.2d 128 (1967).
 
            
 
                 File number 794353 will be first discussed.  Defendants 
 
            deny that claimant sustained an injury arising out of and in 
 
            the course of her employment.  However, the record is 
 
            absolutely clear that claimant was diagnosed and underwent a 
 
            surgical release for carpal tunnel syndrome on the right 
 
            side.  Claimant's testimony that she struck her hand and 
 
            developed a knot between two fingers on May 7, 1985 is 
 
            credible and unrefuted.  Dr. Duncan has opined that 
 
            claimant's injury occurred at work.  No contrary medical 
 
            evidence exists in this record.  It is held that claimant 
 
            has met her burden of proof in establishing an injury, 
 
            carpal tunnel syndrome, arising out of, in the course of and 
 
            causally connected to her employment on May 7, 1985.
 
            
 
                 No expert evidence in this record establishes that 
 
            claimant sustained permanent disability resulting from her 
 
            surgical release.  Accordingly, none is awarded.  Pursuant 
 
            to Iowa Code sections 85.32 and 85.33, temporary disability 
 
            extending beyond fourteen days is compensable until the 
 
            employee has returned to work or is medically capable of 
 
            returning to substantially similar employment, whichever 
 
            first occurs.  Claimant was released to return to work 
 
            October 1, 1985.  Therefore, she is entitled to temporary 
 
            total disability benefits from May 7 through October 1, 
 
            1985, totalling 21 weeks, 1 day.
 
            
 
                 The record does not reflect that the medical bills for 
 
            which claimant seeks an award are related to her carpal 
 
            tunnel syndrome as opposed to her shoulder injury.  
 
            Therefore, no medical benefits are awarded in case number 
 
            794353.
 
            
 
                 In case number 823077, the parties have stipulated that 
 
            claimant sustained an injury arising out of and in the 
 
            course of employment that caused both temporary and 
 
            permanent disability, although the extent of each remains 
 
            disputed.
 
            
 
                 Under Iowa Code section 85.34(1), healing period is 
 
            compensable beginning on the date of injury and until the 
 
            employee has returned to work, it is medically indicated 
 
            that significant improvement from the injury is not 
 
            anticipated, or until the employee is medically capable of 
 
            returning to substantially similar employment, whichever 
 
            first occurs.
 
            
 

 
            
 
            Page  11
 
            
 
            
 
            
 
            
 
            
 
            
 
                 Claimant has not returned to work and the evidence 
 
            shows that she is not expected to ever become medically 
 
            capable of returning to substantially similar employment.  
 
            Therefore, her healing period must be held to end at such 
 
            time as it is medically indicated that significant 
 
            improvement from the injury is not anticipated.  Claimant 
 
            was essentially off work from April 14, 1986, underwent a 
 
            surgical repair on June 23, 1987 (following an arthrogram on 
 
            May 4 of that year) and was released to return to work with 
 
            certain restrictions on March 3, 1988.  On March 10 of that 
 
            year, Dr. Wheeler assessed claimant as having sustained a 
 
            five percent permanent partial impairment of the upper 
 
            extremity, which implies that maximum healing had been 
 
            attained, since otherwise an impairment rating is premature.  
 
            This apparently relates back to the March 3 release.  It is 
 
            therefore held that claimant is entitled to healing period 
 
            benefits from June 26, 1986 through March 3, 1988, totalling 
 
            88 weeks, 1 day.
 
            
 
                 The parties dispute the nature of claimant's permanent 
 
            disability, whether it be a scheduled member disability or a 
 
            disability to the body as a whole.  The surgical treatment 
 
            of claimant's shoulder extended beyond the arm into the body 
 
            as a whole.  Her remaining symptoms include a loss of range 
 
            of motion and pain in the body.  Claimant's injury is to the 
 
            body as a whole and not merely the arm; it must be 
 
            compensated industrially rather than as a scheduled member 
 
            injury.  Lauhoff Grain v. McIntosh, 395 N.W.2d 834 (Iowa 
 
            1986); Roach v. Firestone Tire & Rubber Co., file number 
 
            806034 (App. Decn., August 24, 1989).
 
            
 
                 Section 85.64 of The Iowa Code provides, in pertinent 
 
            part:
 
            
 
                 If an employee who has previously lost, or lost 
 
                 the use of, one hand, one arm, one foot, one leg, 
 
                 or one eye, becomes permanently disabled by a 
 
                 compensable injury which has resulted in the loss 
 
                 of or loss of use of another such member or organ, 
 
                 the employer shall be liable only for the degree 
 
                 of disability which would have resulted from the 
 
                 latter injury if there had been no pre-existing 
 
                 disability.
 
            
 
                 Claimant's injury has been found to affect the body as 
 
            a whole and not "another such member or organ" as set forth 
 
            in the statute.  Therefore, no Second Injury Fund liability 
 
            is triggered on this claim.
 
            
 
                 Many of claimant's symptoms and medical restrictions 
 
            relate to her cervical complaints.  There is a conflict in 
 
            the medical record as to whether those complaints are 
 
            neurological or musculoskeletal in nature.  Dr. Wheeler, the 
 
            treating surgeon, has opined that claimant's cervical 
 
            problems do not relate to her employment.  While two 
 
            neurologists have opined that claimant's cervical problems 
 
            relate to musculoskeletal problems as opposed to 
 
            neurological impairment, neither relate those symptoms to 
 

 
            
 
            Page  12
 
            
 
            
 
            
 
            
 
            
 
            
 
            the subject work injury.  Therefore, regardless of whether 
 
            those symptoms be deemed neurological or musculoskeletal in 
 
            nature, claimant has failed to meet her burden of proof in 
 
            establishing that they bear a causal relationship to the 
 
            subject work injury.  It is also significant that the first 
 
            complaints of cervical pain are far removed in time from the 
 
            initial injury.
 
            
 
                 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, expe
 
            rience and inability to engage in employment for which he is 
 
            fitted.  Olson v. Goodyear Service Stores, 255 Iowa 1112, 
 
            125 N.W.2d 251 (1963).  Barton v. Nevada Poultry, 253 Iowa 
 
            285, 110 N.W.2d 660 (1961).
 
            
 
                 A finding of impairment to the body as a whole found by 
 
            a medical evaluator does not equate to industrial disabil
 
            ity.  This is so as impairment and disability are not syn
 
            onymous.  Degree of industrial disability can in fact be 
 
            much different than the degree of impairment because in the 
 
            first instance reference is to loss of earning capacity and 
 
            in the latter to anatomical or functional abnormality or 
 
            loss.  Although loss of function is to be considered and 
 
            disability can rarely be found without it, it is not so that 
 
            a degree of industrial disability is proportionally related 
 
            to a degree of impairment of bodily function.
 
            
 
                 Factors to be considered in determining industrial dis
 
            ability include the employee's medical condition prior to 
 
            the injury, immediately after the injury, and presently; the 
 
            situs of the injury, its severity and the length of healing 
 
            period; the work experience of the employee prior to the 
 
            injury, after the injury and potential for rehabilitation; 
 
            the employee's qualifications intellectually, emotionally 
 
            and physically; earnings prior and subsequent to the injury; 
 
            age; education; motivation; functional impairment as a 
 
            result of the injury; and inability because of the injury to 
 
            engage in employment for which the employee is fitted.  Loss 
 
            of earnings caused by a job transfer for reasons related to 
 
            the injury is also relevant.  These are matters which the 
 
            finder of fact considers collectively in arriving at the 
 
            determination of the degree of industrial disability.
 
            
 
                 There are no weighting guidelines that indicate how 
 
            each of the factors are to be considered.  There are no 
 
            guidelines which give, for example, age a weighted value of 
 
            ten percent of the total value, education a value of fifteen 
 
            percent of total, motivation - five percent; work experience 
 
            - thirty percent, etc.  Neither does a rating of functional 
 
            impairment directly correlate to a degree of industrial 
 
            disability to the body as a whole.  In other words, there 
 
            are no formulae which can be applied and then added up to 
 
            determine the degree of industrial disability.  It therefore 
 
            becomes necessary for the deputy or commissioner to draw 
 
            upon prior experience, general and specialized knowledge to 
 
            make the finding with regard to degree of industrial dis
 

 
            
 
            Page  13
 
            
 
            
 
            
 
            
 
            
 
            
 
            ability.  See Peterson v. Truck Haven Cafe, Inc., (Appeal 
 
            Decision, February 28, 1985); Christensen v. Hagen, Inc., 
 
            (Appeal Decision, March 26, 1985).
 
            
 
                 Claimant's hip and lower extremity problems and 
 
            cervical problems do not relate to the subject work injury.  
 
            However, claimant has substantial medical restrictions that 
 
            do relate to her shoulder injury.  Dr. Wheeler's work 
 
            release restricted her to lifting no more than 20 pounds 
 
            with the right arm and no working over the shoulder.  He 
 
            also believed that claimant had sustained a five percent 
 
            permanent partial impairment of the upper extremity pursuant 
 
            to the American Medical Association Guides to the Evaluation 
 
            of Permanent Impairment.  Table 3 of that publication shows 
 
            that this is the equivalent of a three percent impairment of 
 
            the whole person.  In September 1989, Dr. Wheeler suggested 
 
            that claimant's rotator cuff repair limited her ability to 
 
            work above shoulder level, do heavy lifting greater than 
 
            10-20 pounds, and noted that repetitive use of the shoulder 
 
            was likely to aggravate symptoms.  Dr. Morrison suggested a 
 
            restriction against frequent use of the arm overhead and 
 
            felt that claimant had sustained a 5-10 percent impairment 
 
            of the right upper extremity.  Dr. Montgomery found that 
 
            claimant had sustained a 5-10 percent impairment of the body 
 
            as a whole and restricted frequent repetitive overhead 
 
            lifting or lifting of any significant weights over five 
 
            pounds.  He also felt that activities which would require 
 
            claimant to work with the arms in a forward extending 
 
            position would have significant tendency for exacerbation of 
 
            triggers in the parascapular region; thus, seamstress work 
 
            would significantly exacerbate her problems.
 
            
 
                 It seems clear that claimant will not be able to return 
 
            to her work as a seamstress irrespective of her other 
 
            limitations relating to the hip and cervical spine.  Aalfs 
 
            has refused to provide claimant further employment due to 
 
            her medical restrictions, which of itself shows increased 
 
            industrial disability.  McSpadden v. Big Ben Coal Co., 288 
 
            N.W.2d 181 (Iowa 1980).  Claimant has only a ninth grade 
 
            education and has worked primarily as a seamstress during 
 
            her career.  Restrictions against working with her arms in 
 
            front of the body would interfere with her ability to work 
 
            as a sandwich maker or a parts solderer, and perhaps to some 
 
            extent as a cook's helper, bar maid, dime store clerk or 
 
            waitress.  Restrictions against lifting more than five or 
 
            ten pounds clearly interfere with her ability to work as a 
 
            baby sitter and obviously limit to a very significant degree 
 
            claimant's ability to find employment in numerous fields of 
 
            endeavor, particularly given her limited education.
 
            
 
                 Considering these factors in specific and the record in 
 
            general, it is held that claimant has sustained a permanent 
 
            partial disability related to her shoulder injury equivalent 
 
            to 65 percent of the body as a whole.  Any additional 
 
            industrial disability has not been established as causally 
 
            related to the subject work injury.  Accordingly, claimant 
 
            shall be awarded 325 weeks of permanent partial disability 
 

 
            
 
            Page  14
 
            
 
            
 
            
 
            
 
            
 
            
 
            commencing March 4, 1988.
 
            
 
                 Claimant also seeks certain medical bills under Iowa 
 
            Code section 85.27.  It is impossible to determine what 
 
            portions of Dr. Meylor's total billing is related to the 
 
            subject injury as opposed to other complaints.  It would be 
 
            unduly speculative to award any of these medical expenses.  
 
            Mr. Rogers submitted a bill for a vocational rehabilitation 
 
            evaluation, which is not a medical bill and not compensable 
 
            under Iowa Code section 85.27.  However, $150.00 of this 
 
            bill can be awarded as court costs for an expert witness, 
 
            see Iowa Code section 622.72.
 
            
 
                 Bills from Drs. Mongtomery, Morrison and Wheeler are 
 
            not assessable under Iowa Code section 85.27 because they 
 
            are for evaluations as opposed to treatment.  Section 85.39 
 
            (evaluations) was not listed as a hearing issue on the 
 
            hearing assignment order and is not presented for 
 
            determination.  However, $50.00 of Dr. Morrison's bill is 
 
            related to his report and all of Dr. Wheeler's bill of 
 
            $50.00 is for his report.  These items can be assessed as 
 
            costs because they are equivalent to expert witness fees.
 
            
 
                 The bill from West Dodge Neurological Clinic has not 
 
            been proven to be causally related to the work injury or 
 
            reasonable and necessary.
 
            
 
                 Accordingly, no medical expenses are awarded, but costs 
 
            shall be treated as set forth above.
 
            
 
                                      order
 
            
 
                 THEREFORE, IN FILE NUMBER 794353, IT IS ORDERED:
 
            
 
                 Defendants Aalfs Manufacturing Company and Employers 
 
            Mutual Insurance Companies shall pay unto claimant 
 
            twenty-one point one four three (21.143) weeks of temporary 
 
            total disability benefits commencing May 7, 1985 at the 
 
            stipulated rate of one hundred eleven and 53/100 dollars 
 
            ($111.53) per week and totalling two thousand three hundred 
 
            fifty-eight and 08/100 dollars ($2,358.08).
 
            
 
                 Defendants shall have credit for all payments made 
 
            voluntarily prior to hearing.
 
            
 
                 As all benefits have accrued, they shall be paid in a 
 
            lump sum with interest pursuant to Iowa Code section 85.30.
 
            
 
                 The costs of this action shall be assessed to 
 
            defendants pursuant to 343 IAC 4.33.
 
            
 
                 Defendants shall file claim activity reports as 
 
            requested by this agency pursuant to 343 IAC 3.1.
 
            
 
                 FURTHER, IN CASE NUMBER 823077, IT IS ORDERED:
 
            
 
                 Claimant shall take nothing from defendant Second 
 
            Injury Fund of Iowa.
 

 
            
 
            Page  15
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
                 Defendants Aalfs Manufacturing Company and The Hartford 
 
            Insurance Company shall pay unto claimant eighty-eight point 
 
            one four three (88.143) weeks of healing period benefits 
 
            commencing April 14, 1986 at the stipulated rate of one 
 
            hundred seventeen and 04/100 dollars ($117.04) per week and 
 
            totalling ten thousand three hundred sixteen and 26/100 
 
            dollars ($10,316.26).
 
            
 
                 Those defendants shall also pay unto claimant three 
 
            hundred twenty-five (325) weeks of permanent partial 
 
            disability benefits commencing March 4, 1988 at the 
 
            stipulated rate of one hundred seventeen and 04/100 dollars 
 
            ($117.04) per week and totalling thirty-eight thousand 
 
            thirty-eight and 00/100 dollars ($38,038.00).
 
            
 
                 Defendants shall have credit for all payments made 
 
            voluntarily prior to hearing.
 
            
 
                 All accrued benefits shall be paid in a lump sum with 
 
            interest pursuant to Iowa Code section 85.30.
 
            
 
                 The costs of this action shall be assessed to 
 
            defendants pursuant to 343 IAC 4.33.
 
            
 
                 Defendants shall file claim activity reports as 
 
            requested by this agency pursuant to 343 IAC 3.1.
 
            
 
                 Signed and filed this ______ day of ____________, 1990.
 
            
 
                 
 
            
 
                 
 
                 
 
                                          ______________________________
 
                                          DAVID RASEY
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Thomas J. Hoffman
 
            Attorney at Law
 
            19 First Avenue NW
 
            P.O. Box 528
 
            Le Mars, Iowa  51031
 
            
 
            Mr. James M. Cosgrove
 
            Attorney at Law
 
            1109 Badgerow Building
 
            P.O. Box 1828
 
            Sioux City, Iowa  51102
 
            
 
            Mr. Brian L. Campbell
 
            Attorney at Law
 
            1100 Des Moines Building
 
            Des Moines, Iowa  50309
 
            
 
            Ms. Shirley Ann Steffe
 

 
            
 
            Page  16
 
            
 
            
 
            
 
            
 
            
 
            
 
            Assistant Attorney General
 
            Tort Claims Division
 
            Hoover State Office Building
 
            Des Moines, Iowa  50319
 
            
 
            
 
 
            
 
 
 
 
 
                           1803; 2906
 
                           Filed December 14, 1990
 
                           DAVID RASEY
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            VICKI DENEKAS,                :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :         File Nos. 794353
 
            AALFS MANUFACTURING COMPANY,  :                   823077
 
                                          :
 
                 Employer,                :      A R B I T R A T I O N
 
                                          :
 
            and                           :         D E C I S I O N
 
                                          :
 
            THE HARTFORD INSURANCE        :
 
            COMPANY and EMPLOYERS MUTUAL  :
 
            COMPANIES,                    :
 
                                          :
 
                 Insurance Carriers,      :
 
                                          :
 
            and                           :
 
                                          :
 
            SECOND INJURY FUND OF IOWA,   :
 
                                          :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
            2906
 
            Official notice of legal file taken without notice to 
 
            parties.  Iowa Code section 17A.14(4).
 
            
 
            1803
 
            Claimant failed to prove permanent disability in scheduled 
 
            member claim (carpal tunnel syndrome).
 
            Forty-three-year-old claimant with ninth grade education and 
 
            work history mostly as a seamstress was awarded 65 percent 
 
            body as a whole following rotator cuff repair (held to be 
 
            body as a whole injury, not arm).  Medical restrictions 
 
            limited lifting to 10 pounds, no working over shoulder 
 
            height and limited repetitive motion of shoulder and working 
 
            with the arms in a forward, extended position.  Defendant 
 
            failed to provide continued employment.
 
            However, claimant failed to prove that her cervical problems 
 
            were related to the shoulder injury.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            CHARLES KIMM,                 :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :         File No. 823137
 
                                          :
 
            AMANA REFRIGERATION, INC.,    :           A P P E A L
 
                                          :
 
                 Employer,                :         D E C I S I O N
 
                                          :
 
            and                           :
 
                                          :
 
            LIBERTY MUTUAL INSURANCE      :
 
            COMPANY,                      :
 
                                          :
 
                 Insurance Carrier,       :
 
                 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.  The decision of the 
 
            deputy filed April 3, 1990, is affirmed and is adopted as 
 
            the final agency action in this case, with the following 
 
            additional analysis:
 
            
 
                 Defendants argue that Dr. LaMorgese's opinion that 
 
            claimant fell 3-4 feet is mere speculation to which no 
 
            weight should be given.  We disagree.  Where no one 
 
            witnessed an event and the claimant has no recall of the 
 
            event, the doctor is in the best position to offer opinion 
 
            testimony as to the likely cause of the trauma that claimant 
 
            received.  Both Dr. LaMorgese and Dr. Caraway speak of a 
 
            likely fall.  Dr. LaMorgese speaks of a fall of from 3-4 
 
            feet; Dr. Caraway of a fall from 4-6 feet.  Claimant was 
 
            found at the bottom of the stairs with his broom leaning on 
 
            the east side of the steps.  The position of the broom and 
 
            the proximity of claimant's body to the steps also support a 
 
            finding that claimant had placed the broom at the steps, 
 
            began to ascend the stairs and, in the course of doing so, 
 
            fell.
 
            
 
                 Defendants argue claimant would not have sustained any 
 
            loss of earnings had his employer not discharged him for 
 
            reasons unrelated to the work injury.  Had claimant remained 
 
            employed with defendant employer, that fact might have had 
 
            some bearing on claimant's ultimate industrial disability.  
 
            Certainly, defendants' willingness to retain claimant 
 
            post-injury is commendable.  Actual earnings and loss of 
 
            earning capacity are not equivalent, however.  An employer's 
 
            willingness to tolerate a less than 100 percent capable 
 
            employee after an injury and an employee's willingness to 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            work with some discomfort after an injury may well reduce 
 
            actual loss of earnings where an employee remains in an 
 
            employer's employ subsequent to an injury.  That fact, while 
 
            entitled to due consideration, does not obviate the reality 
 
            that claimant's ability to compete favorably in the open 
 
            labor market has been reduced as a result of his work 
 
            injury.  The employee's inability to compete as favorably 
 
            subsequent to an injury as the employee could compete prior 
 
            to an injury is the loss of earning capacity for which fair 
 
            compensation is awarded.  The record supports the deputy's 
 
            finding that conditions unrelated to claimant's work injury 
 
            have impacted on his post-injury loss of earning capacity.  
 
            The record also supports the deputy's finding that the work 
 
            injury and its residuals, when coupled with claimant's 
 
            education, training, experience and inherent abilities, have 
 
            of themselves produced a loss of earning capacity equal to 
 
            the 25 percent of the body as a whole awarded.
 
            
 
                 Defendants shall pay the costs of the appeal, including 
 
            the preparation of the hearing transcript.
 
            
 
                 Signed and filed this ____ day of December, 1991.
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                                   BYRON K. ORTON
 
                                              INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Thomas J. Currie
 
            Attorney at Law
 
            3401 Williams Blvd. SW
 
            P.O. Box 998
 
            Cedar Rapids, Iowa  52406-0998
 
            
 
            Mr. Greg A. Egbers
 
            Attorney at Law
 
            600 Union Arcade Building
 
            111 East Third Street
 
            Davenport, Iowa  52801
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                               9999
 
                                               Filed December 4, 1991
 
                                               BYRON K. ORTON
 
                                               MGT
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            CHARLES KIMM,                 :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :         File No. 823137
 
                                          :
 
            AMANA REFRIGERATION, INC.,    :           A P P E A L
 
                                          :
 
                 Employer,                :         D E C I S I O N
 
                                          :
 
            and                           :
 
                                          :
 
            LIBERTY MUTUAL INSURANCE      :
 
            COMPANY,                      :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
            9999
 
            Summary affirmance of deputy's decision filed April 3, 1990, 
 
            with short additional analysis.
 
            
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         
 
         CHARLES KIMM
 
         
 
               Claimant,
 
         
 
         VS.                             File No. 823137
 
         
 
         AMANA REFRIGERATION, INC.,      A R B I T R A T I 0 N
 
         
 
               Employer,                 D E C I S I 0 N
 
         
 
         and
 
         
 
         LIBERTY MUTUAL INSURANCE
 
         COMPANY,
 
         
 
               Insurance Carrier,
 
               Defendants.
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding in arbitration brought by Charles Kimm 
 
         against his former employer, Amana Refrigeration, Inc., and its 
 
         insurance carrier, Liberty Mutual Insurance Company.
 
         
 
              The case was heard and fully submitted at Cedar Rapids, Iowa 
 
         on December 19, 1989.  The record in the proceeding consists of 
 
         testimony from Charles Kimm, Dennis Frimml and Sharon Jones.  The 
 
         record also contains claimant's  exhibit A and defendants' 
 
         exhibits 1 through 38.
 
         
 
                                      ISSUES
 
         
 
              The issues presented by the parties for determination are 
 
         whether claimant sustained an injury on May 14, 1986 which arose 
 
         out of and in the course of his employment with his employer; 
 
         determination of claimant's entitlement to compensation for 
 
         temporary total disability, healing period
 
         or permanent partial disability; and costs.
 
         
 
                               SUMMARY OF EVIDENCE
 
         
 
              All the evidence referred to in the Introduction, as well as 
 
         the demeanor of those who testified at  hearing, was considered 
 
         when deciding this case.  The lack of a reference to any 
 
         particular part of the record does not  indicate that it was 
 
         overlooked.
 
         
 
         
 
         
 
         KIMM v. AMANA REFRIGERATION, INC.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         Page 2
 
         
 
         
 
              Charles Kimm is a 31-year-old divorced man with two 
 
         dependent children who lives at Belle Plaine, Iowa and has lived 
 
         in the Belle Plaine-Marengo area all of his life.  Kimm completed 
 
         the tenth grade and then quit school.  He has no further formal 
 
         education or specialized training.
 
         
 
              Kimm's work history includes work in a cement plant, work in 
 
         a meat packinghouse, farming, roofing, his manufacturing jobs 
 
         with Amana Refrigeration, Inc., and his current job for a seed 
 
         corn company.
 
         
 
              Kimm's health history is remarkable for automobile accidents 
 
         and a stab wound. He had been in an automobile accident in April 
 
         1986 wherein he suffered  some  fractured ribs.  Claimant denies 
 
         injuring his head in that accident and there is no direct 
 
         evidence in the record which indicates that he injured his head 
 
         in any manner in that accident.
 
         
 
              May 14, 1986 was Kimm's first day back at work following 
 
         recuperation from the April automobile accident.  Kimm apparently 
 
         performed his assigned duties throughout most of the day without 
 
         any incident or problem.  At approximately the time of the 
 
         afternoon break, he was assigned to go outside and clean up a 
 
         dock area.  Claimant stated that he started sweeping and the next 
 
         thing he remembers is coming to on a stretcher.  He denied having 
 
         been on the stairs. Kimm was found lying face down, on the cement 
 
         near the bottom of a set of stairs.  There was a small pile of 
 
         sweepings noted.  The broom which he had apparently been using 
 
         was found leaning on the east side of the steps.  When the person 
 
         who found claimant lying on the cement returned from summoning 
 
         assistance, claimant was  up and moving around.  He then had 
 
         claimant sit down while waiting for the nurse to arrive (exhibit 
 
         2).
 
         
 
              The nurse who examined claimant found him to be alert and 
 
         oriented, though a bit fuzzy.  She observed a laceration on the 
 
         top of his left ear, abrasions and swelling above his left ear 
 
         and at the left temporal area of his scalp (exhibit 3).  Claimant 
 
         did not know how the injury had occurred (exhibit 4).
 
         
 
              Dennis Frimml, a supervisor, stated, that approximately 40 
 
         minutes after claimant was placed on a stretcher to be taken from 
 
         the plant, he went back to the dock area where claimant was found 
 
         and could not locate any object which could have hit claimant.
 
         
 
              Claimant was transported by ambulance to a Cedar Rapids 
 
         hospital where he was treated by neurosurgeon James
 
         
 
         
 
         
 
         KIMM v. AMANA REFRIGERATION, INC.
 
         Page 3
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
              LaMorgese, M.D. X-rays of claimant's skull revealed a left 
 
         fronto-parietal skull fracture.  A CT scan of his head revealed 
 
         intracranial hemorrhage on the left side of the head (exhibit 15, 
 
         page 5).  Claimant underwent emergency craniotomy surgery for an 
 
         epidural hematoma.  During the surgery, the fracture of the 
 
         fronto-temporal region of his skull was noted.  A large epidural 
 
         hematoma was found and evacuated. O ozing type of bleeding  from  
 
         the  meningeal artery was observed at several points.  The 
 
         impression noted on the operative report is acute traumatic 
 
         epidural hemorrhage over the left frontal temporal parietal area 
 
         (exhibit 24).
 
         
 
              Claimant did relatively well post-operatively, though there 
 
         was a complication.  He was discharged from Mercy Hospital on May 
 
         25, 1986.  The final diagnosis noted is as follows:  (1) closed 
 
         head injury with cerebral concussion; (2) hemorrhagic contusion 
 
         to the tip of the left temporal lobe; (3) left epidural 
 
         hemorrhage involving the frontal, parietal and temporal regions; 
 
         (4) scalp laceration over the left ear; (5) contusion of the 
 
         right shoulder; and,  (6) status post-left fronto-parietal 
 
         temporal craniotomy with evacuation of subdural hematoma.
 
         
 
              After a period of recuperation, Kimm was released to return 
 
         to work effective September 22, 1986 (exhibit 30).  According to 
 
         supervisor Dennis Frimml, claimant never voiced complaints of 
 
         dizziness, headaches or any other complaints following his return 
 
         to work.  Frimml stated that claimant performed his job as a 
 
         second-class welder and was generally a good employee, as he had 
 
         been prior to the accident.
 
         
 
              Sharon Jones, plant nurse, testified that when claimant 
 
         returned to work following recuperation from his injury, he told 
 
         her that he had no headaches or dizziness.  She stated that if he 
 
         had come to first aid for headaches or dizziness, a report would 
 
         appear in the records.
 
         
 
              Claimant continued to work at Amana Refrigeration until 
 
         August 17, 1987 when he was terminated for being absent without 
 
         leave for five consecutive days due to being incarcerated.  After 
 
         extensive litigation the Employment Appeal Board held that 
 
         claimant was discharged for misconduct and was disqualified from 
 
         receiving unemployment benefits (exhibits 5, 6, 7, 8, 9, 10 and 
 
         11).
 
         
 
              Following his discharge from Amana Refrigeration, claimant 
 
         obtained work with Cecil Gorsh & Sons, Inc., performing roofing.  
 
         The records reflect that  he earned $5.50 per hour in that 
 
         employment (exhibit 12).
 
         
 
         
 
         
 
         KIMM v. AMANA REFRIGERATION, INC.
 
         Page 4
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
              In August of 1988, claimant was hired by Funk Seeds 
 
         International where he performs a variety of duties.  Claimant 
 
         stated that when he applied at Funks, he denied having disability 
 
         because he knew that the job did not require physical labor.  At 
 
         the time of hearing claimant had been made a permanent employee, 
 
         earned $5.05 per hour and worked 40 50 hours per week.
 
         
 
              Ever since the injury, claimant has made complaints 
 
         regarding his right shoulder, hand and arm.  He stated that at 
 
         the present time, his right hand is weaker than the left and 
 
         tingles.  He stated that his balance is impaired and that he has 
 
         lost coordination and speed.  Kimm stated that he experiences 
 
         headaches and that his neck aches.  He stated that his memory is 
 
         impaired and his speech is not as  clear as it was prior to the 
 
         time of the injury.  Kimm stated that his symptoms are always 
 
         present, but can be exacerbated by activity.  He stated that his 
 
         condition is essentially unchanged from what it was two years 
 
         prior to hearing.
 
         
 
              Claimant denied having any problem with blackouts or 
 
         epilepsy or any similar problems prior to May 14, 1986.
 
         
 
              In view of claimant's arm and shoulder complaints made while 
 
         he was initially hospitalized, he was evaluated  by Cedar Rapids 
 
         orthopaedic surgeon Warren Verdeck, M.D., who felt that claimant 
 
         simply had a contusion and  possible muscle strain (exhibit 15, 
 
         page 1).  Further  subsequent diagnostic tests were indicative of 
 
         either a cervical radiculopathy or brachial plexopathy (exhibit 
 
         31; exhibit 15, page 2).
 
         
 
              Dr. LaMorgese issued a report on March 28, 1988  which in 
 
         pertinent part states:
 
         
 
              Mr. Kimm was admitted to Mercy Hospital in Cedar
 
              Rapids, Iowa, on May 14, 1986, due to a severe
 
              head injury while at work.  The circumstances
 
              under which he fell while at work are unclear to
 
              me but he apparently did fall probably from a
 
              height of three or four feet.  . . .  Prior to
 
              surgery the patient was awake and was indicating
 
              pain in his right shoulder area.
 
         
 
               . . . 
 
         
 
              The patient has been seen on multiple occasions in
 
              my office after discharge from the  hospital.  The
 
              major symptom that was noted as an out-patient was
 
              some pain in his neck, shoulder, and arm area on
 
              the right. He also indicated that there was some
 
         
 
         
 
         
 
         KIMM v. AMANA REFRIGERATION, INC.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         Page 5
 
         
 
         
 
              tingling in the thumb and index finger that seemed
 
              to improve with time.  The patient also has some
 
              periodic dizziness that was mild to moderate in
 
              nature and apparently also improved.  An EMG nerve
 
              conduction study done in June of 1986 for
 
              evaluation of the shoulder problem was compatible
 
              with a brachial plexus injury from his previous
 
              fall or a cervical disk problem involving the C6
 
              and C7 nerve roots.  My last appointment with the
 
              patient was on October 20th 1987.  The patient at
 
              that time had been doing fairly well.  He still
 
              was having some discomfort in the neck and right
 
              shoulder area.  I found no focal neurologic
 
              deficits.  He indicated that the tingling in the
 
              thumb and index finger was becoming less
 
              prominent.  He was on no medications for his head
 
              or neck injury at that point.
 
         
 
         (Exhibit 36)
 
         
 
              Dr. LaMorgese rated claimant as having a 12 percent 
 
         permanent partial disability of the body as a whole of which half 
 
         is due to the residual symptoms from the brain injury and the 
 
         remainder due to injuries to the cervical area (exhibit 37).
 
         
 
              EMG's conducted in January, 1989 were interpreted as being 
 
         normal.  The discussion notes as follows:  "It is possible to 
 
         compress a nerve in a manner  sufficient to cause symptoms yet 
 
         insufficient to cause axonal degeneration  or conduction 
 
         problems.  In such a circumstance, the electrophysiology remains 
 
         normal."  (Exhibit 38, page 7). EMG's conducted April 4, 1988 
 
         were also  interpreted  as  being normal, other than for a 
 
         possible right carpal tunnel syndrome which would likely not be a 
 
         result of the fall (exhibit 38, page 5).
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
                                        
 
              Claimant has the burden of proving by a preponderance of the 
 
         evidence that he received an injury on May 14, 1986 which arose 
 
         out of and in the course of his employment.  McDowell v. Town of 
 
         Clarksville, 241 N.W.2d 904 (Iowa  1976); Musselman v. Central 
 
         Telephone Co., 261 Iowa  352, 154 N.W.2d
 
         128 (1967).
 
         
 
              The words "arising out of" refer to the cause or source of 
 
         the injury.  McClure v. Union County, 188 N.W.2d  283, 287 (Iowa 
 
         1971); Crowe v. DeSoto Consol. Sch. Dist., 246  Iowa 402, 68 
 
         N.W.2d 63 (1955).  The "arising out of" requirement is satisfied 
 
         by showing a causal relationship between the
 
         
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         KIMM v. AMANA REFRIGERATION, INC.
 
         Page 6
 
         
 
         
 
         employment and the injury.  Sheerin v..Holin Co., 380 N.W.2d 415, 
 
         417 (Iowa 1986).
 
              The words "in the course of" refer to the time and place and 
 
         circumstances of the injury.  McClure  v. Union et al. 
 
         Counties, 188 N.W.2d 283 (Iowa 1971) ; Crowe v. DeSoto Consol. 
 
         Sch. Dist., 246 Iowa 402, 68 N.W.2d 63  (1955).
 
         
 
              Claimant was on the employer's premises during work hours 
 
         and apparently performing his assigned duties at the time of the 
 
         injury.  He was therefore acting in the course of his employment 
 
         at the time of the injury.
 
         
 
              It is clear that something struck Kimm's head causing his 
 
         skull to fracture, the hemorrhage and the  hematoma.  He could 
 
         have been hit by an object, it could have occurred merely by 
 
         falling on the concrete.  There are several  points in the record 
 
         where a fall of three or four feet is indicated (exhibits 22 and 
 
         23).  Dr. LaMorgese, in his  March 28, 1988 report, indicates 
 
         that claimant probably fell  from a height of three of four feet.  
 
         Claimant's own testimony denies having been on the stairs, but he 
 
         also did not recall anything of being up and about, trying to 
 
         resume sweeping or sitting on a bucket.  He suffered a severe 
 
         head injury and some memory loss is certainly not unexpected.
 
         
 
              Idiopathic falls are those which occur as a result of some 
 
         personal risk or weakness which is peculiar to the individual 
 
         employee.  Idiopathic falls are sometimes distinguished from 
 
         unexplained falls.  An unexplained fall is one for which there is 
 
         no apparent cause, either personal to the employee or otherwise.  
 
         The general rule of law is, however, that with a fall which is 
 
         totally unexplained, a great many jurisdictions award 
 
         compensation on a general "but for" theory similar to res ipsa 
 
         loquitur.  It is more likely than not that the employment was a 
 
         cause.
 
         
 
              The results of an idiopathic fall are not generally 
 
         compensable because the source does not rest in the employment.  
 
         An idiopathic fall can be compensable, however, if the employment 
 
         places the employee in a position which increases the injury 
 
         which results from the idiopathic fall. 1 Larson Workmen's 
 
         Compensation Law, section 12.11.  That same view has been adopted 
 
         in our neighboring state of Minnesota.  O'Rourke v. North Star 
 
         Chemicals, Inc.,  281 N.W.2d 192 (Minn. 1979).  Falls from a 
 
         height of two or three steps have been held to be sufficiently 
 
         contributory to producing more serious injury in order to render 
 
         all the injuries which result compensable.   If the correct rule 
 
         of law is that the injuries from an idiopathic fall become 
 
         compensable if the employment contributed to the seriousness
 
         
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         KIMM v. AMANA REFRIGERATION, INC.
 
         Page 7
 
         
 
         
 
         of the injuries, then it is clear that injuries from an 
 
         unexplained fall should certainly be compensable if the 
 
         employment increased the seriousness of the injuries resulting 
 
         from the fall.
 
         
 
              Charles Kimm experienced a severe trauma to his head it was 
 
         sufficiently severe to fracture his skull and produce 
 
         intracranial bleeding.  Dr. LaMorgese stated that it was probable 
 
         that he had fallen from a height of three or four feet.  The 
 
         severity of Kimm's injury is greater than those which commonly 
 
         occur when an individual falls on a level surface without 
 
         striking any object as he falls.  There is no indication in the 
 
         record of this case that the intracranial bleeding resulted from 
 
         anything other than the trauma of the fall.  It is therefore 
 
         determined that the fall in this case is unexplained.
 
         
 
              It is further determined that the more likely scenario is 
 
         that Kimm was on the stairs when he fell thus accounting for the 
 
         severity of his injuries.  His memory concerning the injury 
 
         cannot be relied upon.  The statement from  Dr. LaMorgese 
 
         concerning a probable fall from a height of three or four feet is 
 
         determined to be a much more reliable indicator of what actually 
 
         occurred. Kimm could have slipped, tripped or merely lost his 
 
         balance, any one of which would result in compensability.  Since 
 
         he fell from a height and sustained a serious injury, rather than 
 
         a minor injury which would be expected from a fall on a level 
 
         surface, the results of the injury are compensable.  It is 
 
         therefore determined that Charles Kimm's injuries that were 
 
         sustained on May 14, 1986 arose out of and in the course of his 
 
         employment with Amana Refrigeration, Inc.
 
         
 
              Even if the fall were totally unexplained, the result would 
 
         be the same.  When all possible scenarios which can be imagined 
 
         are considered, it is more likely than not that the employment 
 
         was a cause.  There is no evidence  whatsoever to support any 
 
         defense under section 85.16.  Dr. LaMorgese related the injuries 
 
         to trauma.  This is not a case where the evidence indicates an 
 
         intracranial bleed caused a loss of consciousness, which caused 
 
         the employee to fall and fracture his skull.
 
         
 
              The parties stipulated to the extent of the healing period 
 
         entitlement, namely running from May 15, 1986 through September 
 
         21, 1986, a span of 18 4/7 weeks.
 
         
 
              If 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.2d 899, 902 (1935) as follows:
 
         
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         KIMM v. AMANA REFRIGERATION, INC.
 
         Page 8
 
         
 
         
 
              "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).
 
         
 
              Industrial disability or loss of earning capacity is a 
 
         concept that is quite similar to impairment of earning capacity, 
 
         an element of damage in a tort case.  Impairment of physical 
 
         capacity creates an inference of lessened earning capacity.  The 
 
         basis element to be determined, however, is the reduction in 
 
         value of the general earning capacity of the person, rather than 
 
         the loss of wages or earnings in a specific occupation.  
 
         Post-injury  earnings create a presumption of earning capacity.  
 
         The earnings are not synonymous with earning capacity and the 
 
         presumption may be rebutted by evidence showing the earnings to 
 
         be an unreliable indicator.  Carradus v. Lange, 203 N.W.2d  565 
 
         (Iowa 1973); Holmquist v. Volkswagon of America, Inc., 261 N.W.2d 
 
         516 (Iowa App. 1977) A.L.R.3d 143; Michael v. Harrison County, 
 
         34th Biennial Report, 218 (1979); 2 Larson Workmen's Compensation 
 
         Law, sections 57.21 and 57.31.
 
         
 
              Claimant is afflicted with some loss of use of his right 
 
         arm, headaches, dizziness and other residuals from the injury.  
 
         The loss of his employment at Amana Refrigeration is not shown to 
 
         have been a result of the injury and his entire reduction in 
 
         actual earnings cannot be attributed to the injury.  Claimant is, 
 
         nevertheless, somewhat impaired in his mental and physical 
 
         capabilities.  His testimony and demeanor indicate some 
 
         impairment of his mental abilities, although that is not 
 
         corroborated by medical practitioners. His complaints of 
 
         headaches and dizziness seem well founded.  Claimant's 
 
         educational background is such that intellectual pursuits were 
 
         probably never a likely.occupation for him.  The loss of use of 
 
         his right hand and arm  though small, is made more important by 
 
         the lack of opportunity for intellectual type employment.  The 
 
         EMG's conducted in April 1988 and January 1989, which were 
 
         interpreted as being normal, do not conclusively exclude the 
 
         existence of permanent injury.  The discussion notes as follows:  
 
         "It is possible to compress a nerve in a manner sufficient to 
 
         cause symptoms yet insufficient to cause axonal degeneration or
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         KIMM v. AMANA REFRIGERATION, INC.
 
         Page 9
 
         
 
         
 
         conduction problems.  In such a circumstance, the 
 
         electrophysiology remains normal."  (Exhibit 38, page 7).
 
         
 
              When all the pertinent factors of industrial disability are 
 
         considered, it is determined that Charles Kimm experienced a 25 
 
         percent reduction in his earning capacity as a result of the 
 
         injuries he sustained on May 14, 1986 when he fell at his place 
 
         of employment.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              1. Charles Kimm fell on May 14, 1986 from a cause which is 
 
         completely unexplained and unknown.
 
         
 
              2. The injuries are consistent with a fall from a height of 
 
         three or four feet as indicated by Dr. LaMorgese.  They are more 
 
         severe than what would normally be expected from a fall on a 
 
         level surface.  It is more likely than not that Kimm fell from he 
 
         stairs.  His testimony that he was not on the stairs is not 
 
         reliable.
 
         
 
              3. Falling from a height of three or four feet onto the 
 
         cement slab increased the severity of the injuries Kimm sustained 
 
         when he fell in comparison to those which would have been likely 
 
         if he had fallen on a level surface.
 
         
 
              4. Kimm was performing the duties of his employment at the 
 
         time he fell.
 
         
 
              5. The injury includes not only brain injury, but also 
 
         injury to his cervical spine and brachial plexus, all as 
 
         diagnosed by Dr. LaMorgese.
 
         
 
              6. The injury has left claimant with residual symptoms and a 
 
         12 percent permanent impairment of the body as a whole, all as 
 
         assessed by Dr. LaMorgese.
 
         
 
              7. Charles Kimm's earning capacity has been reduced by 25 
 
         percent as a result of the injuries he sustained in the fall that 
 
         occurred on May 14, 1986.
 
         
 
                                CONCLUSIONS OF LAW
 
                                        
 
              1. This agency has jurisdiction of the subject matter of 
 
         this   proceeding and its parties.
 
         
 
              2. The head, neck and shoulder injuries which Charles Kimm 
 
         sustained on May 14, 1986 arose out of and in the course of his 
 
         employment with his employer Amana Refrigeration, Inc.
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         KIMM v. AMANA REFRIGERATION, INC.
 
         Page 10
 
         
 
         
 
              3. Claimant is entitled to recover 125 weeks of compensation 
 
         for permanent partial disability as a result of the injuries 
 
         sustained on May 14, 1986.
 
         
 
                                      ORDER
 
         
 
              IT IS THEREFORE ORDERED that defendants pay Charles Kimm 
 
         eighteen and four-sevenths (18 4/7) weeks of compensation for 
 
         healing period at the stipulated rate of two hundred twenty-two 
 
         and 97/100 dollars ($222.97) per week payable commencing May 15, 
 
         1986.
 
         
 
              IT IS FURTHER ORDERED that defendants pay claimant one 
 
         hundred twenty-five (125) weeks of compensation for permanent 
 
         partial disability at the stipulated rate of two hundred 
 
         twenty-two and 97/100 dollars ($222.97) per week payable 
 
         commencing September 22, 1986.
 
         
 
              IT IS FURTHER ORDERED that defendants are entitled to credit 
 
         for all weekly compensation previously paid for healing period 
 
         and permanent partial disability in the total amount of 
 
         seventy-eight and four-sevenths (78 4/7) weeks as stipulated in 
 
         the prehearing report.
 
         
 
              IT IS FURTHER ORDERED that defendants pay the costs of this 
 
         action pursuant to Division of Industrial Services Rule 343-4.33 
 
         including thirty-five and 00/100 dollars ($35.00) for a medical 
 
         report from Dr. LaMorgese, ten and 00/100 dollars ($10.00) for 
 
         medical reports from IMC, and thirty-one and 00/100 dollars 
 
         ($31.00) for the transcript of the Charles Kimm deposition.
 
         
 
              IT IS FURTHER ORDERED that defendants file claim activity 
 
         reports as requested by this agency pursuant to Division of 
 
         Industrial Services Rule 343-3.1.
 
         
 
              Signed and filed this 3rd day of April, 1990.
 
         
 
         
 
         
 
         
 
                                         MICHAEL G. TRIER
 
                                         DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         
 
         
 
         KIMM V. AMANA REFRIGERATION, INC.
 
         Page 11
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         Copies To:
 
         
 
         Mr. Thomas J. Currie
 
         Attorney at Law
 
         3401 Williams Blvd. SW
 
         P.O. Box 998
 
         Cedar Rapids, Iowa  52406-0998
 
         
 
         Mr. Greg A. Egbers
 
         Attorney at Law
 
         600 Union Arcade Building
 
         111 East Third Street
 
         Davenport, Iowa  52801
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                                         1108.50, 1402.30 5-1803
 
                                         Filed April 3, 1990
 
                                         MICHAEL  G. TRIER
 
         
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         CHARLES KIMM,
 
         
 
              Claimant,                               File No. 823137
 
         
 
         vs.                                      A R B I T R A T I O N
 
         
 
         AMANA REFRIGERATION, INC.                     D E C I S I O N
 
         
 
              Employer,
 
         
 
         and
 
         
 
         LIBERTY MUTUAL INSURANCE
 
         COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
         1108.50, 1402.30
 
         
 
              Claimant fell and suffered severe head and shoulder injury.  
 
         The cause of the fall could not be identified.  It was held that 
 
         falls which are totally unexplained are deemed to arise out of 
 
         the employment under a "but for" or res ipsa loquitur type of 
 
         theory.  There was no evidence that the fall was idiopathic, that 
 
         being one which occurred due to some peculiar conditon of the 
 
         employee.
 
         
 
         5-1803
 
         
 
              Claimant awarded 25 percent permanent partial disability.
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                      BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         YOLON J. GIBBS,
 
         
 
              Claimant,
 
                                                     File No. 823371
 
         vs.
 
         
 
         KIMBERLY SMORGASBORD,                    A R B I T R A T I 0 N
 
         
 
              Employer,                              D E C I S I 0 N
 
         
 
         and
 
                                                         F I L E D
 
         
 
         FIREMAN'S FUND INSURANCE                       MAY 25 1988
 
         COMPANY,
 
                                               IOWA INDUSTRIAL COMMISSIONER
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              This is a proceeding in arbitration brought by Yolon J. 
 
         Gibbs, claimant, against Kimberly Smorgasbord, employer, and 
 
         Fireman's Fund Insurance Company, insurance carrier, to recover 
 
         benefits under the Iowa Workers' Compensation Act as a result of 
 
         an alleged injury sustained May 15, 1986.  This matter came on 
 
         for hearing before the undersigned deputy industrial commissioner 
 
         April 28, 1988.  The record was considered fully submitted at the 
 
         close of the hearing.  The record in this case consists of the 
 
         testimony of claimant, Debra Van Blaricom and Don Anderson; joint 
 
         exhibits 1 through 7, inclusive; and, defendants' exhibits A and 
 
         B.
 
         
 
                                    ISSUES
 
         
 
              Pursuant to the prehearing report and order submitted and 
 
         approved April 28, 1988, the following issues are submitted for 
 
         determination:
 
         
 
              1.  Whether the claimant sustained an injury on May 15, 1986 
 
         which arose out of and in the course of her employment;
 
         
 
              2.  Whether claimant's alleged work injury is the cause of 
 
         the disability on which she now bases her claim; and,
 
         
 
              3.  The nature and extent, if any, of claimant's entitlement 
 
         to permanent partial disability benefits and the commencement 
 
         date thereof.
 
         
 
                                FACTS PRESENTED
 
                                                
 
                                                         
 
         
 
              Claimant, who began working for defendant employer in April 
 
         1985, performed various jobs including vacuuming, cleaning 
 
         tables, serving coffee, preparing condiments, cleaning the food 
 
         line, and busing tables.  Claimant described the employer's use 
 
         of "tubs" to bus tables which, when filled, weighed in her 
 
         estimation approximately 50 to 60 pounds and that she would carry 
 
         the filled tubs to be placed on rollers which required she lift 
 
         the tubs about chest high.  Claimant explained that in about 
 
         March or April 1986, she noticed that her arm,and hand began 
 
         hurting and swelling particularly when she was busing tables and 
 
         that when she complained of pain, the owner (Don Anderson) helped 
 
         her bus the tables.  Claimant recalled that on May 15, 1986, she 
 
         was very busy busing tables and, because of pain and swelling in 
 
         her arm and hand, left work early, telling her manager she was 
 
         unable to complete her work.  Claimant testified that on May 16, 
 
         1986, her arm hurt so that she could not lift it and therefore 
 
         went to see Herbert R. Wood, D.C., whom she had seen before for 
 
         lower back problems.  Claimant explained that Dr. Wood took 
 
         x-rays and told her that she had a shoulder dislocation.  
 
         Claimant testified that she saw C.L. Peterson, D.O., on 
 
         approximately three occasions on the request of the insurance 
 
         company.  Claimant maintained, however, that Dr. Peterson was 
 
         rough on her when he was adjusting her arm and that it became 
 
         worse rather than better and therefore she returned to see Dr. 
 
         Wood.  Claimant explained that she saw William R. Irey, M.D., an 
 
         orthopedic surgeon, and Hugh MacMenamin, M.D., for an 
 
         evaluation.
 
         
 
              Claimant described that her shoulder bothers her when she 
 
         uses her arm to any extent such as the action of ironing.  She 
 
         described that if she irons too much her arm aches.  Claimant 
 
         testified that she cannot bowl, golf, and that lifting bothers 
 
         her arm "extremely."  Claimant, who is currently employed with 
 
         the McDonalds Company, testified that, for example, three days 
 
         after mopping at McDonalds her arm will ache.
 
         
 
              Debra Van Blaricom explained that she is a senior claims 
 
         adjuster with defendant insurance carrier and was responsible for 
 
         the administration of claimant's claim.  She explained that 
 
         claimant was sent to Dr. Irey and when his report was received 
 
         advising him that claimant could return to work with a 25 pound 
 
         lifting restriction, she contacted defendant employer's owner who 
 
         indicated work would be made available to claimant under those 
 
         restrictions.  Ms. Van Blaricom explained that she had sent a 
 
         letter to claimant's counsel (defendants' Exhibit B) with regard 
 
         thereto but received a reply.
 
         
 
              Don Anderson testified that he, along with his family, owns 
 
         Kimberly Smorgasbord and that he was willing to return claimant 
 
         to work after he received notification from the insurance carrier 
 
         that claimant had been released with a 25 pound lifting 
 
         restriction.  He acknowledged, however, that it is not he who 
 
         does the scheduling for the Kimberly Smorgasbord.
 
         
 
                                                
 
                                                         
 
              Hugh MacMenamin, M.D., orthopedic surgeon, testified he saw 
 
         claimant on one occasion on July 22, 1987 and that at that time 
 
         claimant had a normal neck range of motion and lacked 
 
         approximately 20 degrees of range of motion of the right 
 
         shoulder. Dr. MacMenamin explained that claimant may have had a 
 
         partial rotator cuff tear or a possible labral tear but that 
 
         neither was a solid diagnosis.  Dr. MacMenamin opined that 
 
         claimant had a three percent permanent partial impairment of the 
 
         upper right extremity but he placed no restrictions on claimant's 
 
         employability and, a review of x-rays previously taken, disclosed 
 
         no evidence of a shoulder dislocation.
 
         
 
              The medical reports of Herbert R. Wood, D.C., revealed that 
 
         after claimant was seen on May 16, 1986, he rendered a diagnosis 
 
         of cervicalgia with brachial radiculitis, lumbalgia and muscle 
 
         spasm, and strain/strain of the right shoulder and subluxation of 
 
         the right shoulder.  At that time, Dr. Wood advised that 
 
         treatment was in the conservative nature with mild manipulations 
 
         and right shoulder and arm exercises.  On February 2, 1987, Dr. 
 
         Wood opined that claimant suffered a five percent permanent 
 
         impairment of the right shoulder joint due to ligamentous 
 
         restrictions.  Dr. Wood recommended further treatment but only 
 
         for maintenance purposes to prevent degeneration.  On November 9, 
 
         1987, Dr. Wood reiterated his opinion that claimant suffered a 
 
         five percent impairment that is causal to her injury of May 15, 
 
         1986, while employed at Kimberly Smorgasbord.
 
         
 
              The medical report of William R. Irey, M.D., dated August 5, 
 
         1986, states:
 
         
 
              I told her that I thought it was unlikely that she had 
 
              dislocated her shoulder but in fact, probably had a 
 
              tendinitis or bursitis which could certainly be related to 
 
              her work, especially if she had an especially busy day.  
 
              This could well be an acute imposed on a chronic condition.
 
         
 
                   ....
 
         
 
                   I also told her that I thought it would be reasonable 
 
              to return to partial duty work with approximately a 25 lb. 
 
              weight restriction.  I told her if the company would not 
 
              allow this, then I simply couldn't do anything about that, 
 
              that I did feel that she was ready for lifting weights up to 
 
              50 lbs.
 
         
 
                               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(1).
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury of May 15, 1986 is causally related 
 
         to the disability on which she now bases her claim.  Bodish v. 
 
         Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).  Lindahl v. 
 
                                                
 
                                                         
 
         L. 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 7 2 (1955).  The 
 
         question of causal connection is essentially within the domain of 
 
         expert testimony.  Bradshaw v. Iowa Methodist Hospital, 251 Iowa 
 
         375, 101 N.W.2d 167 (1960).
 
         
 
              However, expert medical evidence must be considered with all 
 
         other evidence introduced bearing on the causal connection.  
 
         Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion of experts need 
 
         not be couched in definite, positive or unequivocal language.  
 
         Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974).  The 
 
         expert opinion may be accepted or rejected, in whole or in part, 
 
         by the trier of fact.  Id. at 907.  Further, the weight to be 
 
         given to such an opinion is for the finder of fact, and that may 
 
         be affected by the completeness of the premise given the expert 
 
         and other surrounding circumstances.  Bodish, 257 Iowa 516, 133 
 
         N.W.2d 867.  See also Musselman v. Central Telephone Co., 261 
 
         Iowa 352, 154 N.W.2d (1967).
 
         
 
              An injury is the producing cause; the disability, however, 
 
         is the result, and it is the result which is compensated.  Barton 
 
         v. Nevada Poultry Co., 253 Iowa 285, 110 N.W.2d 660 (1961); 
 
         Dailey v. Pooley Lumber Co., 233 Iowa 758, 10 N.W.2d 569 
 
         (1943).
 
                               
 
                                                         
 
         
 
              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 950, 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).
 
         
 
              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).
 
         
 
              Iowa Code section 85.34(2)(m) provides:
 
         
 
                   The loss of two-thirds of that part of an arm between 
 
              the shoulder joint and the elbow joint shall equal the loss 
 
              of an arm and the compensation therefor shall be weekly 
 
              compensation during two hundred fifty weeks.
 
         
 
                                    ANALYSIS
 
         
 
              The parties have neither stipulated that claimant's injury 
 
         arose out of and in the course of her employment nor that the 
 
         disability on which she now bases her claim is causally connected 
 
         to the work injury.  However, defendants admit that neither of 
 
         these issues are "hotly disputed."
 
         
 
              The claimant must prove by a preponderance of the evidence 
 
         that her injury arose out of and in the course of her employment. 
 
         Musselman, 261 Iowa 352, 154 N.W.2d 128.
 
         
 
              In the course of employment means that the claimant must 
 
         prove her injury occurred at a place where she reasonably may be 
 
         performing her duties.  McClure v. Union, et al., Counties, 188 
 
         N.W.2d 283 (Iowa 1971).
 
         
 
              Arising out of.suggests a causal relationship between the 
 
         employment and the injury.  Crowe v. DeSoto Consolidated School 
 
         District, 246 Iowa 402, 68 N.W.2d 63 (1955).
 
         
 
              Based upon claimant's testimony as well as the medical 
 
         evidence submitted, it is determined that claimant sustained an 
 
         injury which arose out of and in the course of her employment on 
 
         May 15, 1986.  Although claimant may have had symptoms of arm and 
 
         hand pain prior to that date, claimant maintained and established 
 
         to the satisfaction of the undersigned that her actions in busing 
 
         tables on May 15, 1986, caused a personal injury which arose out 
 
         of and in the course of her employment.
 
         
 
              A person who has sustained a permanent impairment by the 
 
         very meaning of the phrase, can never return to the same physical 
 
         condition she or he had prior to the injury.  Armstrong Tire & 
 
         Rubber Co. v. Kubli, 312 N.W.2d 60 (Iowa 1981).  Again, based 
 
                                                
 
                                                         
 
         upon the medical evidence presented in conjunction with 
 
         claimant's own testimony as subjective symptoms and complaints, 
 
         it is accepted claimant, as a result of the work injury on May 
 
         15, 1986, can never return to the same physical condition she was 
 
         in prior to this injury and it is, therefore, the cause of a 
 
         permanent impairment and is the cause of the disability on which 
 
         claimant now bases her claim.
 
         
 
              What is truly at issue in this case is the nature and extent 
 
         of claimant's permanent partial disability and the commencement 
 
         date thereof.  Claimant asserts her disability is centered around 
 
         problems with her shoulder and argues that an industrial 
 
         disability is appropriate in this case.  However, it is found 
 
         that claimant has failed to establish the disability extends 
 
         beyond the upper extremity, a scheduled injury under Iowa Code 
 
         section 85.34(2)(b) which is evaluated by the functional method.
 
         
 
              In the case of Lauhoff Grain v. McIntosh, 395 N.W.2d 834 
 
         (Iowa 1986), the Iowa Supreme Court vacated a court of appeals 
 
         decision and, although primarily dealing in that case with a hip 
 
         joint, indicated that the court will look in each instance now at 
 
         shoulder injuries based upon the "extent of the injury."  No 
 
         longer does the court make a blanket determination that a 
 
         shoulder injury should not be treated as a scheduled injury but 
 
         rather as a body as a whole injury.  The court in the Lauhoff 
 
         case has ruled that the extent of the injury in each case will be 
 
         examined and will be treated as a body as a whole injury only if 
 
         the extent of the injury extends beyond the schedule.  All of the 
 
         medical professionals who either evaluated or treated claimant's 
 
         injury has rated claimant as having a permanent partial 
 
         impairment of the upper right extremity.  While it is 
 
         acknowledged that claimant was initially treated because of 
 
         shoulder problems, the record clearly establishes that the 
 
         residuals of claimant's impairment are centered on the upper 
 
         extremity and do not extend to the body as a whole.  It is 
 
         interesting to note that claimant, throughout the course of her 
 
         testimony, continually referred to problems with her right arm 
 
         and that she, at no time, indicated any problems as a result of 
 
         this injury extending beyond the arm.  Since it is the disability 
 
         that is compensated and not the injury itself and claimant's 
 
         disability surrounds the upper extremity, claimant has a 
 
         scheduled injury and has not sustained her burden of establishing 
 
         that the injury extends beyond the schedule into the body as a 
 
         whole.
 
         
 
              Dr. MacMenamin rates claimant as having a three percent 
 
         permanent partial impairment of the upper right extremity.  Dr. 
 
         Wood, claimant's treating chiropractor, rates her as having a 
 
         five percent impairment of the right shoulder joint.  Although 
 
         Dr. Wood's impairment rating is somewhat confusing, Dr. Wood does 
 
         base his impairment rating on various specific "numbers" with 
 
         regard to range of motion and grip strength and, therefore, the 
 
         opinion of Dr. Wood is given greater weight that the opinion of 
 
         Dr. MacMenamin and claimant is found to have a five percent 
 
         impairment of the upper right extremity which entitles her to 
 
                                                
 
                                                         
 
         12.5 weeks of permanent partial disability benefits.
 
         
 
              The final issue for resolution is the appropriate 
 
         commencement date for claimant's permanent partial disability 
 
         benefits.  Since Dr. Wood indicates in his letter of February 2, 
 
         1987 that claimant has reached a permanent and stationary 
 
         condition, it is determined that claimant's permanent partial 
 
         disability benefits shall commence February 2, 1987.
 
         
 
                             FINDINGS OF FACT
 
         
 
              Wherefore, based on all of the evidence presented, the 
 
         following findings of fact are made:
 
         
 
              1.  Claimant began working for Kimberly Smorgasbord in April 
 
         1985 and was responsible for busing tables which required she 
 
         lift tubs weighing approximately 50 to 60 pounds.
 
         
 
              2.  In approximately March or April 1986, claimant began to 
 
         experience pain and swelling in her right arm and hand.
 
         
 
              3.  On May 15, 1986, a particularly busy day for claimant, 
 
         claimant had to leave work early because of pain in her arm and 
 
         did not continue performing her job responsibilities.
 
         
 
              4.  Claimant sought treatment for the pain.
 
         
 
              5.  Claimant continues to experience pain in her arm with 
 
         use.
 
         
 
              6.  Claimant has a permanent partial impairment as a result 
 
         of the incident of May 15, 1986.
 
         
 
              7.  The residuals of claimant's impairment are centered on 
 
         the upper right extremity and do not extend to the body as a 
 
         whole.
 
         
 
              8.  Claimant has a permanent partial disability of five 
 
         percent to the upper right extremity.
 
         
 
                              CONCLUSIONS OF LAW
 
         
 
              Wherefore, based on the principles of law previously stated, 
 
         the following conclusions of law are made:
 
         
 
              1.  Claimant sustained an injury which arose out of and in 
 
         the course of her employment May 15, 1986.
 
         
 
              2.  Claimant has established that the work injury is the 
 
         cause of the disability on which she now bases her claim.
 
         
 
              3.  Claimant has established the work injury is the cause of 
 
         a permanent partial impairment of five percent to the upper right 
 
         extremity entitling her to 12.5 weeks of permanent partial 
 
         disability benefits.
 
                                                
 
                                                         
 
         
 
                                     ORDER
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              That defendants are to pay unto claimant twelve point five 
 
         (12.5) weeks of permanent partial disability benefits at the 
 
         stipulated rate of seventy-seven and 23/100 dollars ($77.23) per 
 
         week commencing February 2
 
         
 
              That defendants shall receive full credit for all permanent 
 
         partial disability benefits previously paid.
 
         
 
              That payments that have accrued shall be paid in a lump sum 
 
         together with statutory interest thereon pursuant to Iowa Code 
 
         section 85.30.
 
         
 
              That claim activity reports shall be filed upon payment of 
 
         this award.
 
         
 
              That costs of this action are assessed against defendants 
 
         pursuant to Division of Industrial Services Rule 343-4.33.
 
         
 
              Signed and filed this 25th day of May, 1988.
 
         
 
         
 
         
 
         
 
         
 
         
 
                                            DEBORAH A. DUBIK
 
                                            DEPUTY INDUSTRIAL COMMISSIONER
 
                                                              
 
                                                
 
                                                         
 
         
 
         Copies to:
 
         
 
         Mr. William J. Bribriesco
 
         Attorney at Law
 
         2407 18th Street
 
         Suite 202
 
         Bettendorf, Iowa  52722
 
         
 
         Mr. James C. Huber
 
         Attorney at Law
 
         1000 Des Moines Building
 
         Des Moines, Iowa  50309-2462
 
 
 
         
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                 1803.1
 
                                                 Filed May 25, 1988 
 
                                                 Deborah A. Dubik
 
         
 
                   BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         YOLON J. GIBBS,
 
         
 
              Claimant,
 
                                                     File No. 823371
 
         vs.
 
         
 
         KIMBERLY SMORGASBORD,                    A R B I T R A T I 0 N
 
         
 
              Employer,                              D E C I S I 0 N
 
         
 
         and
 
         
 
         FIREMAN'S FUND INSURANCE
 
         COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         1803.1
 
         
 
              Claimant sustained an injury to her shoulder which arose out 
 
         of and in the course of her employment.  Claimant was responsible 
 
         for busing tables for defendant employer and experienced pain in 
 
         her arm and hand after a particular busy day of busing tables on 
 
         May 15, 1986.  Although claimant argued she was entitled to an 
 
         industrial disability, the residuals of claimant's impairment 
 
         were found to be centered on the upper extremity and not 
 
         extending to the body as a whole.  Claimant's sole complaint was 
 
         that her arm was sore.  Claimant awarded 5% permanent partial 
 
         disability benefits to the upper right extremity.