BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         GLORIA STOLTZ,
 
         
 
              Claimant,                          File No. 830058
 
         
 
         vs.                                  A R B I T R A T I O N
 
         
 
         KELLER INDUSTRIES, INC.,                D E C I S I O N
 
         
 
              Employer,
 
         
 
         and
 
         
 
         PACIFIC EMPLOYERS INS./CIGNA
 
         
 
              Insurance Carrier,
 
               Defendants.
 
         
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding in arbitration brought by Gloria 
 
         Stoltz, claimant, against Keller Industries, Inc., employer, and 
 
         Pacific Employers Insurance/CIGNA, insurance carrier, defendants, 
 
         for benefits as a result of an injury which allegedly occurred on 
 
         February 7, 1986.  On September 13, 1988, this case was heard by 
 
         the undersigned.  This case was fully submitted at the completion 
 
         of the hearing.
 
         
 
              The record consists of the testimony of claimant, joint 
 
         exhibit A, claimant's exhibit 1 and defendants' exhibit 1.
 
         
 
              The parties stipulated claimant was an employee of defendant 
 
         at the time of the alleged injury.  They also stipulated claimant 
 
         is entitled to the commencement of benefits on May 13, 1987, if 
 
         liability is established.
 
         
 
                                      ISSUES
 
         
 
              The issues presented by the parties at the time of the 
 
         hearing are whether claimant received an injury arising out of 
 
         and in the course of her employment; whether there is a causal 
 
         relationship between the alleged injury and the disability on 
 
         which she is now basing her claim; the extent of scheduled member 
 
         disability, if any, to which she is entitled; the rate of 
 
         compensation; and section 85.27 benefits.
 
         
 
                                 FACTS PRESENTED
 
         
 
              Claimant testified that on February 7, 1986, she was injured 
 
         when while making backs of ladders, she experienced a sharp pain 
 
         in her right elbow.  Claimant had been using pliers and operating 
 
         a power drill immediately prior to her injury.  Management was 
 
         notified of the injury and claimant was given an ace bandage for 
 
         her elbow.  On the following Monday, claimant was sent to the 
 
         doctor where she was diagnosed as having "tennis elbow."  
 
         Claimant returned to work.
 
         
 
              On February 19, 1986, claimant was seen by Forest Dean, M.D. 
 

 
         
 
         
 
         
 
         STOLTZ V. KELLER INDUSTRIES, INC.
 
         PAGE   2
 
         
 
         
 
         for a lateral epicondylitis of the right arm.  Dr. Dean injected 
 
         claimant with Depomedral; she was given Motrin for inflammation, 
 
         and a splint for her elbow.  Dr. Dean referred claimant to David 
 
         Naden, M.D., in July of 1986.  Claimant was diagnosed as having a 
 
         lateral epicondylitis of the right elbow.  Dr. Naden performed 
 
         surgery on July 30, 1986.
 
         
 
              Claimant testified she returned to work around the first 
 
         part of September in 1986 where she was placed on light duty for 
 
         one week only.  Claimant continued her employment until January 
 
         23, 1987 when she walked off the job.
 
         
 
              In November of 1986, claimant was seen by John E. Sinning, 
 
         M.D., and later by William R. Irey, M.D., of Orthopedic Surgery 
 
         Associates since Dr. Naden had left the geographical area.  Dr. 
 
         Irey later referred claimant to the University of Iowa.  At the 
 
         University of Iowa, claimant was seen by W. F. Blair, M.D., and 
 
         Nils S. Erikson, M.D.
 
         
 
              Claimant has been working at Wendy's since February of 1986 
 
         where she has been employed on a part-time basis.  Claimant's 
 
         responsibilities have included cooking hamburgers and French 
 
         fries, performing some lifting, cleaning tables and removing 
 
         trays.
 
         
 
               Prior to the date of the alleged injury, claimant had been 
 
         bowling three games per week.  Claimant returned to her bowling 
 
         league in August of 1987.  From that time through April of 1988, 
 
         and since August of 1988, claimant has bowled three games per 
 
         week.
 
         
 
                                  APPLICABLE LAW
 
         
 
              An employee is entitled to compensation for any and all 
 
         personal injuries which arise out of and in the course of the 
 
         employment.  Section 85.3(l).
 
         
 
              Claimant has the burden of proving by a preponderance of the 
 
         evidence that she received an injury on February 7, 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. 
 
         Central Telephone 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. Sch. Dist., 246 Iowa 
 
         402, 68 N.W.2d 63 (1955) and cases cited at pp. 405-406 of the 
 
         Iowa Report.  See also Sister Mary Benedict v. St. Mary's Corp., 
 
         255 Iowa 847, 124 N.W.2d 548 (1963) and Hansen v. State of Iowa, 
 
         249 Iowa 1147, 91 N.W.2d 555 (1958).
 
         
 
              The words "out of" refer to the cause or source of the 
 
         injury.  Crowe, 246 Iowa 402, 68 N.W.2d 63 (1955).
 
         
 
              The words "in the course of" refer to the time and place and 
 
         circumstances of the injury.  McClure v. Union et al. Counties, 
 
         188 N.W.2d 283 (Iowa 1971); Crowe, 246 Iowa 402, 68 N.W.2d 63 
 
         (1955).
 
         
 
              "An injury occurs in the course of the employment when it is 
 
         within the period of employment at a place the employee may 
 
         reasonably be, and while he is doing his work or something 
 
         incidental to it."  Cedar Rapids Comm. Sch. Dist. v. Cady, 278 
 
         N.W.2d 298 (Iowa 1979); McClure, 188 N.W.2d 283 (Iowa 1971); 
 

 
         
 
         
 
         
 
         STOLTZ V. KELLER INDUSTRIES, INC.
 
         PAGE   3
 
         
 
         
 
         Musselman, 261 Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury of February 7, 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 732 
 
         (1955).  The question of causal connection is essentially within 
 
         the domain of expert testimony.  Bradshaw v. Iowa Methodist 
 
         Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960).
 
         
 
              However, expert medical evidence must be considered with all 
 
         other evidence introduced bearing on the causal connection.  
 
         Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion of experts need 
 
         not be couched in definite, positive or unequivocal language.  
 
         Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974).  However, 
 
         the expert opinion may be accepted or rejected, in whole or in 
 
         part, by the trier of fact.  Id. at 907.  Further, the weight to 
 
         be given to such an opinion is for the finder of fact, and that 
 
         may be affected by the completeness of the premise given the 
 
         expert and other surrounding circumstances.  Bodish, 257 Iowa 
 
         516, 133 N.W.2d 867.  See also Musselman, 261 Iowa 352, 154 
 
         N.W.2d 128 (1967).
 
         
 
              The right of a worker to receive compensation for injuries 
 
         sustained which arose out of and in the course of employment is 
 
         statutory.  The statute conferring this right can also fix the 
 
         amount of compensation to be paid for different specific 
 
         injuries, and the employee is not entitled to compensation except 
 
         as provided by the statute.  Soukup v. Shores Co., 222 Iowa 272, 
 
         268 N.W. 598 (1936).
 
         
 
                                     ANALYSIS
 
         
 
              Claimant has established that she sustained an injury to her 
 
         right elbow which arose out of and in the course of her 
 
         employment.  The injury occurred on February 7, 1986 while 
 
         claimant was making backs of ladders.  At the time of the injury, 
 
         claimant was earning $3.50 per hour.  Claimant was earning $3.65 
 
         per hour when she voluntarily quit her employment.
 
         
 
              Since the date of the injury, claimant has been treated for 
 
         a lateral epicondylitis of the right arm.   Claimant testified 
 
         she is still- experiencing swelling of her right hand and arm.  
 
         She related there are good and bad days as far as the pain in her 
 
         arm is concerned.  Claimant also indicated she is restricted with 
 
         her housekeeping chores, and while she is able to work eight to 
 
         ten hours per week, some of the work is. accomplished by using 
 
         her left hand.   Claimant has resumed her bowling activities on a 
 
         weekly basis.
 
         
 
              Claimant has been evaluated.  According to Dr. Irey, 
 
         claimant has a permanent partial impairment.  In his report of 
 
         December 23, 1987, he writes:
 
         
 
              The patient was seen at the University of Iowa 
 
              Rheumatology Dept. and they felt that she may have an 
 
              early form of some type of arthritis and has started a 
 
              program of aspirin and Motrin.  They are also concerned 
 
              about her blood pressure and apparently she is taking 
 
              medication for that.
 

 
         
 
         
 
         
 
         STOLTZ V. KELLER INDUSTRIES, INC.
 
         PAGE   4
 
         
 
         
 
              Tenderness remains the same over the lateral aspect of 
 
              her elbow.  Examination shows full range of motion of 
 
              her elbow including full flexion and extension, 
 
              pronation and supination.  We discussed the nature of 
 
              permanent partial impairment ratings.  I think that her 
 
              chronic lateral epicondylitis is really a separate 
 
              issue from her underlying possible arthritic condition.  
 
              At any rate I think the work undoubtedly has aggravated 
 
              the condition.  I think this would be an appropriate 
 
              time for an impairment rating.
 
         
 
              On the basis of continued discomfort with normal range 
 
              of motion and virtually normal strength, I would assign 
 
              a 5% permanent partial impairment rating to the right 
 
              upper extremity.  This information is based on the, 
 
              "Guides to the Evaluation of Permanent Partial 
 
              Impairment" published by the American Medical 
 
              Association.  Because she has normal motion she does 
 
              not fit in the normal tables and so the 5% value is 
 
              primarily based on mild decrease in strength and 
 
              continued discomfort with lifting.
 
         
 
              No other physician has provided an impairment rating.  
 
         Claimant has been referred to a rheumatologist by Dr. Irey.  
 
         However, Nils S. Erikson, M.D., a rheumatologist, writes in his 
 
         letter of December 10., 1987:
 
         
 
              Gloria A. Stoltz presented for evaluation of a possible 
 
              evolving rheumatic disorder.  She has had problems with 
 
              a painful right elbow for approximately 2 years.  The 
 
              pain began while doing heavy exertion at her factory 
 
              job.  It was clinically diagnosed as lateral 
 
              epicondylitis, but did not respond to rest, splinting, 
 
              soft tissue steroid injection, steroid phonophoresis, 
 
              soft tissue release surgery, or short trials of 
 
              non-steroidal anti-inflammatory drugs.  Shortly after 
 
              the surgery, the patient noted hand pain and swelling.  
 
              The hand swelling is generalized, and the pain is 
 
              localized to the joints.  The swellings are cool.  
 
              Other than stiffness of swelling, no morning gel is 
 
              noted.  Her energy is normal.  No other joints are 
 
              affected.
 
                  ...
 
         
 
              The cause of the patient's elbow and wrist pain is not 
 
              clear.  The lateral epicondyle is still tender and 
 
              probably represents chronic epicondylitis....
 
         
 
              While Dr. Erikson's opinion corroborates Dr. Irey's opinion, 
 
         there is a lateral epicondylitis of the right elbow, Dr. Erikson 
 
         cannot causally connect a possible arthritic condition to the 
 
         work related injury on February 7, 1986.  However, he does 
 
         acknowledge that the only affected area is the arm which was 
 
         injured.  His medical charges should be paid by defendants since 
 
         the treating physician recommended claimant to Dr. Erikson.
 
         
 
              Claimant testified she has been examined by several 
 
         physicians at the University of Iowa Hospital and Clinics for 
 
         possible injuries due to the cortisone injections. which she 
 
         received subsequent to her work related injury.  Claimant has 
 
         also sought the payment of medical charges for these physicians.
 
         
 
              The record is devoid of any evidence that services rendered 
 

 
         
 
         
 
         
 
         STOLTZ V. KELLER INDUSTRIES, INC.
 
         PAGE   5
 
         
 
         
 
         by William J. Lawton, M.D., William M. Nauseef, M.D., or Tony P. 
 
         Smith, M.D., are causally connected to claimant's work related 
 
         injury.  In fact, defendants' exhibit 1 supports the position 
 
         that claimant has been treated for hypertension, an unrelated 
 
         condition.  Since the condition of hypertension is not causally 
 
         connected to the work related injury, defendants are not required 
 
         to incur medical expenses for Dr. Lawton, Dr. Nauseef, Dr. Smith, 
 
         or Dr. Laube.  Claimant acknowledges Dr. Laube's treatment is for 
 
         an unrelated medical problem.
 
         
 
              The real question which is raised by the parties is whether 
 
         claimant's arm complaints are causally connected to her injury on 
 
         February 7, 1986.  Claimant has met her burden in showing such a 
 
         causal connection.  The opinion of Dr. Irey, and the testimony of 
 
         claimant support such a result.  The opinion of Dr. Irey supports 
 
         a finding of permanent impairment.  The parties have stipulated 
 
         that any finding of permanent impairment is a scheduled member 
 
         disability to the right upper extremity.  Claimant has sustained 
 
         a five percent scheduled member disability.
 
         
 
              The rate of weekly compensation is found to be $97.19 per 
 
         week.  This rate is calculated as $3.50 per hour for 40 hours per 
 
         week for a total of $140.00 in gross wages.  Claimant is single 
 
         with three exemptions.
 
         
 
                     FINDINGS OF FACT AND CONCLUSIONS OF LAW
 
         
 
              WHEREFORE, based on the evidence presented and the 
 
         principles of law previously stated, the following findings of 
 
         fact and conclusions of law are made:
 
         
 
              FINDING 1.  On February 7, 1986, claimant was injured while 
 
         working for defendants.
 
         
 
              CONCLUSION A.  On February 7, 1986, claimant received an 
 
         injury arising out of and in the course of her employment with 
 
         defendants.
 
         
 
              FINDING 2.  As a result of that injury, claimant sustained a 
 
         lateral epicondylitis of the right elbow.
 
         
 
              CONCLUSION B.  Claimant met her burden of proving a causal 
 
         connection between her injury on February 7, 1986 and her right 
 
         arm and elbow complaints.
 
         
 
              FINDING 3.  Claimant has a five percent permanent impairment 
 
         of the right upper extremity as a result of the February 7, 1986 
 
         injury.
 
         
 
              CONCLUSION C.  Claimant has a permanent partial disability 
 
         of five percent of the right upper extremity as a result of the 
 
         February 7, 1986 injury.
 
         
 
              FINDING 4.  Claimant has established that the weekly rate 
 
         for benefits is $97.19 per week.
 
         
 
              FINDING 5.  As a result of her injury on February 7, 1986, 
 
         claimant has incurred the following medical expenses which have 
 
         not been paid by defendants:
 
         
 
              Dr. Erikson, University of Iowa
 
              Hospitals and Clinic                 $  85.00
 
         
 

 
         
 
         
 
         
 
         STOLTZ V. KELLER INDUSTRIES, INC.
 
         PAGE   6
 
         
 
         
 
         
 
              CONCLUSION E.  Claimant has established there is a causal 
 
         connection of the expenses to treatment for the charges of Dr. 
 
         Erikson and defendants are liable for the same.
 
         
 
              FINDING 6.  Claimant was in the healing period from July 30, 
 
         1986 to October 3, 1986, for a total of five weeks.
 
         
 
              CONCLUSION F.  Claimant is entitled to healing period 
 
         benefits for the period from July 30, 1986 to October 3, 1986, at 
 
         the weekly rate of $97.19 per week.
 
         
 
                                      ORDER
 
         
 
              THEREFORE,  defendants  are  to  pay  unto  claimant  twelve 
 
         point five (12.5) weeks of permanent partial disability benefits 
 
         for a five percent (5%) scheduled member loss of the right upper 
 
         extremity at a rate of ninety-seven and 19/100 dollars ($97.19) 
 
         per week.
 
         
 
              Defendants are to pay unto claimant five (5) weeks of 
 
         healing period benefits at a rate of ninety-seven and 19/100 
 
         dollars ($97.19) per week.
 
         
 
              Defendants are to reimburse claimant for the amount of Dr. 
 
         Erikson's charges in the sum of eighty-five and no/100 dollars 
 
         ($85.00) to the University of Iowa Hospitals and Clinics.
 
         
 

 
         
 
         
 
         
 
         STOLTZ V. KELLER INDUSTRIES, INC.
 
         PAGE   7
 
         
 
         
 
              Accrued benefits are to be made in a lump sum together with 
 
         statutory interest at the rate of ten percent (10%) per year 
 
         pursuant to section 85.30, Code of Iowa, as amended.
 
         
 
              Defendants shall receive credit for benefits previously 
 
         paid.
 
         
 
              Costs are taxed to defendants pursuant to Division of 
 
         Industrial Services Rule 343-4.33.
 
         
 
              Defendants shall file a final report upon payment of this 
 
         award.
 
         
 
         
 
              Signed and dated this 24th day of October, 1988.
 
         
 
         
 
         
 
         
 
         
 
                                          MICHELLE A. McGOVERN
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. David W. Newell
 
         Attorney  at  Law
 
         323 E. 2nd St.
 
         P. O. Box 175
 
         Muscatine, Iowa 52761
 
         
 
         Mr. E. J. Kelly
 
         Attorney at  Law
 
         Terrace Center, STE 111
 
         2700 Grand Ave.
 
         Des Moines, Iowa 50312
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                              1108; 1803; 2500
 
                                              Filed October 24, 1988
 
                                              MICHELLE A. McGOVERN
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         GLORIA STOLTZ,
 
         
 
              Claimant,                          File No. 830058
 
         
 
         vs.                                  A R B I T R A T I O N
 
         
 
         KELLER INDUSTRIES, INC.,                D E C I S I O N
 
         
 
              Employer,
 
         
 
         and
 
         
 
         PACIFIC EMPLOYERS INS./CIGNA,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
         1108; 1803
 
         
 
              It was determined that claimant sustained an injury which 
 
         arose out of and in the course of employment with employer.
 
         
 
              Claimant was awarded a permanent disability in that a 5 
 
         percent scheduled member disability to the right upper extremity 
 
         was found to be causally connected to the work injury.
 
         
 
         2500
 
         
 
              Claimant was also awarded 85.27 benefits in part.