Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            FRANCES M. CARNES,            :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :         File No. 836644
 
            SHEAFFER EATON,               :
 
                                          :      A R B I T R A T I O N
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            AETNA CASUALTY & SURETY       :
 
            COMPANY,                      :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding in arbitration upon claimant's 
 
            petition filed May 18, 1987.  Claimant was injured through 
 
            exposure to toxic substances on October 21, 1986 and now 
 
            seeks benefits under the Iowa Workers' Compensation Act from 
 
            Sheaffer Eaton, her employer, and Aetna Casualty & Surety 
 
            Company, its insurance carrier.
 
            
 
                 Hearing on the arbitration petition was had in 
 
            Burlington, Iowa, on August 2, 1990.  The record consists of 
 
            joint exhibits 1 through 36 (many of which are duplicates 
 
            and some of which are relevant to the issues to be decided) 
 
            and the testimony of the following witnesses:  claimant, Roy 
 
            Carnes, Terry Butler, Barbara Thomas and Phyllis Fox.
 
            
 
                                      issues
 
            
 
                 Pursuant to the prehearing report, the parties have 
 
            stipulated:  that claimant sustained an injury arising out 
 
            of and in the course of her employment with Sheaffer Eaton 
 
            on October 21, 1986; that the injury caused temporary 
 
            disability; that if claimant has sustained permanent 
 
            disability, it is an industrial disability to the body as a 
 
            whole and the commencement date is November 11, 1986; that 
 
            the appropriate rate of weekly benefits is $185.70; that 
 
            defendants paid five weeks, five days of compensation at the 
 
            stipulated rate prior to hearing.
 
            
 
                 Issues presented for resolution include:  whether the 
 
            work injury caused permanent disability; the extent of 
 
            claimant's entitlement to compensation for temporary and 
 
            permanent disability; the extent of claimant's entitlement 
 
            to certain specified medical benefits (it is stipulated that 
 
            fees and expenses were fair and reasonable and incurred for 
 
            reasonable and necessary treatment, but it is disputed 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            whether those expenses are causally connected to the work 
 
            injury or authorized by defendants); taxation of costs.
 
            
 
                                 findings of fact
 
            
 
                 The undersigned deputy, having heard the testimony and 
 
            considered all of the evidence, finds:
 
            
 
                 Claimant, age 63 at hearing and with a history of 
 
            smoking about one pack of cigarettes per day for 30 years, 
 
            worked as a factory production worker for Sheaffer Eaton for 
 
            about seven years prior to October 21, 1986.
 
            
 
                 Claimant had a medical restriction against lifting in 
 
            excess of 25 pounds for years prior to the injury, but 
 
            worked on an off-and-on basis when jobs could be made 
 
            available for her within those restrictions.  Many of the 
 
            positions claimant worked involved exposure to various 
 
            fumes.
 
            
 
                 On October 21, 1986, claimant was engaged in silk 
 
            screening advertisements onto pens manufactured by Sheaffer 
 
            Eaton, and had been doing so for approximately one year.  
 
            The process included mixing and using paint and paint 
 
            thinner.  At lunch that day, claimant was "hit" with 
 
            symptoms of dizziness, a "burning" in the chest, swollen 
 
            lips, headache and eye ache.  Claimant continued working, 
 
            but felt ill by the end of the day.
 
            
 
                 Claimant sought treatment from Robert M. Pogue, M.D., a 
 
            specialist in general practice and internal medicine.  Dr. 
 
            Pogue testified by deposition on April 14, 1988.
 
            
 
                 She was admitted to Burlington Medical Center by Dr. 
 
            Pogue on October 24 and discharged on November 6, 1986.  On 
 
            October 30, Dr. Pogue wrote that claimant was a heavy smoker 
 
            and her underlying chronic obstructive pulmonary disease 
 
            (COPD, also known as emphysema) was a result of smoking and 
 
            not the fumes at work, but that the fumes aggravated her 
 
            condition and possibly resulted in her initial asthma 
 
            attack.  He suggested that at least two weeks of claimant's 
 
            anticipated six weeks of sick leave was work related and the 
 
            rest smoking related.  He also wrote that Shan Bedi, M.D., a 
 
            pulmonary specialist, also agreed with the opinion.  Dr. 
 
            Pogue's discharge notes reflected that disability for the 
 
            lung condition was probably not indicated, although claimant 
 
            should avoid paint fumes at work in the future.  He 
 
            anticipated returning claimant to work on December 1, 1986.  
 
            Discharge diagnosis was:  (1) asthmatic bronchitis; (2) 
 
            chronic anxiety state with possible associated depression; 
 
            (3) mild chronic obstructive pulmonary disease.
 
            
 
                 Claimant was seen for consultation upon Dr. Pogue's 
 
            referral by B. G. Pineda, M.D.  That physician adopted Dr. 
 
            Pogue's diagnoses, but added generalized anxiety disorder 
 
            and recommended increasing medication and teaching claimant 
 
            relaxation techniques through hypnosis so as to quit 
 
            smoking.
 
            
 
                 Claimant apparently returned to work for one day on 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            December 1, 1986, but was thereafter laid off on the next 
 
            day in a general temporary layoff.  Given claimant's lifting 
 
            restrictions, restrictions against breathing fumes and level 
 
            of seniority, she has not been recalled to work.
 
            
 
                 In his deposition testimony, Dr. Pogue noted that his 
 
            initial determination was that claimant suffered from asthma 
 
            complicated by an infection at the time of her hospital 
 
            admission.  He presumed that claimant's asthma was 
 
            aggravated from paint fumes at her place of employment.  He 
 
            did not anticipate that claimant would have any permanent 
 
            impairment so long as she was not re-exposed to such agents 
 
            as paint thinners and cleaning fluids.
 
            
 
                 Dr. Pogue noted that one of the hallmarks of an asthma 
 
            condition such as claimant's was that it is episodic in 
 
            nature, that it comes on in discrete attacks.  One need not 
 
            be currently suffering from symptomatic asthma in order to 
 
            have an asthmatic reaction to a particular irritant.  The 
 
            doctor testified:
 
            
 
                 Q.  If Mrs. Carnes had not returned to work but 
 
                 contends that she has breathing difficulties and 
 
                 that general feeling of lack of energy and malaise 
 
                 at the present time--assume that for the 
 
                 moment--would the fact that she might still have 
 
                 those type of complaints but never have gone back 
 
                 to any prolonged exposure at Sheaffer, suggest 
 
                 anything to you in terms of whether there might be 
 
                 other causes for her condition?
 
            
 
                 A.  Certainly.
 
            
 
                 Q.  And I take it, the fact that she would have 
 
                 those symptoms without exposure to the antigen or 
 
                 the offending irritant might cause you to question 
 
                 whether the irritant was the original cause or 
 
                 not?
 
            
 
                 A.  Yes.
 
            
 
            (Dr. Pogue deposition, page 19, lines 12 through line 25)
 
            
 
                 And:
 
            
 
                 Q.  Doctor, I do have a couple more questions.  
 
                 The fact that-- If she, in fact, has continued to 
 
                 have some problems, you've been asked whether or 
 
                 not that would suggest maybe there is some other 
 
                 combination of causes or cause.  Could it also 
 
                 suggest that she's had permanent damage as a 
 
                 result of what we've talked about?
 
            
 
                 A.  Yes, I think it could.
 
            
 
                 Q.  In fact, if there was permanent damage, you 
 
                 would expect her to continue to have some type of 
 
                 problem, would you not?
 
            
 
                 A.  Yes.
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            
 
            (Dr. Pogue deposition, page 21, lines 6 through 16)
 
            
 
                 But, on examination by defense counsel:
 
            
 
                 Q.  When he indicates that the continued symptoms 
 
                 that Mrs. Carnes has today might be a sign of 
 
                 permanent damage, without having examined her 
 
                 recently or having seen her for a good number of 
 
                 months, is it almost impossible for you to say 
 
                 whether her current symptoms would be caused by 
 
                 some permanent damage from the exposure to these 
 
                 paint fumes as opposed to the development or 
 
                 progression of, for example, a chronic obstructive 
 
                 pulmonary disease?
 
            
 
                 A.  That's right.
 
            
 
            (Dr. Pogue deposition, page 22, line 21 through page 23, 
 
            line 5)
 
            
 
                 Claimant currently complains of shortness of breath 
 
            upon exertion, a lack of energy, and a sensitivity to other 
 
            fumes and smoke, including cleaning fluids and various 
 
            aerosol products.
 
            
 
                 Claimant seeks compensation for a hospital bill 
 
            totalling $233.80 (for a mammogram test), Dr. Pineda's bill 
 
            of $51.72, a bill from Dr. Bedi, totalling $111.94, and a 
 
            bill from Heritage Park Pharmacy totalling $29.13.
 
            
 
                                conclusions of law
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury of October 21, 
 
            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 
 
            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 
 
            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).
 
            
 
                 The parties stipulate that claimant sustained a work 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            injury as alleged that caused temporary disability.  Since 
 
            this decision finds that claimant has not established 
 
            entitlement to permanent disability, this is compensable as 
 
            temporary total disability under Iowa Code sections 85.32 
 
            and 85.33.  Even though Dr. Pogue indicated that only two 
 
            weeks of claimant's temporary disability was related to the 
 
            work injury as opposed to her underlying asthmatic 
 
            condition, it is true that the work injury at least 
 
            aggravated or lighted up the underlying condition on a 
 
            temporary basis, thus rendering that entire period of 
 
            disability compensable.  Nicks v. Davenport Produce Co., 254 
 
            Iowa 130, 115 N.W.2d 812 (1962).
 
            
 
                 Pursuant to sections 85.32 and 85.33, compensation for 
 
            temporary total disability extending beyond fourteen days is 
 
            payable from the date of injury until the employee has 
 
            returned to work or is medically capable of returning to 
 
            substantially similar employment, whichever first occurs.  
 
            Claimant first returned to work on December 1, 1986.  Given 
 
            that she first missed work on October 22, she is entitled to 
 
            five weeks, five days of temporary total disability 
 
            benefits.  As defendants voluntarily paid this amount to 
 
            claimant, there is no further liability for temporary total 
 
            disability.
 
            
 
                 Claimant's weight lifting restriction preceded the 
 
            subject work injury.  The only restriction related to the 
 
            work injury is an injunction against exposure to irritating 
 
            fumes.  Pursuant to Dr. Pogue's opinion, claimant's 
 
            complaints of shortness of breath and lack of energy are as 
 
            probably related to her underlying conditions of asthma and 
 
            emphysema as they are to her exposure to paint or thinner 
 
            fumes at work.  Thus, it is necessary to determine whether 
 
            that restriction was placed on claimant because of the 
 
            subject work injury or as a result of the underlying 
 
            condition.
 
            
 
                 This deputy has previously determined that such a 
 
            restriction is causally related to the work injury only if 
 
            claimant proves that the injury itself has caused some 
 
            physiologic change so as to make her more sensitive to 
 
            irritating substances than was previously the case.  Kuehn 
 
            v. Fisher Controls Int'l, file number 814538 (Arb. Decn., 
 
            1990).  That is also the case here.  Claimant has been 
 
            advised to avoid toxic or irritating fumes, but the record 
 
            does not establish that this restriction relates to her 
 
            injury as opposed to her preexisting conditions of asthma 
 
            and emphysema.  Claimant has a 30 pack-year history of 
 
            smoking unfiltered cigarettes (she smokes filtered 
 
            cigarettes since the incident) and resides with at least one 
 
            smoker, her husband.  The record simply does not contain 
 
            evidence to establish that claimant has any heightened 
 
            sensitivity to fumes or such substances resulting from her 
 
            exposure at work as opposed to the underlying condition.  
 
            Accordingly, she has no compensable permanent disability.
 
            
 
                 Claimant's hospital bill for a mammogram has not been 
 
            shown to be related to the work injury.  Dr. Pineda has been 
 
            shown to have seen claimant on referral from Dr. Pogue.  
 
            While Dr. Pogue was not initially seen as an authorized 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            physician, defendants have acquiesced in his care.  Referral 
 
            from an authorized physician renders the subsequent 
 
            physician authorized for purposes of awarding medical 
 
            benefits.  Munden v. Iowa Steel & Wire, Thirty-third 
 
            Biennial Report of the Industrial Commissioner 99 (1977).  
 
            Therefore, Dr. Pineda's bill of $51.72 shall be reimbursed 
 
            to claimant.  Dr. Bedi's has not been shown to be 
 
            authorized.  Defendants' obligation to furnish medical 
 
            treatment carries with it the privilege of selecting the 
 
            care.  The authorization defense succeeds as to Dr. Bedi.  
 
            Boyce v. Consumers Supply Dist. Co., II Iowa Industrial 
 
            Commissioner Report 50 (App. Decn., 1981).  The record does 
 
            not show that the Heritage Park Pharmacy bill is causally 
 
            related to the subject work injury.
 
            
 
                                      order
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 Defendants shall reimburse claimant fifty-one and 
 
            72/100 dollars ($51.72) for Dr. Pineda's bill under Iowa 
 
            Code section 85.27.
 
            
 
                 The costs of this action shall be assessed to 
 
            defendants pursuant to rule 343 IAC 4.33.
 
            
 
                 Signed and filed this ______ day of ____________, 1991.
 
            
 
                 
 
            
 
                 
 
                 
 
                                          ______________________________
 
                                          DAVID RASEY
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. James P. Hoffman
 
            Attorney at Law
 
            Middle Road
 
            P.O. Box 1066
 
            Keokuk, Iowa  52632
 
            
 
            Mr. Thomas N. Kamp
 
            Mr. Thomas J. Shields
 
            Attorneys at Law
 
            600 Davenport Bank Building
 
            Davenport, Iowa  52801
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                           1108.30; 2205
 
                           Filed February 7, 1991
 
                           DAVID RASEY
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            FRANCES M. CARNES,  :
 
                      :
 
                 Claimant, :
 
                      :
 
            vs.       :
 
                      :         File No. 836644
 
            SHEAFFER EATON,     :
 
                      :      A R B I T R A T I O N
 
                 Employer, :
 
                      :         D E C I S I O N
 
            and       :
 
                      :
 
            AETNA CASUALTY & SURETY  :
 
            COMPANY,  :
 
                      :
 
                 Insurance Carrier,  :
 
                 Defendants.    :
 
            ____________________________________________________________
 
            
 
            1108.30; 2205
 
            Claimant suffered asthmatic reaction to paint and paint 
 
            thinner fumes, causing temporary disability.  She was 
 
            thereafter medically restricted from working around fumes.  
 
            However, claimant did not prove that the work injury caused 
 
            any heightened sensitivity or that the restrictions were 
 
            causally related to the exposure as opposed to preexisting 
 
            sensitivity and history of COPD.
 
            
 
 
         
 
         Page   1
 
         
 
         
 
         
 
         
 
         
 
                     before the iowa industrial commissioner
 
         ____________________________________________________________
 
                                       :
 
         LEO WATERS,                   :
 
                                       :
 
              Claimant,                :
 
                                       :        File No. 803244
 
         vs.                           :                 837030
 
                                       :
 
         AUTO CONVOY COMPANY,          :     A R B I T R A T I O N
 
                                       :
 
              Employer,                :             A N D
 
                                       :
 
         and                           :         R E V I E W -
 
                                       :
 
         LIBERTY MUTUAL INSURANCE      :       R E O P E N I N G
 
         COMPANY,                      :
 
                                       :        D E C I S I O N
 
              Insurance Carrier,       :
 
              Defendants.              :
 
         ___________________________________________________________
 
         
 
                              statement OF THE CASE
 
         
 
              This case came on for hearing on October 22, 1990, in Des 
 
         Moines, Iowa.  Claimant brought both of these proceedings as 
 
         review-reopening but based on the facts of the cases, the 
 
         September 5, 1986 injury is actually an arbitration case and 
 
         should have been brought as such.  There is no record of any 
 
         settlement or agreements with the industrial commissioner nor any 
 
         agreement for settlement which has been approved by the 
 
         industrial commissioner.  The undersigned deputy will proceed in 
 
         this decision as if the March 4, 1985 case is a review-reopening 
 
         and the September 5, 1986 case as an arbitration case.  There is 
 
         no prejudice to the parties by proceeding in this manner.  
 
         Claimant seeks permanent partial disability benefits regarding an 
 
         injury to his right shoulder on March 4, 1985 which the parties 
 
         agree is a body as a whole injury.  Claimant further seeks 
 
         permanent partial disability benefits as a result of a September 
 
         5, 1986 injury to his left shoulder concerning a dispute as to 
 
         whether that injury is to the body as a whole or a scheduled 
 
         member injury.  The record in the proceeding consists of the 
 
         testimony of claimant, Mike Raymond and Gerald Goll; and joint 
 
         exhibits 1, 2, 3, 5 and 7.
 
         
 
                                      issues
 
         
 
              The issues for resolution are:
 
         
 
              1.  Regarding the March 4, 1985 right shoulder injury, the 
 
         extent of claimant's permanent disability and entitlement to 
 
         disability benefits; and,
 
         
 
              2.  Regarding the September 5, 1986 left shoulder injury, 
 
         the nature and extent of claimant's permanent disability and 
 
         entitlement to disability benefits, and whether claimant's left 
 
         shoulder injury is a body as a whole or scheduled member injury.
 
         
 
                                 findings of fact
 

 
         
 
         Page   2
 
         
 
         
 
         
 
         
 
         
 
              The undersigned deputy having heard the testimony and 
 
         considered all the evidence, finds that:
 
         
 
              Claimant is a 58-year-old high school graduate.  Claimant 
 
         went through trade school for the purposes of learning the 
 
         barber's trade.  Claimant related his prior work history before 
 
         beginning work with the current employer or his predecessor 
 
         beginning in 1974.  This prior experience involved serving in the 
 
         national guard, working as a county surveyor, a cosmetology 
 
         salesman, a salesman of FM radio equipment background music and 
 
         rustoleum paints, a bar operator, consumer protection 
 
         investigator, and semi tractor-trailer driver.  Claimant contends 
 
         that prior to 1974 he had no physical problems.  Claimant has 
 
         been transporting motor vehicles to various dealers for 
 
         approximately the last seventeen years.  Defendant employer is 
 
         the successor to former predecessors of this business.
 
         
 
              The parties have stipulated as to both injuries arising out 
 
         of and in the course of claimant's employment.  Because of the 
 
         limited issues in this case, there is no need to elaborate on 
 
         certain facts.
 
         
 
              Claimant was off work as a result of the March 4, 1985 right 
 
         shoulder injury beginning March 5, 1985 to and including January 
 
         12, 1986, for which time claimant was paid all healing period 
 
         benefits which amounted to 45 weeks at the rate of $505.95.
 
         
 
              Claimant was off work from his left September 5, 1986 left 
 
         shoulder injury beginning September 6, 1986 through May 17, 1987 
 
         and was also paid all healing period benefits for that period 
 
         which amounted to 36.286 weeks at the rate of $369.91.
 
         
 
              Claimant currently operates a semi tractor truck which hauls 
 
         new vehicles on a specialized trailering system.  This trailer 
 
         holds as many as nine vehicles on two levels.  The company for 
 
         which claimant works now is called Allied Systems, which is a 
 
         successor of defendant employer.  As a part of claimant's job, he 
 
         is required to both load and unload the vehicles from the trailer 
 
         unit as well as tie down the vehicles to the trailer.  Claimant 
 
         described how he has to climb on top of the truck using either a 
 
         separate ten foot ladder or a pull down ladder and how he has to 
 
         hold on with one arm, how he has to tie down the vehicles and put 
 
         the skids into place.  The undersigned noted that claimant moved 
 
         his arms with a fluent and unrestricted motion as he explained 
 
         his procedure.  Trips are assigned by seniority.  Once his truck 
 
         is loaded, he then drives to the various destinations which may 
 
         be anything from two to seven stops.
 
         
 
              Joint Exhibit 5 indicates the manner in which claimant was 
 
         paid.  His pay was based on the number of miles driven, loading 
 
         and unloading, and drop-off pay.  Joint Exhibit 5, page 20, 
 
         reflects claimant's earnings in 1984 through year to date 1990 
 
         (September 27, 1990).  Assuming claimant's monthly average for 
 
         1990 was consistent for the remainder of the year, it appears 
 
         claimant's income for 1990 would be approximately $37,300, which 
 
         would be at least 10 percent more than in 1989 and over 40 
 
         percent more than he made in 1986.  Claimant described the 
 
         problems he was having in January 1986 in trying to climb the 
 
         ladders using his legs and arms to hold on to the trailer.  
 

 
         
 
         Page   3
 
         
 
         
 
         
 
         
 
         Because of his right arm injury, he indicated he had to use his 
 
         left arm instead due to fatigue.  It was on January 13, 1986 that 
 
         he had returned to work from his March 4, 1985 injury.  He 
 
         acknowledged he returned to work without restrictions.
 
         
 
              On June 18, 1985, Scott B. Neff, D.O., performed surgery on 
 
         claimant which consisted of acromionectomy, coracoacromial 
 
         ligament release, and a repair of the supraspinautus tendon.
 
         
 
              Claimant explained the nature of his work injury that 
 
         occurred on September 5, 1986.  Claimant said he had surgery  
 
         October 25, 1986 on his left shoulder.  The medical records are 
 
         very poor as to this surgery or its description.  It would appear 
 
         that he had similar surgery on the left as he did on the right.  
 
         Karen Kienker, M.D., Physical Medicine & Rehabilitation, Iowa 
 
         Methodist Medical Center, had that impression when she wrote in a 
 
         report dated June 18, 1990:
 
         
 
              Impression:
 
         
 
              1)  Myofascial syndrome, status post rotator cuff 
 
              repair bilaterally.
 
         
 
         (Jt. Ex. 3, p. 85)
 
         
 
              Claimant took off his shirt and exhibited the extensive 
 
         scars over his shoulders.  It appeared that there was a scar 
 
         approximately two inches from the left front of the shoulder 
 
         beginning in front of the shoulder and over the top shoulder cap 
 
         and down to approximately five inches to the end of claimant's 
 
         clavicle.  The right shoulder scar from the surgery resulting 
 
         from the 1985 injury was basically the same but possibly went 
 
         down further on the body.
 
         
 
              Dr. Neff, who performed the surgeries, wrote in a July 18, 
 
         1988 report (Jt. Ex. 3, p. 1):  "As you know, the patient 
 
         underwent rotator cuff surgery back on June 18, 1985 and also had 
 
         an impingement and mumford procedure performed on his left 
 
         shoulder on November 25, 1986."  At that time, the doctor opined 
 
         a percent of permanent impairment indicating that the right 
 
         shoulder had a body as a whole impairment since it involved the 
 
         rotator cuff and that the left shoulder was an upper extremity 
 
         permanent impairment since it did not involve the rotator cuff.  
 
         It is obvious the doctor at that time felt that since the left 
 
         shoulder did not involve the rotator cuff, it should be rated on 
 
         an extremity rating.  The undersigned acknowledges that this is 
 
         an area often difficult from the medical standpoint and the 
 
         deputy has to determine whether a shoulder injury is to the body 
 
         as a whole or to an upper extremity.  The undersigned does have a 
 
         difficult time in seeing where Dr. Neff is arriving at his 
 
         premises when you look at the point of surgery on each shoulder 
 
         and the scars that are left.  The undersigned cannot imagine that 
 
         an incision on the left shoulder would occur at the point that is 
 
         evidenced currently on the claimant's body if it wasn't intended 
 
         to reach some point of claimant's body and shoulder in the 
 
         immediate area of the incision.  On October 1, 1990, Dr. Neff 
 
         wrote a report (Jt. Ex. 3, p. 42) in which he further evaluated 
 
         claimant and noted some additional inconsistent glenohumeral 
 
         joint crepitation bilaterally.  Thomas W. Bower, L.P.T., who is 
 
         closely associated with Dr. Neff, wrote on October 1, 1990:
 

 
         
 
         Page   4
 
         
 
         
 
         
 
         
 
         
 
                 In the past, the rating was derived from the 2nd 
 
              edition and the current rating today is being utilized 
 
              with the 3rd edition.  The basic rating is 
 
              approximately the same as what was arrived at 
 
              previously, however, we have now added the joint 
 
              crepitation and glenohumeral crepitation noted.  
 
              Basically, the left upper extremity has sustained a 12% 
 
              impairment to the left upper extremity, but with the 
 
              addition of the 6% accountability for the glenohumeral 
 
              joint crepitation, combines to a 17% impairment to the 
 
              left upper extremity.  Right sided motions account for 
 
              a 13% impairment to the right upper extremity, again 
 
              with the crepitation noted in, combines to an 18% 
 
              impairment to the right upper extremity.  We do not 
 
              believe that the numbness the patient is experiencing 
 
              over the last two digits of the left hand are a result 
 
              of his shoulder and may be from an ulnar nerve 
 
              entrapment and perhaps needs to be further evaluated.
 
         
 
         (Jt. Ex. 3, pp. 42 & 43)
 
         
 
              The undersigned believes the above impairment ratings also 
 
         have the blessing of Dr. Neff in light of the fact that the 
 
         previous evaluation and rating that was referred to by Mr. Bower 
 
         referred to Dr. Neff's and Mr. Bower's July 18, 1988 report (Jt. 
 
         Ex. 3, pp. 1 & 2) which was signed by both Dr. Neff and Mr. Bower 
 
         and was actually on the stationary of the Physical Therapy 
 
         Consultants, of which Mr. Bower is a licensed physical therapist.
 
         
 
              The undersigned notes that claimant, in his answer to 
 
         interrogatory No. 16, indicated:
 
         
 
                 I have constant pain in my right shoulder and into 
 
              my neck.  I can't sleep at night, particularly when I 
 
              have exercised during the day or roll over onto the 
 
              shoulder.  The increased intensity of the pain awakens 
 
              me.  I can't lift my arm higher than shoulder level at 
 
              the side, can't put a belt on, and can't put my hand 
 
              into my right back pocket.  My shoulder and right 
 
              pectoral muscle strength is substantially decreased.  
 
              My left heel nerve is permanently damaged.  It is 
 
              always numb, and hurts when I do a lot of walking.
 
         
 
         (Jt. Ex. 3, p. 20)
 
         
 
              This answer by claimant was sworn to on November 5, 1989.  
 
         There is no mention as to any left shoulder problem at that time.  
 
         It could be that since interrogatory No. 15 referred to the March 
 
         1985 injury, that claimant may have been answering only as to 
 
         that injury, but he seems not to be holding back on his 
 
         complaints and bringing everything he could possibly think of as 
 
         to the residue of his injury, especially when he testified in 
 
         court.  Interrogatory No. 3, in addition to the heading of the 
 
         interrogatories, obviously is intended to cover both the March 
 
         1985 and the September 1986 injuries.  In claimant's answer to 
 
         interrogatory No. 20, he contends he was still in the healing 
 
         period.  Taking the interrogatories as a whole, it would appear 
 
         that he was still in the healing period from his 1985 injury.  Of 
 
         course, this is not the fact and is contrary to the medical 
 

 
         
 
         Page   5
 
         
 
         
 
         
 
         
 
         evidence.  The undersigned does believe that claimant has 
 
         overexaggerated the extent of his medical problems.
 
         
 
              Claimant filed a review-reopening as to the March 4, 1985 
 
         injury.  On September 16, 1987, Deputy Industrial Commissioner 
 
         Mike Trier rendered a decision in which the parties set out as 
 
         the sole issue, "whether or not the state of Iowa has subject 
 
         matter jurisdiction over this claim."  In fact, in the Order, it 
 
         not only resolved the jurisdictional question, but did set out 
 
         the healing period of March 5, 1985 to and including January 12, 
 
         1986, involving 44.857 weeks that the defendants should pay.  
 
         There was no determination of any permanent disability and, 
 
         likewise, there should be no inference that there was no 
 
         permanent disability anticipated.  The undersigned takes said 
 
         decision as strictly referring to the healing period stipulated 
 
         by the parties which happens to be the same healing period 
 
         stipulated to by the parties in this current decision and to 
 
         which the parties are not disputing.  Therefore, any change of 
 
         circumstances that would be an issue in this current decision 
 
         would be as to whether there is, in fact, any permanent partial 
 
         disability.
 
         
 
              The claimant contends he has a substantial loss of income, 
 
         anywhere from 46 percent to 50 percent.  Claimant contends that 
 
         he could be or would be earning around $62,000 to $67,000 per 
 
         year if it wasn't for his injuries.  Claimant contends that this 
 
         loss of income is primarily the result of his March 4, 1985 
 
         injury.
 
         
 
              It appears that defendant employer closed the Des Moines 
 
         terminal in September 1984 which resulted in work changes.  It 
 
         appears that the loads then were assigned from Kansas City, 
 
         Missouri.  This affected one's income.  It appears that it is 
 
         beneficial to have longer hauls so that more miles in a shorter 
 
         period of time can be accumulated which would increase pay.  
 
         Although one is apparently paid for loading and unloading, the 
 
         less loading and unloading that occur on a trip results in 
 
         greater pay by building up more driving miles in a lesser period 
 
         of time.  It appears claimant has elected to live here in Des 
 
         Moines and says that he now does not get the benefit of longer 
 
         hauls, thereby making less per mile and having to load and unload 
 
         more.  The evidence indicates that claimant has elected on a 
 
         number of occasions not to bid on loads that require him to 
 
         travel longer distances which would enable him to make more 
 
         money.  It appears that he has not bid on certain other positions 
 
         which have become available since the April 23, 1987 hearing.
 
         
 
              Mr. Goll, the terminal manager for Allied Systems, testified 
 
         that it is the responsibility of the employee to bid on various 
 
         loads and new employment positions within the company.  He 
 
         indicated that to the best of his knowledge claimant has not bid 
 
         on any employment positions since his original injury in 1985.  
 
         Mr. Goll indicated that there were some people with less 
 
         seniority than claimant who were working in positions in which 
 
         claimant could bump, at least at the time of the bidding.  Mr. 
 
         Goll indicated claimant was a good employee and was able to do 
 
         the job.  He said it was alright if he worked slower if it 
 
         prevented him from getting hurt.  Mr. Goll said that if claimant 
 

 
         
 
         Page   6
 
         
 
         
 
         
 
         
 
         transferred to Kansas City, the opportunities would be greater.  
 
         Of course, there is no requirement that claimant transfer to 
 
         Kansas City but, likewise, the mere fact that the Des Moines 
 
         terminal closed was not due to claimant's injuries but just 
 
         happened to be a circumstance that would affect all workers 
 
         regardless of injury or no injury when a particular terminal 
 
         closes.
 
         
 
              Regarding the March 4, 1985 injury, file No. 803244, the 
 
         only issue is the extent of claimant's permanent disability.  The 
 
         parties have agreed that this right shoulder injury did, in fact, 
 
         result in a body as a whole Impairment. 
 
         
 
              The October 1, 1990 report of Thomas Bower, L.P.T., which 
 
         the undersigned also finds has the blessings of Dr. Neff, opined 
 
         an 18 percent impairment to claimant's right upper extremity.  
 
         The parties agreed that this 18 percent would, in fact, convert 
 
         to 11 percent impairment to the body as a whole.
 
         
 
              Claimant is in an industry in which the use of the arms, 
 
         shoulder and back are very important.  The undersigned believes 
 
         that claimant does have an impairment which results in pain and 
 
         has affected his ability to work.  Claimant contends he drives 
 
         less miles because he take shorter hauls and, therefore, must 
 
         load and unload thereby reducing the amount of miles he can 
 
         accumulate and yet he doesn't want to bid into long hauls whereby 
 
         he wouldn't have to load and unload as much.  It would seem that 
 
         the loading and unloading would be effected by the extent of his 
 
         impairment and injury.  One's earning capacity for industrial 
 
         disability is affected by many items, one of which is loss of 
 
         income.  Likewise, the general history of one's income as it 
 
         affects one's earning capacity should be taken into 
 
         consideration.  Claimant's contends that he is losing 
 
         approximately $30,000 per year because of his injury or injuries. 
 
         This is completely contradictory to his income picture 
 
         historically.  There is no evidence that claimant has made an 
 
         attempt to get out of his $34,000 income level and it appears 
 
         there have been opportunities for him to at least make an attempt 
 
         to see how he would be able to perform certain other jobs.  He 
 
         has not attempted to drive the long hauls.  Claimant is basically 
 
         doing the same type of work now as he was at the time of either 
 
         of his injuries and is using the transferable skills that he has 
 
         had as a truck driver and auto hauler for the last seventeen 
 
         years.
 
         
 
              Taking into consideration claimant's age, his medical 
 
         history, his work history, his income, impairment, extent of 
 
         motivation, and the other criteria that are used to determine the 
 
         extent of one's industrial disability, the undersigned finds that 
 
         claimant has a 20 percent industrial disability as a result of 
 
         his March 5, 1985 injury and that there has been a change of 
 
         circumstances, namely, that it is now determined that claimant 
 
         does have a permanent impairment and industrial disability which 
 
         is a change of circumstances from the status of claimant's March 
 
         1985 injury as it existed at the time of the decision of Deputy 
 
         Michael Trier on September 16, 1987.
 
         
 
              Attention now will be diverted to the September 5, 1986 
 
         injury to claimant's left shoulder.  The parties again stipulated 
 

 
         
 
         Page   7
 
         
 
         
 
         
 
         
 
         that there was an injury on that date that arose out of and in 
 
         the course of claimant's employment.  Defendants contend that it 
 
         was an upper extremity injury and any benefits would be based on 
 
         a scheduled injury.  Claimant contends that this left shoulder 
 
         injury also went to the body as a whole.  Dr. Neff seemed to 
 
         attempt to explain that this left shoulder injury is to be rated 
 
         as an upper extremity and not as a body as a whole.  Taking the 
 
         medical evidence as a whole, it appears that this conclusion is 
 
         weak and that the doctor, himself, may have had doubts.  Taking 
 
         the medical history and testimony as a whole, this agency's 
 
         expertise as to these type of injuries, and visibly looking at 
 
         the point of incision and the scar on claimant's left shoulder 
 
         and body area, the undersigned finds that claimant's September 5, 
 
         1986 left shoulder injury did, in fact, go into claimant's body 
 
         as a whole.  Claimant contends that the mere fact that defendants 
 
         paid 63 weeks of permanent partial disability benefits would 
 
         indicate that they thought it was a body as a whole injury since 
 
         the application of the impairment rating times the scheduled 
 
         injury number of weeks would be substantially less than the 63 
 
         weeks the defendants paid.  It is true that voluntary payments 
 
         are not admission of liability, but defendant insurance company 
 
         is not known to this agency to be overly generous.
 
         
 
              Mike Raymond, the claims supervisor for defendant insurance 
 
         company, did a poor job of defending his reasoning of why the 
 
         difference in the alleged overpayment.  Mr. Raymond acknowledged 
 
         that the amount of permanent partial disability benefits paid was 
 
         greater than the amount of physical impairment.  He further 
 
         acknowledged that defendant insurance company does not usually 
 
         overpay on scheduled members.  Mr. Raymond gave the impression he 
 
         had little knowledge of the file but this is questionable, 
 
         particularly since he is a claims supervisor for defendant 
 
         insurance company and obviously knew he was going to be 
 
         testifying.
 
         
 
              The parties agreed that the 17 percent impairment to the 
 
         left upper extremity as opined by Mr. Bower and as found by the 
 
         undersigned to have the acquiescence of Dr. Neff, would, in fact, 
 
         be the equivalent of 10 percent impairment to the body as a whole 
 
         if it was found there was a body as a whole impairment.  Claimant 
 
         now has an impairment to both shoulders that are body as a whole 
 
         impairments.  Although claimant is still working and performing 
 
         his duties with the appearance of no effect of the impairments, 
 
         it is obvious that claimant does have pain and is affected by the 
 
         impairment but is able to perform his work.  The employer is 
 
         satisfied with his work and if claimant feels it is necessary to 
 
         slow down so he will not further injure himself, they have 
 
         allowed him to do so.  Claimant, of course, contends that he has 
 
         substantially slowed down to his financial detriment.  The income 
 
         situation of the claimant has been previously discussed herein as 
 
         related to claimant's March 4, 1985 injury, but the same 
 
         discussion and conclusions can be had concerning claimant's 
 
         employment history and what financial effect has resulted from 
 
         claimant's September 5, 1986 injury.
 
         
 
              Taking into consideration claimant's age, work history, 
 
         medical history, prior injuries, transferable skills, impairment, 
 

 
         
 
         Page   8
 
         
 
         
 
         
 
         
 
         healing period, and the other criteria that are used to determine 
 
         one's industrial disability, the undersigned finds that claimant 
 
         has incurred a 15 percent industrial disability as a result of 
 
         his September 5, 1986 injury.
 
         
 
                                conclusions of law
 
         
 
              The expert opinion may be accepted or rejected, in whole or 
 
         in part, by the trier of fact.  Sondag v. Ferris Hardware, 220 
 
         N.W.2d 903 (Iowa 1974).  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 v. Fischer, Inc., 257 Iowa 
 
         516, 133 N.W.2d 867 (1965).  See also Musselman v. Central 
 
         Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
              An injury to a scheduled member may, because of after 
 
         effects (or compensatory change), result in permanent impairment 
 
         of the body as a whole.  Such impairment may in turn form the 
 
         basis for a rating of industrial disability.  Dailey v. Pooley 
 
         Lumber Co., 233 Iowa 758, 10 N.W.2d 569 (1943).  Soukup v. Shores 
 
         Co., 222 Iowa 272, 268 N.W. 598 (1936).
 
         
 
              An injury to a scheduled member which, because of 
 
         after-effects (or compensatory change), creates impairment to the 
 
         body as a whole entitles claimant to industrial disability.  
 
         Barton v. Nevada Poultry Co., 253 Iowa 285, 110 N.W.2d 660 
 
         (1961).  Daily v. Pooley Lumber Co., 233 Iowa 758, 10 N.W.2d 569 
 
         (1943).
 
         
 
              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: "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."
 
         
 
              The opinion of the supreme court in Olson v. Goodyear 
 
         Service Stores, 255 Iowa 1112, 1121, 125 N.W.2d 251 (1963), cited 
 
         with approval a decision of the industrial commissioner for the 
 
         following proposition:
 
         
 
                 Disability * * * as defined by the Compensation Act 
 
              means industrial disability, although functional 
 
              disability is an element to be considered....In 
 
              determining industrial disability, consideration may be 
 
              given to the injured employee's age, education, 
 
              qualifications, experience and his inability, because 
 
              of the injury, to engage in employment for which he is 
 
              fitted. * * * *
 
         
 
              The mere fact that the rating pertains to a scheduled member 
 
         does not mean the disability is restricted to a schedule.  Pullen 
 
         v. Brown & Lambrecht Earthmoving, Incorporated, II Iowa 
 
         Industrial Commissioner Reports 308 (Appeal Decision 1982).
 
         
 
              The case law relating to review-reopening proceedings is 
 

 
         
 
         Page   9
 
         
 
         
 
         
 
         
 
         rather extensive.
 
         
 
              The opinion of the Iowa Supreme Court in Stice v. 
 
         Consolidated Ind. Coal Co., 228 Iowa 1031, 1035, 291 N.W. 452 
 
         (1940) stated "that the modification of...[an] award would depend 
 
         upon a change in the condition of the employee since the award 
 
         was made."  The court cited the law applicable at that time which 
 
         was "if on such review the commissioner finds the condition of 
 
         the employee warrants such action, he may end, diminish, or 
 
         increase the compensation so awarded" and stated at 1038:
 
         
 
              That the decision on review depends upon the condition of 
 
         the employee, which is found to exist subsequent to the date of 
 
         the award being reviewed.  We can find no basis for interpreting 
 
         this language as meaning that the commissioner is to re-determine 
 
         the condition of the employee which was adjudicated by the former 
 
         award.
 
         
 
              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, 
 
         255 Iowa 1112, 125 N.W.2d 251.  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 disability.  This 
 
         is so as impairment and disability are not synonymous.  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 
 

 
         
 
         Page  10
 
         
 
         
 
         
 
         
 
         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 to draw upon prior 
 
         experience, general and specialized knowledge to make the finding 
 
         with regard to degree of industrial disability.   See Peterson v. 
 
         Truck Haven Cafe, Inc., (Appeal Decision, February 28, 1985); 
 
         Christensen v. Hagen, Inc., (Appeal Decision, March 26, l985).
 
         
 
              It is further concluded that:
 
         
 
              Claimant sustained a work-related injury to his right 
 
         shoulder on March 4, 1985 which caused a 11 percent permanent 
 
         physical impairment to claimant's body as a whole.
 
         
 
              Claimant incurred a healing period as a result of his March 
 
         4, 1985 injury, beginning, as stipulated by the parties, March 5, 
 
         1985 to and including January 13, 1986, which involved 44.857 
 
         weeks at the rate of $505.95.
 
         
 
              Claimant returned to work on January 13, 1986, after his 
 
         March 4, 1985 injury to his right shoulder.
 
         
 
              Claimant has a 20 percent industrial disability as a result 
 
         of his March 4, 1985 injury.
 
         
 
              Claimant has a change of condition since his April 1987 
 
         hearing which determined a jurisdictional question and set out 
 
         only a healing period.
 
         
 
              Claimant incurred a work-related injury to his left shoulder 
 
         on September 5, 1986 which caused claimant to incur permanent 
 
         physical impairment to his left shoulder which extended into his 
 
         body as a whole and resulted in a 10 percent permanent partial 
 
         impairment to claimant's body as a whole.
 
         
 
              Claimant incurred a healing period as a result of his 
 
         September 5, 1986 injury, as stipulated by the parties, beginning 
 
         September 6, 1986 to and including May 17, 1987, and which 
 
         involved 35.286 weeks.
 
         
 
              Claimant incurred a 15 percent industrial disability as a 
 
         result of his September 5, 1986 work-related injury.
 
         
 
                                      order
 
         
 
              THEREFORE, it is ordered:
 
         
 
              Regarding the March 4, 1985 injury:
 
         
 
              That defendants shall pay unto claimant forty-four point 
 
         eight five seven (44.857) weeks of healing period benefits for 
 
         the period beginning March 5, 1985 to and including January 12, 
 
         1986, as stipulated by the parties, at the stipulated rate of 
 
         five hundred five and 95/100 dollars ($505.95) per week, which 
 
         amount has already been paid by defendants.
 
         
 
              That defendants shall pay unto claimant one hundred (100) 
 
         weeks of permanent partial disability benefits at the stipulated 
 
         rate of five hundred five and 95/100 dollars ($505.95) per week 
 

 
         
 
         Page  11
 
         
 
         
 
         
 
         
 
         beginning at the stipulated date of January 13, 1986.
 
         
 
              That defendants shall pay accrued weekly benefits in a lump 
 
         sum and shall receive credit against the award for weekly 
 
         benefits previously paid.  In addition to the above healing 
 
         period credit previously referred to, defendants shall also 
 
         receive credit for seventy-nine point eight five seven (79.857) 
 
         weeks of permanent partial disability benefits already paid by 
 
         defendants, as stipulated by the parties.
 
         
 
              That defendants shall pay interest on benefits awarded 
 
         herein as set forth in Iowa Code section 85.30.
 
         
 
              Regarding the September 5, 1986 injury:
 
         
 
              That defendants shall pay unto claimant healing period 
 
         benefits for the periods stipulated by the parties beginning 
 
         September 6, 1986 to and including May 17, 1987, involving 
 
         thirty-six point two eight six (36.286) weeks at the rate of 
 
         three hundred sixty-nine and 91/100 dollars ($369.91).  
 
         Defendants have already paid the healing period benefits, as 
 
         stipulated by the parties.
 
         
 
              That defendants shall pay unto claimant seventy-five (75) 
 
         weeks of permanent partial disability benefit at the rate of 
 
         three hundred sixty-nine and 91/100 dollars ($369.91) beginning 
 
         with the stipulated date of May 18, 1987.
 
         
 
              That defendants shall pay accrued weekly benefits in a lump 
 
         sum and shall receive credit against the award for weekly 
 
         benefits previously paid.  In addition to the healing period 
 
         credit previously referred to, the defendants have also paid 
 
         sixty-three (63) weeks of permanent partial disability benefits, 
 
         as stipulated by the parties, at the rate of three hundred 
 
         sixty-nine and 91/100 dollars ($369.91) for which they shall be 
 
         given credit.
 
         
 
              That defendants shall pay interest on benefits awarded 
 
         herein as set forth in Iowa Code section 85.30.
 
         
 
              That defendants shall pay the costs of these actions, 
 
         pursuant to Rule 343 IAC 4.33.
 
         
 
              That defendants shall file activity reports upon payment of 
 
         these awards as required by this agency, pursuant to Rule 
 
         343 IAC 3.1
 
         
 
              Signed and filed this _____ day of December, 1990.
 
         
 
         
 
         
 
         
 
                                       ______________________________
 
                                       BERNARD J. O'MALLEY
 
                                       DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         
 
         Copies to:
 
         
 
         Mr Dennis Hanssen
 

 
         
 
         Page  12
 
         
 
         
 
         
 
         
 
         Attorney at Law
 
         Terrace Ctr  Ste 100
 
         2700 Grand Ave
 
         Des Moines IA 50312
 
         
 
         Mr W C Hoffmann
 
         Attorney at Law
 
         500 Liberty Bldg
 
         Des Moines IA 50309
 
         
 
 
 
 
 
 
 
 
 
 
 
 
 
 
          BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
____________________________________________________________
 
          
 
DALE BURKHARDT,    
 
          
 
     Claimant, 
 
          
 
vs.       
 
                                    File No. 837042
 
RALSTON PURINA COMPANY, 
 
                                 A R B I T R A T I O N
 
     Employer, 
 
     Self-Insured,                  D E C I S I O N
 
     Defendant.     
 
          
 
___________________________________________________________
 
                            STATEMENT OF THE CASE
 
 
 
This is a proceeding in arbitration brought by Dale Burkhardt as a 
 
result of injuries to his left and right upper extremities incurred on 
 
October 17, 1986.  The defendant admitted liability for the injury and 
 
presented the issue of permanent disability for determination.  
 
 
 
 This case was heard and fully submitted at Davenport, Iowa on January 
 
24, 1995.  The record in the proceeding consists of claimant exhibits A 
 
through G; defendant exhibits 1 through 4, 6 & 7; and testimony from 
 
Dale Burkhardt, Donald Dugan and Valerie Schissel.  Claimant was 
 
represented by William J. Bribriesco, Attorney at Law.  The defendant 
 
was represented by Deborah A. Dubik, Attorney at Law.  
 
 
 
                                ISSUE
 
 
 
The issue presented for determination is the extent of permanent 
 
disability caused by the October 17, 1986 bilateral simultaneous upper 
 
extremity injury.  
 
 
 
                           FINDINGS OF FACT
 
 
 
Having heard the testimony of the witnesses and having considered all 
 
of the evidence in the record, the deputy industrial commissioner 
 
finds:
 
 
 
Dale Burkhardt began work for the employer in October of 1986.  He 
 
worked as a production worker and as a maintenance worker during his 34 
 
years with this employer.  On October 17, 1986, claimant sustained an 
 
injury commonly known as bilateral carpal tunnel syndrome and bilateral 
 
ulnar nerve entrapment.  Claimant received multiple surgeries for the 
 
work-related injury.  Claimant was returned to work without restriction 
 
the last time on or about March 4, 1991.  Claimant then voluntarily 
 
terminated his employment and took early retirement on or about July 
 
31, 1991.
 
 
 
Claimant was returned to work without restriction by his treating 
 
physician in March of 1991.  Claimant found subsequent part-time 
 
employment as a truck driver.  
 
 
 
Multiple opinions concerning permanent impairment have been solicited 
 
by the parties.  First, Michael Cullen, M.D., a neurologist and Fellow 
 
of the American Academy of Disability Evaluating Physicians, opined on 
 
August 12, 1993 that claimant sustained 24 percent permanent partial 
 
impairment to the body as a whole as a result of the work injury.  Dr. 
 
Cullen later changed the rating to 23 percent by means of a letter 
 
dated April 17, 1994.  The change was due to a typographical error 
 
(Claimant Exhibit A4).  
 
 
 
Richard Ripperger, M.D., an orthopedic surgeon, opined on January 10, 
 
1992 that claimant sustained 10 percent permanent partial impairment to 
 

 
 
 
 
 
 
 
 
 
the body as a whole as a result of the work injury.  Dr. Ripperger 
 
later changed his impairment rating to 17 percent to the body as a 
 
whole as a result of a November 5, 1992 examination (Clmt. Ex. B, p. 
 
25).  The change in the impairment was not due to claimant's condition 
 
but instead due to a change in the American Medical Association's 
 
Guides to Permanent Impairment.
 
 
 
Robert W. Milas, M.D., a neurosurgeon, opined on May 26, 1992 that 
 
claimant sustained 55 percent permanent partial impairment to the body 
 
as a whole as a result of the work injury (Clmt. Ex. C).
 
 
 
Richard Roski, M.D., opined on February 14, 1992 that claimant 
 
sustained 8 percent permanent partial impairment to the body as a whole 
 
as a result of the work injury.  Dr. Roski's report was very short and 
 
did not give detailed explanation as to the reason for giving 8 percent 
 
permanent partial impairment.  
 
 
 
Objective testing concerning the grip strength in claimant's upper 
 
extremities was performed during physical therapy.  It was found that 
 
claimant suffered a significant loss of grip strength (Clmt. Ex. D, p. 
 
2).  
 
 
 
It is found that the injury of October 17, 1986 did not result in 
 
permanent total disability.  Claimant was not given permanent work 
 
restrictions as a result of the bilateral simultaneous hand and upper 
 
extremity injuries.  To the contrary, claimant was returned to work by 
 
his treating doctor without restriction.  Claimant did return to work 
 
at his regular job and then voluntarily terminated the employment 
 
without receiving the advice of a treating physician.  Claimant's work 
 
after leaving Ralston Purina also indicates that he is not permanently 
 
and totally disabled as a result of the October 17, 1986 injury.  
 
Therefore, it must be found that claimant is capable of gainful 
 
employment notwithstanding the severe bilateral condition of the 
 
upper extremities.  
 
 
 
                     REASONING AND CONCLUSIONS OF LAW
 
 
 
The issue presented is the extent of permanent disability sustained as 
 
a result of the October 17, 1986 bilateral upper extremity injury.  
 
Benefits for permanent partial disability of two members caused by a 
 
single accident is a scheduled benefit under section 85.34(2)(s); the 
 
degree of disability must be computed on a functional basis with a 
 
maximum benefit entitlement of 500 weeks.  Simbro v. Delong's 
 
Sportswear, 332 N.W.2d 886 (Iowa 1983).
 
 
 
The right of an employee to receive compensation for injuries sustained 
 
is statutory. The statute conferring this right can also fix the amount 
 
of compensation payable for different specific injuries.  The employee 
 
is not entitled to compensation except as the statute provides.  Soukup 
 
v. Shores Co., 222 Iowa 272, 268 N.W. 598 (1936).
 
 
 
Compensation for permanent partial disability begins at termination of 
 
the healing period.  Section 85.34(2).  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. Simbro 
 
v. Delong's Sportswear, 332 N.W.2d 886 (Iowa 1983); Graves v. Eagle 
 
Iron Works, 331 N.W.2d 116 (Iowa 1983); Martin v. Skelly Oil Co., 252 
 
Iowa 128, 106 N.W.2d 95 (1960).
 
 
 
It is held that claimant sustained 23 percent permanent partial 
 
disability to the body as a whole pursuant to Iowa Code section 
 
85.34(2)(s) as a result of the October 17, 1986 work injury.  The 
 
significant loss of grip strength in the upper extremities indicates 
 
that claimant sustained a significant functional disability.  Dr. 
 
Cullen's report must be given somewhat greater weight because of his 
 
status as a Fellow in the American Academy of Disability Evaluating 
 
Physicians.  Furthermore, the examination and report from Dr. Cullen 
 
were more recent in time than those received from other doctors.  While 
 
all of the medical evidence was considered it appears that the 
 
functional impairment rating of 23 percent accurately documents 
 
claimant's permanent disability caused by the work injury.  
 
 
 
                              ORDER
 
 
 
IT IS, THEREFORE, ORDERED:
 
 
 
Defendant Ralston Purina Company, self-insured, is to pay claimant one 
 

 
 
 
 
 
 
 
 
 
hundred fifteen (115) weeks of permanent partial disability benefits at 
 
the rate of four hundred eighty-one and 34/100 dollars ($481.34) per 
 
week commencing January 10, 1992. 
 
 
 
It is further ordered that defendant shall receive credit for benefits 
 
previously paid.
 
 
 
It is further ordered that all accrued benefits are to be paid in a 
 
lump sum.
 
 
 
It is further ordered that interest will accrue pursuant to Iowa Code 
 
section 85.30.
 
 
 
It is further ordered that costs of this action are assessed against 
 
defendant pursuant to rule 343 IAC 4.33.
 
 
 
It is further ordered that defendant file claim activity reports as 
 
requested by this agency pursuant to rule 343 IAC 3.1.
 
 
 
Signed and filed this ____ day of January, 1995.
 
                              ______________________________
 
                              MARLON D. MORMANN
 
                              DEPUTY INDUSTRIAL COMMISSIONER    
 
 
 
Copies to:
 
Mr. William J. Bribriesco
 
Attorney at Law
 
2407 18th St., Ste. 202
 
Bettendorf, IA  52722
 
 
 
Ms. Deborah A. Dubik
 
Attorney at Law
 
111 East Third St., Ste. 600
 
Davenport, IA  52801-1596
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
     
 
                                5-1808
 
                                Filed January 30, 1995
 
                                Marlon D. Mormann
 
 
 
            BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
____________________________________________________________
 
          
 
DALE BURKHARDT,    
 
          
 
     Claimant, 
 
          
 
vs.       
 
                                     File No. 837042
 
RALSTON PURINA COMPANY, 
 
                                  A R B I T R A T I O N
 
     Employer, 
 
     Self-Insured,                   D E C I S I O N
 
     Defendant.     
 
          
 
___________________________________________________________
 
5-1808
 
It was held that claimant's bilateral simultaneous injury to the upper 
 
extremities resulted in 23 percent functional impairment under Iowa 
 
Code section 85.34(2)(s).  Impairment rating ranged from 8 percent to 
 
55 percent of the body as a whole. 
 
 
 
 
 
 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         WILLIAM DECKER,                           File Nos. 837054
 
                                                             865367
 
              Claimant,
 
                                                A R B I T R A T I O N
 
         vs.
 
                                                   D E C I S I O N
 
         WILSON FOODS CORPORATION,
 
                                                      F I L E D
 
              Employer,
 
              Self-Insured,                          FEB 12 1990
 
              Defendant.
 
                                                 INDUSTRIAL SERVICES
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              These are proceedings in arbitration brought by claimant 
 
         William Decker against defendant self-insured employer Wilson 
 
         Foods Corporation as a result of injuries allegedly sustained on 
 
         August 22, 1986 (837054) and in November, 1987 (865367).  This 
 
         matter came on for hearing before the undersigned deputy 
 
         industrial commissioner in Storm Lake, Iowa, on December 26, 
 
         1989. The matter was considered fully submitted at the close of 
 
         hearing. The parties subsequently filed briefs.
 
         
 
              At hearing, claimant expressed an intent to dismiss 
 
         litigation in file number 865367.  That verbal dismissal was 
 
         accepted by the deputy, although claimant was also directed to 
 
         submit the dismissal in writing.  Although no written dismissal 
 
         has been filed, this decision orders the petition dismissed as 
 
         per the verbal dismissal accepted at hearing.
 
         
 
              The record in this proceeding consists of joint exhibits 1 
 
         through 11 and the testimony of claimant.
 
         
 
                                      ISSUES
 
         
 
              Pursuant to the prehearing report submitted by the parties 
 
         and approved by the deputy at hearing, the following matters have 
 
         been stipulated:  that an employment relationship existed between 
 
         claimant and defendant at the time of the injury; that claimant 
 
         sustained an injury in September 1986, arising out of and in the 
 
         course of that employment; that the injury caused temporary and 
 
         permanent disability; that claimant is entitled to compensation 
 
         for healing period from October 10, 1987 through October 15, 1987 
 
         and from November 15, 1987 through December 21, 1987; that 
 
         claimant's disability is a scheduled member disability to the 
 
         right hand and/or right upper extremity; that the commencement 
 
         date for permanent partial disability is December 21, 1987; that 
 
         the appropriate rate of weekly compensation is $225.50, based 
 
         upon marital status of married, four exemptions and gross weekly 
 
         earnings of $343.01; affirmative defenses are not at issue; 
 
         claimant's entitlement to medical benefits is not at issue; in 
 
         addition to healing period benefits paid for the stipulated 
 
         dates, defendant paid claimant 5.7 weeks of permanent partial 
 
         disability benefits at the stipulated rate.
 

 
         
 
 
 
 
 
 
 
 
 
 
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              The only issue presented for determination is the extent of 
 
         claimant's entitlement to permanent partial disability.
 
         
 
                              REVIEW OF THE EVIDENCE
 
         
 
              Claimant testified that he suffered no problems with his 
 
         right hand or arm before beginning employment with defendant.  He 
 
         is right-hand dominant.  His employment with defendant largely 
 
         involved "pulling guts" on the kill floor.  Claimant described 
 
         the motion as repetitive and gave a brief demonstration.  In 
 
         approximately July, 1986, he was transferred to the ham boning 
 
         line after developing some tendonitis in his right hand.  This 
 
         position involved making numerous knife cuts to remove a bone 
 
         from hams.
 
         
 
              Claimant described himself as beginning to lose his grip and 
 
         having troubles holding his knife as he continued on the ham 
 
         boning line.  His fingers started to "lock down" on his palm.  As 
 
         a result, claimant had surgical trigger finger releases on his 
 
         little finger, ring finger and twice on the middle finger of his 
 
         right hand.
 
         
 
              Claimant described visiting Oscar M. Jardon, M.D., for 
 
         treatment.  He also saw physicians Scott B. Neff, D.O., A. J. 
 
         Wolbrink, M.D., and Richard P. Murphy, M.D., for evaluation. 
 
         Claimant did not believe that Dr. Jardon ever tested his arm, but 
 
         only his hand.
 
         
 
              Claimant further testified to a number of activities in 
 
         which he can no longer participate because of continued hand and 
 
         arm problems.
 
         
 
              Claimant demonstrated that as he extends his wrist, his 
 
         fingers tend to curl inward and generally will not completely 
 
         straighten.  Claimant also demonstrated an inability to supinate 
 
         his palms except to a very slight degree.  Further, claimant 
 
         demonstrated his hands, stating that he believes his right hand 
 
         is smaller.  This observer was unable to notice any marked 
 
         difference on casual observation.
 
         
 
              Claimant also testified that he broke his right arm at 
 
         approximately age 5, but stated that he suffered no loss of use 
 
         to the arm.  In contrast to his current inability to engage in 
 
         such activities as bowling, wood cutting, and the like, claimant 
 
         noted that he is a former state arm wrestling champion.
 
         
 
              Treating physician Jardon wrote to Keith O. Garner, M.D., on 
 
         April 24, 1987 to state that he intended to perform a second 
 
         release of the third finger.  He found definite clicking and 
 
         catching of that finger.  Dr. Jardon went on to express the view 
 
         that claimant did have permanent impairment to the hand from the 
 
         heavy use of a knife with atrophy of the muscle and inability to 
 
         obtain adequate rehabilitation, representing a five percent 
 
         permanent partial disability to the hand.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              However, Dr. Jardon wrote again on May 27, 1987 to state 
 
         that his previous impairment rating was in error.  In this 
 
         letter, Dr. Jardon stated that he meant approximately five 
 
         percent of each finger, which would be a fifteen percent 
 
         disability to the hand as a whole.
 
         
 
              Dr. Jardon wrote Dr. Garner yet again on January 14, 1988 to 
 
         correct himself once more.  He stated:
 
         
 
              As stated in the disability rating for hands, on p. 9 of the 
 
              AMA example, apparently there is a misunderstanding in my 
 
              letter.  The fingers were added, rather than the disability 
 
              for the hand as a whole.
 
         
 
              The appropriate passages that have two or more digits of the 
 
              hand involved measure separately and record the impairment 
 
              of each digit, and then record the impairment to the hand as 
 
              a whole, contributed to by each digit, and then add all the 
 
              values.  The sum of these values represents the impairment 
 
              to the hand.  Thus, if you add three fingers of five percent 
 
              each, this would be roughly one percent per finger which 
 
              would represent a 3 percent partial permanent disability to 
 
              the hand as a whole.  I'm sorry for the error.
 
         
 
              Dr. Neff, a Diplomate of the American Board of Orthopaedic 
 
         Surgery and Fellow of the American Academy of Orthopaedic 
 
         Surgeons, saw claimant on July 9, 1987.  He noted that claimant 
 
         was having recurrence of the triggering of his right long finger. 
 
         Dr. Neff noted that claimant had normal EMG studies.  He further 
 
         noted that claimant had an old injury to the upper extremity from 
 
         childhood and that claimant had noticed several years before that 
 
         he was losing supination when he attempted to receive change from 
 
         a purchase.  Claimant supinated to about 10 degrees.
 
         
 
              Dr. Neff stated that claimant's grip was diminished on the 
 
         right side and recommended repeat trigger finger release of the 
 
         right hand.
 
         
 
              Dr. Neff further stated that further measurements "will 
 
         allow us to determine a disability or impairment rating.  He has 
 
         received a 15 percent impairment rating."  This statement is 
 
         apparently the source of claimant's belief.that Dr. Neff had 
 
         assigned him a 15 percent impairment rating.
 
         
 
              Another letter of July 9, 1987 was apparently prepared by 
 
         L.P.T. Thomas Bower and countersigned by Dr. Neff.  Mr. Bower 
 
         noted an old supination loss of 100 percent "which is apparently 
 
         from an old injury and non-related to this particular problem." 
 
         The letter goes on to find that claimant had full range of motion 
 
         of the right hand and that Mr. Bower was unable to see any 
 
         noticeable triggering.  However, he noted that claimant complains 
 
         of intermittent locking and that some puffiness and swelling was 
 
         noted which certainly could be construed as consistent with that 
 
         complaint.  Grip strengths generally demonstrated a marked 
 
         decrease on the right side (a 39 percent deficiency as compared 
 
         to the left).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Because claimant had a full range of motion and previous 
 
         EMG's had shown no nerve deficit, Mr. Bower and Dr. Neff 
 
         concluded that loss of strength could not be a ratable entity and 
 
         found no percentage of impairment.  This rating "certainly does 
 
         not take into account that the fingers are still continuing to 
 
         bother him nor does it take into account the subjective pain."
 
         
 
              Dr. Wolbrink wrote on October 16, 1987 following an 
 
         examination for evaluation on the previous day.  Dr. Wolbrink 
 
         noted that claimant gave a history of a fracture of the cervical 
 
         spine in 1973 with a surgical fusion following that.  He noted 
 
         claimant had deformity and rotational limitation of the right 
 
         forearm.  Dr. Wolbrink found claimant to have a flexion 
 
         contracture of the MCP joints of the fingers, measuring 10 
 
         degrees in the index, 25 degrees in the long, 15 degrees in the 
 
         ring finger.  Nodularity and slight triggering was noted in the 
 
         long finger.  Claimant had normal sensation throughout the hand 
 
         and grip strength of 36 Kg. in the right hand on two occasions of 
 
         serial testing (Mr. Bower had measured grip strength on the right 
 
         of 27 Kg. and on the left 44 Kg.).
 
         
 
              Dr. Wolbrink found claimant to have tendonitis in the 
 
         forearm "which has included trigger fingers and release.  He had 
 
         some persistent weakness and transient carpal tunnel syndrome at 
 
         present."  Dr. Wolbrink went on to opine that claimant had a 
 
         permanent impairment of 18 percent of the right upper extremity 
 
         due to the persistent tendonitis, "which has resulted in a loss 
 
         of strength and flexion contracture of the MCP joints."  He 
 
         further noted that claimant would not tolerate excessive stress 
 
         or overly repetitive use of that hand.
 
         
 
              Dr. Neff wrote in response to Dr. Wolbrink's letter on 
 
         January 17, 1988.  In pertinent part, he stated:
 
         
 
              Several things strike me as interesting.  This gentleman has 
 
              indeed had trigger finger tendonitis and that syndrome which 
 
              has undergone successful surgical release.  I have not 
 
              x-rayed his right forearm, but it is clear that there is 
 
              absolutely no association whatsoever between supination or 
 
              pronation loss and trigger finger syndrome.  The trigger 
 
              finger occurs over the first annular pulley at the distal 
 
              aspect of the palm and involves a small pulley or narrow 
 
              area through which a tendon slides.  Pronation and 
 
              supination of the arm occurs completely out of the hand 
 
              primarily at the elbow joint between the radius and the ulna 
 
              and in the wrist proximal to the hand also between the 
 
              distal ulna and the wrist joint and distal radius.  
 
              Fractures or congenital abnormalities in these areas can 
 
              cause supination and pronation loss, and this is apparently 
 
              the situation.
 
         
 
              It is interesting to me that this patient did not relate a 
 
              very significant and important part of his medical history, 
 
              and that was a significant injury to his neck which occurred 
 
              in the past and has resulted in a surgical fusion.  EMG 
 
              studies and conduction studies of the peripheral were done, 
 
              and these did not show nerve conduction slowing or entrapped 
 
              nerves in the hand or forearm.  EMG studies of the 
 
              pericervical area were not done because we were not looking 
 
              toward the patient's neck at all.  What I surmise is 
 
              happening is that this patient is having the residual of his 
 
              neck injury and subsequent surgical treatment in the neck.
 

 
              
 
 
 
 
 
 
 
 
 
 
 
         
 
              This can very definitely cause intermittent tingling and 
 
              sensation of numbness, based on certain positions or 
 
              twisting of the neck, and it can also cause a chronic 
 
              diminution of motor power in the forearm, on the side where 
 
              one of the cervical roots is trapped or compressed in scar.  
 
              I agree that he does not have a clinically or EMG evident 
 
              peripheral neuropathy such as carpal tunnel entrapment, but 
 
              we have not studied his neck.  Commonly patients who have a 
 
              cervical fusion can develop nerve entrapment and other 
 
              problems as they get older, as more bone is laid down, 
 
              scarring occurs, and so forth.  Again, this patient has 
 
              excellent motion of his fingers.  According to the 
 
              guidelines, he would have no impairment strictly related to 
 
              the trigger finger releases. Clearly he does not have a 
 
              normal wrist and forearm, based on his motion loss, but this 
 
              is old from another problem and is absolutely unrelated to 
 
              the trigger finger releases. Certainly this patient does not 
 
              probably appreciate the medical significance of his neck 
 
              injury and the subsequent weakness and symptoms in his arm, 
 
              but I know that he has been questioned about it before by 
 
              his operating surgeon and during that post-convalescence 
 
              period.
 
         
 
              Claimant was further seen for evaluation by Dr. Murphy, who 
 
         wrote claimant's attorney on February 12, 1988.
 
         
 
              In setting forth claimant's history, Dr. Murphy noted 
 
         claimant's recollection of a "broken bone" in the region of the 
 
         shoulder as a child, but also noted claimant's history of crush 
 
         injury when pinched between a bar just above the right elbow 
 
         years previously.  Dr. Murphy is apparently the only physician 
 
         having benefit of that history.
 
         
 
              Dr. Murphy found that claimant had audible and palpable 
 
         triggering with movement of the right long finger.  Ring finger 
 
         and little finger had slight tenderness, but no locking or 
 
         catching.  He further found decreased sensation in the tip of the 
 
         long finger.
 
         
 
              Dr. Murphy's diagnostic impressions:
 
         
 
              1.  Flexor tenosynovitis, right hand - A.  Long finger (with 
 
              residual locking) equals 20% of the finger or 4% of the 
 
              hand. B.  Ring finger - slight tenderness equals 10% of the 
 
              fingers or 1% of the hand.  C.  Little finger (slight 
 
              residual tenderness along the flexor tendon) equals 10% of 
 
              the finger or 1% of the hand.
 
         
 
              * * *
 
         
 
              3.  Possible nerve compression right upper extremity, 
 
              (although not verified with previous nerve test) equals 
 
              disability unknown-advise repeat EMG and nerve conduction 
 
              times).
 

 
              
 
 
 
 
 
 
 
 
 
 
 
         
 
              4.  Right forearm limitation of motion - (0 degrees of 
 
              supination)(forearm deformity probably old fracture) equals 
 
              13% of the upper extremity.
 
         
 
              Dr. Murphy wrote claimant's attorney again on May 19, 1988, 
 
         after claimant returned for follow-up examination and for EMG and 
 
         nerve conduction studies of the right upper extremity.  Nerve 
 
         conduction times were completely normal with no evidence of nerve 
 
         injury.  Physical examination revealed full range of motion of 
 
         the hands without catching or triggering.  Diagnostic impression 
 
         was the same, with the exception of no evidence of nerve 
 
         compression of the right upper extremity, thus no evidence of 
 
         disability secondary to nerve compression.  Right forearm 
 
         limitation of motion equalled 14 percent of that extremity.
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              The sole issue to be resolved is the nature and extent of 
 
         claimant's permanent impairment to the right hand or upper 
 
         extremity.  Pursuant to Iowa Code section 85.34(2)(1) and (m), 
 
         compensation for the loss of a hand or arm, respectively, is 190 
 
         weeks and 250 weeks.  The parties have stipulated that claimant 
 
         sustained a work injury to the right hand or arm.  The first 
 
         question to be resolved is whether claimant's work-related 
 
         impairment is to the hand or the arm.
 
         
 
              Claimant has seen four physicians with respect to his right 
 
         upper extremity problems.  The treating physician, Dr. Jardon, 
 
         has not discussed impairment to claimant's arm.  Dr. Murphy has 
 
         diagnosed impairment to both fingers and arm (along with the left 
 
         forearm and lumbosacral regions), but the only language he 
 
         employed that relates to the issue of whether that impairment is 
 
         causally related to the work injury is:
 
         
 
              Right forearm limitation of motion - (0 degrees of 
 
              supination)(forearm deformity probably old fracture) equals 
 
              13% of the upper extremity.
 
         
 
              The most reasonable and obvious interpretation of this 
 
         paragraph is that Dr. Murphy attributes claimant's right forearm 
 
         limitation of motion to his forearm deformity, probably related 
 
         to old fracture.  As has been seen, claimant did suffer a broken 
 
         right arm at approximately five years of age.  Dr. Wolbrink 
 
         diagnosed claimant as suffering tendonitis of the right forearm, 
 
         but does not discuss whether this is causally related to the 
 
         stipulated work injury or any preexisting condition.  Dr. Neff, a 
 
         board-certified specialist, specified that claimant's forearm 
 
         impairment "is old from another problem and is absolutely 
 
         unrelated to the trigger finger releases."  Dr. Neff also 
 
         reported that claimant disclosed in his history that he had 
 
         noticed several years before that he was losing supination when 
 
         he attempted to receive change from a purchase.
 
         
 
              Based on the foregoing, the greater weight of the evidence 
 
         makes clear that claimant's work-related impairment has not been 
 
         shown to extend into the arm as opposed to the right hand.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              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).
 
         
 
              With respect to scheduled member injuries, the impairment is 
 
         the disability.  The schedule of losses to members is presumed to 
 
         include compensation for reduced capacity to labor and earn.  
 
         Snell v. Central Engineering Co., 232 Iowa 421, 4 N.W.2d 399 
 
         (1942).
 
         
 
              As has been seen, the treating physician, Dr. Jardon, had 
 
         some difficulty expressing his view as to claimant's impairment. 
 
         His final estimate was that claimant had sustained a three 
 
         percent permanent partial disability to the hand.
 
         
 
              Dr. Murphy noted that claimant had audible and palpable 
 
         triggering with movement of the right long finger and found 
 
         decreased sensation in the tip of the long finger.  He found this 
 
         to constitute a four percent impairment of the hand.  Dr. Murphy 
 
         further found slight tenderness to the ring and little fingers, 
 
         each equalling an impairment of one percent of the hand, or a 
 
         total of six percent.
 
         
 
              Dr. wolbrink expressed the view that claimant had sustained 
 
         an 18 percent impairment to the right upper extremity.  
 
         Obviously, Dr. Wolbrink was evaluating claimant's impairment to 
 
         the arm in addition to the hand.  Since he did not break down his 
 
         total impairment to the upper extremity as to how much was 
 
         attributable to the hand, and given that it has already been 
 
         found that claimant's work-related disability is limited to the 
 
         hand, Dr. Wolbrink's evaluation is of no value.
 
         
 
              Dr. Neff found claimant to have sustained zero percent 
 
         disability because he had no.loss of range of motion to the 
 
         digits of his hand, even though claimant had a markedly decreased 
 
         grip strength on the right.  Dr. Neff's view is apparently based 
 
         on the American Medical Association Guides to the Evaluation of 
 
         Permanent Impairment.  That publication utilizes the loss of 
 
         range of motion as by far the most important consideration in 
 
         evaluating impairment.
 
         
 
              All three of these physicians (excluding Dr. Wolbrink) have 
 
         given reasonable and relatively close ratings of impairment; 
 
         although apparently utilizing different considerations or 
 
         guidelines in reaching their respective opinions.  In such 
 
         circumstances, this office has taken the average of impairment 
 
         ratings.  Caylor v. Lucas County, II Iowa Industrial Commissioner 
 
         Report 73 (1982).  This appears to be an appropriate case for 
 
         averaging impairment ratings.  It is therefore held that claimant 
 
         has sustained a three percent impairment to his right hand, or 
 
         5.7 weeks.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Although the parties stipulated that the appropriate rate of 
 
         weekly compensation is $225.57, they further stipulated that this 
 
         was based upon gross weekly earnings of $343.01, claimant's 
 
         marital status of married and four exemptions.  A review of the 
 
         "Guide to Iowa Workers' Compensation Claim Handling"as published 
 
         by this office and effective July 1, 1986 discloses that the 
 
         appropriate compensation rate for an individual so situated is 
 
         $222.68.
 
         
 
              The parties have stipulated that claimant was paid 5.7 weeks 
 
         of permanent partial disability on a voluntary basis prior to 
 
         hearing, but at the rate of $225.57.  Therefore, claimant has 
 
         been paid benefits slightly in excess of those to which he is 
 
         entitled ($16.47, or the difference between 5.7 weeks at the 
 
         correct rate and at the stipulated rate).
 
         
 
                                 FINDINGS OF FACT
 
         
 
              THEREFORE, based on the evidence presented, the following 
 
         ultimate facts are found:
 
         
 
              1.  Claimant's verbal dismissal in file number 865367 was 
 
         accepted by the deputy at hearing.
 
         
 
              2.  As stipulated, claimant sustained an injury in 
 
         September, 1986, arising out of and in the course of his 
 
         employment.
 
         
 
              3.  Claimant's injury was to his right hand, but has not 
 
         been shown to extend into the upper extremity.
 
         
 
              4.  Of the three physicians who have issued impairment 
 
         ratings as to claimant's right hand, one has opined that claimant 
 
         sustained an impairment of zero percent, one an impairment of 
 
         three percent, and one an impairment of six percent.  This is an 
 
         appropriate case to average the impairment ratings.
 
         
 
              5.  As stipulated, claimant had an average gross weekly wage 
 
         of $343.01, was married and entitled to four exemptions at the 
 
         time of the stipulated work injury.
 
         
 
              6.  Defendants paid permanent partial disability of 5.7 
 
         weeks on a voluntary basis prior to hearing, but did so at the 
 
         weekly rate of $225.57.
 
         
 
                               CONCLUSIONS OF  LAW
 
         
 
              WHEREFORE, based on the principles of law previously cited, 
 
         the following conclusions of law are made:
 
         
 
              1.  Claimant has met his burden of proof in establishing a 
 
         permanent partial disability to his right hand of three percent 
 
         by reason of his stipulated work injury in September, 1986.
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              2.  Claimant's appropriate weekly rate of compensation is 
 
         $222.68.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              Case number 865367 is dismissed and claimant shall take 
 
         nothing.
 
         
 
              As claimant has been paid in excess of his entitlement in 
 
         case number 837054, he shall take nothing further.
 
         
 
              Costs of this action in case number 837054 are assessed to 
 
         defendants pursuant to Division of Industrial Services Rule 
 
         343-4.33.
 
         
 
              Signed and filed this 12th day of February, 1990.
 
         
 
         
 
         
 
         
 
         
 
         
 
                                            DAVID RASEY
 
                                            DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. James A. Schall
 
         Attorney at Law
 
         505 Erie
 
         P.O. Box 1052
 
         Storm Lake, Iowa  50588
 
         
 
         Mr. David L. Sayre
 
         Attorney at Law
 
         223 Pine Street
 
         P.O. Box 535
 
         Cherokee, Iowa  51012
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
                                            
 
 
 
 
 
 
 
 
 
 
 
                                            5-1803, 2901, 3003
 
                                            Filed February 12, 1990
 
                                            DAVID RASEY
 
                                            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         WILLIAM DECKER,
 
                                                 File Nos. 837054
 
              Claimant,                                    865367
 
         
 
         vs.                                  A R B I T R A T I 0 N
 
         
 
         WILSON FOODS CORPORATION,               D E C I S I 0 N
 
         
 
              Employer,
 
              Self-Insured,
 
              Defendant.
 
         
 
         
 
         5-1803
 
         
 
              Impairment ratings of three physicians were averaged to 
 
         determine disability to hand.
 
         
 
         2901, 3003
 
         
 
              Stipulation on rate was disregarded as incorrect.  Deputy 
 
         used stipulation as to average wage, marital status and 
 
         exemptions to determine correct rate.