BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         NEAL HORTON,
 
         
 
              Claimant,
 
                                                  File No. 837636
 
         vs.
 
                                               A R B I T R A T I O N
 
         GREENFIELD TRANSPORT
 
         COMPANY, INC.,                           D E C I S I O N
 
         
 
              Employer,
 
                                                     F I L E D
 
         and
 
                                                    SEP 29 1989
 
         CARRIERS INSURANCE COMPANY by
 
         IOWA INSURANCE GUARANTEE          IOWA INDUSTRIAL COMMISSIONER
 
         ASSOCIATION,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding in arbitration brought by the claimant, 
 
         Neal R. Horton, against Greenfield Transport Company, Inc., 
 
         employer, and Carriers Insurance Company by Iowa Insurance 
 
         Guaranty Association, insurance carrier, to recover benefits as a 
 
         result of an alleged injury on February 15, 1985.  This matter 
 
         came on for hearing before the deputy industrial commissioner in 
 
         Fort Dodge, Iowa, on September 6, 1989.  The record consists of 
 
         the testimony of claimant, Evelyn Horton, Robert Horton, and 
 
         Patricia Swanstrom; claimant's exhibits 1 through 6 and 8 through 
 
         15; and defendants' exhibits 1 through 6.
 
         
 
                                      ISSUES
 
         
 
              The issues for resolution are:
 
         
 
              1.  Whether claimant's disease of multiple sclerosis arose 
 
         out of and in the course of his employment, and, if so, did it 
 
         occur for purposes of 85.23 and 85.26 on December 24, 1983 or 
 
         February 15, 1985.
 
         
 
              2.  Whether claimant's disease of multiple sclerosis is 
 
         causally connected to his alleged injury on February 15, 1985.
 
         
 
              3.  Whether claimant's claim is barred under the provisions 
 
         of 85.23 of the Iowa Code (notice of injury); and
 
         
 
              4.  Whether claimant's claim is barred under the provisions 
 
         of 85.26 (limitation of action).
 
         
 

 
         
 
 
 
 
 
                              REVIEW OF THE EVIDENCE
 
         
 
              Evelyn Horton, claimant's mother, testified that claimant 
 
         had no injuries or illnesses prior to December 24, 1983 except 
 
         for the usual childhood illnesses.  She said claimant was in good 
 
         health until December 24, 1983.  Mrs. Horton stated her son was 
 
         interested in cars and had built and raced cars beginning after 
 
         his high school graduation.  She said he also owned a motorcycle. 
 
         Mrs. Horton indicated claimant umpired softball games when in 
 
         college and worked as a mechanic after his two years at Iowa 
 
         Central College.  Mrs. Horton revealed claimant is 35 years old 
 
         and moved away from home at age 27.
 
         
 
              Mrs. Horton testified she noticed claimant wasn't feeling 
 
         well on Christmas Eve 1983.  She indicated that he was shaking 
 
         and cold and went into the living room to sleep.  She said 
 
         claimant woke up two or three hours later.  Mrs. Horton said that 
 
         claimant told her and her husband that he was called to service 
 
         the employer's truck that broke down on the highway at 2:00 to 
 
         3:00 a.m. December 24, 1983, and that he was required to lie on 
 
         the ground under the truck in minus 23 degree weather.  Mrs. 
 
         Horton stated that on Christmas Day, 1983, claimant still was not 
 
         feeling well and claimant told her his face felt numb as if he 
 
         had been given Novocain.  Claimant indicated to her that he was 
 
         also developing double vision.
 
         
 
              Mrs. Horton said claimant was taken by his father to 
 
         University of Iowa Hospitals in January 1984 for tests.  He 
 
         said.they went to Mayo Clinic in February 1984.  Mrs. Horton said 
 
         that claimant and his father went to Mayo Clinic for the second 
 
         time in February 1985.  She indicated that at that time she 
 
         noticed slight shaking and tremors in claimant.  Mrs. Horton 
 
         testified that in approximately January 1986 claimant was unable 
 
         to do his regular activities and that he has been unable to drive 
 
         for the past year.  She said claimant sold his motorcycle because 
 
         he was no longer able to hold it up or drive it.  Mrs. Horton 
 
         said she noticed a personality change in claimant after his first 
 
         visit to Mayo Clinic in February 1984 and that he seemed to be 
 
         down in the dumps.  Mrs. Horton testified that after claimant's 
 
         exposure to cold on early morning December 24, 1983, he gradually 
 
         went downhill to the present and never regained any stability or 
 
         good health again.
 
         
 
              Mrs. Horton stated that when claimant and his father 
 
         returned home from Mayo Clinic in February 1984, they did not 
 
         know nor were they told by any doctors what the illness was.  She 
 
         said the family thought that whatever he had was caused by the 
 
         coldness claimant incurred on December 24, 1983.  Mrs. Horton 
 
         contends the tests given to her son in February 1984 did not show 
 
         multiple sclerosis.  She emphasized that neither she, claimant, 
 
         or the rest of the family knew of the multiple sclerosis 
 
         diagnosis until February 1985.
 
         
 
              Robert Horton, father of claimant and husband of Evelyn 
 
         Horton, testified to most of the same things as his wife.  There 
 
         was no conflict in their testimony which was cumulative in nature 
 
         and will not for the most part be set out herein again.  Mr. 
 
         Horton testified to claimant's good health and of no injuries 
 
         prior to December 24, 1983.  He said he first noticed a change in 
 
         claimant's health after the cold weather incident in the early 
 
         morning of December 24, 1983.  Mr. Horton said claimant told him 
 
         his cheek was numb and he was having double vision.  Mr. Horton 
 
         said that he noticed a change in claimant in January 1984.  He 
 
         indicated claimant's attitude and personality began changing.  He 
 
         observed that claimant seemed to have something on his mind and 
 
         he didn't appear right.
 

 
         
 
 
 
 
 
         
 
              Mr. Horton said he drove claimant to the University of Iowa 
 
         Hospitals in January 1984 and to Mayo Clinic in February 1984.  
 
         He emphasized that he asked the doctors about claimant's 
 
         condition and the doctors did not knew what claimant had.  Mr. 
 
         Horton said he asked the doctors if they know about the claimant 
 
         getting cold and whether the cold could have caused claimant's 
 
         problem.  He indicated they never answered.  Mr. Horton said the 
 
         doctors told claimant to go home and let nature take its course 
 
         and return in one year.  Mr. Horton indicated that after he and 
 
         claimant returned from the Mayo Clinic in February 1984, he 
 
         checked into the heaters and chemicals claimant was exposed to at 
 
         work and determined that they were not the cause of claimant's 
 
         problems.  He contends the cold weather incident on December 24, 
 
         1983 caused claimant's present condition.
 
         
 
              Mr. Horton said that he first knew of claimant's multiple 
 
         sclerosis diagnosis through a report sent to claimant shortly 
 
         after claimant returned from Mayo Clinic in February 1985.  He 
 
         indicated claimant continued to work after the return in February 
 
         1985, that claimant's health was gradually deteriorating, and 
 
         claimant was having trouble using his hands.  He indicated 
 
         claimant's shaking was becoming worse.  Mr. Horton emphasized 
 
         that after he and claimant returned from the Mayo Clinic in 
 
         February 1985 and received the report, he told claimant to notify 
 
         defendant employer as to claimant's multiple sclerosis diagnosis.  
 
         Mr. Horton understood claimant had told Mr. Robeson, defendant, 
 
         employer's vice president at that time.  Mr. Robeson is now 
 
         president.
 
         
 
              Patricia Swanstrom is claimant's older sister.  Much of her 
 
         testimony was cumulative in nature to the testimony of her father 
 
         and mother and will not be repeated herein.  Her testimony was 
 
         not in conflict with her parents.
 
         
 
              Claimant testified after his parents and sister.  Claimant 
 
         said he is 35 years old and is a high school graduate.  Claimant 
 
         stated he studied mechanics for two years at Iowa Central 
 
         College. Claimant stated that he holds his head with his hand 
 
         during the hearing and his testimony to stabilize his head and 
 
         prevent continuous shaking and wears a neck collar to prevent 
 
         irritation. Although he was sitting in a wheelchair during the 
 
         entire hearing, claimant stated he can walk to some extent if he 
 
         has a guide, like a wall, to help him.  Claimant indicated his 
 
         equilibrium is not good.  Claimant testified he had no medical 
 
         problems or injuries prior to December 24, 1983 except normal 
 
         childhood illnesses, a few colds, and a broken hand as a child.
 
         
 
              Claimant said he was on call 24 hours a day as an employee 
 
         of defendant employer.  Claimant revealed that on December 24, 
 
         1983, at approximately 2:00 to 3:00 a.m., he was called by a 
 
         security guard for defendant employer to start a stalled company 
 
         truck on a highway east of Fort Dodge.  Claimant said the 
 
         temperature was a record 23 degrees below zero with strong winds 
 
         blowing and drifting snow.  Claimant said he worked on the 
 
         company truck which was disabled by the gelling of its diesel 
 
         fuel for approximately four hours.  Claimant stated he laid on 
 
         the cold concrete under the truck trying to change the fuel 
 
         filter.  He said diesel fuel ran onto him, snow was drifting 
 
         around him, and that his sweat shirt hood fell off his head.  
 
         Claimant indicated he wore a sweat shirt with hood and a jean 
 
         jacket on December 24, 1983 but could not wear gloves while 
 
         working on the truck.  Claimant said he was unable to start the 
 
         truck and returned to defendant employer's shop.  Claimant 
 
         testified he then returned home, took a hot shower and then 
 
         returned to work for eight to ten more hours that same day even 
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         though it was Christmas Eve, a company holiday.  Claimant 
 
         indicated his father came to defendant employer's place of 
 
         business to bring claimant to his parents' home for the usual 
 
         yearly Christmas Eve dinner that evening.  Claimant said he was 
 
         very tired and cold while at his parents on Christmas Eve and had 
 
         impaired vision.
 

 
         
 
 
 
 
 
         
 
              Claimant testified that on Christmas Day he continued to 
 
         feel very cold, developed double vision and numbness in his right 
 
         cheek.  Claimant said he went to a local doctor because of his 
 
         double vision and cheek numbness and because people noticed his 
 
         right cheek was drooping.  Claimant said his local doctor 
 
         referred him to the University of Iowa Hospitals.
 
         
 
              Claimant agreed with his father's testimony that claimant 
 
         walked out of the University of Iowa Hospitals in January 1984 
 
         before all the tests were performed.  Claimant indicated that 
 
         several students were duplicating the tests and that the doctor 
 
         with whom he had the original appointment was not going to be 
 
         there until the next day.  Claimant said he then made a February 
 
         1984 appointment with Mayo Clinic.
 
         
 
              Claimant contends he told Donald Layton, M.D., of the Mayo 
 
         Clinic, about getting cold on December 24, 1983, but he did not 
 
         believe the doctor was listening.  Claimant said he still had 
 
         cheek numbness and double vision on the February 24, 1984 Mayo 
 
         Clinic visit.  Claimant indicated he was not told what was 
 
         causing his condition or given a diagnosis after either the Iowa 
 
         City January 1984 or the Mayo Clinic February 1984 tests.  
 
         Claimant said he was told by the Mayo Clinic to go home and let 
 
         nature take its course over the next year and return in February 
 
         1985. Claimant testified he returned to Mayo Clinic in February 
 
         1985 and was given an MRI test.  This test showed five black 
 
         pinhead spots on the cerebellum.  Claimant said shortly after he 
 
         returned home from his 1985 Mayo Clinic visit, he received a 
 
         report from Mayo Clinic that he was diagnosed as having multiple 
 
         sclerosis. Claimant said this was the first time he ever knew 
 
         from any source that he had multiple sclerosis.
 
         
 
              Claimant said he told Mr. Robeson, the president of 
 
         defendant employer, two days after receiving the Mayo Clinic 
 
         diagnosis that he had multiple sclerosis.  He said Mr. Robeson 
 
         laughed.  Claimant said he had told Robeson in 1984 of his 
 
         December 24, 1983 incident and his doctor and clinic visits 
 
         resulting therefrom.  Claimant stated he continued to work until 
 
         June 1985 when Mr. Robeson fired him.  Claimant contends that Mr. 
 
         Robeson tried to get claimant to quit his job for a period of 
 
         time before claimant was finally fired.
 
              
 
              Claimant said he is under the care of Joseph M. Doro, D.O., 
 
         who heads the Iowa Lutheran Hospital multiple sclerosis 
 
         department.
 
         
 
              Claimant emphasized that since the December 24, 1983 
 
         incident his health has deteriorated and he has never been back 
 
         to normal health.
 
         
 
              Donald D. Layton, M.D., a neurologist, testified by way of 
 
         deposition on June 6, 1989., that around 1960 he wrote a 
 
         publication dealing with multiple sclerosis.  Dr. Layton said he 
 
         is currently familiar with the current medical knowledge 
 
         concerning the etiology of multiple sclerosis as a treating 
 
         physician.  When asked about the etiology or the cause of 
 
         multiple sclerosis, Dr. Layton answered:
 

 
 
 
 
 
 
 
         
 
              A.  Well, as of today it's.not known.  There's a great deal 
 
              of research directed toward trying to find the etiology; 
 
              obviously toward trying to find a means of prevention and a 
 
              means of treatment.  But the first object is to try to find 
 
              the cause or causes of multiple sclerosis.
 
         
 
                 And as of today most people believe that --it's
 
              going to be the co-existence of two conditions being met in 
 
              the same individual.  One of them will have something to do 
 
              with a genetic predisposition, set up in an individual's 
 
              personal genes, that would make them liable.  And those are 
 
              fairly well narrowed down now.  That might be considered 
 
              kind of the lock.
 
         
 
                 But the second ingredient would be a key, and that is 
 
              totally unknown at this time.  Speculation includes the 
 
              possibility that it is an infective particle or something we 
 
              don't even know about yet.
 
         
 
         (Donald D. Layton, M.D., Deposition, Defendants' Exhibit 2, Pages 
 
         7-8)
 
         
 
              Dr. Layton was asked, and answered as follows:
 
         
 
              Q.  Would it be fair to say, then, that at the present time 
 
              the medical community has not reached any general accepted 
 
              conclusion concerning to what extent environmental factors, 
 
              if any, play a role in triggering the disease?
 
         
 
              A.  I believe that it would be fair to say that 
 
              environmental factors have been effectively excluded as 
 
              having anything to do with the disease.  Maybe what you're 
 
              talking about or think about is the incidence in temperature 
 
              climates, as opposed to warm climates.  But most people 
 
              think that it has more to do with nutrition and diet, rather 
 
              than temperature.
 
         
 
              Q.  Is there any generally-accepted conclusion in the 
 
              medical community that any particular virus, Lyme disease, 
 
              retro virus, measles, have an impact or causal connection?
 
         
 
              A.  No. I said that it probably -- most people think it will 
 
              be something like that.  But whatever it is, has not been 
 
              identified.
 
         
 
         (Layton Dep., Def. Ex. 2, P. 10)
 
         
 
              Dr. Layton said he first saw claimant in February 1984 
 
         through a referral by a Dr. Pinchera, of Fort Dodge, Iowa.  Dr. 
 
         Layton said that multiple sclerosis was suspected but not 
 
         diagnosed on the 1984 visit.  Dr. Layton said that on claimant's 
 
         February 1985 visit, multiple sclerosis was confirmed.  Dr. 
 
         Layton said claimant returned the third time in 1986 and 
 
         claimant's condition had worsened considerably.  Dr. Layton was 
 
         asked and answered as follows:
 

 
 
 
 
 
 
 
         
 
              Q.  Do you have an opinion to a reasonable degree of medical 
 
              certainty whether or not a single exposure to cold, such as 
 
              that articulated by Mr. Horton, was causally related to the 
 
              onset of his multiple sclerosis?
 
         
 
              A.  Yes, I have a strong opinion that it was not caused by 
 
              exposure to cold.
 
         
 
              Q.  Do you have an opinion to a reasonable degree of medical 
 
              certainty whether or not the exposure to exhaust fumes from 
 
              a vehicle on the same day, or the combination of that event 
 
              and the cold exposure, was causally connected to the onset 
 
              of his symptoms relating to multiple sclerosis?
 
         
 
              A.  I do.  And that it is not.
 
         
 
         (Layton Dep., Def. Ex. 2, p. 17)
 
         
 
              Dr. Layton said he disagreed with Dr. Doro's opinion that:
 
         
 
              [T]here is, to a reasonable degree of medical certainty, 
 
              evidence that stress triggers the onset of MS, and since Mr. 
 
              Horton identified the cold incident as the only stressful 
 
              incident in his life at about the time of the onset, then 
 
              one can conclude that that exposure to cold caused the 
 
              triggering or onset of the clinical manifestations.
 
         
 
         (Layton Dep, Def. Ex. 2, pp. 17-18)
 
         
 
              Dr. Layton further answered:
 
         
 
              A.  Well, I disagree with it totally in the sense that I 
 
              don't even believe that stress will trigger multiple 
 
              sclerosis.  It will often cause symptoms to be worse and and 
 
              [sic] occasionally symptoms can be first noticed after times 
 
              of stress.  But think about what I've just said.  Multiple 
 
              sclerosis is a very, very common disease.  There are many, 
 
              many people with that disease.  And so many, many people 
 
              with stresses, also.  They're bound to co-exist, even in 
 
              time.
 
         
 
         (Layton Dep., p. 18)
 
         
 
              Dr. Layton admitted in his research and study in writing his 
 
         article that he did not review the possibility of the 
 
         relationship of the cold exposure and the onset of multiple 
 
         sclerosis.  He did acknowledge that those multiple sclerosis 
 
         people in his study were from Minnesota where it is cold.  He 
 
         said he did not inquire about the research candidates and their 
 
         degree of cold exposure.
 
         
 
              Joseph M. Doro, D.O., a neurologist, testified by deposition 
 
         taken September 29, 1988.  He indicated he has never conducted 
 
         any experiments or investigations on multiple sclerosis nor has 
 
         he written any publications.  Dr. Doro said his knowledge of 
 
         multiple sclerosis arises from his involvement with multiple 
 
         sclerosis patients, with the Multiple Sclerosis Society from mid 
 
         1970's to the present and his residency training.  Dr. Doro 
 
         acknowledged that the etiology of multiple sclerosis is unclear, 
 
         that it is found primarily in people of Northern European 
 
         ancestry, and people located further from the equator.  He also 
 
         indicated that more people are beginning to think that a generic 
 
         predisposition is the greater factor.  Dr. Doro testified that:  
 
         "I think most people agree now that it's primarily a disease 
 
         involving the immune system; and that's the reason why you 
 

 
 
 
 
 
 
 
 
 
         develop the symptoms that you do."  (Doro Deposition, Claimant's 
 
         Exhibit 6, page 11) Dr. Doro answered with a "no" when asked:  
 
         "Is there any consensus in the medical literature at this time as 
 
         to any one particular environmental factor or toxin or virus that 
 
         definitely causes multiple sclerosis?" (Doro Dep, Cl. Ex. 6, p. 
 
         11)
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Dr. Doro said he first saw claimant on June 6, 1988 at the 
 
         Multiple Sclerosis Center at Iowa Lutheran Hospital.  Dr. Doro 
 
         could not recall any scientific medical literature concluding 
 
         that a single exposure to cold causes multiple sclerosis.  He 
 
         indicated stress is now known to be the most common cause of 
 
         people with multiple sclerosis causing their exacerbation of 
 
         their symptoms. Dr. Doro described stress as:
 
         
 
              Stress can be anything.  Stress is a physiologic phenomenon 
 
              and is not just a mental phenomenon.  It's not a negative 
 
              phenomenon.  Stress is any type of stimulus which causes the 
 
              fight or flight reaction to develop in the body.  Now, this 
 
              can be illness, this can be mental stress.  Within the 
 
              confines of mental stress, it could be something negative or 
 
              it could be something positive:  People moving, people 
 
              getting married.  Things that we think of as being happy 
 
              events are very stressful events in life.
 
         
 
              Q.  So a lot of times any unusual situational event in one's 
 
              life whether it's negative such as the death of a relative 
 
              or positive such as marriage or changing jobs can create 
 
              stress?
 
         
 
              A.  Yes.
 
         
 
         (Doro Dep., Cl. Ex. 6, pp. 18-19)
 
         
 
              Dr. Doro was asked:
 
         
 
              Are you saying then that in your opinion that Mr. Horton's 
 
              single exposure to cold originated the disease process that 
 
              resulted in multiple sclerosis?
 
         
 
              A.  I'd be saying that his exposure to cold was what 
 
              precipitated his initial exacerbation of his disease.
 
         
 
              Q.  But it didn't cause the disease?
 
              
 
              A.  We don't know what causes the disease.
 
              
 
              Q.  Right.  No one knows that?
 
              
 
              A.  Right.
 
              
 
              Q.  You're saying that you feel that the episode of cold 
 
              exacerbated the symptoms?
 
         
 
              A.  Yes.
 
              
 
              Q.  Do you know what other stress factors in his life may 
 
              have exacerbated the symptoms?
 
              
 
              A.  No, I don't.
 
         
 

 
         
 
 
 
 
 
         (Doro Dep., Cl. Ex. 6, pp. 21-22)
 
         
 
              Dr. Doro was then asked:
 
         
 
              Q.  Do we have any way of judging whether or not Mr. 
 
              Horton's multiple sclerosis would have become symptomatic to 
 
              the extent it is today with or without that single episode 
 
              of cold exposure?
 
         
 
              A.  It's hard to say what.his disease would have been.
 
         
 
              Q.  When you used the term a reasonable degree of medical 
 
              certainty in discussing causation, what do you mean by that?
 
         
 
              A.  That looking at the situation, looking at what happened 
 
              at one point and then what followed afterwards that it's 
 
              reasonable to assume that there was a causal connection 
 
              between the two.
 
         
 
         (Doro Dep., Cl. Ex. 6, pp. 23-24)
 
         
 
              Dr. Doro wrote on July 7, 1988:
 
         
 
                 However, after reviewing Mr. Horton's history, I feel 
 
              that within a reasonable degree,of medical certainty I could 
 
              say that there was a causal relationship between the onset 
 
              of his symptoms and his exposure to the cold.  However, one 
 
              could make the argument that he would have developed MS at 
 
              some time in his life anyway, but the cold was the 
 
              precipitating factor.
 
         
 
         (Cl. Ex. 3)
 
         
 
              The Mayo Clinic records reflect the following:
 
         
 
         
 
              2/10/84  Outside x-ray Head 1-31-84:  Neg. Head CT with and 
 
              without contrast 1-31-84.  (Baker) Chest PA stereo 
 
              Neg. (Ward) "reb"
 
              
 
              2-14-84  No neurol DX
 
              
 
              2/14/84  Results of tests all normal.  Symptoms unchanged.  
 
              A change MNR scan & see same day (Dr. Layton) 
 
              General discussion with pt & father.  They have 
 
              mentioned the diagnosis of M.S. & I have said that 
 
              this is possible, though there is no supporting 
 
              evidence on test results.  Steroid not advised at 
 
              present.
 
         
 
         
 
              2/15/85  Multiple Sclerosis
 
              
 
              2-15-85  M.R.I. Head-#NA-3102-Multiple focal areas of 
 
              prolonged T-2 signal in booth cerebral hemisphere 
 
              consistent with the diagnosis of multiple 
 
              sclerosis. There may also be a couple of areas of 
 
              prolonged T-2 signal in the upper brain stem.  
 
              (Nichols) "alf"
 

 
              
 
 
 
 
 
              
 
              4/3/87   Multiple Sclerosis recheck
 
              
 
         (Cl. Ex. 2)
 
         
 
              An article provided by the National Multiple Sclerosis 
 
         Society, Iowa Chapter, stated:
 
         
 
                 The effects of temperature are seen in many cases of 
 
              multiple sclerosis.  Extremes of both heat and cold appear 
 
              to have an adverse effect, but increased symptoms are seen 
 
              most often in the presence of heat.  This is sometimes known 
 
              as Uhthoff's sign.  It is thought that increased body 
 
              temperature ray disrupt nerve transmission, which can result 
 
              in a variety of multiple sclerosis symptoms, including 
 
              visual and coordination problems.  Indeed, a diagnostic 
 
              procedure in use for a number of years, the "hot bath test", 
 
              will sometimes demonstrate an increase in multiple sclerosis 
 
              symptoms when a person was submerged in a hot bath.  It is 
 
              recommended that the temperature-sensitive person with 
 
              multiple sclerosis avoid excessive heat, particularly if 
 
              experience tells him that such exposure results in 
 
              incapacitating body weakness.
 
         
 
         (Cl. Ex. 4)
 
         
 
              An article in the Journal of Neurology, Neurosurgery and 
 
         Psychiatry 1986; 49:113-123, The Mystery of the Origin of MS, by 
 
         W. I. McDonald, sets out in its conclusion:  "What can we now say 
 
         about the origin of multiple sclerosis?  That it is a disease 
 
         produced by an environmental agent in genetically susceptible 
 
         individuals in whom there is an abnormality of the immune 
 
         mechanism."  (Cl. Ex. 4, Article P. 121)
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              Iowa Code section 85.26 provides, in part:
 
         
 
                 An original proceeding for benefits under this chapter 
 
              or chapter 85A, 85B, or 86, shall not be maintained in any 
 
              contested case unless the proceeding is commenced within two 
 
              years from the date of the occurrence of the injury for 
 
              which benefits are claimed or, if weekly compensation 
 
              benefits are paid under section 86.13, within three years 
 
              from the date of the last payment of weekly compensation 
 
              benefits.
 
         
 
              Iowa Code section 85.23 provides:
 
         
 
                 Unless the employer or the employer's representative 
 
              shall have actual knowledge of the occurrence of an injury 
 
              received within ninety days from the date of the occurrence 
 
              of the injury, or unless the employee or someone on the 
 
              employee's behalf or a dependent or someone on the 
 
              dependent's behalf shall give notice thereof to the employer 
 
              within ninety days from the date of the occurrence of the 
 
              injury, no compensation shall be allowed.
 

 
              
 
 
 
 
 
         
 
              Claimant has the burden of proving by a preponderance of the 
 
         evidence that he received an injury on February 15, 1985 which 
 
         arose out of and in the course of his employment.  McDowell v. 
 
         Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. 
 
         Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
              "An injury occurs in the course of the employment when it is 
 
         within the period of employment at a place the employee may 
 
         reasonably be, and while he is doing his work or something 
 
         incidental to it."  Cedar Rapids Comm. Sch. Dist. v. Cady, 278 
 
         N.W.2d 298 (Iowa 1979); McClure v. Union et al. Counties, 188 
 
         N.W.2d 283 (Iowa 1971); Musselman, 261 Iowa 352, 154 N.W.2d 128.
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury of February 15, 1985 is causally 
 
         related to the disability on which he now bases his claim.  
 
         Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).  
 
         Lindahl v. L.O. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945).  A 
 
         possibility is insufficient; a probability is necessary.  Burt v. 
 
         John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 
 
         (1955).  The question of causal connection is essentially within 
 
         the domain of expert testimony.  Bradshaw v. Iowa Methodist 
 
         Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960).
 
         
 
              When an aggravation occurs in the performance of an 
 
         employer's work and a causal connection is established, claimant 
 
         may recover to the extent of the impairment.  Ziegler v. United 
 
         States Gypsum Co., 252 Iowa 613, 620, 106 N.W.2d 591, (1960).
 
         
 
              An employer takes an employee subject to any active or 
 
         dormant health impairments, and a work connected injury which 
 
         more than slightly aggravates the condition is considered to be a 
 
         personal injury.  Ziegler, 252 Iowa 613, 620, 106 N.W.2d 591, and 
 
         cases cited.
 
         
 
              An employee is not entitled to recover for the results of a 
 
         preexisting injury or disease but can recover for an aggravation 
 
         thereof which resulted in the disability found to exist.  Olson 
 
         v. Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963); 
 
         Yeager v. Firestone Tire & Rubber Co., 253 Iowa 369, 112 N.W.2d 
 
         299 (1961); Ziegler v. United States Gypsum Co., 252 Iowa 613, 
 
         106 N.W.2d 591 (1960).  See also Barz v. Oler, 257 Iowa 508, 133 
 
         N.W.2d 704 (1965); Almquist v. Shenandoah Nurseries, 218 Iowa 
 
         724, 254 N.W. 35 (1934).
 
         
 
              As a claimant has an impairment to the body as a whole, an 
 
         industrial disability has been sustained.  Industrial disability 
 
         was defined in Diederich v. Tri-City Railway Co., 219 Iowa 587, 
 
         593, 258 N.W. 899, 902 (1935) as follows:  "It is therefore plain 
 
         that the legislature intended the term 'disability' to mean 
 
         'industrial disability' or loss of earning capacity and not a 
 
         mere 'functional disability' to be computed in the terms of 
 
         percentages of the total physical and mental ability of a normal 
 
         man."
 

 
         
 
 
 
 
 
         
 
              Iowa adopts the discovery rule which provides that the 
 
         period of limitations does not begin to run until the claimant 
 
         knows of his or her injury and its probable compensable nature.  
 
         Orr v. Lewis Cent. Sch.  Dist., 298 N.W.2d 256 (1980).
 
         
 
              Claimant is 35 years old and as stipulated by the parties, 
 
         is permanently totally disabled.  Claimant was working for 
 
         defendant employer on December 24, 1983.  Claimant was a mechanic 
 
         on call 24 hours a day.  There is testimony that claimant was 
 
         called on an emergency by defendant employer on December 24, 1983 
 
         at 2:00 to 3:00 a.m. Several witnesses referred to the cold 
 
         incident occurring on the morning of Christmas Eve.  Because of 
 
         the nature of the day and hours involved, the record was 
 
         clarified at the end of the testimony.  Wherever the witnesses 
 
         referred to the morning of December 23, 1983, it was in fact the 
 
         morning of Christmas Eve, December 24, 1983.  Claimant testified 
 
         that at 2:00 to 3:00 a.m. on December 24, 1983, it was a record 
 
         cold 23 degrees below zero. The employer requested claimant try 
 
         to start a disabled company truck on the highway outside Fort 
 
         Dodge, Iowa.  Claimant described the necessity to lie on the 
 
         ground three to four hours while attempting to change a fuel 
 
         filter and get the truck operating. Claimant told of the fuel oil 
 
         spilling down his arm, his coat hood falling off his head and the 
 
         blowing snow drifting around his body as he struggled without 
 
         gloves to fix the employer's truck. Claimant testified he was 
 
         unable to start the truck, which was located in a precarious 
 
         position along the highway.  Claimant eventually hauled the truck 
 
         to defendant employer's garage and went home to take a hot 
 
         shower.  Claimant then returned to work for an additional eight 
 
         to ten hours.   Claimant's father finally came to defendant 
 
         employer's work place to pick up his son so that the family could 
 
         celebrate the annual Christmas Eve dinner and events.
 
         
 
              Claimant described the numbness and coldness he felt 
 
         Christmas Eve.  Claimant said he was tired and slept some at his 
 
         parents.  He had double vision.  Claimant was not improving and 
 
         he sought medical help.
 
         
 
              Claimant went to the University of Iowa Hospitals in early 
 
         January 1984 and returned without a diagnosis.  It appears 
 
         claimant did not go through all the possible tests at that time 
 
         due to the unavailability of the doctor with whom he had the 
 
         appointment.  Claimant immediately thereafter set up an 
 
         appointment with Mayo Clinic.  Certain tests were performed with 
 
         normal results.  Claimant returned without a diagnosis.  There 
 
         was a notation that possible multiple sclerosis was suspected but 
 
         the tests showed nothing at that time.  Claimant was to go home 
 
         and let nature take its course and return in one year.
 
         
 
              Claimant returned to Mayo Clinic around the first of 
 
         February 1985, at which time he had several tests performed, one 
 
         being an MRI.  Claimant returned home and was notified he had 
 
         multiple sclerosis.  Claimant, his sister, and his parents 
 
         testified this was the first time they knew of any diagnosis and 
 
         particularly that the claimant was diagnosed as having multiple 
 
         sclerosis.  Iowa has adopted the discovery rule.  Claimant first 
 
         knew he had multiple sclerosis in February 1985.  The Mayo notes 
 
         indicate in February 1985 is when the attending doctor wrote this 
 
         diagnosis in claimant's Mayo Clinic records.  The undersigned 
 
         finds that February 15, 1985 is the date of injury for the 
 
         purposes of the application of Iowa Code sections 85.23 and 
 
         85.26.
 

 
         
 
 
 
 
 
         
 
              There is considerable testimony that claimant or his father 
 
         notified or discussed claimant's medical problems in 1984 and 
 
         1985 with the employer.  The undersigned finds that the employer 
 
         was orally notified timely and, also, the employer had actual 
 
         notice of claimant's medical and hospital appointments, the 
 
         events of December 24, 1983, and the ultimate diagnosis by Mayo 
 
         Clinic in February 1985.
 
         
 
              The employer took certain actions to cause claimant to quit 
 
         his job soon after February 15, 1985.  Claimant continued to work 
 
         even though the multiple sclerosis was progressive and 
 
         debilitating to claimant.  Claimant's employer fired claimant in 
 
         July 1985.  It appeared obvious that claimant's condition was 
 
         worsening and claimant was not able to perform his job as he did 
 
         before the December 24, 1983 events.  The undersigned finds 
 
         claimant timely notified defendant employer of his injury and 
 
         that the employer also had actual notice.
 
         
 
              Claimant's petition was filed on December 22, 1986, within 
 
         the two years of the discovery of claimant's injury and as in the 
 
         provisions of Iowa Code section 85.26.
 
         
 
              It is undisputed that claimant has multiple sclerosis.  The 
 
         parties submitted as exhibits various articles written about 
 
         multiple sclerosis.  Defendants contend the cause of multiple 
 
         sclerosis is unknown.  It appears the specific cause of multiple 
 
         sclerosis is unknown.  It appears most people agree it is 
 
         primarily a disease involving the immune system, but there is no 
 
         one consensus in the medical literature as to any one specific 
 
         factor or toxin or virus that definitely causes multiple 
 
         sclerosis.
 
         
 
              Dr. Doro opined that claimant's exposure to cold was what 
 
         precipitated claimant's initial exacerbations of his multiple 
 
         sclerosis disease.  He emphasized that the cold incident did not 
 
         cause multiple sclerosis but exacerbated the symptoms.  Dr. Doro 
 
         opined that there was a causal connection between the onset of 
 
         claimant's symptoms and his exposure to the cold.
 
         
 
              Dr. Layton basically disagreed with Dr. Doro's medical 
 
         causation opinion.  Dr. Layton has done research projects 
 
         involving patients who have multiple sclerosis, some of whom 
 
         lived in Minnesota.  It appears Dr. Layton, in part, relied on 
 
         this study to help form his opinion.  Dr. Layton admitted that no 
 
         question concerning the extent of the patient's exposure to cold 
 
         was asked.  Dr. Doro stated that the study did not involve the 
 
         relationship of cold exposure to the onset of multiple sclerosis 
 
         symptoms.  The undersigned feels that Dr. Layton's study is 
 
         flawed as it relates to claimant.  Exposure to cold and resulting 
 
         stress is a big factor as it applies to claimant.  The 
 
         undersigned is curious as,to why the study involves suspected 
 
         multiple sclerosis patients in the northern colder parts of the 
 
         country and the effects of cold was not considered.  It appears 
 
         from the literature exhibits that there is a higher number of 
 
         people with multiple sclerosis where it is colder or farther 
 
         north and a greater distance from the equator.
 

 
         
 
 
 
 
 
         
 
              Claimant had no symptoms of a multiple sclerosis medical 
 
         condition prior to December 24, 1983 that would suggest any 
 
         illness that would ultimately debilitate the claimant.  The 
 
         undersigned believes Dr. Doro to be more accurate in his opinion. 
 
         The undersigned finds that the events occurring on December 24, 
 
         1983 did not cause multiple sclerosis itself, but these events 
 
         precipitated, accelerated and caused to appear symptoms diagnosed 
 
         on February 15, 1985 as multiple sclerosis.
 
         
 
              The undersigned finds that claimant had a predisposed 
 
         condition that was latent and undisturbed until the events of 
 
         December 24, 1983.  The defendant takes claimant as he is.  The 
 
         undersigned finds claimant's multiple sclerosis condition arose 
 
         out of and in the course of his employment, and that the symptoms 
 
         of the multiple sclerosis disease which have totally disabled 
 
         claimant is causally connected to the events occurring on 
 
         December 24, 1983 and first discovered by claimant on February 
 
         15, 1985.
 
         
 
              Similar issues in this current case has been cited in 
 
         another jurisdiction with the same results.  Conway v. Black Feet 
 
         Indian Developers, Inc., 669 P.2d 225 (Mont. 1983).
 
         
 
              Claimant is entitled to have all his medical expenses 
 
         beginning December 24, 1983 paid by defendants, either by 
 
         reimbursing claimant for out-of-pocket expenses or paying the 
 
         provider of the services directly.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              1.  Defendant employer had actual notice of events on 
 
         December 24, 1983 which ultimately caused symptoms later 
 
         diagnosed on February 15, 1985 as multiple sclerosis.
 
         
 
             2.  Claimant timely filed his petition under the provisions 
 
         of Iowa Code section 85.26.
 
             
 
             3.  Defendant employer had timely oral and actual notice of 
 
         claimant's February 15, 1988 multiple sclerosis diagnosis.
 
             
 
             4.  Claimant has multiple sclerosis and is permanently 
 
         totally disabled as a result of the symptoms arising therefrom.
 
         
 
              5.  Claimant had an inactive, latent, underlying multiple 
 
         sclerosis condition on December 24, 1983, which was discovered on 
 
         February 15, 1985, and which was aggravated or precipitated and 
 
         its symptoms triggered by the work-related events that occurred 
 
         on December 24, 1983.
 
         
 
              6.  Claimant's debilitating symptoms of his multiple 
 
         sclerosis disease were incurred as a result of a work-related 
 
         injury on December 24, 1983, which injury diagnosis was first 
 
         discovered on February 15,.1985.
 
         
 

 
 
 
 
 
 
 
              7.  Claimant suffered extreme cold weather conditions on 
 
         December 24, 1983, which triggered, precipitated and accelerated 
 
         a predisposed latent condition in claimant causing symptoms 
 
         ultimately diagnosed on February 15, 1985 as multiple sclerosis.
 
         
 
              8.  Claimant's employment was terminated by defendant 
 
         employer on June 10, 1985.
 
         
 
              9.  Claimant is permanently totally disabled beginning June 
 
         10, 1985.
 
         
 
              10.  Defendants are to pay claimant's medical expenses set 
 
         out in claimant's exhibit 8.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              Claimant's debilitating symptoms of his multiple sclerosis 
 
         disease arose out of and in the course of his employment on 
 
         December 24, 1983, and that claimant was first informed of the 
 
         injury diagnosis on February 15, 1985.
 
         
 
              Claimant's permanent total disability was caused by the 
 
         work-related injury he received on December 24, 1983, which was 
 
         not discovered as to its effects until February 15, 1985.
 
         
 
              Claimant is permanently totally disabled.
 
         
 
              Claimant timely notified defendant employer as to the notice 
 
         of his injury as provided under Iowa Code section 85.26.
 
         
 
              Claimant timely filed his petition as provided under Iowa 
 
         Code section 85.26.
 
         
 
              Claimant is entitled to have his medical benefits paid 
 
         beginning December 24, 1983.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, it is ordered:
 
         
 
              That defendants pay claimant compensation for permanent 
 
         total disability at the stipulated rate of two hundred twenty-six 
 
         and 20/100 dollars ($226.20) per week during the period of 
 
         claimant's disability commencing June 10, 1985.
 
         
 
              That defendants shall pay accrued weekly benefits in a lump 
 
         sum and shall receive credit against the award for weekly
 
         
 
              Defendants shall pay interest on benefits awarded herein as 
 
         set forth in Iowa Code section 85.30.
 
         
 
              Defendants shall pay claimant's medical expenses set out in 
 
         claimant's exhibit 8 and future medical as a result of claimant's 
 
         injury of February 15, 1985.
 
         
 

 
         
 
 
 
 
 
 
 
              Defendants shall pay the costs of this action pursuant to 
 
         Division of Industrial Services Rule 343-4.33.
 
         
 
              Defendants shall file an activity report upon payment of 
 
         this award as requested by this agency pursuant to Division of 
 
         Industrial ServiceS Rule 343-3.1.
 
         
 
              Signed and filed this 29th day of September, 1989.
 
         
 
         
 
         
 
         
 
         
 
         
 
                                            BERNARD J. O'MALLEY
 
                                            DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies to:
 
         
 
         Ms. Artis I. Reis
 
         Attorney at Law
 
         3939 Grand Ave
 
         Des Moines, IA  50312
 
         
 
         Mr. Brian L. Campbell
 
         Attorney at Law 
 
         1100 Des Moines Bldg
 
         Des Moines, IA  50309
 
         
 
 
                                            
 
 
 
 
 
 
 
 
 
                                            1100; 1108; 2401
 
                                            2402; 2206; 5-1804
 
                                            Filed September 29, 1989 
 
                                            Bernard J. O'Malley
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         NEAL HORTON,
 
         
 
              Claimant,
 
                                                 File No. 837636
 
         vs.
 
         
 
         GREENFIELD TRANSPORT                  A R B I T R A T I 0 N
 
         COMPANY, INC.,
 
                                                 D E C I S I 0 N
 
              Employer,
 
         
 
         and
 
         
 
         CARRIERS INSURANCE COMPANY by
 
         IOWA INSURANCE GUARANTEE
 
         ASSOCIATION,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         2401; 2402
 
         
 
              Deputy found February 15, 1985, when claimant first found 
 
         out the diagnosis of his condition, was the date of claimant's 
 
         injury for purposes of 86.23 (Notice of Injury) and 86.26 
 
         (Statute of Limitations).  Claimant timely notified employer and 
 
         timely filed his petition as to his February 15, 1985 injury 
 
         date.
 
         
 
         1100; 1108
 
         
 
              Found claimant's injury rose out of and in the course of his 
 
         employment and that claimant's multiple sclerosis condition was 
 
         causally connected to his February 15, 1985 injury.
 
         
 
         2206
 
         
 
              Found claimant's preexisting, inactive, latent, underlying 
 
         multiple sclerosis condition on December 24, 1983, which was 
 
         discovered on February 15, 1985, was aggravated or precipitated 
 
         and its symptoms triggered by the work-related events that 
 
         occurred December 24, 1983.
 
         
 
         5-1804
 
         
 
              Claimant found to be permanently totally disabled.  The 
 
         parties had stipulated that if liability found, claimant was 
 
         permanently totally disabled.
 

 
         
 
 
 
 
 
         
 
         NOTE:  Conway v. Black Feet Indian Developers, Inc., 669 P.2d 225 
 
         (Mont. 1983) found the same results.
 
         
 
              The judge in the Conway case made a comment that may be of 
 
         interest to the deputies and their hard working staff.
 
         
 
              Although some inherent institutional delay may be expected 
 
              as a claim lumbers through the claims process, it is clear 
 
              as day that a 7-year case time is intolerable to a worker.  
 
              The blame rests squarely on the legislature.  It has treated 
 
              the Workers' Compensation Court as an orphan, leaving it 
 
              understaffed, underfinanced and underquartered.  It has 
 
              practiced a false economy, because the burden of financing 
 
              the Workers' Compensation Court is upon industry and those 
 
              who suffer most from underfinancing are the helpless and the 
 
              injured.  If this case does not shake some legislator's 
 
              conscience, perhaps nothing will.
 
         
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         CAROL FRY,
 
         
 
              Claimant,
 
         
 
         VS.                                    File Nos. 837829 and 
 
         846901
 
         
 
         AMANA REFRIGERATION, INC.,                A R B I T R A T I O N
 
         
 
              Employer,                               D E C I S I O N
 
         
 
         and
 
                                                         F I L E D
 
         LIBERTY MUTUAL INSURANCE CO.,
 
                                                        JUN 20 1990
 
              Insurance  Carrier,
 
                                                    INDUSTRIAL SERVICES
 
         and
 
         
 
         SECOND INJURY FUND OF IOWA,
 
         
 
              Defendants.
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding in arbitration brought by Carol Fry, 
 
         claimant against Amana Refrigeration, Incorporated, employer, 
 
         Liberty Mutual Insurance Company, insurance carrier and Second 
 
         Injury Fund of Iowa, defendants, for benefits as the result of an 
 
         injury to the right arm which occurred on October 23, 1986 (file 
 
         number 837829) and an injury to the left arm that occurred on 
 
         February 9, 1987 (file number 847901).  Claimant contends that 
 
         she first lost work due to the second injury on February 9, 1987 
 
         and; therefore, claimant contends the proper date of injury is 
 
         February 9, 1987.  Defendant employer and insurance carrier 
 
         contend that with respect to the second injury, claimant first 
 
         complained of an injury on January 28, 1987 and they consider 
 
         this to be the injury date for the second injury.  Defendant 
 
         Second Injury Fund of Iowa contends that claimant sustained only 
 
         one injury of a cumulative nature stemming from a preexisting 
 
         condition and that the injury date should be when claimant first 
 
         lost time from work for the injury.
 
         
 
              A hearing was held on November 14, 1989, at Cedar Rapids, 
 
         Iowa, and the case was fully submitted at the close of the 
 
         hearing.  Claimant was represented by Thomas J. Currie.  Employer 
 
         and insurance carrier were represented by Ralph W. Gearhart. 
 
         Second Injury Fund of Iowa was represented by Craig Kelinson.
 
         
 
              The record consists of the testimony of Carol Fry, claimant; 
 
         Gerald Fry, claimant's former husband; Vera Hansen, witness for 
 
         claimant; John Hadenfeldt, director of occupational safety; joint 
 
         exhibits 1 through 4; claimant's exhibits A through G; and 
 
         employer and insurance carrier exhibits 1 and 2.  Several of the 
 
         exhibits were duplicated by claimant and employer and insurance 
 
         carrier, even though paragraph 10(2) of the hearing assignment 
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         order states that every reasonable effort should be made to avoid 
 
         duplication.  Duplicated exhibits inhibit the decision making 
 
         process, are difficult to work with, and delay the time in which 
 
         the decision can be made.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              The deputy ordered a transcript of the hearing.  Claimant's 
 
         attorney filed a claimant's contention on disputed issues and a 
 
         hearing brief at the time of the hearing.  All three attorneys 
 
         filed outstanding posthearing briefs.
 
         
 
                             INJURY OF OCTOBER 23, 1986
 
         
 
                                   STIPULATIONS
 
         
 
              Claimant, employer and insurance carrier stipulated to the 
 
         following matters with respect to the injury of October 23, 1986:
 
         
 
              That an employer-employee relationship existed between 
 
         claimant and employer at the time of the injury.
 
         
 
              That claimant sustained an injury on October 23, 1986 which 
 
         arose out of and in the course of employment with employer.
 
         
 
              That the injury was the cause of temporary disability, that 
 
         claimant was entitled to and was paid temporary disability 
 
         benefits from November 13, 1986 through January 1, 1987, and that 
 
         claimant's entitlement to temporary disability benefits is not a 
 
         matter in dispute at this time.
 
         
 
              That the commencement date for permanent partial disability 
 
         benefits, in the event such benefits are awarded, is January 2, 
 
         1987.
 
         
 
              That the rate of compensation, in the event of an award, is 
 
         $226.03 per week.
 
         
 
              That the charges for disputed medical expenses are fair and 
 
         reasonable and were incurred for reasonable and necessary medical 
 
         treatment.
 
         
 
              The defendants make no claim for credit for employee 
 
         nonoccupational group health plan benefits paid to claimant prior 
 
         to hearing.
 
         
 
              That defendants claim no credit for workers' compensation 
 
         permanent disability benefits paid to claimant prior to hearing.
 
         
 
              That the temporary disability benefits that were paid to 
 
         claimant prior to hearing were at the rate of $210.78 per week 
 
         for 8.143 weeks and that this rate is less than the stipulated 
 
         rate at the time of hearing and the parties agreed to adjust this 
 
         between themselves.
 
         
 
              That there are no bifurcated claims.
 
         
 
              That claimant withdrew the issue of entitlement to an Iowa 
 
         Code section 85.39 examination because employer and insurance 
 
         carrier agreed to pay for this examination and evaluation at the 
 
         time of hearing.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
                                      ISSUES
 
         
 
              The same parties submitted the following issues for 
 
         determination at the time of hearing:
 
         
 
              Whether the injury of October 23, 1986, was the cause of 
 
         permanent disability.
 
         
 
              Whether claimant is entitled to permanent disability 
 
         benefits, and if so, the nature and extent of benefits to which 
 
         she is entitled.
 
         
 
              Whether claimant is entitled to certain medication expenses 
 
         and a bill from St. Luke's Hospital for an EMG in the amount of 
 
         $309.
 
         
 
                             INJURY OF FEBRUARY 9, 1987
 
         
 
                                   STIPULATIONS
 
         
 
              Claimant, employer and insurance carrier stipulated to the 
 
         following matters with respect to the injury of February 9, 1987:
 
         
 
              That an employer-employee relationship existed between 
 
         claimant and employer at the time of the injury.
 
         
 
              That claimant sustained an injury on February 9, 1987 or 
 
         possibly January 28, 1987 which arose out of and in the course of 
 
         employment with employer.
 
         
 
              That the injury was the cause of temporary disability, that 
 
         claimant was entitled to and was paid temporary disability 
 
         benefits from February 9, 1987 through March 22, 1987 and that 
 
         claimant's entitlement to temporary disability benefits is not a 
 
         matter in dispute at this time.
 
         
 
              That the commencement date for permanent disability 
 
         benefits, in the event such benefits are awarded, is March 23, 
 
         1987.
 
         
 
              That the rate of compensation, in the event of an award, is 
 
         $221.30 per week.
 
         
 
         
 
              That the charges for the disputed medical expenses are fair 
 
         and reasonable and were incurred for reasonable and necessary 
 
         medical treatment.
 
         
 
              That defendants make no claim for credit for employee 
 
         nonoccupational group health plan benefits paid to claimant prior 
 
         to hearing.
 
         
 
              That defendants claim no credit for workers' compensation 
 
         permanent disability benefits paid to claimant prior to hearing.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              That the temporary disability benefits that were paid to 
 
         claimant prior to hearing were at the rate of $228.82 per week 
 
         which is more than the rate that was stipulated to at the time of 
 
         the hearing and the parties agreed to adjust this matter between 
 
         themselves.
 
         
 
              That there are no bifurcated claims.
 
         
 
              That claimant withdrew the issue of entitlement to an Iowa 
 
         Code section 85.39 examination because defendant employer and 
 
         insurance carrier agreed to pay for it at the time of hearing.
 
         
 
                                      ISSUES
 
         
 
              The parties submitted the following issues for determination 
 
         at the time of the hearing:
 
         
 
              Whether claimant sustained an injury on February 9, 1987 (or 
 
         alternately on January 28, 1987) which.was the cause of permanent 
 
         disability.
 
         
 
              Whether claimant is entitled to permanent disability 
 
         benefits, and if so, the nature and extent of benefits to which 
 
         she is entitled.
 
         
 
              Whether claimant is entitled to certain medication expenses 
 
         and a bill from St. Luke's Hospital for an EMG in the amount of 
 
         $309.
 
         
 
              Whether claimant is entitled to benefits from the Second 
 
         Injury Fund of Iowa.
 
         
 
                 INJURIES OF OCTOBER 23, 1986 AND FEBRUARY 9, 1987
 
         
 
              The Second Injury Fund of Iowa submitted the following 
 
         issues with respect to both injuries at the time of hearing.
 
         
 
              Whether claimant sustained two separate injuries or whether 
 
         claimant sustained one cumulative injury with simultaneous onset 
 
         of symptoms in both upper extremities.
 
         
 
              Whether the injuries are to the arms and hands or whether 
 
         this is an injury to the body as a whole.
 
         
 
              Whether claimant's injury or injuries are permanent.
 
         
 
              Whether claimant sustained a disease rather than an injury.
 
         
 
              Whether claimant's industrial disability, if any, exceeds 
 
         the combined disability of the two upper extremities separately.
 
         
 
                                  FINDINGS OF FACT
 
         
 
           INJURY TYPE-INJURY DATE-SECOND INJURY FUND OF IOWA LIABILITY
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              It is determined that claimant sustained a loss to both arms 
 
         caused by a single accident.  Iowa Code section 85.34(2)(s).
 
         
 
              Claimant started to work for employer on August 4, 1986 as 
 
         an assembler second class (transcript page 53).  Employer's 
 
         general job description is, "Assemble and install parts in 
 
         units."  The balance of the description is a detailed explanation 
 
         of the skills and responsibilities of the job which entail 
 
         considerable use of the hands and arms (claimant's exhibit E, p. 
 
         24; respondents, ex. 1, page 10).
 
         
 
              Claimant first experienced problems in her fingers and hands 
 
         in September of 1986.  She testified:
 
         
 
              A.  It was tingling all over on my hands.  When I'd go to 
 
              bed at night, I couldn't sleep because they would hurt so 
 
              bad.
 
         
 
              Q.  When you say "they", what are you referring to?
 
              
 
              A.  The hands.  They just would hurt.
 
              
 
              Q.  Okay.  So were you experiencing problems with both hands 
 
              at that time?
 
         
 
              A.  Off and on.
 
         
 
         (tr. p. 57)
 
         
 
              Claimant saw the nurse, the company physician, and was 
 
         referred to John S. Koch, M.D., an orthopedic surgeon.  On 
 
         November 10, 1986, Dr. Koch stated:
 
         
 
              Patient comes in in acute distress with the upper 
 
              extremities....
 
         
 
                                       ***
 
         
 
              She has acute tenderness about the wrists, the flexors of 
 
              the thumb of the hands, puffiness of the metacarpal plangeal 
 
              joints, soreness about the wrist level.  She has exquisite 
 
              tenderness over the flexor pollicis longus tendon 
 
              bilaterally, triggering effects on the structure.  Sensation 
 
              is intact.
 
         
 
         (joint ex. 1, p. 22; res. ex. 1, p. 38)
 
         
 
              Employer's first aid report shows that claimant reported, 
 
         "trouble 2 weeks-new job.  hands & arms pins & needles-night-" 
 
         (cl. ex. E, p. 1; res. ex. 1, p. 20).  Claimant testified and the 
 
         first aid reports show that the right hand was the major problem 
 
         at that time (tr. p. 57; cl. ex. E, p. 1; res. ex. 1, p. 21).
 
         
 
              Employer's first aid report next shows that on November 10, 
 
         1986, the same day claimant saw Dr. Koch, that the employee was 
 
         sent, "home."  This report adds, "To bring under control."  (cl. 
 
         ex. E, p. 5; res. ex. 1, p. 25).  Thus, even though the parties 
 
         stipulated that claimant was paid temporary disability benefits 
 
         beginning on November 13, 1986, the first aid report shows that 
 
         claimant first lost time from work on November 10, 1986. 
 
         Furthermore, the form 2a, shows that temporary disability 
 
         benefits were begun on November 10, 1986 (res. ex. 1, p. 33).  
 
         This is also confirmed by employer's attendance records (jt. ex. 
 
         2, p. 12; cl. ex. E, p. 25; res. ex. 2, p. 11).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              The nurse's note for October 23, 1986 further indicates that 
 
         claimant reported bilateral problems in both hands and arms at 
 
         that time (jt. ex. 2; cl. ex. E, p. 29; res. ex. 2, p. 16).
 
         
 
              Claimant testified, described and demonstrated in the court 
 
         room with several gestures that manual movements were required by 
 
         both hands and arms simultaneously to operate the RTV caulking 
 
         gun to caulk the pan into the Amana Radar range (tr. pp. 58 & 
 
         85).
 
         
 
              Dr. Koch performed right carpal tunnel surgery on November 
 
         19, 1986 (jt. ex. 1, pp. 2 & 22; jt. ex. 2, pp. 8 & 16; tr. p. 
 
         87; cl. ex. E, p. 6; res. ex. 1, p. 24).  Dr. Koch's office notes 
 
         and the form 2a indicate that claimant returned to work on 
 
         January 5, 1987 (jt. ex. 1, p. 21; res. ex. 1, p. 39 & 33; cl. 
 
         ex. B, p. 3; res. ex. 1, p. 44).
 
         
 
              Claimant then operated a screw gun which she fed with screws 
 
         with the left hand until January 28, 1987 when she reported pain 
 
         and swelling in her left hand (cl. ex. E, p. 7; res. ex. 1, p. 
 
         27; tr. pp. 61 & 92).  Claimant again demonstrated that both 
 
         right and left hand motions were required to perform this 
 
         operation (tr. p. 93).  Dr. Koch performed carpal tunnel surgery 
 
         on the left hand on February 9, 1987 (jt. ex. 1, p. 20; jt. ex. 
 
         2, p. 19; res. ex. 1, p. 40; tr. p. 95).
 
         
 
              Approximately one week after the left carpal tunnel surgery 
 
         claimant's left thumb locked up and she required a surgical 
 
         release of the left thumb (jt. ex. 2, p. 20; jt. ex. 1, p. 1).
 
         
 
              Dr. Koch stated several times in his deposition that 
 
         claimant suffered from a bilateral condition (jt. ex. 2, pp. 
 
         28-30).
 
         
 
              John R. Walker, M.D., an orthopedic surgeon, who evaluated 
 
         claimant, stated:
 
         
 
              ...After about one month of working at the plant both of her 
 
              hands became painful and the right thumb, index and long 
 
              finger became numb.  Both hands were also cold and swollen 
 
              most of the time and it was almost impossible to grasp the 
 
              tool she needed to work with....
 
         
 
         (cl. ex. A)
 
         
 
              Dr. Walker further opined, "Unfortunately this patient has 
 
         suffered from the severe effects of a stress type of syndrome and 
 
         over-use type of syndrome in doing repetitive movements which her 
 
         musculo-skeletal system unfortunately were not equipped to 
 
         handle."  (cl. ex. A).
 
         
 
              Two orthopedic physicians at the University of Iowa stated 
 
         that claimant experienced bilateral hand pain (jt. ex. 1, p. 38).
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              Therefore, (1) claimant testified to bilateral problems in 
 
         September of 1986; (2) the first aid report recorded bilateral 
 
         problems on October 23, 1986; (3) the nurse's notes recorded 
 
         bilateral complaints; (4) Dr. Koch found a bilateral condition on 
 
         November 10, 1986; (5) Dr. Koch testified to bilateral hand 
 
         complaints in his deposition; (6) the University of Iowa 
 
         physicians describe bilateral hand pain; and (7) Dr. Walker found 
 
         a bilateral problem on August 31, 1987 from the overuse type of 
 
         syndrome in doing repetitive movements.
 
         
 
              Therefore, the weight of the evidence is that claimant 
 
         sustained a cumulative injury which occurred on November 10, 
 
         1986, the first day that claimant was forced to leave work due to 
 
         her disability which arose out of and in the course of employment 
 
         with employer.  McKeever Custom Cabinets v. Smith, 379 N.W.2d 368 
 
         (Iowa 1985).  It is further determined that claimant sustained 
 
         all of the symptoms at the same time, shortly after claimant 
 
         began work for employer, even though it was worse on the right at 
 
         first and subsequently worse on the left after that.  
 
         Consequently, all of the medical evidence and all of the lay 
 
         evidence demonstrated a bilateral condition from the very 
 
         beginning.
 
         
 
              Therefore, it is found that even though there are two 
 
         reports of injury, two claim files, and two carpel tunnel 
 
         surgeries, nevertheless, claimant's testimony, the companies 
 
         medical record, the nurse's notes, the notes of Dr. Koch, the 
 
         testimony of Dr. Koch, the report of Dr. Walker, and the 
 
         University of Iowa report, all establish that claimant received a 
 
         loss to both hands or arms caused by a single accident or set of 
 
         circumstances.  Iowa Code section 85.34(2)(s); Simbro v. Delong's 
 
         Sportswear, 332 N.W.2d 886 (Iowa 1983); Himschoot v. Second 
 
         Injury Fund, Appeal Decision April 15, 1988, affirmed, Polk 
 
         County District Court January 30, 1989, Iowa Court of Appeals, 
 
         affirmed on February 22, 1990 in an unpublished decision.  This 
 
         case is distinguishable from Babe v. Greyhound Lines, Inc., No. 
 
         89-113 (Iowa filed March 27, 1990) because in Babe the claimant 
 
         suffered distinguishable separate injuries.
 
         
 
              In order to be entitled to benefits under Iowa Code section 
 
         85.64 from the second injury fund, claimant must first prove a 
 
         permanent injury to a scheduled member and second prove a 
 
         separate permanent injury to a second scheduled member.  Lawyer 
 
         and Higgs, Iowa Workers' Compensation--Law and Practice, section 
 
         17-4, stresses that the employee must have a loss to another 
 
         member or organ.  By foot note one, the book points out that an 
 
         85.34(2)(s) injury is a single incident and shall be compensated 
 
         as such. Manifestation of one injury on two occasions does not 
 
         satisfy the requirement of a second loss.  McMurrin v. Quaker 
 
         Oats Company, I Iowa Industrial Commissioner Reports 222 (1981).  
 
         The Mcmurrin case is quite similar to this case because there the 
 
         claimant had developed what was described as de Quervain disease 
 
         or tendonitis in both wrists.  It was held that the claimant did 
 
         not have a prior loss of a member as contemplated by Iowa Code 
 
         section 85.64. Therefore, it is determined that claimant is not 
 
         entitled to second injury fund benefits in the instant case.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              The injury date for this case is determined to be November 
 
         10, 1986, when claimant first lost work due to the disability.  
 
         The rate of compensation on November 10, 1986 is the rate of 
 
         com-pensation which is applicable to this case.  There is no date 
 
         of a second injury because there is no separate second injury.
 
         
 
                PERMANENT DISABILITY-CAUSAL CONNECTION-ENTITLEMENT
 
         
 
              It is determined that the bilateral carpal tunnel syndrome 
 
         cumulative injury of November 10, 1986, is the cause of permanent 
 
         disability.
 
         
 
              Dr. Koch, the operating surgeon, however, did not believe 
 
         that the injury was the cause of permanent disability.  He 
 
         determined that claimant was suffering from rheumatoid arthritis, 
 
         a systemic disorder or disease of the whole body which was being 
 
         aggravated by her work.  He said she had a temporary aggravation 
 
         of her difficulty which necessitated the surgical decompressions. 
 
         Dr. Koch concluded, "I do not feel that she will have permanent 
 
         partial disability as the result of her work or aggravation by 
 
         the work."  (jt. ex. 1, p. 17; res. ex. 2, p. 46; res. ex. 1).  
 
         Dr. Koch opined in his deposition that he did not feel that there 
 
         was any permanent impairment from either the right or left hand 
 
         surgeries (jt. ex. 2, pp. 17 & 22).  Dr. Koch believed that 
 
         claimant's continuing complaints of soreness in her hands, aching 
 
         pains at night, stiffness, swelling and catching of the ring 
 
         finger on her left hand with bending activities were related to 
 
         her underlying general systemic or body condition of rheumatoid 
 
         arthritis (jt. ex. 2, pp. 23 & 24).
 
         
 
              Dr. Koch then referred claimant to Michael S. Brooks, M.D., 
 
         a rheumatologist in his medical group (jt. ex. 1, p. 19; res. ex. 
 
         2, p. 41; jt. ex. 2, p. 26).  A laboratory blood test taken by 
 
         Dr. Koch to determine whether there was a rheumatoid factor 
 
         resulted in a seronegative (blood serum negative) result (jt. ex. 
 
         1, p. 19; res. ex. 2, p. 41; jt. ex. 2, p. 26).  Dr. Koch 
 
         completed his testimony with the following comprehensive summary:
 
         
 
              Q.  What is your basic diagnosis of Mrs. Fry's problem as 
 
              her attending physician?
 
              
 
              A.  As I've indicated, I feel Mrs. Fry is afflicted with a 
 
              generalized arthritic disorder of the whole body which I 
 
              became aware of in the course of treating her for conditions 
 
              related to temporary aggravation in local areas of her body 
 
              by activities in her employment.  Those temporary 
 
              aggravations were relieved without permanent impairment 
 
              being incurred by the work activity and that she continued 
 
              to this day suffering from a generalized disease process 
 
              unrelated to her employment.  And I anticipate that she will 
 
              continue in the future to be afflicted with this whole body 
 
              disorder requiring medical, possibly physical, possibly 
 
              surgical management for difficulties that will arise but in 
 
              no way related to her former employment.
 

 
              
 
 
 
 
 
 
 
 
 
 
 
         
 
         (jt. ex. 2, pp. 27 & 28)
 
         
 
              Dr. Koch acknowledged that he issued a return to work slip 
 
         on March 19, 1987, which returned claimant to work as of March 
 
         23, 1987 with restrictions of no lifting, pulling or pushing 10 
 
         to 20 pounds and a restriction on finger movements and wrist-hand 
 
         movements (jt. ex. 1, p. 12; jt. ex. 2, pp. 37 &  38).  It should 
 
         be noted that Dr. Koch's restrictions are not consistent with a 
 
         rating of zero permanency.
 
         
 
              Even though Dr. Koch was the treating physician, and even 
 
         though his opinion may appear to be very convincing on the 
 
         surface, Dr. Koch's testimony is determined not to be the weight 
 
         of the evidence on the issue of causal connection and entitlement 
 
         to permanent disability.  Dr. Koch admitted in his deposition 
 
         testimony that he did not administer any sort of grip strength 
 
         test on claimant.  He did not measure the pinch between the thumb 
 
         and forefinger on either or both hands.  Dr. Koch acknowledged 
 
         that he did not have any measurement figures at all.  Dr. Koch 
 
         explained that he did not take any measurements because these 
 
         tests require the total cooperation on the part of the patient 
 
         and if you get subjective responses rather than objective 
 
         responses the readings are unreliable.  Furthermore, the doctor 
 
         conceded, "My examination here was not for purposes of evaluation 
 
         as to degree of impairment or disability and therefore critical 
 
         measurements were not made of these."  Dr. Koch further admitted, 
 
         "I did not make any record of measurement of degree of motion, 
 
         flexion, extension or rotation involving the extremities."  (jt. 
 
         ex. 2, pp. 40 & 41).
 
         
 
              Therefore, it is clear that Dr. Koch did not use the Guides 
 
         to the Evaluation of Permanent Impairment, third edition, 
 
         published by the American Medical Association.  He did not use 
 
         the Orthopedic Surgeon's Guide to arrive at his conclusions.  And 
 
         he did not take any measurements which would form the basis for 
 
         an accurate evaluation of impairment based entirely on 
 
         professional judgement.  Therefore, Dr. Koch's statement of zero 
 
         impairment must be disregarded as unreliable.
 
         
 
              The following evidence of record is totally irreconcilable 
 
         with Dr. Koch's opinion that claimant suffered no permanent 
 
         impairment from this injury.  Even though claimant was released 
 
         to return to work after the second and third surgeries on March 
 
         23, 1987 she was discharged by employer for the reason that she 
 
         was unfit to perform factory work (cl. ex. E, p. 33; res. ex. 1, 
 
         p. 19).  This discharge was based on Dr. Koch's release of March 
 
         19, 1987. Claimant testified that she was told by employer that 
 
         she was unable to perform factory work (tr. pp. 63-75).  John B. 
 
         Hadenfeldt, director of occupational safety, testified, "With the 
 
         medical reports that we had at that time Carol had weight 
 
         restrictions, 10 to 20 pounds, she also had permanent 
 
         restrictions of finger movement and hand and wrist movement, and 
 
         at that time we didn't have any jobs that we could put her into."
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              Dr. Brooks completed a very thorough examination of claimant 
 
         on June 22, 1987.  Dr. Brooks is a rheumatologist, a specialist 
 
         in arthritis.  Dr. Brooks stated:
 
         
 
              A CBC done in April revealed a normal hemoglobin of 14.3 
 
              with a white count of 9.2 and a sedimentation rate of 3.  
 
              Her rheumatoid factor at that time was negative and I note 
 
              that a rheumatoid factor done back in 1986 by Dr. Bickel was 
 
              also negative.
 
              
 
              On the basis of today's examination and the laboratory tests 
 
              available thus far, I feel that the most likely diagnosis 
 
              would be one of a fibrositis syndrome with a questionable 
 
              underlying mild polyarticular arthritis.  She does appear to 
 
              have had documented carpal tunnel syndrome and this may very 
 
              well have precipitated this flareup [sic] in her fibrositis 
 
              symptoms.
 
              
 
         (jt. ex. 1, p. 14; res. ex. 1, p. 40)
 
         
 
         
 
              Thus, Dr. Brooks, the arthritis specialist, did not find 
 
         that claimant had rheumatoid arthritis.  When Dr. Koch was asked 
 
         whether fibrositis and polyarticular arthritis were the same, he 
 
         gave an answer which appears to be equivocal (jt. ex. 2, pp. 41 & 
 
         42).
 
         
 
              Claimant was also seen by William W. Eversman, Jr., M.D., an 
 
         orthopedic surgeon in Dr. Koch's medical group, on January 15, 
 
         1988 and again on February 24, 1988.  Like Dr. Brooks, he 
 
         examined claimant's entire history and did a very thorough 
 
         physical examination.  He did not find that claimant had 
 
         rheumatoid arthritis and never mentioned this condition in either 
 
         of his extensive office notes.  He suggested that she be examined 
 
         at the University of Iowa.  Dr. Eversman refused to give an 
 
         impairment rating because he did not believe that she could 
 
         adequately cooperate with the permanency rating series of tests 
 
         in view of her views that she expressed to him at that time (jt. 
 
         ex. 1. pp. 30-33).  By comparison with Dr. Koch, it should be 
 
         noted that he did not attempt to propose a zero impairment 
 
         rating, when he felt that claimant could not or would not 
 
         cooperate with the necessary tests, but candidly admitted that he 
 
         could not give a rating.
 
         
 
              Claimant was examined at the University of Iowa on February 
 
         1, 1989 by Dr. Newport and Dr. Steyers (full names unknown).  
 
         These doctors did not make a finding of rheumatoid arthritis, but 
 
         rather assessed, "Industrial hand pain of unknown etiology" (jt. 
 
         ex. 1, p. 38).  Neither doctor attempted to evaluate claimant's 
 
         permanent impairment.  A copy of their report was sent to Dr. 
 
         Eversman (jt. ex. 1, p. 38).
 
         
 
              Thus, it is determined that Dr. Koch's determination that 
 
         claimant did not sustain a permanent impairment or disability is 
 
         unreliable because (1) his determination that claimant suffered 
 
         from rheumatoid arthritis is not supported by Dr. Brooks, a 
 
         rheumatologist; Dr. Eversman, an orthopedic surgeon; or the two 
 
         orthopedic doctors at the University of Iowa; (2) two previous 
 
         laboratory blood serum tests were negative for rheumatoid 
 
         arthritis; and (3) Dr. Koch candidly admitted that he really 
 
         didn't perform an impairment evaluation on claimant and he took 
 
         no measurements of any kind to support his opinion that claimant 
 
         did not sustain any permanent impairment.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              The weight of the evidence is that claimant did sustain a 
 
         permanent impairment.  Dr. Brooks wrote on March 28, 1988:
 
         
 
              In terms of whether these symptoms were caused or aggravated 
 
              by her work at Amana, I would state that her excessive use 
 
              of the hands while working at Amana could certainly have 
 
              caused the carpal tunnel syndrome and initial symptoms that 
 
              she experienced while she was there.  ...and that at least 
 
              by her history the entirety of her problems involving the 
 
              hands began with her employment at Amana.  I would therefore 
 
              consider them related...
 
         
 
         (jt. ex. 1, p. 34)
 
         
 
              The omitted portion in the quotation above is the doctor's 
 
         comments on reflex sympathetic dystrophy syndrome.  These words 
 
         are omitted because claimant did not prove that she has reflex 
 
         sympathetic dystrophy syndrome in the first place, save that it 
 
         was caused by this injury.  A friend of hers was diagnosed with 
 
         this disease and claimant requested the doctors to examine her 
 
         for it also.  None of the doctors found that claimant had reflex 
 
         sympathetic dystrophy syndrome.  Dr. Brooks did establish that 
 
         claimant's employment, "could certainly have caused the carpal 
 
         tunnel syndrome."  (jt. ex. 1, p. 34).
 
         
 
              Dr. Walker found, "Unfortunately this patient has suffered 
 
         from the severe effects of a stress type of.syndrome and over-use 
 
         type of syndrome in doing repetitive movements which her 
 
         musculo-skeletal system unfortunately were not equipped to 
 
         handle."  (cl. ex. A).
 
         
 
              The testimony of Dr. Brooks and Dr. Walker, coupled with 
 
         claimant's testimony that she had no prior problems with her 
 
         hands before this employment (tr. p. 80) which was corroborated 
 
         by her former husband (tr. pp. 114, 115) and claimant's witness 
 
         Hansen (tr. p. 121) and with an absence of any medical evidence 
 
         in the record of any problems with her hands prior to 1986 added 
 
         to Dr. Walker's opinion which is based on this work injury that:
 
         
 
              At the present time I would state that she has a permanent, 
 
              partial impairment of the left, upper extremity amounting to 
 
              20% of this member.  As far as the right, upper extremity is 
 
              concerned, it is my opinion that she has a permanent, 
 
              partial impairment of 8% of the entire left, upper 
 
              extremity.
 
         
 
         (cl. ex. A, p. 4)
 
         
 
              In conclusion, Dr. Koch's testimony that claimant did not 
 
         sustain a permanent impairment is determined to be unreliable.  
 
         The testimony of Dr. Brooks to the effect that claimant's 
 
         impairment and disability could possibly be related to this 
 
         employment injury, although insufficient alone to support a 
 
         finding of causal connection, when coupled with Dr. Walker's 
 
         report, which is built on the history of this injury, along with 
 
         the nonexpert testimony of claimant, claimant's husband, and 
 
         Hansen is sufficient to establish a causal connection of this 
 
         injury to permanent impairment and disability.  Giere v. Aase 
 
         Haugen Homes, Inc., 259 Iowa 1065, 146 N.W.2d 911, 915 (1966); 
 
         Anderson v. Oscar Mayer and Company, 217 N.W.2d 531, 536 (Iowa 
 
         1974).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              The weight of the expert and nonexpert evidence in this case 
 
         establishes that the injury was the cause of permanent 
 
         disability. Klinker v. Wilson Foods Corp., Thirty-fourth Biennial 
 
         Report of the Industrial Commissioner 167, 168 (Appeal Decision 
 
         July 27, 1979).  A cause is proximate if it is a substantial 
 
         factor in bringing about the result.  It only needs to be one 
 
         cause, it does not have to be the only cause.  Blacksmith v. 
 
         All-American, Inc., 290 N.W.2d 348, 354 (Iowa 1980).
 
         
 
              Based on agency experience, technical competence, and 
 
         specialized knowledge which may be utilized in the evaluation of 
 
         the evidence [Iowa Administrative Procedure Act 17A.14(5)] it is 
 
         determined that Dr. Walker's impairment ratings are higher than 
 
         are normally experienced for similar injuries when rated by other 
 
         orthopedic surgeons.  It is determined in this case that claimant 
 
         has sustained a 10 percent impairment to the left upper extremity 
 
         and a 5 percent impairment to the right upper extremity.  Ten 
 
         percent of the upper extremity converts to 6 percent of the body 
 
         as a whole.  Five percent of the upper extremity converts to 3 
 
         percent of the body as a whole.  Table 3, page 20, Guides to the 
 
         Evaluation of Permanent Impairment, third  edition.  Six percent 
 
         of the whole person and 3 percent of the whole person combines to 
 
         9 percent on the combined values chart at page 246 of the Guides. 
 
         Nine percent of 500 weeks is 45 weeks of permanent partial 
 
         disability benefits.  Iowa Code section 85.34(2)(s).
 
         
 
              The proper rate of compensation at the time of this injury 
 
         on November 10, 1986, is $226.03 per week according to the 
 
         stipulation of the parties for this approximate injury date. 
 
         Claimant's testimony concerning her residual complaints after the 
 
         two carpal tunnel surgeries and the trigger thumb release, as 
 
         well as her description of the activities that she can no longer 
 
         do or is restricted in doing, are quite similar to other 
 
         claimants in carpal tunnel syndrome cases and support the amount 
 
         of impairment that is determined for claimant in this case (tr. 
 
         pp. 73-79, 96-104).
 
         
 
                                 MEDICAL EXPENSES
 
         
 
              The parties stipulated that the charges for disputed medical 
 
         expense are fair and reasonable and were incurred for reasonable 
 
         and necessary treatment.  The issue is whether they are causally 
 
         connected to this injury.  Claimant's attorney asserted that 
 
         claimant was seeking reimbursement for the prescription 
 
         medications ordered by Dr. Koch during his period of treatment 
 
         (ex. D, pp. 3-12) and by Dr. Brooks during his period of 
 
         treatment of claimant (ex. D, pp. 1 & 2).  Claimant testified 
 
         that all of these prescriptions prescribed by these two doctors 
 
         would be for her hands and arms.  Claimant also testified that 
 
         Dr. Brooks ordered the EMG in the amount of $309 from St. Luke's 
 
         Hospital (cl. ex. C).
 
         
 
              Dr. Koch verified in his deposition that he did prescribe 
 
         Prednisone, Disalcid and Orudis for claimant.  (jt. ex. 2, pp. 
 
         10, 23 & 26).  These medications are further verified by Dr. 
 
         Koch's notes as well as the medication Indocin (jt. ex. 1, pp. 
 
         19-22; res. ex. 1, pp. 38-41).  Therefore, it is determined that 
 
         these prescriptions were caused by this injury because they were 
 
         prescribed by the treating physician during the period of his 
 
         treatment based on Dr. Koch's diagnosis of the injury.  These 
 
         prescription items total $389.59.  Claimant is entitled to 
 
         recover $389.59 for these prescription drugs ordered by Dr. Koch.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              At the same time, a reading of Dr. Brooks' office notes and 
 
         reports does not disclose that he ordered the medications for 
 
         which claimant seeks reimbursement, or,that he ordered them for 
 
         this particular injury, nor is there any evidence in the 
 
         materials from Dr. Brooks that he ordered the EMG on September 8, 
 
         1987 which cost $309.  Furthermore, this EMG date does not tie in 
 
         with any of the times which Dr. Brooks examined claimant.  
 
         Therefore, it is determined that claimant is not entitled to any 
 
         of the other medication expenses shown for Dr. Brooks or any 
 
         other doctors in claimant's exhibit D, pages 1 through 12.  
 
         Claimant is not entitled to recover the cost of the EMG.
 
         
 
                                TAXATION OF COSTS
 
         
 
              Claimant submitted an itemized list of costs with the 
 
         pre-hearing report.  The parties stipulated that these costs had 
 
         been paid by claimant.  Claimant is entitled to recover these 
 
         costs as follows:
 
         
 
              Medical report of Dr. John S. Koch-$30, medical report of 
 
         Dr. John R. Walker-$85 and deposition transcript of Dr. 
 
         Koch-$48.49. These items total $163.49 and claimant is entitled 
 
         to recover these costs.  Division of Industrial Services Rule 
 
         343-4.33(2) and 343-4.33(6).
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              The following conclusions of law are made:
 
         
 
              That claimant sustained a cumulative injury of bilateral 
 
         carpal tunnel syndrome which occurred simultaneously in both the 
 
         right and left hand and wrist on November 10, 1986, which arose 
 
         out of and in the course of employment with employer.  Iowa Code 
 
         section 85.3; Iowa Code section 85.34(2)(s); McDowell v. Town of 
 
         Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. Central 
 
         Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967).  Furthermore, 
 
         the cites in the findings of fact to McKeever, Simbro, 
 
         Himschoot, McMurrin, and Lawyer and Higgs, also apply to this 
 
         conclusion of law.
 
         
 
              It is determined that the injury is the cause of permanent 
 
         disability.  Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 
 
         867 (1965); Lindahl v. L.O. Boggs Co., 236 Iowa 296 18 N.W.2d 607 
 
         (1945).  Furthermore, citations to Giere and Anderson in the 
 
         findings of fact also apply to this conclusion of law.
 
         
 
              That claimant is entitled to 45 weeks of permanent partial 
 
         disability benefits.  Iowa Code section 85.34(2)(s).
 
         
 
              That claimant is entitled to recover $389.59 in medical 
 
         expenses for prescription drugs.  Iowa Code section 85.27.
 
         
 
              That claimant did not sustain the burden of proof by a 
 
         preponderance of the evidence that she sustained separate 
 
         injuries to the body members specified in Iowa Code section 85.64 
 
         and; therefore, claimant is not entitled to any benefits from the 
 
         Second Injury Fund of Iowa.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              That claimant did not sustain the burden of proof by a 
 
         preponderance of the evidence that the other prescription drugs 
 
         or the EMG expense was caused by this injury and therefore, 
 
         claimant is not entitled to recover these medical expenses.  Iowa 
 
         Code section 85.27.
 
         
 
              That claimant is entitled to recover costs as designated 
 
         above in the total amount of $163.49 from defendant employer and 
 
         insurance carrier.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              That defendant employer and insurance carrier pay to 
 
         claimant forty-five (45) weeks of permanent partial disability 
 
         benefits at the rate of two hundred twenty-six and 03/100 dollars 
 
         ($226.03) per week in the total amount of ten thousand one 
 
         hundred seventy-one and 35/100 dollars ($10,171.35) commencing on 
 
         January 6, 1987.
 
         
 
              That these benefits are to be paid in a lump sum.
 
         
 
              That interest will accrue pursuant to Iowa Code section 
 
         85.30.
 
         
 
              That defendant employer and insurance carrier pay to 
 
         claimant or the provider of services three hundred eighty-nine 
 
         and 59/100 dollars ($389.59) for prescription drug expense 
 
         ordered by Dr. Koch.
 
         
 
              That the costs of this action, including the cost of the 
 
         transcript of the hearing and the one hundred sixty-three and 
 
         49/100 dollars ($163.49) defined above, are charged to defendants 
 
         pursuant to Division of Industrial Services Rule 343-4.33.
 
         
 
              That all defendants file any claim activity reports which 
 
         might be requested by this agency pursuant to Division of 
 
         Industrial Services Rule 343-3.1.
 
         
 
              Signed and filed this 20th day of June, 1990.
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
                                            WALTER R. McMANUS, JR.
 
                                            DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies to:
 
         
 
         Mr. Thomas J. Currie
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         Attorney at Law
 
         3401 Williams Blvd. S.W.
 
         PO Box 998
 
         Cedar Rapids, Iowa  52406-0998
 
         
 
         Mr. Ralph W. Gearhart
 
         Attorney at Law
 
         PO Box 2107
 
         Cedar Rapids, Iowa  52406-2107
 
         
 
         Mr. Craig Kelinson
 
         Assistant Attorney General
 
         Hoover State Office Bldg
 
         Des Moines, Iowa  50319
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
                                       51401; 51402.40; 51402.60; 52206;
 
                                       52209; 3201; 53202; 53203; 51803;
 
                                       52501; 2700; 52907
 
                                       Filed June 20, 1990
 
                                       Walter R. McManus, Jr.
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         CAROL FRY,
 
         
 
              Claimant,
 
         
 
         vs.
 
                                               File Nos. 837829 and 846901
 
         AMANA REFRIGERATION, INC.,
 
                                                  A R B I T R A T I O N
 
              Employer,
 
                                                     D E C I S I O N
 
         and
 
         
 
         LIBERTY MUTUAL INSURANCE CO.,
 
         
 
              Insurance Carrier,
 
         
 
         and
 
         
 
         SECOND INJURY FUND OF IOWA,
 
         
 
              Defendants.
 
         
 
         
 
         51401; 51402.40; 51402.60; 52206; 52209; 3201; 53202; 53203
 
         
 
              Claimant did not prove separate injuries.  All of the lay 
 
         evidence and medical evidence demonstrated bilateral carpal 
 
         tunnel syndrome that occurred simultaneously, even though the 
 
         right hand was worse at first and the left hand was worse later.  
 
         It was determined that this was an 85.34(2)(s) injury and 
 
         claimant was not entitled to second injury fund benefits.
 
         
 
         51803
 
         
 
              Treating physicians opinion was rejected.  His diagnosis of 
 
         rheumatoid arthritis was not supported by the other four doctors 
 
         in the case, two of whom were in his own office.  His imposition 
 
         of restrictions was irreconcilable with his opinion that there 
 
         was no impairment.  He admitted he took no measurements and made 
 
         no evaluation; therefore, he did not have any basis for even a 
 
         rating based on professional judgment.  Claimant's evaluator gave 
 
         ratings of 20 percent and 8 percent, but those were determined to 
 
         be higher than similar cases and were cut back to 10 percent and 
 
         5 percent, all of which converted and combined to 9 percent of 
 
         500 weeks or 45 weeks of permanent partial disability benefits.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         5201, 2700
 
         
 
              Claimant allowed the prescription drugs she proved.  The 
 
         others and an EMG she did not prove were disallowed.
 
         
 
         52907
 
         
 
              All costs and certain requested costs were allowed to 
 
         claimant.
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
                                                                                                                    
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
                                                                                       
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                          5-1302
 
                                          Filed March 30, 1992
 
                                          Patricia J. Lantz
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            DAVID MORET,                  :
 
                                          :       File No. 845182
 
                 Claimant,                :                837989
 
                                          :
 
            vs.                           :
 
                                          :        R E V I E W -
 
            WILSON FOODS CORPORATION,     :
 
                                          :      R E O P E N I N G
 
                 Employer,                :
 
                 Self-Insured,            :       D E C I S I O N
 
                 Defendant.               :
 
                                          :
 
            ___________________________________________________________
 
            
 
            5-1302
 
            Claimant had previously settled two injuries via agreements 
 
            for settlement.
 
            At hearing, he tried to argue that he should have been 
 
            compensated for simultaneous injuries.  The medical evidence 
 
            did not support his arguments and the cases were deemed 
 
            review-reopening proceedings.
 
            Claimant failed to show a change of condition, and took 
 
            nothing from the proceedings.