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                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            CAROLYN LOFFREDO,             :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :         File Nos. 843434
 
                                          :                   979207
 
            HY-VEE FOOD STORES,           :
 
                                          :      A R B I T R A T I O N
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            EMPLOYERS MUTUAL COMPANIES,   :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding in arbitration upon an October 11, 
 
            1988 petition for Iowa Workers' Compensation benefits filed 
 
            by claimant Carolyn Loffredo against her employer, Hy-Vee 
 
            Food Stores, and its insurance carrier, Employers Mutual 
 
            Companies.  Claimant alleges injuries to both arms and her 
 
            neck on October 16, 1986.
 
            
 
                 This cause came on for hearing in Des Moines, Iowa, on 
 
            October 17, 1990.  The record consists of joint exhibits 1 
 
            through 5 and the testimony of claimant, Lawrence Loffredo, 
 
            James Scott and Eric Willson.
 
            
 
                                      issues
 
            
 
                 The parties have stipulated to the existence of an 
 
            employment relationship between Carolyn Loffredo and Hy-Vee 
 
            Food Stores at all times relevant and that defendants are 
 
            entitled to credit totalling $2,215.00 under Iowa Code 
 
            section 85.38(2).  It was further stipulated that claimant's 
 
            rate should be calculated based on average weekly earnings 
 
            of $243.00 ($8.10 times 30 hours), a marital status of 
 
            married and entitlement to two exemptions.  The Guide to 
 
            Iowa Workers' Compensation Claim Handling published by this 
 
            office and effective July 1, 1986 provides that an 
 
            individual so situated is entitled to a weekly benefit rate 
 
            of $160.18.
 
            
 
                 Issues presented for resolution include:
 
            
 
                 1.  Whether claimant sustained an injury (or multiple 
 
            injuries) arising out of and in the course of her employment 
 
            with Hy-Vee Food Stores.
 
            
 
                 2.  Whether there exists a causal relationship between 
 
            the injury and any subsequent temporary or permanent 
 
            disability;
 

 
            
 
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                 3.  The nature and extent of claimant's disability, if 
 
            any;
 
            
 
                 4.  Whether claimant is entitled to medical benefits 
 
            under Iowa Code section 85.27; and,
 
            
 
                 5.  Whether all or part of this claim is barred by 
 
            untimely notice under Iowa Code section 85.23 or the statute 
 
            of limitations under Iowa Code section 85.26.
 
            
 
                                 findings of fact
 
            
 
                 The undersigned deputy industrial commissioner, having 
 
            heard the testimony and considered all of the evidence, 
 
            finds:
 
            
 
                 Carolyn Loffredo, 44 years of age at hearing, commenced 
 
            working for Hy-Vee Food Stores in February 1978, this being 
 
            her first employment.  Hy-Vee operates a chain of 
 
            supermarkets.
 
            
 
                 Claimant was hired as a bakery wrapper, but was 
 
            promoted to a position as cake decorator about one year 
 
            later.  This position placed substantial demands on her 
 
            hands and forearms, particularly squeezing pastry bags, 
 
            stirring frosting and mixing colors.  The job also required 
 
            stocking shelves.
 
            
 
                 Ms. Loffredo underwent a surgical release for carpal 
 
            tunnel syndrome in February 1985 and returned to the same 
 
            employment in May of that year.  She was paid temporary 
 
            total disability and medical benefits, but no permanent 
 
            partial disability benefits.  Claimant believed she made a 
 
            full recovery and the record contains no contrary evidence.
 
            
 
                 On or about October 15, 1986, claimant attempted to 
 
            remove several cardboard cake boxes from a tightly-packed 
 
            stack by pulling with the first two fingers of her dominant 
 
            right hand inserted into perforations, but something 
 
            noticeably "popped" in her wrist when she did so.  She 
 
            described the sensation as similar to an electrical shock 
 
            from the elbow to the fingertips, followed immediately by 
 
            numbness of the entire hand for some 10 or 15 minutes.  Her 
 
            immediate supervisor was not present, but claimant promptly 
 
            notified one Tom Johnson, second in charge of the bakery at 
 
            the time.
 
            
 
                 Claimant is herself unclear as to the date of this 
 
            traumatic incident, even as to whether it happened in 
 
            October or September (as the history of Dr. Wirtz has it).  
 
            However, a first report of injury contained in the 
 
            litigation file and bearing the filing date of January 28, 
 
            1987 was prepared on November 21, 1986 and reflects a 
 
            reported injury date of October 15.  Official notice of that 
 
            first report is hereby taken under Iowa Code section 
 
            17A.14(4); it is held that fairness to the parties does not 
 
            require an opportunity to contest notice of this fact.
 
            
 
                 Claimant continued to work, but found that pain 
 

 
            
 
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            gradually increased over the next month.  She eventually 
 
            presented to Marshall Flapan, M.D., on November 6, 1986.  
 
            Dr. Flapan, who performed the 1985 carpal tunnel release, is 
 
            an orthopaedic surgeon who testified by deposition on August 
 
            30, 1990.
 
            
 
                 Dr. Flapan's chart notes of November 6, 1986 reflect 
 
            that claimant presented with complaints of a recurrent 
 
            aching sensation in the right hand and arm since the 
 
            "popping" incident, especially associated with repetitive 
 
            movements of the wrist and digits while decorating cakes.  
 
            There is no indication of complaints of left wrist or neck 
 
            pain.  Claimant had full range of motion of the wrist and 
 
            all digits and no evidence of wasting, weakness or atrophy.  
 
            Initial assessment was of synovitis of the right wrist 
 
            secondary to extensive use of that hand.  However, Dr. 
 
            Flapan did not recommend that she leave work, but suggested 
 
            frequent wrist rest and the use of power-assisted cake 
 
            decorating equipment (the record does not indicate whether 
 
            or not such equipment exists).
 
            
 
                 Claimant continued to work, but frequently switched 
 
            hands when she found pain intolerable on the right side.  
 
            She returned to Dr. Flapan on January 16, 1987, complaining 
 
            of discomfort in both hands, forearms and wrists.  On an 
 
            assessment of bilateral chronic tenosynovitis of the forearm 
 
            muscles and wrist, Dr. Flapan recommended rest and 
 
            restricted claimant from working.  She was apparently off 
 
            work for eight weeks through March 12, 1987.  Claimant does 
 
            not seek healing period or temporary total disability 
 
            benefits for these weeks.
 
            
 
                 Claimant was seen by Dr. Flapan again on January 30 and 
 
            February 20, but chart notes do not disclose that complaints 
 
            of neck pain were made.  However, on May 17, 1987, 
 
            complaints were made of discomfort in both upper 
 
            extremities, present constantly, but aggravated by work, and 
 
            of soreness in the elbows and forearms along with tingling 
 
            and soreness in both hands, but not following any definite 
 
            nerve distribution pattern.  For the first time, claimant 
 
            complained of neck discomfort, particularly of morning 
 
            stiffness.  Cervical spine range of motion was without 
 
            limitation, and x-ray views showed cervical spondylosis at 
 
            C6-7, but otherwise within normal limits.  Assessment at 
 
            this time was of painful upper extremities, etiology 
 
            undetermined.
 
            
 
                 In his deposition testimony, Dr. Flapan described 
 
            cervical spondylosis as meaning arthritic spurs which he 
 
            specified were degenerative as opposed to work related.  Dr. 
 
            Flapan last saw claimant on August 20, 1990.  He testified 
 
            that she had minimal, if any, objective findings to 
 
            substantiate any permanent impairment, but believed that 
 
            claimant suffered pain and discomfort in the upper 
 
            extremities which functionally incapacitated her.  He 
 
            refused to rate impairment for lack of objective evidence of 
 
            incapacity, but specified that claimant's current problem 
 
            with both upper extremities was work related.  He noted that 
 
            tenosynovitis tends to aggravate a carpal tunnel problem, 
 
            but maintained the view that cervical complaints were 
 

 
            
 
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            unrelated to employment.
 
            
 
                 In the meantime, defendants referred claimant to Peter 
 
            D. Wirtz, M.D., a board-certified orthopaedic surgeon who 
 
            testified by deposition on September 13, 1990.  Dr. Wirtz 
 
            first saw claimant on April 8, 1987.  Chart notes of that 
 
            date reflect that claimant had begun developing more pain in 
 
            the left hand following July 1986 after returning to work 
 
            following carpal tunnel surgery.  Dr. Wirtz also made note 
 
            of the "popping" incident, making specific reference to the 
 
            tendon structures in the distal forearm on the right.  There 
 
            is no indication that claimant mentioned cervical problems.  
 
            Dr. Wirtz is the only physician to whom claimant was 
 
            referred by defendants.  He was unaware that claimant 
 
            alleged a neck injury until the date of his deposition, 
 
            although he had seen claimant again on August 30, 1990.
 
            
 
                 Dr. Wirtz testified that he found no objective signs 
 
            with respect to problems in the arms or hands bilaterally.  
 
            He found no objective restriction of function, but diagnosed 
 
            (in 1990) upper extremity overstress syndrome, which he 
 
            referred to as tendonitis and a temporary condition caused 
 
            by stress, in particular work as a cake decorator.  That 
 
            work was cited as a cause of overstress syndrome to a 
 
            probability.  However, he further specified that symptoms 
 
            caused by overstress should recur periodically and be 
 
            temporary only, expected to resolve within from two hours to 
 
            two days.  He felt claimant's cervical condition was a 
 
            natural degenerative process not caused by work, although 
 
            degenerative disc disease may be temporarily aggravated with 
 
            certain continuous positions of the neck, including 30 
 
            minutes of more stooping over a work table, such as would be 
 
            the case while cake decorating.
 
            
 
                 Claimant was also seen (on her own behest) by her 
 
            family physician, Dennis C. Zachary, M.D.  Dr. Zachary is a 
 
            board-certified family practitioner who testified by 
 
            deposition on July 30, 1990.  He first saw claimant on May 
 
            13, 1988 with complaints of chronic pain in the wrists and 
 
            hands, following which claimant was apparently taken off 
 
            work on or about May 23, 1988 (the record in this case is 
 
            most unsatisfactory as to the dates claimant missed work, 
 
            but she seeks healing period or temporary total disability 
 
            benefits from that date until June 8, 1989).  Although 
 
            claimant initially presented with complaints of chronic pain 
 
            in the wrists and hands, she apparently subsequently made 
 
            complaints of neck pain, following which Dr. Zachary 
 
            performed an extensive evaluation of the cervical region, 
 
            including x-rays and magnetic resonance imaging.  The latter 
 
            showed mild diffuse left-sided C5, C6 disc protrusion with 
 
            encroachment of the left intravertebral neural foramen 
 
            without signs of herniation or compression, a mild central 
 
            noncompressive C6-7 disc protrusion and a reversal of the 
 
            normal cervical lordosis.  EMG showed no evidence of 
 
            radiculopathy on either side and probable mild bilateral 
 
            carpal tunnel syndrome.  On September 13, 1988, Dr. Zachary 
 
            wrote defendant Employers Mutual that neck and hand problems 
 
            were aggravated and precipitated by the work.  In 
 
            particular, the loss of normal cervical curve was secondary 
 
            to a long history of looking downward while decorating 
 

 
            
 
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            cakes.  Also, for reasons unclear to this observer, Dr. 
 
            Zachary felt that the "pop" in claimant's wrist was 
 
            "probably the disk protrusion that she developed."  This 
 
            letter is the first record indication of notice to 
 
            defendants that cervical symptoms might be work related.
 
            
 
                 Physical therapy included testing on a machine known as 
 
            a biodex, which was interpreted by Dr. Zachary as excluding 
 
            any psychological overlay, malingering or faking on 
 
            claimant's part with respect to bilateral arm complaints. 
 
            Dr. Zachary reached this conclusion because test results, 
 
            although self-reported by the testee, are extremely 
 
            difficult to fake (although Dr. Wirtz, who also saw the 
 
            biodex results, was unimpressed and had no opinion due to 
 
            the subjectivity of this test).  Dr. Zachary specified that 
 
            claimant's bilateral hand problems were aggravated and 
 
            precipitated by her work and, using American Medical 
 
            Association guidelines, assessed a 14 percent impairment to 
 
            each arm, even though he also testified that the right arm 
 
            was worse than the left as to strength, and suggested that 
 
            the 14 percent impairment rating "must be based on the 
 
            average of the two [arms]."
 
            
 
                 Claimant was also seen by S. Randy Winston, M.D., a 
 
            neurosurgeon.  In a letter of November 15, 1988 addressed to 
 
            Dr. Flapan, he noted that claimant had been seen on November 
 
            14.  He found no "surgical" disease related to cervical root 
 
            compression, but found very mild bilateral carpal tunnel 
 
            syndrome which seemed out of proportion to symptomatology 
 
            complained of.
 
            
 
                 Carolyn Loffredo testified both at hearing and by 
 
            deposition of July 2, 1990.  She indicated that her neck had 
 
            been bothering her for years and "it seemed to get 
 
            progressively worse and worse the longer I worked, 
 
            especially lifting over your head."  She further indicated 
 
            that neck stiffness became progressively worse after her 
 
            short period of temporary disability on Dr. Flapan's 
 
            instructions.  The neck also bothers her under any stress 
 
            conditions, notably driving in traffic.  The first person in 
 
            authority that she told of neck problems was bakery manager 
 
            Ron Graham.  She did not know for certain when Mr. Graham 
 
            was so informed, but specified that she made only passing 
 
            comments such as that her neck was stiff or aching and never 
 
            advised anyone she was unable to work due to the neck 
 
            condition.  It was her conclusion that neck stiffness was 
 
            causally related to work.
 
            
 
                 She currently complains of pain in the wrist on lifting 
 
            anything at all or in motions such as tooth brushing, 
 
            weakness in the wrists, swelling in the hands (but not the 
 
            arms) and numbness in the fingers on occasion.  She is 
 
            currently limited to 15 pounds lifting or against lifting 
 
            overhead, but has been described by defense witnesses as a 
 
            good employee.
 
            
 
                                conclusions of law
 
            
 
                 The parties have stipulated to the existence of an 
 
            employment relationship at all times relevant, but dispute 
 

 
            
 
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            whether claimant sustained an injury arising out of and in 
 
            the course of that employment on October 16, 1986.  The 
 
            words "arising out of" refer to the course or source of the 
 
            injury.  McClure v. Union, et al., Counties, 188 N.W.2d 283 
 
            (Iowa 1971).  This requirement is satisfied by showing a 
 
            causal relationship between the employment and the injury.  
 
            Sheerin v. Holin Co., 380 N.W.2d 415 (Iowa 1986).
 
            
 
                 The parties have tried this case on the theory that 
 
            claimant sustained a single injury which afflicts her arms 
 
            bilaterally and her neck.  Actually, the record suggests at 
 
            least two and possibly three alleged injuries.  Claimant 
 
            experienced a traumatic "popping" incident in the right arm 
 
            on October 15, 1986.  However, she was not taken off work 
 
            and did not accrue medical expenses prior to seeing Dr. 
 
            Flapan in January 1987.  Thus, the right arm problem did not 
 
            become compensable for workers' compensation purposes until 
 
            then.  The left arm problem was apparently a cumulative 
 
            injury related to her many years of work as a cake 
 
            decorator, and especially after she began using the left 
 
            hand to a greater degree in compensation for problems on the 
 
            right side.  Similarly, complaints of cervical problems 
 
            appear to be cumulative in nature.  In cases of cumulative 
 
            injury, the injury date is deemed to occur when, due to pain 
 
            or physical inability, a claimant is no longer able to work.  
 
            McKeever Custom Cabinets v. Smith, 379 N.W.2d 368 (Iowa 
 
            1985).  Claimant did not lose work due to the left hand 
 
            until taken off work by Dr. Zachary on a date unclear of 
 
            record, but apparently alleged to be May 23, 1988.  Although 
 
            claimant did not at that time specifically complain of 
 
            cervical pain, at least more than had been the case in the 
 
            past, it was while off work at Dr. Zachary's order that 
 
            treatment for cervical problems commenced.  Claimant has not 
 
            otherwise left work specifically due to cervical complaints, 
 
            and especially not after May 23, since she was then already 
 
            off work.  It is accordingly held that the appropriate 
 
            injury date for claimant's cervical problems is, on the best 
 
            evidence available, May 23, 1988.
 
            
 
                 Defendants have asserted an affirmative defense of 
 
            limitations under Iowa Code section 85.26, which requires 
 
            commencing an action within two years from the date of the 
 
            occurrence of the injury if no weekly benefits are 
 
            voluntarily paid, and within three years of the last payment 
 
            if weekly benefits have been paid.  This action was 
 
            commenced on October 11, 1988, which is within two years of 
 
            the injury date of October 15, 1986.  The limitations 
 
            defense fails.
 
            
 
                 Defendants also assert a notice defense under Iowa Code 
 
            section 85.23, which 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 
 
     
 
            
 
            
 
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                 the employer within ninety days from the date of 
 
                 the occurrence of the injury, no compensation 
 
                 shall be allowed.
 
            
 
                 Defendants specified that the notice defense is not 
 
            asserted as to the incident of October 15, 1986.  As has 
 
            been seen, claimant gave verbal notice to second in command 
 
            of the bakery Tom Johnson on the same day as that incident.  
 
            Giving formal notice is unnecessary if the employer has 
 
            actual timely notice of the occurrence of the injury.  That 
 
            is, defendants have actual notice when an appropriate 
 
            representative has information both that the employee 
 
            suffered an injury and that the injury might be work 
 
            related.  Robinson v. Dep't of Transp., 296 N.W.2d 809 (Iowa 
 
            1980).  While claimant may have made offhand remarks as to 
 
            neck stiffness or aching before she saw Dr. Zachary, the 
 
            record fails to show that these comments were anything other 
 
            than routine conversations entered into by fellow employees 
 
            to pass the time of day, at least as to whether the injury 
 
            was alleged to be work related.  The purpose of a notice 
 
            requirement is to give the defendants an opportunity to 
 
            timely investigate the injury.  Id.  Lawyer and Higgs 
 
            suggest in Iowa Workers' Compensation--Law and Practice, 
 
            (1984) that if an employee tells a supervisor of incidental 
 
            back pain without relating that it was caused by a work 
 
            incident, the fact finder may conclude that the employer did 
 
            not have adequate notice.
 
            
 
                 The test of whether an employer has actual knowledge is 
 
            based on whether a "reasonably conscientious employer" could 
 
            conclude from the information at hand that a workers' 
 
            compensation claim may be in existence.  Robinson, supra; 
 
            Farmers Elevator Co., Kingsley v. Manning, 286 N.W.2d 174 
 
            (Iowa 1979).
 
            
 
                 Claimant's offhand remarks concerning her neck 
 
            stiffness or aching do not serve to notify a reasonably 
 
            conscientious employer that a workers' compensation claim 
 
            may be in existence.  On this record, the very first actual 
 
            knowledge given to defendants of a claim for possible 
 
            work-related cervical difficulties is contained in Dr. 
 
            Zachary's letter to Employers Mutual under date of September 
 
            13, 1988.  Since the injury date of claimant's cervical 
 
            problems, if one exists at all (it will be recalled that the 
 
            medical testimony on this issue is very much in dispute), is 
 
            May 23, 1988, notice is untimely.  Accordingly, the portion 
 
            of this claim related to alleged cervical problem is barred 
 
            by failure to give notice under section 85.23.
 
            
 
                 Claimant was seen by Dr. Wirtz on April 8, 1987, 
 
            complaining then of bilateral upper extremity pain.  Dr. 
 
            Wirtz was a company doctor and should be considered a 
 
            "representative" of the employer for notice purposes.  
 
            Hensley v. Swift Indep. Packing Co., I-4 State of Iowa 
 
            Industrial Commissioner Decisions 881 (1985).  Given the 
 
            totality of Dr. Wirtz's deposition testimony, and given the 
 
            April 8 chart note to the effect that claimant continued to 
 
            note symptoms with activities and that the left had become 
 

 
            
 
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            more painful since November 1986, it is held that defendants 
 
            had adequate notice of left upper extremity symptomatology 
 
            as being potentially work related more than a year before 
 
            the injury actually accrued for compensation purposes (by 
 
            claimant being forced to leave work).  Thus, the notice 
 
            defense fails in this specific.
 
            
 
                 It must be determined whether claimant sustained 
 
            bilateral upper extremity injuries arising out of and in the 
 
            course of employment.  Dr. Zachary is certain that she did.  
 
            Dr. Flapan diagnosed tenosynovitis, and found claimant 
 
            incapacitated in the upper extremities.  Dr. Wirtz finds no 
 
            permanent disability, but also is of the view that continued 
 
            stress will continue to cause continued disability.
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that her injuries are causally 
 
            related to the disability on which she now bases her claim.  
 
            Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 
 
            (1965).  Lindahl v. L. O. Boggs, 236 Iowa 296, 18 N.W.2d 607 
 
            (1945).  A possibility is insufficient; a probability is 
 
            necessary.  Burt v. John Deere Waterloo Tractor Works, 247 
 
            Iowa 691, 73 N.W.2d 732 (1955).  The question of causal 
 
            connection is essentially within the domain of expert 
 
            testimony.  Bradshaw v. Iowa Methodist Hosp., 251 Iowa 375, 
 
            101 N.W.2d 167 (1960). 
 
            
 
                 However, expert medical evidence must be considered 
 
            with all other evidence introduced bearing on the causal 
 
            connection.  Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion 
 
            of experts need not be couched in definite, positive or 
 
            unequivocal language.  Sondag v. Ferris Hardware, 220 N.W.2d 
 
            903 (Iowa 1974).  However, the expert opinion may be 
 
            accepted or rejected, in whole or in part, by the trier of 
 
            fact.  Id. at 907.  Further, the weight to be given to such 
 
            an opinion is for the finder of fact, and that may be 
 
            affected by the completeness of the premise given the expert 
 
            and other surrounding circumstances.  Bodish, 257 Iowa 516, 
 
            133 N.W.2d 867.  See also Musselman v. Cent. Tel. Co., 261 
 
            Iowa 352, 154 N.W.2d 128 (1967).
 
            
 
                 While a claimant is not entitled to compensation for 
 
            the results of a preexisting injury or disease, the mere 
 
            existence at the time of a subsequent injury is not a 
 
            defense.  Rose v. John Deere Ottumwa Works, 247 Iowa 900, 
 
            908, 76 N.W.2d 756, 760-61 (1956).  If the claimant had a 
 
            preexisting condition or disability that is aggravated, 
 
            accelerated, worsened or lighted up so that it results in 
 
            disability, claimant is entitled to recover.  Nicks v. 
 
            Davenport Produce Co., 254 Iowa 130, 115 N.W.2d 812, 815 
 
            (1962).
 
            
 
                 The preponderance of the evidence establishes that 
 
            claimant's upper extremity problems have at minimum been 
 
            aggravated, accelerated, worsened or lighted up.  Although 
 
            Dr. Wirtz denies permanent disability, this opinion is 
 
            inconsistent with his concession that claimant would 
 
            continue being symptomatic upon continued stress.
 
            
 
                 Under Iowa Code section 85.34(1), healing period is 
 

 
            
 
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            compensable beginning on the date of injury and continuing 
 
            until the employee has returned to work, it is medically 
 
            indicated that significant improvement from the injury is 
 
            not anticipated, or until the employee is medically capable 
 
            of returning to substantially similar employment, whichever 
 
            first occurs.
 
            
 
                 Claimant does not seek further healing period or 
 
            temporary total disability benefits except from May 1988 
 
            through June 1989.  As has been seen, the record is unclear 
 
            as to when Ms. Loffredo actually left work, but May 23, 1988 
 
            is accepted.  However, the healing period from that date is 
 
            not only indefinite as to duration, but as to cause.  That 
 
            is, the record does not disclose when claimant might have 
 
            returned to work if only left upper extremity symptomatology 
 
            be considered as opposed to cervical symptomatology, clearly 
 
            a major factor in that lengthy delay (and too, those 
 
            limitations imposed upon claimant's return to work and under 
 
            which she still labors).  It is accordingly held that 
 
            claimant has failed to satisfactorily establish entitlement 
 
            to healing period benefits for the injury to her left arm of 
 
            May 23, 1988.
 
            
 
                 Injuries to the arm are compensated pursuant to Iowa 
 
            Code section 85.34(2)(m) during 250 weeks.  Dr. Zachary is 
 
            the only physician to have rated impairment, and he suggests 
 
            14 percent of each arm (Dr. Wirtz finds zero impairment, but 
 
            as has been seen, his testimony is internally inconsistent).  
 
            Since claimant's left arm symptomatology has not been shown 
 
            to be a sequela of the right arm injury (and thus part and 
 
            parcel of the same injury), each arm shall be compensated 
 
            separately on the basis of 14 percent of 250 weeks, or 35 
 
            weeks.  Permanent partial disability benefits with respect 
 
            to the right arm shall commence March 5, 1987 (Dr. Flapan 
 
            released claimant to light duty effective that date) and, 
 
            with respect to the left arm, on May 23, 1988.  The 1987 
 
            injury will be compensated at the weekly rate of $160.18 as 
 
            set forth in the issues section of this decision.  The 1988 
 
            injury will be compensated pursuant to the Guide to Iowa 
 
            Workers' Compensation Claim Handling then in effect, or 
 
            $160.54.  As the evidence does not disclose claimant's 
 
            earnings during the 13 weeks prior to May 23, 1988, it will 
 
            be presumed that earnings are identical.
 
            
 
                 Claimant also seeks medical benefits pursuant to Iowa 
 
            Code section 85.27.  A summary of medical payments and 
 
            mileage was presented at hearing.  Except for the biodex 
 
            test at a cost of $75.00, it is impossible to determine the 
 
            extent to which those costs related to the compensable arm 
 
            injuries as opposed to the alleged cervical injury which is 
 
            barred by defendants' notice defense.  The biodex test was 
 
            not paid by claimant personally, so she cannot be directly 
 
            awarded that expense.  Caylor v. Employers Mutual Casualty 
 
            Co., 337 N.W.2d 890 (Iowa App. 1983).
 
            
 
                 The parties have stipulated that defendants are 
 
            entitled to credit totalling $2,215.00 under Iowa Code 
 
            section 85.38(2).  It has been found that claimant sustained 
 

 
            
 
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            separate injuries to each upper extremity.  Based on this 
 
            record, it is not possible to determine to which upper 
 
            extremity injury this credit should apply.  The 85.38(2) 
 
            credit in the amount of $2,215.00 shall therefore be divided 
 
            equally between the two injuries.
 
            
 
                                      order
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 This Division shall establish a separate file number 
 
            and litigated file (claim number 979207) pertaining to 
 
            claimant's left arm injury of May 23, 1988.  Defendants 
 
            shall file a first report of injury as to that injury within 
 
            thirty (30) days of the filing hereof.
 
            
 
                 As regards file number 843434:
 
            
 
                 Defendants shall pay unto claimant thirty-five (35) 
 
            weeks of permanent partial disability benefits (right hand) 
 
            at the rate of one hundred sixty and 18/100 dollars 
 
            ($160.18) per week commencing March 5, 1987 and totalling 
 
            five thousand six hundred six and 30/100 dollars 
 
            ($5,606.30).
 
            
 
                 As regards file number 979207:
 
            
 
                 Defendants shall pay unto claimant thirty-five (35) 
 
            weeks of permanent partial disability benefits (left hand) 
 
            at the rate of one hundred sixty and 54/100 dollars 
 
            ($160.54) per week commencing May 23, 1988 and totalling 
 
            five thousand six hundred eighteen and 90/100 dollars 
 
            ($5,618.90).
 
            
 
                 As regards both files:
 
            
 
                 Defendants shall have credit under Iowa Code section 
 
            85.38(2) in the sum of two thousand two hundred fifteen and 
 
            00/100 dollars ($2,215.00) which shall be divided and each 
 
            half applied equally toward file numbers 843434 and 979207.
 
            
 
                 All accrued weekly benefits shall be paid in a lump sum 
 
            together with statutory interest thereon pursuant to Iowa 
 
            Code section 85.30.
 
            
 
                 The costs of this action shall be assessed to 
 
            defendants pursuant to rule 343 IAC 4.33.
 
            
 
                 Defendants shall file claim activity reports as regards 
 
            both files as requested by this agency pursuant to rule 343 
 
            IAC 3.1.
 
            
 
                 Signed and filed this ______ day of ____________, 1991.
 
            
 
                 
 
            
 
                 
 
                 
 
                                          ______________________________
 
                                          DAVID RASEY
 

 
            
 
            Page  11
 
            
 
            
 
            
 
            
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Ronald A. Baybayan
 
            Attorney at Law
 
            5609 Douglas Avenue
 
            Des Moines, Iowa  50310
 
            
 
            Mr. D. Brian Scieszinski
 
            Attorney at Law
 
            801 Grand Avenue, Suite 3700
 
            Des Moines, Iowa  50309
 
            
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                      
 
            JUDY McKILLIP, 
 
                      
 
                 Claimant,                     File No. 843449
 
                      
 
            vs.                                  A P P E A L
 
                      
 
            SHELLER-GLOBE CORPORATION,         D E C I S I O N
 
                      
 
                 Employer, 
 
                 Self-Insured,  
 
                 Defendant.     
 
            ____________________________________________________________
 
            The record, including the transcript of the hearing before 
 
            the deputy and all exhibits admitted into the record, has 
 
            been reviewed de novo on appeal.  The decision of the deputy 
 
            filed June 19, 1990, is affirmed and is adopted as the final 
 
            agency action in this case. 
 
            Defendant shall pay the costs of the appeal, including the 
 
            preparation of the hearing transcript.
 
            Signed and filed this ____ day of _____________, 1992.
 
            
 
            
 
            
 
            
 
                                   ______________________________
 
                                         BYRON K. ORTON
 
                                    INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Thomas M. Wertz
 
            Attorney at Law
 
            4089 21st Avenue SW
 
            Suite 114
 
            Cedar Rapids, Iowa  52404
 
            
 
            Mr. Harry W. Dahl
 
            Attorney at Law
 
            974 73rd Street
 
            Suite 16
 
            Des Moines, Iowa  50312
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                               9998
 
                                               Filed June 29, 1992
 
                                               BYRON K. ORTON
 
                           
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                      
 
            JUDY McKILLIP, 
 
                      
 
                 Claimant,                    File No. 843449
 
                      
 
            vs.                                A P P E A L
 
                      
 
            SHELLER-GLOBE CORPORATION,        D E C I S I O N
 
                      
 
                 Employer, 
 
                 Self-Insured,  
 
                 Defendant.     
 
            ____________________________________________________________
 
            
 
            9998
 
            Summary affirmance of deputy's decision filed June 19, 1990.
 
            
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         JUDY McKILLIP,
 
         
 
              Claimant,                               File No. 843449
 
         
 
         VS                                         A R B I T R A T I 0 N
 
         
 
         SHELLER-GLOBE CORPORATION,                     D E C I S I 0 N
 
         
 
              Employer,
 
              Self-Insured,
 
              Defendant.
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding in arbitration brought by Judy 
 
         McKillip, claimant, against Sheller-Globe Corporation, employer 
 
         and self-insured defendant, for benefits as the result of an 
 
         injury which occurred on January 16, 1987.  A hearing was held in 
 
         Cedar Rapids, Iowa on August 1, 1989 and the case was fully 
 
         submitted at the close of the hearing.  Claimant was represented 
 
         by Thomas M. Wertz.  Defendant was represented by Barry 
 
         Moranville.  The record consists of the testimony of Judy 
 
         McKillip, claimant; Audrey Buchmeyer, coworker and union 
 
         representative; Keith McKillip, claimant's husband; Alice Kasper, 
 
         plant nurse; Rick Innes, human resources manager; Jerry Ford, 
 
         area manager; joint exhibits A through G; claimant's exhibits H 
 
         through  L; and, defendant's exhibits 1 through 6.  Defendant 
 
         ordered a copy of the transcript and supplied a copy for the 
 
         industrial commissioner's file.  Both attorneys submitted 
 
         excellent post-hearing briefs.
 
         
 
                                   STIPULATIONS
 
         
 
              The parties stipulated to the following matters:
 
         
 
              That an employer-employee relationship existed between 
 
         claimant and employer at the time of the injury;
 
         
 
              That claimant sustained an injury on January 16, 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 paid temporary disability benefits; and,
 
         
 
         
 
         
 
         McKILLIP v. SHELLER-GLOBE CORPORATION
 
         Page 2
 
         
 
         
 
         that temporary disability benefits are no longer a disputed 
 
         matter in this case at this time;
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              That the type of permanent disability, if the injury is 
 
         found to be a cause of permanent disability, is industrial 
 
         disability to the body as a whole;
 
         
 
              That the commencement date for permanent disability 
 
         benefits, if such benefits are awarded, is February 22, 1988;
 
         
 
              That the rate of compensation, in the event of an award, is 
 
         $264.58 per week (transcript, page 155);
 
         
 
              That the providers of medical.services and supplies would 
 
         testify that the amounts charged are fair and reasonable and were 
 
         for reasonable and necessary medical treatment;
 
         
 
              That defendant makes no claim for employee non-occupational 
 
         group health plan benefits paid to claimant prior to hearing;
 
         
 
              That defendant paid claimant 33 and 3/7 weeks of temporary 
 
         disability benefits intermittently from January 17, 1987 through 
 
         February 21, 1988 at the rate of $250.88 per week prior to 
 
         hearing, but that defendant did not pay claimant any permanent 
 
         disability benefits prior to hearing; and,
 
         
 
              That there are no bifurcated claims.
 
         
 
                                      ISSUES
 
         
 
              The parties presented the following issues for determination 
 
         at the time of the hearing:
 
         
 
              Whether the injury was the cause of permanent disability; 
 
         and,
 
         
 
              Whether claimant is entitled to permanent disability 
 
         benefits, and, if so, the extent of benefits to which she is 
 
         entitled;
 
         
 
              Whether claimant is entitled to certain medical benefits, 
 
         more specifically a hospital emergency room and EKG charge for 
 
         $79.75 and a charge of $37.50 for two x-rays of her foot and 
 
         ankle; and,
 
         
 
              Whether claimant is entitled to penalty benefits under Iowa 
 
         Code section 86.13(4).
 
         
 
         
 
         
 
         McKILLIP v. SHELLER-GLOBE CORPORATION
 
         Page 3
 
         
 
         
 
                                 FINDINGS OF FACT
 
                                        
 
                    CAUSAL CONNECTION -- PERMANENT DISABILITY
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              It is determined that the injury was the cause of permanent 
 
         disability.  Claimant sustained a traumatic injury.  Claimant 
 
         testified that:
 
         
 
              [A] hydraulic hose busted, spraying oil all over
 
              our line.
 
         
 
              . . . .
 
         
 
              . . . It was shooting up over the machine and down
 
              on our line and on the cure line or the finish
 
              line.  And I went over, I walked off the board,
 
              the platform that I was working on, to shut off
 
              the emergency button that was over approximately
 
              six feet from where I was standing, and as I
 
              stepped off of the platform onto the cement floor,
 
              both of my feet went out from underneath me and I
 
              just slammed down on the floor on the back of my
 
              head and my shoulders, my back.
 
         
 
         (Transcript, page 52, line 16 through page 53, line 4)
 
         
 
              Claimant testified that she did not lose consciousness, but 
 
         was shaking uncontrollably (transcript, page 53).
 
         
 
              On the following day, claimant saw Susan Goodner, M.D., and 
 
         later Charles Skaugstad, M.D., but was eventually directed by 
 
         employer to see William R. Pontarelli, M.D., an orthopaedic 
 
         surgeon.
 
         
 
              On February 18, 1987, Dr. Pontarelli rioted that claimant 
 
         fell on January 16, 1987, striking the back of her head and neck 
 
         causing severe head, neck and arm pain and numbness in the right 
 
         hand and also low back pain.  His physical examination disclosed 
 
         a decrease in range of motion of the neck and back, loss of C-6 
 
         reflex and C-6 radiculopathy.  Dr. Pontarelli diagnosed: 
 
         "Probable muscle spasms secondary to flexion injury of the neck.  
 
         Muscle spasm also in the lumbar spine.  No apparent disc or 
 
         vertebral injury.  Possible entrapment of C-6 nerve on the right 
 
         with flexion injury."  (Joint exhibit A, page 8)  X-rays showed 
 
         spurring at the anterior and posterior aspect of C5-C6 and some 
 
         old narrowing of the disc space at L5-Sl.  She was treated 
 
         conservatively with medications, a soft neck collar and a lumbar 
 
         corset and was returned to work in August of 1987.  On August 14, 
 
         1987, Dr. Pontarelli stated: "I think she had a severe acute 
 
         cervical strain, which is
 
         
 
         
 
         
 
         McKILLIP v. SHELLER-GLOBE CORPORATION
 
         Page 4
 
         
 
         
 
         resolving.. Her back is probably a superimposed strain on her 
 
         chronic lower back disc problem."  (Joint exhibit A, page 4)  Dr. 
 
         Pontarelli also authorized claimant to resume bowling at that 
 
         time.  She was released to return to work on August 14, 1987 
 
         (joint exhibit A, page 4; joint exhibit B).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              A few days earlier, claimant was examined by Rouben 
 
         Mirbegian, M.D., on or about July 3, 1987.  Cervical spine films 
 
         shows minimal degenerative change in the cervical spine with a 
 
         single early marginal osteophyte along the inferior anterior 
 
         aspect of the C-5 vertebral body.  Intervertebral disc space 
 
         height was well  maintained.  There was normal cervical lordosis.  
 
         The neural foramina were normal in appearance.  The impression 
 
         was minimal degenerative changes of the cervical spine.
 
         
 
              Dr. Mirbegian also ordered flexion/extension views of the 
 
         cervical spine which demonstrated that the cervical vertebral 
 
         bodies remained in normal alignment during flexion and extension 
 
         (defendant's exhibit 1). Dr.  Mirbegian was surprised that the 
 
         patient had been off work for five months and that the only 
 
         treatment had been traction and continuous excuses from work.  He 
 
         was also surprised that the only diagnostic test was plain x-rays 
 
         and that a CT scan, myelogram or MRI had not been performed.  He 
 
         stated:  "This raises the questions if indeed she has legitimate 
 
         complaints or maybe her main complaints have a psychological 
 
         background." (Defendant's exhibit 2, page 2)  He found that her 
 
         subjective complaints were not consistent with the fall and neck 
 
         injury.  Objective findings disclosed no further pathologies.  
 
         Dr. Mirbegian stated: "I believe that this patient will not have 
 
         any permanent impairment." (Defendant's exhibit 2, page 2)  He 
 
         said claimant could return to work, but it would be difficult 
 
         because she had a negative attitude about her work areas and even 
 
         resuming her work.
 
         
 
              Dr. Mirbegian concluded:  "I think the diagnosis is advanced 
 
         deep fibrocytis of cervical spine bases [sic] on original simple 
 
         sprain of the cervical spine and I do not believe she needs any 
 
         further physical therapy." (Defendant's exhibit 2, page 2)  
 
         Stedman's Medical Dictionary, 24th Edition, page 529 defines 
 
         "fibrositis" as: "1. Inflammation of the fibrous tissue.. 2. 
 
         Muscular rheumatism; term used to denote aching,.soreness, or 
 
         stiffness in the absence of objective abnormalities."  Cervical 
 
         fibrositis was defined as post-traumatic neck syndrome.  Dr. 
 
         Mirbegian did not believe that claimant could have any permanent 
 
         impairment from her fall without compromising her neurovascular 
 
         structure, but her x-rays demonstrated only degenerative changes.
 
         
 
         
 
         
 
         McKILLIP v. SHELLER-GLOBE CORPORATION
 
         Page 5
 
         
 
         
 
              Claimant testified that Dr. Mirbegian's examination was very 
 
         brief.  She described it as follows:
 
         
 
              A.  I walked in, he lifted both my arms, he read a
 
              piece of paper that -- I don't know where he got
 
              it.  I don't even know what it was.  He lifted my
 
              arms, he come over and he tested my reflex on both
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              arms, both legs, and left.
 
         
 
         (Transcript, page 58, lines 20 through 24)
 
         
 
              Claimant said that she then returned to work at her regular 
 
         job of pour-head operator for approximately four months, but her 
 
         condition became steadily worse in her head, neck, shoulders, 
 
         back, arms and legs.  She applied for a supervisor's job which 
 
         would have been less physically demanding, but she did not get 
 
         it.
 
         
 
              Claimant was off work again in December of 1987 and returned 
 
         to work again on January 10, 1988 with certain restrictions that 
 
         had been imposed by Dr. Pontarelli.
 
         
 
              Dr. Pontarelli reported to the insurance carrier on January 
 
         8, 1988 that claimant still suffered from chronic severe neck, 
 
         arm, back and leg pain.  He said:
 
         
 
              Her present state of pain really relates to her
 
              1/16/87 accident.  Even though Judy has had
 
              previous trouble with her low back  before, she had
 
              been functioning well and working with very little
 
              discomfort.  The fall on 1/16/87 caused a severe
 
              whiplash mechanism to her cervical spine causing
 
              her to have chronic severe neck pain and
 
              headaches.
 
         
 
         (Joint exhibit A, page 11)
 
         
 
              Dr. Pontarelli continued:
 
         
 
              Her activation of low back pain has been a
 
              consistent lateral trochanteric area of pain,
 
              radiating down the lateral thigh as well as pain
 
              in the low back.  Once again her fall aggravated
 
              the pre-existing condition in that.regard.
 
         
 
              I would say her current diagnosis would be a
 
              Chronic Cervical Strain with Chronic Lumbar
 
              Strain.
 
         
 
         (Joint exhibit A, page 11)
 
         
 
         
 
         
 
         McKILLIP v. SHELLER-GLOBE CORPORATION
 
         Page 6
 
         
 
         
 
              Dr. Pontarelli then returned claimant to work with these 
 
         restrictions:
 
         
 
              I don't think she is capable of doing her regular
 
              duty without having severe pain.  I think ideally
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              for Judy to return to work, which she desires to
 
              do, she should be allowed a job which would
 
              provide an opportunity for changing positions
 
              which means no standing or sitting in one spot for
 
              prolonged periods of time, that is hours at a
 
              time; ideally a job where she is walking for
 
              periods of time, sitting for periods of time,
 
              standing for periods of time, would be ideal.  No
 
              working in a prolonged bent over posture.  No
 
              repetitive lifting, especially if the objects
 
              weigh more than five pounds.  Her work week should
 
              be restricted to 40 hours per week and no more
 
              than 8 hours in a day.  I think she could be
 
              restored to her previous work status.
 
         
 
         (Joint exhibit A, page 11)
 
         
 
              Dr. Mirbegian commented again on February 1, 1988.  He said 
 
         claimant's complaints did not go along with any type of 
 
         pathological organic disease.  She had full range of motion in 
 
         her neck, upper extremities and lower extremities.  She had no 
 
         weakness in the upper or lower extremities.  An intervening CT 
 
         scan of the lumbar spine showed only scarring from a previous 
 
         operation in 1984 and ruled out any spinal stenosis.  Dr. 
 
         Mirbegian concluded:  "The findings were not suggestive of any 
 
         acute pathology and I don't think she really has [sic] to have 
 
         any specific limitations for her regular work."  (Defendant's 
 
         exhibit 2, page 1)  He did indicate, however, that Dr. 
 
         Pontarelli's restrictions might be reasonable for a three-month 
 
         preconditioning.  He concluded his report as follows:
 
         
 
              I think this is my personal opinion that even if
 
              she is returned to the light work she will
 
              continue to complain the way she is complaining
 
              now for the rest of the life and I do not believe
 
              that she really can be helped by any further
 
              orthopedic evaluation.
 
         
 
         (Defendant's exhibit 2, page 1)
 
         
 
              Claimant testified that she returned to work and was 
 
         assigned a light-duty job called "rework" which was very easy for 
 
         one and one-half days.  However, for the second half of the 
 
         second day back to work, she was reassigned to the pour-head job 
 
         by her foreman.  She protested that she
 
         
 
         
 
         
 
         McKILLIP v. SHELLER-GLOBE CORPORATION
 
         Page 7
 
         
 
         
 
         was not supposed to be doing that job and the foreman allegedly 
 
         replied: "Judy, I have my orders."  (Transcript, page 66)  
 
         Claimant then contacted Dr. Pontarelli's office.  He was on 
 
         vacation.  She understood the nurse would call the employer and 
 
         tell them that claimant was not able to work.  Dr. Pontarelli's 
 
         records do not show that his nurse, Vicki, told claimant to go 
 
         home and go to bed when she was unable to work in January of 1988 
 
         when Dr. Pontarelli was on vacation (transcript, page 67; joint 
 
         exhibit A).  She testified she also told her attorney about the 
 
         situation and he allegedly said that he "would take care of it."  
 
         Claimant testified that after that she thought she was on medical 
 
         leave (transcript, pages 67, 68, 72 and 73).  Claimant then 
 
         ceased to call in to employer because she thought that the matter 
 
         had been taken care of by Vicki, Dr. Pontarelli's nurse, and by 
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         her attorney and that she would not have to return to work until 
 
         the doctor approved it  (transcript, page 74). Shortly after 
 
         that, she received a notice stating that she had voluntarily quit 
 
         her job because she violated one of the employment contract rules 
 
         of failing to call in for three consecutive days (transcript, 
 
         page 75).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Dr. Pontarelli stated in a letter dated June 23,  1988: "To 
 
         my knowledge this is all related to her injury  on January 6, 
 
         1987 [sic]." (Joint exhibit A, page 13)  The doctor added that he 
 
         referred claimant to J. B. Worrell, M.D., to confirm his 
 
         diagnosis of chronic severe strain and to rule out cervical disc 
 
         rupture which might necessitate surgery (joint exhibit A, pages 
 
         13 and 14).
 
         
 
              Dr. Pontarelli wrote a letter to the Disability 
 
         Determination Services on August 26, 1988 in which  he stated:
 
         
 
              An injury in January, 1987 lead [sic] to chronic
 
              neck pain and chronic low back pain for which she
 
              was off work for a period of many months.  AN
 
              attempt to return to work in August, 1987 failed.
 
              She was suffering too much pain to be able to cope
 
              with her work and has been off work since.
 
         
 
              Because of her education, work experience, as well
 
              as her chronic pain which requires daily
 
              medication and frequent rest where,she lies down,
 
              I doubt Judy can be able to maintain  employment.
 
         
 
         (Joint exhibit A, page 15)
 
         
 
              In response to a questionnaire by defendant's attorney, Dr. 
 
         Pontarelli stated on July 22, 1988 that claimant does have a 
 
         permanent impairment to both the lumbar spine and
 
         
 
         
 
         
 
         McKILLIP v. SHELLER-GLOBE CORPORATION
 
         Page 8
 
         
 
         
 
         cervical spine, both of which are connected to the injury of 
 
         January 16, 1987 and that she sustained a five percent impairment 
 
         to the lumbar spine and a five percent impairment to the cervical 
 
         spine.
 
         
 
              In his deposition, Dr. Pontarelli said he was a 
 
         board-certified orthopaedic surgeon who first saw claimant and 
 
         performed low back surgery for her in 1984.  He treated claimant 
 
         for the injury of January 16, 1987  beginning on February 18, 
 
         1987 until July of 1988, seeing her approximately 17 times during 
 
         this interval.  He  had  no objection to her bowling in the fall 
 
         of 1987 if she were able to do it and did not overdo it (joint 
 
         exhibit F, pages 9-12).  He stated his final diagnosis the last 
 
         time he saw her:  "Would be just what I said, moderate to severe 
 
         degenerative disc disease in the cervical spine and lumbar 
 
         spine."  (joint exhibit F, page 13)
 
         
 
              He confirmed that he gave her a permanent partial impairment 
 
         rating of five percent of the whole body as the result of her 
 
         neck condition and five percent of the body as a whole as a 
 
         result of her low back condition using the Manual for Orthopaedic 
 
         Surgeons, section 1A and 3A and based solely on her subjective 
 
         complaints and symptoms (joint exhibit F, pages 14-16). Dr. 
 
         Pontarelli confirmed that "those impairment ratings that have 
 
         been mentioned, 5 percent whole body for the neck, 5 percent 
 
         whole body for the lumbar spine, pertain to the impairment as a 
 
         result of her work injury in 1987." (Joint exhibit F, page 19)
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              He reiterated it was his decision to give her leeway to try 
 
         to bowl in the fall of 1987 (joint exhibit F,  pages  20 and 21).  
 
         He explained that the five percent permanent impairment rating to 
 
         the low back was in addition to his previous rating that he gave 
 
         claimant after the back surgery in 1984 (joint exhibit F, pages 4 
 
         and  24).  He clarified that claimant's degenerative disc disease 
 
         was not related to work, but, "The disks themselves, if they're, 
 
         you know, vulnerable to an injury of this type creating a 
 
         disability, chronic pain.  I think that changes, obviously, had 
 
         occurred before the fall.  But the fall certainly aggravated the 
 
         condition to the point where it became very symptomatic." (Joint 
 
         exhibit F, pages 25 and 26)  He found the worsening of her 
 
         condition after she returned to work in August of 1987 as 
 
         consistent with her injury (joint exhibit F, page 26).  He said 
 
         the restrictions he suggested on January  8, 1988 were to 
 
         describe a setting for her to return to work in which she was 
 
         able to change position, which meant no standing or sitting in 
 
         one spot for prolonged periods of time (joint exhibit F, pages 26 
 
         and 27).
 
         
 
         
 
         
 
         McKILLIP v. SHELLER-GLOBE CORPORATION
 
         Page 9
 
         
 
         
 
              With.respect to subsequent foot and ankle x-rays, Dr. 
 
         Pontarelli testified that falling would be consistent with her 
 
         injury and that she did fall sometimes. He said, "Yeah, I can see 
 
         how she could fall and injure herself, yes."  He could see a 
 
         relationship for treatment to whatever subsequent injury took 
 
         place (joint exhibit F, pages 29  and 30).  He said it was 
 
         possible she turned her ankle and he insisted on x-rays.  He 
 
         believed this was the situation the last time he saw her, but he 
 
         did not have a note of it at the time of his deposition (joint 
 
         exhibit F, pages 31 and 32).
 
         
 
              James B. Worrell, M.D., testified by deposition on September 
 
         29, 1988 that he is a board-certified neurologist who first 
 
         treated claimant in 1984 at the time of a chymopapain injection 
 
         and subsequent lumbar disc surgery.  He next saw claimant in 
 
         December of 1987 when he performed an EMG at the request of Dr. 
 
         Pontarelli which resulted in a normal study of the muscles of 
 
         both arms.  Dr. Pontarelli then referred claimant to him for 
 
         treatment on May 27, 1988 (joint exhibit G, pages 2-5).
 
         
 
              Claimant related that while camping she reached to get 
 
         something, felt something snap in her neck and developed acute 
 
         pain.  Dr. Worrell diagnosed myofascial syndrome which is an 
 
         acute cervical strain or muscle spasm, a ligamentous problem in 
 
         the neck.  He determined she did not have an acute cervical disc 
 
         or that myelography or anything that aggressive.was warranted.  
 
         He did not examine her low back at that tine (joint exhibit G, 
 
         pages 5-7).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Dr. Worrell saw claimant one more time on September 1, 1988.  
 
         The doctor opined that, if she could bowl  on  December 11, 1987, 
 
         then she could have lifted between 5 and 20 pounds, twisted, 
 
         stooped and bent at work.  He did not perceive any major change 
 
         in her condition on September 1, 1988.  Basically, she was no 
 
         better and no worse (joint exhibit G, page 10).
 
         
 
              Dr. Worrell found no objective findings on his neurological 
 
         examination for the symptoms in her neck or  low back, except for 
 
         the ankle jerk which was absent due to  the previous 1984 
 
         surgery.  Dr. Worrell rated claimant with a five percent body as 
 
         a whole rating for,her back and a  four percent body as a whole 
 
         rating for her:neck.  The neck rating was based on subjective 
 
         symptoms.  The back rating was based upon her previous surgery in 
 
         1984 for a person  who ruptured a disc and had an operation.  He 
 
         said the camping episode would not have caused any permanent 
 
         partial impairment in her neck.  It was just a fortuitous 
 
         happening over the course of her problems.  The doctor then 
 
         reduced
 
         
 
         
 
         
 
         McKILLIP v. SHELLER-GLOBE CORPORATION
 
         Page 10
 
         
 
         
 
         his impairment rating on the neck to two percent of the body as a 
 
         whole because of her demonstrated ability to bowl (joint exhibit 
 
         G, pages 10-12).
 
         
 
              With respect to causal connection, Dr. Worrell stated: "I 
 
         did not write down the exact events that happened.  But it is my 
 
         understanding that she did fall and sort of snap her neck which 
 
         is consistent then with this type of thing you're getting at with 
 
         this neck injury." (Joint exhibit G, page 23)  Her complaints 
 
         were consistent with his diagnosis.  The doctor reiterated that 
 
         his impairment rating on the back related to the previous injury 
 
         in 1984 and that his current two percent permanent partial 
 
         impairment to the cervical area, given at the time of his 
 
         deposition, relates to the work injury of 1987 (joint exhibit G, 
 
         pages 24 and 25).  In conclusion, Dr. Worrell felt that, if 
 
         claimant were to return to work, she would need a build-up period 
 
         where the amount of weight that she lifts is limited and he would 
 
         prescribe periods of rest in between repetitive types of work 
 
         (joint exhibit G, pages 25 and 26).
 
         
 
              In summary, Dr. Mirbegian did not believe that the injury 
 
         would be the cause of permanent impairment or disability.  Dr. 
 
         Worrell, who administered an EMG on one occasion and treated her 
 
         on two other occasions, found that her complaints were consistent 
 
         with the fall injury which she described that occurred at work.
 
         
 
              Dr. Pontarelli, the treating physician, who saw claimant 
 
         approximately 18 times over a period of one and one-half years, 
 
         clearly and unequivocally stated on a number of occasions to both 
 
         claimant's counsel and defendant's counsel that this injury was 
 
         the cause of permanent impairment to both her cervical spine and 
 
         her lumbar  spine.  Dr. Pontarelli's opinion, which is supported 
 
         by Dr. Worrell's opinion is preferred over the opinion of Dr. 
 
         Mirbegian.  Rockwell Graphics Systems, Inc. v. Prince, 366 N.W.2d 
 
         187, 192 (Iowa 1985). Furthermore, Dr. Pontarelli is a 
 
         board-certified orthopaedic surgeon, whereas the credentials of 
 
         Dr. Mirbegian, other than being an orthopaedic surgeon, are not a 
 
         matter of record.  A doctor's expertise and board-certification 
 
         may accord his testimony greater weight.  Dickey v. ITT 
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         Continental Baking Co., 34th Biennial Report of the Industrial 
 
         Commissioner 89 (1979); Reiland v. Palco, Inc., 32nd Biennial 
 
         Report of the Industrial Commissioner 56 (1975).  It is 
 
         determined that the injury of January 16, 1987 was the cause of 
 
         permanent impairment and disability to claimant's cervical spine 
 
         and lumbar spine.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         McKILLIP v. SHELLER-GLOBE CORPORATION
 
         Page 11
 
         
 
         
 
                       ENTITLEMENT -- PERMANENT DISABILITY
 
         
 
              The parties stipulated that the type of permanent disability 
 
         is industrial disability to the body as a whole.  Dr. Mirbegian 
 
         assessed zero impairment, Dr. Worrell determined there was a two 
 
         percent impairment to the cervical spine, and Dr. Pontarelli 
 
         awarded claimant a five percent permanent impairment of the 
 
         cervical spine and a five percent permanent impairment of the 
 
         lumbar spine.  Five percent and five percent combine to ten 
 
         percent on the combined values chart, page 246, Guides to the 
 
         Evaluation of Permanent Impairment, Third Edition, published by 
 
         the American Medical Association (1988).
 
         
 
              Claimant, born August 28, 1942, was 44 years old at the time 
 
         of injury and 46 years old at the time of hearing.  She completed 
 
         high school, she completed a two-month course and received a 
 
         certificate to be a nurse's aide, and she completed one quarter 
 
         toward obtaining the designation of registered nurse.  Past 
 
         employments include nurse's aide, nursing assistant, waitress, 
 
         laundry worker, and production worker for business forms.
 
         
 
              Claimant worked as a pour-head operator for employer on 
 
         three occasions prior to her current employment.  She worked a 
 
         few months in 1966, then she worked for approximately a year and 
 
         a half from 1974 to 1976, and a year and a half again beginning 
 
         in 1978.  The current period of employment began in 1981 and 
 
         ended in February of 1988.  Her various jobs included pour-head 
 
         operator, salvage operator, finish operator, preparation 
 
         operator, and injection molding operator (claimant's exhibit I, 
 
         pages 1-5).  Claimant had some supervisory experience for two and 
 
         one-half years as a group leader (transcript, pages 37 and 38).
 
         
 
              Claimant was a pour-head operator at the time of the injury 
 
         on January 16, 1987 (transcript, page 40).  The job is performed 
 
         standing. "When you become experienced enough, you can sneak a 
 
         sit in now and then." (Transcript, page 41)  You turn and 
 
         sometimes walk a few steps and obtain parts and then put them 
 
         through one of various production processes.  A pour-head 
 
         operator inserts a skin into a mold which is filled with plastic 
 
         foam and produces the arm rests for the door of an automobile.  
 
         The job requires a great deal of physical activity, most of which 
 
         is performed standing (transcript, pages 41-45).  Claimant was 
 
         earning $9.45 per hour when her employment terminated 
 
         (transcript, page 47; claimant's exhibit K, page 2).
 
         
 
              Claimant denied and there is no medical evidence of residual 
 
         problems, other than the impairment rating after
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         McKILLIP v. SHELLER-GLOBE CORPORATION
 
         Page 12
 
         
 
         
 
         the back surgery in 1984 (transcript, page 52).  She testified 
 
         she planned to be a pour-head operator for employer until she 
 
         retired (transcript, page 75).  She currently takes medications 
 
         for this injury  (transcript, page 75). She described herself as 
 
         an avid bowler since she was 16 years old, served as secretary 
 
         for 23-24 years, and has bowled any number of leagues 
 
         (transcript, pages 75 and 76).  She stopped bowling from the time 
 
         of her injury until September of 1987 and resumed again at that 
 
         time (transcript, pages 76-77). Her bowling ball weighs ten 
 
         pounds (transcript, page 78).  Bowling differs  from pour-head 
 
         operator because when bowling you may bowl only 18 or 20 minutes 
 
         for an entire game, but a pour-head  operator works seven and 
 
         one-half hours steadily and strenuously in an eight-hour shift, 
 
         five days a week (transcript, pages  78 and 79).  Dr. Pontarelli 
 
         told claimant to try to bowl (transcript, page 79).  Claimant's 
 
         bowling record shows that she bowled 5,659 pins in 37 games 
 
         (joint exhibit E, page 10; defendant's exhibit 4, page 2). 
 
         According to defendant's counsel she earned several bowling 
 
         honors (transcript, pages 97 and 98).
 
         
 
              The only employment which claimant has performed since the 
 
         injury is self-employment as a baby-sitter caring for five 
 
         children in her home and earning approximately $190 per week 
 
         gross income (transcript, pages 83 and 84).  She  has continued 
 
         pains in her neck and back associated with increased activity and 
 
         sitting or standing too long.  The injury has.restricted her 
 
         ability to clean house, swim, drive for long periods of time, 
 
         start the lawn mower, or wash windows.  Claimant did not believe 
 
         that she was able to perform the duties of a pour-head operator 
 
         at this time (transcript, pages 85-87). Claimant acknowledged 
 
         that the heaviest thing a pour-head operator would lift would be 
 
         a ten-pound lid of a mold (transcript, page 90).  She 
 
         acknowledged that the job did not require her to stand  in one 
 
         spot all of the time or sit in one spot all of the  time.  She 
 
         could walk around, but the job required a considerable amount of 
 
         bending (transcript, pages 94-96).
 
         
 
              Claimant acknowledged that she engaged in bowling activities 
 
         from September of 1988 through April of 1989.  She was secretary 
 
         of the bowling league, estimated that  she bowled 60 or 70 games, 
 
         and had an average of 141.  Claimant testified that she works 
 
         from approximately 7:00 a.m. to 5:00 p.m. babysitting and that 
 
         she occasionally picks up a 6-month old child and a 10-month old 
 
         child and sometimes picks up a 14-month old child (transcript, 
 
         pages 98 and 99).  Claimant also reported her termination to her 
 
         attorney and a union representative, but did not know if any 
 
         further action had been taken about it (transcript, pages 102 and  
 
         103).
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         McKILLIP v. SHELLER-GLOBE CORPORATION
 
         Page 13
 
         
 
         
 
         Claimant had not sought any vocational rehabilitation training 
 
         and employer had not furnished any vocational rehabilitation 
 
         training (transcript, page 105).
 
         
 
              Audrey Buchmeyer, a co-employee and union steward, testified 
 
         that she was familiar with Dr. Pontarelli's restriction letter 
 
         and that claimant's foreman ordered her to perform the pour-head 
 
         job pursuant to orders from his superior and she believed that 
 
         the pour-head job was more of a strain than was reasonable 
 
         according to the restriction letter (transcript, pages 111 and 
 
         112).  She talked to the foreman, but the foreman told Buchmeyer 
 
         he already had his orders from his superior and there was nothing 
 
         he could do.  Claimant did perform the job the second half of the 
 
         shift on the second day back to work, but she looked tired, in 
 
         pain, and was bent to one side (transcript, pages 112 and 113).  
 
         The witness said the pour-head operator job requires you to be on 
 
         your feet the whole time (transcript, page 114).  She added that 
 
         there was no comparison of the physical activity in the pour-head 
 
         operator job and bowling (transcript, page 115).  Buchmeyer 
 
         testified, "Reading the letter, I never figured that she would be 
 
         able to run the pour-head." (Transcript, page 117) The witness 
 
         said that no grievance was filed (transcript, page 117).
 
         
 
              Keith McKillip, claimant's husband of 22 years, testified 
 
         that Dr. Mirbegian's examination lasted approximately three 
 
         minutes. "He checked her reflexes and lifted her arm and I 
 
         believe that's about it."  (Transcript, page 121)  He said he has 
 
         back problems, but is able to bowl (transcript, page 122).  He 
 
         said that claimant could no longer paint rooms in their home, is 
 
         limited to riding 30 minutes in a car, walks less and fatigues 
 
         easily.  She lies down more often and her sleep at night is 
 
         awakened due to pain (transcript, page 123).
 
         
 
              Alice Kasper, R.N., the industrial nurse for employer and 
 
         the person who is responsible for workers' compensation, 
 
         testified that Dr. Pontarelli's nurse, Vicki, told the witness 
 
         that she, Vicki, had told claimant that Dr. Pontarelli was gone 
 
         and therefore she, Vicki, could not give claimant permission to 
 
         be off work (transcript, pages 133 and 134).
 
         
 
              Rick Innes testified that he is human resources manager for 
 
         employer, that he did not receive a call-in from claimant, and 
 
         that the company's regular call-in record did not reflect a call 
 
         from claimant for more than three days.  Therefore, pursuant to 
 
         the labor contract, if there are three consecutive days without 
 
         reporting their absence, the employee is deemed to have 
 
         voluntarily quit.  He added that
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         McKILLIP v. SHELLER-GLOBE CORPORATION
 
         Page 14
 
         
 
         
 
         no grievance was filed by claimant or the union as a result of 
 
         this employer action.  He also testified that he did not talk 
 
         with claimant's attorney about this matter (transcript, pages 
 
         135-140).
 
         
 
              On rebuttal by claimant, Kasper testified that she did not 
 
         make a record of her telephone conversation with Dr. Pontarelli's 
 
         nurse, Vicki (transcript, page 150).
 
         
 
              Claimant's age of 44-46 years old is considered to make 
 
         claimant's disability worse than for a younger or older employee 
 
         because she was at the peak of her earning capacity.  McCoy v. 
 
         Donaldson Co., file numbers 782670 and 805200 (App. Decn., April 
 
         28, 1989); Walton v. B & H Tank Corp., II Iowa Industrial 
 
         Commissioner Report  426  (1981); Becke v. Turner-Busch, Inc., 
 
         34th Biennial Report of the Industrial Commissioner 34 (App. 
 
         Decn. 1979).
 
         
 
              Claimant has the benefit of a high school education, is 
 
         certified as a nurse's aide, and has completed one quarter of a 
 
         year toward an RN designation.  Claimant  has  performed a 
 
         variety of jobs for this employer and prior employers.  Thus, she 
 
         has demonstrated her adaptability for retraining for other 
 
         employment which is a consideration in the determination of 
 
         industrial disability.  Conrad v. Marquette School, Inc., IV Iowa 
 
         Industrial Commissioner Report 74, 78 (1984). Claimant's 
 
         potential is good, but retraining will be expensive and claimant 
 
         is further limited by her restrictions imposed by Dr. Pontarelli.
 
         
 
              Claimant has not sought vocational rehabilitation, but this 
 
         is understandable since she has found self-employment within her 
 
         own actual and perceived limitations as a baby- sitter grossing 
 
         approximately $190 per week.  At the same time, it is noted that 
 
         defendant did not offer vocational rehabilitation, possibly for 
 
         the same reason that claimant did not seek it.
 
         
 
              Since claimant has not actively sought employment in the 
 
         competitive labor market, her true potential has not been tested 
 
         or demonstrated.  Schofield v. Iowa Beef Processors, Inc., II 
 
         Iowa Industrial Commissioner Report 334, 336 (1981).
 
         
 
              Based on what occurred, claimant appears to be foreclosed 
 
         from performing the pour-head operator job which is the job where 
 
         she has the most experience and training since approximately 
 
         1972.  Rohrberg v. Griffin Pipe Products Co., I Iowa Industrial 
 
         Commissioner Report 282 (1984); Michael v. Harrison County, 34th 
 
         Biennial Report of the Industrial Commissioner 218, 220 (App. 
 
         Decn., January 30,
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         McKILLIP v. SHELLER-GLOBE CORPORATION
 
         Page 15
 
         
 
         
 
         1979). At the same, claimant did demonstrate that she could 
 
         perform the job and actually returned to work in August of 1987 
 
         and worked approximately four months until she was taken off work 
 
         again because of a progressive deterioration of her condition.  
 
         This progressive deterioration and worsening of her condition is 
 
         inconsistent with the normal physiological healing process and as 
 
         suggested by Dr. Mirbegian may indicate a psychological problem.  
 
         There is no evidence presented by any of the doctors to sustain a 
 
         psychological injury in this case, other than the suggestion of 
 
         Dr. Mirbegian.
 
         
 
              Dr. Pontarelli imposed restrictions temporarily and felt 
 
         that claimant would regain the ability to perform  the pour-head 
 
         job.  Both Dr. Mirbegian and Dr. Worrell concurred that claimant 
 
         was entitled to a period of preconditioning.  However, employer 
 
         did not honor these recommendations of all three doctors.
 
         
 
              The body as a whole impairment ratings of the doctors are as 
 
         follows:  Dr. Mirbegian -- zero percent; Dr. Worrell -- two 
 
         percent; Dr. Pontarelli -- ten percent.
 
         
 
              Claimant did not establish that she was fired from this job, 
 
         but she did prove that employer attempted to make her employment 
 
         so difficult that it would be impossible to perform it in light 
 
         of Dr. Pontarelli's suggested restrictions.  Claimant and 
 
         Buchmeyer testified that claimant was given only one and one-half 
 
         days of light duty after she returned to work in January of 1988 
 
         on the rework job.  Even Dr. Mirbegian said she was entitled to 
 
         three months of preconditioning in January of 1988.  Claimant 
 
         testified that she also could have been given the job that 
 
         services the line or she could have been continued on the rework 
 
         job.  She also testified that she was interviewed for a 
 
         supervisory position and initially it was indicated that she 
 
         would get the job, but eventually she was rejected for it.
 
         
 
              Both claimant and Buchmeyer, the union steward, testified 
 
         that the foreman told them that he was acting under orders from 
 
         his superior when they protested that claimant was being told to 
 
         perform the pour-head job in violation of Dr. Pontarelli's 
 
         restrictions.  Defendant did not controvert this testimony.  
 
         Therefore, even though it cannot be stated that employer actually 
 
         fired claimant, it is clear that employer either (1) did not have 
 
         any duty that claimant could perform within Dr. Pontarelli's 
 
         restrictions or (2) they chose not to provide it for her if they 
 
         did.  Claimant testified they had work within her restrictions, 
 
         but refused to give it to her.  This testimony was not
 
         
 
         
 
         
 
         McKILLIP v. SHELLER-GLOBE CORPORATION
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         Page 16
 
         
 
         
 
         controverted by defendant.  It is irreconcilably inconsistent for 
 
         employer to argue that there is no work for claimant within the 
 
         doctor's restrictions and at the same time claim that her 
 
         disability is not serious.  II Larson Workmen's Compensation 
 
         Law, section 57.61(b) at pages 10-173 and 10-176.  If employer 
 
         had absolutely no work that claimant could perform, then it is 
 
         determined that claimant's industrial disability is significant.
 
         
 
              Wherefore, based upon the foregoing considerations and all 
 
         of the factors used to determine industrial disability, it is 
 
         determined that claimant has sustained a 20  percent industrial 
 
         disability to the body as a whole and is entitled to 100 weeks of 
 
         permanent partial disability benefits.
 
         
 
                                 MEDICAL BENEFITS
 
         
 
              Claimant seeks to recover a hospital bill in the amount of 
 
         $79.75 for emergency room care and an electrocardiogram at Mercy 
 
         Hospital in Iowa City on June 3, 1989  (claimant's exhibit L, 
 
         page 2).  Claimant testified that she had admitted her mother to 
 
         the hospital for pneumonia and that she herself was having chest 
 
         pains which were very painful.  Claimant testified that Dr. 
 
         Goodner, who knew her and treated her for this injury, told her 
 
         that this medical treatment was for the injury to her neck  
 
         (transcript, page 80).
 
         
 
              Claimant's testimony of the hearsay statement of Dr. Goodner 
 
         is not sufficient to sustain the burden of proof on the ultimate 
 
         issue of the causal connection of this treatment to her injury.  
 
         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). Claimant's 
 
         testimony is not supported by any professional medical testimony 
 
         or evidence.  Therefore, it is determined that claimant is not 
 
         entitled to recover for this medical bill in the amount of 
 
         $79.75.
 
         
 
              Claimant testified that she incurred a bill in the amount of 
 
         $37.50 from Towncrest X-ray for ankle and foot x-rays performed 
 
         on July 22, 1988.  Claimant testified that, after the injury of 
 
         January 16, 1987, her leg would go out periodically when she was 
 
         walking.  In July of 1987, this occurred and she fell down and 
 
         thought she sprained or broke her ankle. Claimant testified that 
 
         Dr. Pontarelli ordered these x-rays (transcript, page 80).  The 
 
         bill does show that the referring physician was W. R. Pontarelli, 
 
         M.D. (claimant's exhibit L, page 4).  Dr. Pontarelli testified 
 
         that he did not recall the specific occasion, but did say, "Oh, I 
 
         can't remember exactly when that was but, yeah, it
 
         
 
         
 
         
 
         McKILLIP v. SHELLER-GLOBE CORPORATION
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         Page 17
 
         
 
         
 
         happened often enough that I remember it, yeah."  (Joint exhibit 
 
         F. page 29) On cross-examination, he admitted that he did not 
 
         make a note of the situation, but recalled that this occurred the 
 
         last time he saw her (joint exhibit  F, page 31).  This colloquy 
 
         transpired between defendant's counsel and the doctor:
 
         
 
              Q.  Do you remember her giving a history of this
 
              fall?
 
         
 
              A.  Yes, I do.
 
         
 
              Q.  And what was that history?
 
         
 
              A.  She was simply walking and the ankle turned on
 
              her.
 
         
 
         (Joint exhibit F, page 31, line 23 through page 32, line 1)
 
         
 
              Wherefore, from the foregoing evidence, it is determined 
 
         that claimant has furnished not only her own testimony, but the 
 
         testimony of Dr. Pontarelli to support her claim and claimant is 
 
         entitled to recover $37.50 for these x-rays.
 
         
 
                                 PENALTY BENEFITS
 
         
 
              Claimant requests penalty benefits under Iowa Code section 
 
         86.13(4). Penalty benefits are authorized by this section of The 
 
         Code for a delay in commencement or for termination of benefits 
 
         without reasonable or probable cause or excuse. H owever, a 
 
         penalty is not appropriate if there is a legitimate dispute on 
 
         whether there is a causal connection of the injury to permanent 
 
         disability, even if there is a subsequent award of benefits.  
 
         Austin v. Neeley Mfg. Co., file number 848293 (Arb. Decn., 
 
         December 15, 1988); Peterman v. American Freight System,  file  
 
         number 747931 (Arb. Decn., August 10, 1988); Cooke v. Iowa Meat 
 
         Processing, file numbers 724392 and 727578  (Arb. Decn., February 
 
         8, 1985); Just v. Hygrade Food Products Corp., IV Iowa Industrial 
 
         Commissioner Reports 190 (App. Decn., January 30, 1984). In this 
 
         case, Dr. Pontarelli determined on July 22, 1988 that claimant 
 
         had a five percent permanent impairment to the lumbar spine and a 
 
         five  percent permanent impairment to the cervical spine 
 
         caused.by this injury.  However, on July 3, 1987, Dr. Mirbegian 
 
         stated that he did not believe there was any permanent impairment 
 
         nor would there be any permanent impairment from this injury 
 
         (defendant's exhibit 2, pages 2 and 3).
 
         
 
         
 
         
 
         McKILLIP v. SHELLER-GLOBE CORPORATION
 
         Page 18
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              On February 1, 1988, Dr. Mirbegian adhered to this decision 
 
         (defendant's exhibit 2, page 1).  Wherefore, defendant has 
 
         demonstrated that there was a legitimate dispute as to both 
 
         causal connection and whether there was any entitlement to 
 
         permanent disability benefits.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              Wherefore, based upon the evidence presented and the 
 
         foregoing principles of law, it is determined:
 
         
 
              That the injury of January 16, 1987 was the cause of 
 
         permanent disability to claimant's cervical spine and lumbar 
 
         spine.  Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 
 
         (1965); Nicks v. Davenport Produce Co., 254 Iowa 130, 115 N.W.2d 
 
         812 (1962); Ziegler v. United States Gypsum Co., 252 Iowa 613, 
 
         620, 106 N.W.2d 591 (1960); Rose v. John Deere Ottumwa Works, 247 
 
         Iowa 900, 908, 76 N.W.2d 756  (1956); Lindahl v. L. 0. Boggs Co., 
 
         236 Iowa 296, 18 N.W.2d 607 (1945).
 
         
 
              That claimant sustained a 20 percent industrial disability 
 
         to the body as a whole.  Olson v. Goodyear Service Stores, 255 
 
         Iowa 1112, 125 N.W.2d 251 (1963);  Barton v. Nevada Poultry, 253 
 
         Iowa 285, 110 N.W.2d 660 (1961); Peterson v. Truck Haven Cafe, 
 
         Inc., Vol. 1, No. 3, State of Iowa Industrial Commissioner 
 
         Decisions 654, 658  (App.  Decn., February 28, 1985); 
 
         Christensen v. Hagen, Inc., Vol. 1, No. 3, State of Iowa 
 
         Industrial Commissioner Decisions 529  (App. Decn., March 26, 
 
         1985); Iowa Administrative Procedure Act 17A.14(5).
 
         
 
              That claimant is entitled to 100 weeks of permanent partial 
 
         disability benefits.  Iowa Code section 85.34(2)(u).
 
         
 
              That claimant did not prove that the emergency room and EKG 
 
         expense in the amount of $79.75 on June 3, 1989 was caused by 
 
         this injury and therefore claimant is not entitled to recover 
 
         this medical bill.
 
         
 
              That claimant did sustain the burden of proof by a 
 
         preponderance of the evidence that the bill from Towncrest X-ray 
 
         in the amount of $37.50 for foot and ankle x-rays on July 12, 
 
         1988 was caused by this injury and claimant is entitled to 
 
         recover this amount of medical expense.  Iowa Code section 85.27.
 
         
 
              That claimant did not sustain the burden of proof by a 
 
         preponderance of the evidence that she is entitled to penalty 
 
         benefits under Iowa Code section 86.13(4).  See cases previously 
 
         cited.
 
         
 
         
 
         
 
         McKILLIP v. SHELLER-GLOBE CORPORATION
 
         Page 19
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
                                      ORDER
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              That defendant pay to claimant one hundred (100) weeks of 
 
         permanent partial disability benefits at the rate of two hundred 
 
         sixty-four and 58/100 dollars ($264.58) per week in the total 
 
         amount of twenty-six thousand four hundred fifty-eight and 00/100 
 
         dollars ($26,458.00) commencing on February 22, 1988 as 
 
         stipulated to by the parties.
 
         
 
              That these workers' compensation weekly benefits are to be 
 
         paid in a lump sum.
 
         
 
              That interest will accrue pursuant to Iowa Code section 
 
         85.30.
 
         
 
              That defendant pay to claimant or the provider of medical 
 
         services thirty-seven and 50/100 dollars ($37.50) for foot and 
 
         ankle x-rays performed by Towncrest X-ray on July 12, 1988.
 
         
 
              That the costs of this action, including the cost of the 
 
         transcript, are charged to defendant pursuant to Division of 
 
         Industrial Services Rule 343-4.33.
 
         
 
              Claimant is further entitled to costs attached to the 
 
         prehearing.report in the amount of fifty-five and 59/100 dollars 
 
         ($55.59) as follows:
 
         
 
         
 
              Certified mailings                     $ 3.34
 
              Copy of deposition of Dr. Pontarelli    36.75
 
              Witness fee -- Audrey Buchmeyer          5.00
 
              Mileage fee -- Audrey Buchmeyer         10.50
 
              Total                                  $55.59
 
         
 
              That defendant file claim activity reports as requested by 
 
         this agency pursuant to Division of Industrial Services Rule 
 
         343-3.1.
 
         
 
              Signed and filed this 19th day of June, 1990.
 
         
 
         
 
         
 
         
 
         
 
                                         WALTER R. McMANUS, JR.
 
                                         DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         
 
         
 
         McKILLIP v. SHELLER-GLOBE CORPORATION
 
         Page 20
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         Copies To:
 
         
 
         Mr. Thomas M. Wertz
 
         Attorney at Law
 
         4089 21st Avenue SW
 
         Suite 114
 
         Cedar Rapids, Iowa  52404
 
         
 
         Mr. Harry W. Dahl
 
         Attorney at Law
 
         974 73rd Street
 
         Suite 16
 
         Des Moines, Iowa  50312
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                                            5-1401, 5-1402.40,
 
                                            5-1402.60, 5-1803,
 
                                            5-1807, 5-2206, 5-2501,
 
                                            5-2700, 5-2907, 5-4000
 
                                            Filed June 19, 1990
 
                                            WALTER R. McMANUS, JR.
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         
 
         JUDY McKILLIP,
 
         
 
              Claimant,                         File No. 843449
 
         
 
         VS.                                    A R B I T R A T I 0 N
 
         
 
         SHELLER-GLOBE CORPORATION,             D E C I S I 0 N
 
         
 
              Employer,.
 
              Self-Insured,
 
              Defendant.
 
         
 
         
 
         5-1401, 5-1402.40, 5-1402.60, 5-2206
 
         
 
              Claimant proved the injury caused permanent disability 
 
         opinion of treating physician was preferred over one-time 
 
         evaluator.
 
         
 
         5-1803, 5-1807
 
         
 
              Impairment ratings ranged from zero to 10%.  It was 
 
         determined that employer did not fire claimant, but forced her to 
 
         leave the job by requiring her to work contrary to the 
 
         restrictions imposed by the doctor.  Defendant's  proposition 
 
         that claimant was not seriously hurt was inconsistent with their 
 
         inability to employ her within her restrictions when there was 
 
         evidence that they probably could have done so if they wanted to.  
 
         Claimant awarded 20% industrial disability.
 
         
 
         5-1402.60, 5-2501, 5-2700
 
         
 
              Claimant did not prove she was entitled to a later emergency 
 
         room treatment and EKG.  She did prove that she was entitled to a 
 
         subsequent bill for her foot and ankle x-rays.
 
         
 
         5-4000
 
         
 
              Claimant did not prove entitlement to penalty benefits 
 
         because there was a bona fide controversy as to whether there was 
 
         causal connection and entitlement to permanent disability 
 
         benefits.
 
         
 
         5-2907
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Claimant awarded costs that were requested.
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
                                                           
 
 
 
 
 
 
 
 
 
 
 
                                                           
 
                        BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         FREDA TOLZIN,
 
         
 
              Claimant,
 
         
 
         VS.
 
                                                 File No. 843945
 
         LUNDELL MANUFACTURING CO.,
 
                                                 A R B I T R A T I 0 N
 
              Employer,
 
                                                 D E C I S I 0 N
 
         and
 
         
 
         IOWA SMALL BUSINESS EMPLOYERS,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
                              STATEMENT OF THE CASE
 
                                        
 
              This is a proceeding in arbitration brought by claimant 
 
         Freda Tolzin against defendant employer Lundell Manufacturing 
 
         Company and defendant insurance carrier Iowa Small Business 
 
         Employers to recover benefits under the Iowa Workers' 
 
         Compensation Act as the result of an injury of January 13, 1987.  
 
         This matter came on for hearing before the undersigned in Storm 
 
         Lake, Iowa, on January 12, 1989.  The matter was considered fully 
 
         submitted at the close of hearing.  The record in the proceeding 
 
         consists of joint exhibits 1 through 16, inclusive, along with 
 
         the testimony of claimant, Richard Tolzin and Stephen Paulsen.
 
         
 
                                      ISSUES
 
         
 
              Pursuant to the pre-hearing report submitted by the parties 
 
         and approved by the undersigned deputy, the parties have 
 
         stipulated as follows: That an employer-employee relationship 
 
         existed between claimant and employer at the time of the injury; 
 
         that claimant sustained an injury on January 13, 1987 which arose 
 
         out of and in the course of that employment; that the alleged 
 
         injury caused temporary disability from January 19, 1987 through 
 
         February 28, 1988; that if the injury . be found to be a cause of 
 
         permanent disability, the injury is an industrial disability to 
 
         the body as a whole and the commencement date for permanent 
 
         partial disability, if awarded, is February 29, 1988; that the 
 
         appropriate rate of weekly compensation benefits is  $135.62; 
 
         that various affirmative defenses are waived; that all requested 
 
         medical benefits have been or will be paid by defendants; that 
 
         defendants do not seek credit for payments under any 
 
         nonoccupational group plan; that defendants paid claimant 74 
 
         weeks (54 weeks as temporary total disability and 20 weeks as 
 
         permanent partial
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         TOLZIN V. LUNDELL MANUFACTURING CO.
 
         Page 2
 
         
 
         
 
         disability) of compensation at the stipulated rate; and, that the 
 
         parties waive taxation of costs.
 
         
 
              The only issue presented for resolution is claimant's 
 
         entitlement to and extent of industrial disability.
 
         
 
                              REVIEW OF THE EVIDENCE
 
         
 
              Claimant was married and without dependents at the time of 
 
         hearing.  She was born on June 28, 1924 and is 64 years of age.  
 
         Claimant graduated from high school with good grades and has 
 
         since had additional education through taking a keypunch operator 
 
         course in 1978.  However, she is unable to function as a keypunch 
 
         operator because she lost the tips of two fingers in an unrelated 
 
         industrial accident in 1979.  She has had no further education or 
 
         specialized training.
 
         
 
              Claimant has held a number of employment positions 
 
         throughout her working career.  She originally worked for a short 
 
         time as a switchboard operator with West Iowa Telephone Company, 
 
         then was employed as an assistant postmaster from 1943 through 
 
         1955.  Her responsibilities in that job included sorting mail, 
 
         preparing reports and like duties.  Claimant testified that she 
 
         then managed a county farm for indigents with her first husband 
 
         from 1955 until 1962.  Her duties included cleaning, cooking and 
 
         the like.  Thereafter, claimant accepted a position for about one 
 
         year in a nursing home providing direct patient care.  This 
 
         included heavy lifting.  Thereafter, she was employed for two to 
 
         three years at Sioux Valley Hospital where she had a minimum wage 
 
         job in the office.  Her duties included typing, admissions 
 
         and-the like.  She subsequently accepted a position with the 
 
         Cherokee County Treasurer's Office as a clerk.
 
         
 
              Claimant began her employment with defendant Lundell 
 
         Manufacturing Company on March 9, 1973.  Lundell Manufacturing 
 
         Company is a manufacturer of farm equipment.
 
         
 
              Claimant testified that up until her employment with 
 
         defendant Lundell Manufacturing Company, she had only one serious 
 
         illness and had suffered no major accidents.  She characterized 
 
         her health as excellent.
 
         
 
              From 1973 to 1980, claimant was employed in fabrication with 
 
         Lundell Manufacturing.  This included bending and cutting steel.  
 
         She lost two fingers in an accident on April 5, 1979, and 
 
         returned to work in September of that year.  Because of this 
 
         injury, she was returned to work in the parts room.  Her duties 
 
         included answering telephones and taking and assembling orders 
 
         for customers of Lundell Manufacturing Company.  One of her 
 
         duties included periodically filling the furnace with pellets 
 
         using a scoop shovel.  This was a fairly heavy job.  In fact, 
 
         claimant testified that she was required to lift up to 70 or even 
 
         more pounds on occasion while working in the
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         TOLZIN V. LUNDELL MANUFACTURING CO.
 
         Page 3
 
         
 
         
 
         parts room.
 
         
 
              Claimant testified that she suffered the industrial injury 
 
         that is the subject matter of this dispute while filling the 
 
         furnace.  When lifting the shovel over her head, she felt a 
 
         "tearing" sensation in her right side.  She had no history of 
 
         prior problems afflicting that part of her body.  She continued 
 
         to work in pain for the rest of the day and treated herself that 
 
         night by soaking in a tub.  She appeared for work the following 
 
         morning, and upon making complaint of her pain, was referred by 
 
         the company to a general practitioner, Keith Garner, M.D. Dr. 
 
         Garner advised claimant not to immediately return to work, 
 
         provided some medications and prescribed rest.  After two more 
 
         visits during the next week, claimant was referred by defendant 
 
         Iowa Small Business Employers to Patricia Harrison, M.D.  Dr. 
 
         Harrison treated claimant with pain medication and prescribed 
 
         physical therapy intermittently until May 27, 1987.  Dr. 
 
         Harrison's medical records reflect that claimant was last seen on 
 
         June 22, 1987.
 
         
 
              Claimant was next referred to J. Michael Donohue, M.D., an 
 
         orthopaedic specialist.  After providing care that will be 
 
         detailed separately, Dr. Donohue returned claimant to "light 
 
         duty" in January, 1988.  However, the employer had none 
 
         available.  Claimant was released to return to work as having 
 
         reached maximum recuperation on February 18, 1988.  This was when 
 
         claimant last saw Dr. Donohue or any physician for this injury.  
 
         Dr. Donohue placed permanent restrictions on claimant in two 
 
         respects: A 30-pound weight limit for lifting and avoidance of 
 
         the use of her right upper extremity above chest level.  However, 
 
         he verbally advised claimant of two additional restrictions: 
 
         Proscribing the wearing of heels and prolonged standing.  These 
 
         restrictions do not appear to have been reduced to written form.
 
         
 
              Claimant further testified that she took her return to work 
 
         with restrictions to Stephen Paulsen, secretary/treasurer of 
 
         Lundell Manufacturing Company.  She testified that Mr. Paulsen 
 
         advised her that no work was available that met her physical 
 
         restrictions, agreed to call her if such work came up, but has 
 
         not done so in the 11 months since that conversation.  Claimant 
 
         has not returned to work with Lundell Manufacturing Company.
 
         
 
              Since this employment ceased, claimant has received 26 weeks 
 
         of job insurance benefits, applying for work with at least two 
 
         employers during each of those weeks.  However, she proved unable 
 
         to secure employment, believing that her main problem consisted 
 
         of her restrictions, including the verbal restriction against 
 
         prolonged standing.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Claimant further testified that, but for her injury, it had 
 
         been her intent to continue working "as long as I could." She 
 
         began receiving Social Security Benefits at age 62, but
 
         
 
         
 
         
 
         TOLZIN V. LUNDELL MANUFACTURING CO.
 
         Page 4
 
         
 
         
 
         continued to work. on occasion, this entailed reduced Social 
 
         Security benefits due to her earnings.  Claimant married Richard 
 
         Tolzin, a farmer, on November 23, 1984 and assists on the farm.  
 
         At one time, she did such physical duties as driving a tractor 
 
         and feeding cattle, but is now unable to do so.  Her assistance 
 
         now is primarily with bookwork.
 
         
 
              Claimant testified that her pain is now intermittent and 
 
         "dull" although it is exacerbated if she spends a lot of time on 
 
         her feet.  While claimant feels physically capable of accepting a 
 
         "paperwork" position, she is of the view that her restrictions 
 
         disable her from any of the positions she has held during her 
 
         working life.  Even the courthouse and hospital clerical jobs 
 
         require far too much standing, although she agreed on 
 
         cross-examination that similar hospital jobs now are typically 
 
         performed while sitting.  It is undisputed that defendants have 
 
         made no effort to assist claimant in finding new employment or in 
 
         undergoing vocational rehabilitation.
 
         
 
              Claimant testified that she intends to continue seeking 
 
         full-time employment and that her receipt of Social Security 
 
         benefits is not and has not been a factor in her work history.  
 
         She earned $6.50 per hour at the time of her separation from 
 
         Lundell Manufacturing Company.  Although this was a full-time 
 
         position, there have been periods of layoff.  For example, much 
 
         of 1976 was characterized by slow business and claimant took many 
 
         Fridays off work by mutual consent of her and the employer.
 
         
 
              Richard Tolzin testified as to his work as a self-employed 
 
         farmer and part-time employment measuring land and bins.  He 
 
         confirmed claimant's testimony that she has certain nonvocational 
 
         limitations at home, such as vacuuming, window washing, or 
 
         picking up her grandchildren to play.
 
         
 
              Stephen Paulsen testified that he is secretary/treasurer of 
 
         Lundell Manufacturing Company, and is responsible for office 
 
         management, including personnel duties.  Lundell Manufacturing 
 
         employs a varying number of employees, right now approximately 25 
 
         or so.  He agreed that claimant accurately described her position 
 
         and characterized her as a competent, intelligent worker with 
 
         good communication skills.  He agreed that claimant is not a lazy 
 
         individual.
 
         
 
              Mr. Paulsen testified that he knew of claimant's 30-pound 
 
         lifting restriction, but did not know of restrictions against 
 
         prolonged standing.  In any event, she was unable to return to 
 
         her former parts department position with the lifting 
 
         restriction.  He testified further that no lighter duty work was 
 
         available to claimant within the parameters of her work 
 
         restrictions.  Lundell Manufacturing has hired no office workers 
 
         since at least January 1, 1988.  He agreed that defendants had 
 
         made no effort to retrain claimant or to assist her in obtaining 
 
         other work.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         TOLZIN V. LUNDELL MANUFACTURING CO.
 
         Page 5
 
         
 
         
 
              The records of Dr. Garner reflect that he diagnosed a pulled 
 
         or torn muscle with unknown prognosis.  He was unable at the 
 
         early stage of his care to estimate permanent disability.
 
         
 
              Dr. Harrison diagnosed strain of the lower abdominal muscles 
 
         and last noted that claimant continued to be disabled but 
 
         improving.  She did not express an opinion as to the permanency 
 
         of claimant's condition.
 
         
 
              Dr. Donohue diagnosed chronic myofascial strain, right 
 
         lateral abdominal wall and latissimus dorsi musculature.  From 
 
         September 18, 1987 through February 22, 1988, he noted that 
 
         claimant significantly improved with respect to her subjective 
 
         discomfort, noting that claimant displayed an excellent attitude 
 
         and anticipated further improvement in her condition.  His final 
 
         diagnosis was abdominal strain--improved.  As noted, Dr. Donohue 
 
         gave claimant a 30-pound lifting restriction and advised her to 
 
         permanently avoid the use of her right upper extremity above 
 
         chest level.  He felt that claimant had suffered a permanent 
 
         partial impairment of four percent of the body as a whole.  His 
 
         letter to claims adjuster Jan Johnson of February 22, 1988 set 
 
         forth those restrictions and noted that claimant had sustained a 
 
         permanent injury with respect to her trunk musculature.  He 
 
         specified that this permanent impairment was attributable to the 
 
         work injury.
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              The parties have stipulated to most issues, leaving 
 
         unresolved the question as to whether claimant is entitled to an 
 
         award for permanent partial disability, and if so, the extent of 
 
         her disability.  It has been stipulated that claimant suffered an 
 
         injury arising out of and in the course of her employment and 
 
         that it caused at least temporary disability.  The parties were 
 
         unable to agree that there exists a causal connection between the 
 
         work injury and claimant's alleged permanent disability.  Of 
 
         course, claimant has the burden of proving by a preponderance of 
 
         the evidence that this causal relationship exists.  Bodish v. 
 
         Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).  A 
 
         possibility is insufficient; a probability is necessary.  Burt v. 
 
         John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 
 
         (1955).
 
         
 
              Establishing whether that causal connection exists is an 
 
         issue essentially within the domain of expert testimony.  
 
         Bradshaw v. Iowa Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167 
 
         (1960).  Only one physician has expressed a view as to the 
 
         existence of a permanent impairment and as to whether there 
 
         exists a causal relationship between the work injury and that 
 
         impairment.  That is Dr. Donohue.  Dr. Donohue's report is 
 
         uncontradicted and shows his belief that a permanent impairment 
 
         exists and that the impairment is causally related to the work 
 
         injury.  Claimant has met her burden of proof on this issue.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         TOLZIN V. LUNDELL MANUFACTURING CO.
 
         Page 6
 
         
 
         
 
              Therefore, what remains to be resolved is the extent to 
 
         which claimant's impairment constitutes an industrial disability, 
 
         since the injury is stipulated to be a "body as a whole" injury.
 
         
 
              Functional impairment is an element to be considered in 
 
         determining industrial disability which is the reduction of 
 
         earning capacity, but consideration must also be given to the 
 
         injured employee's age, education, qualifications, experience and 
 
         inability to engage in employment for which he is fitted.  Olson 
 
         v. Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963).  
 
         Barton v. Nevada Poultry, 253 Iowa 285, 110 N.W.2d 660 (1961).
 
         
 
              A finding of impairment to the body as a whole found by a 
 
         medical evaluator does not equate to industrial disability.  This 
 
         is so as impairment and disability are not synonymous.  Degree of 
 
         industrial disability can in fact be much different than the 
 
         degree of impairment because in the first instance reference is 
 
         to loss of earning capacity and in the latter to anatomical or 
 
         functional abnormality or loss.  Although loss of function is to 
 
         be considered and disability can rarely be found without it, it 
 
         is not so that a degree of industrial disability is 
 
         proportionally related to a degree of impairment of bodily 
 
         function.
 
         
 
              Factors to be considered in determining industrial 
 
         disability include the employee's medical condition prior to the 
 
         injury, immediately after the injury, and presently; the situs of 
 
         the injury, its severity and the length of healing period; the 
 
         work experience of the employee prior to the injury, after the 
 
         injury and potential for rehabilitation; the employee's 
 
         qualifications intellectually, emotionally and physically; 
 
         earnings prior and subsequent to the injury; age; education; 
 
         motivation; functional impairment as a result of the injury; and 
 
         inability because of the injury to engage in employment for which 
 
         the employee is fitted.  Loss of earnings caused by a job 
 
         transfer for reasons related to the injury is also relevant.  
 
         These are matters which the finder of fact considers collectively 
 
         in arriving at the determination of the degree of industrial 
 
         disability.
 
         
 
              There are no weighting guidelines that indicate how each of 
 
         the factors are to be considered.  There are no guidelines which 
 
         give, for example, age a weighted value of ten percent of the 
 
         total value, education a value of fifteen percent of total, 
 
         motivation - five percent; work experience - thirty percent, etc.  
 
         Neither does a rating of functional impairment directly correlate 
 
         to a degree of industrial disability to the body as a whole.  In 
 
         other words, there are no formulae which can be applied and then 
 
         added up to determine the degree of industrial disability.  It 
 
         therefore becomes necessary for the deputy or commissioner to 
 
         draw upon prior experience, general and specialized knowledge to 
 
         make the finding with regard to
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         TOLZIN V. LUNDELL MANUFACTURING CO.
 
         Page 7
 
         
 
         
 
         degree of industrial disability.  See Peterson v. Truck Haven 
 
         Cafe, Inc., (Appeal Decision, February 28, 1985); Christensen 
 
         v.Hagen, Inc., (Appeal Decision, March 26, 1985).
 
         
 
              Claimant was a credible witness.  Even though Dr. Donohue 
 
         did not reduce to writing his restriction against prolonged 
 
         standing, this deputy accepts claimant's testimony as 
 
         establishing that Dr. Donohue verbally restricted her.  Although 
 
         claimant is hardworking and well motivated, it is nonetheless the 
 
         case that she could not perform any of the jobs which she has so 
 
         far held during her working life.  Of course, at least one of 
 
         those jobs has apparently changed since claimant filled it:  A 
 
         clerk in the admissions area of a hospital, which claimant 
 
         concedes is now essentially a "sit down" job.  It appears that 
 
         claimant would be able to hold such a job as it presently exists.  
 
         Of course, this was a minimum wage job at the time claimant held 
 
         the position, and there is no showing that a similar position 
 
         would be greatly more remunerative at the present date.
 
         
 
              Claimant has worked for defendant Lundell Manufacturing 
 
         Company since 1973.  Due to her work injury, she is no longer 
 
         qualified to hold the position she has filled since 1979, in the 
 
         parts room.  Lundell Manufacturing Company has not had a position 
 
         available for claimant since her injury that would meet her work 
 
         restrictions.  It has been held that a defendant employer's 
 
         refusal to provide any sort of work to a claimant after the work 
 
         injury may justify an award of disability.  McSpadden v. Big Ben 
 
         Coal Co., 288 N.W.2d 181 (Iowa 1980).  Similarly, failure to 
 
         offer vocational rehabilitation by the employer or insurance 
 
         carrier may result in an enhanced industrial disability.  Schelle 
 
         v. Hygrade Food Products, 33rd Biennial Report of the Industrial 
 
         Commissioner, 121 (1977).  Of course, because of claimant's age, 
 
         she is not necessarily a good candidate for extensive retraining.  
 
         While she indicated an intent to continue working as long as 
 
         possible, it must be recognized that her anticipated working life 
 
         is of a lesser duration than would be the case if she were 
 
         younger.
 
         
 
              Claimant gave every indication as a witness of having the 
 
         intelligence and presence to be a valuable employee in a clerical 
 
         or other reasonably sedentary occupation.  Nonetheless, she has 
 
         had little success in seeking further employment, very probably 
 
         as she suggests due to her work restrictions.  A claimant's 
 
         inability to find other suitable work after making bona fide 
 
         efforts to do so is an indicia of industrial disability.  
 
         McSpadden,
 
         supra.
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              Given the record made by the parties and the above 
 
         considerations in particular, this deputy finds and concludes 
 
         that claimant has, by reason of her work-related injury, suffered 
 
         an industrial disability of 25% of the body as a whole, the 
 
         commencement date for permanent partial disability having been 
 
         stipulated to be February 29, 1988.
 
         
 
         
 
         
 
         TOLZIN V. LUNDELL MANUFACTURING CO.
 
         Page 8
 
         
 
         
 
                                 FINDINGS OF FACT
 
         
 
              THEREFORE, based on the evidence presented, the following 
 
         ultimate facts are found:
 
         
 
              1. As stipulated, claimant was an employee of defendant 
 
         employer on January 13, 1987.
 
         
 
              2. That claimant sustained a work injury on January 13, 1987 
 
         while filling a furnace with fuel pellets.
 
         
 
              3. That claimant's injury caused her to be disabled for a 
 
         healing period stipulated by the parties to be from January 19, 
 
         1987 through February 28, 1988.
 
         
 
              4. That claimant's injury was abdominal strain.
 
         
 
              5. That claimant's injury has been stipulated to be an 
 
         industrial disability to the body as a whole.
 
         
 
              6. That claimant's rate of weekly compensation has been 
 
         stipulated to be $135.62.
 
         
 
              7. That claimant's work injury has caused her permanent 
 
         disability and a diminution to her earning capacity.
 
         
 
              8. Claimant was a credible witness.
 
         
 
              9. Claimant has been given physical limitations by reason of 
 
         her injury that include no lifting over 30 pounds, permanent 
 
         avoidance of the use of the right upper extremity above chest 
 
         level and against prolonged standing.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              WHEREFORE, based on the principles of law previously stated, 
 
         the following conclusions of law are made:
 
         
 
              1. Claimant suffered an injury arising out of and in the 
 
         course of her employment on January 13, 1987.
 
         
 
              2. Claimant's injury was an injury to the body as a whole.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              3. Claimant's injury directly caused a healing period from 
 
         January 19, 1987 through February 28, 1988 (58 weeks) and 
 
         permanent partial disability.
 
         
 
              4. Claimant has established a permanent partial disability 
 
         of 25% of the body as a whole, the commencement date being 
 
         February 29, 1988.
 
         
 
         
 
         
 
         TOLZIN V. LUNDELL MANUFACTURING CO.
 
         Page 9
 
         
 
         
 
                                      ORDER
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              Defendants are to pay unto claimant fifty-eight  (58) weeks 
 
         of healing period benefits at the stipulated rate of one hundred 
 
         thirty-five and 62/100 dollars ($135.62) per week totalling seven 
 
         thousand eight hundred sixty-five and 96/100 dollars ($7,865.96).
 
         
 
              Defendants are to pay unto claimant one hundred twenty-five 
 
         (125) weeks [twenty-five percent (25%) of five hundred (500) 
 
         weeks] of permanent partial disability benefits at the stipulated 
 
         rate of one hundred thirty-five and 62/100 dollars ($135.62) per 
 
         week totalling sixteen thousand nine hundred fifty-two and 50/100 
 
         dollars ($16,952.50).
 
         
 
              Defendants shall be entitled to credit for seventy-four (74) 
 
         weeks of compensation at the stipulated rate which was paid prior 
 
         to hearing, totalling ten thousand thirty-five and 88/100 dollars 
 
         ($10,035.88).
 
         
 
              Those benefits which have accrued as of the date of this 
 
         decision shall be paid in a lump sum together with statutory 
 
         interest pursuant to Iowa Code section 85.30.
 
         
 
              Defendants shall file a Claim Activity Report as requested 
 
         by this agency pursuant to Division of Industrial Services Rule 
 
         343-3.1.
 
         
 
              Signed and filed this 23rd day of January, 1989.
 
         
 
         
 
         
 
         
 
                                         DAVID  RASEY
 
                                         DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Harry H. Smith
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         Attorney at Law
 
         P.O. Box 1194
 
         Sioux City, Iowa 51102
 
         
 
         Mr. G. Daniel Gildemeister
 
         Attorney at Law
 
         400 lst National Bank Building
 
         P.O. Box 1768
 
         Sioux City, Iowa 51102
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                                         1803
 
                                         Filed January 23, 1989
 
                                         DAVID RASEY
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         FREDA TOLZIN,
 
         
 
              Claimant,
 
         
 
         VS.
 
                                             File No. 843945
 
         LUNDELL MANUFACTURING CO.,
 
                                             A R B I T R A T I 0 N
 
              Employer,
 
                                              D E C I S I 0 N
 
         and
 
         
 
         IOWA SMALL BUSINESS EMPLOYERS,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         1803
 
         
 
              Claimant awarded 25% industrial disability in wake of injury 
 
         to trunk musculature.
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         KIM WHITE,
 
         
 
              Claimant,                             File No. 843993
 
         
 
         vs.                                     A R B I T R A T I O N
 
                                                 
 
         CHEMICAL CORP.,                            D E C I S I O N
 
                                                 
 
              Employer,
 
                                                      F I L E D
 
         and
 
                                                      FEB 07 1990
 
         HOME INSURANCE COMPANY,
 
                                                  INDUSTRIAL SERVICES
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding in arbitration brought by Kim White 
 
         against her former employer Witco Chemical Corporation and its 
 
         insurance carrier Home Insurance Company.  The case was heard and 
 
         fully submitted at Storm Lake, Iowa on May 23, 1989.  The record 
 
         in this proceeding consists of joint exhibits 1 through 27 and 
 
         testimony from Kim White, Sarah Schnell, Charles White, Jr., 
 
         Robert Alderman, Delores Sennert, and Phyllis Richardson.
 
         
 
                                      ISSUES
 
         
 
              The issues identified by the parties for determination are 
 
         whether Kim White sustained an injury which arose out of and in 
 
         the course of her employment, causation between any injury and 
 
         any disability, determination of claimant's entitlement, if any, 
 
         to temporary total disability or healing period compensation, and 
 
         determination of claimant's entitlement to recover medical 
 
         expenses.  Claimant contends that a Job Service decision 
 
         conclusively establishes that the claimant sustained an injury 
 
         which arose out of and in the course of employment and that issue 
 
         preclusion or res judicata prevent relitigation of that issue and 
 
         compel a finding favorable to claimant.  No claim was made for 
 
         permanent partial disability compensation as claimant asserted 
 
         the position that adequate treatment has not been afforded and 
 
         that her treatment has not been completed in order to permit a 
 
         determination of the degree of any permanent partial disability. 
 
         It was stipulated by the parties that in the event of an award, 
 
         claimant was entitled to recover temporary total disability 
 
         compensation for the period running from March 6, 1987 through 
 
         April 28, 1987.  This is 7 5/7 weeks.  It was also stipulated 
 
         that the rate of compensation is $130.10 per week.  It was 
 
         further stipulated that the providers of medical services would 
 
         testify that the fees charged for their services were reasonable, 
 
         that the services were provided for treatment of the alleged work 
 
         injury and that the defendants have no evidence to the contrary.  
 
         It was further stipulated that under Iowa Code section 85.38(2), 
 
         defendants are entitled to credit in the amount of $74.00 against 
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         any medical expense award.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
                               SUMMARY OF EVIDENCE
 
         
 
              The following is a summary of evidence presented in this 
 
         case.  Only the evidence most pertinent to this decision is 
 
         discussed, but all of the evidence received at the hearing was 
 
         considered in arriving at this decision.  Conclusions about what 
 
         the evidence showed are inevitable, with any summarization.  The 
 
         conclusions in the following summary should be considered to be 
 
         preliminary findings of fact.
 
         
 
              Kim White is a 33-year-old married woman who lives at 
 
         Terril, Iowa with her husband Charles White, Jr., and their three 
 
         children.  Kim, who is of an Oriental ethnic background, 
 
         testified that she was born and educated in South Korea and that 
 
         she does not read English well.  She stated that she usually has 
 
         someone else read anything which she is required to sign.  Kim 
 
         stated that she met her husband while he was in the service.  Kim 
 
         feels that she speaks English well now, although the undersigned 
 
         did have some difficulty understanding her.  Kim stated that she 
 
         was required to demonstrate that she was able to read and speak 
 
         English in order to be allowed to marry her husband.  Kim 
 
         testified that her husband accompanied her when she applied for 
 
         work at Witco.  She stated that he read the employment 
 
         application form to her and read the employee handbook to her.
 
         
 
              In June, 1985, Kim was hired to work at Witco on an assembly 
 
         line where she assembled grease guns.  Claimant stated that she 
 
         would handle 100-200 per hour and that the number varied 
 
         according to the function which she performed.  Kim stated that 
 
         the work required a lot of grasping, holding, and compressing of 
 
         springs. She stated that the job required turning of the wrist 
 
         and squeezing the fingers.  Kim stated that she worked 40 hours 
 
         per week and all overtime which was offered to her.
 
         
 
              Kim testified that at times her arms would swell and become 
 
         painful, but that she did not seek medical treatment and 
 
         continued to do her job.  Kim stated that she used alcohol and 
 
         ice packs at her home to treat the condition.  She denied ever 
 
         having a problem with her right arm swelling before she started 
 
         work at Witco.  She stated that she did not make complaint about 
 
         the problem at work because she wanted to keep her job.  Kim 
 
         stated that she did, however, make use of elastic bandages which 
 
         were available at work.
 
         
 
              Kim testified that while working on March 3, 1987 she bend 
 
         down to pick up a part and while lifting it up, bumped her right 
 
         wrist.  She stated that it hurt, she dropped the part, and shook 
 
         her hand.  She stated that it did not bleed, but did get very 
 
         red. Kim stated that the incident happened in the morning, but 
 
         that she kept working.  She stated that her arm developed some 
 
         swelling and that she treated it at home that night with an ice 
 
         pack, a warm soak and aspirin cream.
 
         
 
              Kim testified that on Wednesday, March 4, 1987, she reported 
 
         to work to her normal job.  She stated that she had difficulty 
 
         using her right hand and went to first aid where she reported 
 
         bumping the arm on the preceding day and had it wrapped with an 
 
         elastic bandage.  Kim stated that she was also provided ice packs 
 
         during breaks and over the noon hour.  Claimant stated that she 
 
         worked nine hours on March 4 and nine hours again on March 5. 
 
         Claimant stated that she continued to wear the Ace wrap on her 
 
         arm and to use ice during breaks.  She stated that the arm was 
 
         still swollen, but that she took no pain medication.  Kim stated 
 
         that at the end of the day, the pain in the arm was getting 
 
         worse.
 

 
         
 
 
 
 
 
 
 
 
 
 
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Kim reported to work on Friday morning and continued to 
 
         work. She stated that the pain in her arm worsened and that she 
 
         eventually talked to her supervisor, Delores Sennert.  Kim 
 
         testified that Delores told her to take a half day vacation, rest 
 
         over the weekend and come back to work on Monday.  Claimant 
 
         stated that she went home, put ice packs on her arm and lay on 
 
         the couch to watch TV.  Kim stated that a friend stopped by, 
 
         looked at her hand and convinced her to go to the doctor.
 
         
 
              Claimant was seen by Richard M. Brown, M.D.  Dr. Brown took 
 
         claimant off work and issued a slip to excuse claimant from work. 
 
         He placed a cast on her arm and scheduled a return visit for 
 
         March 16.  Claimant returned to Witco and turned in the work 
 
         excuse to Delores Sennert.  Claimant testified that Delores 
 
         looked at the slip and made a statement that she would see her on 
 
         the 16th.
 
         
 
              Claimant's husband had recently been reemployed as an 
 
         over-the-road truck driver following an extended layoff.  He 
 
         obtained a run to the east coast.  They decided that claimant 
 
         would accompany him since she had been taken off work.  A friend, 
 
         Sarah Schnell, watched their children while they were gone.  
 
         Sarah Schnell stated that she first became aware of Charles 
 
         White, Jr.'s, truck driving job on Friday.  Claimant stated that 
 
         her husband obtained the truck driving job on the Friday that she 
 
         left work.
 
         
 
              On Monday, March 9, 1987, Delores Sennert investigated 
 
         claimant's injury claim.  She stated that she checked work 
 
         schedules and talked with coworkers.  She stated that she was 
 
         told of a statement made by Phyllis Richardson wherein claimant 
 
         allegedly told Richardson that she had injured her arm while arm 
 
         wrestling with her son.  A representative of Witco contacted Dr. 
 
         Brown and he then issued a release to allow claimant to return to 
 
         work effective March 9, 1987.  His report states that her wrist 
 
         was in a cast and that she should not engage in lifting or 
 
         grasping with the right hand.  His diagnosis was DeQuervain's 
 
         tenosynovitis, inflammation of the wrist tendons attributed to 
 
         strenuous grasping done repetitively (exhibit 1, page 2).  The 
 
         original slip which Dr. Brown had provided to claimant was not 
 
         included in the exhibits.  Robert Alderman, the plant manager, 
 
         acknowledged that it was missing even though it was referred to 
 
         at page 81 which is found in exhibit 12, records maintained by 
 
         Witco. Alderman stated that at the time of conducting the 
 
         investigation on March 9, 1987, he had no knowledge of any claim 
 
         regarding a March 3, 1987 injury.  Alderman stated that it is 
 
         company policy to provide restricted employment to employees who 
 
         are injured on the job, but that they do not provide restricted 
 
         employment for those who have nonemployment related conditions.  
 
         He stated that they would have had a position for claimant 
 
         consistent with the release.  Alderman did not dispute claimant's 
 
         description of the work which she had performed.  He stated that 
 
         in a day's time, claimant would have handled parts to 
 
         approximately 6,000 grease guns.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Alderman stated that claimant had missed too many days from 
 
         work.  He stated that the process the company uses when dealing 
 
         with absenteeism is to initially give a verbal warning, which is 
 
         then followed by a written warning.  He stated that the third 
 
         step in the process is a three-day suspension and that the final 
 
         step is then termination.
 
         
 
              Alderman stated that in the course of the investigation 
 
         which he had directed on Monday, March 9, the statement from 
 
         Phyllis Richardson which attributed claimant's arm problem to arm 
 
         wrestling with her son was made.
 
         
 
              Delores Sennert stated that she writes down injury 
 
         complaints and has none from claimant during the week of March 3, 
 
         1987. Sennert was then shown exhibit 13, page 94, a dispensary 
 
         record dated March 4, 1987 which Sennert acknowledged was made in 
 
         her own handwriting.  Sennert testified that when claimant 
 
         reported the swollen arm on Friday of that week, she suggested 
 
         that claimant go to the company doctor, but that claimant 
 
         declined and stated that she would take care of it herself.  
 
         Sennert stated that approval was obtained for claimant to take 
 
         vacation for the remainder of the day and that at the end of the 
 
         day claimant brought in a slip from Dr. Brown.  Sennert stated 
 
         that claimant was in a hurry, and would not wait, so nothing 
 
         further was done that day regarding the doctor's excuse.
 
         
 
              Sennert testified that she phoned claimant during the week 
 
         of March 9 and told claimant that they would talk when claimant 
 
         returned from the trip with her husband.  Sennert stated that 
 
         when claimant came to the plant following her return, claimant's 
 
         husband accompanied her to the plant.  Sennert stated that 
 
         claimant's husband requested to be present when claimant met with 
 
         Witco officials, but that his request was denied and he became 
 
         angry.  Mr. White then waited in the lobby while the termination 
 
         notice, exhibit 12, page 73, was read to claimant and presented 
 
         to claimant for her signature.  Sennert testified that claimant 
 
         seemed to be able to read the written work schedule at the plant 
 
         because claimant got to her work-station.
 
         
 
              Sennert agreed that claimant's description of the movements 
 
         which were involved in claimant's work was generally correct. 
 
         Sennert stated that claimant was a good worker.
 
         
 
              Phyllis Richardson testified that she has known claimant for 
 
         two years and has been employed at Witco for 13 years.  
 
         Richardson stated that on March 2, 1987 claimant rode to work 
 
         with her and that during the trip claimant reported injuring her 
 
         arm while arm wrestling with her son.  Richardson testified that 
 
         she told claimant to get it wrapped and that it was wrapped that 
 
         evening when they went home.  Richardson stated that on Tuesday, 
 
         claimant told her that she would begin driving again by herself 
 
         and that they then no longer rode to work together.  Richardson 
 
         said that she did not see claimant's arm while they were going to 
 
         work on Monday, but that she did see it at,the 9:30 a.m. break. 
 
         Richardson stated that any employee was free to make use of 
 
         elastic bandages without consulting a supervisor or first aid 
 
         person.  Richardson stated that claimant had complained of her 
 
         arms prior to March 3, 1987, but that such complaints were not 
 
         unusual.  Richardson stated that she is afflicted with tendonitis 
 
         from a prior job.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Richardson stated that she observed claimant to have the arm 
 
         wrapped on Tuesday and that it was on Tuesday when claimant told 
 
         her that her husband had been recalled to work.
 
         
 
              Kim White testified that she had been at home over the 
 
         weekend preceding March 3, 1987.  She stated that she did not 
 
         injure her arm on that weekend.  She stated that she did not 
 
         injure her arm during the evening of March 1, 1987.  Claimant 
 
         stated that she has never arm wrestled with any of her children. 
 
         Claimant described her height as 5 feet, 1 inch and her weight as 
 
         115 pounds.  She stated that her oldest son is bigger than she 
 
         is. Claimant denied telling Phyllis Richardson that she had hurt 
 
         her arm while arm wrestling.  Claimant also denied being offered 
 
         the services of the company doctor by Delores Sennert.
 
         
 
              Claimant testified that when she went with her husband to 
 
         the east coast, her arm was in a sling.  She stated that when she 
 
         returned, she went to the plant on the 17th and was called into 
 
         the office where she was fired, effective as of March 9, 1987. 
 
         Claimant stated that her husband had requested to accompany her, 
 
         but that the request was denied.  She stated that she was unable 
 
         to read what was written on the paper, but signed it anyway.
 
         
 
              Kim testified that Dr. Brown removed the cast from her arm, 
 
         but that the swelling was not gone so.she was referred to William 
 
         Follows, M.D.
 
         
 
              When Dr. Follows released her to return to work on April 28, 
 
         1987, she did not return to Witco, but applied for and received 
 
         unemployment.
 
         
 
              Claimant stated that it was her understanding of the company 
 
         rule that it was necessary to be able to perform 100 percent of 
 
         the work.  She did not know of any one-arm job at Witco or of any 
 
         authorization by a doctor for a one-arm job.  Claimant stated 
 
         that she phoned home every night while she was gone and during 
 
         one of the calls was informed that Delores Sennert wanted to talk 
 
         with her.
 
         
 
              Claimant testified that she continues to have difficulty 
 
         with her arm in the form of pain and swelling.
 
         
 
              Sarah Schnell, claimant's neighbor and friend, testified 
 
         that she sees claimant on an almost daily basis and that they are 
 
         often in each other's homes.  Schnell stated that she has never 
 
         seen claimant arm wrestle, scuffle or roughhouse with her 
 
         children. Schnell stated that prior to March 3, 1987, she had 
 
         noticed claimant to have swelling in her hands following working 
 
         at Witco. Schnell stated that she had not observed any swelling 
 
         in claimant's hands prior to the time she started work at Witco. 
 
         Schnell stated that the swelling was intermittent.
 
         
 
              Schnell testified that on March 6, 1987, she found claimant 
 
         on the couch with an ice pack on her arm and the arm swollen. 
 
         Schnell stated that she told claimant to go to a doctor and that 
 
         claimant then agreed and did so.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Charles White, Jr., claimant's husband, stated that he has 
 
         never seen her arm wrestle or roughhouse with their children.  He 
 
         denied engaging in arm wrestling himself due to a shoulder injury 
 
         which he has suffered.
 
         
 
              Charles White, Jr., testified that he has observed swelling 
 
         in claimant's right wrist and fingers prior to March 1, 1987 and 
 
         that she treated it herself with ice or an Ace wrap.  He stated 
 
         that early in the week her wrist was swollen and that he helped 
 
         her with supper.  He stated that he had told her to stay home, 
 
         but that she got up and went to work.
 
         
 
              Claimant's husband testified that on Friday of that week he 
 
         obtained a run with the truck.  He stated that they decided to 
 
         have Kim go along on the trip.  Claimant's husband stated that he 
 
         phoned Dr. Brown and obtained approval for her to go on the trip.
 
         
 
              Charles testified that his wife's reading ability is 
 
         approximately that of a child and that she cannot read well.
 
         
 
              Claimant was treated by orthopaedic surgeon William Follows, 
 
         M.D.  In a note dated March 31, 1987, he states, "It appears to 
 
         me that this is a work related condition in all probability 
 
         judging by the nature of her work."
 
         
 
              Notes from the Spencer Family Practice Center dated March 6, 
 
         1987 state:
 
         
 
              Much strenuous grasping effort required at work, blow to 
 
              radial aspect distal R forearm 3 March '87 apparently 
 
              on-the-job, developed much swelling and discomfort 
 
              initially, swelling has slowly subsided but still present, 
 
              now has discomfort radial aspect distal R forearm radiating 
 
              into thumb.
 
         
 
         (Exhibit 10, page 50)
 
         
 
              The termination of employment notice is dated March 10, 1987 
 
         and informs claimant that she has missed 52 days of work due to 
 
         illness and 23 days for other reasons and that she has been 
 
         warned verbally and in.writing.  The notice goes on to state that 
 
         her claim of a work injury was unwitnessed and was contradicted 
 
         by a statement from another employee (exhibit 12, page 73).
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              Claimant has the burden of proving by a preponderance of the 
 
         evidence that she received an injury on March 3, 1987 which arose 
 
         out of and in the course of her employment.  McDowell v. Town of 
 
         Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. Central 
 
         Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
              The injury must both arise out of and be in the course of 
 
         the employment.  Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 
 
         402, 68 N.W.2d 63 (1955) and cases cited at pp. 405-406 of the 
 
         Iowa Report.  See also Sister Mary Benedict v. St. Mary's Corp., 
 
         255 Iowa 847, 124 N.W.2d 548 (1963) and Hansen v. State of Iowa, 
 
         249 Iowa 1147, 91 N.W.2d 555 (1958).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              The words "arising out of" refer to the cause or source of 
 
         the injury.  McClure v. Union County, 188 N.W.2d 283, 287 (Iowa 
 
         1971); Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 402, 68 
 
         N.W.2d 63 (1955).  The "arising out of" requirement is satisfied 
 
         by showing a causal relationship between the employment and the 
 
         injury.  Sheerin v. Holin Co., 380 N.W.2d 415, 417 (Iowa 1986) .
 
         
 
              "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 v. Central Telephone Co., 261 
 
         Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
              The decision entered in this case turns largely upon 
 
         findings of credibility of the various witnesses.  There are 
 
         clearly irreconcilable differences between the testimony offered 
 
         by Kim White, Sarah Schnell and Charles White, Jr., and that 
 
         which was offered by Phyllis Richardson.
 
         
 
              It is recognized that the legal principles of preclusion of 
 
         res judicata do apply in administrative proceedings.  Board of 
 
         Supervisors, Carroll County v. Chicago & Northwestern Transp. 
 
         Co., 260 N.W.2d 813 (Iowa 1977).  At first glance it may appear 
 
         that preclusion would be appropriate, but Iowa Code section 96.6 
 
         places the burden of proving misconduct on an employer in Job 
 
         Service Division proceedings.  In order for Witco to prevail in 
 
         that proceeding, which it did not, it was necessary for Witco to 
 
         carry the burden of proving that claimant was not injured in the 
 
         course of her employment.  It was not necessary for claimant to 
 
         affirmatively prove that she was injured arising out of and in 
 
         the course of employment.  The undersigned's interpretation of 
 
         the Job Service decision is that the employer lost because it 
 
         failed to carry the burden of proving misconduct.  This 
 
         difference in the burden of proof prevents the offensive use of 
 
         issue preclusion in this case.  Bascom v. Joseph Schlitz Brewing 
 
         Co., 395 N.W.2d 879 (Iowa 1986); Hunter v. City of Des Moines, 
 
         300 N.W.2d 121 (Iowa 1981); Restatement (Second) of Judgments, 
 
         section 68.1.  It is therefore clear that the occurrence of 
 
         injury arising out of and in the course of employment is not 
 
         established through issue preclusion.
 
         
 
              When presiding at the hearing, the undersigned observed the 
 
         appearance and demeanor of all witnesses who testified.  Based 
 
         upon those observations, it is determined that the testimony from 
 
         Kim White, Sarah Schnell and Charles White, Jr., is credible and 
 
         that the testimony from Phyllis Richardson is not.
 
         
 
              The undersigned does not understand why the employer sought 
 
         a restricted work release from Dr. Brown when it apparently had 
 
         determined to terminate her employment due to excessive 
 
         absenteeism or making a false claim of a work-related injury.  
 
         The undersigned further does not understand why a considerable 
 
         amount of effort was made to introduce testimony that light-duty 
 
         work was available to the claimant when it was apparent that she 
 
         would not be allowed to work because her employment was being 
 
         terminated. The undersigned recognizes a major difference between 
 
         simply being able to read and being able to read proficiently.  
 
         The employer's action in preventing Charles White, Jr., from 
 
         accompanying his wife and explaining things to her is difficult 
 
         to understand.  Kim could have casually asked a coworker to 
 
         direct her to work assignments.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              When all the evidence in the case is considered and 
 
         credibility given to that which the undersigned finds to be 
 
         credible, it is determined that Kim White did strike her arm as 
 
         she alleged on March 3, 1987.  It is further found that the 
 
         diagnoses made by Drs. Brown and Follows are consistent and 
 
         correct.  Claimant therefore, has proven by a preponderance of 
 
         the evidence that she sustained an injury on March 3, 1987 which 
 
         arose out of and in the course of her employment with Witco 
 
         Chemical Corporation.
 
         
 
              Claimant's entitlement to compensation for temporary total 
 
         disability is established by stipulation at 7 5/7 weeks payable 
 
         commencing March 6, 1987.  Use of the term "temporary total 
 
         disability" is not intended to indicate that there was no 
 
         permanent partial disability as such issue is not before the 
 
         undersigned for consideration.
 
         
 
              Claimant's medical expenses are set out in exhibit 27.  Upon 
 
         reviewing the same, it is found that defendants are responsible 
 
         for payment of claimant's treatment with Physical Therapy 
 
         Services, P.C., in the amount of $705.00.  The treatment was 
 
         ordered by Dr. Follows as shown in exhibit 5 and was provided 
 
         between the dates of March 20, 1987 and May 11, 1987, the time 
 
         when claimant was under his active treatment.  It is also 
 
         determined that defendants are responsible for payment of 
 
         claimant's charges with Dr. Follows in the amount of $120.00, 
 
         that expense having been incurred from March 17, 1987 to May 13, 
 
         1987. Defendants are also responsible for payment of $61.00 of 
 
         claimant's expenses at North Iowa Medical Clinic.  The treatment 
 
         provided to claimant on March 6, 1987 for which $45.00 was 
 
         charged and treatment provided on March 16, 1987 for which $16.00 
 
         was charged are the specific charges for which defendants are 
 
         responsible.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              1.  Kim White, Sarah Schnell and Charles White, Jr., are 
 
         fully credible witnesses and their testimony is given weight over 
 
         any conflicting testimony in the record from other witnesses.
 
         
 
              2.  Kim White injured her right arm through repetitive 
 
         movement and also from striking it on March 3, 1987 in the manner 
 
         in which she testified.
 
         
 
              3.  Claimant incurred the following charges in obtaining 
 
         treatment for that injury:
 
         
 
              Physical Therapy Services, P.C.  $705.00
 
              William Follows, M.D.             120.00
 
              North Iowa Medical Clinic          61.00
 
              Total                            $886.00
 
         
 
                                CONCLUSIONS OF LAW
 
          
 

 
          
 
 
 
 
 
 
 
 
 
 
 
              1.  This agency has jurisdiction of the subject matter of 
 
         this proceeding and its parties.
 
              
 
              2.  Kim White sustained an injury on March 3, 1987 which 
 
         arose out of and in the course of her employment with Witco 
 
         Chemical Corporation.
 
              
 
              3.  Kim White is entitled to recover 7 5/7 weeks of 
 
         compensation for temporary total disability payable at the 
 
         stipulated rate of $130.10 per week commencing March 6, 1987.
 
              
 
              4.  Claimant is entitled to recover from defendants the 
 
         following medical expenses:
 
         
 
              Physical Therapy Services, P.C.  $705.00
 
              William Follows, M.D.             120.00
 
              North Iowa Medical Clinic          61.00
 
              Total                            $886.00
 
         
 
         Defendants are entitled to credit under Iowa Code section 
 
         85.38(2) in the amount of $74.00 as stipulated by the parties.
 
         
 
                                      ORDER
 
         
 
              IT IS THEREFORE ORDERED that defendants pay claimant seven 
 
         and five-sevenths (7 5/7) weeks of compensation at the stipulated 
 
         rate of one hundred thirty and 10/100 dollars ($130.10) per week 
 
         payable commencing March 6, 1987.  The entire amount thereof is 
 
         past due and owing and shall be paid in a lump sum together with 
 
         interest pursuant to Iowa Code section 85.30.
 
         
 
              IT IS FURTHER ORDERED that defendants pay the following 
 
         medical expenses less credit for seventy-four and 00/100 dollars 
 
         ($74.00) previously paid under the group medical insurance plan:
 
         
 
              Physical Therapy Services, P.C.  $705.00
 
              William Follows, M.D.            .120.00
 
              North Iowa Medical Clinic          61.00
 
              Total                            $886.00
 
         
 
              IT IS FURTHER ORDERED that defendants pay the costs of this 
 
         action pursuant to Division of Industrial Services Rule 343-4.33.
 
         
 
              IT IS FURTHER ORDERED that defendants file claim activity 
 
         reports as requested by this agency pursuant to Division of 
 
         Industrial Services Rule 343-3.1.
 
         
 
              Signed and filed this 7th day of February, 1990.
 
         
 
         
 
         
 
         
 
         
 
                                            MICHAEL G. TRIER
 
                                            DEPUTY INDUSTRIAL COMMISSIONER
 

 
                                            
 
 
 
 
 
 
 
 
 
 
 
         
 
         Copies To:
 
         
 
         Mr. Joseph L. Fitzgibbons
 
         Mr. Ned A. Stockdale
 
         Attorneys at Law
 
         108 North Seventh Street
 
         P.O. Box 496
 
         Estherville, Iowa  51334
 
         
 
         Ms. Dorothy L. Kelley
 
         Attorney at Law
 
         500 Liberty Building
 
         Des Moines, Iowa  50309
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
                                            
 
 
 
 
 
 
 
 
 
 
 
                                            1402.20, 1402.30, 2901
 
                                            3700
 
                                            Filed February 7, 1990
 
                                            MICHAEL G. TRIER
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         KIM WHITE,
 
         
 
              Claimant,
 
         
 
         vs.
 
         
 
                                                      File No. 843993 
 
         WITCO CHEMICAL CORP.,
 
                                                   A R B I T R A T I 0 N 
 
              Employer,
 
                                                      D E C I S I 0 N
 
         and
 
         
 
         HOME INSURANCE COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         1402.20, 1402.30
 
         
 
              The case was essentially a credibility contest between 
 
         claimant and her two witnesses versus a former coemployee. 
 
         Claimant and her two witnesses were found to be credible rather 
 
         than the former coemployee.  Claimant's testimony regarding the 
 
         manner in which she was injured was accepted as being correct.
 
         
 
         2901, 3700
 
         
 
              A prior Job Service proceeding determined that the employer 
 
         had failed to prove misconduct in the form of claimant falsifying 
 
         an on-the-job injury.  It was held that issue preclusion and res 
 
         judicata do not apply since the burden of proving misconduct is 
 
         on the employer under Iowa Code section 96.6 in the Job Service 
 
         proceeding while the burden of proving injury arising out of and 
 
         in the course of employment is on the claimant in proceedings 
 
         before this agency.
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         MARK D. TUFTE,
 
         
 
              Claimant,
 
                                         File  No. 844293
 
         VS.
 
         
 
         TAMA MEAT PACKING CORP.,         A R B I T R A T I 0 N
 
         
 
              Employer,
 
                                         D E C I S I 0 N
 
          and
 
          
 
          KEMPER GROUP,
 
          
 
               Insurance Carrier,
 
               Defendants.
 
         
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding in arbitration brought by the claimant, 
 
         Mark D. Tufte, against Tama Meat Packing Corporation, employer, 
 
         and Kemper Group, insurance carrier, to recover benefits as a 
 
         result of an alleged injury sustained on February 19, 1987.  This 
 
         matter came on for hearing before the deputy industrial 
 
         commissioner in Des Moines, Iowa on September 21, 1989.  The 
 
         record consists of the testimony of the claimant; Jeff Slegle and 
 
         Karen Skala; and joint exhibits A through G.
 
         
 
                                      ISSUES
 
         
 
              The issues the parties set out in the prehearing report for 
 
         resolution are:
 
         
 
              1. Whether claimant's injury arose out of and in the course 
 
         of his employment.
 
         
 
              2. Whether claimant's disability is causally connected to 
 
         his injury.
 
         
 
              3. The nature and extent of claimant's disability.
 
         
 
              4. Claimant's entitlement to 85.27 medical benefits.
 
         
 
                              REVIEW OF THE EVIDENCE
 
         
 
              Claimant testified he is a 1977 high school graduate and 
 
         obtained a two year general studies science degree from 
 
         Marshalltown Community College in 1979 and a degree in agronomy 
 
         from Iowa
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         TUFTE V. TAMA MEAT PACKING CORP.
 
         Page 2
 
         
 
         
 
         State University in 1981.  Claimant said he basically farmed full 
 
         or part time until 1986 when he quit due to financial problems.  
 
         Claimant related various other jobs he had before becoming 
 
         employed February 5, 1987 in the boning room at defendant 
 
         employer.  These other jobs involved supervising children and 
 
         maintenance work as a ranger at a Texas Boy Scout camp, painting 
 
         houses, remodeling bathrooms, and testing grain.
 
         
 
              Claimant described his work at defendant employer as 
 
         physically demanding, especially when he would have to put a 100 
 
         pound quarter of beef or pig back on a hook after it fell off.  
 
         Claimant said he was required to stand all the time.  His work 
 
         shift was 2 p.m. to 10:30 or 11 p.m..
 
         
 
              Claimant testified that on February 19, 1987 his department 
 
         was short of help by 50 percent and people were missing the hooks 
 
         or the quarter of beef or pig were falling off the hooks.  
 
         Claimant said he had to pick up the quarter of meat by himself to 
 
         replace on the hooks.  Claimant acknowledged that usually two 
 
         people are there to pick up the fallen meat, but on this date, 
 
         the other helper had gone to the bathroom and all the other 
 
         people present did not help.  Claimant said his leg became stiff 
 
         and sore and he was also having arm trouble.  Claimant stated his 
 
         leg became worse the next week and his arm bothered him.  
 
         Claimant said he notified the supervisor who told him to see the 
 
         nurse.  Claimant emphasized he is making no arm injury claim.  
 
         Claimant stated his leg became sore and stiff night and day and 
 
         started tingling.  Claimant said he told the company nurse that 
 
         his leg hurt.
 
         
 
              Claimant testified he quit defendant employer on February 
 
         26, 1987 because he was hired by Donaldson Company of Grinnell, 
 
         Iowa for more money and was to begin March 19, 1987.  Claimant 
 
         acknowledged his interview was February 6, 1987, the day after he 
 
         began the Tama Packing job.  Claimant indicated he quit two weeks 
 
         early so that he could get well.  Claimant said his leg started 
 
         to get worse and when he stooped over, pain would shoot into his 
 
         back.
 
         
 
              Claimant then sought medical help from James R. Paulson, 
 
         M.D., who prescribed muscle relaxers.  Claimant said he 
 
         eventually had therapy and hot packs.  Claimant stated he then 
 
         was referred to Ronald R. Reschly, M.D., an orthopedic surgeon, 
 
         who performed a CAT scan on the claimant.  Claimant said the CAT 
 
         scan showed problems and surgery was performed one week later.  
 
         Claimant related that on the week before surgery, he was walking 
 
         in a bent over position and was in extreme pain.  Claimant said 
 
         the pain and numbness went away within two weeks of his surgery 
 
         and he was able to return to work in late 1987.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Claimant said he did not begin work with Donaldsons as 
 
         planned due to his surgery.  Claimant stated he was a salesman of 
 
         livestock feed late 1987 until March 1988 making $150 per
 
         
 
         
 
         
 
         TUFTE V. TAMA MEAT PACKING CORP.
 
         Page 3
 
         
 
         
 
         week on a commission basis including mileage.  Claimant related 
 
         that he did not sell much and never did sales work before.  
 
         Claimant said he began work with American Turf as a turf 
 
         specialist in March 1988.  Claimant emphasized he liked this job 
 
         which involves measuring lawns, mixing 50 pound bags of 
 
         fertilizer, aerating, seeding, running machines across lawns, 
 
         consulting as to lawn disease and signing up customers.  Claimant 
 
         testified he made $21,000 this year.  Claimant said he is getting 
 
         along good and has no back pains, but at the end of the work day 
 
         he is a little stiff.  Claimant indicates he is careful now about 
 
         what and how he lifts.  Claimant emphasized he has had no intent 
 
         to return to farming but he said he couldn't do the type of farm 
 
         work he had done before because of the lifting requirements.  
 
         Claimant acknowledged that he agrees with Dr. Reschly that 
 
         claimant has made a great recovery.
 
         
 
              Jeff Slagle testified he has been employed nine years with 
 
         defendant employer and the last five as supervisor over 140 
 
         people.  He acknowledged that in February 1987, there was a new 
 
         night shift of 45 to 50 people.  Slagle disputes claimant's 
 
         testimony that claimant picked up meat alone that fell off the 
 
         hook.  He contends four or five people would be in the area and 
 
         it would require two people to pick up the fallen meat.  Slagle 
 
         did acknowledge that meat has fallen on the floor, but it doesn't 
 
         slip off the hook.  He also contends that once the quarter of 
 
         beef is hooked, it rarely falls off the hook.  Slagle emphasized 
 
         that an injury report form is always filed, even if it involves a 
 
         hangnail.  He stated there was no report in claimant's file.  
 
         Slagle insisted he couldn't recall any claimant injury and if 
 
         there were an injury, claimant would have been sent to Dr. 
 
         Mallory.  Slagle testified that less than 50 percent of the 
 
         workers on the night shift in February 1987 were on probation and 
 
         not qualified yet.  Slagle does not recall getting claimant a 
 
         bandaid for his hand, but if he did, he would have made a report.
 
         
 
              Karen Skala testified she is a registered nurse and has 
 
         worked for defendant employer approximately six and one half 
 
         years.  She said her duties include providing for all first aid 
 
         cases, emergency care, dressing changes, paper work, attendance 
 
         records, nurses notes, processing workers' compensation and 
 
         insurance papers, and helping pre-employment physicals.  Skala 
 
         emphasized she keeps a record of every worker who comes to her 
 
         office on an injury.  She indicated her records show a 2-24 and 
 
         2-26-87 "right arm sore" notations.  Her notes on February 5, 
 
         1987 indicate claimant had hand problems at the time of his 
 
         employment.  Skala said her first notice of claimant's alleged 
 
         leg pain was April 22, 1987.  She contends that if claimant came 
 
         to her, she would have noted it in the record.  She said she 
 
         doesn't ever remember seeing claimant or recalls wrapping his 
 
         arm.  She insists that she would have made notations on 
 
         claimant's records, and since there are no notations, 
 
         conversations did not occur.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         TUFTE V. TAMA MEAT PACKING CORP.
 
         Page 4
 
         
 
         
 
              Dr. Reschly's records on April 2, 1987 in part reflect:
 
         
 
                 This patient has an obvious disc herniation at L5-Sl on 
 
              both physical' examination and on CT scan.  He has 
 
              remarkable lateral shift which apparently is protective for 
 
              him.  I do not really detect strength losses, but these are 
 
              hard to quantitate in the fact of his significant pain.  I 
 
              think it would be wise to go ahead and get EMG's of him to 
 
              verify what muscles are involved and to go ahead and get a 
 
              myelogram since there is some question on CT scan of some 
 
              additional problems at L4-5.  We have scheduled the 
 
              myelogram and EMG as an inpatient for 4/7/87 and on 4/8/87 
 
              we are planning to go ahead and do the diskectomy at L5-Sl.  
 
              I have talked with the patient about expectations of back 
 
              surgery, and limitations afterwards, and in fact of the 
 
              limited expectation of back surgery.  The patient 
 
              understands this, but clearly understands that he cannot 
 
              really keep on going the way he is and wishes to proceed on 
 
              with the surgery.
 
              
 
         (Joint Exhibit D, Page 21)
 
         
 
              On June 16, 1987 Dr. Reschly's records reflect:
 
         
 
                 The patient returns today doing quite well.  He has no 
 
              complaints of pain, he is able to touch his toes, lateral 
 
              bending is benign, straight leg raising is negative.
 
              
 
                 With the patient's excellent improvement at the present 
 
              time, I am going to turn him over to a prn basis.  The 
 
              patient does wish to go to work as a salesman, and he would 
 
              be lifting a few 50 pound bags of feed a day.  This would be 
 
              okay,-- as far as I am concerned, especially considering the 
 
              patient's size, and I will allow him to return to work 
 
              without restriction other than common sense ones which I 
 
              have enumerated to him, and he would return to work on 
 
              6/22/87.  He will see me in follow up prn.
 
              
 
         (Jt. Ex. A, P. 2)
 
         
 
              On December 5, 1988 Dr. Reschly wrote:
 
         
 
              Mark Tufte had a discectomy at L5-Sl for a right sided 
 
              herniated disc at L5-Sl with a right Sl radiculitis.  His 
 
              prognosis apparently is good based on his clinical course to 
 
              date as I understand it.
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         TUFTE V. TAMA MEAT PACKING CORP.
 
         Page 5
 
         
 
         
 
              ...[I]n the history that the patient has given to me, it was 
 
              quite clear to me that the patient had incurred his problems 
 
              while working for Tama Meat Packing Company.  He related 
 
              that to me from the time that I first saw him, although I 
 
              have incompletely documented this in my clinical notes.  To 
 
              my memory, the patient in fact had quit at the Tama Packing 
 
              Company because of the recurring injuries that he had there.  
 
              He was able to signify that one of the injuries was more 
 
              severe than the others.  The patient was thoroughly clear at 
 
              the time in indicating that his problems have not come from 
 
              Donaldson's.
 
              
 
              ... [T]o a reasonable degree of medical certainty, the 
 
              patient was disabled until 6-16-87.  He was disabled from 
 
              the time that I first saw him, and for an unknown amount of 
 
              time prior to that.
 
              
 
                 I had perceived very little residual to the patient but 
 
              also cognizant of the fact that the patient did have a 
 
              remarkably herniated disc at L5-Sl, I have assigned 5% 
 
              permanent/partial whole body impairment to the patient 
 
              because of the ruptured disc at L5-Sl. . This is in 
 
              accordance with the American Medical Association "Guide to 
 
              the Evaluation of Permanent Impairment" second edition.
 
              
 
                 I have placed on Mr. Tufte several restrictions, 
 
              including "common sense ones".  Basically, I informed the 
 
              patient that he should not do repetitive bending at the 
 
              waist.  He should not do repetitive or prolonged "reaching 
 
              activities", and that he should lift 50 pounds only a few 
 
              times a day, as long as it was close towards him.  He would 
 
              be able to be on his feet indefinitely, although he probably 
 
              would do better at a job that allows him to do some sitting 
 
              along with mostly standing and walking.
 
         
 
         (Jt. Ex. A, P. 3)
 
         
 
              Dr. J. R. Paulson's records on February 12, 1987 reflect: a 
 
         physical exam was given to claimant as a Donaldson's, Inc. 
 
         pre-employment requirement.  This.exam gave claimant a good 
 
         health report other than being somewhat overweight and a 
 
         borderline blood pressure condition..' Claimant's back screening 
 
         was good in every one of the six categories tested. (Jt. Ex. C, 
 
         P.
 
         10)   On August 16, 1988 Dr. Paulson wrote:
 
         
 
              Mr. Tufte's shift probably occurred between 3/9/87 and 
 
              3/24/87. usually this is a gradual shifting.  It was 
 
              certainly noticeable by the time I saw him back on the 27th.
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         TUFTE V. TAMA MEAT PACKING CORP.
 
         Page 6
 
         
 
         
 
              The back surgery was necessitated because of the lumbar disk 
 
              disease, one of the manifestations of which may be lumbar 
 
              lateral shift.  The herniated disk, L5-Sl, was probably the 
 
              underlying etiology of the shift and in retrospect explained 
 
              the pain in the right ham string area.
 
         
 
         (Jt. Ex.  C, P. 12)
 
         
 
              Dr. W. Hunter, a roentgenologist at Grinnell General 
 
         Hospital, reported on April 7, 1987: "CONCLUSION: Large herniated 
 
         disc fragment identified at L5-Sl.  There is a mild to moderate 
 
         anterior bluging of the disc at L4-L5 as well." (Jt. Ex. D, P. 
 
         30)
 
         
 
              Dr. Hunter on May 18, 1987 reported: "Alignment of the 
 
         vertebra is satisfactory.  The bones and intervertebral discs are 
 
         basically normal in configuration.  CONCLUSION: Satisfactory 
 
         alignment of the vertebral noted in the post-operative status as 
 
         described above." (Jt. Ex. D, P. 31)
 
         
 
                                  APPLICABLE LAW
 
         
 
              Claimant has the burden of proving by a preponderance of the 
 
         evidence that he received an injury on February 19, 1987 which 
 
         arose out of and in the course of his employment.  McDowell v. 
 
         Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. 
 
         Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury of February 19, 1987 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).
 
         
 
              However, expert medical evidence must be considered with all 
 
         other evidence introduced bearing on the causal connection.  
 
         Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion of experts need 
 
         not be couched in definite, positive or unequivocal language. 
 
         Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974).  However, 
 
         the expert opinion may be accepted or rejected, in whole or in 
 
         part, by the trier of fact.  Id. at 907.  Further, the weight to 
 
         be given to such an opinion is for the finder of fact, and that 
 
         may be affected by the completeness of the premise given the 
 
         expert and other surrounding circumstances.  Bodish, 257 Iowa 
 
         516, 133 N.W.2d 867.  See also Musselman v. Central Telephone
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         TUFTE V. TAMA MEAT PACKING CORP.
 
         Page 7
 
         
 
         
 
         Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
              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."
 
         
 
              The opinion of the supreme court in Olson v. Goodyear 
 
         Service Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963) at 
 
         1121,____, cited with approval a decision of the industrial 
 
         commissioner for the following proposition:
 
         
 
              Disability * * * as defined by the Compensation Act means 
 
              industrial disability, although functional disability is an 
 
              element to be considered . . . In determining industrial 
 
              disability, consideration may be given to the injured 
 
              employee's age, educational qualifications, experience and 
 
              his inability, because of the injury, to engage in 
 
              employment for which he is fitted. * * * *
 
         
 
         
 
                                     ANALYSIS
 
         
 
              Claimant is 30 years old and has a degree in agronomy plus a 
 
         two year community college degree in general studies and 
 
         associate science.  Claimant farmed full and part time for 
 
         several years until he could no longer financially survive.  This 
 
         was heavy work and appears claimant could not go back to this 
 
         type of work due to his February 19, 1987 injury.  Claimant has 
 
         no desire to return to farming, but appears it would not be 
 
         advisable anyway.  There is some initial confusion as to whether 
 
         the alleged injury occurred on February 19, 1987 or possibly on 
 
         one or few days earlier or later.  It is obvious that the 
 
         etiology from which claimant's complaint arose occurred on or 
 
         around February 19, 1987.  This is not important under the 
 
         circumstances and the status of this record.  The undersigned 
 
         finds the injury occurred on or about February 19, 1987.
 
         
 
              Defendant contends claimant's injury did not arise out of 
 
         and in the course of his employment.  The greater weight of 
 
         evidence shows claimant had a physical exam on February 12, 1987 
 
         in anticipation of obtaining a better paying job at Donaldsons.  
 
         This physical basically showed claimant in good health including 
 
         his back.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         TUFTE V. TAMA MEAT PACKING CORP.
 
         Page 8
 
         
 
         
 
              Defendants employer's supervisor doesn't believe claimant 
 
         could have injured himself, especially from picking up a quarter 
 
         of beef alone.  He doesn't believe any meat fell off the hook.  
 
         Of course, Mr. Slagle wasn't there so he is obviously upholding 
 
         the defendant employer's position of no injury.  The company 
 
         nurse had no record of a reported injury.  She contends the 
 
         defendant employer and herself are infallible when it comes to 
 
         keeping records on employee's injuries.  The testimony is so 
 
         diverse in this area, that it comes down to who is telling the 
 
         truth.  Taking the evidence as a whole and considering the 
 
         circumstances surrounding the event and the events occurring just 
 
         before and shortly thereafter, the undersigned finds claimant's 
 
         testimony is the most credible.  The undersigned finds that 
 
         claimant incurred an injury at work to his low back area on or 
 
         around February 19, 1987 while lifting a quarter of beef.  There 
 
         is no other credible evidence that claimant's herniated disc at 
 
         L5-Sl occurred other than on around February 19, 1987.  It is 
 
         found that claimant's low back injury is causally connected to 
 
         his work injury on or around February 19, 1987.
 
         
 
              The evidence shows claimant made remarkable recovery from 
 
         his lumbar laminectomy and right L5-Sl diskectomy on April 8, 
 
         1987.  Claimant is employed and making as much or more than he 
 
         has ever made per year.  Claimant has a 5 percent permanent 
 
         partial impairment to his body as a whole because of the ruptured 
 
         disc as opined by Dr. Reschly. (Jt. Ex. A, P. 3) The doctor 
 
         advised claimant not to do repetitive or prolonged "reaching 
 
         activities and that he should lift 50 pounds only a few times a 
 
         day, as long as it was close towards him.  He would be able to be 
 
         on his feet indefinitely, although he would do better in a job 
 
         that allows him to do some sitting along with mostly standing and 
 
         walking periods."   (Jt. Ex. A, P. 3)
 
         
 
              Claimant reached maximum healing on June 22, 1987 at which 
 
         time claimant's back surgeon indicated claimant could return to 
 
         work.  Claimant's healing period is February 19, 1987 up to and 
 
         including June 21, 1987 which totals 17.571 weeks.  Claimant is 
 
         young, intelligent and seems motivated.  He has been fortunate to 
 
         recover as well as has from back surgery.  Although surgery has 
 
         been successful, claimant has some restrictions and has a back 
 
         unlike a normal back.  Claimant has a loss of earning capacity 
 
         but not as great as it could have been.  Claimant's age helped.  
 
         It is obvious in the market place that a person with a good back 
 
         who has had no back surgery has a greater earning capacity than 
 
         one who has had back surgery, even if the surgery was successful.  
 
         Taking into consideration claimant's age, intelligence, 
 
         motivation and all other factors that are to be considered to be 
 
         determining industrial disability, the undersigned finds 
 
         claimant's has 10 percent industrial disability.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         TUFTE V. TAMA MEAT PACKING CORP.
 
         Page 9
 
         
 
         
 
              The sole remaining issue is whether claimant's is entitled 
 
         to have his medical bills which total $7,642.60 (Jt. Ex. G), paid 
 
         by defendants under 85.27.  Defendants denied any liability for 
 
         claimant's injury.  Defendants had an opportunity to seek its own 
 
         medical doctor.  By denying liability, defendants are in no 
 
         position to raise 85.27 in good faith.  The medical care provided 
 
         claimant was good, reasonable and necessary.  In fact, claimant 
 
         had remarkable recovery.  Defendants cannot find fault with the 
 
         medical care provided claimant.  Defendants shall pay claimant's 
 
         medical as set out in joint exhibit G.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              Claimant incurred an herniated L5-Sl disc on or around 
 
         February 19, 1987 while lifting a quarter of beef at Tama Meat 
 
         Packing.
 
         
 
              Claimant incurred a 5 percent permanent partial impairment 
 
         to his body as a whole as a result of his work injury to his 
 
         L5-Sl disc on or around February 19, 1987.
 
         
 
              Claimant incurred a healing period beginning February 19, 
 
         1987 to and including June 21, 1987 totaling 17.571 weeks at the 
 
         weekly rate of $136.85.
 
         
 
              Claimant has restrictions of not doing repetitive or 
 
         prolonged reaching activities, not lifting 50 pounds more than a 
 
         few times a day, as long as it is close towards him.  As a result 
 
         of his work related injury on or around February 19, 1987.
 
         
 
              Claimant incurred a lumbar laminectomy and right L5-Sl 
 
         discectomy as a result of his work related on or about February 
 
         19, 1987.
 
         
 
              Claimant has a reduction in earning capacity.
 
         
 
              Claimant is entitled to have his medical bills incurred as a 
 
         result of his injury on or around February 19, 1987 totaling 
 
         $7,642.60 paid by the defendants.
 
         
 
                                   CONCLUSIONS
 
         
 
              Claimant's lumbar back injury of L5-Sl arose out of and in 
 
         the course of claimant's employment on or around February 19, 
 
         1987.
 
         
 
              Claimant's herniated L5-Sl disc and resulting surgery and 5 
 
         percent permanent partial impairment is causally connected to 
 
         claimant's work injury on or around February 19, 1987.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Claimant has a 10 percent industrial disability.
 
         
 
         
 
         
 
         TUFTE V. TAMA MEAT PACKING CORP.
 
         Page 10
 
         
 
         
 
              Claimant is entitled to healing period benefits from 
 
         February 19, 1987 to and including June 21, 1987 totaling 17.571 
 
         weeks at the rate of $136.85.
 
         
 
              Defendants shall pay claimant's medical bills set out in 
 
         joint exhibit G which total $7,642.60.
 
         
 
                                      ORDER
 
         
 
              THEREFORE it is ordered:
 
         
 
              That defendants shall pay unto claimant healing period 
 
         benefits at the rate of one hundred thirty six and 85/100 dollars 
 
         ($136.85) for the period beginning February 19, 1987 to and 
 
         including June 21, 1987 totaling seventeen point five seven one 
 
         weeks (17.571).
 
         
 
              That defendants shall pay unto claimant fifty weeks (50) of 
 
         permanent partial disability benefits at the rate of one hundred 
 
         thirty five and 85/100 dollars ($135.85) per week beginning June 
 
         22, 1987.
 
         
 
              That defendants shall pay the accrued weekly benefits in a 
 
         lump sum and shall receive credit against the award for weekly 
 
         benefits previously paid, if any.
 
         
 
              That defendants shall pay claimant's medical expenses that 
 
         are set on joint exhibit G which currently total seven thousand 
 
         six hundred forty two and 60/100 dollars ($7,642.60).
 
         
 
              That defendants shall pay interest on benefits awarded 
 
         herein and set forth in Iowa Code section 85.30.
 
         
 
              That defendants shall pay the costs of this action pursuant 
 
         to Division of Industrial Services Rule 343-4.33.
 
         
 
              That defendants shall file an activity report upon payment 
 
         of this award as required by this agency pursuant to Division of 
 
         Industrial Services Rule 343-3.1.
 
         
 
              Signed and filed this 27th day November, 1989.
 
         
 
         
 
         
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
                                         BERNARD J. O'MALLEY
 
                                         DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         
 
         
 
         TUFTE V. TAMA MEAT PACKING CORP.
 
         Page 11
 
         
 
         
 
         
 
         Copies To:
 
         
 
         Mr. David D. Drake
 
         Attorney at Law
 
         West Towers Office Complex 
 
         1200 35th Street, Ste. 500
 
         West Des Moines, Iowa 50265
 
         
 
         Mr. Joseph S. Cortese II
 
         Attorney at Law
 
         1000 Des Moines Bldg.
 
         Des Moines, Iowa 50309
 
         
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                                         51100-51108-51803
 
                                         Filed November 17, 1989
 
                                         BERNARD J. O'MALLEY
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         MARK D. TUFTE,
 
         
 
              Claimant,
 
                                         File No. 844293
 
         
 
         VS.
 
         
 
         TAMA MEAT PACKING CORP.,         A R B I T R A T I 0 N
 
         
 
              Employer,
 
                                         D E C I S I 0 N
 
         
 
         and
 
         
 
         KEMPER GROUP,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
         5-1100 5-1108 5-1803
 
         
 
         
 
              Claimant awarded 10 percent Industrial Disability for back 
 
         injury resulting in herniated L5-Sl disc.  Claimant had surgery 
 
         and remarkable recovery.  Doctor opined 5 percent permanent 
 
         partial impairment.  Claimant working at new job making as much 
 
         or more as prior job.
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         
 
         LAWRENCE A. McDONALD,
 
                                         File No. 844345
 
              .Claimant,
 
                                         A R B I T R A T I 0 N
 
         VS.
 
                                           D E C I S I O N
 
         IOWA BEEF PROCESSORS, INC.,
 
         
 
               Employer,
 
               Self-Insured,
 
               Defendant.
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              This is a proceeding in arbitration brought by Lawrence A. 
 
         McDonald, claimant, against IBP, Inc., employer (hereinafter 
 
         referred to as IBP), a self-insured defendant, for workers' 
 
         compensation benefits as a result of an alleged injury on 
 
         November 6, 1986.  On March 23, 1990, a hearing was held on 
 
         claimant's petition and the matter was considered fully submitted 
 
         at the close of this hearing.
 
         
 
              The parties have submitted a prehearing report of contested 
 
         issues and stipulations which was approved and accepted as a part 
 
         of the record of this case at the time of hearing.  Oral 
 
         testimony and written exhibits were received during the hearing 
 
         from the parties.  The exhibits offered into the evidence are 
 
         listed in the prehearing report.
 
         
 
              According to the prehearing report, the parties have 
 
         stipulated to the following matters:
 
         
 
              1. An employee/employer relationship existed between 
 
         claimant and IBP at the time of the alleged injury.
 
         
 
              2. Claimant is not seeking temporary total or healing period 
 
         benefits.
 
         
 
              3. If the injury is found to have caused permanent 
 
         disability, the type of disability is an occupational hearing 
 
         loss under Chapter 85B of the Iowa Code.
 
         
 
              4. Claimant's rate of weekly compensation in the event of an 
 
         award of weekly benefits from this proceeding shall be $225.62.
 
         
 
         
 
         
 
         McDONALD V. IOWA BEEF PROCESSORS, INC.
 
         Page 2
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
                                      ISSUES
 
         
 
              The parties submitted the following issues for determination 
 
         in this proceeding pursuan to the prehearing  report.
 
         
 
              I. Whether claimant received an occupational hearing loss as 
 
         defined by Chapter 85B.
 
         
 
              II. The extent of claimant's entitlement to benefits under 
 
         Chapter 85B.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              Having heard the testimony and considered all the evidence, 
 
         the deputy industrial commissioner finds as follows:
 
         
 
              Claimant is a 40 year old meat packer who was employed by 
 
         IBP at the Denison plant from 1967 until November 6, 1986.  
 
         Claimant performed various meat packing jobs for IBP such as 
 
         boner, cheeker, head chisel, dropped heads, wash heads, and down 
 
         and up puller, including operation of an electric Wizard knife.  
 
         Claimant was exposed to plant noise in the Denison plant.  A 
 
         plant noise program was implemented in 1976 after which employees 
 
         were issued and required to wear earplugs.  Claimant wore these 
 
         plugs after that time and claimant indicated that the plugs 
 
         worked "fairly well."
 
         
 
              When claimant was hired he had good hearing.  However, after 
 
         working at the Denison plant for five years, claimant began to 
 
         develop a ringing noise in his ears which is medically termed 
 
         "tennitus."  This condition progressively worsened after that 
 
         time.  This tennitus condition is aggravated by background noise 
 
         and at times it is hard for claimant to comprehend conversations.
 
         
 
              Testing of claimant's hearing loss under the direction of 
 
         William Wilder, M.D., a board certified otolaryngologist, 
 
         indicates that claimant has normal hearing at the following 
 
         frequencies: 250, 500, 1000, 2000 and 3000 Hertz.  Claimant has 
 
         moderately severe sensorineural hearing loss at the 4,000, 6,000 
 
         and 8,000 Hertz frequency levels.  This hearing loss is 
 
         permanent.
 
         
 
              There is no treatment recommended by any physician for 
 
         claimant's hearing loss and use of a hearing aid would only 
 
         marginally improve his ability to communicate.  This finding is 
 
         based upon the uncontroverted opinion of Dr. Wilder in his report 
 
         of January 23, 1987.  Claimant believes that a hearing device 
 
         called "miracle ear" could help but he offered no medical 
 
         evidence to support his belief.
 
         
 
         
 
         
 
         McDONALD V. IOWA BEEF PROCESSORS, INC.
 
         Page 3
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
              Claimant was in the National Guard from 1967 until 1973. In 
 
         conjunction with his guard duties, he was required to shoot a 90 
 
         mm. recoilless rifle a few times each year at summer camp.  
 
         Claimant owns his own motorcycle which he drives once or twice a 
 
         week.  Claimant has been a pheasant hunter since age 15.
 
         
 
              Claimant returned to work in a meat packing plant in 
 
         December 1989. Claimant says that this is not a high noise area.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              Iowa Code section 85B.4(l) defines occupational hearing loss 
 
         as follows:
 
         
 
              [A] permanent sensorineural loss  of  hearing in one
 
              or both ears in excess of twenty-five decibels if
 
              measured from international standards organization
 
              or American national standards institute zero
 
              reference level, which arises out of and in the
 
              course of employment caused by prolonged exposure
 
              to excessive noise levels.
 
         
 
              This definition further states as follows:
 
         
 
              In the evaluation of occupational hearing loss,
 
              only the hearing levels at the frequencies of five
 
              hundred, one thousand, two thousand, and three
 
              thousand Hertz shall be considered.
 
         
 
              With reference to employer liability for hearing aids in 
 
         occupational hearing loss situations, Iowa Code section 85B.12 
 
         states, in part, as follows:
 
         
 
              An employer who is liable for occupational hearing
 
              loss of an employee is required to provide the
 
              employee with a hearing aid unless it will not
 
              materially improve the employee's ability to com-
 
              municate.
 
         
 
              In the case sub judice, given the findings that claimant has 
 
         normal hearing at the four frequency levels considered under 
 
         Chapter 85B, claimant has no occupational hearing loss claim.  
 
         Also, given the finding that claimant's hearing will only 
 
         marginally improve his ability to communicate, he likewise has no 
 
         claim for a hearing aid.  Even if we assume that claimant's 
 
         hearing loss is causally connected to work, claimant is not 
 
         entitled to benefits.  Therefore, there is no need to deal with 
 
         the issue of the cause of claimant's noncompensable upper 
 
         frequency hearing loss.
 
         
 
         
 
         
 
         McDONALD V. IOWA BEEF PROCESSORS, INC.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         Page 4
 
         
 
         
 
                                      ORDER
 
         
 
              1. Claimant's petition is hereby dismissed.
 
         
 
              2. Claimant shall pay the costs of this action pursuant to 
 
         Division of Industrial Services Rule 343-4.33.
 
         
 
         
 
         
 
              Signed and filed this 14th day of June, 1990.
 
         
 
         
 
         
 
         
 
         
 
         
 
                                         LARRY P. WALSHIRE
 
                                         DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Robert Kohorst
 
         Attorney at Law
 
         602 Market St Bldg
 
         Harlan  IA  51537
 
         
 
         Mr. Marlon D. Mormann
 
         Attorney at Law
 
         P 0 Box 515
 
         Dept #41
 
         Dakota City  NE  68731
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                                         5-2208
 
                                         Filed June 14, 1990
 
                                         LARRY P. WALSHIRE
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         LAWRENCE A. McDONALD,
 
                                                 File No. 844345
 
              Claimant,
 
                                                 A R B I T R A T I 0 N
 
         VS.
 
                                                 D E C I S I 0 N
 
         
 
         IOWA BEEF PROCESSORS, INC.,
 
         
 
              Employer,
 
              Self-Insured,
 
              Defendant.
 
         
 
         
 
         
 
         5-2208 - Nonprecedential
 
         
 
              Claimant failed to show loss of hearing at compensable 
 
         frequency levels.
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
        
 
 
 
 
 
                       BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
        
 
        
 
        KENNETH L. CROUSE,
 
        
 
            Claimant,
 
        
 
        vs.                              File No. 844402
 
        
 
        S & H TRANSPORTATION,              A P P E A L
 
        
 
            Employer,                   D E C I S I O N
 
        
 
        and
 
        
 
        CNA INSURANCE CO.,
 
        
 
            Insurance Carrier,
 
            Defendants.
 
        
 
        
 
                                 STATEMENT OF THE CASE
 
        
 
        Defendants appeal from an arbitration decision awarding benefits 
 
        based upon a rate of compensation or $564.00.
 
        
 
        The record on appeal consists of the transcript of the 
 
        arbitration hearing and the exhibits received into evidence at 
 
        the hearing listed in the prehearing report. Both parties filed 
 
        briefs on appeal.
 
        
 
                                      ISSUE
 
        
 
        The sole issue on appeal is the rate of compensation.
 
        
 
                                 REVIEW OF THE EVIDENCE
 
        
 
        The arbitration decision adequately and accurately reflects The 
 
        pertinent evidence and it will not be reiterated herein.
 
        
 
                                 APPLICABLE LAW
 
        
 
        A previous appeal decision by this agency stated:
 
        
 
        The issue of appropriate rate of compensation for owner/operator 
 
        truck drivers is an issue that has perplexed decision makers in 
 
        this agency as well as courts from other jurisdictions. A recent 
 
        appeal decision by this agency offers guidance in resolving the 
 
        issue. In Dale A. Christensen v. Hagen, Inc., file No. 643433, 
 
        March 26, 1985, it was determined that the method of determining 
 
        the appropriate weekly
 
        
 
        CROUSE V. S & H TRANSPORTATION
 
        Page 2
 
        
 
        
 
        earnings of independent truck operators was to divide by three 
 
        the net revenue of their truck. It was also determined that the 
 
        fuel surcharge was not included in the net revenue of the truck 
 
        and the average weekly salary of the husband and wife as 
 
        co-drivers was equal. The general method used in Christensen will 
 
        also be used in the instant case. Because of the facts of the 
 
        instant case certain modifications in making the calculation of 
 

 
        
 
 
 
 
 
        the weekly earnings is appropriate to arrive at the revenue 
 
        generated from the operation of the truck and to arrive at the 
 
        decedent's weekly earnings. The revenue generated from the 
 
        operation of the truck will be referred to as the revenue of the 
 
        truck and will be the basis for calculating the rate in this 
 
        case.
 
        
 
        Tuttle v. The Mickow Corporation, Appeal Decision, December 20, 
 
        1988. The Tuttle decision also discussed that a method of 
 
        determining rate based upon what might be described as net income 
 
        or profit of operation should not be used because it could result 
 
        in absurd or impractical results.
 
        
 
                                      ANALYSIS
 
        
 
        The determination of claimant's rate of compensation should, in 
 
        this case, like Tuttle, use the revenue of the truck in the 
 
        thirteen weeks preceding claimant's injury. One-third of the 
 
        revenue of the truck is claimant's gross weekly earnings. 
 
        Claimant was paid by his output and pursuant to Iowa Code section 
 
        85.36(6) the thirteen week period prior to the injury should be 
 
        used in determining the basis of compensation. In the time 
 
        period April 12, 1986 through July 5, 1986 claimant's revenue 
 
        from the truck was $24,519.04. See claimant's exhibit 7. (There 
 
        is no evidence in the record to indicate that the adjustments 
 
        made in Tuttle need be made to the total cf $24,519.04 in this 
 
        case to arrive at the revenue of the truck.) One-third of the 
 
        revenue of the truck represents claimant's gross weekly earnings 
 
        for the thirteen weeks preceding his injury. While claimant 
 
        testified that persons who drive for him full time receive 30 
 
        percent of the gross weekly payment, it is appropriate that 
 
        claimant's weekly earnings should be based on one-third of the 
 
        revenue of the truck. Claimant's testimony indicates that his 
 
        payment to persons who work full time for him based on 30 percent 
 
        was an attempt to treat those persons fairly. His testimony is 
 
        not taken to mean that the 30 percent is the amount an 
 
        owner-operator should consider as the gross weekly earnings for 
 
        the owner-operator. There is a distinction between an individual 
 
        who merely drives a truck and one who drives a truck as an 
 
        owner-operator.
 
        
 
        Claimant's gross weekly earnings is $628.69 [1/3 of ($24,519.04 
 
        divided by 13)]. Claimant's rate of compensation is $366.49.
 
        
 
        CROUSE V. S & H TRANSPORTATION
 
        Page 3
 
        
 
        
 
                                 FINDINGS OF FACT
 
        
 
        1. On July 8, 1986 claimant received an injury at work.
 
        
 
        2. At the time of the injury claimant was married and entitled to 
 
        two exemptions.
 
        
 
        3. Claimant's gross weekly earnings in the thirteen weeks prior 
 
        to his injury was $628.69.
 
        
 
        4. Claimant's rate of compensation is $366.49.
 
        
 
                                 CONCLUSION OF LAW
 
        
 
        Claimant has proved by the greater weight of evidence that his 
 
        rate of compensation is $366.49.
 
        
 
        WHEREFORE, the decision of the deputy is affirmed and modified.
 

 
        
 
 
 
 
 
        
 
                                      ORDER
 
        
 
        THEREFORE, it is ordered:
 
        
 
        That defendants shall pay to claimant twenty-two (22) weeks of 
 
        permanent partial disability benefits at the rate of three 
 
        hundred sixty-six and 49/100 dollars ($366.49) per week from July 
 
        8, 1986.
 
        
 
        That defendants shall pay interest on weekly benefits awarded 
 
        herein as set forth in Iowa Code section 85.30.
 
        
 
        That defendants shall pay the costs of this action including 
 
        costs of transcription of the arbitration hearing pursuant to 
 
        Division of Industrial Services Rule 343-4.33.
 
        
 
        That defendants shall file activity reports on the payment of 
 
        this award as requested by this agency pursuant to Division of 
 
        Industrial Services Rule 343-3.1.
 
        
 
        Signed and filed this 26th day of January, 1989.
 
        
 
        
 
                                         DAVID E. LINQUIST
 
                                      INDUSTRIAL COMMISSIONER
 
        
 
        
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                      BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         KENNETH L. CROUSE,
 
         
 
              Claimant,                               FILE NO. 844402
 
         
 
         vs.                                       A R B I T R A T I O N
 
         
 
         S &H TRANSPORTATION,                         D E C I S I O N
 
         
 
              Employer,
 
                                                         F I L E D
 
         and
 
                                                        JAN 26 1988
 
         CNA INSURANCE CO.,
 
                                               IOWA INDUSTRIAL COMMISSIONER
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
                            STATEMENT OF THE CASE
 
         
 
              This is a proceeding in arbitration brought by Kenneth L. 
 
         Crouse, claimant, against S & H Transportation, employer 
 
         (hereinafter referred to as S & H), and CNA Insurance Company, 
 
         insurance carrier, defendants, for workers' compensation benefits 
 
         as a result of an alleged injury on July 8, 1986.  On December 
 
         11, 1987, a hearing was held on claimant's petition and the 
 
         matter considered fully submitted at the close of this hearing.
 
         
 
              The parties have submitted a prehearing report of contested 
 
         issues and stipulations which was approved and accepted as a part 
 
         of the record of this case at the time of hearing.  Oral 
 
         testimony was received during the hearing from claimant.  The 
 
         exhibits received into the evidence at the hearing are listed in 
 
         the prehearing report.  According to the prehearing report, the 
 
         parties have stipulated to the following matters:
 
         
 
              1.  On July 8, 1986, claimant received an injury which arose 
 
         out of and in the course of his employment with S & H.  (The 
 
         independent contractor defense was waived at the time of 
 
         hearing.)
 
         
 
              2.  Claimant is not seeking temporary total disability or 
 
         healing period benefits in this proceeding.
 
         
 
              3.  Claimant is entitled to 22 weeks of permanent partial 
 
         disability benefits for a 10 percent loss of use of a leg as a 
 
         result of the work injury.
 
         
 
              4.  Claimant's entitlement to medical benefits is no longer 
 
         in dispute.
 
         
 
                                                
 
                                                         
 
              5.  At the time of the work injury claimant was married and 
 
         entitled to two exemptions for purposes of determining rate of 
 
         compensation.
 
         
 
              6.  No benefits have been paid.
 
         
 
                                    ISSUES
 
         
 
              The only factual issue presented by the parties for 
 
         determination in this proceeding was the amount of claimant's 
 
         gross weekly rate of compensation at the time of the work 
 
         injury.
 
         
 
                           SUMMARY OF THE EVIDENCE
 
         
 
              The following is a summary of evidence presented in this 
 
         case.  For the sake of brevity, only the evidence most pertinent 
 
         to this decision is discussed.  Whether or not specifically 
 
         referred to in this summary, all of the evidence received at the 
 
         hearing was considered in arriving at this decision.  As will be 
 
         the case in any attempted summarization, conclusions about what 
 
         the evidence offered may show are inevitable.  Such conclusions, 
 
         if any, in the following summary should be considered as 
 
         preliminary findings of fact.
 
         
 
              Claimant is a truck driver and the owner and operator of a 
 
         trucking entity called Kenneth Crouse Trucking.  At the time of 
 
         the work injury claimant owned two trucks.  Claimant drove one of 
 
         these trucks and employed his son to drive the other.  In his 
 
         trucking operation claimant leased his trucks to S & H under a 
 
         written lease agreement, Exhibit 10.  Under this agreement 
 
         claimant was to use the leased trucks to haul, transport, unload 
 
         and deliver freight at the direction of S & H.  In consideration 
 
         for such activity, claimant received a percentage of the gross 
 
         monies received by S & H from customers for the loads handled by 
 
         claimant and his drivers.  Under the agreement claimant was 
 
         required to pay his own expenses such as compensation to drivers, 
 
         fuel and other expenses to maintain his trucks.
 
         
 
              Each year of operation claimant treated his trucking 
 
         operation for tax purposes as a sole proprietorship and filed a 
 
         schedule C in his income tax returns to report his net profit 
 
         and/or loss.  In 1985, claimant's tax return revealed that 
 
         claimant had gross receipts from his trucking operation of 
 
         $250,690, expenses of $217,222 with a net profit of $33,468.  In 
 
         1986, claimant's tax return indicates a gross of $179,652, 
 
         expenses of $136,995 and a net income of $42,657.
 
         
 
              Claimant testified that he pays his son a regular weekly 
 
         amount and pays himself from $300 to $400 a week.  Claimant 
 
         testified that his draw amounts to roughly 30 percent of the 
 
         gross which represents approximately the amount left over after 
 
         cash expenses.  The amount of claimant's draw from the operation 
 
         varied from week to week.  The exhibits offered into the evidence 
 
         indicate that over the 13 week period prior to the work injury 
 
                                                
 
                                                         
 
         claimant received under the lease contract with S & H a total sum 
 
         of $24,519 or an average of $1,886.08 per week.
 
         
 
              Claimant's appearance and demeanor at the hearing indicated 
 
         that he was testifying in a candid and truthful manner.
 
         
 
                       APPLICABLE LAW AND ANALYSIS
 
         
 
              Defendants argue claimant's expenses to operate his trucking 
 
         operation should be taken into account for purposes of 
 
         calculating his rate of compensation for workers' compensation 
 
         benefit purposes.  Shortly before the hearing in this case, the 
 
         industrial commissioner issued a decision which stated as follows 
 
         in a case involving an injured owner/operator truck driver:
 
         
 
              The appropriate rate in this case is computed by utilizing 
 
              claimant's gross average earnings of $995 per week for the 
 
              13 weeks prior to his injury.  This figure is used despite 
 
              the fact that claimant paid for maintenance and other 
 
              expenses out of this weekly amount.  The statutory scheme of 
 
              rate calculation is specific and it was designed to ease the 
 
              process of calculation.  It would be an impossible task to 
 
              determine rate if employee paid expenses were taken into 
 
              account.  Taking into account such expenses would lead to 
 
              absurd results.  For example, in this case, claimant would 
 
              not be entitled to any rate of compensation despite the fact 
 
              he was gainfully employed at the time of his injury as he 
 
              had a net operating loss for tax year 1983.  Sperry v. D & C 
 
              Express, Inc., Appeal Decision, filed December 10, 1987.
 
         
 
              This language is determinative of the issue in this case.  
 
         It will be found that claimant's gross weekly earnings were 
 
         $1,886.08.  The amount of exemptions and marital status are not 
 
         important as claimant has surpassed the gross amount to show 
 
         entitlement to the maximum rate of compensation allowable for the 
 
         injury under chapter 85.  According to the commissioner's rate 
 
         book schedule for an injury on July 8, 1986 published by this 
 
         agency, the maximum rate of compensation for permanent partial 
 
         disability benefits is $564.00 per week.
 
         
 
                              FINDINGS OF FACT
 
         
 
              1.  Claimant was a credible witness.
 
         
 
              2.  On July 8, 1986, claimant was an owner/operator truck 
 
         driver under a lease agreement with S & H wherein he received a 
 
         percentage of the gross receipts received by S & H for loads 
 
         delivered by claimant and his drivers.  Under this arrangement, 
 
         claimant was to assume the costs of the drivers, truck fuel, 
 
         truck maintenance and other operating expenses.
 
         
 
              3.  In the 13 week period prior to July 8, 1986, claimant 
 
         received from S & H the total sum of $24,519 or an average of 
 
         $1,886.08 per week for the loads delivered by him and his drivers 
 
         at the direction of S & H.
 
                                                
 
                                                         
 
         
 
                             CONCLUSIONS OF LAW
 
         
 
              Claimant has established by a preponderance of the evidence 
 
         entitlement to weekly rate of compensation in the amount of 
 
         $564.00.
 
         
 
                                   ORDER
 
         
 
              1.  Defendants shall pay to claimant twenty-two (22) weeks 
 
         of permanent partial disability benefits at the rate of five 
 
         hundred sixty-four and no/100 dollars ($564.00) per week from 
 
         July 8, 1986.
 
         
 
              2.  Defendants shall pay interest on weekly benefits awarded 
 
         herein as set forth in Iowa Code section 85.30.
 
         
 
              3.  Defendants shall pay the costs of this action pursuant 
 
         to Division of Industrial Services Rule 343-4.33.
 
         
 
              4.  Defendants shall file activity reports on the payment of 
 
         this award as requested by this agency pursuant to Division of 
 
         Industrial Services Rule 343-3.1.
 
         
 
                                   
 
                                                         
 
              Signed and filed this 26th day of January, 1988.
 
         
 
         
 
         
 
         
 
         
 
         
 
                                            LARRY P. WALSHIRE
 
                                            DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. James P. Hoffman
 
         Attorney at Law
 
         Middle Road
 
         P. 0. Box 1066
 
         Keokuk, Iowa  52632-1066
 
         
 
         Mr. Elliott R. McDonald, Jr.
 
         Attorney at Law
 
         P. 0. Box 2239
 
         Davenport, Iowa  52807
 
 
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                 3001
 
                                                 Filed January 26, 1988
 
                                                 LARRY P. WALSHIRE
 
         
 
                   BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         KENNETH L. CROUSE,
 
         
 
              Claimant,
 
         
 
         vs.
 
                                                      FILE NO. 844402
 
         S & H TRANSPORTATION,
 
                                                   A R B I T R A T I 0 N
 
              Employer,
 
                                                      D E C I S I 0 N
 
         and
 
         
 
         CNA INSURANCE CO.,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         3001
 
         
 
              Applied agency precedent in calculating gross weekly 
 
         earnings for an owner/operator truck driver which did not 
 
         consider employee paid expenses.