BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
_________________________________________________________________
 
            
 
SIN CHA YI,      
 
            
 
     Claimant,   
 
            
 
vs.         
 
                                File Nos. 845677/888710
 
GENERAL MILLS, INC.,                      888553/888709
 
            
 
     Employer,   
 
                                       R E M A N D
 
and          
 
                                     D E C I S I O N
 
LIBERTY MUTUAL,       
 
            
 
     Insurance Carrier,    
 
            
 
and         
 
            
 
SECOND INJURY FUND OF IOWA,     
 
            
 
     Defendants.      
 
_________________________________________________________________
 
 
 
This matter is on remand from the Iowa District Court for Linn County.  
 
The district court remanded the case for further findings of fact and 
 
conclusions of law in light of Mortimer v. Fruehauf Corp., 502 N.W.2d 
 
12 (Iowa 1993) which was decided after remand decision filed June 14, 
 
1993.  Only the evidence necessary to decide the issue on remand will 
 
be discussed.
 
 
 
                             ISSUES
 
 
 
The dispositive issue on remand is:  Whether claimant has proved that 
 
there is a causal connection between her alleged psychological 
 
condition and her alleged work injuries.
 
 
 
                            FINDINGS OF FACT
 
 
 
The prior remand decision found the following.  Claimant received an 
 
injury to her right arm on October 20, 1986.  (June 14, 1993 remand 
 
decision, page 12)  That injury did not result in any weekly disability 
 
benefits.  (June 14, 1993 remand decision, p. 14)  Claimant sustained 
 
an injury to her right hand on February 19, 1987 which resulted in 
 
permanent disability. (June 14, 1993 remand decision, p. 14)  Claimant 
 
sustained an injury on December 15, 1987 which did not result in any 
 
weekly disability benefits.  (June 14, 1993 remand decision, pp. 15, 
 
17)  Claimant did not sustain injuries on April 12, 1988 that arose out 
 
of and in the course of her employment.  (June 14, 1993 remand 
 
decision, p. 18)
 
 
 
The remand decision filed June 14, 1993 made the following relevant 
 
findings of fact.
 
 
 
14.  Dr. Ahn referred claimant to Charles G. Wellso, M.D., for 
 

 
 
 
 
 
 
 
 
 
psychiatric treatment and she has been under his care since August 25, 
 
1989.  Numerous drug therapies have been prescribed by Dr. Wellso, yet 
 
none have yielded a great deal of success.  She also undergoes 
 
psychotherapy, and has been referred to the back clinic and has 
 
undergone biofeedback testing for pain assessment and management.
 
 
 
15.  Claimant has been hospitalized for depression and suicidal 
 
tendencies.
 
 
 
16.  Claimant has been treated weekly by Dr. Wellso since August 25, 
 
1989.  She was hospitalized on October 20, 1990 at Mercy Hospital 
 
psychiatric unit for her condition.
 
 
 
Dr. Wellso's initial opinions, in pertinent part, are revealed in a 
 
letter to Dr. Ahn dated October 16, 1989:
 
I am writing you concerning Sin Cha Yi whom you referred for 
 
psychiatric evaluation and treatment because of depression.
 
She has been depressed for quite some time, several years it appears. . 
 
. . She has continued to have depressive symptoms, her husband has 
 
moved out of the house.  In a way, this has been a relief to her 
 
because their relationship had deteriorated a great deal over the past 
 
six years.  Even so, he isn't around to afford any support.  She 
 
appears to have some work related anxiety and tension that is 
 
presumably due to the company's monitoring her behavior following the 
 
second accident at work. . . .
 
Diagnostically she appears to have Major Depressive Disorder with 
 
Somatizations; Adjustment Disorder with Mixed Emotional Features, 
 
primarily tension and anxiety; Marital Problem.
 
 
 
(Claimant's Exhibit M, page 1)
 
 
 
Dr. Wellso's diagnoses have remained the same:
 
 
 
Q.  During the course of your treatment of Mrs. Yi have you arrived at 
 
any diagnosis or diagnoses?
 
 
 
A.  The diagnoses have remained pretty much the same from the time I 
 
first saw her.  She has a depression; I've called it sometimes a major 
 
depressive disorder or a chronic depression or a dysthymic disorder.  
 
They all are depressive disorders.  The dysthymic disorder says that 
 
it's a depression that a person has for a long time, like two years or 
 
more.  That's pretty much the--In adults that's the limiting definition 
 
pretty much.  In addition to that I felt that she had adjustment 
 
disorder problems with anxiety, tension, apprehension, tendency to 
 
regress and perform less satisfactorily at times.  She has had some 
 
tendency towards somatization, which might be included with that, but 
 
could also be included with the depressive disorder.  I have noted that 
 
she has a marital problem, but, frankly, here again I noted I think 
 
that that was a fairly--I don't know--relatively long-standing problem, 
 
but I don't think that--I--I don't know at this point what to say about 
 
it.  As I said, I didn't really get into it.
 
 
 
(Cl. Ex. MM, pp. 18-19)
 
 
 
Dr. Wellso has also formed an opinion, within a reasonable degree of 
 
medical certainty, that claimant's emotional condition is related to 
 
her employment:
 
 
 
Q.  Do you have an opinion based on a reasonable degree of medical 
 
certainty whether the treatment that you have provided to Mrs. Yi was 
 
for a condition which bears a causal relationship to either those 
 
accidents or her employment at General Mills?
 
 
 
A.  Only in the sense that the treatment was for depression and anxiety 
 
and those things that I said.  I wouldn't distinguish between those two 
 
things that we are noting, but--I mean, that I just referred to.  I 
 
thought it had something to do with the accidents and that period of 
 
time surrounding it and whatever went on there.
 
 
 
(Cl. Ex. MM, p. 26)
 

 
 
 
 
 
 
 
 
 
 
 
He has submitted that claimant was disabled from work from August 25, 
 
1989 through April 13, 1990.  Defendant employer's posture is that Dr. 
 
Wellso released claimant to return to work on December 18, 1989.  His 
 
letter addressed to the safety coordinator at General Mills, dated 
 
December 18, 1990, indicated that "I would hope that she would resume 
 
work at sometime in the near future."  (Cl. Ex. MM, Ex. 2)  Dr. Wellso 
 
goes on to state, "At present she still is depressed, has not responded 
 
well to anti-depressant medications and the language difficulties that 
 
are present make psychotherapy with her, at times, difficult."  (Cl. 
 
Ex. MM, Ex. 2)
 
 
 
17.  Dr. Wellso continued to treat claimant, and on December 18, 1989, 
 
corresponded with Mary Costigan, the Health and Wellness coordinator, 
 
at General Mills:
 
 
 
I have been seeing Sin Cha Yi, referred by Yang Ahn, M.D., for 
 
psychiatric treatment of her depression.  She was referred to me 
 
towards the end of August and has been in treatment with me since then. 
 
 
 
 She is being treated with individual psychotherapy and antidepressant 
 
medication.  She carries the diagnosis currently of the following:  1) 
 
Major Depressive Disorder with Somatizations, 2) Adjustment Disorder 
 
with Mixed Emotional Features, primarily tension and anxiety, 3) 
 
Marital Problem.
 
   
 
I am uncertain when she may return to work.  She continues to have 
 
difficulty tolerating medications, is insecure and anxious.
 
   . . . .
 
   
 
I would hope that she would resume work at sometime in the near 
 
future.  She probably should be placed in a job where she isn't working 
 
with machinery at first if that is possible.  My request for that is 
 
because I think she has some difficulty concentrating and also she is 
 
apprehensive about working.  She seems to feel that following her 
 
second accident she was monitored quite a bit which was distracting to 
 
her and provoked anxiety.
 
 
 
(Cl. Ex. MM, Ex. 2)
 
 
 
18.  At the time of the hearing, claimant continued to see Dr. Wellso 
 
for psychiatric treatment.
 
 
 
In addition to the relevant findings of fact from the prior remand 
 
decision, the following are additional findings of fact:  
 
 
 
Dr. Wellso also testified that there was a relationship between 
 
claimant's work accidents and her mental condition.  (Cl. Ex. MM, pp. 
 
25-26)  He stated that he did not know of any depression before her 
 
accidents at work.  (Cl. Ex. MM, p. 56)  It was his opinion that 
 
claimant could not perform her occupation from August 25, 1989 through 
 
April 13, 1990.  (Cl. Ex. MM, p. 24)  He was not certain when claimant 
 
could have returned to work and he did not know why claimant did not go 
 
back to work.  (Cl. Ex. MM, pp. 47, 53)  Dr. Wellso did not know 
 
whether claimant's psychological condition was permanent.  (Cl. Ex. MM, 
 
p. 31)
 
 
 
                       CONCLUSIONS OF LAW
 
 
 
The issue to be resolved is whether claimant has proved that there is a 
 
causal connection between her alleged psychological condition and her 
 
alleged work injuries.
 
 
 
The party who would suffer loss if an issue were not established has 
 
the burden of proving that issue by a preponderance of the evidence.  
 
Iowa R. App. P. 14(f).
 
 
 
The claimant has the burden of proving by a preponderance of the 
 
evidence that the alleged injury actually occurred and that it arose 
 
out of and in the course of employment.  McDowell v. Town of 
 

 
 
 
 
 
 
 
 
 
Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. Cent. Tel. Co., 
 
261 Iowa 352, 154 N.W.2d 128 (1967).  The words "arising out of" refer 
 
to the cause or source of the injury.  The words "in the course of" 
 
refer to the time, place and circumstances of the injury.  Sheerin v. 
 
Holin Co., 380 N.W.2d 415 (Iowa 1986); McClure v. Union County, 188 
 
N.W.2d 283 (Iowa 1971).
 
 
 
The claimant has the burden of proving by a preponderance of the 
 
evidence that the injury is a proximate cause of the disability on 
 
which the claim is based.  A cause is proximate if it is a substantial 
 
factor in bringing about the result; it need not be the only cause.  A 
 
preponderance of the evidence exists when the causal connection is 
 
probable rather than merely possible.  Blacksmith v. All-American, 
 
Inc., 290 N.W.2d 348 (Iowa 1980); Holmes v. Bruce Motor Freight, Inc., 
 
215 N.W.2d 296 (Iowa 1974).
 
 
 
The question of causal connection is essentially within the domain of 
 
expert testimony.  The expert medical evidence must be considered with 
 
all other evidence introduced bearing on the causal connection between 
 
the injury and the disability.  The weight to be given to any expert 
 
opinion is determined by the finder of fact and may be affected by the 
 
accuracy of the facts relied upon by the expert as well as other 
 
surrounding circumstances.  The expert opinion may be accepted or 
 
rejected, in whole or in part.  Sondag v. Ferris Hardware, 220 N.W.2d 
 
903 (Iowa 1974); Anderson v. Oscar Mayer & Co., 217 N.W.2d 531 (Iowa 
 
1974); Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).
 
 
 
Dr. Wellso has diagnosed claimant as having depressive disorders.  
 
There is no contrary diagnosis.  Dr. Wellso offers the opinion that 
 
there was a relationship between claimant's work accidents and her 
 
depressive disorders.  There were other possible causes of her 
 
depressive disorders.  Claimant had marital problems and language 
 
difficulties.  Dr. Wellso indicated that there was a temporal 
 
relationship between her psychological condition and her work 
 
accidents.  He does not, however, offer an opinion that claimant's work 
 
accidents were a substantial factor in causing claimant's psychological 
 
condition.  Dr. Wellso's opinion merely establishes that the onset of 
 
claimant's psychological conditions occurred at the same point in time 
 
as her work accidents.  His opinions do not establish what the 
 
proximate cause of claimant's condition was.  Claimant's work accidents 
 
were one of several possible factors that caused her psychological 
 
condition.  Claimant has not proved that her work accidents were a 
 
substantial factor in causing her psychological condition.
 
 
 
Claimant is not entitled to any benefits other than those previously 
 
awarded.  It should be noted that even if claimant had proved that 
 
there was a causal connection between her work accidents and her 
 
psychological condition, she has clearly not proved that her 
 
psychological condition is permanent.  (Dr. Wellso did not know if 
 
claimant's condition was permanent.)  Therefore, even if claimant had 
 
proved the necessary causal connection, claimant would not be entitled 
 
to a permanent disability under the holding of Mortimer, supra.
 
 
 
                                ORDER
 
 
 
THEREFORE, it is ordered:
 
 
 
That claimant shall take nothing from this remand decision.
 
 
 
Signed and filed this ____ day of January, 1995.                      
 
                             ________________________________                                 
 
                             BYRON K. ORTON                          
 
                             INDUSTRIAL COMMISSIONER
 
 
 
Copies To:
 
 
 
Mr. Thomas J. Currie
 
Attorney at Law
 
P.O. Box 998
 
Cedar Rapids, Iowa 52406-0998
 
 
 
Mr. Jeffrey J. Greenwood
 
Attorney at Law
 
P.O. Box 1200
 
Waterloo, Iowa 
 

 
 
 
 
 
 
 
 
 
 
 
 
 
50704-1200
 
 
 
Ms. Joanne Moeller
 
Asst Attorney General
 
Tort Claims Division
 
Hoover State Office Bldg.
 
Des Moines, Iowa 50319
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                1804
 
                                Filed January 25, 1995
 
                                Byron K. Orton
 
 
 
          BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
_________________________________________________________________
 
SIN CHA YI,      
 
            
 
     Claimant,   
 
            
 
vs.         
 
                               File Nos. 845677/888710
 
GENERAL MILLS, INC.,                     888553/888709
 
            
 
     Employer,   
 
                                      R E M A N D
 
and          
 
                                    D E C I S I O N
 
LIBERTY MUTUAL,       
 
            
 
     Insurance Carrier,    
 
            
 
and         
 
            
 
SECOND INJURY FUND OF IOWA,     
 
            
 
     Defendants.      
 
_________________________________________________________________
 
1804
 
 
 
On remand from district court it was found that claimant failed to 
 
prove there was a causal connection between her work accidents 
 
(physical injuries) and her psychological condition.  There was a 
 
temporal relationship between her various work accidents and her 
 
psychological condition.  There were several possible causes of her 
 
depressive disorders.  Those possible causes included claimant's work 
 
accidents, marital problems and language difficulties.  Claimant failed 
 
to prove that her work accidents were a substantial factor of the 
 
probable cause of her psychological condition.
 
 
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            SIN CHA YI,                   :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File Nos. 845677, 
 
            888710,
 
            GENERAL MILLS, INC.,          :                888553, 
 
            888709
 
                                          :
 
                 Employer,                :       A R B I T R A T I O N
 
                                          :
 
            and                           :          D E C I S I O N
 
                                          :
 
            LIBERTY MUTUAL,               :
 
                                          :
 
                 Insurance Carrier,       :
 
                                          :
 
            and                           :
 
                                          :
 
            SECOND INJURY FUND OF IOWA,   :
 
                                          :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding in arbitration brought by Sin Cha 
 
            Yi against General Mills, employer, and Liberty Mutual, 
 
            insurance carrier, and the Second Injury Fund of Iowa to 
 
            recover benefits under the Iowa Workers' Compensation Act as 
 
            the result of alleged injuries sustained on October 20, 
 
            1986; February 19, 1987; December 15, 1987; and, April 12, 
 
            1988.  This matter came on for hearing before the 
 
            undersigned deputy industrial commissioner on December 6, 
 
            1990.  The case was considered fully submitted at the close 
 
            of the hearing, although leave was granted to allow the 
 
            parties to file briefs.
 
            
 
                 The record in this case consists of the testimony of 
 
            the claimant; Linda Chanzun Kerkman; Tong Uk Yi; Mary 
 
            Costigan; and Arlo Netolicky.
 
            
 
                 Claimant offered exhibits A-NN, which were received.  
 
            Defendant employer and insurance carrier offered exhibits 1, 
 
            2 and 3 which were received.  The Second Injury Fund offered 
 
            exhibits 2, 3, 5, 6, 7, 8, 9, 13; exhibits 2, 5, 6, and 13 
 
            were received.
 
            
 
                 Claimant lodged objections to defendant Fund's exhibits 
 
            3, 8 and 9, based on the argument that depositions from a 
 
            prior third party case are inadmissible in the workers' 
 
            compensation case.  The objection is overruled, the exhibits 
 
            are received.  The Fund's exhibit 7, a transcript of the 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            third-party suit, was not produced by the Fund.
 
            
 
                 Claimant filed four separate petitions on October 18, 
 
            1988, each alleging different injuries and injury dates.
 
            
 
                 In agency file no. 888709 claimant's petition alleges 
 
            an October 20, 1986 injury to claimant's right hand, arm and 
 
            shoulder caused by overuse.  Defendants advance an 
 
            affirmative defense of no notice of the injury, and deny 
 
            liability for the same.
 
            
 
                 In agency file no. 845677 claimant's petition alleges a 
 
            February 19, 1987 injury to claimant's right hand.  
 
            Defendant employer and insurance company admit liability, 
 
            and have paid healing period benefits, medical benefits and 
 
            permanency benefits for the injury.  They contend claimant 
 
            is not entitled to further benefits for this injury.
 
            
 
                 In agency file no. 888710 claimant's petition alleges a 
 
            December 15, 1987 injury to claimant's left hand, arm and 
 
            shoulder, neck and back.  Defendants claim no notice of the 
 
            injury and deny all liability.
 
            
 
                 In agency file no. 888553 claimant's petition alleges 
 
            an April 12, 1988 injury to claimant's left and right arm 
 
            and hands.  Defendants deny liability.
 
            
 
                                 findings of fact
 
            
 
                 Claimant is a 48-year-old woman who has been married 
 
            for 24 years, and who has three sons.  She graduated from 
 
            high school in South Korea, and moved to the United States 
 
            in 1976.  Although she has taken various English classes, 
 
            she still has extreme difficulty in expressing herself in 
 
            English.  This language barrier has impeded her ability to 
 
            communicate in the work environment.
 
            
 
                 Claimant's work history includes working on her 
 
            parents' farm in Korea and co-operating a small grocery 
 
            store in Seoul, South Korea.  Her first job after moving to 
 
            the United States was a housekeeper with the Town House 
 
            Motel in Cedar Rapids, Iowa.  She earned $3.50/hour.
 
            
 
                 After two years, she went to work for Amana 
 
            Refrigeration, where she held various jobs, including 
 
            positions in these departments:  assembly of micro-wave 
 
            ovens; injection molding; and serial screenings.  Most, if 
 
            not all of these positions required claimant to lift, bend, 
 
            stoop, and use extensively her hands and arms when operating 
 
            equipment.  At Amana, she worked full-time, and earned 
 
            between $6.00-$8.00/hour.
 
            
 
                 In 1983, claimant began working for defendant General 
 
            Mills in Cedar Rapids, Iowa.  Her first position was a C-job 
 
            in the mix department.  This position required her to lift 
 
            up to 25 pounds, bend and twist, as well as use her hands 
 
            and arms while putting products in a box.
 
            
 
                 After 6 months, claimant moved to the "fruit roll-ups" 
 
            department as a key operator.  She also performed job duties 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            as an operator of the Doboy machine, a machine used to cut 
 
            and wrap the fruit roll-up product.  After two years, she 
 
            was transferred to the popcorn area, where she worked on the 
 
            pouchline, and as a Doboy operator.  As a Doboy operator in 
 
            this area, she had to watch the machine to insure that it 
 
            was running properly, and replace rolls of cellophane paper 
 
            used to wrap the microwaveable popcorn bags.  The rolls of 
 
            cellophane weighed between 40-50 pounds, and were replaced 
 
            every two hours.  Again, her position required lifting, 
 
            bending and twisting, and extensive use of claimant's arms 
 
            and hands.  She also performed duties as an A-operator on 
 
            the Bartelt machine.  This machine puts the popcorn into 
 
            bags, seals the bag, and pushes it to a second-fold machine.  
 
            
 
                 On October 20, 1986, claimant was involved in an 
 
            industrial accident which in part, gives rise to this 
 
            litigation.  Claimant did not miss any time from work due to 
 
            this incident.
 
            
 
                 The next injury alleged occurred on February 19, 1987.  
 
            Claimant was working on the second-fold machine in the 
 
            popcorn department.  As she was cleaning the machine, her 
 
            hand became caught between the belt and the small wheel of 
 
            the machine.  She sustained open fractures and tendon 
 
            lacerations of the index, middle and ring fingers of her 
 
            right hand.  Walter Hales, M.D., performed surgery on 
 
            February 19, 1987.
 
            
 
                 Claimant was off work from February 19, 1987 through 
 
            May 3, 1987, returned to light duty from May 4, 1987 through 
 
            September 28, 1987.  On September 29, 1987, claimant 
 
            underwent additional surgery, and was off work until October 
 
            22, 1987, when she was released for one-handed duty.  On 
 
            November 10, 1987, she was released to return to work 
 
            full-time.    (Claimant Exhibit D, Page 4).
 
            
 
                 Claimant's next alleged injury occurred on December 15, 
 
            1987.  Claimant was operating the Doboy machine, a job that 
 
            required her to load the machine with rolls of paper 
 
            weighing 40-50 pounds.  Using her right hand still caused 
 
            pain, and in order to compensate, she began using her left 
 
            arm and hand to perform the job duties.  Claimant complained 
 
            of pain in her neck, upper and mid-back.  She sought medical 
 
            treatment from Dr. Ahn (Cl. Ex. A, P. 2).  Claimant stated 
 
            she met with the safety director, and possibly her 
 
            supervisor and thought she told them of the injury.  She did 
 
            not fill out a written report.  (Transcript P. 69).  She did 
 
            not miss any time from work.
 
            
 
                 The final injury date alleged is April 12, 1988.  
 
            Claimant was working as a Doboy operator.  She complained of 
 
            left shoulder, left back, left leg and left hip pain.  She 
 
            sought treatment from Dr. Hales and on April 28, 1988, saw 
 
            Percy Harris, M.D., who is the company physician.  
 
            Eventually, on September 28, 1988, claimant underwent 
 
            surgery for release of the ulnar and median nerves of the 
 
            left wrist and release of the ulnar nerve at the left elbow 
 
            with a medical epicondylectomy and aponeurotomy of the ulnar 
 
            nerve at the left elbow.  (Cl. Ex. D, P. 8).  She underwent 
 
            similar surgery to the right wrist and elbow on December 16, 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            1988.  (Cl. Ex. R, P. 6).
 
            
 
                 Mary Costigan testified that this injury was treated as 
 
            a workers' compensation claim.  (Tr. P. 120).  However, the 
 
            defendant denies liability for the claim.
 
            
 
                 Between the April 12, 1988 injury and the September 28, 
 
            1988 surgery claimant also sought medical treatment for back 
 
            pain from William Roberts, M.D., an associate of Dr. Hales.  
 
            His notes indicate these findings on examination:
 
            
 
                    Sin Yi is a 46-year-old Korean female who has 
 
                 worked at General Mills for the last five years.  
 
                 She states she is a machine operator who has been 
 
                 experiencing back pain since last December.  She 
 
                 can recall no specific event leading to the onset 
 
                 of her symptoms.  Her back pain is aggravated by 
 
                 sitting, standing, with forward bending, or with 
 
                 lifting.  She describes pain both in her low back 
 
                 and in her cervical region.
 
            
 
                    ....
 
            
 
                 She presently feels that she can perform all of 
 
                 her activities at work except lifting that she can 
 
                 perform all of her activities at work except 
 
                 lifting and, according to her, is presently on a 
 
                 light-duty status of working no greater than four 
 
                 hours per day with the restriction of no lifting.
 
            
 
                 He diagnosed chronic cervical and lumbar pain most 
 
            likely secondary to an annular strain.  (Cl. Ex. D, P. 7-8; 
 
            Cl. Ex. F, P.2).
 
            
 
                 Claimant also alleges a psychological injury, stemming 
 
            from the injuries to her hands, arms, and back.  Dr. Ahn 
 
            referred her to Charles G. Wellso, M.D., for psychiatric 
 
            treatment, and she has been under his care since August 25, 
 
            1989.  Numerous drug therapies have been prescribed by Dr. 
 
            Wellso, yet none have yielded a great deal of success.  She 
 
            also undergoes psychotherapy, and has been referred to the 
 
            back clinic and has undergone biofeedback testing for pain 
 
            assessment and management.  
 
            
 
                 Claimant has been hospitalized for depression and 
 
            suicidal tendencies.
 
            
 
                 Dr. Wellso's initial diagnosis was formed on October 
 
            16, 1989:
 
            
 
                 She has been depressed for quite some time, 
 
                 several years it appears...She has continued to 
 
                 have depressive symptoms, her husband has moved 
 
                 out of the house....She appears to have some work 
 
                 related anxiety and tension that is presumably due 
 
                 to the company's monitoring her behavior following 
 
                 the second accident at work.  She continues to 
 
                 have some sensations of numbness of her hands, 
 
                 some pain in the hands and arms that is 
 
                 distressing to her.
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            
 
                 Diagnostically she appears to have Major 
 
                 Depressive Disorder with Somatizatons; Adjustment 
 
                 Disorder with Mixed Emotional Features, primarily 
 
                 tension and anxiety; Marital Problems.
 
            
 
            (Cl. Ex. MM, Ex. 1).
 
            
 
                 Dr. Wellso continued to treat claimant, and on December 
 
            18, 1989, corresponded with Mary Costigan, the Health and 
 
            Wellness Coordinator, at General Mills:
 
            
 
                 I have been seeing Sin Cha Yi, referred by Yang 
 
                 Ahn, M.D., for psychiatric treatment of her 
 
                 depression.  She was referred to me towards the 
 
                 end of August and has been in treatment with me 
 
                 since then.  She is being treated with individual 
 
                 psychotherapy and antidepressant medication.  She 
 
                 carries the diagnosis currently of the following: 
 
                 1) Major Depressive Disorder with Somatizations, 
 
                 2) Adjustment Disorder with Mixed Emotional 
 
                 Features, primarily tension and anxiety, 3) 
 
                 Marital Problem.
 
            
 
                 I am uncertain when she may return to work.  She 
 
                 continues to have difficulty tolerating 
 
                 medications, is insecure and anxious.
 
            
 
                 ....
 
            
 
                 I would hope that she would resume work at 
 
                 sometime in the near future.  She probably should 
 
                 be placed in a job where she isn't working with 
 
                 machinery at first if that is possible.  My 
 
                 request for that is because I think she has some 
 
                 difficulty concentrating and also she is 
 
                 apprehensive about working.  She seems to feel 
 
                 that following her second accident she was 
 
                 monitored quite a bit which was distracting to her 
 
                 and provoked anxiety.
 
            
 
            (Cl. Ex. MM, Ex. 2)
 
            
 
                 At the time of the hearing, claimant continued to see 
 
            Dr. Wellso for psychiatric treatment. 
 
            
 
                          analysis and conclusion of law
 
            
 
            October 20, 1986
 
            
 
                 The first issue to be resolved with respect to the 
 
            October 20, 1986 injury date is whether claimant received an 
 
            injury which arose out of and in the course of her 
 
            employment.
 
            
 
                 An employee is entitled to compensation for any and all 
 
            personal injuries which arise out of and in the course of 
 
            the employment.  Section 85.3(1).
 
            
 
                 Claimant has the burden of proving by a preponderance 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            of the evidence that she received an injury on October 20, 
 
            1986 which arose out of and in the course of her employment. 
 
            McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa 
 
            1976); Musselman v. Central Telephone Co., 261 Iowa 352, 154 
 
            N.W.2d 128 (1967). 
 
            
 
                 The injury must both arise out of and be in the course 
 
            of the employment.  Crowe v. DeSoto Consol. Sch. Dist., 246 
 
            Iowa 402, 68 N.W.2d 63 (1955) and cases cited at pp. 405-406 
 
            of the Iowa Report.  See also Sister Mary Benedict v. St. 
 
            Mary's Corp., 255 Iowa 847, 124 N.W.2d 548 (l963) and Hansen 
 
            v. State of Iowa, 249 Iowa 1147, 91 N.W.2d 555 (1958).
 
            
 
                 The words "out of" refer to the cause or source of the 
 
            injury.  Crowe, 246 Iowa 402, 68 N.W.2d 63. 
 
            
 
                 The words "in the course of" refer to the time and 
 
            place and circumstances of the injury.  McClure v. Union 
 
            et al. Counties, 188 N.W.2d 283 (Iowa 1971); Crowe, 246 Iowa 
 
            402, 68 N.W.2d 63.
 
            
 
                 Claimant described with clarity and specificity her job 
 
            duties in September 1986.  She explained that as she was 
 
            helping an co-employee open a butter box, her right wrist 
 
            became sore.  Claimant left for vacation shortly thereafter, 
 
            and upon her return she noticed that her wrist was still 
 
            sore.  She did visit Dr. Ahn on October 20, 1986.  His 
 
            medical records indicate that she had tendinitis of the 
 
            right forearm and shoulder.  Claimant states that she asked 
 
            her supervisor (Arlo Netolicky) for a wristband, but was not 
 
            provided with one.
 
            
 
                 Claimant proceeded to see her family physician, Dr. 
 
            Ahn, on October 20, 1986.  He treated with medication 
 
            (Naprosyn).  
 
            
 
                 The undersigned finds that claimant was performing the 
 
            job duties required of her during her work-shift when she 
 
            was hurt helping the co-worker with the butter box.  The 
 
            record does not indicate that claimant hurt herself in any 
 
            other type of activity.  Therefore, it is found that 
 
            claimant received an injury which arose out and in the 
 
            course of her employment on October 20, 1986.
 
            
 
                 The next issue to be decided with respect to the 
 
            October 20, 1986 injury is whether defendant General Mills 
 
            had adequate notice that claimant sustained an injury on 
 
            October 20, 1986.  Defendant employer asserts no notice as 
 
            an affirmative defense which would relieve them of any 
 
            liability for this claim.
 
            
 
                 Iowa Code section 85.23 provides the statutory language 
 
            for notice to the employer of a work related injury:
 
            
 
                    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 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
                 dependent's behalf shall give notice thereof to 
 
                 the employer within ninety days from the date of 
 
                 the occurrence of the injury, no compensation 
 
                 shall be allowed.
 
            
 
                 The employer must be given sufficient information to be 
 
            alerted to the possibility of a claim so that an 
 
            investigation of the facts can be made while the information 
 
            was fresh.  Dillinger v. City of Sioux City, 368 N.W.2d 176 
 
            (Iowa 1985).
 
            
 
                 Defendant employer has the burden to prove by a 
 
            preponderance that they had insufficient notice of the 
 
            injury as required by the statute.
 
            
 
                 Claimant stated she asked her supervisor for a wrist 
 
            splint, and believes she told him about the incident where 
 
            she helped the co-worker with the butter box and hurt her 
 
            wrist.  The defendant employer admits that claimant may have 
 
            asked for a wrist splint. (Tr. PP. 125-126)
 
            
 
                 The undersigned finds that the defendant employer did 
 
            not meet the burden of proof to show that insufficient 
 
            notice was given.  It is found that claimant asked for a 
 
            wrist splint; defendant employer was at that time put on 
 
            notice that an investigation needed to be conducted to find 
 
            out why claimant was making such a request.
 
            
 
                 However, claimant is awarded only medical benefits for 
 
            this injury.
 
            
 
                 Claimant did not miss any time from work, and would 
 
            therefore not be entitled to any temporary total benefits.  
 
            Nor, is there any notation from Dr. Ahn regarding any 
 
            permanent impairment to her wrist, forearm or shoulder, the 
 
            only means by which she could be entitled to any healing 
 
            period benefits.  Therefore, although claimant's injury did 
 
            arise out of and in the course of her employment, and she 
 
            gave sufficient notice to the employer claimant only takes 
 
            medical benefits from the defendant employer for this 
 
            injury.
 
            
 
            February 19, 1987
 
            
 
                 Claimant suffered a traumatic and severe injury to her 
 
            right hand when it was caught in a machine on February 19, 
 
            1987.  Claimant's injury necessitated several surgeries.  
 
            The defendant employer has admitted liability for this 
 
            injury, and paid time off of work from February 19, 1987 
 
            through May 3, 1987.  Claimant returned to light duty work 
 
            from May 4, 1987 until September 28, 1987.  From September 
 
            29, 1987 until October 26, 1987 claimant lost time from work 
 
            due to the second surgery to her hand.  On October 27, 1987, 
 
            claimant returned to alternate duty, and resumed her normal 
 
            duties on November 13, 1987.  She continued to work her 
 
            regular duties until August 31, 1988 when she was taken off 
 
            work and placed on alternate duty.
 
            
 
                 Dr. Hales, claimant's treating physician for the right 
 
            hand injury, provided claimant with an 18 percent impairment 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            of the right hand as the result of the February 19, 1987 
 
            injury.  (Cl. Ex. R, PP. 1-2).  Claimant was paid 34.2 weeks 
 
            of compensation, pursuant to Iowa Code section 85.34(2)(l).  
 
            (General Mills Ex. 1)
 
            
 
                 Claimant was also paid healing period benefits for the 
 
            time she was off work, and the defendant employer paid for 
 
            all necessary medical treatment with respect to this injury.  
 
            Therefore, claimant takes nothing further from defendant 
 
            employer on this particular claim.
 
            
 
            December 15, 1987
 
            
 
                 Claimant also alleges an injury which arose out and in 
 
            the course of her employment on December 15, 1987.  
 
            
 
                 She alleges this third injury to have impaired her left 
 
            hand, arm and shoulder; neck and back.  Again, defendant 
 
            employer denies liability, and raise the lack of notice as 
 
            an affirmative defense.
 
            
 
                 The first issue to be decided is whether claimant 
 
            sustained an injury which arises out of and in the course of 
 
            employment.  The relevant rules of law have been previously 
 
            addressed, and will not be reiterated herein, although 
 
            applicable to the following facts.
 
            
 
                 Claimant had returned to her regular job duties as a 
 
            Doboy operator in November 1987.  She was able to perform 
 
            her duties, although she began to notice pain in her left 
 
            hand and arm, left shoulder and left low back.  She saw Dr. 
 
            Ahn, who treated her for a strained left neck, upper mid and 
 
            lower back and left arm.  (Cl. Ex. A, P. 2).  He prescribed 
 
            Naprosyn.
 
            
 
                 The evidence shows claimant sought intermittent help 
 
            from Dr. Ahn for these complaints from December 16, 1987 
 
            through May 2, 1988 (Cl. Ex. A, PP. 2-3).  Acupuncture was 
 
            the prescribed treatment.
 
            
 
                 Claimant's work required her to use her arms and back 
 
            while lifting rolls of cellophane to be placed on the Doboy 
 
            machine, which she was operating during this time period.  
 
            She indicated she was still experiencing pain in her right 
 
            hand, and in order to accommodate her physical condition, 
 
            claimant began using her left arm to lift the paper rolls, 
 
            and as a result put more pressure and stress on the left 
 
            side of her back.  Claimant was at work when she first 
 
            noticed the pain, and she was performing her regular duties.  
 
            Therefore, claimant sustained an injury which arose out of 
 
            and in the course of her employment.
 
            
 
                 Defendants raise the affirmative defense of no notice 
 
            as governed by Iowa Code section 85.23.  The relevant 
 
            portions of the Code, and pertinent caselaw, have been set 
 
            forth previously.
 
            
 
                 Claimant had returned to work following the second hand 
 
            surgery in November 1987.  Sometime in December 1987, 
 
            claimant met with her supervisor (Arlo Netolicky), the 
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            department manager (Ernie Larue), and discussed safety 
 
            procedures.  Her testimony is equivocal:
 
            
 
                 Q.  When did you tell Arlo and Ernie about these 
 
                 problems?
 
            
 
                 A.  I think December.  I don't know the exact 
 
                 date.  Sometime December of --
 
            
 
                 Q.  What year?
 
            
 
                 A.  -- 1987.
 
            
 
                 Q.  Where did this conversation take place?
 
            
 
                 A.  Ernie Larue told me when you work be careful, 
 
                 something like that, be careful.
 
            
 
                 Q.  Do you remember where you were when you had 
 
                 this talk?
 
            
 
                 A.  Oh.  Ernie's office I told.
 
            
 
                 Q.  Who was there when you had this talk?
 
            
 
                 A.  I think Ernie and Arlo.  I don't know.  The 
 
                 personnel manager.  I'm not sure.
 
            
 
                 Q.  The personnel manager?  You're not sure?
 
            
 
                 A.  I'm not sure if he's there or --
 
            
 
                 Q.  What did you tell Arlo and Ernie?
 
            
 
                 a.  I -- what I did tell --
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
            
 
                 Q.  What did you tell them?
 
            
 
                 A.  I tell them my left side is sore, my head ache 
 
                 and neck and shoulder and my low back, my hand 
 
                 sore sore.
 
            
 
                 Q.  Did you tell them why you thought it was sore?
 
            
 
                 A.  For lifting, I think.
 
            
 
                 Q.  Did you fill out a written report for this 
 
                 injury?
 
            
 
                 A.  No.
 
            
 
                 Q.  Were you asked to fill out a written report?
 
            
 
                 A.  No.  I just told them.
 
            
 
                 Q.  You told them?
 
            
 
                 A.  yes.
 
            
 
            (Tr. PP. 68-69)
 
            
 
                 Once again, the undersigned finds that claimant gave 
 
            sufficient information to the employer to alert them to a 
 
            possible injury.  The supervisor admits it is possible that 
 
            claimant told him she had hurt her back, neck, left shoulder 
 
            and left arm, and even though the undersigned finds that 
 
            claimant was not very specific in relaying any type of 
 
            accident to the supervisor or department manager, she did 
 
            tell them she was encountering some physical problems.  The 
 
            medical evidence corroborates her complaints.  Defendant 
 
            employer provides no substantial persuasive evidence to meet 
 
            their burden.  Therefore, it is found that claimant did give 
 
            adequate notice of the alleged injury of December 15, 1987.
 
            
 
                 Even though claimant had given sufficient notice there 
 
            is no medical evidence which shows that the injury caused 
 
            her to lose time from work.  She is not entitled to any 
 
            temporary total, healing period or permanency benefits for 
 
            this claim.  She is however, entitled to medical benefits 
 
            incurred for the treatment of this injury.
 
            
 
            April 12, 1988
 
            
 
                 The final injury alleged occurred April 12, 1988.  Her 
 
            petition alleges overuse and overextension of left and right 
 
            arms and hands.
 
            
 
                 The first issue to be resolved is whether claimant 
 
            received an injury which arose out of and in the course of 
 
            her employment.
 
            
 
                 For this injury, claimant sought treatment from Dr. 
 
            Harris (the company doctor) and Dr. Hales, who diagnosed her 
 
            condition as bilateral carpal tunnel and bilateral cubital 
 
            tunnel syndromes as a result of overuse.  He performed 
 

 
            
 
            Page  11
 
            
 
            
 
            
 
            
 
            surgeries to correct the problems on September 28, 1988 
 
            (left side) and December 16, 1988 (right side).
 
            
 
                 Dr. Hales has rendered several opinions with respect to 
 
            the issue of whether claimant's overuse condition which 
 
            mandated surgery was caused by the work she was performing 
 
            prior to her complaints of pain and subsequent surgeries.  
 
            His opinions on are varied:
 
            
 
                 September 13, 1988
 
            
 
                 Sin Cha Yi is experiencing problems at present 
 
                 that are totally separate and different from the 
 
                 February 1987 injury to her hand.  This patient 
 
                 has subluxating ulnar nerves in the ulnar tunnel 
 
                 or cubital tunnel at both elbows, giving her 
 
                 symptoms of ulnar neuritis or irritation of the 
 
                 ulnar nerve and symptoms related to that of 
 
                 aching, pain, numbness and tingling at times in 
 
                 the little and ring fingers....These symptoms had 
 
                 actually been present and I think related to over 
 
                 use of the elbows in the work place prior to the 
 
                 injury to her hand in February 1987.  While she 
 
                 was off and being treated and rehabilitated for 
 
                 that injury, those symptoms resolved, only to come 
 
                 back again after she resumed work.
 
            
 
            (Cl. Ex. LL, Ex. 5)
 
            
 
     
 
            
 
            
 
            Page  12
 
            
 
            
 
            
 
            
 
            On December 8, 1988, this was Dr. Hales' opinion:
 
            
 
                 To summarize briefly, Sin Cha Yi had developed 
 
                 problems with compression neuropathies, in other 
 
                 words, pinched nerves, in both elbows and we 
 
                 believe both wrists prior to the original 
 
                 accident.  After having the hand injury which 
 
                 required several months of rehabilitation and at 
 
                 least two surgeries, these symptoms resolved while 
 
                 being off work.  But once she returned to work, 
 
                 they again returned.  We tried various 
 
                 conservative measures to treat those, which were 
 
                 unsuccessful and her symptoms only worsened.  
 
                 Based on that, we decompressed or released the 
 
                 pinched nerves at the elbow and wrist on the left 
 
                 side in September, waiting on doing the right side 
 
                 until we knew that the left side seemed to have 
 
                 been of reasonable benefit.
 
            
 
            (C. Ex. LL, Ex. 8)
 
            
 
                 On April 19, 1989, he opined:
 
            
 
                 Because of the difficulty that Mrs. Yi has had in 
 
                 returning to the work place, I was very interested 
 
                 in trying to arrange for a tour of General Mills 
 
                 and see if I could understand what there was about 
 
                 the job that would particularly aggravate her 
 
                 elbow, particularly her left elbow where the 
 
                 cubital tunnel release was done.
 
            
 
                 I saw and evaluated the two machines that she 
 
                 works on primarily and also talked with the 
 
                 supervisor and other employees and watched other 
 
                 employees performing on these machines during 
 
                 regular working hours at General Mills.  I was 
 
                 taken back at the extreme ease and lack of 
 
                 repetitive motion that appeared to be present on 
 
                 both machines, especially each primary machine 
 
                 that she is on most of the time she is in the work 
 
                 place.  It would be my opinion that it would be 
 
                 very unlikely that an easier or less stressful job 
 
                 could be found for her.  It would be my opinion in 
 
                 fact that the normal stresses even in her home 
 
                 could well, as she normally does her normal 
 
                 everyday housework and chores, probably exceed the 
 
                 stresses that would be present in the work place 
 
                 on her left elbow.
 
            
 
                 It would be my opinion that I found nothing about 
 
                 the work enviornment [sic] or setting that should 
 
                 particularly be aggravating her elbow at the 
 
                 present time.
 
            
 
            (Cl. Ex. LL, Ex. 6)
 
            
 
                 On May 29, 1990, he rendered the following opinion 
 
            regarding permanency:
 
            
 
                 Based on our testing it would be my determination 
 

 
            
 
            Page  13
 
            
 
            
 
            
 
            
 
                 there is a ten percent impairment of the right 
 
                 upper extremity secondary to these injuries and a 
 
                 five percent impairment of the left upper 
 
                 extremity secondary to these injuries.
 
            
 
            (Cl. Ex. LL, Ex. 4)
 
            
 
                 On July 24, 1990, Dr. Hales wrote the following letter 
 
            to claimant's attorney:
 
            
 
                 [T]he problems that did occur, that is cubital 
 
                 tunnel syndrome at the elbow and carpal tunnel 
 
                 syndromes at the wrist, would normally contribute 
 
                 to repetitive use of the hands and upper 
 
                 extremities at work.  However, I must state, I 
 
                 specifically went and reviewed the particular work 
 
                 at the plant that she was doing and made a tour of 
 
                 the plant for that specific purpose and was 
 
                 impressed in fact that the particular job that she 
 
                 had was not repetitive in fashion and in fact 
 
                 would not particularly contribute, in my opinion, 
 
                 to developing an overuse syndrome due to the type 
 
                 of work she was doing.
 
            
 
                    ....
 
            
 
                 It would be my opinion it would be difficult to 
 
                 contribute these particular upper extremity 
 
                 overuse difficulties that she experienced to 
 
                 overuse in the work place, based on my review of 
 
                 the work place at the time that I did review it.  
 
                 I understand there were other things that she did 
 
                 in the plant during the time she worked there and 
 
                 we also tried to review those at that time, but 
 
                 particularly the machines that she had been on 
 
                 during the time these problems had developed, the 
 
                 Bemus [sic] and the Langdon [sic] did not, in my 
 
                 opinion, qualify as repetitive use type work that 
 
                 would contribute to overuse syndromes in the upper 
 
                 extremities.
 
            
 
            (Cl. Ex. LL, Ex. 7)
 
            
 
                 Dr. Hales was deposed on November 15, 1990.  His 
 
            opinion at that time is, yet again, different than previous 
 
            opinions:
 
            
 
                 Q.  Doctor, do you have an opinion based on a 
 
                 reasonable degree of medical certainty whether the 
 
                 problems of bilateral carpal tunnel syndrome and 
 
                 dilateral dubital tunnel syndrome are work 
 
                 related?
 
            
 
                 A.  It would be my opinion that these are likely 
 
                 related to her work, although I had gone to the 
 
                 plant and reviewed some of the work that this 
 
                 patient was doing; and I'm not totally familiar 
 
                 with all of her work history and I think some of 
 
                 the things that would have aggravated were 
 
                 probably some of the work that she had done prior 
 

 
            
 
            Page  14
 
            
 
            
 
            
 
            
 
                 to the time when she sustained her injury and not 
 
                 so much on the machines that she was on at that 
 
                 time, at least the ones I reviewed.
 
            
 
            (Cl. Ex. LL, P. 13)
 
            
 
                 It is understood that Dr. Hales' opinion that the 
 
            bilateral carpal tunnel and cubital tunnel syndromes were 
 
            not work-related is based on his assumption that claimant 
 
            was performing work on the Bemis and Langen machines at the 
 
            time the problems manifested themselves.  The evidence shows 
 
            that she was operating the Doboy machine from November 1987 
 
            through April 1988.  Therefore, Dr. Hales was unaware of 
 
            claimant's job duties in the months leading up to April 12, 
 
            1988:
 
            
 
                 Q.  Doctor, you do not know exactly what it was 
 
                 Sin Cha was doing before she was on the Bemis and 
 
                 Langen; is that right?
 
            
 
                 A.  That's correct.
 
            
 
                 Q.  Okay; so you don't know really how strenuous 
 
                 or how repetitive those jobs were or were not?
 
            
 
                 A.  That's correct.
 
            
 
                 Q.  Okay.  Would you agree that this carpal tunnel 
 
                 and cubital tunnel syndrome that Sin Cha had was 
 
                 as a result of a disease process rather than a 
 
                 single, traumatic, work-related incident like the 
 
                 one where she got her hand caught in the machine?
 
            
 
                 A.  That's correct.
 
            
 
            (Cl. Ex. LL, P. 32)
 
            
 
                 The undersigned is unable to rely upon Dr. Hales' 
 
            opinions regarding the causal link between claimant's work 
 
            and her injury.  The opinions vary dramatically, and some 
 
            are based on inaccurate information.  And, claimant has not 
 
            provided persuasive evidence to show that the injury arose 
 
            out of and in the course of her employment.  Claimant was 
 
            off of work to recuperate from the February 19, 1987 
 
            accident until November 10, 1987, when she was fully 
 
            released to return to work.  She was operating the Doboy 
 
            machine, which required her to replace rolls of cellaphane 
 
            paper every two hours.  Claimant has not shown that her work 
 
            was repetitive, or required the use of both right and left 
 
            hands and elbows to manifest the cubital and carpal tunnel 
 
            syndromes.  As a result, it is found that claimant's 
 
            injuries of April 12, 1988 did not arise out of and in the 
 
            course of her employment.
 
            
 
                 Finally, claimant has alleged a psychological injury as 
 
            a result of physical trauma.
 
            
 
                 Having previously found that defendant's employer is 
 
            liable only for the injury sustained on February 19, 1987, 
 
            the next issue to be resolved is whether claimant's 
 

 
            
 
            Page  15
 
            
 
            
 
            
 
            
 
            psychological problems are related to the injury she 
 
            sustained to her right hand.
 
            
 
                 The general rule followed by the agency is that the 
 
            scheduled loss system created by the legislature is presumed 
 
            to include compensation for reduced capacity to labor and to 
 
            earn.  Pilcher v. Penick & Ford, (Appeal Decision, October 
 
            21, 1987); Cannon v. Keokuk Steel Casting, (Appeal Decision, 
 
            January 27, 1988).
 
            
 
                 Claimant has been treated weekly by Dr. Wellso since 
 
            August 25, 1989.  She was hospitalized on October 20, 1990 
 
            at Mercy Hospital psychiatric unit for her condition.
 
            
 
                 Dr. Wellso's initial opinions, in pertinent part; are 
 
            revealed in a letter to Dr. Ahn dated October 16, 1989:
 
            
 
                 I am writing you concerning Sin Cha Yi who you 
 
                 referred for psychiatric evaluation and treatment 
 
                 because of depression.
 
            
 
                 She has been depressed for quite some time, 
 
                 several years it appears....She has continued to 
 
                 have depressive symptoms, her husband has moved 
 
                 out of the house,  In a way, this has been a 
 
                 relief to her because their relationship had 
 
                 deteriorated a great deal over the past six years.  
 
                 Even so, he isn't around to afford any support.  
 
                 She appears to have some work related anxiety and 
 
                 tension that is presumably due to the company's 
 
                 monitoring her behavior following the second 
 
                 accident at work...
 
            
 
                 Diagnostically she appears to have Major 
 
                 Depressive Disorder with Somatizations; Adjustment 
 
                 Disorder with Mixed Emotional Features, primarily 
 
                 tension and axiety; Marital Problem.
 
            
 
            (Cl. Ex. M, P. 1)
 
            
 
     
 
            
 
            
 
            Page  16
 
            
 
            
 
            
 
            
 
            Dr. Wellso's diagnoses have remained the same:
 
            
 
                 Q.  During the course of your treatment of Mrs. Yi 
 
                 have you arrived at any diagnosis or diagnoses?
 
            
 
                 A.  The diagnoses have remained pretty much the 
 
                 same from the time I first saw her.  She has a 
 
                 depression; I've called it sometimes a major 
 
                 depressive disorder or a chronic depression or a 
 
                 dysthymic disorder.  They all are depressive 
 
                 orders.  The dysthymic disorder says that it's a 
 
                 depression that a person has for a long time, like 
 
                 two years or more.  That's pretty much the -- In 
 
                 adults that's the limiting definition pretty much.  
 
                 In addition to that I felt that she had adjustment 
 
                 disorder problems with anxiety, tension, 
 
                 apprehension, tendency to regress and perform less 
 
                 satisfactorily at times.  She has had some 
 
                 tendency towards somatization, which might be 
 
                 included with that, but could also be included 
 
                 with the depressive disorder.  I have noted that 
 
                 she has a marital problem, but, frankly, here 
 
                 again I noted I think that that was a fairly -- I 
 
                 don't know -- relatively long-standing problem, 
 
                 but I don't think that -- I -- I don't know at 
 
                 this point what to say about it.  As I said, I 
 
                 didn't really get into it.
 
            
 
            (Cl. Ex. MM, PP. 18-19)
 
            
 
                 Dr. Wellso has also formed an opinion, within a 
 
            reasonable degree of medical certainty, that claimant's 
 
            emotional condiiton is related to her employment:
 
            
 
                 Q.  Do you have an opinion based on a reasonable 
 
                 degree of medical certainty whether the treatment 
 
                 that you have provided to Mrs. Yi was for a 
 
                 condition which bears a causal relationship to 
 
                 either those accidents or her employment at 
 
                 General Mills?
 
            
 
                 A.  Only in the sense that the treatment was for 
 
                 depression and anxiety and those things that I 
 
                 said.  I wouldn't distinguish between those two 
 
                 things that we are noting, but -- I mean, that I 
 
                 just referred to.  I thought it had something to 
 
                 do with the accidents and that period of time 
 
                 surrounding it and whatever went on there.
 
            
 
            (Cl. Ex. MM, P. 26)
 
            
 
                 He has submitted that claimant was disabled from work 
 
            from August 25, 1989 through April 13, 1990.  Defendant 
 
            employer's posture is that Dr. Wellso released claimant to 
 
            return to work on December 18, 1989.  His letter addressed 
 
            to the safety coordinator at General Mills, dated December 
 
            18, 1990, indicated that "I would hope that she would resume 
 
            work at sometime in the near future."  (Cl. Ex. MM, Ex. 2).  
 
            Dr. Wellso goes on to state "At present she still is 
 
            depressed, has not responded well to anti-depressant 
 

 
            
 
            Page  17
 
            
 
            
 
            
 
            
 
            medications and the language difficulties that are present 
 
            make psychotherapy with her, at times, difficult."  (Cl. Ex. 
 
            MM, Ex. 2).
 
            
 
                 Claimant's earning capacity has been affected to some 
 
            degree by her psychological problems.  However, claimant has 
 
            proven only a compensable injury to a scheduled member, as a 
 
            result, she is not entitled to any benefits for her 
 
            psychological problems.
 
            
 
                 Lastly, the issue of the liability of the second injury 
 
            fund is to be resolved.
 
            
 
                 Before the Second Injury Fund is triggered three 
 
            requirements must be met.  First, the employee must have 
 
            lost or lost the use of a hand, foot, leg or eye.  Second, 
 
            the employee must sustain another loss or loss of use of 
 
            another member or organ through a compensable injury.  
 
            Third, permanent disability must exist as to both the 
 
            initial injury and the second injury.  See Allen v. Second 
 
            Injury Fund, 34 Biennial Rep., Iowa Indus. Comm'r 15 (1980); 
 
            Ross v. Servicemaster-Story Co, 34 Biennial Rep. Iowa 
 
            Industrial Comm'r 273 (1979).
 
            
 
                 The Fund is responsible for the difference between 
 
            total disability and disability for which the employer at 
 
            the time of the second injury is responsible.  Section 
 
            85.64.  Second Injury Fund v. Mich. Coal Co., 274 N.W.2d 300 
 
            (Iowa 1970), Second Injury Fund v. John Deere Component 
 
            Works, Iowa Supreme Court Case No. 88-399, filed February 
 
            22, 1989.
 
            
 
                 Here, there has been only one injury to the claimant.  
 
            As a result, defendant Fund assumes no liability.
 
            
 
                                      order
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 That claimant take nothing for the alleged injury of 
 
            October 20, 1986;
 
            
 
                 That claimant take nothing further for the injury of 
 
            February 19, 1987;
 
            
 
                 That claimant take nothing for the alleged injury of 
 
            December 15, 1987;
 
            
 
                 That claimant take nothing for the alleged injury of 
 
            April 12, 1988;
 
            
 
                 That defendant Second Injury Fund of Iowa is not liable 
 
            for any payments of said benefits.
 
            
 
                 That defendant employer/insurance carrier shall pay 
 
            accrued weekly benefits in a lump sum and shall receive 
 
            credit against the award for weekly benefits previously 
 
            paid.
 
            
 
                 That defendants shall pay interest on benefits awarded 
 

 
            
 
            Page  18
 
            
 
            
 
            
 
            
 
            herein as set forth in Iowa Code section 85.30.
 
            
 
                 That defendants shall pay the costs of this action, 
 
            pursuant to rule 343 IAC 4.33.
 
            
 
                 That defendants shall file an activity report upon 
 
            payment of this award as required by this agency, pursuant 
 
            to rule 343 IAC 3.1.
 
            
 
                 Signed and filed this ____ day of March, 1991.
 
            
 
            
 
            
 
            
 
                                          
 
            ________________________________
 
                                          PATRICIA J. LANTZ
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr Thomas J Currie
 
            Attorney at Law
 
            3401 Williams Blvd SW
 
            PO Box 998
 
            Cedar Rapids Iowa 52406
 
            
 
            Mr Jeffrey J Greenwood
 
            Attorney at Law
 
            528 W 4th Street
 
            PO Box 1200
 
            Waterloo Iowa 50704
 
            
 
            Ms Joanne Moeller
 
            Assistant Attorney General
 
            Tort Claims Division
 
            Hoover State Office Bldg
 
            Des Moines Iowa 50319
 
            
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         DEAN GILLETTE,
 
         
 
              Claimant,                            File No. 845894
 
         
 
         vs.                                    A R B I T R A T I O N
 
         
 
         CITY OF DAVENPORT,                        D E C I S I O N
 
         
 
              Employer,                               F I L E D
 
         
 
         and                                         OCT 11 1989
 
         
 
         EMPLOYER'S REINSURANCE CORP.,      IOWA INDUSTRIAL COMMISSIONER
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              This is a proceeding in arbitration brought by Dean 
 
         Gillette, claimant, against the City of Davenport, Iowa, 
 
         employer, and Employer's Reinsurance Corporation, insurance 
 
         carrier, for workers' compensation benefits as a result of an 
 
         alleged injury on February 20, 1987.  On March 23, 1989, 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.  On February 20, 1987, claimant received an injury which 
 
         arose out of and in the course of his employment with Davenport.
 
         
 
              2.  Claimant is seeking temporary total disability or 
 
         healing period benefits from October 20, 1987 through April 19, 
 
         1988, and defendants agree that he was not working at this time.
 
         
 
              3.  If the injury is found to have caused permanent 
 
         disability, the type of disability is an industrial disability to 
 
         the body as a whole.
 
         
 
              4.  Claimant's rate of weekly compensation in this 
 
         proceeding shall be $241.30.
 
              
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              5.  Although identified as a disputed issued at the 
 
         pre-hearing conference, the portion of the prehearing report 
 
         pertaining to medical benefits was not completed.  No description 
 
         of any medical benefits dispute was attached to the prehearing 
 
         report as ordered in the assignment order.  Therefore, no medical 
 
         benefits issue will be dealt with.
 
         
 
                                      ISSUE
 
         
 
              The only issue submitted by the parties in the prehearing 
 
         report is the extent of claimant's entitlement to weekly benefits 
 
         for disability.
 
         
 
                                STATEMENT OF FACTS
 
         
 
              The following is a brief statement highlighting some of the 
 
         more pertinent evidence presented.  Any conclusions about the 
 
         evidence received contained in the following statement should be 
 
         viewed as preliminary findings of fact.
 
         
 
              Claimant was injured on February 20, 1987, when he was 
 
         digging dirt between the sidewalk and curb and stepped on the 
 
         shovel and fell, landing with his right shoulder hitting the 
 
         curb.
 
         
 
              At the time of the injury claimant was 63 years of age. 
 
         Claimant is currently retired from the City of Davenport.  
 
         Claimant testified that he was in excellent physical condition 
 
         before the injury and was fully able to do his regular heavy 
 
         manual labor job at the City of Davenport and paint houses.
 
         
 
              As a result of the work related injury claimant was 
 
         diagnosed by John Hoffman, M.D., the treating orthopedic surgeon, 
 
         as having suffered from a rotator cuff tear.  An anterior 
 
         acromioplasty was performed on claimant's dominant right shoulder 
 
         resulting in a resection of the coracoacromial ligament and 
 
         resection of the subacromial bursa with excision of the lateral 
 
         clavicle.  Dr. Hoffman, who is board certified, opines that 
 
         claimant has an 18 percent impairment of a whole man with work 
 
         restrictions of no work above the level of chest and limitations 
 
         of approximately 20 pounds to work below the level of the chest.
 
         
 
              Prior to the injury the claimant and other employees were 
 
         provided with information concerning an early retirement program 
 
         being offered by the City.  The claimant and his wife, Doris 
 
         Gillette, met with Dave Geisler, Assistant Personnel Director, on 
 
         February 12 or 13, 1987.  According to Geisler they expressed an 
 
         interest in seeking early retirement.  After the injury on March 
 
         9, 1987, the claimant opted for early retirement from the City 
 
         and received a bonus in the amount of $13,111.00.  He also 
 
         received health insurance benefits paid by the City until he 
 
         reached age 65.
 
         
 
              After the injury claimant and his wife moved from the 
 
         Davenport area to Bedford, Iowa, a small town 10 miles from the 
 
         Missouri border.  This was apparently claimant's former hometown. 
 
         Claimant said that he moved to his original home for cheaper 
 
         living.  He testified that he did not look for work other than 
 
         for the City prior to moving but made an extensive effort to 
 
         secure employment in Bedford.  Claimant applied for many jobs and 
 
         was terminated from numerous jobs due to an inability to perform 
 
         heavy work, including part-time odd jobs such as house painting.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Claimant testified that he had planned on working after 
 
         retirement but now is unable to do so.  Claimant testified that 
 
         he has only a sixth grade education and had to repeat all grades 
 
         after the second grade.  Claimant dropped out of school when he 
 
         was 16 and did not return.  Claimant expresses difficulty with 
 
         reading, writing and mathematical computations, but states that 
 
         he can make change.  Claimant testified that his work experience 
 
         is limited to unskilled employment requiring heavy manual labor.
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              I.  Claimant must establish by a preponderance of the 
 
         evidence the extent of weekly benefits for permanent disability 
 
         to which claimant is entitled.  As the claimant has shown that 
 
         the work injury was a cause of a permanent physical impairment or 
 
         limitation upon activity involving the body as a whole, the 
 
         degree of permanent disability must be measured pursuant to Iowa 
 
         Code section 85.34(2)(u).  However, unlike scheduled member 
 
         disabilities, the degree of disability under this provision is 
 
         not measured solely by the extent of a functional impairment or 
 
         loss of use of a body member.  A disability to the body as a 
 
         whole or an "industrial disability" is a loss of earning capacity 
 
         resulting from the work injury.  Diederich v. Tri-City Railway 
 
         Co., 219 Iowa 587, 593, 258 N.W. 899 (1935).  A physical 
 
         impairment or restriction on work activity may or may not result 
 
         in such a loss of earning capacity.  The extent to which a work 
 
         injury and a resulting medical condition has resulted in an 
 
         industrial disability is determined from examination of several 
 
         factors. These factors 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.  
 
         Olson v. Goodyear Service Stores, 255 Iowa 1112, 1121, 125 N.W.2d 
 
         251, 257 (1963).  See Peterson v. Truck Haven Cafe, Inc., (Appeal 
 
         Decision, February 28, 1985).
 
         
 
              Claimant's medical condition before the work injury was 
 
         excellent and he had no functional impairments or ascertainable 
 
         disabilities.  He was able to fully perform physical tasks 
 
         involving heavy lifting, repetitive lifting, bending, twisting 
 
         and stooping.  Claimant has been given a significant impairment 
 
         rating to the body as a whole.  However, more importantly in an 
 
         industrial disability case are physical activity restrictions 
 
         which limit the type of work claimant can perform.  Claimant's 
 
         physicians have restricted claimant's work activities by 
 
         prohibiting tasks such as heavy lifting over 20 pounds below the 
 
         chest and all lifting above the chest.  Claimant's medical 
 
         condition prevents him from returning to his former work or any 
 
         other heavy work he had performed in the past.  Claimant can no 
 
         longer perform the work for which he is best suited given his 
 
         age, education and work history.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Claimant remains unemployed despite a reasonable effort to 
 
         seek alternative employment in Bedford, Iowa.  Claimant asks for 
 
         application of the so-called odd-lot doctrine.  This doctrine is 
 
         a procedural device designed to shift the burden of proof with 
 
         respect to employability to the employer in certain factual 
 
         situations.  Klein v. Furnas Elec. Co., 384 N.W.2d 370, 375 (Iowa 
 
         1986).  Under the odd-lot doctrine claimant is able to establish 
 
         a prima facie case for unemployability and permanent total 
 
         disability benefits from a factual showing of a reasonable but 
 
         unsuccessful effort to find suitable work.  If defendants fail to 
 
         go forward with the evidence on the issue of availability of 
 
         suitable work, claimant is entitled to an award of permanent 
 
         total disability.  See Guyton v. Irving Jensen Co., 373 N.W.2d 
 
         101, 105 (1985).  However, the industrial commissioner has 
 
         directed that this doctrine cannot be applied by a deputy without 
 
         a showing of a reasonable effort to secure suitable employment.  
 
         Pyle v. Carstensen's Freight Lines, Inc., case number 753661 
 
         (Appeal Decision filed July 27, 1987).
 
         
 
              The problem with application of the odd-lot doctrine in this 
 
         case is that claimant did not seek work at the place of injury, 
 
         Davenport, Iowa, but only in Bedford, Iowa, a small depressed 
 
         economic community.  His inability to secure replacement 
 
         employment is in part due to his voluntary move to Bedford.  The 
 
         undersigned is of the opinion that such a job search and 
 
         claimant's movement of his residence is not the type of 
 
         circumstances envisioned by the Supreme Court in Guyton. 
 
         Therefore, the odd-lot doctrine and its automatic burden shifting 
 
         feature will not be applied in this case.
 
         
 
              Claimant is 65 years of age and nearing the end of his 
 
         working career.  His loss of future earnings from employment is 
 
         not as severe as would be the case for a younger individual.  See 
 
         Becke v. Turner-Busch, Inc., Thirty-Fourth Biennial Report of the 
 
         Iowa Industrial Commissioner 34 (Appeal Decision 1979).
 
         
 
              Claimant has for the most part left the employment market by 
 
         his early retirement from the City of Davenport.  However, 
 
         retirement only does not automatically end a retiree's working 
 
         life.  Prior to the work injury, claimant had ability to work in 
 
         various odd jobs and even a full time job in manual labor.  Due 
 
         to his lack of education and learning skills, a loss of 
 
         opportunity to perform manual labor has a very severe impact on 
 
         claimant's earning capacity.  Claimant has no potential for 
 
         vocational retraining.  Consequently, claimant's loss of earning 
 
         capacity must be fully compensated.  On the other hand, claimant 
 
         retired from the City of Davenport before he even sought medical 
 
         treatment from Dr. Hoffman.
 
         
 
              After examination of all the factors, it is found as a 
 
         matter of fact that claimant has suffered a 30 percent loss of 
 
         earning capacity from his work injury.  Based upon such a 
 
         finding, claimant is entitled as a matter of law to 150 weeks of 
 
         permanent partial disability benefits under Iowa Code section 
 
         85.34(2)(u) which is 30 percent of 500 weeks, the maximum 
 
         allowable for an injury to the body as a whole in that 
 
         subsection.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              As claimant has established entitlement to permanent partial 
 
         disability, claimant is entitled to weekly benefits for healing 
 
         period under Iowa Code section 85.34 from the date of injury 
 
         until he returns to work; until he is medically capable of 
 
         returning to substantially similar work to the work he was 
 
         performing at the time of injury; or, until it is indicated that 
 
         significant improvement from the injury is not anticipated, 
 
         whichever occurs first.  Defendants argue in their brief that Dr. 
 
         Hoffman released claimant for light duty work on October 1, 1987.  
 
         However, claimant was not able to return to his former job at 
 
         that time due to work restrictions and in December 1987, Dr. 
 
         Hoffman indicated that claimant still had not reached maximum 
 
         healing.  It would appear that the most appropriate time Dr. 
 
         Hoffman felt that claimant reached maximum healing was when he 
 
         rated claimant's disability.  This occurred on April 19, 1988.  
 
         This date will be used to end healing period benefits.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              1.  The work injury of February 20, 1987, was a cause of a 
 
         period of disability from work beginning on October 20, 1987 and 
 
         ending on April 19, 1988, at which time claimant reached maximum 
 
         healing.  During this time claimant received extensive treatment 
 
         of the work injury consisting of various treatment modalities 
 
         such as limitations on activity, medications for pain and 
 
         inflammation, whole exercises, supervised physical therapy and 
 
         surgery.
 
         
 
              2.  The work injury of February 20, 1987, is a cause of an 
 
         18 percent permanent partial impairment to the body as a whole 
 
         and of permanent restrictions upon claimant's physical activity 
 
         consisting of no lifting above chest level and no lifting over 20 
 
         pounds below chest level.  Claimant had no ascertainable 
 
         functional impairments prior to the work injury.
 
         
 
              3.  The work injury of February 20, 1987, and.the resulting 
 
         permanent partial impairment and work restrictions is a cause of 
 
         a 30 percent loss of earning capacity.  Claimant is 65 years of 
 
         age and has only a sixth grade education.  Claimant has 
 
         difficulty reading, writing and performing mathematical 
 
         computations. However, claimant can make change.  Claimant has no 
 
         ascertainable loss of earning capacity prior to the work injury.  
 
         Claimant's physician imposed work restrictions prevent a return 
 
         to the job he was performing at the time of injury and all other 
 
         heavy manual labor jobs he has held in the past.  Manual labor 
 
         occupations is the type of occupation for which he is best suited 
 
         given his work history, lack of education and limited 
 
         administrative skills. Despite good motivation in an effort to 
 
         secure some sort of gainful employment at his place of residence 
 
         in Bedford, Iowa, claimant remains unemployed.  Claimant has no 
 
         potential for vocational rehabilitation.  However, claimant took 
 
         early retirement from the City of Davenport and moved his 
 
         residence which foreclosed his opportunity to return to some sort 
 
         of alternative work for the City of Davenport.  Claimant moved 
 
         from the Davenport metro area, a large economy, to a small rural 
 
         community where employment opportunities are limited.  Claimant 
 
         did not look for a replacement employment in the Davenport area 
 
         prior to moving.  Claimant's move to a small community by itself 
 
         had an adverse effect on his earning capacity.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              Claimant has established under law entitlement to 150 weeks 
 
         of permanent partial disability benefits and to 26 weeks of 
 
         healing period benefits.
 
         
 
                                      ORDER
 
         
 
              1.  Defendants shall pay to claimant one hundred fifty (150) 
 
         weeks of permanent partial disability benefits at the rate of two 
 
         hundred forty-one and 30/100 dollars ($241.30) per week from 
 
         April 20, 1988.
 
         
 
              2.  Defendants shall pay to claimant healing period benefits 
 
         from October 20, 1987 through April 19, 1988, at the rate of two 
 
         hundred forty-one and 30/100 dollars ($241.30) per week.
 
         
 
              3.  Defendants shall pay accrued weekly benefits in a lump 
 
         sum and shall receive credit against this award for all benefits 
 
         previously paid.
 
         
 
              4.  Defendants shall pay interest on weekly benefits awarded 
 
         herein as set forth in Iowa Code section 85.30.
 
         
 
              5. Defendants shall pay the costs of this action pursuant to 
 
         Division of Industrial Services Rule 343-4.33.
 
         
 
              6.  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 11th day of October, 1989.
 
         
 
         
 
         
 
         
 
         
 
         
 
                                      LARRY P. WALSHIRE
 
                                       DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. James M. Hood
 
         Attorney at Law
 
         302 Union Arcade Bldg
 
         Davenport, IA  52801
 
         
 
         Ms. Mary J. Thee
 
         Mr. Steven Lussier
 
         Attorneys at Law
 
         City Hall
 
         226 West Fourth St
 
         Davenport, IA  52801
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
 
                                            
 
 
 
 
 
 
 
 
 
 
 
                                            5-1803
 
                                            Filed October 11, 1989
 
                                            LARRY P. WALSHIRE
 
                                            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         DEAN GILLETTE,
 
         
 
              Claimant,                             File No. 845894
 
         
 
         vs.                                     A R B I T R A T I O N
 
         
 
         CITY OF DAVENPORT,                         D E C I S I O N
 
         
 
              Employer,
 
         
 
         and
 
         
 
         EMPLOYER'S REINSURANCE CORP.,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
         5-1803 - Nonprecedential - extent of disability benefits.
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         VERN BENNETT,
 
         
 
              Claimant,                              File No. 846080
 
         
 
         vs.                                     A R B I T R A T I 0 N
 
         
 
         BENNETT CONSULTANTS, INC.                   D E C I S I 0 N
 
         
 
              Employer,
 
         
 
         and
 
         
 
         NEW HAMPSHIRE INSURANCE GROUP
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding in arbitration brought by Vern Bennett, 
 
         claimant, against Bennett Consultants, Inc., employer, and New 
 
         Hampshire Insurance Group, insurance carrier, defendants, for 
 
         benefits as the result of an alleged injury which occurred on 
 
         February 8, 1987.  A hearing was held in Des Moines, Iowa, on 
 
         November 30, 1988, and the case was fully submitted at the close 
 
         of the hearing.  The record consists of Joint Exhibits 1 through 
 
         9.
 
         
 
                                   STIPULATIONS
 
         
 
              The parties stipulated to the following matters:
 
         
 
              That an employer-employee relationship existed between 
 
         claimant and employer at the time of the alleged injury.
 
         
 
              That claimant makes no claim for permanent disability 
 
         benefits as the result of this injury.
 
         
 
              That the rate of compensation, in the event of an award, is 
 
         $158.45 per week.
 
         
 
              That the provider of medical supplies and services would 
 
         testify that the medical expenses are fair and reasonable and 
 
         were for reasonable and necessary medical treatment and 
 
         defendants are not offering contrary evidence.
 
         
 
              That defendants make no claim for credit for employee 
 
         nonoccupational group health plan benefits or workers' 
 
         compensation benefits paid prior to hearing.
 
              
 
              That there are no bifurcated claims.
 
         
 
                                     ISSUES
 
         
 
              The parties submitted the following issues for determination 
 

 
         
 
         
 
         
 
         BENNETT V. BENNETT CONSULTANTS, INC.
 
         PAGE   2
 
         
 
         
 
         at the time of the hearing.
 
         
 
              Whether claimant sustained an injury on February 8, 1987, 
 
         which arose out of and in the course of employment with 
 
         employer.
 
         
 
              Whether the alleged injury of February 8, 1987, was the 
 
         cause of temporary disability.
 
         
 
              Whether claimant is entitled to temporary disability 
 
         benefits.
 
         
 
              Whether claimant is entitled to medical benefits.
 
         
 
                             SUMMARY OF THE EVIDENCE
 
         
 
              All of the evidence was examined and considered.  The 
 
         following is a summary of the evidence most pertinent to this 
 
         decision.
 
         
 
              Claimant alleged that on February 8, 1987, he fell off of a 
 
         chair in his office at home and injured his head and eyes 
 
         (original notice and petition undated, but filed May 21, 1987).
 
         
 
              Claimant first saw Paul H. Maxwell, O.D., doctor of 
 
         optometry, on February 9, 1987.  Dr. Maxwell gave the following 
 
         report on April 1, 1987:
 
         
 
              Mr. Bennett initially presented in my office on 2/9/87 
 
              complaining of horizontal double vision.  History 
 
              indicates that the initial presentation was 2/6/87.  On 
 
              that date he had two episodes. on 2/7/87 he reported 
 
              increased frequency. on 2/8/87, after falling from his 
 
              chair and hitting the back of his head the double 
 
              vision persisted with no improvement.  Upon 
 
              examination, the diagnosis was a left eye sixth (VI) 
 
              nerve palsy.  Etiology is most likely Diabetes related, 
 
              but it is difficult to be certain when head trauma is 
 
              present.  In cases such as this, prognosis is usually 
 
              good.  Resolution, with no residual effects, takes 
 
              place in four to six (4-6) weeks. *Mr. Bennett was 
 
              referred back to Doctor Robert Foley, M.D., his Primary 
 
              Care Physician the following day 2/10/87.
 
         
 
              *During that time no treatment is usually necessary.  
 
              The patient must exercise caution driving and moving 
 
              about.  During the recovery period it is simply 
 
              recommended that the patient cover one (1) eye when 
 
              necessary.
 
         
 
         (Exhibit 5, page 15)
 
         
 
              Claimant next reported to the emergency department at the 
 
         Iowa Lutheran Hospital at 8:38 a.m. on February 17, 1987.  The 
 
         nursing interview states that on February 8, 1987, claimant fell 
 
         out of a chair striking his head and since that time he has had 
 
         double vision.  He was seen by an eye doctor who told him that he 
 
         had weak muscles in the left eye and that he should seek a 
 
         medical evaluation.  Claimant was seen at the emergency room by 
 

 
         
 
         
 
         
 
         BENNETT V. BENNETT CONSULTANTS, INC.
 
         PAGE   3
 
         
 
         
 
         Gregory Smith, M.D., who diagnosed a new onset of diabetes 
 
         mellitus and third nerve palsy secondary to the diabetes mellitus 
 
         (Ex. 9, p. 17).  Dr. Smith wrote a letter to claimant's counsel 
 
         on October 22, 1987, as follows:
 
         
 
              As you probably know, Mr. Bennett developed this 
 
              problem and sought the advice of his optician, who 
 
              expressed that he should probably be seen by his family 
 
              physician.  It is my feeling that probably his Diabetes 
 
              Mellitus was the greater factor in the developing of 
 
              this problem but perhaps his optician could give some 
 
              further insight in this regard and I would make further 
 
              reference to him.
 
         
 
              In regards to your second question, Mr. Bennett does 
 
              suffer quite a bit from diplopia and therefore may be 
 
              prevented from doing any paper work with any 
 
              efficiency.  My last visit with Mr. Bennett was in 
 
              July, at which time he seemed to be doing some better. 
 
               I am uncertain as to whether or not he has completely 
 
              improved in this regard, but would feel that he would 
 
              have been unable to perform his regular duties for a 
 
              length of time as yet unspecified.
 
         
 
         (Ex. 1, p. 1)
 
         
 
              Claimant then confronted Dr. Smith in a letter dated October 
 
         31, 1987, in these word:
 
         
 
                 Received a copy of your letter dated October 22, 
 
              1987 and sent to my Attorney Mr. Mark Pennington. 
 
              (enclosed) In the first paragraph of your letter you 
 
              state that you felt my vision problem was probably 
 
              caused more from (sic) my Diabetes Mellitus than from 
 
              my head injury.  When I discussed this with you at 
 
              length at Iowa Luthern (sic) Hospital in February 
 
              (sic), 1987 and again in your Office in July, 1987 you 
 
              infactually stated to me that you thought my vision 
 
              problem was caused by my fall and you expressed your 
 
              opinion that my case should be covered by Workman's 
 
              Compensation.  You further (sic) told me not to worry 
 
              about my over due charges with your Office and that I 
 
              could pay them when I settled with my Workman 
 
              Compensation Carrier.  I respectfully request that you 
 
              review your records and hopefully recall our 
 
              conversations in February (sic) and July, 1987 and with 
 
              those facts in mind recend (sic) your letter of October 
 
              22, 1987.  I am sure that you are aware that your 
 
              statement is very crucial to our case.  Thanking you in 
 
              advance for your cooperation, I remain,...
 
         
 
         (Ex. 2, p. 2)
 
         
 
              Dr. Smith responded as follows on November 4, 1987:
 
         
 
              In response to a letter from Vern dated October 31, 
 
              1987, I am writing a revised letter in regards to his 
 
              difficulty with diplopia.
 
         
 

 
         
 
         
 
         
 
         BENNETT V. BENNETT CONSULTANTS, INC.
 
         PAGE   4
 
         
 
         
 
              Mr. Bennett has had diplopia since suffering a head 
 
              injury in January of this year.  As a result of this 
 
              diplopia, he is having difficulty with doing any sort 
 
              of paperwork with any efficiency.
 
         
 
              He has sought the advice of an optician and also my 
 
              advise and I have been treating him for diabetes 
 
              mellitus.
 
         
 
              I have not seen him since July of 1987 at which time he 
 
              seemed to be doing somewhat better.
 
         
 
         (Ex. 3, p. 3)
 
         
 
              Dr. Smith, a board certified internist, gave a deposition on 
 
         June 14, 1988. on direct examination, Dr. Smith testified that 
 
         claimant saw him stating that he had fallen from a chair in his 
 
         home on February 8, 1987, and following that he experienced 
 
         double vision.  Dr. Smith testified that claimant had third nerve 
 
         palsy, which is a paralysis of the nerve that innervates muscles 
 
         to the left eye.  Claimant's blood sugar was somewhat high and 
 
         Dr. Smith told him that he had diabetes mellitus.  Dr. Smith was 
 
         asked whether the fall was a substantial contributing factor to 
 
         claimant's double vision problem.  Dr. Smith answered that based 
 
         on the history claimant gave him and from a "time course 
 
         standpoint" that it was.  Dr. Smith further testified that the 
 
         symptoms sustained would not interfere with claimant's ability to 
 
         read and write and basically do paper work types of functions 
 
         (Ex. 4, pp. 6-10).
 
         
 
              On cross-examination, Dr. Smith further testified that he 
 
         was not aware of the fact that claimant saw Dr. Maxwell on 
 
         February 9, 1987; that he reported to Dr. Maxwell that he 
 
         initially experienced horizontal double vision on February 6, 
 
         1987; that it recurred with increased frequency on February 7, 
 
         1987; and that after falling from his chair on February 8, 1987, 
 
         and hitting the back of his head, the double vision persisted 
 
         with no improvement.  Dr. Smith said that he was not aware that 
 
         as long ago as 1982, claimant was having double vision problems.  
 
         Dr. Smith granted that these facts would affect his opinion and 
 
         would indicate that the fall was not necessarily responsible for 
 
         the double vision and further that these facts would be 
 
         consistent with a course of causation that preexisted the fall 
 
         (Ex. 4, pp. 9-12).
 
         
 
              On redirect-examination, claimant's attorney and Dr. Smith 
 
         dialogued as follows:
 
         
 
              BY MR.  PENNINGTON:
 
         
 
              Q.  Doctor, could trauma to the head aggravate a 
 
              condition of double vision if it was existing prior to 
 
              the trauma?
 
         
 
              A.  I think it could, yes.
 
         
 
              Q.  Could it aggravate it to the extent that it would 
 
              be more serious and perhaps last longer?
 
         
 

 
         
 
         
 
         
 
         BENNETT V. BENNETT CONSULTANTS, INC.
 
         PAGE   5
 
         
 
         
 
              A.  What has happened to him is he has lost control of 
 
              the nerve as stated before that controls the muscle of 
 
              the eye.  This is probably as a result of lack of 
 
              circulation to that nerve, and it probably has occurred 
 
              as a result of impairment to the circulation as a 
 
              resuit of his diabetes.
 
         
 
                  If he was living by a thread and somehow knocked 
 
              his head in such a way that it broke the thread and 
 
              there was no longer enough circulation, then I could 
 
              conceivably see there may have been a causal 
 
              relationship there, but I can't prove any kind of 
 
              causal relationship.
 
         
 
              Q.  Do you feel it might be a substantial contributing 
 
              factor to his double vision the fact there was a trauma 
 
              to the head?
 
         
 
              A.  Only if I believe in what he tells me.
 
         
 
              Q.  If he reports that there was increased problems 
 
              with vision, do you have any reason to doubt him based 
 
              on what he has told you, any reason to doubt that 
 
              history?
 
         
 
              A.  Not from what he has told me.
 
         
 
                  MR. PENNINGTON:  That is all.
 
         (Ex. 4, pp. 12 & 13)
 
              On recross-examination the following exchange transpired 
 
         between Dr. Smith and defendants counsel,.
 
         
 
         
 
              BY MR.  FERRIS:
 
         
 
              Q.  The problems which he is having are consistent and 
 
              explainable by the underlying condition of diabetes and 
 
              do not require any trauma, is that right?
 
         
 
              A.  That is right.
 
         
 
                  MR. FERRIS:  That is all I have.
 
         
 
                  MR. PENNINGTON:  That is all.
 
         
 
         (Ex. 4, p. 13)
 
         
 
              The office notes of Des Moines Internists for August 30, 
 
         1982, reflect that claimant was seen for problems of visual 
 
         impairment and diabetes diagnosis.  The vision problem consisted 
 
         of seeing double at a distance, some blurriness, halos, etc.  The 
 
         examining physician noted that Dr. Meredith Saunders, an 
 
         ophthalmologist, had prescribed new glasses three weeks ago for a 
 
         refractory error consequent to recent diabetic status and 
 
         treatment.  The examining physician said he suspected Dr. 
 
         Saunders was correct about the refractory error consequent to 
 
         changes in the blood sugar level, fluid status, etc. (Ex. 7, p. 
 
         17).
 
         
 

 
         
 
         
 
         
 
         BENNETT V. BENNETT CONSULTANTS, INC.
 
         PAGE   6
 
         
 
         
 
              Other medical records in evidence show that claimant saw 
 
         Paul From, M.D., in January of 1975 for eye pain.  An 
 
         ophthalmologist had suggested either thyroid or diabetes.  The 
 
         etiology of the eye pains were undetermined, but claimant was 
 
         diagnosed as having borderline diabetes mellitus (Ex. 8, pp. 
 
         20-23).
 
         
 
              At the hearing, claimant presented the following medical 
 
         bills for payment.
 
         
 
                                  VERNON BENNETT
 
                                        
 
                                  MEDICAL BILLS
 
         
 
         DATE                    Hospital or Physician            Amount
 
         
 
         2/9/87                  Paul Maxwell, O.D.               $17.00
 
         
 
         2/17/87                 Iowa Lutheran Hospital          $752.44
 
         
 
         2/17/87                 Greg Smith, M.D.                 $30.00
 
         
 
         4/l/87                  Paul Maxwell, O.D.               $20.00
 
         
 
         7/10/87                 Greg Smith, M.D.                 $33.00
 
         
 
                                                     TOTAL       $852.44
 
         
 

 
         
 
         
 
         
 
         BENNETT V. BENNETT CONSULTANTS, INC.
 
         PAGE   7
 
         
 
         
 
         (Ex. 9, p. 24)
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              An employee is entitled to compensation for any and all 
 
         personal injuries which arise out of and in the course of the 
 
         employment.  Section 85.3(l).
 
         
 
              Claimant has the burden of proving by  a  preponderance of 
 
         the evidence that he received an injury on February 8, 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 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 claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury of February 8, 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, 261 Iowa 352, 154 
 
         N.W.2d 128.
 
         
 
              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.2nd 756, 760-761 
 
         (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).
 
         
 
              Claimant did not sustain the burden of proof by a 
 
         preponderance of the evidence that he sustained an injury that 
 
         arose out of and in the course of his employment with employer on 
 
         February 8, 1987.  Claimant was not present at the hearing to 
 

 
         
 
         
 
         
 
         BENNETT V. BENNETT CONSULTANTS, INC.
 
         PAGE   8
 
         
 
         
 
         testify and he did not testify by deposition either.  According 
 
         to Dr. Smith, however, claimant asserts that his diplopia became 
 
         worse after he fell and hit his head on February 8, 1987.  
 
         Claimant's assertion is not supported by the medical evidence or 
 
         any other evidence.  Claimant's diplopia may have seemed worse to 
 
         him on his own subjective standards, but there is nothing in the 
 
         medical evidence to establish that it was worse after the fall on 
 
         February 8, 1987. on the contrary, Dr. Maxwell's report indicates 
 
         that it was worse before the date of the injury than after the 
 
         injury (Ex. 5, p. 15).  It would appear that claimant had a 
 
         continuation of the eye problem that began back in 1975 when he 
 
         was seen by Dr. From (Ex. 8, pp. 20-23) and which recurred again 
 
         when he was seen by Des Moines Internists in 1982 (Ex. 7, p. 
 
         17).
 
         
 
              When claimant was seen by Dr. Maxwell, the eye doctor, he 
 
         related that he had experienced two episodes of horizontal double 
 
         vision on February 6, 1987.  This was two days before the fall on 
 
         February 8, 1987.  On February 7, 1987, claimant reported 
 
         increased frequency of double vision to Dr. Maxwell.  This was 
 
         one day before the fall.  On February 8, 1987, claimant fell from 
 
         his chair and hit the back of his head and the double vision 
 
         persisted with no improvement.  Thus the records of the eye 
 
         doctor made within a few hours after the injury occurred do not 
 
         reflect an increase in his symptomology.  Rather than an increase 
 
         in his symptomolgy, Dr. Maxwell stated that his symptoms 
 
         persisted with no improvement.  Dr. Maxwell did not say they 
 
         increased after the injury.  Dr. Maxwell did record that the 
 
         symptoms were increased on the day before the injury (Ex. 5, p. 
 
         15).  Therefore, claimant did not prove an increase in his 
 
         diplopia after the fall of February 8, 1987.
 
         
 
              Furthermore, when claimant was seen in the emergency room by 
 
         Dr. Smith on February 17, 1987, Dr. Smith diagnosed a new onset 
 
         of diabetes mellitus and a third nerve palsy secondary to the 
 
         diabetes mellitus.  Although the fall was given in the medical 
 
         history, Dr. Smith did not indicate that the fall either caused 
 
         or aggravated the diabetes mellitus or the double vision (Ex. 6, 
 
         p. 16).
 
         
 
              On October 22, 1987, Dr. Smith wrote to claimant's counsel 
 
         and stated that claimant's diabetes mellitus was probably the 
 
         greater factor in the developing of this problem (Ex. 1, p. 1).  
 
         Claimant then confronted Dr. Smith alleging that Dr. Smith had 
 
         changed his opinion from what he had represented to claimant in 
 
         the doctor's office (Ex. 2, p. 2).  Dr. Smith responded by saying 
 
         that claimant has had diplopia since suffering a head injury and 
 
         was having difficulty doing paperwork.  Dr. Smith did not say at 
 
         this time that the injury caused or aggravated claimant's 
 
         diplopia in this letter (Ex. 3, p. 3).
 
         
 
              In his deposition, Dr. Smith granted that from a "time 
 
         course standpoint" the fall was a substantial contributing factor 
 
         to claimant's double vision problem.  However, defendants counsel 
 
         brought out that Dr. Smith was not aware of the fact that 
 
         claimant had seen Dr. Maxwell on February 9,,1987; reported that 
 
         the initial presentation of double vision occurred on February 6, 
 
         1987; and it occurred again with increased frequency on February 
 
         7, 1987.  Dr. Smith said that he was not aware of claimant's 
 

 
         
 
         
 
         
 
         BENNETT V. BENNETT CONSULTANTS, INC.
 
         PAGE   9
 
         
 
         
 
         double vision problems in 1982.  Dr. Smith said that these 
 
         factors would affect his opinion and would indicate that the fall 
 
         was not the cause of claimant's double vision problems, but were 
 
         rather consistent with a course of causation preexisting the fall 
 
         (Ex. 4, pp. 6-9).
 
         
 
              As to whether there was an aggravation of an already poor 
 
         circulation problem, Dr. Smith said conceivably there was a 
 
         causal connection, but he could not prove any kind of a causal 
 
         relationship (Ex. 4, p. 12).
 
         
 
              The question of causal connection is essentially within the 
 
         domain of expert testimony.  Bradshaw, 251 Iowa 375, 101 N.W.2d 
 
         167.  At best, Dr. Smith said there was a possible causal 
 
         connection but that was based on the history claimant gave him 
 
         and not upon Dr. Smith's own independent professional medical 
 
         judgement.  The possibility of a causal connection is 
 
         insufficient; a probability is necessary.  Burt, 247 Iowa 691, 73 
 
         N.W.2d 732.  Dr. Maxwell, the eye doctor, did not give an opinion 
 
         on whether the diplopia was caused by the fall (Ex. 5, p. 15).
 
         
 
              Based on the foregoing evidence, it is determined that 
 
         claimant did not sustain the burden of proof by a preponderance 
 
         of the evidence that his double vision arose out of and in the 
 
         course of his employment with employer.  Dr. Smith did not 
 
         testify that the diplopia was either caused by or aggravated by 
 
         claimant's employment, nor did he testify that it was probably 
 
         caused or probably aggravated by claimant's employment, neither 
 
         did Dr. Maxwell, the eye doctor.   Since claimant has not proven 
 
         an injury arising out of and in the course of employment, then 
 
         claimant is not entitled to weekly compensation for temporary 
 
         total disability benefits, nor is he entitled to the payment of 
 
         medical expenses.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              Wherefore, based upon the evidence presented, the following 
 
         findings of fact are made.
 
         
 
              That claimant was suspected of having diabetes in 1975.
 
         
 
              That claimant was diagnosed as having diabetes mellitus with 
 
         diplopia in 1982.
 
         
 
              That claimant had a recurrent episode of diplopia on 
 
         February 6, 1987.
 
         
 
              That claimant reported increased episodes of diplopia on 
 
         February 7, 1987.
 
         
 
              That claimant fell out of a chair and struck his head on 
 
         February 8, 1987, and the diplopia persisted without 
 
         improvement.
 
         
 
              That neither Dr. Maxwell, claimant's own choice of eye 
 
         doctor, nor Dr. Smith, a board certified internist and claimant's 
 
         own choice of treating physician, testified that the fall on 
 
         February 8, 1987, either caused or aggravated or probably caused 
 
         or aggravated claimant's diabetes mellitus or his diplopia 
 

 
         
 
         
 
         
 
         BENNETT V. BENNETT CONSULTANTS, INC.
 
         PAGE  10
 
         
 
         
 
         problem.
 
         
 
              That claimant did not sustain the burden of proof by a 
 
         preponderance of the evidence that he sustained an injury arising 
 
         out of and in the course of his employment with employer.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              WHEREFORE, based upon the evidence presented and the 
 
         principles of law previously discussed, the following conclusions 
 
         of law are made.
 
         
 
              That claimant did not sustain the burden of proof by a 
 
         preponderance of the evidence that he sustained an injury on 
 
         February 8, 1987, which arose out of and in the course of his 
 
         employment, when he fell from a chair and struck his head.
 
         
 
              That claimant is not entitled to temporary total workers' 
 
         compensation weekly benefits and claimant is not entitled to 
 
         medical benefits.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              That no amounts are due from defendants to  claimant.
 
         
 
              That the costs of this action are charged to claimant 
 
         pursuant to Division of Industrial Services Rule 343-4.33.
 
         
 
              That defendants prehearing costs are itemized and attached 
 
         to the prehearing report and total one hundred seventy-eight and 
 
         17/100 dollars ($178.17). The cost of the attendance of the court 
 
         reporter at the hearing is twenty dollars ($20).  These costs of 
 
         one hundred ninety-eight and 17/100 dollars ($198.17) are 
 
         approved and are to be paid by claimant to defendants.
 
         
 
              That defendants file claim activity reports as requested by 
 
         this agency pursuant to Division of Industrial Services 343-3.1.
 
         
 
              Signed and filed this 14th day of December, 1988.
 
         
 
         
 
         
 
         
 
         
 
         
 
                                           WALTER R. McMANUS, JR.
 
                                           DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies to:
 
         
 
         Mr. Mark Pennington
 
         Attorney at Law
 
         620 Fleming Bldg
 
         Des Moines, IA 50309
 
         
 
         Mr. Roger Ferris
 
         Attorney at Law
 

 
         
 
         
 
         
 
         BENNETT V. BENNETT CONSULTANTS, INC.
 
         PAGE  11
 
         
 
         
 
         1900 Hub Tower
 
         699 Walnut
 
         Des Moines, IA 50309
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                             1106; 1108.50; 1401; 1402.20
 
                                             1402.30; 1402.40; 1402.60;
 
                                             1801; 2501
 
                                             Filed December 14, 1988
 
                                             WALTER R. McMANUS, JR.
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         VERN BENNETT,
 
         
 
              Claimant,                        File No.  846080
 
         
 
         vs.                               A R B I T R A T I 0 N
 
         
 
         BENNETT CONSULTANTS, INC.             D E C I S I 0 N
 
         
 
              Employer,
 
         
 
         and
 
         
 
         NEW HAMPSHIRE INSURANCE GROUP
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
         1106; 1108.50; 1401; 1402.20; 1402.30; 1402.40; 1402.60; 1802; 
 
         2501
 
         
 
              Claimant did not prove that a fall from his chair at an 
 
         office in his home caused an injury arising out of and in the 
 
         course of his employment with employer.  On the contrary, the 
 
         evidence disclosed that claimant's double vision was caused by 
 
         his diabetes mellitus which predated the accident for several 
 
         years.  Claimant was not awarded temporary disability benefits or 
 
         medical benefits.
 
 
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                            :
 
            SARAH K. VOWELL,                :
 
                                            :
 
                 Claimant,                  :
 
                                            :
 
            vs.                             :
 
                                            :         File No. 846101
 
            CLIFTON PRECISION,              :
 
                                            :      A R B I T R A T I O N
 
                 Employer,                  :
 
                                            :         D E C I S I O N
 
            and                             :
 
                                            :
 
            THE TRAVELERS INSURANCE COMPANY,:
 
                                            :
 
                 Insurance Carrier,         :
 
                 Defendants.                :
 
            ___________________________________________________________
 
            
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding in arbitration upon the petition 
 
            of claimant, Sarah Vowell, against her employer, Clifton 
 
            Precision, and its insurance carrier, The Travelers 
 
            Insurance Company, defendants.  The case was heard in 
 
            Davenport, Iowa at the Bicentennial Building.  The record 
 
            consists of the testimony of claimant and of her spouse, 
 
            William W. Vowell.  Additionally, the record consists of 
 
            joint exhibits 1-25 and claimant's exhibit l.
 
            
 
                                      issues
 
            
 
                 The issues to be determined are:  1) whether there is a 
 
            causal relationship between the alleged injury and the 
 
            disability; 2) whether claimant is entitled to permanent 
 
            partial disability benefits; and, 3) whether claimant is 
 
            entitled to medical benefits under section 85.27.
 
            
 
                                 findings of fact
 
            
 
                 The deputy, having heard the testimony and considered 
 
            all the evidence, finds:
 
            
 
                 Claimant is 51 years old.  She completed a course as a 
 
            machinist seven or eight years ago while she was a student 
 
            at Scott County Community College.  The course involved 16 
 
            weeks of training and claimant received a certificate of 
 
            completion.
 
            
 
                 Claimant commenced her employment with the predecessor 
 
            of defendant-employer on October 15, 1973.  At that time, 
 
            claimant was hired as a calibrator for $3.26 per hour.  
 
            Claimant held various positions over the course of her 
 
            employment.  Each position carried a separate rate of pay.
 
            
 
                 On the date of her injury, February 11, 1987, claimant 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            was working as a chucker operator for $11.12 per hour.  She 
 
            set up her machine, ran parts for cutting, and removed the 
 
            parts.  While she was talking with her foreman, Terry 
 
            McDonald, the machine stopped.  The foreman attempted to 
 
            adjust the machine but it malfunctioned and the chucker jaws 
 
            hit claimant knocking her into another machine and throwing 
 
            her to the floor.  Claimant testified her back and left leg 
 
            began hurting.  She was off work for a period of time.
 
            
 
                 After her return to work, claimant was disqualified as 
 
            a machinist since she was taking Tylenol No. 3 with codeine.  
 
            Claimant downgraded to a parts washer II.  As of the date of 
 
            the hearing, claimant was earning $9.76 per hour for the 
 
            parts washer position.  She had not returned to the higher 
 
            classification of machinist.
 
            
 
                 With respect to claimant's medical condition, she had 
 
            sustained a work related injury to her back in July of 1980.  
 
            Subsequent to that injury, claimant had a hemilaminectomy at 
 
            L-4-L5.  In file number 642100, claimant was determined to 
 
            have a 40 percent permanent partial disability.  She 
 
            returned to work.
 
            
 
                 Then on June 22, 1982, while at work, claimant's chair 
 
            slipped and claimant fell backwards.  She missed two weeks 
 
            of work because of the accident.  Subsequent to her injury, 
 
            claimant filed a petition with this division.  On January 
 
            31, 1985, an appeal decision was filed in file number 
 
            721116.  Commissioner Robert C. Landess held that claimant 
 
            suffered a temporary exacerbation of a preexisting 
 
            condition.  He wrote in his appeal decision.
 
            
 
                 Claimant has a preexisting condition appropriately 
 
                 compensated.  Her present employer has worked with 
 
                 her and given her work within her abilities from 
 
                 which she has actually increased her earnings.  
 
                 She is doing comparable work as before.  Her 
 
                 temporary exacerbation of her preexisting 
 
                 condition has been compensated.
 
            
 
                 After her injury on February 11, 1987, claimant sought 
 
            medical attention from Anthony D'Angelo, Jr., D.O.  In his 
 
            report of September 8, 1987, Dr. D'Angelo opined:
 
            
 
                 Based upon history and examination, it is my 
 
                 opinion patient's current condition is a 
 
                 combination of injury which occurred either 
 
                 February 11th or February 12, 1987 while at work 
 
                 and prior long-standing problems involving the 
 
                 lumbar spine.  Rehabilitative treatment both 
 
                 physical and vocational would be appropriate for 
 
                 this employee pending her tolerance for current 
 
                 job activities and acuteness of symptoms.  
 
                 Anticipated permanent disability would only be 
 
                 slightly increased over that of disability 
 
                 associated with the prior herniated disc (for 
 
                 which patient underwent lumbar laminectomy) and 
 
                 disc space infection.  Course of treatment recom
 
                 mended is that of use of analgesics, occasional 
 
                 physical therapy, occasional modification of job 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
                 activity and ultimately job retraining or 
 
                 elimination of certain job activities, again, 
 
                 pending acuteness of patient's symptoms.
 
            
 
                 It is my opinion patient will suffer from repeated 
 
                 exacerbations of current condition in the future.  
 
                 I am unable to state frequency or duration but 
 
                 would expect at times a significant improvement in 
 
                 symptoms and at times a temporary worsening of 
 
                 symptoms.
 
            
 
                 Claimant also sought an opinion from her former 
 
            treating surgeon, Richard T. Beaty, D.O.  In his report of 
 
            December 18, 1989, Dr. Beaty opined:
 
            
 
                 Pursuant to our telephone conversation of 12-14-89 
 
                 I am writing you this letter.
 
            
 
                 The M.R.I. with Gadolinium Infusion showed 
 
                 narrowing of the L4-5 disc.  The mild scarring 
 
                 identified enhances post-Gadolinium which would be 
 
                 consistent with post-surgical changes and not a 
 
                 re-herniation of the disc.
 
            
 
                 The E.M.G. was compatible with an L5 radiculopathy 
 
                 on the left.  The S.S.E.P. was also compatible 
 
                 with an L5 radiculopathy on the left.  This is 
 
                 consistent with the patient's previous history of 
 
                 surgery at the L4-5 level on the left.
 
            
 
                 I am still awaiting the CBC, Sed. Rate and SMAC 
 
                 results.  Depending on what these show will depend 
 
                 on what our next recommendation would be.  In the 
 
                 meantime I would recommend that the patient be 
 
                 placed on oral anti-inflammatories and in the back 
 
                 brace.
 
            
 
                 Later, Dr. Beaty modified his opinion in his subsequent 
 
            report of December 28, 1989.  Dr. Beaty noted:
 
            
 
                 In follow-up to our telephone conversation of 
 
                 12-14-89 I am in receipt of the blood reports from 
 
                 Davenport Medical Center.
 
            
 
                 The blood reports do not indicate any sign of 
 
                 infection at this time with the Sed. Rate being 
 
                 20.  Previously it had been as high as in the 30s.  
 
                 There is basically a normal white count white 
 
                 count [sic] with no shift.
 
            
 
                 I fail to see anything which would lead me to 
 
                 believe that Sarah's infection has been activated 
 
                 by the fall and therefore I believe that she 
 
                 probably has symptomatic scar tissue around the L5 
 
                 nerve root which may have been aggravated by the 
 
                 fall.
 
            
 
                 The recommendation for treatment is immobilization 
 
                 in a back brace; restricted work-activities to 
 
                 avoid heavy lifting, repetitive bending and 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
                 twisting and oral anti-inflammatories.  These can 
 
                 probably be arranged for through the local 
 
                 physicians in Davenport.
 
            
 
                 Claimant also sought medical treatment at the 
 
            University of Iowa Pain Clinic where she was treated by 
 
            Christopher M. Loftus, M.D.  In his report of February 7, 
 
            1989, Dr. Loftus opined:
 
            
 
                 I'm in receipt of your letter requesting further 
 
                 information regarding the case of Sarah K. Vowell.  
 
                 Let me answer your questions in turn.  I took her 
 
                 last examination and evaluated her according to 
 
                 the AMA Guidelines for permanent impairment.  By 
 
                 these guidelines, I rate her permanent impairment 
 
                 as 10% of the whole man.  This is broken down into 
 
                 5% for lumbar disc surgery with residuals and 5% 
 
                 for loss of mobility in the lumbar spine.  No 
 
                 values were given for motor or sensory deficit 
 
                 since there's been no clear reproducible deficits 
 
                 in this patient.  I regard this as a permanent 
 
                 disability in view of the fact that I followed her 
 
                 for some period of time without much change.
 
            
 
                 It's more difficult for me to tell you whether or 
 
                 not this is work related.  Mrs. Vowell clearly 
 
                 told me that she felt her injuries were work 
 
                 related and described a specific incident, the 
 
                 details of which however are not recorded on my 
 
                 office notes.  In addition, she seemed to have 
 
                 some improvement when put on a prolonged non work 
 
                 status.  However, it should be noted that I did 
 
                 not treat her for her initial work injury and I 
 
                 had the opportunity to see her only at some period 
 
                 after she'd been treated elsewhere.  In addition, 
 
                 I was not the surgeon of record in her lumbar 
 
                 surgery.  Since Mrs. Vowell had significant 
 
                 subjective improvement when refraining from 
 
                 physical labor, I have no hestitation [sic] to 
 
                 recommend certain physical restrictions for her.  
 
                 I would recommend that she not involved [sic] in a 
 
                 job that involves a significant amount of flexion 
 
                 or bending of the lumbar spine, such as a job that 
 
                 required her to pick up a large number of objects 
 
                 from the floor.  In addition, I don't think she 
 
                 should do heavy lifting, i.e. no objects over 20 
 
                 pounds.  She should also refrain from any 
 
                 activities that would require standing and 
 
                 repetitive twisting in the lumbar spine.
 
            
 
                 I hope this information is sufficient for your 
 
                 purposes and I stand ready to provide any more 
 
                 narrative that you might require.
 
            
 
                 Claimant was also examined by Byron W. Rovine, M.D.  In 
 
            his report of September 28, 1987, Dr. Rovine noted:
 
            
 
                 The CT scan, which was done recently, shows 
 
                 evidence of some soft tissue density on the left 
 
                 side at the L4-5 level.  This has been interpreted 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
                 as probable recurrent disc and an indication for 
 
                 re-operation.  Under the circumstances of the 
 
                 post-traumatic onset of her symptoms in February, 
 
                 1987, approximately five and a half years after 
 
                 her surgery, and radiographic finding of a 
 
                 virtually obliterated disc space at that level, it 
 
                 is hard to agree with that interpretation.  The 
 
                 soft tissue density is much more likely to be scar 
 
                 tissue, especially in view of the history of her 
 
                 having had some disc space infection.
 
            
 
                 I certainly believe that further conservative 
 
                 treatment is indicated for Mrs. Vowell.  In a 
 
                 situation of this sort,I [sic] believe that 
 
                 re-operation should be advised only in the face of 
 
                 a deteriorating neurological condition caused by 
 
                 nerve root compression or intractable pain which 
 
                 cannot be relieved in any other manner.  I do not 
 
                 believe that either of these conditions obtains in 
 
                 Mrs. Vowell's case.
 
            
 
                 I would suspect that it is more likely that the 
 
                 trauma in February, 1987 pulled loose some 
 
                 adhesions creating her problem.  There is really 
 
                 no objective evidence of active radiculopathy at 
 
                 the present time.  I would strongly advise that 
 
                 she be put on anti-inflammatory medication on a 
 
                 regular basis, whether steroidal or non-steroidal 
 
                 is not important.  I would recommend that 
 
                 continued restriction of her activity be 
 
                 maintained.  She informed me that she has a TENS 
 
                 unit that has been helpful in the past, but she is 
 
                 not now using it.  I think she should be 
 
                 re-evaluated for further use of the TENS unit 
 
                 perhaps with adjustment in the electrode location 
 
                 and parimeters [sic] of stimulation.  I believe 
 
                 that it is very likely that she may get along 
 
                 quite well without a need for further surgery.  
 
                 She, herself does not wish to have further surgery 
 
                 and would like to avoid it if at all possible.
 
            
 
                 If there are any further questions you might have, 
 
                 please do not hesitate to contact me.
 
            
 
                 Daniel P. Congreve, M.D., as of March 25, 1987 opined 
 
            that claimant would return to work on March 26, 1987 with:
 
            
 
                 [R]estrictions of Dr. Beaty in Oct 15, 1982 - She 
 
                 should be involved in job activity without 
 
                 repetitive bending or twisting or stooping.  No 
 
                 lifting >25 lbs.  If the job activity causes 
 
                 excessive discomfort or pain, this should be 
 
                 reported and the job discontinued.
 
            
 
                                conclusions of law
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury of February 
 
            11, 1987, is causally related to the disability on which she 
 
            now bases her claim.  Bodish v. Fischer, Inc., 257 Iowa 516, 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            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). 
 
            
 
                 The opinions of experts need not be couched in 
 
            definite, positive or unequivocal language.  Sondag v. 
 
            Ferris Hardward, 220 N.W.2d 903 (Iowa 1974).  An opinion of 
 
            an expert based upon an incomplete history is not binding 
 
            upon the commissioner, but must be weighed together with the 
 
            other disclosed facts and circumstances.  Bodish, 257 Iowa 
 
            516, 133 N.W.2d 867 (1965).  The expert medical evidence 
 
            must be considered with all other evidence introduced 
 
            bearing on the causal connection between the injury and the 
 
            disability.  Burt, 247 Iowa 691, 73 N.W.2d 732 (1955).  In 
 
            regard to medical testimony, the commissioner is required to 
 
            state the reasons on which testimony is accepted or 
 
            rejected.  Sondag, 220 N.W.2d 903 (1974).
 
            
 
                 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).
 
            
 
                 When an aggravation occurs in the performance of an 
 
            employer's work and a causal connection is established, 
 
            claimant may recover to the extent of the impairment.  
 
            Ziegler v. United States Gypsum Co., 252 Iowa 613, 620, 106 
 
            N.W.2d 591, 595 (1960).
 
            
 
                 The Iowa Supreme Court cites, apparently with approval, 
 
            the C.J.S. statement that the aggravation should be material 
 
            if it is to be compensable.  Yeager v. Firestone Tire & 
 
            Rubber Co., 253 Iowa 369, 112 N.W.2d 299 (1961); 100 C.J.S. 
 
            Workmen's Compensation sec. 555(17)a.
 
            
 
                 Our supreme court has stated many times that a claimant 
 
            may recover for a work connected aggravation of a 
 
            preexisting condition.  Almquist v. Shenandoah Nurseries, 
 
            218 Iowa 724, 254 N.W. 35 (1934).  See also Auxier v. 
 
            Woodward State Hosp. Sch., 266 N.W.2d 139 (Iowa 1978); Gosek 
 
            v. Garmer and Stiles Co., 158 N.W.2d 731 (Iowa 1968); Barz 
 
            v. Oler, 257 Iowa 508, 133 N.W.2d 704 (1965); Olson v. 
 
            Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251 
 
            (1963); Yeager, 253 Iowa 369, 112 N.W.2d 299 (1961); 
 
            Ziegler, 252 Iowa 613, 106 N.W.2d 591 (1960).
 
            
 
                 An employer takes an employee subject to any active or 
 
            dormant health impairments, and a work connected injury 
 
            which more than slightly aggravates the condition is 
 
            considered to be a personal injury.  Ziegler, 252 Iowa 613, 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            620, 106 N.W.2d 591 (1960), and cases cited.
 
            
 
                 An employee is not entitled to recover for the results 
 
            of a preexisting injury or disease but can recover for an 
 
            aggravation thereof which resulted in the disability found 
 
            to exist.  Olson, 255 Iowa 1112, 125 N.W.2d 251 (1963); 
 
            Yeager, 253 Iowa 369, 112 N.W.2d 299 (1961); Ziegler, 252 
 
            Iowa 613, 106 N.W.2d 591 (1960).  See also Barz, 257 Iowa 
 
            508, 133 N.W.2d 704 (1965); Almquist, 218 Iowa 724, 254 N.W. 
 
            35 (1934).
 
            
 
                 If a claimant contends he has industrial disability he 
 
            has the burden of proving his injury results in an ailment 
 
            extending beyond the scheduled loss.  Kellogg v. Shute and 
 
            Lewis Coal Co., 256 Iowa 1257, 130 N.W.2d 667 (1964).
 
            
 
                 A finding of impairment to the body as a whole found by 
 
            a medical evaluator does not equate to industrial disabil
 
            ity.  This is so as impairment and disability are not syn
 
            onymous.  Degree of industrial disability can in fact be 
 
            much different than the degree of impairment because in the 
 
            first instance reference is to loss of earning capacity and 
 
            in the latter to anatomical or functional abnormality or 
 
            loss.  Although loss of function is to be considered and 
 
            disability can rarely be found without it, it is not so that 
 
            a degree of industrial disability is proportionally related 
 
            to a degree of impairment of bodily function.
 
            
 
                 Factors to be considered in determining industrial dis
 
            ability include the employee's medical condition prior to 
 
            the injury, immediately after the injury, and presently; the 
 
            situs of the injury, its severity and the length of healing 
 
            period; the work experience of the employee prior to the 
 
            injury, after the injury and potential for rehabilitation; 
 
            the employee's qualifications intellectually, emotionally 
 
            and physically; earnings prior and subsequent to the injury; 
 
            age; education; motivation; functional impairment as a 
 
            result of the injury; and inability because of the injury to 
 
            engage in employment for which the employee is fitted.  Loss 
 
            of earnings caused by a job transfer for reasons related to 
 
            the injury is also relevant.  These are matters which the 
 
            finder of fact considers collectively in arriving at the 
 
            determination of the degree of industrial disability.
 
            
 
                 There are no weighting guidelines that indicate how 
 
            each of the factors are to be considered.  There are no 
 
            guidelines which give, for example, age a weighted value of 
 
            ten percent of the total value, education a value of fifteen 
 
            percent of total, motivation - five percent; work experience 
 
            - thirty percent, etc.  Neither does a rating of functional 
 
            impairment directly correlate to a degree of industrial 
 
            disability to the body as a whole.  In other words, there 
 
            are no formulae which can be applied and then added up to 
 
            determine the degree of industrial disability.  It therefore 
 
            becomes necessary for the deputy or commissioner to draw 
 
            upon prior experience, general and specialized knowledge to 
 
            make the finding with regard to degree of industrial dis
 
            ability.  See Peterson v. Truck Haven Cafe, Inc., (Appeal 
 
            Decision, February 28, 1985);  Christensen v. Hagen, Inc., 
 
            (Appeal Decision, March 26, l985).
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            
 
                 As aforementioned, the mere fact that claimant has had 
 
            a preexisting condition at the time of her injury on 
 
            February 11, 1987, is not in and of itself a defense to her 
 
            claim that she is entitled to recover for the injury.  
 
            Claimant may only recover for the extent of the subsequent 
 
            injury.  However, claimant has failed to establish by a 
 
            preponderance of the evidence that she has sustained more 
 
            than a temporary exacerbation of a preexisting condition.  
 
            The medical evidence does not support the requisite causal 
 
            connection for a permanent partial disability.  Dr. 
 
            D'Angelo, the treating physician, has opined there may be 
 
            only a slight increase in the impairment.  He has expected 
 
            times where there can be temporary worsening of symptoms.  
 
            Dr. Loftus has opined there is a 10 percent impairment to 
 
            the body as a whole.  However, Dr. Loftus has not opined 
 
            that the 10 percent impairment is in addition to the 
 
            impairment claimant previously sustained.  Nor does Dr. 
 
            Loftus causally relate claimant's condition to her work 
 
            injury of February 11, 1987.  Finally, the treating surgeon, 
 
            Dr. Beaty, does not causally relate claimant's 1989 
 
            condition to her work injury of February 11, 1987.  All Dr. 
 
            Beaty can state is:
 
            
 
                 I fail to see anything which would lead me to 
 
                 believe that Sarah's infection has been activated 
 
                 by the fall and therefore I believe that she 
 
                 probably has symptomatic scar tissue about the L5 
 
                 nerve root which may have been aggravated by the 
 
                 fall.
 
            
 
                 Therefore, in light of the foregoing, it is the 
 
            determination of the undersigned that claimant has not 
 
            sustained an additional permanent disability as a result of 
 
            her injury on February 11, 1987.  She has sustained a 
 
            temporary exacerbation of a preexisting condition for which 
 
            she has been compensated in full per the prehearing report 
 
            and order of February 7, 1990.
 
            
 
                 The second issue to address is whether claimant is 
 
            entitled to medical expenditures under section 85.27.  
 
            Claimant is requesting payment for:
 
            
 
                       Davenport prosthetics               $  375.00
 
                           (Kydex Chairback)
 
            12-7-89    Palos Community Hospital                20.00
 
                           X-ray exam of eye socket
 
                       Richard T. Beaty, D.O.                 210.00
 
                           X-rays
 
            12-8-89    Palos Community Hospital               285.00
 
                           EMG
 
            12-8-89    Radiology Palos Community Hospital      61.85
 
            12-8-89    MRI, Gadolinium SW Hospitals         1,000.00
 
            12-8-89    SW Radiologists                        240.00
 
                                          Total            $2,191.85
 
            
 
                 After reviewing the above, it appears the charge for 
 
            the chairback is reasonable and necessary.  Defendants are 
 
            liable for the same since Dr. D'Angelo, the authorized 
 
            treating physician, has ordered the brace.
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            
 
                 Likewise, it is the determination of this deputy that 
 
            since Dr. D'Angelo, the authorized treating physician, has 
 
            recommended claimant to Dr. Beaty, that defendants are 
 
            liable for the subsequent charges.  They are reasonable and 
 
            necessary:
 
            
 
                     Dr. Beaty                    $  210.00
 
                     Palos Community Hospital        285.00
 
                     SW Hospitals                     61.85
 
                                                   1,240.00
 
                                       Total      $1,796.85
 
            
 
                 The x-rays of the eye socket are not causally related 
 
            to this injury.  Therefore, defendants are not liable for 
 
            the same.
 
            
 
                                      order
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 Defendants are liable for medical expenses as 
 
            aforementioned in the amount of one thousand seven hundred 
 
            ninety-six and 85/l00 dollars ($1,796.85).
 
            
 
                 Costs of the action shall be assessed to defendants 
 
            pursuant to Division of Industrial Services Rule 343 IAC 
 
            4.33.
 
            
 
                 Defendants shall filed a claim activity report as 
 
            requested by this division pursuant to Division of 
 
            Industrial Services Rule 343 IAC 3.1.
 
            
 
            
 
            
 
                 Signed and filed this ____ day of December, 1990.
 
            
 
            
 
            
 
            
 
            
 
                                          ______________________________               
 
            MICHELLE A. McGOVERN
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Douglas C. Scovil
 
            Attorney at Law
 
            2009 9th Ave
 
            Rock Island  IL  61201
 
            
 
            Mr. Alan Blackwood
 
            Attorney at Law
 
            3913 15th St - D
 
            Moline  IL  61625
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                           1801; 1803
 
                           Filed December 20, 1990
 
                           MICHELLE A. McGOVERN
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                            :
 
            SARAH K. VOWELL,                :
 
                                            :
 
                 Claimant,                  :
 
                                            :
 
            vs.                             :
 
                                            :         File No. 846101
 
            CLIFTON PRECISION,              :
 
                                            :      A R B I T R A T I O N
 
                 Employer,                  :
 
                                            :         D E C I S I O N
 
            and                             :
 
                                            :
 
            THE TRAVELERS INSURANCE COMPANY,:
 
                                            :
 
                 Insurance Carrier,         :
 
                 Defendants.                :
 
            ___________________________________________________________
 
            
 
            
 
            1801; 1803
 
            Claimant has not proven by a preponderance of the evidence 
 
            that she has sustained an additional permanent  partial 
 
            disability.  Claimant had sustained a 40 percent permanent 
 
            partial disability in 1980 and a temporary exacerbation of 
 
            that preexisting condition in 1982.  It is held that again 
 
            claimant only sustained a temporary exacerbation of a 
 
            preexisting condition.