BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         SID AUSTIN,
 
         
 
              Claimant,
 
                                                  File No. 846126
 
         vs.
 
         
 
         P.I.E. NATIONWIDE,                       A T T 0 R N E Y
 
         
 
              Employer,                                F E E
 
         
 
         and                                       D I S P U T E
 
         
 
         CIGNA,                                   D E C I S I O N
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              This is an attorney fee dispute between Sid Austin, 
 
         claimant, and Peter Soble, Attorney at Law.  This matter came on 
 
         for hearing before the undersigned deputy industrial commissioner 
 
         April 25, 1988 and was considered fully submitted at the close of 
 
         the hearing.  The record in this case consists of the testimony 
 
         of claimant, Bill Lyman, and Peter Soble and Soble exhibits 1 and 
 
         2.
 
         
 
                                      ISSUES
 
         
 
              The sole issue presented for resolution is whether Mr. Soble 
 
         is entitled to a fee for services rendered and the reasonableness 
 
         of that fee.
 
         
 
                                 FACTS PRESENTED
 
         
 
              Claimant testified he was involved in an accident on May 4, 
 
         1987 while driving for P.I.E. Nationwide, that he notified the 
 
         appropriate company officials and was told to see a doctor.  
 
         Claimant recalled he went to see Peter Soble, Attorney at Law, on 
 
         May 7, 1987 and discussed the accident, explaining he had no 
 
         concern over being paid workers' compensation benefits but wanted 
 
         to pursue the possibility of a third party action.  Claimant 
 
         explained he was told a workers' compensation action would be 
 
         filed in case the third party suit "did not come through" and 
 
         that he understood there was no fee agreement on the workers' 
 
         compensation action and that there would be no charge for legal 
 
         services if no funds were received from hearing of settlement.  
 
         Claimant acknowledged he did sign two contracts and that he was 
 
         aware two actions would be filed.
 
         
 
              Claimant testified he had neck and back pain as a result 
 

 
         
 
         
 
         
 
         AUSTIN V. P.I.E. NATIONWIDE
 
         PAGE   2
 
         
 
         
 
         of the accident and saw Dr. Twyner, who became and remained his 
 
         treating physician although Mr. Soble wanted him to see other 
 
         doctors.  Claimant stated it was his understanding that Dr. 
 
         Twyner was waiting for a form from Cigna Insurance Company to 
 
         file his report on claimant's condition and that when Dr. 
 
         Twyner got the form it was filled out and promptly mailed.
 
         
 
               Claimant testified he contacted Bill Lyman, business 
 
         agent for Teamsters Local 238, because he was not getting any 
 
         satisfaction from Mr. Soble.  Claimant stated that it was Lyman 
 
         who got answers and Lyman who got the workers' compensation 
 
         benefits moving.
 
         
 
              Claimant stated he contacted four attorneys in the 
 
         Davenport area concerning their fees and that he was told by 
 
         one that unless the case was an unusual one, there would be no 
 
         charge for securing temporary total disability payments; by two 
 
         others that there would be no charge for securing temporary 
 
         total disability payments; and by a fourth attorney that while 
 
         there might be a charge on temporary total disability, there 
 
         would not be on late temporary total disability payments.  
 
         Claimant testified that all of his medical benefits were paid, 
 
         that he received approximately $5000 in temporary total 
 
         disability benefits, that he had no permanency as a result of 
 
         the injury, and that he has returned to work in his regular 
 
         job.
 
         
 
              Bill Lyman, who identified himself as the business 
 
         representative for Teamsters Local 238, Motor Freight Division, 
 
         testified he received a call from claimant in late May 1987, 
 
         that claimant was complaining he was not receiving his workers' 
 
         compensation benefits in violation of the contract and that he 
 
         was becoming concerned.  Mr. Lyman recalled contacting his 
 

 
         
 
         
 
         
 
         AUSTIN V. P.I.E. NATIONWIDE
 
         PAGE   3
 
         
 
         
 
         supervisor in Omaha and being told that claimant's failure to 
 
         receive the benefits was a result of a "technical situation" 
 
         and not as a result of any denial of liability.  Mr. Lyman 
 
         testified that he later contacted Mr. Soble's office to convey 
 
         the information that the company was not denying liability, and 
 
         that it was a matter of getting a doctor's statement.  Mr. 
 
         Lyman could not recall if he spoke directly to Mr. Soble or 
 
         not.  Mr. Lyman testified he also called a workers' 
 
         compensation agent for Cigna in Florida and that he was told 
 
         the reason for the delay was that either the medical report had 
 
         not been received or a Cigna form had not been returned.  Mr. 
 
         Lyman stated he last contacted Florida approximately June 25, 
 
         1987 as a grievance had to be filed by June 28 and he was once 
 
         again assured there was no dispute on the claim.  Mr. Lyman 
 
         felt sure his intervention had played a role in getting 
 
         claimant's benefits to him.
 
         
 
              Peter Soble testified claimant came to see him on May 7, 
 
         1987 concerning the accident of May 4, 1987 and that following 
 
         an interview he presented a contingent fee agreement to 
 
         claimant who read and signed the document.  That agreement 
 
         states, in part:
 
         
 
                 Client agrees to pay attorney 33 1/2 % of the 
 
              amounts awarded or agreed upon, out of the first monies 
 
              received in the case, said sum being computed on all 
 
              disputed monies collected.  "Disputed" sum shall mean 
 
              any benefit for permanent partial disability, and any 
 
              sum for temporary total disability which is not paid 
 
              within seven (7) days of its due date, in the proper 
 
              amount, and medical bills not paid within 30 days of 
 
              their presentation, or not paid in the proper amount.
 
         
 
                 Should Attorney be discharged or withdraw, fees 
 
              shall be calculated on the amount of work done on a per 
 
              hour basis at the rate of $150/hour, with a minimum of 
 
              1/4 hour to be charged for any single item of work, 
 
              plus costs.  An itemized breakdown of costs and per 
 
              hour work will be provided within a reasonable time 
 
              upon request
 
         
 
              Mr. Soble stated he had to write Dr. Twyner a number of 
 
         times to get the doctor to write a report to submit to the 
 

 
         
 
         
 
         
 
         AUSTIN V. P.I.E. NATIONWIDE
 
         PAGE   4
 
         
 
         
 
         insurance carrier in order for claimant to begin receiving his 
 
         temporary total disability benefits.  On or about January 10, 
 
         1987, Mr. Soble received a check from the insurance carrier for 
 
         the temporary total disability benefits that were due and 
 
         contacted claimant to report to the office to sign the check.  
 
         When claimant reported, claimant objected to paying Mr. Soble any 
 
         fee on the belief he had done nothing to deserve a fee.  Mr. 
 
         Soble stated the fact that claimant received any benefits at all 
 
         was due to his work and that if his work helped to generate the 
 
         temporary total disability benefits, he was entitled to his fee 
 
         according to the contract.  Since claimant refused to endorse the 
 
         check, the check was "ripped up" and returned to the insurance 
 
         carrier.  Pursuant to Soble exhibit 2, Mr. Soble states he worked 
 
         24 hours on claimant's case and at an hourly rate of $150 plus 
 
         copying charges and postage, he is entitled to a fee of 
 
         $3,826.46.  Mr. Soble also lists as expenses $252 for referral to 
 
         Kevin Freebern, D.C., for treatment, $265 for referral to Raymond 
 
         Dasso, M.D., and $80 for referral to Thomas Dhanens, Ph.D., (no 
 
         show).
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              Iowa Code section 86.39 provides:
 
         
 
                 All fees or claims for legal, medical, hospital, and 
 
              burial services rendered under this chapter and 
 
              chapters 85, 85A, 85B, and 87 are subject to the 
 
              approval of the industrial commissioner, and no lien 
 
              for such service is enforceable without the approval of 
 
              the amount of the lien by the industrial commissioner.  
 
              For services rendered in the district court or 
 
              appellate court, the attorneys' fee is subject to the 
 
              approval of a judge of the court.
 
         
 
              In Workmen's Compensation Law, Rule and Regulations, 1941, 
 
         former Industrial commissioner John T. Clarkson wrote at 41:
 
         
 
              The fair interpretation of this section of the law 
 
              imposes the duty upon the Commissioner to determine 
 
              what may be a fair and reasonable charge of an attorney 
 
              fee for services rendered an injured employee in 
 
              Workmen's Compensation matters and those of a 
 
              physician, which necessarily means the Commissioner's 
 
              conclusions must be based upon the required service and 
 
              all facts bearing upon what is a fair and reasonable 
 
              fee.  It needs no suggestion to show that the 
 
              Commissioner should not permit the financial condition 
 
              of the injured employee to control or materially 
 
              influence his judgment, for the reason that may and 
 
              probably would in many important cases prevent the 
 
              injured employee from obtaining the benefits of an 
 
              experience and competent lawyer.....   True, the 
 
              Commissioner must not shut his eyes and regard the case 
 
              as one prosecuted for the benefit of the attorney, but 
 
              it is fair to say that the better class of attorneys 
 
              will not ordinarily overcharge for their services thus 
 
              rendered.  If they do, the Commissioner in justice 
 
              within the law should not hesitate to disallow any 
 
              excessive part of the charge.
 

 
         
 
         
 
         
 
         AUSTIN V. P.I.E. NATIONWIDE
 
         PAGE   5
 
         
 
         
 
         
 
              It is clear claimant had the benefit of the hard work of 
 
         many individuals in trying to secure his temporary total 
 
         disability benefits which were never really in dispute.  Mr. 
 
         Soble obviously rendered services which are a benefit to 
 
         claimant; likewise, the efforts of Mr. Lyman were undoubtedly 
 
         important.  It cannot go without note that at no time did the 
 
         employer's insurance carrier deny liability on the claim but were 
 
         merely waiting for appropriate documentation to completely 
 
         process the claim.  It is unfortunate that such a formality was 
 
         necessary but, by the same token, it is recognized that that may 
 
         be essential to the reasonable flow of business.  It is also 
 
         unfortunate that Mr. Soble elected to act in such an unreasonable 
 
         manner by tearing up the check once it arrived.  One would,be 
 
         hard pressed to conclude that doing so is providing a service to 
 
         a client.  The undersigned concludes that the fee sought by mr. 
 
         Soble is not a fair and reasonable charge for services rendered, 
 
         that the fee is excessive and not commensurate with the services 
 
         rendered.  Therefore, in accordance with the words of former 
 
         Commissioner Clarkson, the undersigned should not hesitate to 
 
         disallow any excessive part of the charge.  Clearly, services 
 
         were rendered to the claimant in this case and just as clearly, 
 
         Mr. Soble is entitled to some fee therefor.  Based on all the 
 
         evidence, it is found that Mr. Soble is entitled to a fair and 
 
         reasonable fee of $250 for services rendered.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              Wherefore, based on all of the evidence presented, the 
 
         following findings of fact are made:
 
         
 
              1.  Claimant sustained an injury on May 4, 1987 while 
 
         driving for P.I.E. International.
 
         
 
              2.  Claimant contracted for services to prosecute a claim as 
 
         a result of his injuries with Attorney Peter Soble.
 
         
 
              3.  Claimant also sought help from the business agent of his 
 
         local Teamsters Union in securing temporary total disability 
 
         benefits.
 
         
 
              4.  The insurance carrier for claimant's employer did not 
 
         deny liability at any time but was waiting for compliance with 
 
         their reporting procedures before commencing payments.
 
         
 
              5.  Once there was compliance with the reporting procedures 
 
         payments were promptly rendered to claimant.
 
         
 
              6.  Peter Soble is entitled to a fee for services rendered.
 
         
 
              7.  $250 is a fair and reasonable fee to Peter Soble for 
 
         services rendered.
 
         
 
                                CONCLUSION OF LAW
 
         
 
              Therefore, based on the principles of law previously stated, 
 
         the following conclusion of law is made:
 
         
 
              Pursuant to Iowa Code section 86.39, $250 is a fair and 
 

 
         
 
         
 
         
 
         AUSTIN V. P.I.E. NATIONWIDE
 
         PAGE   6
 
         
 
         
 
         reasonable fee for services rendered by Peter Soble to claimant 
 
         in this matter.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              Pursuant to Iowa Code section 86.39, a fee in the amount of 
 
         two hundred fifty dollars ($250) for.services rendered by Peter 
 
         Soble to claimant is approved.
 
         
 
              Signed and filed this 13th day of December, 1988.
 
         
 
         
 
         
 
         
 
         
 
                                         DEBORAH A. DUBIK
 
                                         DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         
 
         Copies to:
 
         
 
         Mr. Thomas M. Wertz
 
         Attorney at Law
 
         4089 21st Ave SW
 
         Suite 114
 
         Cedar Rapids, IA 52404
 
         
 
         Mr. Peter M. Soble
 
         Attorney at Law
 
         505 Plaza Office Building
 
         Rock Island, IL 61201
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                  1000
 
                                                  Filed December 13, 1988
 
                                                  DEBORAH A. DUBIK
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         SID AUSTIN,
 
         
 
              Claimant,
 
                                                    File No. 846126
 
         vs.
 
         
 
         P.I.E. NATIONWIDE,                        A T T 0 R N E Y
 
         
 
              Employer,                                 F E E
 
         
 
         and                                        D I S P U T E
 
         
 
         CIGNA,                                    D E C I S I 0 N
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
         1000
 
         
 
              Claimant sought advice of attorney in securing temporary 
 
         total disability benefits.  Attorney filed petition and there was 
 
         no dispute as to defendants liability nor that claimant was 
 
         entitled to the benefits he sought but rather there was a 
 
         question of a doctor's report.  Claimant, in addition to seeking 
 
         the advice of counsel, also sought assistance from his union 
 
         representative.  Claimant eventually received $5,000 in temporary 
 
         total disability benefits and objected to giving any fee to the 
 
         attorney as he did not feel the attorney had done anything to 
 
         warrant a fee.  Attorney therefore tore up the check, returned it 
 
         to defendants and brought a claim for attorney fees based on an 
 
         hourly fee totaling $3,826.46.  It was held that attorney did 
 
         render services to the claimant and the attorney was entitled to 
 
         a fair and reasonable fee of $250 for services rendered.
 
 
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            ANGIE AYALA,                  :
 
                                          :      File Nos. 728337
 
                 Claimant,                :                846131
 
                                          :
 
            vs.                           :
 
                                          :      D E C I S I O N
 
            DEPARTMENT OF HUMAN SERVICES, :
 
                                          :           O N
 
                 Employer,                :
 
                                          :    A P P L I C A T I O N
 
            and                           :
 
                                          :          F O R
 
            STATE OF IOWA,                :
 
                                          :       P A R T I A L
 
                 Insurance Carrier,       :
 
                 Defendants.              :   C O M M U T A T I O N
 
                                          :
 
            ___________________________________________________________
 
            
 
                 
 
            
 
                 On July 24, 1990, Angie Ayala ( claimant) filed a 
 
            petition for a partial commutation as a result of an injury 
 
            to claimant's back occurring on March 3, 1983 and aggravated 
 
            on June 5, 1986.  The Iowa Department of Human Services 
 
            (DHS) was identified as employer and the State of Iowa 
 
            (State) was identified as insurer for DHS (collectively 
 
            defendants or the State).  On March 26, 1991, these matters 
 
            came on for hearing in Des Moines, Iowa.  The parties 
 
            appeared as follows:  the claimant in person and by her 
 
            counsel Harry Dahl of Des Moines, Iowa and DHS and the State 
 
            by their counsel Assistant Attorney General, Charles 
 
            Lavorato of Des Moines, Iowa.  
 
            
 
                 The record in this proceeding consisted of the 
 
            following:
 
            1.  The live testimony of the claimant.  
 
            2.  Joint exhibits 1-3 and 5-7.
 
            
 
                                   stipulations
 
            
 
                 The parties stipulated to the following matters for 
 
            both injuries at the time of the hearing:
 
            a.  An employer-employee relationship existed between 
 
            claimant and employer at the time of the alleged injury.
 
            b.  The claimant sustained an injury on May 1,1983 and June 
 
            5, 1986, which arose out of and in the course of employment.
 
            c.  The injuries caused permanent total disability.
 
            d.  The extent of entitlement is 100 percent industrial 
 
            disability. 
 
            e.  The rate of compensation, in the event of an award, is 
 
            $168.26 per week. Claimant is married and has no dependants.  
 
            She is entitled to two exemptions.
 
            f.  Entitlement to medical benefits is not in dispute.
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
                 g.  There are no bifurcated claims.
 
            
 
            Issue
 
 
 
                 The only issue for resolution is whether claimant's 
 
            request for a partial commutation should be granted so that 
 
            claimant can pay for remodeling work for her house and pay 
 
            for a van.
 
            
 
                               preliminary matters
 
            
 
                 At the outset of the hearing, the State objected to the 
 
            admission of Exhibits 6 and 7 on the ground that claimant 
 
            had failed to seasonably supplement answers to 
 
            interrogatories.  Exhibit 6 consists of contractor's 
 
            estimates for remodeling claimant's house.  Additionally, 
 
            Exhibit 6 contains the price sheet for the van that claimant 
 
            purchased.  Exhibit 7 consists of correspondence that shows 
 
            that claimant's medical bills were not timely paid by the 
 
            State and that claimant had to request reimbursement for 
 
            travel expenses to Minneapolis rather than use a travel 
 
            advance.  During the course of the hearing the State raised 
 
            the same objection to some of claimant's testimony regarding 
 
            the modifications made to claimant's home and the cost.
 
            
 
                 The State pointed to three interrogatories that were 
 
            not supplemented prior to the close of discovery.  
 
            Interrogatory 9 requested that claimant provide each and 
 
            every fact that claimant was relying on to support her 
 
            petition for commutation.  Interrogatory 10 asked claimant 
 
            to identify all person who had knowledge about the claim for 
 
            commutation asserted by claimant.  Finally, Interrogatory 11 
 
            asked claimant to describe every document that the claimant 
 
            was relying on in requesting a commutation.  Claimant 
 
            answered all of these interrogatories.  However, claimant 
 
            did not provide the name of contractors who had supplied 
 
            claimant with estimates for the remodeling work until March 
 
            4, 1991.  The price list for the van was supplied at the 
 
            same time.  Exhibit lists were due in this matter on March 
 
            10, 1991.  Discovery closed on March 1, 1991.(1)  
 
            
 
                 The claimant did not supplement any of her 
 
            interrogatory responses prior to the hearing.  However, the 
 
            State did have the names and address or telephone number of 
 
            the contractors and the van dealership on the Monday after 
 
            discovery closed in this matter.  Additionally, the State 
 
            knew how much the van cost on that date and how the van was 
 
            equipped.  Finally, the State knew that claimant had 
 
            purchased material to repair and replace floor coverings, 
 
            the kitchen and windows by March 4, 1991.  The documents 
 
            included in Exhibit 7 had been provided to the State by 
 
            claimant or were included in the State's own records, 
 
            evidenced by the carbon copy addressees and addressees of 
 
            (1).  The sequence of the timing of the delivery of these 
 
            documents to the State shows that March 1, 1991 was a 
 
            Friday.  March 4, 1991 was a Monday.  Pursuant to 343 IAC 
 
            Rule 4.13, service by mail under this rule is complete upon 
 
            mailing.  Technically, if claimant mailed this material to 
 
            the State, she complied with the service rules of the 
 
            Division, and the material was served within the discovery 
 
            period.  There is no evidence in the record regarding the 
 
            method of service however. 
 
            
 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            certain correspondence which included Richard Andrews, Mr. 
 
            Lavorato and other individuals in the Iowa Department of 
 
            Personnel.
 
            
 
                 The Iowa Rules of Civil Procedure have been adopted by 
 
            the Industrial Commissioner for use in proceedings before 
 
            the agency.  See, rule 343 IAC 4.35.  If the Rules of Civil 
 
            Procedure are inconsistent with the rules of the Division of 
 
            Industrial Services, the administrative rules will take 
 
            precedence.  See, rule 343 IAC 4.35.  Included therein are 
 
            Rules 121-134 for discovery.  
 
            
 
                 Iowa R. Civ. P. 122 (d) requires a party to seasonably 
 
            supplement the responses to discovery in the following 
 
            instances:
 
            a.  Where the responding party knows the identity and 
 
            location of persons having knowledge of discoverable 
 
            matters; 
 
            b.  The responses were incorrect when made, or; 
 
            c.  The party knows that the response though correct when 
 
            made is no longer true and the circumstances are such that a 
 
            failure to amend the response is a knowing concealment.
 
            
 
                 With regard to Exhibit 6, the State is correct that 
 
            claimant failed to seasonably supplement her interrogatory 
 
            answers regarding persons who had knowledge of the 
 
            claimant's claim and a description of the documents included 
 
            in Exhibit 6.  Claimant should have notified the State that 
 
            she had obtained estimates for the repair work on her house 
 
            within a reasonable time after the estimates were obtained 
 
            and certainly before March 4, 1991, when claimant had that 
 
            information in her possession at the time that the 
 
            interrogatories were completed or the information was 
 
            obtained shortly after the interrogatories were completed.(2) 
 
            Likewise, claimant should have advised the State that she 
 
            was proceeding with repair work in the kitchen, the purchase 
 
            and installation of replacement windows and the purchase of 
 
            the van.   Claimant's actions are sanctionable for this 
 
            failure.  See, Miller v. Bonar, 337 N.W.2d 523, 527 (Iowa 
 
            1983).  Implicit in the failure to abide by the requirements 
 
            of Iowa R. Civ. P. 122(d) are sanctions for noncompliance 
 
            such as exclusions of evidence, continuance or other actions 
 
            that the Division deems appropriate.  Miller, 337 N.W.2d at 
 
            527; M-Z Enterprises Inc. v. Hawkeye-Security Insurance 
 
            Company, 318 N.W.2d 408, 414 (Iowa 1982).  Consequently, 
 
            Exhibit 6 will be excluded as part of the evidence in this 
 
            case and the State's objection will be sustained.
 
            
 
                 With regard to Exhibit 7, claimant answered that she 
 
            had already provided documents to the State regarding 
 
            medical bills and communication with claimant's doctor 
 
            regarding the progress of her case.  The only documents that 
 
            (2).  Claimant had information regarding the repair and 
 
            replacement costs for her home available in March of 1988.  
 
            Additionally, claimant had the information regarding the van 
 
            available in March of 1988.  Claimant had receipts for other 
 
            items purchased in June of 1989, October and November of 
 
            1990 and March of 1991.  All of these items appear to have 
 
            been purchased for home repair and replacement.
 
            
 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            were not included appear to be the documents in Exhibit 6 
 
            that have already been excluded.  Moreover, there is no 
 
            evidence that the State has been prejudiced by the 
 
            correspondence included in Exhibit 7.  Consequently, Exhibit 
 
            7 will be included as part of the evidence of this case.  
 
            The State's objection will be overruled.
 
            
 
                 With regard to claimant's testimony, claimant did not 
 
            specifically testify from the material contained in Exhibit 
 
            6.  Claimant knew from her own experience what repairs had 
 
            been done to her home and how much she and her husband had 
 
            spent on the van.  This information was made known to the 
 
            State in the interrogatory answers.  The claimant indicated 
 
            that she had specific information regarding the facts 
 
            supporting her claim for commutation.  There was no 
 
            information to supplement.  Additionally, the State cannot 
 
            show prejudice.  The State had an opportunity to test 
 
            claimant's statements on cross examination at the time of 
 
            the hearing.  Moreover, the State's claim that it was 
 
            surprised or had insufficient time to obtain an expert to 
 
            determine the reasonableness or necessity of the 
 
            modifications claimant made to her home, is without merit.  
 
            In the exchange of documents and medical records, (Ex. 5) 
 
            there was a letter from Dr. Akins dated January 24,1990, 
 
            wherein Dr. Akins had agreed that the van and modifications 
 
            to claimant's home were necessary to accommodate her 
 
            condition.  After the State received this letter, it had 
 
            ample time to retain an expert to test not only the general 
 
            proposition that the modifications and van were necessary 
 
            regardless of the amounts spent, but also to opine as what 
 
            modifications were necessary and what type of van was 
 
            required to transport claimant comfortably.  The State did 
 
            not retain such an expert.  Consequently, since the State 
 
            has shown no prejudice and claimant had no duty to 
 
            supplement her interrogatories in connection with her direct 
 
            testimony, the State's objection will be overruled.
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 After considering all of the evidence and the arguments 
 
            of counsel, the undersigned makes the following findings of 
 
            fact and conclusions of law.
 
            
 
                 1.  At the time of the hearing on this matter claimant 
 
            was approximately 66 years old.  On May 1, 1983, claimant 
 
            injured her back at work after she fell.  Despite 
 
            conservative treatment, in 1986, claimant underwent major 
 
            back surgery for a posterior fusion with a Harrington rod 
 
            insertion from L3 to the sacrum.  Unfortunately, this first 
 
            back surgery was not successful and the fusion failed.  
 
            Subsequently, claimant was referred to the institute for low 
 
            back care in Minneapolis, Minnesota for further evaluation.  
 
            At the time of her initial evaluation, William G. Akins, 
 
            Jr., M.D., indicated that claimant represented a failed back 
 
            surgery syndrome.  Additionally, she had other difficult 
 
            problems which included the nonunion of the surgical fusion 
 
            from L3 to the sacrum, osteoporosis, evidence of motion 
 
            around the Harrington rods and spondylolisthesis.  Finally, 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            claimant was suffering from depression due to her chronic 
 
            pain condition.  Subsequently, claimant underwent another 
 
            fusion surgery.  Apparently, this surgery did not take 
 
            either.  As late as October 25, 1990, Dr. Akins had 
 
            indicated that claimant's bone fusion is still not solid.
 
            
 
                 2.  Dr. Akins has described claimant's current 
 
            condition as frail and lacking basic body strength for 
 
            activities of daily living.  He believes it is appropriate 
 
            that she add modifications to her home to assist her in the 
 
            activities of daily living.  Additionally, Dr. Akins 
 
            believes that modifications that add safety features to the 
 
            home would be necessary to insure claimant's mobility as she 
 
            grows older.  Additionally, Dr. Akins believes that a van 
 
            rather than a four door sedan will offer claimant more 
 
            comfort in her travel.  Claimant continues to travel to 
 
            Minneapolis for follow-up visits on her back.
 
            
 
                 3.  As a result of claimant's lack of mobility, 
 
            claimant and her husband of 44 years sold their home in 
 
            Indianola and moved to Des Moines.  Claimant's home in 
 
            Indianola was a two story with bedrooms on the second floor 
 
            and the bathroom on the first floor.  Due to the claimant's 
 
            condition, she is no longer able to negotiate stairways.  A 
 
            ranch house with a level floor plan is more appropriate to 
 
            her abilities.  Claimant and her husband have purchased such 
 
            a home.  However, the home was in need of certain 
 
            modifications in order to accommodate claimant's 
 
            disabilities.  In claimant's view, these modifications 
 
            included putting grab bars around the toilet and in a shower 
 
            in the bathroom, a high seat on the toilet to accommodate 
 
            claimant's disabilities, carpeting throughout the home to 
 
            prevent tripping, a ceiling fan to take moisture out of the 
 
            floor and carpet, and replacement windows throughout to 
 
            avoid drafts and to reduce heating expenses.  Finally, 
 
            claimant would also like to put siding on her house, however 
 
            claimant believes that the cost is prohibitive. 
 
            
 
                 4.  On a monthly basis, claimant has approximately 
 
            $2,359.82 available to her in spendable income.  This income 
 
            is not taxable as it is derived from social security 
 
            benefits, the state employees retirement fund, and workers' 
 
            compensation benefit payments.  Workers' compensation 
 
            benefits on a monthly basis total $729.13.  On the expense 
 
            side, claimant's expenses total approximately $2,177 on a 
 
            monthly basis.(3)    This leaves an excess of $182 per month 
 
            as spendable income for claimant and her husband.  
 
            Claimant's assets include a savings account that ranges from 
 
            between $15,000 and $20,000, her home which has an equity of 
 
            approximately $14,000, and insurance policies with a value 
 
            (3).  This figure was calculated based upon claimant's 
 
            examination and crossexamination at the time of hearing.  
 
            Claimant indicated that various creditors had been paid at 
 
            the time of the hearing including Younkers, Sears, American 
 
            Express, Carpetland, and others.  Omitting those creditors 
 
            from the list included in interrogatory number 1, Ex. 2, 
 
            results in approximately $2,177 in expenses on a monthly 
 
            basis.
 
            
 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            of approximately $91,000.  It is unclear from the response 
 
            to interrogatory number 7 whether this amount represents the 
 
            face value for the policies or whether this is a cash value 
 
            for the policies.  Additionally, claimant owns a van which 
 
            has an estimated value of $7,000 and personal property that 
 
            is worth $5,000.  Claimant's total net assets equal 
 
            $134,000.  Claimant's long and short term liabilities 
 
            include indebtedness to Brenton State Bank for the van that 
 
            was purchased, and Knudsen Mortgage Company for the mortgage 
 
            payment on claimant's house.  At the time of hearing, the 
 
            mortgage balance on claimant's home was approximately 
 
            $44,000.  The house was purchased for $54,000 with a $10,000 
 
            down payment.  Claimant and her husband continue to owe 
 
            consumer indebtedness to Visa, Amoco and Petersen's.  The 
 
            total of claimant's short term consumer indebtedness is 
 
            approximately $400.
 
            
 
                 5.  Additionally, claimant continues to pay 20 percent 
 
            of nonwork related medical bills for herself and her 
 
            husband.  Additionally, claimant's insurance covers most if 
 
            not all the cost of claimant's prescription drugs.  
 
            Apparently, claimant makes monthly payments to medical 
 
            providers which total approximately $86 per month.  These 
 
            debts would also be added to the long term indebtedness that 
 
            claimant carries.  Her accumulated long term medical cost 
 
            totals approximately $900.  Claimant's net liabilities total 
 
            $57,000, thereby leaving claimant with a net worth of 
 
            approximately $75,000.  
 
            
 
                 6.  Claimant's husband has recently had a slight stroke 
 
            and is not earning any income.  
 
            
 
                 7.  Claimant testified that she and her husband 
 
            purchased the van for $17,000.00.  Claimant also testified 
 
            in response to questions by the State and indicated that the 
 
            van had certain amenities that came as standard equipment on 
 
            the vehicle.  These included, four captain chairs, a fold 
 
            down converter bed, vista bay windows, a black and white TV, 
 
            a TV booster, a radar detector, an overhead console with 
 
            switch panel, a snack tray, a roof rack, a CB, and a rear 
 
            game table.  Claimant and her husband shopped around for the 
 
            purchase of this van and found that the best price they 
 
            could obtain was from Granger Motors.
 
            
 
                 8.  A review of exhibit 7, and claimant's testimony at 
 
            the time of hearing, indicates that the State has been slow 
 
            in reimbursing claimant for medical expenses.  Additionally, 
 
            claimant testified that the State will not advance travel 
 
            money for the claimant and her husband to travel to 
 
            Minneapolis to the institute for low back pain.  The State 
 
            does reimburse claimant after she has returned from these 
 
            trips when the appropriate receipts have been submitted.  
 
            
 
                 9.  In the application for partial commutation, the 
 
            claimant has requested $25,179.74 to cover the expenses of 
 
            the van purchased and remodeling for claimant's home.  
 
            Claimant proposes that the partial commutation will be taken 
 
            from the end of the award for permanent and total 
 
            disability.
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                 The only issue for resolution is whether claimant's 
 
            request for a partial commutation should be granted so that 
 
            claimant can pay for remodeling work for her house and pay 
 
            for a van.
 
            
 
                 The State urges that the changes to claimant's home and 
 
            the purchase of a van to transport claimant from place to 
 
            place and to her medical appointments in Minneapolis are not 
 
            medically necessary for the claimant's daily living.  The 
 
            claimant contends that she must only make a showing that she 
 
            proposes to make reasonable use of proceeds from a 
 
            commutation.  Once that showing is made, the commutation 
 
            should be approved.  
 
            
 
                 Iowa Code section 85.45 (1991) provides that a 
 
            commutation may be ordered when the commutation is shown to 
 
            be in the best interests of the person or persons entitled 
 
            to the compensation or that periodical payments as compared 
 
            to a lump sum payments will entail undue expense for the 
 
            employer.   Diamond v. The Parsons Co., 129 N.W.2d 608, 616 
 
            (1964).  The factors relied on in determining if a 
 
            commutation is in the claimant's best interests include:  
 
            the claimant's age, education, mental and physical 
 
            condition, and actual life expectancy; the claimant's family 
 
            circumstances, living arrangements, and responsibilities to 
 
            dependents; the claimant's financial condition, including 
 
            all sources of income, debts, living expenses; and the 
 
            reasonableness of claimant's plans for the commuted funds 
 
            and claimant's ability to manage the funds or arrange for 
 
            someone else to manage them.  Dameron v. Neumann Bros., 
 
            Inc., 339 N.W.2d 160, 164 (Iowa 1983).  
 
            
 
                 Ultimately, the analysis that is employed in the 
 
            decision whether to allow a commutation uses as its 
 
            fundamental touchstone the best interests of the claimant.  
 
            Within that context, a benefit-detriment analysis is 
 
            employed balancing the above recited factors with the 
 
            claimant's preference and the benefits to the worker of 
 
            receiving a lump sum payment against the potential 
 
            detriments that would result if the worker invested 
 
            unwisely, spent foolishly, or otherwise wasted the fund, to 
 
            the point where the fund no longer provided the wage 
 
            substitute intended by the workers' compensation law.  
 
            Dameron, 339 N.W.2d at 164-65.  The Division does not act 
 
            an unyielding conservator of claimant's property and 
 
            disregards the claimant's desires and reasonable plans for 
 
            the use of the commuted funds.  Diamond, 129 N.W.2d at 617; 
 
            Dameron, 339 N.W.2d at 163-64.  The Division has 
 
            consistently followed the rationale in these cases and has 
 
            used a reasonableness test to approve or disapprove 
 
            commutations.  Paulsen v. Central States power, LTD, II Iowa 
 
            Industrial Commissioner Report  304 (App. 1982); Finn v. Gee 
 
            Grading and Excavating, Inc., II Iowa Industrial 
 
            Commissioner Report 152, 153 (App. 1981); Smith v. Fegles 
 
            Power Systems, Inc., IV Iowa Industrial Commissioner Report 
 
            338, 339 (App. 1984).
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            
 
                 There is no requirement that the claimant show that the 
 
            use of the commuted amounts are necessary for the claimant's 
 
            health, rehabilitation or otherwise.  Paulsen, II Iowa 
 
            Industrial Commissioner Report at 304. (Defendants equated 
 
            claimant's best interest with need.  This equation may work 
 
            in some cases but not in others.  If one needs a thing, the 
 
            obtaining of it is in the individual's best interest; 
 
            however, if one does not need a thing, it does not follow 
 
            that the obtaining of it is not in one's best interest).  A 
 
            requirement to show necessity is more akin to the strict 
 
            standards for lump sum settlements urged by Professor 
 
            Larson.  See, 3 Larson's, Workmen's Compensation Law, 
 
            Section 82.71 at 15-1243(1989)(4).  This more restrictive 
 
            requirement has been specifically rejected by the Iowa 
 
            Supreme Court, however.  Dameron, 339 N.W.2d at 164-65;  
 
            Dorman v. Carroll County, Iowa, III Iowa Industrial 
 
            Commissioner Report 71, 72 (1982).  There is no compelling 
 
            reason in this case to stray from the precedent established 
 
            by these cases.
 
            
 
                 Claimant is seeking a commutation in the amount of 
 
            approximately $25,000.  Claimant plans to use the money to 
 
            pay bills.  Specifically, claimant wants to pay off a loan 
 
            for the purchase of a van and she wants to complete repair 
 
            and replacement projects for her home.  Claimant also has 
 
            some consumer bills to pay.  In light of claimant's present 
 
            circumstances, this is a reasonable plan for the use of the 
 
            commuted amounts and is in the claimant's best interest 
 
            since payment of the outstanding indebtedness will provide 
 
            claimant with peace of mind and the remaining amounts can be 
 
            used to make claimant's home more comfortable and economical 
 
            to operate.  Accord, Larson v. Haag Drug Company, 1 Iowa 
 
            Industrial Commissioner Report 210, (1980) (Claimant awarded 
 
            a partial commutation to pay bills and for replacement 
 
            windows for her home).
 
            
 
                 At the time of the hearing, claimant was 71 years old 
 
            and permanently disabled.  Claimant continues to suffer from 
 
            a chronic pain condition and depression stemming from her 
 
            injury.  Claimant's income and expenses leave only a nominal 
 
            amount left over every month as excess spendable income.  At 
 
            times, claimant's expenses exceed her income.  Claimant has 
 
            shown that she is fiscally responsible.  Despite the 
 
            constant pain in claimant's back and her depression, she has 
 
            managed to save between $15,000 and $20,000 dollars.  While 
 
            (4).  Larson's view is that lump sum settlements should be 
 
            used only in exceptional circumstances where it can be 
 
            demonstrated that the purpose of the Act will best be served 
 
            by a lump sum award.  3 Larson at 15-1244.  Moreover, Larson 
 
            believes that lump sum settlements are best used when the 
 
            rehabilitation of the worker would be promoted.  Larson 
 
            indicates that it is wrong to use lump sums to enable a 
 
            claimant to pay debts.  3 Larson at 15-1258.  This view has 
 
            been rejected by the Iowa Supreme Court.  Diamond, 129 
 
            N.W.2d at 616 (Payment of bills from the proceeds of 
 
            commutation is a commendable purpose and a reasonable use of 
 
            commuted sums).
 
            
 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            claimant is frail, she is not feeble.  There is no evidence 
 
            that claimant is going to squander the commuted amount of 
 
            benefits.  To the contrary, claimant's testimony showed that 
 
            she is a careful shopper and a careful money manager.  
 
            Finally, the purpose for which she seeks this commutation 
 
            has been endorsed by her doctor.  Consequently, Claimant's 
 
            partial commutation will be granted.
 
            order
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 1.  A partial commutation is granted in the amount of 
 
            twenty-five thousand one hundred seventy-nine and 74/100 
 
            dollars ($25,179.74) from the last portion of claimant's 
 
            award.  Claimant is directed to prepare a current Form 9A in 
 
            conformance with this decision reflecting the current status 
 
            of claimant's claim and amounts to be commuted so that the 
 
            award equals twenty-five thousand one hundred seventy-nine 
 
            and 74/100 dollars ($25,179.74).  A revised Form 9A should 
 
            be submitted within 15 days of the date of this order. 
 
            
 
                 2.  The State's objection to the admission to Exhibit 6 
 
            is sustained.  The State's objection to the admission to 
 
            Exhibit 7 is overruled.  The State's objection to exclude 
 
            certain testimony is overruled.
 
            
 
                 3.  The costs of this action shall be assessed to the 
 
            State pursuant to rule 343 IAC 4.33.
 
            
 
                 4.  The State shall file claim activity reports as 
 
            required by rule 343 IAC 3.1.
 
            Signed and filed this ____ day of August, 1991.
 
            
 
            
 
            
 
            
 
                      ________________________________
 
                      ELIZABETH A. NELSON
 
                      DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr Harry W Dahl
 
            Attorney at Law
 
            974 73rd Street Ste 16
 
            Des Moines Iowa 50312
 
            
 
            Mr Charles S Lavorato
 
            Assistant Attorney General
 
            Tort Claims Division
 
            Hoover State Office Building
 
            Des Moines Iowa 50319
 
            
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                      5-3303
 
                      Filed August 2, 1991
 
                      ELIZABETH A. NELSON
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            ANGIE AYALA,   :
 
                      :       File Nos. 728337
 
                 Claimant, :                 846131
 
                      :
 
            vs.       :        D E C I S I O N
 
                      :
 
            DEPARTMENT OF HUMAN SERVICES, :            O N
 
                      :
 
                 Employer, :     A P P L I C A T I O N
 
                      :
 
            and       :           F O R
 
                      :
 
            STATE OF IOWA, :        P A R T I A L
 
                      :
 
                 Insurance Carrier,  :     C O M M U T A T I O N
 
                 Defendants.    :
 
            ___________________________________________________________
 
            
 
            5-3303
 
            Claimant showed that payment of bills for the purchase of a 
 
            van, consumer debts and repairs to her home was a reasonable 
 
            use for commuted funds.  Claimant is 71 years old.  She is 
 
            totally disabled.  She is suffering chronic pain from two 
 
            failed back surgeries.  Payment of these bills will provide 
 
            claimant with peace of mind.  Claimant was not required to 
 
            show medical necessity in order to be successful on her 
 
            request for a partial commutation.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
                                          51106; 1108.20; 51401; 
 
                                          51402.20; 51402.30; 51402.40; 
 
                                          51402.60; 51801; 51802; 51803; 
 
                                          1807; 2204; 2206; 2209; 52501; 
 
                                          52502; 52700
 
                                          Filed July 24, 1990
 
                                          Walter R. McManus, Jr.
 
            
 
                           before the iowa industrial 
 
                                   commissioner
 
            ____________________________________________________________
 
                                          :
 
            LORA ELLSBURY,                :
 
                                          :
 
                 Claimant,                : File Nos.  846145 & 846156
 
                                          :
 
            vs.                           :
 
                                          :  A R B I T R A T I O N
 
            OSCAR MAYER FOODS CORPORATION,:
 
                                          :      D E C I S I O N
 
                 Employer,                :    
 
                 Self-Insured,            :      
 
                 Defendant.               :
 
            ___________________________________________________________
 
            
 
            51106; 1108.20; 51401; 51402.20; 51402.30; 51402.40; 
 
            51402.60; 51801; 51802; 51803; 1807; 2204; 2206; 2209; 
 
            52501; 52502; 52700
 
            With respect to cumulative injury on April 22, 1987, 
 
            claimant did prove injury, but did not prove causal 
 
            connection or entitlement to temporary disability benefits, 
 
            permanent disability benefits, any unpaid medical benefits, 
 
            or an Iowa Code section 85.39 examination.
 
            With respect to the fall injury on May 4, 1987, claimant did 
 
            prove injury.  Claimant proved causal connection and 
 
            entitlement to temporary and permanent disability benefits.  
 
            She did not prove that the injury was the cause of her 
 
            suicide attempt or her hospitalization for Bulimia Nervosa.
 
            Claimant awarded an independent medical examination for her 
 
            physical injuries.  She was denied an award for an 
 
            independent medical examination for her alleged, but 
 
            unproven work caused psychological injuries.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            LORA ELLSBURY,                :
 
                                          :
 
                 Claimant,                : File Nos.  846145 & 846156
 
                                          :
 
            vs.                           :
 
                                          :  A R B I T R A T I O N
 
            OSCAR MAYER FOODS CORPORATION,:
 
                                          :      D E C I S I O N
 
                 Employer,                :    
 
                 Self-Insured,            :      
 
                 Defendant.               :
 
            ___________________________________________________________
 
            
 
                                   INTRODUCTION
 
            
 
                 This is a proceeding in arbitration brought by Lora L. 
 
            Ellsbury, claimant, against Oscar Mayer Foods Corporation, 
 
            employer and self-insured defendant, for benefits as the 
 
            result of two alleged injuries, one of which occurred on 
 
            April 22, 1987, allegedly from repetitive work, and the 
 
            other which occurred on May 4, 1987, when claimant allegedly 
 
            fell from a ladder and injured her back.  A hearing was held 
 
            in Des Moines, Iowa, on May 2, 1990, and the case was fully 
 
            submitted at the close of the hearing.  Claimant was 
 
            represented by Wayne H. McKinney, Jr. and Robert E. 
 
            McKinney.  Defendant was represented by Harry W. Dahl.  The 
 
            record consists of the testimony of Lora L. Ellsbury, 
 
            claimant; Liz Barstad, R.N., rehabilitation specialist; 
 
            claimant's exhibits A through N; and defendant's exhibits A 
 
            through Q.  The deputy ordered a transcript of the hearing.   
 
            Both attorneys submitted excellent briefs.
 
            
 
                 Claimant's deposition was introduced into evidence by 
 
            both parties and there is little or no reason to have it 
 
            introduced into evidence at all when claimant appeared and 
 
            testified at the hearing and was available for both direct 
 
            and cross-examination.  A few other exhibits were 
 
            duplicated.  A number of the exhibits were not essential to 
 
            and did not contribute to the determination of the issues in 
 
            this case.  Examining unnecessary exhibits hinders the 
 
            decision process and delays the time it takes to make a 
 
            decision.
 
            
 
                                   stipulations
 
            
 
                 The parties stipulated to the following matters at the 
 
            time of the hearing:
 
            
 
                 That an employer-employee relationship existed between 
 
            claimant and employer at the time of both alleged injuries.
 
            
 
                 That claimant first lost time from work on May 8, 1987.
 
            
 
                 That the rate of compensation, in the event of an 
 
            award, is $147.62 per week.
 
            
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
                 That the provider of medical services and supplies 
 
            would testify that their charges were reasonable and were 
 
            for reasonable and necessary medical treatment for the 
 
            alleged work injuries.
 
            
 
                 That defendant seeks no credit for employee 
 
            nonoccupational group health plan benefits paid to claimant 
 
            prior to hearing and defendant withdrew this issue, which is 
 
            shown on the hearing assignment order, at the time of 
 
            hearing.
 
            
 
                 That defendant paid claimant 12 1/7 weeks of workers' 
 
            compensation benefits prior to hearing at the rate of 
 
            $147.62 per week.
 
            
 
                 That there are no bifurcated claims.
 
            
 
                 That the issue of whether claimant is an odd-lot 
 
            employee, as shown on the hearing assignment order, was 
 
            withdrawn by claimant at the time of the hearing.
 
            
 
                                      issues
 
            
 
                 The parties submitted the following issues for 
 
            determination at the time of the hearing:
 
            
 
                 Whether claimant sustained an injury on April 22, 1987 
 
            and another injury on May 4, 1987 which arose out of and in 
 
            the course of employment with employer.
 
            
 
                 Whether either injury was the cause of either temporary 
 
            or permanent disability.
 
            
 
                 Whether claimant is entitled to either temporary or 
 
            permanent disability benefits for either injury, and if so, 
 
            the nature and extent of benefits to which claimant is 
 
            entitled.
 
            
 
                 Whether claimant is entitled to medical benefits for 
 
            either injury.
 
            
 
                 Whether claimant is entitled to an independent medical 
 
            examination pursuant to Iowa Code section 85.39 for either 
 
            injury.
 
            
 
                                 findings of fact
 
            
 
                        alleged injury of April 22, 1987 
 
            
 
                                      injury
 
            
 
                 Claimant did sustain an injury which arose out of and 
 
            in the course of employment with employer on April 22, 1987 
 
            to her left shoulder and left wrist and her right hand and 
 
            right fingers which arose out of and in the course of 
 
            employment with employer.
 
            
 
                 Claimant started to work for employer on June 19, 1987 
 
            as a ham boner.  She described repetitive hand and arm 
 
            movements to perform this job.  She was required to complete 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            one ham approximately every 30 seconds.  She first noticed 
 
            trouble in her left shoulder in February of 1987.  She used 
 
            her left arm to throw a piece of meat over her left shoulder 
 
            in the ham boning process.  Shortly thereafter she 
 
            experienced difficulties in her left hand and wrist which 
 
            she used to hold the ham while she used a knife in her 
 
            dominant right hand.  Then she had complaints in both wrists 
 
            and her right third finger and right little finger locked.  
 
            These injuries were reported to the foreman, company nurse, 
 
            and claimant was sent to the company physicians, Kurt Klise, 
 
            M.D., Steven Sohn, M.D. and Arnis Grundberg, M.D.  Dr. 
 
            Grundberg, an orthopedic surgeon, diagnosed (1) radial nerve 
 
            irritation right wrist; (2) flexor synovitis, right ring and 
 
            little fingers; (3) history of bursitis, left shoulder; and 
 
            (4) flexor synovitis of the left wrist.  Both Dr. Sohn and 
 
            Dr. Grundberg instructed claimant to quit her job in order 
 
            to prevent a permanent injury as a result of this repetitive 
 
            trauma which occurred on April 22, 1987.  Claimant refused 
 
            to quit and was terminated by employer based upon the 
 
            statements of Dr. Sohn and Dr. Grundberg that  claimant was 
 
            not suited to perform her current job as a ham boner and 
 
            that if she continued to perform it she would suffer 
 
            permanent injury.
 
            
 
                 From the foregoing evidence and other evidence in the 
 
            record it is determined that claimant sustained an injury on 
 
            April 22, 1987 to her left shoulder, left wrist, right wrist 
 
            and right third and little fingers which arose out of and in 
 
            the course of employment with employer.  Defendant called no 
 
            witnesses and introduced no evdience that claimant did not 
 
            receive a work-related injury on this date.
 
            
 
              causal connection - temporary disability - entitlement
 
            
 
                 It is determined that claimant did not sustain any 
 
            temporary disability from this injury of April 22, 1987.  
 
            Claimant granted in her testimony that she did not lose any 
 
            time from work due to this injury.  Dr. Sohn returned her to 
 
            work on a 50 percent status and later he returned her to 
 
            work on light duty, but she was always returned to work by 
 
            Dr. Sohn.  Claimant was returned to work on light duty by 
 
            Dr. Grundberg on May 8, 1987, but she was terminated by 
 
            employer at this time.  Claimant was never taken off work by 
 
            any physician for the injury of April 22, 1987.  Dr. Sohn 
 
            and Dr. Grundberg released her to her former job, light 
 
            duty, and claimant was provided light duty and therefore, 
 
            lost no time from work due to this injury.  Therefore, the 
 
            injury is not the cause of temporary disability and claimant 
 
            is not entitled to any temporary disability benefits for the 
 
            injury of April 22, 1987.
 
            
 
                causal connection-permanent disability-entitlement
 
            
 
                 Neither Dr. Sohn nor Dr. Grundberg determined that 
 
            claimant had any permanent impairment to either upper 
 
            extremity due to the injury of April 22, 1987.  Nor did any 
 
            of the other physicians indicate that claimant sustained any 
 
            permanent impairment to either upper extremity as the result 
 
            of this injury.  On the contrary, the evidence indicates 
 
            that claimant did not sustain any permanent impairment due 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            to this injury.  The fact that Dr. Sohn and Dr. Grundberg 
 
            recommended that claimant quit her job because she was 
 
            unsuited for it was not because she had sustained any 
 
            permanent physical impairment, but the reason that these 
 
            doctors made this recommendation was to prevent a future 
 
            permanent impairment if she continued to perform the ham 
 
            boning job.  Dr. Bashara said there was no permanent 
 
            impairment due to the injury to her hands (ex. D, p. 4).  
 
            Therefore, it is determined that the injury of April 22, 
 
            1987 did not cause any permanent impairment or disability 
 
            and claimant is not entitled to any permanent disability 
 
            benefits for this injury.
 
            
 
                                 medical benefits
 
            
 
                 The evidence does not disclose any claim for medical 
 
            benefits which are unpaid as a result of the injury of April 
 
            22, 1987 to claimant's upper extremities.  Therefore, no 
 
            award of medical benefits is made.
 
            
 
             Iowa Code section 85.39-independant medical examination
 
            
 
                 The evidence does not disclose that claimant requested 
 
            or was given a separate independent medical examination for 
 
            the injury of April 22, 1987, to her upper extremities.  
 
            Therefore, no award is made for an independent medical 
 
            examination with respect to this injury.
 
            
 
                                        
 
            
 
                                        
 
            
 
                                        
 
            
 
                          alleged injury of may 4, 1987
 
            
 
                                      injury
 
            
 
                 It is determined that claimant did sustain an injury on 
 
            May 4, 1987, which arose out of and in the course of her 
 
            employment with employer, when she fell while descending a 
 
            ladder performing light duty and landed on her left arm and 
 
            hip and injured her back.  Claimant described this injury in 
 
            her testimony.  The injury was reported to the foreman, the 
 
            company nurse and claimant was taken to the hospital by 
 
            employer and treated by Dr. Klise.  Claimant was treated at 
 
            Dallas County Hospital and was discharged the same day, May 
 
            4, 1987.  On May 9, 1987, she received a CT scan of the 
 
            lumbar spine requested by Dr. Klise which was unremarkable 
 
            except for some posterior bulging of the annulus at L-5, S-1 
 
            without paresthesias or radiation of pain down her legs.  
 
            Defendant did not dispute that a back injury occurred on 
 
            this date.  Therefore, it is determined that claimant did 
 
            sustain an injury on May 4, 1987, which arose out of and in 
 
            the course of employment when she fell from a ladder and 
 
            injured her lumbar spine.
 
            
 
                causal connection-temporary disability-entitlement
 
            
 
                 Again, claimant was returned to work light duty with no 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            knife work until May 11, 1987, but Dr. Klise did not take 
 
            claimant off work due to this injury.  Claimant acknowledged 
 
            that she did work light duty until she was terminated on May 
 
            8, 1987.  Dr. Sohn estimated she would be temporarily 
 
            disabled for approximately four weeks and employer actually 
 
            paid claimant for temporary disability benefits from May 8, 
 
            1987 to July 31, 1987, a period of 12.143 weeks (def. ex. O, 
 
            p. 27).  Claimant is awarded temporary disability benefits 
 
            for this period of time (def. brief pages 3 & 4).
 
            
 
                 Therefore, claimant is entitled to 12.143 weeks 
 
            temporary disability benefits for the injury of May 4, 1987.
 
            
 
                causal connection-permanent disability-entitlement
 
            
 
                 Jerome G. Bashara, M.D., evaluated claimant on January 
 
            5, 1988, and reviewed the x-rays and CT scan from Dallas 
 
            County Hospital which disclosed a moderately bulging disc at 
 
            L-5, S-1, which he said was related to the fall on May 4, 
 
            1987.  Dr. Bashara stated, "I would give the patient a 5% 
 
            permanent partial physical impairment of her body as a whole 
 
            related to her L5-S1 disc injury."  He recommended physical 
 
            therapy, weight reduction and restricted claimant from 
 
            lifting over 25 pounds.  He also added, "No excessive 
 
            bending, stooping or twisting of her lower back."  
 
            (claimant's exhibit D, page 4).
 
            
 
                 Randy K. Winston, M.D., examined claimant on August 25, 
 
            1988.  He said that she suffered from myofascial strain 
 
            which is now chronic and recurrent.  He specified that 
 
            claimant sustained a 3 percent permanent functional 
 
            impairment as a result of the back injury on May 4, 1987 
 
            (defendant's ex. I, p. 2).  
 
            
 
                 Peter D. Wirtz, M.D., examined claimant on May 8, 1988.  
 
            His physical examination demonstrated only tenderness in the 
 
            left lateral lumbar area from L5 to L3.  Otherwise, claimant 
 
            demonstrated normal function and no neurological findings.  
 
            He diagnosed musculoskeletal strain of the lumbar spine 
 
            caused by this injury.  He concluded, "She has no functional 
 
            limitation in these areas nor does she have any physical 
 
            impairments." (def. ex. C, p. 2).
 
            
 
                 Claimant was 19 years old at the time of the injury.  
 
            She has a high school education.  Her prior employments were 
 
            corn detasseler and dietary aide in a nursing home.  
 
            Claimant denied and there was no evidence of previous injury 
 
            or illness to her lumbar spine.  
 
            
 
                 A functional capacity examination was performed on July 
 
            14, 1988 by Judith Halverson, L.P.T.  Therapist Halverson 
 
            determined that claimant could lift 10 pounds frequently and 
 
            up to 20 pounds infrequently.  Her sitting toleration was 15 
 
            minutes and her standing toleration was 18 minutes.  She 
 
            pointed out that claimant had gained 40 pounds since the 
 
            injury, recommended an exercise and weight reduction program 
 
            and determined that a work hardening program would be 
 
            beneficial to address her physical demand needs (def. ex. P, 
 
            pp. 1 & 2 & 2-25).
 
            
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
                 Claimant's young age reduces the effect of her 
 
            permanent disability.  McCoy v. Donaldson Company, Inc., 
 
            file numbers 782670 & 805200 (Appeal Decision April 28, 
 
            1989); Walton v. B & H Tank Corp., II Iowa Industrial 
 
            Commissioner Report 426 (1981); Becke v. Turner-Busch, Inc., 
 
            Thirty-fourth Biennial Report of the Industrial Commissioner 
 
            34 (Appeal Decision 1979).
 
            
 
                 Claimant has a high school education.  She testified 
 
            that she obtained good grades without a great deal effort.  
 
            She has completed three quarters of study since this injury 
 
            at the area community college and has demonstrated her 
 
            ability to be trained for a number of new careers.  
 
            Claimant's ability for retraining is a consideration in the 
 
            determination of industrial disability.  Conrad v. Marquette 
 
            School, Inc., IV Iowa Industrial Commissioner Report 74, 78 
 
            (1984).
 
            
 
                 Defendant did provide claimant with vocational 
 
            rehabilitation assistance in July of 1988 through Intracorp 
 
            and more specifically, Liz Barstad, R.N., to arrange for the 
 
            functional capacity examination and the work hardening 
 
            program.  She assisted claimant in obtaining grants and 
 
            public assistance in order to enroll in the area community 
 
            college.  Barstad also advised and assisted claimant in 
 
            finding employments in her community.  Defendant did an 
 
            excellent job of providing rehabilitation assistance to 
 
            claimant.
 
            
 
                 At the same time, claimant is foreclosed from 
 
            performing medium and heavy work in the future and from 
 
            returning to jobs that require excessive stooping, bending 
 
            or lifting or prolonged standing and sitting.  Rohrberg v. 
 
            Griffin Pipe Products Co., I Iowa Industrial Commissioner 
 
            Report 282 (1984); Michael v. Harrison County, Thirty-fourth 
 
            Biennial Report of the Industrial Commissioner 218, 220 
 
            (Appeal Decision January 30, 1979). 
 
            
 
                 No surgery was performed and none was recommended.  
 
            Claimant has had no recent medical treatment and is taking 
 
            no medications.
 
            
 
                 Claimant is currently employed within her limitations 
 
            as a security guard for a successor meat packing company at 
 
            the same plant and also works certain evenings as a 
 
            convenience store clerk.  She was earning $6.36 per hour for 
 
            employer when she was terminated.  She was earning $5.90 per 
 
            hour at the time of the hearing plus she had the additional 
 
            earnings from the convenience store job.  Claimant has 
 
            sustained little, if any, actual earnings loss.  
 
            
 
                 From the foregoing evidence, and all of the factors 
 
            used to determine industrial disability, and employing 
 
            agency expertise [Iowa Administrative Procedure Act 
 
            17A.14(5)], it is determined that claimant has sustained a 
 
            10 percent industrial disability to the body as a whole 
 
            caused by the fall injury of May 4, 1987 which injured her 
 
            lumbar spine.  Claimant is entitled to 50 weeks of permanent 
 
            partial disability benefits.
 
            
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
                 It is determined that the suicide attempt through a 
 
            drug overdose, on October 21, 1987, and claimant's severe 
 
            eating disorder, which came to light in October of 1988, 
 
            were not caused by the fall injury of May 4, 1987 or the 
 
            repetitive injury to her upper extremities on April 22, 
 
            1987.  Even though Gaylord Nordine, M.D., a psychiatrist; 
 
            assisted by Gerald Catron, Ph.D., a clinical psychologist; 
 
            and Dan Bruflodt, B.A.; determined that claimant's injuries 
 
            and termination by employer exacerbated her previous 
 
            personality dysfunction and has continued long enough to 
 
            have acquired dysthymic features; nevertheless, Michael 
 
            Taylor, M.D., another psychiatrist, controverted the 
 
            testimony of Dr. Nordine.  James Blessman, M.D., stated the 
 
            eating disorders should be billed to Title XIX because it 
 
            was not a work-related condition and not the responsibility 
 
            of the workers' compensation carrier (def. ex. M, p. 137).
 
            
 
                 Dr. Taylor pointed out that Dr. Nordine did not have 
 
            available to him claimant's previous history of physical and 
 
            domestic abuse from family members and sexual abuse from 
 
            ex-boyfriends spanning her entire lifetime from the time of 
 
            her adoption at the age of 2 weeks, until the present time.  
 
            Suffice it to say that there is an abundance of evidence of 
 
            domestic physical and emotional abuse to claimant by her 
 
            mother and brother and sexual abuse by former boyfriends, 
 
            including an attempted rape.  
 
            
 
                 Dr. Taylor alleged that much of the language used by 
 
            Dr. Nordine was psycho-babble without true medical 
 
            definition in medical and psychiatric parlance.  Dr. Taylor 
 
            testified that claimant's injuries and employment with 
 
            employer did not exacerbate her long-standing problems (def. 
 
            ex. A, p. 41).  He said that Dr. Nordine's language is not 
 
            consistent with current psychiatric nomenclature.  Dr. 
 
            Taylor testified that claimant's psychiatric condition was 
 
            not sufficiently severe to interfere with the patient's 
 
            ability to work productively or to make productive work 
 
            impossible (def. ex. A, p. 44).  Dr. Taylor testified, "I 
 
            strongly disagree with it because she has no psychiatric 
 
            condition which makes productive work impossible.  Never has 
 
            had, doesn't now."  (def. ex. A, pp. 44 & 45).  Dr. Taylor 
 
            further stated, "She does not have any psychological 
 
            problems which interfere with her ability to work." (def. 
 
            ex. A, p. 45).  In his report dated May 23, 1989, Dr. Taylor 
 
            stated, "I find absolutely no indication of any causal 
 
            connection between her work situation and/or the alleged 
 
            injuries in April and May of 1987 and her current 
 
            psychiatric condition." (def. ex. A, p. 54).
 
            
 
                 In short, Dr. Nordine and his associates, contend that 
 
            the employment injuries and employment termination 
 
            exacerbated claimant's previous personality, psychological 
 
            and psychiatric problems to the point where she made the 
 
            suicide attempt in October 1987 and developed the eating 
 
            disorder of Bulimia Nervosa which was discovered in October 
 
            1988.  By contrast, Dr. Taylor testified that the suicide 
 
            attempt was directly precipitated by the fact that 
 
            claimant's boyfriend left her just a few hours before the 
 
            suicide attempt.  Dr. Taylor pointed out that claimant had 
 
            the Bulimia Nervosa for three years prior to October 1988 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            according to the statement that she gave to therapists in 
 
            relating her history in October 1988.  Dr. Taylor's opinion 
 
            is determined to be the most accurate, reliable and best 
 
            reasoned opinion in this case.  It is supported by much of 
 
            the other evidence in the case, both medical and nonmedical.  
 
            
 
                 Therefore, it is determined that the injuries of April 
 
            22, 1987 and May 4, 1987 were not the cause of claimant's 
 
            suicide attempt in October 1987 or the eating disorder of 
 
            Bulimia Nervosa that was discovered in October 1988.  
 
            Consequently, claimant is not entitled to any permanent 
 
            partial disability benefits for her alleged psychological 
 
            injuries.  
 
            
 
                                 medical benefits
 
            
 
                 Since claimant did not prove that the suicide attempt 
 
            or the Bulimia Nervosa were caused by these injuries, she is 
 
            not entitled to recover the extensive medical expenses for 
 
            treatment for these two conditions.
 
            
 
             iowa code section 85.39-independant medical examination
 
            
 
                 Claimant is entitled to recover the examination fee of 
 
            Dr. Jerome G. Bashara, M.D., in the amount of $550 for his 
 
            independent medical examination (cl. ex. D, p. 9).  Claimant 
 
            is not entitled to recover the $320 charged by Dr. Nordine 
 
            for his examination and the $240 charged by Dr. Nordine for 
 
            his reports for the alleged, but unproven, work-caused 
 
            psychiatric injuries. 
 
            
 
                                conclusions of law
 
            
 
                 Wherefore, based on the evidence presented and the 
 
            foregoing and following principles of law, these conclusions 
 
            of law are made:
 
            
 
                 That claimant did sustain an injury to her right and 
 
            left upper extremities on April 22, 1987 which arose out of 
 
            and in the course of employment with employer from 
 
            performing repetitive work as a ham boner.  Iowa Code 
 
            section 85.3(1); 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).
 
            
 
                 That claimant did not sustain the burden of proof by a 
 
            preponderance of the evidence that this injury was the cause 
 
            of either temporary or permanent disability.  Bodish v. 
 
            Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965); Lindahl 
 
            v. L.O. Boggs Co., 236 Iowa 296 18 N.W.2d 607 (1945); Burt 
 
            v. John Deere Waterloo Tractor Works, 247 Iowa 691, 73 
 
            N.W.2d 732 (1955); Bradshaw v. Iowa Methodist Hospital, 251 
 
            Iowa 375, 101 N.W.2nd 167 (1960).
 
            
 
                 That claimant is not entitled to either temporary or 
 
            permanent disability benefits as the result of the injury of 
 
            April 22, 1987.
 
            
 
                 That claimant did not demonstrate that she was entitled 
 
            to any unpaid medical expenses caused by the injury of April 
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            22, 1987.
 
            
 
                 That claimant did not sustain the burden of proof by a 
 
            preponderance of the evidence that she is entitled to an 
 
            Iowa Code section 85.39, independent medical examination, 
 
            for the injury of April 22, 1987.
 
            
 
                 That claimant did sustain the burden of proof by a 
 
            preponderance of the evidence that she sustained an injury 
 
            to her lumbar spine on May 4, 1987 which arose out of and in 
 
            the course of employment when she fell from a ladder.
 
            
 
                 That claimant did sustain the burden of proof by a 
 
            preponderance of the evidence that the fall injury of May 4, 
 
            1987 was the cause of temporary disability from May 8, 1987 
 
            to July 31, 1987.
 
            
 
                 That claimant is entitled to 12.143 weeks of temporary 
 
            disability benefits for the fall injury of May 4, 1987, for 
 
            the period from May 8, 1987 to July 31, 1987.
 
            
 
                 That claimant did not demonstrate any unpaid medical 
 
            expenses for the fall injury to her back which occurred on 
 
            May 4, 1987 and therefore, is not entitled to any unpaid 
 
            medical expenses for that injury.
 
            
 
                 That claimant did sustain the burden of proof by a 
 
            preponderance of the evidence that she is entitled to an 
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
            Iowa Code section 85.39 examination from Dr. Bashara for the 
 
            fall injury of May 4, 1987 in the amount of $550.
 
            
 
                 That claimant did not sustain the burden of proof by a 
 
            preponderance of the evidence that the suicide attempt in 
 
            October of 1987 and the eating disorder of Bulimia Nervosa, 
 
            discovered in October of 1988, were caused by either the 
 
            injury of April 22, 1987 to her upper extremities or the 
 
            injury of May 4, 1987 to her lumbar spine.  
 
            
 
                 That claimant is not entitled to the medical expenses 
 
            incurred for the suicide attempt and the treatment of the 
 
            eating disorder.
 
            
 
                 That claimant did sustain the burden of proof by a 
 
            preponderance of the evidence that she sustained an 
 
            industrial disability of 10 percent to the body as a whole 
 
            caused by the injury to her lumbar spine on May 4, 1987.
 
            
 
                 That claimant is entitled to 50 weeks of permanent 
 
            partial disability benefits for the injury to her lower 
 
            spine which occurred on May 4, 1987.
 
            
 
                                        
 
            
 
                                        
 
            
 
                                      order
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 That defendant pay claimant twelve point one four three 
 
            (12.143) weeks of temporary disability benefits for the 
 
            period from May 8, 1987 to July 31, 1987 at the rate of one 
 
            hundred forty-seven and 62/100 dollars ($147.62) in the 
 
            total amount of one thousand seven ninety-two and 55/100 
 
            dollars ($1,792.55) commencing on May 8, 1987.
 
            
 
                 That defendant is ordered to pay to claimant fifty (50) 
 
            weeks of permanent partial disability benefits at the rate 
 
            of one hundred forty-seven and 62/100 dollars ($147.62) per 
 
            week in the total amount of seven thousand three hundred 
 
            eighty-one dollars ($7,381) commencing on May 4, 1987.
 
            
 
                 That defendant is entitled to a credit of twelve point 
 
            one four three (12.143) weeks of workers' compensation 
 
            benefits paid to claimant prior to hearing at the rate of 
 
            one hundred forty-seven and 62/100 dollars ($147.62) per 
 
            week in the total amount of one thousand seven hundred 
 
            ninety-two and 55/100 dollars ($1,792.55).
 
            
 
                 That all accrued benefits are to be paid in a lump sum.
 
            
 
                 That interest will accrue pursuant to Iowa Code section 
 
            85.30. 
 
            
 
                 That defendant is to pay to claimant or the provider of 
 
            medical services five hundred fifty dollars ($550) for the 
 
            independent medical examination of Dr. Bashara pursuant to 
 
            Iowa Code section 85.39.
 

 
            
 
            Page  11
 
            
 
            
 
            
 
            
 
            
 
                 That the costs of this action, including the cost of 
 
            the transcript, is charged to defendant pursuant to Division 
 
            of Industrial Services Rule 343-4.33.
 
            
 
                 That defendant file claim activity reports as requested 
 
            by this agency pursuant to Division of Industrial Services 
 
            Rule 343-3.1.
 
            
 
                 Signed and filed this ____ day of July, 1990.
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          WALTER R. McMANUS, JR.
 
                                          DEPUTY INDUSTRIAL COMMISSIONER    
 
            
 
            Copies to:
 
            
 
            Mr. Robert McKinney
 
            Mr. Wayne McKinney, Jr.
 
            Attorneys at Law
 
            480 6th St.
 
            Waukee, Iowa  50263
 
            
 
            Mr. Harry W. Dahl
 
            Attorney at Law
 
            974 73rd St. STE 16
 
            Des Moines, Iowa  50312
 
            
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            RONALD COOTS,                 :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :         File No. 846265
 
            CULLIGAN,                     :
 
                                          :      A R B I T R A T I O N
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            LIBERTY MUTUAL INSURANCE CO., :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding in arbitration brought by Ronald 
 
            Coots against his former employer, Culligan, and its 
 
            insurance carrier, Liberty Mutual Insurance Company.  The 
 
            claim is based upon a back injury which arose out of and in 
 
            the course of employment with the employer.  During the 
 
            course of treatment for that injury, Coots was involved in 
 
            an automobile accident.  A third party claim resulted in a 
 
            recovery to Coots in the amount of $80,000 before deducting 
 
            attorney fees and expenses of litigation.  The parties 
 
            agreed that a contingent fee of 33 1/3 percent is fair and 
 
            reasonable for attorney fees in the third party action.
 
            
 
                 There is no current dispute between Coots and his 
 
            employer and the insurance carrier with regard to his 
 
            entitlement to healing period, medical expenses or permanent 
 
            partial disability with it being stipulated that the amount 
 
            of permanent partial disability is 30 percent.  It was 
 
            further stipulated that, after April 26, 1988, defendants 
 
            paid claimant permanent partial disability compensation in 
 
            the amount of $10,515.90, healing period compensation in the 
 
            amount of $7,875.23 and medical expenses in the amount of 
 
            $10,290.48.  The total paid was $28,681.61.
 
            
 
                 The primary issue in the case is determination of the 
 
            amount that the employer and its insurance carrier are 
 
            entitled to recover in fulfillment of their statutory right 
 
            to subrogation provided by section 85.22 of The Code.  It 
 
            was stipulated that the employer and its insurance carrier 
 
            are not entitled to reimbursement or subrogation for any 
 
            benefits to which the claimant would have been entitled had 
 
            the automobile accident not occurred.  The employer and 
 
            insurance carrier also seek a determination that the 
 
            proceeds from the third party recovery entitle them to a 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            credit or offset against any future benefits which may 
 
            become payable to Coots.
 
            
 
                 The case was heard and fully submitted at Des Moines, 
 
            Iowa on March 6, 1991.  The evidence consists of joint 
 
            exhibits A, B, C, D, E, F and H as well as testimony from 
 
            Ronald Coots.
 
            
 
                                 findings of fact
 
            
 
                 Having considered all the evidence received, together 
 
            with the appearance and demeanor of the witness, the 
 
            following findings of fact are made.
 
            
 
                 Ronald Coots is a 45-year-old married man who injured 
 
            his back while working for Culligan on February 9, 1987.  
 
            Following a period of physical therapy, he was released to 
 
            return to work without restrictions.  At that time, his 
 
            treating physician, David J. Boarini, M.D., an orthopaedic 
 
            surgeon, reported that, while a CT scan showed a small 
 
            herniated disc, Coots had no residual permanent impairment 
 
            (exhibit A, pages 1-6; exhibit H-1, page 8).
 
            
 
                 Coots apparently did reasonably well until March 1988 
 
            when he experienced an exacerbation of his symptoms and 
 
            resumed physical therapy treatment.  A CT scan was performed 
 
            which showed additional herniation at the L5-S1 level on the 
 
            left side of claimant's spine (exhibit A, pages 8-10).  Dr. 
 
            Boarini provided treatment in the form of medication and 
 
            physical therapy.  The records indicate that claimant's 
 
            condition was improving with the treatment (exhibit H-2, 
 
            page 69; exhibit H-1, pages 9 and 10).  On April 26, 1988, 
 
            while returning from a physical therapy treatment, Coots was 
 
            rear-ended by a vehicle driven by Jack Leonard Hill and 
 
            experienced an immediate exacerbation of his symptoms 
 
            (exhibit H-2, page 81).  The symptoms in claimant's neck and 
 
            upper back resolved, but the increase in his low back 
 
            discomfort did not.  Dr. Boarini subsequently performed 
 
            surgery on claimant's low back in which the L5-S1 disc was 
 
            removed (exhibit A, page 15).
 
            
 
                 The primary issue in this case deals with how much, if 
 
            any, of the medical expenses, healing period and permanent 
 
            partial disability compensation is attributable to the 
 
            automobile accident and therefore a proper basis for 
 
            subrogation from the third party recovery.
 
            
 
                 Dr. Boarini first addressed the issue in a report dated 
 
            December 5, 1989 when he stated:
 
            
 
                 The question of whether his work accident or his 
 
                 motor vehicle accident are responsible for which 
 
                 percentage of his impairment is difficult to 
 
                 assign.  He initially had back pain with radiation 
 
                 down his leg in 1986 following a lifting incident.  
 
                 He then did reasonable [sic] well until the 
 
                 automobile accident in 1988 which exacerbated his 
 
                 condition.  I would therefor state that working 
 
                 initially aggravated it, but the automobile 
 
                 accident certainly was the proximal cause of his 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
                 exacerbation that led to surgery.
 
            
 
            (Exhibit H-1, page 18)
 
            
 
                 In a subsequent report dated August 30, 1990, he 
 
            stated:
 
            
 
                 I cannot separate out all of the causes of Mr. 
 
                 Coots' difficulties in a precise manner.  His 
 
                 automobile accident was a contributing factor, but 
 
                 not the sole cause of his needing surgery.  I 
 
                 don't know how to divide up his permanent partial 
 
                 impairment, but it might be reasonable to say that 
 
                 half of it is related to the motor vehicle 
 
                 accident.  Again, this is a legal and not a 
 
                 medical question, and I don't know that there is a 
 
                 very precise way of doing this.  Similarly, with 
 
                 the work restrictions, I have no way of dividing 
 
                 up what is due to the automobile accident.
 
            
 
            (Exhibit H-1, page 19)
 
            
 
                 When deposed on January 23, 1991, Dr. Boarini expressed 
 
            his opinion as follows:
 
            
 
                 He clearly had a herniated lumbar disk present 
 
                 before the accident occurred, which had caused 
 
                 symptoms on at least a couple of occasions prior 
 
                 to the automobile accident.  The automobile 
 
                 accident subsequently intensified the symptoms and 
 
                 that was--that event was what immediately led up 
 
                 to surgery.
 
            
 
            (Exhibit A, page 19)
 
            
 
                 Coots was receiving physical therapy at the time of the 
 
            automobile accident.  The physical therapy treatment summary 
 
            dated January 18, 1989 contains the following statement:
 
            
 
                 Mr. Coots' course of recovery following the 
 
                 3/29/88 session was one of gradual improvement 
 
                 with increased tolerance to activities of daily 
 
                 living and ambulation.  However, a significant 
 
                 setback occurred during his treatment sessions on 
 
                 4/26/88 at which time Mr. Coots contacted me 
 
                 stating that he had been in a motor vehicle 
 
                 accident and was experiencing severe thoracolumbar 
 
                 discomfort along the spinous process as well as 
 
                 severe headaches and dizziness with nausea.  He 
 
                 had also reported return of the right lower 
 
                 extremity discomfort with new posterior thigh pain 
 
                 that had not been previously experienced.
 
            
 
            (Exhibit H-2, page 69)
 
            
 
                 Testimony from Coots varies somewhat from time to time 
 
            regarding the progression and severity of his symptoms.  It 
 
            is noted, however, that when claimant was deposed he stated 
 
            that surgery was not planned at the time the automobile 
 
            accident occurred (exhibit B, page 27).
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            
 
                 Since undergoing surgery, claimant sought a second 
 
            opinion concerning his residual complaints.  Sherwin 
 
            Goldman, M.D., an orthopaedic surgeon at the Mayo Clinic, 
 
            reported that the 1987 injury was the most substantial one 
 
            and that the April 1988 automobile accident aggravated the 
 
            preexisting condition caused by the 1987 injury (exhibit 
 
            H-3, pages 110 and 111).
 
            
 
                 It is found that the claimant was recovering from the 
 
            March 1988 exacerbation as indicated by Dr. Boarini and the 
 
            physical therapy report.  While it cannot be determined with 
 
            mathematical certainty, it appears probable that, if the 
 
            automobile accident had not occurred, Coots would not have 
 
            undergone surgery in June of 1988.  He would not likely have 
 
            been absent from work for much, if any, time subsequent to 
 
            the date of the automobile accident.  This is a case which 
 
            calls for the exercise of professional judgment rather than 
 
            measuring some objectively determinable quantity.  There is 
 
            certainly no precise method of determining with absolute 
 
            certainty whether or not Coots would have required surgery 
 
            at any time for his back condition or the amount of residual 
 
            disability which would have existed if such surgery had 
 
            occurred absent the automobile accident.  The judgment made 
 
            by Dr. Boarini where he states it is reasonable to say that 
 
            half of the permanent impairment is related to the motor 
 
            vehicle accident is accepted as being correct.  That same 
 
            50-50 division is found to be appropriate for the degree of 
 
            industrial disability.  The assessment made by Dr. Boarini 
 
            which states that the automobile accident caused the 
 
            exacerbation which intensified the symptoms and was the 
 
            event that immediately led to the surgery is likewise 
 
            adopted as being correct.
 
            
 
                                conclusions of law
 
            
 
                 It is well established that injuries that occur in the 
 
            course of medical treatment are deemed to have been 
 
            proximately caused by the original injury.  Cross v. 
 
            Hermanson Bros., 235 Iowa 739, 16 N.W.2d 616 (1944).  It is 
 
            therefore concluded that the additional injury which Ronald 
 
            Coots received in the automobile accident is the 
 
            responsibility of the employer and its insurance carrier in 
 
            this case since it occurred while Coots was engaging in the 
 
            process of receiving physical therapy treatment for the 
 
            original back injury.
 
            
 
                 Since the employer and insurance carrier seek 
 
            subrogation from the third party recovery, they are required 
 
            to prove, by a preponderance of the evidence, the amount of 
 
            the total disability and payments which would not have been 
 
            paid, except for the occurrence of the automobile accident.  
 
            It is well settled that the burden of proving an entitlement 
 
            to anything rests on the proponent.  Iowa R. App. P. 
 
            14(f)(5); Wonder Life Co. v. Liddy, 207 N.W.2d 27 (Iowa 
 
            1973).
 
            
 
                 The law is well settled in both workers' compensation 
 
            and personal injury that aggravation of a preexisting 
 
            condition constitutes a basis for liability.  Olson v. 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            Goodyear Serv. Stores, 255 Iowa 1112, 125 N.W.2d 251, 
 
            (1963).  The normal rule of law is also that the employer in 
 
            workers' compensation, or tort-feasor in personal injury 
 
            law, bears the burden of proving the amount of disability 
 
            which preexisted and, if unable to do so, is responsible for 
 
            all the disability.  Tussing v. George A. Hormel & Co., 461 
 
            N.W.2d 450 (Iowa 1990); Varied Enterprises, Inc. v. Sumner, 
 
            353 N.W.2d 407, 408-409 (Iowa 1984); Becker v. D & E 
 
            Distrib. Co., 247 N.W.2d 727, 731 (Iowa 1976).  In this 
 
            case, however, the employer is not seeking apportionment 
 
            based upon preexisting disability.  The employer is seeking 
 
            to apportion between the results of the original work injury 
 
            and the results of the intervening automobile accident.
 
            
 
                 It is concluded that the employer has successfully 
 
            carried the burden of proving, by a preponderance of the 
 
            evidence, that the surgery and associated healing period 
 
            which occurred subsequent to April 26, 1988 were proximately 
 
            caused by the automobile accident, an intervening traumatic 
 
            event, and that the employer and its insurance carrier are 
 
            entitled to subrogation to the extent of the entire amount 
 
            of healing period compensation and medical expenses paid 
 
            subsequent to April 26, 1988, less pro rata attorney fees.  
 
            According to the stipulation which is part of the prehearing 
 
            report, the healing period is $7,875.23 and the medical 
 
            expenses are $10,290.48.  The total is therefore $18,165.71.  
 
            The one-third attorney fee is applied to the amounts to 
 
            which subrogation rights apply.  The net effect is that the 
 
            amount actually reimbursed is two-thirds of the amount 
 
            subject to reimbursement.
 
            
 
                 It was stipulated that claimant was entitled to a 30 
 
            percent permanent partial disability.  This entitles him to 
 
            recover 150 weeks of compensation at the appropriate rate 
 
            which, in this case, is stipulated to be $163.58.  The total 
 
            permanent partial disability compensation entitlement is 
 
            therefore $24,537.00.  One-half of that amount, namely 
 
            $12,268.50, is attributable to the automobile accident and 
 
            is therefore subject to subrogation as indicated by Dr. 
 
            Boarini.  Claimant's total entitlement to workers' 
 
            compensation benefits is $42,702.71, of which $30,434.21 is 
 
            attributable to the auto accident.  The sum of $30,434.21, 
 
            less one-third for attorney fees, is to be reimbursed in 
 
            fulfillment of the defendants' subrogation rights.  The 
 
            amount to be reimbursed computes to $20,289.47 if the total 
 
            workers' compensation entitlement has been paid.  The amount 
 
            the defendants would not be entitled to recover is the 
 
            one-third for attorney fees, namely $10,144.74, and the 15 
 
            percent permanent partial disability entitlement not 
 
            attributed to the auto accident.  These total $22,413.24.  
 
            The record shows payment in full for the healing period and 
 
            medical expenses, $18,165.71, but only $10,515.90 for all 
 
            permanent partial disability as stipulated in the prehearing 
 
            report.  Current claim activity reports have not been filed.  
 
            The total actually paid is $28,681.61.  Deducting the 
 
            $22,413.24, which is not reimbursable, currently shows 
 
            defendants to be entitled to be reimbursed $6,268.37 in 
 
            order to bring the litigants to the same present positions 
 
            as they would hold if the claimant's full workers' 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            compensation benefit entitlement ($42,702.71) were paid and 
 
            the full subrogation entitlement ($20,289.47) under section 
 
            85.22 had been reimbursed.
 
            
 
                 The record made does not permit the undersigned to make 
 
            a computation of claimant's entitlement to interest, if any, 
 
            under section 85.30 for benefits which were not timely paid 
 
            or for the employer's right to recover interest, if any, 
 
            under section 85.22(1) on the amounts which are to be 
 
            reimbursed.
 
            
 
                 The employer and insurance carrier also seek a future 
 
            credit or offset in the event they have further liability to 
 
            Ronald Coots under the workers' compensation law.  The gross 
 
            amount of the claimant's third party recovery is $80,000.  
 
            Of that amount, $30,434.21 has been applied, leaving the 
 
            gross amount of $49,565.79 available for credit or offset 
 
            against any workers' compensation benefits which may become 
 
            due to claimant in the future.  If any workers' compensation 
 
            benefits become due to claimant in the future for which the 
 
            auto accident was a proximate cause, the defendants are 
 
            entitled to a credit from the third party recovery in an 
 
            amount equal to two-thirds of the future benefits until the 
 
            gross amount of those future benefits reaches $49,565.79.  
 
            There is no credit for the one-third attributable to 
 
            attorney fees and that one-third must be paid to claimant as 
 
            any future workers' compensation benefits become due and 
 
            payable.  Once the gross amount of workers' compensation 
 
            benefits for which the auto accident was a proximate cause 
 
            equals $80,000.00, the amount of the credit will have been 
 
            exhausted and defendants will then be responsible for the 
 
            full amount of any additional workers' compensation benefits 
 
            which were proximately caused by the auto accident.  There 
 
            is, of course, no credit from the third party recovery for 
 
            any workers' compensation benefits payable on account of the 
 
            original injury which were not proximately caused by the 
 
            auto accident.
 
            
 
                                      order
 
            
 
                 IT IS THEREFORE ORDERED that claimant reimburse 
 
            Culligan and Liberty Mutual Insurance Company in the amount 
 
            of six thousand two hundred sixty-eight and 37/100 dollars 
 
            ($6,268.37) in full satisfaction of the subrogation rights 
 
            which currently exist under the provisions of Iowa Code 
 
            section 85.22.
 
            
 
                 IT IS FURTHER ORDERED that Culligan and Liberty Mutual 
 
            Insurance Company have a credit in an amount equal to 
 
            two-thirds (2/3) of any future workers' compensation 
 
            benefits Ronald Coots may become entitled to receive under 
 
            the provisions of Chapter 85 of The Code of Iowa for which 
 
            the auto accident of April 26, 1988 was a proximate cause 
 
            until the total of any additional benefits equals forty-nine 
 
            thousand five hundred sixty-five and 79/100 dollars 
 
            ($49,565.79).
 
            
 
                 IT IS FURTHER ORDERED that the costs of this action are 
 
            assessed against the employer and its insurance carrier 
 
            pursuant to 343 IAC 4.33.
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            
 
                 IT IS FURTHER ORDERED that defendants file claim 
 
            activity reports showing full payment of healing period, 
 
            medical expenses and thirty percent (30%) permanent partial 
 
            disability pursuant to rule 343 IAC 3.1.
 
            
 
                 Signed and filed this ______ day of ____________, 1991.
 
            
 
                 
 
            
 
                 
 
                 
 
                                          ______________________________
 
                                          MICHAEL G. TRIER
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Terrence A. Hopkins
 
            Mr. Dennis L. Hanssen
 
            Attorneys at Law
 
            Suite 111, Terrace Center
 
            2700 Grand Avenue
 
            Des Moines, Iowa  50312
 
            
 
            Mr. Richard G. Book
 
            Attorney at Law
 
            500 Liberty Building
 
            Des Moines, Iowa  50309
 
            
 
 
            
 
 
 
 
 
                                               1403; 1806; 2207; 3400
 
                                               Filed May 30, 1991
 
                                               MICHAEL G. TRIER
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            RONALD COOTS,                 :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :         File No. 846265
 
            CULLIGAN,                     :
 
                                          :      A R B I T R A T I O N
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            LIBERTY MUTUAL INSURANCE CO., :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
            1403; 1806; 2207; 3400
 
            
 
                 Employer has burden of proving how much of the existing 
 
            disability resulted from an intervening third party 
 
            automobile accident which occurred while the employee was 
 
            traveling to receive medical treatment in order to be 
 
            entitled to subrogation under section 85.22 from the 
 
            proceeds of the recovery in the third party action.  The 
 
            burden is to show probability by a preponderance of the 
 
            evidence.  It does not require absolute certainty.
 
            
 
                 Where claimant was injured in an automobile accident 
 
            while receiving medical treatment for the original work 
 
            place injury, it was found that the claimant had essentially 
 
            recuperated and was nearly ready to resume work prior to the 
 
            auto accident, that the auto accident was a proximate cause 
 
            of the then-resulting surgery and healing period.  In 
 
            accordance with the assessment made by the treating 
 
            orthopaedic surgeon, 50 percent of the permanent disability 
 
            was attributed to the original work injury and 50 percent to 
 
            the automobile accident.  Employer and insurance carrier 
 
            held entitled to subrogation for 50 percent of the permanent 
 
            partial disability awarded and also for all of the healing 
 
            period and medical expenses incurred subsequent to the 
 
            automobile accident, less their pro rata share of attorney 
 
            fees (one-third).
 
            
 
                 Employer and insurance carrier also granted credit for 
 
            future payments in an amount equal to two-thirds of any 
 
            future workers' compensation benefits (one-third deducted 
 
            for attorney fees) proximately caused by the auto accident 
 
            until those total future workers' compensation benefits 
 
            equal the third party recovery less the amount held subject 
 
            to subrogation in this decision.
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         
 
         DAN LAURSEN,
 
         
 
              Claimant,
 
         
 
         vs.
 
                                                 File No. 846505
 
         
 
         MOGENSON CONSTRUCTION,
 
                                              A R B I T R A T I O N
 
              Employer,
 
                                                 D E C I S I O N
 
         and 
 
         
 
         UNITED FIRE AND CASUALTY
 
         COMPANY-UNITED LIFE INSURANCE
 
         COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              This is a proceeding in arbitration brought by Dan Laursen, 
 
         claimant, against Mogenson Construction, employer, and United 
 
         Fire and Casualty Company-United Life Insurance Company, 
 
         insurance carrier, to recover benefits under the Iowa Workers' 
 
         Compensation Act for an alleged injury occurring on or about 
 
         February 11, 1987.  This matter was to come on for hearing August 
 
         16, 1988 at 8:00 a.m. at the Buena Vista County Courthouse in 
 
         Storm Lake, Iowa.
 
         
 
              The undersigned was present.  Neither claimant nor 
 
         defendants appeared.
 
         
 
              Claimant failed to present any evidence in support of the 
 
         allegations found in his original notice and petition.  At the 
 
         time of the hearing, neither an agreement for settlement nor a 
 
         request for continuance were on file.
 
         
 
              Claimant has the burden of proving by a preponderance of the 
 
         evidence that he sustained an injury which arose out of and in 
 
         the course of his employment.  McDowell v. Town of Clarksville, 
 
         241 N.W.2d 904 (Iowa 1976).
 
         
 
              WHEREFORE, it is found:
 
         
 
              1.  Neither claimant nor defendants appeared at the 
 
         scheduled time and place of hearing.
 
         
 
              2.  The undersigned deputy industrial commissioner was 
 
         present and prepared to proceed to hearing.
 
         
 
              3.  At the time of the hearing, neither an agreement for 
 
         settlement nor a request for continuance was on file with the 
 
         industrial commissioner.
 

 
         
 
         
 
         
 
         LAURSEN V. MOGENSON CONSTRUCTION
 
         PAGE   2
 
         
 
         
 
         
 
              4.  Claimant failed to present any evidence to support 
 
         allegations of a compensable work injury.
 
         
 
              THEREFORE, it is ordered:
 
         
 
              Claimant has failed to meet his burden of proof that he 
 
         sustained an injury which arose out of and in the course of his 
 
         employment.
 
         
 
              Claimant takes nothing from this proceeding.
 
         
 
              Costs are taxed to the claimant.  Division of Industrial 
 
         Services Rule 343-4.33.
 
         
 
         
 
              Signed and filed this 24th day of August, 1988.
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
                                          MICHELLE A. McGOVERN
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. M. W. Miller, Jr.
 
         Attorney at Law
 
         216 West Main St.
 
         Cherokee, Iowa 51012
 
         
 
         Mr. Michael P. Jacobs
 
         Attorney at Law
 
         300 Toy National Bank Bldg.
 
         Sioux City, Iowa 51101
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                1400; 1402
 
                                                Filed August 24, 1988
 
                                                MICHELLE A. McGOVERN
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         DAN LAURSEN,
 
         
 
              Claimant,
 
         
 
         vs.
 
                                                   File No. 846505
 
         MOGENSON CONSTRUCTION,
 
                                               A R B I T R A T I O N
 
              Employer, 
 
                                                  D E C I S I O N
 
         and
 
         
 
         UNITED FIRE AND CASUALTY
 
         COMPANY-UNITED LIFE INSURANCE
 
         COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
         1401; 1402
 
         
 
              Neither claimant nor counsel appeared at the hearing.  No 
 
         evidence in support of allegations of a compensable work injury 
 
         was presented and claimant therefore failed to meet his burden of 
 
         proof.
 
         
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
            _____
 
                                          :
 
            TONY L. BARNES,               :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :     File Nos. 846639/939159
 
                                          :                939160
 
            HON INDUSTRIES,               :
 
                                          :            A P P E A L
 
                 Employer,                :
 
                                          :          D E C I S I O N
 
            and                           :
 
                                          :
 
            THE TRAVELERS INSURANCE       :
 
            COMPANIES,                    :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            _____
 
            STATEMENT OF THE CASE
 
            Defendants appeal from an arbitration decision awarding 
 
            permanent partial disability benefits as the result of an 
 
            alleged injury on March 20, 1989.  The record on appeal 
 
            consists of the transcript of the arbitration proceeding and 
 
            joint exhibits 1 through 10.  Both parties filed briefs on 
 
            appeal.
 
            ISSUES
 
            Defendants state the following issue on appeal:
 
            
 
                 I.  Did the deputy err in awarding the claimant 
 
                 healing period benefits from March 20, 1989, 
 
                 through March 13, 1990, as a result of the 1989 
 
                 injury?
 
            
 
                 II.  Did the deputy err in awarding permanent 
 
                 partial disability benefits equal to ten per cent 
 
                 [sic] (10%) of the right arm on account of the 
 
                 injury of March 21, 1988, and permanent partial 
 
                 disability benefits equal to five per cent [sic] 
 
                 (5%) of the right arm on account of the injury of 
 
                 March 20, 1989?
 
            FINDINGS OF FACT
 
            The findings of fact contained in the proposed agency 
 
            decision filed June 12, 1991 are adopted as final agency 
 
            action.
 
            CONCLUSIONS OF LAW
 
            The conclusions of law contained in the proposed agency 
 
            decision filed June 12, 1991 are adopted as final agency 
 
            action, with the following additional analysis:
 
            In regards to healing period, William F. Blair, M.D., 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            indicated in December 1989 that there was no medical reason 
 
            claimant could not return to work.  Under Iowa Code section 
 
            85.34(1), healing period ends when claimant is medically 
 
            capable of returning to employment substantially similar to 
 
            the employment in which the employee was engaged at the time 
 
            of the injury.  In addition, William R. Irey, M.D., 
 
            indicated in October 1989, that he would like to see 
 
            claimant again in two months, which would have been December 
 
            1989, but was not actually scheduled until March 1990.  The 
 
            greater weight of the medical evidence indicates that 
 
            claimant's healing period ended December 12, 1989.
 
            WHEREFORE, the decision of the deputy is affirmed and 
 
            modified. 
 
            order
 
            THEREFORE, it is ordered:
 
            That as a result of the injury of March 21, 1988, defendants 
 
            shall pay to claimant twenty-five (25) weeks of permanent 
 
            partial disability benefits at the rate of two hundred 
 
            thirty-eight and 62/100 dollars ($238.62) per week from 
 
            November 12, 1988.
 
            That as a result of the injury of March 20, 1989, defendants 
 
            shall pay to claimant an additional twelve point five (12.5) 
 
            weeks of permanent partial disability benefits at the rate 
 
            of two hundred thirty-nine and 97/100 dollars ($239.97) per 
 
            week from March 14, 1990.
 
            That as a result of the injury of March 20, 1989, defendants 
 
            shall pay to claimant healing period benefits through 
 
            December 12, 1989 at the rate of two hundred thirty-nine and 
 
            97/100 dollars ($239.97) per week.
 
            That defendants shall pay accrued weekly benefits in a lump 
 
            sum and shall receive credit against this award for 
 
            disability benefits previously paid.
 
            That defendants shall pay interest on weekly benefits 
 
            awarded herein as set forth in Iowa Code section 85.30.
 
            That defendants shall pay the costs of this action pursuant 
 
            to rule 343 IAC 4.33, including reimbursement to claimant 
 
            for any filing fee paid in this matter and the cost of the 
 
            transcription of the hearing proceeding.
 
            
 
                 That defendants file claim activity reports as 
 
            requested by this agency pursuant to rule 343 IAC 3.1.
 
            Signed and filed this ____ day of February, 1992.
 
            
 
            
 
            
 
            
 
                      ________________________________
 
                               BYRON K. ORTON
 
                          INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Allan Hartsock
 
            Attorney at Law
 
            P.O. Box 4298
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            Rock Island, IL  61204-4298
 
            
 
            Ms. Vicki L. Seeck
 
            Attorney at Law
 
            600 Union Arcade Bldg.
 
            111 East Third Street
 
            Davenport, Iowa 52801
 
            
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
            1802
 
            Filed February 28, 1992
 
            Byron K. Orton
 
            LPW
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
            _____
 
                                          :
 
            TONY L. BARNES,               :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :     File Nos. 846639/939159
 
                                          :                939160
 
            HON INDUSTRIES,               :
 
                                          :            A P P E A L
 
                 Employer,                :
 
                                          :          D E C I S I O N
 
            and                           :
 
                                          :
 
            THE TRAVELERS INSURANCE       :
 
            COMPANIES,                    :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            _____
 
            
 
            1802
 
            Deputy affirmed but healing period award modified.  Primary 
 
            physician stated claimant was capable of returning to work 
 
            in December 1989.  A second physician told claimant in 
 
            October 1989, he would like to see him again in two months 
 
            (December 1989).  The visit did not occur until March 1990, 
 
            at which point the second doctor indicated further surgery 
 
            was not necessary.  Held that healing period ended in 
 
            December 1989 and not March 1990.
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                           5-1803
 
                           Filed June 12, 1991
 
                           LARRY P. WALSHIRE
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            TONY L. BARNES,     :
 
                      :
 
                 Claimant, :
 
                      :         File Nos. 846639
 
            vs.       :                   939159
 
                      :                   939160
 
            HON INDUSTRIES,     :
 
                      :      A R B I T R A T I O N
 
                 Employer, :
 
                      :         D E C I S I O N
 
            and       :
 
                      :
 
            THE TRAVELERS INSURANCE  :
 
            COMPANIES,     :
 
                      :
 
                 Insurance Carrier,  :
 
                 Defendants.    :
 
            ____________________________________________________________
 
            
 
            5-1803
 
            Extended disability benefits non-precedential.
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                               5-1803
 
                                               Filed September 24, 1990
 
                                               LARRY P. WALSHIRE
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            WAYNE L. THOREN,              :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :     File No. 846698 & 822586
 
            CROUSE CARTAGE COMPANY,       :
 
                                          :      A R B I T R A T I O N
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            LIBERTY MUTUAL INS. CO.,      :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
            
 
            5-1803
 
            
 
                 Extent of permanent partial disability benefits.
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                   BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         MICHAEL YERINGTON,
 
         
 
              Claimant,
 
                                                File No. 846705
 
         vs.
 
                                             A R B I T R A T I O N
 
         HIGHLANDER INN, INC.,
 
                                                D E C I S I O N
 
              Employer,
 
         
 
         and
 
         
 
         THE AETNA,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              This is a proceeding in arbitration brought by Michael 
 
         Yerington, claimant, against Highlander Inn, Inc., employer 
 
         (hereinafter referred to as Highlander), and Aetna Casualty and 
 
         Surety Company, insurance carrier, defendants, for workers' 
 
         compensation benefits as a result of an alleged injury on March 
 
         2, 1987.  On June 8, 1988, 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.  Testimony was 
 
         received during the hearing only from claimant.  The exhibits 
 
         received into the evidence at the hearing are listed in the 
 
         prehearing report.
 
         
 
              According to the prehearing report, the parties have 
 
         stipulated to the following matters:
 
         
 
              1.  On March 2, 1987, claimant received an injury which 
 
         arose out of and in the course of employment with Highlander;
 
         
 
              2.  The injury was a cause of temporary disability during a 
 
         period of recovery, the extent which remains in dispute;
 
         
 
              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; and,
 
         
 
              4.  Claimant's gross weekly rate of compensation at the time 
 
         of the alleged injury was $176.59 per week and claimant, at that 
 
         time, was married and entitled to three exemptions on his tax 
 
         return.
 
         
 
                                      ISSUES
 
         
 
              The parties submitted the following issues for determination 
 
         in this proceeding:
 
         
 
              I.  Whether there is a causal relationship between the work 
 

 
         
 
         
 
         
 
         YERINGTON V. HIGHLANDER INN, INC.
 
         PAGE   2
 
         
 
         
 
         injury and the claimed disability; and,
 
         
 
             II.  The extent of claimant's entitlement to weekly benefits 
 
         for disability.
 
         
 
                             SUMMARY OF THE EVIDENCE
 
         
 
              The following is a summary of evidence presented in this 
 
         case.  For the sake of brevity, only the evidence most pertinent 
 
         to this decision is discussed.  Whether or not specifically 
 
         referred to in this summary, all of the evidence received at the 
 
         hearing was considered in arriving at this decision.  As will be 
 
         the case in any attempted summarization, conclusions about what 
 
         the evidence offered may show are inevitable.  Such conclusions, 
 
         if any, in the following summary should be considered as 
 
         preliminary findings of fact.
 
         
 
              Claimant testified that at the time of the injury he worked 
 
         for Highlander as a saute cook operating the grill. and 
 
         performing other range top cooking.  However, this employment 
 
         also required physical work including stocking, plate setup and 
 
         lifting cases of meat.  Also, claimant was required on occasion 
 
         to perform cleanup work.
 
         
 
              The facts surrounding the work injury are not in dispute.  
 
         Claimant testified at the time of the injury he was mopping up 
 
         grease which had spilled on the kitchen floor.  While doing so, 
 
         claimant said that he slipped and fell on his shoulder and back 
 
         striking his head on the floor.  Claimant said that he 
 
         experienced pain in the head, neck, shoulder and low back 
 
         subsequent to this incident.  Also claimant experienced an 
 
         epileptic seizure for approximately four to five minutes after 
 
         the fall.  Claimant basis his claim for permanent disability upon 
 
         lingering low back pain and numbness in the thighs as a result of 
 
         this fall.
 
         
 
              After the fall, claimant was transported to the hospital 
 
         where he received treatment from Dr. Goodner (first name 
 
         unknown), the company doctor and Anthony Colby, M.D.  The 
 
         assessment of claimants condition at the emergency room was that 
 
         claimant had suffered a "probably concussive episode - associated 
 
         seizure."  X-rays at the time found no spinal abnormalities and 
 
         claimant was discharged.  Over the ensuing few weeks claimant was 
 
         treated by Dr. Colby for lingering headaches and low back pain 
 
         and leg numbness.  Claimant's care was then referred to James 
 
         Worrell, M.D., a neurologist.  Following a myelogram which 
 
         revealed no spinal abnormalities, Dr. Worrell treated claimant's 
 
         symptoms until December 30, 1987.  Claimant failed to show for 
 
         the scheduled appointment in October of 1987.  Claimant returned 
 
         to Dr. Worrell in 1988 indicating little change in his condition 
 
         with lingering low back pain and numbness in his leg.  Claimant 
 
         requested a release to return to light duty at that time.  
 
         Claimant was then released by Dr. Worrell with restrictions 
 
         against lifting over 20 pounds and no repetitive bending although 
 
         claimant could increase activity "as tolerated."
 
         
 
              Claimant testified that he had no back or leg problems 
 
         before March 2, 1987.  On the same day as this fall, he had 
 
         underwent an examination earlier in the day by Dr. Colby 
 
         indicating a history of convulsive seizure disorders.  However, 
 
         claimant reported to Dr. Colby at that time that he was not on 
 
         medication and had not had a seizure for four to five years.  
 
         Also at that time claimant's obesity was noted by Dr. Colby.
 

 
         
 
         
 
         
 
         YERINGTON V. HIGHLANDER INN, INC.
 
         PAGE   3
 
         
 
         
 
         
 
              Due to the absence of objective evidence of neurological 
 
         deficit, Dr. Worrell stated following the May, 1988 office 
 
         examination that he, "would not be willing to apply any permanent 
 
         impairment rating in his case."
 
         
 
              Claimant testified that he has not been able to return to 
 
         work as a restaurant cook due to the physical demands of such 
 
         work.  Claimant complained of lingering low back pain and 
 
         numbness in his leg.  Claimant said heavy lifting brings on pain 
 
         along with bending and prolonged standing and sitting.  Claimant 
 
         remains over weight at this time.
 
         
 
              Claimant testified that his past employment primary consists 
 
         of restaurant work as a cook since receiving an Associate of Arts 
 
         Degree in food service at the Des Moines Community College.  
 
         Claimant testified that his past work involves heavy lifting, 
 
         repetitive bending and prolonged standing and twisting.  Claimant 
 
         also worked as a packinghouse worker in 1981 and as a 
 
         construction/concrete worker during the summers of 1981 and 
 
         1982.
 
         
 
              Claimant stated at the hearing that he is 33 years of age 
 
         and has a GED.  Claimant decided to return to school to study 
 
         restaurant management and is working with the State Vocational 
 
         Rehabilitation Department to accomplish this objective.  Claimant 
 
         stated that he did not look for work until recently as light duty 
 
         jobs are "real scarce."  Claimant testified that he has reviewed 
 
         Job Service postings as to the availability of jobs at the 
 
         present time.
 
         
 
              Claimant's appearance and demeanor at the hearing indicated 
 
         that he was testifying truthfully.
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              I.  The claimant has the burden of proving by a 
 
         preponderance of the evidence that the work injury is a cause of 
 
         the claimed disability.  A disability may be either temporary or 
 
         permanent.  In the case of a claim for temporary disability, the 
 
         claimant must establish that the work injury was a cause of 
 
         absence from work and lost earnings during a period of recovery 
 
         from the injury.  Generally, a claim of permanent disability 
 
         invokes an initial determination of whether the work injury was a 
 
         cause of permanent physical impairment or permanent limitation in 
 
         work activity.  However, in some instances, such as a job 
 
         transfer caused by a work injury, permanent disability benefits 
 
         can be awarded without a showing of a causal connection to a 
 
         physical change of condition.  Blacksmith v. All-American, Inc., 
 
         290 N.W.2d 348, 354 (Iowa 1980); McSpadden v. Big Ben Coal Co., 
 
         288 N.W.2d 181 (Iowa 1980).
 
         
 
              The,question of causal connection is essentially within the 
 
         domain of expert medical opinion.  Bradshaw v. Iowa Methodist 
 
         Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960).  The opinion of 
 
         experts need not be couched in definite, positive or unequivocal 
 
         language and the expert opinion may be accepted or rejected, in 
 
         whole or in part, by the trier of fact.  Sondag v. Ferris 
 
         Hardware, 220 N.W.2d 903 (Iowa 1974).  The weight to be given to 
 
         such an opinion is for the finder of fact, and that may be 
 
         affected by the completeness of the premise given the expert and 
 
         other surrounding circumstances.  Bodish v. Fischer, Inc., 257 
 
         Iowa 516, 133 N.W.2d 867 (1965).
 

 
         
 
         
 
         
 
         YERINGTON V. HIGHLANDER INN, INC.
 
         PAGE   4
 
         
 
         
 
         
 
              Furthermore, if the available expert testimony is 
 
         insufficient along to support a finding of causal connection, 
 
         such testimony may be coupled with nonexpert testimony to show 
 
         causation and be sufficient to sustain an award.  Giere v. Asse 
 
         Haugen Homes, Inc., 259 Iowa 1065, 146 N.W.2d 911, 915 (1966).  
 
         Such evidence does not, however, compel an award as a matter of 
 
         law.  Anderson v. Oscar Mayer & Co., 217 N.W.2d 531, 536 (Iowa 
 
         1974).  To establish compensability, the injury need only be a 
 
         significant factor, not be the only factor causing the claimed 
 
         disability.  Blacksmith, 290 N.W.2d 348, 354.  In the case of a 
 
         preexisting condition, an employee is not entitled to recover for 
 
         the results of a preexisting injury or disease but can recover 
 
         for an aggravation thereof which resulted in the disability found 
 
         to exist.  Olson v. Goodyear Service Stores, 255 Iowa 1112, 125 
 
         N.W.2d 251 (1963).
 
         
 
              In the case sub judice, the parties stipulated that claimant 
 
         suffered a work injury.  Also, the evidence supports this 
 
         stipulation as claimant apparently did not have a seizure until 
 
         after the fall on March 2, 1987.
 
         
 
              Although Dr. Worrell refuses to give an impairment rating, a 
 
         finding of significant impairment will be made.  The lack of 
 
         objective evidence of impairment does not negate a finding of 
 
         impairment.  In the experience of this agency, many physicians 
 
         provide impairment ratings based upon subjective pain complaints. 
 
          Claimant should not be denied such a finding in this case simply 
 
         because he was treated by a conservative physician.  Claimant's 
 
         credible testimony established that he had no back problems 
 
         before March 2, 1987 and that the chronic symptoms he has today 
 
         began at that time.  Most significant in this case is the 
 
         imposition by Dr. Worrell of permanent restrictions on claimant's 
 
         work activity.  This is much more important factor in an 
 
         industrial disability case than a percentage rating of 
 
         impairment.
 
         
 
              II.  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 hie injury, 
 
         after the injury and potential for rehabilitation; the employees 
 
         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 
 

 
         
 
         
 
         
 
         YERINGTON V. HIGHLANDER INN, INC.
 
         PAGE   5
 
         
 
         
 
         the employee is fitted.  Loss of earnings caused by a job 
 
         transfer for reasons related to the injury is also relevant.  
 
         Olson, 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.  He had no functional impairment or ascertainable 
 
         disabilities.  Claimant was able to fully perform physical tasks 
 
         involving heavy lifting, repetitive lifting, bending, twisting 
 
         and stooping and prolonged standing and sitting.  As a result of 
 
         his work activity restrictions following the work injury, 
 
         claimant has not been able to return to the work for which he is 
 
         best suited given his work experience and education.  Claimant's 
 
         only work has involved jobs which required heavy lifting, 
 
         repetitive bending and prolonged standing.  Claimant is now 
 
         compelled to retrain himself to obtain more suitable sedentary 
 
         work in the restaurant business.
 
         
 
              However, claimant is relatively young and his prior 
 
         educational attainments indicate that he has good potential for 
 
         vocational retraining.  Claimant appears to have above average 
 
         intelligence.
 
         
 
              After examination of all the factors, it is found as a 
 
         matter of fact that claimant has suffered a 20 percent loss of 
 
         his earning capacity from his work injury.  Based upon such a 
 
         finding, claimant is entitled as a matter of law to 100 weeks of 
 
         permanent partial disability benefits under Iowa Code section 
 
         85.34(2)(u) which is 20 percent of 500 weeks, the maximum 
 
         allowable number of weeks for an injury to the body as a whole in 
 
         that subsection.
 
         
 
              As claimant has established entitlement to permanent partial 
 
         disability benefits, claimant is entitled to weekly benefits for 
 
         healing period under Iowa Code section 85.34 from the date of 
 
         injury until it is indicated that significant improvement from 
 
         the injury is not anticipated.  It is clear that claimant's 
 
         condition stabilized at the time of claimant's office appointment 
 
         with Dr. Worrell of September 30, 1987.  Claimant told the doctor 
 
         in May, 1988 that his condition had not changed since that time.
 
         
 
              According to the commissioner's rate booklet for this injury 
 
         and given the parties stipulations as to gross weekly earnings, 
 
         marital status and entitlement to exemptions, claimant's rate of 
 
         weekly compensation for this injury is $122.18.
 
         
 
         
 
                                 FINDINGS OF FACT
 
         
 
              1.  Claimant was a credible witness.
 
         
 
              2.  On March 2, 1987, claimant suffered an injury to the low 
 
         back and spine which arose out of and in the course of employment 
 
         with Highlander.  Although claimant had a prior history of 
 
         convulsive seizure disorders, claimant did not suffer a seizure 
 
         on March 2, 1987 until after the fall.
 
         
 
              3.  The work injury of March 2, 1987 was a cause of a period 
 
         of disability from work beginning on March 2, 1987 and ending on 
 
         September 30, 1987 at which time claimant reached maximum 
 
         healing.
 
         
 

 
         
 
         
 
         
 
         YERINGTON V. HIGHLANDER INN, INC.
 
         PAGE   6
 
         
 
         
 
              4.  The work injury of March 2, 1987, was a cause of 
 
         permanent restrictions upon claimant's physical activity 
 
         consisting of no lifting over 20 pounds, no repetitive bending, 
 
         and no prolonged standing and sitting.
 
         
 
              5.  The work injury of March 2, 1987 and the resulting work 
 
         restrictions were a cause of a 20 percent loss of earning 
 
         capacity.  Due to his disability, claimant is unable to return to 
 
         the work for which he is best suited given his work history and 
 
         education.  The only work claimant has performed in the past has 
 
         been the type of work which requires physical activity which he 
 
         can no longer perform.   Claimant is 33 years of age and has an 
 
         Associate of Arts Degree in food service.  Claimant appears 
 
         intelligent and appears able to retrain himself into more 
 
         suitable sedentary work.  Claimant was obese at the time of 
 
         injury and remains obese at the present time.  This obesity 
 
         probably contributes to his disability but the over weight 
 
         condition existed at the time of the injury.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              Claimant has established entitlement under the law to the 
 
         disability benefits awarded below:
 
         
 
                                      ORDER
 
         
 
              1.  Defendants shall pay to claimant one hundred (100) weeks 
 
         of permanent partial disability benefits at the rate of one 
 

 
         
 
         
 
         
 
         YERINGTON V. HIGHLANDER INN, INC.
 
         PAGE   7
 
         
 
         
 
         hundred twenty-two and 18/100 dollars ($122.18) per week from 
 
         October 1, 1987.
 
         
 
              2.  Defendants shall pay claimant healing period benefits 
 
         from March 2, 1987 through September 30, 1987 at the rate of one 
 
         hundred twenty-two and 18/100 dollars ($122.18) per week.
 
         
 
              3.  Defendants shall pay accrued weekly benefits in a lump 
 
         sum and shall receive credit against this award for benefits 
 
         previously paid as stipulated in the prehearing report.
 
         
 
              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 29th day of November, 1988.
 
         
 
         
 
         
 
                                          LARRY P. WALSHIRE
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Robert F. Wilson
 
         Attorney at Law
 
         810 Dows Bldg.
 
         Cedar Rapids, Iowa 52401
 
         
 
         Mr. Larry L. Shepler
 
         Attorney at Law
 
         400 Main St.
 
         Executive Square, Suite 102
 
         Davenport, Iowa 52801
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                           1802; 1803
 
                                           Filed November 28, 1988
 
                                           LARRY P. WALSHIRE
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         MICHAEL YERINGTON,
 
         
 
              Claimant,
 
                                                File No. 846705
 
         vs.
 
                                             A R B I T R A T I O N
 
         HIGHLANDER INN, INC.,
 
                                               D E C I S I O N
 
              Employer,
 
         
 
         and
 
         
 
         THE AETNA,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         1802; 1803
 
         
 
              Permanent disability was found despite the absence of a 
 
         permanent impairment rating from a physician as the treating 
 
         physician had imposed permanent restrictions as a result of the 
 
         work injury and due to these restrictions, claimant has been 
 
         unable to return to the employment for which he is best suited.  
 
         Consequently, industrial disability benefits were awarded but 
 
         given his age and education the award of industrial disability 
 
         was limited to 20 percent.
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
         before the iowa industrial commissioner
 
         ____________________________________________________________
 
		                   :
 
         GEORGE SNYDER,		   :	
 
		                   :
 
              Claimant,		   :
 
		                   :
 
		         vs.       :
 
                		   :      File No. 846731
 
         IOWA STATE PENITENTIARY,  :
 
		                   :        A P P E A L
 
              Employer, 	   :
 
		                   :      D E C I S I O N
 
		         and       :
 
                		   :
 
         STATE OF IOWA, 	   :	
 
		                   :
 
              Insurance Carrier,   :
 
              Defendants.    	   :
 
         ___________________________________________________________
 
         The record, including the transcript of the hearing before the 
 
         deputy and all exhibits admitted into the record, has been 
 
         reviewed de novo on appeal.  The decision of the deputy filed 
 
         November 27, 1990, is affirmed and is adopted as the final agency 
 
         action in this case. 
 
         Claimant shall pay the costs of the appeal, including the 
 
         preparation of the hearing transcript.
 
         Signed and filed this ____ day of October, 1991.
 
         
 
         
 
         
 
         
 
                   ________________________________
 
                            BYRON K. ORTON
 
                        INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. James P. Hoffman
 
         Attorney at Law
 
         Middle Road
 
         PO Box 1066
 
         Keokuk, Iowa 52632
 
         
 
         Mr. Dean A. Lerner
 
         Assistant Attorney General
 
         Tort Claims Division
 
         Hoover State Office Bldg.
 
         Des Moines, Iowa 50319
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                      9998
 
                      Filed October 17, 1991
 
                      BYRON K. ORTON
 
                      DRR
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
		                      :
 
            GEORGE SNYDER,	      :
 
		                      :
 
                 Claimant,	      :
 
		                      :
 
		            vs.       :
 
		                      :      File No. 846731
 
            IOWA STATE PENITENTIARY,  :
 
                		      :        A P P E A L
 
                 Employer, 	      :
 
 		                      :      D E C I S I O N
 
		            and       :
 
                      		      :
 
            STATE OF IOWA, 	      :
 
                      		      :
 
                 Insurance Carrier,   :
 
                 Defendants.          :
 
            ___________________________________________________________
 
            
 
            9998
 
            
 
                 Summary affirmance of deputy's decision filed November 
 
            27, 1990.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            GEORGE SNYDER,                :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :         File No. 846731
 
            IOWA STATE PENITENTIARY,      :
 
                                          :      A R B I T R A T I O N
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            STATE OF IOWA,                :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding in arbitration upon claimant's 
 
            petition filed May 11, 1988.  Claimant sustained a traumatic 
 
            injury when he fell through an open hatch in a guard tower 
 
            while in the performance of his duties as a correctional 
 
            officer on February 27, 1987, and now seeks benefits under 
 
            the Iowa Workers' Compensation Act from Iowa State 
 
            Penitentiary and the State of Iowa.
 
            
 
                 Hearing on the arbitration petition was had in 
 
            Burlington, Iowa, on February 8, 1990.  The record consists 
 
            of claimant's testimony and joint exhibits 1 through 14.
 
            
 
                                      issues
 
            
 
                 Pursuant to the prehearing report, the parties have 
 
            stipulated:  that claimant sustained an injury arising out 
 
            of and in the course of his employment with Iowa State 
 
            Penitentiary on February 27, 1987; that the injury caused 
 
            temporary disability from June 26, 1987 through August 20, 
 
            1987; that the work injury caused permanent disability, 
 
            benefits which should commence on August 21, 1987; that the 
 
            appropriate rate of compensation is $240.16 per week; that 
 
            all requested medical benefits have been or will be paid by 
 
            defendants; that defendants paid claimant 40.8 weeks of 
 
            compensation at the stipulated rate prior to hearing.
 
            
 
                 Issues presented for resolution include:  the extent 
 
            and nature of claimant's permanent disability; whether 
 
            defendants have a valid affirmative defense under Iowa Code 
 
            section 85.16(2) (intoxication); taxation of costs.
 
            
 
                                 findings of fact
 
            
 
                 The undersigned deputy, having heard the testimony and 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
            
 
            considered all of the evidence, finds:
 
            
 
                 Claimant was engaged in his employment as a 
 
            correctional officer on February 27, 1987, when he 
 
            accidently fell some 10 or 11 feet through a trap door 
 
            opening in a guard tower, landing on steel grating.  He was 
 
            taken to Fort Madison Community Hospital and treated by 
 
            Keith W. Riggins, M.D.  Dr. Riggins, a board-certified 
 
            orthopaedic surgeon, testified by deposition taken March 10, 
 
            1989.
 
            
 
                 Dr. Riggins' discharge summary of March 8, 1987, 
 
            reflected that the post-injury course of recovery was 
 
            complicated by several factors including symptoms of alcohol 
 
            withdrawal (agitation, confusion and tremulousness, 
 
            indicating the presence of early delirium tremens).  
 
            Claimant also developed pneumonitis during his 
 
            hospitalization.
 
            
 
                 Claimant's blood alcohol was not measured (or at least 
 
            not recorded) at the time of his admission.  Claimant denied 
 
            being intoxicated at the time of his injury, noting that he 
 
            had gone through an inspection that morning before starting 
 
            work.  On the day before, he had consumed approximately two 
 
            beers.  There is no contrary evidence indicating that 
 
            claimant was intoxicated when he fell.  In fact, the written 
 
            statement of correctional officer Michael Gilbert shows no 
 
            indication of any signs of alcohol abuse or intoxication.  
 
            Timothy H. Cook, M.D., also saw claimant in consultation at 
 
            the hospital and wrote on December 2, 1989 that he was 
 
            unable to draw any conclusions with respect to the quantity 
 
            of alcohol claimant consumed prior to the onset of his 
 
            apparent withdrawal symptoms; he noted that the presence of 
 
            withdrawal symptoms would indicate the presence of physical 
 
            dependence on alcohol, but the degree of dependence cannot 
 
            be inferred from the severity of withdrawal symptoms due to 
 
            the fact that claimant underwent significant stress by 
 
            reason of the injury itself.
 
            
 
                 The evidence does not show that intoxication was a 
 
            factor in causing claimant's work injury, much less a 
 
            substantial factor.
 
            
 
                 Artemio C. Santiago, M.D., wrote on May 6, 1987 that it 
 
            was logical to assume that claimant's pneumonia infection 
 
            resulted from his fall.  The record does not indicate that 
 
            claimant suffered any lasting effects of this infection.
 
            
 
                 Dr. Riggins testified that claimant's final diagnosis 
 
            was open fracture of the right calcaneous with residual 
 
            traumatic osteoarthritis of the right hind foot.  Claimant 
 
            sustained a crushing or comminuted fracture of his right 
 
            heel bone.  This resulted in flattening of the arch of 
 
            claimant's foot and a distortion of the calcaneous on a 
 
            permanent basis.  The area of the ankle and hind foot is 
 
            permanently enlarged; the appearance of the normal bony 
 
            prominences in the area is changed and the configuration of 
 
            the foot was changed.
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
                 On August 27, 1987, Dr. Riggins rated claimant as 
 
            having sustained a 19 percent impairment of the lower 
 
            extremity secondary to restriction of range of motion of the 
 
            right ankle and subtalar joint.  The rating was given 
 
            pursuant to the American Medical Association Guides to the 
 
            Evaluation of Permanent Impairment.  Based on his diagnosis 
 
            of fractured calcaneous and traumatic osteoarthritis to the 
 
            right foot, Dr. Riggins on the same date imposed certain 
 
            permanent medical restrictions:  against prolonged standing 
 
            or walking, climbing vertical ladders or running and 
 
            carrying heavy loads, although claimant can perform lifting 
 
            activities when standing still with both feet on the ground.
 
            
 
                 Claimant also suffers osteoarthritic changes in the 
 
            lumbar spine.  Dr. Riggins testified that claimant's 
 
            abnormal gait imposed by the foot injury "could" aggravate 
 
            the symptoms of that arthritis, although anatomic changes in 
 
            the back would not appear and there would probably not be a 
 
            permanent partial impairment to the spine in that sense.  
 
            Dr. Riggins testified that claimant's low back pain is due 
 
            to some degree to his preexisting arthritis and to some 
 
            degree to abnormal gait; he could not break down the portion 
 
            of such pain attributable to either factor on a percentage 
 
            basis.
 
            
 
                                conclusions of law
 
            
 
                 The fighting issue in this case is whether claimant 
 
            sustained a scheduled member disability or whether, as he 
 
            argues, the injury had a secondary effect on his back 
 
            causing an injury to the body as a whole which should be 
 
            compensated industrially.
 
            
 
                 It must be held that claimant has sustained a scheduled 
 
            member disability.  Although claimant may suffer some 
 
            increased pain in the lumbar spine by way of aggravation of 
 
            his preexisting condition (but to an undetermined degree), 
 
            he has no ratable impairment to the spine and the medical 
 
            restrictions imposed by Dr. Riggins are specified as 
 
            secondary to the foot injury.  No impairment or disability 
 
            relates to claimant's body as a whole.  Therefore, the 
 
            injury must be compensated pursuant to the schedule.
 
            
 
                 Dr. Riggins rated claimant's injury as an impairment to 
 
            the lower extremity.  However, the impairment exists in the 
 
            calcaneous bone and subtalar joints.  All of the impairment 
 
            is at the ankle level or below.  The wrist is part of the 
 
            hand, Elam v. Midland Mfg., II Iowa Industrial Commissioner 
 
            Report 141 (1981), and the same logic should apply to the 
 
            ankle as being part of the foot as opposed to the leg.  See 
 
            also an arbitration decision authored by the undersigned, 
 
            Angerman v. K-Mart Corp., file number 802436 (February 20, 
 
            1990).
 
            
 
                 Pursuant to Table 32 of the AMA guides, a 19 percent 
 
            impairment of the lower extremity is equivalent to a 27 
 
            percent impairment of the foot.  Pursuant to Iowa Code 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            
 
            
 
            section 85.34(2)(n), an injury to the foot is compensated 
 
            during 150 weeks.  Twenty-seven percent of 150 weeks is 
 
            40.50 weeks, thus claimant shall be awarded permanent 
 
            partial disability benefits in that amount.
 
            
 
                 Iowa Code section 85.16(2) provides:
 
            
 
                 No compensation under this chapter shall be 
 
                 allowed for an injury caused:
 
            
 
                 * * *
 
            
 
                 2.  By the employee's intoxication, which did not 
 
                 arise out of and in the course of employment but 
 
                 which was due to the effects of alcohol or another 
 
                 narcotic, depressant, stimulant, hallucinogenic, 
 
                 or hypnotic drug not prescribed by an authorized 
 
                 medical practitioner, if the intoxication was a 
 
                 substantial factor in causing the injury.
 
            
 
                 It is defendants' burden of establish the affirmative 
 
            defense set forth in 85.16(2).  Reddick v. Grand Union Tea 
 
            Co., 230 Iowa 108, 296 N.W. 800 (1941).  Defendants have 
 
            failed to meet that burden of proof.  While there are 
 
            indications in the medical record that claimant may have had 
 
            an alcohol abuse problem at the time of his injury (although 
 
            claimant denies this), there is no evidence whatsoever to 
 
            establish that claimant was intoxicated or under the 
 
            influence of any intoxicant at the time of his injury, much 
 
            less that there was any substantial causal nexus to the 
 
            alleged intoxication.  The affirmative defense fails.
 
            
 
                           
 
            
 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            
 
            
 
            order
 
            
 
                 Defendants shall pay unto claimant (pursuant to 
 
            stipulation) eight (8) weeks of healing period benefits at 
 
            the stipulated rate of two hundred forty and 16/100 dollars 
 
            ($240.16) per week commencing June 26, 1987 and totalling 
 
            one thousand nine hundred twenty-one and 28/100 dollars 
 
            ($1,921.28).
 
            
 
                 Defendants shall pay unto claimant forty point five 
 
            zero (40.50) weeks of permanent partial disability benefits 
 
            at the stipulated rate of two hundred forty and 16/100 
 
            dollars ($240.16) per week commencing August 21, 1987 and 
 
            totalling nine thousand seven hundred twenty-six and 48/100 
 
            dollars ($9,726.48).
 
            
 
                 Defendants shall have credit for all voluntarily paid 
 
            benefits.
 
            
 
                 As all benefits have accrued, they shall be paid in a 
 
            lump sum together with statutory interest thereon pursuant 
 
            to Iowa Code section 85.30.
 
            
 
                 The costs of this action shall be assessed to 
 
            defendants pursuant to 343 IAC 4.33.
 
            
 
                 Defendants shall file claim activity reports as 
 
            requested by this agency pursuant to 343 IAC 3.1.
 
            
 
                 Signed and filed this ______ day of ____________, 1990.
 
            
 
                 
 
            
 
                 
 
                 
 
                                          ______________________________
 
                                          DAVID RASEY
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. James P. Hoffman
 
            Attorney at Law
 
            Middle Road
 
            P.O. Box 1066
 
            Keokuk, Iowa  52632
 
            
 
            Ms. Barbara J. Danforth
 
            Assistant Attorney General
 
            Tort Claims Division
 
            Hoover State Office Building
 
            Des Moines, Iowa  50319
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                           1803.1
 
                           Filed November 27, 1990
 
                           DAVID RASEY
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            GEORGE SNYDER, :
 
                      :
 
                 Claimant, :
 
                      :
 
            vs.       :
 
                      :         File No. 846731
 
            IOWA STATE PENITENTIARY, :
 
                      :      A R B I T R A T I O N
 
                 Employer, :
 
                      :         D E C I S I O N
 
            and       :
 
                      :
 
            STATE OF IOWA, :
 
                      :
 
                 Insurance Carrier,  :
 
                 Defendants.    :
 
            ____________________________________________________________
 
            
 
            1803.1
 
            Fractured calcaneous altered claimant's gait and may have 
 
            increased pain from pre-existing back condition.  However, 
 
            no impairment or medical restrictions relating to spine (as 
 
            opposed to foot) appear of record.  Foot injury was 
 
            compensated per the schedule, and not industrially.
 
            Injury to foot and ankle was injury to foot, not leg, 
 
            although impairment rating was to leg.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            PAUL McDANIEL,                :
 
                                          :         File No. 846849
 
                 Claimant,                :
 
                                          :      A R B I T R A T I O N
 
            vs.                           :
 
                                          :         D E C I S I O N
 
            SHELLER-GLOBE,                :
 
                                          :
 
                 Employer,                :
 
                 Self-Insured,            :
 
                 Defendant.               :
 
            ___________________________________________________________
 
            
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This is a proceeding in arbitration upon the petition 
 
            of claimant, Paul McDaniel, against his employer, 
 
            Sheller-Globe Corporation, a self-insured employer.  The 
 
            case was heard on January 29, 1993 at the Des Moines County 
 
            courthouse in Burlington, Iowa.  The record consists of 
 
            claimant's exhibits 1-18 and defendant's exhibits A and B.  
 
            The record also consists of the testimony of claimant.
 
            
 
                                      ISSUES
 
            
 
                 The two issues  presented are:  1) whether claimant 
 
            suffered an injury to his back when he sustained a 
 
            work-related injury to his left leg on March 2, 1987; and 2) 
 
            whether defendant is liable for certain medical expenses in 
 
            the form of prescriptions.
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 The deputy, having heard the testimony and considered 
 
            all the evidence, finds:
 
            
 
                 Claimant sustained a work-related injury on March 2, 
 
            1987.  At the time of the injury, claimant had been employed 
 
            by defendant for 39 years.  Claimant had worked as a fork 
 
            lift driver.  On the date of the injury, claimant had jumped 
 
            from the fork lift truck without setting the emergency 
 
            brake.  The truck pulled claimant to the floor where he was 
 
            trapped by the truck.  He sustained severe injuries to his 
 
            left leg and ankle.  Those injuries were not disputed.  The 
 
            parties were in agreement that claimant had sustained a 70 
 
            percent loss of the use of the left lower extremity.  
 
            Defendant paid all permanent partial disability benefits as 
 
            a result of the scheduled member injury.
 
            
 
                 Claimant was off work from the date of the injury.  
 
            After surgery he was placed in a fixed brace for three 
 
            months.  From the fixed brace, claimant was placed in a 
 
            wheelchair and he progressed to using a walker.  He used the 
 
            walker for approximately three months.  Then claimant was 
 
            placed in a walking cast.  He testified that at that point 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            in time, he began experiencing pain in his left leg.  Motrin 
 
            was prescribed by the then treating orthopedic surgeon, 
 
            Rouben Mirbegian, M.D.
 
            
 
                 Claimant testified that he began treating with William 
 
            Vance, D.C., in May of 1987.  Claimant indicated he began 
 
            experiencing pain in the low back region after he used a 
 
            walker or when he attempted to walk using the walking cast.  
 
            
 
                 The records of Dr. Vance supported claimant's testimony 
 
            that he sought chiropractic treatment for low back pain in 
 
            May of 1987.  The office note for May 4, l987 reflected 
 
            that: 
 
            
 
                 Accident March 2- at Sheller-Globe - lift truck 
 
                 caught him - crushed left leg - 22 breaks - 
 
                 fracture - 4 surgeries - hosp. 2 mos. had skin 
 
                 grafts - now pains in neck and shoulder - bad 
 
                 since Tuesday....
 
            
 
            (Exhibit 11, page 60)
 
            
 
                 Claimant also testified that he sought treatment from 
 
            his personal physician, Thomas R. Westerhoff, M.D.  During 
 
            direct-examination, claimant indicated he sought pain 
 
            medication from his family physician because Dr. Mirbegian 
 
            refused to prescribe appropriate pain medication.  Dr. 
 
            Westerhoff prescribed Motrin for claimant's back and leg 
 
            (Ex. 7, p. 35; Ex. 18, pp. 5 & 6).
 
            
 
                 With respect to claimant's leg injury, Dr. Westerhoff 
 
            testified in his deposition that:
 
            
 
                   A.  I had been seeing the patient for his 
 
                 general health problems prior to the injury and 
 
                 have seen him on a regular basis since that time, 
 
                 usually every six months.  He told me about his 
 
                 treatment with reference to the injuries in 1987, 
 
                 but I was not involved in any actual treatment on 
 
                 his leg injury.
 
            
 
                   Q.  And then more recently have you been 
 
                 treating him either for the leg or the back 
 
                 problems or symptomatology that has been related?
 
            
 
                   A.  Yes.  When I saw him in June of '91, he 
 
                 reported he was having more problems with leg 
 
                 pain.  He had been limping chronically on the leg 
 
                 since the injury and had developed low back pain 
 
                 with radiation of pain into the left thigh and 
 
                 calf.
 
            
 
                   Q.  And so did you -- did you come to some type 
 
                 of impression, at least after examining him and 
 
                 treating him for a period of time after this, as 
 
                 to what his problem was and how it was come to be 
 
                 developed?
 
            
 
                   A.  I thought when I evaluated him June 11, '91, 
 
                 that his symptoms and findings were those of a 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
                 herniated disk in his lumbar spine.  He had mild 
 
                 neurologic deficit in his leg, the left leg.  It 
 
                 was my impression that this had been caused by the 
 
                 chronic gait problem, which he had had since the 
 
                 foot injury, and that limping had caused a 
 
                 mechanical low back problem resulting in low back 
 
                 pain.
 
            
 
                   Q.  Have you seen him since that time as well?
 
            
 
                   A.  Yes.  He was seen again in October '91.  At 
 
                 that point his back wasn't bothering him very 
 
                 much, and then the next month he contacted me by 
 
                 note indicating he was having more trouble with 
 
                 his back and leg and had gone to have a 
 
                 consultation with an orthopedist named Dr. Robb in 
 
                 Iowa.  I saw him again, then, February '92, and he 
 
                 has having quite a bit of problems with back and 
 
                 leg pain.
 
            
 
                   Q.  Would your impression still be the same 
 
                 today as it was initially, then?
 
            
 
                   A.  Yes.
 
            
 
                   Q.  Doctor, would your impression also be that 
 
                 -- as we both know, his leg problem is a permanent 
 
                 problem, is it not?
 
            
 
                   A.  Yes.
 
            
 
                   Q.  And is it likely, then, as long as that leg 
 
                 problem is permanent, which it is, that he will 
 
                 then continue to have permanent secondary effect 
 
                 upon the back as he has related it to you?
 
            
 
                   A.  I think so.
 
            
 
            (Ex. 18, p. 5, line 14 thru p. 7, line 10)
 
            
 
                 Defendant denied payment for any treatment of the low 
 
            back complaints.  Claimant was instructed by defendant to 
 
            report to W. John Robb, M.D., on October 31, 1991 for an 
 
            examination.  Dr. Robb wrote in his report of November 4, 
 
            1991:
 
            
 
                 He does not recall whether he discussed back pain 
 
                 with his orthopedic physician, Dr. Mirbegian, and 
 
                 upon my referring to the records, I see no 
 
                 reference to low back pain.  What he describes as 
 
                 low back pain, he points to the left lower lumbar 
 
                 area and left sacroiliac joint area.  For these 
 
                 complaints, and after his release from the 
 
                 hospital and the care of Dr. Mirbegian, he began 
 
                 treatment with a chiropractic physician whose 
 
                 treatments he has continued to receive since 1987.  
 
                 I asked him if he felt they had improved his back 
 
                 pain, and he states that they have.  His comment 
 
                 was, he only has pain with "a lot of walking."  By 
 
                 this he is referring to a distance of 8-10 blocks.  
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
                 He also stated "I have back pain if I stand too 
 
                 long" and by this he refers to 2-3 hours.  The 
 
                 back pain is not accompanied by a radicular type 
 
                 of pain down the leg or any other associated 
 
                 symptoms.
 
            
 
                 Following this accident, and after resumption of 
 
                 walking, no rehabilitation program of exercises 
 
                 was described nor suggested by his health care 
 
                 practitioners.  No calisthenics were performed.  
 
                 He had been a forklift operator prior to his 
 
                 injury.  He retired in 1988, not having returned 
 
                 to work.
 
            
 
                 On examination, this is a moderate slender 62 year 
 
                 old white male who stands with normal alignment of 
 
                 the lumbosacral spine.  There is no list to either 
 
                 side.  There is no muscle spasm evident of the 
 
                 paravertebral muscles.  There is no tenderness 
 
                 present.  His lateral bending is 25o and performed 
 
                 without difficulty.  His forward flexion is with a 
 
                 normal arch in the back, and he touches the floor.  
 
                 Extension performed to 10o without difficulty.  The 
 
                 tenderness that is evident appears to be minimal 
 
                 and is in the area of the left sacroiliac joint.  
 
                 Palpation of the sciatic notch is negative.
 
            
 
                 On walking across the room he walks with a slight 
 
                 limp but no marked list nor is there any marked 
 
                 limp.
 
            
 
                 Examination of the left ankle reveals excellent 
 
                 alignment.  There is 10o of dorsi flexion and 10o of 
 
                 plantar flexion.  There is no instability evident.  
 
                 Motion that is present does not appear to be 
 
                 painful.  Straight leg raising, sitting and lying 
 
                 down, is negative bilaterally.  Cervical flexion 
 
                 and Naffizger's test are negative, indicating no 
 
                 nerve root irritation.  While lying down he 
 
                 demonstrates an excellent range of motion of both 
 
                 hip joints.  Neurological examination does not 
 
                 demonstrate any significant muscle atrophy or 
 
                 weakness.  Deep tendon reflexes are present and 
 
                 equal.
 
            
 
                 X-ray examination of the lumbosacral spine reveals 
 
                 reasonably well preserved disc spaces.  He has 
 
                 marked degenerative changes in the facets at L4-5 
 
                 bilaterally.
 
            
 
                 DIAGNOSES:  1.  Degenerative arthritis facets L4-5
 
                        2.  Moderate deconditioning 
 
            lumbosacral
 
                            spine
 
            
 
                 DISCUSSION:  The symptoms of which this patient 
 
                 complains, in my opinion, are not due to any 
 
                 specific injury but are due to the degenerative 
 
                 changes present at the L4-5 joint.  These are of 
 
                 long standing and often cause referred pain into 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
                 the left or right sacroiliac area.  The symptoms 
 
                 that he has described are not, in my opinion, due 
 
                 to any abnormality of gait but represent an aging 
 
                 process that takes place in the spine over a 
 
                 period of years.  The treatment of such a 
 
                 condition responds at least in part to specific 
 
                 exercises of the low back and a conditioning 
 
                 process that often alleviates, or at least 
 
                 modifies, the symptoms.
 
            
 
                 I have enclosed a copy of the report, since the 
 
                 patient has requested a copy of my dictation, and 
 
                 I advised him I would forward a copy that you 
 
                 could forward to him.
 
            
 
            (Ex. 12)
 
            
 
                 Defendant also instructed claimant to present himself 
 
            to Daniel J. McGuire, M.D., for another examination.  Dr. 
 
            McGuire examined claimant on October 1, 1992.  The 
 
            orthopedic surgeon then authored a report dated November 2, 
 
            1992.  In his report Dr. McGuire opined:
 
            
 
                 As far as his back is concerned, the things we're 
 
                 seeing are part of the natural aging process.  He 
 
                 has some problems with back pain and that's a very 
 
                 common problem.  He has some changes noted on his 
 
                 radiographs that are related to the aging process 
 
                 and they may account for some of his back pain.  
 
                 Some of the back pain is probably coming from the 
 
                 soft tissues and those we can't change.
 
            
 
                 As far as his back is concerned I really see no 
 
                 reason to think there is a true relationship to 
 
                 the injury to his left leg in March of 1987.  I 
 
                 realize he's had some persistent aches and pains, 
 
                 but some of those aches and pains are probably 
 
                 more related to his natural aging process.
 
            
 
                 Please see my enclosed office note for the 
 
                 diagnosis.  I would have to agree with Dr. Robb.  
 
                 If it's truly related to his open tibia fracture 
 
                 he would have related more radicular complaints at 
 
                 first, and every patient with a tibia fracture 
 
                 would end up with back problems and that's not 
 
                 what happens.
 
            
 
                 Without a doubt Mr. McDaniel is employable.  I 
 
                 guess I would disagree with the physician who 
 
                 thought he had permanent and forever disability 
 
                 that would keep him from working.  I realize he 
 
                 had a tibia fracture, but he's had a good clinical 
 
                 result from his severe injury.  From my standpoint 
 
                 there are many things he could be doing.  I might 
 
                 place a few restrictions on him because of his age 
 
                 and the aging process, but they would not be 
 
                 restrictions related to the incident in March of 
 
                 1987.  We have a gentleman who hasn't worked in 5 
 
                 1/2 years and we have a man who has known 
 
                 arthritic changes in his lumbar spine, and taking 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
                 those two things into consideration we would have 
 
                 to make some common sense temporary restrictions 
 
                 for him.
 
            
 
            (Ex. A)
 
            
 
                   At the time of the hearing, claimant reported that he 
 
            had not been employed in any capacity.  He was receiving 
 
            social security disability payments.  Claimant also reported 
 
            that he did perform volunteer work for several senior 
 
            citizens.  The volunteer work generally required claimant to 
 
            act as an unpaid chauffeur.
 
            
 
                 Claimant also testified that he must wear a specially 
 
            designed boot.  It was originally prescribed by Dr. 
 
            Mirbegian and it aids claimant with walking.  There is no 
 
            question that the boots will need replacing on a periodic 
 
            basis.
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                 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).
 
            
 
                 The right of an employee to receive compensation for 
 
            injuries sustained is statutory. The statute conferring this 
 
            right can also fix the amount of compensation payable for 
 
            different specific injuries.  The employee is not entitled 
 
            to compensation except as the statute provides.  Soukup v. 
 
            Shores Co., 222 Iowa 272, 268 N.W. 598 (1936).
 
            
 
                 Compensation for permanent partial disability begins at 
 
            termination of the healing period.  Section 85.34(2).  
 
            Permanent partial disabilities are classified as either 
 
            scheduled or unscheduled.  A specific scheduled disability 
 
            is evaluated by the functional method; the industrial method 
 
            is used to evaluate an unscheduled disability. Simbro v. 
 
            Delong's Sportswear, 332 N.W.2d 886 (Iowa 1983); Graves v. 
 
            Eagle Iron Works, 331 N.W.2d 116 (Iowa 1983); Martin v. 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            Skelly Oil Co., 252 Iowa 128, 106 N.W.2d 95 (1960).
 
            
 
                 An injury to a scheduled member may, because of after 
 
            effects or compensatory change, result in permanent 
 
            impairment of the body as a whole.  Such impairment may in 
 
            turn be the basis for a rating of industrial disability.  It 
 
            is the anatomical situs of the permanent injury or 
 
            impairment which determines whether the schedules in section 
 
            85.34(2)(a) - (t) are applied.  Lauhoff Grain v. McIntosh, 
 
            395 N.W.2d 834 (Iowa 1986); Blacksmith, 290 N.W.2d 348 (Iowa 
 
            1980); Dailey v. Pooley Lumber Co., 233 Iowa 758, 10 N.W.2d 
 
            569 (1943).  Soukup, 222 Iowa 272, 268 N.W. 598 (1936).
 
            
 
                 Claimant maintains that he has sustained a low back 
 
            injury which is the direct result of the work injury which 
 
            he sustained on March 2, 1987 to his left lower extremity.  
 
            Specifically, claimant attributes his low back pain to his 
 
            abnormal gait and to the fact that he has had to resort to 
 
            the use of casts, walkers, and special shoes.
 
            
 
                 Dr. Mirbegian, the treating orthopedic surgeon, was 
 
            unavailable at the time of the hearing.  Some years prior to 
 
            the date of the hearing, he had moved from the state.  His 
 
            medical records for claimant were admitted as evidence in 
 
            the case.  The undersigned deputy was unable to find any 
 
            reference to a low back condition or to low back complaints 
 
            in the records maintained by Dr. Mirbegian.  The undersigned 
 
            did note that Dr. Vance documented low back complaints in 
 
            his chiropractic notes for the summer of 1987.
 
            
 
                 Claimant continued chiropractic treatment with Dr. 
 
            Vance through August 23, 1990.  The records of Dr. Vance 
 
            contained notations regarding follow-up care for claimant 
 
            stemming back to the date of the work injury.  (Ex. 11, p. 
 
            58)
 
            
 
                 The records and the deposition of claimant's family 
 
            physician, Dr. Westerhoff, revealed his opinion relative to 
 
            the cause of claimant's back condition.  Dr. Westerhoff 
 
            opined that the back condition was the result of a chronic 
 
            gait problem that was directly attributable to the March 2, 
 
            1987 work injury.  Dr. Westerhoff's opinion was based upon 
 
            the observations the physician made of claimant over several 
 
            years.  Dr. Westerhoff did not order or conduct any 
 
            diagnostic tests.  No radiological evaluations were ordered 
 
            for claimant's back.  Nor did Dr. Westerhoff have any 
 
            special expertise in the field of orthopedics.
 
            
 
                 On the other hand, two orthopedic specialists denied 
 
            there was a causal relationship between claimant's back 
 
            condition and his left leg injury.  Dr. Robb examined x-rays 
 
            of claimant's lumbosacral spine.  He noted degenerative 
 
            changes at L4-5 which he attributed to the aging process and 
 
            to the fact that claimant was in his sixties.  Dr. Robb 
 
            noted that the degenerative changes were of long-standing 
 
            and were not associated with an abnormal gait.
 
            
 
                 Dr. McGuire, like Dr. Robb, reviewed radiographs of 
 
            claimant's lumbar spine.  Dr. McGuire too found degenerative 
 
            changes.  He corroborated the opinion of Dr. Robb that the 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            changes were due to the aging process.  Dr. McGuire did not 
 
            causally relate any back condition to the work injury in 
 
            question.
 
            
 
                 The opinions of both Dr. Robb And Dr. McGuire were 
 
            accorded more weight than was the opinion of Dr. Westerhoff.  
 
            Dr. Robb and Dr. McGuire were specialists in orthopedic 
 
            surgery.  Dr. Westerhoff had no special expertise in 
 
            orthopedics.  He was a family practitioner.  Additionally, 
 
            Dr. Westerhoff performed no diagnostic tests.  The opinions 
 
            of the other two physicians were based upon separate reviews 
 
            of radiographs.
 
            
 
                 While it is acknowledged that claimant reported his 
 
            work injury to his personal chiropractor, Dr. Vance, nowhere 
 
            is the record clear that Dr. Vance opined the back condition 
 
            was the direct result of an abnormal gait.  However, even if 
 
            Dr. Vance did causally relate the back condition to the work 
 
            injury, this deputy would still attribute more weight to the 
 
            opinions of the two orthopedic surgeons since they were 
 
            better educated than was the chiropractor.  
 
            
 
                 Therefore, it is the determination of the undersigned 
 
            that the alleged back condition is not causally related to 
 
            the injury to the left lower extremity.  Claimant takes no 
 
            additional weekly benefits because of the work injury on 
 
            March 7, 1987.
 
            
 
                 Finally, there is the issue dealing with medical 
 
            benefits pursuant to section 85.27 of the Iowa Code.
 
            
 
                 The employer shall furnish reasonable surgical, 
 
            medical, dental, osteopathic, chiropractic, podiatric, 
 
            physical rehabilitation, nursing, ambulance and hospital 
 
            services and supplies for all conditions compensable under 
 
            the workers' compensation law.  The employer shall also 
 
            allow reasonable and necessary transportation expenses 
 
            incurred for those services.  The employer has the right to 
 
            choose the provider of care, except where the employer has 
 
            denied liability for the injury.  Section 85.27.  Holbert v. 
 
            Townsend Engineering Co., Thirty-second Biennial Report of 
 
            the Industrial Commissioner 78 (Review-reopen 1975).
 
            
 
                 This deputy is convinced that certain prescriptions for 
 
            pain medication were prescribed for both the left lower 
 
            extremity pain, as well as for the back pain.  Since the 
 
            prescribed Motrin and the Darvon relieved pain in the left 
 
            lower extremity, defendant is liable for the costs of those 
 
            medications.  The sum of those medical benefits is as 
 
            follows:
 
            
 
                                            $  9.75
 
                                               7.70
 
                                               7.70
 
                                              23.95
 
                                              12.00
 
                                              38.80
 
                                               9.75
 
                                               8.95
 
                                               8.95
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
                                               8.95
 
                                               8.95
 
                                               8.95
 
                                               8.95
 
                                               9.15
 
                           Total            $172.50
 
            
 
                                      ORDER 
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 Defendant is liable for all reasonable and necessary 
 
            medical expenses which are causally connected to the work 
 
            injury and which include one hundred seventy-two and 50/l00 
 
            dollars ($172.50) in medical expenses for prescriptions.
 
            
 
                 Costs are taxed to defendant.  
 
            
 
                 Defendant shall file a claim activity report as 
 
            requested by this division and pursuant to rule 343 IAC 3.1.
 
            
 
            
 
            
 
                 Signed and filed this ____ day of February, 1993.
 
            
 
            
 
            
 
            
 
            
 
                                          ______________________________               
 
            MICHELLE A. McGOVERN
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. James P. Hoffman
 
            Attorney at Law
 
            Middle Road
 
            P O Box 1087
 
            Keokuk, Iowa  52632
 
            
 
            Mr. Harry W. Dahl
 
            Attorney at Law
 
            974 73rd Street
 
            Suite 16
 
            Des Moines, Iowa  50312
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
            1803; 1803.1
 
            Filed February 19, 1993
 
            MICHELLE A. McGOVERN
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            PAUL McDANIEL, :
 
                      :         File No. 846849
 
                 Claimant, :
 
                      :      A R B I T R A T I O N
 
            vs.       :
 
                      :         D E C I S I O N
 
            SHELLER-GLOBE, :
 
                      :
 
                 Employer, :
 
                 Self-Insured,  :
 
                 Defendant.     :
 
            ___________________________________________________________
 
            
 
            
 
            1803; 1803.1
 
            Claimant was unable to prove by a preponderance of the 
 
            evidence that he had sustained an injury to his back.  It 
 
            was undisputed that claimant had sustained a severe 
 
            permanent partial disability to the left lower extremity.  
 
            The parties stipulated that claimant had sustained a 70 
 
            percent loss of use to the left lower extremity.  However, 
 
            claimant alleged that he also had a low back injury which 
 
            was purportedly due to an abnormal gait.  Claimant's family 
 
            physician causally related the back condition to the 
 
            abnormal gait.  Two orthopedic surgeons related any back 
 
            condition to degenerative changes and to the aging process.  
 
            The opinions of the two orthopedic surgeons were accorded 
 
            greater weight than was the opinion of the family physician.  
 
            Additionally, the family physician ordered no diagnostic 
 
            tests.  He did not review any radiographs.  The two 
 
            specialists reviewed radiographs and based their opinions, 
 
            in part on the reviewed xrays.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            CAROL FRY,                    :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          : File Nos.  837829 and 846901
 
            AMANA REFRIGERATION, INC.,    :
 
                                          :  A R B I T R A T I O N
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            LIBERTY MUTUAL INSURANCE CO., :
 
                                          :
 
                 Insurance Carrier,       :
 
                                          :
 
            and                           :
 
                                          :
 
            SECOND INJURY FUND OF IOWA,   :
 
            
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                                   INTRODUCTION
 
            
 
                 This is a proceeding in arbitration brought by Carol 
 
            Fry, claimant against Amana Refrigeration, Incorporated, 
 
            employer, Liberty Mutual Insurance Company, insurance 
 
            carrier and Second Injury Fund of Iowa, defendants, for 
 
            benefits as the result of an injury to the right arm which 
 
            occurred on October 23, 1986 (file number 837829) and an 
 
            injury to the left arm that occurred on February 9, 1987 
 
            (file number 847901).  Claimant contends that she first lost 
 
            work due to the second injury on February 9, 1987 and; 
 
            therefore, claimant contends the proper date of injury is 
 
            February 9, 1987.  Defendant employer and insurance carrier 
 
            contend that with respect to the second injury, claimant 
 
            first complained of an injury on January 28, 1987 and they 
 
            consider this to be the injury date for the second injury.  
 
            Defendant Second Injury Fund of Iowa contends that claimant 
 
            sustained only one injury of a cumulative nature stemming 
 
            from a preexisting condition and that the injury date should 
 
            be when claimant first lost time from work for the injury.
 
            
 
                 A hearing was held on November 14, 1989, at Cedar 
 
            Rapids, Iowa, and the case was fully submitted at the close 
 
            of the hearing.  Claimant was represented by Thomas J. 
 
            Currie.  Employer and insurance carrier were represented by 
 
            Ralph W. Gearhart.  Second Injury Fund of Iowa was 
 
            represented by Craig Kelinson.
 
            
 
                 The record consists of the testimony of Carol Fry, 
 
            claimant; Gerald Fry, claimant's former husband; Vera 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            Hansen, witness for claimant; John Hadenfeldt, director of 
 
            occupational safety; joint exhibits 1 through 4; claimant's 
 
            exhibits A through G; and employer and insurance carrier 
 
            exhibits 1 and 2.  Several of the exhibits were duplicated 
 
            by claimant and employer and insurance carrier, even though 
 
            paragraph 10(2) of the hearing assignment order states that 
 
            every reasonable effort should be made to avoid duplication.  
 
            Duplicated exhibits inhibit the decision making process, are 
 
            difficult to work with, and delay the time in which the 
 
            decision can be made.  
 
            
 
                 The deputy ordered a transcript of the hearing.  
 
            Claimant's attorney filed a claimant's contention on 
 
            disputed issues and a hearing brief at the time of the 
 
            hearing.  All three attorneys filed outstanding posthearing 
 
            briefs.
 
            
 
                             injury of october 23, 1986
 
            
 
                                   stipulations
 
            
 
                 Claimant, employer and insurance carrier stipulated to 
 
            the following matters with respect to the injury of October 
 
            23, 1986:
 
            
 
                 That an employer-employee relationship existed between 
 
            claimant and employer at the time of the injury.
 
            
 
                 That claimant sustained an injury on October 23, 1986 
 
            which arose out of and in the course of employment with 
 
            employer.
 
            
 
                 That the injury was the cause of temporary disability, 
 
            that claimant was entitled to and was paid temporary 
 
            disability benefits from November 13, 1986 through January 
 
            1, 1987, and that claimant's entitlment to temporary 
 
            disability benefits is not a matter in dispute at this time.  
 
            
 
                 That the commencement date for permanent partial 
 
            disability benefits, in the event such benefits are awarded, 
 
            is January 2, 1987.
 
            
 
                 That the rate of compensation, in the event of an 
 
            award, is $226.03 per week.
 
            
 
                 That the charges for disputed medical expenses are fair 
 
            and reasonable and were incurred for reasonable and 
 
            necessary medical treatment.
 
            
 
                 The defendants make no claim for credit for employee 
 
            nonoccupational group health plan benefits paid to claimant 
 
            prior to hearing. 
 
            
 
                 That defendants claim no credit for workers' 
 
            compensation permanent disability benefits paid to claimant 
 
            prior to hearing.
 
            
 
                 That the temporary disability benefits that were paid 
 
            to claimant prior to hearing were at the rate of $210.78 per 
 
            week for 8.143 weeks and that this rate is less than the 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            stipulated rate at the time of hearing and the parties 
 
            agreed to adjust this between themselves.
 
            
 
                 That there are no bifurcated claims.
 
            
 
                 That claimant withdrew the issue of entitlement to an 
 
            Iowa Code section 85.39 examination because employer and 
 
            insurance carrier agreed to pay for this examination and 
 
            evaluation at the time of hearing.
 
            
 
                                      issues
 
            
 
                 The same parties submitted the following issues for 
 
            determination at the time of hearing:
 
            
 
                 Whether the injury of October 23, 1986, was the cause 
 
            of permanent disability.
 
            
 
                 Whether claimant is entitled to permanent disability 
 
            benefits, and if so, the nature and extent of benefits to 
 
            which she is entitled.
 
            
 
                 Whether claimant is entitled to certain medication 
 
            expenses and a bill from St. Luke's Hospital for an EMG in 
 
            the amount of $309.
 
            
 
                             injury of february 9, 1987
 
            
 
                                   STIPULATIONS
 
            
 
                 Claimant, employer and insurance carrier stipulated to 
 
            the following matters with respect to the injury of February 
 
            9, 1987:
 
            
 
                 That an employer-employee relationship existed between 
 
            claimant and employer at the time of the injury.
 
            
 
                 That claimant sustained an injury on February 9, 1987 
 
            or possibly January 28, 1987 which arose out of and in the 
 
            course of employment with employer.
 
            
 
                 That the injury was the cause of temporary disability, 
 
            that claimant was entitled to and was paid temporary 
 
            disability benefits from February 9, 1987 through March 22, 
 
            1987 and that claimant's entitlement to temporary disability 
 
            benefits is not a matter in dispute at this time.
 
            
 
                 That the commencement date for permanent disability 
 
            benefits, in the event such benefits are awarded, is March 
 
            23, 1987.
 
            
 
                 That the rate of compensation, in the event of an 
 
            award, is $221.30 per week.
 
            
 
                 That the charges for the disputed medical expenses are 
 
            fair and reasonable and were incurred for reasonable and 
 
            necessary medical treatment.
 
            
 
                 That defendants make no claim for credit for employee 
 
            nonoccupational group health plan benefits paid to claimant 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            prior to hearing.
 
            
 
                 That defendants claim no credit for workers' 
 
            compensation permanent disability benefits paid to claimant 
 
            prior to hearing.
 
            
 
                 That the temporary disability benefits that were paid 
 
            to claimant prior to hearing were at the rate of $228.82 per 
 
            week which is more than the rate that was stipulated to at 
 
            the time of the hearing and the parties agreed to adjust 
 
            this matter between themselves.
 
            
 
                 That there are no bifurcated claims.
 
            
 
                 That claimant withdrew the issue of entitlement to an 
 
            Iowa Code section 85.39 examination because defendant 
 
            employer and insurance carrier agreed to pay for it at the 
 
            time of hearing.
 
            
 
                                      issues
 
            
 
                 The parties submitted the following issues for 
 
            determination at the time of the hearing:
 
            
 
                 Whether claimant sustained an injury on February 9, 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            1987 (or alternately on January 28, 1987) which was the 
 
            cause of permanent disability.
 
            
 
                 Whether claimant is entitled to permanent disability 
 
            benefits, and if so, the nature and extent of benefits to 
 
            which she is entitled.
 
            
 
                 Whether claimant is entitled to certain medication 
 
            expenses and a bill from St. Luke's Hospital for an EMG in 
 
            the amount of $309.
 
            
 
                 Whether claimant is entitled to benefits from the 
 
            Second Injury Fund of Iowa.
 
            
 
                 injuries of October 23, 1986 and February 9, 1987
 
            
 
                 The Second Injury Fund of Iowa submitted the following 
 
            issues with respect to both injuries at the time of hearing.
 
            
 
                 Whether claimant sustained two separate injuries or 
 
            whether claimant sustained one cumulative injury with 
 
            simultaneous onset of symptoms in both upper extremities.
 
            
 
                 Whether the injuries are to the arms and hands or 
 
            whether this is an injury to the body as a whole.
 
            
 
                 Whether claimant's injury or injuries are permanent.
 
            
 
                 Whether claimant sustained a disease rather than an 
 
            injury.
 
            
 
                 Whether claimant's industrial disability, if any, 
 
            exceeds the combined disability of the two upper extremities 
 
            separately.
 
            
 
                                  findings of fact
 
            
 
            injury type-injury date-second injury fund of iowa liability
 
            
 
                 It is determined that claimant sustained a loss to both 
 
            arms caused by a single accident.  Iowa Code section 
 
            85.34(2)(s).  
 
            
 
                 Claimant started to work for employer on August 4, 1986 
 
            as an assembler second class (transcript page 53).  
 
            Employer's general job description is, "Assemble and install 
 
            parts in units."  The balance of the description is a 
 
            detailed explanation of the skills and responsibilities of 
 
            the job which entail considerable use of the hands and arms 
 
            (claimant's exhibit E, p. 24; respondents' ex. 1, page 10).  
 
            
 
                 Claimant first experienced problems in her fingers and 
 
            hands in September of 1986.  She testified:
 
            
 
                 A.  It was tingling all over on my hands.  When 
 
                 I'd go to bed at night, I couldn't sleep because 
 
                 they would hurt so bad.
 
            
 
                 Q.  When you say "they", what are you referring 
 
                 to?
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            
 
                 A.  The hands.  They just would hurt.
 
            
 
                 Q.  Okay.  So were you experiencing problems with 
 
                 both hands at that time?
 
            
 
                 A.  Off and on.
 
            
 
            (tr. p. 57)
 
            
 
                 Claimant saw the nurse, the company physician, and was 
 
            referred to John S. Koch, M.D., an orthopedic surgeon.  On 
 
            November 10, 1986, Dr. Koch stated:
 
            
 
                 Patient comes in in acute distress with the upper 
 
                 extremities....
 
            
 
                                        ***
 
            
 
                 She has acute tenderness about the wrists, the 
 
                 flexors of the thumb of the hands, puffiness of 
 
                 the metacarpal plangeal joints, soreness about the 
 
                 wrist level.  She has exquisite tenderness over 
 
                 the flexor pollicis longus tendon bilaterally, 
 
                 triggering effects on the structure.  Sensation is 
 
                 intact.
 
            
 
            (joint ex. 1, p. 22; res. ex. 1, p. 38)
 
            
 
                 Employer's first aid report shows that claimant 
 
            reported, "trouble 2 weeks-new job.  hands & arms pins & 
 
            needles-night-" (cl. ex. E, p. 1; res. ex. 1, p. 20).  
 
            Claimant testified and the first aid reports show that the 
 
            right hand was the major problem at that time (tr. p. 57; 
 
            cl. ex. E, p. 1; res. ex. 1, p. 21).
 
            
 
                 Employer's first aid report next shows that on November 
 
            10, 1986, the same day claimant saw Dr. Koch, that the 
 
            employee was sent, "home."  This report adds, "To bring 
 
            under control."  (cl. ex. E, p. 5; res. ex. 1, p. 25).  
 
            Thus, even though the parties stipulated that claimant was 
 
            paid temporary disability benefits beginning on November 13, 
 
            1986, the first aid report shows that claimant first lost 
 
            time from work on November 10, 1986.  Furthermore, the form 
 
            2a, shows that temporary disability benefits were begun on 
 
            November 10, 1986 (res. ex. 1, p. 33).  This is also 
 
            confirmed by employer's attendance records (jt. ex. 2, p. 
 
            12; cl. ex. E, p. 25; res. ex. 2, p. 11).
 
            
 
                 The nurse's note for October 23, 1986 further indicates 
 
            that claimant reported bilateral problems in both hands and 
 
            arms at that time (jt. ex. 2; cl. ex. E, p. 29; res. ex. 2, 
 
            p. 16).
 
            
 
                 Claimant testified, described and demonstrated in the 
 
            court room with several gestures that manual movements were 
 
            required by both hands and arms simultaneously to operate 
 
            the RTV caulking gun to caulk the pan into the Amana Radar 
 
            range (tr. pp. 58 & 85).  
 
            
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
                 Dr. Koch performed right carpal tunnel surgery on 
 
            November 19, 1986 (jt. ex. 1, pp. 2 & 22; jt. ex. 2, pp. 8 & 
 
            16; tr. p. 87; cl. ex. E, p. 6; res. ex. 1, p. 24).  Dr. 
 
            Koch's office notes and the form 2a indicate that claimant 
 
            returned to work on January 5, 1987 (jt. ex. 1, p. 21; res. 
 
            ex. 1, p. 39 & 33; cl. ex. B, p. 3; res. ex. 1, p. 44).  
 
            
 
                 Claimant then operated a screw gun which she fed with 
 
            screws with the left hand until January 28, 1987 when she 
 
            reported pain and swelling in her left hand (cl. ex. E, p. 
 
            7; res. ex. 1, p. 27; tr. pp. 61 & 92).  Claimant again 
 
            demonstrated that both right and left hand motions were 
 
            required to perform this operation (tr. p. 93).  Dr. Koch 
 
            performed carpal tunnel surgery on the left hand on February 
 
            9, 1987 (jt. ex. 1, p. 20; jt. ex. 2, p. 19; res. ex. 1, p. 
 
            40; tr. p. 95).
 
            
 
                 Approximately one week after the left carpal tunnel 
 
            surgery claimant's left thumb locked up and she required a 
 
            surgical release of the left thumb (jt. ex. 2, p. 20; jt. 
 
            ex. 1, p. 1).
 
            
 
                 Dr. Koch stated several times in his deposition that 
 
            claimant suffered from a bilateral condition (jt. ex. 2, pp. 
 
            28-30).
 
            
 
                 John R. Walker, M.D., an orthopedic surgeon, who 
 
            evaluated claimant, stated:
 
            
 
                 ...After about one month of working at the plant 
 
                 both of her hands became painful and the right 
 
                 thumb, index and long finger became numb.  Both 
 
                 hands were also cold and swollen most of the time 
 
                 and it was almost impossible to grasp the tool she 
 
                 needed to work with....
 
            
 
            (cl. ex. A)
 
            
 
                 Dr. Walker further opined, "Unfortunately this patient 
 
            has suffered from the severe effects of a stress type of 
 
            syndrome and over-use type of syndrome in doing repetitive 
 
            movements which her musculo-skeletal system unfortunately 
 
            were not equipped to handle." (cl. ex. A).  
 
            
 
                 Two orthopedic physicians at the University of Iowa 
 
            stated that claimant experienced bilateral hand pain (jt. 
 
            ex. 1, p. 38).
 
            
 
                 Therefore, (1) claimant testified to bilateral problems 
 
            in September of 1986; (2) the first aid report recorded 
 
            bilateral problems on October 23, 1986; (3) the nurse's 
 
            notes recroded bilateral complaints; (4) Dr. Koch found a 
 
            bilateral condition on November 10, 1986; (5) Dr. Koch 
 
            testified to bilateral hand complaints in his deposition; 
 
            (6) the University of Iowa physicians describe bilateral 
 
            hand pain;  and (7) Dr. Walker found a bilateral problem on 
 
            August 31, 1987 from the overuse type of syndrome in doing 
 
            repetitive movements.  
 
            
 
                 Therefore, the weight of the evidence is that claimant 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            sustained a cumulative injury which occurred on November 10, 
 
            1986, the first day that claimant was forced to leave work 
 
            due to her disability which arose out of and in the course 
 
            of employment with employer.  McKeever Custom Cabinets v. 
 
            Smith, 379 N.W.2d 368 (Iowa 1985).  It is further determined 
 
            that claimant sustained all of the symptoms at the same 
 
            time, shortly after claimant began work for employer, even 
 
            though it was worse on the right at first and subsequently 
 
            worse on the left after that.  Consequently, all of the 
 
            medical evidence and all of the lay evidence demonstrated a 
 
            bilateral condition from the very beginning.  
 
            
 
                 Therefore, it is found that even though there are two 
 
            reports of injury, two claim files, and two carpel tunnel 
 
            surgeries, nevertheless, claimant's testimony, the companies 
 
            medical record, the nurse's notes, the notes of Dr. Koch, 
 
            the testimony of Dr. Koch, the report of Dr. Walker, and the 
 
            Univeristy of Iowa report, all establish that claimant 
 
            received a loss to both hands or arms caused by a single 
 
            accident or set of circumstances.  Iowa Code section 
 
            85.34(2)(s); Simbro v. Delong's Sportswear, 332 N.W.2d 886 
 
            (Iowa 1983); Himschoot v. Second Injury Fund, Appeal 
 
            Decision April 15, 1988, affirmed, Polk County District 
 
            Court January 30, 1989, Iowa Court of Appeals, affirmed on 
 
            February 22, 1990 in an unpublished decision.  This case is 
 
            distinguishable from Babe v. Greyhound Lines, Inc., No. 
 
            89-113 (Iowa filed March 27, 1990) because in Babe the 
 
            claimant suffered distinguishable separate injuries. 
 
            
 
                 In order to be entitled to benefits under Iowa Code 
 
            section 85.64 from the second injury fund, claimant must 
 
            first prove a permanent injury to a scheduled member and 
 
            second prove a separate permanent injury to a second 
 
            scheduled member.  Lawyer and Higgs, Iowa Workers' 
 
            Compensation--Law and Practice, section 17-4, stresses that 
 
            the employee must have a loss to another member or organ.  
 
            By foot note one, the book points out that an 85.34(2)(s) 
 
            injury is a single incident and shall be compensated as 
 
            such.  Manifestation of one injury on two occasions does not 
 
            satisfy the requirement of a second loss.  McMurrin v. 
 
            Quaker Oats Company, I Iowa Industrial Commissioner Reports 
 
            222 (1981).  The McMurrin case is quite similar to this case 
 
            because there the claimant had developed what was described 
 
            as de Quervain disease or tendonitis in both wrists.  It was 
 
            held that the claimant did not have a prior loss of a member 
 
            as contemplated by Iowa Code section 85.64.  Therefore, it 
 
            is determined that claimant is not entitled to second injury 
 
            fund benefits in the instant case.
 
            
 
                 The injury date for this case is determined to be 
 
            November 10, 1986, when claimant first lost work due to the 
 
            disability. The rate of compensation on November 10, 1986 is 
 
            the rate of compensation which is applicable to this case.  
 
            There is no date of a second injury because there is no 
 
            separate second injury.  
 
            
 
                permanent disability-causal connection-entitlement
 
            
 
                 It is determined that the bilateral carpal tunnel 
 
            syndrome cumulative injury of November 10, 1986, is the 
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            cause of permanent disability.
 
            
 
                 Dr. Koch, the operating surgeon, however, did not 
 
            believe that the injury was the cause of permanent 
 
            disability.  He determined that claimant was suffering from 
 
            rheumatoid arthritis, a systemic disorder or disease of the 
 
            whole body which was being aggravated by her work.  He said 
 
            she had a temporary aggravation of her difficulty which 
 
            necessitated the surgical decompressions.  Dr. Koch 
 
            concluded, "I do not feel that she will have permanent 
 
            partial disability as the result of her work or aggravation 
 
            by the work." (jt. ex. 1, p. 17; res. ex. 2, p. 46; res. ex. 
 
            1).  Dr. Koch opined in his deposition that he did not feel 
 
            that there was any permanent impairment from either the 
 
            right or left hand surgeries (jt. ex. 2, pp. 17 & 22).  Dr. 
 
            Koch believed that claimant's continuing complaints of 
 
            soreness in her hands, aching pains at night, stiffness, 
 
            swelling and catching of the ring finger on her left hand 
 
            with bending activities were related to her underlying 
 
            general systemic or body condition of rheumatoid arthritis 
 
            (jt. ex. 2, pp. 23 & 24).  
 
            
 
                 Dr. Koch then referred claimant to Michael S. Brooks, 
 
            M.D., a rheumatologist in his medical group (jt. ex. 1, p. 
 
            19; res. ex. 2, p. 41; jt. ex. 2, p. 26).  A laboratory 
 
            blood test taken by Dr. Koch to determine whether there was 
 
            a rheumatoid factor resulted in a seronegative (blood serum 
 
            negative) result (jt. ex. 1, p. 19; res. ex. 2, p. 41; jt. 
 
            ex. 2, p. 26).  Dr. Koch completed his testimony with the 
 
            following comprehensive summary:
 
            
 
                 Q.  What is your basic diagnosis of Mrs. Fry's 
 
                 problem as her attending physician?
 
            
 
                 A.  As I've indicated, I feel Mrs. Fry is 
 
                 afflicted with a generalized arthritic disorder of 
 
                 the whole body which I became aware of in the 
 
                 course of treating her for conditions related to 
 
                 temporary aggravation in local areas of her body 
 
                 by activities in her employment.  Those temporary 
 
                 aggravations were relieved without permanent 
 
                 impairment being incurred by the work activity and 
 
                 that she continued to this day suffering from a 
 
                 generalized disease process unrelated to her 
 
                 employment.  And I anticipate that she will 
 
                 continue in the future to be afflicted with this 
 
                 whole body disorder requiring medical, possibly 
 
                 physical, possibly surgical management for 
 
                 difficulties that will arise but in no way related 
 
                 to her former employment.
 
            
 
            (jt. ex. 2, pp. 27 & 28)
 
            
 
                 Dr. Koch acknowledged that he issued a return to work 
 
            slip on March 19, 1987, which returned claimant to work as 
 
            of March 23, 1987 with restrictions of no lifting, pulling 
 
            or pushing 10 to 20 pounds and a restriction on finger 
 
            movements and wrist-hand movements (jt. ex. 1, p. 12; jt. 
 
            ex. 2, pp. 37 & 38).  It should be noted that Dr. Koch's 
 
            restrictions are not consistent with a rating of zero 
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
            permanency.
 
            
 
                 Even though Dr. Koch was the treating physician, and 
 
            even though his opinion may appear to be very convincing on 
 
            the surface, Dr. Koch's testimony is determined not to be 
 
            the weight of the evidence on the issue of causal connection 
 
            and entitlement to permanent disability.  Dr. Koch admitted 
 
            in his deposition testimony that he did not administer any 
 
            sort of grip strength test on claimant.  He did not measure 
 
            the pinch between the thumb and forefinger on either or both 
 
            hands.  Dr. Koch acknowledged that he did not have any 
 
            measurement figures at all.  Dr. Koch explained that he did 
 
            not take any measurements because these tests require the 
 
            total cooperation on the part of the patient and if you get 
 
            subjective responses rather than objective responses the 
 
            readings are unreliable.  Furthermore, the doctor conceded, 
 
            "My examination here was not for purposes of evaluation as 
 
            to degree of impairment or disability and therefore critical 
 
            measurements were not made of these."  Dr. Koch further 
 
            admitted, "I did not make any record of measurement of 
 
            degree of motion, flexion, extension or rotation involving 
 
            the extremities." (jt. ex. 2, pp. 40 & 41).  
 
            
 
                 Therefore, it is clear that Dr. Koch did not use the 
 
            Guides to the Evaluation of Permanent Impairment, third 
 
            edition, published by the American Medical Association.  He 
 
            did not use the Orthopedic Surgeon's Guide to arrive at his 
 
            conclusions.  And he did not take any measurements which 
 
            would form the basis for an accurate evaluation of 
 
            impairment based entirely on professional judgement.  
 
            Therefore, Dr. Koch's statement of zero impairment must be 
 
            disregarded as unreliable.  
 
            
 
                 The following evidence of record is totally 
 
            irreconcileable with Dr. Koch's opinion that claimant 
 
            suffered no permanent impairment from this injury.  Even 
 
            though claimant was released to return to work after the 
 
            second and third surgeries on March 23, 1987 she was 
 
            discharged by employer for the reason that she was unfit to 
 
            perform factory work (cl. ex. E, p. 33; res. ex. 1, p. 19).  
 
            This discharge was based on Dr. Koch's release of March 19, 
 
            1987.  Claimant testified that she was told by employer that 
 
            she was unable to perform factory work (tr. pp. 63-75).  
 
            John B. Hadenfeldt, director of occupational safety, 
 
            testified, "With the medical reports that we had at that 
 
            time Carol had weight restrictions, 10 to 20 pounds, she 
 
            also had permanent restrictions of finger movement and hand 
 
            and wrist movement, and at that time we didn't have any jobs 
 
            that we could put her into." 
 
            
 
                 Dr. Brooks completed a very thorough examination of 
 
            claimant on June 22, 1987.  Dr. Brooks is a rheumatologist, 
 
            a specialist in arthritis.  Dr. Brooks stated:
 
            
 
                 A CBC done in April revealed a normal hemoglobin 
 
                 of 14.3 with a white count of 9.2 and a 
 
                 sedimentation rate of 3.  Her rheumatoid factor at 
 
                 that time was negative and I note that a 
 
                 rheumatoid factor done back in 1986 by Dr. Bickel 
 
                 was also negative.
 

 
            
 
            Page  11
 
            
 
            
 
            
 
            
 
            
 
                 On the basis of today's examination and the 
 
                 laboratory tests available thus far, I feel that 
 
                 the most likely diagnosis would be one of a 
 
                 fibrositis syndrome with a questionable underlying 
 
                 mild polyarticular arthritis.  She does appear to 
 
                 have had documented carpal tunnel syndrome and 
 
                 this may very well have precipitated this flareup 
 
                 [sic] in her fibrositis symptoms.
 
            
 
            (jt. ex. 1, p. 14; res. ex. 1, p. 40)
 
            
 
                 Thus, Dr. Brooks, the arthritis specialist, did not 
 
            find that claimant had rheumatoid arthritis.  When Dr. Koch 
 
            was asked whether fibrositis and polyarticular arthritis 
 
            were the same, he gave an answer which appears to be 
 
            equivocal (jt. ex. 2, pp. 41 & 42).
 
            
 
                 Claimant was also seen by William W. Eversman, Jr., 
 
            M.D., an orthopedic surgeon in Dr. Koch's medical group, on 
 
            January 15, 1988 and again on February 24, 1988.  Like Dr. 
 
            Brooks, he examined claimant's entire history and did a very 
 
            thorough physical examination.  He did not find that 
 
            claimant had rheumatoid arthritis and never mentioned this 
 
            condition in either of his extensive office notes.  He 
 
            suggested that she be examined at the University of Iowa.  
 
            Dr. Eversman refused to give an impairment rating because he 
 
            did not believe that she could adequately cooperate with the 
 
            permanency rating series of tests in view of her views that 
 
            she expressed to him at that time (jt. ex. 1, pp. 30-33).  
 
            By comparison with Dr. Koch, it should be noted that he did 
 
            not attempt to propose a zero impairment rating, when he 
 
            felt that claimant could not or would not cooperate with the 
 
            necessary tests, but candidly admitted that he could not 
 
            give a rating.
 
            
 
                 Claimant was examined at the University of Iowa on 
 
            February 1, 1989 by Dr. Newport and Dr. Steyers (full names 
 
            unknown).  These doctors did not make a finding of 
 
            rheumatoid arthritis, but rather assessed, "Industrial hand 
 
            pain of unknown etiology" (jt. ex. 1, p. 38).  Neither 
 
            doctor attempted to evaluate claimant's permanent 
 
            impairment.  A copy of their report was sent to Dr. Eversman 
 
            (jt. ex. 1, p. 38).
 
            
 
                 Thus, it is determined that Dr. Koch's determination 
 
            that claimant did not sustain a permanent impairment or 
 
            disability is unreliable because (1) his determination that 
 
            claimant suffered from rheumatoid arthritis is not supported 
 
            by Dr. Brooks, a rheumatologist; Dr. Eversman, an orthopedic 
 
            surgeon; or the two orthopedic doctors at the University of 
 
            Iowa; (2) two previous laboratory blood serum tests were 
 
            negative for rheumatoid arthritis; and (3) Dr. Koch candidly 
 
            admitted that he really didn't perform an impairment 
 
            evaluation on claimant and he took no measurements of any 
 
            kind to support his opinion that claimant did not sustain 
 
            any permanent impairment.
 
            
 
                 The weight of the evidence is that claimant did sustain 
 
            a permanent impairment.  Dr. Brooks wrote on March 28, 1988:
 

 
            
 
            Page  12
 
            
 
            
 
            
 
            
 
            
 
                 In terms of whether these symptoms were caused or 
 
                 aggravated by her work at Amana, I would state 
 
                 that her excessive use of the hands while working 
 
                 at Amana could certainly have caused the carpal 
 
                 tunnel syndrome and initial symptoms that she 
 
                 experienced while she was there. ...and that at 
 
                 least by her history the entirety of her problems 
 
                 involving the hands began with her employment at 
 
                 Amana.  I would therefore consider them related...
 
            
 
            (jt. ex. 1, p. 34)
 
            
 
                 The omitted portion in the quotation above is the 
 
            doctor's comments on reflex sympathetic dystrophy syndrome.  
 
            These words are omitted because claimant did not prove that 
 
            she has reflex sympathetic dystrophy syndrome in the first 
 
            place, save that it was caused by this injury.  A friend of 
 
            hers was diagnosed with this disease and claimant requested 
 
            the doctors to examine her for it also.  None of the doctors 
 
            found that claimant had reflex sympathetic dystrophy 
 
            syndrome.  Dr. Brooks did establish that claimant's 
 
            employment, "could certainly have caused the carpal tunnel 
 
            syndrome." (jt. ex. 1, p. 34).
 
            
 
                 Dr. Walker found, "Unfortunately this patient has 
 
            suffered from the severe effects of a stress type of 
 
            syndrome and over-use type of syndrome in doing repetitive 
 
            movements which her musculo-skeletal system unfortunately 
 
            were not equipped to handle." (cl. ex. A).
 
            
 
                 The testimony of Dr. Brooks and Dr. Walker, coupled 
 
            with claimant's testimony that she had no prior problems 
 
            with her hands before this employment (tr. p. 80) which was 
 
            corroborated by her former husband (tr. pp. 114, 115) and 
 
            claimant's witness Hansen (tr. p. 121) and with an absence 
 
            of any medical evidence in the record of any problems with 
 
            her hands prior to 1986 added to Dr. Walker's opinion which 
 
            is based on this work injury that:
 
            
 
                 At the present time I would state that she has a 
 
                 permanent, partial impairment of the left, upper 
 
                 extremity amounting to 20% of this member.  As far 
 
                 as the right, upper extremity is concerned, it is 
 
                 my opinion that she has a permanent, partial 
 
                 impairment of 8% of the entire left, upper 
 
                 extremity.
 
            
 
            (cl. ex. A, p. 4)
 
            
 
                 In conclusion, Dr. Koch's testimony that claimant did 
 
            not sustain a permanent impairment is determined to be 
 
            unreliable.  The testimony of Dr. Brooks to the effect that 
 
            claimant's impairment and disability could possibly be 
 
            related to this employment injury, although insufficient 
 
            alone to support a finding of causal connection, when 
 
            coupled with Dr. Walker's report, which is built on the 
 
            history of this injury, along with the nonexpert testimony 
 
            of claimant, claimant's husband, and Hansen  is sufficient 
 
            to establish a causal connection of this injury to permanent 
 

 
            
 
            Page  13
 
            
 
            
 
            
 
            
 
            impairment and disability.  Giere v. Aase Haugen Homes, 
 
            Inc., 259 Iowa 1065, 146 N.W.2d 911, 915 (1966); Anderson 
 
            v. Oscar Mayer and Company, 217 N.W.2d 531, 536 (Iowa 1974).  
 
            
 
                 The weight of the expert and nonexpert evidence in this 
 
            case establishes that the injury was the cause of permanent 
 
            disability.  Klinker v. Wilson Foods Corp., Thirty-fourth 
 
            Biennial Report of the Industrial Commissioner 167, 168 
 
            (Appeal Decision July 27, 1979).  A cause is proximate if it 
 
            is a substantial factor in bringing about the result.  It 
 
            only needs to be one cause, it does not have to be the only 
 
            cause.  Blacksmith v. All-American, Inc., 290 N.W.2d 348, 
 
            354 (Iowa 1980).
 
            
 
                 Based on agency experience, technical competence, and 
 
            specialized knowledge which may be utilized in the 
 
            evaluation of the evidence [Iowa Administrative Procedure 
 
            Act 17A.14(5)] it is determined that Dr. Walker's impairment 
 
            ratings are higher than are normally experienced for similar 
 
            injuries when rated by other orthopedic surgeons.  It is 
 
            determined in this case that claimant has sustained a 10 
 
            percent impairment to the left upper extremity and a 5 
 
            percent impairment to the right upper extremity.  Ten 
 
            percent of the upper extremity converts to 6 percent of the 
 
            body as a whole.  Five percent of the upper extremity 
 
            converts to 3 percent of the body as a whole.  Table 3, page 
 
            20, Guides to the Evaluation of Permanent Impairment, third 
 
            edition.  Six percent of the whole person and 3 percent of 
 
            the whole person combines to 9 percent on the combined 
 
            values chart at page 246 of the Guides.  Nine percent of 500 
 
            weeks is 45 weeks of permanent partial disability benefits.  
 
            Iowa Code section 85.34(2)(s).  
 
            
 
                 The proper rate of compensation at the time of this 
 
            injury on November 10, 1986, is $226.03 per week according 
 
            to the stipulation of the parties for this approximate 
 
            injury date.  Claimant's testimony concerning her residual 
 
            complaints after the two carpal tunnel surgeries and the 
 
            trigger thumb release, as well as her description of the 
 
            activities that she can no longer do or is restricted in 
 
            doing, are quite similar to other claimants in carpal tunnel 
 
            syndrome cases and support the amount of impairment that is 
 
            determined for claimant in this case (tr. pp. 73-79, 
 
            96-104).
 
            
 
                                 medical expenses
 
            
 
                 The parties stipulated that the charges for disputed 
 
            medical expense are fair and reasonable and were incurred 
 
            for reasonable and necessary treatment.  The issue is 
 
            whether they are causally connected to this injury.  
 
            Claimant's attorney asserted that claimant was seeking 
 
            reimbursement for the prescription medications ordered by 
 
            Dr. Koch during his period of treatment (ex. D, pp. 3-12) 
 
            and by Dr. Brooks during his period of treatment of claimant 
 
            (ex. D, pp. 1 & 2).  Claimant testified that all of these 
 
            prescriptions prescribed by these two doctors would be for 
 
            her hands and arms.  Claimant also testified that Dr. Brooks 
 
            ordered the EMG in the amount of $309 from St. Luke's 
 
            Hospital (cl. ex. C).
 

 
            
 
            Page  14
 
            
 
            
 
            
 
            
 
            
 
                 Dr. Koch verified in his deposition that he did 
 
            prescribe Prednisone, Disalcid and Orudis for claimant. (jt. 
 
            ex. 2, pp. 10, 23 & 26).  These medications are further 
 
            verified by Dr. Koch's notes as well as the medication 
 
            Indocin (jt. ex. 1, pp. 19-22; res. ex. 1, pp. 38-41).  
 
            Therefore, it is determined that these prescriptions were 
 
            caused by this injury because they were prescribed by the 
 
            treating physician during the period of his treatment based 
 
            on Dr. Koch's diagnosis of the injury.  These prescription 
 
            items total $389.59.  Claimant is entitled to recover 
 
            $389.59 for these prescription drugs ordered by Dr. Koch.  
 
            
 
                 At the same time, a reading of Dr. Brooks' office notes 
 
            and reports does not disclose that he ordered the 
 
            medications for which claimant seeks reimbursement, or that 
 
            he ordered them for this particular injury, nor is there any 
 
            evidence in the materials from Dr. Brooks that he ordered 
 
            the EMG on September 8, 1987 which cost $309.  Furthermore, 
 
            this EMG date does not tie in with any of the times which 
 
            Dr. Brooks examined claimant.  Therefore, it is determined 
 
            that claimant is not entitled to any of the other medication 
 
            expenses shown for Dr. Brooks or any other doctors in 
 
            claimant's exhibit D, pages 1 through 12.  Claimant is not 
 
            entitled to recover the cost of the EMG.
 
            
 
                                taxation of costs
 
            
 
                 Claimant submitted an itemized list of costs with the 
 
            prehearing report.  The parties stipulated that these costs 
 
            had been paid by claimant.  Claimant is entitled to recover 
 
            these costs as follows:
 
            
 
                 Medical report of Dr. John S. Koch-$30, medical report 
 
            of Dr. John R. Walker-$85 and deposition transcript of Dr. 
 
            Koch-$48.49.  These items total $163.49 and claimant is 
 
            entitled to recover these costs.  Division of Industrial 
 
            Services Rule 343-4.33(2) and 343-4.33(6).
 
            
 
                                 conclusions of law
 
            
 
                 The following conclusions of law are made:
 
            
 
                 That claimant sustained a cumulative injury of 
 
            bilateral carpal tunnel syndrome which occurred 
 
            simultaneously in both the right and left hand and wrist on 
 
            November 10, 1986, which arose out of and in the course of 
 
            employment with employer.  Iowa Code section 85.3; Iowa Code 
 
            section 85.34(2)(s); McDowell v. Town of Clarksville, 241 
 
            N.W.2d 904 (Iowa 1976); Musselman v. Central Telephone Co., 
 
            261 Iowa 352, 154 N.W.2d 128 (1967).  Furthermore, the cites 
 
            in the findings of fact to McKeever, Simbro, Himschoot, 
 
            McMurrin, and Lawyer and Higgs, also apply to this 
 
            conclusion of law.
 
            
 
                 It is determined that the injury is the cause of 
 
            permanent disability.  Bodish v. Fischer, Inc., 257 Iowa 
 
            516, 133 N.W.2d 867 (1965); Lindahl v. L.O. Boggs Co., 236 
 
            Iowa 296 18 N.W.2d 607 (1945).  Furthermore, citations to 
 
            Giere and Anderson in the findings of fact also apply to 
 

 
            
 
            Page  15
 
            
 
            
 
            
 
            
 
            this conclusion of law.
 
            
 
                 That claimant is entitled to 45 weeks of permanent 
 
            partial disability benefits.  Iowa Code section 85.34(2)(s).
 
            
 
                 That claimant is entitled to recover $389.59 in medical 
 
            expenses for prescription drugs.  Iowa Code section 85.27.
 
            
 
                 That claimant did not sustain the burden of proof by a 
 
            preponderance of the evidence that she sustained separate 
 
            injuries to the body members specified in Iowa Code section 
 
            85.64 and; therefore, claimant is not entitled to any 
 
            benefits from the Second Injury Fund of Iowa.
 
            
 
                 That claimant did not sustain the burden of proof by a 
 
            preponderance of the evidence that the other prescription 
 
            drugs or the EMG expense was caused by this injury and 
 
            therefore, claimant is not entitled to recover these medical 
 
            expenses.  Iowa Code section 85.27.
 
            
 
                 That claimant is entitled to recover costs as 
 
            designated above in the total amount of $163.49 from 
 
            defendant employer and insurance carrier.
 
            
 
                                       order
 

 
            
 
            Page  16
 
            
 
            
 
            
 
            
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 That defendant employer and insurance carrier pay to 
 
            claimant forty-five (45) weeks of permanent partial 
 
            disability benefits at the rate of two hundred twenty-six 
 
            and 03/100 dollars ($226.03) per week in the total amount of 
 
            ten thousand one hundred seventy-one and 35/100 dollars 
 
            ($10,171.35) commencing on January 6, 1987.
 
            
 
                 That these benefits are to be paid in a lump sum.
 
            
 
                 That interest will accrue pursuant to Iowa Code section 
 
            85.30. 
 
            
 
                 That defendant employer and insurance carrier pay to 
 
            claimant or the provider of services three hundred 
 
            eighty-nine and 59/100 dollars ($389.59) for prescription 
 
            drug expense ordered by Dr. Koch.
 
            
 
                 That the costs of this action, including the cost of 
 
            the transcript of the hearing and the one hundred 
 
            sixty-three and 49/100 dollars ($163.49) defined above, are 
 
            charged to defendants pursuant to Division of Industrial 
 
            Services Rule 343-4.33.
 
            
 
                 That all defendants file any claim activity reports 
 
            which might be requested by this agency pursuant to Division 
 
            of Industrial Services Rule 343-3.1.
 
            
 
                 Signed and filed this ____ day of June, 1990.
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          WALTER R. McMANUS, JR.
 
                                          DEPUTY INDUSTRIAL COMMISSIONER    
 
            
 
            Copies to:
 
            
 
            Mr. Thomas J. Currie
 
            Attorney at Law
 
            3401 Williams Blvd. S.W. 
 
            PO Box 998
 
            Cedar Rapids, Iowa  52406-0998
 
            
 
            Mr. Ralph W. Gearhart
 
            Attorney at Law
 
            PO Box 2107
 
            Cedar Rapids, Iowa  52406-2107
 
            
 
            Mr. Craig Kelinson
 
            Assistant Attorney General
 
            Hoover State Office Bldg
 
            Des Moines, Iowa  50319
 
            
 
            
 
                 
 
            
 
 
         
 
         Page   1
 
         
 
         
 
         
 
         
 
                                       51401; 51402.40; 51402360; 52206; 
 
                                       52209; 3201, 53202; 53203; 51803; 
 
                                       52501; 2700; 52907
 
                                       Filed June 20, 1990
 
                                       Walter R. McManus, Jr.
 
         
 
                           before the iowa industrial 
 
                                   commissioner
 
         ____________________________________________________________
 
                                       :
 
         CAROL FRY,                    :
 
                                       :
 
              Claimant,                :
 
                                       :
 
         vs.                           :
 
                                       : File Nos.  837829 and 846901
 
         AMANA REFRIGERATION, INC.,    :
 
                                       :  A R B I T R A T I O N
 
              Employer,                :
 
                                       :      D E C I S I O N
 
         and                           :
 
                                       :
 
         LIBERTY MUTUAL INSURANCE CO., :
 
                                       :
 
              Insurance Carrier,       :
 
                                       :
 
         and                           :
 
                                       :
 
         SECOND INJURY FUND OF IOWA,   :
 
         
 
              Defendants.              :
 
         ___________________________________________________________
 
         
 
         51401; 51402.40; 51402.60; 52206; 52209; 3201; 53202; 53203
 
         
 
              Claimant did not prove separate injuries.  All of the lay 
 
         evidence and medical evidence demonstrated bilateral carpal 
 
         tunnel syndrome that occurred simultaneously, even though the 
 
         right hand was worse at first and the left hand was worse later.  
 
         It was determined that this was an 85.34(2)(s) injury and 
 
         claimant was not entitled to second injury fund benefits.
 
         
 
         51803
 
         
 
              Treating physicians opinion was rejected.  His diagnosis of 
 
         rheumatoid arthritis was not supported by the other four doctors 
 
         in the case, two of whom were in his own office.  His imposition 
 
         of restrictions was irreconcilable with his opinion that there 
 
         was no impairment.  He admitted he took no measurements and made 
 
         no evaluation; therefore, he did not have any basis for even a 
 
         rating based on professional judgment.  Claimant's evaluator gave 
 
         ratings of 20 percent and 8 percent, but those were determined to 
 
         be higher than similar cases and were cut back to 10 percent and 
 
         5 percent, all of which converted and combined to 9 percent of 
 
         500 weeks or 45 weeks of permanent partial disability benefits.
 

 
         
 
         Page   2
 
         
 
         
 
         
 
         
 
         
 
         5201, 2700
 
         
 
              Claimant allowed the prescription drugs she proved.  The 
 
         others and an EMG she did not prove were disallowed.
 
         
 
         52907
 
         
 
              All costs and certain requested costs were allowed to 
 
         claimant.