Page   1
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            CINDEE ROSSMANN,              :
 
                                          :
 
                 Claimant,                :
 
                                          :         File No. 847945
 
            vs.                           :
 
                                          :           A P P E A L
 
            LOUIS RICH COMPANY,           :
 
                                          :         D E C I S I O N
 
                 Employer,                :
 
                                          :
 
            and                           :
 
                                          :
 
            LIBERTY MUTUAL INSURANCE      :
 
            COMPANY,                      :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 Defendants appeal from an arbitration decision awarding 
 
            claimant a running award of temporary total disability 
 
            benefits and ordering defendants to provide medical care for 
 
            claimant.
 
            
 
                 The record on appeal consists of the transcript of the 
 
            arbitration hearing and of joint exhibits 1 through 20.  
 
            Both parties filed briefs on appeal.
 
            
 
                                      issues
 
            
 
                 Issues on appeal are:
 
            
 
                 1.  Whether claimant received an injury which arose out 
 
            of and in the course of her employment;
 
            
 
                 2.  Whether there is a causal relationship between the 
 
            alleged injury and the claimed disability;
 
            
 
                 3.  The extent of claimant's entitlement to weekly 
 
            benefits for disability, if any; and,
 
            
 
                 4.  The extent of claimant's entitlement to medical 
 
            benefits, if any.
 
            
 
                              review of the evidence
 
            
 
                 The arbitration decision filed January 23, 1990 
 
            adequately and accurately reflects pertinent evidence and it 
 
            will not be totally reiterated in this appeal decision.  
 
            These additional facts are presented, however.
 
            
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
                 Claimant was off work on maternity leave from October 
 
            12, 1986 through November 24, 1986.  Claimant gave notice of 
 
            resigning her position with Louis Rich on November 26, 1986, 
 
            stating that she was doing so in order to move to Illinois.  
 
            Prior to claimant's November 26, 1986 job resignation, 
 
            claimant last visited the Louis Rich nurse's station with 
 
            right shoulder complaints on July 3, 1986.  The record does 
 
            not reflect any visits between July 3, 1986 and November 26, 
 
            1986 regarding right wrist or neck pain.  Claimant visited 
 
            the nursing station twice on December 2, 1986 with 
 
            complaints of right wrist pain and once on December 12, 
 
            1986, her final work day, with complaints of tendonitis in 
 
            the right wrist and thumb.  Claimant had visited the nurse's 
 
            station with complaints of right shoulder or right upper arm 
 
            pain or both on June 18, 1984, January 22, 1985, March 22, 
 
            1985 (two times), March 25, 1985, and October 3, 1985, 
 
            respectively.  From April through August 1982, claimant had 
 
            visited the nurse's station for right wrist pain on a number 
 
            of occasions.  Claimant was also pregnant at that time with 
 
            a September 1982 delivery date.
 
            
 
                 Steve Palmer, M.D., treated claimant for right wrist 
 
            pain on December 13, 1986.
 
            
 
                 Walter J. Hales, M.D., on February 22, 1987, stated 
 
            that claimant related that her condition began at work in 
 
            late fall (1986) when she began experiencing pain in the 
 
            hand and shoulder, especially shoulder pain.  Dr. Hales 
 
            reported that claimant continued to have ongoing difficulty 
 
            despite her work stoppage.  Dr. Hales later characterized 
 
            claimant's pain as having "worked into her neck."
 
            
 
                 On June 23, 1985, Dr. Hales reported a working 
 
            diagnosis of C7 radiculopathy.  He stated:
 
            
 
                 . . . Whether this was caused in the work place or 
 
                 whether it would have happened in spite of work, I 
 
                 am not able to state.
 
            
 
                 Certainly, there are many people that develop 
 
                 cervical discs whether they are working in a place 
 
                 like Louis Rich or whether they are an executive 
 
                 behind a desk or a housewife, etc., although we 
 
                 know there are certain medical conditions we see 
 
                 that are definitely work-related and have a high 
 
                 incidence in the work place.  I am not aware of 
 
                 the particular work that she was doing being 
 
                 particularly associated with her present problem.
 
            
 
            (Exhibit 11, page 1)
 
            
 
                 William A. Roberts, M.D., on February 23, 1987, 
 
            reported that claimant developed right hand and forearm pain 
 
            "last October while at work."  Dr. Roberts re-evaluated 
 
            claimant on November 16, 1987.  His medical notes of that 
 
            date reflect an impression of persistent neck, shoulder and 
 
            upper extremity pain of unclear etiology.  He stated:
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
                 The presence of chronic neck, shoulder and upper 
 
                 extremity pain for greater than 1 year is quite an 
 
                 unusual presentation and it is difficult for me to 
 
                 ascertain the exact cause of her symptoms.  Since 
 
                 I have evaluated the patient only 1 time since her 
 
                 injury over a year ago, I do not believe that I 
 
                 could render an accurate opinion as to whether her 
 
                 present condition may have been caused by her work 
 
                 at Lewis [sic] Rich, although I think the 
 
                 probability, judging by the exact description of 
 
                 her type of work, would be that it was extremely 
 
                 unlikely.
 
            
 
                 James B. Worrell, M.D., on May 23, 1989, reported that 
 
            claimant's problems began while she was working at Louis 
 
            Rich in 1986.  He was unable to establish a clear-cut 
 
            diagnosis regarding claimant's condition, but stated:  
 
            ". . . I clearly think, however, it was related in one way 
 
            or another to the type of work she did. . . ."  In a 
 
            consultation report of April 4, 1989, Dr. Worrell reported:  
 
            "Her trouble started back when she was working at Louis Rich 
 
            in 1985 and 1986.  She eventually quit her job there because 
 
            of this. . . ."
 
            
 
                                  applicable law
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the alleged injury 
 
            actually occurred and that it arose out of and in the course 
 
            of employment.  The words "arising out of" refer to the 
 
            cause or source of the injury.  The words "in the course of" 
 
            refer to the time, place and circumstances of the injury.  
 
            Sheerin v. Holin Co., 380 N.W.2d 415, 417 (Iowa 1986); 
 
            McClure v. Union, et al., Counties, 188 N.W.2d 283, 287 
 
            (Iowa 1971).
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury is a proximate 
 
            cause of the disability on which the claim is based.  A 
 
            cause is proximate if it is a substantial factor in bringing 
 
            about the result; it need not be the only cause.  A 
 
            preponderance of the evidence exists when the causal 
 
            connection is probable rather than merely possible.  
 
            Blacksmith v. All-American, Inc., 290 N.W.2d 348, 354 (Iowa 
 
            1980); Holmes v. Bruce Motor Freight, Inc., 215 N.W.2d 296, 
 
            297 (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 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            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).
 
            
 
                 An expert's opinion based on an incomplete history is 
 
            not necessarily binding on the commissioner, but must be 
 
            weighed with other facts and circumstances.  Musselman v. 
 
            Central Telephone Co., 261 Iowa 352, 360, 154 N.W.2d 128, 
 
            133 (1967).
 
            
 
                                     analysis
 
            
 
                 Our first concern is whether claimant received an 
 
            injury which arose out of and in the course of her 
 
            employment.  Given the nature of claimant's alleged injury, 
 
            that question is intertwined with the question of medical 
 
            causation.
 
            
 
                 Initially, we note that claimant had only 13 recorded 
 
            visits to the Louis Rich nurse's station regarding right 
 
            upper extremity or shoulder pain from beginning work on 
 
            November 2, 1981 to her end of work with Louis Rich on 
 
            December 12, 1986.  While claimant testified that not all 
 
            visits to the nurse's station were recorded, that does not 
 
            appear to accord with sound business practice.  Likewise, 
 
            claimant's supervisor did not recollect claimant routinely 
 
            seeking permission to visit the nurse's station or 
 
            presenting pass slips from the nurse's station.  Such leads 
 
            one to suspect that the 13 recorded visits were claimant's 
 
            visits to the nurse's station regarding upper extremity or 
 
            shoulder pain from beginning work in 1981 to ending work in 
 
            1986.  Thirteen visits for a variety of complaints related 
 
            to the right shoulder, the right upper arm, and the right 
 
            wrist and right thumb do not appear extremely unusual in 
 
            over a five-year period.  Likewise, the medical reports and 
 
            notes of all physicians appear to accept the history given 
 
            by claimant, that is, that claimant developed her complaints 
 
            in late fall 1986 while working at Louis Rich.  It is 
 
            established that claimant did not work at Louis Rich for the 
 
            greater part of fall 1986.  She was off on pregnancy leave 
 
            from October 12, 1986 through November 24, 1986.  She 
 
            resigned her position at Louis Rich on November 26, 1986.  
 
            Her written notice of resignation did not in any way allude 
 
            to resignation on account of pain related to work.  
 
            Likewise, it appears highly unlikely that claimant would 
 
            have developed pain so severe that it compelled her 
 
            resignation from Louis Rich between November 25, 1986 and 
 
            November 26, 1986, especially in light of the fact that 
 
            claimant had apparently recorded no complaints with the 
 
            nurse's station while actually working at Louis Rich from 
 
            July 3, 1986 through October 11, 1986.  The record likewise 
 
            is devoid of any suggestion that claimant sought treatment 
 
            from an outside source during that time.  Hence, claimant's 
 
            statement that she resigned her position on account of her 
 
            pain on November 26, 1986 does not appear to comport with 
 
            the facts presented when reviewed overall.
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
                 Likewise, the only doctor to expressly link claimant's 
 
            condition to her work is Dr. Worrell, who states that he 
 
            clearly thinks her condition is related in one way or 
 
            another to the type of work she did.  The doctor does not 
 
            elaborate on what he means by one way or another, or how he 
 
            arrives at this opinion.  The only basis found for the 
 
            opinion are the histories which Dr. Worrell gives, first on 
 
            April 4, 1989 where he states claimant's trouble started 
 
            when working at Louis Rich in 1985 and 1986 and eventually 
 
            led to her quitting work, and his history of May 23, 1989 
 
            where he states her problems began when working at Louis 
 
            Rich in 1986.  As noted, claimant was off work for six weeks 
 
            and two days in fall 1986 and resigned her position only one 
 
            day after returning to work.  Those facts clearly do not 
 
            support claimant's described history of problems beginning 
 
            at work at Louis Rich.  Hence, Dr. Worrell's causation 
 
            testimony is highly suspect.  Dr. Hales has reported that he 
 
            is unable to state whether claimant's injury was caused by 
 
            her work place, but does state he is not aware of the 
 
            particular work she was doing being particularly associated 
 
            with claimant's condition.  Dr. Roberts reports that, while 
 
            he does not believe he could render an accurate opinion as 
 
            to whether claimant's condition was caused by her work, he 
 
            does believe it extremely unlikely that such was so judging 
 
            by the exact description of her type of work.
 
            
 
                 Dr. Hales' and Dr. Roberts' opinions are given the 
 
            greater weight.  Those physicians appear to have had a 
 
            greater understanding of the mechanisms of claimant's work.  
 
            Furthermore, their opinions that causation is not likely are 
 
            more consistent with the actual facts presented in that 
 
            claimant was not working for an extended period during that 
 
            time in which she alleges her condition required that she 
 
            cease working.  For the above reasons, claimant has failed 
 
            to establish an injury which arose out of and in the course 
 
            of her employment.
 
            
 
                 As claimant has not prevailed on the threshold 
 
            liability question, she is not entitled to either weekly or 
 
            medical benefits.
 
            
 
                                 findings of fact
 
            
 
                 WHEREFORE, IT IS FOUND:
 
            
 
                 Claimant began work for the employer, Louis Rich, on 
 
            November 2, 1981 and ended work with the employer on 
 
            December 12, 1986.
 
            
 
                 From November 1981 through her last work day, claimant 
 
            had 13 recorded visits to the Louis Rich nurse's station 
 
            with complaints related to right shoulder, right upper arm 
 
            or right wrist pain.
 
            
 
                 Accepted and appropriate business practice is that an 
 
            employee's nursing station visits be recorded at the nursing 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            station.
 
            
 
                 Claimant did not excessively request visits to the 
 
            nursing station from her supervisor and did not excessively 
 
            present her supervisor with passes on return from the 
 
            nursing station.
 
            
 
                 Claimant's recorded visits to the nursing station 
 
            regarding right shoulder upper extremity pain were 
 
            claimant's visits to the nursing station regarding right 
 
            shoulder and right upper extremity pain.
 
            
 
                 Thirteen visits to a nursing station for a variety of 
 
            complaints relating to the right shoulder, the right upper 
 
            arm and the right wrist and right thumb are not an unusual 
 
            or excessive number in a five-year period.
 
            
 
                 Claimant last visited the nursing station with right 
 
            shoulder pain complaint on July 3, 1986.
 
            
 
                 Claimant was off work at Louis Rich on maternity leave 
 
            from October 12, 1986 through November 24, 1986.
 
            
 
                 Claimant resigned her Louis Rich position on November 
 
            26, 1986 in order to care for her children and move to 
 
            Illinois to live with her grandparents during the course of 
 
            a marital dissolution.
 
            
 
                 Claimant visited the Louis Rich nursing station two 
 
            times on December 2, 1986 for right wrist pain and one time 
 
            on December 12, 1986 for right wrist tendonitis and a right 
 
            thumb complaint.
 
            
 
                 The December 1986 visits were subsequent to claimant's 
 
            Louis Rich resignation and were not related to the 
 
            resignation.
 
            
 
                 Claimant was not actually at work at Louis Rich for six 
 
            weeks and two days in the fall of 1986.
 
            
 
                 Medical histories stating that claimant's symptoms 
 
            developed in late fall 1986 while working at Louis Rich are 
 
            inaccurate.
 
            
 
                 The type of work claimant did do at Louis Rich while 
 
            actually working at Louis Rich is not particularly 
 
            associated with claimant's medical condition.
 
            
 
                 It is extremely unlikely that claimant's medical 
 
            condition resulted from her work at Louis Rich, given the 
 
            exact description of her work.
 
            
 
                                conclusions of law
 
            
 
                 THEREFORE, IT IS CONCLUDED:
 
            
 
                 Claimant has not established an injury arising out of 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            and in the course of her employment, which injury is 
 
            causally related to her alleged disability.
 
            
 
                 WHEREFORE, the decision of the deputy is reversed.
 
            
 
                                      order
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 Claimant take nothing from this proceeding.
 
            
 
                 Claimant pay the costs of the appeal, including the 
 
            preparation of the hearing transcript.
 
            
 
                 Signed and filed this ______ day of ____________, 1991.
 
            
 
                 
 
            
 
                 
 
                 
 
                                          ______________________________
 
                                                  BYRON K. ORTON
 
                                             INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. James R. Keele
 
            Attorney at Law
 
            104 East Third Street
 
            P.O. Box 156
 
            West Liberty, Iowa  52776
 
            
 
            Mr. Greg A. Egbers
 
            Attorney at Law
 
            600 Union Arcade Building
 
            111 East Third Street
 
            Davenport, Iowa  52801
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                           1100; 1108.5; 2209
 
                           Filed October 16, 1991
 
                           BYRON K. ORTON
 
                           LPW
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            CINDEE ROSSMANN,              :
 
                                          :
 
                 Claimant,                :
 
                                          :         File No. 847945
 
            vs.                           :
 
                                          :           A P P E A L
 
            LOUIS RICH COMPANY,           :
 
                                          :         D E C I S I O N
 
                 Employer,                :
 
                                          :
 
            and                           :
 
                                          :
 
            LIBERTY MUTUAL INSURANCE      :
 
            COMPANY,                      :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
            1100; 1108.5; 2209
 
            Claimant did not establish an injury which arose out of and 
 
            in the course of her employment.  Medical histories 
 
            described claimant as developing problems at work in fall 
 
            1986.  Claimant testified she resigned her employment on 
 
            November 26, 1986 on account of work history.  In fact, 
 
            claimant was off work from October 12, 1986 through November 
 
            24, 1986 on maternity leave.  Two physicians did not relate 
 
            claimant's problems to work; a third felt they were related 
 
            "in one way or another," but did not elaborate.
 
            
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         CINDEE ROSSMANN,
 
         
 
              Claimant,
 
         
 
                                                   File No. 847945
 
         VS.
 
                                               A R B I T R A T I 0 N
 
         LOUIS RICH COMPANY,
 
                                                  D E C I S I 0 N
 
              Employer,
 
         
 
         and
 
         
 
         LIBERTY MUTUAL INSURANCE
 
         COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              This is a proceeding in arbitration brought by Cindee 
 
         Rossmann, claimant, against Louis Rich Company, employer 
 
         (hereinafter referred to as Louis Rich), and Liberty Mutual 
 
         Insurance Company, insurance carrier, defendants, for workers' 
 
         compensation benefits as a result of an alleged injury on 
 
         November 25, 1986.  On June 15, 1989, a hearing was held on 
 
         claimant's petition and the matter was considered fully submitted 
 
         at the close of this hearing.
 
         
 
              The parties have submitted a prehearing report of contested 
 
         issues and stipulations which was approved and accepted as a part 
 
         of the record of this case at the time of hearing. oral testimony 
 
         and written exhibits were received during the hearing from the 
 
         parties.  The exhibits offered into the evidence are listed in 
 
         the prehearing report.
 
         
 
              According to the prehearing report, the parties have 
 
         stipulated to the following matters:
 
         
 
              1. On the date of the alleged injury an employer/employee 
 
         relationship existed between claimant and Louis Rich.
 
         
 
              2. Claimant is seeking temporary total disability or 
 
         healing period benefits from December 13, 1986 and defendants 
 
         agree that her last day at work at Louis Rich was December 12, 
 
         1986.
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         ROSSMANN V. LOUIS RICH COMPANY
 
         Page 2
 
         
 
         
 
              3. Claimant's rate of weekly compensation in the event of 
 
         an award of weekly benefits from this proceeding shall be 
 
         $170.75.
 
         
 
              4. The medical bills submitted by claimant at the hearing 
 
         are fair and reasonable and casually connected to the medical 
 
         condition upon which the claim is based but that the issue of 
 
         their casual connection to any work injury remained at issue.
 
         
 
                                      ISSUES
 
         
 
              The parties have submitted the following issues for 
 
         determination in this proceeding:
 
         
 
              I. Whether claimant received an injury arising out of and 
 
         in the course of employment;
 
         
 
              II. Whether there is a casual relationship between the work 
 
         injury and the claimed disability;
 
         
 
              III. The extent of claimant's entitlement to weekly 
 
         benefits for disability; and,
 
         
 
              IV. The extent of claimant's entitlement to medical 
 
         benefits.
 
         
 
                              STATEMENT OF THE FACTS
 
         
 
              The following is a brief statement highlighting some of the 
 
         more pertinent evidence presented.  Whether or not specifically 
 
         referred to in this statement, all of the evidence received at 
 
         the hearing was independently reviewed and considered in arriving 
 
         at this decision.  Any conclusions about the evidence received 
 
         contained in the following statement shall be viewed as 
 
         preliminary findings of fact.
 
         
 
              Claimant testified that she worked for Louis Rich from 
 
         November 2, 1981 until her resignation on December 12, 1986.  
 
         Claimant's duties consisted of manual labor on the assembly line 
 
         in the slicing and packaging of turkey lunch meat.  Claimant 
 
         testified that the work was repetitive and very fast.  The work 
 
         primarily involved constant use of her hands and arms.  As a 
 
         palletizer, claimant's primary duty assignment, she was required 
 
         to rapidly take packages of sliced meat from a conveyor belt; 
 
         place them into a box; and, load the boxes onto a pallet.  
 
         Claimant testified that one of the reasons she quit was due to 
 
         chronic pain in her neck, right arm and wrist from the repetitive 
 
         work at Louis Rich.  She also admitted that she was at the time 
 
         undergoing a breakup of her marriage and she quit to care for her 
 
         children at home.  Her resignation slip gave "moving to Illinois" 
 
         as the only reason for the resignation.  Claimant stated that she
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         ROSSMANN,V. LOUIS RICH COMPANY
 
         Page 3
 
         
 
         
 
         did, in fact, move to Illinois for a time after her resignation.
 
         
 
              Claimant testified that she began having wrist and neck 
 
         problems in January 1982, while working at Louis Rich.  Nurses' 
 
         records indicate that claimant had her first wrist problem only 
 
         12 days after starting her employment.  Between November. 1981 
 
         and the day of her resignation, nurses' records indicate that 
 
         claimant reported to the nurse for treatment of right shoulder, 
 
         wrist, and arm pain approximately 13 times.  Claimant received 
 
         non-prescription medication, wrist wraps and analgesic ointment 
 
         during these visits.  Claimant testified that she went many other 
 
         times which is not recorded on the company records.  The plant 
 
         nurse testified that each visit was to be recorded but admitted 
 
         that visits to a nurse may not be recorded if the nurse did not 
 
         believe that the problems were work related.  Claimant's 
 
         supervisor testified that he could not recall claimant 
 
         complaining of any neck, shoulder, arm or wrist problems during 
 
         his supervision of the claimant and he could not recall anytime 
 
         that claimant had requested a visit to the nurse's office.  
 
         Claimant denied any injury or accident causing symptoms outside 
 
         of her employment at Louis Rich.
 
         
 
              What, if anything, happened on the day of the alleged 
 
         injury was not discussed by claimant in her testimony.  She 
 
         testified that her right sided problems gradually grew  worse 
 
         over time.  She said that it felt like a needle point in her neck 
 
         and her arm and wrist would go numb then.  Claimant did not seek 
 
         treatment until after her resignation on December 13, 1986.  This 
 
         treatment was sought from Steve Palmer, M.D.  Dr. Palmer 
 
         diagnosed carpal tunnel syndrome of the right wrist and 
 
         prescribed anti-inflammatory medication, a wrist splint and a 
 
         prohibition against right handed work.  Claimant said that she 
 
         was on light duty at the time of her resignation.  Dr. Palmer 
 
         felt that the condition was caused by claimant's work.  Dr. 
 
         Palmer referred claimant for neurologic evaluation to Richard 
 
         Neiman, M.D., a neurosurgeon.  From an EMG testing at that time, 
 
         Dr. Neiman concluded that claimant had an injury to the C6-7 
 
         cervical disc and a C7 radiculopathy or nerve injury at the C7 
 
         spinal level.  Dr. Neiman prescribed use of a cervical traction 
 
         device and that claimant should be clinically followed by Dr. 
 
         Palmer.           In February 1987, claimant was referred to 
 
         Walter J. Hales, M.D., an orthopedic surgeon.  Dr. Hales was 
 
         confused by the symptoms presented by claimant and could not 
 
         arrive at a diagnosis.  He referred claimant to his associate, 
 
         William Roberts, M. D.  Dr. Roberts was likewise puzzled and 
 
         suggested additional EMG studies.  These additional studies were 
 
         not apparently conducted.  Both Roberts and Hales appeared 
 
         unconvinced that claimant had a C7 radiculopathy as diagnosed by 
 
         Dr. Neiman.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         ROSSMANN V. LOUIS RICH COMPANY
 
         Page 4
 
         
 
         
 
              In November 1987, Dr. Hales was asked by defendants to 
 
         clarify his views but he said that he had nothing to add.  He 
 
         stated that his diagnosis was persistent neck and shoulder pain 
 
         due to mild cervical radiculitis.          He also appears to 
 
         stand by his earlier report that the condition was work related.  
 
         However, Dr. Hales suggested that such questions would be best 
 
         answered by his associate, Dr. Roberts.
 
         
 
              In December 1987, Dr. Roberts felt that claimant's 
 
         condition was permanent but the extent was unknown depending upon 
 
         the results that are obtained for physical therapy.  With 
 
         reference to casual connection, Dr. Roberts states as follows:   
 
         "I do not believe that I could render an accurate opinion as to 
 
         whether her present condition may have been caused by her work at 
 
         Lewis [sic] Rich, although I think the probability, judging by 
 
         the exact description of her type of work, would be that it was 
 
         extremely unlikely."
 
         
 
              Finally, in May 1989, James Worrell, M.D., an associate of 
 
         Dr. Neiman, evaluated claimant.  Worrell likewise had difficulty 
 
         arriving at a diagnosis.  He thought it could be chronic 
 
         myofascial pain disorder or possibly the C7 radiculopathy 
 
         diagnosed by Dr. Neiman.  Dr. Worrell, however, stated that it 
 
         was clearly work related in any event.  He gave claimant a six 
 
         percent impairment rating to the body as a whole stating it would 
 
         be higher if she had a disc problem.  Dr. Worrell recommended 
 
         medication and a physical therapy program with additional testing 
 
         to diagnosis the exact problem.
 
         
 
              To date, claimant has not received any treatment since 
 
         February 1987.      She, did not receive any of the additional 
 
         testing recommended by Drs. Hales or Roberts.  She stated that 
 
         treatment ended when defendants quit paying the bills.  She 
 
         admitted that she has not returned to any of the doctors but felt 
 
         that such was not offered to her by the defendants.  She has no 
 
         medical insurance on her own and only takes aspirin for her 
 
         headaches.
 
         
 
              Claimant did not return to any sort of work until May 1988, 
 
         when she worked for two months as a gas station cashier.  She 
 
         worked for approximately three months beginning on October 17, 
 
         1988 as a phone salesman.  She testified that she left each of 
 
         these jobs because of physical problems with her shoulders, arms 
 
         and hands while working.  She stated that she returned to Louis 
 
         Rich in January or February of 1987 but was told that they were 
 
         not taking applications.  She said that she returned again 
 
         sometime in 1988 and was told by Louis Rich management that they 
 
         would not hire her because of the alleged work injury in this 
 
         case.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Claimant is not working at the present time.  She states 
 
         that she has flunked dexterity tests while applying
 
         
 
         
 
         
 
         ROSSMANN V. LOUIS RICH COMPANY 
 
         Page 5
 
         
 
         
 
         for at least one job in the Iowa City area.  She testified she 
 
         cannot use her right hand for any length of time without 
 
         experiencing the same pain and numbness symptoms she had at Louis 
 
         Rich.  She feels that she needs additional medical attention.
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              Note:  A credibility finding is necessary to this decision 
 
         as defendants place claimant's credibility at issue during 
 
         cross-examination as to the nature and extent of injury and 
 
         disability.  From her demeanor while testifying, claimant is 
 
         found credible.
 
         
 
              I.  Claimant has the burden of proving by a preponderance 
 
         of the evidence that claimant received an injury which arose out 
 
         of and in the course of employment.  The words "out of" refer to 
 
         the cause or source of the injury.  The words "in the course of" 
 
         refer to the time and place and circumstances of the injury.  
 
         See Cedar Rapids Community Sch. v. Cady, 278 N.W.2d 298 (Iowa 
 
         1979) ; Crowe v. DeSoto Consol. Sch. Dist. , 246 Iowa 402, 68 
 
         N.W.2d 63 (1955).  An employer takes an employee subject to any 
 
         active or dormant health impairments, and a work connected injury 
 
         which more than slightly aggravates the condition is considered 
 
         to be a personal injury.  Ziegler v. United States Gypsum Co., 
 
         252 Iowa 613, 620, 106 N.W.2d 591 (1960) and cases cited 
 
         therein..
 
         
 
              II.  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 casual 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 casual 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
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         ROSSMANN V. LOUIS RICH COMPANY 
 
         Page 6
 
         
 
         
 
         of the premise given the expert and other surrounding 
 
         circumstances.  Bodish v. Fischer, Inc., 257 Iowa 5160, 133 
 
         N.W.2d 867 (1965).
 
         
 
              Furthermore, if the available expert testimony is 
 
         insufficient along to support a finding of casual 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 1066, 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, although they differ as to the 
 
         precise diagnosis, the views of Drs. Palmer, Neiman and Worrell 
 
         casually connecting claimant's difficulties to the work at Louis 
 
         Rich appear to be the most convincing.  The views of Drs. Hales 
 
         and Roberts are quite conflicting          and equivocal at best.  
 
         Dr. Roberts, in November 1987, states first that he cannot give 
 
         an accurate opinion but in the same breath goes on to give an 
 
         opinion against the claimant.
 
         
 
              With reference to the injury date, nothing in particular 
 
         happened on November 25, 1986, the time alleged in the petition.  
 
         If you consider the injury process as continual and gradual with 
 
         the last injurious work activity occurring on the last day of 
 
         work, December 12, 1986, it would appear that December 12, 1986 
 
         would be the more appropriate injury date for claimant's neck, 
 
         right shoulder, right arm, and right wrist injuries than the date 
 
         alleged in the petition.  It was then that claimant was compelled 
 
         by her pain to leave work.
 
         
 
              The physicians, however, are very  unclear as to the exact 
 
         diagnosis or extent of injury.  Dr. Worrell's views are the most 
 
         convincing in that additional treatment and further testing is 
 
         probably necessary to determine not only the nature of the injury 
 
         but its prognosis.  It is clear that claimant is still in her 
 
         healing period as  she is still awaiting treatment and it is 
 
         anticipated by her physicians that such treatment could improve 
 
         her condition.  It is premature at this time to decide whether or 
 
         not claimant has permanency until the recommended treatment 
 
         program is completed.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         ROSSMANN V. LOUIS RICH COMPANY
 
         Page 7
 
         
 
         
 
              Pursuant to Iowa Code section 85.33 and 85.34, claimant is 
 
         entitled to either temporary total disability or healing period 
 
         benefits from the date of injury until she returns to work; until 
 
         she is medically capable of returning to substantially similar 
 
         work to the work she was performing at the time of injury; or, 
 
         until it is indicated that significant improvement from the 
 
         injury is not anticipated, whichever occurs first.  In the case 
 
         at bar, claimant has not reached maximum healing as her 
 
         physicians still anticipate improvement in her condition from 
 
         treatment.  Therefore, claimant is entitled to a running award of 
 
         temporary total disability or healing period benefits until such 
 
         time as the treatment program is completed and improvement in her 
 
         condition is no longer anticipated or until she returns back to 
 
         work.
 
         
 
              Temporary total disability/healing period benefits should 
 
         not begin when claimant resigned at her job at Louis Rich.  This 
 
         resignation was, in the opinion of the undersigned, clearly for 
 
         personal reasons to move to Illinois as a result of the divorce.  
 
         She, however, made herself available for reemployment in January 
 
         or February 1987.  Apparently, this refusal to reemploy the 
 
         claimant has been confirmed in a return to Louis Rich in 1988.  
 
         Therefore, healing period should begin on March 1, 1987.  
 
         Claimant worked for  two months from April 1, 1988 and for three 
 
         months beginning on October 17, 1988.  Temporary total disability 
 
         or healing period benefits will be suspended during these periods 
 
         of attempted light duty employment.
 
         
 
              Claimant is entitled to the requested medical benefits.  
 
         Defendants have no right to control the medical as they have 
 
         consistently denied liability for the injury.  Kindhart v. Fort 
 
         Des Moines Hotel, I Iowa Industrial Commissioner Decisions 3, 611 
 
         (Appeal Decision 1985); Barnhart v. MAQ, Inc., I Iowa Industrial 
 
         Commissioner Reports 16 (Appeal Decision 1981).  Finally, 
 
         defendants will be directed to provide the care and treatment 
 
         recommended by Dr. Worrell in his last evaluation.  Dr. Worrell 
 
         appears to be the most appropriate physician to provide future 
 
         care of claimant.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              1. Claimant was a credible witness.  Claimant's appearance 
 
         and demeanor while testifying indicated she was testifying 
 
         truthfully at the time of hearing.
 
         
 
              2. On December 12, 1986, claimant suffered an injury to the 
 
         neck, right shoulder, right arm and right wrist which arose out 
 
         of and in the course of her employment with Louis Rich.  The 
 
         injury was the result of accumulative trauma from repetitive 
 
         movements of her neck and arms and repetitive bending and lifting 
 
         while working as a palletizer at Louis Rich between 1981 and 
 
         December of 1986.  The exact nature of
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         ROSSMANN V. LOUIS RICH COMPANY 
 
         Page 8
 
         
 
         
 
         the injury is unknown at the present time but it is likely that 
 
         the condition is either a thoracic outlet syndrome, chronic pain 
 
         syndrome or a radiculitis of the cervical spine.
 
         
 
              3. The work injury of December 12, 1986, was and remains at 
 
         the present time to be a cause of a period of total disability 
 
         from work beginning on March 1, 1987.  Claimant attempted to 
 
         return to work in a light duty job for a total of five-months 
 
         between March 1, 1987 and the present time.  Claimant's 
 
         physicians currently anticipate that further treatment will 
 
         improve her condition.  It is premature at this time to determine 
 
         whether or not claimant has permanency from the injury.
 
         
 
              4. The medical expenses listed in the prehearing report are 
 
         fair and reasonable and were incurred by claimant for reasonable 
 
         and necessary treatment of her work injury of December 12, 1986.
 
         
 
              5. James Worrell, M.D., was the most recent physician to 
 
         evaluate claimant's problems and given his views and his 
 
         consistency with claimant's complaints, he appears to be the best 
 
         physician to provide claimant with the care that he recommends.  
 
         Such care is in the best interest of claimant and the defendants 
 
         to enable claimant to return to the work force.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              Claimant has established under law entitlement to a running 
 
         award of temporary total/healing period benefits and to medical 
 
         benefits totaling  $550.50 at the present time.  Claimant also 
 
         has shown under law  entitlement  to future medical care from Dr. 
 
         Worrell.
 
         
 
                                      ORDER
 
         
 
              1. Defendants shall pay to claimant temporary total/healing 
 
         period benefits at the rate of one hundred seventy and 75/100 
 
         dollars ($170.75) beginning on March 1, 1986 and continuing for 
 
         an indefinite period of time in the future, except for a five 
 
         month period when claimant was working in 1988 and 1989.  These 
 
         benefits shall continue until such time as claimant returns to 
 
         work or until improvement in her condition is no longer 
 
         anticipated by her physicians, whichever occurs first.
 
         
 
              2. Defendants shall pay the medical expenses listed in the 
 
         prehearing report.  Claimant shall be reimbursed for any of these 
 
         expenses paid by him. Otherwise, defendants shall
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         ROSSMANN V. LOUIS RICH COMPANY
 
         Page 9
 
         
 
         pay the provider directly along with any lawful late payment 
 
         penalties imposed on the account by the provider.
 
         
 
              3. Defendants shall provide to claimant all treatment 
 
         modalities, medication and consultations and referrals 
 
         recommended and prescribed by Dr. Worrell, M.D., of Iowa City, 
 
         Iowa for treatment of claimant's work related injury herein.
 
         
 
              4. Defendants shall pay accrued weekly benefits in a lump 
 
         sum.
 
         
 
              5. Defendants shall pay interest on weekly benefits awarded 
 
         herein as set forth in Iowa Code section 85.30.
 
          
 
              6. Defendants shall pay the cost of this action pursuant to 
 
         Division of Industrial Services Rule 343-4.33.
 
         
 
              7. 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.
 
         
 
              8. When the parties so indicate, this matter shall be set 
 
         back into assignment for prehearing and hearing on the extent of 
 
         permanent disability benefits, if any, to which claimant may be 
 
         entitled.
 
         
 
         
 
              Signed and filed this 23rd day of January, 1990.
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
                                               LARRY P. WALSHIRE
 
                                               DEPUTY INDUSTRIAL 
 
         COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. James R. Keele
 
         Attorney at Law
 
         104 East Third St
 
         P 0 Box 156
 
         West Liberty  IA  52776
 
         
 
         Mr. Greg A. Egbers
 
         Attorney at Law
 
         600 Union Arcade Bldg
 
         111 East Third St
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         Davenport IA 52801-1596
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                                               F1801
 
                                               Filed January 23, 1990
 
                                               LARRY P. WALSHIRE
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         CINDEE ROSSMANN,
 
         
 
              Claimant,
 
         
 
                                                  File No. 847945
 
         VS.
 
         
 
                                               A R B I T R A T I 0 N
 
         LOUIS RICH COMPANYI
 
         
 
                                                  D E C I S I 0 N
 
              Employer,
 
         
 
         and
 
         
 
         LIBERTY MUTUAL INSURANCE 
 
         COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
         1801
 
         
 
              Claimant given a running award of healing period benefits 
 
         as it was demonstrated that claimant had a work injury but it had 
 
         not been treated for the last two years.  It was dirdcted that 
 
         the defendants provide the medical care recommended by the last 
 
         examining physician.
 
         
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         CINDEE ROSSMANN,
 
         
 
              Claimant,                        File No. 847945
 
         
 
          VS.                                     N U N C
 
         
 
          LOUIS RICH COMPANY,                      P R 0
 
         
 
              Employer,                           T U N C
 
         
 
          and                                    0 R D E R
 
         
 
         LIBERTY MUTUAL INSURANCE,
 
         COMAPNY
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
              Due to typographical error, the order portion of the 
 
         Arbitration Decision, filed January 23, 1990, at page 8 is 
 
         amended by striking the year 1986 in the fourth line of paragraph 
 
         one and inserting in lieu thereof the year "1987."
 
         
 
         Signed.and filed this 6th day of February, 1990.
 
         
 
         
 
         
 
                                               LARRY P. WALSHIRE
 
                                               DEPUTY INDUSTRIAL 
 
         COMMISSIONER
 
         
 
         
 
         
 
         
 
         Copies to:
 
         
 
         Mr James R Keele
 
         Attorney at Law
 
         104 East Third St
 
         P 0 Box 156
 
         West Liberty IA 52776
 
         
 
         Mr Greg A Egbers
 
         Attorney at Law
 
         600 Union Arcade Bldg
 
         111 East Third St
 
         Davenport IA 52801-1596
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            LORIN KUETER,  :
 
                      :      File No. 847947
 
                 Claimant, :
 
                      :        A P P E A L
 
            vs.       :
 
                      :      D E C I S I O N
 
            FDL FOODS, INC.,    :
 
                      :
 
                 Employer, :
 
                 Self-Insured,  :
 
                 Defendant.     :
 
            ___________________________________________________________
 
            The record, including the transcript of the hearing before 
 
            the deputy and all exhibits admitted into the record, has 
 
            been reviewed de novo on appeal.  The decision of the deputy 
 
            filed June 21, 1989 is affirmed and is adopted as the final 
 
            agency action in this case.
 
            Defendant shall pay the costs of the appeal, including the 
 
            preparation of the appeal transcript.
 
            Signed and filed this ____ day of December, 1990.
 
            
 
            
 
            
 
            
 
                      ________________________________
 
                               CLAIR R. CRAMER
 
                       ACTING INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Nick J. Avgerinos
 
            Attorney at Law
 
            135 South LaSalle Street
 
            Suite 1527
 
            Chicago, IL 60603
 
            
 
            Mr. Stephen Smalling
 
            Attorney at Law
 
            101 North Wacker Drive
 
            Suite 740
 
            Chicago, IL 60606
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
            Mr. James M. Heckmann
 
            Mr. David C. Bauer
 
            Ms. Joyce L. Klimesh
 
            Attorneys at Law
 
            One CyCare Plaza, Suite 216
 
            Dubuque, Iowa 52001
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
            9998
 
            Filed December 21, 1990
 
            HJW
 
            Clair R. Cramer
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            LORIN KUETER,  :
 
                      :
 
                 Claimant, :      File No. 847947
 
                      :
 
            vs.       :        A P P E A L
 
                      :
 
            FDL FOODS, INC.,    :      D E C I S I O N
 
                      :
 
                 Employer, :
 
                 Self-Insured,  :
 
                 Defendant.     :
 
            ___________________________________________________________
 
            
 
            9998
 
            
 
                 Summary affirmance of deputy's decision filed June 21, 
 
            1989.
 
            
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         LORIN KUETER                                    FILE NO. 847947
 
         
 
              Claimant,                              A R B I T R A T I O N
 
         
 
         vs.                                            D E C I S I O N
 
         
 
         FDL FOODS, INC.,                                  F I L E D
 
         
 
              Employer,                                   JUN 21 1989
 
              Self-Insured,
 
              Defendant.                              INDUSTRIAL SERVICES
 
         
 
         
 
                                INTRODUCTION
 
         
 
              This is a proceeding in arbitration brought by the claimant, 
 
         Loren Joseph Kueter, against his self-insured employer, FDL 
 
         Foods, Inc., to recover benefits under the Iowa Workers' 
 
         Compensation Act as the result of injuries stipulated to have 
 
         been sustained on June 28, 1985.  This matter came on for hearing 
 
         before the undersigned deputy industrial commissioner at Dubuque, 
 
         Iowa, on April 28, 1989.  A first report of injury has been filed 
 
         apparently on July 27, 1987.  The record in this proceeding 
 
         consists of the testimony of claimant and of joint exhibit 1.
 
         
 
                                  ISSUES
 
         
 
              Pursuant to the prehearing report and the oral stipulations 
 
         of the parties at hearing, the parties stipulated:  That claimant 
 
         sustained an injury on June 28, 1985; that claimant has had no 
 
         temporary disability on account of the stipulated injury; and, 
 
         that claimant has lost no time on account of the stipulated 
 
         injury.  They further stipulated that claimant's permanent 
 
         disability (if any) is a scheduled member disability to the right 
 
         hand.  Claimant's rate of weekly compensation, in the event of an 
 
         award, is stipulated to be $167.48.
 
         
 
              Issues remaining to be decided are:  (1) whether the work 
 
         injury is the cause of any permanent disability; and, (2) whether 
 
         claimant is entitled to permanent partial disability benefits and 
 
         the extent of any such permanency entitlement.
 
         
 
                                REVIEW OF THE EVIDENCE
 
         
 
              Claimant began work for FDL Foods, Inc., on July 2, 1984 
 
         initially working in beef kill and beef shackling.  He then 
 
         transferred to hog kill and was performing this job on June 28, 
 
         1985.  Claimant, who is right-hand dominant, gutted hogs using a 
 
         straight-edged knife in his right hand.  Claimant testified that 
 
         he had to grip the knife while turning his wrist approximately 
 
         five or six times per hog.  He estimated that 850 hogs were 
 
                                                
 
                                                         
 
         gutted per hour during each eight-hour work day.  Five hog 
 
         gutters were on the line.
 
         
 
              Claimant testified that, prior to June 28, 1985, he would 
 
         have right hand numbness into the forearm with loss of control of 
 
         the hand of intermittent severity.  Claimant saw the plant nurse 
 
         and Luke C. Faber, M.D.  He treated with medication and a neck 
 
         brace, and continued nurse's station visits through October, 
 
         1985. He testified he continued to have constant "going to sleep" 
 
         in the right hand.  In October, 1985, Dr. Faber restricted 
 
         claimant from a knife job which restriction was lifted on either 
 
         August 21, 1986 or October 26, 1986.  Subsequent to EMG studies, 
 
         Dr. Faber recommended that claimant have carpal tunnel release on 
 
         the right.
 
         
 
              Claimant saw William F. Blair, M.D., at the University of 
 
         Iowa Hospitals and Clinics in August, 1986.  Dr. Blair 
 
         recommended further EMG studies as well as nerve conduction 
 
         studies.  Dr. Blair also recommended carpal tunnel release 
 
         surgery.  Claimant has elected to not have a right carpal tunnel 
 
         release.  Claimant has had a left carpal tunnel release and 
 
         reported he has had no problems on the left since that release.  
 
         Claimant stated that his right hand is not as bad as his left was 
 
         prior to surgery and that he had sleeplessness prior to the 
 
         surgery on the left, but has not had sleeplessness on account of 
 
         his right hand condition.
 
         
 
              Claimant currently has no job restrictions on account of his 
 
         right hand condition and is not under active medical care on 
 
         account of his right hand condition.  Claimant currently works a 
 
         variety of jobs.  He is a lard scraper.  This involves using a 
 
         rounded blade in his right hand.  Approximately six hand 
 
         movements are required with each hog.  Claimant testified that he 
 
         had done that job for approximately two weeks prior to hearing 
 
         and had not yet noticed right hand problems on account of it.  
 
         Claimant has gutted sows.  He did this on the Monday prior to the 
 
         Friday hearing.  He reported some numbness in the hand while 
 
         doing so. Claimant has stunned hogs which requires gripping the 
 
         stunner in the hand.  He reported that when his right hand "falls 
 
         asleep," he uses his left hand until he gets feeling back into 
 
         the right hand. Claimant's current regular job is chitterlings.  
 
         This involves using both hands to break intestines apart.  Two 
 
         intestines are to be broken apart each minute.  Claimant reported 
 
         some numbness when beginning this job in the morning, but 
 
         apparently such resolves over time.  Claimant is not wearing a 
 
         wrist splint or band.
 
         
 
              Nerve conduction studies and electromyographic studies of 
 
         May 14, 1987, September 3, 1986, and May 27, 1986 all noted an 
 
         impression of entrapment of the right median nerve at the wrist.
 
         
 
              Electromyographic and nerve conduction studies of August 22, 
 
         1985 at the University of Iowa Hospitals and Clinics were 
 
         interpreted as suggesting bilateral carpal tunnel syndrome.
 
         
 
                                                
 
                                                         
 
              In a September 5, 1985 report, William F. Blair, M.D., of 
 
         the Division of Hand Surgery, Department of Orthopaedics, 
 
         University of Iowa Hospitals and Clinics, stated the following:
 
         
 
              The prognosis for improvement over his present status, for 
 
              either the mild left cubital tunnel syndrome or the right 
 
              carpal tunnel syndrome, as long as he remains active in 
 
              heavy repetitive work, is guarded.  Modification of his 
 
              current activity level would probably significantly 
 
              contribute to the resolution of some of his symptoms, though 
 
              this would probably not resolve [sic] in complete resolution 
 
              of his right carpal tunnel syndrome.  Special attention to 
 
              the addendum, would indicate that I suggested to this 
 
              patient that he strongly consider right carpal tunnel 
 
              surgery, especially since he is responding so nicely to the 
 
              same surgery on the left hand.
 
         
 
              In an August 11, 1987 note, Dr. Blair stated that after 
 
         reviewing claimant's clinical notes, outside notes and 
 
         electromyographic studies, he believed that claimant primarily 
 
         had an activity-related median neuropathy and secondarily a 
 
         carpal tunnel syndrome.  The doctor stated that those conditions 
 
         were in part work related and both could be expected to improve 
 
         considerably if claimant performed other work.  He reported that, 
 
         if that option were not available, it would be reasonable to 
 
         proceed with the right carpal tunnel with that opinion based 
 
         primarily on the duration and severity of claimant's symptoms and 
 
         not on objective physical findings.
 
         
 
              Also, on August 11, 1987, the doctor opined that were 
 
         claimant to undergo a right carpal tunnel release, he could 
 
         reasonably expect resolution of his nocturnal paresthesias and 
 
         the paresthesias associated with activities of daily living.  He 
 
         opined claimant would probably experience some improvement in his 
 
         work-related symptoms, but that a significant element of those 
 
         would in all likelihood persist following surgery.
 
         
 
              In an October 21, 1988 letter report to claimant's counsel, 
 
         Dr. Blair stated the following:
 
         
 
              My opinion that Mr. Kueter would probably have some 
 
              persistent symptoms in his right hand following a carpal 
 
              tunnel release is based upon extensive clinical experience.  
 
              I not only provide primary care for people with industrial 
 
              hand pain, but I also see many patients who are dissatisfied 
 
              in some respect with previously provided care.  A relatively 
 
              common theme in these patients' post-operative course, is 
 
              some element of persistent work related symptoms.
 
         
 
              Although I could not specifically predict what complaints 
 
              Mr. Kueter would have, I would suggest that he might 
 
              describe persistent hand and wrist pain, fatigue, and 
 
              decreased grip strength.  I must add that these responses 
 
              are speculative in nature.  In my opinion, I believe that a 
 
              well done CTR operation would reduce the functional 
 
                                                
 
                                                         
 
                   impairment that was present at the time I examined Mr. 
 
              Kueter.
 
         
 
              On September 5, 1985, Dr. Blair had opined that, under the 
 
         American Medical Association's Guides to the Evaluation of 
 
         Permanent Impairment, he estimated claimant to have a five 
 
         percent impairment of the right hand, equivalent to a five 
 
         percent impairment of the right upper extremity.  On October 21, 
 
         1988, Dr. Blair estimated claimant's impairment of the right hand 
 
         to be seven percent which he characterized as equivalent to six 
 
         percent impairment of the right upper extremity.
 
         
 
                              APPLICABLE LAW AND ANALYSIS
 
         
 
              Our first concern is whether claimant's stipulated work 
 
         injury is a cause of any permanent disability.
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury of June 28, 1985 is causally related 
 
         to the disability on which he now bases his claim.  Bodish v. 
 
         Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).  Lindahl v. 
 
         L.O. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945).  A possibility is 
 
         insufficient; a probability is necessary.  Burt v. John Deere 
 
         Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955).  The 
 
         question of causal connection is essentially within the domain of 
 
 
 
                                  
 
                                                         
 
         expert testimony.  Bradshaw v. Iowa Methodist Hospital, 251 Iowa 
 
         375, 101 N.W.2d 167 (1960).
 
         
 
              However, expert medical evidence must be considered with all 
 
         other evidence introduced bearing on the causal connection.  
 
         Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion of experts need 
 
         not be couched in definite, positive or unequivocal language.  
 
         Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974).  However, 
 
         the expert opinion may be accepted or rejected, in whole or in 
 
         part, by the trier of fact.  Id. at 907.  Further, the weight to 
 
         be given to such an opinion is for the finder of fact, and that 
 
         may be affected by the completeness of the premise given the 
 
         expert and other surrounding circumstances.  Bodish, 257 Iowa 
 
         516, 133 N.W.2d 867.  See also Musselman v. Central Telephone 
 
         Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
              While claimant currently has no job restrictions on account 
 
         of his right hand carpal tunnel condition and is not under active 
 
         medical care on account of his right hand carpal tunnel 
 
         condition, it is obvious from the record as a whole that claimant 
 
         has continuing problems with the hand and has difficulties in 
 
         performing his work on account of the hand condition.  Both Dr. 
 
         Faber and Dr. Blair diagnosed the right carpal tunnel condition 
 
         and the medical record taken as a whole leaves no doubt that the 
 
         involved physicians believe the right carpal tunnel condition 
 
         resulted from claimant's work activity.  Claimant has shown the 
 
         requisite causal connection between his injury and the claimed 
 
         permanent partial disability.
 
         
 
              We reach the question of claimant's permanent partial 
 
         disability benefit entitlement.
 
         
 
              The fighting issue in this proceeding appears to be to what, 
 
         if any, permanent partial disability claimant is entitled at this 
 
         time, given that claimant continues to be employed without 
 
         restrictions and given that claimant has refused surgery which 
 
         his physicians have recommended and which his employer has 
 
         proffered.
 
         
 
              An unreasonable refusal of proffered medical benefits can 
 
         result in a loss of weekly benefits.  See Johnson v. Tri-City 
 
         Fabricating & Welding Co., 33rd Biennial Report of the Iowa 
 
         Industrial Commissioner 179 (App. Decn. 1977).  However, this 
 
         agency has held on numerous occasions that failure to undergo 
 
         surgery which carries some significant risk and the outcome of 
 
         which is not altogether certain does not represent unreasonable 
 
         refusal of medical care.  See Arnaman v. Mid-American Freight 
 
         Lines, I-3 Iowa Industrial Commissioner Decisions 497 (1985); 
 
         Bruneau v. Insulations Service, Inc., I Iowa Industrial 
 
         Commissioner Report 34, 35 (App. Decn. 1981); Decker v. Hartford 
 
         Auto Sales, Inc., II Iowa Industrial Commissioner Report 105 
 
         (1982).  Dr. Blair has stated that his opinion that claimant 
 
         should proceed with right carpal tunnel release was based 
 
         primarily upon the duration and severity of claimant's symptoms 
 
         and not on claimant's objective physical findings.  Claimant has 
 
                                                
 
                                                         
 
         had a carpal tunnel release on the left.  He has had good results 
 
         following that release.  Claimant testified that he has not 
 
         chosen to undergo a right carpal tunnel release as he has not 
 
         felt such was necessary given that his symptoms on the right were 
 
         significantly less as subjectively perceived than had been his 
 
         symptoms on the left.  Dr. Blair had recommended claimant perform 
 
         other work as a method of reducing his symptoms without surgical 
 
         intervention.  Claimant has made adjustments as needed, both in 
 
         his work activities and in his life activities in order to 
 
         continue working despite his right hand carpal tunnel symptoms. 
 
         Under those circumstances, it cannot be said that claimant's 
 
         election to not undergo a right carpal tunnel release is 
 
         unreasonable and should result in either denial or reduction of 
 
         his benefits.
 
         
 
              On October 21, 1988, Dr. Blair estimated claimant's 
 
         impairment of the right hand as seven percent.  On October 5, 
 
         1985, Blair had estimated claimant had a five percent impairment 
 
         of the right hand.  Increased impairment does not seem unusual 
 
         given the persistency of claimant's right carpal tunnel symptoms. 
 
         Dr. Blair has also opined that claimant could well have 
 
         persistent symptoms on the right even should he undergo the 
 
         recommended right carpal tunnel release.  He characterized those 
 
         as persistent hand and wrist pain, fatigue and decreased grip 
 
         strength.  He reported that the possibility of such symptoms 
 
         occurring was speculative in nature, however.  Given the 
 
         speculative nature of Dr. Blair's suggestions as to what 
 
         claimant's outcome might be were he to have surgery and given the 
 
         reasonableness of claimant's decision to not undergo the 
 
         recommended carpal tunnel release, there does not appear to be 
 
         any appropriate reason to reduce claimant's impairment rating 
 
         from the seven percent impairment of the right hand Dr. Blair 
 
         assessed in October, 1988.  Claimant's loss is a scheduled loss 
 
         compensable under Iowa Code section 85.34(2)(1). Claimant is 
 
         therefore entitled to permanent partial disability of seven 
 
         percent of the hand on account of his work injury.  [Should 
 
         claimant undergo the recommended right carpal tunnel release in 
 
         the future, claimant would certainly be entitled to such medical 
 
         care.  Election of the surgery would not in and of itself entitle 
 
         claimant to additional permanent partial disability on account of 
 
         the work injury.  Such would only be appropriate if claimant's 
 
         permanent partial disability on account of the work injury was 
 
         greater than seven percent of the right hand subsequent to such 
 
         surgery and if claimant's claim for such additional benefits was 
 
         filed within the applicable period under section 85.26(2).]
 
         
 
              Claimant's permanent partial disability should commence on 
 
         October 21, 1988.  Dr. Blair assigned his final impairment rating 
 
         as of that date.  The parties then were aware of claimant's 
 
         decision not to undergo surgery and reasonable steps to modify 
 
         claimant's work activities had then been taken.  Hence, the 
 
         impairment rating of that date best reflects claimant's actual 
 
         scheduled loss on account of his injury.
 
         
 
                                   FINDINGS OF FACT
 
                                                
 
                                                         
 
         
 
              WHEREFORE, IT IS FOUND:
 
         
 
              Claimant sustained an injury by way of manifested right 
 
         carpal tunnel syndrome on June 28, 1985.
 
         
 
              Claimant was placed on temporary work restrictions on 
 
         account of such injury, but was released from such work 
 
         restrictions on either August 21, 1986 or October 26, 1986.
 
         
 
              Claimant had no temporary disability on account of the right 
 
         carpal tunnel syndrome.
 
         
 
              Claimant has lost no work time on account of the right 
 
         carpal tunnel condition.
 
         
 
              Both Drs. William F. Blair and Luke Faber have recommended 
 
         that claimant undergo right carpal tunnel release.
 
         
 
              Dr. Blair's recommendation that claimant undergo right 
 
         carpal tunnel release if claimant did not perform other work was 
 
         based more on the duration and severity of claimant's symptoms on 
 
         the right and not on objective physical findings.
 
         
 
              Claimant has had left carpal tunnel syndrome and claimant 
 
         has had left carpal tunnel release.
 
         
 
              Claimant has responded well to the surgery on the left hand 
 
         and does not report active problems with his left hand at this 
 
         time.
 
         
 
              Claimant does not believe that his symptoms are as severe on 
 
         the right as they had been on the left.
 
         
 
              Claimant has had problems with his right carpal tunnel 
 
         condition while performing his work, but has been able to modify 
 
         his method of performance in ways that permit him to continue 
 
         working despite such symptoms.
 
         
 
              A right carpal tunnel release would probably significantly 
 
         contribute to the resolution of some of claimant's symptoms.
 
         
 
              After surgery, claimant might have persistent hand and wrist 
 
         pain, fatigue and decreased grip strength.
 
         
 
              Claimant's choice to not undergo a right carpal tunnel 
 
         release was reasonable and was not an unreasonable refusal of 
 
         medical care.
 
         
 
              The nature of any symptoms remaining after a right carpal 
 
         tunnel surgical release is speculative.
 
         
 
              Claimant's most recent assessment of permanent partial 
 
         impairment as a result of the right carpal tunnel condition was 
 
         made on October 21, 1988.
 
                                                
 
                                                         
 
         
 
              As of October 21, 1988, claimant had permanent partial 
 
         impairment of seven percent of the right hand.
 
         
 
                                  CONCLUSIONS OF LAW
 
         
 
              THEREFORE, IT IS CONCLUDED:
 
         
 
              Claimant has established that his injury of June 28, 1985 is 
 
         the cause of the disability on which he now bases his claim.
 
         
 
              Claimant is entitled to permanent partial disability 
 
         resulting from his injury on June 28, 1985 of seven percent of 
 
         the right hand.
 
         
 
                                         ORDER
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              Defendant pay claimant permanent partial disability benefits 
 
         for thirteen point three (13.3) weeks at the stipulated rate of 
 
         one hundred sixty-seven and 48/100 dollars ($167.48) per week 
 
         commencing October 21, 1988.
 
         
 
              Defendant pay accrued amounts in a lump sum.
 
         
 
              Defendant pay interest pursuant to Iowa Code section 85.30 
 
         as amended.
 
         
 
              Defendant pay costs pursuant to Division of Industrial 
 
         Services Rule 343-4.33.
 
         
 
              Defendant file a final payment report when this award is 
 
 
 
                                  
 
                                                         
 
         paid pursuant to Division of Industrial Services Rule 343-3.1.
 
         
 
              Signed and filed this 21st day of June, 1989.
 
         
 
         
 
         
 
         
 
         
 
                                            HELENJEAN WALLESER
 
                                            DEPUTY INDUSTRIAL 
 
                                            COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Nick J. Avgerinos
 
         Mr. Stephen Smalling
 
         Attorneys at Law
 
         101 North Wacker Drive
 
         Suite 740
 
         Chicago, Illinois  60606
 
         
 
         Mr. James M. Heckmann
 
         Mr. David C. Bauer
 
         Ms. Joyce L. Klimesh
 
         Attorneys at Law
 
         One CyCare Plaza, Suite 216
 
         Dubuque, Iowa  52001
 
 
 
 
 
 
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                            1803, 2700
 
                                            Filed June 21, 1989
 
                                            HELENJEAN WALLESER
 
         
 
                  BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         LORIN KUETER,
 
         
 
              Claimant,
 
                                                     File No. 847947
 
         vs.
 
                                                  A R B I T R A T I 0 N
 
         FDL FOODS, INC.,
 
                                                      D E C I S I 0 N
 
              Employer,
 
              Self-Insured,
 
              Defendant.
 
         
 
         
 
         1803, 2700
 
         
 
              Claimant, who elected not to undergo right carpal tunnel 
 
         release, awarded seven percent permanent partial disability of 
 
         the right hand.  Claimant's refusal to undergo the release not 
 
         found unreasonable where claimant could modify job activities to 
 
         decrease his symptoms; where claimant lacked objective findings 
 
         and recommendation for the release was based primarily on 
 
         duration and severity of symptoms; and, where claimant had had a 
 
         left carpal tunnel release but did not believe his symptoms on 
 
         the right were as severe as they had been on the left.
 
         
 
              Permanent partial disability payments commenced on the date 
 
         the accepted permanent partial impairment rating was assigned 
 
         where claimant was entitled to no temporary total disability or 
 
         healing period benefits on account of the injury.
 
 
 
 
 
 
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            SHAWN R. SUTTON,              :
 
                                          :         File No. 847998
 
                 Claimant,                :
 
                                          :      A R B I T R A T I O N
 
            vs.                           :
 
                                          :         D E C I S I O N
 
            CLAUDE BARKER,                :
 
                                          :
 
                 Employer,                :
 
                 Defendant.               :
 
            ___________________________________________________________
 
            
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding in arbitration brought by Shawn R. 
 
            Sutton, claimant, against Claude Barker, uninsured employer, 
 
            to recover benefits under the Iowa Workers' Compensation Act 
 
            as a result of an injury sustained on April 24, 1987.  This 
 
            matter came on for hearing before the undersigned deputy 
 
            industrial commissioner in Sioux City, Iowa on January 29, 
 
            1991.  The record was considered fully submitted at the time 
 
            of the hearing.  The record in this case consists of the 
 
            testimony of claimant, Shawn Sutton, and Ronald Hauser; and 
 
            claimant's exhibits 1-8.
 
            
 
                               preliminary matters
 
            
 
                 Defendant failed to arrange for the attendance of a 
 
            certified shorthand reporter at the hearing as provided for 
 
            in the hearing assignment order.  The parties waived the 
 
            requirements for recording oral proceedings and maintaining 
 
            the record of oral proceedings contained within section 
 
            17A.12(7) of the Code.  They stipulated that no official 
 
            verbatim record of the oral proceeding will be made or 
 
            maintained in this case and that for purposes of review or 
 
            appeal, the only official record of the oral proceeding will 
 
            be the exhibits received into evidence and the written 
 
            decision of the deputy industrial commissioner.
 
            
 
                                      issues
 
            
 
                 Pursuant to the prehearing report and order submitted 
 
            and approved on January 29, 1991, the parties stipulated 
 
            that, in
 
            the event of an award of weekly benefits, the rate of weekly 
 
            compensation is $82.34 per week; that defendant pay medical/
 
            hospitalization expenses in the amount of $802.94 and if 
 
            defendant is found liable for the injury, the extent of 
 
            entitlement to weekly compensation for permanent disability 
 
            is 22.5 weeks for a 15 percent loss of the use of the foot.  
 
            At the hearing, the parties stipulated that the claimant was 
 
            off work from April 24, 1987 through August 2, 1987 (14.429 
 
            weeks) and that defendant is entitled to a credit of $855.00 
 
            for benefits previously paid to claimant.
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
                 The prehearing report identified the following issues 
 
            for resolution:
 
            
 
                 1.  Whether an employer-employee relationship exists 
 
            between claimant and the alleged employer;
 
            
 
                 2.  Whether claimant received an injury arising out of 
 
            and in the course of her employment on April 24, 1987;
 
            
 
                 3.  Whether a causal relationship exists between 
 
            claimant's claimed injury and the claimed disability;
 
            
 
                 4.  The nature and extent of any benefit entitlements; 
 
            and,
 
            
 
                 5.  Whether claimant is entitled to payment of certain 
 
            medical costs pursuant to section 85.27.
 
            
 
                                 findings of fact
 
            
 
                 After carefully considering the testimony given at the 
 
            hearing, arguments made and the evidence contained in the 
 
            exhibits herein, the undersigned deputy industrial 
 
            commissioner makes the following findings:
 
            
 
                 Claimant was born on October 14, 1958 and completed the 
 
            eighth grade of school.  She obtained a GED certificate four 
 
            years ago.  While on strike from IBP, claimant obtained work 
 
            as a roofer with defendant, Claude Barker.  Claimant 
 
            testified that she met Mr. Barker at a cafe in South Sioux 
 
            City, Nebraska sometime in February or March 1987.  She 
 
            stated that he hired her to shingle roofs.  He selected the 
 
            jobs and personally drove her to the job sites.  She used 
 
            his tools and worked under his direction.  He paid her $100 
 
            per week, in cash, for her labor.  She considered him to be 
 
            her employer because he could fire her at any time.
 
            
 
                 Claimant further testified that on April 24, 1987, 
 
            while shingling a roof, she slipped and fell to the ground 
 
            breaking her left ankle.  Although Mr. Barker was not at the 
 
            site at the time of the injury, he appeared shortly 
 
            thereafter and stated that if she needed to go to the doctor 
 
            he would pay all of her hospital bills.  A co-worker drove 
 
            her home.  She was unable to navigate the next day and 
 
            called Ronald Hauser, a friend, to take her to Marian Health 
 
            Center for an evaluation.  X-rays were taken and a cast was 
 
            applied to her left ankle.  Pain medication was also 
 
            prescribed.  Approximately eight weeks after the accident, 
 
            the cast was removed by John J. Dougherty, M.D.
 
            
 
                 Claimant testified that the strike at IBP had resolved 
 
            and she asked Dr. Dougherty to release her to return to work 
 
            despite the fact that she was still having pain in her left 
 
            ankle.  On August 2, 1987, she returned to her job as a 
 
            packager at IBP.  She worked there until June 1988 when she 
 
            quit to take a job as a waitress.  She worked in this 
 
            capacity until November 1988 when she quit to take a job as 
 
            an assistant manager at a Convenient Mart.
 
            
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
                 Dr. Dougherty referred claimant to Horst G. Blume, 
 
            M.D., for an examination on January 26, 1988.  She presented 
 
            with complaints of pain in both ankles, moreso on the left.  
 
            She was prescribed a series of computerized electrical 
 
            therapy which relieved her pain somewhat.  She was seen for 
 
            a follow-up evaluation on February 17, 1988, after she 
 
            twisted her left foot on February 12, 1988.  Dr. Blume found 
 
            no permanency in regard to this condition but gave claimant 
 
            a "temporary partial impairment to the left foot of 
 
            approximately 10-15% as a result of the accident which 
 
            occurred April 24, 1987...."  (Exhibit 1)
 
            
 
                 On September 9, 1988, Dr. Blume reported that x-rays 
 
            revealed "some erosion of the joint surface of the talus at 
 
            its posterior aspect with evidence of osteochondritis 
 
            dissecans of the posterior surface of the talus."  He 
 
            related this condition to claimant's accident on April 24, 
 
            1987 (Ex. 2).
 
            
 
                 Finally, claimant testified that she has $2,546.73 in 
 
            unpaid medical bills (Ex. 1-6).
 
            
 
                                conclusions of law
 
            
 
                 After carefully considering the testimony given at the 
 
            hearing, the arguments made and the evidence contained in 
 
            the exhibits, the undersigned makes the following findings:
 
            
 
                 The first issue to be determined in this case is 
 
            whether claimant received an injury which arose out of and 
 
            in the course of her employment.
 
            
 
                 Claimant has the burden of proving by a preponderance 
 
            of the evidence that she received an injury on April 24, 
 
            1987 which arose out of and in the course of her employment.  
 
            McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); 
 
            Musselman v. Central Telephone Co., 261 Iowa 352, 154 
 
            N.W.2d 128 (1967). 
 
            
 
                 An employee is entitled to compensation for any and all 
 
            personal injuries which arise out of and in the course of 
 
            the employment.  Section 85.3(1).
 
            
 
                 The injury must both arise out of and be in the course 
 
            of the employment.  Crowe v. DeSoto Consol. Sch. Dist., 246 
 
            Iowa 402, 68 N.W.2d 63 (1955) and cases cited at pp. 405-406 
 
            of the Iowa Report.  See also Sister Mary Benedict v. St. 
 
            Mary's Corp., 255 Iowa 847, 124 N.W.2d 548 (l963) and Hansen 
 
            v. State of Iowa, 249 Iowa 1147, 91 N.W.2d 555 (1958).
 
            
 
                 The words "out of" refer to the cause or source of the 
 
            injury.  Crowe, 246 Iowa 402, 68 N.W.2d 63 (1955). 
 
            
 
                 The words "in the course of" refer to the time and 
 
            place and circumstances of the injury.  McClure v. Union 
 
            et al. Counties, 188 N.W.2d 283 (Iowa 1971); Crowe, 246 Iowa 
 
            402, 68 N.W.2d 63 (1955).
 
            
 
                 "An injury occurs in the course of the employment when 
 
            it is within the period of employment at a place the 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            employee may reasonably be, and while he is doing his work 
 
            or something incidental to it."  Cedar Rapids Comm. Sch. 
 
            Dist. v. Cady, 278 N.W.2d 298 (Iowa 1979), McClure, 188 
 
            N.W.2d 283 (Iowa 1971); Musselman, 261 Iowa 352, 154 N.W.2d 
 
            128 (1967). 
 
            
 
                 Claimant's uncontroverted testimony and the testimony 
 
            of Mr. Hauser and the medical evidence relative to her 
 
            treatment for a broken ankle, presents sufficient credible 
 
            evidence to establish that claimant did have a work incident 
 
            on the date she described in her testimony.  Defendant 
 
            presented no evidence to refute claimant's claim.
 
            
 
                 The next issue to be considered is defendant's 
 
            affirmative defense that claimant was an independent 
 
            contractor and not an employee when injured.
 
            
 
                 Iowa Code section 85.61(1) provides in part:
 
            
 
                 2.  "Worker" or "employee" means a person who has 
 
                 entered into employment of, or works under 
 
                 contract of service, express or implied, or 
 
                 apprenticeship, for an employer. . . .
 
            
 
                 The Iowa Supreme Court stated in Nelson v. Cities 
 
            Service Oil Co., 259 Iowa 1209, 1213, 146 N.W.2d 261 (1967):
 
            
 
                    This court has consistently held it is a 
 
                 claimant's duty to prove by a preponderance of the 
 
                 evidence he or his decedent was a workman or 
 
                 employee within the meaning of the law. . . .
 
            
 
                 And, if a compensation claimant establishes a 
 
                 prima facie case the burden is then upon defendant 
 
                 to go forward with the evidence and overcome or 
 
                 rebut the case made by claimant.  He must also 
 
                 establish by a preponderance of the evidence any 
 
                 pleaded affirmative defense or bar to 
 
                 compensation.  [Citations omitted.]
 
            
 
                 Given the above, the court set forth its latest 
 
            standard for determining an employer-employee relationship 
 
            in Caterpillar Tractor Co. v. Shook, 313 N.W.2d 503 (Iowa 
 
            1981).  The court stated in part:
 
            
 
                 I.  The employer-employee relationship.  As 
 
                 defined in section 85.61(2), The Code, an 
 
                 "employee" is a "person who has entered into the 
 
                 employment of, or works under contract of service 
 
                 . . . for an employer."  Factors to be considered 
 
                 in determining whether this relationship exists 
 
                 are:  (1) the right of selection, or to employ at 
 
                 will, (2) responsibility for payment of wages by 
 
                 the employer, (3) the right to discharge or 
 
                 terminate the relationship, (4) the right to 
 
                 control the work, and (5) identity of the employer 
 
                 as the authority in charge of the work or for 
 
                 whose benefit it is performed.  The overriding 
 
                 issue is the intention of the parties.  McClure v. 
 
                 Union, et al., Counties, 188 N.W.2d 285 (Iowa 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
                 1971).  [Emphasis added.]
 
            
 
                 In this case, Mr. Barker had the right of selection and 
 
            the right to employ at will.  He was responsible for payment 
 
            of earned income to claimant.  He could terminate the 
 
            relationship at any time.  The work was performed for his 
 
            benefit.  The above facts are sufficient to show a prima 
 
            facie case of employer-employee relationship.
 
            
 
                 Once the worker has proven that the worker was 
 
            rendering services for the employer at the time of the 
 
            injury, the burden then shifts to the employer to prove that 
 
            the worker was an independent contractor and not an 
 
            employee.  Daggett v. Nebraska-Eastern Express, Inc., 252 
 
            Iowa 341, 107 N.W.2d 102 (1961).  Iowa Code section 
 
            85.61(3)(b) provides that an independent contractor is not 
 
            an employee.
 
            
 
                 In Mallinger v. Webster City Oil Co., 211 Iowa 847, 
 
            851, 234 N.W. 254, 257 (1929), the Iowa Supreme Court 
 
            defined independent contractor and presented an eight-factor 
 
            test to determine whether an independent contractor 
 
            relationship existed.
 
            
 
                 An independent contractor, under the quite 
 
                 universal rule, may be defined as one who carries 
 
                 on an independent business, and contracts to do a 
 
                 piece of work according to his [sic] own methods, 
 
                 subject to the employer's control only as to 
 
                 results.  The commonly recognized tests of such a 
 
                 relationship are, although not necessarily 
 
                 concurrent, or each in itself controlling:  (1) 
 
                 the existence of a contract for the performance by 
 
                 a person of a certain piece or kind of work at a 
 
                 fixed price; (2) independent nature of [the] 
 
                 business or of [the] distinct calling; (3) [the] 
 
                 employment of assistants, with the right to 
 
                 supervise their activities; (4) [the] obligation 
 
                 to furnish necessary tools, supplies, and 
 
                 materials; (5) [the] right to control the progress 
 
                 of the work, except as to final results; (6) the 
 
                 time for which the workman [sic] is employed; (7) 
 
                 the method of payment, whether by time or by job; 
 
                 (8) whether the work is part of the regular 
 
                 business of the employer.
 
            
 
                 When all the above are considered, claimant is found to 
 
            be an employee rather than an independent contractor.  
 
            Claimant's uncontroverted testimony indicated that employer 
 
            took her to all of the work sites, furnished the necessary 
 
            work tools, supplies and materials and controlled the 
 
            progress of the work.
 
            
 
                 Since claimant has been found to be an employee, Claude 
 
            Barker, employer, is liable for compensation resulting from 
 
            claimant's April 24, 1987 injury.
 
            
 
                 The next issue to be determined is whether claimant's 
 
            alleged injury is causally connected to the disability on 
 
            which she now bases her claim.
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury of April 24, 
 
            1987 is causally related to the disability on which she now 
 
            bases her claim.  Bodish v. Fischer, Inc., 257 Iowa 516, 133 
 
            N.W.2d 867 (1965).  Lindahl v. L. O. Boggs, 236 Iowa 296, 18 
 
            N.W.2d 607 (1945).  A possibility is insufficient; a 
 
            probability is necessary.  Burt v. John Deere Waterloo 
 
            Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955).  The 
 
            question of causal connection is essentially within the 
 
            domain of expert testimony.  Bradshaw v. Iowa Methodist 
 
            Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). 
 
            
 
                 However, expert medical evidence must be considered 
 
            with all other evidence introduced bearing on the causal 
 
            connection.  Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion 
 
            of experts need not be couched in definite, positive or 
 
            unequivocal language.  Sondag v. Ferris Hardware, 220 N.W.2d 
 
            903 (Iowa 1974).  However, the expert opinion may be 
 
            accepted or rejected, in whole or in part, by the trier of 
 
            fact.  Id. at 907.  Further, the weight to be given to such 
 
            an opinion is for the finder of fact, and that may be 
 
            affected by the completeness of the premise given the expert 
 
            and other surrounding circumstances.  Bodish, 257 Iowa 516, 
 
            133 N.W.2d 867.  See also Musselman, 261 Iowa 352, 154 
 
            N.W.2d 128 (1967).
 
            
 
                 A treating physician's testimony is not entitled to 
 
            greater weight as a matter of law than that of a physician 
 
            who later examines claimant in anticipation of litigation.  
 
            Weight to be given testimony of physician is a fact issue to 
 
            be decided by the industrial commissioner in light of the 
 
            record the parties develop.  In this regard, both parties 
 
            may develop facts as to the physician's employment in 
 
            connection with litigation, if so; the physician's 
 
            examination at a later date and not when the injuries were 
 
            fresh; his arrangement as to compensation; the extent and 
 
            nature of the physician's examination; the physician's 
 
            education, experience, training, and practice; and all other 
 
            factors which bear upon the weight and value of the 
 
            physician's testimony.  Both parties may bring all this 
 
            information to the attention of the fact finder as either 
 
            supporting or weakening the physician's testimony and 
 
            opinion.  All factors go to the value of the physician's 
 
            testimony as a matter of fact not as a matter of law.  
 
            Rockwell Graphic Systems, Inc. v. Prince, 366 N.W.2d 176, 
 
            192 (Iowa 1985).
 
            
 
                 Claimant has presented uncontroverted evidence that, 
 
            during the course of her employment with employer, while 
 
            working as a roofer, she fell 20 feet and fractured her left 
 
            ankle.  This event was witnessed by two co-workers, one of 
 
            whom took her home.  Medical records indicate that she was 
 
            seen at Marian Health Center on April 25, 1987 and was put 
 
            in a short leg cast (Ex. 4).  On June 13, 1987, Marian 
 
            Health Center sent their bill to Mr. Barker.  Claimant then 
 
            received follow-up care from Dr. Dougherty and Dr. Blume.  
 
            Dr. Blume opined that, "it is my opinion within a reasonable 
 
            medical probability that the accident that she sustained is 
 
            directly responsible for the injury to this joint and that 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            the patient has a permanent partial impairment to the left 
 
            foot of 15% as the result of the accident on April 24, 
 
            1987."  (Ex. 2).
 
            
 
                 Thus, a causal connection has been made between the 
 
            claimant's work injury and the disability on which she now 
 
            basis her claim.
 
            
 
                 The next issue to be determined is whether claimant's 
 
            injury is a cause of permanent disability.
 
            
 
                 Claimant's uncontroverted evidence indicates a 
 
            permanent partial impairment to the left foot of 15 percent.  
 
            Defendant presented no evidence to the contrary.  Therefore, 
 
            relying on the claimant's testimony and the medical evidence 
 
            in the record, the undersigned finds that the claimant 
 
            sustained a permanent injury as a result of the incident on 
 
            April 24, 1987.  Claimant seeks healing period benefits from 
 
            April 24, 1987 until August 2, 1987 when Dr. Dougherty 
 
            released her to return to work.  The parties stipulated that 
 
            if claimant is found entitled to weekly compensation for 
 
            permanent disability, such benefits should be paid for 22.5 
 
            weeks based upon an impairment rating of 15 percent loss of 
 
            use of the left foot which is a scheduled member disability.  
 
            Claimant is entitled to 15 percent permanent partial 
 
            disability benefits commencing August 3, 1987 at the 
 
            stipulated rate of $82.34.
 
            
 
                 The final issue to be determined is claimant's 
 
            entitlement to payment of medical costs pursuant to section 
 
            85.27.
 
            
 
                 This section requires the employer to pay reasonable 
 
            and necessary medical expenses related to a compensable 
 
            injury.  Medical costs are set out in exhibits 1-6.  The 
 
            parties stipulated that claimant's total unpaid medical 
 
            bills amount to $2,546.73.  Defendants denied liability.  
 
            They cannot argue that medical charges are unauthorized.  
 
            See Holbert v. Townsend Eng'r Co., Thirty-Second Biennial 
 
            Rep., Iowa Indus. Comm'r 78, 80 (Review Dec. 1975).  As the 
 
            medical costs were incurred for treatment of claimant's 
 
            work-related injury, defendant is liable for them under Iowa 
 
            Code section 85.27.
 
            
 
                                      order
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 That defendant pay to claimant fourteen point 
 
            four-two-nine (14.429) weeks of healing period benefits at 
 
            the stipulated rate of eighty-two and 34/l00 dollars 
 
            ($82.34) per week for the period from April 24, 1987 through 
 
            August 2, 1987.
 
            
 
                 That defendant pay to claimant twenty-two point 
 
            seven-one-four (22.714) weeks of permanent partial 
 
            disability benefits at the stipulated rate of eighty-two and 
 
            34/l00 dollars ($82.34) per week commencing August 3, 1987.
 
            
 
                 That all accrued benefits are to be paid in a lump sum.
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            
 
                 That interest will accrue pursuant to Iowa Code section 
 
            85.30.
 
            
 
                 That claimant is entitled to two thousand five hundred 
 
            forty-six and 73/l00 dollars ($2,546.73) in medical expenses 
 
            pursuant to Iowa Code section 85.27.
 
            
 
                 That defendant receive a credit of eight hundred 
 
            fifty-five and no/l00 dollars ($855.00) for benefits 
 
            previously paid to claimant.
 
            
 
                 That the costs of this action are charged to defendant 
 
            pursuant to rule 343 IAC 4.33.
 
            
 
                 That defendant file claim activity reports as requested 
 
            by this agency pursuant to rule 343 IAC 3.l.
 
            
 
            
 
            
 
                 Signed and filed this ____ day of February, 1991.
 
            
 
            
 
            
 
            
 
            
 
                                          ______________________________               
 
            JEAN M. INGRASSIA
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. P. D. Furlong
 
            Attorney at Law
 
            401 Commerce Bldg
 
            Sioux City  IA  51101
 
            
 
            Mr. Glenn A. Metcalf
 
            Attorney at Law
 
            P O Box 442
 
            Moville  IA  51039
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                      1108.50; 1402.30; 1504; 1803.1
 
                      Filed February 22, 1991
 
                      JEAN M. INGRASSIA
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            SHAWN R. SUTTON,              :
 
                                          :         File No. 847998
 
                 Claimant,                :
 
                                          :      A R B I T R A T I O N
 
            vs.                           :
 
                                          :         D E C I S I O N
 
            CLAUDE BARKER,                :
 
                                          :
 
                 Employer,                :
 
                 Defendant.               :
 
            ___________________________________________________________
 
            
 
            
 
            
 
            1108.50; 1402.30; 1504; 1803.1
 
            Claimant fell off roof and fractured her left ankle while in 
 
            employ of uninsured defendant.  Defendant argued that 
 
            claimant was an independent contractor and not employee when 
 
            injured.  Claimant established a prima facie case to show 
 
            employer-employee relationship and defendant produced no 
 
            rebuttal evidence.
 
            Claimant demonstrated by preponderance of the evidence that 
 
            her injury is causally related to the disability on which 
 
            she now bases her claim.
 
            Claimant awarded 15 percent loss of use of left foot (ankle 
 
            is part of the foot) which is a scheduled member disability.
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            SHAWN R. SUTTON,              :        File No. 847998
 
                                          :
 
                 Claimant,                :            N U N C
 
                                          :
 
            vs.                           :             P R O
 
                                          :
 
            CLAUDE BARKER,                :            T U N C
 
                                          :
 
                 Employer,                :           O R D E R
 
                 Defendant.               :
 
            ___________________________________________________________
 
            
 
            A decision was rendered in the above named case on February 
 
            22, 1991.  Subsequently, it was discovered that the parties 
 
            stipulated to an incorrect rate of compensation.  It appears 
 
            that the stipulated rate of $82.34 was taken from the rate 
 
            book applicable to injuries occurring from July 1, 1990 
 
            through June 30, 1991.  Claimant's injury occurred on April 
 
            24, 1987.  The appropriate rate for a single individual 
 
            whose gross weekly wages are $100.00 is $72.67.  Thus, the 
 
            aforementioned decision is amended to show that the 
 
            claimant's proper rate of compensation is $72.67 rather than 
 
            $82.34 as erroneously stipulated to by the parties.
 
            
 
            
 
                 Signed and filed this ____ day of March, 1991.
 
            
 
            
 
            
 
            
 
                      ______________________________               JEAN 
 
            M. INGRASSIA
 
                      DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. P. D. Furlong
 
            Attorney at Law
 
            401 Commerce Bldg
 
            Sioux City  IA  51101
 
            
 
            Mr. Glenn A. Metcalf
 
            Attorney at Law
 
            P O Box 442
 
            Moville  IA  51039
 
            
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         JAMES WALDEN,
 
         
 
              Claimant,
 
                                         File No. 848283
 
         VS.
 
         
 
         CITY OF DES MOINES, IOWA,        A R B I T R A T I 0 N
 
         
 
              Employer,
 
                                         D E C I S I 0 N
 
              Self-Insured,
 
               Defendant.
 
         
 
                                   INTRODUCTION
 
                                        
 
              This is a proceeding in arbitration brought by the claimant, 
 
         James Walden, against the City of Des Moines, self-insured 
 
         employer, to recover benefits as a result of an injury sustained 
 
         on March 10, 1987.  This matter came on for hearing before the 
 
         deputy industrial commissioner in Des Moines, Iowa, on July 11, 
 
         1989.  The record consists of the testimony of claimant and 
 
         Michael Peterson; and joint exhibits 1 through 89.
 
         
 
                                      ISSUE
 
         
 
              The issues for resolution are:
 
         
 
              1.The extent of claimant's permanent disability; and
 
         
 
              2. Whether claimant is owed interest from April 5, 1988 to 
 
         September 28, 1988 on the 5 percent permanent partial disability 
 
         benefits ultimately paid by defendant on September 28, 1988.
 
         
 
                              REVIEW OF THE EVIDENCE
 
         
 
              Claimant testified that he is 55 years old and has only a 
 
         tenth grade education.  Claimant described the various jobs he 
 
         has had prior to becoming employed with the City of Des Moines in 
 
         1976 as a mechanic.  Claimant stated that prior jobs in Iowa and 
 
         Missouri were basically manual labor jobs, light to heavy duty.  
 
         Claimant said he worked for defendant approximately eleven years.  
 
         Claimant stated he was initially classified as an equipment 
 
         mechanic.  In June 1986, he was,then classified as a truck 
 
         driver.
 
         
 
              Claimant testified that while he was working for the City of 
 
         Des Moines on sewer lines on March 10, 1987, the rods he was 
 
         handling broke.  Claimant said he attempted to separate the rods 
 
         with a wrench as they lay on the ground.  At that time, claimant 
 
         indicated he felt a problem in his right shoulder.
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         WALDEN V. CITY OF DES MOINES, IOWA 
 
         Page 2
 
         
 
         
 
         Claimant said he sought medical help and obtained conservative 
 
         treatment.  Claimant was released to work on April 13, 1987.  
 
         Claimant stated that he returned to driving a truck for the city 
 
         but was not to perform overhead work.  Claimant said the city 
 
         accommodated him, but shortly thereafter his shoulder began 
 
         bothering him again.  Claimant said he received another cortisone 
 
         shot and obtained some physical therapy and ultrasound 
 
         treatments.  Claimant contends that this did not help.
 
         
 
              Claimant was again off work from October 12, 1987 to 
 
         November 15, 1987.  Claimant returned to truck driving for 
 
         defendant on November 16, 1987 until December 18, 1987, but was 
 
         not to do much lifting.  Claimant said it was hard to climb into 
 
         the truck as he needed to use his right arm.
 
         
 
              Claimant indicated he does not have too much of a problem 
 
         driving a truck, but indicated his right shoulder will never be 
 
         totally well.  Claimant indicated that if he held something in 
 
         his right hand, it would fall out of his grip.  Claimant 
 
         indicated he presently has problems lifting.  Claimant testified 
 
         he cannot now perform mechanics work due to his right shoulder 
 
         injury.  Claimant testified he had no medical problems prior to 
 
         march 10, 1987.  Claimant said his current truck driving job did 
 
         not result in less income than his job on March 10, 1987.
 
         
 
              Michael Peterson, City of Des Moines Safety and Training 
 
         Administrator for thirteen years, testified that he knew 
 
         claimant.  He said claimant was employed as a truck driver for 
 
         the public works and sewer division on June 16, 1986, and has 
 
         been a truck driver since that time.  Peterson said claimant was 
 
         a City of Des Moines mechanic beginning June 14, 1976 to May 31, 
 
         1983.  He indicated claimant's evaluations were good and claimant 
 
         received all eligible promotions.  Peterson testified there was 
 
         no difference in claimant's ratings before or after the surgery.  
 
         He stated claimant was eligible for promotions, recommended for 
 
         promotions, and is a good candidate for promotions.  Peterson 
 
         said claimant.has certain rights to bump down to a lower job or 
 
         transfer to a job of similar class around the city.  Claimant can 
 
         also compete for jobs.  Peterson emphasized that claimant has 
 
         never come to his department to change jobs or exercise certain 
 
         rights to change jobs.  He stated claimant never sought job 
 
         rehabilitation help.  He said claimant's pay is more today than 
 
         at the time of claimant's injury (estimated $806 versus $874 
 
         biweekly).  He indicated another 4 percent increase is effective 
 
         this week.
 
         
 
              Claimant's medical records  reflect continued problems in 
 
         his right shoulder since his March 10, 1987 injury.  Claimant had 
 
         a bone scan, cortisone shots and therapy, and received at most 
 
         temporary relief.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         WALDEN V. CITY OF DES MOINES, IOWA
 
         Page 3
 
         
 
         
 
              William R. Boulden, M.D., and his partner, Robert F. 
 
         Breedlove, M.D., believed claimant had an impingement syndrome of 
 
         the right shoulder.  On December 18, 1987, claimant went to 
 
         Jerome Bashara, M.D., who diagnosed claimant's problems as "tear 
 
         rotator cuff (R) shoulder."  Dr. Bashara's notes on December 22, 
 
         1987 reflect:
 
         
 
              His arthrogram at Mercy shows some loose bodies within the 
 
              glenohumeral joint itself.  There is also a small incomplete 
 
              tear of the rotator cuff.
 
              
 
              DIAGNOSIS: Loose bodies right shoulder, impingement syndrome 
 
              with tear rotator cuff.
 
              
 
              The patient is a candidate for a diagnostic and operative 
 
              arthroscopy of the right shoulder to be followed by a 
 
              acromial decompression and repair of incomplete tear of the 
 
              rotator cuff.
 
         
 
         (Joint Exhibit 51)
 
         
 
              Kirk D. Green, D.O., also believed claimant had an 
 
         impingement syndrome, right shoulder with a possibility of right 
 
         rotator cuff tear and recommended surgery.  Dr. Green's records 
 
         on February 11, 1988, reflect:
 
         
 
                 Mr. Walden returns now having resolved a bronchitis which 
 
              caused cancellation of his shoulder surgery X 2. He is 
 
              anxious to have the same performed.  His complaints and exam 
 
              are unchanged.  In light of his quest to have it done as 
 
              soon as possible & in my absence next week, Dr. Weatherwax 
 
              evaluated the patient and will perform decompression and 
 
              exploration of his rotator cuff and possible repair as a 
 
              possible outpatient admit on 2-19-88.
 
         
 
         (Jt. Ex. 56)
 
         
 
              Claimant's medical records on December 21, 1988 indicate he 
 
         fractured the base of his left fifth metatarsal.  By January 27, 
 
         1989, it appears claimant basically recovered from this injury 
 
         and was recommended to wear a properly fitted shoe.
 
         
 
              Surgery was performed on claimant's right shoulder by Robert 
 
         J. Weatherwax, M.D., on February 19, 1988.  Claimant said he was 
 
         able to raise and lower his right arm after the surgery, but his 
 
         arm was very weak.  Claimant returned to work full time on April 
 
         5, 1988 with no restrictions.
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              On June 8, 1988, Robert J. Weatherwax, M.D., wrote:
 
         
 
                 Mr. Walden has progressed well following decompression
 
              of his right shoulder and based on the guides for
 
         
 
         
 
         
 
         WALDEN V. CITY OF DES MOINES, IOWA 
 
         Page 4
 
         
 
         
 
              rating impairment from the American Academy for Orthopedic 
 
              Surgeons, due to surgical resection of the end of the distal 
 
              clavicle, Mr. Walden has 5% permanent impairment, as it 
 
              relates to the whole man.
 
         
 
         (Jt. Ex. 73)
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
                                        
 
              As a claimant has an impairment to the body as a whole, an 
 
         industrial disability has been sustained.  Industrial disability 
 
         was defined in Diederich v. Tri-City Railway Co., 219 Iowa 587, 
 
         593, 258 N.W. 899, 902 (1935) as follows: "It is therefore plain 
 
         that the legislature intended the term 'disability' to mean 
 
         'industrial disability' or loss of earning capacity and not a 
 
         mere 'functional disability' to be computed in the terms of 
 
         percentages of the total physical and mental ability of a normal 
 
         man."
 
         
 
              The opinion of the supreme court in Olson v. Goodyear 
 
         Service Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963) at 1121, 
 
         cited with approval a decision of the industrial commissioner for 
 
         the following proposition:
 
         
 
              Disability * * * as defined by the Compensation Act means 
 
              industrial disability, although functional disability is an 
 
              element to be considered . . . In determining industrial 
 
              disability, consideration may be given to the injured 
 
              employee's age, education, qualifications, experience and 
 
              his inability, because of the injury, to engage in 
 
              employment for which he is fitted. * * * *
 
         
 
         
 
              Claimant is 55 years old and has only a tenth grade 
 
         education.  Claimant has been an equipment mechanic for most of 
 
         his time as an employee of the City of Des Moines.  In the 
 
         last,approximately three years he has been classified as a truck 
 
         driver, but it appears his work is comprised of various manual 
 
         labor duties.
 
         
 
              On March 10, 1987, claimant incurred a work-related right 
 
         shoulder injury which resulted in a surgical resection of the end 
 
         of the distal clavicle.  The parties stipulated as to the various 
 
         periods claimant was healing from this injury.  Claimant's 
 
         healing periods involved approximately three different periods 
 
         from the date of his injury to April 5, 1988, at which time 
 
         claimant returned to work without any further interruption of his 
 
         employment as a result of this injury.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Although claimant was not classified as an equipment 
 
         mechanic at the time of his injury, he had transferable skills as 
 
         a mechanic.  It appears from the evidence that claimant worked as 
 
         an equipment mechanic for several years.  He was classified
 
         
 
         
 
         
 
         WALDEN V. CITY OF DES MOINES, IOWA
 
         Page 5
 
         
 
         
 
         as a truck driver by defendant on June 16, 1986.  Claimant 
 
         contends he cannot do mechanical work any longer due to his 
 
         injury.  Claimant indicated he is unable to grip tightly objects 
 
         he would be required to hold in his right hand.  It appears 
 
         claimant is right-handed.
 
         
 
              Dr. Weatherwax opined claimant had a 5 percent permanent 
 
         partial impairment.  He was the doctor who performed claimant's 
 
         right shoulder surgery.  There are no specific restrictions 
 
         placed on claimant.
 
         
 
              Claimant has no loss of earnings as a result of his March 
 
         10, 1987 injury.  His hourly rate of pay is as much, if not more, 
 
         than it was on March 10, 1987, adjusted as to the normal 
 
         increases.  Loss of earnings is not the only criteria in 
 
         determining industrial disability.  The parties have stipulated 
 
         to everything except the interest and the extent of claimant's 
 
         permanent disability.  Defendant contends claimant is working 
 
         with no loss of income and has no reduction in earning capacity.
 
         
 
              The undersigned finds that claimant is unable to perform or 
 
         limited in performing his trade of equipment mechanic due to his 
 
         injury on March 10, 1987.  Although claimant was not performing 
 
         this trade specifically on March 10, 1987, he currently has lost 
 
         this capacity to some extent as to employability in that field.
 
         
 
              Claimant's medical records show he injured his foot and on 
 
         January 6, 1989, Scott B. Neff, D.O., said: [Claimant] cannot 
 
         work as a truck driver .... He could do sedentary work, but he 
 
         clearly cannot push a clutch and climb in and out of the 
 
         tractor." (Jt. Ex. 71) Claimant recovered from this foot injury, 
 
         but claimant would not have been able to rely on his mechanic 
 
         expertise as a substitute due to his shoulder injury.
 
         
 
              Taking claimant's age, experience, transferable skills, and 
 
         all other criteria to be considered in determining claimant's 
 
         industrial disability, the undersigned finds claimant has a 10 
 
         percent reduction in earning capacity.
 
         
 
              The remaining issue for resolution is whether claimant is 
 
         entitled to interest on the permanent partial disability payments 
 
         defendant paid on September 28, 1988.  The parties stipulated 
 
         that claimant received an industrial disability and any award 
 
         would commence on April 5, 1988.  There is no causal connection 
 
         issue.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              The undersigned cannot determine from the record, after 
 
         considering all the parties stipulations, why defendant waited 
 
         until September 28, 1988 to pay the 5 percent permanent partial 
 
         disability benefits when defendant agrees April 5, 1988 is the 
 
         commencement date for the payment of any permanent partial 
 
         disability benefits.  The undersigned finds claimant is entitled
 
         
 
         
 
         
 
         WALDEN V. CITY OF DES MOINES, IOWA
 
         Page 6
 
         
 
         
 
         to interest accruing at 10 percent on the weekly benefits of 
 
         $230.44 that should have begun on April 5, 1988 up to September
 
         28, 1988.
 
         
 
                                 FINDINGS OF FACT
 
                                        
 
              1. Claimant received a work-related injury on March 10, 1987 
 
         which resulted in a right shoulder impingement syndrome.
 
         
 
              2. Claimant required surgical resection of the end of the 
 
         distal clavicle on February 19, 1988, as a result of claimant's 
 
         work-related right shoulder injury on March 10, 1987.
 
         
 
              3. Claimant incurred a 5 percent permanent impairment of his 
 
         body as a whole as a result of his work-related right shoulder 
 
         injury on March 10, 1987.
 
         
 
              4. Claimant is earning as much money now as he was on the 
 
         date of his March 10, 1987 injury.
 
         
 
              5. Claimant's injury of March 10, 1987 resulted in a 
 
         limitation of claimant's ability to perform equipment mechanic 
 
         work as an employee.
 
         
 
              6. Claimant was classified as a truck driver for defendant 
 
         at the time of his March 10, 1987 injury.
 
         
 
              7. Claimant incurred a reduction in earning capacity as a 
 
         result of his March 10, 1987 work-related injury.
 
         
 
              8. Claimant is entitled to interest at the rate of 10 
 
         percent on the late payment of the 5 percent permanent partial 
 
         disability benefits, which were ultimately paid on September 28, 
 
         1988.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              Claimant has 10 percent industrial disability.
 
         
 
              Claimant is entitled to interest at the rate of 10 percent 
 
         on the late payment of his 5 percent permanent partial disability 
 
         benefits which were ultimately paid by defendant on September 28, 
 
         1988.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
                                      ORDER
 
         
 
              THEREFORE, it is ordered:
 
         
 
              That claimant is entitled to fifty (50) weeks of permanent 
 
         partial disability benefits at the weekly rate of two hundred 
 
         thirty and 44/100 dollars ($230.44), commencing April 5, 1988.
 
         
 
              That claimant is entitled to no additional healing period 
 
         benefits.
 
         
 
         
 
         
 
         WALDEN V. CITY OF DES MOINES, IOWA
 
         Page 7
 
         
 
         
 
              That claimant is entitled to interest at ten percent (10%) 
 
         on the five percent (5%) permanent partial disability benefits at 
 
         the rate of two hundred thirty and 44/100 dollars ($230.44) per 
 
         week as said payments accrued for the period beginning April 5, 
 
         1988 up to and not including September 28, 1988, on which date 
 
         defendant paid five percent (5%) lump sum permanent partial 
 
         disability benefits.
 
         
 
              That defendant pay the accrued weekly benefits in a lump sum 
 
         and shall receive credit against the award for weekly benefits 
 
         previously paid.
 
         
 
              That defendant shall pay interest on the benefits awarded 
 
         herein as set forth in Iowa Code section 85.30.
 
         
 
              That defendant shall pay the costs of this action pursuant 
 
         to Division of Industrial Services Rule 343-4.33.
 
         
 
              That defendant shall file an activity report upon payment of 
 
         this award as requested by this agency pursuant to Division of 
 
         Industrial Services Rule 343-3.1.
 
         
 
              Signed and filed this 27th day of September, 1989.
 
         
 
         
 
         
 
         
 
         
 
         
 
                                         BERNARD J. O'MALLEY
 
                                         DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies to:
 
         
 
         Mr. Robert W. Pratt
 
         Attorney at Law
 
         1913 Ingersoll Ave
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         Des Moines, IA 50309
 
         
 
         Mr. Patrick J. Hopkins
 
         Attorney at Law
 
         City Hail
 
         East First & Locust
 
         Des Moines, IA 50307
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                                         5-1803; 5-3800
 
                                         Filed September 27, 1989
 
                                         Bernard J. O'Malley
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         JAMES WALDEN,
 
          
 
               Claimant,
 
                                         File No. 848283
 
          VS.
 
          
 
          CITY OF DES MOINES, IOWA,      A R B I T R A T I 0 N
 
          
 
               Employer,                 D E C I S I 0 N
 
               Self-Insured,
 
               Defendant.
 
          
 
          
 
         5-1803
 
         
 
              Claimant given a 5 percent permanent impairment rating to 
 
         his body as a whole as a result of his work-related right 
 
         shoulder injury.  Claimant had no loss of income, but his injury 
 
         resulted in a limitation of claimant's ability to perform 
 
         equipment mechanic work as an employee.  Claimant found to have a 
 
         10% industrial disability.
 
         
 
         5-3800
 
         
 
              Interest at 10% on the late payment of 5% permanent partial 
 
         disability payments was awarded.