before the iowa industrial commissioner
 
         ____________________________________________________________
 
                                       :
 
         WENDY J. JOHNSON, f/k/a       :
 
         WENDY J. ROE,                 :
 
                                       :
 
              Claimant,                :
 
                                       :
 
         vs.                           :
 
                                       :         File No. 851160
 
         NORWEST BANK OF FORT DODGE,   :
 
                                       :      A R B I T R A T I O N
 
              Employer,                :
 
                                       :         D E C I S I O N
 
         and                           :
 
                                       :
 
         ZURICH-AMERICAN INSURANCE     :
 
         GROUP,                        :
 
                                       :
 
              Insurance Carrier,       :
 
              Defendants.              :
 
         ___________________________________________________________
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              This is a proceeding in arbitration upon the petition of 
 
         claimant, Wendy J. Johnson, against her employer, Norwest Bank of 
 
         Fort Dodge, and its insurance carrier, Zurich-American Insurance 
 
         Group, defendants.  The case was heard on April 26, 1991, in Fort 
 
         Dodge, Iowa.  The record consists of the testimony of claimant, 
 
         the testimonies of Kevin Paul Krantz, Kim Elizabeth Weinzetl, 
 
         Julie Woods, Cheryl Lynn Morrow, Beverly Allard Worden, Steve 
 
         Koearg, Michelle Diane Todd, and Louise Daniel.  The record also 
 
         consists of the following exhibits:  Joint exhibit l; claimant's 
 
         exhibits 2, 3, 5, 6; and, defendants' exhibit A.  There were many 
 
         duplications and the attorneys are advised to eliminate all 
 
         duplications in the future.
 
         
 
                                      issues
 
         
 
              The issues to be determined are:  1) whether there is a 
 
         causal relationship between the alleged injury and any permanent 
 
         disability; 2) whether claimant is entitled to temporary disabil
 
         ity/healing period benefits or permanent disability benefits; 3) 
 
         the proper rate to use in calculating weekly benefits, if any; 4) 
 
         whether claimant is entitled to certain benefits pursuant to sec
 
         tion 85.27; 5) whether claimant is entitled to section 86.13 
 
         penalties (bifurcated on pre-hearing report and not addressed 
 
         during hearing); and, 6) the responsible party for costs of this 
 
         action.
 
         
 
                                 findings of fact
 
         
 
              The deputy, having heard the testimony and considered all 
 
         the evidence, finds:
 

 
         
 
         Page   2
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
              Claimant is 29 years old.  She is married with one child.  
 
         Claimant has her GED.  She has also taken numerous courses at 
 
         Iowa Central Community College.  At the time of the hearing, 
 
         claimant was enrolled at Des Moines Area Community College in the 
 
         office management course.  The course is a two year program and 
 
         claimant is scheduled to graduate in December of 1991.  While 
 
         attending classes, claimant is working part-time as a cashier at 
 
         a local convenience store where she works 12 to 15 hours per 
 
         week.
 
         
 
              Claimant was hired by defendant-employer in 1984 as a proof 
 
         machine operator.  Her job necessitated sitting, bending and 
 
         twisting.  She was also required to lift 15 pound trays, five 
 
         times per day.
 
         
 
              The parties stipulated that on April 10, 1987, claimant fell 
 
         down a flight of concrete steps and that the injury arose out of 
 
         and in the course of claimant's employment.  Claimant was off 
 
         work for a period of time.  Claimant did return to work in the 
 
         same position.
 
         
 
              On April 11, 1987, claimant first sought medical treatment 
 
         for her work injury.  She sought emergency room treatment at 
 
         Trinity Regional Hospital in Fort Dodge. Dr. Lindquist, M.D., 
 
         (first name unknown) diagnosed claimant's condition as:  "Acute L 
 
         buttock contusion/muscle strain."  X-rays were taken but they 
 
         revealed no abnormalities.
 
         
 
              Claimant sought treatment from her family physician, Jesse 
 
         J. Landhuis, M.D.  He diagnosed claimant's condition as "lumbar 
 
         strain, contusions."  Conservative treatment was prescribed for 
 
         claimant.
 
         
 
              Defendants then authorized treatment for osteopathic manipu
 
         lation by Sara Sutton, D.O.  Dr. Sutton diagnosed claimant's 
 
         condition as "somatic dysfunction or strain of the cervical 
 
         thoracic, lumbar spine and pelvis as well as the rib cage...."  
 
         Dr. Sutton opined claimant "received very severe trauma to her 
 
         musculoskeletal system and persists not only with the somatic 
 
         dysfunctions, but with severe myofascial strain...."  (Joint 
 
         Exhibit l, Sara Sutton, page 4).
 
         
 
              Because of her poor progress, Dr. Sutton referred claimant 
 
         to Steven G. Scott, D.O., at Mayo Clinic.  Dr. Scott diagnosed 
 
         claimant as having:
 
         
 
              She has localized tenderness around the left 
 
              trochanteric processes that reproduce her referred leg 
 
              pain.  In addition, she has localized tenderness over 
 
              the coccygeal muscles and the muscles that attach to 
 
              that region in the pelvic floor region.  Her back exam
 
              ination, both orthopedically and neurologically, was 
 
              completely normal.  She had mild increased amount of 
 
              lumbar lordosis.  Review of outside x-rays were noted 
 
              to be normal.  My impression is she has post-traumatic 
 
              coccycodynia [sic] with mild pelvic floor myalgia.  In 
 

 
         
 
         Page   3
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
              addition, she has left greater trochanteric bursitis, 
 
              probably secondary to chronic muscle contractions and 
 
              guarding from her coccycodynia [sic].  In addition, she 
 
              has mild musculoskeletal low back pain with tension 
 
              myalgia.
 
         
 
                 She has not tried a good physical therapy program 
 
              such as use of ultrasound which she can use both to the 
 
              coccyx area and left trochanteric process.  This can be 
 
              started along with the use of ice at home and exercises 
 
              which we gave her for relaxation and for her back.  It 
 
              was suggested the ultrasound be done daily over a sev
 
              eral week period of time as well as proper back 
 
              instruction, deep set of massage, heat to the gluteal 
 
              and low back region and general isometric strengthening 
 
              as tolerated.  In addition, I prescribed an 
 
              anti-inflammatory medication (Naprosyn 375 mg for ten 
 
              days) and a soft seat cushion to use.  If the above 
 
              does not work, I would recommend a trial of injections 
 
              to the left trochanteric bursa and coccyx.  I think 
 
              this matter should be relieved with time and 
 
              conservative options.  If she has continued symptoms or 
 
              problems, she will get back to us in the future.
 
         
 
              After treating claimant for a period of time, Dr. Scott 
 
         evaluated claimant for a permanent partial disability.  He wrote 
 
         the following to claimant in his letter of May 17, 1989:
 
         
 
                 Enclosed is a copy of your workmen's comp report.  
 
              Also, your permanent and partial disability is at the 
 
              most 3.5% since we do not have any objective evidence 
 
              of permanent injury either by x-ray or EMG.  I hope 
 
              these work restrictions can be of some help to you now 
 
              and in the future....
 
         
 
              Dr. Scott also placed restrictions on claimant.  The 
 
         restrictions were:
 
         
 
              [T]he client was able to perform work at the light 
 
              level work demands as defined by the U.S. Department of 
 
              Labor Dictionary of Occupational Titles based upon the 
 
              assessment results; with the following strength consid
 
              erations:  frequent lifting and carrying be limited to 
 
              10 pounds and occasional carrying to 15 pounds and 
 
              occasional lifting to 25 pounds.  The opportunity to 
 
              sit for 10 to 15 minutes for each hour of standing 
 
              should exist as well as the opportunity to frequently 
 
              change body positions.
 
         
 
              Dr. Scott determined that as of June 6, 1989, claimant had 
 
         reached maximum medical improvement.  Claimant attempted to 
 
         return to her job as bartender at the Holiday Inn.  There was no 
 
         position available to claimant.  Consequently, claimant filed for 
 
         unemployment benefits and she began receiving the same.
 
         
 
              Subsequent to her June 1989 evaluation at Mayo Clinic, 
 
         claimant sought another opinion from James E. Crouse, M.D.  Dr. 
 

 
         
 
         Page   4
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         Crouse examined claimant on July 31, 1989.  The physician held 
 
         the position that:
 
         
 
              On examination this is a healthy appearing, 27 year 
 
              old, white female.  She seems to move around well with
 
              out difficulty.  She has tenderness in the back and 
 
              into the lower thoracic spine to the right of the mid
 
              line in the back and right over the iliac crest.  
 
              Straight leg raise on the left aggravates the discom
 
              fort extending down into the left thigh.  This can be 
 
              done to 90 degrees, however.  Knee and ankle reflexes 
 
              are a trace bilaterally.  She demonstrates giving away 
 
              on muscle testing on the left but strength generally 
 
              seems to be intact otherwise.  Measurements of the 
 
              thighs 4 inches above the patellas is 38 on the right 
 
              and 37 on the left.  Calves are 31 on the right and 30 
 
              on the left.  There are no skin changes.  Pedal pulses 
 
              are intact.  Plantar reflex is down going.  There is 
 
              good motion of the neck.
 
         
 
              X-rays of the back from 1988 were reviewed.  These are 
 
              normal.  We have reports from the Mayo Clinic of bone 
 
              scan and x-rays done in April of 1989 which were 
 
              normal.
 
         
 
              Wendy's history has been reviewed, including notes from 
 
              her home physician in Fort Dodge, Dr. Wahby, as well as 
 
              reports from the Mayo Clinic and physical therapy 
 
              reports.  She has had functional capacity testing.  
 
              Wendy's diagnosis is a sprain of the back, involving 
 
              the lower thoracic spine and the lumbosacral spine, 
 
              with referred pain extending down into the left leg.
 
         
 
              Symptomatic treatment only is indicated.  The func
 
              tional capacity testing at the Mayo Clinic indicated a 
 
              25 lb. maximum lifting, occasionally carrying 15 lbs., 
 
              more frequent lifting up to 10 lbs., sitting 10 to 15 
 
              minutes for each hour of standing.  On the basis of the 
 
              prolonged discomfort and the muscle testing I would 
 
              estimate a 5% permanent impairment of the body as a 
 
              whole.  Wendy was encouraged to carry on with a symp
 
              tomatic treatment program and a fitness program.
 
         
 
              Defendants also authorized Samir R. Wahby, M.D., to treat 
 
         claimant.  Dr. Wahby diagnosed claimant as having a lumbosacral 
 
         and paraspinal strain and he opined claimant had reached her 
 
         maximum recovery around January 14, 1989.  Dr. Wahby opined there 
 
         was no disability.  He did prescribe physical therapy, medication 
 
         and a TENS unit.  Dr. Wahby released claimant to return to work.
 
         
 
              At some point, claimant sought treatment for pain from James 
 
         Blessman, M.D.  Claimant participated in the Pain Center program 
 
         at Mercy Hospital in Des Moines.  She was diagnosed as having 
 
         "Myofascial back pain with essentially normal exam with the 
 
         exception of the pain."
 
         
 
              Upon her release from the program, Dr. Blessman evaluated 
 

 
         
 
         Page   5
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         claimant as follows:
 
         
 
              At this point we do not feel she can lift over 30 lbs. 
 
              maximum on an infrequent basis of more than two or 
 
              three times per day or more than 20 lbs. repetitively.
 
         
 
              As regards her sitting tolerance, we feel it would be 
 
              helpful if she could have the freedom to change sitting 
 
              posture or stand and/or move around for a couple of 
 
              minutes approximately every 1Æ hours strictly on the 
 
              basis of her subject complaints.
 
         
 
              According to the Department of Labor's Dictionary of 
 
              Occupational Titles, a job is classified as being 
 
              sedentary in physical demands if walking and standing 
 
              are occasionally interspersed with sitting and light in 
 
              physical demand if the job involves sitting most of the 
 
              time or requires walking or standing to a significant 
 
              degree even though the weight lifted may be only a 
 
              neglible [sic] amount.
 
         
 
              She did realize improvement in the degree of her pain 
 
              and muscle spasms during her enrollment in the Pain 
 
              Center program and we expect her to continue to improve 
 
              in the future.
 
         
 
              After her release from the Mercy Pain Center, claimant 
 
         engaged in temporary employment as a clerical worker.  In the 
 
         summer of 1990, claimant enrolled as a full time student at Des 
 
         Moines Area Community College in Boone.  At the time of the hear
 
         ing, claimant was still enrolled in school and working part-time.
 
         
 
                                conclusions of law
 
         
 
              The first issue to address is whether claimant is entitled 
 
         to permanent partial disability benefits.
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury is a proximate cause of the disabil
 
         ity 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 circum
 
         stances.  The expert opinion may be accepted or rejected, in 
 
         whole or in part.  Sondag v. Ferris Hardware, 220 N.W.2d 903 
 
         (Iowa 1974); Anderson v. Oscar Mayer & Co., 217 N.W.2d 531 (Iowa 
 

 
         
 
         Page   6
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         1974); Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 
 
         (1965).
 
         
 
              Functional impairment is an element to be considered in 
 
         determining industrial disability which is the reduction of earn
 
         ing capacity, but consideration must also be given to the injured 
 
         employee's age, education, qualifications, experience and inabil
 
         ity to engage in employment for which the employee is fitted.  
 
         Olson v. Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251 
 
         (1963).  Barton v. Nevada Poultry, 253 Iowa 285, 110 N.W.2d 660 
 
         (1961).
 
         
 
              A finding of impairment to the body as a whole found by a 
 
         medical evaluator does not equate to industrial disability.  
 
         Impairment and disability are not synonymous.  The degree of 
 
         industrial disability can be much different than the degree of 
 
         impairment because industrial disability references to loss of 
 
         earning capacity and impairment references to anatomical or func
 
         tional abnormality or loss.  Although loss of function is to be 
 
         considered and disability can rarely be found without it, it is 
 
         not so that a degree of industrial disability is proportionally 
 
         related to a degree of impairment of bodily function.
 
         
 
              Factors to be considered in determining industrial dis
 
         ability include the employee's medical condition prior to the 
 
         injury, immediately after the injury, and presently; the situs of 
 
         the injury, its severity and the length of the healing period; 
 
         the work experience of the employee prior to the injury and after 
 
         the injury and the potential for rehabilitation; the employee's 
 
         qualifications intellectually, emotionally and physically; earn
 
         ings prior and subsequent to the injury; age; education; 
 
         motiva-tion; functional impairment as a result of the injury; and 
 
         in-ability because of the injury to engage in employment for 
 
         which the employee is fitted.  Loss of earnings caused by a job 
 
         transfer for reasons related to the injury is also relevant.  
 
         Like-wise, an employer's refusal to give any sort of work to an 
 
         impaired employee may justify an award of disability.  McSpadden 
 
         v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980).  These are mat
 
         ters which the finder of fact considers collectively in arriving 
 
         at the determination of the degree of industrial disability.
 
         
 
              There are no weighting guidelines that indicate how each of 
 
         the factors are to be considered.  Neither does a rating of func
 
         tional impairment directly correlate to a degree of industrial 
 
         disability to the body as a whole.  In other words, there are no 
 
         formulae which can be applied and then added up to determine the 
 
         degree of industrial disability.  It therefore becomes necessary 
 
         for the deputy or commissioner to draw upon prior experience as 
 
         well as general and specialized knowledge to make the finding 
 
         with regard to degree of industrial disability.  See Peterson v. 
 
         Truck Haven Cafe, Inc., (Appeal Decision, February 28, 1985); 
 
         Christensen v. Hagen, Inc., (Appeal Decision, March 26, 1985).
 
         
 
              Compensation for permanent partial disability shall begin at 
 
         the termination of the healing period.  Compensation shall be 
 
         paid in relation to 500 weeks as the disability bears to the body 
 
         as a whole.  Section 85.34.
 

 
         
 
         Page   7
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
              In the case at hand, claimant has established by a prepon
 
         derance of the evidence the requisite causal connection to a per
 
         manent disability.  Two physicians have provided functional 
 
         impairment ratings for claimant's condition.  Claimant has been 
 
         rated as having a three and one half percent and a five percent 
 
         functional impairment rating.  Both Dr. Scott and Dr. Blessman 
 
         have imposed permanent work restrictions.  Because of her work 
 
         restrictions, claimant has been placed in the light to medium 
 
         employment category.  She has been instructed to move about fre
 
         quently.  She is to walk after having been seated for one and one 
 
         half hours.  The jobs available to claimant have been reduced due 
 
         to claimant's aforementioned restrictions.  She is not capable of 
 
         handling jobs outside of her work restrictions.
 
         
 
              While the jobs available to claimant have been reduced, 
 
         claimant is by no means precluded from meaningful employment.  
 
         Claimant had voluntarily terminated her employment with 
 
         defendant-employer for reasons unrelated to claimant's work 
 
         injury.  After her voluntary termination, claimant had obtained 
 
         other employment which was within claimant's restrictions.  
 
         Claimant also left that employment for reasons, at least par
 
         tially unrelated, to her work restrictions.
 
         
 
              Claimant has many useful skills.  She is enrolled in a com
 
         munity college where she is perfecting her many clerical skills.  
 
         Claimant's prior work experience is an asset.  She possesses 
 
         transferable skills, including accounting and bookkeeping.  
 
         Claimant has been motivated to broaden her education.  Her age is 
 
         a positive factor; she has many more years in the work field.  
 
         Claimant can maintain gainful employment even if she does not 
 
         complete her program at the Community College.
 
         
 
              Therefore, after assessing the exhibits, after reviewing the 
 
         testimony and after observing claimant, it is the determination 
 
         of this deputy that claimant is entitled to a 10 percent perma
 
         nent partial disability.
 
         
 
              The second issue to address is the nature and extent of 
 
         claimant's healing period.
 
         
 
              Section 85.34(1) provides that healing period benefits are 
 
         payable to an injured worker who has suffered permanent partial 
 
         disability until:  (1) the worker has returned to work; (2) the 
 
         worker is medically capable of returning to substantially similar 
 
         employment; or (3) the worker has achieved maximum medical recov
 
         ery.  The healing period can be considered the period during 
 
         which there is a reasonable expectation of improvement of the 
 
         disabling condition.  See Armstrong Tire & Rubber Co. v. Kubli, 
 
         312 N.W.2d 60 (Iowa App. 1981).  Healing period benefits can be 
 
         interrupted or intermittent.  Teel v. McCord, 394 N.W.2d 405 
 
         (Iowa 1986).
 
         
 
              This is a rather complicated issue, given the fact that for 
 
         the first 13 weeks of an absence, defendant-employer pays its 
 
         injured workers 100 percent of the employee's salary and the 
 
         employee then endorses the workers' compensation check over to 
 

 
         
 
         Page   8
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         the employer.  Claimant alleges she is owed healing period bene
 
         fits for the following periods:
 
         
 
              May 25 through June 8, 1987;
 
         October 19, 1987 through October 21, 1987;
 
         January 16, 1988;
 
         February 22, 1988;
 
         March 17, 1988 through March 19, 1988;
 
         March 30, 1988;
 
         April 13, 1988;
 
         April 14, 1988;
 
         April 15, 1988;
 
         May 14, 1988;
 
         June 1, 1988 through November 1, 1988;
 
         January, 1989;
 
         February 27, 1989 through June 1, 1989;
 
         June 1, 1989 through September 30, 1989;
 
         December 1, 1989 through February 5, 1990;
 
         March 19, 1990 through April 6, 1990.
 
         
 
              The record establishes that claimant is entitled to healing 
 
         period benefits for some of the time claimed.  She is not enti
 

 
         
 
         Page   9
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         tled to healing period benefits for all of the aforementioned 
 
         time requested.  The following sets out the determination of the 
 
         undersigned:
 
         
 
              5-25-87 through 6-8-87 - claimant received vacation pay 
 
              in lieu of workers' compensation benefits; no healing 
 
              period benefits due;
 
         
 
              10-19-87 through 10-21-87 - claimant received pay in 
 
              lieu of workers' compensation; no healing period bene
 
              fits due;
 
         
 
              1-16-88 - claimant not due .143 weeks of healing period 
 
              benefits as sick pay paid;
 
         
 
              2-22-88 - claimant not due .143 weeks of healing period 
 
              benefits as sick pay paid;
 
         
 
              3-17-88 through 3-19-88 - no evidence that claimant was 
 
              off due to work injury, no healing period benefits due.
 
         
 
              3-30-88 - claimant not due .143 weeks of healing period 
 
              benefits as sick pay paid;
 
         
 
              4-13-88 through 4-15-88 - claimant not due .429 weeks 
 
              of healing period benefits as off because of son's 
 
              illness;
 
         
 
              5-14-88 - claimant not due .143 weeks of healing period 
 
              benefits; no evidence provided that claimant off work 
 
              due to her back condition;
 
         
 
              6-1-88 to 11-1-88 - claimant due 22 weeks of healing 
 
              period while claimant received physical therapy;
 
         
 
              1-1-89 through 1-31-89 - claimant is entitled to heal
 
              ing period benefits for 4.429 weeks;
 
         
 
              2-27-89 through 6-1-89 - claimant off work per Dr. 
 
              Scott due to back pain; claimant is entitled to 13.571 
 
              weeks of healing period benefits;
 
         
 
              6-1-89 through 9-30-89 - claimant on unemployment as 
 
              ready, willing and able to work; claimant is not enti
 
              tled to healing period benefits;
 
         
 
              12-1-89 through 2-5-90 - claimant's condition had sta
 
              bilized; claimant working at temporary positions; no 
 
              healing period benefits due;
 
         
 
              3-19-90 through 4-6-90 - claimant participated in Mercy 
 
              Pain Center; claimant is entitled to 2.714 weeks of 
 
              healing period benefits.
 
         
 
              The third issue to address is the issue of medical expendi
 
         tures under section 85.27.
 
         
 

 
         
 
         Page  10
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
              The employer shall furnish reasonable surgical, medical, 
 
         dental, osteopathic, chiropractic, podiatric, physical rehabili
 
         tation, nursing, ambulance and hospital services and supplies for 
 
         all conditions compensable under the workers' compensation law.  
 
         The employer shall also allow reasonable and necessary trans
 
         portation expenses incurred for those services.  The employer has 
 
         the right to choose the provider of care, except where the 
 
         employer has denied liability for the injury.  Section 85.27.; 
 
         Holbert v. Townsend Engineering Co., Thirty-second Biennial 
 
         Report of the Industrial Commissioner 78 (Review decision 1975).  
 
         Claimant has the burden of proving that the fees charged for such 
 
         services are reasonable.  Anderson v. High Rise Constr. 
 
         Specialists, Inc., file number 850096 (Appeal Decision 1990).
 
         
 
              Claimant is not entitled to reimbursement for medical bills 
 
         unless claimant shows they were paid from claimant's funds.  See 
 
         Caylor v. Employers Mut. Casualty Co., 337 N.W.2d 890 (Iowa App. 
 
         1983).
 
         
 
              Unauthorized treatment which improves an employee's condi
 
         tion and ultimately may mitigate the employer's liability may 
 
         subsequently be found reasonable and necessary for treatment of 
 
         an injury.  Butcher v. Valley Sheet Metal, 4 Iowa Indus. Comm'r 
 
         Rep. 49 (Appeal Decision 1983); Rittgers v. United Parcel Serv., 
 
         3 Iowa Indus. Comm'r Rep. 210 (Appeal Decision 1982); Hutchinson 
 
         v. American Freight Systems, Inc., I-l Iowa Indus. Comm'r Dec. 94 
 
         (Appeal Decision 1984).
 
         
 
              Claimant requests payment to Title XIX for the charges 
 
         incurred while claimant was at the Mercy Pain Center and for the 
 
         TENS unit which was prescribed by Dr. Blessman.  It is true that 
 
         defendants did not authorize treatment at the Mercy Pain Center.  
 
         However, the treatment was necessitated due to claimant's work 
 
         injury.  The program was beneficial.  Claimant improved after the 
 
         program.  She testified she learned ways to alleviate or tolerate 
 
         pain.  She also testified she could tolerate a 30 pound lift 
 
         after she engaged in the program.  Therefore, it is the determi
 
         nation of the undersigned that defendants are liable for the 
 
         expenses incurred at the Mercy Pain Center.
 
         
 
              Likewise, the same rationale is applied when discussing the 
 
         expense of the TENS unit.  Defendants are liable for this expense 
 
         which was initially paid by Title XIX.  Claimant benefited from 
 
         using the TENS unit.  It should also be noted that defendants' 
 
         authorizing treating physicians originally prescribed this mode 
 
         of therapy.
 
         
 
              Defendants are responsible for the following prescription 
 
         charges:
 
         
 
                      3-16-89  feldene         $14.09
 
                      4-21-89  feldene          41.46
 
                      1-19-90  Atabrine          l.00
 
                                       Total   $56.55
 
         
 
              Defendants are also liable for the charges which claimant 
 
         incurred at Fort Dodge Medical Center.  They are as follows:
 

 
         
 
         Page  11
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
               3-07-91          office visit               $ 31.50
 
               3-20-91          joint injection              48.50
 
               3-20-91          hydrocortisone               10.75
 
               8-03-90          office visit                 29.00
 
               9-20-90          office visit                 29.00
 
              10-03-90          office visit                 29.00
 
              10-09-90          office visit                 27.00
 
              10-09-90          Depo MEDROL                  22.75
 
              10-05-90          exam                         37.00
 
               5-18-90          office visit                 29.00
 
               5-18-90          x-ray spine                  68.00
 
               5-18-90          x-ray spine                  68.00
 
                                                Total      $429.50
 
         
 
              Defendants are to reimburse Title XIX for the aforementioned 
 
         charges.
 
         
 
              The next issue to address is the issue dealing with mileage 
 
         for medical appointments.  Claimant is entitled to $.21 per mile 
 
         for all miles she had driven relative to health care due to this 
 
         work injury.  The claimant is entitled to mileage as follows:
 
         
 
         4-11-87 to 1-05-88       620 miles x .21 = $130.20
 
         Claimant previously paid in full, nothing currently due claimant.
 
         
 
         1-05-88    25 mi x .21 = $5.25     claimant due $5.25
 
         1-18-88    25 mi x .21 = $5.25     claimant due $5.25
 
         1-20-88    25 mi x .21 = $5.25     claimant due $0, prev pd $5.25
 
         2-03-88    25 mi x .21 = $5.25     claimant due $5.25
 
         3-16-88    20 mi x .21 = $4.20     $ .20 due claimant
 
         3-17-88    20 mi x .21 = $4.20     $ .20 due claimant
 
         3-30-88    20 mi x .21 = $4.20     $ .20 due claimant
 
         4-11-88    20 mi x .21 = $4.20     $ .20 due claimant
 
         4-27-88    20 mi x .21 = $4.20     $ .20 due claimant
 
         5-11-88    20 mi x .21 = $4.20     $ .20 due claimant
 
         5-31-88    20 mi x .21 = $4.20     $ .20 due claimant
 
         6-01-88    500 mi x .21 = $105.00  $5.00 due claimant
 
         6-01-88    20 mi x .21 = $4.20     $ .20 due claimant
 
         6-02-88    20 mi x .21 = $4.20     $ .20 due claimant
 
         6-23-88    20 mi x .21 = $4.20     $ .20 due claimant
 
         6-24-88    20 mi x .21 = $4.20     $ .20 due claimant
 
         6-26-88    20 mi x .21 = $4.20     $ .20 due claimant
 
         6-27-88    20 mi x .21 = $4.20     $ .20 due claimant
 
         6-28-88    20 mi x .21 = $4.20     $ .20 due claimant
 
         6-29-88 patient paid 20 mi x .20 = $4.00  claimant overpaid $4.00
 
         6-30-88    20 mi x .20 = $4.00     patient previously paid $4.00
 
                    claimant overpaid $4.00
 
         7-01-88    40 mi x .20 = $8.00     claimant overpaid $8.00
 
                                            $16.00 credit
 
         
 
         7-01-88 to 10-30-88 claimant paid 1015 miles x .20 = $203.00
 
                                                claimant due  $ 10.15
 
                                       12-12-88 claimant due  $   .25
 
                                       12-12-88 claimant due  $   .25
 
         
 
         2-02-89 to 5-06-89            all previously paid
 

 
         
 
         Page  12
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         3-05-90 to 5-02-90  1440 mi x .21 = $302.40  claimant due $302.40
 
         
 
         4-25-90    25 mi x .21 = $5.25     claimant due $5.25
 
         
 
         5-23-90 to 5-25-90    75 mi x .21 = $15.75    claimant due $15.75
 
         
 
                                                 Total        $536.60
 
         
 
              The final issue to address is the rate of claimant's weekly 
 
         benefit.  Claimant's rate is calculated pursuant to section 
 
         85.36(6).  Her regular hourly rate is calculated as 40 x 5.71 per 
 
         hour x 13 = $2,969.20.  Overtime was paid at time and one half.  
 
         Two-thirds of the overtime pay was included in the 13 weeks pre
 
         ceding the injury date.  ($47.12)  ATM pay totals $180.00.  The 
 
         total is $2,969.20 + 47.12 + $180.00 = $3,196.32 which yields 
 
         $245.87 per week.  Claimant was single with one child at the time 
 
         of the hearing.  She is entitled to $157.07 per week.
 
         
 
                                      order
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              Defendants are to pay unto claimant weekly benefits for 
 
         fifty (50) weeks of permanent partial disability at the rate of 
 
         one hundred fifty-seven and 07/l00 dollars ($157.07) per week 
 
         which was to commence on April 6, 1990.
 
         
 
              Defendants are to also pay unto claimant forty-two and 
 
         seven-one-four (42.714) weeks of healing period benefits at the 
 
         rate of one hundred fifty-seven and 07/l00 dollars ($157.07).
 
         
 
              Defendants shall take credit for benefits previously paid 
 
         claimant, and not credited.
 
         
 
              Accrued benefits are to be paid in a lump sum together with 
 
         statutory interest at the rate of ten percent (10%) per year pur
 
         suant to section 85.30, Iowa Code as amended.
 
         
 
              Defendants are responsible for the aforementioned medical 
 
         expenses and defendants shall reimburse Title XIX for the same.
 
         
 
              Defendants shall pay unto claimant five hundred thirty-six 
 
         and 60/100 dollars ($536.60) for medical mileage as aforemen
 
         tioned.
 
         
 
              Costs are taxed to defendants pursuant to rule 343 IAC 4.33, 
 
         including but not limited to:
 
         
 
              Robert Jones                  $150.00
 
              Trinity Regional Hospital       16.25
 
              deposition costs                82.40
 
              F. D. Medical Center            22.25
 
              Mercy record                    10.25
 
              Graphix Print                   32.14
 
              filing fee                      65.00
 
              Family Practice                 25.00
 

 
         
 
         Page  13
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
              Dr. Crouse                     150.00
 
              Orthopedic Specialist           75.00
 
              Orthopedic Specialist           30.00
 
                                     Total  $628.29
 
         
 
              Defendants shall file a claim activity report as requested 
 
         by this division pursuant to rule 343 IAC 3.l.
 
         
 
         
 
         
 
              Signed and filed this ____ day of October, 1991.
 
         
 
         
 
         
 
         
 
         
 
                                       ______________________________               
 
         MICHELLE A. McGOVERN
 
                                       DEPUTY INDUSTRIAL COMMISSIONER
 

 
         
 
         Page  14
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         Copies To:
 
         
 
         Ms. Jeane W. Pearson
 
         Attorney at Law
 
         603 Snell Bldg
 
         Ft. Dodge  IA  50501
 
         
 
         Mr. Robert C. Landess
 
         Attorney at Law
 
         Terrace Center  STE 111
 
         2700 Grand Ave
 
         Des Moines  IA  50312
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                           1803
 
                           Filed October 29, 1991
 
                           MICHELLE A. McGOVERN
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            WENDY J. JOHNSON, f/k/a       :
 
            WENDY J. ROE,                 :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :         File No. 851160
 
            NORWEST BANK OF FORT DODGE,   :
 
                                          :      A R B I T R A T I O N
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            ZURICH-AMERICAN INSURANCE     :
 
            GROUP,                        :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
            
 
            1803
 
            Claimant has sustained her burden of proof with respect to a 
 
            permanent partial disability.  Claimant is awarded a 10 
 
            percent permanent partial disability.  Two physicians have 
 
            provided functional impairment ratings for claimant's 
 
            condition.  Claimant has been rated as having a three and 
 
            one half percent and a five percent functional impairment 
 
            rating.  Two physicians have imposed permanent work 
 
            restrictions.  Because of her work restrictions, claimant 
 
            has been placed in the light to medium employment category.  
 
            She has been instructed to move about frequently.  She is to 
 
            walk after having been seated for one and one half hours.  
 
            The jobs available to claimant have been reduced due to 
 
            claimant's aforementioned restrictions.  She is not capable 
 
            of handling jobs outside of her work restrictions.
 
            While the jobs available to claimant have been reduced, 
 
            claimant is by no means precluded from meaningful 
 
            employment.  Claimant had voluntarily terminated her 
 
            employment with defendant-employer for reasons unrelated to 
 
            claimant's work injury.  After her voluntary termination, 
 
            claimant had obtained other employment which was within 
 
            claimant's restrictions.  Claimant also left that employment 
 
            for reasons, at least partially unrelated, to her work 
 
            restrictions.
 
            Claimant has many useful skills.  She is enrolled in a com
 
            munity college where she is perfecting her many clerical 
 

 
            
 
 
 
 
 
 
 
 
 
 
 
            skills.  Claimant's prior work experience is an asset.  She 
 
            possesses transferable skills, including accounting and 
 
            bookkeeping.  Claimant has been motivated to broaden her 
 
            education.  Her age is a positive factor; she has many more 
 
            years in the work field.  Claimant can maintain gainful 
 
            employment even if she does not complete her program at the 
 
            community college.
 
            Held:  Claimant has a 10 percent permanent partial 
 
            disability.
 
            
 
 
                                                                
 
 
 
 
 
 
 
 
 
 
 
                                                                
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         GEORGE CARSTENS,
 
         
 
              Claimant,                               File No. 851251
 
         
 
         vs.                                       A R B I T R A T I O N
 
         
 
         ARMOUR FOOD COMPANY,                         D E C I S I O N
 
         
 
              Employer,
 
                                                         F I L E D
 
         and
 
                                                        MAY 23 1990
 
         HARTFORD INSURANCE GROUP,
 
                                                    INDUSTRIAL SERVICES
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding in arbitration brought by George A. 
 
         Carstens against his former employer, Armour Food Company, based 
 
         upon an injury of December 22, 1986.  The case was consolidated 
 
         with file number 842920, heard and fully submitted at Mason City, 
 
         Iowa on December 11, 1989.  The evidence in the proceeding 
 
         consists of joint exhibit 1, which contains 39 subparts, and 
 
         exhibit O.  It should be noted that subpart 38 of exhibit 1 is 
 
         the deposition of Thomas Carlstrom, M.D., taken November 13, 1989 
 
         which is also marked as defendants' exhibit K.  Subpart 39 of 
 
         exhibit 1 is a report from Kathryn Bennett dated October 31, 1989 
 
         which is also marked as exhibit J.  The record also contains 
 
         testimony from George Carstens and Kathryn Bennett.
 
         
 
                                      ISSUES
 
         
 
              Claimant seeks compensation for healing period and permanent 
 
         partial disability.  The employer stipulated liability for the 
 
         injury of December 22, 1986, but disputes whether claimant's 
 
         disability was proximately caused by that injury.  The rate of 
 
         compensation in the event of an award was stipulated to be 
 
         $202.82 per week.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              George A. Carstens is a 51-year-old man who lives at Mason 
 
         City, Iowa.  He completed the eighth grade in Norfolk, Nebraska 
 
         and subsequently a GED in 1973 or 1974.
 
         
 
              Carstens' work history includes a hatchery for three or four 
 
         years where he pulled hatches, graded eggs and culled chickens. 
 
         Commencing in 1957, he entered employment with Mode-O-Day, a 
 
         women's apparel manufacturer, where he remained employed until 
 
         1984.  He started as a cutter's helper and moved through 
 
         positions such as shipping clerk and cutter in order to 
 
         eventually become plant manager of the Mason City plant.  In 
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         1979, he moved to Ohio to manage a cutting center for the 
 
         employer, but returned to Mason City in 1983 and worked as a 
 
         cutting room foreman until the plant closed in 1984.  At the time 
 
         of the closing, he was earning $9.75 per hour and had a full 
 
         compliment of fringe benefits.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Carstens took two years off work subsiding on unemployment 
 
         and plant closing benefits.  In May, 1986, he obtained employment 
 
         at Armour Food Company.  He eventually bid into the skinning room 
 
         where he skinned bellies.  On December 22, 1986, while standing 
 
         at the skinning table, an empty loin tree, weighing approximately 
 
         90 pounds, fell striking him in the middle of his upper back.  He 
 
         was groggy and remained off work for approximately an hour, but 
 
         then resumed working.  He sustained a low back injury in January 
 
         from which he recovered and returned to work in early February.  
 
         That injury is the subject of file number 842920.
 
         
 
              According to claimant, he had experienced upper back pain 
 
         ever since the December incident and the pain gradually worsened. 
 
         On February 26, 1987, claimant made complaint to Michael W. 
 
         Crane, M.D., his treating orthopaedic surgeon, of pain and spasms 
 
         in the thoracic region of his spine (progress notes, exhibit E to 
 
         exhibit 1-38).  At the same time, claimant was obtaining 
 
         treatment for an intestinal disorder.  On April 1, 1987, he was 
 
         hospitalized and diagnosed as having discitis, a disc space 
 
         infection at the T8-9 level of his spine.  The biopsy taken was 
 
         consistent with a chronic osteomyelitis condition.  Cultures 
 
         failed to identify any microscopic infectious organism (exhibit 
 
         1-9, 1-10 and 1-11).  The disc disintegrated.
 
         
 
              Commencing September 21, 1987, claimant returned to work on 
 
         a 4-hour per day basis.  At that time, his pain had improved.  He 
 
         worked on the ham line for which he was paid $7.75 per hour and 
 
         partial workers' compensation benefits.  After approximately one 
 
         month, he again went off work, only to subsequently return on a 
 
         part-time basis.  Claimant continued working on a part-time 
 
         basis, gradually increasing his work hours, until December, 1987 
 
         when he was laid off.  He has not since returned to work at 
 
         Armour.  The record does not contain a concise showing which 
 
         would permit a determination of the actual days of work and the 
 
         amounts earned.
 
         
 
              Claimant obtained a job in May, 1989 where he worked as an 
 
         attendant at a self-service gas station.  He ran the cash 
 
         register and was able to sit or stand as he deemed appropriate.  
 
         He quit after four months because he stated that the pain in his 
 
         back became more than he could endure.  Claimant has not since 
 
         sought any other employment.  He explained that the gas station 
 
         job is one which anyone could have done.  He feels that he is 
 
         unable to perform any type of gainful employment.  Claimant 
 
         stated that he was told by a representative of Armour that they 
 
         would not have any work within his medical restrictions.
 
         
 
              Claimant has been treated and evaluated extensively by a 
 
         number of physicians.  Dr. Crane and Des Moines orthopaedic 
 
         surgeon Thomas A. Carlstrom, M.D., have both rated claimant as 
 
         having an eight percent permanent impairment of the body as a 
 
         whole due to the condition of his thoracic spine (exhibit 1-38, 
 
         pages 10 and 11; exhibit 1-30).  Dr. Carlstrom opined that 
 
         claimant is capable of gainful employment with a restriction 
 
         against lifting more than 45 pounds and against repetitive 
 
         lifting of more than 30 pounds (exhibit 1-38, page 11).  He felt 
 
         that claimant could perform the jobs which had been listed by 
 
         vocational consultant Kathryn Bennett.  Dr. Crane placed 
 
         claimant's lifting restriction at 25 pounds (exhibit 1-30).  
 
         While Dr. Crane initially declined to make a causal connection, 
 
         he subsequently explained that he was unable to state with 
 
         medical certainty what the cause for the discitis had been, but 
 
         that the injury correlated with the beginning of the pain and 
 
         that such was circumstantial evidence of a connection (exhibit 
 
         1-31).  Dr. Carlstrom expressed the opinion that the discitis was 
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         related to the December 22, 1986 trauma (exhibit 1-32; exhibit 
 
         1-33; exhibit 1-38, pages 9-12).  It is found that Dr. 
 
         Carlstrom's assessment of causation is correct.  It is loosely 
 
         corroborated by Dr. Crane and is not directly contradicted by any 
 
         evidence in the record. Exhibit 1-16, at page 23 in the first 
 
         paragraph on the right column which deals with osteomyelitis, 
 
         states:  "Hematogenous infection is frequently preceded by blunt 
 
         trauma to the affected bone."  This is precisely the scenario 
 
         which this case presents.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              When deposed in November, 1989, Dr. Carlstrom stated that 
 
         claimant had reached maximum improvement in the late summer of 
 
         1987 (exhibit 1-38, page 10).  The treating physician, Dr. Crane, 
 
         reported that maximum healing was reached on June 20, 1988 
 
         (exhibit 1-24, page 34).  On February 15, 1988, he had reported 
 
         that claimant had not yet reached maximum medical improvement 
 
         (exhibit 1-27).  When claimant was seen at the Minnesota Spine 
 
         Center on May 10, 1988, it was recommended that he engage in an 
 
         exercise program (exhibit 1-28).  Upon reviewing the record 
 
         through hindsight, it is found that claimant was able to increase 
 
         the number of hours that he worked from four hours when he 
 
         initially returned to work up to five or six hours when the 
 
         December layoff occurred.  It was not until June 20, 1988 that 
 
         Dr. Crane determined that further improvement would not be 
 
         forthcoming.
 
         
 
              George Carstens continues to experience pain and discomfort 
 
         on a continual basis.  He has a definite defect in his thoracic 
 
         spine which resulted from the December 22, 1986 trauma.  Drs. 
 
         Crane and Carlstrom have both rated him as having an eight 
 
         percent permanent impairment of the whole person.  Dr. 
 
         Carlstrom's assessment of claimant's capabilities is less 
 
         restrictive than the assessment made by Dr. Crane.  While the 
 
         assessments are not irreconcilable, greater weight is given to 
 
         Dr. Carlstrom's opinion.  He is a well-regarded, experienced 
 
         neurosurgeon.  Dr. Crane's experience and qualifications are not 
 
         contained in the record of this case beyond the fact that he is 
 
         an orthopaedic surgeon.  Both physicians are certainly adequately 
 
         qualified, but the record presented shows Dr. Carlstrom's 
 
         qualifications to be superior.  For that reason, his assessment 
 
         of the case is given greater weight.
 
         
 
              Kathryn Bennett, a qualified vocational consultant, 
 
         expressed the opinion that claimant is generally qualified for a 
 
         number of light-duty jobs which are available in the Cerro Gordo 
 
         county area where claimant resides.  The median or average for 
 
         the wages paid for those positions is in the range of $5.50-$6.00 
 
         per hour (exhibit 1-39).
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              Claimant has the burden of proving by a preponderance of the 
 
         evidence that he received an injury on December 22, 1986 which 
 
         arose out of and in the course of his employment.  McDowell v. 
 
         Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. 
 
         Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
              The words "arising out of" refer to the cause or source of 
 
         the injury.  McClure v. Union County, 188 N.W.2d 283, 287 (Iowa 
 
         1971); Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 402, 68 
 
         N.W.2d 63 (1955).  The "arising out of" requirement is satisfied 
 
         by showing a causal relationship between the employment and the 
 
         injury.  Sheerin v. Holin Co., 380 N.W.2d 415, 417 (Iowa 1986).
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury of December 22, 1986 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).
 
         
 
              The employer admitted that the incident of the loin tree 
 
         striking claimant occurred.  Dr. Carlstrom related the discitis 
 
         condition to that trauma.  There is no evidence that the final 
 
         opinion of any other physician upon the issue of causation 
 
         contradicted that of Dr. Carlstrom in any manner other than to 
 
         express uncertainty regarding the cause.  It is therefore 
 
         determined that the discitis condition and all the resulting 
 
         disability connected with the condition of claimant's thoracic 
 
         spine was proximately caused by the incident of December 22, 1986 
 
         when he was struck by the loin tree.  It is concluded that the 
 
         injury arose out of and in the course of employment.
 
         
 
              Claimant seeks to recover compensation for healing period 
 
         and temporary partial disability.  The record made in this case 
 
         does not permit the undersigned to determine what days the 
 
         claimant actually worked and what earnings he actually received.  
 
         Without that information, a computation of the healing period and 
 
         temporary partial disability entitlement cannot be made.  It is 
 
         determined, however, that the healing period ended June 20, 1988 
 
         as indicated by Dr. Crane.  Healing period ends at the time when 
 
         the medical practitioner determines that recovery has progressed 
 
         as far as possible.  It is often made at the time that the extent 
 
         of permanent disability or impairment can be determined.  It is 
 
         not determined through hindsight.  Thomas v. William Knudson & 
 
         Son, Inc., 349 N.W.2d 124, 126 (Iowa App. 1984); Armstrong Tire & 
 
         Rubber Co. v. Kubli, 312 N.W.2d 60, 65 (Iowa App. 1981).  It is 
 
         concluded that claimant is entitled to recover healing period or 
 
         temporary:partial disability, as the facts may warrant, from 
 
         April 1, 1987 when he was hospitalized for his upper back 
 
         condition until June 20, 1988 when he reached maximum medical 
 
         improvement.
 
         
 
              As 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.2d 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."
 
         
 
              Functional impairment is an element to be considered in 
 
         determining industrial disability which is the reduction of 
 
         earning capacity, but consideration must also be given to the 
 
         injured employee's age, education, qualifications, experience and 
 
         inability to engage in employment for which he is fitted.  Olson 
 
         v. Goodyear Service Stores, 255 Iowa 1112, 1121, 125 N.W.2d 251, 
 
         257 (1963).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Industrial disability or loss of earning capacity is a 
 
         concept that is quite similar to impairment of earning capacity, 
 
         an element of damage in a tort case.  Impairment of physical 
 
         capacity creates an inference of lessened earning capacity.  The 
 
         basic element to be determined, however, is the reduction in 
 
         value of the general earning capacity of the person, rather than 
 
         the loss of wages or earnings in a specific occupation.  
 
         Post-injury earnings create a presumption of earning capacity.  
 
         The earnings are not synonymous with earning capacity and the 
 
         presumption may be rebutted by evidence showing the earnings to 
 
         be an unreliable indicator.  Carradus v. Lange, 203 N.W.2d 565 
 
         (Iowa 1973); Holmquist v. Volkswagon of America, Inc., 261 N.W.2d 
 
         516 (Iowa App. 1977) A.L.R.3d 143; Michael v. Harrison County, 
 
         34th Biennial Report, 218 (1979); 2 Larson Workmen's Compensation 
 
         Law, sections 57.21 and 57.31.
 
         
 
              The assessment of claimant's employability as made by 
 
         Kathryn Bennett is reasonable, consistent with general experience 
 
         and the expertise of this agency.  Claimant's complaints seem to 
 
         be somewhat out of proportion to the impairment ratings and 
 
         activity restrictions recommended by Drs. Crane and Carlstrom.  
 
         Dr. Carlstrom's evaluation of claimant's physical capabilities 
 
         has been determined to be correct.  When considering all the 
 
         pertinent factors of industrial disability, it is determined that 
 
         George A. Carstens sustained a 30 percent permanent partial 
 
         disability as a result of the December 22, 1986 injury.  This 
 
         entitles him to receive 150 weeks of compensation payable 
 
         commencing June 21, 1988.
 
         
 
                                      ORDER
 
         
 
              IT IS THEREFORE ORDERED that defendants pay George A. 
 
         Carstens one hundred fifty (150) weeks of compensation for 
 
         permanent partial disability at the stipulated rate of two 
 
         hundred two and 82/100 dollars ($202.82) per week payable 
 
         commencing June 21, 1988.
 
         
 
              IT IS FURTHER ORDERED that defendants pay George A. Carstens 
 
         compensation for healing period or temporary partial disability, 
 
         whichever is appropriate, commencing April 1, 1987 and running 
 
         through June 20, 1988.
 
         
 
              IT IS FURTHER ORDERED that defendants are entitled to full 
 
         credit for all amounts of weekly compensation previously paid and 
 
         shall pay any accrued but unpaid benefits in a lump sum together 
 
         with interest pursuant to Iowa Code section 85.30.
 
         
 
              IT IS FURTHER ORDERED that the costs of this proceeding are 
 
         assessed against defendants pursuant to Division of Industrial 
 
         Services Rule 343-4.33.
 
         
 
              IT IS FURTHER ORDERED that defendants file claim activity 
 
         reports as requested by this agency pursuant to Division of 
 
         Industrial Services Rule 343-3.1.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Signed and filed this 23rd day of May, 1990.
 
         
 
         
 
         
 
         
 
         
 
         
 
                                            MICHAEL G. TRIER
 
                                            DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Robert W. Pratt
 
         Attorney at Law
 
         1913 Ingersoll Avenue
 
         Des Moines, Iowa  50309
 
         
 
         Mr. Marvin E. Duckworth
 
         Attorney at Law
 
         Suite 111, Terrace Center
 
         2700 Grand Avenue
 
         Des Moines, Iowa  50312
 
         
 
         
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
                                                 
 
 
 
 
 
 
 
 
 
 
 
                                                 1108.50, 1402.30, 1801.1
 
                                                 1802, 1803
 
                                                 Filed May 23, 1990
 
                                                 MICHAEL G. TRIER
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         GEORGE CARSTENS,
 
         
 
              Claimant,
 
         
 
         vs.
 
                                                    File No. 851251
 
         ARMOUR FOOD COMPANY,
 
                                                 A R B I T R A T I 0 N
 
              Employer,
 
                                                    D E C I S I 0 N
 
         and
 
         
 
         HARTFORD INSURANCE GROUP,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         1108.50, 1402.30
 
         
 
              Claimant developed a discitis condition which caused the 
 
         disintegration of the disc between the eighth and ninth thoracic 
 
         vertebrae.  One well-regarded neurosurgeon related the condition 
 
         to a blunt trauma which the claimant had sustained.  The other 
 
         medical evidence indicated that the cause was questionable.  No 
 
         cause other than the blunt trauma was suggested.  It was 
 
         determined that the condition was an injury which arose from the 
 
         blunt trauma.  Defendants were held liable.
 
         
 
         1801.1, 1802
 
         
 
              The evidence failed to show what days claimant had worked 
 
         following the injury and the weekly earnings while he was working 
 
         limited hours under medical restrictions.  An award of precise 
 
         healing period or temporary partial disability could not be made. 
 
         Healing period was held to have ended at the time when the 
 
         treating orthopaedic surgeon determined that further improvement 
 
         was not forthcoming, rather than an earlier date which hindsight 
 
         arguably showed to have been the time when improvement had 
 
         ceased.
 
         
 
         1803
 
         
 
              Vocational consultant testimony was accepted to demonstrate 
 
         the existence and wage scales for light work consistent with the 
 
         medical restrictions.  Claimant awarded 30 percent permanent 
 
         partial disability.
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
 
            
 
 
 
         
 
 
 
 
 
                   
 
                        BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         JUDITH NOBLE,
 
         
 
              Claimant,                               File Nos. 851309
 
                                                                857575
 
         vs.
 
                                                   A R B I T R A T I O N
 
         LAMONI PRODUCTS,
 
                                                      D E C I S I O N
 
              Employer,
 
         
 
         and                                             F I L E D
 
         
 
         LIBERTY MUTUAL INSURANCE CO.,                  SEP 29 1989
 
         
 
              Insurance Carrier,                    INDUSTRIAL SERVICES
 
              Defendants.
 
         
 
         
 
                                INTRODUCTION
 
         
 
              This is a proceeding in arbitration brought by Judith Noble, 
 
         claimant, against Lamoni Products, employer, and Liberty Mutual 
 
         Insurance Company, insurance carrier, for benefits as the result 
 
         of an alleged injury of a ganglion which occurred on September 
 
         16, 1986, and another alleged injury of bilateral carpal tunnel 
 
         syndrome which occurred on December 10, 1986.  A hearing was held 
 
         in Des Moines, Iowa, on August 8, 1989, and the case was fully 
 
         submitted at the close of the hearing.  The record consists of 
 
         the testimony of Judith Noble, claimant, Joint Exhibits I, with 
 
         subparts A through H; III and IV and Defendants' Exhibits A and 
 
         B. Defendant objected to Joint Exhibit II for the reason that it 
 
         was not timely served pursuant to paragraph six of the hearing 
 
         assignment order.  Claimant conceded that it was not timely 
 
         served.  Therefore, Joint Exhibit II was not admitted into 
 
         evidence, but remains with the record for purposes of appeal. 
 
         Claimant was represented by Steven C. Jayne.  Defendants were 
 
         represented by Jon K. Hoffmann.  Both attorneys submitted 
 
         excellent briefs.  The deputy ordered a transcript of the 
 
         hearing.
 
         
 
                               STIPULATIONS
 
         
 
              The parties stipulated to the following matters:
 
         
 
              As to both injuries the parties stipulated that an 
 
         employer-employee relationship existed between claimant and 
 
         employer at the time of the alleged injuries; that the alleged 
 
         injuries were the cause of temporary disability; that claimant's 
 
         entitlement to medical benefits has been or will be paid by 
 
         defendants; that defendants make no claim for credit for benefits 
 
         paid prior to hearing either under an employee nonoccupational 
 
                                                
 
                                                         
 
         group health plan or as workers' compensation permanent partial 
 
         disability benefits; and that there are no bifurcated claims.
 
         
 
              As to the alleged injury of September 16, 1986; claimant was 
 
         paid temporary disability benefits from March 30, 1987 to April 
 
         26, 1987, and that claimant's entitlement to temporary disability 
 
         benefits from that injury is no longer in dispute; that the 
 
         commencement date for permanent partial disability benefits, in 
 
         the event of an award, is April 27, 1987; and that the proper 
 
         rate of compensation, in the event of an award, is $115.99 per 
 
         week.
 
         
 
              As to the alleged injury of December 10, 1986; that claimant 
 
         was paid temporary disability benefits from October 5, 1987 to 
 
         February 12, 1988, and that claimant's entitlement to temporary 
 
         disability benefits from that injury is no longer in dispute; 
 
         that the commencement date for permanent partial disability 
 
         benefits, in the event of an award, is February 13, 1988; and 
 
         that the proper rate of compensation in the event of an award is 
 
         $120.65 per week.
 
         
 
              The hearing assignment order designated odd-lot and penalty 
 
         benefits as issues in this case, but claimant withdrew these 
 
         issues, on the record, at the time of hearing.
 
         
 
                                  ISSUES
 
         
 
              The parties submitted the following issues for determination 
 
         at the time of the hearing:
 
         
 
              Whether claimant sustained a ganglion injury on September 
 
         16, 1986, and a bilateral carpal tunnel injury on December 10, 
 
         1986, which arose out of and in the course of employment with 
 
         employer.
 
         
 
              Whether either injury was the cause of permanent 
 
              disability.
 
         
 
              Whether claimant is entitled to permanent disability 
 
         benefits, and if so, the nature and extent of benefits.
 
         
 
              Whether claimant sustained an occupational disease under 
 
         Chapter 85A of the Code of Iowa.
 
         
 
                          SUMMARY OF THE EVIDENCE
 
         
 
              Claimant, age 47, was employed by employer from November 18, 
 
         1983, until July 2, 1987, a period of approximately three and 
 
         one-half years.  (transcript pages 18 &-47).  She denied any 
 
         previous disorders of the hands, arms or neck.  She performed 
 
         various jobs for employer such as building crossbody harnesses on 
 
         a steel jig, quality control officer and blocking ripcords(tr. p. 
 
         18).  Claimant described the repetitive nature of her work taping 
 
         wires beginning in January of 1986, which required continuous 
 
         wrist flexion and extension.  She completed one harness every 70 
 
                                                
 
                                                         
 
         seconds.  She worked eight hours a day.  She received two breaks 
 
         and one-half hour for lunch (tr. pp. 20-24).  After 30 days on 
 
         this job, the feeling was going out of her hands.  The supervisor 
 
         saw claimant shaking her hands to restore the feeling and 
 
         transferred claimant to blocking ripcords.  Blocking ripcords 
 
         required putting two wires and a terminal into a connector.  It 
 
         was a push, click, tug operation. With a partner she performed 
 
         this operation 3,500 times a day.  When she worked alone, claimant 
 
         could produce 2,100 of these items by herself (tr. pp. 25-28).
 
         
 
              Employer described this job as follows in answers to 
 
              interrogatories:
 
         
 
                   40 hrs.-Last job was blocking ripcords which involves 
 
              placing terminal into the connector and closing lock. 
 
              Sitting or standing optional.  Lifting 3 to 4 pounds 
 
              maximum with minimal bending and stooping.  Claimant was 
 
              able to perform her work 1/16/86 through 7/2/87 which was 
 
              termination date.
 
         
 
         (Joint Exhibit III, p. 94)
 
         
 
              Claimant differed with this job description by stating that 
 
         the wires weighed a great deal more and you had to bend down to 
 
         the floor, pick them up, put them on a rack, transfer them to 
 
         another rack, block them, and transfer them back to the rack 
 
         again (tr. pp. 31 & 32).
 
         
 
              The job transfer helped at first, but eventually she 
 
         developed numbness in her forearms that went up to her elbows and 
 
         down to her fingers (tr. pp. 35 & 36).  Claimant stated that she 
 
         developed a ganglion when her left wrist and thumb swelled up.  
 
         She reported it to her supervisor who sent her to see Philip J. 
 
         Sullivan, M.D. (tr. pp. 37 & 38).  Dr. Sullivan recorded a lump on 
 
         the left wrist on September 16, 1986 (JE I, p. 30).  Claimant 
 
         stated she also developed bilateral carpal tunnel syndrome by 
 
         gradual worsening of the numbness in her hands.  She reported it 
 
         to her supervisor, who reported it to the office, and she was sent 
 
         to see Dr. Sullivan again (tr. pp. 37-40).  Dr. Sullivan recorded 
 
         that, "her right arm goes numb," on December 10, 1986 (JE I, p. 
 
         31).  Accident reports were completed for each of these incidents 
 
         for the company by Dr. Sullivan (JE I, pp. 33 & 34).
 
         
 
              Dr. Sullivan referred claimant to William R. Boulden, M.D., 
 
         an orthopedic surgeon.  Claimant saw Dr. Boulden five times: 
 
         December 18, 1986, January 2, 1987, January 15, 1987, January 29, 
 
         1987 and March 12, 1987.  Dr. Boulden requested an EMG and also 
 
         referred claimant to a vascular surgeon.  He diagnosed mild early 
 
         carpal tunnel syndrome of the right wrist which in his opinion 
 
         did not justify surgery at that time.  He recommended instead 
 
         that she be rotated around to different jobs.  He did recommend 
 
         excision of the ganglion on the left wrist (JE I, pp. 1-6; tr. 
 
         pp. 41-45).
 
         
 
              The ganglion excision was actually performed by Maurice K. 
 
                                                
 
                                                         
 
         Borklund, M.D., at Decatur County Hospital on March 30, 1987 (JE 
 
         I, pp. 1-25 & 31).  It was stipulated that claimant was off work 
 
         from March 30, 1987 through April 26, 1987, as a result of this 
 
         of this surgery.
 
         
 
              Dr. Sullivan ordered physical therapy for the carpal tunnel 
 
         syndrome on June 17, 1987, June 19, 1987, and July 23, 1987 (JE 
 
         I, pp. 26 & 27).
 
         
 
              Claimant did not like Dr. Boulden and Dr. Sullivan then 
 
         referred her to Arnis Grundberg, M.D., an orthopedic surgeon, on 
 
         July 6, 1987 (JE I, p. 32; tr. p. 46), even though claimant was 
 
         no longer working at the plant after July 2, 1987 (tr. p. 53).  
 
         Dr. Grundberg diagnosed bilateral carpal tunnel on July 17, 1987.  
 
         He decompressed the right carpal and ulnar tunnels on October 5, 
 
         1987 (tr. pp. 48 & 49) and decompressed the left carpal tunnel on 
 
         December 2, 1987 (JE I, pp. 38-45); tr. pp. 53 & 54).  Dr. 
 
         Grundberg said that the carpal tunnel was work related in a 
 
         medical report form.  In response to the question:  "Is condition 
 
         due to injury or sickness arising out of patient's employment?" 
 
         Dr. Grundberg checked "Yes" (JE I, p. 43).  He wrote in a letter 
 
         dated October 19, 1987, "Her bilateral carpal tunnel syndrome is 
 
         work related."  (JE I, p. 45).  On July 21, 1989, Dr. Grundberg 
 
         told claimant's attorney, "I expect 3% impairment of the right 
 
         hand and 3% impairment of the left hand due to the residuals of 
 
 
 
                          
 
                                                         
 
         carpal tunnel syndrome."  (JE I, p. 46).
 
         
 
              Claimant was independently examined by Ronald S. Bergman, 
 
         D.O., on June 22, 1989, for a disability rating as the result of 
 
         all three surgeries.  Dr. Bergman specializes in surgery of the 
 
         hand.  He assessed a 2 percent impairment of the right upper 
 
         extremity due to decreased active range of motion and 3 percent 
 
         impairment of the left upper extremity due to decreased active 
 
         range of motion (JE I, p. 50).  In a separate letter dated July 
 
         24, 1989, Dr. Bergman said that the bilateral carpal tunnel 
 
         syndromes were a direct cause of her position with employer and 
 
         the use of her hands in repetitive motion (JE I, p. 52).
 
         
 
              The parties stipulated that claimant was off work as a 
 
         result of the two carpal tunnel surgeries from October 5, 1987 to 
 
         February 2, 1988.  Even though she had updated her application a 
 
         number of times she was not rehired.  Claimant believed that the 
 
         plant closed in March of 1988.  (tr. p. 55).  Claimant contended 
 
         that defendants did not recall persons who had had trouble with 
 
         their hands (tr. p. 58).  Claimant was working in a convenience 
 
         store at the time of hearing for $3.75 per hour without employee 
 
         benefits.  Her job with employer paid $4.70 per hour and provided 
 
         overtime, life insurance, retirement plan and paid vacation. 
 
         Claimant contented she made approximately $11,000 to $12,000 for 
 
         employer whereas now, in 1988, she only earned around $2,000 from 
 
         the Industrial Hardfacing Co. and $3,000 at the convenience store 
 
         from September of 1988 until the end of the year (tr. pp. 
 
         72-74).
 
         
 
              Claimant testified she finds it difficult to use a needle, 
 
         sleep as she formerly did, pull laundry out of the washing 
 
         machine, hold onto soapy dishes and unscrew jar lids (tr. pp. 73, 
 
         74 & 78).  Claimant contended she was not rehired because of her 
 
         injury, whereas, employer contended she was involuntarily 
 
         terminated because she did not get along well with her 
 
         supervisors (tr. pp. 96-99, 105-108, 113 & 114; Ex. A, pp. 2, 5 & 
 
         6; JE I, pp. 115, 117 & 118).
 
         
 
              Claimant said Dr. Grundberg did not place any restrictions 
 
         on her per se, but said that if she returned to repetitive work 
 
         the chances were one in four that the carpal tunnel would return 
 
         (tr. p. 102).  This is confirmed by the doctors notes (JE I, p. 
 
         38). Claimant testified that out of 20 employees who were laid 
 
         off when she was, four of them had trouble with their hands (tr. 
 
         p. 112).
 
                                        
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              Claimant has the burden of proving by a preponderance of the 
 
         evidence that she received injuries on September 16, 1986 and 
 
         December 10, 1986, which arose out of and in the course of her 
 
         employment.  McDowell v. Town of Clarksville, 241 N.W.2d 904 
 
         (Iowa 1976); Musselman v. Central Telephone Co., 261 Iowa 352, 
 
         154 N.W.2d 128 (1967).
 
         
 
                                                
 
                                                         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injuries of September 16, 1986 and December 
 
         10, 1986 are causally related to the disability on which she now 
 
         bases her claim.  Bodish v. Fischer, Inc., 257 Iowa 516, 133 
 
         N.W.2d 867 (1965).  Lindahl v. L.O. Boggs, 236 Iowa 296, 18 
 
         N.W.2d 607 (1945).  A possibility is insufficient; a probability 
 
         is necessary.  Burt v. John Deere Waterloo Tractor Works, 247 
 
         Iowa 691, 73 N.W.2d 732 (1955).  The question of causal 
 
         connection is essentially within the domain of expert testimony.  
 
         Bradshaw v. Iowa Methodist 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).
 
         
 
              Claimant did not sustain the burden of proof by a 
 
         preponderance of the evidence that the ganglion was an injury 
 
         which arose out of and in the course of her employment with 
 
         employer.  Claimant testified that she twisted her left wrist 
 
         somehow taking wires out of a tub and that caused the wrist to 
 
         swell up (tr. p. 37).  Dr. Sullivan recorded on September 16, 
 
         1986, that she hurt it at work, but this entry is so faint, it 
 
         cannot be completely deciphered (JE I, p. 30).  Dr. Sullivan 
 
         completed an accident report on September 16, 1986, which noted 
 
         that claimant, "Has been having a bump develop on her left wrist 
 
         for the past week.  It started when she twisted her wrist wrong 
 
         at work."  (JE I, p. 33).  Dr. Boulden did not comment on the 
 
         history or the cause of the ganglion (JE I, p. 3).  Dr. Borklund 
 
         did not indicate in his office notes (JE I, p. 31) or in the 
 
         hospital surgical records (JE I, p. 7-25) what caused the 
 
         ganglion.  The etiology, cause or work relatedness of a ganglion 
 
         is primarily a medical question.  The question of causal 
 
         connection is essentially within the domain of expert testimony.  
 
         Bradshaw, 251 Iowa 375, 101 N.W.2d 167 (1960).  There is no 
 
         letter, medical report or deposition from any of these three 
 
         treating or examining physicians which addresses the question of 
 
         whether the ganglion was caused by claimant's employment.  
 
         Apparently none of these three doctors was asked point blank for 
 
         an opinion as to whether employment was the cause of the 
 
         ganglion.  Therefore, it is determined that claimant did not 
 
         sustain the burden of proof by a preponderance of the evidence 
 
         that she sustained an injury on September 16, 1986, which arose 
 
         out of and in the course of employment with respect to the 
 
         ganglion.
 
         
 
                                                
 
                                                         
 
              Claimant did prove by a preponderance of the evidence that 
 
         she sustained bilateral carpal tunnel syndrome on December 10, 
 
         1986, which arose out of and in the course of employment with 
 
         employer.  On December 10, 1986, Dr. Sullivan reported, "right 
 
         arm goes numb at work."  (JE I, p. 31).  Dr. Sullivan completed 
 
         an accident report on December 10, 1986, stating that claimant 
 
         had numbness in the thumb and index finger of the right hand 
 
         which radiated up to the elbow on the dorsum of the right wrist 
 
         and that his impression was probably carpal tunnel (JE I, p. 34).  
 
         After referring claimant to a vascular surgeon and ordering an 
 
         EMG, Dr. Boulden ruled out thoracic outlet syndrome and other 
 
         provisional diagnoses and settled on overuse syndrome and carpal 
 
         tunnel syndrome (JE I, pp. 1 & 2).  Dr. Grundberg diagnosed 
 
         bilateral syndrome, worse on the right (JE I, p. 38).  On October 
 
         19, 1987, Dr. Grundberg said, "Her bilateral carpal tunnel 
 
         syndrome is work related."  (JE I, p. 45).  Dr. Bergman said on 
 
         July 24, 1989, "I do believe that the bilateral carpal tunnel 
 
         syndromes that she sustained was a direct cause of her position 
 
         at Lamoni Products, that being use of her hands in a repetitive 
 
         motion." (JE I, p. 1 52).
 
         
 
              Dr. Grundberg awarded a 3 percent impairment of each hand. 
 
         (JE I, p. 46).  Dr. Bergman awarded 2 percent impairment of the 
 
         right upper extremity and 3 percent of the left upper extremity 
 
         (JE I, P. 50).  Both surgical reports show that the incision was 
 
         in the palm of the hand.  (JE I, pp. 48 & 49).  For this reason, 
 
         and also to give deference to the treating physician, it is 
 
         determined that claimant has sustained a 3 percent permanent 
 
         impairment to each hand.  Rockwell Graphic Systems vs. Prince, 
 
         366 N.W.2d 187, 1982 (Iowa 1985).  It is further determined that 
 
         this is a loss of both hands caused by a single accident pursuant 
 
         to Iowa Code section 85.34 (2)(s).  Accordingly, 3 percent of the 
 
         hand converts to 3 percent of the upper extremity.  (Guides to 
 
         the Evaluation of Permanent Impairment, third edition, table 2, 
 
         p. 19).  Three percent of the upper extremity converts to 2 
 
         percent of the whole person.  (Guides, table 3, p. 20).  Two 
 
         percent of the whole person for each upper extremity combines to 
 
         4 percent of the body as a whole.  (Guides, combined values 
 
         charts, p. 246).
 
         
 
              Wherefore, it is determined that claimant did sustain an 
 
         injury of bilateral carpal tunnel syndrome on December 10, 1986, 
 
         which arose out of and in the course of her employment with 
 
         employer; that the injury was the cause of permanent disability; 
 
         and that claimant is entitled to 20 weeks of permanent partial 
 
         disability benefits based upon a combined functional impairment 
 
         of 4 percent of 500 weeks of benefits pursuant to Iowa Code 
 
         section 85.34(2)(s).
 
         
 
              Claimant contends she sustained an occupational disease and 
 
         is entitled to industrial disability benefits pursuant to Iowa 
 
         Code chapter 85A.  Claimant concedes that the Iowa Supreme Court 
 
         has not addressed the issue of whether carpal tunnel syndrome is 
 
         an occupational disease.  Carpal tunnel syndrome is considered to 
 
         be an occupational disease in many jurisdictions.  1B Larson, 
 
                                                
 
                                                         
 
         Workmens' Compensation Law,  41.33(b) and 41.42.  The decisions 
 
         of Iowa Industrial Commissioner David E. Linquist in Peters vs. 
 
         Lamoni Auto Assemblies, Inc., file no. 809203 (Appeal Decision, 
 
         March 31, 1989) and Himschoot vs. Montezuma Manufacturing, file 
 
         nos. 672778 & 738235 (Appeal Decision April 15, 1988), which held 
 
         that carpal tunnel syndrome is not an occupational disease are 
 
         currently pending judicial review.  They are, however, binding 
 
         upon the undersigned in this case.  Claimant theorizes that she 
 
         has sustained an occupational disease as defined by Iowa Code 
 
         section 85A.8 and is disabled as defined in Iowa Code section 
 
         85A.4 and therefore, is entitled to industrial disability 
 
         benefits.  (Claimant's brief, p. 13.)  Claimant further relies on 
 
         the words of the Iowa Supreme Court in McSpadden vs. Big Ben Coal 
 
         Co., 288 N.W.2d 181, 190 (Iowa 1980), which said that when the 
 
         Code of Iowa was amended in 1973 that the definition of 
 
         occupational diseases was broadened and the definition of injuries 
 
         was narrowed.  Claimant adds that carpal tunnel is within the 
 
         genre of bursitis, synovitis and tenosynovitis.  These items were 
 
         specifically named as diseases before the amendment in 1973.  
 
         Since the supreme court has stated that Iowa Code chapter 85A 
 
         broadened the definition of occupational diseases in 1973, then 
 
         bursitis, synovitis, tenosynovitis, and carpal tunnel syndrome 
 
         which is a manifestation of tenosynovitis are still occupational 
 
         diseases.
 
         
 
              Claimant did not produce any medical evidence that would 
 
         enable the decider of fact and law to support a decision that 
 
         carpal tunnel is an occupational disease.  The only evidence is 
 
         claimant's testimony that four other persons, who were layed off 
 
         when she was, had problems with their hands. (tr. p. 112). 
 
         Claimant conceded that there is no Iowa Supreme Court decision 
 
         which supports her contention.  At the same time, there is an 
 
         Iowa Supreme Court decision squarely in point which was decided 
 
 
 
                          
 
                                                         
 
         after the McSpadden case.  This Iowa Supreme Court case clearly 
 
         held that compression of the ulnar nerve in both wrists is a 
 
         single injury which, after surgery, resulted in 3 percent 
 
         permanent physical impairment of each upper extremity and 
 
         resulted in 4 percent combined functional disability, was to be 
 
         evaluated and compensated as a scheduled member disability under 
 
         Iowa Code section 85.34(2)(s).  The issue of the condition being 
 
         an occupational disease had not been raised by the parties and 
 
         was not addressed by the court.  The court pointed out that prior 
 
         to 1974 this injury would have been evaluated and compensated 
 
         industrially.  However, after a 1974 amendment, "We conclude that 
 
         amendment to paragraph (s) clearly makes the paragraph a 
 
         scheduled disability subject to functional evaluation.  The plain 
 
         and unambiguous language in the amendment of paragraph (s) which 
 
         sets out a definite schedule of benefits shows a clear intent by 
 
         the legislature to make the loss of two members a scheduled loss. 
 
         Simbro vs. De Long's Sportswear, 332 N.W.2d 886, 889 (Iowa 
 
         1983).
 
         
 
              Moreover, it is determined that claimant did not prove 
 
         disablement as required by Iowa Code section 85A.4.  She did not 
 
         prove she was actually incapacitated from performing her work or 
 
         from earning equal wages in other suitable employment.  The 
 
         operating physician, Dr. Grundberg, did not restrict claimant 
 
         from returning to her former jobs of taping or blocking ripcords. 
 
         Neither did Dr. Bergman impose any restrictions or limitations. 
 
         Claimant apparently felt capable of performing her former jobs 
 
         because she testified that she tried several times to be 
 
         reemployed at those jobs with employer.  There was at least one 
 
         lay off in July of 1987 and the plant closed in 1988.  Employer 
 
         is not liable for the effects of economic conditions which affect 
 
         the work force as a whole.  Webb v. Lovejoy Construction Co.,
 
         II Iowa Industrial Commissioner Report 430 (Appeal Decision
 
         1981).  Furthermore, claimant was possibly limited in how much 
 
         she could earn because she did not own an automobile.  Claimant 
 
         testified that her job search was limited to within 15 blocks 
 
         from home.  The evidence was in conflict as to whether claimant 
 
         was not rehired because of the fact that she had sustained an 
 
         injury and had filed a workers' compensation claim or whether she 
 
         was not rehired because in the company's opinion that she did not 
 
         get along well with supervisory personnel.  Claimant did not 
 
         produce an expert vocational rehabilitation evidence to prove 
 
         either incapacity to perform her old job or earn equal wages in 
 
         suitable employment.
 
         
 
              It should also be noted that in the McSpadden case the Iowa 
 
         Supreme Court was dealing with pneumoconiosis which affects the 
 
         body as a whole and in Blacksmith vs. All-American, 290 N.W.2d 
 
         348 (1980) the court was dealing the thrombophlebitis, which, 
 
         although it existed in the left leg, if activated, would affect 
 
         the body as a whole.
 
         
 
              Wherefore, it is determined that claimant did not sustain an 
 
         occupational disease as defined by Iowa Code section 85A.8 and 
 
         that claimant is not disabled as defined by Iowa Code section 
 
                                                
 
                                                         
 
         85A.4.
 
         
 
              There is at least a fair possibility that if the Iowa 
 
         Supreme Court did determine that carpal tunnel syndrome was an 
 
         occupational disease that it might also determine that it is to 
 
         be evaluated and compensated functionally as a scheduled member 
 
         injury pursuant to ICS 85A.16 and ICS 85A.17 which provide as 
 
         follows:
 
         
 
              85A.16  Reference to compensation law.
 
                   The provisions of the workers' compensation law, so far 
 
              as applicable, and not inconsistent herewith, shall apply in 
 
              cases of compensable occupational diseases as specified and 
 
              defined herein.
 
         
 
              85A.17  Disability.
 
         
 
                   Compensation payable under this chapter for temporary 
 
              disability, permanent total disability or permanent partial 
 
              disability, shall be such amounts as are provided under the 
 
              workers' compensation law.
 
         
 
              This is the pattern of the few agency decisions that have 
 
         determined joint inflammations were occupational diseases.
 
         
 
              Tenosynovitis was recognized as an occupational disease and 
 
         claimant was entitled to have the disability evaluated 
 
         industrially when a shoulder injury (disease), from performing 
 
         production line work, extended into the trapezius and affected 
 
         the body as a whole.  Johnson v. Franklin Manufacturing Co., 34 
 
         Biennial Rep. Iowa Indus. Comm'r 152, 154 (Appeal decision August 
 
         30, 1978).
 
         
 
              Another shoulder injury, which resulted from repetitive 
 
         work, which resulted in tendonitis of the rotator cuff, was 
 
         evaluated and eventually compensated industrially.  Cahalan vs. 
 
         Oscar Mayer, IV Iowa Indus. Comm'r Report 53, 55 (Appeal Decision 
 
         July 29, 1983) and Cahalan vs. Oscar Mayer, Vol 2, No. 1, State 
 
         of Iowa Indus. Comm'r Decisions 288, 291 decided October 4, 1984.  
 
         The second decision was a review-reopening decision.  Shoulder 
 
         injuries (diseases) are typically determined to be injuries to 
 
         the body as a whole.
 
         
 
              By comparison, a case of carpal tunnel syndrome to the right 
 
         hand which was determined to be an occupational disease was 
 
         evaluated and compensated based on a functional impairment of a 
 
         scheduled member.  Hall vs. Backman Sheet Metal, Vol. I, No. 3, 
 
         State of Iowa Indus. Comm'r Decisions 595, 600 decided February 
 
         25, 1985).
 
         
 
              Whether knowingly or by happenstance, the fact is that each 
 
         of these agency decisions followed the mandate of Iowa Code 
 
         section 85A.16 and Iowa Code section 85A.17.  Body as a whole 
 
         injuries were evaluated and compensated industrially; the 
 
         scheduled member case was evaluated functionally and awarded 
 
                                                
 
                                                         
 
         scheduled member disability benefits.
 
         
 
                              FINDINGS OF FACT
 
         
 
              Wherefore, based upon the evidence presented, the following 
 
         findings of fact are made:
 
         
 
              That claimant was employed by employer for approximately 
 
         three and one-half years from November 18, 1983 to July 2, 1987.
 
         
 
              That claimant performed a number of repetitive jobs with her 
 
         hands and wrists during that period of time.
 
         
 
              That claimant developed a ganglion on the dorsum of her left 
 
         wrist on September 16, 1986.
 
         
 
              That there is no medical evidence from the doctors that 
 
         examined or treated the ganglion that it was caused by or related 
 
         to her employment with employer.
 
         
 
              That claimant developed bilateral carpal tunnel on December 
 
         10, 1986.
 
         
 
              That both Dr. Grundberg, the treating physician, and Dr. 
 
         Bergman, the evaluating physician, stated that the bilateral 
 
         carpal tunnel syndrome was caused by her employment with 
 
         employer.
 
         
 
              That Dr. Grundberg, the treating physician, awarded a 3 
 
         percent permanent functional impairment rating to each hand, 
 
         which also was the highest rating using the AMA Guides, even 
 
         though Dr. Bergman used the right upper extremity in his rating.
 
         
 
              That Dr. Grundberg's rating is preferred over Dr. Bergman's 
 
         rating because it is more accurate by rating the hand and he is 
 
         the treating physician.
 
         
 
              That claimant did not introduce factual evidence of either a 
 
         lay nature or a medical nature to prove that her bilateral carpal 
 
         tunnel syndrome was an occupational disease.
 
         
 
              That claimant's bilateral carpal tunnel syndrome is 
 
         determined to be an injury rather than an occupational disease.
 
         
 
                             CONCLUSIONS OF LAW
 
         
 
              WHEREFORE, based on the evidence presented and the foregoing 
 
         principles of law, the following conclusions of law are made:
 
         
 
              That claimant did not sustain the burden of proof by a 
 
         preponderance of the evidence that she sustained an injury 
 
         arising out of and in the course of employment on September 16, 
 
         1986, with respect to the ganglion that developed on her left 
 
         wrist.
 
         
 
                                                
 
                                                         
 
              That claimant did sustain the burden of proof by a 
 
         preponderance of the evidence that she did sustain an injury of 
 
         bilateral carpal tunnel syndrome on December 10, 1986, which 
 
         arose out of and in the course of her employment with employer.
 
         
 
              That claimant did sustain the burden of proof by a 
 
         preponderance of the evidence that the bilateral carpal tunnel 
 
         injury was the cause of permanent disability.
 
         
 
              That claimant is entitled to 20 weeks of permanent partial 
 
         disability benefits based on a combined 4 percent permanent 
 
         functional impairment applied to 500 weeks pursuant to Iowa Code 
 
         section 85.34(2)(s).
 
         
 
              That claimant did not sustain the burden of proof by a 
 
         preponderance of the evidence that she sustained an occupational 
 
         disease by the development of bilateral carpal tunnel syndrome.
 
         
 
                                   ORDER
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              That defendants pay to claimant twenty (20) weeks of 
 
         permanent partial disability benefits at the stipulated rate of 
 
         one hundred twenty and 65/100 dollars ($120.65) in the total 
 
         amount of two thousand four hundred thirteen dollars ($2,413) 
 
         commencing on February 13, 1988, as stipulated to by the 
 
         parties.
 
         
 
              That these benefits are to be paid in a lump sum.
 
         
 
              That interest will accrue pursuant to Iowa Code section 
 
         85.30.
 
 
 
                                   
 
                                                         
 
         
 
              That defendants are charged with the costs of this 
 
         proceeding pursuant to Division of Industrial Services Rule 
 
         343-4.33, including the cost of the transcript.
 
         
 
              That defendants file claim activity reports as requested by 
 
         this agency pursuant to Division of Industrial Services Rule 
 
         343-3.1.
 
         
 
              Signed and filed this 29th day of September, 1989.
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
                                            WALTER R. McMANUS, JR.
 
                                            DEPUTY INDUSTRIAL 
 
                                            COMMISSIONER
 
         
 
         Copies to:
 
         
 
         Mr. Steven Jayne
 
         Attorney at Law
 
         5835 Grand Ave STE 201
 
         Des Moines, Iowa  50312
 
         
 
         Mr. W.C. Hoffmann
 
         Mr. Jon Hoffmann
 
         Mr. Joseph Happe
 
         Attorneys at Law
 
         500 Liberty Bldg.
 
         Des Moines,  IA 50309
 
 
 
 
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                       51106; 51108.40; 51108.50
 
                                       51401; 51402.20; 51402.30;
 
                                       51402.40; 51803; 52209; 2203
 
                                       Filed September 29, 1989
 
                                       Walter R. McManus, Jr.
 
         
 
                 BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         JUDITH NOBLE,
 
         
 
              Claimant,
 
         
 
         vs.                                         File Nos. 851309
 
                                                               857575
 
         LAMONI PRODUCTS,
 
                                                  A R B I T R A T I 0 N
 
              Employer,
 
                                                     D E C I S I 0 N
 
         and
 
         
 
         LIBERTY MUTUAL INSURANCE CO.,
 
         
 
              Insurance  Carrier,
 
              Defendants.
 
         
 
         
 
         51106; 51108.40; 51108.50; 51401; 51402.20; 51402.30; 51402.40; 
 
         51803; 52209
 
         
 
              Claimant did not prove that a ganglion on her left wrist was 
 
         caused by her employment.  Three doctors either treated it or 
 
         examined it and there was no opinion by any of them whether it 
 
         was or was not employment related.  "Arising out of" in the case 
 
         of a ganglion is a medical question and there was no medical 
 
         evidence that the ganglion was caused by claimant's employment.
 
         
 
              Claimant did prove that she sustained bilateral carpal 
 
         tunnel syndrome caused by her employment performing repetitive 
 
         tasks for employer.  Claimant awarded benefits under Iowa Code 
 
         section 85.34(2)(s) pursuant to the rating of the treating 
 
         physician rather than the evaluating physician.
 
         
 
         2203
 
         
 
              Bilateral carpal tunnel syndrome was determined to be an 
 
         injury and not an occupational disease following agency precedent 
 
         in Peters and Himschoot and the principles set for in Simbro. 
 
         Blacksmith and McSpadden distinguished.  Agency decisions that 
 
         have held that carpal tunnel and related inflammations were 
 
         occupational diseases were reviewed, Johnson, Cahalan, and Hall. 
 
         If an analyst or deputy knows of any other agency decision which 
 
         determined bilateral carpal tunnel or related inflammation was an 
 
         occupational disease, please let me know about the case.  As 
 
         dicta, it was offered that even if bilateral carpal tunnel were 
 
                                                
 
                                                         
 
         determined to be an occupational disease that it would still be 
 
         evaluated functionally and compensated as a scheduled member 
 
         injury pursuant to Iowa Code section 85A.16 and 85A.17.
 
 
 
 
 
         
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            FAITH KRUSE,                  :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 851322
 
            K PRODUCTS,                   :
 
                                          :  A R B I T R A T I O N
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            GENERAL CASUALTY COMPANY,     :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding in arbitration brought by Faith 
 
            Kruse, claimant, against K-Products, employer and General 
 
            Casualty, insurance company, defendants, to recover benefits 
 
            as a result of an alleged injury of March 31, 1987.  This 
 
            matter came on for hearing before the undersigned deputy 
 
            industrial commissioner on May 16, 1990, in Storm Lake, 
 
            Iowa, and was considered fully submitted at the close of the 
 
            record.  The record in this case consists of the testimony 
 
            of claimant; Harlan Kruse, her husband; Pam Hawf, supervisor 
 
            of press tab and quality control; Lila Boltjes, supervisor 
 
            of crown tape and button department; claimant's exhibits 1 
 
            through 28, inclusive, and defendants' exhibits A through L, 
 
            inclusive.
 
            
 
                                      issues
 
            
 
                 Pursuant to the prehearing report and order submitted 
 
            and approved May 16, 1990, the following issues are 
 
            presented for resolution:
 
            
 
                 1.  Whether claimant, on March 31, 1987, sustained an 
 
            injury which arose out of and in the course of her 
 
            employment;
 
            
 
                 2.  Whether the injury is the cause of the disability 
 
            on which claimant now bases her claim;
 
            
 
                 3.  The extent, if any, of claimant's entitlement to 
 
            weekly disability benefits; and
 
            
 
                 4.  The extent of entitlement to medical benefits 
 
            pursuant to Iowa Code section 85.27.
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
         
 
                                 findings of fact
 
         
 
              The undersigned deputy industrial commissioner, having heard 
 
         the testimony and considered all of the evidence submitted, finds 
 
         that:
 
         
 
              Claimant began employment with defendant employer July 26, 
 
         1974, and throughout her tenure essentially held a job in the 
 
         crown tape department where she put tapes on the inside of caps 
 
         to cover the seams.  Claimant described the job as involving 
 
         lifting and carrying boxes, twisting, bending, turning, and 
 
         pulling to sew the tapes.  Claimant is currently employed by 
 
         defendants in the press department where she steams and quality 
 
         inspects caps.  At the time of her injury, claimant had an 
 
         average weekly wage of $175.28 for the 13 weeks prior to the 
 
         injury.  According to testimony, claimant's average weekly wage 
 
         for the 13 weeks prior to February 16, 1990, is $235.28.  
 
         
 
              Claimant underwent some chiropractic adjustments as early as 
 
         1966 (transcript page 23, line 25; p. 24 lines 1-2) and was 
 
         treated in 1985 for severe low back pain which she attributed to 
 
         a February 10, 1984, slip and fall.
 
         
 
              Claimant gradually began to experience occasional back aches 
 
         in 1987, but explained that:
 
         
 
              And then about the first part of March or around there, 
 
              then it started getting -- occurring more.  And I 
 
              started really getting concerned when the pain started 
 
              going into my legs because I never had any trouble with 
 
              my legs.  It just stayed in my back and I would have an 
 
              adjustment by the chiropractor and I would be fine.  
 
              But when it affected my legs, then I started thinking 
 
              that maybe this was something different.
 
         
 
         (transcript page 28)
 
         
 
              After seeing G. Richard Van Beek, D.C., claimant saw Steven 
 
         C. Ferguson, M.D., who started her on a physical therapy program.  
 
         Without relief, claimant saw William V. Watson, M.D., board 
 
         certified orthopedic surgeon, who, on August 11, 1987, stated:
 
         
 
                 I am the orthopedic surgeon who is taking care of 
 
              Faith Kruse.  I have, apparently, made a mistake in my 
 
              dictation dating back to 5-15-87.  The patient had told 
 
              me that she had broken her arm 31/2 years ago, and I 
 
              misinterpreted this as 2 years ago.  I also 
 
              misinterpreted that she had told me she had hurt her 
 
              back at that time.  This is not the case.  I feel this 
 
              is my mistake, and I am sorry if there has been any 
 
              misunderstanding here.  I feel the back pain which she 
 
              currently has was not related to the fall.  I feel that 
 
              it is completely related to the type of work she is 
 
              doing.
 
         
 
         (claimant's exhibit 9, page 73)
 

 
         
 
         Page òòò  3        
 
         
 
         
 
         
 
         
 
              Claimant was referred to Dennis L. Johnson, M.D., of Midwest 
 
         Orthopedic Center, P.A., who, on September 22, 1987, noted:
 
         
 
                 Faith Kruse had about 95% relief of pain for about a 
 
              half day after the facet injections by Dr. Sanchez.  
 
              This would tend to indicate that the symptoms were 
 
              coming from the L5-S1 level where she does have some 
 
              degenerative facet changes....She says that her work 
 
              made her back symptoms much worse, so she has not been 
 
              working since she last saw me.  The surgery 
 
              alternatives and complications have been thoroughly 
 
              discussed with her with regards to a[n] L5-S1 
 
              laminectomy and fusion with possible internal fixation 
 
              using Steffee plate and screws and bank bone....I would 
 
              anticipate that she will be off work for about 12 weeks 
 
              after the surgery.  It will take about 9 months for the 
 
              fusion to be solid.  
 
         
 
         (defendants' exhibit I, page 5)
 
         
 
              On September 30, 1987, claimant, "underwent decompressive 
 
         laminectomy and disc excision L5-S1 with excisional biopsy 
 
         osteochondroma right L5 lamina; with posterolateral fusion L5-S1 
 
         and Steffee plate internal fixation." (def. ex. I, p. 5).  The 
 
         diagnosis noted by Dr. Johnson on October 5, 1987, was 
 
         degenerative facet changes at L5-S1.
 
         
 
              By December 29, 1987, Dr. Johnson noted claimant was stating 
 
         she was essentially asymptomatic and she was released to return 
 
         to part-time employment January 4, 1988, for two weeks and 
 
         full-time employment thereafter.  On August 30, 1988, Dr. Johnson 
 
         noted:
 
         
 
              ...She does not feel that her back is back to 100%.  
 
              She still feels that there is something wrong with her 
 
              back....The pain that she has, I think, is consistent 
 
              with metal reaction and bursa over the metal.  I would 
 
              recommend that she consider metal removal and the 
 
              surgery alternatives and complications have been 
 
              discussed with her and she is going to decide whether 
 
              or not she wants it out.  I think she is going to have 
 
              to be off work about six weeks in order to get this 
 
              accomplished.
 
         
 
         (defendants' exhibit I, page 12)
 
         
 
              On September 12, 1988, claimant underwent metal removal of 
 
         the Steffee plate and screws.  Claimant was released to return to 
 
         work on or about November 1, 1988.  On January 4, 1989, Dr. 
 
         Johnson opined:
 
         
 
              She continues to have low back pain without evidence of 
 
              true radiculopathy and believe that her pain is 
 
              muscular in origin.
 
         
 
              ...
 
         
 
              On the basis of her one level discectomy and one level 
 
              fusion with above clinical findings, it is our opinion 
 

 
         
 
         Page òòò  4        
 
         
 
         
 
         
 
              that the patient has a permanent partial physical 
 
              impairment rating of 10 percent of the lumbar spine 
 
              equal to 10 percent of the whole person.
 
         
 
         (defendants' exhibit I, page 16)
 
         
 
              Claimant returned to see Dr. Johnson August 22, 1989, with 
 
         mid to low back pain and right leg numbness.  Dr. Johnson 
 
         injected the trigger area and recommended an MRI be done.  The 
 
         MRI showed arachnoiditis, but no evidence of stenosis or 
 
         herniated disc or nerve root impingement.  Dr. Johnson noted that 
 
         there was no effective treatment for arachnoiditis and assigned 
 
         an additional 5 percent permanent partial impairment rating on 
 
         that basis.  Dr. Johnson expressed his opinion that:
 
         
 
              A.  I think the patient had some pre-existing disc 
 
              disease at L5-S1 and degenerative facet disease at 
 
              L5-S1.  The degenerative facet disease is the normal 
 
              wear and tear arthritis that all of us will get 
 
              eventually, should we live long enough.  Some of us 
 
              will get it at a much earlier age than others.  I felt 
 
              that the combination of mild bulging of the disc at 
 
              L5-S1 and the increased pressure from the facets 
 
              posteriorly combined to narrow the canal to such degree 
 
              that it caused her symptoms much the same as a 
 
              herniated disc will do, although the disc, on studies, 
 
              was not completely herniated.
 
         
 
              Q.  Doctor, do you have an opinion based on reasonable 
 
              medical certainty as to whether or not the medical 
 
              problem that Mrs. Kruse had and that you treated arose 
 
              from or arose out of her employment with K-Products of 
 
              Orange City, Iowa?
 
         
 
              A.  Yes.
 
         
 
              Q.  And what is your opinion, Doctor?
 
         
 
              A.  It is my opinion that the sitting position and the 
 
              type of work she was doing did aggravate that condition 
 
              to the point that it gave symptoms which were 
 
              significant enough to require surgery.
 
         
 
         (claimant's exhibit 1, pages 13 & 14)
 

 
         
 
         Page òòò  5        
 
         
 
         
 
         
 
         
 
              Claimant underwent a functional assessment at the Midwest 
 
         Back Center on August 15, 1988.  Philip C. Moe, R.P.T., 
 
         assessment specialist, reported:  
 
         
 
              This has been identified as a valid representation of 
 
              Faith's present safe physical capabilities, based on 
 
              consistancies [sic] in her grip and resistance 
 
              dynamoemters [sic], pulse rate variation, weights 
 
              achieved and pain reports and pain behaviors when 
 
              interfacing.  This would indicate that the levels 
 
              identified in this Assessment, do represent Faith's 
 
              present safe capabilities, and can and should be used 
 
              as guidelines for her return to work.
 
         
 
         (defendants' exhibit A, page 1) (See defendants' exhibit A, pages 
 
         4 and 5 for the specifics of the functional assessment overview.)
 
         
 
              Claimant was evaluated by Peter D. Wirtz, M.D., on January 
 
         22, 1990.  Dr. Wirtz concluded:
 
         
 
              This patient's records reveal that she has been 
 
              symptomatic in the cervical or lumbar spine as early as 
 
              June, 1976, Chiropractor Kragt records as well as 
 
              ongoing through her present surgical condition.  The 
 
              symptoms being more persistent in 1987 culminated in 
 
              diagnostic studies which revealed her to have a 
 
              degenerate L5-S1 facet which on routine X-ray was 
 
              anomalous in position and developed such degeneration.  
 
              Her work condition would have been aggravatory in this 
 
              condition but not cause nor would the work activity 
 
              been any more of an aggravation than normal daily 
 
              activities with her history of a sitting type of work 
 
              and twisting.
 
         
 
              The surgical condition noted by Dr. Johnson was one of 
 
              a degenerate facet as well as a bulging degenerate 
 
              disc.  Neither of these conditions is elicited by any 
 
              one specific history of injury nor the patient's work 
 
              activities a condition that would be causative for this 
 
              condition as the sole cause.
 
         
 
              Her postoperative condition would be a diagnosis of 
 
              fusion at L5-S1 with a disc removal at L5-S1.  Her 
 
              present physical examination to include range of motion 
 
              and neurologic as well as postoperative diagnostic MRI 
 
              study do not reveal a condition that would be 
 
              functionally impairing as to her physiologic strength 
 
              and dexterity.  She is capable of functiong [sic] 
 
              within her normal physiologic strength on a routine 
 
              basis.  This postoperative condition would relate to a 
 
              5% impairment of the body as it relates to the disc 
 
              removal and another 5% impairment of the body as it 
 
              relates to the disc fusion culminating in a 10% 
 
              impairment of the body as a whole.
 
         
 
         (defendants' exhibit D, page 4)
 

 
         
 
         Page òòò  6        
 
         
 
         
 
         
 
         
 
         
 
                         conclusions of law and analysis
 
         
 
              Of first concern is whether or not claimant sustained an 
 
         injury arising out of and in the course of her employment and 
 
         whether the disability on which she bases her claim was caused by 
 
         her employment.
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the alleged injury actually occurred and that 
 
         it arose out of and in the course of employment.  McDowell v. 
 
         Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. 
 
         Cent. Tel. Co., 261 Iowa 352, 154 N.W.2d 128 (1967).  The words 
 
         "arising out of" refer to the cause or source of the injury.  The 
 
         words "in the course of" refer to the time, place and 
 
         circumstances of the injury.  Sheerin v. Holin Co., 380 N.W.2d 
 
         415 (Iowa 1986); McClure v. Union County, 188 N.W.2d 283 (Iowa 
 
         1971).
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury is a proximate cause of the 
 
         disability on which the claim is based.  A cause is proximate if 
 
         it is a substantial factor in bringing about the result; it need 
 
         not be the only cause.  A preponderance of the evidence exists 
 
         when the causal connection is probable rather than merely 
 
         possible.  Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa 
 
         1980); Holmes v. Bruce Motor Freight, Inc., 215 N.W.2d 296 (Iowa 
 
         1974).
 
         
 
              The question of causal connection is essentially within the 
 
         domain of expert testimony.  The expert medical evidence must be 
 
         considered with all other evidence introduced bearing on the 
 
         causal connection between the injury and the disability.  The 
 
         weight to be given to any expert opinion is determined by the 
 
         finder of fact and may be affected by the accuracy of the facts 
 
         relied upon by the expert as well as other surrounding 
 
         circumstances.  The expert opinion may be accepted or rejected, 
 
         in whole or in part.  Sondag v. Ferris Hardware, 220 N.W.2d 903 
 
         (Iowa 1974); Anderson v. Oscar Mayer & Co., 217 N.W.2d 531 (Iowa 
 
         1974); Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 
 
         (1965).
 
         
 
              There can be no dispute that claimant suffered from a 
 
         preexisting back condition as the records of E.J. Kragt, D.C. and 
 
         G. Richard Van Beek, D.C., record claimant's complaints of back 
 
         problems as early as 1976.  Further, the records of William V. 
 
         Watson, M.D., indicate claimant suffered from "marked 
 
         degenerative joint disease on the right at L5-S1." (def. ex. F, 
 
         p. 3).  Dennis Johnson, M.D., claimant's treating orthopedic 
 
         surgeon, also found marked degeneration of the facet more than he 
 
         would expect to find in a woman claimant's age.
 
         While a claimant is not entitled to compensation for the results 
 
         of a preexisting injury or disease, its mere existence at the 
 
         time of a subsequent injury is not a defense.  Rose v. John Deere 
 
         Ottumwa Works, 247 Iowa 900, 76 N.W.2d 756 (1956).  If the 
 
         claimant had a preexisting condition or disability that is 
 
         materially aggravated, accelerated, worsened or lighted up so 
 

 
         
 
         Page òòò  7        
 
         
 
         
 
         
 
         that it results in disability, claimant is entitled to recover.  
 
         Nicks v. Davenport Produce Co., 254 Iowa 130, 115 N.W.2d 812 
 
         (1962); Yeager v. Firestone Tire & Rubber Co., 253 Iowa 369, 112 
 
         N.W.2d 299 (1961).
 
         
 
              The record clearly shows, however, that claimant had been 
 
         able to work regularly until becoming symptomatic in March of 
 
         1987.  Dr. Johnson opined that the type of work claimant was 
 
         doing aggravated her condition to the point that "it gave 
 
         symptoms which were significant enough to require surgery." (cl. 
 
         ex. 1, pp. 13-14).  Despite the diligent efforts of counsel for 
 
         the defendants to extract an opinion to the contrary, Dr. Johnson 
 
         was firm in his opinion.  It is concluded that Dr. Johnson's 
 
         opinion, as claimant's treating physician, is more convincing 
 
         than that opinion expressed by Dr. Wirtz.  However, even Dr. 
 
         Wirtz acknowledged that claimant's work would have been 
 
         aggravatory in the condition.  Therefore, the undersigned 
 
         concludes that the fact that claimant has degenerative joint 
 
         disease does not negate the fact that claimant sustained an 
 
         injury in the form of a material aggravation of a preexisting 
 
         condition which arose out of and in the course of her employment 
 
         and is the cause of the disability on which she now bases her 
 
         claim.
 
         
 
              The parties have stipulated and agreed that the extent of 
 
         entitlement to weekly compensation for healing period was April 
 
         7, 1987 to January 4, 1988, and temporary partial benefits from 
 
         January 4, 1988 through January 18, 1988.  In addition, the 
 
         parties have agreed that claimant was unable to work because of 
 
         surgical care to remove the hardware from her back from September 
 
         12, 1988 to November 1, 1988.  Although it is not clear from the 
 
         record whether or not claimant was paid for this period of time 
 
         off, clearly, in light of the conclusions above, claimant would 
 
         be entitled to temporary total disability benefits for this 
 
         period of time.  
 
         
 
              The essential issue for determination is the extent of 
 
         claimant's entitlement to permanent partial disability benefits.  
 
         The parties have stipulated and agreed in the prehearing report 
 
         that the type of permanent disability, if the injury is found to 
 
         be a cause of permanent disability, is an industrial disability 
 
         to the body as a whole.  
 
         
 
              Both Dr. Johnson and Dr. Wirtz have imposed a functional 
 
         impairment on claimant as a result of her condition.
 
         
 
              Functional impairment is an element to be considered in 
 
         determining industrial disability which is the reduction of 
 
         earning capacity, but consideration must also be given to the 
 
         injured employee's age, education, qualifications, experience and 
 
         inability to engage in employment for which the employee is 
 
         fitted.  Olson v. Goodyear Serv. Stores, 255 Iowa 1112, 125 
 
         N.W.2d 251 (1963); Barton v. Nevada Poultry, 253 Iowa 285, 110 
 
         N.W.2d 660 (1961).
 
         
 
              A finding of impairment to the body as a whole found by a 
 
         medical evaluator does not equate to industrial disability.  
 
         Impairment and disability are not synonymous.  The degree of 
 
         industrial disability can be much different than the degree of 
 
         impairment because industrial disability references to loss of 
 

 
         
 
         Page òòò  8        
 
         
 
         
 
         
 
         earning capacity and impairment references to anatomical or 
 
         functional abnormality or loss.  Although loss of function is to 
 
         be considered and disability can rarely be found without it, it 
 
         is not so that a degree of industrial disability is 
 
         proportionally related to a degree of impairment of bodily 
 
         function.
 
         
 
              Factors to be considered in determining industrial dis
 
         ability include the employee's medical condition prior to the 
 
         injury, immediately after the injury, and presently; the situs of 
 
         the injury, its severity and the length of the healing period; 
 
         the work experience of the employee prior to the injury and after 
 
         the injury and the potential for rehabilitation; the employee's 
 
         qualifications intellectually, emotionally and physically; 
 
         earnings prior and subsequent to the injury; age; education; 
 
         motivation; functional impairment as a result of the injury; and 
 
         inability because of the injury to engage in employment for which 
 
         the employee is fitted.  Loss of earnings caused by a job 
 
         transfer for reasons related to the injury is also relevant.  
 
         Likewise, an employer's refusal to give any sort of work to an 
 
         impaired employee may justify an award of disability.  McSpadden 
 
         v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980).  These are 
 
         matters which the finder of fact considers collectively in 
 
         arriving at the determination of the degree of industrial 
 
         disability.
 
         
 
              There are no weighting guidelines that indicate how each of 
 
         the factors are to be considered.  Neither does a rating of 
 
         functional impairment directly correlate to a degree of 
 
         industrial disability to the body as a whole.  In other words, 
 
         there are no formulae which can be applied and then added up to 
 
         determine the degree of industrial disability.  It therefore 
 
         becomes necessary for the deputy or commissioner to draw upon 
 
         prior experience as well as general and specialized knowledge to 
 
         make the finding with regard to degree of industrial disability.  
 
         See Christensen v. Hagen, Inc., File No. 643434 (App. March 26, 
 
         1985); Peterson v. Truck Haven Cafe, Inc., File No. 420539 (App. 
 
         February 28, 1985).
 
         
 
              Compensation for permanent partial disability shall begin at 
 
         the termination of the healing period.  Compensation shall be 
 
         paid in relation to 500 weeks as the disability bears to the body 
 
         as a whole.  Iowa Code section 85.34.
 
         
 
              Industrial disability is evaluated and assessed on 
 
         claimant's loss of future earning capacity.  Claimant has not 
 
         sustained any loss of actual earnings as a result of this injury.  
 
         In fact, claimant's earnings have increased.  Further, claimant 
 
         was working at 105 percent of production, where only 83 percent 
 
         is required while at the same time maintaining very good quality 
 
         (tr. p. 105, lines 19-23).  Defendant employer has made 
 
         commendable accommodations for claimant's condition.
 
         
 
              Claimant has not, as a result of the injury, been prohibited 
 
         in engaging in employment for which she is suited by education 
 
         and experience.  She is a well motivated person.  Although 
 
         claimant's employment aggravated her preexisting condition, it 
 
         was not the sole cause thereof.  Further, claimant's restrictions 
 
         are not onerous.  The undersigned concludes that claimant is 
 

 
         
 
         Page òòò  9        
 
         
 
         
 
         
 
         capable of functioning within her normal strength on a routine 
 
         basis.  However, claimant has been injured and must continually 
 
         be conscious of that injury in her employment life.
 
         
 
              Therefore, considering all of the elements of industrial 
 
         disability previously enumerated, the undersigned concludes that 
 
         claimant has sustained a permanent partial disability of 10 
 
         percent for industrial purposes, therefore, entitling her to 50 
 
         weeks of permanent partial disability benefits.
 
         
 
              The final issue for resolution is claimant's entitlement to 
 
         medical benefits.
 
         
 
              Iowa Code section 85.27 provides:
 
         
 
                 The employer, for all injuries compensable under 
 
              this chapter or chapter 85A, shall furnish reasonable 
 
              surgical, medical, dental, osteopathic, chiropractic, 
 
              podiatric, physical rehabilitation, nursing, ambulance 
 
              and hospital services and supplies therefor and shall 
 
              allow reasonably necessary transportation expenses 
 
              incurred for such services.
 
         
 
              Defendants argue that claimant is not entitled to medical 
 
         expenses which have been incurred in her care and treatment due 
 
         to the fact that claimant did not establish that she sustained a  
 
         personal injury arising out of and in the course of her 
 
         employment by defendants.  However, the undersigned has concluded 
 
         that claimant has met the burden of proof of establishing her 
 
         injury arose out of and in the course of her employment in the 
 
         form of a material aggravation of a preexisting condition.  
 
         Therefore, claimant is entitled to all reasonable and necessary 
 
         medical expenses which were incurred in her care and treatment in 
 
         the amount of $26,982.26 (ex. 27, p. 101) as stipulated to by the 
 
         parties (tr. p. 10).
 
         
 
                                      order
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              Defendants shall pay unto claimant healing period benefits 
 
         for the period of April 7, 1987 to January 4, 1988, at the 
 
         stipulated rate of one hundred twenty-three and 09/100 dollars 
 
         ($123.09).  
 
         
 
              Defendants shall pay unto claimant temporary partial 
 
         benefits for the period from January 4, 1988 through January 18, 
 
         1988.
 
         
 
              Defendants shall pay unto claimant temporary total 
 
         disability benefits for the period from September 12, 1988 to 
 
         November 1, 1988, at the stipulated rate of one hundred 
 
         twenty-three and 09/100 dollars ($123.09).
 
         
 
              Defendants shall pay unto claimant fifty (50) weeks of 
 
         permanent partial disability benefits for the period commencing, 
 
         as stipulated, on November 1, 1988, at the stipulated rate of one 
 
         hundred twenty-three and 09/100 dollars ($123.09).
 
         
 
              Defendants shall receive credit for any weekly benefits 
 

 
         
 
         Page òòò 10        
 
         
 
         
 
         
 
         previously paid.  
 
         
 
              Defendants shall pay twenty-six thousand nine hundred eighty 
 
         two and 26/100 dollars ($26,982.26) in medical expenses.
 
         
 
              Defendants shall receive credit under Iowa Code section 
 
         85.38 for previous payment of medical/hospitalization expenses in 
 
         the amount of twenty-five thousand one hundred twenty-one and 
 
         14/100 dollars ($25,121.14) against all bills substituted by 
 
         claimant in this preceding as stipulated to by the parties (tr. 
 
         p. 10).
 
         
 
              Weekly benefits that have accrued shall be paid to claimant 
 
         in a lump sum together with statutory interest thereon, pursuant 
 
         to Iowa Code section 85.30.
 
         
 
              Costs are assessed against defendants pursuant to Iowa Code 
 
         section 86.40.
 
         
 
              Signed and filed this ____ day of November, 1991.
 
         
 
         
 
         
 
         
 
                                       ______________________________
 
                                       WALTER R. McMANUS, JR.
 
                                       DEPUTY INDUSTRIAL COMMISSIONER    
 
         
 
         
 
         
 
         Copies to:
 
         
 
         Mr. Randy L. Waagmeester
 
         Attorney at Law
 
         Professional Bldg.
 
         Rock Rapids, IA  51246
 
         
 
         Mr. E.W. Wilcke
 
         Attorney at Law
 
         826 1/2 Lake St.
 
         PO Box 455
 
         Spirit Lake, IA  51360
 
         
 
         Mr. Frank T. Harrison
 
         Attorney at Law
 
         2700 Grand Ave. STE 111
 
         Des Moines, Iowa  50312
 
         
 
              
 
         
 
              
 
         
 
              
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
                                          51106 51108.50 51401 51402.20 
 
                                          51402.30 52206 51801.1 51802 
 
                                          51402.40 51803 51402.40 
 
                                          51402.60 52501 52700
 
                                          Filed November 27, 1991
 
                                          Walter R. McManus, Jr.
 
            
 
                           before the iowa industrial 
 
                                   commissioner
 
            ____________________________________________________________
 
                                          :
 
            FAITH KRUSE,                  :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 851322
 
            K PRODUCTS,                   :
 
                                          :  A R B I T R A T I O N
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            GENERAL CASUALTY COMPANY,     :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            51106 51108.50 51401 51402.20 51402.30 52206
 
            Although claimant had a long-term preexisting degenerative 
 
            back condition, the opinion of the treating orthopedic 
 
            surgeon was preferred over the opinion of the defendants' 
 
            evaluating orthopedic physician, and it was determined that 
 
            claimant sustained an injury arising out of and in the 
 
            course of her employment from working in a sitting position 
 
            for many years.
 
            
 
            51801.1 51802 51402.40
 
            Claimant awarded temporary partial disability benefits and 
 
            healing period benefits for the periods stipulated to by the 
 
            parties.
 
            
 
            51803 51402.40
 
            Claimant awarded 50 weeks of permanent partial disability 
 
            benefits based on an industrial disability of 10 percent to 
 
            the body as a whole.  Claimant received impairment ratings 
 
            of 15 percent from the treating physician and 10 percent 
 
            from the evaluating physician of defendants.  Claimant 
 
            restrictions were not serious and did not affect the 
 
            performance of work with employer.  Claimant lost no actual 
 
            wages.  Claimant was earning more at the time of the hearing 
 
            than at the time of the injury.  Employer was extremely 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            accommodating and provided steady full-time employment to 
 
            claimant within her limitations.
 
            
 
            51402.60 52501 52700
 
            The treating physician was accepted over the evaluating 
 
            physician to the effect that the injury caused the surgery.  
 
            Claimant awarded medical benefits in the stipulated amount. 
 
            Defendants were allowed a credit in the stipulated amount.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            TRUDY CHAMPNEY,               :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :         File No. 851361
 
            LEDGES MANOR,                 :
 
                                          :      A R B I T R A T I O N
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            ALLIED GROUP,                 :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding in arbitration brought by Trudy 
 
            Champney as a result of injuries to her left knee and 
 
            shoulder which occurred on March 23, 1987.  Defendants 
 
            accepted compensability for the injury, paid weekly benefits 
 
            and some medical expenses.  The issues for determination are 
 
            the duration of claimant's entitlement to weekly benefits 
 
            for temporary total disability or healing period and whether 
 
            claimant is entitled to receive any compensation for 
 
            permanent partial disability.  In the event of an 
 
            entitlement, an issue exists as to whether the disability 
 
            should be evaluated as scheduled member disability or 
 
            industrially.
 
            
 
                 The case was heard and fully submitted at Storm Lake, 
 
            Iowa on October 2, 1990.  The record in the proceeding 
 
            consists of defendants' exhibits 1 through 8 and testimony 
 
            from claimant.
 
            
 
                                 findings of fact
 
            
 
                 Having considered all the evidence received, together 
 
            with the appearance and demeanor of the claimant, the 
 
            following findings of fact are made.
 
            
 
                 Trudy Champney injured her left shoulder and left knee 
 
            when she fell on a wet floor at her employer's place of 
 
            business on March 23, 1987.  She received some treatment 
 
            from Frank J. Allender, D.C.  She subsequently underwent 
 
            arthroscopic surgery on the knee and injection of the 
 
            subacromial bursa of her left shoulder on April 30, 1987.  
 
            John J. Billion, M.D., was the surgeon.  The post-operative 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            diagnosis was grade I patellofemoral chondromalacia of the 
 
            left knee, grade I chondromalacic changes to the medial 
 
            compartment of the left knee, and subacromial bursitis of 
 
            the left shoulder.  The operative report does not indicate 
 
            recent trauma to claimant's left knee; it primarily 
 
            indicates chondromalacia (defendants' exhibit 1).
 
            
 
                 Following surgery, claimant was placed in physical 
 
            therapy.  The notes do not indicate a full recovery 
 
            (defendants' exhibit 2).
 
            
 
                 Dr. Allender reported on May 27, 1987 that he expected 
 
            a full recovery (defendants' exhibit 3).  Dr. Billion 
 
            indicated on November 18, 1987 that he expected that 
 
            claimant's knee condition would return to her preinjury 
 
            status and that the shoulder should likewise have a 100 
 
            percent recovery (defendants' exhibit 4).  Dr. Billion was 
 
            apparently aware of the treatment which had been provided by 
 
            Vincent N. Oliviero, M.D.  In view of the lack of complete 
 
            recovery indicated in Dr. Oliviero's records, Dr. Billion 
 
            suggested further diagnostic evaluation (defendants' exhibit 
 
            4).
 
            
 
                 Claimant was seen by Dr. Oliviero on October 6, 1987.  
 
            She continued to express complaints regarding her left knee 
 
            and shoulder.  His impression was that she was afflicted 
 
            with post-traumatic patellofemoral pain syndrome in her left 
 
            knee and probable tendinitis in her left shoulder.  He 
 
            recommended treatment for the knee in the nature of a 
 
            Neoprene sleeve, exercises, heat and prescription 
 
            medication.  For the shoulder, he recommended exercise, 
 
            heat, ice and the same medication as recommended for the 
 
            knee.  Dr. Oliviero subsequently saw claimant on March 21, 
 
            1988 and June 7, 1988.  In his final notes, he indicated 
 
            that she still had some room for improvement.  He further 
 
            anticipated a good functioning shoulder and knee with some 
 
            aching discomfort periodically.  He stated that her pain 
 
            would not likely be so severe as to be disabling.  He 
 
            recommended that she avoid repetitive movements of the left 
 
            shoulder and frequent kneeling, squatting or flexing of the 
 
            left knee.  He recommended continued exercise, ice and heat 
 
            treatment (defendants' exhibit 6).
 
            
 
                 Exhibit 7 indicates that claimant was sent notices of 
 
            termination of benefits effective for payments scheduled to 
 
            extend until August 28, 1987 and that the insurance carrier 
 
            had paid certain medical expenses.  The record does not 
 
            contain any list of claimed medical expenses or the medical 
 
            bills themselves.
 
            
 
                 Claimant's income tax returns for the periods 1985 
 
            through 1988 do not show how much of the income is hers as 
 
            opposed to that of her husband (defendants' exhibit 8).
 
            
 
                 At the time of injury, claimant was working 30-35 hours 
 
            per week earning $3.45 per hour.  Since August of 1988, she 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            has been earning $6.00 per hour as a clerical worker working 
 
            24-32 hours per week.  Claimant has lived in Maine since 
 
            June, 1987.  The only work history in the record is her 
 
            position as a dietary aide with the defendant employer.  At 
 
            time of hearing, she was approximately 45 years of age.  No 
 
            evidence is in the record regarding claimant's educational 
 
            attainment level; however, she appeared to be of at least 
 
            average intelligence.
 
            
 
                 At hearing, claimant testified to having had no 
 
            problems with her knee or shoulder prior to the March 23, 
 
            1987 fall and continued discomfort and problems with them 
 
            subsequently.  She complained of locking, swelling and 
 
            aching in her knee and aching in her left shoulder, 
 
            particularly in the upper portion of the left shoulder, 
 
            between the neck and shoulder joint in the area of the 
 
            trapezius.  She stated that extended typing causes severe 
 
            pain in that region.
 
            
 
                 Claimant's appearance and demeanor were observed.  It 
 
            is found that her testimony regarding her history of 
 
            continued complaints since the injury, and lack of similar 
 
            problems prior to the injury is correct.  The activity 
 
            restrictions recommended by Dr. Oliviero in his June 7, 1988 
 
            notes are accepted as being correct.  The record contains no 
 
            ratings of functional permanent impairment, although 
 
            claimant's continued complaints and the activity 
 
            restrictions which have been recommended by Dr. Oliviero 
 
            establish that there is some permanency to both her knee and 
 
            shoulder conditions.  Based upon ratings made by physicians 
 
            in other cases for individuals with conditions similar to 
 
            those which affect claimant, it is found that the combined 
 
            impairments of her knee and shoulder would not exceed five 
 
            percent of the body as a whole.  [Iowa Code section 
 
            17A.14(5)].  The recommendations for activity restrictions 
 
            made by Dr. Oliviero would not prohibit her from engaging in 
 
            many occupations.  She could likely work as a dietary aide.  
 
            The restriction against repetitive movements of the left 
 
            shoulder would likely disqualify her from some assembly line 
 
            types of positions.  Her current clerical position seems to 
 
            be appropriate for her.  It is found that Trudy Champney has 
 
            experienced a five percent permanent reduction in her 
 
            earning capacity as a result of loss of access to types of 
 
            employment which she appears to have been capable of 
 
            performing prior to sustaining the injury which is the 
 
            subject of this case.  The record does not show any work 
 
            history in those types of employment and the disability is 
 
            awarded accordingly, particularly in light of the increase 
 
            in actual earnings which has occurred since the injury.  The 
 
            increase is not attributable to the injury.  It is more 
 
            likely attributable to claimant's relocating and changing 
 
            lines of work.
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
                 When claimant was seen on October 6, 1987, there was no 
 
            specific indication that she was either disabled from 
 
            working or that she had completed her recovery from the 
 
            injury.  The general tone of Dr. Billion's November 18, 1987 
 
            letter is to the effect that he expected a complete 
 
            recovery, but would not dispute continued treatment at the 
 
            time the report was issued.  The only real medical 
 
            indication of maximum recuperation is found in the March 21, 
 
            1988 report from Dr. Oliviero.  He indicates that claimant 
 
            was partially disabled from employment at that time and that 
 
            her light duty capacity would exist for approximately three 
 
            months.  The June 7, 1988 report was issued approximately 
 
            three months thereafter.  It makes no mention, however, of 
 
            removing restrictions or maximum recuperation.  A reading of 
 
            the report, however, shows that claimant was released from 
 
            treatment with instructions to return only as needed.  Those 
 
            entries establish that Dr. Oliviero felt that she had 
 
            reached maximum medical recuperation at that point.  His 
 
            assessment is accepted as being correct.  According to 
 
            claimant's testimony, she did not return to work until 
 
            August, 1988.
 
            
 
                                conclusions of law
 
            
 
                 Having accepted the evidence from Dr. Oliviero as being 
 
            correct, his release from treatment establishes that further 
 
            significant improvement from the injury was not anticipated 
 
            to occur subsequent to June 7, 1988.  The end of the healing 
 
            period occurs at the time when the physicians indicate that 
 
            no further improvement is forthcoming.  It is not determined 
 
            by hindsight looking back to find the point at which 
 
            recovery ceased.  Thomas v. William Knudson & Son, Inc., 394 
 
            N.W.2d 124, 126 (Iowa App. 1984); Armstrong Tire & Rubber 
 
            Co. v. Kubli, 312 N.W.2d 60 (Iowa App. 1981).  June 7, 1988 
 
            therefore fixes the end of claimant's entitlement to healing 
 
            period compensation under Iowa Code section 85.34(1).
 
            
 
                 Claimant must prove, by a preponderance of the 
 
            evidence, the causal connection between the employment 
 
            incident or activity and the injury upon which the claim is 
 
            based.  Holmes v. Bruce Motor Freight, Inc., 215 N.W.2d 296, 
 
            297 (Iowa 1974).  This case contains no precise expert 
 
            testimony on causation, but the medical records seem to 
 
            accept the proposition that claimant's symptoms were caused 
 
            by the fall at work which indicates that they felt such was 
 
            possible.  Claimant's own testimony concerning the lack of 
 
            prior problems and the continuity of problems since that 
 
            fall is sufficient to establish the existence of a causal 
 
            connection between the injury and the disability.  Giere v. 
 
            Aase Haugen Homes, Inc., 259 Iowa 1065, 146 N.W.2d 911, 915 
 
            (1966).
 
            
 
                 Since claimant's injury affected her shoulder bursa and 
 
            has caused permanent impairment of her use of the shoulder, 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            the injury is to the body as a whole compensable under Iowa 
 
            Code section 85.34(2)(u) rather than a scheduled member 
 
            injury.
 
            
 
                 If 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.2d 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."
 
            
 
                 Functional impairment is an element to be considered in 
 
            determining industrial disability which is the reduction of 
 
            earning capacity, but consideration must also be given to 
 
            the injured employee's age, education, qualifications, 
 
            experience and inability to engage in employment for which 
 
            he is fitted.  Olson v. Goodyear Service Stores, 255 Iowa 
 
            1112, 1121, 125 N.W.2d 251, 257 (1963).
 
            
 
                 Industrial disability or loss of earning capacity is a 
 
            concept that is quite similar to impairment of earning 
 
            capacity, an element of damage in a tort case.  Impairment 
 
            of physical capacity creates an inference of lessened 
 
            earning capacity.  The basic element to be determined, 
 
            however, is the reduction in value of the general earning 
 
            capacity of the person, rather than the loss of wages or 
 
            earnings in a specific occupation.  Post-injury earnings 
 
            create a presumption of earning capacity.  The earnings are 
 
            not synonymous with earning capacity and the presumption may 
 
            be rebutted by evidence showing the earnings to be an 
 
            unreliable indicator.  Carradus v. Lange, 203 N.W.2d 565 
 
            (Iowa 1973); Holmquist v. Volkswagon of America, Inc., 261 
 
            N.W.2d 516 (Iowa App. 1977) A.L.R.3d 143; Michael v. 
 
            Harrison County, Thirty-fourth Biennial Report of the 
 
            Industrial Commissioner 218 (1979); 2 Larson Workmen's 
 
            Compensation Law, sections 57.21 and 57.31.
 
            
 
                 Upon considering all the material factors, it is found 
 
            that the evidence in this case supports an award of five 
 
            percent permanent partial disability which entitles the 
 
            claimant to recover 25 weeks of benefits under Iowa Code 
 
            section 85.34(2)(u).
 
            
 
                 The mid-point between claimant's estimated 30 and 35 
 
            hours of work per week is 32 1/2 hours.  At an hourly rate 
 
            of pay of $3.45 per hour, her gross weekly earnings compute 
 
            to $112.12.  The prehearing report showed her to be married 
 
            with an entitlement to four exemptions.  Her rate of 
 
            compensation under the benefit booklet effective for the 
 
            12-month period commencing July 1, 1986 is therefore $82.34 
 
            per week in accordance with Iowa Code section 85.36(6).  The 
 
            rate of compensation is intended to be based upon customary 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            earnings.  Where precise evidence of the actual earnings is 
 
            not in the record, the rate determination is based upon 
 
            whatever credible evidence is available.  Barker v. City 
 
            Wide Cartage, I Iowa Industrial Commissioner Report 12 (App. 
 
            Decn. 1980).
 
            
 
                                      order
 
            
 
                 IT IS THEREFORE ORDERED that defendants pay claimant 
 
            sixty-three and two-sevenths (63 2/7) weeks of compensation 
 
            for healing period at the rate of eighty-two and 34/100 
 
            dollars ($82.34) per week payable commencing March 23, 1987.
 
            
 
                 IT IS FURTHER ORDERED that defendants pay claimant 
 
            twenty-five (25) weeks of compensation for permanent partial 
 
            disability at the rate of eighty-two and 34/100 dollars 
 
            ($82.34) per week payable commencing June 8, 1988.
 
            
 
                 IT IS FURTHER ORDERED that defendants pay claimant 
 
            interest pursuant to Iowa Code section 85.30 from the date 
 
            each weekly payment came due until the date of actual 
 
            payment.
 
            
 
                 IT IS FURTHER ORDERED that the costs of this action are 
 
            assessed against defendants pursuant to 343 IAC 4.33.
 
            
 
                 IT IS FURTHER ORDERED that defendants file claim 
 
            activity reports as requested by this agency pursuant to 343 
 
            IAC 3.1.
 
            
 
                 Signed and filed this ______ day of ____________, 1990.
 
            
 
                 
 
            
 
                 
 
                 
 
                                          ______________________________
 
                                          MICHAEL G. TRIER
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. John A. Wibe
 
            Attorney at Law
 
            427 West Main
 
            P.O. Box 100
 
            Cherokee, Iowa  51012
 
            
 
            Ms. Judith Ann Higgs
 
            Attorney at Law
 
            200 Home Federal Building
 
            P.O. Box 3086
 
            Sioux City, Iowa  51102
 
            
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
 
 
                           5-1802; 5-1803; 1803.1
 
                           2601.10
 
                           Filed November 26, 1990
 
                           MICHAEL G. TRIER
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            TRUDY CHAMPNEY,               :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :         File No. 851361
 
            LEDGES MANOR,                 :
 
                                          :      A R B I T R A T I O N
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            ALLIED GROUP,                 :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
            2601.10
 
            Fact of surgery and permanent restrictions held sufficient 
 
            to find five percent permanent impairment and award of 
 
            permanent partial disability, despite the absence of any 
 
            medical impairment ratings in the record.  Iowa Code section 
 
            17A.14(5).
 
            
 
            1803.1
 
            Chronic shoulder bursitis/tendonitis with permanent activity 
 
            restrictions held sufficient to take injury into body as a 
 
            whole.
 
            
 
            5-1802
 
            Healing period ended when active medical treatment ceased 
 
            despite physician's hope for further improvement.
 
            
 
            5-1803
 
            Five percent permanent partial disability awarded for five 
 
            percent permanent impairment of body based upon knee and 
 
            shoulder.  Claimant's actual earnings had increased markedly 
 
            due to her post-injury relocation to Maine and entering a 
 
            different line of work.
 
            
 
 
         
 
        
 
                 
 
                
 
                   BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         _______________________________________________________
 
                     
 
         PETER J. GANSEN,      
 
                     
 
              Claimant,   
 
                     
 
         vs.         
 
                                             File No. 851496
 
         FROMMELT INDUSTRIES,       
 
                                               A P P E A L
 
              Employer,   
 
                                             D E C I S I O N
 
         and         
 
                     
 
         INTERCONTINENTAL INSURANCE,     
 
                     
 
              Insurance Carrier,    
 
              Defendants.      
 
         _________________________________________________________________
 
         The record, including the transcript of the hearing before the 
 
         deputy and all exhibits admitted into the record, has been 
 
         reviewed de novo on appeal.  The decision of the deputy filed 
 
         July 29, 1992 is affirmed and is adopted as the final agency 
 
         action in this case.
 
         
 
         Claimant shall pay the costs of the appeal, including the 
 
         preparation of the hearing transcript.
 
         
 
         Signed and filed this ____ day of July, 1993.
 
                   
 
         
 
                                     ________________________________
 
                                              BYRON K. ORTON
 
                                        INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Stephen J. Juergens
 
         Attorney at Law
 
         200 Security Building
 
         Dubuque, Iowa 52001
 
         
 
         Mr. Roger L. Ferris
 
         Attorney at Law
 
         1900 Hub Tower
 
         699 Walnut
 
         Des Moines, Iowa 50309