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                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            ORLA JANE SMITH,              :
 
                                          :
 
                 Claimant,                :        File Nos. 853642
 
                                          :                  773001
 
            vs.                           :
 
                                          :
 
            FLEETGUARD, INC.,             :          R E V I E W
 
                                          :
 
                 Employer,                :        R E O P E N I N G
 
                                          :
 
            and                           :         D E C I S I O N
 
                                          :
 
            LIBERTY MUTUAL INSURANCE,     :
 
            COMPANY,                      :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                                   introduction
 
            
 
                 This is a proceeding in review-reopening brought by 
 
            Orla Jane Smith, claimant, against Fleetguard, Inc., 
 
            employer, and Liberty Mutual Insurance Company, insurance 
 
            carrier, defendants, for benefits as a result of two 
 
            injuries.  The first injury occurred on August 21, 1984, 
 
            when claimant was struck in the right leg by a fork lift 
 
            (File No. 773001).  The second injury is an injury to the 
 
            back which occurred on January 28, 1987 (File No. 853642).  
 
            The original arbitration hearing was heard in Fort Dodge, 
 
            Iowa, on August 23, 1988, by Deputy Industrial Commissioner 
 
            David Rasey.  This decision, dated June 7, 1989, made no 
 
            award of benefits for the fork lift injury (File No. 
 
            773001), but did award claimant 60 percent industrial 
 
            disability reduced by 25 percent industrial disability for a 
 
            preexisting condition which left a remaining award of 35 
 
            percent industrial disability to the body as a whole, which 
 
            resulted in 175 weeks of permanent partial disability 
 
            benefits in the amount of $33,918.50.  Claimant was also 
 
            awarded 52 weeks of healing period benefits in the amount of 
 
            $10,078.64 and penalty benefits on the healing period 
 
            benefits in the amount of $3,527.52.  Claimant was also 
 
            awarded medical benefits in the total amount of $8,400.99, 
 
            of which claimant now asserts that $2,156 to Surgical 
 
            Associates has never been paid pursuant to the order of the 
 
            prior decision. 
 
            
 
                  This review-reopening hearing was held in Mason City, 
 
            Iowa, on August 15, 1990, and the case was fully submitted 
 
            at the close of the hearing.  Claimant was represented by 
 
            Robert S. Kinsey III, and defendants were represented by 
 
            Tito Trevino.  The record
 
            
 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            consists of the testimony of Orla Jane Smith, claimant, Arlo 
 
            L. Smith, claimant's husband, Kate Schrot, M.S., 
 
            rehabilitation consultant (Claimant's Exhibits 1 through 
 
            16).  The deputy ordered a transcript of the hearing.  
 
            Neither attorney elected to submit a prehearing or a 
 
            posthearing brief.
 
            
 
                                   stipulations
 
            
 
                 The parties stipulated to the following matters:
 
            
 
                 That an employer-employee relationship existed at the 
 
            time of both injuries.
 
            
 
                 That claimant sustained an injury to her right leg  on 
 
            August 21, 1984 (File No. 773001) and an injury to her back 
 
            on January 28, 1987 (File No. 853642), both which arose out 
 
            of and in the course of her employment with employer.
 
            
 
                 That both injuries were the cause of both temporary and 
 
            permanent disability.
 
            
 
                 That claimant asserts no claim for entitlement to 
 
            further temporary disability benefits at this time.
 
            
 
                 That the type of permanent disability, if the injury is 
 
            found to be a cause of additional permanent disability, is 
 
            industrial disability to the body as a whole.
 
            
 
                 That the commencement date for additional permanent 
 
            disability benefits, in the event such benefits are awarded, 
 
            is January 29, 1988.
 
            
 
                 That the rate of compensation in the event of an award 
 
            of benefits is $185.88 for the fork lift injury to the right 
 
            leg (File No. 773001) and $193.82 for the back injury (File 
 
            No. 853642).
 
            
 
                 That the provider of medical services would testify 
 
            that the fees charged were reasonable and that the treatment 
 
            was reasonable and necessary for the work injury and 
 
            defendants are not offering contrary evidence.
 
            
 
                 That the causal connection of the expenses to treatment 
 
            for a medical condition upon which claimant is now basing 
 
            her claim is admitted but that the causal connection of this 
 
            condition to a work injury remains an issue to be decided in 
 
            these proceedings.
 
            
 
                 That defendants assert no claim for credit for employee 
 
            nonoccupational group health plan benefits paid to claimant 
 
            prior to hearing.
 
            
 
                 That defendants make no claim for credit for workers' 
 
            compensation benefits paid to claimant prior to hearing.
 
            
 
                 That there are no bifurcated claims.
 
            
 
                 That claimant withdrew the issue of penalty benefits 
 
            under Iowa Code section 86.13(4) at the time of the hearing.
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            
 
                                      issues
 
            
 
                 The following issues were submitted for determination 
 
            at the time of the hearing:
 
            
 
                 1.  Whether claimant has sustained a change of 
 
            condition since the prior hearing on August 23, 1988;
 
            
 
                 2.  Whether any change of condition found is the cause 
 
            of additional permanent disability to include whether 
 
            claimant is an odd-lot employee; and,
 
            
 
                 3.  Whether claimant is entitled to certain unpaid 
 
            medical expenses and claimant's entitlement to certain 
 
            future medical expenses.
 
            
 
                                preliminary matter
 
            
 
                 The parties agreed that official notice should be taken 
 
            of the exhibits introduced by the respective parties at the 
 
            time of the prior hearing on August 23, 1988.  Iowa 
 
            Administrative Procedure Act 17A.14(4).
 
            
 
                                 findings of fact
 
            
 
                               change of condition
 
            
 
                 It is determined that claimant did sustain a 
 
            nonphysical change of condition subsequent to the first 
 
            hearing on August 23, 1988 which was proximately caused by 
 
            the original back injury on January 28, 1987.
 
            
 
                 A change in condition may be something other than a 
 
            physical one.  In Blacksmith v. All-American, Inc., 290 
 
            N.W.2d 348 (Iowa 1980), the Supreme Court of Iowa stated, 
 
            "An increase in industrial disability may occur without a 
 
            change in physical condition.  A change in earning capacity 
 
            subsequent to the original award which is proximately caused 
 
            by the original injury also constitutes a change of 
 
            condition."  Blacksmith, 290 N.W.2d 348 (Iowa 1980); Iowa 
 
            Workers' Compensation Law and Practice, Lawyer and Higgs, 
 
            Section 20-5, Change in Earning Capacity, page 160.
 
            
 
                 At the close of the prior hearing, claimant's treating 
 
            physician, Sterling J. Laaveg, M.D., an orthopedic surgeon, 
 
            awarded claimant a 20 percent permanent functional 
 
            impairment rating and David J. Boarini, M.D., a 
 
            neurosurgeon, awarded
 
            
 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            claimant a 6 percent permanent functional impairment.  
 
            Deputy Rasey adopted the 20 percent impairment rating of Dr. 
 
            Laaveg but specified that 5 percent was due to a prior 
 
            condition (Decision of June 7, 1989, page 13).
 
            
 
                 Claimant received the following permanent restrictions 
 
            from Dr. Laaveg:
 
            
 
                    Claimant has been given physical limitations by 
 
                 reason of her back injury that include not lifting 
 
                 over 10 pounds from the floor or carrying over 
 
                 15-20 pounds, avoiding repetitious bending or 
 
                 twisting and avoiding sitting or standing for 
 
                 longer than 30-60 minutes at any one time without 
 
                 being able to change position.
 
            
 
            (Decision of June 7, 1989, page 13)
 
            
 
                 The deputy awarded a 60 percent industrial disability 
 
            to the body as a whole.  Thirty-five percent of this was 
 
            attributed to the injury under determination at that time.  
 
            Twenty-five was attributed to a prior impairment to the 
 
            back, as shown in Conclusions of Law No. 5.  Deputy Rasey 
 
            held:
 
            
 
                    Claimant has established a permanent partial 
 
                 disability of 60 percent of the body as a whole 
 
                 with respect to her back condition; however, 
 
                 claimant had a preexisting permanent partial 
 
                 disability of 25 percent of the body as a whole 
 
                 with respect to her back for which defendants 
 
                 should be entitled to credit.  Claimant shall be 
 
                 awarded permanent partial disability of 35 percent 
 
                 of the body as a whole.
 
            
 
                 At the time of the hearing on August 23, 1988, there 
 
            was a plan and an expectation on the part of employer, 
 
            employee and the treating physician that claimant would 
 
            complete a course of physical therapy and a work hardening 
 
            program and then return to work either as (1) possibly an 
 
            inspector, which job she had been performing prior to the 
 
            hearing with difficulty, or (2) as a clerical employee 
 
            performing some kind of office work (Cl. Ex. 2, pp. 1 and 2; 
 
            Transcript, pp. 17-42).  This plan and expectation is 
 
            illustrated by the following words in the prior decision: 
 
            
 
                    Claimant returned to work on a part-time basis 
 
                 on June 9, 1988 in her previous job as inspector.  
 
                 She last worked in mid-July, 1988, being taken off 
 
                 work by her physician due to pelvic and back 
 
                 problems.  She testified that at time of hearing, 
 
                 her physician and employer were negotiating a 
 
                 return to work at an appropriate position.  In a 
 
                 meeting of July 30, 1988 with claimant, her 
 
                 employer and Dr. Laaveg, it was decided that 
 
                 claimant would undergo continuing physical
 
            
 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            therapy and a work hardening program.  Claimant's 
 
            last physical therapy session may have been the 
 
            day before hearing, as she anticipated finishing 
 
            physical therapy later that week.
 
            
 
                    Claimant was unsure whether she could return to 
 
                 her previous position as inspector, because the 
 
                 position did require substantial stooping and 
 
                 climbing and physical strength (to check welds 
 
                 with the "thing," an arbor press).  Claimant 
 
                 believes that the stooping and climbing is 
 
                 injurious to her hip.  She indicated that Dr. 
 
                 Laaveg would make the determination as to whether 
 
                 she could return to that position.
 
            
 
                    Claimant forthrightly testified that she 
 
                 believes she is capable of performing office type 
 
                 work, or at least is willing to attempt such work.
 
            
 
            (Decision 6-7-89, pp. 4 and 5)
 
            
 
                 Further evidence of the plan and expectation that 
 
            claimant would be able to return to office work is also 
 
            quoted from the previous decision of Deputy Rasey.
 
            
 
                         When asked as to her restrictions, 
 
                      claimant testified:
 
            
 
                      Q.  Okay.  I just have a couple of 
 
                      questions about that.  He says a final 
 
                      work restriction has been given as 
 
                      follows:  the patient should not be in a 
 
                      job in which she would lift over ten 
 
                      pounds off the floor or carry over 
 
                      fifteen to twenty pounds.  Okay?
 
            
 
                      A.  Uh-huh.
 
            
 
                      Q.  Do you have any -- do you feel you'd 
 
                      be able to do that?
 
            
 
                      A.  Well, I asked Doctor Laaveg what 
 
                      that meant.  I mean that didn't mean a 
 
                      whole lot to me, given' me those 
 
                      restrictions.  I says what is there for 
 
                      me to do?  And he said office work.  
 
                      That's what he said that I could do.
 
            
 
                 (Defendants' exhibit 62, page 36, line 25 through 
 
                 page 37, line 18)
 
            
 
            (Decision of 6-7-89, pp. 18 and 19)
 
            
 
     
 
            
 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            Claimant also testified as to the possibility of returning 
 
            to office work.
 
            
 
                      Q.  Have you worked in an office before?
 
            
 
                      A.  Yes.
 
            
 
                      Q.  What kind of secretarial skills do 
 
                      you have?
 
            
 
                      A.  I've been a file clerk.  I've been a 
 
                      bookkeeper.  I've been a receptionist.  
 
                      A little bit of everything.
 
            
 
                      Q.  Can you type?
 
            
 
                      A.  Yes.
 
            
 
                      Q.  Have you had any reason to use any 
 
                      of those skills in the last year or two?
 
            
 
                      A.  No, I haven't.  I have typed at 
 
                      home, but I haven't -- you know, just 
 
                      for my own benefit.  I go type once in a 
 
                      while just to -- like type a letter for 
 
                      ourselves, you know, but I don't -- 
 
            
 
                      Q.  Would you be willing to return to a 
 
                      job at Fleetguard that allowed you to do 
 
                      the type of work you just described?
 
            
 
                      A.  Oh, yes.
 
            
 
                 (Defendants' exhibit 62, page 36, line 25 through 
 
                 37, line 18)
 
            
 
            (Decision of 6-7-89, page 19)
 
            
 
                 Thus, it is clear that the previous deputy clearly 
 
            anticipated that claimant would return to work performing 
 
            office work duties for employer.
 
            
 
                 Returning to the inspector job was ruled out just a few 
 
            days after the hearing on August 23, 1988.  On August 30, 
 
            1988, Dr. Laaveg wrote to the insurance carrier as follows:
 
            
 
                    Orla Jane Smith has not improved concerning her 
 
                 back pain and discomfort with a work hardening 
 
                 program.  In fact, when she increases her activity 
 
                 her pain increases in her back and radiates into 
 
                 her right leg.  In light of the above, I do not 
 
                 think she can return to an industrial-type job in 
 
                 which she stands and works
 
            
 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            for extended periods of time even in the light 
 
            duty status of the job description recently 
 
            outlined.  Perhaps a clerical job would be helpful 
 
            for her in which she could control the position of 
 
            her back and hip on a regular basis, but even this 
 
            may be too much for an 8-hour shift without having 
 
            control of her time far more than the usual 
 
            employee.
 
            
 
            (Cl. Ex. 4, p. 2; Cl. Ex. 2, p. 3)
 
            
 
                 On September 26, 1988, Dr. Laaveg made this entry in 
 
            his notes:  "I met with Mr. Jeff Neuwohner, of Fleetguard in 
 
            Lake Mills, today to discuss Orla Jane's current situation 
 
            and her job.  They would like to try her at a job in which 
 
            she works as a security guard."  (Cl. Ex. 2, p. 4)  Claimant 
 
            testified that she contacted them numerous times about the 
 
            potential job as a security guard and never received a 
 
            definite yes or no answer.  She alleged that Neuwohner said 
 
            it needed approval from higher authorities but that he never 
 
            related to her that the approval was ever obtained.
 
            
 
                 Claimant testified that she was never offered a 
 
            clerical job of any kind.
 
            
 
                 Claimant testified that she was terminated by letter on 
 
            June 20, 1989.
 
            
 
                 On March 26, 1990, Dr. Laaveg stated:
 
            
 
                    At this time the patient is having significant 
 
                 enough problems that she would be unable to 
 
                 parttake [sic] in any work.  She cannot sit for 
 
                 longer than 5-15 minutes without having 
 
                 significant and severe pain.  She would not be 
 
                 able, at this time, to even do clerical work.  We 
 
                 are in the process of resolving her persistent 
 
                 back and right leg pain.
 
            
 
            (Cl. Ex. 8)
 
            
 
                 Furthermore, Dr. Laaveg recorded in his office notes on 
 
            May 2, 1990 that a myelogram shows definite nerve root 
 
            impingement on the right at L4-5 which is the level of her 
 
            previous surgery which he said certainly could indicate 
 
            scarring from the previous surgery and/or re-rupture of the 
 
            disc (Cl. Ex. 2, p. 14).
 
            
 
                    In Meyers v. Holiday Inn, 272 N.W.2d 24, 26 
 
                 (Iowa Court of Appeals 178), the court stated:
 
            
 
                         It makes little difference from the 
 
                      standpoint of the injured claimant 
 
                      whether a physical condition resulting 
 
                      from an injury progressively worsens 
 
                      beyond what was
 
            
 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            anticipated or fails to improve to the 
 
            extent anticipated.  Either situation 
 
            results in the industrial commissioner 
 
            being unable to fairly evaluate the 
 
            claimant's condition at the time of the 
 
            arbitration hearing.  A review-reopening 
 
            was found appropriate.
 
            
 
            Iowa Workers' Compensation Law and Practice, Lawyer and 
 
            Higgs, Section 20-4, Condition failed to improve, p. 159.
 
            
 
                 Arlo Smith, claimant's husband, testified his wife's 
 
            condition was worse.  They moved from a house to a mobile 
 
            home because it is less work to care for (Tr., pp. 122-132).
 
            
 
                 If claimant received scar tissue from the earlier 
 
            surgery causing nerve root impairment, this would constitute 
 
            a physical change in condition.  If earlier claimant was 
 
            restricted to sitting no more than 30 to 60 minutes at the 
 
            time of the first hearing but subsequently is restricted 
 
            from sitting only 5 to 15 minutes without significant and 
 
            severe pain, this, too, would constitute a change in 
 
            physical condition.  Furthermore, if at the time of the 
 
            first decision the treating physician determined that 
 
            claimant could perform clerical work but at the time of the 
 
            second decision he determines that she cannot partake in any 
 
            work, is this not too a substantial change in physical 
 
            condition? (Tr., pp. 50-57)  Bousfield v. Sisters of Mercy, 
 
            249 Iowa 64, 86 N.W.2d 109 (1957).  Also, at the first 
 
            hearing claimant testified she had pain 75 percent of the 
 
            time and at this hearing she testified she had it all of the 
 
            time (Tr., pp. 76 & 77).
 
            
 
                 In any event, claimant has proven that she failed to 
 
            improve to the extent anticipated in the previous decision.  
 
            Meyers v. Holiday Inn of Cedar Falls, Iowa, 272 N.W.2d 24 
 
            (Iowa Court of Appeals 1978).
 
            
 
                 Therefore, it is determined that claimant has sustained 
 
            a nonphysical change of condition which has substantially 
 
            and adversely reduced her earning capacity.
 
            
 
                     causal connection - permanent disability
 
            
 
                 The change of condition that occurred subsequent to the 
 
            original hearing and proximately caused by the injury of 
 
            January 28, 1987 has caused claimant to become permanently 
 
            and totally disabled.
 
            
 
                 The anticipated plan and expectation that claimant 
 
            would return to work in a clerical capacity did not 
 
            materialize.  Employer neither offered claimant a job as a 
 
            security guard or as a clerical worker.   Employer's 
 
            inability to find any employment for claimant when she and 
 
            the doctor and employer expressed a willingness to find 
 
            employment for her indicates a
 
            
 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            rather substantial disability.  Sunbeam Corp. v. Bates, 271 
 
            Ark. 385,  pp. 160-171).  She had always performed entry level work 
 
            (Tr. 147).  She felt that claimant was motivated and had 
 
            tried in several ways to obtain both training and employment 
 
            but had been unable to do so.
 
            
 
                 It should be noted that employer did not offer claimant 
 
            a job as a security guard or as a clerical worker, and it is 
 
            also noted that they did not offer claimant any vocational 
 
            rehabilitation.  Failure to offer vocational rehabilitation 
 
            by an employer or insurance carrier, ultimately, may be a 
 
            consideration in determining industrial disability.  Schelle 
 
            v. Hygrade Food Products, Thirty-three Biennial Rep., Iowa 
 
            Indus. Comm'r 121 (1977); Iowa Workers' Compensation Law and 
 
            Practice, Lawyer and Higgs, Section 13-5, p. 117.  It is 
 
            also noted that claimant both sought employment at a number 
 
            of places through job searches and job applications and also 
 
            sought out State of Iowa Vocational Rehabilitation on her 
 
            own volition beginning on February 1, 1989 (Cl. Ex. 5; Tr., 
 
            pp. 42-50).  Ray Little, a licensed
 
            
 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
            psychologist, found that claimant had general vocabulary and 
 
            social intelligence consistent with general intellectual 
 
            functioning but that she scored below the average for the 
 
            adult population as a whole on the Wechsler Adult 
 
            Intelligence scale (Cl. Ex. 6).
 
            
 
                 When claimant was tested in Des Moines on December 1, 
 
            1988 with the Individual California Achievement, it was 
 
            recommended that she try some basic refresher courses in 
 
            reading, writing and language (Cl. Ex. 15, p. 3).
 
            
 
                 When claimant appeared for vocational rehabilitation 
 
            training in Des Moines, Anna Sabina-Stratton, an evaluator, 
 
            stated in a report dated January 23, 1990, "This client 
 
            appeared to have a great deal of difficulty meeting the 
 
            sedentary demands of IPD [Initial Planned Development].  She 
 
            was able to tolerate the evaluation environment for only 
 
            half days and obtained a little relief when sitting in a 
 
            chair with good back support."  (Cl. Ex. 15, p. 11)
 
            
 
                 It was eventually determined by Gerald Bennett, M.S., 
 
            counselor, after three days of testing, that claimant was 
 
            unable to continue with the rehabilitation evaluation 
 
            because of her pain and inability to sit and stand for any 
 
            appreciable period of time (Cl. Ex. 16, p. 2).  He, 
 
            therefore, discontinued her evaluation and returned her file 
 
            to the county office with these remarks:  "You experienced 
 
            great discomfort in attempting the vocational assessments 
 
            and it does not appear at this time that either evaluation 
 
            or employment are feasible."  (Cl. Ex. 15, p. 1; Tr., pp. 66 
 
            & 77)
 
            
 
                 Wherefore, it is determined that claimant is 
 
            permanently and totally disabled.  Claimant's testimony, 
 
            Schrot's testimony, Dr. Laaveg's testimony, Dr. Little's 
 
            testimony, and the testimony of the counselors at the State 
 
            of Iowa Vocational Rehabilitation Services is not rebutted, 
 
            controverted, contradicted or refuted by any testimonial or 
 
            exhibit evidence introduced by defendants.  Jeff Neuwohner 
 
            was present at the hearing and defendants' counsel did not 
 
            call on him to rebut claimant's testimony that he had been 
 
            called several times about a security card job and clerical 
 
            work, that new owner never offered claimant any work of any 
 
            kind, and that claimant was terminated by a letter on June 
 
            20, 1989.
 
            
 
                 Claimant is entitled to permanent total disability 
 
            benefits commencing on the date of this decision.  
 
            Bousfield, 249 Iowa 64, 86 N.W.2d 109 (1957).  The 
 
            stipulation of the parties that the commencement date of 
 
            benefits as a result of this hearing is January 29, 1988 
 
            must be disregarded because it is contrary to law.  Parties 
 
            can stipulate to facts but the industrial commissioner 
 
            determines matters of law.
 
            
 
                 An award of permanent total disability is not 
 
            apportionable.  Loftus v. Waterloo Community School 
 
            District, File Nos. 777678 and 748818 (Appeal Decision 
 
            March 30, 1989); Beamer v. A-1 Ready Mix, Inc., File No. 
 
            809720 (Arbitration Decision July 30, 1990).
 

 
            
 
            Page  11
 
            
 
            
 
            
 
            
 
            
 
                 Since claimant has been found to be permanently and 
 
            totally disabled under the principles of Diederich v. 
 
            Tri-City R. Co., 219 Iowa 587, 258 N.W. 899 (1935), it is 
 
            not necessary to determine whether claimant is an odd-lot 
 
            employee or not.  Guyton v. Irving Jensen Co., 373 N.W.2d 
 
            101 (Iowa 1985).
 
            
 
                                 medical expenses
 
            
 
                 Claimant has asserted a claim for medical expenses as 
 
            follows:
 
            
 
                 Radiologists of Mason City                  $   24.40
 
                 David W. Beck, M.D.                             98.00
 
                 Mason City Clinic                            2,156.00
 
                 Mercy Hospital                                  69.00
 
            
 
                                      Total                  $2,347.40
 
            
 
                 It is noted, as contended, by claimant's counsel, that 
 
            Deputy Industrial Commissioner David Rasey ordered 
 
            defendants to pay, formerly Surgical Associates, now Mason 
 
            City Clinic, $2,156 (Decision of June 7, 1989, page 30).  
 
            All of these medical bills appear to be incurred on account 
 
            of this injury and the dates coincide with dates of 
 
            treatment from doctors whose reports are introduced into 
 
            evidence.  Defendants did not dispute the reasonableness of 
 
            these bills or that they were incurred for reasonable and 
 
            necessary medical treatment.  In fact, defendants stipulated 
 
            that the fees charged were reasonable and were for 
 
            reasonable and necessary treatment.  It is now determined 
 
            that they were caused by the injury of January 28, 1987 and 
 
            that claimant is entitled to have these bills paid by 
 
            defendants.
 
            
 
                 Claimant is also entitled to 930 miles of medical 
 
            mileage at the rate of $.21 per mile in the total amount of 
 
            $195.30 which was not controverted by defendants (Cl. Ex. 
 
            14).
 
            
 
                 Claimant requested an order for alternate medical care 
 
            under Iowa Code section 85.27 to go the Sister Kenny 
 
            Institute in Minneapolis, Minnesota for alternate medical 
 
            care.  Claimant did not sustain the burden of proof by a 
 
            preponderance that she is entitled to this particular 
 
            alternate medical care.  Dr. Laaveg only mentioned it as one 
 
            option (Cl. Ex. 2, p. 14, Tr. 58).  However, claimant is 
 
            entitled to reasonable medical care under section 85.27.  
 
            Defendants are entitled to designate an authorized physician 
 
            under section 85.27.  The authorized physician is entitled 
 
            to refer claimant to other reasonable care providers.  
 
            Defendants' right to choose the care, or more specifically 
 
            select the medical provider, does not include the right to 
 
            dictate to the authorized physician how the injured worker 
 
            is to be diagnosed, treated or evaluated, or to interfere 
 
            with the professional medical judgment of the authorized 
 
            physician.  Assmann v. Blue Star Food, File No. 866389, 
 
            Declaratory Ruling of the industrial commissioner, dated May 
 
            18, 1988; Graves v. Crouse Cartage Company, File No. 723352, 
 

 
            
 
            Page  12
 
            
 
            
 
            
 
            
 
            Arbitration Decision, July 27, 1987; Pote v. Mickow 
 
            Corporation, File No. 694639, Review-Reopening Decision, 
 
            June 17, 1986; Martin v. Armour Dial Co., File No. 754732, 
 
            Arbitration Decision, July 31, 1985.  In this case, whether 
 
            it is reasonable for claimant to go to the Sister Kenny 
 
            Institute can be more appropriately determined by the 
 
            authorized treating physician.  Claimant did not prove by 
 
            any medical evidence that such care was reasonable at the 
 
            time of this hearing.
 
            
 
                                conclusions of law
 
            
 
                 Wherefore, based upon the evidence presented and the 
 
            foregoing and following principles of law, these conclusions 
 
            of law are made:
 
            
 
                 That claimant did sustained the burden of proof by a 
 
            preponderance of the evidence that she sustained a 
 
            nonphysical change of condition and loss of earning capacity 
 
            subsequent to the arbitration hearing on August 23, 1988, 
 
            which was caused by the initial injury to the back on 
 
            January 28, 1987.  Blacksmith v. All-American, Inc., 290 
 
            N.W.2d 348 (Iowa 1980); Meyers v. Holiday Inn of Cedar 
 
            Falls, Iowa, Iowa App., 272 N.W.2d 24 (1978).
 
            
 
                 Claimant sustained the burden of proof by a 
 
            preponderance of the evidence that the injury of January 28, 
 
            1987 and the change of condition subsequent to the 
 
            arbitration hearing on August 23, 1988 was the cause of 
 
            permanent and total disability.  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).
 
            
 
                 That claimant has sustained the burden of proof by a 
 
            preponderance of the evidence that she is entitled to 
 
            permanent total disability benefits.  Iowa Code section 
 
            85.34(3); Diederich, 219 Iowa 287, 258 N.W. 899.
 
            
 
                 That the commencement date for weekly benefits and 
 
            interest is the date of this review-reopening decision.  
 
            Bousfield, 249 Iowa 64, 86 N.W.2d 109.
 
            
 
                 That claimant has sustained the burden of proof by a 
 
            preponderance of the evidence that she is entitled to 
 
            $2,347.40 in medical expenses and $195.30 in medical mileage 
 
            expenses.
 
            
 
                 That claimant did not sustain the burden of proof by a 
 
            preponderance of the evidence that there was a change of 
 
            condition caused by the injury of August 21, 1984 subsequent 
 
            to the hearing of August 23, 1988.
 
            
 
                 That claimant did not prove that she is entitled to 
 
            alternate medical care.
 
            
 
                                      order
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 That defendants pay to claimant workers' compensation 
 

 
            
 
            Page  13
 
            
 
            
 
            
 
            
 
            permanent total disability benefits at the rate of one 
 
            hundred ninety-three and 82/100 dollars ($193.82) during the 
 
            period of claimant's permanent total disability commencing 
 
            with the date of this review-reopening decision.
 
            
 
                 That no lump sum payments or interest is due because it 
 
            was not determined that claimant was permanently and totally 
 
            disabled until the date of this decision.
 
            
 
                 That defendants pay to claimant or the provider of 
 
            medical services two thousand three hundred forty-seven and 
 
            40/100 dollars $2,347.40, as itemized above, and one hundred 
 
            ninety-five and 30/100 dollars ($195.30) for medical mileage 
 
            expenses.
 
            
 
                 That no specific order is made as to future medical 
 
            care but rather this determination is to be made by the 
 
            authorized treating physician.
 
            
 
                 That the costs of this action, including the cost of 
 
            the transcript, are charged to defendants, pursuant to 
 
            Division of Industrial Services Rule 343-4.33.
 
            
 
                 That defendants pay claimant's costs as set out in 
 
            claimant's exhibit 13 as follows:
 
            
 
                 Filing fee                             $ 65.00
 
                 Certified mail fee                        2.00
 
                 Expert witness fee                      150.00
 
                 Transcript charge                       122.40
 
                 Medical report - Dr. Laaveg              15.00
 
            
 
                           Total                        $354.40
 
            
 
                 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 ______ day of September, 1990.
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          WALTER R. McMANUS, JR.
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 

 
            
 
            Page  14
 
            
 
            
 
            
 
            
 
            
 
            Copies to:
 
            
 
            Mr Robert S Kinsey
 
            Attorney at Law
 
            214 N Adams
 
            P O Box 679
 
            Mason City IA 50401
 
            
 
            Mr Tito Trevino
 
            Attorney at Law
 
            503 Snell Bldg
 
            P O Box 1680
 
            Fort Dodge IA 50501
 
            
 
 
            
 
 
 
                
 
 
 
                    
 
                 BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         JAN MOODY,
 
         
 
              Claimant,                                File No. 773474
 
         
 
         vs.                                        A R B I T R A T I O N
 
         
 
         VERNON BASCOM COMPANY,                        D E C I S I O N
 
         
 
              Employer,                                   F I L E D
 
         
 
         and                                             OCT 23 1989
 
         
 
         THE TRAVELERS,                              INDUSTRIAL SERVICES
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              This is a proceeding in arbitration brought by claimant Jan 
 
         Moody against defendant employer Vernon Bascom Company and 
 
         defendant insurance carrier The Travelers to recover benefits 
 
         under the Iowa Workers' Compensation Act as the result of an 
 
         injury sustained on August 20, 1984.  This matter came on for 
 
         hearing before the undersigned in Cedar Rapids, Iowa, on October 
 
         10, 1989.  The matter was considered fully submitted at the close 
 
         of hearing.  The record in the proceeding consists of joint 
 
         exhibits A, 1, 3, 4, 5, 6, 7, and 8, defendants' exhibit 2, and 
 
         the testimony of the following witnesses:  Claimant, Lester 
 
         Franke, Cindy Knaack and Vernon Bascom.
 
         
 
                                    ISSUES
 
         
 
              Pursuant to the prehearing report submitted by the parties 
 
         and approved by the undersigned deputy, the parties have 
 
         stipulated:  That an employment relationship existed between 
 
         claimant and employer at the time of the injury; that claimant 
 
         sustained an injury on August 20, 1984, arising out of and in the 
 
         course of that employment; that the injury bears a causal 
 
         relationship to both temporary and permanent disability; that 
 
         claimant is entitled to compensation for healing period benefits 
 
         from August 20, 1984 through September 24, 1984 (and, if it be 
 
         found that claimant's subsequent carpal tunnel release surgery is 
 
         causally related to the work injury, again from November 12, 1987 
 
         through March 14, 1988); that the appropriate rate of weekly 
 
         compensation is $147.35; that all requested medical benefits have 
 
         been or will be paid by defendants; that defendants are entitled 
 
         to credit for 94 weeks, 4 days of compensation paid prior to 
 
         hearing at the stipulated rate.
 
         
 
                                                
 
                                                         
 
              The issues remaining to be resolved include:  Whether 
 
         claimant's alleged healing period of November 12, 1987 through 
 
         March 14, 1988 following carpal tunnel release surgery is 
 
         causally related to the work injury; the extent of claimant's 
 
         entitlement to compensation for permanent disability; whether 
 
         claimant's disability is a scheduled member disability or an 
 
         industrial disability to the body as a whole; taxation of costs.
 
         
 
                          REVIEW OF THE EVIDENCE
 
         
 
              Claimant testified that he began his employment with 
 
         defendant Vernon Bascom Company approximately two months before 
 
         his injury.  His job was that of a mud mixer (cement mix or 
 
         mortar) for tuck-pointing.  Claimant testified to having no prior 
 
         substantial injuries or illnesses before the injury.
 
         
 
              Claimant described his injury as having occurred while he 
 
         was "running" grout to the tuck-pointers.  His job duties 
 
         involved in part entering a caged area containing electrical 
 
         devices.  A transformer apparently malfunctioned or shorted out, 
 
         causing an electrical current to enter claimant's right hand and 
 
         exit through the left.  Claimant testified to a "beehive" effect 
 
         in his arms.
 
         
 
              Claimant testified further to a 9 1/2 day hospitalization at 
 
         Franciscan Hospital.  He returned to work at the same job 
 
         approximately three months after the injury, but experienced 
 
         difficulties in performing the work.  Claimant testified to an 
 
         inability to carry buckets well or pull up decks.  He described 
 
         having problems in both arms and hands, the left arm and right 
 
         hand being more severely affected.
 
         
 
              Claimant testified to an increasing sensation of tingling in 
 
         his hands which gradually worsened to a continuing problem with 
 
         cramping of the hands.  While working for a subsequent employer, 
 
         claimant noticed increasing pain with cramping in the legs and 
 
         back.  Claimant believed his symptoms continued to worsen 
 
         throughout 1986.
 
         
 
              Claimant testified to treatment by James W. Turner, M.D., 
 
         beginning in 1985.  Dr. Turner performed a carpal tunnel release 
 
         in November, 1987, and returned claimant to work in March, 1988. 
 
         However, claimant believes the condition of his upper extremities 
 
         to be worse now than before the surgical procedure.  Claimant 
 
         last saw Dr. Turner in March, 1989, but was offered no further 
 
         treatment at that time.
 
         
 
              Claimant agreed on cross-examination that he has full range 
 
         of motion of the fingers and wrists, but believes his main 
 
         problem is continuing cramping problems in the hands and arms.
 
         
 
              Claimant testified to working for an enterprise known as D. 
 
         C. Taylor after leaving his employment with Vernon Bascom 
 
         Company. This was hard, difficult construction labor with a good 
 
         deal of hammer use.  Claimant agreed that most of his cramping 
 
                                                
 
                                                         
 
         problems developed after employment with D. C. Taylor, but 
 
         insisted that some of the cramping problems predated that 
 
         employment.  However, he agreed that his employment with D. C. 
 
         Taylor did aggravate the cramping problems.
 
         
 
              One major inconsistency in claimant's testimony was brought 
 
         out on cross-examination.  Claimant testified on direct 
 
         examination that he left his employment with Vernon Bascom 
 
         Company because of his complaints concerning his upper 
 
         extremities. However, in a deposition given January 16, 1987 in a 
 
         related lawsuit against a different company, claimant testified 
 
         that he did not leave Vernon Bascom Company because of physical 
 
         problems.
 
         
 
              Butch Franke testified that he currently is a coworker with 
 
         claimant and also worked with claimant at D. C. Taylor Roofing 
 
         Company.  He testified that claimant had problems on that job, 
 
         particularly with a screw shooter tool and heat welder.  Claimant 
 
         was described as continually switching tools from one hand to the 
 
         other because of his bad right hand.  Claimant would regularly 
 
         grab and rub his hands when he experienced cramping.  Mr. Franke 
 
         testified that claimant has similar problems in his current job 
 
         with a lawn care company and notes that he is claimant's roommate 
 
         when on the road.  Franke described claimant as continuing to 
 
         have cramping problems with his hands even after work.  Franke 
 
         agreed that he has known claimant since childhood and that.they 
 
         are friends.
 
         
 
              Cindy Knaack testified that she has known claimant for about 
 
         five years, starting approximately one month after the injury.  
 
         She began residing with claimant some five months after meeting 
 
         him and noticed that he began to develop problems, especially 
 
         cramping, approximately one year after his injury.  Claimant was 
 
         described as constantly complaining about the cramping problem and 
 
         has had experiences such as breaking a drinking glass with his 
 
         hand when he suffered cramps.  She testified that claimant's 
 
         problems are mostly to the right hand, but somewhat to the left.  
 
         Also, that claimant suffers leg cramps.
 
         
 
              Ms. Knaack testified that she is not currently residing with 
 
         claimant, but that she was at the time of his carpal tunnel 
 
         release.  She is still a friend.  Ms. Knaack testified that the 
 
         carpal tunnel release did not help claimant's cramping and that 
 
         the condition continued to worsen.
 
         
 
              On cross-examination, Ms. Knaack reiterated that she had 
 
         been living with claimant some five or six months when she first 
 
         noticed cramping (this being approximately one year post-injury); 
 
         she agreed that claimant was then employed with D. C. Taylor 
 
         Roofing Company.
 
         
 
              Vernon Bascom testified to owning Vernon Bascom Company.  He 
 
         is in the business of repairing brick buildings, which includes 
 
         sandblasting and tuck-pointing.  Mr. Bascom testified that 
 
         claimant complained of sore hands when he returned to work, and 
 
                                                
 
                                                         
 
         that he then took a two- to three-week break to regain his 
 
         strength before returning again.  Claimant performed his work 
 
         satisfactorily, but was not allowed to perform work that might 
 
         endanger another worker after his second return to work.  Mr. 
 
         Bascom agreed that claimant appeared to be completely recovered 
 
         and that although claimant stated his hands were alright and that 
 
         he could work, he did favor the hands.  Bascom agreed that 
 
         claimant is honest and has been a good, hard worker.
 
         
 
              Records of the Rock Island Franciscan Hospital in Rock 
 
         Island, Illinois show that claimant was admitted August 20, 1984 
 
         and discharged on August 29.  Claimant was diagnosed as suffering 
 
         four percent second and third degree burns to the torso and both 
 
         upper extremities.  Claimant was described as showing electrical 
 
         burn on the anterior upper arm and on the elbow going on down to 
 
         the mid distal service of the forearm; on the dorsal surface this 
 
         extended somewhat on the distal third.  Claimant also had burns 
 
         on the proximal and mid phalanges of the first four digits.  
 
         Claimant could make a fist, but could not extend all of the 
 
         fingers, nor could he fully extend the wrist.  The right 
 
         extremity showed deep burn on the thenar eminence with some 
 
         limitation of extension of the thumb.
 
         
 
              Claimant underwent debridement and skin grafting and was 
 
         doing well on discharge.  Claimant showed a history of a possible 
 
 
 
                          
 
                                                         
 
         heart murmur as a child.  R. A. Flowers, M.D., was called in to 
 
         see the patient in consultation, but it appeared there was no 
 
         cardiac damage.  There was a slight elevation of creatinine 
 
         phosphokinase which could be muscular in origin.
 
         
 
              Claimant was seen by James W. Turner, M.D., on April 18, 
 
         1985 and thereafter.  Dr. Turner is an orthopaedic surgeon.  His 
 
         complete medical file is in evidence along with his deposition of 
 
         October 9, 1986.
 
         
 
              After examining claimant on April 18 and May 20, 1985, Dr. 
 
         Turner wrote claimant's attorney on May 23, 1985.  He wrote that 
 
         claimant noticed problems with fatigability and cramping in the 
 
         extremities as well as intermittent and varying paresthesias to 
 
         the fingers and hands.  Claimant exhibited no gross contractures 
 
         or limited motion in the upper extremities and had full range of 
 
         motion.  Dr. Turner noted that in claimant's occupational therapy 
 
         evaluations he had shown consistent deficits to strength and 
 
         dexterity in the left hand and upper extremity with persistent 
 
         sensory deficit in ulnar distribution on the left with some 
 
         median nerve distribution on the right.  Dr. Turner recommended 
 
         that claimant return to work as soon as possible with some 
 
         restrictions in the degree of heavy lifting and climbing that he 
 
         might do.  As for evaluating claimant's functional disability at 
 
         that time, Dr. Turner stated:
 
         
 
              Rating for electrical burns with residuals can be quite 
 
              difficult, and in this case, as the patient demonstrates a 
 
              very mixed pattern that is not untypical, this too is the 
 
              case.  At this time, I feel the patient has probably reached 
 
              a plateau in return of function and demonstrates a 20% 
 
              permanent impairmancy [sic] man as a whole.  I would rate 
 
              this as 4% from the right upper extremity and 16% from the 
 
              left upper extremity.
 
         
 
              In a letter of February 18, 1986, Dr. Turner clarified this 
 
         paragraph to claimant's attorney:
 
         
 
              Apparently you did not read or at least did not understand 
 
              the fifth paragraph of my letter to you on May 23, 1985.  In 
 
              that I stated that the patient had a 20 percent permanent 
 
              impairmency [sic] man as a whole and this was derived 5 
 
              [sic] percent from the right upper extremity and 16 percent 
 
              from the left upper extremity.  This did not mean there were 
 
              4 percent and 16 percent of the upper extremities but that 
 
              was how I had proportioned the man as a whole rating.  At 
 
              that time I also stated that I felt the patient had reached 
 
              a permanent plateau.
 
         
 
              On January 31, 1989, Dr. Turner wrote claimant's attorney 
 
         again to state that unless there had been major changes from when 
 
         claimant had last been seen (March 8, 1988), he would not 
 
         anticipate any change in the impairment rating earlier given.  
 
         Dr. Turner's discussion of this rating in his deposition is 
 
         reviewed infra.
 
                                                
 
                                                         
 
         
 
              Dr. Turner's chart notes of March 8, 1988 and March 7, 1989 
 
         reflect his view that claimant had not sustained any alteration 
 
         of the impairment rating given in 1985.
 
         
 
              Dr. Turner's notes also reflect that he performed a carpal 
 
         tunnel release on November 12, 1987, more than a year after his 
 
         deposition was taken.
 
         
 
              Claimant underwent occupational therapy evaluation on May 9 
 
         and May 14, 1985 at the request of Dr. Turner.  Claimant had 
 
         range of motion of the upper extremities bilaterally within 
 
         normal limits.  Claimant demonstrated weakness bilaterally but 
 
         greater on the left than right.  There was visible intrinsic 
 
         atrophy in the left hand.  However, there was no clear-cut 
 
         correlation of test data with manual muscle test and sensory 
 
         assessment.  Results of the testing should be considered with 
 
         reservation as set forth by the occupational therapist.  It was 
 
         concluded that claimant had median, radial and ulnar motor 
 
         deficit and ulnar sensory deficit on the left with ulnar motor 
 
         and median motor and sensory deficit on the right.  "Overall 
 
         impairments appear minimal."  Claimant was evaluated by Connie 
 
         McNichols, an occupational therapist who specializes in the hands 
 
         and upper extremity evaluation or treatment.  Ms. McNichols was 
 
         described by Dr. Turner as working in his office under the 
 
         direction.of another physician.
 
         
 
              Dr. Turner was repeatedly questioned as to where claimant 
 
         demonstrated impairment.  He consistently answered that 
 
         claimant's functional disability was in the hand and arm and his 
 
         ability to use the hand and arms.  He did state:
 
         
 
              A.  Maybe I've rated it -- You know, it's my feeling that he 
 
              has more than just isolated injuries to both hands.  Okay? 
 
              And that the two have to go together.  Now, if -- if I had 
 
              rated -- I would still be saying the same thing, and if I 
 
              were to go to the tables and back it out to the extremities, 
 
              I would still come up with -- with a 20 percent man as a 
 
              whole on the impairment rating.
 
         
 
              Q.  Granted with that, but what I'm getting at is what 
 
              portion of the body as a whole has any kind of functional 
 
              disability, other than the extremities?
 
         
 
              A.  I think that -- that -- that, other than the fact that a 
 
              portion of the disability or the injury that causes the 
 
              inability to function in the hands or the upper extremities 
 
              is probably related in the trunk or the central nervous 
 
              system, you know I can't come out and say what part.
 
         
 
              Q.  Can you tell me whether the injury to the nerves might 
 
              be just in the arms or in the hands?
 
         
 
              A.  I can't tell you for sure, but I -- I can tell you that 
 
              he had a point of entry in one arm and a point of exit in 
 
                                                
 
                                                         
 
                   the other arm, and that means that the current passed from 
 
              one arm to the other.  So it went from one arm, through the 
 
              body, through the trunk, and out the other arm.  And, 
 
              therefore, it doesn't seem likely to me that the injury 
 
              occurred on this arm and this arm and skimmed the part in 
 
              between.
 
         
 
              Q.  Okay.  Let's look at it -- get at it this way:  Does he 
 
              have any functional disabilities into his chest area?
 
         
 
              A.  Don't think so, but I can't -- As far as muscular and 
 
              this, nothing that -- that shows up.
 
         
 
              Q.  All right.
 
         
 
              A.  There is always the question of cardiac latent effects 
 
              after a major shock.
 
         
 
              Q.  But I understand that's not within your field of 
 
              expertise?
 
         
 
              A.  So I left that to somebody else.  Okay?
 
         
 
              Q.  Does he have any functional disability in any part of 
 
              his body other than his arms and hands?
 
              A.  Not that I'm aware of.
 
 
 
         (Dr. Turner deposition, page 11, line 18 through page 13, line 
 
         9)
 
         
 
              Dr. Turner indicated that a multi-detailed EMG nerve 
 
         conduction study would probably show segmental losses, perhaps up 
 
         into the neck and across the shoulders as well as in the upper 
 
         extremities, but testified that the procedure was invasive and 
 
         uncomfortable and for that reason was not performed.  He agreed 
 
         that he did not know for certain what the results of such a test 
 
         might show.
 
         
 
              Testifying further as to his impairment rating, Dr. Turner 
 
         indicated:
 
         
 
              Q.  All right.  Now, if I asked to give a functional 
 
              disability rating for each extremity, what would you give?
 
         
 
              A.  I would go back and take that portion -- whatever an 
 
              upper extremity rating on the left that equates into 16 
 
              percent of the man as a whole.
 
         
 
              Q.  All right.
 
         
 
              A.  And then I would take whatever rating it takes to get 4 
 
              percent man as a whole off the right.
 
         
 
              Q.  But your letter indicates, Doctor, doesn't it, that 
 
              you're saying that he has a 4 percent right upper extremity 
 
                                                
 
                                                         
 
                   disability and a 16 percent left upper extremity?
 
         
 
              A.  I don't think I said that.
 
         
 
              Q.  I'll hand you Deposition Exhibit 1 and ask you whether 
 
              or not that's your -- Let's take a look at Deposition 
 
              Exhibit Number 1, first, if we could.
 
         
 
              A.  I could be turned around on what I'm saying in two 
 
              different places.
 
         
 
              No, I didn't say it was 4 percent -- I said 4 percent from 
 
              and 16 percent.  I didn't say of.
 
         
 
              Q.  What does Deposition Exhibit Number 1 mean, then, as far 
 
              as -- What is
 
         
 
              A.  I make the statement "At this time I feel the patient 
 
              has probably reached a plateau in return of function and 
 
              demonstrates a 20 percent permanent impairmency man as a 
 
              whole.  I would rate this as 4 percent from the right upper 
 
              extremity and 16 percent from the left upper extremity."
 
         
 
              Q.  All right.  Well, then, how -- how do we want to get a 
 
              rating for upper extremities?  If the Industrial 
 
              Commissioner asks this, what is the functional disability 
 
              rating for this left upper extremity and for his right upper 
 
              extremity, what do we have?
 
         
 
              A.  Just a second.  Excuse me.  Let me get a book.
 
         
 
              MR. BURKEY:  Okay.
 
                          
 
                                                         
 
              MR. MCLEOD:  I've got one here.
 
         
 
              Q.  Just let me back it out the other way, then, and then 
 
              let you guys --
 
         
 
              A.  26 or 27 percent of the left upper extremity and 6 or 7 
 
              percent of the right upper extremity.
 
         
 
              Q.  Tell me how you came up with that?
 
         
 
              A.  Because -- I'm backing it out.
 
         
 
              Q.  All right.  I'm not sure I follow you so we understand.
 
         
 
              A.  I took whole person 4 percent, and that -- that's either 
 
              6 or 7 percent of the upper extremity, and that's the right 
 
              one.  And I took 16 percent man as a whole, and that's 
 
              either 26 or 27 percent, and that was the left.  And I fully 
 
              agree this is a -- that I have used the -- of what I think 
 
              is a very detailed occupational therapy rating for weakness 
 
              and for multi-nerve, multi-muscle groups involvement and 
 
              applied a subjective opinion, which is mine, on it, and 
 
              that's how I derived it.
 
         
 
              Q.  You took into consideration some matters other than just 
 
              his functional disability?
 
         
 
              A.  This is what I felt that he had on the basis of the 
 
              weakness and the three muscle -- or three nerve -- three 
 
              major nerve weaknesses on the left upper extremity and one 
 
              on the right.
 
         
 
              Q.  All right.  So if I follow what you did, Doctor, you 
 
              went over to the -- to the right upper extremity and took a 
 
              look at the table 20 in the Guides To Evaluation of 
 
              Permanent Impairments from the A.M.A. and said, all right, 
 
              if he had a 4 percent whole body disability, he would have a 
 
              6 percent disability to the right upper extremity?
 
         
 
              A.  That's correct.
 
         
 
              Q.  And if he had a 16 percent whole body disability, he 
 
              would have a 26 percent upper extremity disability?
 
         
 
              A.  That's correct.
 
         
 
              Q.  Now, let me ask you this, Doctor:  In your opinion, if 
 
              you're asked what is the functional disability rating of Mr. 
 
              Moody with regard to his two upper extremities, what is your 
 
              answer?
 
         
 
              A.  Well, when you bring both arms together or both upper 
 
              extremities and everything else together and they don't have 
 
              a specific -- in other words, that they have the individual 
 
              -- they don't have one specific loss, like a loss of a 
 
                                                
 
                                                         
 
                   finger, where you have a multi-nerve/ muscle involvement in 
 
              it, it is for that reason that I chose to use the man as a 
 
              whole rating.
 
         
 
              Q.  All right.
 
         
 
              A.  And this goes back to experience, disability evaluation 
 
              for military and how we considered things on medical 
 
              evaluation boards and physician evaluation boards, discharge 
 
              --
 
         
 
              Q.  But just to clarify the record as we have it, you're 
 
              giving this gentleman a -- a 26 percent permanent partial 
 
              disability rating of the left upper extremity and a 6 
 
              percent permanent partial disability rating for the right 
 
              upper extremity?
 
         
 
              A.  Yes, only I'm wishing you would use impairment instead 
 
              of disability.
 
         
 
         (Dr. Turner deposition, page 14, line 15 through page 18, line 
 
         10)
 
         
 
              Dr. Turner also testified that when claimant was released to 
 
         return to work on July 7, 1985, his restrictions were only that 
 
         claimant basically do what he comfortably could do and that if he 
 
         had problems such as fatigue or lack of strength, he should 
 
         discontinue whatever work caused it.
 
         
 
              The record does not reflect that Dr. Turner has expressed an 
 
         opinion as to whether any causal relationship exists between the 
 
         stipulated work injury and claimant's carpal tunnel release of 
 
         1987.
 
         
 
              Claimant was seen at Mercy Hospital at Iowa City, Iowa by R. 
 
         F. Neiman, M.D., in January, 1987.  Dr. Neiman noted evidence of 
 
         scarring over the right thumb at the entrance of the electrical 
 
         shock and the exit area over the left forearm around the elbow 
 
         and around the left upper humerus.  Dr. Neiman performed 
 
         extensive EMG studies.  He felt it was an abnormal study with 
 
         definite blockage of the right median nerve at the carpal tunnel 
 
         area.  The physician stated that he was unsure if this related to 
 
         trauma or electrical injury, but that "I suspect probably 
 
         electrical injury since this would be a point of hangup of the 
 
         nerve as well."  He felt that claimant had improved remarkably 
 
         but certainly had problems.  He also believed that decompression 
 
         of the right carpal tunnel would certainly be advisable.
 
         
 
              Dr. Neiman performed a new study in October, 1987.  On 
 
         October 30, his notes reflect that claimant again had an abnormal 
 
         study compatible with a right carpal tunnel syndrome.  He 
 
         suggested, immediately prior to claimant's surgery, that a 
 
         decompression be undertaken.  Dr. Neiman further stated:  "I 
 
         think this probably is related to electrical injury, perhaps some 
 
         scarring about the nerve."
 
                                                
 
                                                         
 
         
 
              Claimant was also seen by cardiologist David A. Rater on 
 
         April 12, 1985.  Dr. Rater stated that claimant's left anterior 
 
         chest pain appeared to be chest wall in etiology and "most likely 
 
         is unrelated to the above episode although this cannot be stated 
 
         with certainty."
 
         
 
                        APPLICABLE LAW AND ANALYSIS
 
         
 
              In brief, it must be determined whether claimant's 
 
         stipulated work injury is to a scheduled member or to his body as 
 
         a whole, whether his carpal tunnel surgery is causally related to 
 
         the work injury, and the extent of claimant's disability.
 
         
 
              It is most appropriate to first discuss the nature of 
 
         claimant's disability.  The evidence shows that an electrical 
 
         current entered one upper extremity and exited through the other. 
 
         Obviously, the electrical current passed through claimant's 
 
         torso. Dr. Turner has elected to rate claimant's impairment as an 
 
         impairment to the body as a whole, but agreed in his testimony 
 
         that observable functional deficits exist only with respect to 
 
         the upper extremities.  While he suspected that further EMG 
 
         testing might reveal sensory deficits to the body as a whole, he 
 
         agreed that this was speculative.  Claimant alleges chest 
 
         discomfort, but the only cardiologist to have been consulted 
 
         believed it unrelated to the injury, at least as a probability.  
 
         Claimant complains of cramping to the legs, but no medical 
 
         evidence ties this complaint to the work injury.  It is axiomatic 
 
         that claimant bears the burden of proof in establishing the 
 
         nature of his disability, since this is fundamental to his right 
 
         to recover benefits.  There is no evidence whatsoever indicating 
 
         beyond mere conjecture that claimant has suffered an injury to 
 
         other than his two upper extremities.  It is therefore held that 
 
         claimant suffered an impairment to each upper extremity by reason 
 
         of his stipulated work injury of August 20, 1984.
 
         
 
              Iowa Code section 85.34(2)(s) provides:
 
         
 
              The loss of both arms, or both hands, or both feet, or both 
 
              legs, or both eyes, or any two thereof, caused by a single 
 
              accident, shall equal five hundred weeks and shall be 
 
              compensated as such, however, if said employee is 
 
              permanently and totally disabled the employee may be 
 
              entitled to benefits under subsection 3.
 
         
 
              The record in this case makes it clear that claimant 
 
         suffered an injury to two major members in the same incident.  
 
         The case is clearly governed by section 85.34(2)(s).  That 
 
         section has been construed in the case of Simbro v. DeLong's 
 
         Sportswear, 332 N.W.2d 886 (Iowa 1983).  The first two sentences 
 
         of that decision are dispositive of the issue here:
 
         
 
              In this appeal we hold that workers' compensation benefits 
 
              for permanent partial disability of two members caused by a 
 
              single accident is a scheduled benefit.  We also hold that 
 
                                                
 
                                                         
 
                   the degree of impairment must be computed on the basis of a 
 
              functional, rather than an industrial, disability.
 
         
 
              Thus, although claimant's impairment must be computed on the 
 
         basis of 500 weeks like an injury to the body as a whole, that 
 
         disability must nonetheless be calculated functionally and not 
 
         industrially.
 
         
 
              Only one physician has expressed an opinion as to claimant's 
 
         impairment.  From the extensive quotations cited above, Dr. 
 
         Turner's evaluation technique must be considered irregular.  The 
 
         AMA Guides to the Evaluation of Permanent Impairment are clearly 
 
         set up on the basis of its espoused philosophy (in the Third 
 
         Edition forward) that "all impairments affect the whole person, 
 
         and therefore, all impairment ratings should be combined to be 
 
         expressed as impairment of the whole person).  This is to be done 
 
         with the aid of the combined values chart contained therein.  A 
 
         review of the combined values chart shows that the intent is that 
 
         individual impairment ratings be made of the individual scheduled 
 
         members and then combined, rather than working backwards to 
 
         separate out the contribution of several impairments to a total 
 
         body as a whole impairment rating.  Nonetheless, Dr. Turner 
 
         eventually concluded, at page 18 of his deposition, that claimant 
 
         had a 26 percent permanent partial impairment rating of the left 
 
         upper extremity and a 6 percent permanent partial impairment 
 
         rating of the right upper extremity.  Even though Dr. Turner's 
 
         method was irregular, his permanency rating stands unrefuted in 
 
         this record.
 
         
 
              However, beginning from a 26 percent and a 6 percent 
 
         impairment of the upper extremities, the AMA guides are still of 
 
         use.  Table 3 of Chapter 3 shows that a 26 percent impairment to 
 
         an upper extremity corresponds to a 16 percent impairment of the 
 
 
 
                        
 
                                                         
 
         whole person.  Similarly, a 6 percent impairment of the upper 
 
         extremity corresponds to a 4 percent impairment of the whole 
 
         person.  The combined values chart reflects that 16 percent and 4 
 
         percent whole person impairments correspond to a combined 19 
 
         percent impairment of the whole person.  Therefore, it is 
 
         concluded that claimant has, by a preponderance of the evidence, 
 
         established a 19 percent functional impairment of the whole person 
 
         that is causally connected to his stipulated work injury.  
 
         Nineteen percent of 500 weeks is 95 weeks.  The evidence 
 
         supporting this conclusion is not perfect, but it is the best 
 
         available.
 
         
 
              As has been seen, Dr. Turner was further of the view that 
 
         claimant's impairment had not changed following his carpal tunnel 
 
         release.  Therefore, the only issue remaining is whether claimant 
 
         is entitled to healing period benefits during his recovery from 
 
         that surgery.  The parties have stipulated the extent of that 
 
         temporary disability.  They dispute whether a causal relationship 
 
         exists between the work injury and the carpal tunnel release.
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury of August 20, 1984 is causally 
 
         related to the disability on which he now bases his claim.  
 
         Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).  
 
         Lindahl v. L.O. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945).  A 
 
         possibility is insufficient; a probability is necessary.  Burt v. 
 
         John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 
 
         (1955).  The question of causal connection is essentially within 
 
         the domain of expert testimony.  Bradshaw v. Iowa Methodist 
 
         Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960).
 
         
 
              However, expert medical evidence must be considered with all 
 
         other evidence introduced bearing on the causal connection.  
 
         Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion of experts need 
 
         not be couched in definite, positive or unequivocal language.  
 
         Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974).  However, 
 
         the expert opinion may be accepted or rejected, in whole or in 
 
         part, by the trier of fact.  Id. at 907.  Further, the weight to 
 
         be given to such an opinion is for the finder of fact, and that 
 
         may be affected by the completeness of the premise given the 
 
         expert and other surrounding circumstances.  Bodish, 257 Iowa 
 
         516, 133 N.W.2d 867.  See also Musselman v. Central Telephone 
 
         Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
              Only one physician has rendered an opinion as to whether the 
 
         necessary causal nexus exists.  As has been seen, Dr. Neiman 
 
         performed two EMG studies on claimant in 1987, and opined after 
 
         each that claimant's abnormal study compatible with a right 
 
         carpal tunnel syndrome was probably related to the electrical 
 
         injury.  In the absence of countervailing evidence, the claimant 
 
         has met his burden of proving that probability, which is all that 
 
         is necessary to recover.  Burt.  Therefore, claimant shall be 
 
         allowed healing period from November 12, 1987 through March 14, 
 
         1988.  Healing period can be interrupted or intermittent.  Willis 
 
         v. Lehigh Portland Cement Co., II-1 Iowa Industrial Commissioner 
 
                                                
 
                                                         
 
         Decisions 485 (1984).
 
         
 
                             FINDINGS OF FACT
 
         
 
              THEREFORE, based on the evidence presented, the following 
 
         ultimate facts are found:
 
         
 
              1.  As stipulated, claimant was an employee of Vernon Bascom 
 
         Company on August 20, 1984, when he sustained an injury arising 
 
         out of and in the course of that employment.
 
         
 
              2.  Claimant suffered an electrical injury to each upper 
 
         extremity on August 20, 1984.  His functional impairment was not 
 
         shown to affect parts of the body other than the upper 
 
         extremities.
 
         
 
              3.  Claimant eventually underwent a carpal tunnel release on 
 
         November 12, 1987, the necessity for which was caused by the work 
 
         injury.
 
         
 
              4.  Claimant underwent an intermittent healing period by 
 
         reason of his work injury and the carpal tunnel release from 
 
         August 20, 1984 through September 24, 1984 and again from 
 
         November 12, 1987 through March 14, 1988.
 
         
 
              5.  Claimant suffered a permanent partial impairment of 26 
 
         percent of the left upper extremity and 6 percent of the right 
 
         upper extremity.
 
         
 
              6.  Claimant's rate of compensation has been stipulated to 
 
         be $147.35 per week.
 
         
 
                               CONCLUSIONS OF LAW
 
         
 
              WHEREFORE, based on the principles of law previously stated, 
 
         the following conclusions of law are made:
 
         
 
              1.  Claimant suffered an injury arising out of and in the 
 
         course of his employment on August 20, 1984.
 
         
 
              2.  Claimant's injury involved an injury to two specified 
 
         scheduled members in the same incident; therefore, he is to be 
 
         compensated for the impairment of each scheduled member after 
 
         conversion to body as a whole ratings and combined as a 
 
         percentage of 500 weeks of benefits.  Claimant's disability is 
 
         not to be calculated industrially.
 
         
 
              3.   Because claimant's carpal tunnel release caused only an 
 
         additional period of healing, but no additional disability, the 
 
         commencement date for permanent partial disability shall be as 
 
         the parties stipulated, October 9, 1986; payment of permanent 
 
         disability benefits shall be suspended for purposes of calculated 
 
         interest during the second episode of healing period from 
 
         November 12, 1987 through March 14, 1988.
 
         
 
                                                
 
                                                         
 
                                     ORDER
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              Defendants are to pay unto claimant twenty-two point eight 
 
         five seven (22.857) weeks of healing period benefits at the 
 
         stipulated rate of one hundred forty-seven and 35/100 dollars 
 
         ($147.35) per week, totalling three thousand three hundred 
 
         sixty-seven and 97/100 dollars ($3,367.97).  Said benefits are 
 
         for the periods from August 20, 1984 through September 24, 1984 
 
         and from November 12, 1987 through March 14, 1988.
 
         
 
              Defendants are to pay unto claimant ninety-five (95) weeks 
 
         of permanent partial disability benefits at the stipulated rate 
 
         of one hundred forty-seven and 35/100 dollars ($147.35) per week, 
 
         totalling thirteen thousand nine hundred ninety-eight and 25/100 
 
         dollars ($13,998.25).  Said benefits shall commence on October 9, 
 
         1986, but shall be suspended from November 12, 1987 to March 14, 
 
         1988, and then resume.
 
         
 
              Defendants shall be entitled to credit for all benefits 
 
         voluntarily paid to claimant prior to the date of this decision.
 
         
 
              As all benefits have accrued as of the date of this 
 
         decision, they shall be paid in a lump sum together with 
 
         statutory interest pursuant to Iowa Code section 85.30.
 
         
 
              Costs of this action are assessed to defendants pursuant to 
 
         Division of Industrial Services Rule 343-4.33.
 
         
 
              Defendants shall 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 October, 1989.
 
         
 
         
 
         
 
         
 
         
 
         
 
                                            DAVID RASEY
 
                                            DEPUTY INDUSTRIAL 
 
                                            COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Max Burkey
 
         Attorney at Law
 
         100 Court Avenue, Suite 121
 
         Des Moines, Iowa  50309
 
         
 
         Mr. Scott E. McLeod
 
         Attorney at Law
 
         526 Second Avenue SE
 
                                                
 
                                                         
 
         P.O. Box 2457
 
         Cedar Rapids, Iowa  52406-2457