Page   1
 
         
 
         
 
         
 
         
 
         
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         ____________________________________________________________
 
                                       :
 
         KIMBERLY TURNER,              :
 
                                       :
 
              Claimant,                :
 
                                       :
 
         vs.                           :
 
                                       :      File No. 860345
 
         LOUIS RICH COMPANY,           :
 
                                       :        A P P E A L
 
              Employer,                :
 
                                       :      D E C I S I O N
 
         and                           :
 
                                       :
 
         LIBERTY MUTUAL INSURANCE      :
 
         COMPANY,                      :
 
                                       :
 
              Insurance Carrier,       :
 
              Defendants.              :
 
         ___________________________________________________________
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              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.
 
         
 
                                      ISSUES
 
         
 
              Those portions of the proposed agency decision pertaining to 
 
         issues not raised on appeal are adopted as a part of this appeal 
 
         decision.  The issues raised on appeal are:
 
         
 
                1.  Did the deputy err in finding that claimant 
 
              sustained an injury arising out of and in the course of 
 
              her employment on August 10, 1987?
 
         
 
                2.  Did the deputy err in finding that claimant was 
 
              permanently totally disabled and that such disability 
 
              was a result of an alleged injury?
 
         
 
                3.  Did the deputy err in awarding medical benefits?
 
         
 
                4.  Did the deputy err in assessing 86.13 penalty 
 
              benefits?
 
         
 
                                 FINDINGS OF FACT
 
         
 
              The findings of fact contained in the proposed agency 
 
         decision filed June 5, 1991 are adopted as set forth below.  
 
         Segments designated by asterisks (*****) indicate portions of the 
 
         language from the proposed agency decision that have been 
 
         intentionally deleted and do not form a part of this final agency 
 
         decision.
 
         
 
              *****
 
         
 

 
         
 
         Page   2
 
         
 
         
 
         
 
         
 
              Claimant worked for Louis Rich as a meat trimmer from 
 
         February 1978 until shortly after her unsuccessful attempt to 
 
         return to work in March 1988, at which time she was terminated by 
 
         Louis Rich for an inability to return to work.  At the time of 
 
         the injury, claimant's job involved the use of her left hand to 
 
         hold the meat and the right hand to hold the knife and make the 
 
         necessary cuts.  The trimming occurred in a rapid, repetitive 
 
         motion on an assembly line basis along with other trimmers.  On 
 
         this line, claimant was expected to trim the meat approximately 
 
         every 30 seconds during the course of the day.  According to a 
 
         supervisor, claimant was a good employee and a good worker prior 
 
         to her injury.
 
         
 
              It is specifically found that claimant performed the rapid, 
 
         repetitive use of both of her hands and arms in a cold 
 
         environment.  The temperature of claimant's work area was in 
 
         dispute at hearing.  Claimant and a fellow employee testified 
 
         that the temperature rarely exceeded 55 degrees, even in the 
 
         summertime.  Her supervisor testified that in the summer, this 
 
         temperature was 60-65 degrees.  The Louis Rich safety director, 
 
         who testified by stipulated testimony (not under oath), stated 
 
         that in the summer this could vary up to 75 degrees.  The 
 
         testimony of claimant and her fellow employee was the most 
 
         credible and convincing.  Also, it is found that claimant was 
 
         required on a regular basis to work with ice cold meat, some of 
 
         which still had particles of ice clinging to it during the 
 
         trimming process.  This, according to claimant and a fellow 
 
         employee, caused considerable difficulties in the trimming 
 
         process, despite wearing gloves.  Claimant's supervisor did not 
 
         dispute the working with cold meat at hearing, except that 
 
         claimant was also expected to work on the fresh meat line which 
 
         had meat that was warmer.  However, this meat also had to remain 
 
         cool so it would not spoil.
 
         
 
              On or about August 10, 1987, claimant injured both of her 
 
         arms from a simultaneous event or single injury.  This injury has 
 
         been diagnosed as consisting of a variety of overuse syndromes 
 
         and a condition called "Raynaud's syndrome" from overuse of her 
 
         hands and arms in a cold environment.  This injury occurred 
 
         gradually over a period of time and the date of August 10, 1987 
 
         is when claimant could no longer tolerate the pain in both of her 
 
         arms and she left work to seek medical treatment.  Claimant has 
 
         returned only for a brief three day period in March 1988 in an 
 
         unsuccessful attempt to return to work to a lighter duty job of 
 
         scaling meat.  However, claimant was again compelled by the hand 
 
         and arm pain to end the scaling job and to leave Louis Rich 
 
         permanently.  The finding of a work injury was based upon the 
 
         views of a treating board certified physician in internal 
 
         medicine, Nyle Kauffman, M.D., who began treating claimant in 
 
         February 1988.
 
         
 
              Claimant's symptoms in August 1987 consisted of pain and 
 
         numbness in both hands, wrists and forearms, along with 
 
         discoloration of the fingers.  Also, both of claimant's hands 
 
         were continually cool to the touch.  Claimant was initially 
 
         diagnosed and treated for a variety of overuse syndromes and 
 
         tendonitis of her hands, elbows and arms due to claimant's work 
 
         at Louis Rich.  Claimant was treated initially by William 
 
         Catalona, M.D., an orthopaedic surgeon; William Irey, M.D., 
 
         another orthopaedic surgeon; and, William Eversmann, M.D., a hand 
 

 
         
 
         Page   3
 
         
 
         
 
         
 
         
 
         surgeon.  When conservative treatment of claimant's hand and arm 
 
         condition failed to improve claimant's symptoms after several 
 
         months, claimant was referred by her physicians to Dr. Kauffman 
 
         for what appeared to them from testing to be Raynaud's syndrome.  
 
         Initially, Dr. Kauffman rejected such a diagnosis because 
 
         claimant's symptoms did not appear to be affected by the cold 
 
         from the history he had at that time.  Further testing of 
 
         claimant over the next several months resulted in multiple 
 
         impressions from various consulting physicians, including a 
 
         possible diagnosis of Lupus, connective tissue disease, carpal 
 
         tunnel syndrome and mild Collegan vascular disease.  By June 
 
         1988, Dr. Kauffman rejected the other possible diagnoses and 
 
         concluded that claimant indeed was suffering from Raynaud's 
 
         syndrome.  He further concluded that this was caused by 
 
         claimant's work.  Dr. Kauffman explained in his deposition 
 
         testimony that the process of diagnosing this syndrome is a 
 
         matter of rejecting other possible diagnoses.  After mentioning 
 
         that the medical literature does recognize that Raynaud's 
 
         syndrome can be caused occupationally, he noted that claimant's 
 
         symptoms were always worse at work and that she was using her 
 
         hands repetitively in a cold environment.  Dr. Kauffman stated 
 
         that Raynaud's can have other causes as well and in claimant's 
 
         case, these other causative factors may be also present.  These 
 
         other possible causes are a history of smoking, her female gender 
 
         and the possible presence of other diseases.  However, according 
 
         to Dr. Kauffman, claimant's work history was the most significant 
 
         causative factor.  Dr. Kauffman believes that claimant's 
 
         condition is for the most part permanent and he would not expect 
 
         much improvement over the next 15-20 years.
 
         
 
              Two other internists have provided their opinions in this 
 
         case with reference to claimant's symptoms and causes.  Steven 
 
         Eyanson, M.D., an assistant professor of medicine at the 
 
         University of Iowa Hospitals and Clinics, testified in his 
 
         deposition that, although he agrees that claimant's symptoms 
 
         resemble Raynaud's, he could not make a final, definite diagnosis 
 
         of that condition or conclude with medical certainty that it was 
 
         caused by claimant's work.  Dr. Eyanson also diagnosed that 
 
         claimant's pain is due to chronic musculoskeletal pain syndrome 
 
         and that again he could not causally relate this condition to 
 
         claimant's work to a "medical certainty."
 
         
 
              Another internist, Robert W. Karr, M.D., at the University 
 
         of Iowa Hospitals and Clinics, opined that claimant's symptoms 
 
         can be diagnosed as Raynaud's and that it was not caused by her 
 
         work.  However, he stated that claimant's work may cause the 
 
         episodes of Raynaud's to be more frequent.  He goes on to state, 
 
         as Dr. Eyanson, that claimant is suffering from chronic pain 
 
         syndrome, but departs from Dr. Eyanson by opining that this 
 
         chronic pain syndrome is caused by claimant's work at Louis Rich.
 
         
 
              Given these views, the greater weight of opinion favors the 
 
         finding of a causal connection between claimant's symptoms at the 
 
         present time in her arms and hands and her job at Louis Rich, 
 
         whether or not the condition is Raynaud's or chronic pain 
 
         syndrome.  However, the medical views of Dr. Kauffman, the 
 
         treating board certified internist, appear the most convincing 
 
         and it will be found that claimant's injury of August 10, 1987 is 
 
         indeed Raynaud's syndrome, caused by her repetitive hand and arm 
 

 
         
 
         Page   4
 
         
 
         
 
         
 
         
 
         work in a cold environment at Louis Rich.  Dr. Eyanson is 
 
         certainly eminently qualified, but he was not as familiar with 
 
         claimant's clinical history as was Dr. Kauffman.  Also, Dr. 
 
         Eyanson's use of the words "medical certainty" suggested that he 
 
         may very well incorrectly believe that he must render an opinion 
 
         to a scientific certainty rather than as a matter of reasonable 
 
         medical certainty, or as a matter of medical probability.  Dr. 
 
         Karr failed to explain in his written report what he meant by 
 
         increased frequency of Raynaud's symptoms.  Certainly if a 
 
         condition is lighted up or accelerated by a work injury, that 
 
         also is compensable under the Iowa workers' compensation laws.
 
         
 
              It will be further found that claimant's Raynaud's syndrome 
 
         injury is limited to the arm and does not extend into the 
 
         shoulder or body as a whole.  Admittedly, claimant did complain 
 
         occasionally of shoulder pain.  However, no physician has opined 
 
         that claimant's Raynaud's syndrome or any physical injury to the 
 
         components of the shoulder are involved.  Claimant only complains 
 
         of pain as a part of the pain she experiences in her wrists and 
 
         arms.  As explained by Drs. Kauffman and Eyanson, Raynaud's is a 
 
         spasmodic contraction or constriction of the arteries in the 
 
         hands and arms.  It is not intrinsic to the blood or the 
 
         circulatory system.  Injuries to the nerves, bones, muscles and 
 
         arteries of the hand and arm are injuries to the hand and arm, 
 
         not to the body as a whole simply because they involve a major 
 
         system such as the circulatory system.  We do not find a body as 
 
         a whole injury in carpal tunnel syndrome simply because it 
 
         involves an entrapment of a nerve of the nervous system.
 
         
 
              Furthermore, the injury and its consequent disability and 
 
         inability to return to work also caused claimant to suffer mild 
 
         mental depression which to date has been successfully treated 
 
         with medication by Dr. Kauffman.
 
         
 
              As a result of the work injury of August 10, 1987, claimant 
 
         has a 20 percent permanent partial impairment to each arm.  This 
 
         is based upon the views of Dr. Karr.  Drs. Eyanson and Kauffman 
 
         did not render a permanent partial impairment rating.  The hand 
 
         surgeon, Dr. Eversmann, in November 1988 had concluded that 
 
         claimant did not suffer from permanent partial impairment due to 
 
         the inconsistency of his measurements during his evaluation of 
 
         claimant.  However, he stated that these findings may very well 
 
         be due to the presence of Raynaud's syndrome and that he would 
 
         have to leave such measurement of that condition to another 
 
         person who is more familiar with the symptoms.  Therefore, Dr. 
 
         Karr's rating, the only rating by someone with familiarity with 
 
         Raynaud's syndrome, was the most credible and was used in the 
 
         finding.
 
         
 
              Although no formal work restrictions have been imposed by 
 
         Dr. Kauffman, he recommends that claimant refrain from working 
 
         with her hands in a cold environment.  Dr. Kauffman states that 
 
         she has a considerable functional loss of use of her hands.  
 
         Claimant is unable to perform any demanding work with her hands, 
 
         even typing and clerical filing.  This finding is based upon the 
 
         views of not only Dr. Kauffman, but also claimant's testimony as 
 
         to her rehabilitation efforts to return to work and her 
 
         experiences with inability to perform clerical and filing work 
 

 
         
 
         Page   5
 
         
 
         
 
         
 
         
 
         while she was seeking vocational retraining at a local community 
 
         college.
 
         
 
              As a result of the work injury of August 10, 1987, claimant 
 
         has suffered a total or 100 percent loss of earning capacity.  
 
         Before her hand problem at Louis Rich, claimant had no functional 
 
         impairment or ascertainable disabilities.  Claimant was able to 
 
         fully perform physical tasks involving heavy and repetitive 
 
         lifting and repetitive use of her hands and arms.  Claimant held 
 
         jobs in assembly in the past where she soldered electrical 
 
         components.  Claimant also was a waitress on one occasion and 
 
         performed clerical work as a receptionist for a chiropractor.  
 
         Before her employment at Louis Rich, she was also able to perform 
 
         janitorial work cleaning apartments and offices.  Due to her 
 
         current physical limitations, claimant's medical condition 
 
         prevents her from returning to her former job at Louis Rich and 
 
         to any other job she has held in the past.  Although claimant is 
 
         relatively young at 31 years of age and does have a high school 
 
         education, she has been unable to date to return to the labor 
 
         market.  She has made a reasonable but unsuccessful attempt to 
 
         return to work at Louis Rich.  She has looked for work 
 
         unsuccessfully in the area of her residence.  Claimant has a 
 
         hobby of raising a few horses on her parents' property.  This 
 
         activity does not appear at this time to be a viable alternative 
 
         employment option given her disability, her lack of experience 
 
         and her resources.  She participated in work/skills training at a 
 
         local community college which involved typing and filing.  Her 
 
         counselor at the community college has submitted a letter stating 
 
         that due to claimant's hand problems, she probably could not hold 
 
         down a full time permanent job.  Claimant's credible testimony 
 
         established that she applied to over 50 potential employers prior 
 
         to hearing without success.  Defendants have done little to 
 
         assist claimant in her plight or to attempt vocational 
 
         rehabilitation.  Defendants have terminated her and have failed 
 
         to offer any other employment to her, despite a wide variety of 
 
         jobs at Louis Rich.  Defendants failed to offer any evidence to 
 
         suggest that claimant has suitable and stable employment 
 
         available to her in the geographical area of her residence or 
 
         even within reasonable commuting distance from her residence.  
 
         The greater weight of evidence clearly indicates that claimant at 
 
         the present time is unemployable.
 
         
 
              It is further found that claimant was denied weekly 
 
         compensation benefits for this injury beginning on March 10, 
 
         1989.  The record fails to show that, at that time, defendants 
 
         had a medical opinion to controvert the views of Dr. Kauffman 
 
         that claimant was suffering from Raynaud's syndrome and that this 
 
         syndrome was work related.  Although eventually defendants did 
 
         find a doctor to support their position, Dr. Eyanson, this was 
 
         not obtained until after Dr. Eyanson's evaluation of claimant and 
 
         the issuing of his opinion on January 24, 1991.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              The conclusions of law contained in the proposed agency 
 
         decision filed June 5, 1991 are adopted as set forth below.  
 
         Segments designated by asterisks (*****) indicate portions of the 
 
         language from the proposed agency decision that have been 
 

 
         
 
         Page   6
 
         
 
         
 
         
 
         
 
         intentionally deleted and do not form a part of this final agency 
 
         decision.
 
         
 
              I.  Claimant has the burden of proving by a preponderance of 
 
         the evidence that claimant received an injury which arose out of 
 
         and in the course of employment.  The words "out of" refer to the 
 
         cause or source of the injury.  The words "in the course of" 
 
         refer to the time and place and circumstances of the injury.  See 
 
         Cedar Rapids Community Sch. v. Cady, 278 N.W.2d 298 (Iowa 1979); 
 
         Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 402, 68 N.W.2d 63 
 
         (1955).  An employer takes an employee subject to any active or 
 
         dormant health impairments, and a work connected injury which 
 
         more than slightly aggravates the condition is considered to be a 
 
         personal injury.  Ziegler v. United States Gypsum Co., 252 Iowa 
 
         613, 620, 106 N.W.2d 591 (1960) and cases cited therein.
 
         
 
              It is not necessary that claimant prove her disability 
 
         results from a sudden, unexpected traumatic event.  It is 
 
         sufficient to show that the disability developed gradually or 
 
         progressively from work activity over a period of time.  McKeever 
 
         Custom Cabinets v. Smith, 379 N.W.2d 368 (Iowa 1985).  The 
 
         McKeever court also held that the date of injury in gradual 
 
         injury cases is the time when pain prevents the employee from 
 
         continuing to work.
 
         
 
              In the case sub judice, applying the McKeever doctrine, the 
 
         injury was found to have occurred when claimant left work on 
 
         August 10, 1987.
 
         
 
              II.  Claimant must establish, by a preponderance of the 
 
         evidence, the extent of weekly benefits for permanent disability 
 
         to which claimant is entitled.  As the claimant has shown that 
 
         the work injury involved a permanent impairment to two upper 
 
         extremities from a single accident, the extent of disability is 
 
         measured pursuant to Iowa Code section 85.34(2)(s).  Measurement 
 
         of disability under that subsection is unique.  Under this Code 
 
         section, if the industrial disability is less than permanent and 
 
         total, then the extent of permanent disability benefits is 
 
         measured only functionally as a percentage of loss of use for 
 
         each extremity which is then translated into a percentage of the 
 
         body as a whole and combined together into one body as a whole 
 
         value.  If the industrial disability is total or a total loss of 
 
         earning capacity is found to have occurred, measuring the 
 
         disability industrially, then claimant is entitled to permanent 
 
         total disability benefits under Iowa Code section 85.34(3).  See 
 
         Simbro v. DeLong's Sportswear, 332 N.W.2d 886 (Iowa 1983); 
 
         Burgett v. Man An So Corp., III Iowa Industrial Commissioner 
 
         Report 38 (App. Decn. 1982).
 
         
 
              Unlike scheduled member disabilities, the degree of 
 
         industrial disability is not measured solely by the extent of a 
 
         functional impairment or the loss of use of a body member.  A 
 
         disability to the body as a whole or "industrial disability" is a 
 
         loss of earning capacity resulting from the work injury.  
 
         Diederich v. Tri-City Ry. Co., 219 Iowa 587, 593, 258 N.W. 899 
 
         (1935).  A physical impairment or restriction on work activity 
 
         may or may not result in such a loss of earning capacity.  The 
 
         extent to which a work injury and the resulting medical condition 
 
         have resulted in an industrial disability is determined from an 
 

 
         
 
         Page   7
 
         
 
         
 
         
 
         
 
         examination of several factors.  These factors include the 
 
         employee's medical condition prior to the injury, immediately 
 
         after the injury and presently; the situs of the injury, its 
 
         severity and the length of healing period; the work experience of 
 
         the employee prior to the injury, after the injury and the 
 
         potential for rehabilitation; the employee's qualifications 
 
         intellectually, emotionally and physically; earnings prior to and 
 
         subsequent to the injury; age; education; motivation; functional 
 
         impairment as a result of the injury; and, inability because of 
 
         the injury to engage in employment for which the employee is 
 
         fitted.  Loss of earnings caused by a job transfer for reasons 
 
         related to the injury is also relevant.  Olson v. Goodyear Serv. 
 
         Stores, 255 Iowa 1112, 1121, 125 N.W.2d 251, 257 (1963); Peterson 
 
         v. Truck Haven Cafe, Inc., file number 420539 (App. Decn., 
 
         February 28, 1985).
 
         
 
              In arriving at the finding of permanent total disability, 
 
         the so-called "odd-lot doctrine" was applied in this case.  The 
 
         doctrine is a procedural device designed to shift the burden of 
 
         proof with respect to employability to the employer in certain 
 
         factual situations.  Klein v. Furnas Elec. Co., 384 N.W.2d 370, 
 
         375 (Iowa 1986).  A worker becomes an "odd-lot" employee when an 
 
         injury makes the worker incapable of obtaining employment in any 
 
         well known branch of the labor market.  Guyton v. Irving Jensen 
 
         Co., 373 N.W.2d 101, 105 (Iowa 1985).  An "odd-lot" worker can 
 
         only perform services that are so limited in quality, 
 
         dependability or quantity that a reasonably stable market for 
 
         them does not exist.  Id.  In Guyton, the supreme court held that 
 
         under the "odd-lot" doctrine, there is no presumption that merely 
 
         because the worker is physically able to do certain work, such 
 
         work is available.  When a worker makes a prima facie case of 
 
         total disability by producing substantial evidence that the 
 
         worker is not employable in the competitive labor market, the 
 
         burden to produce evidence shifts to the employer.  If the 
 
         employer fails to produce such evidence and if the trier of fact 
 
         finds that a worker does fall in the "odd-lot" category, the 
 
         worker is entitled to a finding of total disability.  Id. at 106.
 
         
 
              In the case sub judice, claimant made a reasonable effort to 
 
         find suitable work and produced evidence of her unemployability 
 
         in the competitive local labor market of her residence.  Also, 
 
         the refusal of Louis Rich to return claimant to work in any 
 
         capacity is evidence of a very serious disability.  See 2 Larson 
 
         The Law of Workmen's Compensation, section 57.61, pp. 10-164.90 
 
         to .95.  However, despite the evidence showing a prima facie case 
 
         of permanent total disability, defendants did not go forward with 
 
         the evidence on the issue of availability of suitable and stable 
 
         work for claimant.  Therefore, it was found that claimant does 
 
         fall into the "odd-lot" category and claimant will be awarded 
 
         permanent total disability benefits accordingly.
 
         
 
              Based upon a finding of the total loss of earning capacity, 
 
         claimant is entitled as a matter of law to permanent total 
 
         disability benefits under Iowa Code section 85.34(3) which 
 
         consists of weekly benefits for an indefinite period of time 
 
         during claimant's period of disability.  Absent an improvement in 
 
         claimant's condition, these benefits will continue for the rest 
 

 
         
 
         Page   8
 
         
 
         
 
         
 
         
 
         of her life.
 
         
 
              With reference to the dispute over healing period, as 
 
         permanent total disability benefits begin with the first day of 
 
         absence from work, the healing period issue is moot.
 
         
 
              III.  Pursuant to Iowa Code section 85.27, claimant is 
 
         entitled to payment of reasonable medical expenses incurred for 
 
         treatment of her work injury.  However, claimant is entitled to 
 
         an order of reimbursement only if claimant has paid those 
 
         expenses.  Otherwise, claimant is entitled only to an order 
 
         directing the responsible defendants to make those payments.  See 
 
         Krohn v. State, 420 N.W.2d 463 (Iowa 1988).
 
         
 
              In the case at bar, it was found that claimant's disabling 
 
         condition was work related and compensable.  Given the parties' 
 
         stipulation in the prehearing report that the requested medical 
 
         expenses were causally connected to this condition, claimant will 
 
         be awarded the requested expenses.
 
         
 
              IV.  Finally, claimant seeks additional weekly benefits 
 
         under Iowa Code section 86.13.  The unnumbered last paragraph of 
 
         that Code section states as follows:
 
         
 
              If a delay in commencement or termination of benefits 
 
              occurs without reasonable or probable cause or excuse, 
 
              the industrial commissioner shall award benefits in 
 
              addition to those benefits payable under this chapter, 
 
              or chapter 85, 85A, or 85B, up to fifty percent of the 
 
              amount of benefits that were unreasonably delayed or 
 
              denied.
 
         
 
                 *****
 
         
 
              Turning to the case sub judice, it is found that, despite an 
 
         opinion from an authorized treating physician, Dr. Kauffman that 
 
         the claimant's disabling condition was work related, claimant was 
 
         terminated from her employment and her benefits ended without a 
 
         corresponding or contrary opinion from a physician.  In fact, 
 
         according to the evidence in this case, defendants did not 
 
         receive such an opinion that would justify their denial of the 
 
         claim until 19 months later.  There simply was no credible 
 
         evidence at the time they denied the claim that would support 
 
         their denial and their denial of the claim was clearly 
 
         unreasonable.  To be fairly debatable, a medical opinion must be 
 
         challenged only by another medical opinion or at least by 
 
         controverting facts upon which the opinion was based.  Defendants 
 
         had no defense in this case at the time they denied the claim 
 
         between March 20, 1989 and January 24, 1991.  It is concluded 
 
         that claimant was unreasonably denied benefits during this period 
 
         of time.  Claimant is entitled to a reasonable penalty of an 
 
         additional 40 weeks of weekly benefits over and above the payment 
 
         of permanent total disability benefits that will be awarded 
 
         herein.
 
         
 
              WHEREFORE, the decision of the deputy is affirmed.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, it is ordered:
 

 
         
 
         Page   9
 
         
 
         
 
         
 
         
 
         
 
              That defendants shall pay to claimant permanent total 
 
         disability benefits at the rate of one hundred seventy-eight and 
 
         70/100 dollars ($178.70) per week from August 11, 1987 through 
 
         March 20, 1988 and from March 24, 1988 and continuing thereafter 
 
         for an indefinite period of time during claimant's period of 
 
         disability.
 
         
 
              That in addition to the weekly payments of permanent total 
 
         disability as set forth above, defendants shall pay to claimant 
 
         an additional weekly sum of one hundred seventy-eight and 70/100 
 
         dollars ($178.70) per week for a period of forty (40) weeks from 
 
         March 20, 1989 as a penalty under Iowa Code section 86.13, 
 
         unnumbered paragraph 4.
 
         
 
              That defendants shall pay the medical expenses listed in the 
 
         prehearing report.  Claimant shall be reimbursed for any of these 
 
         expenses paid by her.  Otherwise, defendants shall pay the 
 
         provider directly.
 
         
 
              That defendants shall pay accrued weekly benefits in a lump 
 
         sum and shall receive a credit for weekly benefits paid.
 
         
 
              That defendants shall pay interest on weekly benefits 
 
         awarded herein as set forth in Iowa Code section 85.30.
 
         
 
              That defendants shall pay the costs of this matter including 
 
         the transcription of the hearing.  
 
         
 
              That defendants shall file claim activity reports on the 
 
         payment of this award as requested by this agency pursuant to 
 
         rule 343 IAC 3.1.
 
         
 
              Signed and filed this ____ day of April, 1993.
 
         
 
         
 
         
 
         
 
                                       ________________________________
 
                                                BYRON K. ORTON
 
                                           INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Jack C. Paige
 
         Attorney at Law
 
         Suite 700, Higley Building
 
         P O Box 1968
 
         Cedar Rapids, Iowa  52406-1968
 
         
 
         Mr. Greg A. Egbers
 
         Mr. Mark A. Woollums
 
         Attorneys at Law
 
         600 Union Arcade Building
 
         111 East Third Street
 
         Davenport, Iowa  52801
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                               1103; 4000; 4100
 
                                               Filed April 30, 1993
 
                                               BYRON K. ORTON
 
                                               LPW
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            KIMBERLY TURNER,              :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 860345
 
            LOUIS RICH COMPANY,           :
 
                                          :        A P P E A L
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            LIBERTY MUTUAL INSURANCE      :
 
            COMPANY,                      :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
            1103
 
            Raynaud's syndrome found work related based upon the views 
 
            of the treating board-certified physician.
 
            
 
            4000
 
            Penalty benefits awarded.  Despite a causal connection 
 
            opinion from a treating authorized physician that the 
 
            disability was work related, claimant was denied benefits 
 
            for a period of 19 months until such time as defendants 
 
            obtained a supportive medical opinion of their position 
 
            denying the claim.  An additional 40 weeks of benefits over 
 
            and above permanent total disability benefits awarded was 
 
            assessed as a penalty.
 
            
 
            4100
 
            Odd-lot doctrine applied.  Defendants failed to go forward 
 
            with the evidence after claimant demonstrated a prima facie 
 
            case for permanent total disability along with a reasonable 
 
            but unsuccessful effort to find suitable work.  The failure 
 
            of the defendants to return claimant to work to any job 
 
            constituted a significant aspect of the prima facie case.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            KIMBERLY TURNER,              :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :         File No. 860345
 
                                          :
 
            LOUIS RICH COMPANY,           :      A R B I T R A T I O N
 
                                          :
 
                 Employer,                :         D E C I S I O N
 
                                          :
 
            and                           :
 
                                          :
 
            LIBERTY MUTUAL INSURANCE      :
 
            COMPANY,                      :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding in arbitration brought by Kimberly 
 
            Turner, claimant, against Louis Rich Company, employer, 
 
            hereinafter referred to as Louis Rich, and Liberty Mutual 
 
            Insurance Company, insurance carrier, defendants, for 
 
            workers' compensation benefits as the result of an alleged 
 
            injury on August 10, 1987.  On April 9, 1991, a hearing was 
 
            held on claimant's petition and the matter was considered 
 
            fully submitted at the close of this hearing.
 
            
 
                 The parties have submitted a prehearing report of 
 
            contested issues and stipulations which was approved and 
 
            accepted as a part of the record of this case at the time of 
 
            hearing.  Oral testimony and written exhibits were received 
 
            during the hearing from the parties.  The exhibits received 
 
            into the evidence are listed in the prehearing report.
 
            
 
                 According to the prehearing report, the parties have 
 
            stipulated to the following matters:
 
            
 
                 1.  An employee-employer relationship existed between 
 
            claimant and Louis Rich at the time of the alleged injury.
 
            
 
                 2.  Claimant is seeking temporary total disability or 
 
            healing period benefits from August 11, 1987 through March 
 
            20, 1988 and for a second period of time from March 24, 1988 
 
            through November 27, 1989 and defendants agree that she was 
 
            not working during these periods of time.
 
            
 
                 3.  Claimant's rate of weekly compensation shall be 
 
            $178.70.
 
            
 
                 4.  With reference to the requested medical benefits, 
 
            it was agreed that the fees were reasonable and that the 
 
            providers would testify that the treatment was reasonable 
 
            and necessary.  Defendants are not offering contrary 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            evidence.  It was also agreed that these expenses were 
 
            causally connected to the condition upon which the claim was 
 
            based, but the causal connection of the condition to a work 
 
            injury remained in dispute.
 
            
 
                                      issues
 
            
 
                 The parties submitted the following issues for 
 
            determination in this proceeding:
 
            
 
                 I.  Whether claimant received an injury arising out of 
 
            and in the course of her employment;
 
            
 
                 II.  The extent of claimant's entitlement to disability 
 
            benefits;
 
            
 
                 III.  The extent of claimant's entitlement to medical 
 
            benefits; and,
 
            
 
                 IV.  The extent of claimant's entitlement to penalty 
 
            benefits, if any, for an unreasonable delay or denial of 
 
            benefits.
 
            
 
                                 findings of fact
 
            
 
                 Having heard the testimony and considered all the 
 
            evidence, the deputy industrial commissioner finds as 
 
            follows:
 
            
 
                 A credibility finding is necessary to this decision as 
 
            defendants placed claimant's credibility at issue during 
 
            cross-examination as to the nature and extent of the injury 
 
            and disability.  From her demeanor while testifying, 
 
            claimant is found credible.
 
            
 
                 Claimant worked for Louis Rich as a meat trimmer from 
 
            February 1978 until shortly after her unsuccessful attempt 
 
            to return to work in March 1988, at which time she was 
 
            terminated by Louis Rich for an inability to return to work.  
 
            At the time of the injury, claimant's job involved the use 
 
            of her left hand to hold the meat and the right hand to hold 
 
            the knife and make the necessary cuts.  The trimming 
 
            occurred in a rapid, repetitive motion on an assembly line 
 
            basis along with other trimmers.  On this line, claimant was 
 
            expected to trim the meat approximately every 30 seconds 
 
            during the course of the day.  According to a supervisor, 
 
            claimant was a good employee and a good worker prior to her 
 
            injury.
 
            
 
                 It is specifically found that claimant performed the 
 
            rapid, repetitive use of both of her hands and arms in a 
 
            cold environment.  The temperature of claimant's work area 
 
            was in dispute at hearing.  Claimant and a fellow employee 
 
            testified that the temperature rarely exceeded 55 degrees, 
 
            even in the summertime.  Her supervisor testified that in 
 
            the summer, this temperature was 60-65 degrees.  The Louis 
 
            Rich safety director, who testified by stipulated testimony 
 
            (not under oath), stated that in the summer this could vary 
 
            up to 75 degrees.  The testimony of claimant and her fellow 
 
            employee was the most credible and convincing.  Also, it is 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            found that claimant was required on a regular basis to work 
 
            with ice-cold meat, some of which still had particles of ice 
 
            clinging to it during the trimming process.  This, according 
 
            to claimant and a fellow employee, caused considerable 
 
            difficulties in the trimming process, despite wearing 
 
            gloves.  Claimant's supervisor did not dispute the working 
 
            with cold meat at hearing, except that claimant was also 
 
            expected to work on the fresh meat line which had meat that 
 
            was warmer.  However, this meat also had to remain cool so 
 
            it would not spoil.
 
            
 
                 On or about August 10, 1987, claimant injured both of 
 
            her arms from a simultaneous event or single injury.  This 
 
            injury has been diagnosed as consisting of a variety of 
 
            overuse syndromes and a condition called "Raynaud's 
 
            syndrome" from overuse of her hands and arms in a cold 
 
            environment.  This injury occurred gradually over a period 
 
            of time and the date of August 10, 1987 is when claimant 
 
            could no longer tolerate the pain in both of her arms and 
 
            she left work to seek medical treatment.  Claimant has 
 
            returned only for a brief three-day period in March 1988 in 
 
            an unsuccessful attempt to return to work to a lighter-duty 
 
            job of scaling meat.  However, claimant was again compelled 
 
            by the hand and arm pain to end the scaling job and to leave 
 
            Louis Rich permanently.  The finding of a work injury was 
 
            based upon the views of a treating board-certified physician 
 
            in internal medicine, Nyle Kauffman, M.D., who began 
 
            treating claimant in February 1988.
 
            
 
                 Claimant's symptoms in August 1987 consisted of pain 
 
            and numbness in both hands, wrists and forearms, along with 
 
            discoloration of the fingers.  Also, both of claimant's 
 
            hands were continually cool to the touch.  Claimant was 
 
            initially diagnosed and treated for a variety of overuse 
 
            syndromes and tendonitis of her hands, elbows and arms due 
 
            to claimant's work at Louis Rich.  Claimant was treated 
 
            initially by William Catalona, M.D., an orthopaedic surgeon; 
 
            William Irey, M.D., another orthopaedic surgeon; and, 
 
            William Eversmann, M.D., a hand surgeon.  When conservative 
 
            treatment of claimant's hand and arm condition failed to 
 
            improve claimant's symptoms after several months, claimant 
 
            was referred by her physicians to Dr. Kauffman for what 
 
            appeared to them from testing to be Raynaud's syndrome.  
 
            Initially, Dr. Kauffman rejected such a diagnosis because 
 
            claimant's symptoms did not appear to be affected by the 
 
            cold from the history he had at that time.  Further testing 
 
            of claimant over the next several months resulted in 
 
            multiple impressions from various consulting physicians, 
 
            including a possible diagnosis of Lupus, connective tissue 
 
            disease, carpal tunnel syndrome and mild Collegan vascular 
 
            disease.  By June 1988, Dr. Kauffman rejected the other 
 
            possible diagnoses and concluded that claimant indeed was 
 
            suffering from Raynaud's syndrome.  He further concluded 
 
            that this was caused by claimant's work.  Dr. Kauffman 
 
            explained in his deposition testimony that the process of 
 
            diagnosing this syndrome is a matter of rejecting other 
 
            possible diagnoses.  After mentioning that the medical 
 
            literature does recognize that Raynaud's syndrome can be 
 
            caused occupationally, he noted that claimant's symptoms 
 
            were always worse at work and that she was using her hands 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            repetitively in a cold environment.  Dr. Kauffman stated 
 
            that Raynaud's can have other causes as well and in 
 
            claimant's case, these other causative factors may be also 
 
            present.  These other possible causes are a history of 
 
            smoking, her female gender and the possible presence of 
 
            other diseases.  However, according to Dr. Kauffman, 
 
            claimant's work history was the most significant causative 
 
            factor.  Dr. Kauffman believes that claimant's condition is 
 
            for the most part permanent and he would not expect much 
 
            improvement over the next 15-20 years.
 
            
 
                 Two other internists have provided their opinions in 
 
            this case with reference to claimant's symptoms and causes.  
 
            Steven Eyanson, M.D., an assistant professor of medicine at 
 
            the University of Iowa Hospitals and Clinics, testified in 
 
            his deposition that, although he agrees that claimant's 
 
            symptoms resemble Raynaud's, he could not make a final, 
 
            definite diagnosis of that condition or conclude with 
 
            medical certainty that it was caused by claimant's work.  
 
            Dr. Eyanson also diagnosed that claimant's pain is due to 
 
            chronic musculoskeletal pain syndrome and that again he 
 
            could not causally relate this condition to claimant's work 
 
            to a "medical certainty."
 
            
 
                 Another internist, Robert W. Karr, M.D., at the 
 
            University of Iowa Hospitals and Clinics, opined that 
 
            claimant's symptoms can be diagnosed as Raynaud's and that 
 
            it was not caused by her work.  However, he stated that 
 
            claimant's work may cause the episodes of Raynaud's to be 
 
            more frequent.  He goes on to state, as Dr. Eyanson, that 
 
            claimant is suffering from chronic pain syndrome, but 
 
            departs from Dr. Eyanson by opining that this chronic pain 
 
            syndrome is caused by claimant's work at Louis Rich.
 
            
 
                 Given these views, the greater weight of opinion favors 
 
            the finding of a causal connection between claimant's 
 
            symptoms at the present time in her arms and hands and her 
 
            job at Louis Rich, whether or not the condition is Raynaud's 
 
            or chronic pain syndrome.  However, the medical views of Dr. 
 
            Kauffman, the treating board-certified internist, appear the 
 
            most convincing and it will be found that claimant's injury 
 
            of August 10, 1987 is indeed Raynaud's syndrome, caused by 
 
            her repetitive hand and arm work in a cold environment at 
 
            Louis Rich.  Dr. Eyanson is certainly eminently qualified, 
 
            but he was not as familiar with claimant's clinical history 
 
            as was Dr. Kauffman.  Also, Dr. Eyanson's use of the words 
 
            "medical certainty" suggested that he may very well 
 
            incorrectly believe that he must render an opinion to a 
 
            scientific certainty rather than as a matter of reasonable 
 
            medical certainty, or as a matter of medical probability.  
 
            Dr. Karr failed to explain in his written report what he 
 
            meant by increased frequency of Raynaud's symptoms.  
 
            Certainly if a condition is lighted up or accelerated by a 
 
            work injury, that also is compensable under the Iowa 
 
            workers' compensation laws.
 
            
 
                 It will be further found that claimant's Raynaud's 
 
            syndrome injury is limited to the arm and does not extend 
 
            into the shoulder or body as a whole.  Admittedly, claimant 
 
            did complain occasionally of shoulder pain.  However, no 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            physician has opined that claimant's Raynaud's syndrome or 
 
            any physical injury to the components of the shoulder are 
 
            involved.  Claimant only complains of pain as a part of the 
 
            pain she experiences in her wrists and arms.  As explained 
 
            by Drs. Kauffman and Eyanson, Raynaud's is a spasmodic 
 
            contraction or constriction of the arteries in the hands and 
 
            arms.  It is not intrinsic to the blood or the circulatory 
 
            system.  Injuries to the nerves, bones, muscles and arteries 
 
            of the hand and arm are injuries to the hand and arm, not to 
 
            the body as a whole simply because they involve a major 
 
            system such as the circulatory system.  We do not find a 
 
            body as a whole injury in carpal tunnel syndrome simply 
 
            because it involves an entrapment of a nerve of the nervous 
 
            system.
 
            
 
                 Furthermore, the injury and its consequent disability 
 
            and inability to return to work also caused claimant to 
 
            suffer mild mental depression which to date has been 
 
            successfully treated with medication by Dr. Kauffman.
 
            
 
                 As a result of the work injury of August 10, 1987, 
 
            claimant has a 20 percent permanent partial impairment to 
 
            each arm.  This is based upon the views of Dr. Karr.  Drs. 
 
            Eyanson and Kauffman did not render a permanent partial 
 
            impairment rating.  The hand surgeon, Dr. Eversmann, in 
 
            November 1988 had concluded that claimant did not suffer 
 
            from permanent partial impairment due to the inconsistency 
 
            of his measurements during his evaluation of claimant.  
 
            However, he stated that these findings may very well be due 
 
            to the presence of Raynaud's syndrome and that he would have 
 
            to leave such measurement of that condition to another 
 
            person who is more familiar with the symptoms.  Therefore, 
 
            Dr. Karr's rating, the only rating by someone with 
 
            familiarity with Raynaud's syndrome, was the most credible 
 
            and was used in the finding.
 
            
 
                 Although no formal work restrictions have been imposed 
 
            by Dr. Kauffman, he recommends that claimant refrain from 
 
            working with her hands in a cold environment.  Dr. Kauffman 
 
            states that she has a considerable functional loss of use of 
 
            her hands.  Claimant is unable to perform any demanding work 
 
            with her hands, even typing and clerical filing.  This 
 
            finding is based upon the views of not only Dr. Kauffman, 
 
            but also claimant's testimony as to her rehabilitation 
 
            efforts to return to work and her experiences with inability 
 
            to perform clerical and filing work while she was seeking 
 
            vocational retraining at a local community college.
 
            
 
                 As a result of the work injury of August 10, 1987, 
 
            claimant has suffered a total or 100 percent loss of earning 
 
            capacity.  Before her hand problem at Louis Rich, claimant 
 
            had no functional impairment or ascertainable disabilities.  
 
            Claimant was able to fully perform physical tasks involving 
 
            heavy and repetitive lifting and repetitive use of her hands 
 
            and arms.  Claimant held jobs in assembly in the past where 
 
            she soldered electrical components.  Claimant also was a 
 
            waitress on one occasion and performed clerical work as a 
 
            receptionist for a chiropractor.  Before her employment at 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            Louis Rich, she was also able to perform janitorial work 
 
            cleaning apartments and offices.  Due to her current 
 
            physical limitations, claimant's medical condition prevents 
 
            her from returning to her former job at Louis Rich and to 
 
            any other job she has held in the past.  Although claimant 
 
            is relatively young at 31 years of age and does have a high 
 
            school education, she has been unable to date to return to 
 
            the labor market.  She has made a reasonable but 
 
            unsuccessful attempt to return to work at Louis Rich.  She 
 
            has looked for work unsuccessfully in the area of her 
 
            residence.  Claimant has a hobby of raising a few horses on 
 
            her parents' property.  This activity does not appear at 
 
            this time to be a viable alternative employment option given 
 
            her disability, her lack of experience and her resources.  
 
            She participated in work/skills training at a local 
 
            community college which involved typing and filing.  Her 
 
            counselor at the community college has submitted a letter 
 
            stating that due to claimant's hand problems, she probably 
 
            could not hold down a full-time permanent job.  Claimant's 
 
            credible testimony established that she applied to over 50 
 
            potential employers prior to hearing without success.  
 
            Defendants have done little to assist claimant in her plight 
 
            or to attempt vocational rehabilitation.  Defendants have 
 
            terminated her and have failed to offer any other employment 
 
            to her, despite a wide variety of jobs at Louis Rich.  
 
            Defendants failed to offer any evidence to suggest that 
 
            claimant has suitable and stable employment available to her 
 
            in the geographical area of her residence or even within 
 
            reasonable commuting distance from her residence.  The 
 
            greater weight of evidence clearly indicates that claimant 
 
            at the present time is unemployable.
 
            
 
                 It is further found that claimant was denied weekly 
 
            compensation benefits for this injury beginning on March 10, 
 
            1989.  The record fails to show that, at that time, 
 
            defendants had a medical opinion to controvert the views of 
 
            Dr. Kauffman that claimant was suffering from Raynaud's 
 
            syndrome and that this syndrome was work related.  Although 
 
            eventually defendants did find a doctor to support their 
 
            position, Dr. Eyanson, this was not obtained until after Dr. 
 
            Eyanson's evaluation of claimant and the issuing of his 
 
            opinion on January 24, 1991.
 
            
 
                                conclusions of law
 
            
 
                 I.  Claimant has the burden of proving by a 
 
            preponderance of the evidence that claimant received an 
 
            injury which arose out of and in the course of employment.  
 
            The words "out of" refer to the cause or source of the 
 
            injury.  The words "in the course of" refer to the time and 
 
            place and circumstances of the injury.  See Cedar Rapids 
 
            Community Sch. v. Cady, 278 N.W.2d 298 (Iowa 1979); Crowe v. 
 
            DeSoto Consol. Sch. Dist., 246 Iowa 402, 68 N.W.2d 63 
 
            (1955).  An employer takes an employee subject to any active 
 
            or dormant health impairments, and a work connected injury 
 
            which more than slightly aggravates the condition is 
 
            considered to be a personal injury.  Ziegler v. United 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            States Gypsum Co., 252 Iowa 613, 620, 106 N.W.2d 591 (1960) 
 
            and cases cited therein.
 
            
 
                 It is not necessary that claimant prove her disability 
 
            results from a sudden, unexpected traumatic event.  It is 
 
            sufficient to show that the disability developed gradually 
 
            or progressively from work activity over a period of time.  
 
            McKeever Custom Cabinets v. Smith, 379 N.W.2d 368 (Iowa 
 
            1985).  The McKeever court also held that the date of injury 
 
            in gradual injury cases is the time when pain prevents the 
 
            employee from continuing to work.
 
            
 
                 In the case sub judice, applying the McKeever doctrine, 
 
            the injury was found to have occurred when claimant left 
 
            work on August 10, 1987.
 
            
 
                 II.  Claimant must establish, by a preponderance of the 
 
            evidence, the extent of weekly benefits for permanent 
 
            disability to which claimant is entitled.  As the claimant 
 
            has shown that the work injury involved a permanent 
 
            impairment to two upper extremities from a single accident, 
 
            the extent of disability is measured pursuant to Iowa Code 
 
            section 85.34(2)(s).  Measurement of disability under that 
 
            subsection is unique.  Under this Code section, if the 
 
            industrial disability is less than permanent and total, then 
 
            the extent of permanent disability benefits is measured only 
 
            functionally as a percentage of loss of use for each 
 
            extremity which is then translated into a percentage of the 
 
            body as a whole and combined together into one body as a 
 
            whole value.  If the industrial disability is total or a 
 
            total loss of earning capacity is found to have occurred, 
 
            measuring the disability industrially, then claimant is 
 
            entitled to permanent total disability benefits under Iowa 
 
            Code section 85.34(3).  See Simbro v. DeLong's Sportswear, 
 
            332 N.W.2d 886 (Iowa 1983); Burgett v. Man An So Corp., III 
 
            Iowa Industrial Commissioner Report 38 (App. Decn. 1982).
 
            
 
                 Unlike scheduled member disabilities, the degree of 
 
            industrial disability is not measured solely by the extent 
 
            of a functional impairment or the loss of use of a body 
 
            member.  A disability to the body as a whole or "industrial 
 
            disability" is a loss of earning capacity resulting from the 
 
            work injury.  Diederich v. Tri-City Ry. Co., 219 Iowa 587, 
 
            593, 258 N.W. 899 (1935).  A physical impairment or 
 
            restriction on work activity may or may not result in such a 
 
            loss of earning capacity.  The extent to which a work injury 
 
            and the resulting medical condition have resulted in an 
 
            industrial disability is determined from an examination of 
 
            several factors.  These factors include the employee's 
 
            medical condition prior to the injury, immediately after the 
 
            injury and presently; the situs of the injury, its severity 
 
            and the length of healing period; the work experience of the 
 
            employee prior to the injury, after the injury and the 
 
            potential for rehabilitation; the employee's qualifications 
 
            intellectually, emotionally and physically; earnings prior 
 
            to 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 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            which the employee is fitted.  Loss of earnings caused by a 
 
            job transfer for reasons related to the injury is also 
 
            relevant.  Olson v. Goodyear Serv. Stores, 255 Iowa 1112, 
 
            1121, 125 N.W.2d 251, 257 (1963); Peterson v. Truck Haven 
 
            Cafe, Inc., file number 420539 (App. Decn., February 28, 
 
            1985).
 
            
 
                 In arriving at the finding of permanent total 
 
            disability, the so-called "odd-lot doctrine" was applied in 
 
            this case.  The doctrine is a procedural device designed to 
 
            shift the burden of proof with respect to employability to 
 
            the employer in certain factual situations.  Klein v. Furnas 
 
            Elec. Co., 384 N.W.2d 370, 375 (Iowa 1986).  A worker 
 
            becomes an "odd-lot" employee when an injury makes the 
 
            worker incapable of obtaining employment in any well-known 
 
            branch of the labor market.  Guyton v. Irving Jensen Co., 
 
            373 N.W.2d 101, 105 (Iowa 1985).  An "odd-lot" worker can 
 
            only perform services that are so limited in quality, 
 
            dependability or quantity that a reasonably stable market 
 
            for them does not exist.  Id.  In Guyton, the supreme court 
 
            held that under the "odd-lot" doctrine, there is no 
 
            presumption that merely because the worker is physically 
 
            able to do certain work, such work is available.  When a 
 
            worker makes a prima facie case of total disability by 
 
            producing substantial evidence that the worker is not 
 
            employable in the competitive labor market, the burden to 
 
            produce evidence shifts to the employer.  If the employer 
 
            fails to produce such evidence and if the trier of fact 
 
            finds that a worker does fall in the "odd-lot" category, the 
 
            worker is entitled to a finding of total disability.  Id. at 
 
            106.
 
            
 
                 In the case sub judice, claimant made a reasonable 
 
            effort to find suitable work and produced evidence of her 
 
            unemployability in the competitive local labor market of her 
 
            residence.  Also, the refusal of Louis Rich to return 
 
            claimant to work in any capacity is evidence of a very 
 
            serious disability.  See 2 Larson The Law of Workmen's 
 
            Compensation, section 57.61, pp. 10-164.90 to .95.  However, 
 
            despite the evidence showing a prima facie case of permanent 
 
            total disability, defendants did not go forward with the 
 
            evidence on the issue of availability of suitable and stable 
 
            work for claimant.  Therefore, it was found that claimant 
 
            does fall into the "odd-lot" category and claimant will be 
 
            awarded permanent total disability benefits accordingly.
 
            
 
                 Based upon a finding of the total loss of earning 
 
            capacity, claimant is entitled as a matter of law to 
 
            permanent total disability benefits under Iowa Code section 
 
            85.34(3) which consists of weekly benefits for an indefinite 
 
            period of time during claimant's period of disability.  
 
            Absent an improvement in claimant's condition, these 
 
            benefits will continue for the rest of her life.
 
            
 
                 With reference to the dispute over healing period, as 
 
            permanent total disability benefits begin with the first day 
 
            of absence from work, the healing period issue is moot.
 
            
 
                 III.  Pursuant to Iowa Code section 85.27, claimant is 
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            entitled to payment of reasonable medical expenses incurred 
 
            for treatment of her work injury.  However, claimant is 
 
            entitled to an order of reimbursement only if claimant has 
 
            paid those expenses.  Otherwise, claimant is entitled only 
 
            to an order directing the responsible defendants to make 
 
            those payments.  See Krohn v. State, 420 N.W.2d 463 (Iowa 
 
            1988).
 
            
 
                 In the case at bar, it was found that claimant's 
 
            disabling condition was work related and compensable.  Given 
 
            the parties' stipulation in the prehearing report that the 
 
            requested medical expenses were causally connected to this 
 
            condition, claimant will be awarded the requested expenses.
 
            
 
                 IV.  Finally, claimant seeks additional weekly benefits 
 
            under Iowa Code section 86.13.  The unnumbered last 
 
            paragraph of that Code section states as follows:
 
            
 
                 If a delay in commencement or termination of 
 
                 benefits occurs without reasonable or probable 
 
                 cause or excuse, the industrial commissioner shall 
 
                 award benefits in addition to those benefits 
 
                 payable under this chapter, or chapter 85, 85A, or 
 
                 85B, up to fifty percent of the amount of benefits 
 
                 that were unreasonably delayed or denied.
 
            
 
                 The Iowa Supreme Court has not delineated the precise 
 
            legal test to be utilized in applying this statutory 
 
            language.  However, guidance can be gleaned from the Iowa 
 
            Supreme Court decisions involving actions against insurance 
 
            carriers for bad faith denial of insurance claims in the law 
 
            of torts.  Pirkl v. Northwest Mut. Ins. Ass'n, 348 N.W.2d 
 
            633 (Iowa 1984); M-Z Enterprises, Inc. v. Hawkeye-Security 
 
            Ins. Co., 318 N.W.2d 408, 414-415 (Iowa 1982).  In M-Z 
 
            Enterprises, the court stated that in those states which 
 
            recognize a cause of action for bad faith, in order to 
 
            prevail, the insured must show the absence of a reasonable 
 
            basis for denying benefits and the insurer's knowledge or 
 
            reckless disregard of the lack of reasonable basis for 
 
            denying the claim.  When the claim is "'fairly debatable,' 
 
            the insurer is entitled to debate it, whether the debate 
 
            concerns a matter of fact or law."  M-Z Enterprises, at 415 
 
            (quoting favorably Anderson v. Continental Ins. Co., 85 Wis. 
 
            2d 675, 691-92, 271 N.W.2d 368, 376-77 (1978)).
 
            
 
                 Application of the bad faith theory to workers' 
 
            compensation cases was dealt with by the Wisconsin Supreme 
 
            Court, who does recognize a cause of action for bad faith 
 
            denial and who instructed their Wisconsin hearing officers 
 
            as follows in applying its own statutory bad faith 
 
            provisions in the workers' compensation statute.  They 
 
            stated that the issue of bad faith is reached only after a 
 
            final award had been made.  A hearing officer then examines 
 
            the record to determine if there is any credible evidence 
 
            which would demonstrate that the claim is fairly debatable.  
 
            If the examiner finds that there is no credible evidence 
 
            upon which the employer or insurer could rely to conclude 
 
            that the claim was fairly debatable, the examiner then 
 
            determines if the employer's or insurer's actions in denying 
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
            payment were reasonable.  This test is an objective one from 
 
            the standpoint of the employer or the insurer.  When 
 
            deciding whether the employer's actions were reasonable, it 
 
            is necessary to determine if the claim is properly 
 
            investigated and if the results of the investigation were 
 
            subject to reasonable evaluation and review.  The examiner 
 
            must base the decision upon the information or data that 
 
            the employer or insurer had in its possession at the time 
 
            that the claim for benefits was denied and how that 
 
            information was used.  See Kimberly-Clark Corp. v. Labor & 
 
            Indus. Review Comm'n, 138 Wis. 2d 58, 405 N.W.2d 684, 688 
 
            (1987).
 
            
 
                 The approach by the state of Wisconsin is logical and 
 
            objective to the bad faith issue.  Therefore, in the absence 
 
            of any other precise testing delineated by a higher 
 
            authority, the Wisconsin test will be utilized.  
 
            Furthermore, Iowa Code section 507B.4(9) which contains a 
 
            statutory laundry list of unfair insurance claims practices 
 
            is also a helpful tool in assessing the reasonableness of 
 
            claims adjustment activity.
 
            
 
                 Turning to the case sub judice, it is found that, 
 
            despite an opinion from an authorized treating physician, 
 
            Dr. Kauffman that the claimant's disabling condition was 
 
            work related, claimant was terminated from her employment 
 
            and her benefits ended without a corresponding or contrary 
 
            opinion from a physician.  In fact, according to the 
 
            evidence in this case, defendants did not receive such an 
 
            opinion that would justify their denial of the claim until 
 
            19 months later.  There simply was no credible evidence at 
 
            the time they denied the claim that would support their 
 
            denial and their denial of the claim was clearly 
 
            unreasonable.  To be fairly debatable, a medical opinion 
 
            must be challenged only by another medical opinion or at 
 
            least by controverting facts upon which the opinion was 
 
            based.  Defendants had no defense in this case at the time 
 
            they denied the claim between March 20, 1989 and January 24, 
 
            1991.  It is concluded that claimant was unreasonably denied 
 
            benefits during this period of time.  It is the opinion of 
 
            this deputy industrial commissioner that a reasonable 
 
            penalty for such an unfair claims practice is an additional 
 
            40 weeks of weekly benefits over and above the payment of 
 
            permanent total disability benefits that will be awarded 
 
            herein.
 
            
 
                                      order
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 1.  Defendants shall pay to claimant permanent total 
 
            disability benefits at the rate of one hundred seventy-eight 
 
            and 70/100 dollars ($178.70) per week from August 11, 1987 
 
            through March 20, 1988 and from March 24, 1988 and 
 
            continuing thereafter for an indefinite period of time 
 
            during claimant's period of disability.
 
            
 
                 2.  In addition to the weekly payments of permanent 
 
            total disability as set forth above, defendants shall pay to 
 
            claimant an additional weekly sum of one hundred 
 

 
            
 
            Page  11
 
            
 
            
 
            
 
            
 
            seventy-eight and 70/100 dollars ($178.70) per week for a 
 
            period of forty (40) weeks from March 20, 1989 as a penalty 
 
            under Iowa Code section 86.13, unnumbered paragraph 4.
 
            
 
                 3.  Defendants shall pay the medical expenses listed in 
 
            the prehearing report.  Claimant shall be reimbursed for any 
 
            of these expenses paid by her.  Otherwise, defendants shall 
 
            pay the provider directly, along with any lawful late 
 
            payment penalties imposed upon the account by the provider.
 
            
 
                 4.  Defendants shall pay accrued weekly benefits in a 
 
            lump sum and shall receive a credit for weekly benefits 
 
            paid.
 
            
 
                 5.  Defendants shall pay interest on weekly benefits 
 
            awarded herein as set forth in Iowa Code section 85.30.
 
            
 
                 6.  Defendants shall pay the costs of this action 
 
            pursuant to rule 343 IAC 4.33, including reimbursement to 
 
            claimant for any filing fee paid in this matter.
 
            
 
                 7.  Defendants shall file claim activity reports on the 
 
            payment of this award as requested by this agency pursuant 
 
            to rule 343 IAC 3.1.
 
            
 
                 Signed and filed this ______ day of ____________, 1991.
 
            
 
                 
 
            
 
                 
 
                 
 
                                          ______________________________
 
                                          LARRY P. WALSHIRE
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Jack C. Paige
 
            Attorney at Law
 
            Suite 700, Higley Building
 
            P.O. Box 1968
 
            Cedar Rapids, Iowa  52406-1968
 
            
 
            Mr. Greg A. Egbers
 
            Mr. Mark A. Woollums
 
            Attorneys at Law
 
            600 Union Arcade Building
 
            111 East Third Street
 
            Davenport, Iowa  52801
 
            
 
                 
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                               1103; 4000; 4100
 
                                               Filed June 5, 1991
 
                                               LARRY P. WALSHIRE
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            KIMBERLY TURNER,              :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :         File No. 860345
 
                                          :
 
            LOUIS RICH COMPANY,           :      A R B I T R A T I O N
 
                                          :
 
                 Employer,                :         D E C I S I O N
 
                                          :
 
            and                           :
 
                                          :
 
            LIBERTY MUTUAL INSURANCE      :
 
            COMPANY,                      :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
            1103
 
            
 
                 Raynaud's syndrome found work related based upon the 
 
            views of the treating board-certified physician.
 
            
 
            4000
 
            
 
                 Penalty benefits awarded.  Despite a causal connection 
 
            opinion from a treating authorized physician that the 
 
            disability was work related, claimant was denied benefits 
 
            for a period of 19 months until such time as defendants 
 
            obtained a supportive medical opinion of their position 
 
            denying the claim.  It was found that the failure to have a 
 
            physician opinion contrary to the views of claimant's 
 
            physician constituted an unreasonable claims practice and an 
 
            unreasonable denial of benefits.  An additional 40 weeks of 
 
            benefits over and above permanent total disability benefits 
 
            awarded was assessed as a penalty.
 
            
 
            4100
 
            
 
                 Odd-lot doctrine applied.  Defendants failed to go 
 
            forward with the evidence after claimant demonstrated a 
 
            prima facie case for permanent total disability along with a 
 
            reasonable but unsuccessful effort to find suitable work.  
 
            The failure of the defendants to return claimant to work to 
 
            any job constituted a significant aspect of the prima facie 
 
            case.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            KAREN LOVE,                   :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 860475
 
            EARLHAM MANOR CARE CENTER,    :               834098
 
                                          :
 
                 Employer,                :    A R B I T R A T I O N
 
                                          :
 
            and                           :      D E C I S I O N
 
                                          :
 
            IOWA HEALTH CARE ASSOCIATION, :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding in arbitration brought by Karen 
 
            Love, claimant, against Earlham Manor Care Center, employer, 
 
            and Iowa Health Care Association, insurance carrier, as 
 
            defendants.  Claimant alleges work injuries dated September 
 
            21, 1986 and August 6, 1987.  The matter came on for hearing 
 
            on January 29, 1991 at Des Moines, Iowa.
 
            
 
                 The evidence consists of testimony from the claimant; 
 
            Karen Stricklett, a vocational rehabilitation expert; joint 
 
            exhibits 1 through 64 and, joint exhibit 85.27.
 
            
 
                 The parties presented the following issues for 
 
            resolution:
 
            
 
                 1.  Whether there is a causal relationship between 
 
            claimant's injury and her permanent disability;
 
            
 
                 2.  Whether claimant is entitled to temporary 
 
            disability or healing period benefits or permanent partial 
 
            or total disability benefits;
 
            
 
                 3.  Whether claimant is an odd-lot employee; and, 
 
            
 
                 4.  Whether medical expenses incurred are causally 
 
            related to the work injury.
 
            
 
                     
 
            
 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            findings of fact
 
            
 
                 The undersigned deputy, having heard the testimony and 
 
            reviewed all of the evidence received, finds the following 
 
            facts:
 
            
 
                 Karen Love, claimant, was born March 4, 1945 in Stuart, 
 
            Iowa.  She quit high school while attending tenth grade, and 
 
            has received no further education, although she completed 60 
 
            hours of nursing assistant courses at Des Moines Area 
 
            Community College.  Claimant stated she was an average 
 
            student.
 
            
 
                 Claimant was married in 1963, and was a full-time 
 
            mother to four (4) children until 1977.  In January of 1977, 
 
            claimant began working as a nursing assistant at the Stuart 
 
            Community Care Center in Stuart, Iowa.  Her job duties 
 
            included making beds; bathing and feeding residents; and, 
 
            overall care to the residents at the care center.  Claimant 
 
            worked in this position for approximately one and one-half 
 
            years, and earned $2.90 per hour.
 
            
 
                 In 1978, claimant secured employment at the Midway 
 
            Lounge in Redfield, Iowa.  She was not a full-time employee, 
 
            and worked sporadic hours.  Her job duties included waiting 
 
            on customers; attending the cash register; mixing drinks; 
 
            and, cleaning.  She considered her position as supplying on 
 
            the job training, and was hired by a friend.  She worked at 
 
            the lounge for approximately one year, and earned $3.00 per 
 
            hour.  The evidence shows claimant earned a total $698.90 
 
            during her employment with the lounge.
 
            
 
                 Claimant's next position came in December of 1983 when 
 
            she was hired by the Earlham Manor Care Center, the 
 
            defendant in this case.  She was hired as a nursing 
 
            assistant, and her job duties included helping residents get 
 
            into and out of bed and chairs; bathing and feeding the 
 
            residents; and, helping prepare and feed the residents.  She 
 
            experienced no low back problems or any type of physical 
 
            difficulties in performing the work at the center.
 
            
 
                 Claimant's first claim is based on an alleged injury 
 
            occurring on September 21, 1986.  Claimant described the 
 
            episode as helping a patient out of an easy chair to a 
 
            wheelchair in order to feed lunch to the patient.  As she 
 
            and another aide were helping the resident, they lifted the 
 
            resident, the resident twisted, and claimant hurt her low 
 
            back. 
 
            
 
                 Claimant sought treatment from Donald Hanlon, D.O., who 
 
            diagnosed a soft tissue injury to the lumbar and dorsal 
 
            areas.  (Joint Exhibit 1, Page 1)  She was treated with 
 
            Flexeril and "sonic" treatment.  Claimant continued to treat 
 
            with Dr. Hanlon, and was released to return to full-time 
 
            work with no restrictions on October 4, 1986.  She returned 
 
            to the Earlham Manor Care Center and performed her previous 
 
            job duties without restrictions.
 
            
 
                 Claimant continued to work full-time, including some 
 
            overtime until the second injury which occurred on August 6, 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            1987.  On this date, claimant was helping another aide put a 
 
            resident into his bed.  As they lifted the resident, 
 
            claimant slipped on lotion that had been spilled on the 
 
            floor.  She twisted, fell to the floor, and the resident 
 
            fell on top of her.
 
            
 
                 Claimant continued to work for the next hour, and was 
 
            then sent to Thomas Bergstrom for low back pain.  Claimant 
 
            saw Dr. Bergstrom on two occasions, and was off of work for 
 
            one week.  Dr. Bergstrom diagnosed "acute back strain" and 
 
            referred claimant to Ronald Bunten, M.D.  (Jt. Ex. 3, P. 7)
 
            
 
                 Claimant continued under Dr. Bunten's care from August 
 
            17, 1987 through September 26, 1990. 
 
            
 
                 On August 17, 1987, Dr. Bunten diagnosed claimant's 
 
            problem as "degenerative disc disease, lumbar spine, 
 
            aggravated by trauma."  He recommended that claimant begin 
 
            to walk, and use heat, rest, and salicylates to help control 
 
            her symptoms.  (Jt. Ex. 4, P. 8)
 
            
 
                 Claimant was re-evaluated on September 11, 1987.  
 
            Claimant did not show significant improvement in her 
 
            symptoms, and Dr. Bunten contemplated referral to the Low 
 
            Back Institute for more intensive rehabilitative measures.  
 
            (Jt. Ex. 3, P. 9)
 
            
 
                 Claimant continued to treat with Dr. Bunten, and 
 
            remained off of her usual duties at the care center.  On 
 
            November 4, 1987, claimant was referred to the Low Back 
 
            Institute at Iowa Methodist Medical Center, and was 
 
            instructed to attend back school and a work hardening 
 
            program and was counseled on an exercise program with weight 
 
            reduction and physical therapy evaluation and treatment.  
 
            (Jt. Ex. 4, P. 9; Jt. Ex. 6, P. 13)
 
            
 
                 Claimant began the physical therapy at the Low Back 
 
            Institute, and continued to treat with Dr. Bunten.  On 
 
            December 2, 1987, he noted that claimant's "general course 
 
            as been one of improvement, but she has had ups and downs."  
 
            (Jt. Ex. 4, P. 9)  Claimant developed right sciatic 
 
            symptoms, and began using Darvocet for pain control.  
 
            Claimant remained off of work, and continued her program at 
 
            the institute.  (Jt. Ex. 4, P. 10)
 
            
 
                 In January of 1988, claimant's sessions with the Low 
 
            Back Institute were discontinued, due to poor compliance and 
 
            sporadic attendance.  (Jt. Ex. 4, P. 10)  She remained off 
 
            of work, and on February 12, 1988, Dr. Bunten evaluated 
 
            claimant as having a 15 percent permanent partial impairment 
 
            of the body as a whole.  He opined that claimant could not 
 
            return to work as a nurse aide, but could be retrained for 
 
            more sedentary work activities.  (Jt. Ex. 4, P. 11)
 
            
 
                 On April 1, 1988, claimant again sought treatment from 
 
            Dr. Bunten, complaining of low back pain radiating 
 
            bilaterally to the buttocks with right sciatic symptoms to 
 
            the foot.  Dr. Bunten ordered a CAT scan, and prescribed 
 
            Tylenol III.  Results of the CAT scan showed a disc 
 
            protrusion at L5-S1.  Dr. Bunten then ordered a myelography 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            and considered a laminectomy.  Claimant was admitted to the 
 
            hospital on April 5, 1988.  (Jt. Ex. 4, P. 11; Ex. 10, P. 
 
            17)
 
            
 
                 The results of the myelogram failed to show any 
 
            significant encroachment.  Claimant continued off of work, 
 
            and was prescribed a program of walking and weight 
 
            reduction, with use of Ibuprofen and Tylenol III to control 
 
            the symptoms.  (Jt. Ex. 13, P. 21)  Claimant was released 
 
            from the hospital on April 6, 1988.  (Jt. Ex. 13, P. 22)
 
            
 
                 Claimant was admitted to the emergency room at Iowa 
 
            Methodist Medical Center on April 23, 1988 complaining of 
 
            numbness in her legs.  Apparently, claimant relayed that her 
 
            right leg gave out and she fell while at home, hitting her 
 
            right knee and forehead.  Claimant's knee was wrapped, and 
 
            she was sent home the same evening.  (Jt. Ex. 15, P. 26; Jt. 
 
            Ex. 16, P. 27; Jt. Ex. 17, P. 28)
 
            
 
                 On April 24, 1988, claimant again presented herself at 
 
            the emergency room at Iowa Methodist Medical Center.  The 
 
            evidence indicates she had a syncopic episode, and 
 
            complained of persistent low back pain.  The evidence also 
 
            indicates claimant had chronic anxiety.  She was admitted to 
 
            the hospital.  (Jt. Ex. 19, P. 30; Jt. Ex. 20, P. 31)
 
            
 
                 Claimant was given a holter to monitor her heart.  The 
 
            results were normal.  The evidence indicates that both 
 
            blackout episodes were preceded by severe sharp stabbing low 
 
            back pain, and she denied a previous history of seizure or 
 
            disorder of syncope.  While at the hospital, claimant was 
 
            treated by Kevin Cunningham, M.D., who made the following 
 
            notations:
 
            
 
                 ASSESSMENT:
 
            
 
                 1) Recurrent syncopal episodes--I feel that these 
 
                 are most likely vasovagal in case; postmicturation 
 
                 syncope also was related to the initial episode. 
 
                 2) Chronic severe low back pain.
 
            
 
                 3) Low back injury, August, 1987--nursing home 
 
                 incident.
 
            
 
                 4) Chronic cigarette smoker.
 
            
 
                 5) Previous hysterectomy, cholecystectomy, 
 
                 tonsillectomy, and appendectomy.
 
            
 
                 6) History of chronic anxiety.
 
            
 
                 7) Apparent gastritis, 1986.
 
            
 
            (Jt. Ex. 22, P. 33; Jt. Ex. 23, PP. 34-35)
 
            
 
                 Claimant was discharged on April 29, 1988, and was 
 
            instructed to again undergo physical therapy to treat her 
 
            low back pain.  (Jt. Ex. 24, P. 36; Jt. Ex. 25, P. 37)
 
            
 
                 Claimant was discharged from physical therapy on May 2, 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            1988.  The discharge notes indicate the following 
 
            information:
 
            
 
                 Treatment consists of hot packs and massage to 
 
                 lumbar area, b.i.d. in the department.  Patient 
 
                 was discharged over the weekend.
 
            
 
                    ....
 
            
 
                 PAIN:  Patient reports pain in low back area with 
 
                 radiating pain into the RLE.  Patient states pain 
 
                 is sharp, stabbing pain, pain shoots down into her 
 
                 leg and also complains of a pins and needles pain 
 
                 in her leg.  When asked if her pain has decreased 
 
                 since being in the hospital, she states she does 
 
                 not think it has.  Pain increases with lying 
 
                 supine and sitting for long periods of time.  Pain 
 
                 decreases with rest.
 
            
 
                    ....
 
            
 
                 GOALS:  Goal of decrease of pain and discomfort in 
 
                 the low back was not met.
 
            
 
                 PLAN:  Patient will continue to use heat p.r.n. 
 
                 after discharge.
 
            
 
                 Patient was discharged from the hospital, no 
 
                 exercises were ordered.
 
            
 
            (Jt. Ex. 26, P. 39)
 
            
 
                 The final notes from Dr. Bunten, dated September 26, 
 
            1990, indicate his diagnosis as "degenerative disc disease 
 
            with right sciatica."  Dr. Bunten again submitted that 
 
            claimant was unsuited for full-time work, even in her home, 
 
            on a predictable, daily basis.  He continued to assess her 
 
            as having a 15 percent permanent partial impairment of the 
 
            body as a whole.  She was to continue using Tylenol III and 
 
            Elavil.  (Jt. Ex. 31, P. 55)
 
            
 
     
 
            
 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            On October 29, 1990, Dr. Bunten made the following 
 
            apportionment:
 
            
 
                 I believe Mrs. Love has a 15% permanent partial 
 
                 impairment of her total body function based on the 
 
                 condition of her low back and would assign 5% of 
 
                 that as pre-existing her fall of August 6, 1987.
 
            
 
            (Jt. Ex. 32, P. 56)
 
            
 
                 Beginning in April of 1990, claimant began an extensive 
 
            rehabilitation program under the guidance of Rehabilitation 
 
            Professionals, Inc.  The goal defined by the company was to 
 
            "assist Ms. Love in returning to full-time employment that 
 
            would be capable with her interests, transferable work 
 
            skills and physical restrictions.  Tentative vocational 
 
            goals include Activities Assistant in a nursing home and/or 
 
            Home Companion."  (Jt. Ex. 36, P. 64)
 
            
 
                 The company was advised of claimant's restrictions, and 
 
            directed retraining efforts toward positions as an 
 
            activities assistant, with special attention toward 
 
            certification from Iowa Western Community College or Des 
 
            Moines Area Community College, and the possibility of 
 
            working as a home companion, baby sitter, or cashier.  (Jt. 
 
            Ex. 37, PP. 73-74; Jt. Ex. 30, P. 54)  Although there was a 
 
            question as to whether claimant could commute for any 
 
            distance due to back pain after long drives, claimant 
 
            testified that she drove at least 30 miles to see her 
 
            grandchildren on regular occasions, and the vocation 
 
            rehabilitation expert targeted jobs within a 15 to 30 mile 
 
            radius of claimant's residence.
 
            
 
                 Although claimant displayed some cooperation with the 
 
            rehabilitationist early-on in the program, she failed on 
 
            numerous occasions to return information regarding job 
 
            interviews and applications, and missed numerous meetings 
 
            and appointments due to family emergencies or transportation 
 
            difficulties.
 
            
 
                 Claimant and the vocational rehabilitation expert 
 
            continued to work together throughout the year, and in 
 
            January of 1991, claimant was given leads on positions as a 
 
            cashier at several establishments.  Claimant and the 
 
            vocational rehabilitationist also met with personnel from 
 
            Job Service of Iowa, and it was suggested that claimant 
 
            apply with several agencies which specialize in temporary 
 
            services.  (Jt. Ex. 60, P. 146; Jt. Ex. 62)
 
            
 
                 In January of 1991, several labor market surveys were 
 
            conducted by the rehabilitation expert.  This survey 
 
            revealed that claimant would be qualified to perform work as 
 
            a teacher's aide; a hotel desk clerk; a phlebotomist; and, 
 
            home companion and day care assistant.  (Jt. Ex. 62)  Again, 
 
            claimant's follow through with any potential leads given to 
 
            her by the expert were less than enthusiastic.
 
            
 
                 At the time of the hearing, claimant had not returned 
 
            to any type of employment, was anticipating a rehearing on 
 
            her application for Social Security disability benefits, and 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            was performing standard homemaking duties.
 
            
 
                         analysis and conclusions of law
 
            
 
                 The first issue to be addressed is whether there is 
 
            causal relationship between the alleged injury and a 
 
            permanent disability.
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury of September 
 
            21, 1986 is causally related to the disability on which she 
 
            now bases her claim.  Bodish v. Fischer, Inc., 257 Iowa 516, 
 
            133 N.W.2d 867 (1965).  Lindahl v. L. O. Boggs, 236 Iowa 
 
            296, 18 N.W.2d 607 (1945).  A possibility is insufficient; a 
 
            probability is necessary.  Burt v. John Deere Waterloo 
 
            Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955).  The 
 
            question of causal connection is essentially within the 
 
            domain of expert testimony.  Bradshaw v. Iowa Methodist 
 
            Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). 
 
            
 
                 However, expert medical evidence must be considered 
 
            with all other evidence introduced bearing on the causal 
 
            connection.  Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion 
 
            of experts need not be couched in definite, positive or 
 
            unequivocal language.  Sondag v. Ferris Hardware, 220 N.W.2d 
 
            903 (Iowa 1974).  However, the expert opinion may be 
 
            accepted or rejected, in whole or in part, by the trier of 
 
            fact.  Id. at 907.  Further, the weight to be given to such 
 
            an opinion is for the finder of fact, and that may be 
 
            affected by the completeness of the premise given the expert 
 
            and other surrounding circumstances.  Bodish, 257 Iowa 516, 
 
            133 N.W.2d 867.  See also Musselman v. Central Telephone 
 
            Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
            
 
                 Furthermore, if the available expert testimony is 
 
            insufficient alone to support a finding of causal 
 
            connection, such testimony may be coupled with nonexpert 
 
            testimony to show causation and be sufficient to sustain an 
 
            award.  Giere v. Aase Haugen Homes, Inc., 259 Iowa 1065, 146 
 
            N.W.2d 911, 915 (1966).  Such evidence does not, however, 
 
            compel an award as a matter of law.  Anderson v. Oscar Mayer 
 
            & Co., 217 N.W.2d 531, 536 (Iowa 1974).  To establish 
 
            compensability, the injury need only be a significant 
 
            factor, not be the only factor causing the claimed 
 
            disability.  Blacksmith v. All-American, Inc., 290 N.W.2d 
 
            348, 354 (Iowa 1980).
 
            
 
                 The evidence does not reveal that claimant had any 
 
            prior back problems.  She has been consistently diagnosed as 
 
            having a back strain, and has been treated with modalities 
 
            suitable for treatment of the same.
 
            
 
                 There has been no showing that claimant sustained an 
 
            injury to her low back in any personal pursuits.  Her 
 
            treating physician has evaluated claimant as having 15 
 
            percent permanent partial impairment of the body as a whole.  
 
            He instructed her not to return to work as a nurse aide, but 
 
            suggested she be retrained for sedentary work activities.  
 
            Additionally, he counseled claimant to lose weight.
 
            
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
                 As a result, it is found that claimant's permanent 
 
            disability is causally related to the work related injury 
 
            sustained on August 6, 1987.
 
            
 
                 The next issue to be addressed is whether claimant is 
 
            entitled to temporary total or healing period benefits, or 
 
            permanent partial or total disability benefits.
 
            
 
                 There is no serious argument that claimant has not 
 
            sustained a permanent disability.  As noted, her treating 
 
            physician assessed a 15 percent functional impairment.  His 
 
            diagnosis did indicate that claimant had a preexisting 
 
            condition, that of degenerative disc disease of the lumbar 
 
            spine.  (Jt. Ex. 4, P. 8)  He also noted that the underlying 
 
            disorder was aggravated by trauma.  In a subsequent opinion, 
 
            Dr. Bunten apportioned five (5) percent of the 15 percent 
 
            permanent partial impairment to claimant's preexisting 
 
            condition.  The remaining 10 percent is attributed to 
 
            claimant's fall which occurred in August of 1987.  (Jt. Ex. 
 
            32, P. 56)
 
            
 
                 Although it is also noted that claimant has had at 
 
            least one intervening fall, the evidence does not show that 
 
            the impairment rating given to her was based on any physical 
 
            impairment she sustained due to this fall, which occurred in 
 
            February of 1989.  As a result, it is found that claimant 
 
            has sustained a permanent injury, and is entitled to healing 
 
            period benefits as provided for under Iowa Code section 
 
            85.34(1):
 
            
 
                    If an employee has suffered a personal injury 
 
                 causing permanent partial disability for which 
 
                 compensation is payable as provided in subsection 
 
                 2 of this section, the employer shall pay to the 
 
                 employee compensation for a healing period, as 
 
                 provided in section 85.37, beginning on the date 
 
                 of injury, and until the employee has returned to 
 
                 work or it is medically indicated that significant 
 
                 improvement from the injury is not anticipated or 
 
                 until the employee is medically capable of 
 
                 returning to employment substantially similar to 
 
                 the employment in which the employee was engaged 
 
                 at the time of injury, whichever occurs first.
 
            
 
                 The evidence shows that claimant underwent a healing 
 
            period between September 22, 1986 to October 3, 1986; and, 
 
            from September 6, 1987 to February 12, 1988.  Therefore, she 
 
            is entitled to healing period benefits during these time 
 
            periods.
 
            
 
                 The next issue to be addressed is whether claimant is 
 
            an odd-lot employee.
 
            
 
                 Under the odd-lot doctrine, which was formally adopted 
 
            by the Iowa Supreme Court in Guyton, supra, a worker becomes 
 
            an odd-lot employee when an injury makes the worker 
 
            incapable of obtaining employment in any well-known branch 
 
            of the labor market.  An odd-lot worker is thus totally 
 
            disabled if the only services the worker can perform are so 
 
            limited in quality, dependability, or quantity that a 
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            reasonably stable market for them does not exist.  Id., 
 
            citing Lee v. Minneapolis Street Railway Company, 230 
 
            Minn.315, 320, 41 N.W.2d 433, 436 (1950).  The rule of odd-
 
            lot allocates the burden of production of evidence.  If the 
 
            evidence of degree of obvious physical impairment, coupled 
 
            with other facts such as claimant's mental capacity, 
 
            education, training or age, places claimant prima facie in 
 
            the odd-lot category, the burden should be on the employer 
 
            to show that some kind of suitable work is regularly and 
 
            continuously available to the claimant.  Certainly in such 
 
            cases it should not be enough to show that claimant is 
 
            physically capable of performing light work and then round 
 
            out the case for noncompensable by adding a presumption that 
 
            light work is available.  Guyton, 373 N.W.2d at 105.
 
            
 
                 When a worker makes a prima facie case of total 
 
            disability by producing substantial evidence that the worker 
 
            is not employable in the competitive labor market, the 
 
            burden to produce evidence of suitable employment shifts to 
 
            the employer.  If the employer fails to produce such 
 
            evidence and the trier of fact finds the worker falls in the 
 
            odd-lot category, the worker is entitled to a finding of 
 
            total disability.  Even under the odd-lot doctrine, the 
 
            trier of fact is free to determine the weight and 
 
            credibility of the evidence in determining whether the 
 
            worker's burden of persuasion has been carried.  Only in an 
 
            exceptional case would evidence be sufficiently strong to 
 
            compel a finding of total disability as a matter of law.  
 
            Guyton, 373 N.W.2d at 106.  The court went on to state:
 
            
 
                    The commissioner did not in his analysis 
 
                 address any of the other factors to be considered 
 
                 in determining industrial disability.  Industrial 
 
                 disability means reduced earning capacity.  Bodily 
 
                 impairment is merely one factor in a gauging 
 
                 industrial disability.  Other factors include the 
 
                 worker's age, intelligence, education, 
 
                 qualifications, experience, and the effect of the 
 
                 injury on the worker's ability to obtain suitable 
 
                 work.  See Doerfer Division of CCA v. Nicol, 359 
 
                 N.W.2d 428, 438 (Iowa 1984).  When the combination 
 
                 of factors precludes the worker from obtaining 
 
                 regular employment to earn a living, the worker 
 
                 with only a partial functional disability has a 
 
                 total disability.  See McSpadden v. Big Ben Coal 
 
                 Co, 288 N.W.2d 181, 192 (Iowa 1980).
 
            
 
                 In the instant case, claimant has not made a sufficient 
 
            showing that she is unemployable.  She failed to look for 
 
            any work in a consistent manner and did not actively 
 
            participate in vocational retraining.
 
            
 
                 While it is true that claimant has sustained a 
 
            work-related back injury which has caused some impairment, 
 
            the evidence does not show that claimant is completely 
 
            devoid of any transferable skills.
 
            
 
                 As claimant has sustained an injury to the body as a 
 
            whole, an evaluation of her industrial disability is 
 
            warranted.
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
            
 
                 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, expe
 
            rience and inability to engage in employment for which he 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 disabil
 
            ity.  This is so as impairment and disability are not syn
 
            onymous.  Degree of industrial disability can in fact be 
 
            much different than the degree of impairment because in the 
 
            first instance reference is to loss of earning capacity and 
 
            in the latter to anatomical or functional abnormality or 
 
            loss.  Although loss of function is to be considered and 
 
            disability can rarely be found without it, it is not so that 
 
            a degree of industrial disability is proportionally related 
 
            to a degree of impairment of bodily function.
 
            
 
                 Factors to be considered in determining industrial dis
 
            ability include the employee's medical condition prior to 
 
            the injury, immediately after the injury, and presently; the 
 
            situs of the injury, its severity and the length of healing 
 
            period; the work experience of the employee prior to the 
 
            injury, after the injury and potential for rehabilitation; 
 
            the employee's qualifications intellectually, emotionally 
 
            and physically; earnings prior and subsequent to the injury; 
 
            age; education; motivation; functional impairment as a 
 
            result of the injury; and inability because of the injury to 
 
            engage in employment for which the employee is fitted.  Loss 
 
            of earnings caused by a job transfer for reasons related to 
 
            the injury is also relevant.  These are matters which the 
 
            finder of fact considers collectively in arriving at the 
 
            determination of the degree of industrial disability.
 
            
 
                 There are no weighting guidelines that indicate how 
 
            each of the factors are to be considered.  There are no 
 
            guidelines which give, for example, age a weighted value of 
 
            ten percent of the total value, education a value of fifteen 
 
            percent of total, motivation - five percent; work experience 
 
            - thirty percent, etc.  Neither does a rating of functional 
 
            impairment directly correlate to a degree of industrial 
 
            disability to the body as a whole.  In other words, there 
 
            are no formulae which can be applied and then added up to 
 
            determine the degree of industrial disability.  It therefore 
 
            becomes necessary for the deputy or commissioner to draw 
 
            upon prior experience, general and specialized knowledge to 
 

 
            
 
            Page  11
 
            
 
            
 
            
 
            
 
            make the finding with regard to degree of industrial dis
 
            ability.  See Peterson v. Truck Haven Cafe, Inc., (Appeal 
 
            Decision, February 28, 1985); Christensen v. Hagen, Inc., 
 
            (Appeal Decision, March 26, l985).
 
            
 
                 Claimant's medical condition prior to the injury does 
 
            not reveal that she has suffered from any type of back 
 
            condition, although the greater weight of the medical 
 
            evidence sustantiates that she did have a preexisting 
 
            degenerative condition.  After the initial injury of 
 
            September 21, 1986, the record shows that claimant recovered 
 
            fully, and she did not seek any medical attention after she 
 
            was released to return to work on October 3, 1986.  As 
 
            noted, claimant was injured again on August 6, 1987.  This 
 
            injury has caused claimant to become permanently impaired, 
 
            and she endured a healing period of approximately seven (7) 
 
            months.  During this time, she was treated with conservative 
 
            modalities, and the final diagnosis has been chronic severe 
 
            low back pain and sciatica.  She has also suffered from a 
 
            degenerative disc disease.  Presently, claimant experiences 
 
            some days where her back feels better than on other days.  
 
            
 
                 Claimant sustained an injury to her lower back, which 
 
            has been evaluated as fifteen percent functional impairment.  
 
            She has not undergone any surgical intervention, and 
 
            treatment prescribed has been conservative.
 
            
 
                 Claimant's work history reveals mostly minimum wage 
 
            positions which require no advanced skills or education.  
 
            Most of her positions have been in the medium to heavy work 
 
            categories.  Claimant has been out of work for an extended 
 
            period of time since the injury.
 
            
 
                 Claimant did not display a willingness for 
 
            rehabilitation, nor did she react to the vocational 
 
            rehabilitation expert's help in a consistent manner.  
 
            Presently, she has severely limited transferable skills.
 
            
 
                 Intellectually and emotionally, claimant appeared to be 
 
            average, although she has encountered some emotional 
 
            instability which she blames on the work related injury.  
 
            However, there is no medical evidence to substantiate her 
 
            position.  Physically, claimant has been counseled that she 
 
            needs to lose weight in order to facilitate the overall 
 
            healing process as it relates to her back condition.
 
            
 
                 At the time of the hearing, claimant was 45 years old.  
 
            She is not a high school graduate, and stated she was an 
 
            average student.
 
            
 
                 Claimant's motivation to return to work is 
 
            questionable.  Much of the evidence indicates that claimant 
 
            is of the type of personality which concentrates more on the 
 
            activities of family members other than concentrating on 
 
            herself.  She has consistently placed her family needs above 
 
            her own needs during the time of recouperation.
 
            
 
                 As indicated earlier, claimant has received a 
 
            functional impairment of 15 percent; five (5) percent has 
 
            been attributed to her preexisting degenerative disc 
 

 
            
 
            Page  12
 
            
 
            
 
            
 
            
 
            disease, and the remaining 10 percent has been related to 
 
            her work related injuries.
 
            
 
                 Claimant is under medical restrictions which preclude 
 
            her from obtaining employment as a nurse aide.  
 
            Specifically, she is not to lift more than 20 pounds on a 
 
            regular basis.  She is also limited in her twisting, bending 
 
            and stooping activities.  Claimant has been evaluated by a 
 
            vocation rehabilitation expert, as well as various 
 
            physicians, and it has been suggested that she try to obtain 
 
            employment as a baby sitter; a cashier; a home companion, or 
 
            as a desk clerk.  It is questionable as to whether claimant 
 
            is suitable for these types of positions.
 
            
 
                 Claimant testified that she is able to perform many 
 
            types of duties, including cooking, caring for her 
 
            grandchildren and record-keeping.  However, it is difficult 
 
            to determine claimant's potential for the labor market since 
 
            she has not seriously tried to work since her injury.  See, 
 
            Schofield v. Iowa Beef Processors, Inc., II Iowa Industrial 
 
            Commissioner Report 334, 336 (1981).  Claimant must make a 
 
            serious effort to test the job market to find suitable 
 
            employment.
 
            
 
                 After considering all of the factors that determine an 
 
            industrial disability, it is found that claimant has 
 
            sustained a 35 percent industrial disability.
 
            
 
                 The last issue to be addressed is whether claimant is 
 
            entitled to medical benefits pursuant to Iowa Code section 
 
            85.27.  The Code provides, in pertinent part:
 
            
 
                    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.
 
            
 
                 Claimant has submitted medical bills incurred for 
 
            prescription medications, to treat pain, and to treat 
 
            depression.
 
            
 
                 The evidence presented does not indicate that 
 
            claimant's depression is directly related to or was caused 
 
            by her back injury, and defendants' are not obligated to pay 
 
            for these expenses.
 
            
 
                 Any medical expenses incurred to treat claimant's back 
 
            injury shall be paid by defendants.
 
            
 
                                      order
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 That defendants pay healing period benefits from 
 
            September 22, 1986 to October 3, 1986 at the rate of one 
 
            hundred sixteen and 18/100 dollars ($116.18);
 

 
            
 
            Page  13
 
            
 
            
 
            
 
            
 
            
 
                 That defendants pay healing period benefits from 
 
            September 6, 1987 to February 12, 1988 at the rate of one 
 
            hundred sixteen and 18/100 dollars ($116.18);
 
            
 
                 That defendants pay claimant one hundred seventy-five 
 
            (175) weeks of permanent partial disability payments at the 
 
            rate of one hundred sixteen and 18/100 dollars ($116.18) per 
 
            week;
 
            
 
                 That defendants shall pay accrued weekly benefits in a 
 
            lump sum and shall receive credit against this award for 
 
            weekly benefits previously paid;
 
            
 
                 That defendants shall pay interest on benefits awarded 
 
            herein as set forth in Iowa Code section 85.30;
 
            
 
                 That defendants shall pay the costs of this action 
 
            pursuant to rule 343 IAC 4.33;
 
            
 
                 That defendants shall file an activity report upon 
 
            payment of this award as required by this agency pursuant to 
 
            rule 343 IAC 3.1.
 
            
 
                 Signed and filed this ____ day of May, 1991.
 
            
 
            
 
            
 
            
 
                                          
 
            ________________________________
 
                                          PATRICIA J. LANTZ
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr Robert W Pratt
 
            Attorney at Law
 
            6959 University Ave
 
            Des Moines Iowa 50311
 
            
 
            Mr Terry L Monson
 
            Attorney at Law
 
            100 Court Ave Ste 600
 
            Des Moines Iowa 50309
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                      5-1801
 
                      Filed May 15, 1991
 
                      PATRICIA J. LANTZ
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            KAREN LOVE,    :
 
                      :
 
                 Claimant, :
 
                      :
 
            vs.       :      File No. 860475
 
                      :               834098
 
            EARLHAM MANOR CARE CENTER,    :
 
                      :    A R B I T R A T I O N
 
                 Employer, :
 
                      :      D E C I S I O N
 
            and       :
 
                      :
 
            IOWA HEALTH CARE ASSOCIATION, :
 
                      :
 
                 Insurance Carrier,  :
 
                 Defendants.    :
 
            ___________________________________________________________
 
            
 
            5-1801
 
            Claimant is 46 years old.  She was working as a nurse's aide 
 
            and sustained a low back strain/sprain.
 
            Minimal education (10th grade); low motivation; transferable 
 
            skills exists.  She received a 15 percent impairment rating 
 
            and a 20-lb. lifting restriction.
 
            Claimant had not tried to secure employment after her 
 
            injury.
 
            Claimant awarded 35 percent industrial disability.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            NANCY IVES,                   :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :         File No. 860617
 
            STATE CONSTRUCTION COMPANY,   :
 
                                          :      A R B I T R A T I O N
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            UNITED STATES FIDELITY &      :
 
            GUARANTY COMPANY,             :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding in arbitration upon the petition 
 
            of claimant, Nancy Ives, against her employer, State 
 
            Construction Company, and its insurance carrier, USF & G, 
 
            defendants.  The case was heard on January 16, 1990, in 
 
            Council Bluffs, Iowa at the Pottawattamie Courthouse.  The 
 
            record consists of the testimony of claimant, as well as the 
 
            testimony of Patricia C. Conway.  Additionally, the record 
 
            consists of joint exhibits 1-203.
 
            
 
                                      issues
 
            
 
                 The issues to be determined are:
 
            
 
                 1) Whether there is a causal relationship between the 
 
            alleged injury and the disability; and 2) whether claimant 
 
            is entitled to temporary disability/healing period benefits 
 
            or permanent partial disability benefits.
 
            
 
                                 findings of fact
 
            
 
                 The deputy, having heard the testimony and considered 
 
            all the evidence, finds:
 
            
 
     
 
            
 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            Claimant was 40 years old at the time of the hearing.  She 
 
            is married with two children.  Claimant had completed the 
 
            tenth grade in school but she never obtained her GED.
 
            
 
                 Claimant commenced her employment with 
 
            defendant-employer in March of 1987.  She was hired as a 
 
            flag person to stand and direct traffic on a roadway 
 
            construction site.  Claimant stood and held a flag posted on 
 
            a metal rod.  She was paid approximately $4.50 per hour.
 
            
 
                 On July 9, 1987, claimant was involved in a work 
 
            related injury.  She was standing and holding a flag on a 
 
            construction site.  The weather was inclement and claimant 
 
            was struck by lightning.  As a consequence, claimant fell to 
 
            the ground.  She was taken to Mercy Hospital in Council 
 
            Bluffs for treatment.  She sustained some burns to her 
 
            shoulders and arms.  Apparently, she was unconscious for a 
 
            brief period of time and she experienced some disorientation 
 
            after she became conscious.
 
            
 
                 Claimant returned to work the week of July 17, 1987.  
 
            During that week, she worked 58 hours which included 18 
 
            hours of overtime.  Claimant indicated that during that time 
 
            frame she was dizzy and vomiting and that she fainted while 
 
            working.  She also worked the week of July 24, 1987.  
 
            However, before the week ended, claimant was laid off.  The 
 
            reason cited was a lack of work.
 
            
 
                 The medical records indicate claimant saw her family 
 
            physician, G. DeVoss, M.D., for headaches and for pain in 
 
            her arms and legs.  Dr. DeVoss examined claimant on the date 
 
            of the injury.  He determined:
 
            
 
               CHIEF COMPLAINT
 
                 Struck by lightning.
 
            
 
               HISTORY OF PRESENT ILLNESS:
 
                 The patient is 37 year old white female who was 
 
                 working on a road crew when she was struck by 
 
                 lightning.  The patient was directing traffic at 
 
                 the time and was standing by a metal sign.  The 
 
                 exact events are unclear.  Apparently there is 
 
                 some report of a lightning strike close by with 
 
                 traveling of the lightning bolt along some wires 
 
                 and down the sign.  The patient was knocked to the 
 
                 ground and was unconscious for about five to ten 
 
                 minutes.  She did not suffer any burns.  She 
 
                 regained consciousness thereafter and her only com
 
                 plaint was marked headache.  She was brought to 
 
                 the emergency room where cardiac rhythm was noted 
 
                 to be stable.  It was decided however to admit the 
 
                 patient to telemetry unit mainly for observation 
 
                 of cardiac rhythm.  The patient currently 
 
                 complains of a marked degree of severe headache.  
 
                 She is also complaining of numbness of the right 
 
                 cheek.  She has tingling of both legs, but no 
 
                 actual numbness.  No other complaints were noted.  
 
                 The patient's medications at the time of admission 
 
     
 
            
 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
                 included Cardizem 60 mg. and Premarin 2.5 mg. two 
 
                 tablets every day.
 
                 
 
               PAST MEDICAL HISTORY:
 
                 The patient was last admitted from 6/1 to 6/7/87 
 
                 for acute cholecystitis and subsequent 
 
                 cholecystectomy.  She has recovered fairly well 
 
                 from that.  Her other history is as outlined in 
 
                 the immediate prior history and physician from 
 
                 6/1/87.
 
            
 
               PHYSICAL EXAMINATION:
 
                 At the time of admission showed BP 120/66, pulse 
 
                 is 72 and regular.  The patient is afebrile.
 
                 
 
                 General appearance shows an alert, oriented white 
 
                 female in moderate distress from headache.
 
                 
 
                 SKIN:  Warm and dry.  No burns, ecchymosis, 
 
                 purpura or rashes are noted.
 
                 
 
                 HEENT:  The patient is quite photophobic and 
 
                 funduscopic exam is difficult but no gross 
 
                 abnormalities are noted.  Pupils are equal, round 
 
                 and reflexive to light and accommodation.  EOM are 
 
                 intact.  Conjunctivae were clear.  Oral mucosa was 
 
                 moist without exudate.  No evident skin 
 
                 abnormalities were present, although the patient 
 
                 was complaining of numbness of the right cheek.  
 
                 No carotid bruits, JVD, cervical adenopathy or 
 
                 enlarged thyroid was noted.
 
                 
 
                 LUNGS:  Auscultation of the lungs was clear.
 
                 
 
                 HEART:  There was a regular heart rhythm present.  
 
                 No murmurs, gallops or rubs are present.
 
                 
 
                 ABDOMEN:  Soft and nontender.  No 
 
                 hepatosplenomegaly was noted.  Bowel sounds were 
 
                 normal.  No abdominal bruits were heard.
 
                 
 
                 EXTREMITIES:  No peripheral edema was noted.  Deep 
 
                 tendon reflexes were 3+/2+ in the upper and lower 
 
                 extremities.  No pathological reflexes were noted.
 
                 
 
               IMPRESSION:
 
                 1.  Injuries resulting from a lightning bolt striking 
 
            in the                            close proximity to the 
 
            patient.  Symptoms are mainly               neurological in 
 
            nature and no evidence of muscular or            cutaneous 
 
            damage is currently evident.  The patient is               
 
            however going to be observed to rule out any arrhythmias        
 
            and also to control her severe headache and severe              
 
            myalgias.
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
                 2.  Recent cholecystectomy and acute cholecystitis.
 
                 3.  Surgical menopause on replacement Estrogen therapy.
 
                 4.  Past history of peptic ulcer disease and possible 
 
            hiatal                            hernia.
 
            
 
                 X-rays of the skull and cervical spine were also taken.  
 
            They revealed no abnormalities.  Claimant was released from 
 
            the hospital on July 11, 1987, because of a perceived 
 
            cervical strain.
 
            
 
                 He referred her to Ronald K. Miller, M.D., an 
 
            orthopedic surgeon.  Dr. Miller noted claimant had not had 
 
            any prior neck problems.  This notation was inaccurate.  He 
 
            then referred claimant to a neurological surgeon, John L. 
 
            Greene, M.D.  In his report, Dr. Greene opined:
 
            
 
                 At the present time she is complaining of 
 
                 persistent difficulty with headaches.  She is 
 
                 complaining of "blackout" spells.  She describes 
 
                 things as getting "black" and "feels weak" [sic] 
 
                 She has had spells in which her vision blurs and 
 
                 she gets double vision.  Her husband feels that 
 
                 she is having some loss of memory and a 
 
                 personality change.  She has intermittent episodes 
 
                 where the right upper extremity becomes "numb".  
 
                 The longest period of time has been for one hour.
 
            
 
                 On examination she is alert, oriented and fluent.  
 
                 She is right-handed.  The cranial nerves are 
 
                 intact.  The discs are flat.  The visual fields 
 
                 are good.  She does have sensory loss over the 
 
                 right cheek area to pin prick.  On motor 
 
                 examination she has full strength in the upper 
 
                 extremities.  The station and gait are normal.  No 
 
                 extremity dystaxia.  The deep tendon reflexes are 
 
                 active and symmetrical.  The plantar response is 
 
                 flexor.  Position sense and graphesthesias are 
 
                 intact.  She has non-dermatomal wide spread 
 
                 sensory loss in the right upper extremity and 
 
                 right neck region.
 
            
 
                 I certainly agree that she is not an orthopedic 
 
                 problem and I don't think she is a neurosurgical 
 
                 problem.  I think her difficulty is higher than 
 
                 the neck region in order to give all of the 
 
                 symptoms that she talks about.  I suspect if some 
 
                 thing is going to be demonstrated it will be 
 
                 intracranial.  I have arranged for her to get a 
 
                 MRI scan just to make sure there are no surprises.  
 
                 I have also suggested that she see the 
 
                 neurologists.  They see more of these problems 
 
                 after the acute stage than I.  I hope this is 
 
                 satisfactory.
 
            
 
                 Dr. Miller then referred claimant to Joel T. Cotton, 
 
            M.D., a neurologist.  He opined in his report of February 
 
            10, 1988:
 
            
 
                 Please find enclosed, copies of my medical records 
 
                 on Nancy Ives.  She has also been seen by Dr. 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
                 Thomas Ferlic, an orthopedic specialist in regards 
 
                 to her right arm pain.  He felt she had a "mild 
 
                 form of adhesive capsulitis" and recommended 
 
                 continued range of motion by the patient at home 
 
                 and increased physical activity occurring in daily 
 
                 life activity to tolerance.  He did not otherwise 
 
                 advise physical therapy or medication at this 
 
                 time.  X-rays of the shoulder were done and were 
 
                 normal.  It is furthermore my understanding that 
 
                 the patient will be making the appointment to see 
 
                 Dr. Stan Moore psychiatrically.  I have no 
 
                 information concerning the results of that 
 
                 evaluation.  Over all prognosis in my opinion is 
 
                 excellent.  I have not confirmed the presence of 
 
                 any organic injury to this patient's brain or 
 
                 nervous system and I would ultimately anticipate 
 
                 no persistent impairment as a result of the 
 
                 lightning injury.  If you require additional 
 
                 information concerning this individual or have any 
 
                 other questions, please feel free to contact me 
 
                 and I would be glad to do so at any time.
 
            
 
                 Later Dr. Cotton wrote:
 
            
 
                 In response to the pain clinic, I really have no 
 
                 specific recommendations from a neurological 
 
                 standpoint.  Her neurological examinations that I 
 
                 have done have always been normal and so have the 
 
                 orthopedic evaluations done by Dr. Ferlic.  If you 
 
                 think she has a rheumatological disease, that 
 
                 would seem reasonable.  Situational and emotional 
 
                 factors I suspect are present.  I would be glad to 
 
                 speak with you about her at any time.
 
            
 
                 Dr. Cotton referred claimant to another orthopedic 
 
            surgeon, Thomas P. Ferlic, M.D.  As of May 13, 1988, Dr. 
 
            Ferlic opined:
 
            
 
                 Mrs. Nancy Ives has been seen in this office and 
 
                 examined on several occasions.  The first was on 
 
                 January 12, 1988.  Enclosed is a copy of our 
 
                 office note for that date, as well as notes since 
 
                 that time.
 
            
 
                 Basically, the patient suffered adhesive 
 
                 capsulitis.  I believe that this was on the basis 
 
                 of her original injury, which was being struck by 
 
                 lightning.  The prognosis at this time for full 
 
                 recovery is excellent, and I doubt that the 
 
                 patient will have any permanent disability from 
 
                 this injury.
 
            
 
                 The injury of which I am speaking relates only to 
 
                 her adhesive capsulitis of her left shoulder.  As 
 
                 far as her other problem, one should consult the 
 
                 physicians who treated her, including neurologists 
 
                 and neurosurgeons, for longterm (sic) problems 
 
                 related to the lightning striking her.
 
            
 
                 Claimant was also seen by E. Marc Mariani, M.D., at 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            Mayo Clinic.  He saw claimant on September 21, 1988.  He 
 
            opined claimant suffered from a reflex sympathetic 
 
            dystrophy.
 
            
 
                 Claimant was also examined by Richard K. Osterholm, 
 
            M.D.  He opined in his report of December 14, 1988:
 
            
 
                 I have enclosed copies of my office dictation, 
 
                 records from the Mayo Clinic, neurology, and 
 
                 orthopedic consultants in the Omaha area.
 
            
 
                 In essence, Mrs. Ives has continued to manifest 
 
                 moderate pain and discomfort with mild perception 
 
                 of weakness and decreased range of motion of her 
 
                 right upper extremity.
 
            
 
                 The patient has had detailed evaluations including 
 
                 X-rays of the cervical spine and right shoulder.  
 
                 An arthrogram of the right shoulder and EMG nerve 
 
                 conduction study, nuclear three phase bone scan, a 
 
                 special evaluation in the autonomic reflex 
 
                 laboratory at the Mayo Clinic were also done.
 
            
 
                 Suffice that these studies have been in the normal 
 
                 range with no objective evidence of a permanent 
 
                 structural muscular bone or major motor sensory 
 
                 neurologic abnormality.
 
            
 
                 The patient has, however, had persistence of pain 
 
                 and decreased range of motion with bluish 
 
                 discoloration and slight swelling noted by all 
 
                 consultants involved.
 
            
 
                 The patient has had an injection of the right 
 
                 rotator cuff area by the Pain Center physicians at 
 
                 Mayo with a modest improvement of her pain.
 
            
 
                 In addition, the patient has had recommendations 
 
                 for a more detailed outpatient physical therapy 
 
                 exercises for the right shoulder.
 
            
 
                 At this time, the patient continues to manifest 
 
                 persistent, severe pain on abduction and rotation 
 
                 of the right upper extremity, shoulder area.
 
            
 
                 There is no question in my mind that the patient 
 
                 does have pain and that it is a direct reflection 
 
                 of her lightening injury to the right upper 
 
                 extremity.
 
            
 
                 While there does not appear to be marked objective 
 
                 abnormalities at this time other than the slight 
 
                 swelling and discoloration, the pain persists as a 
 
                 limiting factor in her use of this extremity.
 
            
 
                 I believe the patient should have strong 
 
                 consideration of a further detailed 2-6 week 
 
                 course of inpatient therapy in a pain clinic.  
 
                 This has been recommended and suggested by 
 
                 physicians and physical medicine rehabilitation 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
                 and in the Pain Clinic at the Mayo Clinic.
 
            
 
                 I believe this is a quite wise and prudent further 
 
                 degree of investigation into the chronic pain 
 
                 disorder that this patient now experiences.  
 
                 Without an attempt at improvement of pain in this 
 
                 extremity, I am certain that the patient will 
 
                 continue to have a permanent disability based on 
 
                 pain in this right upper extremity.
 
            
 
                 In 1989, claimant was examined by another orthopedic 
 
            surgeon, Lonnie Mercier, M.D., P.C.  He opined that:
 
            
 
                 In summary, Ms. Ives apparently sustained an 
 
                 electrical injury in July of 1987.  Following 
 
                 that, she has experienced considerable 
 
                 symptomatology although all of the examinations 
 
                 including my own have failed to reveal any 
 
                 objective evidence of any ongoing problem.  A 
 
                 variety of diagnoses of [sic] been entertained 
 
                 including reflex sympathetic dystrophy.  This 
 
                 could certainly be a minor manifestitation [sic] 
 
                 of some reflex sympathetic dystrophy.  I was 
 
                 unable to find any objective evidence of any 
 
                 serious ongoing problem.  Except for subjective 
 
                 findings, her overall examination was 
 
                 unremarkable.
 
            
 
                 Medical records for claimant prior to the date of 
 
            injury indicate that claimant had experienced prior problems 
 
            with her cervical spine.
 
            
 
                                conclusions of law
 
            
 
                 The claimant must prove by a preponderance of the 
 
            evidence that her injury arose out of and in the course of 
 
            her employment.  Musselman v. Central Telephone Co., 261 
 
            Iowa 352, 154 N.W.2d 128 (1967). 
 
            
 
                 In the course of employment means that the claimant 
 
            must prove her injury occurred at a place where she 
 
            reasonably may be performing her duties.  McClure v. Union 
 
            et al. Counties, 188 N.W.2d 283 (Iowa 1971).
 
            
 
                 Arising out of suggests a causal relationship between 
 
            the employment and the injury.  Crowe v. DeSoto Consol. Sch. 
 
            Dist., 246 Iowa 402, 68 N.W.2d 63 (1955).
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury of July 9, 
 
            1987, is causally related to the disability on which she now 
 
            bases her claim.  Bodish v. Fischer, Inc., 257 Iowa 516, 133 
 
            N.W.2d 867 (1965).  Lindahl v. L. O. Boggs, 236 Iowa 296, 18 
 
            N.W.2d 607 (1945).  A possibility is insufficient; a 
 
            probability is necessary.  Burt v. John Deere Waterloo 
 
            Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955).  The 
 
            question of causal connection is essentially within the 
 
            domain of expert testimony.  Bradshaw v. Iowa Methodist 
 
            Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). 
 
            
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
                 The opinions of experts need not be couched in 
 
            definite, positive or unequivocal language.  Sondag v. 
 
            Ferris Hardward, 220 N.W.2d 903 (Iowa 1974).  An opinion of 
 
            an expert based upon an incomplete history is not binding 
 
            upon the commissioner, but must be weighed together with the 
 
            other disclosed facts and circumstances.  Bodish, 257 Iowa 
 
            516, 133 N.W.2d 867 (1965).  The expert medical evidence 
 
            must be considered with all other evidence introduced 
 
            bearing on the causal connection between the injury and the 
 
            disability.  Burt, 247 Iowa 691, 73 N.W.2d 732 (1955).  In 
 
            regard to medical testimony, the commissioner is required to 
 
            state the reasons on which testimony is accepted or 
 
            rejected.  Sondag, 220 N.W.2d 903 (1974).
 
            
 
                 In the case at hand, claimant has not proven by a 
 
            preponderance of the evidence that she has sustained a 
 
            permanent disability which is causally related to her work 
 
            injury on July 9, 1987.
 
            
 
                 Dr. Cotton, a treating physician in neurology, 
 
            determined there would be "no persistent impairment as a 
 
            result of the lightning incident."
 
            
 
                 Thomas P. Ferlic, M.D., another treating physician and 
 
            an orthopedic surgeon, concurred with the opinion of Dr. 
 
            Cotton.  He opined claimant suffered adhesive capsulitis but 
 
            he doubted claimant would have any permanent impairment.
 
            
 
                 While Dr. Osterholm acknowledged claimant had pain in 
 
            the upper right extremity, he could find no objective 
 
            abnormalities.  Dr. Mercier too failed to observe any 
 
            objective evidence of an on going problem.  At best, he 
 
            opined there could be "a minor manifestation of some reflex 
 
            sympathetic dystrophy."
 
            
 
                 In 1989, an MRI was performed of the cervical spine and 
 
            shoulder.  The shoulder was within normal limits.  The 
 
            cervical spine at C3-4, C4-5 and C5-6, showed some bulging 
 
            but no nerve impingement.  James P. O'Hara, M.D., opined the 
 
            bulging was due to degenerative disk disease and there was 
 
            an exacerbation of her degenerative intervertebral disk 
 
            disease in the amount of a 15 percent impairment.  However, 
 
            claimant never saw Dr. O'Hara until 20 months after the work 
 
            injury.  Additionally, Dr. O'Hara did not appear to have a 
 
            complete medical history for claimant.  Otherwise, he would 
 
            have known claimant suffered right neck and shoulder 
 
            problems in March and April of 1984.
 
            
 
                 Therefore, in light of the foregoing, it is the 
 
            determination of the undersigned that claimant has not 
 
            sustained any permanent partial disability as a result of 
 
            her July 9, 1987 work injury.
 
            
 
                 Claimant has sustained a temporary total disability as 
 
            a result of her work injury on July 9, 1987.  Claimant has 
 
            requested benefits from July 9, 1987 through January 16, 
 
            1990, the day of the hearing.  Section 85.33(1) governs the 
 
            payment of these benefits.  This section provides:
 
            
 
                 Except as provided in subsection 2 of this 
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
                 section, the employer shall pay to an employee for 
 
                 injury producing temporary total disability weekly 
 
                 compensation benefits, as provided in section 
 
                 85.32, until the employee has returned to work or 
 
                 is medically capable of returning to employment 
 
                 substantially similar to the employment in which 
 
                 the employee was engaged at the time of injury, 
 
                 whichever occurs first.
 
            
 
                 Claimant was off work from July 9, 1987 to July 13, 
 
            1987 and from July 24, 1987 to approximately April 1, 1988.  
 
            She was laid off work because of a lack of work to perform.  
 
            The lay off was not related to her work injury.  Behrouz 
 
            Rassekh, M.D., restricted her from working from August 15, 
 
            1987 to October 26, 1987.  She found employment with 
 
            Goodrich Dairy serving ice cream and checking milk loads in 
 
            April.  She was terminated from that position at the end of 
 
            July of 1988.
 
            
 
                 As of August 21, 1988, Dr. Osterholm determined 
 
            claimant was unable to work.  It is unclear whether Dr. 
 
            Osterholm released claimant to return to work.  However, as 
 
            of April of 1989, claimant was employed in a greenhouse 
 
            where she was required to lift, bend and carry.  Subsequent 
 
            to her employment with the greenhouse, claimant had been 
 
            employed in positions substantially similar to the 
 
            employment she held on the date of her injury.
 
            
 
                 THEREFORE, it is the determination of the undersigned 
 
            that claimant is entitled to temporary total disability 
 
            benefits from July 9, 1987 through July 12, 1987, from 
 
            September 25, 1987 to April 1, 1988, from August 1, 1988 to 
 
            April 1, 1989.  This represents 62.571 weeks at the 
 
            stipulated rate of $133.05 per week.
 
            
 
                                      order
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 Claimant is entitled to sixty-two point five-seven-one 
 
            (62.571) weeks of temporary total disability benefits at the 
 
            stipulated rate of one hundred thirty-three and 05/l00 
 
            dollars ($133.05).
 
            
 
                 Payments that have accrued shall be paid in a lump sum 
 
            together with statutory interest thereon pursuant to Iowa 
 
            Code section 85.30.
 
            
 
                 Defendants shall receive credit for all benefits paid 
 
            and not previously credited.
 
            
 
                 Costs of this action shall be assessed to defendants 
 
            pursuant to rule 343 IAC 4.33.
 
            
 
                 Defendants shall file a claim activity report as 
 
            requested by this division pursuant to rule 343 IAC 3.1.
 
            
 
            
 
            
 
                 Signed and filed this ____ day of January, 1991.
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
                                          ______________________________               
 
            MICHELLE A. McGOVERN
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Roger Sawatzke
 
            Attorney at Law
 
            25 Main Pl  STE 200
 
            Council Bluffs  IA  51503
 
            
 
            
 
            
 
            
 
            Mr. W. Curtis Hewett
 
            Attorney at Law
 
            P O Box 249
 
            Council Bluffs  IA  51502
 
            
 
            Mr. Fred Brown
 
            Attorney at Law
 
            100 Continental Bldg
 
            Omaha  NE  68102
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                           5-1801
 
                           Filed January 15, 1991
 
                           MICHELLE A. McGOVERN
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            NANCY IVES,                   :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :         File No. 860617
 
            STATE CONSTRUCTION COMPANY,   :
 
                                          :      A R B I T R A T I O N
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            UNITED STATES FIDELITY &      :
 
            GUARANTY COMPANY,             :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
            5-1801
 
            Claimant was awarded temporary total disability benefits for 
 
            an injury she sustained on July 7, 1987.