Page   1
 
            
 
            
 
            
 
            
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            JANICE EISENBARTH,  :
 
                      :
 
                 Claimant, :
 
                      :
 
            vs.       :
 
                      :      File No. 865360
 
            SNAP-ON TOOLS CORPORATION,    :
 
                      :        A P P E A L
 
                 Employer, :
 
                      :      D E C I S I O N
 
            and       :
 
                      :
 
            ROYAL INSURANCE,    :
 
                      :
 
                 Insurance Carrier,  :
 
                 Defendants.    :
 
            ___________________________________________________________
 
            The record, including the transcript of the hearing before 
 
            the deputy and all exhibits admitted into the record, has 
 
            been reviewed de novo on appeal.  The decision of the deputy 
 
            filed August 14, 1989 is affirmed and is adopted as the 
 
            final agency action in this case, with the following 
 
            additional analysis:
 
            The claimant's appeal arguments concerning the cumulative 
 
            date of injury are without merit.  Claimant is not entitled 
 
            to a "running" injury date.  See McKeever Custom Cabinets v. 
 
            Smith, 379 N.W.2d 368 (Iowa 1985); Terwilliger v. Snap-On 
 
            Tools, Appeal Decision, May 24, 1991. 
 
            The calculation of interest is governed by Farmer's Elevator 
 
            Co., Kingsley v. Manning, 286 N.W.2d 174 (Iowa 1979); Benson 
 
            v. Good Samaritan Center, Ruling on Rehearing, Oct. 18, 
 
            1989;  McNeal v. Iowa Department of Transportation, Order 
 
            Nunc Pro Tunc, May 31, 1990; and Clausen v. Carmar Farms, 
 
            Ltd., Vol. 1, No. 3 State of Iowa Industrial Commissioner 
 
            Decisions 540 (1985).  No further ruling is required. 
 
            Claimant urges on appeal that the claimant's injury extended 
 
            to the body as a whole.  It is noted that the opinion of 
 
            Timothy C. Mead, M.D., was based on subjective evidence, and 
 
            that the objective findings of Dr. Mead did not indicate a 
 
            permanent impairment of the shoulders.  Many tests of 
 
            claimant's shoulders were impeded by claimant's failure to 
 
            cooperate with the testing procedures.  Taken as a whole, 
 
            the evidence of Dr. Mead and Dr. Wirtz as to claimant's 
 
            shoulder condition is given less weight than the evidence of 
 
            the numerous other physicians that examined claimant and 
 
            found no objective indicia of permanent impairment.  In 
 
            addition, claimant's significant functional overlay, 
 
            acknowledged by all of her physicians, also supports the 
 
            conclusion that claimant's injury did not extend beyond the 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            upper extremity to the body as a whole. 
 
            Claimant shall pay the costs of the appeal, including the 
 
            preparation of the hearing transcript.
 
            Defendants shall pay all other costs of this action.
 
            Signed and filed this ____ day of June, 1990.
 
            
 
            
 
            
 
            
 
                      ________________________________
 
                               CLAIR R. CRAMER
 
                       ACTING INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Mark S. Soldat
 
            Attorney at Law
 
            714 E. State St.
 
            Algona, Iowa 50511
 
            
 
            Mr. Paul C. Thune
 
            Attorney at Law
 
            218 6th Ave., Suite 300
 
            P.O. Box 9130
 
            Des Moines, Iowa 50306
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
            1803.1 - 2209
 
            Filed June 25, 1991
 
            Clair R. Cramer
 
            BJO
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            JANICE EISENBARTH,  :
 
                      :
 
                 Claimant, :
 
                      :
 
            vs.       :
 
                      :      File No. 865360
 
            SNAP-ON TOOLS CORPORATION,    :
 
                      :        A P P E A L
 
                 Employer, :
 
                      :      D E C I S I O N
 
            and       :
 
                      :
 
            ROYAL INSURANCE,    :
 
                      :
 
                 Insurance Carrier,  :
 
                 Defendants.    :
 
            ___________________________________________________________
 
            
 
            1803.1
 
            Claimant's injury found not to extend beyond the arm to the 
 
            shoulder or back.  All of claimant's physicians but one 
 
            rated claimant's arm only.  The one physician who opined 
 
            whole body impairment acknowledged that it was based on 
 
            subjective evidence alone.  Also, claimant had significant 
 
            functional overlay noted by all of her physicians.  
 
            
 
            2209
 
            Claimant's theory of a "running" cumulative injury date over 
 
            several years was rejected.
 
            
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         JANICE EISENBARTH,
 
         
 
              Claimant,
 
                                                  File No. 865360
 
         vs.
 
                                               A R B I T R A T I O N
 
         SNAP-ON TOOLS CORPORATION,
 
                                                  D E C I S I O N
 
              Employer,
 
         
 
         and                                         F I L E D
 
         
 
         ROYAL INSURANCE COMPANY,                   AUG 14 1989
 
         
 
              Insurance Carrier,            IOWA INDUSTRIAL COMMISSIONER
 
              Defendants.
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding in arbitration brought by the claimant, 
 
         Janice Eisenbarth, against Snap-On Tools Corporation, employer, 
 
         and Royal Insurance Company, insurance carrier, as a result of 
 
         alleged injuries sustained on January 23, 1986.  This matter came 
 
         on for hearing before the undersigned deputy industrial 
 
         commissioner in Storm Lake, Iowa, on March 21, 1989.  The record 
 
         consists of the testimony of claimant, claimant's husband, 
 
         Deborah Monroe, Nancy Simonson, Rebecca Garman, Martina Lenz, Lee 
 
         Gunderson, Dennis McGreevey, Shirley Hoveland; claimant's 
 
         exhibits A through G; and defendants' exhibits 1 through 16.
 
         
 
                                      ISSUES
 
         
 
              The issues for resolution as to all three of the injuries, 
 
         left and right carpal tunnel and the shoulder injury are:
 
         
 
              1.  The nature and extent of claimant's disability; and
 
         
 
              2.  Claimant's entitlement to 86.13 benefits.
 
         
 
              As to the shoulder injury, there is an additional issue of 
 
         whether claimant's alleged shoulder inJury on January 23, 1986 is 
 
         causally connected to her disability.
 
         
 
                              REVIEW OF THE EVIDENCE
 
         
 
              Claimant testified that she has worked since graduating from 
 
         high school 50 percent of the time mainly in various factory or 
 
         restaurant jobs, which involved manual labor.  Claimant stated 
 
         that the remaining 50 percent of her post-high school time 
 
         involved working inside the  home.  Claimant began working for 
 
         defendant employer on April 4, 1979.  Claimant testified that her 
 
         work initially involved the production and finishing of metal 
 
         tool boxes.  Claimant indicated these boxes varied in size, some 
 
         as wide as four to five feet and as tall as claimant and weighing 
 
         from 5 to 600 pounds.  Claimant testified that for the last eight 
 
         and one-half to nine years she has worked in the spot welding 
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         department.  Claimant said that she learned how to use small 
 
         tools while working for defendant employer.  Claimant emphasized 
 
         she was strong, in good health and had no problems with her 
 
         hands, arms or shoulders prior to being hired by defendant 
 
         employer.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Claimant testified that around 1983 or 1984, she began 
 
         noticing tingling in her hand while welding fronts on drawers 
 
         that are a part of the toolbox.  Claimant stated she went to Dr. 
 
         Rooney, her local doctor, concerning this problem in 1983 to 
 
         1984. Dr. Rooney referred claimant to Dr. Trimble, in Mason City, 
 
         who then referred her to Timothy C. Mead, M.D.  Claimant said Dr. 
 
         Mead then became her treating physician.  Claimant testified her 
 
         treatment involved various conservative measures including some 
 
         restrictions which claimant could not recall.  Claimant contends 
 
         she has been under restrictions since being under Dr. Mead's care 
 
         and that the employer has not followed the restrictions.  
 
         Claimant stated that the employer violated these restrictions 
 
         weekly and when that occurred, her hands would swell and she 
 
         sometimes would leave work because of the pain.  Claimant 
 
         indicated she would use her leg, back or hip instead of her 
 
         hands,to push items around when her hands were hurting and 
 
         swelling.  Dr. Mead performed a bilateral carpal tunnel surgery 
 
         in October, 1986.
 
         
 
              Claimant testified she could not remember any particular 
 
         incident involving her shoulders.  Claimant said she was treated 
 
         by Dr. Mead in 1986 for her shoulder  pain.  Claimant stated she 
 
         had pain in her wrists and shoulders prior to her carpal tunnel 
 
         surgery in October 1986 and the pain never went away completely. 
 
         After her October 1986 carpal tunnel surgery, claimant returned 
 
         to work on February 20, 1987.  Claimant testified that within a 
 
         month of her return to work, she began hurting again and went to 
 
         John W. Follows, Jr., M.D., on October 30, 1987 because she was 
 
         having a lot of pain in her shoulder and arm.  Claimant stated 
 
         that she went to David L. Jenson, a chiropractor, on October 19, 
 
         1987, while waiting for her appointment with Dr. Follows.  
 
         Claimant stated she received six treatments and that these helped 
 
         give her relief in her wrists and neck.  Claimant stated she was 
 
         then sent by defendant employer to Peter D. Wirtz, M.D., in Des 
 
         Moines, on December 2, 1987.  Claimant contends she was still 
 
         having severe pain in her hands, shoulder, neck and down her 
 
         back.  Claimant said Dr. Wirtz referred her back to Dr. Mead.  
 
         Claimant said that she went to Mayo Clinic in January 1988 to 
 
         find out why she was having problems.  Claimant stated that she 
 
         was later assigned to Michael W. Crane, M.D., because Dr. Mead 
 
         moved to Michigan. Claimant indicated she currently uses traction 
 
         and hot and cold packs.  Claimant said she devotes a lot of time 
 
         to these therapy measures depending on the type of work she was 
 
         doing that day. Claimant emphasized she is not overexaggerating 
 
         her symptoms. Claimant said she disagrees with Dr. Follows if his 
 
         1987 records show claimant mentioned her shoulder problems only 
 
         on the last of five or six visits.  Claimant also said she 
 
         disagrees with Mark R. Peltan, Ph.D., Mercy Hospital in Mason 
 
         City, if his September 1988 records show claimant had only a hand 
 
         pain discomfort.
 
         
 
              Claimant contends that the various jobs she has been 
 
         requested to do by defendant employer violates her work 
 
         restrictions. Claimant denied there is any resentment from the 
 
         other employees because she is getting all the easy jobs.  
 
         Claimant complained that she received very few healing period 
 
         checks on time, but had no records to show when she actually 
 
         received them.  Claimant testified that she was satisfied with 
 
         the employer's medical care provided her prior to her carpal 
 
         tunnel surgery.  Claimant said she feels she has been harassed by 
 
         defendant employer since her shoulder and back injury and after 
 
         her bilateral carpal tunnel surgery.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Tom Eisenbarth, claimant's husband, testified that he is a 
 
         press break operator for Snap-On Tools and has worked eleven 
 
         years for them.  He married claimant in 1985.  He said that 
 
         claimant complained of shoulder, back and neck problems before 
 
         and after her carpal tunnel surgery in 1986.  He stated that 
 
         after the October 1986 surgery, he massaged claimant and used 
 
         heated towels on her.  He said he continues this process on 
 
         claimant to the present time.  Eisenbarth testified he went to 
 
         the doctor's office with claimant on different occasions when she 
 
         was having examinations.  He indicated on one occasion that he 
 
         thought claimant had swelling on her body and Dr. Crane did not 
 
         think there was any swelling.   Eisenbarth recalled only one 
 
         instance of a benefit check delayed due to a mix-up.
 
         
 
              Deborah Monroe has worked for Snap-On Tools twelve years and 
 
         presently is a spot welder.  Monroe testified she has worked with 
 
         claimant on and off for five years.  Monroe related two occasions 
 
         when she has seen claimant's hands swollen - once at work and 
 
         once when she came back from Dr. Crane's office.  Monroe 
 
         acknowledged that she has a workers' compensation case pending 
 
         against Snap-On Tools.
 
         
 
              Nancy Simonson is a former employee of Snap-On Tools and 
 
         presently has a workers' compensation case pending against them. 
 
         She testified she worked three years in the spot welding 
 
         department and worked with claimant approximately six times a 
 
         year and took breaks with her three times a day during this 
 
         period. Simonson stated she saw claimant's arms, wrists and eyes 
 
         swollen at work and that claimant appeared to be in pain.
 
         
 
              Rebecca Garman worked twelve plus years for Snap-On Tool, 
 
         the last five years back and forth between welding and 
 
         electrical. Garman testified she worked side by side with 
 
         claimant one or two times a week for five years.  She admitted 
 
         that Deborah Monroe is her sister.  Garman stated that on three 
 
         occasions she saw claimant's arm swell up with the swelling going 
 
         up to claimant's neck and eyes.
 
         
 
              Martina Lenz has been employed with Snap-On Tools as a spot 
 
         welder for the last eleven and one-half years.  Lenz testified 
 
         she has worked off and on with claimant for approximately six 
 
         years. Lenz said she has observed claimant with swollen fingers, 
 
         arm and right eye approximately once a week over the last two or 
 
         three years.  Lenz stated she has observed swelling in claimant's 
 
         neck and shoulders approximately once every one or two months 
 
         over this two or three year period.
 
         
 
              Lee Gunderson testified he has been the personnel manager 
 
         for Snap-On Tools since September 1986, and prior to that time he 
 
         was the assistant personnel manager for ten years.  Gunderson 
 
         testified one of his responsibilities is working with workers' 
 
         compensation cases.  Gunderson said he was familiar with the 
 
         claimant and was responsible for claimant being moved to the 
 
         night shift.  Gunderson indicated that the electrical department 
 
         was closed and those with seniority who picked the welding 
 
         department bumped claimant and others to the night shift.  
 
         Gunderson said that Snap-On Tools employs 450 people and that the 
 
         company had a contract with the union.  Gunderson stated that he 
 
         does not recall any instances in which claimant complained of 
 
         work restriction violations, before or after her carpal tunnel 
 
         surgery.  He stated that the job of welding drawer fronts was 
 
         within claimant's restrictions.  Gunderson indicated that the 
 
         employer attempted to work with claimant's work restrictions and 
 
         at times it was difficult to come up with work within that 
 
         restriction.
 

 
         
 
 
 
 
 
 
 
 
 
 
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Dennis McGreevey has worked for Snap-on Tools 15 years and 
 
         is presently a spot welding supervisor.  McGreevey testified that 
 
         he was claimant's cosupervisor.  McGreevey recalled two occasions 
 
         in which claimant complained that her work was violating her work 
 
         restrictions.  McGreevey said that claimant was removed from the 
 
         particular job on both occasions.  McGreevey explained the 
 
         particular jobs that are shown in the video tape, exhibit 16.  He 
 
         emphasized that the claimant would be able to use the projection 
 
         welder and spot welder and keep within her medical restrictions. 
 
         McGreevey said he tried to give claimant the light duty work and 
 
         see to it that she got the lighter duty job.
 
         
 
              Shirley Hoveland has worked for Snap-On as a personnel 
 
         specialist since November 1986.  She testified that her work also 
 
         involves workers' compensation cases.  Hoveland testified that 
 
         she became involved in the correspondence with the employee and 
 
         insurance company, electing the treating physicians, and making 
 
         recommendations.  Hoveland said that claimant was sent to Dr. 
 
         John Follows because claimant was missing a lot of work and the 
 
         employer was not seeing a lot in terms of successful treatment 
 
         with Dr. Mead.  Hoveland emphasized that defendants wanted 
 
         claimant to be able to get back to work successfully and felt it 
 
         was necessary to seek another physician.  Hoveland testified she 
 
         could not recall any time in which claimant complained as to her 
 
         work not being within her restrictions.
 
         
 
              Michael W. Crane, M.D., an orthopedic surgeon, testified on 
 
         February 28, 1989, through his deposition, that he first examined 
 
         claimant on January 26, 1989 at the Park Clinic in Algona, Iowa. 
 
         Dr. Crane stated claimant's history  indicated claimant had 
 
         complaints in her arms, shoulder girdle, and radiating into her 
 
         neck.  Dr. Crane said claimant's complaints were more in the 
 
         shoulder than in the hands.  He acknowledged claimant told him of 
 
         her history of swelling and showed him her arm.  Dr. Crane said 
 
         he could not determine any swelling.  Dr. Crane indicated 
 
         claimant became very emotional while relating her history.  Dr. 
 
         Crane testified he performed a range of motion test, grip 
 
         strength test, touch test and Phalen's test for carpal tunnel.  
 
         He said he found nothing abnormal from an objective standpoint.
 
         
 
              When Dr. Crane was asked from the subjective standpoint, he 
 
         answered:  "She expressed a lot of pain with her range of motion, 
 
         her gripping.  That's part of her emotional response was that 
 
         just about everything she did she felt made her uncomfortable." 
 
         (Michael W. Crane, M.D., Deposition, Defendants' Exhibit 14, page 
 
         13)
 
         
 
              When asked:
 
         
 
              Q.  What was your impression at that time?
 
         
 
              A.  Well, under impression I state she suffers from chronic 
 
              tendinitis and myalgias.  I also felt,she was a symptom 
 
              magnifier, and I informed her that I didn't feel there was 
 
              anything I could do to change her problems."
 

 
              
 
 
 
 
 
 
 
 
 
 
 
         
 
         (Crane Dep., Def. Ex. 14, p. 14)
 
         
 
              Dr. Crane testified that when he examined claimant on 
 
         February 17, 1989, her complaints ranged
 
         
 
              from the tips of her fingers up to the right eye
 
              with swelling, numbness, the whole works."
 
         
 
              Q.  And did you perform an examination on that date?
 
         
 
              A.  I stated when I try to examine her she's basically weak 
 
              as a kitten and I really can't tell if she's giving me an 
 
              effort or not.  I stated I saw nothing objective to suggest 
 
              a cervical radiculopathy, and by that I,would be referring 
 
              to the fact that her symptoms were not along the lines of 
 
              anatomic distribution that would indicate a nerve root.  Her 
 
              complaints, if they came from the neck, would have had to be 
 
              a problem from the entire brachial plexus, which is 
 
              anatomically difficult to do.
 
         
 
              Q.  Okay The third line down in your office note you say the 
 
              following.  Today I see nothing.  Was that referring to the 
 
              swelling that Mrs. Eisenbarth has reported?
 
         
 
              A.  Yes.
 
         
 
              Q.  Your note goes on to say the pain is not in a reasonable 
 
              distribution.  Would you explain that, please?
 
         
 
              A.  That reflects the previous sentence referring to the 
 
              cervical radiculopathy.  For instance, if you have a -- the 
 
              sixth cervical nerve root, you've got a streak of pain or 
 
              numbness in a certain position on the arm.  Your index and 
 
              long -- or index and thumb should have some complaints.  
 
              That type of thing wasn't there.
 
         
 
         (Crane Dep., Def. Ex. 14, pp. 18-19)
 
         
 
              Dr. Crane stated he ordered a Lido evaluation through the 
 
         physical therapy specialist in order to get some objective 
 
         evidence.  He described the Lido evaluation as a method of 
 
         putting numbers on what a person can do, in other words, a 
 
         person's ability.  Dr. Crane also emphasized that this Lido 
 
         machine will give one an indication of whether or not the patient 
 
         is putting forth any effort.  Dr. Crane was asked:
 
         
 
              Q.  Okay.  Now, in looking at Exhibit 3, can you tell us how 
 
              Mrs. Eisenbarth was tested on that day and what she was 
 
              asked to do as part of the evaluation?
 
         
 
              A.  She was put through the shoulder flexion extension, 
 
              internal rotation, external rotation and abduction and 
 
              adduction.  She did not complete all of the tests, 
 
              specifically the abduction and adduction.  She became very 
 
              weepy, stated that she needed a chiropractor.
 

 
              
 
 
 
 
 
 
 
 
 
 
 
         
 
                 Then some other therapy modality, such as the ice 
 
              treatment, was used and that did help, and she was 
 
              instructed in giving degrees of effort but the speeds she 
 
              produced continually produced the same results, and on this 
 
              type of machine, should -- your speeds should change as the 
 
              foot-pounds of force you put out change, and she wasn't able 
 
              to do that.  All of her results came out in the -- like one, 
 
              two and three foot-pound amounts.
 
         
 
         (Crane Dep., Def. Ex. 14, pp. 23-24)
 
         
 
              Dr. Crane stated that on the 17th claimant complained mainly 
 
         as to her right shoulder.  Dr. Crane said he saw claimant again 
 
         on February 23 at which time she was complaining of pain, mostly 
 
         in her right arm, down her arm into her shoulders and up into her 
 
         face, etc., "none of which have anything to do with a normal 
 
         anatomic distribution."  Dr. Crane testified that he saw claimant 
 
         on the 28th of February, the date of his deposition, and 
 
         claimant's complaints were the same as they were on the 24th of 
 
         February.  He sent claimant to a physio-therapist who did another 
 
         identical Lido test on her.  Dr. Crane testified on February 28, 
 
         1989 as to Lido tests done on claimant that day.
 
         
 
              Q.  So based upon the two Lido evaluations that we've just 
 
              talked about, I guess my question is of what significant -- 
 
              significance are the results of these studies?
 
         
 
              A.  Well, in Kurt Walderbach's evaluation, one of the things 
 
              he did was have Miss Eisenbarth stand at a table with her 
 
              arm held straight out in front of her and she was told she 
 
              was -- they were going to see how much weight she could 
 
              handle.  She could hold up to three and a half pounds, which 
 
              is calculating the access or rotation, which is a lever arm 
 
              from the hand to the shoulder.  In her case it's 24 inches.  
 
              It comes out to -- if you're holding three and a half pounds 
 
              you're producing 7 foot-pounds of energy. So she was able to 
 
              produce at that time 7 foot-pounds for him but at no time 
 
              during any of the tests did she produce that type of energy, 
 
              and granted, in today's test, she was only asked to do it in 
 
              external and internal rotation, but, you know, she didn't do 
 
              it in any of the movements on the previous evaluation data 
 
              either.
 
         
 
              Q.  Meaning February 17?
 
         
 
              A.  Meaning February 17.
 
         
 
              Q.  So of what significance would all this be then?
 
         
 
              A.  It means to me that she's not putting out her full 
 
              effort when she's been asked for an evaluation.
 
         
 
              Q.  Okay.  Would these results that we've just talked about 
 
              and the findings of the physical therapist be consistent 
 
              with your impression of the symptom magnifier?
 

 
              
 
 
 
 
 
 
 
 
 
 
 
         
 
              A.  Yes.
 
         
 
              Q.  In what way?
 
         
 
              A.  For one reason or another she feels she can't move her 
 
              arms.  She's feeling a lot of pain in her arms, right now 
 
              her arm, right more than her left arm, and unfort -- I can't 
 
              explain that, and because I can't explain that, I need 
 
              things like the Lido evaluation to show me on paper some 
 
              inconsistencies and I think it's done that.  I feel there is 
 
              an inconsistency in the amount of pain she states she has 
 
              and her physical examination.
 
         
 
              Q.  Okay.  Doctor, have you in the past actually examined or 
 
              treated people who have fallen into the one or two percent 
 
              categories based on these Lido evaluations, such as Mrs. 
 
              Eisenbarth?
 
         
 
              A.  Yes.
 
         
 
              Q.  Okay.  Where the test results have been felt to be 
 
         valid?
 
         
 
              A.  Well, frankly I wouldn't put someone who I would expect 
 
              to be that weak on the test machine.  Those type of patients 
 
              are your severely disabled rheumatoid arthritics.  People 
 
              that are barely able to get to the bathroom.
 
         
 
              Q.  I guess that was my next question, and that was what 
 
              would you commonly expect to see in a patient who had these 
 
              kind of test results?
 
         
 
              A.  You know, severe muscular dystrophy, some very severe 
 
              problem.
 
         
 
         (Crane Dep., Def. Ex. 14, pp. 42-44)
 
         
 
              Dr. Crane further testified, "[I]t is my feeling that 
 
         someone who has had a carpal tunnel operation has a certain 
 
         amount of disability due to the change in anatomy, and I -- 
 
         that's usually in the area of about 5 percent of the upper 
 
         extremity."(Crane Dep., Def. Ex. 14, p. 47)
 
         
 
              On January 29, 1989, Dr. Crane wrote:
 
         
 
         
 
         This is my first meeting with Mrs. Eisenbarth.  I did review Dr. 
 
         Mead's notes and they are quite interesting.  She's complaining 
 
         of pain just about everywhere.  She states that they push the 20 
 
         pound limit almost constantly.  As she talks about it, she 
 
         becomes quite tearful, crying, beside herself, wondering how she 
 
         is supposed to manage life when she has so much pain when she 
 
         works....
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
                 ...Strength in the hands is satisfactory....
 
         
 
                 Today she points to an area in her arm that is swollen.  
 
              In fact, that is a muscle belly and it is the same on both 
 
              arms.
 
         
 
                 IMPRESSION:  This lady suffers from chronic tendinitis 
 
              and myalgias.  She also is a considerable symptom magnifier.  
 
              I informed her that there really isn't anything that I can 
 
              do to change her problems.
 
         
 
         (Cl. Ex. C, p. 39, Def. Ex. 9, p. 2)
 
         
 
              On March 9, 1989, Dr. Crane wrote:
 
         
 
                 It is my feeling that Janice Eisenbarth has reached a 
 
              point of maximum medical healing.  Her symptoms have not 
 
              changed for some time.  She is currently off work because of 
 
              what I feel are subjective complaints and have been nothing 
 
              that I could demonstrate objectively.
 
         
 
         (Def. Ex. 9, p. 12)
 
         
 
              Dr. John W. Follows Jr., M.D., an orthopedic surgeon, 
 
         testified by deposition on March 6, 1989, that he first examined 
 
         claimant April 27, 1987 through a referral by her employer for a 
 
         second opinion.  Follows said his examination primarily consisted 
 
         of claimant's hands.  He thought there was some re-occurrence of 
 
         her carpal tunnel syndrome on both sides as a result of some 
 
         scarring and that claimant likely was going to have to change her 
 
         job description in some way.  Dr. Follows examined claimant on 
 
         September 17, 1987, and her complaints were "numbness in her 
 
         fingers, coldness in her fingers, dropping things, waking at 
 
         night."  Dr. Follows examined claimant on October 30, 1987, and 
 
         claimant's complaints changed with the additional complaint that 
 
         her whole right arm was bothering her. Dr. Follows indicated that 
 
         claimant never complained to him before as to her shoulder.  He 
 
         found some tenderness in the anterior upper part of claimant's 
 
         shoulder and some limitation of motion.  Dr. Follows testified 
 
         claimant "seemed to have a lot of so-called functional problems. 
 
         She seemed to be very emotional, and -- as opposed to objective 
 
         in  her complaints."  Dr. Follows believed this to be a factor in 
 
         the extent of claimant's problems and the nature of her 
 
         complaints. Dr. Follows acknowledged that he relied upon Dr. 
 
         Hayreh's letter report and Dr. Pelton's report of May 1987 in 
 
         arriving at his ultimate opinion and conclusions.
 
         
 
              Dr. Follows agreed with Dr. Hayreh's opinion that claimant 
 
         had a mild reflex sympathetic dystrophy.  In describing what that 
 
         is, Dr. Follows said:
 
         
 
              Many of the symptoms are similar to what she has, feeling of 
 
              coldness in her hands, or numbness, or swelling, it would be 
 
              typical.  Often with -- with a sympathetic dystrophy. you 
 
              can see more than you could with her.  Often the extremity 
 
              is swollen, kind of shiny, skin is thin, skin temperature 
 
              can be colder than normal, or warmer than normal.
 

 
              
 
 
 
 
 
 
 
 
 
 
 
         
 
         (Def. Ex. 15, pp. 20-21)
 
         
 
              Dr. Follows also indicated that his conclusion was based on 
 
         claimant's subjective complaints rather than objective findings. 
 
         Dr. Follows also agreed with Dr. Hayreh's assessment that 
 
         claimant had a significant degree of functional overlay.  He 
 
         described functional overlay as "I think basically means that 
 
         there is a lot of emotional component, as compared to hard and 
 
         firm organic pathology going on."  Dr. Follows testified he was 
 
         unable to find any evidence of a permanent physical impairment of 
 
         claimant.  He indicated claimant did have some sensory impairment 
 
         but he didn't put too much value on that because it was not in a 
 
         physiologic distribution.  Dr. Follows stated that to his 
 
         knowledge claimant was sent to him for a second opinion and not 
 
         for an impairment rating.  The doctor acknowledged that he 
 
         refused to give a disability rating.
 
         
 
              David L. Jenson, D.C., testified by deposition on March 16, 
 
         1989, that he first met claimant on October 19, 1987, at which 
 
         time she was complaining of right arm, right side, neck pain and 
 
         shoulder pain.  Dr. Jenson described the various tests he 
 
         performed on claimant.  Basically, claimant was below normal or 
 
         tested positive in all the tests involving the hand, wrist, 
 
         cervical spine area and shoulders.  Dr. Jenson stated that his 
 
         nervoscope test of the spine showed pressure at the 7th cervical 
 
         and 4th thoracic vertebra.  He indicated claimant's x-rays show 
 
         several kythosis of the cervical spine and a flattening of the 
 
         thoracic spine.  Dr. Jenson testified he concluded on October 19, 
 
         1987, that claimant had a branchial neuritis, a cervical 
 
         subluxation, and generalized pain to the right hand but did not 
 
         conclude any work-related causation.  Dr. Jenson stated that as 
 
         his treatment of claimant proceeded, he found that claimant's 
 
         problems would occur in relation to whether claimant went back to 
 
         work or not.  Dr. Jenson described his chiropractic treatment of 
 
         claimant which basically involved claimant's C7 and T4 areas. 
 
         These treatments began in October 1987 and continued until June 
 
         7, 1988.  He also saw claimant on January 24, 1989.  Dr. Jenson 
 
         said that he gave claimant another examination January 15, 1988, 
 
         and his diagnosis was the same as in October 1987, namely, nerve 
 
         root irritation in the cervical spine and loss of curvature in 
 
         the cervical spine.  Dr. Jenson related that on claimant's March 
 
         11, 1988 office visit he noted she had more than a normal root 
 
         irritation at that level.  He advised claimant that she  should 
 
         consider other type of work.  Dr. Jenson explained that every 
 
         time claimant rested or stayed away from work it seemed like her 
 
         symptoms were not nearly as bad.  Every time she went back to 
 
         work, she was back in his office with the same recurring 
 
         condition.  Dr. Jenson said he did not attempt to measure the 
 
         degree of permanency in claimant's arms and shoulder extremities. 
 
         Dr. Jenson stated that he had no reason to feel claimant was 
 
         magnifying the symptoms she described.  Dr. Jenson said his 
 
         records indicate claimant came to him on her own and not through 
 
         the referral by another doctor.  He acknowledged that when 
 
         claimant first saw him in October 1987, her complaints were 
 
         swelling right hand and wrist.  He said that he was the one who 
 
         discovered the problems in claimant's cervical region.  Dr. 
 
         Jenson acknowledged that it is helpful to review the medical 
 
         records of other doctors who have treated claimant in order to 
 
         help determine the mode of treatment.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Dr. Jenson said he did not review the medical records of any 
 
         doctor who examined claimant over the years.  Dr. Jenson agreed 
 
         that claimant oftentimes appeared to be a tense and nervous 
 
         individual.  Dr. Jenson admitted that he does not know what the 
 
         MMPI psychological test is and did not know claimant took such a 
 
         test in September 1988 which resulted in an indication that 
 
         claimant's repressed psychological conflicts are manifested 
 
         through an increase in pain.  Dr. Jenson agreed that grip 
 
         strength test results are dependent upon the amount of effort 
 
         that the patient puts into it.
 
         
 
              Timothy C. Mead, M.D., of the Park Clinic, was claimant's 
 
         doctor in 1983 up to apparently the time he left his practice in 
 
         the state of Iowa.  Dr. Mead's records on January 23, 1986 
 
         reflect:
 
         
 
                 Janice was pulling something at work this week and 
 
              started developing increasing pain in the left upper 
 
              extremity.  It has now been getting worse and worse for the 
 
              last couple of days.  She has been very uncomfortable.  The 
 
              pain has been in the shoulder radiating down to the elbow 
 
              and all the way into the forearm.
 
         
 
         (Cl. Ex. A, p. 39; Def. Ex. 1, p. 17)
 
         
 
              Dr. Mead's records indicate he proceeded with conservative 
 
         measures including injections of the carpal tunnel.  On October 
 
         20, 1986, Dr. Mead's notes reflect:
 
         
 
              IMPRESSION:  1) Bilateral carpal tunnel syndrome.
 
              2) Rotator cuff tendinitis, left shoulder.
 
         
 
              PLAN:  At this time she will undergo decompression of the 
 
              carpal canals with division of the transverse and a portion 
 
              of the volar carpal ligament [sic], tenolysis as necessary 
 
              and [not legible] as necessary.
 
         
 
         (Cl. Ex. A, p. 26)
 
         
 
              Dr. Mead's notes on September 8, 1986 reflect:
 
         
 
                 Mrs. Eisenbarth states that last week she bumped into the 
 
              metallic rack while work.  She struck the left side of her 
 
              back and thigh region.  She did not notice any immediate 
 
              discomfort but started having pain radiating [sic] on the 
 
              lateral thigh down to the level of the knee.
 
         
 
         (C. Ex. A, p. 28)
 
         
 
              There is a written notation at the bottom of the exhibit 
 
         which states:  "9-23-86 Lower extremity problem never reported to 
 
         anyone at Snap-On.  Saw Dr. on her own."
 
         
 
              On May 24, 1988, Dr. Mead's notes reflect:  "She does have, 
 
         therefore, some intermittent symptoms into the right carpal 
 
         tunnel which would probably be a 3% impairment of the upper 
 
         extremity function."  (Def. Ex. 34, p. 22)
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Sant M.S. Hayreh, M.D., a neurologist and a clinical 
 
         assistant professor of neurology at the University of Iowa, wrote 
 
         on May 15, 1987:
 
         
 
                 Mrs. Eisenbarth had a status/post bilateral carpal tunnel 
 
              release surgery, who at present possibly has a mild reflex 
 
              sympathetic dystrophy on the right side, but in addition, 
 
              patient has a significant degree of functional overlay in 
 
              her symptoms and physical findings.  I have,elected to 
 
              evaluated (sic) her further with a routine lab work up 
 
              including, x-ray of right wrist and hand and EMG studies.  
 
              In addition, I have also requested MMPI testing.  I will 
 
              discuss her further management after reviewing above 
 
              studies.
 
         
 
         (Def. Ex. 4, p. 3)
 
         
 
              On June 5, 1987, Dr. Hayreh wrote:
 
         
 
                 Further to my letter of May 15, 1987, I evaluated Mrs. 
 
              Janice Eisenbarth with the following studies which included; 
 
              a normal CBC, ESR 16 mm., RA Latex was negative, ANA was 
 
              negative. Chemistry Panel was within normal limits including 
 
              normal Blood Sugar of 89, Thyroid functions and 
 
              electrolytes.  The nerve conduction and EMG studies in the 
 
              median and ulnar nerves on both sides were within normal 
 
              limits.  She was further evaluated with MMPI testing which 
 
              revealed a significant degree of over control of her 
 
              feelings, especially that of unhappiness and anger with a 
 
              tendency for psychological distress to aggravate her 
 
              physical symptoms.
 
         
 
                 I think Mrs. Eisenbarth probably.has a mild reflex 
 
              sympathetic dystrophy following carpal tunnel release 
 
              surgeries which may be causing some of her symptoms but in 
 
              addition there is a significant degree of functional 
 
              overlay. Considering her poor response to conservative 
 
              therapy, I have requested Dr. DeBartolo, who specializes in 
 
              hand disorders, to evaluate her further and she is schedules 
 
              [sic] to see him on June 23, 1987 and hopefully he can offer 
 
              her any further help.  I will be in touch with you after 
 
              hearing from Dr. DeBartolo.
 
         
 
         (Def. Ex. 4, p. 1)
 
         
 
         It does not appear from the medical records that claimant saw Dr. 
 
         DeBartolo, at least there is no medical report from him.
 
         
 
              There is a note at the bottom of Dr. Hayreh's June 5 1987 
 
         letter, which is in handwriting:  "6-5-87 Pt cancelled her 
 
         appointment with Dr. DeBartolo."
 
         
 
              On December 2, 1987, Peter D. Wirtz, M.D., orthopedic sports 
 
         medicine specialist, examined claimant and wrote:
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
                 At the present time she has a tendinitis of the right 
 
              shoulder with stiffness and will require physical therapy.  
 
              This patient is capable of full employment within her 
 
              physiologic strength and dexterity.  The right hand 
 
              continues to be symptomatic but does not have any specific 
 
              medical therapy or physical therapy that will manage this 
 
              area.  Her physiologic strength and dexterity may range 
 
              anywhere from 10-20 pounds but is not determinable on a 
 
              clinical examination.  If this patient is capable of 
 
              employment for a four hour period of time without symptoms 
 
              then she is capable of that same functional employment 
 
              activity for a full days work.
 
         
 
         (Def. Ex. 5, p. 2)
 
         
 
              On  December 21, 1987, Dr. Wirtz wrote:
 
         
 
              The shoulder stiffness will respond with repeated episodes 
 
              of physical therapy each day; therefore, the burden of 
 
              benefit is placed upon the patient rather than seeing a 
 
              therapist.  It is anticipated that this therapy will relieve 
 
              her symptoms in her shoulder and not leave her with any 
 
              functional restriction at work.
 
         
 
         (Def. Ex. 5, p. 3)
 
         
 
              On January 6, 1988, Dr. Wirtz wrote:
 
         
 
                 In review of the physical examination 12/2/87, the 
 
              patient lacked 20 degrees of forward flexion which is a 3% 
 
              impairment of the upper extremity.  Her internal rotation 
 
              lacked 15 degrees which is a 3% impairment of the upper 
 
              extremity.  The external rotation lacked 45 degrees which is 
 
              a 5% impairment of the upper extremity.
 
         
 
                 Summation with the Combined Tables reveals a 6% 
 
              impairment of the upper extremity related to loss of motion 
 
              on the examination 12/2/87.
 
         
 
         (Def. Ex. 5, p. 4)
 
         
 
              On April 4, 1988, Dr. Wirtz wrote a letter to claimant's 
 
         attorney and stated as follows:
 
         
 
                 Regarding 3/21/88 correspondence, this patients (sic] 
 
              disability is related only the right upper extremity.  The 
 
              shoulder blade separates the upper extremity from the body 
 
              and the shoulder blade is more proximal to the body than the 
 
              shoulder joint.
 
         
 
                 At the present time I would be considered an independent 
 
              examiner regarding this patients [sic] case in that it has 
 
              been well documented by Dr. Follows as to her tendinitis and 
 
              no specific medical management.  Her recommended management 
 
              would be limitation of stress and strain while working as 
 
              this is an overstressed syndrome with a psychological 
 
              overlay.  It is anticipated that any further,consultation 
 
              will not reveal any different diagnosis or management 
 
              regardless of who she may be referred to.
 

 
              
 
 
 
 
 
 
 
 
 
 
 
         
 
         (Def. Ex. 5, p. 6)
 
         
 
              The January 12, 1988 progress notes of R. D. Beckenbaugh, 
 
         M.D., reflect the following:
 
         
 
                 Clinically on examination, the examination was difficult, 
 
              as when one would reach a certain pain threshold on various 
 
              portions of the examination such as more than 20 degrees of 
 
              lateral deviation of the neck or more than 10 seconds of 
 
              carpal tunnel compression testing, the patient would state 
 
              that was enough and refuse further examination.  On 
 
              examination, there did appear to be sensitivity of the 
 
              median and when I insisted on proceeding over the median 
 
              nerve and carpal testing, she did experience an outburst of 
 
              crying and a sensation of the pain radiating up her arm up 
 
              into the shoulder and neck areas and, not describing the 
 
              headache outright, stated it tended to reproduce her 
 
              symptomatology.  Similarly, however, on resisted flexion and 
 
              extension of the wrist during the initial part of the 
 
              examination, the symptoms were aggravated; yet, while 
 
              attempting to identify resisted extension and flexion of the 
 
              wrist and later examination while we were testing for 
 
              strengthening, she was unable to generate any force to even 
 
              bring on this symptomatology.
 
         
 
                 Sensory examination and others recorded are difficult to 
 
              interpret but would seem to indicate a rather diffuse 
 
              sensory loss on the right hand and wrist if her cooperative 
 
              level is, indeed, accurate.  On attempting to test the 
 
              patient's range of motion as implied above she would reach 
 
              mobility levels of approximately 20-30% of normal and 
 
              complain of pain and discomfort involving the arm and neck 
 
              which would prevent her from going through further mobility 
 
              exercises and/or testing. She experienced rather marked 
 
              tenderness at the trigger points over the mid-trapezium and 
 
              over the supraclavicular fossa areas.  There was no 
 
              tenderness or trigger points about the shoulder.  On 
 
              attempts to examine the musculature of the upper extremity 
 
              on the right, there was gross giving way which the patient 
 
              stated was due to pain.  I was, therefore, unable to 
 
              demonstrate any weakness.  I might add, however, that during 
 
              other types of testing, as mentioned above, for trying to 
 
              aggravate nerve pressure situations, there appeared to be 
 
              reasonably good strength in the right upper extremity. The 
 
              left upper extremity testing was normal.
 
         
 
                 The patient describes swelling throughout the arm.  She 
 
              feels there is some swelling present today.  Circumferential 
 
              measurement 4 cm below the elbow flexion crease revealed 
 
              26.5 cm on the right dominant arm and 26.0 cm on the left 
 
              nondominant arm, or in other words, normal limits.  I can 
 
              detect no visual gross swelling myself.  X-rays of the hand 
 
              are within normal limits.
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
                 During the interview, the patient stated she has had 
 
              considerable relief from intermittent treatments performed 
 
              by a chiropractor and upon manipulation of certain elements 
 
              of her spine, she sometimes obtained hours of relief from 
 
              the discomfort in her right upper extremity.  Additionally 
 
              during the interview she was somewhat inappropriate in her 
 
              affects and that she would discontinue or disallow 
 
              continuous examinations, would break out crying 
 
              spontaneously, and obviously is very emotionally involved in 
 
              the whole problem of the right extremity.  It is difficult, 
 
              however, for me to sort out organic pathology.  It would 
 
              certainly appear to be grossly conversion or hysterical 
 
              reaction and the examination of the motor power and power 
 
              examination of right upper extremity but one would always be 
 
              somewhat concerned that there is a pain source which has 
 
              prevented her from adequately cooperating in these 
 
              examinations in addition to functional overlay.
 
         
 
         (Def. Ex. 6, p. 2)
 
         
 
              Dr. Beckenbaugh's notes of February 26, 1988 reflect the 
 
         following:
 
         
 
                 Mrs. Eisenbarth returns.  Appreciate neurologic opinion.  
 
              The EMG is totally within normal limits, as was the 
 
              neurologic exam, with confirmation of findings of giving 
 
              away functional components and absence of identification of 
 
              any organic pathology.  Agree with Dr. Fealey's 
 
              recommendations that the patient could get together with her 
 
              employer and other workers who are having the same problems 
 
              if they feel the tools are improper at work.
 
         
 
                 Clinically at this time we are unable to make a diagnosis 
 
              of a pathologic condition other than overuse and muscle 
 
              tension and are unable to identify any impairment.  From my 
 
              standpoint, could return to work.  Suggest discussions with 
 
              employer.  I will try to arrange for her to see Physical 
 
              Medicine here for instructions in the use of a cervical 
 
              spine traction unit.to see if this could be of any benefit 
 
              for the neck tension.  We suggested she not see a 
 
              chiropractor for this condition.  I have tried to reassure 
 
              her that we could not identify a serious problem and EMG 
 
              indicates no damage to nerves and/or muscles.
 
         
 
         (Def. Ex. 6, p. 3)
 
         
 
              On February 24, 1988, Dr. Beckenbaugh wrote Dr. Follows:
 
         
 
                 In summary, as noted in my examination note, we were 
 
              unable to identify any significant organic pathology in Mrs. 
 
              Eisenbarth.  We have encouraged her to return to normal 
 
              activities and we did not find evidence of impairment nor 
 
              specifically suggest any restrictions with regard to work 
 
              activities.  We felt the tension was certainly a factor in 
 
              this condition and we suggested that if you are having 
 
              problems, as other (sic] were in the area of her work 
 
              environment, that you discuss this with her employer to see 
 
              if she could assist in modifying what she feels now is a 
 
              current heavy work load associated with obsolete equipment.  
 
              I am sure that you are closer to the situation and you could 
 
              perhaps advise her further of this.
 

 
              
 
 
 
 
 
 
 
 
 
 
 
         
 
         (Def. Ex. 6, p. 4)
 
         
 
              Claimant had a psychological evaluation at St. Joseph's 
 
         Mercy Hospital, in Mason City, and those records on the date of 
 
         testing, September 20, 1988, reflect the following:
 
         
 
              She spoke about the continued discomfort in her arms and 
 
              hands and about the steps she has taken to adjust to her 
 
              son's death which includes attending a support group.  She 
 
              noted that she continues to work at Snap-On and that she 
 
              actually enjoys her job.  Mrs. Eisenbarth was questioned 
 
              about how other person's alcoholism has effected her life 
 
              and she noted that her first husband was an alcoholic.
 
         
 
                 ...Her optimistic attitude may help her to cope with her 
 
              pain complaints although again there is some indication that 
 
              her repressed psychosocial conflicts are manifested through 
 
              an increase in pain.
 
         
 
                 ...Her own problems may then be experienced indirectly, 
 
              again such as through an intensification of pain complaints. 
 
              However,.these test results again do not indicate an actual 
 
              conversion reaction in which pain or physical,dysfunction is 
 
              solely due to emotional problem.
 
         
 
         (Def. Ex. 8, p. 2-3)
 
         
 
                                 LAW AND ANALYSIS
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury of January 23, 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).
 
         
 
              Iowa Code section 85.34(2)(s) provides, in part:  "The loss 
 
         of both arms, or both hands, or both feet, or both legs, or both 
 
         eyes, or any two thereof, caused by a single accident, shall 
 
         equal five hundred weeks and shall be compensated as such."
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Workers' compensation benefits for permanent partial 
 
         disability of two members caused by a single accident is a 
 
         scheduled benefit under Iowa Code section 85.34(2)(s) and that 
 
         the degree of impairment caused by a partial loss must be 
 
         computed on the basis of functional, rather than industrial 
 
         disability.  Simbro v. DeLong's Sportswear, 332,N.W.2d 886 
 
         (1983).
 
         
 
              Claimant alleges three repetitive injuries occurring on 
 
         January 23, 1986.  Two injuries resulted in a bilateral carpal 
 
         tunnel syndrome surgery in October 1986.  The parties agreed to 
 
         the causal connection between claimant's bilateral carpal tunnel 
 
         injury and any recurring disability.  The degree of permanent 
 
         disability is in dispute.  Claimant contends she also injured her 
 
         shoulders on January 23, 1986.  Claimant could not remember any 
 
         particular instance involving her shoulders, but believed the 
 
         repetitive injury occurred during the time she was using her 
 
         legs, back and hip to push items around when her hands were 
 
         hurting and swelling.
 
         
 
              Both claimant's testimony and medical testimony often refer 
 
         to shoulders and shoulder interchangeably.  It was difficult at 
 
         times to determine which shoulder was involved when singular was 
 
         used.  A good example of the confusion is reflected in the need 
 
         for claimant's attorney to write Dr. Wirtz to explain which upper 
 
         extremity the doctor was rating.  Dr. Crane testified "it is my 
 
         feeling that someone who has had a carpal tunnel operation has a 
 
         certain amount of disability due to the change in anatomy, and I 
 
         -- that's usually in the area of about 5 percent of the upper 
 
         extremity."  (Def. Ex. 14, p. 47)  Dr. Crane did not refer to 
 
         either the left or the right upper extremity.  The undersigned 
 
         believes he was talking about both left and right and that is why 
 
         he was not specific.  It is also obvious that he was talking 
 
         about the hands when he was referring to the upper extremity.  
 
         The greater medical evidence shows that the left and right carpal 
 
         tunnel involved nothing but the hand and wrist.  The wrist has 
 
         been held to be part of the hand.  See Iowa Workers' Compensation 
 
         Law and Practice, Lawyer and Higgs, Chapter 13-4, p. 110 (1984).
 
         
 
              Dr. Wirtz's rating of the upper right extremity on January 
 
         6, 1988, was obviously referring to the shoulder condition of 
 
         claimant and not the carpal tunnel injuries.
 
         
 
              Claimant testified to various physical complaints she 
 
         related to the bilateral carpal tunnel syndrome and the shoulder 
 
         injuries. It is obvious the employer can do no good in the mind 
 
         of claimant. Claimant brought in several other workers as 
 
         witnesses, some having workers' compensation claims against 
 
         defendant employer. There is no medical testimony causally 
 
         connecting claimant's shoulders or arm complaints to the 
 
         repetitive injury of January 23, 1986.  Claimant saw many 
 
         doctors, many of whom are specialists in their field, who 
 
         concluded:
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              Dr. John Follows, M.D.:  "[T]here is a lot of emotional 
 
              components, as compared to hard and firm organic pathology 
 
              going on.  There is a significant degree of functional 
 
              overlay."  (Def. Ex. 15, p. 22)
 
         
 
              Sant M.S. Hayreh, M.D.:  "[C]laimant had a significant 
 
              degree of functional overlay."  (Def. Ex. 5, p. 1; Ex. 15, 
 
              p. 22)
 
         
 
              Michael W. Crane, M.D.:  "She is currently off work because 
 
              of what I feel are subjective complaints and have been 
 
              nothing that I could demonstrate objectively."  (Def. Ex. 9, 
 
              P. 12) "She also is a considerable symptom magnifier."  
 
              (Def. Ex. 9. p, 2)
 
         
 
              Peter D. Wirtz, M.D.:  "Her recommended management would be 
 
              limitation of stress and strain while working as this is an 
 
              overstressed syndrome with a psychological overlay."  (Def. 
 
              Ex. 5, p. 6)
 
         
 
              R.D. Beckenbaugh, M.D., of the Mayo Clinic:  "EMG is totally 
 
              within normal limits, as was the neurologic exam, with 
 
              confirmation of findings of giving away functional 
 
              components and absence of identification of any organic 
 
              pathology."  (Def. Ex. 6, p. 3)
 
         
 
              St. Joseph Mercy Hospital - Psychological  Evaluation:  
 
              "[H]er repressed psychosocial conflicts are manifested 
 
              through an increase in pain."  (Def. Ex. 8, p. 2)
 
         
 
              On more than one occasion, claimant was convinced she had 
 
         swollen arms and the doctor could not see any swelling.  The 
 
         undersigned is disturbed by the medical evidence that indicates 
 
         there is "a lack of effort".on claimant's part in certain tests 
 
         or evaluations.  Dr. Crane testified as the results of the Lido 
 
         tests.  Claimant was not putting out the effort that the doctor 
 
         thought she should and could.  It appeared claimant was faking. 
 
         Her symptoms were not along the lines of anatomic distribution. 
 
         There is obviously some pain.  There is no distinction or 
 
         division as to what pain is from her emotional problems and those 
 
         that are truly from the alleged injuries.  There is no medical 
 
         opinion from a psychiatric specialist relating any of claimant's 
 
         emotional problems to her alleged injuries.  There is a notation 
 
         in claimant's Mercy Hospital psychological evaluation when 
 
         claimant was tested on September 20, 1988 (def. ex. 8, p. 2).  
 
         Claimant discussed the steps she is taking to adjust to her son's 
 
         death and is attending a support group, and how her first 
 
         husband's alcoholic problem has affected her life.
 
         
 
              The undersigned believes Dr. Crane sums up claimant's 
 
         work-related bilateral carpal tunnel condition more accurately 
 
         when he testified "it is my feeling that someone who has had a 
 
         carpal tunnel operation has a certain amount of disability due to 
 
         the change in anatomy, and I --  that's,usually in the area of 
 
         about 5 percent of the upper extremity."  (Crane Dep., Def. Ex. 
 
         14, p. 45) The undersigned accepts Dr. Crane's opinion that 
 
         claimant has an impairment of 5 percent to her left upper 
 
         extremity and 5 percent to her right upper extremity, and 
 
         believes the doctor is referring to the left and right hand.  The 
 
         parties stipulated that the bilateral carpal tunnel syndrome is a 
 
         result of a single injury on January 23, 1986.  This finding 
 
         brings into play Iowa Code section 85.34(2)(s).  Dr. Crane 
 
         referred to 5 percent of the upper extremity.  The question 
 
         arises whether this is 5 percent of each hand.  Since a 5 percent 
 
         impairment to the upper extremity is the same under the AMA 
 
         Guides as 5 percent to the hand, the question is moot.  Iowa Code 
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         section 85.34(2)(s) requires the use of the combined values 
 
         chart.  A 5 percent impairment to the left and right upper 
 
         extremities converts to 3 percent of the whole person per Table 3 
 
         AMA Guides To The Evaluation Of Permanent Impairment, 3rd 
 
         Edition.  This equals a 6 percent body as a whole impairment on 
 
         the combined values chart.  The undersigned finds claimant has a 
 
         6 percent impairment to her body as a whole as a result of her 
 
         bilateral carpal tunnel syndrome injury on January 23, 1986. 
 
         Claimant is entitled to 30 weeks permanent partial disability 
 
         benefits.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              The parties stipulated to the time claimant was off work and 
 
         paid healing period benefits, accordingly.  Claimant had several 
 
         healing periods and there is no dispute as to the healing period 
 
         benefits paid.  Without setting out the numerous specific periods 
 
         of time, the deputy accepts the stipulation and finds that 
 
         claimant is entitled to 56.286 weeks of healing period benefits. 
 
         These were paid at the rate of $230.44.  In fact, as stipulated 
 
         by the parties at the hearing, the rate should be $229.50 per 
 
         week.
 
         
 
              The parties disputed whether there was any causal connection 
 
         between the claimant's shoulder injuries of January 23, 1986 and 
 
         her claimed disability.  There is insufficient medical evidence 
 
         causally connecting claimant's alleged disability and her alleged 
 
         repetitive shoulder injuries on January 23, 1986.  There is no 
 
         impairment rating by any doctor except  Dr. Wirtz.  Dr. Wirtz 
 
         referred to claimant's psychological overlay.  It appears that if 
 
         claimant managed her stress, this could solve her pain 
 
         magnification and alleged physical complaints in this area.
 
         
 
              It would be too speculative for the undersigned to outguess 
 
         and determine any percent of disability.  Claimant must prove a 
 
         causal connection.  The undersigned can sympathize with claimant. 
 
         She obviously has emotional problems.  Claimant has the burden of 
 
         proof.  She has not carried that burden as to her alleged 
 
         shoulder injuries.  The mere fact that claimant has an injury 
 
         does not make defendants liable for the consequences which are 
 
         not causally connected to the injury.
 
         
 
              The undersigned finds that the employer has attempted to 
 
         work within claimant's restrictions.  It appears nothing will 
 
         satisfy claimant as long as she has her emotional problems and 
 
         those symptoms that several doctors refer to as functional 
 
         overlay or pain magnification.  This deputy feels claimant is 
 
         able to perform many jobs the employer has offered her under the 
 
         present circumstances.  Claimant's employer has made reasonable 
 
         efforts to accommodate claimant.  If claimant sought help,and a 
 
         cure for her emotional problems that the undersigned has found 
 
         not proved to be causally connected to her injury, claimant could 
 
         better perform the duties.  This deputy believes that when this 
 
         litigation ends claimant will better grasp reality and true cause 
 
         of many of her problems with further help.  There is no expert 
 
         medical evidence causally connecting claimant's emotional 
 
         problems to her work-related injuries.  This deputy does not have 
 
         the medical expertise nor can he speculate as to causation.
 
         
 
              The remaining issue for resolution is whether claimant is 
 
         entitled to Iowa Code section 86.13 penalty benefits.  Dr. 
 
         Crane's testimony on February 29, 1989 was the first medical 
 
         opinion as to impairment to both upper extremities.  As found 
 
         herein, he is referring to impairment resulting from the 
 
         bilateral carpal tunnel syndrome injuries, not the shoulder.  The 
 
         parties agreed there was a bilateral carpal tunnel syndrome 
 
         injury on January 23, 1986. This should immediately have made the 
 
         parties aware of Iowa Code section 85.34(2)(s) and consideration 
 
         of permanent partial disability benefits based on 500 weeks.  
 
         Without an impairment rating to two members, 85.34(2)(s) would 
 
         not be applicable. Defendants paid 15 weeks based on the 6 
 
         percent right upper extremity impairment soon after that 
 
         determination was made.  With all the nonwork-related emotional 
 
         problems claimant has had, the medical record is confusing.  
 
         Defendants' reluctance to pay additional weekly or lump sum 
 
         payments was reasonable under the circumstances.  This deputy 
 
         finds that defendants did not delay the commencement or terminate 
 
         weekly benefits without reasonable or probable cause or excuse.  
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         It has been held previously that 86.13 does not apply to medical 
 
         benefits.  See Klein v. Furnas Electric Co., 384  N.W.2d 370 
 
         (1986).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
                                FINDINGS OF FACTS
 
         
 
              THEREFORE, it is found:
 
         
 
              1.  Claimant received a work-related injury to her two hands 
 
         in a single accident on January 23, 1986, which resulted in a 
 
         bilateral carpal tunnel release operation in October 1986.
 
         
 
              2.  Claimant has a 5 percent impairment to each of her hands 
 
         as a result of her bilateral carpal tunnel injury on January 23, 
 
         1986.
 
         
 
              3.  Claimant failed to prove that her alleged disability to 
 
         her right or left shoulder was the result of a repetitive injury 
 
         on January 23, 1986.
 
         
 
              4.  Claimant has no impairment to her left or right shoulder 
 
         as a result of her injury on January 23, 1986.
 
         
 
              5.  Claimant incurred 56.286 weeks of healing period 
 
         benefits as a result of her work-related injuries on January 23, 
 
         1986 as stipulated to by the parties.
 
         
 
              6.  Defendants made a reasonable effort to accommodate 
 
         claimant at work and retain her on the job.
 
         
 
              7.  Claimant has a significant degree of functional overlay 
 
         and is a symptoms magnifier.
 
         
 
              8.  Claimant's repressed psychological conflicts are 
 
         manifested through an increase in pain.
 
         
 
              9.  Claimant has failed to prove that any of her emotional 
 
         problems are the result of her work-related injuries on January 
 
         23, 1986.
 
         
 
              10.  Claimant has failed to prove that defendants delayed 
 
         the commencement or terminated benefits without reasonable or 
 
         probable cause or excuse.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              THEREFORE, it is concluded:
 
         
 
              Claimant incurred 56.286 weeks of healing period benefits at 
 
         the rate of $229.50.
 
         
 
              Claimant has a 5 percent impairment to each of her hands 
 
         which is causally connected to a single injury on January 23, 
 
         1986.
 
         
 
              Claimant's alleged injury to her right or left shoulder is 
 
         not causally connected to any disability she may now have.
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              Many of claimant's present problems result from her 
 
         emotional problems and repressed psychological conflicts which 
 
         are being manifested through an increase in pain.
 
         
 
              Claimant is not entitled to 86.13 benefits.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, it is ordered:
 
         
 
              That defendants shall pay unto claimant healing period 
 
         benefits in the stipulated amount of fifty-six point two eight 
 
         six (56.286) weeks at the stipulated rate of two hundred 
 
         twenty-nine and 50/100  dollars ($229.50).  Defendants shall 
 
         receive credit for the fifty-six point two eight six (56.286) 
 
         weeks of healing period benefits already paid at the rate of two 
 
         hundred thirty and 24/100 dollars ($230.24) and shall be given 
 
         further credit for the overpayment against the amounts hereafter 
 
         ordered.
 
         
 
              That defendants shall pay unto claimant thirty (30) weeks of 
 
         permanent partial disability benefits at the rate of two hundred 
 
         twenty-nine and 50/100 dollars ($229.50) beginning at the 
 
         stipulated date of December 2, 1987.
 
         
 
              Defendants shall pay the accrued weekly benefits in a lump 
 
         sum and receive credit for benefits previously paid.
 
         
 
              Defendants shall pay interest on benefits awarded herein as 
 
         set forth in Iowa Code section 85.30.
 
         
 
              Defendants shall pay the costs of this action pursuant to 
 
         Division of Industrial Services Rule 343-4.33.
 
         
 
              Defendants shall file an activity report upon payment of 
 
         this award as required by this agency pursuant to Division of 
 
         Industrial Services rule 343-3.1.
 
         
 
              Signed and filed this 14th day of August, 1989.
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
                                            BERNARD J. O'MALLEY
 
                                            DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies to:
 
         
 
         Mr. Mark S. Soldat
 
         Attorney at Law
 
         714 E. State St
 
         Algona, IA  50511
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         Mr. Paul C. Thune
 
         Attorney at Law
 
         218 6th Ave, Ste 300
 
         P.O. Box 9130
 
         Des Moines, IA  50306
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                                            5-1400; 5-1803;
 
                                            5-2204; 5-1108
 
                                            Filed August 14, 1989
 
                                            Bernard J. O'Malley
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         JANICE EISENBARTH,
 
         
 
              Claimant,
 
                                                 File No. 865360
 
         vs.
 
         
 
         SNAP-ON TOOLS CORPORATION,           A R B I T R A T I 0 N
 
         
 
              Employer,                          D E C I S I 0 N
 
         
 
         and
 
         
 
         ROYAL INSURANCE COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         5-1400
 
         
 
              Claimant incurred a bilateral carpal syndrome injury and an 
 
         alleged injury to her shoulders, all on the same date.  Claimant 
 
         failed to prove any disability to her shoulders which is causally 
 
         connected to her alleged work injury.
 
         
 
         5-1803
 
         
 
              Claimant incurred a 5% impairment to each of her hands as a 
 
         result of a single repetitive injury.  85.34(2)(s) is applicable 
 
         and resulted in a 6% impairment to the body as a whole under the 
 
         AMA Guides Combined Charts.  Thirty weeks permanent partial 
 
         disability benefits awarded.
 
         
 
         5-2204
 
         
 
              Claimant was found to have a significant degree of 
 
         functional overlay and was a symptoms magnifier.
 
         
 
         5-2204
 
         
 
              Claimant found to have repressed psychological conflicts 
 
         which were manifested through an increase in pain.
 
         
 
         5-1108; 5-2204
 
         
 
              Claimant did not prove nor was there any evidence 
 
         associating her emotional problems with her work injury.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
 
 
 
 
          ROBERT L. MORGAN,
 
 
 
               Claimant,
 
 
 
          vs.                                          File No. 865365
 
 
 
          ROBERT BARNES, d/b/a BARNES,                   A P P E A L
 
          CONSTRUCTION CO.,
 
                                                       D E C I S I O N
 
               Employer,
 
 
 
          and                                             F I L E D
 
 
 
          GENERAL CASUALTY COMPANY,                      DEC 29 1989
 
 
 
               Insurance Carrier,               IOWA INDUSTRIAL COMMISSIONER
 
 
 
          and
 
 
 
          SECOND INJURY FUND OF IOWA,
 
 
 
               Defendants.
 
 
 
 
 
                               STATEMENT OF THE CASE
 
 
 
               Claimant appeals from a ruling by the deputy industrial 
 
          commissioner sustaining a motion for summary judgment.  The 
 
          record on appeal consists of the pleadings, motions and rulings 
 
          in the file.  Claimant filed an appeal brief.
 
 
 
                                    ISSUES
 
 
 
               The issues as stated by claimant are as follows:
 
 
 
               1.  This case is distinguishable from Sawyer v. National 
 
               Transportation Co. file No. 789205 relied on by the Deputy 
 
               Commissioner in that the matter had been fully resolved and 
 
               settled before the Nebraska Division of Workers' 
 
               Compensation while in this case the payments were made at 
 
               the choice of the defendants for their benefit and do 
 
               constitute "weekly compensation, as defined in Section 
 
               85.26.
 
 
 
               2.  When the Employer-Insurance Carrier voluntarily make 
 
               weekly compensation payments to a worker injured in Iowa 
 
               (whether the compensation payments are the correct rate or 
 
               not) and subject to the Iowa Workers' Compensation Laws, are 
 
               they required to file with the Industrial Commissioner....a 
 
               notice of Commence [sic] of the Payments?  (86.13)
 
 
 
                                                               
 
                                                               
 
               a.  If affirmative, does defendant Employer-Insurance 
 
               Carrier's failure to file this notice in this case stop the 
 
               running of the time periods in Section 85.26 as of the date 
 
               of first payment?
 
 
 
               3.  Do weekly compensation payments made by the 
 
               Employer-Insurance Carrier voluntarily made to an injured 
 
               worker subject to the Iowa Workers' Compensation Laws extend 
 
               the statute of limitations for 3 years from the last 
 
               payment, whether the rates are correct or not as defined in 
 
               Section 85.26(1)?
 
 
 
               4.  Can the Employer-Insurance Carrier unilaterally and 
 
               without disclosure to the worker injured in Iowa and 
 
               eligible to file a claim in either Missouri or Iowa make 
 
               payments weekly to the worker for almost three years using 
 
               the rate of the state where the benefits are substantially 
 
               less and claim that the statute of limitations has run 
 
               because they paid the worker weekly compensation but under 
 
               the rate of the lesser state?
 
 
 
                                 APPLICABLE LAW
 
 
 
               Iowa Code section 85.26 states in pertinent part:
 
 
 
               1.  An original proceeding for benefits under this chapter 
 
               or chapter 85A, 85B, or 86, shall not be maintained in any 
 
               contested case unless the proceeding is commenced within two 
 
               years from the date of the occurrence of the injury for 
 
               which benefits are claimed or, if weekly compensation 
 
               benefits are paid under section 86.13, within three years 
 
               from the date of the last payment of weekly compensation 
 
               benefits.
 
 
 
               2.  An award for payments or an agreement for settlement 
 
               provided by section 86.13 for benefits under this chapter or 
 
               chapter 85A or 85B, where the amount has not been commuted, 
 
               may be reviewed upon commencement of reopening proceedings 
 
               by the employer or the employee within three years from the 
 
               date of the last payment of weekly benefits made under the 
 
               award or agreement.
 
 
 
                                    ANALYSIS
 
 
 
               Claimant seeks review of a ruling by the deputy industrial 
 
          commissioner that sustained defendants' motion for summary 
 
          judgment.  The ruling is based on section 85.26(1), the statute 
 
          of limitations.
 
 
 
               Claimant was injured in the state of Iowa on July 14, 1984. 
 
          Claimant was a resident of the state of Missouri at the time.  
 
          The employer was based in Missouri.  The employer voluntarily 
 
          paid benefits to claimant under Missouri's workers' compensation 
 
          law. No payments were made under Iowa workers' compensation law.
 
 
 
                                                               
 
                                                               
 
               Iowa Code section 85.26(1) requires that an original 
 
          proceeding for benefits be instituted within two years of the 
 
          date of injury, or, if benefits have been paid pursuant to Iowa 
 
          Code section 86.13, within three years of the last payment.  
 
          Claimant's petition was filed March 9, 1988.
 
 
 
               Claimant maintains that the payments under Missouri's 
 
          workers' compensation statute should extend the time for filing 
 
          his Iowa action.  However, the case of Sawyer v. National 
 
          Transportation Co.,  N.W.2d  (Iowa 1989) establishes that payment 
 
          of workers' compensation benefits pursuant to another state's 
 
          workers' compensation statute does not constitute the payment of 
 
          benefits under Iowa Code section 86.13.
 
 
 
               Claimant seeks to distinguish the Sawyer case by pointing 
 
          out that the Nebraska payments made in that case were based on an 
 
          award of benefits, whereas claimant in this case did not receive 
 
          an award but merely voluntary payments of benefits.  However, the 
 
          Sawyer case concluded that the "award for payments or an 
 
          agreement for settlement provided by section 86.13 for benefits 
 
          under this chapter...." language,in section 85.26(2) referred to 
 
          Iowa benefits.  Similarly, "if weekly compensation benefits are 
 
          paid under section 86.13...." in section 85.26(1) refers to 
 
          payment of weekly benefits under Iowa law.
 
 
 
               The three year statute of limitations in either section 
 
          85-26(1) or 85.26(2) is available only when payments are made 
 
          under Iowa's workers' compensation law.  Payments under another 
 
          state's laws, whether in the form of an award or voluntary 
 
          payments, do not extend the Iowa statute of limitations from two 
 
          years to three years from the last payment.  Similarly, the 
 
          provisions of section 86.13, which toll the running of the 
 
          statute of limitations when the employer fails to file a notice 
 
          of commencement of payments, contemplates commencement of 
 
          payments under Iowa's workers' compensation law.
 
 
 
               Claimant argues that he was "deceived" by employer's 
 
          voluntary payments to him under Missouri law, which also resulted 
 
          in a lower rate of payment than he feels he was entitled to under 
 
          Iowa law.  However, the employer is not under an obligation to 
 
          inform claimant of what jurisdictions he might have a cause of 
 
          action in.  Similarly, the employer is not obligated to inform 
 
          claimant which state might offer him the most favorable rate. 
 
          Finally, the employer is not obligated to inform claimant of the 
 
          various statutes of limitations which might apply to his 
 
          situation.  These matters are claimant's own responsibility. 
 
          Claimant neglected to seek legal counsel until the Iowa statute 
 
          of limitations had expired.  He assumed the employer would pay 
 
          him the highest rate he might be entitled to.  Claimant relied on 
 
          this assumption at his own peril.
 
 
 
               Claimant's petition was not filed within the time period 
 
          required by the statute of limitations.  The decision of the 
 
          deputy granting the motion for summary judgment was appropriate. 
 
          This agency lacks jurisdiction to consider claimant's petition.
 
                                                               
 
                                                               
 
 
 
                              FINDINGS OF FACT
 
 
 
               1.  Claimant, a resident of Missouri, was injured in the 
 
          state of Iowa on July 14, 1984.
 
 
 
               2.  Claimant was paid workers' compensation benefits on a 
 
          voluntary basis under Missouri workers' compensation law.
 
 
 
               3.  Claimant did not file a petition for Iowa workers' 
 
          compensation benefits within two years of the date of injury.
 
 
 
               4.  Claimant did not receive an award of benefits, 
 
          settlement, or voluntary payment of benefits under Iowa workers' 
 
          compensation law.
 
 
 
                                   CONCLUSIONS OF LAW
 
 
 
               Claimant failed to file his petition for workers' 
 
          compensation benefits within the statute of limitations.
 
 
 
               WHEREFORE, the decision of the deputy is affirmed.
 
 
 
                                       ORDER
 
 
 
                              
 
                                                               
 
               THEREFORE, it is ordered:
 
 
 
               That defendants' motion for summary judgment should be and 
 
          is hereby sustained.  Claimant shall take nothing as a result of 
 
          this proceeding.
 
 
 
 
 
               Signed and filed this 29th day of December, 1989.
 
 
 
 
 
 
 
 
 
 
 
                                                DAVID E. LINQUIST
 
                                             INDUSTRIAL COMMISSIONER
 
 
 
          Copies To:
 
 
 
          Mr. William C. Paxton
 
          Attorney at Law
 
          P.O. Box 1035
 
          Independence, MO  64051
 
 
 
          Mr. Elliott R. McDonald, Jr.
 
          Attorney at Law
 
          P.O. Box 2746
 
          Davenport, Iowa  52809
 
 
 
          Mr. James E. Thorn
 
          Attorney at Law
 
          310 Kanesville Blvd.
 
          P.O. Box 398
 
          Council Bluffs, Iowa  51502
 
 
 
          Ms. Barbara J. Danforth
 
          Assistant Attorney General
 
          Tort Claims Division
 
          Hoover State Office Bldg.
 
          Des Moines, Iowa  50319
 
 
 
 
 
 
 
 
            
 
 
 
 
 
               
 
 
 
                                            2402
 
                                            Filed December 29, 1989
 
                                            David E. Linquist
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         ROBERT L. MORGAN,
 
         
 
              Claimant,
 
         
 
         vs.
 
                                                 File No. 865365
 
         ROBERT BARNES, d/b/a BARNES,
 
         CONSTRUCTION CO.,
 
                                                   A P P E A L
 
              Employer,
 
                                                 D E C I S I 0 N
 
         and
 
         
 
         GENERAL CASUALTY COMPANY,
 
 
 
              Insurance Carrier,
 
 
 
         and
 
 
 
         SECOND INJURY FUND OF IOWA,
 
 
 
              Defendants.
 
 
 
         
 
 
 
         2402
 
         
 
              Affirmed deputy's ruling sustaining a motion for summary 
 
         judgment for failure to file action within statute of limitations. 
 
         Claimant was a resident of Missouri, injured in Iowa while working 
 
         for a Missouri company.  Claimant was voluntarily paid benefits 
 
         under Missouri law.  Claimant filed an Iowa action for benefits 
 
         after two year statute of limitations passed.  Claimant argued 
 
         that payment under Missouri's law provided an extension under Iowa 
 
         Code section 86.13.  However, 86.13 refers to payments "under this 
 
         chapter," and it was held that payments under another state's 
 
         system would not toll the statute of limitations in Iowa.  
 
         Claimant sought to distinguish a similar holding in Sawyer v. 
 
         National Transp. Co., 448 N.W.2d 306 (Iowa 1989) by pointing out 
 
         that Sawyer involved an award of benefits, while this case 
 
         involved a voluntary payment only.  It was held that section 
 
         85.26(1) referred to benefits paid "under section 86.13," and 
 
         therefore out of state voluntary payments would not extend the 
 
         statute of limitations.
 
         
 
              Claimant's argument that he was "deceived" by employer's 
 
         voluntary Missouri payment held not to have merit.  Claimant 
 
         relied on employer's decision to pay under Missouri system and 
 
         failed to ascertain other legal options at his own peril.
 
 
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
            _____
 
                                          :
 
            VERNE LARRY JOHNSON,          :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 865376
 
            FISHER CONTROLS INTERNATIONAL :
 
            INC.,                         :
 
                                          :        A P P E A L
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            CIGNA,                        :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            _____
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 Defendants appeal from an arbitration decision awarding 
 
            temporary total disability benefits as the result of an 
 
            alleged injury on October 23, 1987.  The record on appeal 
 
            consists of the transcript of the arbitration proceeding and 
 
            joint exhibits 1 through 27.  Both parties filed briefs on 
 
            appeal.
 
            
 
                                      ISSUES
 
            
 
                 Defendants state the following issues on appeal:
 
            
 
                 1.  Whether or not claimant received a personal 
 
                 injury arising out of and in the course of his 
 
                 employment with Fisher Controls on or about 
 
                 October 23, 1985, including whether or not there 
 
                 is a causal relationship between an incident 
 
                 occurring on said date and claimed disability; and
 
            
 
                 2.  Whether or not claimant is entitled to 
 
                 temporary disability benefits for time 
 
                 incapacitated as a result of a personal injury 
 
                 arising out of and in the course of his 
 
                 employment, if any.
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 The findings of fact contained in the proposed agency 
 
            decision filed September 19, 1989 are adopted as final 
 
            agency action.
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                 Claimant bears the burden to show by a preponderance of 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            the evidence that the condition that resulted in his 
 
            temporary inability to work is causally connected to his 
 
            work injury.  The medical evidence consists largely of the 
 
            testimony of Carl O. Lester, M.D., and John Grant, M.D.  Dr. 
 
            Lester testified that claimant's ulnar nerve dislocation was 
 
            not temporarily aggravated by his work activity, although 
 
            claimant states that Dr. Lester originally told him that it 
 
            was.  Nevertheless, Dr. Lester's testimony at the time of 
 
            the hearing was clearly that there was no causal connection.
 
            
 
                 Dr. Grant more than once referred to a causal 
 
            connection between claimant's condition and his work 
 
            activity as "possible."  A possibility is insufficient; a 
 
            probability is necessary.  Burt v. John Deere Waterloo 
 
            Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955).  When 
 
            pressed by claimant's attorney, Dr. Grant did describe the 
 
            causal connection as "probable," but then immediately stated 
 
            that he used the terms "possible" and "probable" 
 
            interchangeably.
 
            
 
                 Dr. Lester is claimant's treating physician, and has 
 
            more contact with claimant and his condition.  Dr. Grant was 
 
            an examining physician.  Claimant bears the burden of proof.  
 
            Dr. Grant's testimony, if read as merely opining that a 
 
            causal connection is "possible," reinforces Dr. Lester's 
 
            opinion as to a lack of causal connection.  Even if Dr. 
 
            Grant's testimony is read as stating that a causal 
 
            connection is "probable," the opinion of Dr. Lester is given 
 
            the greater weight in light of his greater familiarity with 
 
            claimant's condition.  Claimant has failed to carry his 
 
            burden of proving a causal connection between his ulnar 
 
            nerve dislocation and his work injury.  
 
            
 
                 WHEREFORE, the decision of the deputy is reversed.
 
            
 
                                      order
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 That claimant shall take nothing from these 
 
            proceedings.
 
            
 
     
 
            
 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            That claimant shall pay the costs of the appeal including 
 
            the transcription of the hearing.  Defendants shall pay all 
 
            other costs.
 
            
 
                 Signed and filed this ____ day of February, 1992.
 
            
 
            
 
            
 
            
 
                                          
 
            ________________________________
 
                                                   BYRON K. ORTON
 
                                              INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Gail E. Boliver
 
            Attorney at Law
 
            8 East Southridge Rd
 
            Marshalltown, Iowa 50158
 
            
 
            Mr. E. J. Giovannetti
 
            Attorney at Law
 
            2700 Grand Ave., Ste 111
 
            Des Moines, Iowa 50312
 
            
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
            1108.50
 
            Filed February 28, 1992
 
            Byron K. Orton
 
            LPW
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
            _____
 
                                          :
 
            VERNE LARRY JOHNSON,          :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 865376
 
            FISHER CONTROLS INTERNATIONAL :
 
            INC.,                         :
 
                                          :        A P P E A L
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            CIGNA,                        :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            _____
 
            
 
            1108.50
 
            Where treating physician stated there was no causal 
 
            connection, and where examining physician stated that causal 
 
            connection was only "possible," claimant failed to carry 
 
            burden of proof on causation.  Claimant's attorney did get 
 
            examining physician to say that causal connection was 
 
            "probable," but the physician then said he used the two 
 
            terms interchangeably.  Even if this testimony is read as 
 
            "probable," greater weight was given to treating physician 
 
            due to greater contact with claimant. 
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         VERNE LARRY JOHNSON,
 
         
 
              Claimant,
 
                                                    File No. 865376
 
         vs.
 
                                                 A R B I T R A T I 0 N 
 
         FISHER CONTROLS INTERNATIONAL,
 
         INC.,                                       D E C I S I 0 N
 
         
 
              Employer,
 
                                                        F I L E D
 
         and
 
                                                       Sep 19 1989
 
         CIGNA,
 
                                              IOWA INDUSTRIAL COMMISSIONER
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              This is a proceeding in arbitration brought by Verne Larry 
 
         Johnson, claimant, against Fisher Controls International, Inc., 
 
         employer, and Cigna Insurance Company, insurance carrier, 
 
         defendants, for workers' compensation benefits as a result of an 
 
         alleged injury on October 23, 1987.  On March 9, 1989, a hearing 
 
         was held on claimant's petition and the matter was considered 
 
         fully submitted at the close of this hearing.
 
         
 
              The parties have submitted a prehearing report of contested 
 
         issues and stipulations which was approved and accepted as a part 
 
         of the record of this case at the time of hearing.  Oral 
 
         testimony and written evidence was received during the hearing.
 
         
 
              According to the prehearing report, the parties have 
 
         stipulated to the following matters:
 
         
 
              1.  An employee-employer relationship existed between 
 
         claimant and Fisher Controls at the time of the alleged injury;
 
         
 
              2.  The alleged injury was not a cause of permanent 
 
         disability;
 
         
 
              3.  Claimant is only seeking temporary total disability 
 
         benefits from December 14, 1987 through February 19, 1988; and,
 
         
 
              4.  Claimant's rate of weekly compensation in the event of 
 
         an award of weekly benefits from this proceeding shall be 
 
         $362.66.
 
         
 
                                     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 employment;
 
         
 
               II.  Whether there is a causal relationship between the 
 
         work injury and the claimed disability; and,
 
         
 
              III.  The extent of claimant's entitlement to weekly 
 
         benefits for disability.
 
         
 
                              STATEMENT OF FACTS
 
         
 
              The following is a brief statement highlighting some of the 
 
         more pertinent evidence presented.  Whether or not specifically 
 
         referred to in this statement, all of the evidence received at 
 
         the hearing was independently reviewed and considered in arriving 
 
         at this decision.  Any conclusions about the evidence received 
 
         contained in the following statement should be viewed as 
 
         preliminary findings of fact.
 
         
 
              Claimant is 39 years of age and a high school graduate. 
 
         Claimant testified that he has worked for Fisher Controls since 
 
         1975, primarily as a welder.  Claimant testified that although 
 
         the job varies from day-to-day, he was required to lift and 
 
         handle heavy objects using both of his hands and arms on a 
 
         regular basis.
 
         
 
              Claimant testified that on October 23, 1987, he was working 
 
         away from his normal welding booth and while pushing a 200 pound 
 
         "flat" he felt a sharp pain in both of his arms extending from his 
 
         wrists to his shoulders.  He said that the pain subsided after a 
 
         few minutes but that evening while attempting to sleep his arms 
 
         went numb.  Claimant sought and received medical treatment from 
 
         Carl 0. Lester, M.D., a board certified orthopedic surgeon.  Dr. 
 
         Lester had treated claimant previously for pain and numbness in 
 
         the wrist, fingers and hands which Dr. Lester attributed to mild 
 
         carpal tunnel syndrome.  Dr. Lester, however, diagnosed that 
 
         claimant was suffering from an additional problem called a 
 
         dislocated ulnar nerve in both of his elbows.  In December 1987 
 
         and again in January 1988, claimant underwent surgery by Dr. 
 
         Lester to transfer the nerves in both of his elbows back to their 
 
         correct positions.  Claimant returned to work in December 1988.  
 
         In May 1988, claimant reported to Dr. Lester that virtually all of 
 
         his arm and hand pain had subsided.  According to his office 
 
         notes, this surprised Dr. Lester as he did not connect claimant's 
 
         hand and neck problems to the ulnar nerve dislocation.
 
         
 
              Upon inquiry of the doctor by claimant and defense attorneys, 
 
         Dr. Lester.opined that none of his treatment of claimant's ulnar 
 
         nerve problems were causally connected to any of claimant's work 
 
         at Fisher Controls or to the pushing incident in October 1987.  
 
         Dr. Lester states that claimant's problems were solely a 
 
                                                
 
                                                         
 
         congenital defect in the tissue surrounding the ulnar nerves in 
 
         the elbows allowing the nerve to move about.  He attributed 
 
         claimant's recovery after the surgery from his hand and arm pain 
 
         as being off work during recovery from the ulnar nerve surgery.
 
         
 
              Claimant was examined in July 1988 by John Grant, M.D., 
 
         another board certified orthopedic surgeon.  Although Dr. Grant 
 
         agreed with the diagnosis and treatment of claimant's elbow 
 
         problems by Dr. Lester, Dr. Grant opined in his deposition 
 
         testimony that claimant's work probably aggravated the condition 
 
         necessitating the surgeries.  He based his opinion upon history 
 
         given to him by claimant that claimant had few problems before 
 
         the October 1987 incident.  Claimant testified that although he 
 
         had occasional numbness and pain prior to the pushing incident, 
 
         it was only after that event,that the pain and numbness became 
 
         continuous.
 
         
 
              All the physicians opined that claimant has obtained a good 
 
         result from the surgeries and in all likelihood he will not 
 
         experience future problems.  Claimant testified that his pain and 
 
         numbness in his hands and arms and fingers and elbows and upper 
 
         arms have subsided even after his return to full duty in February 
 
         of 1988.
 
         
 
              Claimant's appearance and demeanor at hearing indicated that 
 
         he was testifying truthfully.
 
         
 
                       APPLICABLE LAW AND ANALYSIS
 
         
 
                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 should be first noted that a credibility finding was 
 
         necessary due to the differences between claimant's testimony and 
 
         the medical records of Dr. Lester.
 
         
 
              There is little question that claimant suffered some sort of 
 
         injury in October 1987 to his arms.  Claimant was found credible 
 
         from his appearance and demeanor and he testified as to the onset 
 
         of pain in both arms in October 1987.  The records of Dr. Lester 
 
         do not show a complaint of arm pain at that time.  Dr. Lester 
 
         testified that it was possible that he did not record all of 
 
         claimant's complaints at that time.  Claimant testified that he 
 
         did report such arm pain to not only Dr. Lester but to company 
 
                                                
 
                                                         
 
         officials.  The fighting issue, however, is not the injury but 
 
         the causal connection of this incident to the ulnar nerve 
 
         dislocation which precipitated temporary disability.
 
         
 
               II.  The claimant has the burden of proving by a 
 
         preponderance of the evidence that the work injury is a cause of 
 
         the claimed disability.  A disability may be either temporary or 
 
         permanent.  In the case of a claim for temporary disability, the 
 
         claimant must establish that the work injury was a cause of 
 
         absence from work and lost earnings during a period of recovery 
 
         from the injury.  Generally, a claim of permanent disability 
 
         invokes an initial determination of whether the work injury was a 
 
         cause of permanent physical impairment or permanent limitation in 
 
         work activity.  However, in some instances, such as a job 
 
         transfer caused by a work injury, permanent disability benefits 
 
         can be awarded without a showing of a causal connection to a 
 
         physical change of condition.  Blacksmith v. All-American, Inc., 
 
         290 N.W.2d 348, 354 (Iowa 1980); McSpadden v. Big Ben Coal Co., 
 
         288 N.W.2d 181 (Iowa 1980).
 
         
 
              The question of causal connection is essentially within the 
 
         domain of expert medical opinion.  Bradshaw v. Iowa Methodist 
 
         Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960).  The opinion of 
 
         experts need not be couched in definite, positive or unequivocal 
 
         language and the expert opinion may be accepted or rejected, in 
 
 
 
                       
 
                                                         
 
         whole or in part, by the trier of fact.  Sondag v. Ferris 
 
         Hardware, 220 N.W.2d 903 (Iowa 1974).  The weight to be given to 
 
         such an opinion is for the finder of fact, and that may be 
 
         affected by the completeness of the premise given the expert and 
 
         other surrounding circumstances.  Bodish v. Fischer, Inc., 257 
 
         Iowa 516, 133 N.W.2d 867 (1965).
 
         
 
              Furthermore, if the available expert testimony is 
 
         insufficient along to support a finding of causal connection, 
 
         such testimony may be coupled with nonexpert testimony to show 
 
         causation and be sufficient to sustain an award.  Giere v. Asse 
 
         Haugen Homes, Inc., 259 Iowa 1065, 146 N.W.2d 911, 915 (1966). 
 
         Such evidence does not, however, compel an award as a matter of 
 
         law.  Anderson v. Oscar Mayer & Co., 217 N.W.2d 531, 536 (Iowa 
 
         1974).  To establish compensability, the injury need only be a 
 
         significant factor, not be the only factor causing the claimed 
 
         disability. Blacksmith, 290 N.W.2d 348, 354.  In the case of a 
 
         preexisting condition, an employee is not entitled to recover for 
 
         the results of a preexisting injury or disease but can recover 
 
         for an aggravation thereof which resulted in the disability found 
 
         to exist.  Olson v. Goodyear Service Stores, 255 Iowa 1112, 125 
 
         N.W.2d 251 (1963).
 
         
 
              In the case sub judice, there is a clear difference of 
 
         opinion between two board certified orthopedic surgeons as to 
 
         whether claimant's work aggravated the ulnar nerve dislocation 
 
         necessitating the surgery and disability.  Normally, when faced 
 
         with two physicians of equal qualifications, the undersigned 
 
         gives greater weight to the treating physician as that physician 
 
         is more familiar with claimant's problems on a clinical basis.  
 
         However, in this case, the views of Dr. Grant are more convincing 
 
         because his views are the most consistent with claimant's 
 
         credible testimony as to the course of his pain.  Claimant stated 
 
         that it was not.until the October 1987 incident that his pain 
 
         became continuous.,requiring him to seek treatment from Dr. 
 
         Lester. Claimant also stated that almost all of his pain improved 
 
         after the surgeries, to the surprise of Dr. Lester.  Dr. Lester 
 
         felt that this improvement was due to being off work following 
 
         the surgery, not due to the surgery.  However, this does not 
 
         explain why claimant remained improved following his return to 
 
         full duty in February of 1988.  Therefore, Dr. Lester is not 
 
         convincing and it will be found that claimant's work and the 
 
         incident of October 1987 was at least one significant factor 
 
         precipitating the surgeries and temporary disability.
 
         
 
              III.  When disability exceeds two weeks in length, claimant 
 
         is entitled under Iowa Code section 85.33(1) to temporary total 
 
         disability from the first day of disability until claimant 
 
         returns to work or until claimant is medically capable of 
 
         returning to substantially similar work to the work he was 
 
         performing at the time of the injury, whichever occurs first.  
 
         Claimant testified that he returned to work after February 19, 
 
         1988.
 
         
 
                              FINDINGS OF FACT
 
                                                
 
                                                         
 
         
 
              1.  Claimant was a credible witness.
 
         
 
              2.  On October 23,  1987, claimant suffered an injury to 
 
         both elbows which arose out of and in the course of his 
 
         employment with Fisher Controls.  This injury consisted of an 
 
         aggravation of a congenital defect in claimant's elbows resulting 
 
         in dislocations of ulnar nerves.
 
         
 
              3.  The work injury of October 23, 1987, was a cause of a 
 
         period of total disability from work beginning on December 14, 
 
         1987 through February 19, 1988.  During this period of time, 
 
         claimant was totally disabled from work as a result of treatment 
 
         for his elbow conditions consisting of bilateral surgeries. 
 
         Claimant returned to work after February 19, 1988.
 
         
 
                             CONCLUSIONS OF LAW
 
         
 
              Claimant has established under law entitlement to 9 5/7 
 
         weeks of temporary total disability.
 
         
 
                                  ORDER
 
         
 
              1.  Defendants shall pay to claimant temporary total 
 
         disability benefits from December 14, 1987 through February 19, 
 
         1988, at the rate of three hundred sixty-two and 66/100 dollars 
 
         ($362.66) per week.
 
         
 
              2.  Defendants shall pay accrued weekly benefits in a lump 
 
         sum.
 
         
 
              3.  Defendants shall receive credit for previous payments of 
 
         benefits under a non-occupational group insurance plan as 
 
         stipulated and set forth in the prehearing report.
 
         
 
              4.  Defendants shall pay interest on weekly benefits awarded 
 
         herein as set forth in Iowa Code section 85.30.
 
         
 
              5.  Defendants shall pay the cost of this action pursuant to 
 
         Division of Industrial Services Rule 343-4.33.
 
         
 
              6.  Defendants shall file activity reports on the payment of 
 
         this award as requested by this agency pursuant to Division of 
 
         Industrial Services Rule 343-3.1.
 
         
 
         
 
              Signed and filed this 19th day of September, 1989.
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
                                       LARRY P. WALSHIRE
 
                                                
 
                                                         
 
                                       DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Ms. Gail E. Boliver
 
         Attorney at Law
 
         8 E. Southridge Rd.
 
         Marshalltown, Iowa  50158
 
         
 
         Mr. E. J. Giovannetti
 
         Attorney at Law
 
         Suite 111, Terrace Center
 
         2700 Grand Ave.
 
         Des Moines, Iowa  50312
 
 
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                            5-1108
 
                                            Filed September 19, 1989
 
                                            LARRY P. WALSHIRE
 
         
 
                   BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         VERNE LARRY JOHNSON,
 
         
 
              Claimant,
 
                                                   File No. 865376
 
         vs.
 
                                                 A R B I T R A T I 0 N
 
         FISHER CONTROLS INTERNATIONAL,
 
         INC.,                                      D E C I S I 0 N
 
         
 
              Employer,
 
         
 
         and
 
         
 
         CIGNA,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         5-1108 - Medical causation issue - nonprecedential
 
         
 
         
 
         
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
            DAVID L. DEVETTER,  
 
                      
 
                 Claimant, 
 
                      
 
            vs.       
 
                                                 File No. 865385
 
            CAMANCHE COMMUNITY SCHOOL,    
 
                                                  A P P E A L
 
                 Employer, 
 
                                               D E C I S I O N
 
            and       
 
                      
 
            EMPLOYERS MUTUAL COMPANIES,   
 
                      
 
                 Insurance Carrier,  
 
                 Defendants.    
 
            ____________________________________________________________
 
            The record, including the transcript of the hearing before 
 
            the deputy and all exhibits admitted into the record, has 
 
            been reviewed de novo on appeal.  The decision of the deputy 
 
            filed June 20, 1991 is affirmed and is adopted as the final 
 
            agency action in this case.
 
            Claimant shall pay the costs of the appeal, including the 
 
            preparation of the hearing transcript.
 
            Signed and filed this ____ day of July, 1992.
 
            
 
            
 
            
 
            
 
                                    ________________________________
 
                                            BYRON K. ORTON
 
                                      INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. David L. DeVetter
 
            437 6th St.
 
            Tracy, MN  56175
 
            REGULAR & CERTIFIED MAIL
 
            
 
            Mr. E. J. Giovannetti
 
            Attorney at Law
 
            2700 Grand Ave., Ste 111
 
            Des Moines, Iowa 50312
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                    9998
 
                                                    Filed July 10, 1992
 
                                                    Byron K. Orton
 
            
 
                      BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
            DAVID L. DEVETTER,  
 
                      
 
                 Claimant, 
 
                      
 
            vs.       
 
                                                 File No. 865385
 
            CAMANCHE COMMUNITY SCHOOL,    
 
                                                  A P P E A L
 
                 Employer, 
 
                                               D E C I S I O N
 
            and       
 
                      
 
            EMPLOYERS MUTUAL COMPANIES,   
 
                      
 
                 Insurance Carrier,  
 
                 Defendants.    
 
            ____________________________________________________________
 
            
 
            9998
 
            
 
                 Summary affirmance of deputy's decision filed June 20, 
 
            1991.
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                           5-1108.2; 2402
 
                           Filed June 20, 1991
 
                           LARRY P. WALSHIRE
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            DAVID L. DEVETTER,            :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 865385
 
            CAMANCHE COMMUNITY SCHOOL,    :
 
                                          :    A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            EMPLOYERS MUTUAL COMPANIES,   :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
            5-1108.2
 
            Claim of psychological injury denied due to lack of medical 
 
            expert opinion to back up claimant's lay testimony.
 
            
 
            
 
            2402
 
            Citing supreme court precedent, mental disability does not 
 
            toll the operation of the statute of limitation provisions 
 
            of Iowa Code section 85.26.  That case stated that absent a 
 
            specific exception in the statute, nothing tolls a statute 
 
            of limitation.
 
            
 
 
            
 
            
 
            
 
            
 
            
 
            
 
   
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER  
 
          ____________________________________________________________
 
                                          :
 
            DAN SEPICH,                   :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :         File No. 865492
 
                                          :
 
            ANDERSON ERICKSON DAIRY,      :      A R B I T R A T I O N
 
                                          :
 
                 Employer,                :         D E C I S I O N
 
                                          :
 
            and                           :
 
                                          :
 
            EMPLOYERS MUTUAL COMPANIES,   :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This is a proceeding in arbitration brought by Dan 
 
            Sepich against his former employer, Anderson Erickson Dairy, 
 
            based upon an alleged injury of January 19, 1988.  Claimant 
 
            seeks additional healing period and permanent partial 
 
            disability compensation.  Also in dispute is the rate of 
 
            compensation.
 
            
 
                 The case was heard and fully submitted at Des Moines, 
 
            Iowa, on January 21, 1992.  The record consists of jointly 
 
            offered exhibits A through S and testimony from Dan Sepich, 
 
            Tom Davidson and Jeff Johnson.
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 Having considered all the evidence received, together 
 
            with the appearance and demeanor of the witnesses, the 
 
            following findings of fact are made.
 
            
 
                 Dan Sepich is a 28-year-old married man who obtained a 
 
            GED after dropping out of high school in the twelfth grade.  
 
            He has no further formal education or training.  His work 
 
            history consists of his present job of delivering flowers, 
 
            cleaning buildings, janitorial work, installing siding on 
 
            homes, servicing heating and air conditioning units and his 
 
            work with Anderson Erickson Dairy where he delivered milk to 
 
            customers.  With Anderson Erickson Dairy, he earned $6.00 
 
            per hour and worked as needed.  He did not hold a second job 
 
            while working for Anderson Erickson Dairy and earned enough 
 
            money to support himself at a level which he found 
 
            acceptable.
 
            
 
                 Sepich was injured on January 19, 1988, when he slipped 
 
            on ice and twisted his back while making a delivery at the 
 
            Hyperion Club near Des Moines, Iowa.  It is possible that 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
            
 
            some earlier events had precipitated or predisposed him to 
 
            this back injury.  Sepich thereafter entered into a course 
 
            of treatment.  Orthopaedic surgeons Martin S. Rosenfeld, 
 
            D.O., and William R. Boulden, M.D., both recommended surgery 
 
            after an MRI showed a herniated disc, but Sepich has 
 
            consistently declined to undergo surgery.  Dr. Boulden's 
 
            recommendation for surgery was made on June 16, 1988, while 
 
            the recommendation from Dr. Rosenfeld was made on October 
 
            31, 1988.  It was on September 16, 1988, that an impairment 
 
            rating of 10 percent of the body as a whole was made under 
 
            the direction of Dr. Boulden (joint exhibit E).  A 20 
 
            percent impairment rating was made by Dr. Rosenfeld on 
 
            January 2, 1989 (joint exhibit D).  Claimant has been 
 
            subsequently seen by neurosurgeon Robert A. Hayne, M.D., who 
 
            diagnosed him as having a low back strain and characterized 
 
            his neurological exam as being normal.  Dr. Hayne 
 
            recommended that claimant wear a low back support and limit 
 
            his lifting to 40-50 pounds (joint exhibit H).  It is noted 
 
            that Drs. Rosenfeld and Boulden both found abnormalities in 
 
            claimant's neurological examination.
 
            
 
                 Claimant was hospitalized on April 17, 1989.  The 
 
            history and records regarding this are quite limited and the 
 
            only indication which ties that hospitalization to the 
 
            claimant's back is found in the history and physical where 
 
            it indicates that he injured his back approximately a week 
 
            ago and it is that event to which he attributes his 
 
            emotional problem.  The history also notes back pain 
 
            continuing since slipping on ice approximately one and 
 
            one-half years ago.  He was diagnosed as having psychotic 
 
            depression (joint exhibit F).
 
            
 
                 Claimant received further emotional treatment from Sam 
 
            L. Graham, Ph.D., commencing in January of 1990 with 
 
            follow-up by psychiatrist Richard D. Turner, M.D., 
 
            commencing in March of 1990.  When initially seen by Graham, 
 
            a diagnosis of major depressive disorder was made.  The 
 
            treatment which was recommended was pain management.  
 
            Claimant underwent a pain management program and, by 
 
            February 27, 1990, it was reported that he had reached a 
 
            plateau in his treatment (joint exhibit I).  Dr. Turner 
 
            reported that claimant was not exhibiting further depressive 
 
            symptoms (joint exhibit J).
 
            
 
                 Based upon the foregoing, it is found that, when 
 
            claimant was hospitalized commencing April 17, 1989, back 
 
            problems which resulted from the January 1988 injury were 
 
            the underlying cause.  While some seemingly insignificant 
 
            movement or motion may have somehow exacerbated his 
 
            symptoms, the primary underlying cause of those symptoms was 
 
            the original injury.
 
            
 
                 It is further found that claimant's depression was 
 
            likewise caused by the back injury.  Chronic pain is known 
 
            to be a common cause of depression.  The fact that pain 
 
            management treatment was applied successfully to treat the 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            
 
            
 
            claimant's depression is very strong evidence that the 
 
            claimant's chronic pain had produced the depression.
 
            
 
                 Claimant had obtained the services of vocational 
 
            consultant Jeff Johnson and others in attempting to find 
 
            work.  He was eventually successful in finding work on his 
 
            own with his current employer, Park Florist.  Despite his 
 
            well-documented herniated disc, physical limitations and 
 
            symptoms which typically accompany such a condition, he is 
 
            employed working nearly as many hours as he worked for 
 
            Anderson Erickson Dairy and earning nearly as much as he 
 
            would be earning per hour if he were still employed in his 
 
            original capacity with Anderson Erickson Dairy.  Anderson 
 
            Erickson Dairy was an employment setting which provided an 
 
            opportunity for advancement to what was characterized as a 
 
            full-time position with fringe benefits and higher pay.  
 
            That opportunity does not appear to be as readily available 
 
            with his present employer.
 
            
 
                 Claimant had commenced his employment with Anderson 
 
            Erickson in September of 1987 and he was injured in January 
 
            of 1988.  There is testimony in the record that he was 
 
            carried as a part-time employee, though the record also 
 
            shows that during the 13 weeks preceding the week in which 
 
            the injury occurred, he worked an average of 37 1/2 hours 
 
            per week and earned an average of $225.46 per week (joint 
 
            exhibit Q).  While those earnings are less than the earnings 
 
            of a full-time route person with Anderson Erickson, they are 
 
            not necessarily irreconcilable with the wages of full-time 
 
            route delivery persons or truck drivers with other employers 
 
            or with the earnings of other full-time individuals in the 
 
            dairy product industry.  It is found that the claimant's 
 
            earnings with Anderson Erickson Dairy were not less than the 
 
            usual weekly earnings of a regular full-time adult laborer 
 
            in the line of industry in which the claimant was employed 
 
            in the central Iowa locality.  The record indicates that 
 
            claimant worked as work was available and that his hours of 
 
            work varied considerably from week to week.  There is no 
 
            indication that the low number of hours worked during the 
 
            week ending October 31, 1987, was in any way atypical, 
 
            particularly in view of approximately the same gross 
 
            earnings for the week ending September 5, 1987, and the 
 
            quite large offsetting gross earnings for the week ending 
 
            October 24, 1987.  It is therefore found that the earnings 
 
            for the weeks ending October 24, 1987, through January 16, 
 
            1988, accurately represent the claimant's customary earnings 
 
            with Anderson Erickson Dairy.  Claimant's gross earnings 
 
            during that 13-week period are $2,931.00.  The average 
 
            weekly earnings are $225.46.
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                 The workers' compensation system is a structured 
 
            personal injury system which has eliminated the requirement 
 
            for the showing of negligence on the part of the employer 
 
            and the defense of contributory negligence or assumption of 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            
 
            
 
            risk on the part of the employee.  It also provides a 
 
            structured form of damages which are similar, though not 
 
            identical, to the damages recoverable under the tort laws.  
 
            Iowa Code section 85.36 provides wage replacement through 
 
            what is commonly referred to as the rate of compensation.  
 
            There are 12 numbered subparagraphs under that section.  The 
 
            order in which they appear is not any indicator of which 
 
            section is to be first applied.  The directive for 
 
            determining which of those numbered subsections is to be 
 
            applied is found in the initial unnumbered paragraph of Code 
 
            section 85.36.  It provides that "[t]he basis of 
 
            compensation shall be the weekly earnings of the injured 
 
            employee at the time of the injury" and that the "[w]eekly 
 
            earnings means the gross . . . earnings . . . to which such 
 
            employee would have been entitled had the employee worked 
 
            the customary hours for the full pay period in which the 
 
            employee was injured, . . ."  In this case, as in many, more 
 
            than one of the numbered subparagraphs could be applied.  
 
            The one which should be applied is the one which most 
 
            accurately arrives at the customary earnings.  In this case, 
 
            the claimant worked and was paid by the hour, and therefore 
 
            subsection 6 could be applied.  It is also urged that 
 
            subsection 10 be applied since his employer considered him 
 
            to be "part-time" and he earned less than what was typically 
 
            earned by persons who performed a similar function but were 
 
            considered to be full-time by the employer.  It is noted 
 
            that Code section 85.36(10) does not make reference to 
 
            full-time employees with the same employer or necessarily 
 
            performing precisely the same occupation and job duties.  It 
 
            makes reference to the usual weekly earnings of the regular, 
 
            full-time adult laborer in the line of industry in which the 
 
            employee is injured.  The term "industry" is much broader 
 
            than a particular position with a single employer.  A basic 
 
            rule of compensation is to compensate the injured person for 
 
            the loss that was actually sustained, no more and no less.  
 
            The workers' compensation law has been consistently held to 
 
            be a collection of statutes which are to be construed 
 
            liberally to benefit the injured employee and that its 
 
            beneficent intent should not be defeated by reading 
 
            something into the statute which is not there or by a narrow 
 
            and strained construction.  Caterpillar Tractor Co. v. 
 
            Shook, 313 N.W.2d 503, 506 (Iowa 1981); Cedar Rapids 
 
            Community Sch. v. Cady, 278 N.W.2d 298, 299 (Iowa 1979); 
 
            Disbrow v. Deering Imp. Co., 233 Iowa 380, 392, 9 N.W.2d 
 
            378, 384 (1943).  It is therefore clear that when more than 
 
            one possible subsection can be applied, the one which should 
 
            be used is the one which most closely provides weekly 
 
            earnings which most closely reflect the actual loss of 
 
            earnings experienced by the employee.  It is therefore 
 
            concluded that, in this case, the rate of compensation 
 
            should be based upon section 85.36(6).  A full 40-hour work 
 
            week is not necessary to constitute full-time work.  Since 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            
 
            
 
            claimant was single and had only himself as an exemption at 
 
            the time of injury, his rate, based upon weekly earnings of 
 
            $225.46 is therefore $141.87 weekly.
 
            
 
                 It was previously found that the claimant's 
 
            hospitalization from April 17, 1989, to April 26, 1989, was 
 
            proximately caused by the original back injury.  He is 
 
            therefore entitled to recover healing period compensation 
 
            for that period.  It was also previously found that the 
 
            claimant's emotional disorder in early 1990 resulted from 
 
            the original back injury.  He is likewise entitled to 
 
            recover healing period compensation from January 11, 1990, 
 
            through February 26, 1990.
 
            
 
                 Claimant also seeks compensation for permanent partial 
 
            disability.
 
            
 
                 Since 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 
 
            Ry. Co., 219 Iowa 587, 258 N.W.2d 899 (1935) as follows: "It 
 
            is therefore plain that the legislature intended the term 
 
            'disability' to mean 'industrial disability' or loss of 
 
            earning capacity and not a mere 'functional disability' to 
 
            be computed in the terms of percentages of the total 
 
            physical and mental ability of a normal man."
 
            
 
                 Functional impairment is an element to be considered in 
 
            determining industrial disability which is the reduction of 
 
            earning capacity, but consideration must also be given to 
 
            the injured employee's age, education, qualifications, 
 
            experience, motivation, loss of earnings, severity and situs 
 
            of the injury, work restrictions, inability to engage in 
 
            employment for which the employee is fitted and the 
 
            employer's offer of work or failure to so offer.  Olson v. 
 
            Goodyear Serv. Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963); 
 
            McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980); 
 
            Barton v. Nevada Poultry Co., 253 Iowa 285, 110 N.W.2d 660 
 
            (1961).
 
            
 
                 Compensation for permanent partial disability shall 
 
            begin at the termination of the healing period.  
 
            Compensation shall be paid in relation to 500 weeks as the 
 
            disability bears to the body as a whole.  Section 85.34.
 
            
 
                 Industrial disability or loss of earning capacity is a 
 
            concept that is quite similar to impairment of earning 
 
            capacity, an element of damage in a tort case.  Impairment 
 
            of physical capacity creates an inference of lessened 
 
            earning capacity.  The basic element to be determined, 
 
            however, is the reduction in value of the general earning 
 
            capacity of the person, rather than the loss of wages or 
 
            earnings in a specific occupation.  Post-injury earnings 
 
            create a presumption of earning capacity.  The earnings are 
 
            not synonymous with earning capacity and the presumption may 
 
            be rebutted by evidence showing the earnings to be an 
 
            unreliable indicator.  Bearce v. FMC Corp., 465 N.W.2d 531 
 
            (Iowa 1991); DeWall v. Prentice, 224 N.W.2d 428, 435 (Iowa 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            
 
            
 
            1974); Carradus v. Lange, 203 N.W.2d 565 (Iowa 1973); 
 
            Holmquist v. Volkswagon of America, Inc., 261 N.W.2d 516 
 
            (Iowa App. 1977) A.L.R.3d 143; Michael v. Harrison County, 
 
            Thirty-fourth Biennial Report of the Industrial Commissioner 
 
            218 (1979); 2 Larson Workmen's Compensation Law, sections 
 
            57.21 and 57.31.
 
            
 
                 When all the material factors of industrial disability 
 
            are considered, together with the claimant's change in 
 
            actual earnings and his limited access to types of 
 
            employment which he was capable of performing prior to the 
 
            injury in this case, it is determined that he has 
 
            experienced a 25 percent industrial disability or loss of 
 
            earning capacity.
 
            
 
                                      ORDER
 
            
 
                 IT IS THEREFORE ORDERED that defendants pay Dan Sepich 
 
            forty-two and five-sevenths (42 5/7) weeks of compensation 
 
            for healing period at the rate of one hundred forty-one and 
 
            87/100 dollars ($141.87) per week with thirty-four and 
 
            three-sevenths (34 3/7) weeks thereof payable commencing 
 
            January 19, 1988, with one and three-sevenths (1 3/7) weeks 
 
            thereof payable commencing April 17, 1989, and with six and 
 
            six-sevenths (6 6/7) weeks thereof payable commencing 
 
            January 11, 1990.
 
            
 
                 IT IS FURTHER ORDERED that defendants pay Dan Sepich 
 
            one hundred twenty-five (125) weeks of compensation for 
 
            permanent partial disability payable at the rate of one 
 
            hundred forty-one and 87/100 dollars ($141.87) per week 
 
            commencing September 17, 1988.
 
            
 
                 IT IS FURTHER ORDERED that the permanent partial 
 
            disability compensation be interrupted for the healing 
 
            periods of one and three-sevenths (1 3/7) weeks payable 
 
            commencing April 17, 1989, and six and six-sevenths (6 6/7) 
 
            weeks payable commencing January 11, 1990, and that the 
 
            permanent partial disability then be reinstituted at the end 
 
            of each of the intervening periods of healing period 
 
            compensation entitlement.
 
            
 
                 IT IS FURTHER ORDERED that defendants pay interest 
 
            pursuant to Code section 85.30 on all past due unpaid 
 
            amounts after defendants receive credit for the overpayment 
 
            resulting from having paid one hundred thirty-nine point 
 
            five seven one (139.571) weeks of compensation at the 
 
            incorrect rate of one hundred fifty and 50/100 dollars 
 
            ($150.50) per week ($21,005.44).
 
            
 
                 IT IS FURTHER ORDERED that the costs of this action are 
 
            assessed against defendants pursuant to rule 343 IAC 4.33.
 
            
 
                 IT IS FURTHER ORDERED that defendants file claim 
 
            activity reports as requested by this agency pursuant to 
 
            rule 343 IAC 3.1.
 
            
 
                 Signed and filed this ______ day of ____________, 1992.
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
                 
 
            
 
                 
 
                 
 
                                          ______________________________
 
                                          MICHAEL G. TRIER
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Tom Drew
 
            Attorney at Law
 
            West Towers Office Complex
 
            1200 35th Street, Suite 500
 
            W. Des Moines, Iowa  50265
 
            
 
            Mr. David L. Jenkins
 
            Attorney at Law
 
            801 Grand Avenue, Suite 3700
 
            Des Moines, Iowa  50309-2727
 
            
 
 
            
 
 
 
 
 
 
 
 
 
                                                   3001; 3002
 
                                                   Filed July 13, 1992
 
                                                   MICHAEL G. TRIER
 
 
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                      
 
            DAN SEPICH,    
 
                      
 
                 Claimant, 
 
                      
 
            vs.                                File No. 865492
 
                         
 
            ANDERSON ERICKSON DAIRY,       A R B I T R A T I O N
 
                      
 
                 Employer,                    D E C I S I O N
 
                      
 
            and       
 
                      
 
            EMPLOYERS MUTUAL COMPANIES,   
 
                      
 
                 Insurance Carrier,  
 
                 Defendants.    
 
            ____________________________________________________________
 
            
 
            3001; 3002
 
            Employee, who had been employed approximately four months 
 
            prior to injury and classified as part-time, was held to be 
 
            entitled to have the compensation based upon section 
 
            85.36(6).  He was paid by the hour, earned $6.00 per hour 
 
            and worked an average of 37 1/2 hours per week.  It was 
 
            found that earnings at that level were consistent with the 
 
            earnings for a regular adult laborer in his line of 
 
            industry, even though they were less than the earnings of 
 
            those people who performed a similar function with the same 
 
            employer whom the employer characterized as "full-time."
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            GREGORY G. THOMPSON,          :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :       File No. 865630
 
            UNITED PARCEL SERVICE,        :
 
                                          :    A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            LIBERTY MUTUAL INSURANCE CO., :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This is a proceeding in arbitration brought by Gregory 
 
            G. Thompson as a result of injuries to his low back and neck 
 
            which occurred on October 5, 1987.  Defendants accepted 
 
            compensability for the injury, paid weekly benefits and 
 
            medical expenses.
 
            
 
                 The case was heard and fully submitted at Des Moines, 
 
            Iowa on December 6, 1990.  The record in the proceeding 
 
            consists of joint exhibits 1 through 6 and testimony from 
 
            claimant.
 
            
 
                                      issue
 
            
 
                 The sole issue for determination is claimant's 
 
            entitlement to industrial disability.
 
            
 
                                 findings of fact
 
            
 
                 Having considered all the evidence received, the 
 
            following findings of fact are made.
 
            
 
                 Gregory G. Thompson injured his neck and low back while 
 
            lifting packages at United Parcel Service on October 5, 
 
            1987.  The injury was diagnosed by Donald K. Bunten, M.D., 
 
            as spondylolysis at the L-5 level with some secondary 
 
            degenerative changes.
 
            
 
                 Dr. David Berg, D.O., described the injury as chronic 
 
            low back pain.  Claimant was treated conservatively with 
 
            physical therapy, rest and medication.  Dr. Bunten rated the 
 
            impairment at 10 percent to the body as a whole with 5 
 
            percent preexisting the October 5, 1987 injury.  Claimant's 
 
            current work restrictions are best described as a 
 
            restriction from manual labor.  Dr. Bunten suggested that 
 
            claimant remain in light duty work activity as it would be 
 
            less likely to aggravate his underlying condition.
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
                 Claimant's age, education, work experience and 
 
            motivation must be considered when assessing industrial 
 
            disability.
 
            
 
                 Claimant, age 33 at the time of hearing, graduated from 
 
            high school in 1976.  He was an average student in high 
 
            school.
 
            
 
                 Subsequent to high school and prior to October 5, 1987, 
 
            claimant worked in various heavy to medium labor positions 
 
            such as road and bridge construction and farm laborer.  
 
            Claimant's wages averaged about $4 to $4.50 per hour during 
 
            that period.  However, some construction jobs paid as high 
 
            as $5.50.
 
            
 
                 In 1986, claimant decided to move to Des Moines so as 
 
            to pursue an education at Des Moines Area Community College.  
 
            After enrollment in school claimant applied for and received 
 
            a part-time job with United Parcel Service at the rate of $8 
 
            per hour.
 
            
 
                 Subsequent to the work injury of October 5, 1987, 
 
            employer made several attempts to reemploy claimant at light 
 
            duty positions.  Claimant was unable to tolerate such work.  
 
            His employment with United Parcel Service was terminated on 
 
            April 6, 1989 due to the medical condition.
 
            
 
                 After the injury, claimant continued his course of 
 
            schooling at DMACC and graduated in August of 1988.  After 
 
            leaving school, claimant worked at RCS Millwork in Ankeny, 
 
            Iowa, for about six weeks.  Claimant earned about $5.50 per 
 
            hour.  He left the job because the physical demands 
 
            aggravated his October 5, 1987 work injury.
 
            
 
                 Claimant's next job was at Elder and Sons in Des Moines 
 
            working as a carpenter earning approximately $7 per hour.  
 
            He left this job after three months due to the back pain 
 
            caused by physical labor.
 
            
 
                 Claimant then went to work for Farmers Home 
 
            Administration as a construction inspector at a yearly 
 
            salary of $15,730.  Claimant is still employed at this 
 
            sedentary position and now earns $17,200 per year.  His 
 
            present salary equates to an hourly wage of $8.27 per hour 
 
            while his starting wage amounted to $7.56 per hour.  
 
            Claimant stated that he does have some recurrent back pain 
 
            when he drives long distances.  Claimant likes his job with 
 
            Farmers Home Administration.
 
            
 
                 It should be noted that defendants offered vocational 
 
            rehabilitation in good faith.  However, claimant did not 
 
            require such assistance due to his high motivation to return 
 
            to work.
 
            
 
                 It is found that claimant is motivated to return to 
 
            work.
 
            
 
                 Defendants contend that claimant's present earnings 
 
            prove that no industrial disability has been sustained.  
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            This argument is rejected as claimant's work restrictions 
 
            prevent him from accessing the heavy labor job market.
 
            
 
                 Factors weighing in favor of a higher industrial 
 
            disability rating include claimant's age, work restrictions 
 
            and motivation.  Factors weighing against a high rating 
 
            include claimant's current salary; employer's attempt to 
 
            reemploy and provide vocational rehabilitation, and 
 
            claimant's education.
 
            
 
                 While claimant has lost access to the heavy labor job 
 
            market he has at the present time obtained earnings in 
 
            excess of that earned at the time of injury.
 
            
 
                 It is found that claimant has sustained an industrial 
 
            disability to the body as a whole amounting to 10 percent.
 
            
 
                 Apportionment of the industrial disability is not 
 
            appropriate in this case.  Dr. Bunten opined that 5 percent 
 
            impairment preexisted the October 5, 1987 injury.  However, 
 
            claimant was working at heavy manual labor without 
 
            restrictions prior to the October 5, 1987 accident.  Based 
 
            upon the record presented, claimant had no industrial 
 
            disability prior to October 5, 1987.
 
            
 
                                conclusions of law
 
            
 
                 While a claimant is not entitled to compensation for 
 
            the results of a preexisting injury or disease, the mere 
 
            existence at the time of a subsequent injury is not a 
 
            defense.  Rose v. John Deere Ottumwa Works, 247 Iowa 900, 
 
            908, 76 N.W.2d 756, 760-61 (1956).  If the claimant had a 
 
            preexisting condition or disability that is aggravated, 
 
            accelerated, worsened or lighted up so that it results in 
 
            disability, claimant is entitled to recover.  Nicks v. 
 
            Davenport Produce Co., 254 Iowa 130, 115 N.W.2d 812, 815 
 
            (1962).
 
            
 
                 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
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            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 
 
            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).
 
            
 
                 Upon considering all the material factors, it is found 
 
            that the evidence in this case supports an award of 10 
 
            percent permanent partial disability which entitles claimant 
 
            to recover 50 weeks of benefits under Iowa Code 85.34(2)"u".
 
            
 
                                      order
 
            
 
                 IT IS THEREFORE ORDERED:
 
            
 
                 That defendants pay claimant fifty (50) weeks of 
 
            permanent partial disability benefits at the rate of one 
 
            hundred thirty-two and 46/100 dollars ($132.46) commencing 
 
            March 25, 1988.
 
            
 
                 That all accrued benefits are to be paid in a lump sum.
 
            
 
                 That interest will accrue pursuant to Iowa Code section 
 
            85.30
 
            
 
                 That defendants shall receive credit for benefits 
 
            previously paid.
 
            
 
                 That defendants pay costs pursuant to rule 343 IAC 
 
            4.33.
 
            
 
                 That defendants file claim activity reports as required 
 
            by this agency pursuant to rule 343 IAC 3.1
 
            
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
                 Signed and filed this ____ day of February, 1991.
 
            
 
            
 
            
 
            
 
                                          
 
            ________________________________
 
                                          MARLON D. MORMANN
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr David Drake
 
            Attorney at Law
 
            1200 35th St Ste 500
 
            West Des Moines Iowa 50265
 
            
 
            Mr Joseph Cortese II
 
            Attorney at Law
 
            500 Liberty Mutual Bldg
 
            Des Moines Iowa 50309
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
                      51803
 
                      Filed February 4, 1991
 
                      Marlon D. Mormann
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            GREGORY G. THOMPSON,          :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :       File No. 865630
 
            UNITED PARCEL SERVICE,        :
 
                                          :    A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            LIBERTY MUTUAL INSURANCE CO., :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            51803
 
            
 
            Claimant was a full-time student when he was injured at a 
 
            part-time job.  Subsequent to finishing school, claimant 
 
            acquired employment which paid better than what he earned at 
 
            the time of injury.  Claimant sustained 10 percent 
 
            industrial disability.