Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            ROBERT LEE COLLINS,           :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :         File No. 873651
 
            HAWKEYE MOVING & STORAGE,     :
 
                                          :      A R B I T R A T I O N
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            LIBERTY MUTUAL INSURANCE      :
 
            COMPANY,                      :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding in arbitration upon claimant's 
 
            petition filed February 15, 1989.  Claimant sustained a work 
 
            injury to his left shoulder either of a cumulative nature or 
 
            following a traumatic incident while moving office furniture 
 
            in the course of his duties as a driver/laborer.  He now 
 
            seeks benefits under the Iowa Workers' Compensation Act from 
 
            his employer, Hawkeye Moving & Storage ("Hawkeye"), and its 
 
            insurance carrier, Liberty Mutual Insurance Company.
 
            
 
                 Hearing on the arbitration petition was had in Ottumwa, 
 
            Iowa, on March 28, 1990.  The record consists of claimant's 
 
            testimony, joint exhibits 1 through 35, defendants' exhibits 
 
            1 through 4, and claimant's exhibits 1 and 2.  
 
            
 
                                      issues
 
            
 
                 Pursuant to the prehearing report, the parties have 
 
            stipulated:  that claimant sustained an injury arising out 
 
            of and in the course of his employment with Hawkeye Moving & 
 
            Storage ("Hawkeye") on December 3, 1987; that defendants 
 
            have paid claimant's entitlement to compensation for 
 
            temporary total disability or healing period (45 weeks from 
 
            December 23, 1987 through November 1, 1988); that the 
 
            appropriate rate of weekly benefits is $215.56; that medical 
 
            benefits are no longer in dispute; that defendants are 
 
            entitled to credit for 95 weeks of compensation paid at the 
 
            stipulated rate prior to hearing.
 
            
 
                 Issues presented for resolution include:  whether the 
 
            work injury caused temporary or permanent disability and the 
 
            extent and nature of the latter; whether penalty benefits 
 
            should be assessed under Iowa Code section 86.13.
 
            
 
                                 findings of fact
 
            
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
                 The undersigned deputy, having heard the testimony and 
 
            considered all of the evidence, finds:
 
            
 
                 Claimant was born on April 3, 1941 and was 48 years of 
 
            age at hearing.  He is right-handed.  He attended the 
 
            seventh and some of the eighth grade.  Except for several 
 
            months of training in hydraulics some 15 years ago, he has 
 
            developed no skills through on-the-job training, nor has he 
 
            been certified in any trade, nor has he earned a General 
 
            Equivalency Diploma.
 
            
 
                 Claimant's work history has primarily been as a 
 
            furniture mover with some four companies, including Hawkeye.  
 
            He has also worked as a roofer, in a warehouse, and as a 
 
            laborer in street and sewer construction work.  Beginning 
 
            approximately 1970 or 1972, claimant worked as a mover for a 
 
            predecessor employer--Mayflower--and for Hawkeye since about 
 
            1985.
 
            
 
                 Claimant's medical history includes a number of 
 
            problems unrelated to the work injury, including a history 
 
            of heart attacks and back trouble.  In addition, he has a 
 
            history of left shoulder complaints.
 
            
 
                 Claimant has been treated since April 1980 by Jack 
 
            Brindley, M.D., who testified by deposition taken May 22, 
 
            1989.  Dr. Brindley is a board-certified orthopaedic 
 
            surgeon.  His records reflect that claimant complained of 
 
            soreness in both shoulders and elbows on July 20, 1981 and 
 
            was treated with an anti-inflammatory agent.  Claimant also 
 
            complained of vague symptoms of aching in the shoulders and 
 
            elbows on March 10, 1982.  Claimant had other complaints of 
 
            the right shoulder, but next complained of left shoulder 
 
            difficulties on August 31, 1987, three months before the 
 
            stipulated work injury.  Dr. Brindley's impression at that 
 
            time was of subacromial bursitis of the left shoulder.
 
            
 
                 On December 3, 1987, claimant was engaged in moving 
 
            file cabinets when his left shoulder began to hurt as though 
 
            it were "on fire."  In his deposition testimony of October 
 
            3, 1989, claimant falsely stated that he had not had pain in 
 
            that shoulder for some 4-5 years.
 
            
 
                 In any event, claimant continued to work until seeing 
 
            Dr. Brindley some 20 days later on December 23.  Claimant 
 
            did not tell Dr. Brindley of the alleged work injury (his 
 
            testimony to the contrary lacks credibility), but the doctor 
 
            wrote that "this has just been coming on."
 
            
 
                 Claimant was initially treated conservatively based on 
 
            an impression of subacromial impingement syndrome, 
 
            arthroscopic surgery eventually being performed on March 16, 
 
            1988.  Post-operative diagnosis was of subacromial 
 
            impingement syndrome with bucket handle tear of the labrum 
 
            and disruptment of the anterior inferior and middle 
 
            glenohumeral ligaments and some rotator cuff roughness.  
 
            Subsequently, and after further consultation with Scott B. 
 
            Neff, D.O., claimant underwent acromioplasty of the left 
 
            shoulder on May 25, 1988, again at Dr. Brindley's hands.  
 
            Dr. Brindley's operative report reflects that the anterior 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            portion of the acromion was removed and the underedge of 
 
            that bone burred back for approximately an inch using a 
 
            power burr and the distal end of the clavicle was excised.  
 
            Clearly, the operative procedure extended beyond the arm 
 
            into claimant's body.
 
            
 
                 In his deposition testimony, Dr. Brindley indicated 
 
            that the bucket tear, disruptment of ligaments or rotator 
 
            cuff roughness could have come from a specific injury or 
 
            simply wear and tear.  Nonetheless, Dr. Brindley concluded 
 
            that claimant's injury was work related in that he worked 
 
            for a moving company and did a lot of heavy lifting in 
 
            awkward positions which contributed to the problem.
 
            
 
                 On October 5, 1988, Dr. Brindley released claimant to 
 
            return to light-duty work effective October 10 with a 
 
            50-pound lifting restriction.  However, Hawkeye was 
 
            unwilling or unable to return claimant to work with those 
 
            restrictions.
 
            
 
                 Dr. Brindley determined on November 2, 1988, that 
 
            claimant had reached his maximum recuperation from surgery 
 
            and rated his impairment at 20 percent of the upper 
 
            extremity.  Dr. Brindley agreed that the injury was actually 
 
            to the shoulder, but it was rated as an upper extremity 
 
            impairment for purposes of AMA and orthopaedic guidelines.  
 
            Permanent restrictions were against lifting in excess of 50 
 
            pounds or overhead.
 
            
 
                 A functional capacity evaluation was also performed by 
 
            Thomas W. Bower, L.P.T., on October 18, 1988.  Mr. Bower 
 
            considered the test valid and concluded that claimant was 
 
            unable to lift much more than 37 pounds maximum, and 
 
            certainly would have problems with that weight on a 
 
            repetitious basis.  It was uncertain whether that strength 
 
            could be improved given claimant's pathology.  In a 
 
            subsequent letter dated February 19, 1990, Dr. Brindley 
 
            concurred with Bower's evaluation and felt "that he should 
 
            not be able to lift over 37 pounds maximum and could no do 
 
            frequent lifting of that particular weight."  The record 
 
            does not disclose whether Dr. Brindley had any further 
 
            reason for lowering his weight restriction other than 
 
            Bower's testing.
 
            
 
                 Notes prepared by Donald W. Blair, M.D., on December 
 
            14, 1988 agreed that Dr. Brindley's 20 percent impairment 
 
            rating was reasonable.
 
            
 
                 Of interest in assessing claimant's credibility is Dr. 
 
            Brindley's chart note of December 5, 1988:
 
            
 
                 Patient called and thought that maybe he could get 
 
                 his knee taken care of if workman's [sic] comp 
 
                 would pay for it.  He thinks that he probably did 
 
                 it while working but he can't remember the exact 
 
                 incident.  He did slip on a ladder and he did alot 
 
                 [sic] of squatting and climbing stairs in his 
 
                 work.  He is going to continue working on seeing 
 
                 if he can't get some insurance for this.
 
            
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
                 Accordingly, it seems a reasonable inference that 
 
            claimant is willing to claim very questionable work injuries 
 
            for compensation purposes.
 
            
 
                 Defendants have pointed out the long-standing nature of 
 
            claimant's shoulder complaints.  Of significance is Dr. 
 
            Brindley's testimony that claimant did not show a loss of 
 
            range of motion in the left shoulder in 1981 or 1982, but 
 
            did in 1987 and thereafter.
 
            
 
                 Since his surgery, claimant worked in freight delivery 
 
            for only two days, for a roofing company for four days (he 
 
            was unable to tear off shingles), but intended to take 
 
            further employment with that business in the summer of 1990 
 
            operating a tar "cooker," worked for a moving company for 
 
            two days before being let go, began training as a bus 
 
            driver, but left during training, and has worked spot jobs 
 
            such as lawn mowing and the like.
 
            
 
                 No further surgery is anticipated.  Claimant states his 
 
            arm and shoulder are now much better, but he complains of 
 
            some numbness and intermittent pain which he demonstrated as 
 
            being above the tip or point of the shoulder and occurring 
 
            when he brings the arm across his body, drives or attempts 
 
            to lift on that side.
 
            
 
                                conclusions of law
 
            
 
                 The parties have stipulated that claimant sustained a 
 
            work injury as per his allegations.  However, they dispute 
 
            whether that injury caused permanent or temporary 
 
            disability.
 
            
 
                 The supreme court of Iowa in Almquist v. Shenandoah 
 
            Nurseries, 218 Iowa 724, 731-32, 254 N.W. 35, 38 (1934) 
 
            discussed the definition of personal injury in workers' 
 
            compensation cases as follows:
 
            
 
                 While a personal injury does not include an 
 
                 occupational disease under the Workmen's 
 
                 Compensation Act, yet an injury to the health may 
 
                 be a personal injury.  [Citations omitted.]  
 
                 Likewise a personal injury includes a disease 
 
                 resulting from an injury....The result of changes 
 
                 in the human body incident to the general 
 
                 processes of nature do not amount to a personal 
 
                 injury.  This must follow, even though such 
 
                 natural change may come about because the life has 
 
                 been devoted to labor and hard work.  Such result 
 
                 of those natural changes does not constitute a 
 
                 personal injury even though the same brings about 
 
                 impairment of health or the total or partial 
 
                 incapacity of the functions of the human body. 
 
            
 
                    ....
 
                 
 
                 A personal injury, contemplated by the Workmen's 
 
                 Compensation Law, obviously means an injury to the 
 
                 body, the impairment of health, or a disease, not 
 
                 excluded by the act, which comes about, not through the 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
                 natural building up and tearing down of the human body, 
 
                 but because of a traumatic or other hurt or damage to 
 
                 the health or body of an employee.  [Citations 
 
                 omitted.]  The injury to the human body here 
 
                 contemplated must be something, whether an accident or 
 
                 not, that acts extraneously to the natural processes of 
 
                 nature, and thereby impairs the health, overcomes, 
 
                 injures, interrupts, or destroys some function of the 
 
                 body, or otherwise damages or injures a part or all of 
 
                 the body.
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury of December 3, 
 
            1987 is causally related to the disability on which he now 
 
            bases his claim.  Bodish v. Fischer, Inc., 257 Iowa 516, 133 
 
            N.W.2d 867 (1965).  Lindahl v. L. O. Boggs, 236 Iowa 296, 18 
 
            N.W.2d 607 (1945).  A possibility is insufficient; a 
 
            probability is necessary.  Burt v. John Deere Waterloo 
 
            Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955).  The 
 
            question of causal connection is essentially within the 
 
            domain of expert testimony.  Bradshaw v. Iowa Methodist 
 
            Hosp., 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. Cent. Tel. Co., 261 
 
            Iowa 352, 154 N.W.2d 128 (1967).
 
            
 
                 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).
 
            
 
                 The only expert testimony in the record is that 
 
            claimant's injury and resultant surgery was caused by his 
 
            employment.  Although Dr. Brindley was not aware of the 
 
            claimed traumatic incident on December 3 until long after 
 
            the fact, his deposition testimony indicated that the heavy 
 
            nature of work as a furniture mover caused a cumulative 
 
            deterioration of the shoulder joint.  Even given claimant's 
 
            lack of credibility, he has met his burden of proof in 
 
            establishing a causal relationship to both temporary and 
 
            permanent disability.
 
            
 
                 Under Iowa Code section 85.34(1), healing period is 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            compensable beginning on the date of injury and until the 
 
            employee has returned to work, it is medically indicated 
 
            that significant improvement from the injury is not 
 
            anticipated, or until the employee is medically capable of 
 
            returning to substantially similar employment, whichever 
 
            first occurs.
 
            
 
                 Claimant was off work from December 23, 1987.  Although 
 
            he was released to return to light-duty work effective 
 
            October 10, 1988, he was not accepted back due to his 
 
            medical restrictions.  Dr. Brindley has indicated that 
 
            claimant will never be medically capable of returning to 
 
            substantially similar employment.  Therefore, the healing 
 
            period must end at the date it was medically indicated that 
 
            significant improvement from the injury is not anticipated, 
 
            or November 2, 1988.  Claimant is thus entitled to 45 weeks 
 
            of healing period benefits, pursuant to the parties' 
 
            stipulation.
 
            
 
                 The surgical treatment of claimant's shoulder extended 
 
            beyond the arm into the body as a whole.  Claimant's 
 
            remaining symptoms include a loss of his range of motion of 
 
            the shoulder and pain in the body.  His injury is to the 
 
            body as a whole and not merely the arm and must be 
 
            compensated industrially rather than as a scheduled member 
 
            injury.  Lauhoff Grain v. McIntosh, 395 N.W.2d 834 (Iowa 
 
            1986); Roach v. Firestone Tire & Rubber Co., file number 
 
            806034 (App. Decn., August 24, 1989).
 
            
 
                 Functional impairment is an element to be considered in 
 
            determining industrial disability which is the reduction of 
 
            earning capacity, but consideration must also be given to 
 
            the injured employee's age, education, qualifications, expe
 
            rience and inability to engage in employment for which he is 
 
            fitted.  Olson v. Goodyear Service Stores, 255 Iowa 1112, 
 
            125 N.W.2d 251 (1963).  Barton v. Nevada Poultry, 253 Iowa 
 
            285, 110 N.W.2d 660 (1961).
 
            
 
                 A finding of impairment to the body as a whole found by 
 
            a medical evaluator does not equate to industrial disabil
 
            ity.  This is so as impairment and disability are not syn
 
            onymous.  Degree of industrial disability can in fact be 
 
            much different than the degree of impairment because in the 
 
            first instance reference is to loss of earning capacity and 
 
            in the latter to anatomical or functional abnormality or 
 
            loss.  Although loss of function is to be considered and 
 
            disability can rarely be found without it, it is not so that 
 
            a degree of industrial disability is proportionally related 
 
            to a degree of impairment of bodily function.
 
            
 
                 Factors to be considered in determining industrial dis
 
            ability include the employee's medical condition prior to 
 
            the injury, immediately after the injury, and presently; the 
 
            situs of the injury, its severity and the length of healing 
 
            period; the work experience of the employee prior to the 
 
            injury, after the injury and potential for rehabilitation; 
 
            the employee's qualifications intellectually, emotionally 
 
            and physically; earnings prior and subsequent to the injury; 
 
            age; education; motivation; functional impairment as a 
 
            result of the injury; and inability because of the injury to 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            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, 1985).
 
            
 
                 Given claimant's seventh grade education, his demeanor 
 
            at hearing suggesting that he is of average or below average 
 
            intelligence, and his work history limited largely to heavy 
 
            furniture moving and other manual employment, his industrial 
 
            disability is significant.  His 37-pound lifting restriction 
 
            will bar him from most of the jobs he has held in the past.  
 
            Claimant is 48 years old and in his prime earning years.  
 
            Significant retraining at this point seems questionable at 
 
            best given claimant's educational background.  Defendants 
 
            have failed to provide him further work or even to offer 
 
            vocational rehabilitation, factors that increase industrial 
 
            disability.  Although claimant has other physical defects, 
 
            it does not appear of record that he labors under 
 
            corresponding medical restrictions.
 
            
 
                 Considering these factors in specific and the record in 
 
            general, it is held that claimant has sustained an 
 
            industrial disability equivalent to 45 percent of the body 
 
            as a whole, or 225 weeks.
 
            
 
                 Claimant also seeks penalty benefits under Iowa Code 
 
            section 86.13, which permits an award of 50 percent of 
 
            benefits that are unreasonably delayed or denied.  In this 
 
            case, defendants have conceded that claimant sustained an 
 
            injury arising out of and in the course of employment.  
 
            However, given that claimant complained of a shoulder 
 
            problem diagnosed as bursitis only months before the injury, 
 
            that he delayed 20 days in seeking medical treatment and 
 
            even then did not at first speak of a work injury, and given 
 
            further that claimant lacks credibility and appears 
 
            amendable to manufacturing work injuries in a quest for 
 
            benefits, this claim is "fairly debatable" and penalty 
 
            benefits are inappropriate.  Dodd v. Oscar Mayer Foods 
 
            Corp., file number 724378 (Penalty Decn., April 27, 1989).
 
            
 
                                      order
 
            
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 Defendants shall pay unto claimant forty-five (45) 
 
            weeks of healing period benefits commencing December 23, 
 
            1987 at the stipulated rate of two hundred fifteen and 
 
            56/100 dollars ($215.56) per week and totalling nine 
 
            thousand seven hundred and 20/100 dollars ($9,700.20).
 
            
 
                 Defendants shall pay unto claimant two hundred 
 
            twenty-five (225) weeks of permanent partial disability 
 
            benefits at the stipulated rate of two hundred fifteen and 
 
            56/100 dollars ($215.56) per week commencing November 3, 
 
            1988 and totalling forty-eight thousand five hundred one and 
 
            00/100 dollars ($48,501.00).
 
            
 
                 Defendants shall have credit for all payments made 
 
            voluntarily prior to hearing.
 
            
 
                 All accrued benefits shall be paid in a lump sum with 
 
            interest pursuant to Iowa Code section 85.30.
 
            
 
                 The costs of this action shall be assessed to 
 
            defendants pursuant to 343 IAC 4.33.
 
            
 
                 Defendants shall file claim activity reports as 
 
            requested by this agency pursuant to 343 IAC 3.1.
 
            
 
                 Signed and filed this ______ day of ____________, 1990.
 
            
 
                 
 
            
 
                 
 
                 
 
                                          ______________________________
 
                                          DAVID RASEY
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. H. Edwin Detlie
 
            Attorney at Law
 
            114 North Market Street
 
            Ottumwa, Iowa  52501
 
            
 
            Mr. Walter F. Johnson
 
            Attorney at Law
 
            111 West Second Street
 
            P.O. Box 716
 
            Ottumwa, Iowa  52501
 
            
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                           5-1803; 1803.1; 4000.2
 
                           Filed December 11, 1990
 
                           DAVID RASEY
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            ROBERT LEE COLLINS, :
 
                      :
 
                 Claimant, :
 
                      :
 
            vs.       :
 
                      :         File No. 873651
 
            HAWKEYE MOVING & STORAGE,     :
 
                      :      A R B I T R A T I O N
 
                 Employer, :
 
                      :         D E C I S I O N
 
            and       :
 
                      :
 
            LIBERTY MUTUAL INSURANCE :
 
            COMPANY,  :
 
                      :
 
                 Insurance Carrier,  :
 
                 Defendants.    :
 
            ____________________________________________________________
 
            
 
            5-1803; 1803.1
 
            Shoulder injury held compensable industrially.  
 
            Forty-eight-year-old claimant with seventh grade education 
 
            and work history as furniture mover and laborer awarded 45 
 
            percent body as a whole based on 37-pound lifting 
 
            restriction.
 
            
 
            4000.2
 
            Where claimant suffered shoulder problems several months 
 
            before injury, did not see physician for 20 days after 
 
            injury, did not give initial history of work injury and was 
 
            prone to inventing workers' compensation claims, refusal to 
 
            pay benefits was fairly debatable and no penalty was 
 
            imposed.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
                      5-1801;5-1803;5-2401;
 
                      5-2503;5-2802;5-2906
 
                      Filed July 9, 1991
 
                      ELIZABETH A. NELSON
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            CARL ROBERT HENDRIXSON,  :
 
                      :
 
                 Claimant, :
 
                      :
 
            vs.       :
 
                      :      File No. 873889
 
            ERICKSON DISPLAYS,  :
 
                      :    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.    :
 
            ___________________________________________________________
 
            
 
            5-1801
 
            Claimant was successful in showing that he suffered a 
 
            temporary total disability as a result of a lifting incident 
 
            at work.  Claimant was released to return to work but quit 
 
            before the date of his actual release.  Claimant was awarded 
 
            temporary total disability for the time he was off work in 
 
            February of 1989.
 
            
 
            5-1803
 
            Claimant failed to prove that he had sustained any permanent 
 
            partial disability.  Subsequent employment and an automobile 
 
            accident resulted in claimant's continuing problems with his 
 
            back rather than the injury sustained with the employer 
 
            here.
 
            
 
            5-2401
 
            The employer had actual knowledge of the injury within the 
 
            90 day time period and as a result, claimant satisfied the 
 
            notice requirement of Iowa Code section 85.23.
 
            
 
            5-2503
 
            Claimant was not awarded medical benefits for visits to 
 
            unauthorized doctors or for unauthorized medications.  
 
            5-2802
 
            There was sufficient evidence in the record to support a 
 
            finding that claimant had been injured on the job, even 
 
            though he did not report the injury until 60 days after its 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            occurrence.  Defendants' doctor found evidence of a back 
 
            sprain.  
 
            
 
            5-2906
 
            Defendants renewed their objection to the live testimony of 
 
            a doctor who had been listed on the witness list as 
 
            testifying by report.  The objection was not well founded 
 
            since defendants had known that claimant's doctor was going 
 
            to testify as to permanency.  The fact that the doctor 
 
            testified live did not deprive defendants of any of their 
 
            rights to adequately cross examine the doctor and test the 
 
            sufficiency of his rating.  The objection was overruled.
 
            
 
 
            
 
            
 
            
 
            
 
            
 
            
 
                      BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
           
 
            DOUGLAS AUTEN,   
 
                        
 
                 Claimant,                     File No. 873898
 
                        
 
            vs.                                 A P P E A L
 
                        
 
            THE CELOTEX CORPORATION,           D E C I S I O N
 
                        
 
                 Employer,   
 
                 Self-Insured,    
 
                 Defendant.       
 
            ____________________________________________________________
 
            
 
            The record, including the transcript of the hearing before 
 
            the deputy and all exhibits admitted into the record, has 
 
            been reviewed de novo on appeal.
 
            
 
                                    ISSUES
 
            
 
            Those portions of the proposed agency decision pertaining to 
 
            issues not raised on appeal are adopted as a part of this 
 
            appeal decision.  The issues raised on appeal are:  Whether 
 
            the deputy erred in finding that the claimant has sustained 
 
            a body as a whole injury and whether the deputy erred in 
 
            determining that the claimant is permanently and totally 
 
            disabled relating to his arm injury of May 6, 1987.
 
            
 
                              FINDINGS OF FACT
 
            
 
            The findings of fact contained in the proposed agency 
 
            decision filed January 22, 1992 are adopted as set forth 
 
            below.  Segments designated by asterisks (*****) indicate 
 
            portions of the language from the proposed agency decision 
 
            that have been intentionally deleted and do not form a part 
 
            of this final agency decision.
 
            *****
 
            Claimant worked for Celotex from May 1959 until June 2, 
 
            1989.  During his last nine years, claimant was assigned to 
 
            a janitorial position.  Claimant bid for and received this 
 
            job following work injuries in 1977 and 1982 to his neck and 
 
            right arm.  Work restrictions imposed prior to the work 
 
            injury herein prohibited lifting more than 20 pounds, no 
 
            heavy manual labor and no prolonged standing, sitting or 
 
            walking without ability to change positions.  The janitorial 
 
            job required claimant to empty wastebaskets, clean rest 
 
            rooms, sweep floors, refill dispensers, etc., including 
 
            lifting over ten pounds and overhead work with his arms and 
 
            hands.  Claimant was able to perform this work except for 
 
            mopping floors.  To his knowledge, claimant was only told by 
 
            his physicians not to use an electric floor buffer or to mop 
 
            the floors.  This finding is based upon claimant's testimony 
 
            and that of fellow employee, Dan Brown.
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            Claimant earned $9.40 per hour plus overtime work in this 
 
            job at the time of the alleged injury herein.  Claimant was 
 
            laid off in June 1989 because another employee bumped him 
 
            from the janitor job under labor contract seniority rules 
 
            and no other position could be found at Celotex within the 
 
            most recent physician imposed work restrictions against 
 
            lifting over 10 pounds and no overhead work following the 
 
            work injury herein.
 
            
 
            On or about May 4, 1987, claimant injured his right shoulder 
 
            while pushing and pulling in an attempt to remove hoses from 
 
            a storage hanger.  Claimant said that he felt something tear 
 
            in his shoulder.  After reporting the incident to his 
 
            supervisor, claimant was referred to the company doctor, R. 
 
            Woodard, M.D.  Claimant continued to work over the next 
 
            several weeks and was eventually referred to the Mayo Clinic 
 
            in Rochester, Minnesota, who had treated claimant on 
 
            previous occasions.
 
            
 
            At the Mayo Clinic, claimant was treated by Arlen Hanssen 
 
            M.D., an orthopedic surgeon.  When tests confirmed a rotator 
 
            cuff tear, claimant underwent corrective surgery including 
 
            an anterior acromioplasty in September 1987.  In April 1988 
 
            both Dr. Hanssen and another orthopedic surgeon retained by 
 
            defendant to treat claimant, Robert Weatherwax, M.D., 
 
            reported that claimant sufficiently recovered from his 
 
            injury and surgery and released claimant to return to work.  
 
            Claimant then returned to work as a janitor on April 4, 
 
            1988.
 
            
 
            As a result of the work injury of May 4, 1987, claimant has 
 
            an additional nine percent permanent partial impairment to 
 
            the body as a whole.  This injury clearly extended beyond 
 
            the arm or head of the humerus and into the parts of the 
 
            shoulder joint which combine together to form the socket of 
 
            the arm/shoulder ball and socket joint.  Also, as a result 
 
            of this work injury, claimant 's restrictions worsened to 
 
            the extent that physicians recommended against lifting over 
 
            10 pounds with no overhead lifting.  Unknown to claimant at 
 
            the time, Dr. Weatherwax had imposed these new restrictions 
 
            in November 1988.  In his deposition, Dr. Hanssen agrees 
 
            with these restrictions today.  The causal connection 
 
            finding was based primarily upon the views of the primary 
 
            treating physician, Dr Hanssen.  Contrary views contained in 
 
            the evidence from one time evaluators or others who did not 
 
            perform the surgery on the right shoulder are rejected as 
 
            not convincing.  Dr. Hanssen admitted that claimant suffers 
 
            from a degenerative condition of the shoulder which is 
 
            unrelated to his employment at Celotex but that the torn 
 
            rotator cuff combined with that prior condition to 
 
            precipitate the impairment.
 
            
 
            The findings with reference to permanent partial impairment 
 
            and work restrictions were made despite claimant's long 
 
            history of medical problems.  As a child, claimant suffered 
 
            a fracture of both legs when he was struck by a dump truck.  
 
            In 1957, claimant injured his low back and left side in an 
 
            auto accident.  In March 1973, claimant broke a finger and 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            his left hand in another motor vehicle accident.  In 
 
            September 1977, claimant was temporarily assigned to unload 
 
            stucco blocks from boxcars and injured his neck while 
 
            picking up a handful of blocks.  This injury lead to surgery 
 
            in 1979 on his cervical spine and permanent partial 
 
            impairment ratings to the back.  It was after this injury 
 
            that claimant incurred work restrictions and moved to the 
 
            janitor job at Celotex.  In December 1978, claimant fell on 
 
            ice and suffered broken ribs and low back pain.  In March 
 
            1982, while filling a soap dispenser at Celotex, claimant 
 
            suffered right arm muscle pain and received brief medical 
 
            treatment.  In August 1982, while lifting a bucket of water 
 
            at Celotex, claimant tore his biceps tendon for which he 
 
            received more permanent partial impairment ratings to his 
 
            right arm.  In November 1985, claimant suffered a right 
 
            sided popping sensation in his chest while climbing through 
 
            a fence while hunting.  Claimant only visited the doctor 
 
            once after this incident and received little, if any, 
 
            treatment.  There apparently was no diagnosis of this event.
 
            In 1977, claimant received permanent partial disability 
 
            benefits from Celotex for a 25 percent body as a whole 
 
            injury as a result of an agreement for settlement of the 
 
            September 1977 work injury.  In 1984, claimant received a 
 
            lump payment of $10,000 in a special case settlement of the 
 
            1982 injuries and a review-reopening claim for the 1977 
 
            injury.  Regardless of these settlements, the record is 
 
            clear that claimant had substantial permanent partial 
 
            impairment and physician imposed work restrictions prior to 
 
            the injury herein, some of which led to his job transfer in 
 
            1980 to janitor.  According to claimant's personal 
 
            physician, Michael Stitt, M.D., claimant is totally disabled 
 
            and should not lift, bend, twist, stand or sit for any 
 
            period of time.  Also, in conjunction with claimant's 
 
            application for social security benefits after being laid 
 
            off at Celotex, E. D. DeHaan M.D., also opines that claimant 
 
            cannot be gainfully employed at the present time due to all 
 
            of his prior injuries.
 
            
 
            It should be noted that claimant's physical capabilities 
 
            were measured by a Robert Jones in October 1988.  It was his 
 
            opinion that claimant demonstrated a very limited physical 
 
            capacity but that his testing of claimant indicated that 
 
            claimant was magnifying his symptoms due to inconsistent 
 
            results.  Jones stated this may or may not be evidence of 
 
            malingering.  These views were not given any weight in this 
 
            decision.  Jones is not considered qualified to render the 
 
            opinions he expressed in the record of this case.  Jones 
 
            holds a BA degree only in psychology and sociology.  No 
 
            showing has been made that he possesses skills or knowledge 
 
            in neurology or orthopedics.  He has not been certified by 
 
            any recognized authority to do what he apparently does for a 
 
            Des Moines based hospital.  He has received no specialized 
 
            training in giving capability tests.  His statements that 
 
            claimant's pain behavior was not typical for his condition 
 
            is meaningless without a showing that he possesses 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            qualifications to make such statements.
 
            With reference to loss of earning capacity, it is found that 
 
            the work injury precipitated new work restrictions which 
 
            initially did not prevent a return to work as a janitor.  
 
            However, when he was bumped from the position in June 1989, 
 
            he was permanently laid off because there was no work 
 
            available to him at Celotex due to the new restrictions 
 
            placed on him by Drs. Hanssen and Weatherwax.  Whether or 
 
            not claimant knew of these restrictions is irrelevant to the 
 
            analysis in this case.  Clearly an accommodation was made 
 
            for claimant's disability prior to June 1989 and such 
 
            accommodation ended when he was laid off.  Defendant's 
 
            contention that claimant's loss of work at Celotex was due 
 
            to the union bumping rights and not due to the work injury 
 
            is not correct.  A significant cause for claimant not 
 
            working at Celotex today as a janitor is and remains to be 
 
            his new work restrictions imposed after recovery from the 
 
            May 7 injury.  Claimant's past work experience outside of 
 
            Celotex includes roofing, road construction, chipping welds 
 
            with a sledge hammer, and railroad fireman.  Except for the 
 
            railroad job which is not available today, all of this work 
 
            requires heavy manual labor.  At Celotex, prior to the 
 
            janitor job, claimant was required to perform heavy lifting.  
 
            In any event, whether or not claimant suffered permanent 
 
            impairment from the May 4, 1987 injury, that injury and the 
 
            additional restrictions imposed as a result of that injury 
 
            led to the loss of his employment at Celotex.  Claimant has 
 
            not worked since that time in any meaningful employment.
 
            Claimant has made a reasonable attempt to seek alternative 
 
            employment.  After being laid off, he sought work twice per 
 
            week for 26 weeks to remain eligible for unemployment 
 
            compensation benefits.  Admittedly, he has not looked for 
 
            work since.  This is understandable when he is told by 
 
            vocational rehabilitation counselors, such as Sue Lieske 
 
            from the State Division of Vocational Rehabilitation, that 
 
            there is little chance that vocational rehabilitation could 
 
            help him obtain competitive employment and that the only 
 
            possibility is in sheltered employment.  Claimant is only 
 
            able to perform services which are so limited in quality, 
 
            dependability or quantity that a reasonably stable market 
 
            for them does not exist.  Claimant is not employable in the 
 
            competitive labor market within the geographical area of 
 
            this residence.
 
            
 
            Finally, although at the time of the hearing claimant was 58 
 
            years of age and nearing the end of a normal working life, 
 
            he had no retirement plans at the time of injury and, but 
 
            for the injury, he could reasonably anticipate a 
 
            continuation of his employment at Celotex until his 
 
            retirement.  
 
            
 
            As a result of the work injury of May 4, 1987, claimant has 
 
            suffered a 100 percent or total loss of earning capacity.  
 
            Although an apportionment of disability could be possible 
 
            given claimant's two prior serious work injuries, such an 
 
            apportionment cannot be made as will be explained in the 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            Conclusions of Law section of this decision.
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
            The conclusions of law contained in the proposed agency 
 
            decision filed January 22, 1992 are adopted as set forth 
 
            below.  Segments designated by asterisks (*****) indicate 
 
            portions of the language from the proposed agency decision 
 
            that have been intentionally deleted and do not form a part 
 
            of this final agency decision.  Segments designated by 
 
            brackets ([ ]) indicate language that is in addition to the 
 
            language of the proposed agency decision.
 
              
 
              I.  Claimant has the burden of proving by a preponderance 
 
            of the evidence that claimant received an injury arising 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 generally, Cedar Rapids, Comm. Sch. Dist. 
 
            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. A work connected injury which more than 
 
            slightly aggravates the condition is considered to be a 
 
            personal injury.  Ziegler v. U.S. Gypsum, 252 Iowa 613, 620, 
 
            106 N.W.2d 591 (1961), and cases cited therein.
 
            *****
 
            [Claimant's injury resulted in impairment of the rotator 
 
            cuff.  The rotator cuff is anatomically a part of the body 
 
            as a whole, existing beyond the shoulder joint.  A medical 
 
            opinion that claimant's impairment is to the upper 
 
            extremity, standing alone, does not necessarily establish 
 
            that the impairment is to the arm only, as the medical 
 
            profession sometimes views the upper extremity as comprising 
 
            both the arm and the shoulder joint.  Iowa Code section 
 
            85.34(2) refers to a scheduled compensation for the loss of 
 
            an arm, and does not use the term "upper extremity."  The 
 
            greater weight of the medical evidence establishes that 
 
            claimant's injury resulted in impairment of the shoulder as 
 
            well as the arm, and claimant has thus suffered a body as a 
 
            whole injury and will be compensated under Iowa Code section 
 
            85.34(2)(u).]
 
             
 
             II.  Claimant must next establish by a preponderance of the 
 
            evidence the extent of weekly benefits for permanent 
 
            disability to which claimant is entitled.  As the claimant 
 
            has shown that the work injury was a cause of a permanent 
 
            physical impairment or limitation upon activity involving 
 
            the body as a whole, the degree of permanent disability must 
 
            be measured pursuant to Iowa Code section 85.34(2)(u).  
 
            However, unlike scheduled member disabilities, the degree of 
 
            disability under this provision is not measured solely by 
 
            the extent of a functional impairment or loss of use of a 
 
            body member.  A disability to the body as a whole or an 
 
            "industrial disability" is a loss of earning capacity 
 
            resulting from the work injury.  Diederich v Tri-City 
 
            Railway Co., 219 Iowa 587, 593, 258 N.W. 899 (1935).  A 
 
            physical impairment or restriction on work activity may or 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            may not result in such a loss of earning capacity.  
 
            Examination of several factors determines the extent to 
 
            which a work injury and a resulting medical condition caused 
 
            an industrial disability.  These factors include the 
 
            employee's medical condition prior to the injury, 
 
            immediately after the injury and presently; the situs of the 
 
            injury, its severity and the length of healing period; the 
 
            work experience of the employee prior to the injury, after 
 
            the injury and 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.  See Peterson v Truck Haven Cafe, Inc. (Appeal 
 
            Decision, Feb. 28, 1985).
 
            
 
            [Claimant eventually lost his job with defendant employer.  
 
            Normally, a defendant employer's refusal to give any sort of 
 
            work to a claimant after he suffers his affliction may 
 
            justify an award of disability.  McSpadden v. Big Ben Coal 
 
            Co., 288 N.W.2d 181 (Iowa 1980).  However, here the direct 
 
            cause of this loss of earnings was a union contract that 
 
            allowed claimant to be "bumped."
 
            
 
            Although this does not represent a McSpadden situation that 
 
            might otherwise increase claimant's award of disability, 
 
            nevertheless claimant's loss of earnings due to being laid 
 
            off is a relevant factor in determining his disability.  The 
 
            position claimant occupied at the time he was "bumped" was a 
 
            position he held because of work restrictions stemming from 
 
            his work injury.  In addition, claimant was unable to "bump" 
 
            any other employee and retain employment because there were 
 
            no other positions compatible with his restrictions.  Thus, 
 
            although the employer is to be commended for attempting to 
 
            retain and accommodate claimant, the fact remains that 
 
            claimant is no longer employed by defendant because of the 
 
            work injury he has suffered.  See Vosberg v. A.Y. McDonald 
 
            Mfg. Co., Appeal Decision, February 17, 1992.]
 
            
 
            In the case sub judice, it was found that claimant suffered 
 
            a 100 percent total loss of his earning capacity as a result 
 
            of the work injury.  Such a finding entitles claimant to  
 
            permanent total disability benefits as a matter of law under 
 
            Iowa Code section 85.34(2)(3) for an indefinite period of 
 
            time during claimant's period of disability.  If there is no 
 
            change of condition, these benefits will continue for life.
 
            Although a considerable portion of this total disability is 
 
            attributable to work related medical conditions which 
 
            existed before the work injury herein, apportionment of 
 
            disability is not appropriate or possible in a permanent 
 
            total disability case because the benefits are not payable 
 
            for a definite time period under Iowa Code section 85.34(2) 
 
            but are paid to claimant indefinitely during the period of 
 
            his disability under Iowa Code section 85.34(3).  
 
            Admittedly, claimant's work injury was only one among many 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            disabling injuries.   However, the May 1987 injury was the 
 
            proverbial "straw that broke the camel's back" and permanent 
 
            total disability benefits shall be awarded accordingly.  
 
            Furthermore, apportionment of disability between a 
 
            preexisting condition and an injury is proper only in those 
 
            situations where a prior injury or illness "unrelated to 
 
            employment independently produces some ascertainable portion 
 
            of the ultimate disability."  Tussing v. George A. Hormel & 
 
            Co., 461 N.W.2d 450 (Iowa 1990); Varied Enterprises, Inc., 
 
            353 N.W.2d 407.  Prior existing impairment does not mandate 
 
            a finding of loss of earning capacity when there has been no 
 
            lost earnings or employment.  See Bearce v. FMC Corp., 465 
 
            N.W.2d 531 (Iowa 1991).
 
            
 
            III.  Finally, claimant seeks additional weekly benefits 
 
            under Iowa Code section 86.13.  The unnumbered last 
 
            paragraph of Iowa Code section 86.13 states that if a delay 
 
            in commencement or termination of benefits occurs without 
 
            reasonable or probable cause or excuse, the industrial 
 
            commissioner shall award extra weekly  benefits in an amount 
 
            not to exceed 50 percent of the amount of benefits that were 
 
            unreasonably delayed or denied.  Defendants may deny or 
 
            delay the payment of benefits only when the claim is fairly 
 
            debatable.  Seydel v. University of Iowa Physical Plant, 
 
            Appeal Decision, November 1, 1989.  When the claim is 
 
            "fairly debatable", the insurer is entitled to debate it, 
 
            whether the debate concerns a matter of fact or law.  *****
 
            The defense in this case asserts that claimant's loss of 
 
            employment at Celotex was due to prior restrictions imposed 
 
            as a result of the prior work injuries.  Defendant also 
 
            raises an estoppel theory in that they paid voluntary 
 
            benefits prior to hearing on the condition that claimant 
 
            withdraw the penalty benefits claim.  ***** The matter is 
 
            fairly debatable and no case for sanctions has been made out 
 
            in this case, regardless of any estoppel theory.  Claimant's 
 
            request for penalty benefits is denied. 
 
            
 
            WHEREFORE, the decision of the deputy is affirmed.
 
            
 
                                       ORDER
 
            
 
            THEREFORE, it is ordered:
 
            
 
            That defendant shall pay to claimant permanent total 
 
            disability benefits at the stipulated rate of two hundred 
 
            ninety-three and 89/l00 dollars ($293.89) per week from 
 
            September 7, 1987, for an indefinite period of time during 
 
            the period of disability.
 
            
 
            That defendant shall pay accrued weekly benefits in a lump 
 
            sum and shall receive credit against this award for weekly 
 
            benefits previously paid.  
 
            
 
            That defendant shall pay interest on weekly benefits awarded 
 
            herein as set forth in Iowa Code section 85.30. 
 
            
 
            That defendant shall pay the costs of the appeal including 
 
            the transcription of the hearing.  
 
            
 
            That defendant shall file activity reports on the payment of 
 
            this award as requested by this agency pursuant to Division 
 
            of Industrial Services Rule 343 IAC 3.1.
 
            
 
            Signed and filed this ____ day of May, 1993.
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
                                      ________________________________
 
                                             BYRON K. ORTON
 
                                         INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Tito Trevino
 
            Attorney at Law
 
            801 Carver Bldg
 
            P. O. Box 1680
 
            Fort Dodge, IA  50501
 
            
 
            Mr. Stephen W. Spencer
 
            Attorney at Law
 
            218 6th Ave., Ste 300
 
            P. O. Box 9130
 
            Des Moines, IA  50306
 
            
 
 
            
 
 
 
                
 
 
 
 
 
                                                1803
 
                                                Filed May 27, 1993
 
                                                BYRON K. ORTON
 
             
 
                      BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
           
 
            DOUGLAS AUTEN,   
 
                        
 
                 Claimant,                     File No. 873898
 
                        
 
            vs.                                 A P P E A L
 
                        
 
            THE CELOTEX CORPORATION,           D E C I S I O N
 
                        
 
                 Employer,   
 
                 Self-Insured,    
 
                 Defendant.       
 
            ____________________________________________________________
 
              
 
            1803
 
            
 
            Claimant was given a light duty position consistent with his 
 
            restrictions after his injury.  Claimant was later "bumped" 
 
            from this position by another employee under the union 
 
            contract.  Since there was no other position fitting 
 
            claimant's restrictions, he was terminated.
 
            
 
            Held that although this was not a termination that would 
 
            increase an industrial disability award under McSpadden, 
 
            nevertheless claimant's unemployed status and loss of 
 
            earnings were the result of his injury and a proper factor 
 
            in assessing industrial disability.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            DONNA M. KOEHLER,             :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :         File No. 874140
 
            MORRISON, LLOYD AND MCCONNEL, :
 
                                          :           A P P E A L
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            IMT INSURANCE COMPANY,        :
 
                                          :
 
                 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 February 28, 1990, is affirmed and is adopted 
 
            as the final agency action in this matter, with the 
 
            following additional analysis:
 
            
 
                 The American Heritage Dictionary 301 (Second College 
 
            Edition 1985), defines "compel" as follows:  "1.  To force, 
 
            drive or constrain: . . . .  2.  To necessitate or pressure 
 
            by force; exact: . . . ."
 
            
 
                 The deputy in his analysis states that in another case, 
 
            other than McKeever, the supreme court might decide a 
 
            different event to be the injury date, that is, an event 
 
            other than the employee being compelled to leave work on 
 
            account of the injury.  It is not necessary to speculate as 
 
            to that in this matter, however.  The record is replete with 
 
            evidence demonstrating that claimant was compelled to leave 
 
            work on account of her carpal tunnel syndrome.
 
            
 
                 Claimant testified that she believed quitting work 
 
            would relieve her symptoms.  She testified that, after it 
 
            did not relieve her symptoms, she then felt it was necessary 
 
            to seek treatment (transcript, page 25).  Claimant testified 
 
            she retired on account of "various circumstances and 
 
            especially my carpal tunnel business, I guess I just decided 
 
            I better hang it up while I was still ahead maybe."  
 
            (Transcript, page 24)  In response to a question as to 
 
            whether the carpal tunnel syndrome disabled her from 
 
            continuing work, she stated:  "Being uncomfortable at work 
 
            I'm sure had quite a bearing on it."  (Transcript, page 26)  
 
            She expressed her concerns that her carpal tunnel syndrome 
 
            was becoming more and more disabling (transcript, page 27).  
 
            She also testified regarding her decision to retire.  "I had 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            been suffering through the carpal tunnel and I just thought 
 
            I'll just terminate.  Just terminate the problem."  
 
            (Transcript, page 33)
 
            
 
                 Hence, it is clear that claimant's carpal tunnel 
 
            syndrome was a substantial factor in her decision to quit 
 
            work.  That she and her spouse may have made other plans as 
 
            to retirement does not mitigate that fact.  The law does not 
 
            require than an employee reach such a state of abject 
 
            helplessness and disability as to be unable to function at 
 
            work or otherwise without radical medical intervention 
 
            before the individual employee may leave work on account of 
 
            pain related to the disabling condition.  Claimant's 
 
            decision to attempt to alleviate her symptomatology by 
 
            leaving the work place via retirement at age 60 was 
 
            reasonable.  It can properly be stated that she was 
 
            compelled to leave work on account of her injury on her 
 
            retirement date, that is, July 10, 1987.
 
            
 
                 Defendants shall pay the costs of the appeal, including 
 
            the preparation of the hearing transcript.
 
            
 
                 Signed and filed this ____ day of October, 1991.
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                                 BYRON K. ORTON
 
                                             INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Michael Motto
 
            Attorney at Law
 
            1000 First Bank Center
 
            201 West 2nd Street
 
            Davenport, Iowa  52801
 
            
 
            Mr. James Blomgren
 
            Attorney at Law
 
            P.O. Box 732
 
            Oskaloosa, Iowa  52577
 
            
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                           2209
 
                           Filed October 28, 1991
 
                           BYRON K. ORTON
 
                           WRM
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            DONNA M. KOEHLER,             :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :         File No. 874140
 
            MORRISON, LLOYD AND MCCONNEL, :
 
                                          :           A P P E A L
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            IMT INSURANCE COMPANY,        :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            2209
 
            Deputy affirmed.  McKeever does not require claimant's pain 
 
            to be so great as to produce abject helplessness or 
 
            disability before claimant may properly leave work on 
 
            account of cumulative injury.  Likewise, other factors may 
 
            enter into decision to leave work provided cumulative injury 
 
            was a substantial factor in the decision to leave.
 
            
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         DONNA M. KOEHLER,
 
         
 
              Claimant,
 
         
 
         VS.
 
         
 
         MORRISON, LLOYD AND MCCONNEL,                File No. 874140
 
         
 
                                                              A R B I T R 
 
         A T I 0 N
 
              Employer,
 
                                                    D E C I S I 0 N
 
         and
 
         
 
         IMT INSURANCE COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding in arbitration brought by Donna M. 
 
         Koehler, claimant; against Morrison, Lloyd and McConnel, 
 
         employer; and IMT Insurance Company, insurance carrier; 
 
         defendants.  A hearing was held in Ottumwa, Iowa, on February 22, 
 
         1990, and the case was fully submitted at the close of the 
 
         hearing. claimant was represented by Michael J. Motto.  
 
         Defendants were represented by James Q. Blomgren.  The record 
 
         consists of the testimony of Donna M. Koehler, claimant; and 
 
         claimant's exhibits 1 through 4.
 
         
 
                                   STIPULATIONS
 
         
 
              The parties stipulated to the following matters at the time 
 
         of the hearing:
 
         
 
              That an employee-employer relationship existed between 
 
         claimant and employer at the time of the alleged injury.
 
         
 
              That in the event it is determined that claimant sustained 
 
         an injury arising out of and in the course of her employment with 
 
         employer and that the injury is the cause@of permanent 
 
         disability, the parties have stipulated that claimant is entitled 
 
         to 30 weeks of permanent partial disability benefits for a 6 
 
         percent permanent partial impairment to the body as a whole based 
 
         upon a 3 percent permanent impairment of each upper extremity.
 
         
 
         
 
         
 
         KOEHLER VS. MORRISON, LLOYD AND MCCONNEL
 
         Page 2
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              The parties have further agreed that in the event of a 
 
         compensable injury that claimant sustained a simultaneous injury 
 
         to both upper extremities pursuant to Iowa Code section 
 
         85.34(2)(s).
 
         
 
              That the rate of compensation, in the event of an award, is 
 
         $158.80 per week.
 
         
 
              That the provider of medical services or supplies would 
 
         testify that the amounts charged are fair and reasonable and that 
 
         the expenses were incurred for reasonable and necessary medical 
 
         treatment.
 
         
 
              That the causal connection of the expenses to treatment for 
 
         a medical condition upon which claimant is now basing her claim 
 
         is admitted, but that the causal connection of this condition to 
 
         a work injury remains an issue to be decided in these 
 
         proceedings.
 
         
 
              That defendants make no claim for credit for benefits paid 
 
         prior to hearing under either an employee nonoccupational group 
 
         health plan or paid as workers' compensation benefits.
 
         
 
              That there are no bifurcated claims.
 
         
 
              That claimant makes no claim for temporary disability 
 
         benefits.
 
         
 
                                      ISSUES
 
         
 
              The parties submitted the following issues for determination 
 
         at the time of the hearing:
 
         
 
              Whether claimant sustained an injury on July 10, 1987, which 
 
         arose out of and in the course of her employment with employer.
 
         
 
              Whether the injury was the cause of permanent disability.
 
         
 
              Whether claimant is entitled to medical benefits, more 
 
         specifically, the charges of M.R. Mally, D.C., and 68 trips to 
 
         the doctor with a round trip distance of 150 miles.
 
         
 
                             SUMMARY OF THE EVIDENCE
 
         
 
              Claimant, born June 24, 1927, was 60 years old at the time 
 
         of the injury and 62 years old at the time of the hearing.  
 
         Claimant started to work for employer, a law firm, in November of 
 
         1972 and worked there for 15 years as a general legal secretary 
 
         until she resigned on July 10, 1987.  Her duties called for 
 
         greeting clients, typing, filing, and answering the telephone.  
 
         She described her primary duty as typing.  She worked full time
 
         
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         KOEHLER VS.  MORRISON, LLOYD AND MCCONNEL 
 
         Page 3
 
         
 
         
 
         for this employer five days a week and every other Saturday 
 
         during tax filing period.  Claimant denied any part-time 
 
         employments or outside employments of any other kind.  Initially 
 
         she used electric typewriters and selectric typewriters.  
 
         Beginning in 1981 or 1982 she began using IBM memory magnetic 
 
         cards.
 
         
 
              Claimant testified that she first had problems with numbness 
 
         and tingling in her hands in 1978.  She reported this to C.E. 
 
         Schrock, M.D., at the time of her annual physical examination.  
 
         This is confirmed by Dr. Schrock (exhibit 2, pages 1 & 5).  
 
         Claimant further testified that Dr. Schrock sent her to see Bruce 
 
         L. Sprague, M.D., an orthopedic surgeon specializing in hand 
 
         problems, in 1985.  This is also confirmed by Dr. Schrock (ex. 2, 
 
         pp. 1 & 7).  Dr. Sprague wrote to Dr. Schrock on February 6, 
 
         1985, that claimant noted numbness and tingling in both hands in 
 
         the median nerve distributions not only at night, but also during 
 
         the day.  He found a positive Tinel's sign on the right wrist, 
 
         but not on the left wrist.  Dr. Sprague said there are bilateral 
 
         positive Phalen's test.  Dr. Sprague concluded, "I feel that she 
 
         does have bilateral carpal tunnel syndromes, worse on the right 
 
         than the left, and I feel that she does have some cervical 
 
         spondylosis, as well, but at this time she does not appear to 
 
         have any cervical radiculopathies."  Dr. Sprague's final 
 
         observation was as follows, "I feel that she will eventually 
 
         require release of her transverse carpal ligaments sometime in 
 
         the future, and I feel, at this point, she can work it into her 
 
         schedule at her convenience."  Dr. Sprague did not comment on 
 
         causal connection or mention an impairment rating, but it does 
 
         not appear that he was asked to do either one of these things 
 
         (ex. 2, p. 7).
 
         
 
              Claimant testified that the attorney that she worked for, 
 
         Mr. James Lloyd, was well aware of her carpal tunnel condition.  
 
         Claimant testified that she discussed it with him and that he 
 
         tried to assist her with it by adjusting her typing stand.  He 
 
         took the castors off of the typing stand in order to lower the 
 
         typewriter level.  Claimant testified that he also assisted her 
 
         by adjusting her chair up and down.  Claimant testified that the 
 
         condition became progressively worse.  It was more noticeable 
 
         after typing.  She obtained relief by not typing and performing 
 
         other kinds of duties.  Claimant testified that this condition 
 
         affected the quality of her work in that she could not perform 
 
         the work as quickly as she had done before.
 
         
 
              Claimant related that she had planned to retire at age 62.  
 
         However, she decided to retire on July 10, 1987, shortly after 
 
         she became 60 years old, partly due to her carpal tunnel syndrome 
 
         and partly due to other circumstances.  Claimant believed that 
 
         quitting her job would relieve her symptoms, but it did not.  In 
 
         November of 1987, claimant elected to see Dr. Mally, a
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         KOEHLER VS. MORRISON, LLOYD AND MCCONNEL 
 
         Page 4
 
         
 
         
 
         chiropractor in Davenport.  Claimant testified that when she was 
 
         having trouble at work, Mr. Lloyd, the attorney for whom she 
 
         worked, recommended Dr. Mally to her.  Claimant also mentioned 
 
         the carpal tunnel syndrome to Dr. Schrock in November of 1987.  
 
         At the time of her physical examination on November 23, 1987, Dr. 
 
         Schrock commented, "Her carpal tunnel is being managed by a 
 
         chiropractor in the Davenport area and I told her to go ahead 
 
         with some B6 and see what this did."  (ex. 2, p. 8).  Dr. Schrock 
 
         further stated, "Prior to that, because [sic] of persistent 
 
         symptomatology, I had her seen by J.B. Worrell, M.D., a 
 
         neurologist who performed electromyography on her, a copy of that 
 
         report is also enclosed."  (ex. 2, p. 1).
 
         
 
              Dr. Worrell wrote a report dated February 9, 1987, in which 
 
         he concludes, "IMPRESSION: The study is quite compatible with a 
 
         rather severe bilateral carpal tunnel syndrome." (ex. 2, p. 3).
 
         
 
              Dr. Schrock also remarked that claimant had an endocrine 
 
         problem related to her thyroid gland and had been seen at the 
 
         university hospital for this (ex. 2, p. 1).  A university 
 
         hospital report dated July 20, 1987, shows that claimant suffered 
 
         from (1) Hashimoto's thyroiditis and (2) probable maxillary 
 
         sinusitis.  After she began medicating with Synthroid she 
 
         reported decreased fatigue, decreased constipation and no 
 
         noticeable skin changes (ex. 2, p. 4).
 
         
 
              Dr. Schrock stated that it is very difficult to make a 
 
         statement concerning the etiology of the carpal tunnel syndrome.  
 
         He related that he had received surgery on two occasions for 
 
         carpal tunnel syndrome, but he had performed very little manual 
 
         physical work in his life and had not been subject to any 
 
         postural stress in his work.  He said that it can occur with or 
 
         without any apparent aggravation by work.  He closed his letter 
 
         by reminding that surgery had been recommended for claimant's 
 
         carpal tunnel syndrome four years ago (ex. 2, p. 2).
 
         
 
              Claimant first saw Dr. Mally on November 20, 1987, for the 
 
         carpal tunnel syndrome.  He said that the initial onset from her 
 
         case history reveals an approximate 10 to 20 year pathogenesis 
 
         while she was employed as a secretary.  He added that she had no 
 
         prior pertinent history nor any of the major contributing risk 
 
         factors for carpal tunnel syndrome.  His treatment consisted of 
 
         manipulative decompression of the involved carpal canals with 
 
         physical therapy as a palliative adjunctive treatment for the 
 
         soft tissue edema and pain.  By July 21, 1989, the patient was 
 
         indicating only bilateral hand tingling at times occasionally.  
 
         Dr. Mally performed several nerve conduction studies.  These 
 
         disclosed weakness and impairment bilaterally on wrist flexion, 
 
         extension, ulnar deviation, and grip strength.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         KOEHLER VS. MORRISON, LLOYD AND MCCONNEL
 
         Page 5
 
         
 
         
 
              Dr. Mally indicated that the carpal tunnel syndrome was 
 
         caused by her work in these words, "In closing, I find the 
 
         patient's symptomatologies confirm subjectively and objectively 
 
         correlating a cumulative trauma disorder of the repetitional 
 
         strain form associated with clerical type occupational 
 
         requirements (VTD operation, typists, etc.)." (ex. 1, p. 2).
 
         
 
              Dr. Mally rated the injury as follows, "I hereby consider 
 
         the nature, extent, longevity, and duration of her 
 
         symptomatologies correlating to carpal tunnel syndrome and have 
 
         established to a reasonable degree of medical certainty 
 
         (chiropractic) that Donna M. Koehler maintain a 5% permanent 
 
         impairment rating to each hand." (ex. 1, pp. 2 & 3).
 
         
 
              Dr. Mally's bill shows 47 entries for treatments from 
 
         November 20, 1987 through June 3, 1988.  His total charges for 
 
         services during this period of time are $1,819.  Some additional 
 
         entries appear from June 10 through June 15, 1988, but these 
 
         entries are fragmentary and not complete (ex. 4, pp. 1-4).
 
         
 
              Claimant acknowledged that her husband, who was in the 
 
         insurance business, sold his business in January of 1986.  After 
 
         that he was still employed and went to work everyday, but was 
 
         free to take time off to travel or do other things which he 
 
         wished to do.  Claimant admitted that she never told her 
 
         employers that she was forced to retire.  Claimant acknowledged 
 
         that no physician told her to retire.  Claimant acknowledged that 
 
         the carpal tunnel syndrome was only one of the reasons for her 
 
         early retirement.  Another reason was because that she had 
 
         determined that it is later than you think.  Claimant 
 
         acknowledged that she had not received surgery for the carpal 
 
         tunnel syndrome.  Before she retired she did not feel that she 
 
         could take the time from work.  Also, she had heard from friends 
 
         that some of the surgery was not too successful.
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              An employee is entitled to compensation for any and all 
 
         personal injuries which arise out of and in the course of the 
 
         employment.  Section 85.3(l).
 
         
 
              Claimant has the burden of proving by a preponderance of the 
 
         evidence that she received an injury on July 10, 1987, which, 
 
         arose out of and in the course of her employment.  McDowell v. 
 
         Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. 
 
         Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
              The injury must both arise out of and be in the course of 
 
         the employment.  Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 
 
         402, 68 N.W.2d 63 (1955) and cases cited at pp. 405-406 of the 
 
         Iowa Report.  See also Sister Mary Benedict v. St. Mary's Corp.,
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         KOEHLER,VS. MORRISON, LLOYD AND MCCONNEL
 
         Page 6
 
         
 
         
 
         255 Iowa 847, 124 N.W.2d 548 (1963) and Hansen v. State of Iowa, 
 
         249 Iowa 1147, 91 N.W.2d 555 (1958).
 
         
 
              Claimant did sustain the burden of proof by a preponderance 
 
         of the evidence that she sustained an injury on July 10, 1987, 
 
         which arose out of and in the course of her employment with 
 
         employer.  She testified that she performed repetitive typing 
 
         work for employer for 15 years from November of 1972 until July 
 
         10, 1987.  Dr. Sprague diagnosed bilateral carpal tunnel syndrome 
 
         on February 6, 1985, and prognosticated at that time that surgery 
 
         would eventually be required (ex. 2, p. 7).  Dr. Sprague did not 
 
         comment on causal connection or give an impairment rating.  This 
 
         is not unusual because he merely performed a consultation for Dr. 
 
         Schrock.  It does not appear that he was asked for a statement on 
 
         causal connection or for an impairment rating (ex. 2, pp. 1 & 7).
 
         
 
              Dr. Worrell confirmed that claimant had rather severe 
 
         bilateral carpal tunnel syndrome on February 9, 1987.  Again he 
 
         appeared to serve only as a consultant for Dr. Schrock and only 
 
         performed an electromyelogram at Dr. Schrock's request.  It does 
 
         not appear that Dr. Schrock asked him to comment on causal 
 
         connection or to comment on an impairment rating (ex. 2, pp. 1 & 
 
         3).
 
         
 
              Dr. Schrock stated that the etiology of carpal tunnel 
 
         syndrome was unknown in his opinion.  He said that carpal tunnel 
 
         syndrome, " ... can occur with or without any apparent 
 
         aggravation by work." (ex. 2, p. 2).  Therefore, Dr. Schrock 
 
         acknowledges that it could be work related as well as not work 
 
         related.  Dr. Schrock apparently did not have an opinion on 
 
         whether claimant's carpal tunnel was work related, but 
 
         acknowledged that it could be aggravated by work.
 
         
 
              Dr. Mally was the only physician who gave a definitive 
 
         opinion on whether the carpal tunnel syndrome which claimant 
 
         sustained was or was not work related.  Dr. Mally said that 
 
         claimant's symptomatologies confirm subjectively and objectively 
 
         correlating a cumulative trauma disorder of the repetitional 
 
         strain form associated with clerical type requirements (ex. 1, p. 
 
         2).  Dr. Mally issued an impairment rating of 5 percent to each 
 
         hand.  This converts and combines to 6 percent of the body as a 
 
         whole.  Guides to the Evaluation of Permanent Impairment, third 
 
         edition.  The parties stipulated in the prehearing report that 
 
         claimant was entitled to 30 weeks of permanent partial disability 
 
         benefits.  From the foregoing it is concluded that claimant is 
 
         entitled to 30 weeks of permanent partial disability benefits.
 
         
 
              In a prehearing brief and also during argument at hearing, 
 
         defendants counsel contended that the case of McKeever Custom 
 
         Cabinets vs. Smith, 379 N.W.2d 368 (Iowa 1985) did not apply to 
 
         the instant case because claimant was not forced to leave her job
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         KOEHLER,VS. MORRISON, LLOYD AND MCCONNEL 
 
         Page 7
 
         
 
         
 
         due to the injury.  Therefore, there is no injury date under the 
 
         holding in McKeever and if there is no injury date, there can be 
 
         no injury.  Defendants argument is not considered to be correct.  
 
         In the McKeever case, the supreme court determined the injury 
 
         date to be the date that claimant was forced to leave work rather 
 
         than the date that claimant first sought medical treatment.  In 
 
         another case, the supreme court might decide a different event to 
 
         be the injury date.  In this case, the supreme court might well 
 
         determine the injury date to be the last date that claimant 
 
         worked for employer since that is the last possible date that 
 
         claimant was exposed to the repetitive use of her hands for work 
 
         for employer.  In any event, it is determined that in this case 
 
         the injury date is the last day of employment, July 10, 1987.
 
         
 
              Claimant is entitled to 30 weeks of permanent partial 
 
         disability benefits commencing on July 10, 1987.  The fact that 
 
         the impairment rating was not issued until a later date is not 
 
         significant.  The fact that claimant did not have a period of 
 
         temporary disability is not significant.  In conclusion, it is 
 
         determined that claimant sustained an injury on July 10, 1987, 
 
         which arose out of and in the course of employment with employer.  
 
         It is determined that the injury was the cause of permanent 
 
         disability.  It is determined that claimant is entitled to 30 
 
         weeks of permanent partial disability benefits.  Claimant is also 
 
         entitled to medical benefits.  Claimant is entitled to the 
 
         charges of Dr. Mally in the amount of $1,819 through June 3, 
 
         1988.  Claimant is not entitled to 68 trips from Washington, Iowa 
 
         to Davenport, Iowa because Dr. Mally's bill only reflects 47 
 
         treatments during this period of time.  Forty-seven trips from 
 
         Washington, Iowa to Davenport, Iowa and return at 150 miles per 
 
         trip is 7,050 miles times 21 cents per mile resulting in an 
 
         allowance of $1,480.50 in medical mileage to which claimant is 
 
         entitled.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              Wherefore, based upon the evidence presented, the following 
 
         findings of fact are made:
 
         
 
              That claimant was employed by employer for 15 years from 
 
         November of 1972 until she retired on July 10, 1987.
 
         
 
              That during that period of time, claimant performed general 
 
         secretarial work which primarily consisted of typing.
 
         
 
              That claimant testified that typing aggravated the numbness 
 
         and tingling in her hands and that performing other tasks 
 
         diminished the amount of numbness and tingling in her hands.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              That Dr. Sprague diagnosed bilateral carpal tunnel syndrome 
 
         in 1985.
 
         
 
         
 
         
 
         KOEHLER VS. MORRISON, LLOYD AND MCCONNEL
 
         Page 8
 
         
 
         
 
              That Dr. Worrell said that claimant had rather severe 
 
         bilateral carpal tunnel syndrome on February 9, 1987.
 
         
 
              That Dr. Sprague and Dr. Worrell did not comment on the 
 
         causal connection of work to the injury.
 
         
 
              That Dr. Schrock did not know the etiology of the carpal 
 
         tunnel syndrome, but acknowledged that it may or may not be 
 
         caused by claimant's work.
 
         
 
              That Dr. Mally stated that both subjectively and objectively 
 
         her symptoms correlated to a cumulative trauma disorder of the 
 
         repetitional strain form associated with the clerical 
 
         occupational type of work.
 
         
 
              That claimant testified that she worked full time for 
 
         employer and did not have any part-time or other outside 
 
         employment that would be responsible for her carpal tunnel 
 
         syndrome.
 
         
 
              That defendants did not assert that the carpal tunnel 
 
         syndrome was due to any cause other than claimant's employment.
 
         
 
              That Dr. Mally's report indicated that both the work caused 
 
         the injury and the injury caused the disability for which he gave 
 
         his impairment rating.
 
         
 
              That the parties stipulated that in the event of an award, 
 
         claimant is entitled to 30 weeks of workers' compensation 
 
         permanent partial disability benefits under Iowa Code section 
 
         85.34(2)(s).
 
         
 
              That the charges of Dr. Mally for 47 different office visits 
 
         total $1,819 on June 3, 1988.
 
         
 
              That claimant made 47 trips from Washington, Iowa to 
 
         Davenport, Iowa and return at 150 miles per trip.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              Wherefore, based on the evidence presented and the foregoing 
 
         principles of law, the following conclusions of law are made:
 
         
 
              That claimant did sustain an injury on July 10, 1987, which 
 
         arose out of and in the course of employment with employer.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              That the injury was the cause of permanent  impairment.
 
         
 
              That claimant is entitled to 30 weeks of permanent partial 
 
         disability benefits.
 
         
 
         
 
         
 
         KOEHLER VS. MORRISON, LlOYD AND MCCONNEL
 
         Page 9
 
         
 
         
 
              That claimant is entitled to recover $1,819 in medical 
 
         expenses for the bill of Dr. Mally and an additional $1,480.50 in 
 
         medical mileage for trips to see Dr. Mally.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              That defendants pay to claimant thirty (30) weeks of 
 
         permanent partial disability benefits at the rate of One Hundred 
 
         Fifty-eight and 80/100 Dollars ($158.80) per week in the total 
 
         amount of Four Thousand Seven Hundred Sixty-four Dollars ($4,764) 
 
         commencing on July 10, 1987.
 
         
 
              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 pay to claimant or the provider of medical 
 
         services One Thousand Eight Hundred Nineteen Dollars ($1,819) for 
 
         the charges of Dr. Mally.
 
         
 
              That defendants pay to claimant One Thousand Four Hundred 
 
         Eighty and 50/100 Dollars ($1,480.50) in medical mileage.
 
         
 
              That the costs of this action are charged to defendants 
 
         pursuant to Division of Industrial Services Rule 343-4.33.
 
         
 
              That defendants file claim activity reports as requested by 
 
         this agency pursuant to Division of Industrial Services Rule 
 
         343-3.1.
 
         
 
              Signed and filed this 28th day of February, 1990.
 
         
 
         
 
         
 
         
 
         
 
                                         WALTER R. McMANUS, JR.
 
                                         DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         Mr. Michael Motto
 
         Attorney at Law
 
         1000 First Bank Center
 
         201 W. 2nd St
 
         Davenport, Iowa 52801
 
         
 
         
 
         
 
         KOEHLER VS. MORRISON, LLOYD AND MCCONNEL
 
         Page 10
 
         
 
         
 
         
 
         
 
         Mr. James Blomgren
 
         Attorney at Law
 
         PO Box 732
 
         Oskaloosa, Iowa  52577
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                                         1106; 1108.50; 1401; 1402.20; 
 
                                         1402.30; 1402.40; 1402.60;       1403.10; 
 
                                         1403.20; 1403.30; 2209; 51803; 
 
                                         2501; 2602; 2700
 
                                         Filed February 28, 1990
 
                                         Walter R. McManus, Jr.
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
          DONNA M. KOEHLER,
 
         
 
               Claimant,
 
         
 
          VS.
 
         
 
         MORRISON, LLOYD AND MCCONNEL,                File No. 874140
 
         
 
              Employer,                             A R B I T R A T I O N
 
         
 
          and                                            D E C I S I O N
 
         
 
          IMT INSURANCE COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
         1106; 1108.50; 1401; 1402.20; 1402.30; 1402.40; 1402.60; 1403.10; 
 
         1403.20; 1403.30; 2209
 
         
 
              Claimant worked for 15 years as a legal secretary.  Her 
 
         primary duty was typing.  She exhibited carpal tunnel complaints 
 
         as early as 1978.  She was diagnosed as bilateral carpal tunnel 
 
         in 1985 and again in early 1987.  Typing aggravated it.  Not 
 
         typing alleviated it.  Claimant retired from the law firm on July 
 
         10, 1987, partially due to the carpal tunnel and partially due to 
 
         other reasons such as the quasi-retirement of her husband in 1986 
 
         and possibly due to other health problems such as a thyroid 
 
         condition.  She realized it is later than you think according to 
 
         her testimony.  She never lost any time from work for carpal 
 
         tunnel.
 
         
 
              She did not decide to be treated for it until after her 
 
         retirement in November of 1987 by a chiropractor.  She testified 
 
         the attorney she worked for was aware of it, discussed it with 
 
         her, and tried to do things to alleviate it.  He even recommended 
 
         the chiropractor.  She was never forced to quit work for this 
 
         condition.
 
         
 
              An orthopedic surgeon and a neurologist who diagnosed carpal 
 
         tunnel did not comment on causal connection or give an impairment 
 
         rating, but it does not appear that they were asked to do so.  
 
         Her personal physician did not know the etiology of it, but said 
 
         it could or could not be aggravated by work.  The chiropractor
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         KOEHLER VS.  MORRISON, LLOYD AND MCCONNEL 
 
         Page 2
 
         
 
         
 
         said that the pathogenesis was 10 to 20 years of secretarial work 
 
         and that subjectively and objectively the injury correlated to 
 
         her secretarial work.
 
         
 
              It was held that claimant sustained an injury arising out of 
 
         and in the course of employment with employer.  The fact that 
 
         claimant lost no time from work and was not forced to retire 
 
         because of the carpal tunnel was not considered to be 
 
         significant.  The date of injury was determined to be the last 
 
         day of employment for employer.  Defendants argued that since she 
 
         was not forced to leave work due to the symptoms (McKeever) that 
 
         she was deprived of an injury date.  Therefore, she could not 
 
         sustain an injury.  This argument was rejected.  Defendants 
 
         called no witnesses and presented no exhibits.
 
         
 
         51803
 
         
 
              Claimant awarded 30 weeks as stipulated to by the parties 
 
         based on the chiropractor's impairment rating for an injury under 
 
         Iowa Code section 85.34(2)(s).
 
         
 
         2501; 2602; 2700
 
         
 
              Claimant awarded $1,819 for the expenses of the chiropractor 
 
         and $1,450.80 in medical mileage to see the chiropractor.
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            DAVID EDWARD MADDISON,        :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :       File No. 874569
 
            HY-VEE FOOD STORES,           :
 
                                          :    A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            EMPLOYERS MUTUAL INSURANCE,   :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This is a proceeding in arbitration brought by 
 
            claimant, David Edward Maddison, against his employer, Hy-
 
            Vee Food Stores, and its insurance carrier, Employers Mutual 
 
            Insurance, as defendants.  Claimant sustained a work-related 
 
            injury which occurred on January 17, 1988.
 
            
 
                 The matter came on for hearing before the undersigned 
 
            deputy industrial commissioner on October 7, 1991, at 
 
            Ottumwa, Iowa.
 
            
 
                 The record in the case consists of the testimony from 
 
            the claimant and Bill Baynes, transportation manager for the 
 
            distribution center; and, joint exhibits 1 through 5.
 
            
 
                                      issues
 
            
 
                 Pursuant to the prehearing report submitted by the 
 
            parties, the following issues are presented for resolution:
 
            
 
                 1.  Whether claimant's work-related injury is a cause 
 
            of permanent disability and, if so, the extent of his 
 
            disability; and;
 
            
 
                 2.  Whether claimant was properly notified of the 
 
            termination of benefits, commonly referred to as an Auxier 
 
            notice.
 
            
 
                     
 
            
 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            findings of fact
 
            
 
                 The undersigned deputy, having reviewed all of the 
 
            evidence received, finds the following facts:
 
            
 
                 Claimant was born on December 5, 1962.  He is a high 
 
            school graduate, with additional training in driving a 
 
            tractor-trailer.  The training was provided by his employer, 
 
            Hy-Vee Food Stores.
 
            
 
                 While still in high school, claimant worked for the 
 
            Albia Super Valu grocery store, with job duties of running a 
 
            cash register; closing the store at night; stocking shelves; 
 
            and, sacking and carrying groceries.  Upon graduation from 
 
            high school, he worked for the grocery store on a full-time 
 
            basis, and then started work at a dairy farm.  He worked on 
 
            the farm for several years, and was offered a job running a 
 
            press for Monroe Plastics, in Georgetown, Illinois.  He 
 
            worked at this position for one year, moved back to Iowa and 
 
            began working for the Albia Super Value grocery store as a 
 
            produce manager.  As such, he was in charge of ordering all 
 
            produce merchandise.  He earned $6 per hour, and worked 40 
 
            hours per week.
 
            
 
                 In May of 1984, claimant began working for Hy-Vee Food 
 
            Stores, Inc.  He started his employment as an order selector 
 
            in the warehouse which was located in Chariton, Iowa.  He 
 
            earned $11 per hour.  After one year, he was put into the 
 
            freezer department, and worked as a frozen food selector.  
 
            In this position, he would be given a list of items, locate 
 
            these items in the freezer and put them in carts in order to 
 
            fill the order.  The orders were then shipped out to various 
 
            Hy-Vee Food Stores.  He earned a little more than $11 per 
 
            hour, and worked in this capacity for three years.
 
            
 
                 Claimant then returned to the produce area, and it is 
 
            in this department where claimant received a work-related 
 
            injury on January 17, 1988.  Claimant hurt himself while he 
 
            was lifting a bag of seed potatoes which weighed 100 pounds.  
 
            He was stacking the bag onto a pallet when he felt a sharp 
 
            pain in his back, and lost strength in his legs.
 
            
 
                 After several months of conservative medical treatment, 
 
            which included rest, prescription medications, epidural 
 
            injections and physical therapy, he was scheduled to undergo 
 
            a lumbar laminectomy on June 14, 1988 (Joint Exhibit 1, 
 
            pages 1-69).
 
            
 
                 Claimant was released to return to work with 
 
            restrictions of no lifting greater than 20 pounds on a 
 
            repetitive basis.  A functional capacity evaluation 
 
            performed in December 1988 showed that claimant could lift 
 
            up to 80 pounds, but two treating physicians recommended 
 
            claimant lift more than 20 pounds on a very intermittent 
 
            basis (Jt. Ex. 1, p. 20).
 
            
 
                 In June of 1989, claimant returned to work for Hy-Vee 
 
            as an order selector, and on June 28, 1990, bid into a truck 
 
            driver job, a position which he holds presently.  Currently, 
 
            claimant earns $13 per hour, and works 40 hours per week.  
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            Claimant testified that his average weekly gross earnings 
 
            were $600 per week.
 
            
 
                         ANALYSIS and conclusions of law
 
            
 
                 The first issue to be addressed is whether claimant has 
 
            sustained a permanent disability, and the extent of 
 
            claimant's disability.
 
            
 
                 Claimant is currently under restrictions of no lifting 
 
            of more than 20 pounds on a regular basis, and has been 
 
            evaluated as having a functional impairment of 10 percent to 
 
            the low back.  This rating was based upon physical 
 
            examinations with positive findings, and there is no 
 
            conflicting evidence which suggests claimant has not 
 
            sustained any type of permanent disability due to the work-
 
            related injury.  As a result, it is found that claimant is 
 
            entitled to permanent partial disability benefits.
 
            
 
                 The next issue to be addressed is the extent of 
 
            claimant's permanent disability.  As claimant has sustained 
 
            an injury to his low back, his industrial disability will be 
 
            evaluated in conjunction with the permanent disability 
 
            sustained as a result of the work-related injury.
 
            
 
                 Functional impairment is an element to be considered in 
 
            determining industrial disability which is the reduction of 
 
            earning capacity, but consideration must also be given to 
 
            the injured employee's age, education, qualifications, expe
 
            rience and inability to engage in employment for which he is 
 
            fitted.  Olson v. Goodyear Service Stores, 255 Iowa 1112, 
 
            125 N.W.2d 251 (1963).  Barton v. Nevada Poultry, 253 Iowa 
 
            285, 110 N.W.2d 660 (1961).
 
            
 
                 A finding of impairment to the body as a whole found by 
 
            a medical evaluator does not equate to industrial disabil
 
            ity.  This is so as impairment and disability are not syn
 
            onymous.  Degree of industrial disability can in fact be 
 
            much different than the degree of impairment because in the 
 
            first instance reference is to loss of earning capacity and 
 
            in the latter to anatomical or functional abnormality or 
 
            loss.  Although loss of function is to be considered and 
 
            disability can rarely be found without it, it is not so that 
 
            a degree of industrial disability is proportionally related 
 
            to a degree of impairment of bodily function.
 
            
 
                 Factors to be considered in determining industrial dis
 
            ability include the employee's medical condition prior to 
 
            the injury, immediately after the injury, and presently; the 
 
            situs of the injury, its severity and the length of healing 
 
            period; the work experience of the employee prior to the 
 
            injury, after the injury and potential for rehabilitation; 
 
            the employee's qualifications intellectually, emotionally 
 
            and physically; earnings prior and subsequent to the injury; 
 
            age; education; motivation; functional impairment as a 
 
            result of the injury; and inability because of the injury to 
 
            engage in employment for which the employee is fitted.  Loss 
 
            of earnings caused by a job transfer for reasons related to 
 
            the injury is also relevant.  These are matters which the 
 
            finder of fact considers collectively in arriving at the 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            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).
 
            
 
                 At the time of the injury, claimant was 25 years of 
 
            age.  He has been employed as a manual laborer for most, if 
 
            not all, of his adult life.
 
            
 
                 Claimant seemed motivated to return to work, and has 
 
            performed without problem his job as a truck driver.  
 
            Claimant did describe that on occasion, he must unload his 
 
            own truck and lift weights exceeding 80 pounds.  Claimant 
 
            described that after he performs these activities, his back 
 
            feels sore.
 
            
 
                 Claimant has a higher hourly rate of pay at his current 
 
            job than he had at the time of the injury.  He seems 
 
            physically capable of performing his work without 
 
            substantial problem, although he testified that trips to 
 
            Council Bluffs require physical work that aggravates his 
 
            symptoms.
 
            
 
                 Defendants provided evidence which indicates that 
 
            claimant is a valued employee.  Bill Baynes, claimant's 
 
            present foreman, indicated that claimant had been able to 
 
            successfully fulfill the job duties required of a truck 
 
            driver.  He stated that Hy Vee's need for qualified truck 
 
            drivers will continue into the future.
 
            
 
                 Claimant has sustained a serious injury to his back, 
 
            and received relatively severe restrictions with respect to 
 
            his activities.  Specifically, claimant is to avoid lifting 
 
            more than 30 pounds.  He is to avoid repetitive lifting and 
 
            bending as a major job function, which precludes him from 
 
            seeking an order selector position with Hy-Vee.  However, 
 
            claimant has secured employment with Hy-Vee as a truck 
 
            driver which provides him with greater actual earnings than 
 
            at the time of his accident.  Some of claimant's job duties 
 
            are outside of his restrictions as previously noted and, 
 
            claimant is unable to return to the position he held at the 
 
            time of the injury.
 
            
 
                 Claimant has received a functional impairment rating of 
 
            10 percent permanent partial disability (Jt. Ex. 1, p. 12).
 
            
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
                 After considering all the factors that comprise an 
 
            industrial disability, it is found that claimant has a loss 
 
            of earning capacity of 15 percent.
 
            
 
                 The last issue to be addressed is whether the Auxier 
 
            notice, a device used to inform claimants that their 
 
            benefits will be ending is adequate.
 
            
 
                 Although the notice in question failed to inform 
 
            claimant as to why his benefits were being terminated, the 
 
            notice did give claimant more than the required 30 days 
 
            notice that said benefits were ending.  It also advised 
 
            claimant that he had a right to seek additional benefits 
 
            either by working with the insurance company, or filing a 
 
            petition in front of the industrial commissioner.  As a 
 
            result, it is found that claimant was provided sufficient 
 
            notice of termination of benefits and his recourse.  
 
            Claimant will not be awarded penalty benefits in this case.
 
            
 
                                      order
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 That claimant has sustained a fifteen percent (15%) 
 
            industrial disability.
 
            
 
                 That defendants shall pay unto claimant permanent 
 
            partial disability benefits for ninety-five (95) weeks at 
 
            the rate of two hundred eighty-one and 17/100 dollars 
 
            ($281.17) per week beginning June 28, 1989.
 
            
 
                 That defendants shall pay accrued amounts in a lump sum 
 
            and shall receive credit against the award for weekly 
 
            benefits previously paid.
 
            
 
                 That defendants shall pay interest on benefits awarded 
 
            herein as set forth in Iowa Code section 85.30.
 
            
 
                 That defendants shall pay the costs of this proceeding, 
 
            pursuant to rule 343 IAC 4.33.
 
            
 
                 That defendants shall file claim activity reports as 
 
            required by the agency pursuant to rule 343 IAC 3.1(2).
 
            
 
     
 
            
 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            Signed and filed this ____ day of November, 1991.
 
            
 
            
 
            
 
                                          
 
            ________________________________
 
                                          PATRICIA J. LANTZ
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr H Edwin Detlie
 
            Attorney at Law
 
            114 N Market St
 
            Ottumwa IA 52501
 
            
 
            Mr E J Kelly
 
            Attorney at Law
 
            Terrace Ctr  Ste 111
 
            2700 Grand Ave
 
            Des Moines IA 50312
 
            
 
            
 
                 
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                      5-1803
 
                      Filed: November 14, 1991
 
                      Patricia J. Lantz
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            DAVID EDWARD MADDISON,        :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :       File No. 874569
 
            HY-VEE FOOD STORES,           :
 
                                          :    A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            EMPLOYERS MUTUAL INSURANCE,   :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            5-1803
 
            Claimant injured his low back while lifting 100 pound sacks 
 
            of potatoes.  He was employed as an order selector for a 
 
            grocery store warehouse.
 
            After a laminectomy, claimant was restricted to no lifting 
 
            of more than 30 pounds.  He successfully bid into a truck 
 
            driving position with the employer, a job he continues to 
 
            hold.  However, the job periodically requires him to lift 
 
            more than 30 pounds.
 
            He was given a 10% functional impairment rating.
 
            Claimant was awarded 15% industrial disability.