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                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            CHARLES GARY,                 :
 
                                          :
 
                 Claimant,                :      File No. 875599
 
                                          :
 
            vs.                           :
 
                                          :    A R B I T R A T I O N
 
            PARKER-HANNIFAN,              :
 
                                          :       D E C I S I O N
 
                 Employer,                :
 
                 Self-Insured,            :
 
                 Defendant.               :
 
                                          :
 
            ___________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding in arbitration brought by Charles 
 
            Gary, claimant, against Parker Hannifan, self-insured 
 
            employer, to recover benefits under the Iowa Workers' 
 
            Compensation Act as a result of an injury sustained on May 
 
            9, 1986.  This matter came on for hearing before the 
 
            undersigned deputy industrial commissioner, Jean Ingrassia.  
 
            The record was considered fully submitted at the close of 
 
            the hearing.
 
            
 
                 The record in this case consists of the testimony of 
 
            Charles Raymond Gary, Carol Jonelle Gary, Mark A. Gary, 
 
            Matthew Ray Gary, Cleo Gary, Bob Woods, Robert Kinser, Gary 
 
            Ralph Goodmote, Chris Bullington and Karen A. Stricklett.  
 
            The record also consists of parties joint exhibits 1-83 and 
 
            A1-A6.
 
            
 
                 Pursuant to the prehearing report and order submitted 
 
            and approved on November 29, 1990, the parties stipulated 
 
            that an employer-employee relationship existed between 
 
            claimant and employer at the time of the alleged injury.
 
            
 
                                      issues
 
            
 
                 The issues for resolution include:
 
            
 
                 1.  Whether claimant sustained an injury on May 9, 
 
            1988, which arose out of and in the course of his employment 
 
            with employer;
 
            
 
                 2.  Whether there exists a causal relationship between 
 
            the injury and the resulting disability;
 
            
 
                 3.  The nature and extent of claimant's disability, if 
 
            any; and,
 
            
 
                 4.  Whether claimant is entitled to medical benefits 
 
            under Iowa Code section 85.27.
 
            
 
                                 FINDINGS OF FACT
 
            
 

 
            
 
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                 After carefully considering the testimony given at the 
 
            hearing, the arguments made and the list of exhibits 
 
            contained herein, the undersigned makes the following 
 
            findings:
 
            
 
                 Claimant was born on February 3, 1941 and graduated 
 
            from high school in 1959.  He completed thirty hours of 
 
            heating and air conditioning course work through 
 
            Southwestern Community College and about thirty hours of 
 
            welding classes and twenty-five hours of sheet metal courses 
 
            through the same college.  He worked at various times as a 
 
            display clerk, router at Beech Aircraft, and production and 
 
            machine operator and quality control manager at Douglas & 
 
            Lomason.  In 1974, he accepted employment at Parker-Hannifan 
 
            as a maintenance mechanic and worked there for thirteen 
 
            years until he quit on May 1, 1988.  His employment at 
 
            Parker-Hannifan was interrupted for a period of time from 
 
            January 21, 1983 through September 6, 1983, during which 
 
            time claimant underwent an alcohol treatment program.  
 
            Claimant has not worked since leaving Parker-Hannifan.  He 
 
            receives long-term disability benefits totaling $1,248 per 
 
            month from the company.
 
            
 
                 The pertinent medical evidence reveals that claimant 
 
            had an insidious onset of muscle twitching and occasional 
 
            jerking in 1986 which gradually evolved into oral mandibular 
 
            (lower jaw bone) dystonia (disordered tonicity of muscle).  
 
            On May 26, 1987, the claimant was examined by Michael P. 
 
            McDermott, D.D.S., for evaluation of acute facial pain and 
 
            inability to close his mouth correctly.  On June 11, 1987, 
 
            bilateral arthrograms of the joints suggested degenerative 
 
            processes in the joints.  Arthroscopic surgery on both right 
 
            and left tempromandibular joints confirmed bilateral 
 
            interarticular disease.  Dr. McDermott concluded that this 
 
            is most commonly found with early degenerative joint changes 
 
            or early arthritic changes (Joint Exhibits 58-62).
 
            
 
                 In August 1987, claimant went to the Mayo Clinic and 
 
            was evaluated by dentists and oral surgeons who referred him 
 
            for psychiatric evaluation which he declined (Jt. Ex. 44).  
 
            He had been seen by four psychiatrists previously and they 
 
            were of the opinion that there is no psychological or 
 
            emotional background to his problems.  He was then seen by 
 
            an oral surgeon in Wichita, Kansas, who suggested that his 
 
            teeth be wired.  This was performed on February 12, 1988, 
 
            but a week later some of the wires broke off and his teeth 
 
            were rewired in Council Bluffs, Iowa, on February 19, 1988.  
 
            However, two days later the wires broke again and he was 
 
            referred to the University of Nebraska Medical Center where 
 
            the wires were cut in March 1988.  On April 10, 1988, he was 
 
            seen by A. S. Lorenzo, M.D., at Jennie Edmundson Memorial 
 
            Hospital in Council Bluffs, Iowa, for a neurological 
 
            evaluation.  Dr. Lorenzo reported that "the family history 
 
            of the patient reveals that his father may have Parkinson's 
 
            disease, characterized primarily by tremor over 20 years." 
 
            (Jt. Ex. 54)  Dr. Lorenzo diagnosed focal, lateral pterygoid 
 
            muscle dystonia with secondary contracture of the platysma 
 
            and sternocleidomastoid muscles and neck flexors.  Dr. 
 
            Lorenzo did not treat claimant with any medication but 
 
            referred him to Ronald F. Pfeiffer, M.D., neurologist, at 
 

 
            
 
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            the University of Nebraska Movement Disorder Clinic, for a 
 
            second opinion.  Claimant was initially evaluated on May 4, 
 
            1988.  He presented with complaints of involuntary opening 
 
            of his mouth and a two month history of forgetfulness, 
 
            bifrontal headaches and neck pain.  He related that he 
 
            smoked a pack and a half of cigarettes per day for the past 
 
            twenty-two years and admitted that he was an alcoholic but 
 
            stated that he quit drinking about five years ago.  As to 
 
            his family history, he reported that his father died at age 
 
            65 of a heart attack and suffered from diabetes myelitis and 
 
            Parkinson's Disease.  He denied muscle weakness or 
 
            paresthesias in the upper or lower extremities but stated 
 
            that he feels jittery all the time.  He also reported a 40 
 
            pound weight loss over the past year and extreme fatigue.  
 
            On examination, Dr. Pfeiffer reported that muscle strength 
 
            and tone were within normal limits in both upper and lower 
 
            extremities, deep tendon reflexes were brisk and symmetrical 
 
            in the range of 2+/5 and Babinski signs were negative 
 
            bilaterally.  A sensory examination was within normal limits 
 
            in both upper and lower extremities, cerebellar function was 
 
            normal, gait was brisk and he was able to walk on his tip 
 
            toes, heels and perform tandem walking without difficulty.  
 
            Dr. Pfeiffer diagnosed mandibular dystonia and initiated 
 
            baclofen therapy (Jt. Ex. 27(g)).
 
            
 
                 Claimant was then referred by his attorney to Carol A. 
 
            Angle, M.D., a board-certified pediatrician and professor at 
 
            the University of Nebraska/Creighton University since 1954.  
 
            In addition, Dr. Angle has board certification from the 
 
            American Academy of Clinical Toxicology.  She initially saw 
 
            the claimant on May 6, 1988, and her preliminary impression 
 
            included: (1) focal, oro-mandibular dystonia (Meige's 
 
            syndrome); (2) generalized muscle weakness, in coordination 
 
            and fasciculation, a probable component of Meige's syndrome; 
 
            (3) complaints of memory loss and cognitive dysfunction, 
 
            possibly due to anxiety but also associated with Meige's 
 
            syndrome; and (4) two years of increased exposure to 
 
            tolueneisocyanates methyl isobutylketone and other solvents 
 
            in the rubber softening area (Jt. Ex. 53).
 
            
 
                 Dr. Angle deferred diagnosis until she reviewed the 
 
            material safety data sheets from Parker-Hannifan and other 
 
            medical evidence pertinent to claimant's treatment.  In the 
 
            meantime, claimant continued in treatment with Dr. Pfeiffer 
 
            and Artane and Baclofen therapy was discontinued after 
 
            claimant reported significant side effects including visual 
 
            hallucinations and blurred vision.  Dr. Pfeiffer referred 
 
            claimant to Timothy B. Jeffrey, Ph.D., psychologist, for a 
 
            neuropsychological evaluation of cognitive and memory 
 
            problems.  This was conducted on June 3, 1988 and the 
 
            results yielded a diagnostic impression of "Adjustment 
 
            Disorder with Mixed Emotional Features secondary to 
 
            mandibular dystonia."  Dr. Jeffrey stated that the 
 
            evaluation suggested that Mr. Gary has had problems with 
 
            management of depression and anxiety prior to his 
 
            difficulties with mandibula dysfunction and at the present 
 
            time has mild difficulties with attention and concentration 
 
            and short-term memory tasks (Jt. Ex. 41).
 

 
            
 
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                 Dr. Pfeiffer referred claimant to Joseph Jankovic, 
 
            M.D., professor of neurology at Baylor College of Medicine 
 
            and Movement Disorder Expert, for therapy.  Dr. Jankovic 
 
            hospitalized claimant on July 29, 1988, and administered 
 
            botulinum toxin injections of 50 units into each 
 
            genioglossus muscle.  During the course of his hospital stay 
 
            he began to notice gradual improvement in his jaw movements 
 
            although he continued to have considerable difficulty with 
 
            chewing and swallowing of food.  He was discharged on August 
 
            1, 1988 without any medications (Jt. Ex. 30).  On November 
 
            2, 1988, Dr. Jankovic reported to defendants' attorney as 
 
            follows:
 
            
 
                 After reviewing Mr. Gary's medical records and the 
 
                 information you have provided me, I would have to 
 
                 conclude that there is no evidence that his 
 
                 neurologic problems, chiefly oromandibular 
 
                 dystonia and essential tremor, are in any way 
 
                 related to occupational exposure.  The two 
 
                 conditions, dystonia and essential tremor, are 
 
                 often linked, and the latter condition is often 
 
                 improved with alcohol.  This is one of the reasons 
 
                 why patients with essential tremor often abuse 
 
                 alcohol and become alcoholics.  It is not clear 
 
                 whether his nicotine habit has played any role in 
 
                 his condition.
 
            
 
            (Jt. Ex. A.1)
 
            
 
                 After Dr. Angle had an opportunity to review the 
 
            evidence compiled thus far, she concluded that claimant had 
 
            been exposed to five polypropylene chemicals, ten solvents 
 
            and three miscellaneous compounds during the course of his 
 
            employment with Parker-Hannifan and concluded that 
 
            claimant's symptoms of muscle weakness, tremor, 
 
            incoordination and cognitive dysfunction relate to thirteen 
 
            years of recurrent, symptomatic, solvent exposure (Jt. Ex. 
 
            76; Deposition pp. 20-21).
 
            
 
                 Claimant was then referred by his employer to Peter G. 
 
            Bernad, M.D., a board-certified neurologist and internist, 
 
            and professor in the department of neurology at George 
 
            Washington University Medical School.  Dr. Bernad testified 
 
            in a deposition dated March 5, 1990, that in the last five 
 
            years he also developed a subspecialty pertaining to 
 
            neurotoxicological problems.  His practice consists 
 
            primarily of treating, evaluating and diagnosing patients 
 
            with movement disorder problems.  Dr. Bernad initially 
 
            evaluated claimant on April 29, 1989.  In his report, Dr. 
 
            Bernad stated, "the patient's primarily neurologic 
 
            symptomatology and problems are related to oral mandibular 
 
            dystonia with the secondary neck flexion and muscle 
 
            involvement.  The patient is also troubled somewhat by his 
 
            tremor that he has had which has been lifelong."  (Jt. Ex. 
 
            26(d))  During the course of this evaluation, Mr. Gary 
 
            related a 20 year history of alcohol abuse and frequent 
 
            blackouts.  He related symptoms, including cramps, switching 
 

 
            
 
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            and weakness, tremors, incoordination, unsteadiness of 
 
            hands, weight loss, fatigue, difficulty sleeping, 
 
            irritability, memory problems, depression and shaking.  A 
 
            comprehensive neurological examination was conducted and Dr. 
 
            Bernad reported, "It is quite clear as I watch him that his 
 
            oral mandibular dystonia is more extensive then [sic] just 
 
            involving the mouth or the mandibles and actually extends 
 
            into the neck area and the shoulder area, and he seems to 
 
            jerk forward which is striking, and may not be under 
 
            voluntary control."  (Jt. Ex. 26(i).
 
            
 
                 As to claimant's history of complaints, Dr. Bernad 
 
            testified that:
 
            
 
                    My understanding of the onset of the 
 
                 neurological problems is that this has been 
 
                 virtually life long.  Of course I consider the 
 
                 tremor and the tremor that he's had is probably 
 
                 something that occurred either in his teens or at 
 
                 least was identified in the teens, or in the 20s; 
 
                 and that the oral mandibular dystonia probably was 
 
                 present for at least 20, 30 years, as well, to 
 
                 some extent.
 
            
 
            (Dr. Bernad Dep., p. 25)
 
            
 
                 Dr. Bernad felt that claimant's symptoms could be the 
 
            result of his history of excessive alcohol ingestion.  He 
 
            described alcohol as a very potent neurotoxicant chemical 
 
            substance which causes damage to virtually every aspect of 
 
            the central and peripheral nervous system.  It causes brain 
 
            atrophy, degeneration of the brain stem and certain cells, 
 
            vision problems, seizure, blackouts, fallouts, nerve and 
 
            muscle damage, and weakness.  It also causes damage to the 
 
            liver, endocrine organs, pancreas, and heart.  Since it 
 
            affects the central nervous system, it can also affect 
 
            thinking and memory.
 
            
 
                 Dr. Bernad also testified that it is significant that 
 
            claimant's father had a history of movement disorder because 
 
            the dystonias and the general movement disorder family, have 
 
            a familial tendency.  It was his opinion that claimant has a 
 
            neurodegenerative disorder and stated that in his opinion, 
 
            "it would be very far-fetched to try to blame this on 
 
            something in his environment at work." (Dr. Bernad Dep, p. 
 
            50)
 
            
 
                 Dr. Bernad vigorously disagreed with Dr. Angle's 
 
            impression of generalized muscle weakness and incoordination 
 
            and her conclusion that claimant's symptoms are related to 
 
            chronic industrial exposures.  He stated that she presented 
 
            no data, such as the nature of the exposure, duration, the 
 
            specific type of chemical, to support her conclusions.  Dr. 
 
            Bernad stated that there is no scientific basis to justify 
 
            her conclusions that somehow, some chemicals at the plant 
 
            caused to be exacerbated the Meige's syndrome or the oral 
 
            mandibular dystonia.
 
            
 
                 In order to clarify some of the discrepancies between 
 
            Dr. Bernad's deposition taken March 5, 1990 and the medical 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            reports and opinions of Dr. Angle, claimant's attorney 
 
            referred him to Carl W. Ludvigsen, Jr., M.D.  Dr. Ludvigsen 
 
            interviewed claimant on June 4, 1990, and reported, in part, 
 
            "that chronic and recurrent solvent exposure can accelerate 
 
            or increase the severity of degenerative neurologic disease.  
 
            The fact that other causes of the focal dystonia have, in 
 
            fact, been ruled out by multiple laboratory studies which 
 
            did not find a cause or focal dystonia make the association 
 
            even more appealing." (Jt. Ex. 2(a)(b))
 
            
 
                 Dr. Bernad saw claimant for follow-up evaluation on 
 
            September 6, 1990, and personally visited the 
 
            Parker-Hannifan plant, visited claimant's work area, talked 
 
            to co-workers and plant managers.  He reported on October 3, 
 
            1990, that:
 
            
 
                    In terms of the exposure, the possibility that 
 
                 rubber compounds as outlined by Dr. Angle, may 
 
                 have exacerbated focal dystonia is a 
 
                 non-scientific statement without any basis.  As 
 
                 far as I can tell by reviewing the literature 
 
                 there is no evidence that is accepted by a 
 
                 majority of scientists and physicians that would 
 
                 claim that rubber compounds either cause, 
 
                 exacerbate, or in any way are related to Meige 
 
                 syndrome or any other form of segmental dystonia.
 
            
 
            (Jt. Ex. 4)
 
            
 
                 Dr. Bernad further indicated that at most, claimant's 
 
            total exposure to Toluene and Toluene Isocyanates is more in 
 
            terms of hours (to possibly days of exposure in an entire 
 
            period of years) as opposed to two years.  He indicated that 
 
            Dr. Angle is mistaken as to her assumptions regarding the 
 
            total exposure that the claimant allegedly had to various 
 
            chemicals and her theory that Meige's syndrome is caused by 
 
            exposure to solvents or rubber products is not a theory that 
 
            is in mainstream of neurology or neuroscientific thinking 
 
            (Ex. 4(c)).  Dr. Bernad concluded that claimant has a form 
 
            of dystonia which is treatable and a benign essential tremor 
 
            without any significant weakness or cognitive dysfunction.  
 
            It was his opinion that Mr. Gary is rehabilitable (Jt. Ex. 
 
            4(d)).
 
            
 
                                conclusions of law
 
            
 
                 The first issue to be determined is whether claimant 
 
            received an injury on May 9, 1988, which arose out of and in 
 
            the course of his employment with Parker-Hanifan.
 
            
 
                 Claimant has the burden of proving by a preponderance 
 
            of the evidence that he received an injury on May 9, 1988, 
 
            which arose out of and in the course of his employment. 
 
            McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa 
 
            1976); Musselman v. Central Telephone Co., 261 Iowa 352, 154 
 
            N.W.2d 128 (1967). 
 
            
 
                 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(1).
 

 
            
 
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                 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., 255 Iowa 847, 124 N.W.2d 548 (l963) and Hansen 
 
            v. State of Iowa, 249 Iowa 1147, 91 N.W.2d 555 (1958).
 
            
 
                 The words "out of" refer to the cause or source of the 
 
            injury.  Crowe, 246 Iowa 402, 68 N.W.2d 63.
 
            
 
                 The words "in the course of" refer to the time and 
 
            place and circumstances of the injury.  McClure v. Union 
 
            et al. Counties, 188 N.W.2d 283 (Iowa 1971); Crowe, 246 Iowa 
 
            402, 68 N.W.2d 63.
 
            
 
                 "An injury occurs in the course of the employment when 
 
            it is within the period of employment at a place the 
 
            employee may reasonably be, and while he is doing his work 
 
            or something incidental to it."  Cedar Rapids Comm. Sch. 
 
            Dist. v. Cady, 278 N.W.2d 298 (Iowa 1979), McClure, 188 
 
            N.W.2d 283.  Musselman, 261 Iowa 352, 154 N.W.2d 128.
 
            
 
                 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 
 
                 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.
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            
 
                 Claimant contends that his symptoms of headache, 
 
            dizziness, imbalance, nausea, staggering and memory loss are 
 
            attributable to thirteen years exposure to chemical and 
 
            solvents during the course of his employment at 
 
            Parker-Hannifan.  He testified that while working as a 
 
            braider area mechanic, he was responsible for regular 
 
            maintenance on the braider decks.  He testified that he 
 
            would typically mix Deosene and chlorine to clean machine 
 
            parts.  He testified it would take between 45 minutes to one 
 
            hour to spray down a braider deck with these chemicals and 
 
            when he hooked them up to a 90 pound air pressure pump to 
 
            spray the machine, the residue would saturate his clothes.  
 
            He also testified that he used Safety-Kleen and Deosene to 
 
            clean rotors for braiders in the carrier room.  He stated 
 
            that he never wore protective clothing and the exhaust fan 
 
            in the braider area was defective.  He indicated that it 
 
            took 15 gallons of mixture to spray one braider deck and 
 
            that he needed to fill the cannister at least five times.  
 
            He repeatedly insisted that the plant provided no safety 
 
            equipment.
 
            
 
                 Claimant's recitations regarding the particulars of his 
 
            job, the nature and extent of his exposure to chemicals and 
 
            solvents and the efficiency of the plant's safety 
 
            mechanisms, appear exaggerated and contrary to first-hand 
 
            knowledge and experience of long-term co-workers, 
 
            supervisors and management personnel.  There are numerous 
 
            inconsistencies and contradictions in the evidence including 
 
            claimant's testimonial denial that his father had a history 
 
            of Parkinson's disease.  He presented his mother's testimony 
 
            to corroborate the absence of a family history of tremors 
 
            but her lack of knowledge of claimant's 20 year history of 
 
            alcohol abuse undermines the reliability of her testimony.  
 
            Furthermore, prior to instituting litigation in this matter, 
 
            claimant freely related to Drs. Lorenzo (Jt. Ex. 54), 
 
            Jankovic (Jt. Ex. 33), and Bernad (Jt. Ex. 77) that his 
 
            father had tremors.  It is disturbing to the undersigned 
 
            that, at the hearing, claimant vigorously denied relating 
 
            this family history to three physicians.
 
            
 
                 Claimant's testimony regarding the performance of his 
 
            job duties and the environmental factors surrounding his job 
 
            station, is convincingly controverted by the deposition 
 
            testimony of Wesley Johnson, Elmer Jenkins and Bruce 
 
            Doolittle, as well as the hearing testimony of Bob Woods, 
 
            Robert Kinser, Gary Goodmote and Chris Bullington.  
 
            Specifically, Mr. Goodmote, a 17 year employee, with 11 
 
            years of experience on the braider deck, testified that, at 
 
            most, a three and one-half gallon, and not a 15 gallon 
 
            cannister, was filled with 100 percent Deosene rather than 
 
            50 percent Deosene and 50 percent Chlorothane to wash the 
 
            braider deck.  Furthermore, he testified that the air 
 
            pressure in the braider area was 60 pounds and not 90 
 
            pounds.  He testified, and his testimony was corroborated by 
 
            other employees, that he was never drenching wet after 
 
            spraying down a braider deck.  This procedure was performed 
 
            on the average of once every two weeks.  Evidence was 
 
            presented showing that safety is a high priority at the 
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            plant and safety equipment such as shoes, glasses, tools, 
 
            rain suits, etc., is available to every employee.  Showers 
 
            are also available and used at the discretion of the braider 
 
            operators.  Mr. Gary chose not to shower before he left the 
 
            work site.  Dr. Bernad personally visited the work area and 
 
            assisted cleaning the inside of the braider deck.  After 
 
            completing the task, he noticed three small spots on his 
 
            suit from the Deosene.  He interviewed other workers and 
 
            discovered that no one ever gets drenched while cleaning 
 
            braider decks.  Dr. Bernad also found excellent ventilation 
 
            and good air supply throughout the plant and that claimant's 
 
            testimony regarding exposure to various chemicals appears 
 
            exaggerated.
 
            
 
                 To support his contentions that his symptoms are due to 
 
            excessive exposure to chemicals at work, claimant relies on 
 
            incorrect assumptions postulated by Dr. Angle.   Dr. Angle 
 
            admitted in her deposition that she has performed no 
 
            research pertaining to industrial solvents; never treated or 
 
            diagnosed a patient with focal dystonia; never visited the 
 
            Parker Hannifan work facility; and relied primarily on 
 
            claimant's report of events to make her assumptions about 
 
            the nature and extent of his exposure to cleaning solvents.  
 
            She testified that she was not treating claimant nor 
 
            providing him with any medication or direction as to his 
 
            clinical treatment.  In summary, she testified that "All my 
 
            opinion is based on what Mr. Gary told me concerning his 
 
            exposure." (Jt. Ex. 76, p. 87)
 
            
 
                 Claimant bears the burden of proof in this case.  After 
 
            carefully reviewing the record as a whole, the undersigned 
 
            finds that claimant has not established by a preponderance 
 
            of the evidence that his symptoms of headaches, dizziness, 
 
            tremors, imbalance and memory problems are the result of 
 
            thirteen years of exposure to chemicals and solvents during 
 
            the course of his employment at Parker Hannifan.
 
            
 
                 The words "arising out of" refer to the course or 
 
            source of the injury.  McClure v. Union, et al., Counties, 
 
            188 N.W.2d 283 (Iowa 1971).  This requirement is satisfied 
 
            by showing a causal relationship between the employment and 
 
            the injury.  Sheerin v. Holin Co., 380 N.W.2d 415 (Iowa 
 
            1986).
 
            
 
                 After carefully reviewing all of the testimony and 
 
            medical evidence contained in the record, the undersigned 
 
            concludes that claimant has not met his burden of proof.  
 
            Claimant's testimony is clearly rebutted by the testimony of 
 
            co-workers and supervisors.  While it is true that claimant 
 
            has tremors, he has not demonstrated that such are the 
 
            result of exposure to chemicals and solvents at work.  
 
            Claimant's symptoms may be the result of a long history of 
 
            alcohol abuse or a familial predisposition to neurological 
 
            problems.  While it is possible that claimant's work 
 
            activities may have caused his injury, claimant must prove 
 
            not merely a possibility but a probability.  On this record, 
 
            it cannot be said that this burden has been met.
 
            
 
                 Accordingly, other issues are moot.
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
            
 
                                      order
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 That claimant shall take nothing from this proceeding.
 
            
 
                 That both parties shall divide the costs equally, 
 
            pursuant to rule 343 IAC 4.33.
 
            
 
                 Signed and filed this ____ day of February, 1991.
 
            
 
            
 
            
 
                                          ______________________________
 
                                          JEAN M. INGRASSIA
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies to:
 
            
 
            Mr Sheldon M Gallner
 
            Attorney at Law
 
            803 3rd Ave
 
            P O Box 1588
 
            Council Bluffs IA 51502
 
            
 
            Ms Dorothy L Kelley
 
            Attorney at Law
 
            500 Liberty Bldg
 
            Des Moines IA 50309
 
            
 
            
 
                 
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                      1108.30; 2205
 
                      Filed February 19, 1991
 
                      Jean M. Ingrassia
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            CHARLES GARY,  :
 
                      :
 
                 Claimant, :      File No. 875599
 
                      :
 
            vs.       :
 
                      :    A R B I T R A T I O N
 
            PARKER-HANNIFAN,    :
 
                      :       D E C I S I O N
 
                 Employer, :
 
                 Self-Insured,  :
 
                 Defendant.     :
 
                      :
 
            ___________________________________________________________
 
            
 
            1108.30; 2205
 
            Claimant has not shown by a preponderance of the evidence 
 
            that his neurological disorder arose out of and in the 
 
            course of his employment with employer.  Numerous 
 
            conflicting medical opinions as to cause of claimant's 
 
            symptoms; greater weight given to opinion of board-certified 
 
            neurologist/internist with subspeciality in neurotoxicology 
 
            who personally visited work site.
 
            
 
 
            
 
            
 
            
 
                    
 
            
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            JERRY L. RICE,                :
 
                                          :         File No. 875632
 
                 Claimant,                :
 
                                          :      A R B I T R A T I O N
 
            vs.                           :
 
                                          :         D E C I S I O N
 
            WILSON FOODS, INC.,           :
 
                                          :
 
                 Employer,                :
 
                 Self-Insured,            :
 
                 Defendant.               :
 
            ___________________________________________________________
 
            
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This is a proceeding in arbitration upon the petition 
 
            of claimant, Jerry Rice, against his self-insured employer, 
 
            Wilson Foods, Inc., defendant.  The case was heard on April 
 
            1, 1993 in Davenport, Iowa.  The record consists of the 
 
            testimony of claimant.  The record also consists of the 
 
            testimony of Kent Jayne, rehabilitation counselor, retained 
 
            by claimant; Dwayne Whitcop, Operations Manager, Wilson's 
 
            Foods, Inc.; and Wayne Alan West, night foreman, Wilson's 
 
            Foods, Inc.  In addition to the above, the record consists 
 
            of joint exhibits 1-82, claimant's exhibits 83, 85, and 86, 
 
            as well as, defendant's exhibit 84.  
 
            
 
                 Subsequent to the closing of the hearing, defendant 
 
            prepared a written motion to reopen defendant's case for the 
 
            purpose of offering the two depositions of Jack Kenneth 
 
            Miller which were taken on June 3, 1992 and August 17, 1992.  
 
            At the time of the hearing, defendant's counsel neglected to 
 
            formally offer the depositions as part of the record.  The 
 
            motion was received at the office of the Division of 
 
            Industrial Services on April 5, 1993.  No resistance was 
 
            made by claimant's counsel.  As a result of the motion, the 
 
            motion to reopen is hereby granted to defendant to reopen 
 
            the record in order to formally offer the depositions of 
 
            Jack Kenneth Miller.  The deposition of June 3, 1992 is 
 
            marked exhibit 87.  The deposition of August 17, 1992 is 
 
            marked exhibit 88.
 
            
 
                                      ISSUES
 
            
 
                 The issues to be determined are:  1) whether there is a  
 
            causal relationship between the injury and any permanent 
 
            disability; and 2) whether claimant is entitled to any 
 
            permanent partial disability benefits.
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 The deputy, having heard the testimony and considered 
 
            all the evidence, finds:
 
            
 
                 Claimant is 45-years-old.  He is the married father of 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            one son and one stepson.  Claimant does not have a high 
 
            school diploma, although he does have a GED.  In addition to 
 
            his GED, claimant also has fifteen hours of credit from a 
 
            junior college.  
 
            
 
                 Claimant entered the United States Air Force in October 
 
            of 1966.  He was assigned the duties of a work control 
 
            specialist.  His duties included scheduling workloads.  His 
 
            highest rank obtained during his military career was that of 
 
            an E-4 Sergeant.  In October of 1970, claimant was honorably 
 
            discharged from the military.
 
            
 
                 Following his military career, claimant held a variety 
 
            of positions.  He drove as an over-the-road truck driver.  
 
            He drove a cab.  He worked at John Deere as a spot welder.  
 
            He held that position until 1986 when claimant was laid off 
 
            from the plant.  He also was employed at the Rock Island 
 
            Arsenal.
 
            
 
                 Claimant commenced his employment with defendant in 
 
            1986.  Prior to his employment, claimant was required to 
 
            take a physical examination.  On his examination form 
 
            claimant stated, in writing, that he had experienced no 
 
            prior health problems.  According to the results of the 
 
            physical examination, claimant was fit for heavy labor type 
 
            duties.  The duties included lifting more than 100 pounds.  
 
            
 
                 In December of 1987 claimant's job duties consisted of 
 
            receiving product for storage and shipment, loading and 
 
            unloading trucks, driving fork lift trucks, transporting 
 
            product within the plant, unloading semi-trucks, stacking 
 
            cartons on pallets, and placing stretch wrap around 
 
            products.  Basically, his duties centered around the speedy 
 
            shipment of products.
 
            
 
                 On December 17, 1987 claimant sustained a work-related 
 
            injury.  He was working on the shipping crew where he was 
 
            engaged in stacking 60 pound cartons of hot dogs onto other 
 
            cartons.  At the time, claimant was lifting a carton.  He 
 
            caught his foot, lost control of himself, and he fell 
 
            backwards with the product.  He experienced pain in the low 
 
            back and right hip area.  The injury was reported to the 
 
            proper supervisor although medical attention was not 
 
            required on the date of the injury.
 
            
 
                 Claimant developed low back pain during the next 
 
            several weeks.  However, he did not miss work as a result of 
 
            the work injury.  Eventually, on December 30, 1987, claimant 
 
            was sent to the company physician, C. Pritchard, M.D.  The 
 
            company physician restricted claimant from lifting more than 
 
            30 pounds, but claimant was allowed to drive a fork lift 
 
            truck.  
 
            
 
                 Claimant returned to Dr. Pritchard for follow-up care.  
 
            Several diagnostic tests were ordered.  A CT scan of the 
 
            lumbar spine was taken.  R. Hartung, M.D., a radiologist, 
 
            diagnosed claimant's condition as "Herniated discs of L3-4 
 
            and L4-5." (Exhibit page 8)
 
            
 
                 Dr. Pritchard referred claimant to Eugene Collins, 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            M.D., who removed claimant from work.  Dr. Collins ordered a 
 
            myelogram.  The myelogram also showed that claimant had a 
 
            "Herniated nucleus pulposus L3-4 and L4-5."  (Ex. 5, p. 19)  
 
            Claimant received conservative treatment.
 
            
 
                 Claimant was also referred to Robert Chesser, M.D., who 
 
            prescribed physical therapy and a work hardening program.  
 
            Claimant participated in the program while he engaged in 
 
            light duty work within the plant.  Claimant exhibited the 
 
            utmost motivation while he was a participant in the 
 
            prescribed program.  Karen Dhanens, OTR/L, wrote the 
 
            following relative to claimant's progress:
 
            
 
                 POST WORK HARDENING FOLLOW-UP SUMMARY
 
            
 
                 Mr. Rice did return to work on a full-time basis.  
 
                 He was initially put on an off-line pick which 
 
                 included lifting of weights no greater than 30 
 
                 pounds, infrequent lift of 30 pounds, and frequent 
 
                 lift of less than 10 pounds.
 
            
 
                 Next, he was put on an off-line pick.  The lifting 
 
                 was not as constant or continuous but did include 
 
                 lifting up to 40 pounds.
 
            
 
                 Next, he was progressed to lifting of up to 50 
 
                 pounds on an infrequent basis.  
 
            
 
                 Following my discussion with his supervisor on 
 
                 Tuesday, July 26, 1988; his supervisor reported 
 
                 that he felt Mr. Rice was functioning at his 
 
                 pre-injury level.  He had never been an extremely 
 
                 fast worker and appeared to be working at the pace 
 
                 he had worked pre-injury.  The employer is slowly 
 
                 working him into a forklift operator, which he 
 
                 would be completing on a very infrequent basis.  
 
                 He will not be doing any type of stretch 
 
                 wrapping,as [sic] this was thought to put a great 
 
                 deal of torque forces on the low back.
 
            
 
                 At this point, his supervisor did not feel that 
 
                 they needed us to follow up with Mr. Rice after 
 
                 this point.  I informed him that our department 
 
                 would be more than happy to follow up with Mr. 
 
                 Rice either on the job or per phone conversations 
 
                 as have been previously if it was deemed 
 
                 necessary.  Mr. Rice is discharged from our 
 
                 program at this point as he is successfully 
 
                 continuing to function on his previous job.
 
            
 
            (Ex. 6, pp. 25 & 26)
 
            
 
                 Claimant returned to work at his same position.  He 
 
            performed all of his regularly assigned tasks except the 
 
            shrink wrap operation.  There were occasions when claimant 
 
            did not work all of the overtime hours which were available 
 
            to him.  This was a decision he made, given his low back 
 
            condition.  There is no evidence in the record to establish 
 
            that any physician forbid claimant from working in excess of 
 
            40 hours per week.  While Dr. Chesser restricted claimant 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            from lifting more than 30 pounds, claimant had lifted as 
 
            much as 56 pounds on an occasional basis.  Claimant also had 
 
            to lift individual boxes and repalletize certain loads of 
 
            product.  He performed the duties without the assistance of 
 
            another employee even though the loads exceeded his working 
 
            restrictions.   Claimant continued to work in his assigned 
 
            job from the date of his return to work on June 10, 1988, 
 
            through December 31, 1992, the date the plant closed.  The 
 
            evidence indicates that from 1989 through 1992, claimant was 
 
            able to work his normal shift hours as assigned.  During the 
 
            same time period, claimant missed very little work.  On the 
 
            date of the plant closing, claimant was earning $7.49 per 
 
            hour.  
 
            
 
                 The plant closing in December of 1992 was a management 
 
            decision which resulted in the loss of claimant's full time 
 
            employment.  It is noted that claimant was invited to apply 
 
            for a similar position in the Kansas City area.   Defendant 
 
            was willing to accommodate claimant in the workplace.  
 
            However, claimant decided not to apply for a position at the 
 
            Kansas City location.  His decision to remain in the Quad 
 
            Cities area was unrelated to claimant's low back condition.
 
            
 
                 Since the plant closure claimant had been seeking other 
 
            positions.  On March 29, 1993, he did obtain a part-time 
 
            position as a janitor at the Davenport City Hall.  His 
 
            starting wage was $4.65 per hour but he was paid no 
 
            benefits.  Claimant testified that the position would not 
 
            work into a full time job and that he only worked four hours 
 
            per day.  The janitorial position involved pushing, pulling, 
 
            lifting and carrying items.  
 
            
 
                 Claimant indicated that since he had commenced 
 
            employment with the janitorial firm,  he had sustained some 
 
            pain in the low back area as a result of his work duties.  
 
            For his pain, claimant testified he used over-the-counter 
 
            medications such as ibuprofen.  The record also indicated 
 
            that since 1989, claimant had not been treated by a medical 
 
            practitioner for his low back condition.  
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                 The first issue to address is whether claimant's work 
 
            injury on December 17, 1987 is causally connected to any 
 
            permanent partial disability.
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury is a proximate 
 
            cause of the disability on which the claim is based.  A 
 
            cause is proximate if it is a substantial factor in bringing 
 
            about the result; it need not be the only cause.  A 
 
            preponderance of the evidence exists when the causal 
 
            connection is probable rather than merely possible.  
 
            Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa 
 
            1980); Holmes v. Bruce Motor Freight, Inc., 215 N.W.2d 296 
 
            (Iowa 1974).
 
            
 
                 The question of causal connection is essentially within 
 
            the domain of expert testimony.  The expert medical evidence 
 
            must be considered with all other evidence introduced 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            bearing on the causal connection between the injury and the 
 
            disability.  The weight to be given to any expert opinion is 
 
            determined by the finder of fact and may be affected by the 
 
            accuracy of the facts relied upon by the expert as well as 
 
            other surrounding circumstances.  The expert opinion may be 
 
            accepted or rejected, in whole or in part.  Sondag v. Ferris 
 
            Hardware, 220 N.W.2d 903 (Iowa 1974); Anderson v. Oscar 
 
            Mayer & Co., 217 N.W.2d 531 (Iowa 1974); Bodish v. Fischer, 
 
            Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).
 
            
 
                 All of the medical evidence relates claimant's low back 
 
            condition to the work injury described by claimant.  While 
 
            Dr. Pritchard's medical notes for December 30, 1987 state 
 
            the low back condition occurred two months prior to the date 
 
            specified by the parties, it appears this may be a 
 
            scrivener's error and that "two months" should have read 
 
            "two weeks."  Nevertheless, Dr. Pritchard's notes of the 
 
            same day, indicate the injury was sustained at work.  The 
 
            medical practitioners involved related the low back 
 
            condition to claimant's work injury.   Dr. Chesser, the 
 
            treating physiatrist, related the condition to claimant's 
 
            work injury.  The physiatrist opined that claimant had 
 
            sustained a fifteen percent permanent impairment.  (Ex. 7, 
 
            pp. 64 & 65)
 
            
 
                 In light of the medical evidence, it is the 
 
            determination of this deputy that claimant has proven by a 
 
            preponderance of the evidence that his condition is related 
 
            to the stipulated work injury and that he has sustained a 
 
            permanent partial disability.
 
            
 
                 The next issue to determine is whether claimant is 
 
            entitled to any permanent partial disability benefits as a 
 
            result of this work injury.  It has already been mentioned 
 
            that the treating physiatrist has opined that claimant has 
 
            sustained a permanent functional impairment.  The functional 
 
            impairment has been assessed at 15 percent.  It is 
 
            emphasized that a finding of impairment to the body as a 
 
            whole by a medical practitioner does not equate to 
 
            industrial disability, which claimant is alleging in the 
 
            instant case.  See:  Veeder v. Commercial Contracting, 
 
            87-535, (Ia Ct. of App., Nov. 29, 1988).  In Veeder, the 
 
            Iowa Court of Appeals cites McSpadden v. Big Ben Coal Co., 
 
            288 N.W.2d 181 (Iowa 1980); regarding industrial disability.  
 
            The McSpadden court writes:
 
            
 
                 Disability from injuries covered by chapter 85 has   
 
                 been defined by case law as "industrial 
 
                 disability," or a reduction in earning capacity.  
 
                 Among the criteria considered in determining 
 
                 industrial disability are the claimant's age, 
 
                 education, qualifications, experience and his 
 
                 inability, because of the injury, to engage in 
 
                 employment for which he is fitted."  Functional 
 
                 disability, while a consideration, has not been 
 
                 the final criterion....
 
            
 
                 (Citations omitted)
 
            
 
                 The Veeder Court continued as follows:
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            
 
                 In other words, while functional capacity may be 
 
                 only a twenty-five or thirty percent disability 
 
                 compared with the one hundred percent perfect man, 
 
                 disability may be considered total from the 
 
                 standpoint of a claimant's ability to go back to 
 
                 work to earn a living for himself and his family.  
 
                 See:  Diederich v. Tri-City R. Co., 219 Iowa 587, 
 
                 594, 258 N.W. 899, 902 (1935).
 
            
 
                 It is acknowledged that claimant has a functional 
 
            impairment.  He has permanent restrictions placed on him by 
 
            the treating physician.  Claimant is precluded from lifting 
 
            more than 30 pounds.   It is acknowledged that claimant has 
 
            been able to lift in excess of the 30 pound weight 
 
            restriction on an occasional basis.  Claimant is placed in 
 
            the medium category of labor tasks.   Claimant has been able 
 
            to return to his former position in the shipping and 
 
            receiving room.  The only duty which he is precluded from 
 
            performing is the shrink wrap task.  There is no medical 
 
            evidence restricting claimant to 40 hours of work per week.  
 
            Claimant has voluntarily placed those restrictions upon 
 
            himself.  From 1988 through the end of 1992, claimant has 
 
            satisfactorily completed the job tasks which have been 
 
            assigned to him.  During this time frame, claimant has had 
 
            an exemplary work record with few absences.  He has been 
 
            motivated to return to his pre-injury level of performance.  
 
            By his own admission, claimant has not missed much work for 
 
            any reason.  During the same time period, claimant has 
 
            sustained no loss of wages.  His rate of pay has not been 
 
            affected by his work injury.
 
            
 
                 Claimant has sustained a loss of wages in 1993.  
 
            However, this loss of earnings is attributable to both the 
 
            plant closing, and to claimant's voluntary decision to 
 
            forego applying for a position in the Kansas City plant. 
 
            Claimant was invited to apply for a transfer.  It appears 
 
            those employees who applied for a transfer, received one.  
 
            Claimant has decided not to apply for a transfer.  Defendant 
 
            has been willing to accommodate claimant in the workplace.  
 
            The company is to be commended for its efforts to place the 
 
            injured worker.  
 
            
 
                 Now that claimant has left the employ of defendant, he 
 
            is facing a loss of earning capacity since he is restricted 
 
            to the medium category of work.  There are still positions 
 
            for which claimant is qualified to handle.  He has been 
 
            working as a part-time janitor for much less money than he 
 
            had earned at defendant's plant.  Claimant's economic 
 
            condition is not entirely due to his work injury.  The 
 
            general job market in his geographical location is less than 
 
            desirable.  Claimant is capable of working in such 
 
            meaningful jobs as:  over-the-road truck driver, taxi 
 
            driver, material handler, clerk, and fork lift truck driver.  
 
            There are suitable positions for which he is qualified.
 
            
 
                 Therefore, after considering all of the foregoing, as 
 
            well as after personally observing claimant, it is the 
 
            determination of the undersigned that claimant is entitled 
 
            to 20 percent permanent partial disability benefits as a 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            result of the work injury on December 17, 1987.  This 
 
            equates to 100 weeks of benefits commencing on June 19, 1988 
 
            and payable at the stipulated rate of $224.86 per week. 
 
            
 
                                      ORDER
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 Defendant is to pay unto claimant one hundred weeks 
 
            (100) weeks of permanent partial disability benefits at the 
 
            stipulated rate of two hundred twenty-four and 86/l00 
 
            dollars ($224.86) per week commencing on June 19, 1988.  
 
            
 
                 Accrued benefits are to be paid in a lump sum together 
 
            with statutory interest at the rate of ten percent (10%) per 
 
            year pursuant to section 85.30, Iowa Code, as amended.
 
            
 
                 Defendant shall receive credit for all benefits 
 
            previously paid to claimant as a result of the work injury.
 
            
 
                 Defendant shall pay the costs of this action pursuant 
 
            to rule 343 IAC 4.33.
 
            
 
                 Defendant shall file a claim activity report as 
 
            requested by this division pursuant to rule 343 IAC 3.1.
 
            
 
            
 
            
 
                 Signed and filed this ____ day of June, 1993.
 
            
 
            
 
            
 
            
 
            
 
                                          ______________________________               
 
                                          MICHELLE A. McGOVERN
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Michael W. Liebbe
 
            Attorney at Law
 
            116 East Sixth Street
 
            P.O. Box 339
 
            Davenport, Iowa  52805
 
            
 
            Mr. Thomas N. Kamp
 
            Attorney at Law
 
            600 Davenport Bank Building
 
            Davenport, Iowa  52802
 
            
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                                               1803
 
                                               Filed June 22, 1993
 
                                               MICHELLE A. McGOVERN
 
         
 
                   BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         ____________________________________________________________
 
                   
 
         JERRY L. RICE, 
 
                                              File No. 875632
 
              Claimant, 
 
                                           A R B I T R A T I O N
 
         vs.       
 
                                              D E C I S I O N
 
         WILSON FOODS, INC., 
 
                   
 
              Employer, 
 
              Self-Insured,  
 
              Defendant.     
 
         ___________________________________________________________
 
         
 
         
 
         1803
 
         Claimant is a 45-year-old married man.  He sustained a work- 
 
         related injury to his low back which resulted in two herniated 
 
         disks.  He was treated conservatively.  His treating physiatrist 
 
         prescribed work hardening which claimant performed using his best 
 
         effort.  Claimant  returned to his former position.  His 
 
         physician restricted him from lifting more than 30 pounds and 
 
         from engaging in one task known as the shrink wrap operation.  
 
         Claimant continued in his position from June of 1988 through 
 
         December of 1992 when the plant closed.  His work record was 
 
         exemplary.  He missed very little work for any reason whatsoever.  
 
         His work was more than satisfactory.
 
         The plant moved its operation from the Quad Cities area to Kansas 
 
         City.  All of the employees were invited to apply for a transfer.  
 
         Claimant selected not to apply, even though all of the similarly 
 
         situated employees who applied for a transfer received the same 
 
         job.
 
         Since the plant closing, claimant has only been employed as a 
 
         part-time janitor for four hours per day.  His rate of pay is 
 
         considerably less than what it was at the time of the plant 
 
         closure.  Claimant is restricted to the medium classification of 
 
         work categories.  There is meaningful employment available to 
 
         him.  He can drive a semi truck, drive a cab, perform janitorial 
 
         services, work as a material handler, or drive a fork lift truck.  
 
         Claimant is not precluded from employment.
 
         HELD:  Claimant has sustained a 20 percent permanent partial 
 
         disability as a result of his work injury on December 17, 1987.
 
         
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
            _____
 
                                          :
 
            JAMES ANDREW,                 :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 875653
 
            ANDREW PALLETT COMPANY,       :
 
                                          :        A P P E A L
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            EMPLOYERS MUTUAL COMPANIES,   :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            _____
 
            
 
            The record, including the transcript of the hearing before 
 
            the deputy and all exhibits admitted into the record, has 
 
            been reviewed de novo on appeal.  The decision of the deputy 
 
            filed May 22, 1991 is affirmed and is adopted as the final 
 
            agency action in this case with the following additional 
 
            analysis:
 
            Although evidence may have been admitted concerning 
 
            claimant's potential future earnings as a social worker if 
 
            he completes his course of studies at the University of 
 
            Iowa, such evidence is speculative.  The determination of 
 
            claimant's industrial disability is confined to claimant's 
 
            loss of earning capacity at the time of the hearing.
 
            Claimant shall pay the costs of the appeal, including the 
 
            preparation of the hearing transcript.
 
            Signed and filed this ____ day of December, 1991.
 
            
 
            
 
            
 
            
 
                      ________________________________
 
                               BYRON K. ORTON
 
                          INDUSTRIAL COMMISSIONER
 
            
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            Copies To:
 
            
 
            Mr. Channing L. Dutton
 
            Attorney at Law
 
            West Towers Office Complex
 
            1200 35th St., Ste 500
 
            West Des Moines, Iowa 50265
 
            
 
            Mr. D. Brian Scieszinski
 
            Mr. Cecil L. Goettsch
 
            Attorneys at Law
 
            801 Grand Ave., Ste 3700
 
            Des Moines, Iowa 50309-2727
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                          9999
 
                                          Filed December 17, 1991
 
                                          BYRON K. ORTON
 
                                          MAM
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            JAMES ANDREW,                 :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 875653
 
            ANDREW PALLETT COMPANY,       :
 
                                          :       A P P E A L
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            EMPLOYERS MUTUAL COMPANIES,   :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
            9999
 
            Summary affirmance of deputy's decision filed May 22, 1991, 
 
            with short additional analysis.
 
            
 
 
         
 
         Page   1
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
                     before the iowa industrial commissioner
 
         ____________________________________________________________
 
                                       :
 
         JAMES ANDREW,                 :
 
                                       :
 
              Claimant,                :
 
                                       :
 
         vs.                           :
 
                                       :         File No. 875653
 
         ANDREW PALLETT COMPANY,       :
 
                                       :      A R B I T R A T I O N
 
              Employer,                :
 
                                       :         D E C I S I O N
 
         and                           :
 
                                       :
 
         EMPLOYERS MUTUAL COMPANIES,   :
 
                                       :
 
              Insurance Carrier,       :
 
              Defendants.              :
 
         ___________________________________________________________
 
         
 
         
 
                              statement of the case
 
         
 
              This is a proceeding in arbitration upon the petition of 
 
         claimant, James Andrew, against his employer, Andrew Pallett 
 
         Company, and its insurance carrier, Employers Mutual Companies, 
 
         defendants.  The case was heard on November 26, 1990, in Des 
 
         Moines, Iowa at the office of the industrial commissioner.  The 
 
         record consists of the testimony of claimant.  The record also 
 
         consists of the testimony of Jeff Johnson.  Additionally, the 
 
         record consists of joint exhibits 1, 2, 3, 4, 5, 6, 8 and 10.
 
         
 
                                      issue
 
         
 
              The sole issue to be determined is:  1) whether claimant is 
 
         entitled to permanent partial disability benefits.
 
         
 
                                 findings of fact
 
         
 
              Claimant is 35 years old.  He is married with one child.  
 
         Currently, claimant is enrolled as a full time college student at 
 
         the University of Iowa.
 
         
 
              Claimant was employed by defendant employer in September of 
 
         1986.  He continued working until January 15, 1988, the day of 
 
         claimant's work injury.  Claimant's job duties included tearing 
 
         down damaged pallets, breaking boards and refurbishing old pal
 
         lets for resale.
 
         
 
              On the date of the injury, claimant was routinely lifting a 
 
         wooden overhead door when he felt his back give.  Claimant felt 
 
         pain in his low back and stomach.  The pain radiated down his 
 
         left leg into his left foot.
 
         
 
              Eventually, claimant was examined and treated by William R. 
 

 
         
 
         Page   2
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         Boulden, M.D.  The orthopedic surgeon performed a discectomy.  
 
         Later, Dr. Boulden evaluated claimant as having a 20 percent 
 
         impairment with 15 percent of the impairment attributable to this 
 
         work injury.
 
         
 
              Claimant desired a second opinion.  He was examined at the 
 
         University of Iowa Spine Diagnostic and Treatment Center.  Ernest 
 
         M. Found, Jr., M.D., and Ted Wernimont, M.S.W., wrote in their 
 
         report of March 24, 1989:
 
         
 
              Therefore, based on all of the information which the 
 
              staff supplied from your evaluation, I have the follow
 
              ing recommendations:
 
         
 
              1) We are going to recommend that you continue with the 
 
                 home program of exercise and aerobic activity.  You 
 
                 do have a very good knowledge of your low back situ
 
                 ation and obviously have done some reading and have 
 
                 obtained knowledge about proper pain management 
 
                 techniques.  We feel that it is always in the best 
 
                 interest of pain patients, to do as much of this 
 
                 work on their own as possible, and therefore, I 
 
                 recommend that you do this without help from anyone, 
 
                 and continue to pursue the goals of independent 
 
                 functioning which you have set.  We firmly believe 
 
                 that your low back pain will continue to get better 
 
                 with time, and that using the knowledge and skills 
 
                 that you have to work through your pain, is very 
 
                 possible for you.
 
         
 
              2) We recommend that you follow closely the aerobic 
 
                 recommendations put forth by Deb Nowak in this 
 
                 evaluation.
 
         
 
              3) We feel that it is very important for you to begin 
 
                 immediately to pursue your vocational goal of return 
 
                 to school.  We feel that you are capable at this 
 
                 time of continued classroom activity and with proper 
 
                 body mechanics and conditioning, can certainly tol
 
                 erate a return to full-time classroom activity.
 
         
 
              In summary, we do not feel that you are a candidate for 
 
              the Low Back Pain Rehabilitation Program at this time.  
 
              We feel that you currently have the knowledge, skills 
 
              and ability to pursue rehabilitation on your own.  We 
 
              want to absolutely assure you at this time that we feel 
 
              that your back is totally solid, stable and healed, and 
 
              that activity and exercise, which have been recommended 
 
              for you, will do absolutely no harm to your low back.  
 
              However, it is going to cause some discomfort for you 
 
              to continue to get well and we want to discourage at 
 
              this time, any further dependence upon the medical 
 
              system, and give you the opportunity to reach these 
 
              goals through your own self motivated activity and 
 
              knowledge and skills that you possess.  We do feel that 
 
              for Workman's Compensation purposes, that you have 
 
              reached maximum healing at this time.  We feel that 
 

 
         
 
         Page   3
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
              your body as a whole impairment rating, as a result of 
 
              the injury and subsequent surgical procedure, is 12%.
 
         
 
              The above limitations are based on "state of the art" 
 
              testing and the results have been interpreted as such.  
 
              These results in no way should exclude persons from 
 
              appropriate job consideration.
 
         
 
              Should you have any other questions or concerns regard
 
              ing this evaluation, please do not hesitate to let us 
 
              know.  We wish you the very best and we would be happy 
 
              to see you back here at University Hospitals at any
 
              time, at your request.
 
         
 
              Claimant testified that subsequent to his exam at the 
 
         University of Iowa, he encountered pain and difficulties.  As a 
 
         result, he made an appointment at the Mayo Clinic.  He was exam
 
         ined on July 26, 1989.  John L. Merritt, M.D., authored a report 
 
         dated October 2, 1989.  In the report  Dr. Merritt wrote:
 
         
 
              DIAGNOSIS:
 
         
 
                        (1)  Postop left L-5 hemilaminectomy with                        
 
              persistent pain.
 
         
 
                        (2)  No current active radiculopathy.
 
         
 
                        (3)  No disk recurrence.
 
         
 
                        (4)  No arachnoiditis.
 
         
 
                        (5)  No lumbar instability.
 
         
 
                        (6)  Superimposed tension myalgia,                               
 
              persistent.
 
         
 
                        (7)  Pain amplification syndrome,                                
 
              superimposed.
 
         
 
                        (8)  Musculoskeletal deconditioning.
 
         
 
                        (9)  Hyperlipidemia.
 
         
 
              SUMMARY AND CONCLUSION:
 
         
 
                 Mr. Andrew is a 33-year-old man with the above diag
 
              noses.  At this time, his condition is stable and sta
 
              tionary.  There is no indication for further extensive 
 
              evaluations or invasive procedures and no indication 
 
              for further surgical procedures.  He will need to main
 
              tain a home self-directed therapy program, but he may 
 
              need short bouts of physical therapy to assist him with 
 
              management as flairs of pain may occur in the future.  
 
              On the most part, however, most of this should be man
 
              aged on a home self-directed program in which he has 
 
              been instructed.  He should of course continue with a 
 
              graduated fitness program also to maintain strength and 
 

 
         
 
         Page   4
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
              endurance.
 
         
 
                 Due to his hemilaminectomy an dissectomy [sic] and 
 
              previous S-l radiculopathy, he should have an impair
 
              ment of the body as a whole in the range of 9%.
 
         
 
                 We would recommend persuing [sic] a vocational reha
 
              bilitation with a goal towards obtaining training and 
 
              then employment in work in the light categories defined 
 
              by the Dictionary of Occupational Titles of the U.S. 
 
              Department of Labor.  This would involve no lifting 
 
              above 25 pounds and no frequent lifting or carrying 
 
              more than ten pounds and avoiding frequent bending and 
 
              twisting.  Because of his injury and his surgery, he 
 
              definitely should not return to his previous heavy work 
 
              which involved a great deal of bending twisting and 
 
              lifting.  As these restrictions are permanent, he 
 
              should direct his vocational rehabilitation within 
 
              these guidelines.
 
         
 
              Claimant did not return to work subsequent to his injury.  
 
         He re-enrolled at the University of Iowa as a full time college 
 
         student.  He has been a student since the fall of 1989.  Claimant 
 

 
         
 
         Page   5
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         is scheduled to graduate in May of 199l with a degree in social 
 
         work.  At the time of the hearing, claimant had not been offered 
 
         a full time position in his major.
 
         
 
                                conclusions of law
 
         
 
              The sole issue to address is the nature and extent of 
 
         claimant's permanent partial disability.
 
         
 
              Industrial disability or loss of earning capacity is a con
 
         cept that is quite similar to impairment of earning capacity, an 
 
         element of damage in a tort case.  Impairment of physical capac
 
         ity creates an inference of lessened earning capacity.  The basic 
 
         element to be determined, however, is the reduction in value of 
 
         the general earning capacity of the person, rather than the loss 
 
         of wages or earnings in a specific occupation.  Post-injury earn
 
         ings create a presumption of earning capacity.  The earnings are 
 
         not synonymous with earning capacity and the presumption may be 
 
         rebutted by evidence showing the earnings to be an unreliable 
 
         indicator.  Carradus v. Lange, 203 N.W.2d 565 (Iowa 1973); 
 
         Holmquist v. Volkswagon of America, Inc., 261 N.W.2d 516 (Iowa 
 
         App. 1977) A.L.R.3d 143; Michael v. Harrison County, 
 
         Thirty-fourth Biennial Report of the Industrial Commissioner 218 
 
         (1979); 2 Larson Workmen's Compensation Law, sections 57.21 and 
 
         57.31.
 
         
 
              Functional impairment is an element to be considered in 
 
         determining industrial disability which is the reduction of earn
 
         ing capacity, but consideration must also be given to the injured 
 
         employee's age, education, qualifications, experience and inabil
 
         ity to engage in employment for which 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 disability.  This 
 
         is so as impairment and disability are not synonymous.  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 proportion
 
         ally 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 qualifi
 
         cations 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 
 

 
         
 
         Page   6
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         matters which the finder of fact considers collectively in arriv
 
         ing 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, moti
 
         vation - 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 disability.  
 
         See Peterson v. Truck Haven Cafe, Inc., (Appeal Decision, 
 
         February 28, 1985);  Christensen v. Hagen, Inc., (Appeal 
 
         Decision, March 26, l985).
 
         
 
              A claimant's industrial disability may be diminished by his 
 
         failure to accept offered employment consistent with his impair
 
         ment.  Johnson v. Chamberlain Mfg. Corporation, I Iowa Industrial 
 
         Commissioner Report 166 (Appeal Decision, October 31, 1984)
 
         
 
              In the case at hand, claimant has been rated as having a 
 
         functional impairment from 9 percent to 15 percent.  Dr. Boulden, 
 
         the treating physician, makes reference to certain restrictions 
 
         placed upon claimant.  However, this deputy is unable to deter
 
         mine the nature of those restrictions from the evidence submitted 
 
         at hearing.  All this deputy can ascertain is that Dr. Boulden 
 
         has refused to allow claimant to return to his former position.
 
         
 
              The doctors at the University of Iowa have imposed lifting 
 
         restrictions.  Claimant is restricted from lifting more than 35 
 
         pounds for any lifts from the floor which are done more than 4 
 
         times per hour.  Claimant is also restricted from lifting 17-18 
 
         pounds repetitively.
 
         
 
              The physicians at Mayo Clinic have also imposed certain 
 
         restrictions.  The restrictions include no lifting more than 25 
 
         pounds, no frequent lifting or carrying more than 10 pounds and 
 
         no frequent bending and twisting.  Claimant is also precluded 
 
         from returning to his former position.  He is to work in the 
 
         light categories of occupations.
 
         
 
              Claimant's age and intelligence are positive forces in his 
 
         life.  Claimant's motivation is a third positive factor.  He is 
 
         highly motivated to better himself.  He has sought assistance 
 
         through the Iowa Department of Vocational Rehabilitation.  The 
 
         counselors at the state have found certain college grants for 
 
         claimant.  Claimant has returned to college.  He is scheduled to 
 
         receive his bachelors' degree in social work in May of 1991.  
 
         Claimant has no permanent full time position after graduation.  
 
         However, should claimant find a position, it is acknowledged that 
 
         positions in social work are notoriously underpaid.  Jeff 
 
         Johnson, vocational rehabilitation expert, testified that entry 
 
         level positions start at $6.93 per hour and the median average 
 

 
         
 
         Page   7
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         wage is $8.27 per hour.  Mr. Johnson did not know the maximum 
 
         salary claimant could earn with the bachelors' degree in social 
 
         work.
 
         
 
              There is no question that Mr. Johnson found a prospective 
 
         job for claimant with the Association of Retarded Citizens.  
 
         Claimant refused the position upon the advice of counsel.  The 
 
         job paid $6.35 per hour.  The wage rate was slightly less than 
 
         what claimant had earned at defendant-employer's place of busi
 
         ness.  However, at the time the job was offered, claimant was 
 
         already re-enrolled in college.  It is understandable that 
 
         claimant would not want to quit college for such a position.
 
         
 
              Therefore, in light of the above, and after observing 
 
         claimant, it is the decision of the undersigned that claimant has 
 
         a 20 percent permanent partial disability.  Claimant is entitled 
 
         to 100 weeks of benefits commending on March 20, 1988.
 
         
 
                                      order
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              Defendants are to pay one hundred (100) weeks of permanent 
 
         partial disability benefits from March 20, 1988, at the stipu
 
         lated rate of two hundred thirteen and 23/l00 dollars ($213.23) 
 
         per week.
 
         
 
              Interest shall be paid pursuant to section 85.30.
 
         
 
              Defendants are responsible for costs pursuant to rule 343 
 
         IAC 4.33.
 
         
 
              Defendants shall file a claim activity report as requested 
 
         by this division pursuant to rule 343 IAC 3.l.
 
         
 
         
 
         
 
              Signed and filed this ____ day of May, 1991.
 
         
 
         
 
         
 
         
 
         
 
                                       ______________________________               
 
         MICHELLE A. McGOVERN
 
                                       DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Channing L. Dutton
 
         Attorney at Law
 
         West Towers Office
 
         1200 35th St  STE 500
 
         West Des Moines  IA  50265
 
         
 
         Mr. Cecil L. Goettsch
 
         Mr. D. Brian Scieszinski
 

 
         
 
         Page   8
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         Attorneys at Law
 
         801 Grand Ave  Suite 3700
 
         Des Moines  IA  50309
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                           5-1803
 
                           Filed May 22, 1991
 
                           MICHELLE A. McGOVERN
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            JAMES ANDREW,                 :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :         File No. 875653
 
            ANDREW PALLETT COMPANY,       :
 
                                          :      A R B I T R A T I O N
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            EMPLOYERS MUTUAL COMPANIES,   :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
            5-1803
 
            Claimant was awarded a 20 percent permanent partial 
 
            disability for a work related back injury.
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
            9998
 
            Filed July 30, 1991
 
            Clair R. Cramer
 
            WRM
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            SUSAN SCHOLL,  :
 
                      :
 
                 Claimant, :
 
                      :
 
            vs.       :
 
                      :      File No. 875684
 
            LIBBEY-OWENS FORD,  :
 
                      :        A P P E A L
 
                 Employer, :
 
                      :      D E C I S I O N
 
            and       :
 
                      :
 
            WAUSAU INSURANCE COMPANIES,   :
 
                      :
 
                 Insurance Carrier,  :
 
                 Defendants.    :
 
            ___________________________________________________________
 
            
 
            9998
 
            
 
                 Summary affirmance of deputy's decision filed September 
 
            4, 1990.
 
            
 
 
            
 
            
 
            
 
            
 
            
 
                      BEFORE THE IOWA INDUSTRIAL COMMISSIONER            
 
            ____________________________________________________________
 
                                          :
 
            SUSAN SCHOLL,                 :
 
                                          :
 
                 Claimant,                :
 
                                          :        File No. 875684
 
            vs.                           :
 
                                          :
 
            LIBBEY-OWENS FORD,            :     A R B I T R A T I O N
 
                                          :
 
                 Employer,                :        D E C I S I O N
 
                                          :
 
            and                           :
 
                                          :
 
            WAUSAU INSURANCE COMPANIES,   :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                                   INTRODUCTION
 
            
 
                 This is a proceeding in arbitration brought by Susan 
 
            Scholl, claimant, against Libbey-Owens Ford, employer, and 
 
            Wausau Insurance Companies, insurance carrier, defendants, 
 
            for benefits as a result of an alleged injury which occurred 
 
            on February 8, 1988.  A hearing was held in Mason City, 
 
            Iowa, on August 16, 1990, and the case was fully submitted 
 
            at the close of the hearing.  Claimant was represented by 
 
            Russell Schroeder, Jr.  Defendants were represented by 
 
            Rustin T. Davenport.  The record consists of the testimony 
 
            of Susan Scholl, claimant, Ruth Scholl, claimant's mother, 
 
            claimant's exhibits 1 and 2, and defendants' exhibits 3 
 
            through 13.  Defendants' attorney presented an excellent 
 
            synopsis of the issues at the beginning of the hearing in 
 
            the document entitled "Defendants' Contentions."
 
            
 
                                   STIPULATIONS
 
            
 
                 The parties stipulated to the following matters:
 
            
 
                 1.  That an employer-employee relationship existed 
 
            between claimant and employer at the time of the alleged 
 
            injury.
 
            
 
                 2.  That the extent of entitlement to weekly 
 
            compensation for temporary disability, if defendants are 
 
            liable for the injury, is stipulated to be from February 8, 
 
            1988 to September 12, 1988.
 
            
 
                 3.  That the commencement date for permanent disability 
 
            benefits, in the event such benefits are awarded, is 
 
            September 12, 1988.
 
            
 
                 4.  That the rate of compensation in the event of an 
 
            award of benefits is $172.36 per week.
 
            
 
                 5.  That claimant's entitlement to medical expenses 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            have all been or will be paid by defendants.
 
            
 
                 6.  That defendants assert no claim for credit for 
 
            employee nonoccupational group health plan benefits paid to 
 
            claimant prior to hearing.
 
            
 
                 7.  That defendants paid claimant 41 weeks of workers' 
 
            compensation benefits at the rate of $172.36 per week prior 
 
            to hearing.
 
            
 
                 8.  That there are no bifurcated claims.
 
            
 
                                      ISSUES
 
            
 
                 The parties submitted the following issues for 
 
            determination at the time of the hearing:
 
            
 
                 1.  Whether claimant sustained an injury on February 8, 
 
            1988 which arose out of and in the course of employment with 
 
            employer;
 
            
 
                 2.  Whether the injury was the cause of either 
 
            temporary or permanent disability;
 
            
 
                 3.  Whether claimant is entitled to permanent 
 
            disability benefits and, if so, the nature and extent of 
 
            benefits to which she is entitled, to include whether she 
 
            received a scheduled member injury or an industrial 
 
            disability injury; and,
 
            
 
                 4.  Whether claimant gave proper notice as required by 
 
            Iowa Code section 85.23 is asserted as an affirmative 
 
            defense by defendants.
 
            
 
                                 FINDINGS OF FACT
 
            
 
                                      injury
 
            
 
                 It is determined that claimant did receive an injury on 
 
            February 8, 1988 which arose out of and in the course of her 
 
            employment with employer.
 
            
 
                 Claimant was 31 years old at the time of the injury and 
 
            had worked for employer in various jobs for ten years since 
 
            June 1, 1978.  Earlier, claimant worked as a washer, furnace 
 
            unloader and a floater.  For approximately seven years prior 
 
            to this injury, she worked the dehydration job.
 
            
 
                 Approximately three weeks before the injury date of 
 
            February 2, 1988, claimant was transferred to final pack.  
 
            This was a very strenuous job which required heavy lifting 
 
            and movement of both hands and arms.  The weights that she 
 
            handled varied from 5 to 50 pounds.
 
            
 
                 Claimant alleged that she developed dull, constant pain 
 
            in her back which caused shooting pains down her arms.  She 
 
            alleged pain to her neck, shoulders, arms and back.  
 
            However, the medical records only support that she 
 
            complained to the doctors of bilateral upper extremity pain.  
 
            Claimant alleged that she reported neck, shoulder, arm and 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            back pains to Buford L. Christensen, coordinator of plant 
 
            services, on February 8, 1988.  Christensen acknowledged 
 
            that claimant reported an injury but he testified that she 
 
            only complained of pain to her wrists and hands.  He denied 
 
            that she reported any injury to her neck, shoulders or back.  
 
            He acknowledged that he could be mistaken but did not think 
 
            that he was.
 
            
 
                 Christensen arranged for claimant to receive medical 
 
            treatment from Kenneth B. Washburn, M.D., a physical 
 
            medicine and rehabilitation specialist.  Claimant saw Dr. 
 
            Washburn on February 8, 1988, and he diagnosed, "IMPRESSION:  
 
            Recurrent tendinitis, upper extremities, secondary to 
 
            repetitive activities at work."  (Exhibit 3, page 6)  He saw 
 
            claimant four more times in February of 1988, but the dates 
 
            are cut off by the copy machine and, therefore, cannot be 
 
            stated with accuracy.  The third time he saw claimant he 
 
            diagnosed:  "IMPRESSION:  1) Tendinitis left forearm, 
 
            aggravated by the increased work load."  (Ex. 3, p. 7)
 
            
 
                 Employer also sent claimant to see Darrell E. Fisher, 
 
            M.D., an orthopedic surgeon, on February 10, 1988 (Ex. 4, p. 
 
            2).  Again, the date of this entry is cut off by the copy 
 
            machine.  On February 10, 1988, Dr. Fisher recorded:
 
            
 
                 She moved in January from a job in the dehydration 
 
                 section where she has been the past two years to 
 
                 packing glass.  This involves a lot more strain on 
 
                 her upper extremities and she is having tendinitis 
 
                 and bursitis problems....She has worked at 
 
                 Libbey-Owens-Ford for ten years and I do not think 
 
                 she will tolerate this heavier work.
 
            
 
            (Ex. 7, p. 2; Ex. 4, p. 4)
 
            
 
                 Dr. Fisher issued a certificate of return to work on 
 
            February 15, 1988 which stated that he strongly recommended 
 
            that claimant return to the dehydration job because the 
 
            current final pack work is much too strenuous on her 
 
            abnormal wrist and elbow (Ex. 5).  Claimant, however was not 
 
            able to return to work under any circumstances because she 
 
            was laid off at the time and was never called back but she 
 
            is entitled to healing period benefits as stipulated to by 
 
            the parties.
 
            
 
                 On March 9, 1988, Dr. Fisher recorded:  "Her current 
 
            job, she says, is the hardest she has had in the 10 years at 
 
            Libbey-Owens-Ford and requires a fair amount of lifting 
 
            above the shoulder level."  (Ex. 7, p. 2; Ex. 4, p. 5)  On 
 
            May 9, Dr. Fisher commented:  "She remains off work on 
 
            workman's [sic] comp.,...."  (Ex. 7, p. 2)  On June 20, 
 
            1988, Dr. Fisher again stated:  "Told her I would continue 
 
            to keep her on Workman's [sic] comp if she avoids any heavy 
 
            work at home and will see her again in three months."  (Ex. 
 
            8, p. 2)
 
            
 
                 Therefore, based on claimant's testimony, the testimony 
 
            of Christensen, and the reports of Dr. Washburn and Dr. 
 
            Fisher, it is determined that claimant sustained an injury 
 
            on February 8, 1988 which arose out of and in the course of 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            employment with employer.
 
            
 
              causal connection - entitlement- temporary disability
 
            
 
                 It is determined that the injury was the cause of 
 
            temporary disability.  The parties stipulated that if 
 
            defendants are found liable for an injury that claimant is 
 
            entitled to temporary disability benefits from February 8, 
 
            1988 to September 12, 1988.
 
            
 
                 It is further determined that even though Dr. Fisher 
 
            treated claimant for a congenital disease of 
 
            neurofibromatosis, he also concurrently treated her for the 
 
            left upper extremity tendinitis caused by the injury of 
 
            February 8, 1988.  This is clear from all of Dr. Washburn's 
 
            entries and it is clear from all of Dr. Fisher's entries 
 
            (Ex. 3 and 4).  Therefore, it is determined that claimant is 
 
            entitled to temporary disability for the period from 
 
            February 8, 1988 to September 12, 1988, a period of 31 weeks 
 
            for the left upper extremity tendinitis.
 
            
 
              causal connection - entitlement - permanent disability
 
            
 
                 Dr. Fisher recorded on September 19, 1988, "My opinion 
 
            is that she has a permanent impairment of 10% of her left 
 
            elbow which I would equate as 2% of the body as a whole."  
 
            (Ex. 4, p. 3; Ex. 13)
 
            
 
                 John R. Walker, M.D., an orthopedic surgeon, evaluated 
 
            claimant at her request on December 2, 1988.  Dr. Walker 
 
            found that the injury was the cause of headaches, cervical 
 
            spine injury, bilateral shoulder injury, bilateral arm 
 
            injury, bilateral elbow injury, bilateral wrist injury, and 
 
            bilateral hand injury (Ex. 1).  Dr. Walker found an 8 
 
            percent permanent impairment to the right upper extremity, a 
 
            6 percent permanent impairment to the left upper extremity, 
 
            and a 7 percent permanent impairment to the body as a whole.  
 
            Dr. Walker concluded:  "This then gives us a total of 16% 
 
            permanent, partial impairment of the body as a whole based 
 
            on her work related over work, over stress syndromes and 
 
            injuries." (Ex. 2)
 
            
 
                 The only portion of Dr. Walker's findings that are 
 
            adopted by this determination is his award of 6 percent 
 
            permanent impairment to the left upper extremity for the 
 
            reason that claimant did not prove that the employment was 
 
            the cause of a compensable injury on February 8, 1988 to her 
 
            neck, shoulders or back.  There is no mention of injury to 
 
            the neck, shoulders or back in any of the office notes of 
 
            either Dr. Washburn or Dr. Fisher.  The first evidence of 
 
            headaches, neck, shoulder and back complaints allegedly 
 
            attributable to the injury of February 8, 1988 appears on 
 
            the report of Dr. Walker in December of 1988, some ten 
 
            months after the injury date.  Furthermore, claimant had not 
 
            been working for employer during that period of time.  She 
 
            was laid off on February 8, 1988 for reasons not connected 
 
            with the injury.  Therefore, it is determined that claimant 
 
            has sustained a scheduled member injury to her left upper 
 
            extremity, more specifically the left arm.  She has not 
 
            sustained an industrial disability to the body as a whole.  
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            It is determined that claimant did not sustain an injury of 
 
            headaches, neck pain, shoulder pain or back pain caused by 
 
            the injury of February 8, 1988.
 
            
 
                 Dr. Fisher reiterated his 10 percent left elbow rating 
 
            in a letter dated March 1, 1989.  He stated that on 
 
            September 19, 1988, he assessed a 10 percent permanent 
 
            impairment to the left elbow based on the tendinitis to the 
 
            left elbow  (Ex. 11, p. 1).  He further stated, "She had no 
 
            complaints at that time, in my opinion, which were 
 
            significant and due to her work in her neck, shoulders, or 
 
            back."  (Ex. 11, p. 2)
 
            
 
                 Dr. Fisher made it clear that this impairment rating 
 
            was strictly for the left elbow tendinitis by means of a 
 
            letter dated May 2, 1989 in which he stated:  "I do not 
 
            think that that underlying congenital problem has any 
 
            significance what so ever to her complaints of her left 
 
            elbow for which I have treated her." (Ex. 12)
 
            
 
                 Therefore, it is determined that claimant is entitled 
 
            to a 10 percent impairment to the left upper extremity, a 
 
            scheduled member injury, more specifically the left arm.  
 
            Iowa Code section 85.34(2)(m).  Ten percent of 250 weeks is 
 
            25 weeks of entitlement to permanent partial disability 
 
            benefits to which claimant is entitled for the injury of 
 
            February 8, 1988.
 
            
 
                                      notice
 
            
 
                 The notice defense appears to be directed at the claim 
 
            asserted by claimant for a work-related injury and 
 
            disability to her neck, shoulders and back.  Since claimant 
 
            has not proven an injury to these body parts, then the 
 
            notice defense appears to be moot.  As far as an injury to 
 
            her upper extremities for tendinitis, both claimant and 
 
            Christensen agreed that she reported tendinitis to her upper 
 
            extremities on February 8, 1988.  Therefore, defendants have 
 
            not established the affirmative defense of lack of notice 
 
            under Iowa Code section 85.23 with respect to the tendinitis 
 
            injury to the left upper extremity which occurred on 
 
            February 8, 1988.
 
            
 
                    
 
            
 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
                                   CONCLUSIONS OF LAW
 
            
 
                 Wherefore, based upon the evidence presented, and the 
 
            foregoing and following principles of law, these conclusions 
 
            of law are made:
 
            
 
                 That claimant sustained an injury on May 8, 1988 which 
 
            arose out of and in the course of her employment of 
 
            tendinitis to her left upper extremity.  Iowa Code section 
 
            85.3(1); 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).
 
            
 
                 That claimant sustained an injury to the left upper 
 
            extremity, the left arm, and not the body as a whole.  Iowa 
 
            Code section 85.34(2)(m).
 
            
 
                 That claimant did not sustain the burden of proof by a 
 
            preponderance of the evidence that she sustained an injury 
 
            of headaches, cervical injury, bilateral shoulder injury, or 
 
            back injury.  Iowa Code section 85.34(2)(u).
 
            
 
                 That claimant did sustain the burden of proof by a 
 
            preponderance of the evidence that the injury to the left 
 
            arm was the cause of both temporary and permanent 
 
            disability.  Bodish v. Fischer, Inc., 257 Iowa 516, 133 
 
            N.W.2d 867 (1965); Lindahl v. L. O. Boggs, 236 Iowa 296, 18 
 
            N.W.2d 607 (1945).
 
            
 
                 That claimant is entitled to 31 weeks of healing period 
 
            benefits for the period from February 8, 1988 to September 
 
            12, 1988, as stipulated to by the parties.  Iowa Code 
 
            section 85.32(1).
 
            
 
                 That claimant is entitled to 25 weeks of permanent 
 
            partial disability benefits for a 10 percent permanent 
 
            impairment to the left upper extremity.  Iowa Code section 
 
            85.34(2)(m).
 
            
 
                 That defendants did not establish the burden of proof 
 
            by a preponderance of the evidence that claimant failed to 
 
            give notice of the left upper extremity tendinitis.  Iowa 
 
            Code section 85.23.
 
            
 
                                      ORDER
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 That defendants pay to claimant thirty (31) weeks of 
 
            healing period benefits at the rate of one hundred 
 
            seventy-two and 36/100 dollars ($172.36) per week for a 
 
            total amount of five thousand three hundred forty-three and 
 
            16/100 dollars ($5,343.16) commencing on February 8, 1988.
 
            
 
                 That defendants pay to claimant twenty-five (25) weeks 
 
            of permanent partial disability benefits at the rate of one 
 
            hundred seventy-two and 36/100 dollars ($172.36) for a total 
 
            amount of four thousand three hundred nine dollars 
 
            ($4,309.00) commencing on September 12, 1988, as stipulated 
 
            to by the parties.
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            
 
                 That defendants are entitled to a credit of forty-one 
 
            (41) weeks of workers' compensation benefits paid to 
 
            claimant prior to hearing at the rate of one hundred 
 
            seventy-two and 36/100 dollars ($172.36) for a total amount 
 
            of seven thousand sixty-six and 76/100 dollars ($7,066.76).
 
            
 
                 That these benefits are due to be paid in a lump sum.
 
            
 
                 That interest will accrue pursuant to Iowa Code section 
 
            85.30.
 
            
 
                 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 ______ day of September, 1990.
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          WALTER R. McMANUS, JR.
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies to:
 
            
 
            Mr Russell Schroeder, Jr
 
            Attorney at Law
 
            1100 Gilbert St
 
            Charles City IA 50616
 
            
 
            Mr C Bradley Price
 
            Mr Mark A Wilson
 
            Mr Rustin T Davenport
 
            Attorneys at Law
 
            30 4th St NW
 
            P O Box 1953
 
            Mason City IA 50401
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                          51106, 51401, 51402.20, 
 
            51402.30
 
                                          51402.40, 51402.50, 5229, 
 
            51801,
 
                                          51803, 52401
 
                                          Filed September 4, 1990
 
                                          Walter R. McManus, Jr.
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            SUSAN SCHOLL,                 :
 
                                          :
 
                 Claimant,                :
 
                                          :        File No. 875684
 
            vs.                           :
 
                                          :
 
            LIBBEY-OWENS FORD,            :     A R B I T R A T I O N
 
                                          :
 
                 Employer,                :        D E C I S I O N
 
                                          :
 
            and                           :
 
                                          :
 
            WAUSAU INSURANCE COMPANIES,   :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            51106; 51401; 51402.20; 51402.30; 51402.40; 51402.50; 52209
 
            Claimant's testimony and all of the medical evidence 
 
            demonstrated claimant sustained a repetitive injury to her 
 
            left arm after she was transferred to a much more strenuous 
 
            job than she had performed in the previous 10 years with 
 
            employer.  The injury was the cause of both temporary and 
 
            permanent disability.  She did not prove any injury to her 
 
            neck, shoulders and back as she contended.
 
            
 
            51801
 
            Claimant awarded 31 weeks of healing period benefits for the 
 
            period stipulated to by the parties.
 
            
 
            51803
 
            Claimant awarded 10% permanent partial disability for a 10% 
 
            permanent impairment to the left arm which was the only 
 
            rating in the record.
 
            
 
            52401
 
            Defendants did not prove a notice defense for the left arm 
 
            injury.  As for the neck, shoulders and back, claimant did 
 
            not prove injury so a notice defense was not needed.