Page   1
 
            
 
            
 
            
 
            
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
            _____
 
                      :
 
            CONNIE GARRETT,     :
 
                      :
 
                 Claimant, :
 
                      :
 
            vs.       :
 
                      :      File No. 877007
 
            ROCHESTER PRODUCTS, :
 
                      :        A P P E A L
 
                 Employer, :
 
                      :      D E C I S I O N
 
            and       :
 
                      :
 
            ROYAL INSURANCE COMPANY, :
 
                      :
 
                 Insurance Carrier,  :
 
                 Defendants.    :
 
            ____________________________________________________________
 
            _____
 
            STATEMENT OF THE CASE
 
            Defendants appeal from an arbitration decision awarding  
 
            permanent partial disability benefits as the result of an 
 
            alleged injury on April 7, 1986.  The record on appeal 
 
            consists of the transcript of the arbitration proceeding; 
 
            joint exhibits 1 through 20 (volume 1), 1 through 11 (volume 
 
            II), and claimant's exhibits A through I; and claimant's A 
 
            through I.  Defendants failed to timely serve or file an 
 
            appeal brief.  Claimant was prohibited from filing a brief 
 
            pursuant to an order filed June 28, 1991. 
 
            ISSUES
 
            Defendants failed to timely file an appeal brief.  
 
            Therefore, the appeal will be considered generally and 
 
            without regard to specific issues.
 
            FINDINGS OF FACT
 
            The arbitration decision adequately and accurately reflects 
 
            the pertinent evidence and it will not be set forth herein.  
 
            However, the deputy's findings as to claimant's credibility 
 
            are not adopted herein.
 
            CONCLUSIONS OF LAW
 
            Claimant alleges she injured her back while lifting a bucket 
 
            of heavy parts above her head at work on April 7, 1986.  One 
 
            of claimant's physicians, Nino R. Lentini, M.D., an 
 
            orthopedic surgeon, diagnosed lumbosacral strain or sprain.  
 
            Dr. Lentini opined that claimant possibly had a two percent 
 
            permanent partial impairment, but added that it was too 
 
            early to offer an impairment rating.  
 
            Another of claimant's physicians, Robert Durnin, M.D., 
 
            stated that claimant's pain was inconsistent and that 
 
            claimant exaggerated her pain complaints.  Dr. Durnin could 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            find no objective evidence of back injury.  Dr. Durnin 
 
            refused to provide a rating of impairment based on 
 
            subjective complaints.
 
            Michael Morrison, M.D., an orthopedic surgeon, also found no 
 
            objective evidence of back injury.  Dr. Morrison predicted 
 
            claimant would be able to return to work without 
 
            restrictions.
 
            Claimant was also evaluated by a clinical psychologist, who 
 
            concluded that claimant was "hypochondriacal" and attributed 
 
            claimant's pain complaints to psychogenic causes.  Claimant 
 
            was also examined by J. M. Duggan, D.O., a psychiatrist, who 
 
            found claimant to be suffering from an affective disorder.  
 
            Leonard E. Weber, M.D., a neurologist, diagnosed claimant as 
 
            suffering from chronic pain disorder with possible 
 
            exaggerated symptoms due to psychiatric problems.   Dr. 
 
            Weber found no objective evidence of back injury, and gave 
 
            claimant a rating of zero percent permanent impairment, but 
 
            did assign five percent impairment based strictly on 
 
            subjective pain.  
 
            A functional capabilities evaluation in 1987 concluded that 
 
            claimant suffered from symptom magnification.  Claimant was 
 
            also evaluated in Indiana by Robert K. Silbert, M.D., and 
 
            the Indiana Center for Rehabilitation Medicine.  The 
 
            conclusion of the center was that claimant had psychogenic 
 
            problems with secondary gain factors. 
 
            Thus, claimant has seen numerous physicians, but none have 
 
            given claimant a rating of permanent physical impairment.  
 
            Most of claimant's physicians state that the pain she 
 
            reports has a psychological, rather than physical, origin.  
 
            There is no medical evidence in the record indicating that 
 
            claimant's psychological condition is itself caused by her 
 
            injury.  Claimant bears the burden of proof to show that she 
 
            has permanent disability causally related to her work 
 
            injury.  Claimant has failed to carry her burden.  
 
            Taking the medical evidence as a whole, it is found that 
 
            claimant has not shown any evidence of permanent physical 
 
            disability.  Claimant's reported symptoms are exaggerated, 
 
            and there is no objective finding of permanent impairment to 
 
            claimant's back.  Although claimant has shown an injury 
 
            arising out of and in the course of her employment, she has 
 
            not shown that the injury resulted in any permanent 
 
            disability.  
 
            Claimant injured her back on April 7, 1986.  Claimant has 
 
            been paid temporary total disability benefits or temporary 
 
            partial disability benefits through March 17, 1987.  
 
            Claimant has been off work since March 17, 1987.  Claimant 
 
            seeks additional temporary total disability benefits or 
 
            healing period benefits from March 17, 1987.
 
            Following her April 7, 1986 injury, claimant was released to 
 
            return to work in August of 1986 by Dr. Lentini.  Claimant 
 
            was also released to return to part-time work by Dr. Durnin 
 
            in August of 1987.  There is no medical evidence that 
 
            claimant was prohibited from working after March 17, 1987, 
 
            other than claimant's own testimony that she was unable to 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            do so.  It has already been determined that much of 
 
            claimant's perception of pain is psychological in origin.  
 
            After leaving work in March 1987, claimant was evaluated by 
 
            Dr. Durnin, who reiterated Dr. Lentini's conclusion that 
 
            claimant should return to work.  In that claimant has failed 
 
            to establish permanent disability, claimant is not entitled 
 
            to healing period benefits.  Claimant has also failed to 
 
            carry her burden to show that she is entitled to temporary 
 
            total disability benefits beyond March 17, 1987.
 
            Claimant seeks medical benefits.  Claimant did suffer an 
 
            injury arising out of and in the course of her employment.  
 
            Although her condition may be exaggerated, nevertheless the 
 
            medical services provided were related to the effects of the 
 
            work injury.  Claimant is entitled to the medical benefits 
 
            sought.
 
            WHEREFORE, the decision of the deputy is reversed in part 
 
            and affirmed in part.
 
            ORDER
 
            THEREFORE, it is ordered:
 
            That defendants shall pay the medical expenses listed in the 
 
            prehearing report.  Claimant shall be reimbursed for any of 
 
            these expenses paid by her.  Otherwise, defendants shall pay 
 
            the provider directly along with any lawful late payment 
 
            penalties imposed upon the account by the provider.
 
            That defendants shall receive credit for previous payment of 
 
            benefits under a non-occupational group insurance plan under 
 
            Iowa Code section 85.38(2) plus any tax deductions from 
 
            those payments, as set forth in the prehearing report.
 
            That defendants are to pay all costs of the arbitration 
 
            proceeding including the cost of transcription of the 
 
            hearing.
 
            
 
                 That defendants file claim activity reports as 
 
            requested by this agency pursuant to rule 343 IAC 3.1.
 
            Signed and filed this ____ day of August, 1991.
 
            
 
            
 
            
 
            
 
                      ________________________________
 
                               BYRON K. ORTON
 
                          INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Ms. Judith Ann Higgs
 
            Attorney at Law
 
            701 Pierce St., Suite 200
 
            P.O. Box 3086
 
            Sioux City, Iowa 51102
 
            
 
            Mr. Paul C. Thune
 
            Mr. Fred L. Morris
 
            Attorneys at Law
 
            218 6th Ave., Suite 300
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            P.O. Box 9130
 
            Des Moines, Iowa 50306
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
            1803, 1402.40
 
            Filed August 30, 1991
 
            Byron K. Orton
 
            LPW
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
            _____
 
                      :
 
            CONNIE GARRETT,     :
 
                      :
 
                 Claimant, :
 
                      :
 
            vs.       :
 
                      :      File No. 877007
 
            ROCHESTER PRODUCTS, :
 
                      :        A P P E A L
 
                 Employer, :
 
                      :      D E C I S I O N
 
            and       :
 
                      :
 
            ROYAL INSURANCE COMPANY, :
 
                      :
 
                 Insurance Carrier,  :
 
                 Defendants.    :
 
            ____________________________________________________________
 
            _____
 
            
 
            1803, 1402.40
 
            Claimant injured her back lifting a heavy bucket.  None of 
 
            the many physicians assigned claimant any permanent 
 
            impairment, but several of them diagnosed psychological 
 
            overlay and symptom magnification.  Claimant failed to carry 
 
            her burden to prove permanent disability, but did show an 
 
            injury arising out of and in the course of her employment.  
 
            Medical benefits only awarded.  
 
            
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         CONNIE GARRETT,
 
         
 
              Claimant,
 
         
 
         VS.
 
                                             File No. 877007
 
         ROCHESTER PRODUCTS,
 
                                         A R B I T R A T I 0 N
 
              Employer,
 
                                                D E C I S I 0 N
 
         and
 
         
 
         ROYAL INSURANCE COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              This is a proceeding in arbitration brought by Connie 
 
         Garrett, claimant, against Rochester Products, employer 
 
         (hereinafter referred to as Rochester) , and Royal Insurance 
 
         Company, insurance carrier, defendants, for workers' compensation 
 
         benefits as a result of an alleged injury on April 7, 1986.  On 
 
         August 6, 1990, a hearing was held on claimant's petition and the 
 
         matter was considered fully submitted at the close of this 
 
         hearing.
 
         
 
              The parties have submitted a prehearing report of contested 
 
         issues and stipulations which was approved and accepted as a part 
 
         of the record of this case at the time of hearing.  The testimony 
 
         and written exhibits received during the hearing are set forth in 
 
         the hearing transcript.
 
         
 
              According to the prehearing report, the parties have 
 
         stipulated to the following matters:
 
         
 
              1. An employee - employer relationship existed between 
 
         claimant and Rochester at the time of the alleged injury.
 
         
 
              2..Except for two periods of time from August 10, 1987 
 
         through September 10, 1987 (working part-time), and from May 14, 
 
         1990 through May 15, 1990, claimant has been off work since March 
 
         17, 1987.  Claimant agrees that she has been paid her entitlement 
 
         to temporary total disability or healing period benefits through 
 
         March 17, 1987, and the temporary partial disability entitlement 
 
         for the part-time work.  Claimant is seeking additional benefits 
 
         from March 18, 1987.
 
         
 
         
 
         
 
         GARRETT V. ROCHESTER PRODUCTS
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         Page 2
 
         
 
         
 
              3. If the injury is found to have caused permanent 
 
         disability, the type of disability is an industrial disability to 
 
         the body as a whole.
 
         
 
              4. Claimant's rate of weekly compensation in the event of an 
 
         award of weekly benefits from this proceeding shall be $316.91.
 
         
 
              5. The medical bills submitted by claimant at hearing were 
 
         fair and reasonable and causally connected to the medical 
 
         condition upon which claimant herein is based but the issue of 
 
         the causal connection of this condition to a work injury remains 
 
         at issue.
 
         
 
              6. Defendants are entitled to a credit under Iowa Code 
 
         section 85.38(2) for the amount of extended disability payments 
 
         less taxes paid as set forth in the prehearing report.
 
         
 
                                      ISSUES
 
         
 
              The parties submitted the following issues for determination 
 
         in this proceeding:
 
         
 
              I. Whether claimant received an injury arising out of and in 
 
         the course of employment;
 
         
 
              II. The extent of claimant's entitlement to disability 
 
         benefits; and,
 
         
 
              III. The extent of claimant's entitlement to medical 
 
         benefits.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              Having heard the testimony and considered all the evidence, 
 
         the deputy industrial commissioner finds as follows:
 
         
 
              A credibility finding is necessary to this decision as 
 
         defendants place claimant's credibility at issue during 
 
         cross-examination as to the nature and extent of the injury and 
 
         disability.   From her demeanor while testifying, claimant is 
 
         found credible.  From their demeanor while testifying, claimant's 
 
         witnesses, as well as defense witnesses, were found credible as 
 
         well.   Defendants unsuccessfully attacked claimant's credibility 
 
         by evidence showing that she suffers from chronic pain syndrome 
 
         and histrionic or exaggerated pain.  Defendants also 
 
         unsuccessfully attacked claimant's credibility by the use of a 
 
         private investigator.  As will be explained below, the 
 
         development of chronic pain syndrome and the related 
 
         psychological difficulties is not an unusual development in 
 
         extended disability cases in the experience of this deputy 
 
         commissioner and this fact does not effect claimant's truth 
 
         telling ability.  Also, the investigative tapes and reports 
 
         failed to show anything sig-
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         GARRETT V. ROCHESTER PRODUCTS 
 
         Page 3
 
         
 
         
 
         nificant with reference to claimant's extended disability.  
 
         Claimant never contended that she was unable to move about or 
 
         conduct the usual activities of life.  She is only very limited 
 
         in what she can do and the investigative reports failed to show 
 
         otherwise.  Little weight could be given to the investigator's 
 
         statements that claimant moved about freely without disability 
 
         when the investigator had little or no medical training and had 
 
         been hired for the purpose of discrediting claimant.  On the 
 
         other hand, claimant's primary treating physician in this case 
 
         believes claimant's pain to be real and has imposed very severe 
 
         restrictions upon her ability to return to gainful employment.
 
         
 
              Claimant worked for Rochester from August 1984 until March 
 
         1987, at which time she left work upon the advice of her 
 
         physicians.  Claimant has unsuccessfully attempted to return to 
 
         work twice since that time.  Claimant worked as a 
 
         laborer/assembler in the manufacture and assembly of automotive 
 
         fuel injectors.  This required claimant to lift up to 30 to 35 
 
         pounds with prolonged sitting and standing, stooping and 
 
         repetitive bending along with the use of outstretched arms both 
 
         below and above the shoulders.  Claimant earned over $12.00 per 
 
         hour in her job at the time of the alleged injury along with a 
 
         lucrative fringe benefit program including life, health and 
 
         dental insurance; retirement benefits; profit sharing; vacation 
 
         pay; and, bonus or incentive pay.  She also was able to increase 
 
         her income from working overtime.    Claimant indicated that she 
 
         enjoyed her work at Rochester due to the plant's, family 
 
         atmosphere and clean working conditions.  Claimant has not 
 
         returned to work at Rochester because of her disability.  
 
         Defendants contend that she was primarily interested in returning 
 
         to her home state of Indiana and that it was her decision to 
 
         leave the employment of Rochester.  This is not supported by the 
 
         evidence as her inability to continue working at Rochester is 
 
         verified by her primary treating orthopedic surgeon, Nino R. 
 
         Lentini, M.D.
 
         
 
              On or about April 7, 1986, claimant suffered an injury 
 
         arising out of and in the course of her employment at Rochester.  
 
         Claimant injured her mid and lower back while lifting a bucket of 
 
         parts weighing approximately 30 pounds above her shoulders.  
 
         After reporting her injury to her supervisors, claimant sought 
 
         treatment for back and shoulder pain along with general muscle 
 
         spasms in the back from John Redwine, D.O.  Dr. Redwine treated 
 
         claimant over the next several weeks with physical therapy and 
 
         medication.  When this treatment proved unsuccessful in relieving 
 
         claimant's pain, claimant was referred to an orthopedic surgeon, 
 
         Dr. Lentini, who diagnosed lumbosacral strain/sprain and 
 
         continued conservative care.  In August 1986, Dr. Lentini 
 
         released claimant to return to work and stated that her permanent 
 
         partial impairment was possibly two percent but he stated that it 
 
         was premature to provide such an impairment rating.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         GARRETT V. ROCHESTER PRODUCTS
 
         Page 4
 
         
 
         
 
              Claimant returned to her job at Rochester between August 
 
         1986 and March 1987 but stated she continued to experience 
 
         difficulties with her back.          She continued taking 
 
         medications for pain on a daily basis and the pain continued 
 
         despite performing lighter duty work.  In March 1987, claimant 
 
         stated that her back worsened and she could no longer work.  The 
 
         pain also began radiating into her buttocks and down her left 
 
         leg.  Claimant stated that she began to walk with a limp.  As Dr. 
 
         Lentini had moved to Indiana, claimant was referred for 
 
         additional treatment to Robert Durnin, M.D., a specialist in 
 
         physical medicine and rehabilitation.   After his testing of 
 
         claimant, Dr. Durnin's only explanation for claimant's pain was a 
 
         possible degenerative disc.  He released claimant for part-time 
 
         work in August 1987.  However, claimant was only able to continue 
 
         for approximately one month.  Dr. Durnin felt that claimant's 
 
         pain was inconsistent and that she exaggerated her pain 
 
         complaints when he could find no organic cause for the pain.  Dr. 
 
         Durnin also indicates that he could not find any objective 
 
         evidence to support a rating of permanent partial impairment.  He 
 
         refused to provide a rating based only upon claimant's subject 
 
         complaints in his attempts to further diagnose claimant's 
 
         condition and treat claimant in March 1988.
 
         
 
              Michael Morrison, M.D., another orthopedic surgeon, examined 
 
         claimant in July 1987 and likewise found no objective evidence of 
 
         abnormality.  He stated that with physical therapy and exercise, 
 
         claimant should be able to return to work without restrictions.  
 
         In September 1987, upon the recommendation of Dr. Durnin, 
 
         claimant was evaluated by a clinical psychologist who found 
 
         claimant ' to be "hypochondriacal" and that her pain complaints 
 
         have psychogenic causes.     However, he stated that an organic 
 
         cause of claimant's pain could not be ruled out.  Dr. Durnin, in 
 
         his deposition, likewise stated he could find no evidence to 
 
         suggest that claimant suffers pain.  However, he could also find 
 
         no evidence to suggest that she did not suffer pain.  Claimant 
 
         had been examined in April of 1987 by a psychiatrist, J. M. 
 
         Duggan, D.O., who stated that claimant suffers from an affective 
 
         disorder in response to her disability.  In July 1987, claimant 
 
         was evaluated by Leonard E. Weber, M.D., a neurologist, who found 
 
         that claimant was suffering from chronic pain disorder with 
 
         possible exaggerated symptoms due to psychiatric problems.  He 
 
         also could find no objective cause of claimant's symptoms  and 
 
         rated claimant as having no permanent partial impairment  on an 
 
         objective basis but a zero to five percent permanent partial 
 
         impairment due to subject pain.  In November 1987, claimant's 
 
         functional capabilities were evaluated.  According to therapists 
 
         conducting the evaluation, claimant is able to perform sedentary 
 
         work but the claimant has symptom magnification and is very 
 
         fearful of reinjury.  The evaluator recommended that a
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         GARRETT V. ROCHESTER PRODUCTS
 
         Page 5
 
         
 
         
 
         work hardening program be provided to claimant to increase her 
 
         physical capabilities.
 
         
 
              In March 1988, claimant moved back to her home in Muncie, 
 
         Indiana.  She had moved from Muncie when she began her employment 
 
         at Rochester.  Claimant stated that she left because she wanted a 
 
         specialist due to the fact that only a general practitioner was 
 
         providing care for her in March of 1988.  She immediately sought 
 
         treatment from her former physician, Dr. Lentini, when she 
 
         arrived in Muncie.  Claimant also stated that one of the reasons 
 
         she moved back to Indiana was that she needed the assistance from 
 
         her family to care for herself.
 
         
 
              After his initial examination of claimant in Indiana, Dr. 
 
         Lentini stated that claimant should resume physical therapy but 
 
         this was later discontinued because claimant failed to improve.  
 
         Dr. Lentini has not actively treated claimant since that time, 
 
         but referred claimant for evaluation and treatment by Robert K. 
 
         Silbert, M.D., and the staff of the Indiana Center for 
 
         Rehabilitation Medicine.  Both Dr. Silbert and the staff at the 
 
         Indiana Center diagnosed that claimant has psychogenic problems 
 
         coping with her pain and recommended aggressive treatment to 
 
         correct this problem.  Psychologists at the Center recognized 
 
         that it is quite likely that there is some secondary gain factors 
 
         involved but this did not alter their recommendation that 
 
         claimant would benefit from participation in the rehabilitation 
 
         program offered at the Indiana Center.
 
         
 
              Dr. Lentini continued to see claimant and in his deposition 
 
         testified that he believes claimant's pain is real from his 
 
         clinical evaluation of claimant.  He also has imposed activity 
 
         restrictions on claimant's behavior of no lifting over 15 pounds; 
 
         no stooping, repetitive bending, crouching or reaching; or, work 
 
         with arms extended forward over head.  He released claimant to 
 
         try a light duty job at Rochester in May of 1990 called a "dial" 
 
         job but claimant reported that she could not tolerate the arm 
 
         reaching.  This work was discontinued after two days.  The plant 
 
         nurse and benefit administrator at Rochester, Shirley Patch, 
 
         testified at hearing that claimant did receive ice packs during 
 
         her attempts to return to work.  She also stated that in May 
 
         1990, while performing the dial job, claimant was willing to try 
 
         the job but appeared uncomfortable doing so.
 
         
 
              It is found that claimant reached maximum healing and 
 
         suffers from a significant permanent partial impairment due to 
 
         the April 7, 1986 injury.  Claimant most likely reached maximum 
 
         healing when Dr. Durnin ended his care on March 18, 1988.  Since 
 
         that time, physicians have not made any further effort to 
 
         diagnose her back condition and any treatment she has received 
 
         has been maintenance in nature.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         GARRETT V. ROCHESTER PRODUCTS
 
         Page 6
 
         
 
         
 
              The permanent partial impairment finding is based upon the 
 
         views of Dr. Lentini.  His views are given greater weight than 
 
         those of Dr. Durnin.  Although Dr. Durnin could give no permanent 
 
         partial impairment opinion, this is based upon a failure to find 
 
         objective evidence of disease.  Dr. Lentini has a longer clinical 
 
         involvement with claimant and appeared to have a specialty more 
 
         clearly associated with the diagnosis and treatment of specific 
 
         low back problems.  Dr. Lentini clearly stated that claimant has 
 
         permanent partial impairment even based upon loss of range of 
 
         motion.  The doctor stated in his deposition that he would be 
 
         willing to opine what that percentage was if asked to do so.  No 
 
         one at the time of the deposition asked him to do so.  However, 
 
         this is an industrial disability case and the work restrictions 
 
         Dr. Lentini imposed are more important in the permanent 
 
         disability analysis than a specific percentage of impairment.  It 
 
         is found that claimant had no back problems prior to April 7, 
 
         1986.  It is found that to the extent any of the permanent 
 
         partial impairment is due to claimant's psychogenic chronic pain 
 
         syndrome, that condition was also caused by the April 7, 1986 
 
         injury.  Claimant had no emotional or depression problems before 
 
         the work injury.  This is again based upon the views of Dr. 
 
         Lentini and the diagnosis of the clinical psychologist and 
 
         psychiatrist involved in this case.  It is the experience of this 
 
         deputy commissioner that the development of histrionic 
 
         symptomatology and chronic pain syndrome is not unusual in long 
 
         term disability cases.  A claim for permanent partial disability 
 
         benefits should not be denied because of an emotional problem 
 
         caused by the work injury.  It is found that only aggressive pain 
 
         therapy, as recommended by the Indiana Center for Rehabilitation 
 
         Medicine, will break the cycle of chronic pain syndrome.  This 
 
         treatment also recommended by Dr. Lentini and Dr. Silbert, is in 
 
         claimant's best interest as it appears to be the most logical 
 
         course of action in any further attempt to increase her physical 
 
         capabilities.
 
         
 
              Claimant has not shown by the evidence that she is 
 
         permanently totally disabled or that she has no earning capacity.  
 
         Although her physical and mental problems are all work related, a 
 
         portion of her problems are exaggerated or histrionic due to her 
 
         chronic pain syndrome problems.  Furthermore, no physician in 
 
         this case has  stated that claimant is unable to work in any 
 
         capacity.  It is found that the work injury of April 7, 1986, is 
 
         a cause of a 50 percent loss of earning capacity.  Claimant is  
 
         relatively young at age 34 and suitable for retraining.  Her 
 
         primary work history involves factory work  in automotive plants 
 
         and due to her work injury, this is no longer possible.  This 
 
         will result in a substantial loss of earnings.  Claimant earned  
 
         $37,249.00 in wages during the year prior to her injury in 
 
         addition to lucrative fringe benefits.  On the other hand, 
 
         claimant is a high' school graduate and was on the honor roll in 
 
         school.  Her work history includes auto
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         GARRETT V. ROCHESTER PRODUCTS 
 
         Page 7
 
         
 
         
 
         sales while working in her father's automobile business.  
 
         Claimant has not shown that she has searched for suitable 
 
         employment in the geographical area of her current residence.  
 
         The only functional capability assessment performed on the 
 
         claimant indicates that she is suitable for sedentary work.  The 
 
         fact that claimant moved her residence to the state of Indiana 
 
         had no effect on her loss of earning capacity.  Due to the 
 
         restrictions imposed by Dr. Lentini, claimant is unable to 
 
         perform any of the jobs at Rochester offered by defendants in 
 
         Sioux City, Iowa.
 
         
 
              In light of the finding of permanent partial disability in 
 
         this case, the medical expenses listed in the prehearing report 
 
         are likewise found causally connected to the injury of April 7, 
 
         1986.  It is also found that defendants have denied liability for 
 
         this injury.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              I. Claimant has the burden of proving by a preponderance of 
 
         the evidence that claimant received an injury which arose out of 
 
         and in the course of employment.  The words "out of" refer. to 
 
         the cause or source of the injury.  The words "in the course of" 
 
         refer to the time and place and circumstances of the injury.  
 
         See Cedar Rapids Community Sch. v. Cady, 278 N.W.2d 298 (Iowa 
 
         1979) ; Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 402, 68 
 
         N.W.2d 63 (1955).  An employer takes an employee subject to any 
 
         active or dormant health impairments, and a work connected injury 
 
         which more than slightly aggravates the condition is considered 
 
         to be a personal injury.  Ziegler v. United States Gypsum Co., 
 
         252 Iowa 613, 620, 106 N.W.2d 591 (1960) and cases cited therein.
 
         
 
              In the case sub judice, there was little dispute in the 
 
         record that claimant suffered a work injury on April 7, 1986.  
 
         The fighting issue was the nature and extent of this injury.
 
         
 
              II. Claimant must establish by a preponderance of the 
 
         evidence the extent of weekly benefits for permanent disability 
 
         to which claimant is entitled.  As the claimant has shown that 
 
         the work injury was a cause of a permanent physical impairment or 
 
         limitation upon activity involving the body as a whole, the 
 
         degree of permanent disability must be measured pursuant to Iowa 
 
         Code section 85.34(2)(u) . However, unlike scheduled member 
 
         disabilities, the degree of disability under this provision is 
 
         not measured solely by the extent of  a functional impairment or 
 
         loss of use of a body member.  A disability to the body as a 
 
         whole or an "industrial disability" is a loss of earning capacity 
 
         resulting from the work injury.  Diederich v. Tri-City Railway 
 
         Co., 219 Iowa .587, 593, 258 N.W. 899 (1935).  A physical 
 
         impairment or restriction on work activity may or
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         GARRETT V. ROCHESTER PRODUCTS 
 
         Page 8
 
         
 
         
 
         may not result in such a loss of earning capacity.  The extent to 
 
         which a work injury and a resulting medical condition has 
 
         resulted in an industrial disability is determined from 
 
         examination of several factors.  These factors include the 
 
         employee's medical condition prior to the injury, immediately 
 
         after the injury and presently; the situs of the injury, its 
 
         severity and the length of healing period; the work experience of 
 
         the employee prior to the injury, after the injury and potential 
 
         for rehabilitation; the employee's qualifications intellectually, 
 
         emotionally and physically; earnings prior and subsequent to the 
 
         injury; age; education; motivation; functional impairment as a 
 
         result of the injury; and inability because of the injury to 
 
         engage in employment for which the employee is fitted.  Loss of 
 
         earnings caused by a job transfer for reasons related to the 
 
         injury is also relevant.  Olson v. Goodyear Service Stores, 255 
 
         Iowa 1112, 1121, 125 N.W.2d 251, 257 (1963) . See Peterson v. 
 
         Truck Haven Cafe, Inc., (Appeal Decision, February 28, 1985).
 
         
 
              In the case sub judice, it was found that claimant has 
 
         suffered a 50 percent loss of earning capacity as a result of the 
 
         work injury.  Based upon such a finding, claimant is entitled as 
 
         a matter of law to 250 weeks of permanent partial disability 
 
         benefits under Iowa Code section 85.34(2)(u) which is 50 percent 
 
         of 500 weeks, the maximum allowable for an injury to the body as 
 
         a whole in that subsection.  Further treatment of claimant's pain 
 
         syndrome will be ordered herein.  If indeed this results in 
 
         increased capabilities and a change of condition increasing her 
 
         earning capacity, this agency is available upon application to 
 
         review this award at a later date.
 
         
 
              III. As claimant has established entitlement to permanent 
 
         partial disability benefits, claimant is entitled to weekly 
 
         benefits for healing period under Iowa Code section 85.34 from 
 
         the date of injury until she returns to work; until she is 
 
         medically capable of returning to substantially similar work to 
 
         the work she was performing at the time of injury; or, until it 
 
         is indicated that significant permanent injury is not 
 
         anticipated, whichever occurs first.
 
         
 
              It was found that claimant has reached maximum healing on 
 
         March 18, 1988.  Healing period benefits will be awarded from 
 
         March 18, 1987 through March 18, 1988, except for the period of 
 
         time claimant worked from August 10, 1987 through September 10, 
 
         1987, as stipulated by the parties.
 
         
 
              IV. Pursuant to Iowa Code section 85.27, claimant is 
 
         entitled to payment of reasonable medical expenses incurred for 
 
         treatment of a work injury.  In the case at bar, it is found that 
 
         the requested medical expenses were causally connected to the 
 
         injury.  Also, defendants have denied liability for the injury 
 
         and did not have the right to choose the care.  Kindhart v. Fort 
 
         Des Moines Hotel, I Iowa Industrial
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         GARRETT V. ROCHESTER PRODUCTS 
 
         Page 9
 
         
 
         
 
         Commissioner Decisions 3, 611 (Appeal Decision 1985); Barnhart v. 
 
         MAQ Incorporated, I Iowa Industrial Commissioner Report 16 
 
         (Appeal Decision 1981).  As the parties have stipulated as to the 
 
         reasonableness of the requested expenses, all of the requested 
 
         expenses will be awarded.
 
         
 
              Also, claimant has shown that it is in her best interests to 
 
         have further treatment of her pain syndrome recommended by Dr. 
 
         Lentini and such will be ordered.
 
         
 
                                      ORDER
 
         
 
              1. Defendants shall pay to claimant two hundred fifty (250) 
 
         weeks of permanent partial disability benefits at the rate of 
 
         three hundred sixteen and 91/100 dollars ($316.91) per week from 
 
         March 19, 1988.
 
         
 
              2. Defendants shall pay to claimant healing period benefits 
 
         from March 18, 1987 through March 18, 1988, at the rate of three 
 
         hundred sixteen and 91/100 dollars ($316.91) per week.
 
         
 
              3. Defendants shall pay the medical expenses listed in the 
 
         prehearing report.  Claimant shall be reimbursed for any of these 
 
         expenses paid by her otherwise, defendants shall pay the provider 
 
         directly along with any lawful late payment penalties imposed 
 
         upon the account by the provider.
 
         
 
              4. Henceforth, claimant's authorized physician shall be Nino 
 
         R. Lentini, M.D., and Robert K. Silbert, M.D., and the defendants 
 
         are ordered to provide the care these physicians recommend 
 
         including treatment of her pain syndrome by the Indiana Center 
 
         for Rehabilitation Medicine.
 
         
 
              5. Defendants shall pay accrued weekly benefits in a lump 
 
         sum and shall receive credit against this award for benefits 
 
         previously paid as set forth in the prehearing report.
 
         
 
              6. Defendants shall receive credit for previous payment of 
 
         benefits under a non-occupational group insurance plan under Iowa 
 
         Code section 85.38(2) plus any tax deductions from those 
 
         payments, as set forth in the prehearing report.
 
         
 
              7. Defendants shall pay interest on weekly benefits awarded 
 
         herein as set forth in Iowa Code section 85.30.
 
         
 
              8. Defendants shall pay the costs of this action pursuant to 
 
         Division of Industrial Services Rule 343 IAC 4.33 including 
 
         reimbursement to claimant for any filing fee paid in this matter 
 
         as set forth in the prehearing report.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         GARRETT V. ROCHESTER PRODUCTS
 
         Page 10
 
         
 
         
 
              9. Defendants shall file activity reports on the payment of 
 
         this award as requested by this agency pursuant to Division of 
 
         Industrial Services Rule 343 IAC 3.1.
 
         
 
         
 
         
 
              Signed and filed this 12th day of December, 1990.
 
         
 
         
 
         
 
         
 
         
 
         
 
                                         LARRY P. WALSHIRE
 
                                         DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Ms. Judith Ann Higgs
 
         Attorney at Law
 
         701 Pierce St STE 200
 
         P 0 Box 3086
 
         Sioux City  IA  51102.
 
         
 
         Mr. Paul C. Thune
 
         Mr. Fred L. Morris
 
         Attorneys at Law
 
         218 6th Ave STE 300
 
         P 0 Box 9130
 
         Des Moines IA 50306
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                                         5-1803
 
                                         Filed December 12, 1990
 
                                         LARRY P. WALSHIRE
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
          CONNIE GARRETT,
 
         
 
               Claimant,
 
         
 
          VS.
 
         
 
          ROCHESTER PRODUCTS,                         File No. 877007
 
         
 
               Employer,                             A R B I T R A T I O 
 
         N
 
         
 
          and                                            D E C I S I O N
 
         
 
          ROYAL INSURANCE COMPANY,
 
          
 
               Insurance Carrier,
 
               Defendants.
 
         
 
         
 
         
 
         
 
         5-1803
 
         
 
              Extent of permanent disability benefits.
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
 
 
 
 
 
 
 
 
 
 
 
 
             BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
_________________________________________________________________
 
            
 
CONNIE S. GARRETT,    
 
            
 
     Claimant,   
 
            
 
vs.         
 
                                        File No. 877007
 
ROCHESTER PRODUCTS,   
 
                                         R E M A N D
 
     Employer,   
 
                                       D E C I S I O N
 
and         
 
            
 
ROYAL INSURANCE COMPANY,   
 
            
 
     Insurance Carrier,    
 
     Defendants.      
 
_________________________________________________________________
 
 
 
This case is on remand from the Iowa Court of Appeals.  Claimant 
 
originally injured her back on April 7, 1986.  Claimant sought benefits 
 
from her employer, and an arbitration hearing resulted in an award of 
 
benefits for permanent partial disability and medical benefits.  On 
 
appeal to the industrial commissioner, medical benefits only were 
 
awarded to claimant.  Claimant was found not entitled to permanent 
 
disability benefits.
 
 
 
On judicial review, the decision of the industrial commissioner was 
 
reversed.  On appeal to the Iowa Court of Appeals, the decision of the 
 
district court was affirmed and this case was remanded to the 
 
industrial commissioner.
 
 
 
The remand decision of the Iowa Court of Appeals states:  
 
This case must be reversed and remanded for the industrial commissioner 
 
to make the determination as to disability and its cause and extent 
 
after considering all the evidence and applying the law, including the 
 
principles discussed below which, as far as the commissioner's appeal 
 
decision indicates, were not considered in the commissioner's decision.
 
 
 
The principles referred to above were precedents dealing with workers 
 
injured on the job who, as a result of their physical injury, suffered 
 
a psychological or mental condition or disorder.  The court of appeals 
 
cited Deaver v. Armstrong Rubber Co., 170 N.W.2d 455 (Iowa 1969); and 
 
Mortimer v. Fruehauf Corp., 502 N.W.2d 12 (Iowa 1993).
 
 
 
It was previously found that claimant had failed to carry her burden of 
 
proof to show that the physical condition she complained of was caused 
 
by a physical injury.  The appeal decision filed August 30, 1991, found 
 
that:
 
 
 
[C]laimant has not shown any evidence of permanent physical disability. 
 
 
 
 Claimant's reported symptoms are exaggerated, and there is no 
 
objective finding of permanent impairment to claimant's back.  Although 
 
claimant has shown an injury arising out of and in the course of her 
 
employment, she has not shown that the injury resulted in any permanent 
 
disability.
 

 
 
 
 
 
 
 
 
 
 
 
That finding is again adopted in this remand decision.  Claimant has 
 
not shown that she has suffered permanent physical disability as a 
 
result of her injury.
 
 
 
In determining whether claimant has established that she suffers from a 
 
work-related psychological condition, the precedents referred to by the 
 
court of appeals will be considered.  Deaver and Mortimer establish 
 
that, in Iowa, a claimant may be entitled to benefits for a 
 
psychological or mental condition caused by a physical work injury.  
 
Mortimer further held that a psychological condition caused or 
 
aggravated by a scheduled injury is to be compensated as an unscheduled 
 
injury.
 
 
 
To establish entitlement to benefits, claimant bears the burden of 
 
proof to show that she is disabled by a psychological condition that 
 
was caused by her work injury.
 
 
 
Both J.M. Duggan, D.O., and Leonard E. Weber, M.D., noted that claimant 
 
tended to exaggerate her symptoms.  Claimant was found to be 
 
"hypochondriacal," and motivated by "secondary gain."
 
 
 
Claimant was also treated by Robert Durnin, M.D., who concluded that 
 
claimant's pain was inconsistent and that she exaggerated her pain 
 
complaints.  Dr. Durnin refused to assign a rating of physical 
 
impairment based solely on claimant's subjective complaints of pain.
 
 
 
A clinical psychologist examined claimant and found her to be 
 
"hypochondriacal."
 
 
 
Nino R. Lentini, M.D., an orthopedic surgeon, treated claimant and 
 
conducted an MMPI test, which revealed a suspect profile suggesting 
 
exaggeration of pain complaints and secondary gain.  Thomas McConnell, 
 
M.D., also diagnosed secondary gain and psychological overlay.
 
 
 
A review of the definitions of the terms referred to above is in order. 
 
"Secondary gain" is defined as:  "The external gain that is derived 
 
from any illness, such as personal attention and service, monetary 
 
gains, disability benefits, and release from unpleasant 
 
responsibility."  A Psychiatric Glossary, American Psychiatric 
 
Association, Fourth Edition.
 
 
 
Two of claimant's physicians described her as "hypochondriacal," which 
 
is defined as:  "A neurosis characterized by preoccupation with the 
 
body and with fear of presumed diseases of various organs.  Although 
 
the fears are not delusional in quality, they persist despite 
 
reassurances."  A Psychiatric Glossary, American Psychiatric 
 
Association, Fourth Edition.
 
 
 
"Hypochondria" is defined as:  "extreme depression of mind or spirits 
 
often centered on imaginary physical ailments."  Webster's Medical Desk 
 
Dictionary, Merriam-Webster.
 
 
 
The greater weight of the medical testimony establishes that claimant's 
 
complaints of pain are due to secondary gain and hypochondria.  A 
 
distinction must be made between psychological conditions arising from 
 
physical injuries that so impair a person's ability to function 
 
mentally that their ability to perform work is affected, and 
 
preexisting psychological conditions that lead a person to exaggerate 
 
their symptoms from a physical injury in order to obtain financial 
 
benefits.  The medical and lay evidence in this case does not show a 
 
worker who suffered a physical injury and, as a result of that injury, 
 
now also suffers a psychological injury as well.  Rather, the evidence 
 
as a whole shows a worker who suffered a nondisabling physical injury 
 
and, because of personality traits not shown to be caused by the work 
 
injury, now seeks to exaggerate those symptoms in order to obtain 
 

 
 
 
 
 
 
 
benefits.  A work injury may indeed cause a worker to suffer from 
 
depression, hysteria, or some other mental condition that is disabling. 
 
 
 
Such workers are entitled to compensation under the workers' 
 
compensation system.  But references to "psychological overlay," 
 
"secondary gain," and "hypochondria" refer instead to a predilection on 
 
the part of a patient to maximize their complaints beyond their true 
 
extent in order to profit financially.  As such, the tendency to engage 
 
in such behavior does not constitute a psychological "injury," but 
 
rather constitute an attempt to obtain that to which the claimant is 
 
not entitled.
 
 
 
A physical injury may indeed cause a psychological condition that is 
 
disabling and therefore should be compensated.  But this fact should 
 
not lead to the conclusion that a claimant may subjectively inflate and 
 
exaggerate his or her physical condition beyond all verifiable criteria 
 
with the intent to maximize an award, and then find that attempt 
 
rewarded with a determination that the attempt constitutes a 
 
"psychological injury" that should be compensated.  Claimant's 
 
individual predilection to exaggerate her symptoms in order to obtain 
 
financial gain is not a compensable psychological condition such as 
 
contemplated by Deaver, Mortimer, and other cases.
 
 
 
It is noted that most of the physicians in this case opine that 
 
claimant's complaints reflect a tendency to exaggerate symptoms, rather 
 
than a genuine psychological condition.  No psychiatrist or even a 
 
physician specifically opines that claimant has a disabling 
 
psychological condition such as depression, anxiety, etc.  At most, one 
 
physician describes claimant's condition as due to "psychogenic" 
 
factors caused by her work injury.
 
 
 
The lay testimony of claimant as to her condition is also considered.  
 
However, it is noted that a diagnosis of functional overlay necessarily 
 
affects the weight to be given a claimant's testimony as to her 
 
symptoms.  See Terwilliger v. Snap-on Tools Corp., No. 3/94-212, slip 
 
op., (Sup. Ct. Feb. 22, 1995).  It is therefore determined that the 
 
greater weight of the evidence does not establish that claimant suffers 
 
from a psychological condition caused by her work injury.  Claimant has 
 
failed to carry her burden of proof to show that she has suffered a 
 
physical injury that has resulted in permanent physical disability; 
 
claimant has also failed to show that she has suffered a disabling 
 
psychological condition as a result of her injury.  As previously 
 
determined, claimant has shown entitlement to medical benefits that 
 
were awarded in the appeal decision of the industrial commissioner.
 
 
 
Signed and filed this ____ day of February, 1995.      
 
                               ________________________________                 
 
                               BYRON K. ORTON           
 
                               INDUSTRIAL COMMISSIONER
 
 
 
Copies To:
 
 
 
Ms. Judith Ann Higgs
 
Attorney at Law
 
P.O. Box 3086
 
Sioux City, Iowa 51102-3086
 
 
 
Mr. Fred L. Morris
 
Attorney at Law
 
P.O. Box 9130
 
Des Moines, Iowa 50306-9130
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                 2204
 
                                 Filed February 28, 1995
 
                                 Byron K. Orton
 
 
 
            BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
________________________________________________________________
 
          
 
CONNIE S. GARRETT, 
 
          
 
     Claimant,
 
          
 
vs.       
 
                                         File No. 877007
 
ROCHESTER PRODUCTS,     
 
                                           R E M A N D
 
     Employer, 
 
                                         D E C I S I O N
 
and       
 
          
 
ROYAL INSURANCE,   
 
          
 
     Insurance Carrier,  
 
     Defendants.    
 
________________________________________________________________
 
2204
 
Claimant was previously held not to have suffered a physical injury.  
 
On remand, held that claimant had not suffered a psychological injury 
 
either.  Diagnoses of "functional overlay," "symptom magnification," 
 
"secondary gain," etc., do not constitute compensable psychological 
 
conditions caused by the physical injury; rather, these refer to 
 
claimant's tendency to exaggerate her symptoms in order to obtain 
 
benefits.  Claimant awarded medical expenses only.
 
 
 
 
            
 
 
 
 
 
 
 
 
 
 
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
		                      :
 
            DANIEL S. HALL, 	      :
 
		                      :
 
                 Claimant,	      :
 
		                      :
 
		            vs.       :
 
        		              :      File No. 877031
 
            PST, INC.,  	      :
 
		                      :        A P P E A L
 
                 Employer, 	      :
 
		                      :      D E C I S I O N
 
		            and       :
 
        		              :
 
            FIREMANS FUND INSURANCE,  :	
 
		                      :
 
                 Insurance Carrier,   :
 
                 Defendants.          :
 
            ___________________________________________________________
 
            The record, including the transcript of the hearing before 
 
            the deputy and all exhibits admitted into the record, has 
 
            been reviewed de novo on appeal.  The decision of the deputy 
 
            filed March 13, 1991, is affirmed and is adopted as the 
 
            final agency action in this case. 
 
            Claimant shall pay the costs of the appeal, including the 
 
            preparation of the hearing transcript.
 
            Signed and filed this ____ day of October, 1991.
 
            
 
            
 
            
 
            
 
                      ________________________________
 
                               BYRON K. ORTON
 
                           INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Peter Soble
 
            Attorney at Law
 
            505 Plaza Office Bldg.
 
            Rock Island, IL 61201
 
            
 
            Mr. Allan Hartsock
 
            Attorney at Law
 
            4th Floor Rock Island Bldg.
 
            PO Box 4298
 
            Rock Island, IL 61204-4298
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                      9998
 
                      Filed October 17, 1991
 
                      BYRON K. ORTON
 
                      MDM
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
		                      :
 
            DANIEL S. HALL,	      :
 
                      		      :
 
                 Claimant, 	      :
 
		                      :
 
		            vs.       :
 
        		              :      File No. 877031
 
            PST, INC.,  	      :
 
 		                      :        A P P E A L
 
                 Employer, 	      :
 
		                      :      D E C I S I O N
 
		            and       :
 
                		      :
 
            FIREMANS FUND INSURANCE,  :
 
                      		      :
 
                 Insurance Carrier,   :
 
                 Defendants.          :
 
            ___________________________________________________________
 
            
 
            9998
 
            
 
                 Summary affirmance of deputy's decision filed March 13, 
 
            1991.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            DANIEL S. HALL,               :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No.  877031
 
            PST, INC.,                    :
 
                                          :     D E C I S I O N
 
                 Employer,                :
 
                                          :           O N      
 
            and                           :
 
                                          : A T T O R N E Y  F E E S
 
            FIREMANS FUND INSURANCE,      :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                 This is a proceeding regarding attorney fees brought by 
 
            attorney Peter Soble against claimant Daniel S. Hall in the 
 
            above captioned matter.  This matter came on for hearing on 
 
            February 1, 1991, at Davenport, Iowa.  The record in the 
 
            proceeding consists of Peter Soble's exhibits 1 through 57, 
 
            Daniel Hall's exhibits 1 through 8 and testimony from Peter 
 
            Soble, Allan Hartsock, Brenda Irwin, Daniel S. Hall and 
 
            Linda Soble.
 
            
 
                                      issues
 
            
 
                 The sole issue is Peter Soble's entitlement to attorney 
 
            fees and costs.
 
            
 
                                 findings of fact
 
            
 
                 Having considered all the evidence received the 
 
            following findings of fact are made:
 
            
 
                 Daniel S. Hall retained attorney Peter Soble to pursue 
 
            a workers' compensation action against Pacific States 
 
            Transport (PST).  Soble, on behalf of Hall, filed an 
 
            original notice and petition on May 23, 1988, alleging that 
 
            on January 19, 1987, Hall had a heart attack caused by his 
 
            work for employer.
 
            
 
                 On November 21, 1988, Soble was discharged as attorney 
 
            in Hall's Iowa workers' compensation case.  Hall retained 
 
            attorney Allan Hartsock to represent his interests.  On 
 
            January 5, 1989, a substitution of parties was filed which 
 
            revealed that Soble withdrew on November 30, 1988, and 
 
            Hartsock appeared on December 21, 1988 (exhibit 22).  Hall 
 
            dismissed his Iowa petition on January 7, 1989.  However, 
 
            Soble had filed a petition for fees and costs on November 
 
            23, 1988, alleging that $5,925 in fees and $1,312.06 in 
 
            costs had been expended by him.
 
            
 
                 Peter Soble testified that he has been a practicing 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            attorney since 1954.  He was hired by Hall in May 1988 to 
 
            pursue the heart attack claim against Hall's employer.  An 
 
            attorney fee contract was executed that purported to allow 
 
            Soble to take a one-third contingency fee (ex. 1).  Soble 
 
            testified that he earns $300 per hour on a yearly basis, but 
 
            that he charges $150 per hour in his fee contract.
 
            
 
                 Soble testified that he filed a petition on behalf of 
 
            Hall in Iowa due to the admissibility of hearsay evidence in 
 
            that jurisdiction.  Soble stated that he performed an 
 
            extensive amount of work on Hall's behalf including, writing 
 
            letters, conducting discovery and preparing for claimant's 
 
            deposition.  Soble testified that the work performed was 
 
            listed in exhibit 20.  It is found that claimant performed 
 
            39 1/2 hours of legal work on Hall's behalf through November 
 
            21, 1988.  It is found that Soble advance costs in the sum 
 
            of $1,312.06 in Hall's workers' compensation case (ex. 20).
 
            
 
                 Soble testified that Hall refiled his workers' 
 
            compensation case in Illinois.  Hall settled the Illinois 
 
            case with the assistance of attorneys Allan Hartsock and 
 
            Theodore Gilbert in May 1989.  Soble testified that he was 
 
            unaware of the Illinois petition or settlement until after 
 
            it had already occurred.
 
            
 
                 Allan Hartsock testified that he represented Daniel 
 
            Hall in his Illinois workers' compensation case.  Hartsock 
 
            testified because Soble had made certain allegations that 
 
            only Hartsock could refute.  It is found that Soble's 
 
            allegations of improper conduct on the part of Hartsock and 
 
            Gilbert and Hartsock's response are only marginally relevant 
 
            to the issue in this case.  The evidence was considered, but 
 
            given little weight in that the issue to be decided is 
 
            whether Soble performed services for which he should be 
 
            compensated.  The issue is not whether Hartsock and Gilbert 
 
            defrauded Soble of his fee.  
 
            
 
                 The Iowa Industrial Commission does not have 
 
            jurisdiction over settlements executed before the Illinois 
 
            Industrial Commission.  However, the Iowa Industrial 
 
            Commissioner does have jurisdiction over attorney fee 
 
            disputes which occur in Iowa cases.  Rule 343 IAC 3.1(9); 
 
            Iowa Code section 86.39.
 
            
 
                 Hartsock testified that he charges $100 per hour when 
 
            defending workers' compensation cases.  Hartsock was of the 
 
            opinion that the attorney fee contract, marked exhibit 1, 
 
            was unconscionable and should be declared null and void.  
 
            Hartsock occasionally accepts legal work on an hourly basis.
 
            
 
                 Brenda Irwin testified that she is Dennis Hall's 
 
            daughter.  She stated that after her father's heart attack, 
 
            he was unable to communicate with the spoken word.  She 
 
            stated that yes and no were about all he could say.
 
            
 
                 Irwin testified that her father hired Soble to pursue 
 
            the workers' compensation claim, but that in November 1988, 
 
            her father became upset with Soble's advice and he 
 
            discharged Soble.  She stated that Soble had recommended 
 
            that her father accept a $20,000 settlement that would net 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            only $7,000.  She stated that the case was ultimately 
 
            settled for $46,000 with her father receiving $35,000 as his 
 
            net amount under an Illinois settlement.
 
            
 
                 Daniel Hall testified.  He was able to communicate 
 
            through the use of leading questions and interpretations 
 
            made by his daughter, Brenda Irwin.
 
            
 
                 Hall testified that he did, in fact, retain Soble to 
 
            pursue the heart attack claim.  He testified that Soble gave 
 
            incorrect facts to examining doctors which resulted in an 
 
            inaccurate history.  He stated that the recommended 
 
            settlement of $20,000 was the reason he discharged Soble.  
 
            Hall testified that he has spent all of the money and he now 
 
            lives on social security and his VA pension.
 
            
 
                 Peter Soble testified in rebuttal that he did not 
 
            suggest to Hall that a $20,000 settlement was appropriate.
 
            
 
                 Linda Soble testified that she is a paralegal in 
 
            Soble's firm.  She is also Peter Soble's wife.  Linda Soble 
 
            stated that she was present at Hall's deposition in November 
 
            1988 when Peter Soble allegedly told Hall to settle for 
 
            $20,000.  She testified that no such conversation took place 
 
            on that date and time.
 
            
 
                 The sole issue to be decided concerns Peter Soble's 
 
            entitlement to an attorney fee and costs.
 
            
 
                 The record clearly reveals that costs in the amount of 
 
            $1,312.06 were advanced by attorney Peter Soble on Hall's 
 
            behalf.  These costs were for necessary services which 
 
            benefited the prosecution of Hall's workers' compensation 
 
            case.  It is found that Soble is entitled to be reimbursed 
 
            for costs by Hall in the amount of $1,312.06.
 
            
 
                 The more difficult question concerns Soble's 
 
            entitlement to attorney fees for work performed on Hall's 
 
            Iowa workers' compensation case.  
 
            
 
                 It is the law in Iowa that all fees are subject to the 
 
            approval of the industrial commissioner.  Iowa Code section 
 
            86.39.  The amount of the fee is still at issue.  That is, 
 
            the $150 hourly rate was never approved by the commissioner 
 
            so its reasonableness is in dispute.
 
            
 
                 It is found that an hourly fee of $100 per hour is a 
 
            reasonable fee on the facts of this case to expect when 
 
            pursuing a workers' compensation case on an hourly basis.  
 
            Allan Hartsock testified that when pursuing cases on an 
 
            hourly basis he usually charges $100 per hour.  Soble stated 
 
            that he only does plaintiff's work and usually does not take 
 
            cases on an hourly basis.  Hartsock's hourly rate of $100 is 
 
            found to be a more accurate reflection of the fees charged 
 
            within the legal community as he is more familiar with 
 
            taking cases on an hourly basis.
 
            
 
                                conclusions of law
 
            
 
                 Iowa Code section 86.39 makes all fees for services 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            rendered in an Iowa workers' compensation proceeding subject 
 
            to the approval of this agency.
 
            
 
                 The factors to be considered in arriving at a 
 
            reasonable fee are the following:  (1) the terms of any fee 
 
            agreement; (2) the time and effort reasonably involved in 
 
            handling the case; (3) the novelty and difficulty of the 
 
            questions involved in the case and the skill required to 
 
            properly perform; (4) the reputation, ability, status and 
 
            expertise of the attorney; (5) the likelihood that 
 
            acceptance of employment will preclude the attorney from 
 
            other employment due to conflicts of interest, unfavorable 
 
            publicity or antagonism with other clients or other 
 
            attorneys; (6) the fee customarily charged in the locality 
 
            for similar services; (7) the amount involved in the 
 
            controversy, the impact of the result upon the client and 
 
            the result actually obtained; (8) time limitations, whether 
 
            imposed by the client or other circumstances; (9) the nature 
 
            and length of professional relationship between the attorney 
 
            and client.  Kirkpatrick v. Patterson, 172 N.W.2d 259, 261 
 
            (Iowa 1969).  Disciplinary Rule 2-106(B) Iowa Code of 
 
            Professional Responsibility of Lawyers.
 
            
 
                 For a contract to be enforceable it must be clear, 
 
            concise and mutually understood.  Carmichael v. Iowa State 
 
            Highway Commission, 219 N.W.2d 658, 665 (Iowa 1974).  A 
 
            contract which is contrary to public policy may not be 
 
            enforced.  Rowen v. LeMars Mutual Insurance Co., 282 N.W.2d 
 
            639, 650 (Iowa 1979).  Contingent fee contracts are 
 
            generally enforceable.  Wunsched Law Firm, P.C., V. 
 
            Claubaugh, 291 N.W.2d 331, 333 (Iowa 1980).  Fees ranging 
 
            from 25 percent to 40 percent of the recovery have been 
 
            found to be reasonable.  Stoebe v. Kittey, 249 N.W.2d 667 
 
            (Iowa 1977), Blazek, Continental Casualty Company v. 
 
            Knowlton, 232 N.W.2d 789, 794-795 (Minn. 1975).
 
            
 
                 It appears from the file that claimant's heart attack 
 
            case would have presented some difficulty in that connecting 
 
            the injury to work with employer would routinely result in 
 
            numerous questions of fact.  The record reflects that Soble 
 
            devoted a fair effort to achieving claimant's goal of 
 
            establishing a causal connection of the injury to employer's 
 
            work.  Soliciting opinions from medical doctors and 
 
            attending to discovery matters are an important and 
 
            necessary part of pursuing an Iowa workers' compensation 
 
            claim.  
 
            
 
                 With respect to the first factor cited above, it has 
 
            been found that $100 per hour is a reasonable hourly fee for 
 
            a workers' compensation case.
 
            
 
                 The second factor concerns Soble's time and effort.  It 
 
            has clearly been established that Soble expended 39 1/2 
 
            hours of work (ex. 20).  This fact was not disputed by offer 
 
            of contrary evidence.
 
            
 
                 With respect to the skill involved, it is found that 
 
            there is no showing that Soble should be awarded a higher 
 
            fee based upon his status, reputation or experience.
 
            
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
                 There is no showing that counsel's handling of this 
 
            case was in any way prejudicial to the rest of his law 
 
            practice.
 
            
 
                 There is no indication that any particular time 
 
            limitations, other than ordinary statutory limitations, were 
 
            involved with this case.
 
            
 
                 The previous dealings between Hall and Soble were not 
 
            such as to have any effect on the fee to be charged in this 
 
            proceeding.  Hall did allege that Soble gave poor advice 
 
            concerning the value of his case.  However, that fact does 
 
            not change the number of hours that Soble worked on the 
 
            case, nor does it indicate that a fee lower than $100 per 
 
            hour is appropriate.  The workers' compensation law in Iowa 
 
            differs greatly from the law in Illinois.  Thus, the value 
 
            of a factually similar case will vary greatly between the 
 
            two states.  Hall failed to bring forth any evidence to 
 
            prove that Soble's fee should be less than $100 per hour.
 
            
 
                 Upon considering all the evidence and material factors 
 
            it is found that Soble is entitled to a fee of $100 per hour 
 
            for 39 1/2 hours expended in prosecuting claimant's Iowa 
 
            workers' compensation case for a total of $3,950.  Soble is 
 
            also entitled to be reimbursed for costs advance in the 
 
            amount of $1,312.06.
 
            
 
                                      order
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 Peter Soble is entitled to a fee of three thousand nine 
 
            hundred fifty dollars ($3,950) and to payment of one 
 
            thousand three hundred twelve and 06/100 dollars ($1,312.06) 
 
            in costs advanced.
 
            
 
                 Peter Soble is to pay costs for attendance of a court 
 
            reporter.
 
            
 
                 All other costs are assessed against claimant, Daniel 
 
            S. Hall pursuant to rule 343 IAC 4.33.
 
            
 
                 
 
            
 
                 Signed and filed this ____ day of March, 1991.
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          MARLON D. MORMANN
 
                                          DEPUTY INDUSTRIAL COMMISSIONER    
 
            
 
            Copies to:
 
            
 
            Mr. Peter Soble
 
            Attorney at Law
 
            505 Plaza Office Bldg.
 
            Rock Island, Il  61201
 
            
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            Mr. Allan Hartsock 
 
            Attorney at Law
 
            4th Floor Rock Island Bldg.
 
            PO Box 4298
 
            Rock Island, Il  61204-4298
 
            
 
            
 
                 
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                      5-1000
 
                      Filed March 13, 1991
 
                      MARLON D. MORMANN
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            DANIEL S. HALL,     :
 
                      :
 
                 Claimant, :
 
                      :
 
            vs.       :
 
                      :       File No. 877031
 
            PST, INC.,     :
 
                      :    A R B I T R A T I O N
 
                 Employer, :
 
                      :       D E C I S I O N
 
            and       :
 
                      :
 
            FIREMANS FUND INSURANCE, :
 
                      :
 
                 Insurance Carrier,  :
 
                 Defendants.    :
 
            ___________________________________________________________
 
            
 
            5-1000
 
            Claimant discharged his Iowa attorney, dismissed his Iowa 
 
            case and refiled in Illinois.  Claimant's former Iowa 
 
            attorney filed a petition for attorney fees and costs.  
 
            Attorney fees awarded on basis of $100 per hour as opposed 
 
            to $150 per hour which was requested by petitioning 
 
            attorney.  Costs advanced were also awarded.
 
            
 
 
        
 
 
 
 
 
        
 
                       BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
        
 
        
 
        DIANE L. BROWN,
 
        
 
            Claimant,
 
                                               File No. 877034
 
        vs.
 
                                            A R B I T R A T I O N
 
        IBP, INC.,
 
                                               D E C I S I O N
 
            Employer,
 
            Self-Insured,
 
            Defendant.                           F I L E D
 
        
 
                                                 JUL 18 1989
 
        
 
                                             INDUSTRIAL SERVICES
 
        
 
        
 
                                 STATEMENT OF THE CASE
 
        
 
            This is a proceeding in arbitration brought by claimant 
 
        Diane L. Brown against self-insured defendant employer IBP, Inc., 
 
        to recover benefits under the Iowa Workers' Compensation Act as 
 
        the result of an injury allegedly sustained on January 26, 1987. 
 
        This matter came on for hearing before the undersigned deputy 
 
        industrial commissioner in Council Bluffs, Iowa, on June 30, 
 
        1989. The matter was considered fully submitted at the close of 
 
        hearing.
 
        
 
            The record in the proceeding consists of the testimony of 
 
        claimant, Gary Jackson, and Lisa Brockway along with claimant's 
 
        exhibits 1 through 7 and defendant's exhibits A through Q, both 
 
        inclusive.
 
        
 
                                      ISSUES
 
        
 
            Pursuant to the prehearing report submitted by the parties 
 
        and approved by the deputy, the parties have stipulated: That if 
 
        claimant's alleged injury caused permanent disability, it was a 
 
        scheduled member disability to both upper extremities to be 
 
        compensated under Iowa Code section 85.34(2)(s); that the 
 
        commencement date for permanent partial disability benefits is 
 
        July 12, 1988; that claimant's marital status at the time of the 
 
        injury was married and she was entitled to six exemptions (the 
 
        parties also stipulated that claimant's gross average weekly wage 
 
        be calculated from defendant's exhibit H); that defendant 
 
        asserted affirmative defenses under Iowa Code sections 85.33(3) 
 
        and 85.39; that defendant is entitled to credit for 89 weeks of 
 
        compensation paid prior to hearing at the weekly rate of $166.88; 
 
        that claimant's claim for penalty benefits remains asserted.
 
        
 
            The issues to be resolved include: Whether claimant 
 
        sustained an injury on January 26, 1987 arising out of and in the 
 
        course of her stipulated employment at that time; whether the 
 
        injury caused temporary or permanent disability and the extent 
 
        thereof; calculation of the appropriate rate of compensation; 
 
        claimant's entitlement to medical benefits; asserted affirmative 
 
        defenses and the claim for penalty benefits; taxation of costs.
 
        
 
                                 REVIEW OF THE EVIDENCE
 

 
        
 
 
 
 
 
        
 
            Claimant testified that she was employed by defendant from 
 
        June, 1986 until February, 1987 (the termination date has been 
 
        otherwise shown to be February 18, 1987). Claimant worked 
 
        primarily at two different jobs, as a belly flipper and as a butt 
 
        wrapper. Belly flipping involved turning pork bellies so that 
 
        they might be processed by a saw. Butt wrapping involved 
 
        wrapping six-pound pieces of meat at a fast pace. Claimant 
 
        worked full time.
 
        
 
            Claimant testified that she first began developing bilateral 
 
        upper extremity problems in approximately September, 1986. Her 
 
        hands became swollen, painful and burning and would go numb at 
 
        home after work. Claimant indicated that she first complained to 
 
        a company nurse in approximately September, 1986, and was advised 
 
        to wrap her hands and to sleep with her hands elevated. Claimant 
 
        began taking a nonprescription pain medication up to eight doses 
 
        daily. Claimant usually wrapped her hands for work, but found 
 
        that her hands suffered from numbness and cold in this meat 
 
        packing facility.
 
        
 
            Claimant first sought medical treatment in January, 1987 
 
        from a Dr. Romano. Claimant indicated that Dr. Romano diagnosed 
 
        carpal tunnel syndrome. Thereafter, claimant visited Dr. Miller, 
 
        who determined on the same diagnosis.
 
        
 
            Claimant was apparently given work restrictions and provided 
 
        what the employer considered light-duty work involving sorting 
 
        meat pieces on a tray. Claimant believed this also bothered her 
 
        hands. Subsequently, claimant was discharged on February 18, 
 
        1987.
 
        
 
            Claimant underwent surgery to her right hand in March, 1987, 
 
        and on her left hand in June, 1987. In September, claimant 
 
        underwent surgery for a cyst on her right upper extremity, and 
 
        finally underwent another release procedure to the right 
 
        extremity in January, 1988.
 
        
 
            Claimant is dissatisfied with the results of her surgical 
 
        procedures, believing that her condition has not greatly improved 
 
        and in fact has deteriorated over time. As of today, she 
 
        complains of pain in the hands, arms and neck, and testified that 
 
        she did not have any of these problems before her injury.
 
        
 
            Claimant also testified that she was treated by Brent V. 
 
        Stromberg, M.D., and was seen for evaluation by Jack A. McCarthy, 
 
        M.D. She testified that because Dr. McCarthy did not wish to see 
 
        her further, she subsequently began visiting Dennis R. Green, 
 
        D.C. She began seeing Dr. Green approximately three times per 
 
        week for spinal adjustments and other treatments which she 
 
        believes helped a number of symptoms including headaches and 
 
        discomfort to the shoulders, arms and hands (hands only a 
 
        little).
 
        
 
            Shortly after claimant began seeing Dr. Green, she suffered 
 
        injuries in a motor vehicle accident on November 28, 1988. 
 
        Injuries were to her neck and back. Claimant is now involved in 
 
        litigation concerning those injuries.
 
        
 
            Gary Jackson testified to defendant's absenteeism policy. 
 
        He further testified to familiarity with defendant's light-duty 
 
        program and stated that claimant would have had such work 
 
        available to her if she had not been discharged for absenteeism. 
 
        He took issue with claimant's description of her job as butt 
 
        wrapper, indicating that temperatures were not so cold as 
 
        claimant believed, that air did not blow on those employees, and 
 

 
        
 
 
 
 
 
        that butts were not thrown on wrappers' hands as claimant 
 
        indicated.
 
        
 
            Lisa Brockway testified that she was defendant's workers' 
 
        compensation coordinator in January, 1987. She testified to 
 
        claimant's refusal to submit to a medical examination as per 
 
        exhibit O admitted into evidence. She also testified as to 
 
        defendant's absenteeism policy.
 
        
 
            The documentary evidence discloses that claimant underwent 
 
        bilateral carpal tunnel surgery. Treating physician Stromberg 
 
        last saw claimant in July, 1988. On September 26, 1988, he wrote 
 
        to claimant's attorney to state that claimant "has sustained a 
 
        permanent partial impairment in the range of five to eight 
 
        percent based on her ongoing pain and weakness." The record does 
 
        not disclose when, if ever, Dr. Stromberg released claimant, nor 
 
        is there any indication that he has expressed an opinion as to 
 
        when claimant's healing period ended.
 
        
 
            Dr. McCarthy wrote a series of letters to defendant from 
 
        April until September, 1988. On May 11, 1988, Dr. McCarthy 
 
        indicated that claimant had last been seen on May 2. At that 
 
        time, he estimated claimant's "deficit" as in the range of two to 
 
        three percent resulting from her bilateral carpal tunnel surgery. 
 
        On August 23, Dr. McCarthy wrote of his diagnoses of bilateral 
 
        arm pain, etiology unclear and bilateral carpal tunnel syndrome, 
 
        improved, status post-decompression. He assessed her disability 
 
        as three percent to each upper extremity, which opinion he 
 
        repeated in a letter of September 9, 1988. Claimant last visited 
 
        Dr. McCarthy on July 11, 1988.
 
        
 
            Defendant's exhibit O is a note signed by Lisa Brockway 
 
        reporting a telephone conversation with Dr. McCarthy on May 26, 
 
        1988. Ms. Brockway described Dr. McCarthy as stating he had 
 
        referred claimant to another physician for a nerve block and had 
 
        heard nothing from a work hardening program. She reported that 
 
        Dr. McCarthy felt he had lost contact with claimant, although the 
 
        records show that claimant was seen at least once more by this 
 
        physician.
 
        
 
            Claimant's exhibit 6 is a ledger card prepared by Dr. 
 
        Green's office, showing some 60 procedures from October 10, 1988 
 
        through May 23, 1989. The total billing was $4,046.00. Dr. 
 
        Green wrote to claimant's attorney on June 14, 1989 noting 
 
        claimant had first presented with complaints of pain in the 
 
        forearms and hands, weakness of grip, pain in the cervicodorsal 
 
        area, predominating on the right, and frequent headache. He 
 
        referred to claimant's history of bilateral carpal tunnel 
 
        syndrome and diagnosed as "cumulative work related injuries" 
 
        bilateral carpal tunnel syndrome and cervicodorsal and brachial 
 
        myofascial pain disorders. He also noted claimant's involvement 
 
        in a motor vehicle accident on November 28, 1988, and believed it 
 
        caused an acute strain/sprain complex of the lumbosacral spine 
 
        with sciatic neuropathy and acute strain/sprain complex of the 
 
        cervical spine and exacerbation of the cervicodorsal myofascial 
 
        pain disorders. Dr. Green reported that claimant had reached a 
 
        point of maximum medical improvement, but did not express an 
 
        opinion as to when that point had been reached. He did not 
 
        express an opinion as to the degree of claimant's permanent 
 
        impairment resulting from the carpal tunnel disorders.
 
        
 
            Claimant's exhibit 7 is a billing from Bluffs Neurological 
 
        Associates in the sum of $85.00. The billing does not disclose 
 
        what services were rendered.
 
        
 
                            APPLICABLE LAW AND ANALYSIS
 

 
        
 
 
 
 
 
        
 
            An employee is entitled to compensation for any and all 
 
        personal injuries which arise out of and in the course of the 
 
        employment. Section 85.3(1).
 
        
 
            Claimant has the burden of proving by a preponderance of the 
 
        evidence that she received an injury which arose out of and in 
 
        the course of her employment. McDowell v. Town of Clarksville, 
 
        241 N.W.2d 904 (Iowa 1976); Musselman v. Central Telephone Co., 
 
        261 Iowa 352, 154 N.W.2d 128 (1967).
 
        
 
            The injury must both arise out of and be in the course of 
 
        the employment. Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 
 
        402, 68 N.W.2d 63 (1955) and cases cited at pp. 405-406 of the 
 
        Iowa Report. See also Sister Mary Benedict v. St. Mary's Corp., 
 
        255 Iowa 847, 124 N.W.2d 548 (1963) 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 v. DeSoto Consol. Sch. Dist., 246 Iowa 402, 68 
 
        N.W.2d 63 (1955).
 
        
 
            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 v. DeSoto Consol. Sch. Dist., 
 
        246 Iowa 402, 68 N.W.2d 63 (1955).
 
        
 
            The supreme court of Iowa in Almquist v. Shenandoah 
 
        Nurseries, 218 Iowa 724, 254 N.W. 35 (1934) at 731-32, 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.
 
        
 
            The claimant has the burden of proving by a preponderance of 
 
        the evidence that the alleged injury is causally related to the 
 
        disability on which she now bases her claim. Bodish v. Fischer, 
 
        Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). Lindahl v. L.O. 
 

 
        
 
 
 
 
 
        Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945). A possibility is 
 
        insufficient; a probability is necessary. Burt v. John Deere 
 
        Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955). The 
 
        question of causal connection is essentially within the domain of 
 
        expert testimony. Bradshaw v. Iowa Methodist Hospital, 251 Iowa 
 
        375, 101 N.W.2d 167 (1960).
 
        
 
            However, expert medical evidence must be considered with all 
 
        other evidence introduced bearing on the causal connection. 
 
        Burt, 247 Iowa 691, 73 N.W.2d 732. The opinion of experts need 
 
        not be couched in definite, positive or unequivocal language. 
 
        Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974). However, 
 
        the expert opinion may be accepted or rejected, in whole or in 
 
        part, by the trier of fact. Id. at 907. Further, the weight to 
 
        be given to such an opinion is for the finder of fact, and that 
 
        may be affected by the completeness of the premise given the 
 
        expert and other surrounding circumstances. Bodish, 257 Iowa 
 
        516, 133 N.W.2d 867. See also Musselman v. Central Telephone 
 
        Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
        
 
            Although claimant has had complaints of other physical 
 
        ailments such as neck pain, headaches and the like, her petition 
 
        and the prehearing report make clear that the injuries before the 
 
        agency at this time are only the injuries to claimant's upper 
 
        extremities. Claimant's bilateral carpal tunnel syndrome is a 
 
        typical example of a cumulative injury under Almquist. Claimant 
 
        credibly testified that she had no arm problems before beginning 
 
        work with defendant, and developed them during the course of that 
 
        employment. Only one physician has expressed an opinion as to 
 
        whether these problems are work related, that being Dr. Green. 
 
        Dr. Green has expressed the view that claimant's bilateral carpal 
 
        tunnel syndrome was caused by her employment. It is held on the 
 
        basis of these facts that claimant has met her burden of proof in 
 
        establishing that her bilateral carpal tunnel syndrome arose out 
 
        of and in the course of her employment and that disability 
 
        resulted.
 
        
 
            Although the evidence is sparse, it is held that claimant 
 
        sought medical attention and was disabled from her work on 
 
        January 26, 1987. Because it is found infra that claimant 
 
        suffered a permanent disability from her injury, it is necessary 
 
        to determine her healing period under Iowa Code section 85.34(1). 
 
        Healing period begins on the date of injury and continues until 
 
        the employee is returned to work or it is medically indicated 
 
        that significant improvement from the injury is not anticipated 
 
        or until the employee is medically capable of returning to 
 
        substantially similar employment, whichever first occurs.
 
        
 
            The record in this case shows that claimant has not returned 
 
        to work. There is no evidence as to when, if at all, claimant 
 
        became capable of returning to substantially similar employment. 
 
        Therefore, healing period must be determined by the date when 
 
        significant improvement from the injury was no longer 
 
        anticipated.
 
        
 
            The only physicians to express an opinion as to this issue 
 
        are Drs. Green and McCarthy. Dr. Green wrote on June 14, 1989 
 
        that claimant "has reached a point of maximum medical 
 
        improvement" with regard to her neuromusculoskeletal injuries. 
 
        However, Dr. Green does not indicate any opinion as to when that 
 
        point may have been reached. On the other hand, Dr. McCarthy 
 
        first expressed an opinion as to claimant's permanent disability 
 
        on May 11, 1988. In the absence of any more satisfactory 
 
        evidence, it is held that the willingness of a physician to 
 
        assess permanent impairment implies that maximum medical 
 
        improvement has been attained. While this record would support a 
 

 
        
 
 
 
 
 
        finding that claimant has failed to meet her burden of proof in 
 
        establishing the extent of her healing period, it is nonetheless 
 
        held that Dr. McCarthy's opinion on May 11, 1988 ended the 
 
        healing period on that date. Therefore, claimant had a healing 
 
        period of 67 weeks, 3 days.
 
        
 
            Next, it is appropriate to consider the extent of claimant's 
 
        permanent disability. Again, two physicians have expressed a 
 
        view as to this issue: Drs. Stromberg and McCarthy. On 
 
        September 26, 1988, Dr. Stromberg felt that claimant "has 
 
        sustained a permanent partial impairment in the range of five to 
 
        eight percent based on her ongoing pain and weakness." 
 
        Unfortunately, Dr. Stromberg did not indicate what he was 
 
        measuring. It could well be he intended five to eight percent of 
 
        the right hand, left hand, both hands, right arm, left arm, both 
 
        arms, or body as a whole. There is simply no way to be certain 
 
        from a review of his letter, claimant's exhibit 1. Dr. McCarthy 
 
        has opined that claimant sustained a three percent impairment to 
 
        each upper extremity (arm). Although Dr. Stromberg was the 
 
        treating physician, it is held that Dr. McCarthy's opinion 
 
        establishes claimant's impairment because of the uncertainty 
 
        resulting from Dr. Stromberg's vagueness.
 
        
 
            The parties have stipulated that claimant's disability is a 
 
        scheduled member disability to both arms under Iowa Code section 
 
        85.34(2)(s). Under the statute, claimant's two scheduled member 
 
        disabilities should be converted to a body as a whole rating on 
 
        the basis of 500 weeks.
 
        
 
            As the parties have stipulated that claimant's disability is 
 
        to each upper extremity, and given further that claimant 
 
        testified to continuing pain throughout each arm, and given 
 
        further that Dr. McCarthy expressed his opinion as a disability 
 
        or impairment to the arm, it is held that this injury should be 
 
        considered as bilateral arm disability, rather than hand 
 
        disability. Compare, Streeter v. Iowa Meat Processing Co., file 
 
        number 809945, (App. Decn. March 31, 1989).
 
        
 
            A review of the American Medical Association's Guides to the 
 
        Evaluation of Permanent Impairment, discloses that impairment of 
 
        three percent to the arm converts to two percent of the body as a 
 
        whole. Two separate two percent impairments to the body as a 
 
        whole convert to a four percent impairment of the body as a 
 
        whole, or 20 weeks. Therefore, claimant is entitled to 20 weeks 
 
        of permanent partial disability based upon a four percent body as 
 
        a whole impairment.
 
        
 
            Based on the foregoing, claimant's entire award for healing 
 
        period and permanent disability is 87.429 weeks. It has been 
 
        stipulated that defendant has already paid 89 weeks. Therefore 
 
        it is unnecessary to consider the affirmative defenses. In any 
 
        event, the allegation that claimant refused treatment under Iowa 
 
        Code section 85.39 relates to a time after the healing period had 
 
        already ended.
 
        
 
            Pursuant to defendant's exhibit H, in the 13 weeks before 
 
        January 26, 1987, claimant worked 356 hours at $5:35 per hour and 
 
        214 hours at $5.70 per hour. Pursuant to Division of Industrial 
 
        Services Rule 343-8.2, amounts paid in excess of the straight 
 
        time rate for overtime are not considered in determining gross 
 
        weekly wages, but overtime hours at the straight time rate are 
 
        included. Therefore, claimant earned $3,124.40 on that basis, or 
 
        an average of $240.34 per week. See, Iowa Code section 85.36(6). 
 
        A review of the Guide to Iowa Workers' Compensation Claim 
 
        Handling, published by this division and effective July 1, 1986, 
 
        discloses that the proper rate for a claimant with such earnings 
 

 
        
 
 
 
 
 
        who is married with six exemptions is $166.88.
 
        
 
            Dr. Green's medical billings involve treatment to the back 
 
        as well as claimant's hands or arms. It is impossible to 
 
        determine the extent to which his bills relate strictly to this 
 
        injury, rather than other physical problems and the injuries 
 
        resulting from claimant's automobile accident. Because claimant 
 
        has failed to establish the extent to which she is entitled to 
 
        compensation, any award would be speculative. In addition, there 
 
        is insufficient evidence for a determination as to whether the 
 
        billings from Bluffs Neurological Associates are causally 
 
        connected to the injury or whether the charges were for 
 
        reasonable and necessary medical services, or even whether the 
 
        charges are themselves reasonable. Therefore, no award shall be 
 
        made as to claimant's medical expenses.
 
        
 
            Claimant has also alleged entitlement to penalty benefits 
 
        under Iowa Code section 86.13. Because defendant has paid 
 
        claimant weekly benefits in excess of her entitlement, penalty 
 
        benefits are not appropriate.
 
        
 
                                 FINDINGS OF FACT
 
        
 
            THEREFORE, based on the evidence presented, the following 
 
        ultimate facts are found:
 
        
 
            1. Claimant was employed by IBP, Inc., on January 26, 1987, 
 
        when she was taken off work by her physician by reason of 
 
        bilateral carpal tunnel syndrome.
 
        
 
            2. Claimant underwent surgery to her right hand in March, 
 
        1987 and January, 1988 and to her left hand in June, 1987.
 
        
 
            3. Claimant's bilateral carpal tunnel syndrome was caused 
 
        by her employment with IBP, Inc.
 
        
 
            4. Dr. McCarthy estimated claimant's "deficit" as in the 
 
        range of two to three percent on May 11, 1988.
 
        
 
            5. Dr. McCarthy eventually assessed claimant's impairment 
 
        as three percent to each upper extremity.
 
        
 
            6. Claimant received extensive treatment from Dr. Green, 
 
        but his total billing does not differentiate treatment directed 
 
        to her carpal tunnel syndrome as opposed to other and unrelated 
 
        problems.
 
        
 
            7. Claimant's billing from Bluffs Neurological Associates 
 
        does not disclose what services were rendered.
 
        
 
            8. Claimant's gross average weekly wage at the time of her 
 
        injury was $240.34; she was at that time married with six 
 
        exemptions.
 
        
 
                                 CONCLUSIONS OF LAW
 
        
 
            WHEREFORE, based on the principles of law previously stated, 
 
        the following conclusions of law are made:
 
        
 
            1. Claimant suffered an injury arising out of and in the 
 
        course of her employment on January 26, 1987: Bilateral carpal 
 
        tunnel syndrome.
 
        
 
            2. Claimant's injury was an injury to two scheduled members 
 
        under Iowa Code section 85.34(2)(s).
 
        
 

 
        
 
 
 
 
 
            3. Claimant's injury directly caused a healing period from 
 
        January 26, 1987 through May 11, 1988 (67 weeks, 3 days).
 
        
 
            4. Claimant has established a permanent partial disability 
 
        of four percent of the body as a whole.
 
        
 
            5. Claimant's appropriate rate of weekly compensation is 
 
        $166.88.
 
        
 
            6. Claimant failed to establish entitlement to medical 
 
        benefits as regards Dr. Green's bill, because assessment of 
 
        liability would be speculative.
 
        
 
            7. Claimant has failed to establish entitlement to medical 
 
        benefits for the Bluffs Neurological Associates bill because she 
 
        has failed to establish causal connection to her injury or 
 
        whether the charges were reasonable and necessary and incurred 
 
        for reasonable and necessary medical services.
 
        
 
            8. Because defendant voluntarily paid claimant weekly 
 
        benefits in excess of her healing period and permanent partial 
 
        disability entitlement, penalty benefits under Iowa Code section 
 
        86.13 shall not be awarded.
 
        
 
                                      ORDER
 
        
 
            THEREFORE, IT IS ORDERED:
 
        
 
            Claimant is entitled to healing period benefits of 
 
        sixty-seven point four two nine (67.429) weeks at the rate of one 
 
        hundred sixty-six and 88/100 dollars ($166.88) per week totalling 
 
        eleven thousand two hundred fifty-two and 55/100 dollars 
 
        ($11,252.55).
 
        
 
            Claimant is entitled to permanent partial disability 
 
        benefits of twenty (20) weeks at the rate of one hundred 
 
        sixty-six and 88/100 dollars ($166.88) per week totalling three 
 
        thousand three hundred thirty-seven and 60/100 dollars 
 
        ($3,337.60).
 
        
 
            Because defendant has paid eighty-nine (89) weeks of 
 
        compensation at the rate of one hundred sixty-six and 88/100 
 
        dollars ($166.88) per week totalling fourteen thousand eight 
 
        hundred fifty-three and 21/100 dollars ($14,853.21), which is in 
 
        excess of claimant's entitlement, no further benefits shall be 
 
        awarded and claimant shall take nothing in excess of those 
 
        benefits which have been voluntarily paid to her.
 
        
 
            Costs of this action are assessed to defendant pursuant to 
 
        Division of Industrial Services Rule 343-4.33.
 
        
 
            Defendant shall file claim activity reports as requested by 
 
        this agency pursuant to Division of Industrial Services Rule 
 
        343-3.1.
 
        
 
            Signed and filed this 18th day of July, 1989.
 
        
 
        
 
        
 
        
 
        
 
        
 
                                          DAVID RASEY
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
        
 
        Copies To:
 

 
        
 
 
 
 
 
        
 
        Mr. Dean T. Jennings
 
        Mr. William F. McGinn
 
        Attorneys at Law
 
        Third Floor Executive Suite
 
        Council Bluffs Savings Bank Building
 
        Council Bluffs, Iowa 51501
 
        
 
        Mr. Marlon D. Mormann
 
        Attorney at Law
 
        P.O. Box 515
 
        Dakota City, Nebraska 68731
 
        
 
        
 
 
        
 
 
 
 
 
        
 
        
 
                                            1802, 51803, 53001, 4000.1
 
                                            Filed July 18, 1989
 
                                            DAVID RASEY
 
        
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
        
 
        
 
        DIANE L. BROWN,
 
        
 
            Claimant,
 
                                            File No. 877034
 
             vs.
 
                                         A R B I T R A T I O N
 
        IBP, INC.,
 
                                            D E C I S I O N
 
            Employer,
 
            Self-Insured,
 
             Defendant.
 
             
 
             
 
        53001
 
        
 
             Overtime hours were calculated at straight time rate in 
 
             determining gross weekly wage.
 
        
 
        1802
 
        
 
             Healing period held to end when physician issued rating of 
 
             "deficit."
 
        
 
        51803
 
        
 
             Claimant granted award of four percent body as a whole under 
 
             85.34(2)(s) for bilateral carpal tunnel syndrome.
 
        
 
        4000.1
 
        
 
             Penalty benefits were not awarded where defendant's 
 
             voluntary payments were in excess of claimant's entitlement.