Page 1 before the iowa industrial commissioner ____________________________________________________________ : PATRICIA TERWILLIGER, : : Claimant, : : vs. : File Nos. 777628/791749 : 862946/877065 SNAP-ON TOOLS CORPORATION, : : 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 Claimant appeals from an arbitration decision awarding permanent partial disability benefits as the result of an alleged injury on August 24, 1987. The record on appeal consists of the transcript of the arbitration proceeding; claimant's exhibits A, B and C; and defendants' exhibits 1 through 21. Both parties filed briefs on appeal. Claimant filed a reply brief. The post-hearing briefs of the parties were also considered on appeal. ISSUES Claimant states the following issues on appeal: 1. Did the Deputy err by limiting the post-hearing briefs to four pages and then totally disregarding Pat's four-page brief? 2. Did the Deputy err by failing to order the stipulated payment of medical benefits? 3. Did the Deputy err by failing to specify whether Snap-On was being taxed with the fees and mileage of Pat's witnesses? 4. Did the deputy err by misapprehending the wages upon which to base the weekly compensation rate? 5. Did the Deputy err by not resolving the issue concerning how the weekly compensation rate should be computed? 6. Did the Deputy err by mischaracterizing what injuries had been alleged or were at issue? 7. Did the Deputy err by not resolving the issue Page 2 concerning whether from 1978-1989, Pat had sustained an unitary, work-related injury to that regional part of her body which was comprised of her upper extremities, shoulders, and neck? 8. Did the Deputy err by not resolving the issue concerning whether Pat had sustained any kind of work-related injuries, [other than a cumulative one on August 24, 1987, to the carpal tunnels]? 9. Did the Deputy err by barring any part of Pat's claims for being outside the applicable statute of limitations? 10. Did the Deputy err by not resolving the entire issue concerning Pat's entitlement to temporary disability compensation? 11. Did the Deputy err by not resolving the entire issue concerning Snap-On's credit for payment of temporary disability compensation and by otherwise incorrectly determining this issue? 12. Did the Deputy err by failing to resolve the issue raised by Pat concerning when temporary disability compensation is due? 13. Did the Deputy err by failing to specify how interest was to be computed? 14. Did the Deputy err by failing to address the section 86.13 penalty issue? 15. Did the Deputy err by determining that Pat had sustained a functional disability of only 3% to each of her hands? 16. Did the Deputy err by failing to resolve the issue of whether work-related injury to Pat's upper extremities, shoulders, and/or neck was a proximate case [sic] of any permanent disability to her whole body? 17. Did the Deputy err by failing to resolve the issue concerning when Pat became permanently partially disabled? 18. Did the Deputy err by failing to resolve the issue concerning the extent of industrial disability Pat had sustained? 19. Did the Deputy err by entertaining Snap-On's oral Rule 80(a) motion for sanctions and by making findings with respect to it? 20. Did the Deputy err by failing to resolve Pat's written Rule 80(a) cross motion for sanctions? REVIEW OF THE EVIDENCE Page 3 The arbitration decision adequately and accurately reflects the pertinent evidence and it will not be totally set forth herein. Briefly stated, claimant began work for defendant-employer on December 4, 1973 as an electrical assembler. Claimant first began to experience pain on January 20, 1978, when she felt pain in her neck while lifting a box at work. On June 22, 1978 she reported pain in her chest and shoulder blades. On July 17, 1978 claimant experienced pain, tingling and numbness in her fingers at work. Claimant was treated in 1980 for neck pain by Franklin L. Tepner, D.O. On May 21, 1980 claimant reported neck pain after heavy lifting at work. From October 30, 1978 through May 10, 1982 claimant worked as a lead person. In this job she trained other workers instead of working on an assembly line. On August 9, 1982 and August 13, 1982 claimant was treated by Dr. Tepner for strained upper right side strain. On April 27, 1983 claimant reported pain between her neck and shoulder blades after an incident at work. Claimant did not seek medical attention. On October 2, 1984 claimant reported pain in her right wrist and arm while working. Claimant was taken off work until October 15, 1984 for inflammation of her right shoulder joint. From October 9, 1984 to October 18, 1984 claimant experienced Page 4 headaches. Claimant alleges October 2, 1984 as the date of injury in case number 777628. On January 23, 1985 claimant was in a car accident involving a deer. Claimant indicates she suffered a whiplash injury to her neck, left shoulder, and hand. Claimant returned to work on February 11, 1985. On March 21, 1985 claimant reported bilateral hand numbness, right and left elbow pain, and leg tingling. Claimant was off work until May 13, 1985. Claimant alleges March 21, 1985 as the date of injury in case number 791749. On April 4, 1985 claimant was diagnosed by Michael J. Kitchell, M.D., as suffering from work-related carpal tunnel syndrome or tendonitis, musculoskeletal pain with functional overlay, and myofasciitis. Also in April 1985, claimant was treated by Allen G. Lang, M.D., upon complaints of pain in the neck, both shoulders, numbness in both hands and both feet, pain in the tailbone, low back, thighs, and upper arms. Claimant was also diagnosed by Jack L. Dodd, M.D., as suffering from hysterical neurosis. On December 9, 1985 claimant was treated by Franklin L. Tepner, D.O., for mid thoracic muscle spasm on her right side. On June 30, 1986 and July 28, 1986 claimant reported right fingers, wrist and elbow burning, and sharp pains. Beginning September 23, 1986 claimant was treated by a chiropractor for neck pain following an incident of tripping at home. On May 26, 1987 claimant reported right finger, wrist, and elbow pain. Claimant was taken off work by Dr. Tepner from August 24, 1987 to September 14, 1987. Dr. Tepner diagnosed bilateral traumatic arthritis starting in her fingers, wrists, and elbows. The condition was thought to be work related. Claimant was off work from September 15, 1987 to February 22, 1988, while under the care of Dr. Bergman for her fingers, wrists, and elbows bilaterally. Claimant underwent carpal tunnel surgeries on October 30, 1987 and January 8, 1988. Claimant alleges October 24, 1987 as the date of injury in case number 862946. Claimant returned to work on February 22, 1988. Following the surgeries, claimant was referred by Dr. Bergman for an evaluation of her impairment, yielding permanent partial impairment ratings of two percent of the right hand, and one percent of the left hand. Claimant reported pain in her hands, arms, shoulders, and neck on February 29, 1988; March 7, 1988; and March 14, 1988. Page 5 On March 25, 1988 claimant was seen by Ben Bagon, M.D., for pain in the leg, shoulder and elbow, as well as anxiety and depression. On March 29, 1988 Alfredo D. Socarras, M.D., said claimant suffered from a large functional element, and advised her to quit work. Dr. Socarras conducted tests of both upper extremities, and concluded that there was no carpal tunnel syndrome. On June 23, 1988 Michael W. Crane, M.D., evaluating claimant for defendants, concluded that claimant had a tendonitis pain picture, and took claimant off work for one week. Dr. Crane termed claimant's carpal tunnel surgeries "unfortunate." On July 5, 1988 Dr. Crane assigned claimant a rating of permanent partial impairment of three percent to each hand, and also treated claimant for depression. Dr. Crane found no objective evidence of shoulder or neck impairment or pain. Claimant filed four petitions on June 9, 1988. Petitions in cases 777628, 791749, and 862964 alleged injury to claimant's upper extremities, shoulders, and neck. Case number 877065 alleged an injury to claimant's legs. On August 8, 1988 the company nurse observed a lump on the back of claimant's right hand. On September 27, 1988 claimant reported arm and shoulder pain and numbness at work. On October 3, 1988 claimant was seen by David Carlyle, M.D., for shoulder and neck pain. ANALYSIS Claimant has set forth twenty issues on appeal. In order to facilitate the clarity of this decision, some issues will be combined and considered in a differing order than set forth by claimant in her brief. Claimant's first issue concerns whether the deputy erred by limiting the post-hearing briefs to four pages and disregarding the brief filed by claimant. At the conclusion of the hearing, the deputy stated: THE COMMISSIONER: Why don't we have simultaneous briefs and have them by October 1. That should give everyone ample time to get them in. I am going to request that you limit them to four typed pages, 8 and a half by 11, and do it in a letter format. You can squeeze as much onto four pages as you want, and I don't care if you single space it. I don't care if you don't put any margins, but at the bottom of page 4, I am stopping, okay? So whatever you put afterwards, I am just not going to read it. (Transcript, pages 171-172) Page 6 Claimant submitted a post-hearing brief numbering four pages in length, but devoid of paragraphing, without margins, and with reduced type. In addition, claimant adopted by reference a brief in another case allegedly dealing with similar issues. That brief, which was attached to the post-hearing brief, was 164 pages in length. The deputy also noted that claimant filed a motion to reconsider, which included extensive argument and authority on the rule 80(a) sanctions issue. In the arbitration decision, the deputy indicated that none of claimant's post-hearing briefs would be considered. Rule 343 IAC 4.36 states: If any party to a contested case or an attorney representing such party shall fail to comply with these rules or any order of a deputy commissioner or the industrial commissioner, the deputy commissioner or industrial commissioner may dismiss the action. Such dismissal shall be without prejudice. The deputy commissioner or industrial commissioner may enter an order closing the record to further activity or evidence by any party for failure to comply with these rules or an order of a deputy commissioner or the industrial commissioner. Claimant was ordered to limit her post-hearing brief to four pages. Claimant attempted to expand that limitation by incorporating a 164 page brief, and also by incorporating an additional brief into her motion to reconsider. By doing so, claimant's attorney improperly disobeyed the order of the deputy. The deputy was empowered under rule 4.36 to dismiss claimant's case for disobedience of the deputy's order. Instead, the deputy imposed the lesser sanction of disregarding claimant's post-hearing brief. The deputy properly declined to consider claimant's incorporated brief in an unrelated case. Claimant's petition for rehearing, approximately 64 pages in length, also contained a brief of extensive authorities. Rule 343 IAC 4.9 does contemplate the submission of a brief of authorities with a motion. Those aspects of claimant's petition for rehearing that constitute a memorandum brief and argument were properly considered in ruling on the petition for rehearing, but were properly not considered as part of claimant's post-hearing brief. Claimant cannot circumvent the limitations placed on her post-hearing brief by disguising additional briefs under the guise of a motion for rehearing. The physical formatting of claimant's post-hearing brief makes the brief difficult, if not impossible, to read. Normally, an attempt to circumvent a brief length limitation by omitting paragraphing, extending margins to the edges of the paper, and reducing the type size, would also justify imposition of a sanction. The deputy was within her discretion to limit the length of the post-hearing briefs. However, the deputy's order at the conclusion of the hearing Page 7 could be read to authorize these unusual measures. Claimant's post-hearing brief of four pages should have been considered by the deputy. Because an appeal to the industrial commissioner results in a de novo review of the case, any error committed in not accepting claimant's post-hearing brief will be remedied in this appeal. Claimant's post-hearing brief will be considered on appeal along with claimant's appeal brief and reply brief. Claimant's sixth issue, and argued under other issues as well, alleges the deputy erred by "mischaracterizing" the injuries in cases 777628, 791749, and 862946. Claimant maintains that the deputy improperly dismissed the petitions in cases 777628 and 791749 under Iowa Code section 85.26. Claimant urges that the injuries in these cases were "ongoing" as well as cumulative, and no particular date of injury exists, or that the injury date should be "from 1/20/78-9/5/89." Claimant filed four petitions on June 9, 1988. One case was dismissed by claimant at the time of the hearing. In case number 777628, claimant alleged a cumulative injury to the upper extremities, shoulder, and neck occurring on October 2, 1984. Claimant was off work from October 2, 1984 until October 14, 1984. In case number 791749, claimant alleged a cumulative injury to the upper extremities, shoulder, and neck occurring on March 21, 1985. Claimant sought medical attention on that date, and was off work from March 25 through May 13, 1985. In case number 862946, claimant alleged a cumulative injury to the upper extremities, shoulder, and neck occurring on August 24, 1987. This petition was not dismissed by the deputy. Page 8 The deputy concluded that claimant had failed to comply with Iowa Code section 85.26(1) in case number 777628 because the date of filing of the petition, June 9, 1988, was more than two years beyond the stated date of injury, October 2, 1984. The deputy also applied the three year statute of limitations under Iowa Code section 85.26(2), applicable where benefits are voluntarily paid, and concluded that the petition had been filed more than three years after the period of time claimant was off work. In case number 791749, the deputy concluded that the filing of the petition on June 9, 1988 was beyond the two year statute of limitations in Iowa Code section 85.26(1), since the date of injury alleged was March 21, 1985. The deputy also applied the three year statute of limitations under Iowa Code section 85.26(2) to the period of time claimant was off work, and concluded that the petition was filed beyond three years as well. In both cases, the deputy used the last date claimant was off work as the starting point for the three year statute of limitations. However, Iowa Code section 85.26 speaks of three years "from the date of the last payment of weekly compensation benefits." Claimant's statement of the case in her appeal brief sets forth the benefits that were voluntarily paid by defendants, the period of disability represented by those payments, when the payments were received, and what exhibit corroborates the figures. Claimant's brief and the corresponding exhibits in the record show that the temporary disability benefits paid by defendants for the period claimant was off work following the October 2, 1984 injury in case number 777628 were received on November 30, 1984. Because weekly compensation benefits were paid, an original proceeding must be maintained within three years from the date of the last payment. This would require an action on this injury be instituted no later than November 30, 1987. Claimant's petition in case number 777628 was filed on June 9, 1988. Claimant's petition was not timely filed and is barred by the statute of limitations in Iowa Code section 85.26. Claimant's brief and the corresponding exhibits in the record show that the temporary disability benefits paid by defendants for the period claimant was off work following the March 21, 1985 injury in case number 791749 were received on May 9, 1985. This would require an action on this injury be instituted no later than May 9, 1988. Claimant's petition in case number 791749 was filed on June 9, 1988. Claimant's petition was not timely filed and is barred by the statute of limitations in Iowa Code section 85.26. Page 9 Claimant's petition in case number 877946 was timely filed, and no statute of limitations defense was raised by defendants in that case. Although temporary disability benefits were paid in both case number 777628 and 791749, and thus clearly controlled by the three year statute of limitations under Iowa Code section 85.26, claimant urges that no statute of limitations is applicable, because claimant has suffered a cumulative injury that is ongoing. Under McKeever Custom Cabinets v. Smith, 379 N.W.2d 368 (Iowa 1985), the date of injury occurs when the worker is unable to continue working due to the effects of the work injury. Claimant argues, however, that a cumulative injury does not occur when the claimant is first compelled to leave work due to pain from the injury, but only occurs when the pain forces the claimant to leave work permanently. Thus, claimant urges, since she was able to return to work, the statute of limitations had not yet begun to run even when the hearing occurred. In her appeal brief, claimant argues that the specific injury dates pled--October 2, 1984; March 21, 1985; and August 24, 1987, respectively--were merely "specific manifestations," and that claimant's cumulative injuries "occurred from 1978 to the 1989 date of hearing." Claimant urges that since the cumulative injury is yet ongoing, there is no statute of limitations and no date of injury. Claimant cannot avoid the statute of limitations by relying on a "running" injury date. Under McKeever, the injury date is when claimant's cumulative injury compelled her to leave work. In effect, claimant's interpretation of McKeever would result in no statute of limitations for cumulative injuries where the worker is able to return to work in spite of her condition. Although the technical rules of pleading have been abolished for workers' compensation actions, there still must be some semblance of specificity in the pleadings to allow defendants to defend, and adjudicators to decide. Taken to its illogical extreme, claimant's argument would require this agency to accept as an injury date any date from the beginning of claimant's employment until the date of the hearing. This is an absurd result and an incorrect reading of McKeever. McKeever resolves this question by establishing the date of injury as the date on which claimant is compelled to leave work due to her injury. Although as a factual matter the claimant in McKeever did not eventually return to work, there is no indication in that case that leaving work must be permanent to establish a cumulative injury date. The deputy properly dismissed cases 777628 and 791749. Issues ten and eleven urge that the deputy erred in the awarding of temporary disability, and also that the deputy erred in not specifying the credit defendants were entitled to for temporary disability paid. The deputy awarded claimant healing period benefits for the time she was off work from August 24, 1987 to February 22, 1988; and for the period June 23, 1988 to July 6, 1988. These periods were in Page 10 conjunction with the award of permanent benefits for claimant's bilateral carpal tunnel syndrome found in file number 862946. Claimant urges that temporary total disability or healing period benefits should also have been awarded for the following periods of time that claimant was off work: October 5, 1984 to October 14, 1984; March 25, 1985 to May 12, 1985; May 26, 1987 to May 8, 1988; May 31, 1988; June 16, 1988; June 23, 1988 to July 20, 1988; September 28, 1988; May 17, 1989; June 2, 1989; June 5, 1989; and June 12, 1989. Claimant has set forth on pages 54-56 of her appeal brief the periods of temporary total disability/healing period she claims she is entitled to, and when benefits for these periods were paid. Of the periods of disability set forth in the preceding paragraph, claimant acknowledges she has already been paid for all periods set forth with the exception of May 26, 1987-May 27, 1987; July 6, 1988-July 20, 1988; and for 3 hours on June 12, 1989. Although not listed on pages 54-56 of claimant's brief, on page 97 claimant also appears to claim she is entitled to temporary total disability/healing period benefits for the period April 10, 1988 to April 17, 1988. Defendants did not address this issue in their appeal brief. It appears that claimant was absent from work from April 10, 1988-April 17, 1988; July 6, 1988-July 20, 1988; and for 3 hours on June 12, 1989, as a result of her work injury. Defendants will be ordered to pay claimant for the periods of temporary total disability/healing period set forth in claimant's exhibit A and on pages 54-56 of claimant's appeal brief. Claimant is not entitled to benefits for the period May 26-27, 1987, as that period occurred prior to the only injury date claimant has established in this action, August 24, 1987. Claimant's issue 17 urges that the deputy erred in not specifying when the permanent disability as a result of the August 24, 1987 injury began. Claimant contends that permanency began on October 15, 1984, the date claimant returned to work following her alleged October 2, 1984 injury, and continued thereafter but was interrupted by various periods of further healing period. Claimant's petition for an alleged injury on October 2, 1984 has been dismissed. The injury of August 24, 1987 is the only injury claimant has proven. Under Iowa Code section 85.34(1), the healing period ends when the employee returns to work. For this injury, claimant returned to work on February 22, 1988. Claimant's healing period ended February 22, 1988, and her permanency began on that date. Claimant's 7th, 8th, 15th, 16th and 18th issues address the nature and extent of claimant's disability. Claimant received two ratings of impairment: two percent of the right hand and one percent of the left, from Dr. Bergman; and three percent of each hand by Dr. Crane. Claimant urges that the medical evidence shows an injury to the body as a Page 11 whole. Claimant alleges the deputy erred in not analyzing claimant's condition as a "unitary" injury involving that "regional" part of her body comprised by the upper extremities, shoulders, and neck. Claimant urges that the consolidation of her three separate petitions for hearing, and statements by her counsel, should have prompted an analysis based on a single cumulative injury. Whether an injury is viewed as traumatic or cumulative, and whether it is viewed as to a scheduled member or to the body as a whole, is determined by the medical evidence, and not by claimant's pleadings. Claimant's view of the case is not clear. Claimant filed three petitions, alleging three cumulative injuries to the arms, shoulder, and neck on three separate injury dates. Yet in her appeal brief claimant clearly argues that claimant has suffered one continual cumulative injury, that affected the hands, elbows, shoulders, and neck. See claimant's brief on appeal, pp. 83-84. Defendants urge that claimant's neck and shoulder pain is not the result of a work injury, but caused by claimant's January 1985 car accident. Claimant also had an experience of neck pain after tripping at home on September 23, 1986. Defendants point out that claimant did not have any complaints of shoulder pain until October 2, 1984, when she complained to Dr. Tepner. Claimant did not again complain of shoulder pain until after her car accident. Dr. Crane found full range of motion and no loss of pulse in claimant's shoulders. Defendants also note that Dr. Dodd observed an element of functional overlay in claimant's case as early as April 9, 1985, referring to claimant as a "classic conversion," where physical symptoms develop as a reaction to mental stress. Dr. Crane also noted a degree of functional overlay or symptom magnification. Dr. Crane specifically stated that claimant did not have any permanent functional impairment of the shoulders or neck. Claimant bears the burden of proof to show that her injury extends beyond the scheduled member, and to the body as a whole. If a claimant contends he has industrial disability he has the burden of proving his injury results in an ailment extending beyond the scheduled loss. Kellogg v. Shute and Lewis Coal Co., 256 Iowa 1257, 130 N.W.2d 667 (1964). Although claimant can point to numerous instances where she experienced and reported pain in her shoulders and neck, the medical evidence does not substantiate this. Both doctors that gave ratings of impairment confined the impairment to the hands. In addition, pain that is not substantiated by clinical findings is not a substitute for impairment. Waller v. Chamberlain Manufacturing, II Iowa Industrial Commissioner Report 419, 425 (1981). Claimant has failed to carry her burden to show that her injury extends to the body as a whole. The only Page 12 evidence supporting this contention is claimant's own testimony, which is not substantiated by any medical evidence. There is substantial evidence that the pain described by claimant is the result of functional overlay, rather than her work injury. The psychological effects of a scheduled member injury are contemplated by the schedule and do not extend the injury to the body as a whole. Cannon v. Keokuk Steel Casting, Appeal Decision, January 27, 1988. In addition, there is no showing that claimant's alleged neck and shoulder pain, even if it is caused by her work injury, has caused her disability. Dr. Crane's finding of no loss of motion in the shoulders contradicts claimant's assertion. Finally, even if claimant is viewed as having neck and shoulder impairment, claimant's car accident and tripping incident are as likely causes of her condition as her work injury. Claimant bears the burden of proof, and has failed to show that any neck and shoulder condition has been caused by her work. As there is no medical evidence in the record to indicate that claimant's work injury extends to the body as a whole, claimant is not entitled to an award of industrial disability. When the result of an injury is loss to a scheduled member, the compensation payable is limited to that set forth in the appropriate subdivision of Iowa Code section 85.34(2). Barton v. Nevada Poultry Co., 253 Iowa 285, 110 N.W.2d 660 (1961). Claimant has two ratings of impairment to her hands. Dr. Crane, although an evaluating physician, had extensive contact with claimant. Dr. Crane's contact with claimant was also later in time than the contact between claimant and Dr. Bergman. The testimony of Dr. Crane will be given the greater weight. Claimant is determined to have suffered a three percent permanent partial impairment of her right hand as a result of her work injury of August 24, 1987. Claimant is also determined to have suffered a three percent permanent partial impairment of her left hand as a result of her work injury of August 24, 1987. Since claimant's cumulative bilateral hand injuries were incurred simultaneously, any award of benefits is governed by Iowa Code section 85.34(2)(s). Under the AMA Guides to the Evaluation of Permanent Impairment, claimant's hand impairments convert to a four percent impairment of the body as a whole. Claimant's fourth and fifth issues on appeal concern claimant's rate of compensation. Claimant argues that the deputy erred in concluding that claimant was being paid $6.37 at the time of her injury. Claimant states that on appeal, claimant and defendants are stipulating that claimant's actual wages at the time of the injury was $10.05 per hour. Subsequent to the deputy's decision, claimant filed a Page 13 Request for the Taking of Additional Evidence, seeking to submit evidence on the rate question. Claimant subsequently filed a stipulation signed by counsel for both claimant and defendants setting forth claimant's wages for 1987 through 1989, which ranged from $10.05 per hour to $10.55 per hour. A ruling issued by this agency on January 30, 1990, denied the request, reciting that the record was closed, that rate was not an issue at the original hearing, and that claimant could not seek to supplement the record after the close of the hearing and issuance of a decision. However, upon further examination of the record on appeal, it appears that numerous exhibits entered into the record by both claimant and defendants at the time of the hearing (see claimant's appeal brief, p. 66) do establish that claimant's wages at the time of the August 24, 1987 injury in case number 862946 were $10.05 per hour. The record establishes that claimant worked a 40 hour week, for a gross weekly wage of $402.00. Claimant was married with two exemptions. Claimant's correct rate for the August 24, 1987 injury is $253.05. Claimant's fifth issue on appeal concerns the date of injury to be applied to claimant's alleged cumulative injury for purposes of calculating claimant's rate. Claimant argues that since claimant's "injury" (claimant does not specify which alleged injury) was cumulative, her rate should be calculated according to the highest wage she received during the period of time claimant alleges the trauma was ongoing. Claimant cites McKeever Custom Cabinets v. Smith, 379 N.W.2d 368, 375 (Iowa 1985). However, as discussed above, McKeever clearly establishes the injury date in a cumulative injury case as occurring when pain prevents the employee from continuing work. In regard to claimant's bilateral carpal tunnel, claimant alleged August 24, 1987 as the date of injury. Claimant was compelled to leave work on August 24, 1987 and was off work for 28 weeks. McKeever establishes August 24, 1987 as the date of injury in case number 862946. Claimant's rate is to be calculated according to her wages on the date of injury. Claimant's second issue on appeal concerns an alleged failure to order the payment of medical benefits. Since this issue was stipulated to by defendants at the hearing it will be ordered in this decision. Transcript, pp. 10-11. Similarly, in regard to claimant's issue 3, the deputy's decision did order defendants to pay the costs of the proceedings. Rule 343 IAC 4.33 contemplates payment of witness fees and mileage as part of the costs. A specific order for these items was not required. Defendants do not dispute their obligation to pay these costs. Similarly, claimant, in issues 12 and 13, urges that interest ordered under Iowa Code section 85.30 on unpaid temporary total disability benefits be calculated from the first day of each week the benefits were payable, applying payments to interest first, then to principle, on a weekly, rather than annual, basis. Page 14 In Farmer's Elevator Co., Kingsley v. Manning, 286 N.W.2d 174 (Iowa 1979), at 180 the Iowa Supreme Court said: Section 85.30 expresses legislative intent that interest on unpaid compensation be computed from the date each payment comes due, starting with the eleventh day after the injury....Interest is therefore payable on such installment from that due date, and similarly with the following weekly payments. Interest is computed according to the longstanding rule that partial payments are applied first to accrued interest and the remainder to reduce the permanent partial disability award. McNeal v. Iowa Department of Transportation, Order Nunc Pro Tunc, May 31, 1990. Also see Clausen v. Carmar Farms, Ltd., Vol.1, No. 3 State of Iowa Industrial Commissioner Decisions 540 (1985). Defendants did not address this issue in their appeal brief. Claimant did not raise this issue before the deputy. It is unclear whether the calculation of interest is in dispute between the parties. The parties are directed to calculate interest on any weekly benefits not paid when due based on Iowa Code section 85.30 and the above cited authority. If a dispute exists between the parties on how the interest should be calculated, the parties can then bring the question before this agency for resolution. Claimant's issue 14 involves penalty benefits under Iowa Code section 86.13. The claimant correctly points out that although the issue of penalty benefits under Iowa Code section 86.13 was listed on the hearing assignment order as an issue, and was announced to be an issue at the beginning of the hearing, it was not addressed in the arbitration decision. Claimant urges a 25 percent penalty be imposed, on both "principal" (compensation payments) and the interest thereon. As set out in claimant's brief, the delay in payments of compensation were minimal. In most cases, the time between accrual of the obligation and payment was less than one month. The longest delay was slightly over two months. Claimant alleges that compensation for the period May 26, 1987 to May 27, 1987 (two days), July 6, 1988 to July 20, 1988 (two weeks), and compensation for June 12, 1989, have never been paid. Imposition of penalty benefits are within the discretion of this agency. Section 86.13 speaks of delay without reasonable cause or excuse. The delays in payment in this case where payment was made are not unreasonable. Although there is no showing as to the reason for the delay, the length of time involved does not warrant imposition of a penalty. In regards to compensation for May 26, 1987 through May 27, 1987; July 6, 1988 through July 20, 1988; and June 12, 1989, a reasonable dispute existed between the parties and a penalty is not appropriate. Issue 19 deals with sanctions under rule 80(a) of the Iowa Rules of Civil Procedure. The deputy made a finding in Page 15 the decision that claimant's counsel should have dismissed the petition in case number 877065 when, during discovery, it became apparent that the petition had no merit. Claimant's counsel did not move to dismiss this petition until the hearing. Although making a finding that the petition should have been dismissed sooner, the deputy did not impose sanctions on claimant or her counsel. Claimant basically seeks to reverse the finding of fact. Review by the industrial commissioner of a deputy's decision is de novo. A deputy's decision, once properly appealed, cannot be reinstated. Tussing v. Hormel & Co., 461 N.W.2d 450 (Iowa 1990). Thus, although no determination is here made on whether the finding was correct, the finding of fact by the deputy no longer has any legal effect. Since no sanction was imposed, this issue is moot and will not be addressed. Claimant's final issue concerns her cross-motion for sanctions against defendants. Iowa Rule of Civil Procedure 80(a) is applicable to proceedings before the Iowa Industrial Commissioner. Olson v. Wilson Foods Corporation, Appeal Decision, May 31, 1990. Claimant apparently seeks to impose sanctions on defendants for unreasonably defending claimant's petition in case 877065 by conducting discovery. Claimant eventually dismissed the petition in case number 877065, but waited until the hearing to do so. Defendants did not engage in improper conduct violative of Iowa R.Civ.P. 80(a) in conducting discovery for all four pending petitions from claimant. As pointed out by the deputy, virtually the same discovery would have been conducted in this case by defendants with or without case number 877065. Sanctions against defendants are not appropriate. FINDINGS OF FACT 1. Claimant worked for defendant employer as an electrical assembler. 2. Claimant experienced pain in her fingers, back, and neck at various times from 1978 to 1983. 3. Claimant experienced pain in her right wrist and arm at work on October 2, 1984. Claimant was off work until October 15, 1984. 4. Claimant was in a car accident on January 23, 1985 which resulted in injury to her neck, left shoulder, and hand. Claimant was off work until February 11, 1985. 5. Claimant reported bilateral hand numbness, right and left elbow pain, and leg tingling on March 21, 1985. Claimant was off work until May 13, 1985. 6. Claimant was diagnosed on April 4, 1985, as suffering from work-related carpal tunnel syndrome or tendonitis, with functional overlay and hysterical neurosis. 7. Claimant experienced a tripping accident at home during September 1986, which resulted in neck pain. Page 16 8. Claimant reported finger, wrist, elbow, shoulder, and neck pain at various times throughout 1985, 1986, 1987, and 1988. 9. Claimant was diagnosed as suffering bilateral traumatic arthritis in August 1987. Claimant was off work from August 24, 1987 to February 22, 1988. 10. Claimant underwent carpal tunnel surgeries to her hands on October 30, 1987 and January 8, 1988. 11. On May 31, 1988 claimant received ratings of permanent physical impairment of two percent of the right hand and one percent of the left hand. 12. On March 29, 1988, Dr. Socarras found that claimant did not suffer from carpal tunnel syndrome, but did suffer from a large functional element. 13. Dr. Crane also concluded that claimant did not actually suffer from carpal tunnel syndrome, but assigned claimant a permanent partial impairment of three percent of each hand as a result of her surgeries on July 5, 1988. Dr. Crane found no objective evidence of shoulder or neck impairment. 14. Claimant's petitions were filed on June 9, 1988. 15. Claimant was absent from work due to a work injury April 10-April 17, 1988; July 6, 1988-July 20, 1988; and for 3 hours on June 12, 1989, 16. Claimant's August 24, 1987 injury was confined to claimant's hand and wrist, and did not extend to the body as a whole. Claimant experienced pain in her shoulders and neck, but did not experience any impairment to the body as a whole. Claimant's pain in her shoulders and neck was the result of functional overlay. Claimant's pain in her shoulders and neck did not result in disability. 17. Claimant's gross wages at the time of her August 24, 1987 injury were $10.05 per hour. CONCLUSIONS OF LAW 1. Post-hearing briefs of the parties were properly limited by the deputy. 2. Claimant's petitions in case 777628 and 791749 were barred by the statute of limitations. 3. The date of injury for a cumulative injury is the date claimant is compelled to leave work due to the work injury. Claimant is not entitled to a "running" injury date. Claimant's date of injury in case 877946 is August 24, 1987. 4. The date of injury for a cumulative injury is established by the date on which claimant is compelled to Page 17 leave work due to pain or disability from the work injury, whether the inability to work at the job is temporary or permanent. 5. Claimant is entitled to healing period benefits for April 10-April 17, 1988; July 6, 1988-July 20, 1988; and for 3 hours on June 12, 1989. 6. Claimant's permanent partial disability began on February 22, 1988. 7. Claimant's cumulative injury affected her hands and wrists. Claimant's injury did not extend to the body as a whole. 8. Claimant did not carry her burden of proof to show that her neck and shoulder pain were caused by a work injury. 9. As a result of her work injury, claimant has a permanent partial impairment of three percent of the right hand. 10. As a result of her work injury, claimant has a permanent partial impairment of three percent of the left hand. 11. Under Iowa Code section 85.34(2)(s), claimant is entitled to 20 weeks of benefits, representing four percent of the body as a whole. 12. Claimant's rate of weekly compensation is $253.05. Claimant's rate is determined by her wages on the date of cumulative injury, August 24, 1987. 13. Penalty benefits are not appropriate. 14. Sanctions under Iowa R.Civ.P. 80(a) are not appropriate against either party. WHEREFORE, the decision of the deputy is affirmed and modified. ORDER THEREFORE, it is ordered: That defendants are to pay unto claimant for file number 862946 twenty (20) weeks of permanent partial disability benefits at the rate of two hundred fifty-three and 05/100 dollars ($253.05) per week as a result of the injury on August 24, 1987. That defendants are to also pay healing period benefits at the rate of two hundred fifty-three and 05/100 dollars ($253.05) per week for the period August 24, 1987 through February 22, 1988; and June 23, 1988 through July 6, 1988. Defendants shall also pay healing period benefits for the periods April 10, 1988 through April 17, 1988; July 6, 1988 through July 20, 1988; and for three (3) hours on June 12, Page 18 1989. Payments that have accrued shall be paid in a lump sum together with statutory interest thereon pursuant to Iowa Code section 85.30. That defendants are to be given credit for all benefits previously paid to claimant. That claimant takes nothing from files numbered 877065, 777628 and 791749. Defendants shall pay claimant's medical expenses in the amount of $173.25. Claimant is to pay the costs of the appeal including the cost of transcribing the hearing. Defendants are to pay the other costs of this action, including the costs for the attendance of witnesses contemplated by rule 343 IAC 4.33. Signed and filed this ____ day of May, 1991. ________________________________ CLAIR R. CRAMER ACTING INDUSTRIAL COMMISSIONER Page 19 Copies To: Mr. Mark S. Soldat Attorney at Law 714 E. State St. Algona, Iowa 50511 Mr. Paul C. Thune Attorney at Law 218 6th Ave., Suite 300 P.O. Box 9130 Des Moines, Iowa 50306 BEFORE THE IOWA INDUSTRIAL COMMISSIONER PATRICIA TERWILLIGER, Claimant, File Nos. 877065, VS. 862946, 791749 & 777628 SNAP-ON TOOLS CORPORATION, A R B I T R A T I 0 N Employer, D E C I S I 0 N and ROYAL INSURANCE COMPANY, Insurance Carrier, Defendants.. INTRODUCTION These are arbitration proceedings brought by Patricia Terwilliger, claimant, against Snap-On Tools, and its insurance carrier, Royal Insurance Company, defendants. The cases were heard by the undersigned in Des Moines, Iowa on September 5, 1989. The record consists of claimant's exhibits A, B, and C. The record also consists of defendants' exhibits 1-21. The record additionally consists of the testimonies of claimant, Diane Bunkofske, Diane Hansen, Alan Vaske, Jeanne Householder, Holly Miller, Jan Woodyard, and Lee Gunderson, personnel manager at Snap-On Tools. During the hearing, claimant made a motion to dismiss without prejudice file number 877065. There was no resistance by defendants. The motion was orally granted. ISSUES As a result of the prehearing report and order submitted and approved on September 5, 1989, the issues presented by the parties are: 1. Whether claimant sustained injuries which arose out of and in the course of employment for files 777628 and 791749. 2. Whether there is a causal relationship between the alleged injuries and the disability for files 777628 and 791749. TERWILLIGER V. SNAP-ON TOOLS CORPORATION Page 2 3. Whether claimant is entitled to temporary disability/healing period benefits or permanent partial or total disability benefits for files 777628 and 791749. 4. Whether the claims have been timely filed pursuant to section 85.26 with respect to files 777628 and 791749. 5. Whether claimant served proper notice on defendant pursuant to section 85.23 with respect to files 777628 and 791749. 6. The nature and extent of disability for file number 862946. 7. Whether defendants are entitled to sanctions pursuant to Rule 80 of the Iowa Rules of Civil Procedure for file 877065. STIPULATIONS Prior to the hearing, the parties entered into a number of stipulations. The stipulations are as follows: 1. The existence of an employer-employee relationshi between claimant and employer at the time of the alleged injury; 2. With respect to file number 862946, claimant sustained a bilateral carpal tunnel injury on August 24, 1987; 3. With respect to file number 862946, the alleged injury is a cause of temporary/permanent disability; 4. With respect to file number 862946, defendants paid 15 weeks of permanent partial disability and 28 weeks of healing period benefits plus $1,870.90 in temporary partial disability benefits; and, 5. Claimant's entitlement to medical benefits under Iowa Code section 85.27 is no longer in dispute and defendants will pay $173.25 in medical bills. FACTS PRESENTED Claimant is 44-years-old. She left high school after the eleventh grade. In December of 1973, claimant commenced her employment with defendant. Prior to her employment with defendant, claimant testified she was in good health. Claimant was initially hired as an electrical assembler. She installed small parts and wires on boards. Claimant worked from a sitting position. She was required to look down upon her work. TERWILLIGER V. SNAP-ON TOOLS CORPORATION Page 3 In 1978, claimant was promoted to a lead worker. She would set up an individual work station and she would teach a worker how to perform a particular job. Claimant testified that in the fall of 1984, she had pain in her right shoulder, hands, and neck. However, claimant indicated she was able to tolerate the pain with Motrin and anti-inflammatories. Claimant also reported on January 23, 1985, she hit a deer while driving her vehicle. This was not related to claimant's employment. She indicated she sustained a whiplash to her neck and that she bruised her left shoulder. Claimant additionally testified she was transferred in-house to the metal day assembly section in January of 1989. Defendant's medical records for its employee shows that on March 21, 1985, claimant complained she had pain in her right and left elbows. Claimant sought treatment on various occasions from her personal physician, F. L. Tepner, D.O. one of the occasions when Dr. Tepner treated claimant was on March 21, 1985. Claimant complained of pain in her elbows, numbness in her hands and tingling in her leg. She was then referred to M. J. Kitchell, M.D., by Dr. Tepner. Records for claimant indicate Dr. Kitchell prepared the following report for claimant on April 9, 1985: Has symptoms of musculoskeletal pain, probably a tendonitis. She should not go back to work yet. Further medical consultation may be necessary. I think this is work related. Dr. Kitchell's records establish that he did refer claimant for a psychological evaluation. A MMPI was given to claimant. Dr. Jack L. Dodd, M.D., interpreted the test. He wrote in his office notes for April 9, 1985: ... This is a classic conversion. These individuals often present as being physically ill, pain being the chief complaint frequently. Pain tends to be localized in the extremities, head, neck or back. These individuals characteristically develop physical symptoms as reaction to mental or environmental [sic] stress. Repression and denial often make psychological approach difficult. The profile would suggest the diagnosis of hysterical neurosis, hysterical personality or psychophysiological reaction. Often these patients are as well.treated by their primary physician as by a psychiatrist. or psychologist. In April of 1985, claimant was also referred to Allen G. Lang, M.D., for "tightness and pain in the neck, headaches, TERWILLIGER V. SNAP-ON TOOLS CORPORATION Page 4 pain in both shoulders, numbness in both hands, numbness in both feet, pain in the tailbone, low back discomfort, tightness and soreness in the thighs and upper arms." In the fall of 1987, claimant was seen by Ronald S. Bergman, M.D., a surgeon. He treated claimant for bilateral carpal tunnel syndrome. At first, claimant was treated conservatively. Eventually surgery was performed. Claimant testified she returned to work in February of 1988 but she indicated she experienced difficulties with pain, swelling, dexterity difficulties and she stated that her neck, shoulders, elbows and hands ached. Dr. Bergman ordered an impairment evaluation. The evaluation was as follows: 0% impairment of the R UE based on ROM 0% impairment of the L UE based on ROM 2% impairment of the R hand based on grip strength 1% impairment of the L hand based on grip strength Dr. Bergman referred claimant to Alfredo D. Socarras, M.D., a neurologist. In his report of March 29, 1988, Dr. Socarras opined: It is my opinion that there is a great disproportion between patient's complaints and the lack of objective findings. I believe that there is a large functional element in this case. However, I repeated the electromyogram of both upper extremities with nerve conduction studies of the median and ulnar nerves to compare to the.previous one. Test was performed on March 29, 1988 and was entirely normal. A report is enclosed. I cannot explain the constellation of symptoms on the basis of a carpal tunnel syndrome. I feel that her headaches are on a muscle contraction or tension basis. I advised her to engage in a regular aerobic exercises and to reduce weight. She should be encouraged to continue with her usual activities. Claimant was subsequently sent to Michael W. Crane, M.D., an orthopedic surgeon. Dr. Crane was retained for purposes of an examination and an evaluation. Dr. Crane, in his report to defendants' attorney wrote: I do note that she has been seen by Dr. Bergman in. the recent past for low back and left leg symptoms. At the time of my examination she had very minimal complaints to that area except a "strange feeling or numb feeling". She stated that even as she was sitting and being examined she developed a stocking foot type of numbness from the knee down on the left side. It is inconsistent with any known anatomic nerve distribution. TERWILLIGER V. SNAP-ON TOOLS CORPORATION Page 5 It is unfortunate that she has had bilateral carpal tunnel surgery. I think that she does have a bit of weakness in her hands. At this point it is difficult to tell the etiology, but certainly simply carpal tunnel surgery can have something to do with that. I would give her a permanent partial disability of the right hand of 3% and of the left hand 3%. I do note that there were abnormalities in her two point discrimination but the testing was very inconsistent. Although she has multiple other symptoms, going up into the shoulders, back, etc.,.I find no objective limitations to back up a permanent partial disability rating in those areas., As I go through her records of multiple physician visits in the last three years with the associated loss of time at work, it is apparent that she.is becoming functionally disabled in regard to her Snap On job. This is in spite of the lack of objective or physical evidence. Dr. Crane testified by way of deposition. He indicated there were multiple complaints from claimant. However, there was no one chief complaint. Dr. Crane described claimant's complaints as: "Pain in both hands, both wrists, both elbows, both shoulders, a buzzing feeling in her left leg, burning in her left arm into the left hand. (Defendants' Exhibit 18, page 4, lines 20-22). Dr. Crane also testified his impression of claimant's condition consisted of "a tendonitis type chronic pain picture." (Defts' Ex. 18, p. 5, 11. 10-11). He stated that he performed various tests relative to claimant's grip strength but that he did not receive consistent results. Dr. Crane stated he doubted claimant's efforts on the tests. Dr. Crane testified he performed range of motion tests on claimant's elbows and she had full range of motion. The physician stated his examination demonstrated: And what did your exam of the elbows reveal? Both of them were touchy, touchy meaning when I palpate the ulnar nerve behind the elbow she seemed to feel a little more pain than I would expect in a quote, "normal person, a normal exam." Q Of what significance was that to you? TERWILLIGER V. SNAP-ON TOOLS CORPORATION Page 6 A It can suggest an early, tardy ulnar nerve palsy and -- but I didn't detect a subluxation. The ulnar nerve -- at times the ulnar nerve will move in and out of it's [sic] appropriate anatomic position and that can cause some trouble. Q Did you test the elbows for range of motion? A I did. Yes, I did, there was full motion. Q What did you find -- okay. Of what significance was that to you? A Well, it's what it does signify is that there was not a -- what I would call a major injury. Elbows are very touchy. If there has been an injury that requires the person to hold it in a position for probably more than two weeks they tend to get stiff and stay stiff. Q Did you find that here? A No, I didn't. Q Okay. Did you also examine the shoulders? A Yes, I did. Q And what did you find? A Full range of motion. I also found that her pulses were adequate in all positions. Q Why would that be important? A People with a certain type of thoracic outlet syndrome, when you raise their arm up and move it backwards a bit, if their pulse disappears that can be an indication of a problem. Q And you didn't find any such problem in your exam? A No, I didn't. (Defts' Ex. 18, p. 6, 1. 22 to p. 8, 1. 5). Dr. Crane stated he could find no objective findings except for the reduced grip.strength. He indicated his diagnosis of tendonitis type chronic pain picture was based on claimant's subjective complaints. Dr. Crane also testified concerning the functional impairment ratings he assessed.. He assigned a three percent functional impairment rating to the right hand. TERWILLIGER V. SNAP-ON TOOLS CORPORATION Page 7 He also assessed a three percent functional impairment rating to the left hand. Dr. Crane found no functional impairment for the shoulders, but he did state that claimant's complaints of left shoulder pain could be aggravated by her work situation. He also reported that after claimant's first few examinations, she did not complain again of significant neck problems. Furthermore, Dr. Crane opined the neck problems were a functional overlay of claimant's emotional health. The physician also determined he could not assess a functional impairment rating because of claimant's subjective complaints. Additionally, Dr. Crane testified he believed there should be no more treatment for the carpal tunnel problems. He did recommend antidepressant therapy with a tricyclic such as Norpramin as he opined depression could be a reason for symptom magnification and functional overlay. Dr. Crane also stated he modified claimant's work restrictions. She could lift up to 25 pounds and she could work nine hours per day five days per week. Dr. Crane also indicated claimant had not been scheduled for future examinations. She would see her physician only on a needed basis. Mr. Lee Gunderson, the personnel manager for defendant employer, testified for defendant. He indicated claimant was placed on a work hardening program after she returned from her second carpal tunnel release. Dr. Gunderson testified claimant was more efficient at work by the time of the hearing than she was when she initially returned to work. APPLICABLE LAW An employee is entitled to compensation for any and all personal injuries which arise out of and in the course of the employment. Section 85.3(l). Claimant has the burden of proving by a preponderance of the evidence that she received injuries on October 2, 1984, March 21, 1985 and August 24, 1987 which arose out of and in the course of her employment. McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967). The injury must both arise out of and be in the course of the employment. Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 402, 68 N.W.2d 63 (1955) and cases cited at pp. 405-406 of the Iowa Report. See also Sister Mary Benedict v..St. Mary's Corp., 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, 246 Iowa 402, 68 N.W.2d 63 (1955). TERWILLIGER V. SNAP-ON TOOLS CORPORATION Page 8 The words "in the course of" refer to the time and place and circumstances of the injury. McClure v. Union et al. Counties, 188 N.W.2d 283 (Iowa 1971); Crowe, 246 Iowa 402, 68 N.W.2d 63 (1955). "An injury occurs in the course of the employment when it is within the period of employment at a place the employee may reasonably be, and while he is doing his work or something incidental to it." Cedar Rapids Comm. Sch. Dist. v. Cady, 278 N.W.2d 298 (Iowa 1979); McClure, 188 N.W.2d 283 (Iowa 1971); Musselman, 261 Iowa 352, 154 N.W.2d 128 (1967). The claimant has the burden of proving by a preponderance ,of the evidence that the injuries of October 2, 1984, March 21, 1985 and August 24, 1987 are 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). The opinions of experts need not be couched in definite, positive or unequivocal language. Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974). An opinion of an expert based upon an incomplete history is not binding upon the commissioner, but must.be weighed together with the other disclosed facts and circumstances. Bodish, 257 Iowa 516, 133 N.W.2d 867 (1965). The expert medical evidence must be considered with all other evidence introduced bearing on the causal connection between the injury and the disability. Burt, 247 Iowa 691, 73 N.W.2d 732 (1955). In regard to medical testimony, the commissioner is required to state the reasons on which testimony is accepted or rejected. Sondag, 220 N.W.2d 903 (1974). The right of a worker to receive compensation for injuries sustained which arose out of and in the course of employment is statutory. The statute conferring this right can also fix the amount of compensation to be paid for different specific injuries, and the employee is not entitled to compensation except as provided by the statute. Soukup v. Shores Co., 222 Iowa 272, 268 N.W. 598 (1936). An injury to a scheduled member may, because of after effects (or compensatory.change), result in permanent impairment of the body as a whole. Such impairment may in turn form the basis for a rating of industrial disability. Dailey v. Pooley Lumber Co., 233 Iowa 758, 10 N.W.2d 569 (1943). Soukup, 222 Iowa 272, 268 N.W. 598 (1936). TERWILLIGER V. SNAP-ON TOOLS CORPORATION Page 9 An injury is the producing cause; the disability, however, is the result, and it is the result which is compensated. Barton v. Nevada Poultry Co., 253 Iowa 285, 110 N.W.2d 660 (1961); Dailey, 233 Iowa 758, 10 N.W.2d 569 (1943). If a claimant contends he has industrial disability he has the burden of proving his injury results in an ailment extending beyond the scheduled loss. Kellogg v. Shute and Lewis Coal Co., 256 Iowa 1257, 130 N.W.2d 667 (1964). As a claimant has an impairment to the body as a whole, an industrial disability has been sustained. Industrial disability was defined in Diederich v. Tri-City Railway Co., 219 Iowa 587, 593, 258 N.W. 899, 902 (1935) as follows: "It is therefore plain that the legislature intended the term 'disability' to mean 'industrial disability' or loss of earning capacity and not a mere 'functional disability' to be computed in the terms of percentages of the total physical and mental ability of a normal man." Functional impairment is an element to be considered in determining industrial disability which is the reduction of earning capacity, but consideration must also be given to the injured employee's age, education, qualifications, experience and inability to engage in employment for which he is fitted. Olson v. Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963). Barton, 253 Iowa 285, 110 N.W.2d 660 (1961). A finding of impairment to the body as a whole found by a medical evaluator does not equate to industrial disability. This is so as impairment and disability are not synonymous. Degree of industrial disability can in fact be much different than the degree of impairment because in.the first instance reference is to loss of earning capacity and in the latter to anatomical or functional abnormality or loss. Although loss of function is to be considered and disability can rarely be found without it, it is not so that a degree of industrial disability is proportionally related to a degree of impairment of bodily function. Factors to be considered in determining industrial disability 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 TERWiLLIGER V. SNAP-ON TOOLS CORPORATION Page 10 by a job transfer for reasons related to the injury is also relevant. These are matters which the finder of fact considers collectively in arriving at the determination of the degree of industrial disability. There are no weighting guidelines that indicate how each of the factors are to be considered. There are no guidelines which give, for example, age a weighted value of ten percent of the total value, education a value of fifteen percent of total, motivation - five percent; work experience - thirty percent, etc. Neither does a rating of functional impairment directly correlate to a degree of industrial disability to the body as a whole. In other words, there are no formulae which can be applied and then added up to determine the degree of industrial disability. It therefore becomes necessary for the deputy or commissioner to draw upon prior experience, general and specialized knowledge to make the finding with regard to degree of industrial disability. See Peterson v. Truck Haven Cafe, Inc., (Appeal Decision, February 28, 1985); Christensen v.Hagen, Inc., (Appeal Decision, March 26, 1985).. For example, a defendant employer's refusal to give any sort of work to a claimant after he suffers his affliction may justify an award of disability. McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980). Permanent partial disabilities are classified as either scheduled or unscheduled. A specific scheduled disability is evaluated by the functional method; the industrial method is used to evaluate an unscheduled disability. Martin v. Skelly Oil Co., 252 Iowa 128, 133, 106 N.W.2d 95, 98 (1960); Graves v. Eagle Iron Works, 331 N.W.2d 116 (Iowa 1983); Simbro v. DeLong's Sportswear, 332 N.W.2d 886, 887 (Iowa 1983). ANALYSIS The first issue to address is the nature and extent of disability which claimant sustained in file number 862946. The parties stipulated the injury date was August 24, 1987, for both injuries. Both Dr. Bergman, the surgeon, and Dr. Crane, the subsequent treating physicians, assessed functional impairment ratings. Dr. Bergman determined a two percent impairment of the right hand and a one percent impairment of the left hand. Dr. Crane assessed a three percent functional impairment to each hand. It is the determination of the undersigned that the rating of the subsequent treating physician is accorded more weight. Dr. Crane is an orthopedic surgeon and he saw claimant on several occasions. These occasions were more recent than the occasions when claimant saw Dr. Bergman. It is the determination of the undersigned that claimant sustained a three percent functional impairment to each hand. TERWILLIGER V. SNAP-ON TOOLS CORPORATION Page 11 The parties stipulated there was a single injury date. Both hands were involved. Therefore, the proper code section to use in order to calculate the disability is section 85.34(s). This section provides: The loss of both arms, or both hands, or both feet, or both legs, or both eyes, or any two thereof, caused by a single accident, shall equal five hundred weeks and shall be compensated as such, however, if said employee is permanently and totally disabled the employee may be entitled to benefits under subsection 3. Using the AMA Guides to the Evaluation of Permanent Impairment, Third Edition (1988), three percent of the hand translates to three percent of the upper extremity. Three percent of the upper extremity is equal to two percent of the whole person. Then turning to the combined values chart on page 246 of the AMA Guides, two percent of the whole person is combined with two percent of the whole person for a combined value of four percent. This four percent figure equals 20 weeks of permanent partial disability benefits. The next issue to address is the nature and extent of healing period benefits, if any. Section 85.34(l) governs the payment of healing period benefits. This section provides: 1. Healing period. If an employee has suffered a personal injury causing permanent partial disability for which compensation is payable as provided in subsection 2 of this section, the employer shall pay to the employee compensation for a healing period, as provided in section 85.37, beginning on the date of injury, and until the employee has returned to work or it is medically indicated that significant improvement from the injury is not anticipated or until the employee is medically capable of returning to employment substantially similar to the employment in which the employee was engaged at the time of injury, whichever occurs first. In the instant case, claimant sustained a permanent partial disability. Claimant's injury date is August 24, 1987. She was off work from that date. She did not return to her position until February 22, 1988. She was off work for 26 weeks. Claimant was also off work from June 23, 1988 to July 6, 1988. This time is two weeks. Claimant is entitled to healing period benefits for 28 weeks. Claimant's gross wages were $6.37 per hour for 40 hours per week. This calculates as $254.80 per week. Using the July 1, 1987 Guide to Workers' Compensation Claim Handling, claimant's rate of weekly compensation for a married person TERWILLIGER V. SNAP-ON TOOLS CORPORATION Page 12 with two exemptions is $167.54 per week. This is the proper weekly compensation rate. The next issues deal with files numbered 777628 and 791749. In file number 777628 there is an alleged injury date of October 2, 1984. In file number 791749 there is an alleged injury date of March 21, 1985. Both files involve allegations of neck and shoulder injuries. With respect to these two files, defendants argue the petitions were not timely filed pursuant to section 85.26. Subsection 1 of section 85.26 provides: 1. An original proceeding for benefits under this chapter or chapter 85A, 85B, or 86, shall not be maintained in any contested case unless the proceeding is commenced within two years from the date of the occurrence of the injury for which benefits are claimed or, if weekly compensation benefits are paid under section 86.13, within three years from the date of the last payment of weekly compensation benefits. File number 777628 alleges an injury date of October 2, 1984. Claimant also alleges a cumulative injury. In McKeever Custom Cabinets v. Smith, 379 N.W.2d 368 (Iowa 1985), the court held that the date of injury in gradual injury cases is the time when pain prevents the employee from continuing to work. See: Willard v. John Deere Component Works, (Arbitration No. 779876 filed on June 29, 1987). Personnel records for claimant establish she was off work from October 2, 1984 through October 14, 1984. There is a note from Dr. Tepner bearing a date of October 2, 1984 which reads: "Work induced capsulitis of rt. shoulder -- no work until pain is gone & full range of motion is present." It is unclear from the records whether claimant received weekly compensation for this time. However, even if weekly benefits were paid through October 14, 1984, claimant, under section 85.26, would be required to file her petition with the industrial commissioner's office by October 14, 1987. The petition was not filed until nearly eight months after the last possible date allowed. Claimant's petition is untimely filed. The petition cannot be maintained. The statute of limitations had run prior to the filing date. Claimant takes nothing under file 777628. With respect to file.number 791749, there is again an allegation of a cumulative work injury. As previously mentioned, the alleged injury date is listed as March 21, 1985. Claimant sought medical attention on that date. Her personnel records report claimant as absent from work from March 25, 1985 through TERWILLIGER V. SNAP-ON TOOLS CORPORATION Page 13 May 13, 1985. It is again not clear whether weekly compensation was paid to claimant during this period. However, assuming benefits were paid through this period, claimant would be required to file her petition within three years of May 25, 1985.. The petition was not filed until June 9, 1988. For the same reasons as stated previously, claimant's petition cannot be maintained. The statute of limitations had run prior to the filing of the petition. Claimant takes nothing from file number 791749. The final issue to address deals with Rule 80(a) of the Iowa Rules of Civil Procedure. Rule 80 provides in relevant portion: a. Pleadings need not be verified unless special statutes so require and, where a pleading is verified, it is not necessary that subsequent pleadings be verified unless special statutes so require. Counsel's signature to every motion, pleading,.or other paper shall be deemed a certificate that: Counsel has read the motion, pleading, or other paper; that to the best of counsel's knowledge, information, and belief, formed after reasonable inquiry, it is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law; and that it is not interposed for any improper purpose, such as to harass or cause an unnecessary delay or needless increase in the cost of litigation. If a motion, pleading, or other paper is not signed, it shall be stricken unless it is signed promptly after the omission is called to the attention of the pleader or movant. If a motion, pleading, or other paper is signed in violation of this rule, the court, upon motion or upon its own initiative, shall impose upon the person who signed it, a represented party, or both, an appropriate sanction, which may include an order to pay the other party or parties the amount of the reasonable expenses incurred because of the filing of the motion, pleading,.or other paper, including a reasonable attorney fee. The signature of a party who is not represented by counsel shall impose a similar obligation on such party. At the close of the evidence, defendants' counsel moved for sanctions and for attorneys' fees under Rule 80(a). The bases for the motion were that: 1) claimant's attorney had filed file number 877065 as a workers' compensation case alleging a work related injury to the leg, but claimant, during the hearing, testified she never believed her leg injury was work related; and 2) at the time of the hearing, claimant had dismissed TERWILLIGER V. SNAP-ON TOOLS CORPORATION Page 14 without prejudice file number 877065 thus causing defendants' undue discovery, delay, expenses, and attorneys' fees. Claimant's attorney orally resisted. Subsequent to the hearing claimant filed a cross-motion for sanctions and a motion to reconsider. In the motion to reconsider, claimant's counsel wrote: ... [M]oves the deputy to reconsider, set aside, or modify her oral decision, [announced at the end of the September 5, 1989 hearing in related cases #777628, #791749, and #862946] to permit the above-captioned defendants to make an oral motion for Rule 80(a) sanctions in this case, [#877065], and to then and there submit it, thereby giving claimant only the opportunity to argue against the motion in a posthearing brief in the other three cases, which brief already had been limited to four pages. Rule 80(a) of the Iowa Rules of Civil Procedure is applicable to contested case proceedings before the industrial commissioner. See Rule 343-4.35 of the Iowa Administrative Code (1987). The Iowa Supreme Court has addressed Rule 80(a) in a number of recent decisions, including Darrah v. Des Moines General Hospital, 436 N.W.2d 53 (Iowa 1989). In Darrah at 53-54, the Court wrote: Rule 80(a) mandates that all motions and pleadings must, to the best of counsel's knowledge and belief after reasonable inquiry, be well grounded in fact and either warranted by existing law or by a good faith argument for the modification of existing law. Rule 80(a) has also been addressed by two deputy industrial commissioners. See: Lennie v. 3 M Company, File No. 858608, Arbitration Decision June 8, 1989, and Olson v. Wilson Foods Corporation, File No. 782006, 793867, 858635, Ruling on Application for Assessment of Costs August 4, 1989. In Lennie, supra, the deputy industrial commissioner wrote: This matter has been litigated by the parties resulting in a hearing taking considerable time of this agency and the attorneys. Two jurisdictional questions have been raised for the first time by the undersigned deputy which jurisdictional deficiencies,.should have been known by a reasonable scrutiny of the facts and the records which should have resulted in no action having been filed in the first instance. This agency has a considerable number of cases on file that have merit for which the agency and its TERWILLIGER V. SNAP-ON TOOLS CORPORATION Page 15 deputy industrial commissioners are making a concerted effort to heat and rule thereon. It is cases such as these that take the deputies' and the agency's time causing delay in a hearing for those cases having merit. Rule 80 was to serve a purpose in preventing such filings. It appears the message is not yet clear to the practicing bar that Rule 80 was adopted to discourage ungrounded or spurious filings, undue expenses, harassment, unnecessary delay or needless increase in costs of litigation. It puts an obligation on counsel to look into the facts on behalf of their clients and make a reasonable determination. the undersigned finds that had the claimant's attorney complied with Rule 80, this action should not have been filed, and having been filed should not have reached the hearing and decision-making stage. The court costs will be assessed against the claimant in this case, but the claimant's attorney should individually and personally pay one-half but not less than $100 of the claimant's costs, whichever is greater, and shall hold the claimant free from personal responsibility or obligation as to those costs. If the claimant has already paid the same, claimant's attorney shall reimburse the claimant accordingly. In the case at hand, the dismissal without prejudice arose as a result of counsel's inattention to the facts surrounding the alleged leg injury. Counsel is required to make a reasonable inquiry into the facts. The original petition was filed on June 9, 1988. Initially, it would not be unreasonable for counsel to base claimant's leg injury on work related causes. However after discovery commenced, claimant's counsel should have realized there was no causal connection between the alleged leg condition and a work related injury. Claimant's counsel, at that point, should have dismissed file number 877065. Sanctions in this case, however, will not be assessed against claimant or her attorney. Likewise, sanctions will not be assessed against defendants' counsel. The sanctions are denied here because defendants' counsel did not engage in undue discovery or additional expense. Three other petitions were filed contemporaneously with file number 877065. Defendants had to engage in the same forms of discovery whether file number 877065 was dismissed prior to the hearing or at the time of the hearing. Defendants were not required to hire additional experts because of claimant's counsel's failure to dismiss earlier in the.proceedings. Nor was defendants' counsel required to exert additional time in trial preparation. Consequently, sanctions under Rule 80(a) are not appropriate in file number 877065. TERWILLIGER V. SNAP-ON TOOLS CORPORATION Page 16 As a final note, the undersigned does wish to advise claimant's counsel that his post-hearing brief was totally disregarded. Claimant's counsel was requested to prepare a four page brief. The attorney chose to ignore the request. Instead, he selected to prepare a brief of four pages. The pages were totally unreadable and in a form devoid of even paragraphs. Additionally, claimant's counsel referenced the four page brief to another attached brief of 164 pages. Finally, claimant's counsel attempted to "back-door" an additional brief on the issue of Rule 80(a) by burying the brief in his motion to reconsider. The actions of claimant's counsel display a total disregard and utter disrespect for the undersigned and the duties assigned to her. FINDINGS OF FACT AND CONCLUSIONS OF LAW WHEREFORE, based on the evidence presented and the principles of law previously stated, the following findings of fact and conclusions of law are made: FINDING 1. In file number 862946 claimant sustained bilateral carpal tunnel syndrome to her right and left hands as a result of a cumulative work injury which occurred on August 24, 1987. CONCLUSION A. With respect to file number 862946, claimant's bilateral carpal tunnel syndrome is causally related to claimant's injury of August 24, 1987. FINDING 2. Claimant was able to return to work with medical restrictions. FINDING 3. Subsequent to her return to work, claimant's medical restrictions have been reduced. FINDING 4. At the time of the hearing, claimant was working in the metal box assembly room. CONCLUSION B. Claimant has met her burden of proving she has a four percent permanent partial disability as stated in section 85.34(2)(s). FINDING 5. Claimant was off work from August 24, 1987 to February 22, 1988 and from June 23, 1988 to July 6, 1988. CONCLUSION C. Claimant is entitled to healing period benefits for 28 weeks at the rate of one hundred sixty-seven and 54/100 dollars ($167.54). FINDING 6. File number 877065 was dismissed without prejudice by claimant's counsel at the time of hearing. TERWILLIGER V. SNAP-ON TOOLS CORPORATION Page 17 FINDING 7. Petitions for file numbers 777628 and 791749 were filed on June 9, 1988. CONCLUSION D. File numbers 777628 and 791749 were not timely filed under section 85.26. ORDER THEREFORE, defendants are to pay unto claimant for file number 862946 twenty (20) weeks of permanent partial disability benefits at the rate of one hundred sixty-seven and 54/100 dollars ($167.54) per week as a result of the injury on August 24, 1987. Defendants are to also pay twenty-eight.(28) weeks of healing period benefits at the rate of one hundred sixty-seven and 54/100 dollars ($167.54) per week. Payments that have accrued shall be paid in a.lump sum together with statutory interest thereon pursuant to Iowa Code section 85.30. Defendants are to be given credit for all benefits previously paid to this claimant. Claimant takes nothing from files numbered 877065, 777628 and 791749. Costs of this action are assessed against the defendants pursuant to Division of Industrial Services Rule 343-4.33. Defendants shall file a claim activity report upon payment of this award. Signed and filed this 31st day of October, 1989. MICHELLE A. McGOVERN DEPUTY INDUSTRIAL COMMISSIONER Copes To; Mr. Mark S. Soldat Mr. Paul C. Thune Attorney at Law Attorney at Law 714 E State St 218 6th Ave., Suite 300 Algona IA 50511 PO Box 9130 Des Moines IA 50306 5-1803.1; 2908 Filed Oct. 31,1989 MICHELLE A.McGOVERN BEFORE THE IOWA INDUSTRIAL COMMISSIONER PATRICIA TERWILLIGER, Claimant, vs. File Nos. 877065, 862946, 791749 & 777628 SNAP-ON TOOLS CORPORATION, Employer, A R B I T R A T I O N and D E C I S I O N ROYAL INSURNCE COMPANY, Insurance Carrier, Defendants. 5-1803.1 Claimant awarded 20 weeks of permanent partial disability benefits under section 85.34(2)(s). The parties stipulated there was a single injury date. Both hands were injured. 2908 Rule 80(a) motions were filed. Sanctions were inapplicable given the facts presented to the deputy industrial commmissioner. 1107; 1108; 1402.30; 1803.1; 1804; 2207; 2700 Filed February 21, 1991 DAVID RASEY before the iowa industrial commissioner ____________________________________________________________ : KAREN HAMILTON, : : File Nos. 854465 Claimant, : 877068 : vs. : A R B I T R A T I O N : COMBINED INS. OF AMERICA, : D E C I S I O N : Employer, : Self-Insured, : Defendant. : ____________________________________________________________ 1107; 1108; 1402.30; 1803.1; 1804; 2207; 2700 Claimant suffered myofascial back syndrome in fall while selling insurance. Claimant suffered a second fall found causally linked to a medication prescribed for the first injury and to trigger point in buttock residual to first fall. The second fall resulted from simultaneous dizziness and leg giving way. Second fall resulted in massive damage to face and myofascial damage to cervical spine. Facial damage was not compensated per the schedule, but since second injury was a sequela to the first, all impairments (including psychological damage) resulting from both injuries, were considered together in determining industrial disability. Claimant was found permanent total. Page 1 before the iowa industrial commissioner ____________________________________________________________ : MARIAN STROUPE, : : Claimant, : : vs. : : File No. 877073 DAVIS SPORTSWEAR, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : AETNA CASUALTY & SURETY, : : Insurance Carrier, : Defendants. : ___________________________________________________________ statement of the case This is a proceeding in arbitration brought by Marion Stroupe as a result of a stroke which occurred on January 21, 1987. Defendants denied compensability for the injury, paid no weekly benefits and no medical expenses. The case was heard and fully submitted at Davenport, Iowa, on January 30, 1991. The record in the proceeding consists of joint exhibits A through QQ and testimony from claimant. issues The issues for determination are as follows: 1. Whether claimant sustained an injury on January 21, 1987, arising out of and in the course of employment with employer. 2. Claimant's entitlement to temporary total disability or healing period benefits. 3. The nature and extent of claimant's entitlement to permanent partial disability benefits. 4. The commencement date for permanent partial disability. 5. Whether claimant gave timely notice pursuant to Iowa Code section 85.23; and 6. Whether defendants are allowed credit under Iowa Code section 85.38(2) for payment of medical benefits under a nonoccupational group plan. findings of fact Page 2 Having considered all the evidence received the following findings of fact are made: Marion Stroupe testified that in January 1987 she worked for defendant, Davis Sportswear, as a sewing machine operator. Claimant's responsibilities were to act as the lead person on a production line which assembled clothing. Claimant testified that she made work for the rest of the people on the production line. In other words, she was the person who set the pace for the rest of the production workers. The workers were paid based upon the volume of work performed as opposed to the number of hours worked. However, claimant was given a minimum base pay of $5 per hour during the month of January 1987. Claimant testified that in January 1987, the amount of work which she was expected to perform had been increasing. Claimant stated that her production line was busier than it had ever been before. Claimant stated that the pressure to work harder and produce more product was increasing during that period of time. Claimant also testified that during January 1987 her line experienced mechanical problems. Claimant testified that she was constantly fighting the machine that she was working on due to its poor condition. Reportedly no mechanic was available to assist in repairing the machine. Claimant and her supervisor would generally do the maintenance on the machine that she worked on. Claimant testified that while the machine was inoperable, her production line would be shut down. The constant break downs of the machine increased claimant's stress in the month of January 1987. On January 21, 1987, claimant suffered a stroke. Claimant first experienced stroke-like symptoms in the early morning before going to work. While getting ready for work she felt a little strange and as she was leaving the house, she noticed difficulty with locking the door. Claimant also dropped her lunch from her left hand on three occasions. Claimant then drove to work. Upon arrival at work she experienced difficulty in getting the car key out of the ignition switch. Her coworkers at work reportedly noticed that she was not right. Claimant rested and attempted to take a couple of aspirin. While at work she again experienced difficulty with using her hands (exhibit N, page 1). Claimant testified that her left hand would not work and her head was pounding. Claimant then walked outside and noticed that her leg wasn't working the way it should. Jerry Davis, the owner of Davis Sportswear, then summoned an ambulance which transported claimant to Mercy Hospital. Claimant did return to work for a brief period of time beginning September 17, 1987, through April 4, 1988. On her return to work she was still fighting the mechanical problems with her machine and again experienced a feeling of being hassled. Claimant terminated her employment with employer upon the suggestion of her treating physician. At the time of hearing, claimant was not working and Page 3 was living on social security disability benefits. John F. Collins, M.D., treated claimant in January 1987. He testified, by deposition, on January 30, 1990 (ex. B). Dr. Collins was of the opinion that claimant suffered a stroke on January 21, 1987. He stated that the main cause of the stroke was that an embolus traveled from her heart to vessels in the brain causing damage as a result (ex. B, p. 8). Dr. Collins stated that the embolus is a developmental problem. It was his feeling that claimant has rheumatic heart condition and as a result developed clots in her heart. In some instances, clots become dislodged or loose and they get in the circulation and eventually go to the brain (ex. B, p. 8). Dr. Collins went on to state that stress can affect a person's blood pressure (ex. B, p. 9). He also stated that stress would probably have effected claimant's blood pressure (ex. B, pp. 9 & 10). It should be noted that defendants made numerous objections to claimant's questioning of Dr. Collins on pages 9, 10, 11 & 12 of exhibit B. It is found that defendants' objections are without merit and are overruled. Dr. Collins went on to state that increased stress can produce the elevation of blood pressure and changes in the cardiac rate which may have something to do with a clot leaving the heart and going into circulation (ex. B, p. 11). Dr. Collins could find no other reason more likely than that for the release of the clot (ex. B, p. 12). Dr. Collins also testified, under cross-examination, that the history provided by claimant was consistent with a conclusion that the emboli came loose while she was at rest or sleeping (ex. B, p. 21). He stated that the history is consistent with physical changes in her body occurring well before she came to work for Davis Sportswear on January 21, 1987 (ex. B, p. 21). Dr. Collins also stated that no history was provided by claimant which indicated that she was having a stressful situation at work in January 1987 (ex. B, p. 22). Dr. Collins was also asked to give his opinion within a reasonable degree of medical certainty whether acute stress actually would cause the clot to leave claimant's heart at the time it did and travel to her brain. Dr. Collins answered in the negative (ex. B, p. 24). Peter S. Jerome, M.D., reviewed claimant's medical records and pertinent depositions with respect to the case at hand (ex. D, p. 1). Dr. Jerome came to the conclusion that stress as a cause or major contributor of claimant's stroke was extremely unlikely (ex. D, p. 2). It should be noted that Dr. Jerome has impeccable credentials (ex. E). The first issue to be decided concerns whether claimant sustained an injury arising out of and in the course of employment with employer on January 21, 1987. The injury has been described as a stroke. In order for claimant to meet her burden of proof, she must establish that the work she performed for employer was the cause of her stroke. It is found that claimant has failed to meet her burden Page 4 by a preponderance of the evidence that the stroke was caused by her work at Davis Sportswear. The evidence is clear that claimant suffered from a preexisting developmental condition which made her susceptible to having blood clots form in her heart (ex. B, p. 8). Dr. Collins opined that there was no way to determine if acute stress actually caused the clot to be released from claimant's heart and travel to her brain thereby causing a stroke (ex. B, p. 24). Dr. Jerome was also of the opinion that stress was a highly unlikely cause for the stroke of January 21, 1987 (ex. D, p. 3). Claimant has failed to bring forth sufficient medical evidence demonstrating that the stroke was caused by her work for employer. Claimant also has the burden of proving that the injury occurred in the course of employment. This phrase refers to the time, place and circumstances of the injury. The evidence presented reveals that claimant's stroke symptoms first appeared while she was at home as opposed to work. Claimant first experienced difficulty with hand coordination prior to going to work. For that reason it is also found that claimant has failed to sustain her burden in proving by a preponderance of the evidence that the stroke of January 21, 1987, arose out of and in the course of employment with employer. Since resolution of the first issue is dispositive of all other issues, further findings of fact are unnecessary. conclusions of law Claimant has the burden of proving by a preponderance of the evidence that she received an injury on January 21, 1987, which arose out of and in the course of her employment. McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967). 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). The injury must both arise out of and be in the course of the employment. Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 402, 68 N.W.2d 63 (1955) and cases cited at pp. 405-406 of the Iowa Report. See also Sister Mary Benedict v. St. Mary's Corp., 255 Iowa 847, 124 N.W.2d 548 (l963) and Hansen v. State of Iowa, 249 Iowa 1147, 91 N.W.2d 555 (1958). The words "out of" refer to the cause or source of the injury. Crowe, 246 Iowa 402, 68 N.W.2d 63 (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, 246 Iowa 402, 68 N.W.2d 63 (1955). Having considered all the evidence presented, it is found that claimant has failed to prove by a preponderance of the evidence that she sustained an injury arising out of Page 5 and in the course of employment with employer on January 21, 1987. order IT IS THEREFORE, ORDERED: That claimant's petition is dismissed. That claimant take nothing from this proceeding. It is further ordered that costs of this action are assessed against claimant pursuant to rule 343 IAC 4.33. Signed and filed this ____ day of March, 1991. ______________________________ MARLON D. MORMANN DEPUTY INDUSTRIAL COMMISSIONER Copies to: Mr. James Hoffman Attorney at Law Middle Road PO Box 1087 Keokuk, Iowa 52632-1087 Mr. Craig Levien Attorney at Law 600 Union Arcade Bldg. 111 E 3rd St. Davenport, Iowa 52801-1596 5-1100, 5-1108 Filed March 13, 1991 MARLON D. MORMANN before the iowa industrial commissioner ____________________________________________________________ : MARIAN STROUPE, : : Claimant, : : vs. : : File No. 877073 DAVIS SPORTSWEAR, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : AETNA CASUALTY & SURETY, : : Insurance Carrier, : Defendants. : ___________________________________________________________ 5-1100, 5-1108 Claimant alleged that her stroke was caused by stress at work. Medical evidence failed to prove a link between stroke and work activities. Medical history revealed that stroke symptoms occurred prior to coming to work on the day in question. Claimant failed to prove an injury that arose out of and in the course of employment.