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                     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 
 

 
            
 
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                 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
 
            
 

 
            
 
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                 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
 
            
 
            
 
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            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. 
 
            
 

 
            
 
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                 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)
 

 
            
 
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                 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 
 

 
            
 
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            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.
 
            
 
     
 
            
 
            
 
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            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.
 
            
 
     
 
            
 
            
 
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            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 
 

 
            
 
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            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 
 

 
            
 
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            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.