BEFORE THE IOWA INDUSTRIAL COMMISIONER
 
            ____________________________________________________________
 
                                          :
 
            PATRICIA GLACKIN,             :
 
                                          :      File No. 887710
 
                 Claimant,                :
 
                                          :        A P P E A L
 
            vs.                           :
 
                                          :      D E C I S I O N
 
            WILSON FOODS,                 :
 
                                          :
 
                 Employer,                :
 
                 Self-Insured,            :
 
                 Defendant.               :
 
            ___________________________________________________________
 
            
 
                 The record, including the transcript of the hearing 
 
            before the deputy and all exhibits admitted into the record, 
 
            has been reviewed de novo on appeal.  The decision of the 
 
            deputy filed December 15, 1992 is affirmed and is adopted as 
 
            the final agency action in this case, with the following 
 
            additional analysis:
 
            
 
                 Claimant's approved settlement of the April 18, 1988 
 
            injury constituted an arbitration determination.  Any 
 
            further action by claimant for benefits stemming from that 
 
            injury are necessarily in the nature of review-reopening.  A 
 
            pre-trial agreement between the parties that the case is 
 
            still in arbitration cannot bind this agency to treating the 
 
            case as something it is not.  The statute, not the agreement 
 
            of the parties, controls.
 
            
 
                 A settlement contemplates all known conditions in 
 
            existence at the time of the settlement, whether they are 
 
            enumerated or not.  Our law does not contemplate partial 
 
            settlements.  A settlement is not a physical document, but 
 
            an agreed determination of all manifested effects of a work 
 
            injury at a given point in time.  Spence v. Griffin Wheel 
 
            Company, Ruling on Rehearing, June 19, 1990.
 
            
 
                 In the instant case, claimant accepted a settlement for 
 
            her April 18, 1988 injury that compensated her for a body as 
 
            a whole injury.  Claimant now claims that, in spite of the 
 
            body as a whole nature of the settlement, it was actually 
 
            designed to compensate claimant's carpal tunnel syndrome 
 
            only, and did not contemplate claimant's back and shoulder 
 
            conditions.  Yet the record undeniably shows that the back 
 
            and shoulder conditions were known to claimant at the time 
 
            of the settlement.
 
            
 
                 Claimant was not denied due process.  Claimant chose a 
 
            settlement strategy that determined her disability from the 
 
            April 18, 1988 injury.  The settlement compensated claimant 
 
            for all effects of the April 18, 1988 injury known to her at 
 
            that time, whether enumerated in the settlement documents or 
 
            not.  Since claimant was aware of her shoulder and back 
 
            condition when she settled the case, claimant cannot obtain 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            further benefits for that injury unless she has shown a 
 
            change of conditions occurring since the settlement that was 
 
            not contemplated by the settlement.  The record does not 
 
            show evidence of a change of conditions since the 
 
            settlement.
 
            
 
                 Claimant has failed to carry her burden of proof.
 
            
 
                 Claimant shall pay the costs of the appeal, including 
 
            the preparation of the hearing transcript.
 
            
 
                 Signed and filed this ____ day of July, 1993.
 
            
 
            
 
            
 
            
 
                                          
 
                                     ________________________________
 
                                                   BYRON K. ORTON
 
                                              INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Steve Hamilton
 
            Attorney at Law
 
            606 Ontario Street
 
            P O Box 188
 
            Storm Lake, Iowa  50588
 
            
 
            Mr. David L. Sayre
 
            Attorney at Law
 
            223 Pine Street
 
            P O Box 535
 
            Cherokee, Iowa  51012
 
            
 
 
            
 
         
 
 
 
 
 
                                                 3301
 
                                                 Filed July 29, 1993
 
                                                 BYRON K. ORTON
 
            
 
            
 
                   BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            PATRICIA GLACKIN,             :
 
                                          :      File No. 887710
 
                 Claimant,                :
 
                                          :        A P P E A L
 
            vs.                           :
 
                                          :      D E C I S I O N
 
            WILSON FOODS,                 :
 
                                          :
 
                 Employer,                :
 
                 Self-Insured,            :
 
                 Defendant.               :
 
            ___________________________________________________________
 
            
 
            3301
 
            Claimant had carpal tunnel syndrome with claimed symptoms in 
 
            the back and shoulders.  Claimant entered into an approved 
 
            settlement with the employer that recited a body as a whole 
 
            injury.  Claimant then brought an action for benefits, 
 
            saying the settlement contemplated the carpal tunnel only.  
 
            The deputy held that the proceeding was in review-reopening 
 
            and not arbitration, and that claimant had not shown a 
 
            change of condition.
 
            
 
            Held on appeal that a settlement for an injury contemplates 
 
            all aspects of the injury known to the claimant at the time, 
 
            citing Spence v. Griffin Wheel Company, Ruling on Rehearing, 
 
            June 19, 1990.  Claimant clearly knew of the shoulder and 
 
            back aspects of her injury when she entered into the 
 
            settlement, and in fact the settlement stated a body as a 
 
            whole injury.  Claimant's action was in review-reopening.  
 
            The parties cannot change the nature of a proceeding by 
 
            agreement.  Deputy affirmed. 
 
            
 
 
         
 
         Page   1
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
                     before the iowa industrial commissioner
 
         ____________________________________________________________
 
                                       :
 
         PATRICIA GLACKIN,             :
 
                                       :         File No. 887710
 
              Claimant,                :
 
                                       :          R E V I E W -
 
         vs.                           :
 
                                       :        R E O P E N I N G
 
         WILSON FOODS,                 :
 
                                       :         D E C I S I O N
 
              Employer,                :
 
              Self-Insured,            :
 
              Defendant.               :
 
         ___________________________________________________________
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              This proceeding was captioned an arbitration upon the 
 
         petition of claimant, Patricia Glackin, against her self-insured 
 
         employer, Wilson Foods Corporation, defendant.  However, it is 
 
         noted for the record that claimant and defendant entered into a 
 
         "WORKERS COMPENSATION SETTLEMENT AGREEMENT" which was approved on 
 
         December 21, 1988 by Deputy Industrial Commissioner Larry P. 
 
         Walshire.  The date of the work injury was listed as April 18, 
 
         1988.  This matter was heard on September 2, 1992 at the Buena 
 
         Vista County Courthouse in Storm Lake, Iowa.  The record consists 
 
         of the testimony of claimant.  The record also consists of joint 
 
         exhibits 1-10 and defendant's exhibit A.  A number of the copies 
 
         submitted are nearly impossible to read.  Counsel are advised to 
 
         proofread their copies before offering them as exhibits.  If the 
 
         attorneys are unable to read the exhibits, the deputy will also 
 
         be unable to read the same exhibits.
 
         
 
                                      issues
 
         
 
              The issues to be determined are:  1) whether this is an 
 
         arbitration proceeding or a review-reopening decision; 2) whether 
 
         claimant sustained an injury which arose out of and in the course 
 
         of her employment; 3) whether there is a causal relationship 
 
         between the alleged injury and any temporary or permanent 
 
         disability; 4) whether claimant is entitled to any permanent 
 
         partial disability benefits; and 5) whether defendant is liable 
 
         for the expenses of an independent medical examination.
 
         
 
                                 findings of fact
 
         
 
              The deputy, having heard the testimony and considered all 
 
         the evidence, finds:
 
         
 
              Claimant is 32 years old.  She graduated from high school in 
 
         1978.  She has had no formal education beyond the high school 
 
         level.  Her work experiences after graduation have been in the 
 
         unskilled labor market.  She has worked as a waitress, a nurse's 
 
         aide, and a seamstress in a manufacturing plant.
 

 
         
 
         Page   2
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
              Claimant commenced her employment with defendant on December 
 
         10, 1984.  She was hired to convert boned hams, for which she was 
 
         paid $6.50 per hour.  Claimant worked nights and her activities 
 
         included gripping a 15 to 30 pound ham with her right hand or 
 
         with a hook, and using a steel knife in her left hand to debone 
 
         the ham.  Then claimant grabbed the bone, threw it away and 
 
         placed the deboned ham on a table.  The process was repeated 
 
         every 45 seconds.  She performed at this work station for 6 to 7 
 
         months.
 
         
 
              The next division to which claimant was assigned was the 
 
         Wiener room.  She held a variety of jobs during the course of the 
 
         subsequent three years.  Her duties included peeling, packaging, 
 
         lifting and palletizing hot dogs.  She was also assigned the job 
 
         of "flicking" defective hot dogs from the conveyors.  The activi
 
         ties all involved repetitive motions.
 
         
 
              In mid 1988, claimant bid into the pump room because she 
 
         believed she would have more job security there.  Again, she was 
 
         assigned various jobs which required repetitive motions.  The 
 
         various tasks included:  peeling meat, placing meat into pans, 
 
         springing meat, hanging hams on trees, lifting rods, placing hams 
 
         onto the line and slamming lids.
 
         
 
              Claimant testified that she began to experience difficulties 
 
         with her hands, the base of her neck and her right shoulder.  She 
 
         specifically testified that all of her complaints commenced on 
 
         April 18, 1988, the work injury date alleged in the petition.  
 
         However, she completed accident reports on May 2, 1988 and on 
 
         August 4, 1989, but she only listed hand pain on the May 2, 1988 
 
         report.  She did not mention right shoulder pain until the August 
 
         4, 1989 report.
 
         
 
              The company physician, Keith O. Garner, M.D., initially 
 
         examined claimant.  He referred her to Thomas P. Ferlic, M.D., an 
 
         orthopedic surgeon.  Dr. Ferlic opined in his note of June 15, 
 
         1988:
 
         
 
              IMPRESSION AT THIS TIME:  Bilat. Carpal Tunnel Syndrome
 
         
 
              DISCUSSION:
 
         It appears as if the patient does have a carpal tunnel 
 
         syndrome bilaterally.  She was sent for EMGs, which 
 
         proved to be normal.  Perhaps an injection of corticos
 
         teroids as both a therapeutic and diagnostic test is in 
 
         order.  This was done, with 1 cc of Celestone.  The 
 
         patient will call me back in a week and tell me how she 
 
         is doing.  If this relieves her pain, I would feel that 
 
         clinically, even though her EMG is negative, a carpal 
 
         tunnel release is indicated.
 
         
 
         (Exhibit 4, page 1)
 
         
 
              Eventually, Dr. Ferlic performed separate carpal tunnel 
 
         releases on the right hand and then on the left hand.  The 
 
         surgeries occurred in July and September of 1988.  Claimant 
 

 
         
 
         Page   3
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         remained off work for a period of time, but she was able to 
 
         return to work as of October 19, 1988.
 
         
 
              As mentioned previously, claimant executed the following 
 
         agreement on December 1, 1988:
 
         
 
                  WORKERS COMPENSATION SETTLEMENT AGREEMENT
 
         
 
              WILSON FOODS CORPORATION and the undersigned EMPLOYEE 
 
              of WILSON FOODS CORPORATION acknowledges that the 
 
              EMPLOYEE has been paid in full for all healing period 
 
              payments.  That all past medical bills have been paid, 
 
              all additional medical expenses connected with this 
 
              injury will be borne by the employer, and that the 
 
              EMPLOYEE'S permanent partial disability arising out of 
 
              an injury at the PLANT on April 18, 1988, amounts to 6% 
 
              of the Body/Whole, which translates to 30 weeks at 
 
              $237.21 per week, or a total of $7,116.30 which will 
 
              be paid as follows:  $1660.47 commencing on 12-10-88, 
 
              and $237.21 per week until fully paid.
 
              That this disability rating is supported be [sic] 
 
         the medical opinion of Dr. Thomas Ferlic   Omaha, NE, a 
 
         copy of which is attached to this agreement.
 
         
 
         (Defendant's Ex. A)
 
         
 
              Claimant continued to work for defendant.  From September of 
 
         1989 until February 2, 1991, claimant worked in the pump room.  
 
         She performed the previously described duties.  After her return 
 
         to work, claimant sought medical treatment from several other 
 
         medical practitioners, including Lyal G. Leibrock, M.D., at the 
 
         University of Nebraska, Stephen J. Veit, M.D., and she obtained 
 
         an independent medical exam from A. J. Wolbrink, M.D.
 
         
 
              Dr. Leibrock opined that:
 
         
 
              I wanted to clarify my letter of October 20th regarding 
 
              your and my common patient, Pat Glacken's [sic] diagno
 
              sis and my thoughts regarding her return to active 
 
              employment.  It was my opinion that Patricia Glacken 
 
              [sic] had a mild myofascial injury that involved the 
 
              area of the right shoulder.  I said at that time that I 
 
              thought the only available ongoing therapy would be 
 
              physical rehabilitation and nonsteroidal antiinflamma
 
              tory [sic] drugs, and then I told her she should return 
 
              to some sedentary work for a two week period of time 
 
              until she got herself back into shape, and then I 
 
              thought she could go back to work full-time after that 
 
              in an unrestricted capacity.  I say this in the light 
 
              of her having a normal MRI scan of the cervical spine, 
 
              a normal physical exam and normal electromyographic 
 
              studies evaluating the nerves that go from the neck 
 
              into the upper extremity, both at the radicals and the 
 
              plexuses and the peripheral nerves.  I hope this clari
 
              fies my opinion as to Ms. Glacken's [sic] work status.
 
         
 
         (Ex. 9, p. 4)
 

 
         
 
         Page   4
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
              Dr. Veit opined that:
 
         
 
              I think an evaluation by the Pain Clinic at Abbott 
 
              Northwestern Hospital in Minneapolis regarding her 
 
              neck, shoulder girdle and upper extremity would be 
 
              advisable.  They may be able to outline a program that 
 
              will allow her to continue to work and feel comfort
 
              able.  I would recommend this over the Mayo Clinic.
 
         
 
              As to whether or not this would all be job related, I 
 
              think the most likely explanation is that most of it is 
 
              job related, but that is something we'll never be able 
 
              to determine for sure.
 
         
 
         (Ex. 7)
 
         
 
              Dr. Garner, as of August 6, 1990, wrote in his office notes:
 
         
 
              Patient came in concerned with the fact that her neck 
 
              still bothers.  Had a long talk with her and explained 
 
              that we've done every test known to modern science.  
 
              She's seen several doctors and is still having pain 
 
              which apparently she's going to have to put up with.  I 
 
              would recommend that she seek employment elsewhere.  
 
              Will certainly try to help her facilitate this should 
 
              she so desire.
 
         
 
         (Ex. 5, p. 9)
 
         
 
              The last day claimant worked was February 2, 1991.  She 
 
         terminated her employment with defendant.
 
         
 
                       
 
         
 
         
 
         Page   5
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         conclusions of law
 
         
 
              The initial issue under discussion is whether this is an 
 
         arbitration proceeding or whether this is a review-reopening 
 
         proceeding.  There is no question that claimant executed 
 
         defendant's exhibit A.  In the settlement agreement claimant 
 
         acknowledged that:
 
         
 
              the EMPLOYEE'S permanent partial disability arising out 
 
              of an injury at the PLANT on April 18, 1988, amounts to 
 
              6% of the Body/Whole, which translates to 30 weeks at 
 
              $237.21 per week, or a total of $7,116.30 which will 
 
              be paid as follows:  $1660.47 commencing on 12-10-88, 
 
              and $237.21 per week until fully paid.
 
         
 
              The agreement was approved by a deputy industrial commis
 
         sioner on December 21, 1988.
 
         
 
              Section 85.26(3) of the Iowa Code provides that:
 
         
 
              Notwithstanding chapter 17A, the filing with the 
 
              industrial commissioner of the original notice or 
 
              petition for an original proceeding or an original 
 
              notice or petition to reopen an award or agreement of 
 
              settlement provided by section 86.13, for benefits 
 
              under this chapter or chapter 85A or 85B is the only 
 
              act constituting "commencement" for purposes of this 
 
              section.
 
         
 
              The present petition was filed on March 22, 1991.  It was 
 
         captioned as an arbitration proceeding.  However, the petition is 
 
         really a review-reopening proceeding.  There had been a settle
 
         ment agreement which was previously executed by the parties 
 
         relative to an injury date of April 18, 1988.  The agreement 
 
         provided for an injury to the body as a whole.  Claimant argues 
 
         that the December 1, 1988 settlement only covered a carpal tunnel 
 
         injury, and that a claim for a back or shoulder injury was not 
 
         included.  The undersigned deputy is not persuaded by claimant's 
 
         argument.  There was no paragraph in the agreement which specifi
 
         cally exempted certain injuries sustained on April 18, 1988, the 
 
         agreement was approved by a designee of the industrial commis
 
         sioner and there was no evidence offered of any fraud bringing the 
 
              review-reopening has the burden of establishing by a 
 
              preponderance of the evidence that the increased 
 
              incapacity on which he bases his claim is a result of 
 
              the original injury.  The basis of a decision in a 
 
              review-reopening is the employee's condition subsequent 
 
              to the time being reviewed.  If the agency previously 
 
              entered a decision on a claim, the grounds for that 
 
              decision become the basis for determining whether a 
 
              change of condition has occurred.  The change may be 
 
              from temporary total disability to permanent partial 
 
              disability.  It may also be a change in degree of 
 
              disability.  A redetermination of the condition of the 
 
              claimant as it was adjudicated by a prior award is 
 
              inappropriate.  A difference in expert opinion regard
 
              ing degree of impairment stemming from the original 
 
              injury is not sufficient justification for a different 
 
              determination by the commissioner, nor is a deteriora
 
              tion in condition which was contemplated.  Nor is a 
 
              higher rating given by a physician whose first examina
 
              tion was performed after an award when the doctor made 
 
              findings consistent with those of a prior evaluator.  
 
              However, if there is "substantial evidence of a worsen
 
              ing of condition not contemplated at the time of the 
 
              first award," a review-reopening is justified.
 
         
 
              As stated above, the operative phrase here is "change of 
 
         condition."  The change of condition is from December 21, 1988, 
 
         the date the settlement agreement was approved by a designee of 
 
         the industrial commissioner.  As mentioned previously, claimant 
 
         testified at the hearing that her hands, neck and right shoulder 
 
         bothered her as early as April 18, 1988.  She also testified that 
 
         her pain depends upon her physical activity at home.  However, in 
 
         this case, there is no evidence of a worsening of condition not 
 
         contemplated at the time of the first award."  Bousfield v. 
 
         Sisters of Mercy, 249 Iowa 64, 86 N.W.2d 109 (1957).  There is no 
 
         physician's opinion which supports a worsening of condition which 
 
         was not contemplated at the time the agreement was approved.  
 
         Even claimant's own doctor, writes:
 
         
 
              Ms. Glackin has made a good recovery from carpal tunnel 
 
              surgery so in my opinion she has no permanent impair
 
     
 
         
 
         
 
         Page   7
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
              ment from this which we can demonstrate.  Persistent 
 
              difficulties with the cervical brachial disorder are 
 
              such that in my opinion she has a permanent impairment 
 
              of four percent of the whole person due to this cervi
 
              cal spine limitations.  She has no impairment of the 
 
              lumbar spine and at present no impairment related to 
 
              the ulnar neuropathy problem.  In my opinion the cervi
 
              cal brachial disorder is a result of repetitive work 
 
              and employment.
 
         
 
              I would not have any significant treatment suggestions.  
 
              Periodic physical therapy modalities may be of some 
 
              benefit as well as the amount of pain medications.
 
         
 
         (Ex. 6, p. 2)
 
         
 
              Therefore, it is the determination of the undersigned that 
 
         claimant has not met the requisite burden of proof.  Claimant 
 
         takes no additional weekly benefits from these proceedings.
 
         
 
              The next issue before this deputy is therefore whether 
 
         defendants are liable for the reasonable and necessary costs of 
 
         the independent medical exam which was conducted by Dr. Wolbrink.
 
         
 
              Section 85.39 permits an employee to be reimbursed for 
 
         subsequent examination by a physician of the employee's choice 
 
         where an employer-retained physician has previously evaluated 
 
         "permanent disability" and the employee believes that the initial 
 
         evaluation is too low.  The section also permits reimbursement 
 
         for reasonably necessary transportation expenses incurred and for 
 
         any wage loss occasioned by the employee's attending the subse
 
         quent examination.
 
         
 
              Defendants are responsible only for reasonable fees associ
 
         ated with claimant's independent medical examination.  Claimant 
 
         has the burden of proving the reasonableness of the expenses 
 
         incurred for the examination.  See Schintgen v. Economy Fire & 
 
         Casualty Co., File No. 855298 (App. April 26, 1991).  Defendant's 
 
         liability for claimant's injury must be established before defen
 
         
 
         
 
         Page   8
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         dant is obligated to reimburse claimant for independent medical 
 
         examination.  McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 
 
         1980).
 
         
 
              A bill for $110.00 has been submitted by Dr. Wolbrink.  The 
 
         bill is more than reasonable.  Defendant is liable for the same.
 
         
 
                                      order
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              Defendant is liable for the cost of an independent medical 
 
         exam by Dr. Wolbrink.
 
         
 
              The costs of the action are assessed to defendant pursuant 
 
         to rule 343 IAC 4.33.
 
         
 
         
 
         
 
              Signed and filed this ____ day of December, 1992.
 
         
 
         
 
         
 
         
 
         
 
                                       ______________________________               
 
         MICHELLE A. McGOVERN
 
                                       DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Steve Hamilton
 
         Attorney at Law
 
         606 Ontario Street
 
         P O Box 188
 
         Storm Lake, Iowa  50588
 
         
 
         Mr. David L. Sayre
 
         Attorney at Law
 
         223 Pine Street
 
         P O Box 535
 
         Cherokee, Iowa  51012
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                          5-1404; 1804
 
                                          Filed December 15, 1992
 
                                          MICHELLE A. McGOVERN
 
            
 
                           before the iowa industrial 
 
                                   commissioner
 
            ____________________________________________________________
 
                                          :
 
            PATRICIA GLACKIN,             :
 
                                          :         File No. 887710
 
                 Claimant,                :
 
                                          :          R E V I E W -
 
            vs.                           :
 
                                          :        R E O P E N I N G
 
            WILSON FOODS,                 :
 
                                          :         D E C I S I O N
 
                 Employer,                :
 
                 Self-Insured,            :
 
                 Defendant.               :
 
            ___________________________________________________________
 
            
 
            
 
            
 
            5-1404; 1804
 
            
 
            Claimant was unable to prove by a preponderance of the 
 
            evidence that she had sustained a change of condition not 
 
            contemplated at the time the settlement agreement had been 
 
            approved by a deputy industrial commissioner.
 
            
 
 
            
 
            
 
            
 
            
 
            
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                      
 
            LUCINDA WETER, 
 
                      
 
                 Claimant, 
 
                      
 
            vs.       
 
                                                  File No. 887762
 
            THOMBERT, INC.,     
 
                                              A R B I T R A T I O N
 
                 Employer, 
 
                                                 D E C I S I O N
 
            and       
 
                      
 
            TRAVELERS INSURANCE COMPANY,  
 
                      
 
                 Insurance Carrier,  
 
                 Defendants.    
 
            ___________________________________________________________
 
                             STATEMENT OF THE CASE
 
            
 
            This is a proceeding in arbitration brought by Lucinda 
 
            Weter, claimant, against Thombert, Inc., employer, Travelers 
 
            Insurance Company, insurance carrier, to recover benefits 
 
            under the Iowa Workers' Compensation Act for an alleged 
 
            injury occurring on or about April 18, 1988.  This matter 
 
            was to come on for hearing July 14, 1992, in Des Moines, 
 
            Iowa, at 8:30 a.m.
 
            
 
            The undersigned was present.  Neither claimant nor 
 
            defendants appeared.
 
            
 
            Claimant failed to present any evidence in support of the 
 
            allegations found in his original notice and petition.  
 
            Neither an agreement for settlement nor a request for 
 
            continuance is on file with the industrial commissioner.
 
            Claimant has the burden of proving by a preponderance of the 
 
            evidence that she received an injury which arose out of and 
 
            in the course of her employment.  McDowell v. Town of 
 
            Clarksville, 241 N.W.2d 904 (Iowa 1976).
 
            
 
            WHEREFORE, IT IS FOUND:
 
            
 
            1.  Neither claimant nor defendants appeared at the schedule 
 
            time and place of hearing.
 
            2.  The undersigned deputy industrial commissioner was 
 
            present and prepared to proceed to hearing.
 
            3.  Neither an agreement for settlement nor a request for 
 
            continuance is on file with the industrial commissioner.
 
            4.  Claimant failed to present any evidence to support 
 
            allegations of a compensable work injury.
 
 
 
            THEREFORE, IT IS CONCLUDED:
 
 
 
            Claimant has failed to meet her burden of proof that she 
 
            sustained an injury which arose out of and in the course of 
 
            her employment.
 
 
 
           THEREFORE, it is ordered:
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            That claimant take nothing from this proceeding.
 
            That costs are taxed to the claimant.  Division of 
 
            Industrial Services Rule 343-4.33.
 
            
 
                 Signed and filed this ____ day of July, 1992.
 
            
 
            
 
            
 
                                          ______________________________
 
                                          BERNARD J. O'MALLEY
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            Copies to:
 
            
 
            Mr Steven C Jayne
 
            Attorney at Law
 
            5835 Grand Ave  Ste 201
 
            Des Moines IA 50312
 
            
 
            Mr William D Scherle
 
            Attorney at Law
 
            8th Flr Fleming Bldg
 
            218 Sixth Ave
 
            Des Moines IA 50309
 
            
 
            
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                  5-1400; 5-1402
 
                                                  Filed July 15, 1992
 
                                                  Bernard J. O'Malley
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                      
 
            LUCINDA WETER, 
 
                      
 
                 Claimant, 
 
                      
 
            vs.       
 
                                                 File No. 887762
 
            THOMBERT, INC.,     
 
                                             A R B I T R A T I O N
 
                 Employer, 
 
                                               D E C I S I O N
 
            and       
 
                      
 
            TRAVELERS INSURANCE COMPANY,  
 
                      
 
                 Insurance Carrier,  
 
                 Defendants.    
 
            ___________________________________________________________
 
            5-1400; 5-1402
 
            Neither claimant nor counsel appeared at the hearing.  No 
 
            evidence in support of allegations of a compensable work 
 
            injury was presented and claimant therefore failed to meet 
 
            her burden of proof.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            STEVE JOHNSON,                :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 887799
 
            RAGAN COMPANY,                :
 
                                          :    A R B I T R A T I O N
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            FIREMAN'S FUND INSURANCE      :
 
            COMPANIES,                    :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                 On January 12, 1989 (claimant) filed a petition for 
 
            arbitration as a result of an injury to claimant's right arm 
 
            and shoulder occurring on September 12, 1988.  The Ragan 
 
            Company (Ragan) was identified as employer and Fireman's 
 
            Fund Insurance Companies (Fireman's Fund) was identified as 
 
            the workers' compensation insurer for Ragan (collectively 
 
            defendants).  On April 3, 1991 these matters came on for 
 
            hearing in Davenport Iowa.  The parties appeared as follows:  
 
            the claimant in person and by his counsel James Hood of 
 
            Davenport Iowa and Ragan and Fireman's Fund by their counsel 
 
            Greg Egbers of Davenport, Iowa.  
 
            
 
                 The record in this proceeding consisted of the 
 
            following:
 
            1.  The live testimony of the claimant. 
 
            2.  Claimant's exhibits 1 and 2.
 
            3.  Defendants' exhibit A-L.
 
            
 
                 At the close of all evidence, the case was deemed fully 
 
            submitted.
 
            
 
                               preliminary matters
 
            
 
                 At the time of the hearing, claimant objected to the 
 
            introduction of certain exhibits because these records had 
 
            been obtained through a records deposition conducted in 
 
            Kansas City, Missouri and neither the claimant or the 
 
            defendants had notice of the deposition.  In accordance with 
 
            Missouri procedure, an action was commenced in Missouri for 
 
            the purpose of compelling claimant's local union to produce 
 
            records pertaining to claimant's employment.  Once the 
 
            records were obtained, both parties had an opportunity to 
 
            review the records and decide which ones would be made part 
 
            of the evidence in this case.  
 
            
 
                 The Iowa Rules of Civil Procedure have been adopted by 
 

 
            
 
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            the Industrial Commissioner for use in proceedings before 
 
            the agency.  See, rule 343 IAC 4.35.  If the Rules of Civil 
 
            Procedure are inconsistent with the rules of the Division of 
 
            Industrial Services, the administrative rules will take 
 
            precedence.  See, rule 343 IAC 4.35.  Included therein are 
 
            Rules 121-157 for discovery.
 
            
 
                 Discovery rules are liberally construed to effectuate 
 
            the disclosure of relevant information to the parties.  
 
            Hutchinson v. Smith Laboratories, Inc., 392 N.W.2d 139, 
 
            140-141 (Iowa 1986);  Ashmead, 336 N.W.2d at 199.  The rules 
 
            of discovery are not restricted by any notion of a 
 
            semi-property right in information one secures to use in a 
 
            pending lawsuit.  Hickman v. Taylor,  329 U.S. 495, 67 S. 
 
            Ct. 385 (1947).  Mutual knowledge of all relevant facts 
 
            gathered by both parties is essential to proper litigation.  
 
            
 
                 Failure to comply with the rules governing discovery 
 
            can result in the imposition of sanctions for the offending 
 
            party where the failure results in prejudice or surprise to 
 
            the other party involved in the dispute.  Miller v. Bonar, 
 
            337 N.W.2d 523, 527 (Iowa 1983) (Failure to comply with 
 
            requirements of Rule 125 results in sanctions which include 
 
            exclusion of evidence); Wernimont v. Interantional Harvester 
 
            Corp., 309 N.W.2d 137, 143-44 (Iowa Ct. App. 1981) (Failure 
 
            to timely respond to interrogatories regarding experts 
 
            resulted in exclusion of testimony at time of trial); Allied 
 
            Gas & chemical co. Inc. v. Federated Mutual Insurance Co. 
 
            332 N.W.2d 877, 880 (Iowa 1983) (Party not permitted to 
 
            withdraw admission where result would be surprise and 
 
            prejudice to the party offering admission).
 
            
 
                 In this instance, there has been no showing of surprise 
 
            or prejudice.  These were records which belonged to claimant 
 
            in any event and clearly information that the defendants 
 
            were entitled to review.  The records deposition was 
 
            conducted on August 30, 1990, well within the discovery 
 
            deadlines and well before the hearing on this matter.  Since 
 
            there is no prejudice to either party, claimant's objection 
 
            to Exhibit K and Exhibit L is overruled.
 
            
 
                                   stipulations
 
            
 
                 The parties stipulated to the following matters at the 
 
            time of the hearing:
 
            a.  An employer-employee relationship existed between 
 
            claimant and employer at the time of the alleged injury.
 
            b.  The claimant sustained an injury on September 7, 1988, 
 
            which arose out of and in the course of employment.
 
            c.  At the time of the injury claimant was married and had 
 
            two children.  He is entitled to four exemptions.
 
            d.  The fees charged for medical services are fair and 
 
            reasonable.
 
            e.  The parties agree that if the provider of medical 
 
            services was called to testify the provider would testify 
 
            that the treatment was reasonable and necessary treatment of 
 
            the alleged work injury and defendants are not offering 
 
            contrary evidence.
 
            f.  The causal connection of the expenses to treatment for a 
 

 
            
 
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            medical condition upon which claimant is now basing his 
 
            claim is admitted but that the causal connection of this 
 
            condition to a work injury remains an issue to be decided in 
 
            these proceedings.
 
            g.  Defendants make no claim for employee nonoccupational 
 
            group health plan benefits paid prior to hearing.
 
            h.  That there are no bifurcated claims.
 
            
 
            Issues
 
 
 
                 The issues for resolution are as follows:
 
            
 
                 1.  Whether a causal relationship exists between 
 
            claimant's claimed injuries and the claimed disability and 
 
            the nature and extent of any entitlement to benefits, if 
 
            any.
 
            
 
                 2.  Whether claimant is entitled to medical benefits, 
 
            including a determination of causal connection to the work 
 
            injury and the causal connection of this condition to a work 
 
            injury.
 
 
 
                                 FINDINGS OF FACT
 
            
 
                 After considering all of the evidence and the arguments 
 
            of counsel, the undersigned makes the following findings of 
 
            fact and conclusions of law.
 
            
 
                 1.  At the time of the hearing, claimant was almost 34 
 
            years old.  At the time of the injury, claimant was 31.  
 
            Claimant is a high school graduate.  He graduated from 
 
            Pleasanton High School in Kansas.  Thereafter, claimant 
 
            entered into a boilermaker apprenticeship between 1977 and 
 
            1981.  Claimant works out of Local 83 of the International 
 
            Brotherhood of Boilermakers, Ironworkers, Ship Builders, 
 
            Blacksmiths, Forgers and Helpers in Kansas City, Missouri.  
 
            Claimant has worked in no other trade or occupation  since 
 
            graduation from high school.  
 
            
 
                 2.  Currently, claimant is earning approximately $20.00 
 
            per hour as a boilermaker.  Claimant's work is extremely 
 
            physical.  Additionally, to get to claimant's work areas, 
 
            claimant must be able to climb and work in precarious 
 
            positions in order to perform the duties of his job.  
 
            Claimant's job also requires him to lift weights which range 
 
            from 5 ounces to 300 pounds.  Additionally, claimant's job 
 
            requires him to use his shoulders and neck muscles in his 
 
            job while he is lifting, pulling and climbing.
 
            
 
                 3.  Claimant's prior health history for work-related 
 
            injuries include a fall from a scaffolding in 1981.  
 
            Claimant was off work for four or five days after that 
 
            accident.  Claimant's other on-the-job injuries which 
 
            included burns, muscle strain and another fairly significant 
 
            injury to his neck where he bumped his head and jammed his 
 
            neck.  Claimant was off work after that injury for nine 
 
            days.  After the injury in 1988, claimant suffered an eye 
 
            injury in December of 1990.  He was off work for three or 
 
            four days.  Additionally, he has injured his finger and his 
 
            nose.  Prior to his injury on September 12, 1988, claimant 
 
            had seen a chiropractor for neck pain and had also been 
 
            treated for low back pain.  Claimant's sore neck had 
 

 
            
 
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            developed because he wore welding hood at work and he would 
 
            use his neck to flip the hood down.  
 
            
 
                 4.  In September of 1988, Ragan approached the union 
 
            hall in Kansas City for boilermakers.  Ragan negotiated a 
 
            reduced rate of pay of $16.28 per hour in exchange for 
 
            extended work hours.  Claimant was promised work that would 
 
            last seven days per week, 12 hours per day.  The job was 
 
            scheduled to last from three to five weeks.  Claimant was 
 
            hired to perform boilermaker duties.
 
            
 
                 5.  On September 12, 1988, claimant was working on a 
 
            platform to bolt a head on a heat exchanger.  A coworker 
 
            moved the platform away from where claimant was working and 
 
            as claimant was reaching for the last bolt, he over extended 
 
            himself and slipped off the platform and fell four feet.  
 
            Claimant's hand hit the floor first and then his elbow hit 
 
            the floor.  Claimant came to rest on his buttocks and elbow.  
 
            Claimant felt pain in his arm and shoulder.  Claimant worked 
 
            for the rest of the day.
 
            
 
                 6.  That evening, claimant went to the emergency room 
 
            and was examined by X. R. Colah, M.D.  Dr. Colah noted that 
 
            claimant was left hand dominant and that claimant was 
 
            complaining of pain around his right shoulder and in his 
 
            right arm.  Dr. Colah noted tenderness over the 
 
            acromioclavicular joint.  However, after x-rays were taken 
 
            with weights, he noted that claimant's joint was within 
 
            normal limits.  Additionally, Dr. Colah noted that there was 
 
            no painful arc or weakness on abduction.  Dr. Colah 
 
            diagnosed claimant's injury as a first degree 
 
            acromioclavicular strain and he treated it with analgesics.  
 
            Claimant was released for light duty work.  
 
            
 
                 7.  Claimant returned to work the next day and was 
 
            placed on fire watch at the same rate of pay he was earning 
 
            as a boilermaker.  Claimant worked until September 23, 1988 
 
            when there was a reduction in force and Ragan laid off 25 
 
            percent of the workers who had been hired to complete this 
 
            job (Ex. K, p. 1).  Claimant was laid off in this reduction 
 
            in force.
 
            
 
                 8.  During claimant's course of light duty work, he 
 
            returned to see Dr. Colah on September 19, 1988 and 
 
            September 26, 1988.  During both those examinations, Dr. 
 
            Colah indicated that claimant's condition had improved.  He 
 
            noted that there was no tenderness over the 
 
            acromioclavicular joint when he visited on September 19.  
 
            Additionally, he noted there was no painful arc or weakness 
 
            in abduction.  Claimant was continued on Naprosyn.  On 
 
            September 26, Dr. Colah saw claimant for the last time.  
 
            During that examination, Dr. Colah noted that there was no 
 
            limitations in claimant's range of motion nor was there any 
 
            specific point tenderness in the shoulder.  Dr. Colah 
 
            advised that claimant remain on light duty.  When claimant 
 
            told Dr. Colah that he was returning to Kansas because of 
 
            the lay off, Dr. Colah recommended that he see an 
 
            orthopedist there for follow-up treatment of the shoulder 
 
            sprain.
 
            
 

 
            
 
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                 9.  While employed Ragan, claimant worked for 162 
 
            hours.  Of these hours, 91 were regular hours at the rate of 
 
            pay of $16.28 per hour.  47 hours were at premium pay at the 
 
            rate of $24.42 per hour.  24 hours were at double hours at 
 
            the rate of $32.56 per hour.  Claimant's gross wage for the 
 
            period of work totaled $3,410.66.  When claimant's wage is 
 
            calculated without the premium and double pay, claimant's 
 
            gross wage is $2,637.36 (Ex. J).
 
            
 
                 10. Claimant saw his family physician on September 27, 
 
            1988.  At that time, Bill Justus, M.D., referred claimant to 
 
            Peter C. Boylan, M.D.  In Dr. Boylan's office, claimant was 
 
            seen by David A. Tillema, M.D.  Upon examination, Dr. 
 
            Tillema found that claimant had full range of motion of 
 
            abduction and external rotation.  Additionally, he had full 
 
            extension.  Dr. Tillema could only find a slight amount of 
 
            loss in motion when claimant put his arm behind his back.  
 
            Dr. Tillema did find that claimant had atrophy of the 
 
            inferior supraspinatus area.  Dr. Tillema recommended that 
 
            claimant engage in a home exercise program.  However, Dr. 
 
            Tillema also felt that claimant was able to carry on his 
 
            regular work.
 
            
 
                 11. Claimant returned to his family physician on 
 
            October 7,1988, seeking a second opinion regarding his 
 
            shoulder.  At that point, Dr. Justus referred claimant to 
 
            the University of Kansas Medical Center.
 
            
 
                 12. On October 12, 1988, claimant was thoroughly 
 
            evaluated at the University of Kansas Medical Center by 
 
            George A. Richardson, M.D., and George Varghese, M.D.  Dr. 
 
            Varghese is a professor in the department of rehabilitation 
 
            medicine.  Dr. Richardson is associated with the Kansas 
 
            University Surgery Association.  Dr. Richardson referred 
 
            claimant for a series of studies for his shoulders.(1)  At the 
 
            conclusion of this visit, claimant was released to return to 
 
            work at light duty.  At that point, claimant was 
 
            preliminarily diagnosed as suffering from impingement 
 
            syndrome in the right shoulder by Dr. Richardson. 
 
            
 
                 13. After the tests had been completed, Dr. Varghese 
 
            noted that claimant had a normal range of motion in all 
 
            planes of movement in the cervical spine and he showed no 
 
            tenderness over the cervical paraspinal muscles.  Claimant 
 
            had tender trigger points in the right trapezius, 
 
            supraspinatus, and rhomboideus muscle groups.  Additionally, 
 
            claimant had some referred pain to the right triceps.  
 
            However claimant's range of motion in the right shoulder was 
 
            normal as was claimant's strength in the right shoulder on 
 
            (1).  Claimant's diagnostic tests included x-rays, an 
 
            arthrogram, and CT scan of the right shoulder.  The x-rays 
 
            revealed that there were no fractures or bony destructive 
 
            lesions.  No other abnormal soft tissue calcifications were 
 
            identified.  The arthrogram demonstrated that there was no 
 
            evidence of intra-articular bodies.  Claimant has a bone 
 
            island located within the posterior aspect of the scapula 
 
            but this was not a significant finding.  There was no 
 
            evidence of a rotator cuff tear, the greater trochanter 
 
            muscle moved freely under the acromion without evidence of 
 
            impingement.  The CT scan showed no abnormality or other 
 
            rotator cuff injury.  There were no neurological symptoms in 
 
            the upper extremity other than localized pain.  
 
            
 
            
 
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            abduction.  Strength in all other muscle groups in all four 
 
            extremities was within normal muscle bulk and tone.  
 
            Claimant's sensation was intact throughout to light touch, 
 
            pinprick and proprioception.  Dr. Varghese concluded that 
 
            claimant had suffered chronic right shoulder muscle strain.  
 
            Dr. Varghese recommended that claimant receive physical 
 
            therapy for three weeks, three times a week and continue 
 
            with Ibuprofen.
 
            
 
                 14. After Dr. Richardson had an opportunity to review 
 
            claimant's test results he recommended that claimant limit 
 
            his lifting to less than 20 pounds and that he continue his 
 
            range of motion and strengthening exercises.  Claimant was 
 
            seen in follow-up on November 23, 1988.  He indicated that 
 
            he had some stiffness in his shoulder but was not 
 
            asymptomatic.  Dr. Richardson could find no impingement 
 
            syndrome.  Dr. Richardson did not repeat the restriction at 
 
            the time of his last examination of claimant.
 
            
 
                 15. Claimant completed his physical therapy in January 
 
            of 1989.  On January 9, 1989, Dr. Varghese released claimant 
 
            for work.  Claimant was discharged from therapy on January 
 
            13, 1989.  The discharge report indicates that claimant had 
 
            full range of motion in all directions, and showed overall 
 
            improvement with increasing strength and decreasing pain.  
 
            Claimant was given a home program for range of motion 
 
            strengthening exercises and was discharged.  Dr. Varghese 
 
            last saw claimant in December of 1988, and did not rate 
 
            claimant for a possible permanent functional impairment.
 
            
 
                 16. Dr. Richardson examined claimant next on July 12, 
 
            1989.  On examination, Dr. Richardson found that claimant 
 
            had full passive and active range of motion of the right 
 
            shoulder.  He could not find any muscle tenderness on 
 
            palpation.  He did note that there is some tenderness along 
 
            the inferior aspect of the acromion.  Dr. Richardson found 
 
            that claimant's strength in all muscle groups was 5/5 and 
 
            that x-rays were reviewed and were normal.  Claimant had a 
 
            negative drop test to the right arm and 90 degrees of 
 
            abduction.  Claimant was injected with 2cc of Lidocaine and 
 
            Celestone and was scheduled for return visit in August of 
 
            1989.  Dr. Richardson did not restrict claimant as a result 
 
            of this visit.
 
            
 
                 17. Claimant's work history from his local (Exhibit K) 
 
            shows that claimant was regularly employed from January 18, 
 
            1989 to the date of the hearing.  Claimant was laid off when 
 
            jobs came to an end.  Claimant worked during January, 
 
            February, March, April, July and then from September 25 
 
            through December 1, 1989.  Claimant worked from January 2, 
 
            1990 until February 19, 1990 with two layoff periods during 
 
            that time.  After February 19, 1990, claimant worked in May 
 
            and June 1990, and was laid off during those time frames as 
 
            well.  Claimant began working in Hawaii in 1991.  Generally, 
 
            work is unavailable between June and August and January and 
 
            February.  During those time periods, claimant collects 
 
            unemployment benefits.  
 
            
 
                 18. Claimant moved to Hawaii in January of 1991.  He is 
 

 
            
 
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            working as a welder.  He has worked continuously from 
 
            January 19, 1991 to the date of the hearing.  Claimant 
 
            believes that this job will be completed in November of 
 
            1991.  Claimant generally works six days per week and gets 
 
            time and half over overtime and double time on Sundays and 
 
            holidays.  During 1988, claimant earned $25,325 in gross 
 
            income.  Claimant's wage income in 1989 was $33,736.  
 
            Claimant expects to earn approximately $35,000 in 1991.  
 
            Claimant has suffered no dimininution in earnings since his 
 
            injury in 1988.
 
            
 
                 19. In September of 1989, claimant was evaluated by 
 
            Dennison R. Hamilton, M.D.  Dr. Hamilton concluded that 
 
            claimant was suffering from a chronic cervical sprain and 
 
            chronic right shoulder sprain with chronic capsulitis and 
 
            bursitis.  Dr. Hamilton concluded that claimant's injury to 
 
            his right shoulder and cervical spine were caused by the 
 
            injury to his right shoulder in September of 1988 and is a 
 
            permanent injury.  Dr. Hamilton found that claimant has a 
 
            fourteen percent permanent functional impairment to the body 
 
            as a whole as a result of his loss of range of motion to the 
 
            shoulder and to the cervical spine.  Dr. Hamilton also gave 
 
            claimant a lifting restriction of 20 pounds and that he 
 
            should avoid repetitive bending, lifting, stooping, 
 
            squatting, reaching, pushing, pulling, lifting and carrying.  
 
            Dr. Hamilton also recommended that overhead work be avoid 
 
            altogether.  
 
            
 
                 20. Claimant has not adhered to any of these 
 
            restrictions and after this evaluation claimant worked 
 
            successfully from September 25, 1989 until December 1, 1989 
 
            for Babcock and Wilcox Construction in Montrose, Missouri on 
 
            a power plant located there.  Claimant then worked January 
 
            2, 1990 until the end of January for Babcock and Wilcox 
 
            Construction in Marshalltown, Iowa at a power plant for Iowa 
 
            Electric.  Claimant then worked at Natkin and Company at 
 
            power plant sites located in Kansas City, Iatan, and 
 
            Lacygen, Kansas and in Kansas City, Missouri.  At all of 
 
            these jobs, claimant worked as either an arc welder, a plate 
 
            welder, or a stainless steel welder.  
 
            
 
                 21. The bulk of claimant's employment as a boilermaker 
 
            has been as an arc welder.  For the jobs listed on Exhibit 
 
            K, ten of those jobs have been for an arc welder.  More 
 
            significantly, this report shows when claimant was 
 
            terminated and the reason for each termination during his 
 
            work history between December 7, 1987 and June 13, 1990.  
 
            There was only one date when claimant requested a layoff.  
 
            That was on July 26, 1988.
 
            
 
                 22. Claimant was next evaluated by J. R. Lee, M.D., in 
 
            Rock Island, Illinois.  Claimant was evaluated on October 
 
            30, 1990.  Prior to the examination, Dr. Lee reviewed 
 
            claimant's record which included x-ray studies, an 
 
            arthrogram study, deposition, and some records from earlier 
 
            treating physicians.  Dr. Lee found that claimant's right 
 
            shoulder had full motion in flexion, extension, internal and 
 
            external rotation, abduction and adduction.  Dr. Lee could 
 

 
            
 
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            find no muscle atrophy around the shoulder girdle.  Dr. Lee 
 
            could find no signs of long thoracic nerve paralysis.  He 
 
            felt nor heard any grinding sensation in the shoulder and 
 
            noted that the bicep muscle was not ruptured.  Dr. Lee found 
 
            that the tricep and bicep was normal and had no deformity.  
 
            He tried to dislocate the right shoulder which seemed to 
 
            produce some apprehension.  X-ray examination was made and 
 
            Dr. Lee could find no bony disorder.  Dr. Lee's conclusion 
 
            was that claimant was suffering from a strain and sprain in 
 
            the right shoulder with minimum residual pain.  He found no 
 
            measurable functional deficit on examination.  Dr. Lee 
 
            indicated that claimant's persistent pain and discomfort 
 
            could be from some trauma to the cuff and glenoid cartilage 
 
            which are invisible from all tests available at this time.
 
            
 
                 23. Presently, claimant believes that he is limited to 
 
            welding jobs on the ground or at low levels.  Claimant 
 
            continues to complain of pain in his shoulder.  Claimant 
 
            believes that his injury to his right shoulder has caused 
 
            him to leave jobs early though this information is not 
 
            reflected in any employment wage records from the union 
 
            hall.  Additionally, claimant has indicated that he feels 
 
            that his representation as a top hand has suffered from his 
 
            inability to work the long hours necessary for a 
 
            boilermaker.  However, there is no evidence in the record 
 
            that demonstrates that claimant has been unable to obtain 
 
            employment in the regular course of his work as a 
 
            boilermaker.
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                 1.  Whether a causal relationship exists between 
 
            claimant's claimed injuries and the claimed disability and 
 
            the nature and extent of any entitlement to benefits, if 
 
            any.
 
            
 
                 A.  Rate
 
            
 
                 Rate of compensation in workers' compensation matters 
 
            is based on a claimant's gross wages, marital status and 
 
            number of exemptions at the time of the injury.  Iowa Code 
 
            Sections 85.36, 85.61; Shelton v. Transcon Truck Lines, III 
 
            Report of the Iowa Industrial Commissioner 223, 226 
 
            (Rev-Reopen 1982).
 
            
 
                 Where claimant is paid on an hourly basis and did not 
 
            work the thirteen calendar weeks immediately preceding the 
 
            injury, Iowa Code Section 85.36(6) and (7) require a 
 
            comparison of the wages of similarly situated employees who 
 
            worked for the employer during the preceding thirteen weeks.  
 
            If there is no evidence of the wages for similarly situated 
 
            employees in the 13 weeks immediately preceding the injury 
 
            then under Barker v. City Wide Cartage, I Iowa Industrial 
 
            Commissioner Reports 12, 15,(App. 1980), claimant's wages 
 
            are divided by the number of full weeks worked.  Anderson v. 
 
            High Rise Construction Specialists,Inc., File No. 850996 
 
            Slip Op. (Iowa Ind. Comm'r App. July 31, 1990); Hardy v. 
 
            Abell-Howell Company, File No. 814126 (Iowa Ind. Commr. App. 
 
            December 21, 1990)(Claimant's gross earnings were calculated 
 
            by dividing his total earnings over the 9 representative 
 

 
            
 
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            weeks by 9).  In this calculation, premium pay and overtime 
 
            pay is excluded from the calculation.  Rule 343 IAC 8.2;  
 
            Kintzle v. Waterloo Industries, IV Iowa Industrial 
 
            Commissioner Report 203, 205 (1984).  Ryan v. United Parcel 
 
            Service, File No. 915458 Slip Op. (Iowa Ind. Comm'r App. 
 
            June, 1991). 
 
            
 
                 In this instance, claimant worked a total of 162 hours 
 
            before he was laid off.  Claimant's job lasted from 
 
            September 6, 1988 until September 23, 1988.  Some of the 
 
            work crew remained and worked, though there was no evidence 
 
            that other boilermakers worked the remaining two weeks.  
 
            Claimant worked for 2.4285 weeks.  Since claimant did not 
 
            work a full 13 weeks before he was injured and there was no 
 
            testimony regarding what a similarly situated boilermaker 
 
            would have earned for Ragan during preceding 13 week period, 
 
            the tenets of Barker and Anderson are applicable.  
 
            Claimant's gross earnings for the period total $2,637.36 
 
            (162 x $16.28).  Claimant's gross weekly wage equals 
 
            $1,086.00 ($2,637.36 / 2.4285).  Claimant's rate equals 
 
            $610.23.  See, Division of Industrial Services, Guide to 
 
            Iowa Workers' Compensation Claim Handling, p. 109 (July 1, 
 
            1988).
 
            
 
                 B.  Permanency
 
            
 
                 Claimant urges that he has suffered a permanent 
 
            impairment to his right shoulder and is thereby entitled to 
 
            industrial disability.  Defendants on the other hand urge 
 
            that claimant has suffered no temporary or permanent 
 
            disability that entitles him to benefits.  In the 
 
            alternative, defendants urge that if an injury is found the 
 
            injury is only to claimant's right arm and did not extend 
 
            into the body as a whole.  
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury of September 
 
            12, 1988, is causally related to the disability on which he 
 
            now bases his claim.  Bodish v. Fischer, Inc., 133 N.W.2d 
 
            867, 868 (Iowa 1965);  Lindahl v. L. O. Boggs, 18 N.W.2d 
 
            607,613-14 (Iowa 1945).  A possibility is insufficient; a 
 
            probability is necessary.  Burt v. John Deere Waterloo 
 
            Tractor Works, 73 N.W.2d 732, 738 (Iowa 1955).  The question 
 
            of causal connection is essentially within the domain of 
 
            expert testimony.  Bradshaw v. Iowa Methodist Hospital, 101 
 
            N.W.2d 167,171 (Iowa 1960). 
 
            
 
                 However, expert medical evidence must be considered 
 
            with all other evidence introduced bearing on the causal 
 
            connection.  Burt, 73 N.W.2d at 738.  The opinion of the 
 
            experts need not be couched in definite, positive or 
 
            unequivocal language.  Sondag v. Ferris Hardware, 220 N.W.2d 
 
            903, 907 (Iowa 1974).  Moreover, the expert opinion may be 
 
            accepted or rejected, in whole or in part, by the trier of 
 
            fact.  Sondag, 220 N.W.2d at 907.  Finally, the weight to be 
 
            given to such an opinion is for the finder of fact, and that 
 
            may be affected by the completeness of the premise given the 
 
            expert and other material circumstances.  Bodish, 133 N.W.2d 
 
            at 870; Musselman, 154 N.W.2d at 133.  The Supreme Court has 
 

 
            
 
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            also observed that greater deference is ordinarily accorded 
 
            expert testimony where the opinion necessarily rests on 
 
            medical expertise.  Sondag, 220 N.W.2d at 907.
 
            
 
                 In this instance, claimant has failed to adduce 
 
            sufficient evidence to support a finding that he has 
 
            suffered a permanent disability from his injury of September 
 
            12, 1988.  Only one doctor was able to find that claimant 
 
            suffered any functional impairment or imposed permanent 
 
            restrictions on claimant.  The other treating and evaluating 
 
            physicians could not find permanent impairment or were not 
 
            asked to make an assessment of permanency. Dr. Hamilton did 
 
            not perform the same extensive testing that Dr. Varghese 
 
            ordered and reviewed.  Since the treating physicians had 
 
            more opportunity to see claimant at a time shortly after the 
 
            injury, more weight is accorded their findings.  
 
             Claimant was released to return to work on January 9, 1989 
 
            without any restrictions.  Claimant's treating physicians at 
 
            the University of Kansas Medical Center could find no 
 
            organic cause for claimant's pain complaints when they did 
 
            an extensive evaluation after the injury.  Pain that is not 
 
            supported by clinical findings is not a substitute for 
 
            impairment.  Waller v. Chamberlain Manufacturing, II Iowa 
 
            Industrial Commissioner Report 419, 425 (1981); Fernandez v. 
 
            Good Samaritan Nursing Center, No. 856640, Slip op. at 15 
 
            (Iowa Ind. Comm'r Arb. February 27, 1991). 
 
            
 
                 Claimant worked from January 18, 1989, as work was 
 
            available and he was working as a welder at the time of the 
 
            hearing.  Claimant did not turn down any work because of the 
 
            injury to his right arm and shoulder.  Nor did claimant turn 
 
            down work because of pain in his cervical spine.  Claimant 
 
            worked in different parts of the United States on various 
 
            construction projects until he was laid off.    Claimant is 
 
            earning a higher hourly wage now than he did in 1988.  These 
 
            factors in combination with the medical evidence do not 
 
            support a conclusion that claimant suffered a permanent 
 
            disability.
 
            
 
                 C.  Temporary Total Disability
 
            
 
                 Claimant was unable to work while he was under the care 
 
            and treatment of University of Kansas Medical Center 
 
            physicians.  Claimant was off work from September 24, 1988 
 
            until January 9, 1989.  Claimant was released to return to 
 
            work on January 9, 1989 and was reemployed on January 18, 
 
            1989.  Claimant is therefore entitled to temporary total 
 
            disability benefits.  Pursuant to Iowa Code sections 85.32 
 
            and 85.33 (1991), temporary total disability of more than 14 
 
            days is payable in effect from the injury until the employee 
 
            has returned to work or is medically capable of returning to 
 
            substantially similar employment, whichever first occurs.  
 
            Claimant bears the burden of proving entitlement to 
 
            temporary total disability benefits.  Howard v. Whitehall 
 
            Transportation, File No. 779866 Slip Op. at 5 (Iowa Ind. 
 
            Comm'r May 14, 1991).
 
            
 
                 Claimant was on light duty at full pay until he was 
 
            laid off in September of 1988.  As soon as claimant returned 
 

 
            
 
            Page  11
 
            
 
            
 
            
 
            
 
            home he sought medical care as suggested by Dr. Colah.  
 
            Claimant was seen by his family physician, Dr. Tillema and 
 
            then evaluated at the University of Kansas Medical Center 
 
            within the space of three weeks.  Claimant's medical care 
 
            for the injury he suffered with Ragan was essentially 
 
            uninterrupted from the time claimant left Clinton.  
 
            Claimant's temporary disability period ended when he was 
 
            released to return to work on January 9, 1989.  Even though 
 
            claimant had been released for light duty in October, 
 
            claimant's employment records show that no substantially 
 
            similar work was available for claimant at the time he was 
 
            released for light duty.  Consequently, claimant's temporary 
 
            disability period did not end at that time.  McDonald v. 
 
            Wilson Foods Corp., 34 Biennial Report, Iowa Industrial 
 
            Commissioner 197, 199 (App. 1979).  Claimant is entitled to 
 
            compensation for the period between his last day of 
 
            employment, September 24, 1998 until his release to return 
 
            to work, January 9, 1989.
 
            
 
                 2.  Whether claimant is entitled to medical benefits, 
 
            including a determination of causal connection to the work 
 
            injury and the causal connection of this condition to a work 
 
            injury.
 
 
 
                 Claimant urges that the medical bills he incurred after 
 
            he returned to Kansas are compensable medical expenses and 
 
            should be paid by defendants.  Defendants contend that none 
 
            of the services rendered were causally connected to the work 
 
            injury and that the services were not authorized.
 
            
 
                 Section 85.27 provides that the employer is entitled to 
 
            direct the medical care of the claimant.  As part of this 
 
            privilege, the Code requires the employer to supply prompt 
 
            reasonable care.  Claimant has the burden of demonstrating 
 
            that the medical services obtained were causally related to 
 
            the injury in order to have the expenses reimbursed or paid.  
 
            Auxier v. Woodward State Hospital, 266 N.W.2d 139, 144 
 
            (1978).
 
            
 
                 In order for the employer to be held responsible for 
 
            claimant's medical expenses, claimant must show that the 
 
            treatment sought was either of an emergency nature or was 
 
            authorized.  Templeton v. Little Giant Crane & Shovel, 1 
 
            Iowa Industrial Commissioner Decisions No. 3, 702, 704 (App. 
 
            1985).  An employee may engage medical services if the 
 
            employer has expressly or impliedly conveyed to the employee 
 
            the impression that the employee has authorization to 
 
            proceed in this fashion.  2 Larson's Workmen's Compensation 
 
            Section 61.12(g) (1990).  If an authorized physician makes a 
 
            referral to another physician the necessary link of 
 
            authority has been forged and the employer becomes liable 
 
            for the expenses subsequently incurred.  Carnes v. Sheaffer 
 
            Eaton, No. 836644, Slip op. at 6 (Iowa Ind. Comm'r Arb. 
 
            February 7, 1991); Munden v. Iowa Steel & Wire, 33 Iowa 
 
            Industrial Commissioner Biennial Report 99, 100 (Arb. 1979).
 
            
 
                 If the treatment is unauthorized, a claimant may still 
 
            recover if the treatment improves the claimant's condition 
 
            and the treatment ultimately mitigates defendants' 
 
            liability.  Thomas v. Broadlawns Medical Center, File No. 
 

 
            
 
            Page  12
 
            
 
            
 
            
 
            
 
            81240, Slip op. at pp. 6-8 (Iowa Ind. Comm'r October 31, 
 
            1990);  Butcher v. Valley Sheet Metal, IV Iowa Industrial 
 
            Commissioner Report 49 (1983); Rittgers v. United Parcel 
 
            Service, III Iowa Industrial Commissioner Report 210 (1982).
 
            
 
                 In this instance there was a clear instruction by Dr. 
 
            Colah to claimant to find an orthopedic doctor in Kansas 
 
            City for follow-up treatment after he returned home.  
 
            Claimant in conformance with this advice contacted his 
 
            family physician who referred him to Dr. Tillema.  Claimant 
 
            returned to his family physician for a referral for a second 
 
            opinion.  Dr. Justus referred claimant on to University of 
 
            Kansas Medical Center for further evaluation and treatment.  
 
            Treatment was carried out at that facility.  While the 
 
            authorization may have wandered into the gray area for the 
 
            evaluation at the University of Kansas Medical Center, it is 
 
            clear that the treatment given to claimant at that facility 
 
            improved his condition to the point that he could return to 
 
            his duties as a boilermaker, thereby mitigating defendants' 
 
            liability in that regard.  The office visit to Dr. Justus 
 
            for the referral to an orthopedic physician is an expected 
 
            course of action for the claimant to take.  Because Dr. 
 
            Colah authorized claimant to continue with an orthopedic 
 
            doctor in Kansas City, and this resulted in contact with Dr. 
 
            Justus, Dr. Tillema and University of Kansas Medical Center 
 
            and its affiliated doctors and services, and because this 
 
            treatment ultimately allowed claimant to return to 
 
            unrestricted work, those bills are chargeable to defendants. 
 
            
 
                 The bills owed to the Clinical Radiology Foundation, 
 
            and Mercy Hospitals of Kansas are all bills associated with 
 
            claimant's therapy and outpatient testing and arthrogram.  
 
            Claimant underwent physical therapy at Mercy Hospital 
 
            ordered by Dr. Varghese.  Claimant underwent extensive 
 
            radiological studies on October 12, 1988 under the direction 
 
            of Dr. Richardson from the University of Kansas.  These 
 
            bills are chargeable to the defendants.
 
            
 
                 The bill owed to Mt. Carmel Medical Center is for 
 
            unknown services.  There are no medical records as of the 
 
            discharge date of January 27, 1989 that show that claimant 
 
            was being treated for the injury to his shoulder.  Since 
 
            claimant has presented insufficient evidence to show that 
 
            this bill is related to the injury suffered on September 12, 
 
            1988, defendants are not liable for this bill.
 
            
 
                 The last bill for consideration is owed to Dr. Hamilton 
 
            for claimant's evaluation on September 29, 1989.  Claimant 
 
            received no treatment from Dr. Hamilton, he was evaluated to 
 
            measure functional impairment.  Claimant was not referred to 
 
            Dr. Hamilton by any of his prior treating physicians.  
 
            Defendants did not authorize claimant to see Dr. Hamilton.  
 
            Claimant did not file an application with the Division for 
 
            an independent medical examination prior to seeing Dr. 
 
            Hamilton.  Defendants obtained their information regarding 
 
            claimant's functional impairment rating on October 30, 1990.  
 
            
 
                 Section 85.39 is the governing statute for independent 
 
            medical examinations.  It provides, in part:
 

 
            
 
            Page  13
 
            
 
            
 
            
 
            
 
            
 
                    If an evaluation of permanent disability has 
 
                 been made by a physician retained by the employer 
 
                 and the employee believes this evaluation to be 
 
                 too low, the employee shall, upon application to 
 
                 the commissioner and upon delivery of a copy of 
 
                 the application to the employer and its insurance 
 
                 carrier, be reimbursed by the employer the 
 
                 reasonable fee for a subsequent examination by a 
 
                 physician of the employee's own choice, and 
 
                 reasonably necessary transportation expenses 
 
                 incurred for the examination.  The physician 
 
                 chosen by the employee has the right to confer 
 
                 with and obtain from the employer-retained 
 
                 physician sufficient history of the injury to make 
 
                 a proper examination.
 
            
 
                 It is not necessary for claimant to obtain the prior 
 
            approval of defendants or that claimant file an application 
 
            with the industrial commissioner's office prior to seeing an 
 
            independent examiner.  Nor is it necessary for claimant to 
 
            apply for reimbursement for an independent medical 
 
            examination by a physician of claimant's own choice prior to 
 
            the examination or prior to hearing.  Pirozek v. Swift 
 
            Independent Packing and Second Injury Fund of Iowa, File 
 
            Nos.753643, 753642 and 724893, Slip op at 3 (Iowa Ind. 
 
            Comm'r App. February 18, 1987).  Where the employer is found 
 
            liable for the injury or admits liability, the only 
 
            condition precedent to the triggering of this provision is a 
 
            showing that a prior evaluation by the employer's physician 
 
            for the injury in issue has been made and the employer's 
 
            physician has reached a conclusion regarding a permanent 
 
            impairment.  Kilness v. Ebasco Services, Inc. 34 Biennial 
 
            Report of the Iowa Industrial Commissioner 161, 162 (1979) 
 
            (An employer's doctor who says some permanency exists is 
 
            enough to trigger the provision); Chapman v. Max Boyd Co., 
 
            III Iowa Industrial Commissioner Report 50, 53 (Arb. 1983) 
 
            (A rating of no impairment is a rating of impairment for 
 
            purposes of Section 85.39)
 
            
 
                 In this case, claimant was released without any rating 
 
            of permanency by University of Kansas physicians or by Dr. 
 
            Tillema.  Since claimant had no rating, this fact 
 
            constituted a rating under agency precedent and the 
 
            defendants are liable for Dr. Hamilton's bill.
 
            order
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 1.  Ragan and Fireman's Fund shall pay to claimant 
 
            temporary total disability benefits for the period of time 
 
            beginning on September 24, 1988 and ending on January 9, 
 
            1989 at the rate of six hundred ten and 23/100 dollars 
 
            ($610.23).  As these benefits have accrued, they shall be 
 
            paid in a lump sum together with statutory interest thereon 
 
            pursuant to Iowa Code section 85.30 (1991).
 
            
 
                 2.  Ragan and Fireman's Fund shall pay the following 
 
            medical expenses:
 
            
 

 
            
 
            Page  14
 
            
 
            
 
            
 
            
 
                 Kansas University Medical Center             
 
                 $638.00
 
            Kansas University Rehab. Center               
 
            116.00
 
            Clinical Radiology Foundation                 
 
            356.00
 
            Mercy Hospitals of Kansas                     
 
            432.00
 
            Dr. Justus                                     
 
            24.00
 
            Dr. Hamilton                                  
 
            295.00
 
            
 
                                          TOTAL:        
 
            $1,861.00
 
            
 
                 4.  The costs of this action shall be assessed to Ragan 
 
            and Fireman's Fund pursuant to rule 343 IAC 4.33.
 
            
 
                 5.  Ragan and Fireman's Fund shall file claim activity 
 
            reports as required by rule 343 IAC 3.1.
 
            Signed and filed this ____ day of August, 1991.
 
            
 
            
 
            
 
            
 
                      ________________________________
 
                      ELIZABETH A. NELSON
 
                      DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr James M Hood
 
            Attorney at Law
 
            302 Union Arcade Building
 
            Davenport Iowa 52801
 
            
 
            Mr Greg A Egbers
 
            Attorney at Law
 
            600 Union Arcade Building
 
            111 East 3rd Street
 
            Davenport Iowa 52801
 
            
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                      5-1801 - 5-3000
 
                      Filed August 16, 1991
 
                      ELIZABETH A. NELSON
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            STEVE JOHNSON,                :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 887799
 
            RAGAN COMPANY,                :
 
                                          :    A R B I T R A T I O N
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            FIREMAN'S FUND INSURANCE      :
 
            COMPANIES,                    :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            5-1801
 
            Claimant a boilermaker who fell four feet from a platform at 
 
            work did not suffer a permanent disability as a result of 
 
            this injury.  Claimant was awarded temporary total 
 
            disability benefits.  Claimant was off work for 
 
            approximately 15 weeks.  After this time period claimant 
 
            returned to full time duties at the same rate of pay and 
 
            worked as jobs were available all over the country.  At the 
 
            time of hearing claimant was working in Hawaii as an arc 
 
            welder, the type of trade he had practiced prior to his 
 
            injury.  
 
            
 
            5-3000
 
            Claimant was working on a 3 to 5 week job at the time he was 
 
            injured.  Claimant had been on duty for approximately two 
 
            weeks at the time of his injury.  There was no evidence 
 
            introduced regarding comparable wage scales for boilermakers 
 
            previously employed by employer, so using Barker v. City 
 
            Wide Cartage, I Iowa Industrial Commissioner Reports 12, 
 
            15,(App. 1980) and Anderson v. High Rise Construction 
 
            Specialists,Inc., File No. 850996 Slip Op. (Iowa Ind. Comm'r 
 
            App. July 31, 1990), claimant's gross earnings were 
 
            calculated by dividing his total earnings at a straight rate 
 
            over the two weeks that he worked to find his gross weekly 
 
            earnings and his rate.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            MARILYN CHARLET,              :
 
                                          :
 
                 Claimant,                :        File No. 887899
 
                                          :
 
            vs.                           :     A R B I T R A T I O N
 
                                          :
 
            OSCAR MAYER FOODS CORP.,      :        D E C I S I O N
 
                                          :
 
                 Employer,                :
 
                 Self Insured,            :
 
                 Defendant.               :
 
            ___________________________________________________________
 
            
 
                 This is a proceeding in arbitration brought by Marilyn 
 
            Charlet, claimant, against her employer, Oscar Mayer Foods 
 
            Corp., to recover benefits under the Iowa Workers' 
 
            Compensation Act as a result of an injury which manifested 
 
            itself on August 10, 1988.
 
            
 
                 This matter came on for a hearing before the 
 
            undersigned deputy industrial commissioner at the office of 
 
            the Iowa Industrial Commissioner in Des Moines, Iowa on 
 
            October 4, 1990.  Briefs were to be filed simultaneously on 
 
            October 12, 1990, and the case was considered fully 
 
            submitted at that time.
 
            
 
                 The record in this case consists of the testimony of 
 
            claimant; joint exhibits 1 through 8; claimant's exhibits 1 
 
            through 5; and, defendant's exhibits A and B.  No objections 
 
            were lodged as to claimant's or defendant's separate 
 
            exhibits.
 
            
 
                                      issues
 
            
 
                 The following are the issues to be resolved in this 
 
            case:
 
            
 
                 1.  Whether claimant's injury arose out of and in the 
 
            course of her employment;
 
            
 
                 2.  Whether there exists a causal relationship between 
 
            the injury and the resulting disability;
 
            
 
                 3.  The nature and extent of claimant's disability, if 
 
            any;
 
            
 
                 4.  Whether claimant is entitled to reimbursement for 
 
            an independent evaluation; and,
 
            
 
                 5.  Whether defendants are entitled to any credits for 
 
            previous payment of benefits under a nonoccupational or 
 
            group plan.
 
            
 
                                   stipulations
 
            
 
                 By stipulation, it was agreed that the applicable 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            weekly rate in the event of an award is $160.06; that the 
 
            employee worked for the defendant on August 10, 1988; and, 
 
            that all medical bills contained in this record are fair and 
 
            reasonable.
 
            
 
                                 findings of fact
 
            
 
                 The deputy, having heard the testimony and considered 
 
            all the evidence finds:
 
            
 
                 Claimant, Marilyn Charlet, was born December 2, 1949.  
 
            She completed the ninth grade at Colo Community School in 
 
            Colo, Iowa, and received her GED in September 1969.  She 
 
            received further training in the nursing field, and became a 
 
            nursing assistant in 1989.  She received a medications 
 
            certificate in 1990 from Des Moines Area Community College.
 
            
 
                 The claimant's work history indicates that she 
 
            regularly held jobs from 1967 through the present.  
 
            Specifically, she worked for these employers:  Rueben H. 
 
            Donnelly stuffing envelopes from for three to six months in 
 
            1967; Eastern Star Home in Boone, Iowa, as a nursing 
 
            assistant for six to nine months; Madrid Lutheran Home as a 
 
            nursing assistant for one year.
 
            
 
                 From August 1972 to October 1974, claimant worked as a 
 
            nursing assistant and ward clerk for Burlington Memorial 
 
            Hospital in Burlington, Wisconsin.  As a nursing assistant, 
 
            she passed out food trays to patients, and monitored 
 
            patients' temperatures and blood pressures.  Her duties as a 
 
            ward clerk involved transcription of doctors' orders and 
 
            filing reports.  Claimant also worked for a brief time for a 
 
            company called Intermatic as an assembler.
 
            
 
                 Ten years lapsed before claimant began to work again, 
 
            in April 1984.  At that time, she started her own business 
 
            which provided services to the underprivileged, called 
 
            Sharing Center, Inc., in New Munster, Wisconsin.  In March 
 
            1986, she became the director of Southern Lakes Area Love, 
 
            Inc., a Human Resources Center in Burlington, Wisconsin, an 
 
            organization similar to the sharing center.  She did not 
 
            earn wages for the work she performed for either one of 
 
            these organizations.
 
            
 
                 In March 1986, she began to work for Spurgeons 
 
            Department Store in Burlington, Wisconsin, as a sales 
 
            associate and department head.  She earned approximately 
 
            $150 per week.
 
            
 
                 In November 1987, she began working on the assembly 
 
            line for Nu-Way Speakers in Antiock, Illinois.
 
            
 
                 On May 23, 1988, claimant began working for the 
 
            defendant, Oscar Mayer Foods Corporation in Perry, Iowa.  
 
            Her first position with Oscar Mayer was as a boner.  She 
 
            then became a meat trimmer and earned $6.00 per hour.  In 
 
            this position, her duties included checking the meat for fat 
 
            as it rolled down an assembly line and into a bin.  If she 
 
            noted any fat on the meat, she would trim it with a Whizzer 
 
            knife, an electrical appliance with a revolving blade.
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            
 
                 She had approximately 45 minutes to fill one bin with 
 
            the trimmed meat.  In performing her duties, she was 
 
            required to bend over to hook the meat, replaced the meat on 
 
            a table, and check it for fat, then place the meat back into 
 
            the bin.  She worked approximately 8 hours a day.
 
            
 
                 Claimant started to have problems operating the Whizzer 
 
            knife, and on four different occasions (July 14, 1988; July 
 
            18, 1988; July 27, 1988; and August 10, 1988) the knife 
 
            started to vibrate "violently".  Specifically, on July 14, 
 
            1988 the knife started to vibrate, and she experienced 
 
            muscle spasms in her right arm and hand, and could not 
 
            release the equipment.  She spoke with her supervisor, who 
 
            sent her to Dallas County Hospital in Perry, Iowa.  Steven 
 
            D. Sohn, M.D., the physician on duty in the emergency room, 
 
            noted that the claimant complained of "numbness and a 
 
            viselike sensation going down into the first and second 
 
            fingers.  She states that it feels like there is decrease 
 
            circulation in her arm and that somebody has pumped up a 
 
            blood pressure cup."  Dr. Sohn found that claimant had 
 
            normal grip and sensation, as well as full range of motion 
 
            in the hand, wrist, elbow, and shoulder.  He noted 
 
            tenderness to the extensor muscles of the forearm.
 
            
 
                 He prescribed Tylenol and Parafon Forte DSC.  She was 
 
            instructed to return to work for one-handed duty, and was to 
 
            return to her regular duties the following day.  On July 15, 
 
            1988, she returned to Oscar Mayer, and was instructed to 
 
            perform clean-up duties off of the assembly line.  She 
 
            testified that her right hand, shoulder and arm continued to 
 
            ache, but that she continued to work at the plant.
 
            
 
                 Claimant apparently had problems with the Whizzer knife 
 
            on July 18, 1988 and July 27, 1988.  Neither episode 
 
            resulted in any medical attention.
 
            
 
                 The fourth incident arose on August 10, 1988, which was 
 
            also the last day she worked for Oscar Mayer.  She was 
 
            working on the line with the Whizzer knife and started to 
 
            experience pain in her right upper extremity.  She was sent 
 
            to the company nurse, who sent her back to the line.  The 
 
            Oscar Mayer union sent her back to Dr. Sohn, who saw her on 
 
            September 6, 1988.  She was complaining of pain in her right 
 
            arm, along with spasms and discomfort in the arm going down 
 
            into the fifth finger of the hand.  Dr. Sohn noted that she 
 
            had range of motion at the shoulder, elbow and wrist, he 
 
            found no areas of joint tenderness, swelling or 
 
            inflammation, and noted a normal grip, normal sensation, 
 
            negative phalen's and negative tinel's sign.  He referred 
 
            her to Peter D. Wirtz, M.D., for further evaluation.
 
            
 
                 Claimant saw Dr. Wirtz on October 6, 1988.  He noted a 
 
            history of developing symptoms in the right upper extremity, 
 
            particularly in the shoulder, elbow, forearm and hand on the 
 
            right side.  He diagnosed rotator cuff tendinitis with 
 
            stiffness in the right shoulder; resolving ulnar nerve 
 
            neuropraxia; and muscle spasm in the right forearm which had 
 
            been resolved.  He opined that claimant's tendinitis and 
 
            neuropraxia of the right upper extremity would resolve with 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            reduction in her physical demands.  He referred her to 
 
            physical therapy for stretching, internal rotation, and 
 
            general strengthening of the right shoulder area.  She 
 
            attended daily physical therapy sessions from October 10, 
 
            1988 through October 27, 1988.
 
            
 
                 Notes from the physical therapy initial evaluation and 
 
            plan of care set out the diagnosis of right shoulder 
 
            tendinitis with a date of onset of July 14, 1988.
 
            
 
                 On October 28, 1988, Dr. Wirtz evaluated claimant, and 
 
            indicated that:
 
            
 
                 This patient continues with symptoms in the 
 
                 shoulder area.
 
            
 
                 Exam shows forward flexion 180/180 degrees, 
 
                 external rotation 90/90 degrees, internal rotation 
 
                 60/60 degrees, and extension 45/45 degrees.  
 
                 Voluntarily the motions are same as passive.
 
            
 
                 EMG and conduction studies for the ulnar nerve of 
 
                 the right upper extremity are normal.
 
            
 
                 This patient's muscular strain has resolved and 
 
                 she has been advised that she has no orthopaedic 
 
                 or neurological restrictions.
 
            
 
                 Claimant began working for Pure Dry Ice Company on 
 
            November 10, 1988.  During her second day of work, she 
 
            sustained an injury to her toe and received workers' 
 
            compensation for several weeks.  She attempted to return to 
 
            work, but was told she was no longer needed.
 
            
 
                 Claimant next worked as a nursing assistant for Granger 
 
            Manor, beginning in February, 1989.  At the time of the 
 
            hearing, claimant continued to work for this employer.  Her 
 
            duties include assisting patients in all of their daily 
 
            activities.  She has sustained a low back injury and a hip 
 
            injury while working at the manor.  She was treated by Scott 
 
            Neff, D.O., and William Boulden, M.D.
 
            
 
                 On August 31, 1989, claimant was involved in a pick-up 
 
            truck accident, and was treated on one occasion by Dr. Sohn 
 
            for head, neck, right shoulder and left knee pain.
 
            
 
                 On March 23, 1990, claimant was evaluated by Jerome G. 
 
            Bashara, M.D.  Based upon her history and his examination, 
 
            Dr. Bashara gave claimant a five percent permanent partial 
 
            impairment of her right upper extremity related to her work 
 
            using a Whizzer knife at the Oscar Mayer plant.  Dr. Bashara 
 
            also points out that claimant had been treated for shoulder 
 
            problems and restrictions of the external rotation of her 
 
            shoulder prior to her work at Granger Nursing Home.  
 
            
 
                           applicable law and analysis
 
            
 
                 Defendants first argue that claimant did not sustain an 
 
            injury which arose out of and in the course of her 
 
            employment.  The evidence in this case shows that claimant 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            encountered episodes with the Whizzer knife on four separate 
 
            occasions:  July 14, 1988; July 18, 1988; July 27, 1988; 
 
            and, August 10, 1988.  After the first incident, she saw Dr. 
 
            Sohn at the Dallas County Hospital in Perry.  She was 
 
            treated with muscle relaxers and pain pills, and kept off 
 
            the line that night.  Apparently, she did not seek medical 
 
            treatment again until August 10, 1988, when she was sent to 
 
            the company nurse, and was subsequently sent back to the 
 
            line.  She did not work for Oscar Mayer after that date.
 
            
 
                 The first issue to be resolved in the case is whether 
 
            claimant's arose out of and in the course of her employment.  
 
            The burden rests upon the claimant to prove by a 
 
            preponderance of the evidence that she received a injury on 
 
            August 10, 1988 which arose out of and in the course of her 
 
            employment.  McDowell v. Town of Clarksville, Inc. 241 
 
            N.W.2d 904 (Iowa 1976).  The words "out of" refer to the 
 
            cause or source of the injury.  Crowe v. DeSoto Consol. Sch. 
 
            Dist., 246 Iowa 402, 68 N.W.2d 63 (1955). 
 
            
 
                 The words "in the course of" refer to the time and 
 
            place and circumstances of the injury.  McClure v. Union 
 
            et al. Counties, 188 N.W.2d 283 (Iowa 1971); Crowe v. DeSoto 
 
            Consol. Sch. Dist., 246 Iowa 402, 68 N.W.2d 63 (1955).
 
            
 
                 Dr. Sohn's notes, dated July 14, 1988 indicate:
 
            This is a 38-year-old woman who is employed at Oscar Mayer 
 
            who has been working there since May of 1988.  She has been 
 
            working on the Wizard [sic] knife for the last four weeks 
 
            time.  She states tonight that her Wizard [sic] knife 
 
            developed excessive vibration and began vibrating wildly and 
 
            after working with it for a period of time she developed 
 
            numbness involving the right hand and forearm....She states 
 
            that it feels like there is decreased circulation in her arm 
 
            and that somebody has pumped up a blood pressure cuff.
 
                 ....
 
            ASSESSMENT:  Complaints of parasthesia secondary to working 
 
            with vibratory equipment.
 
            
 
                 Claimant, a credible witness, testified that prior to 
 
            July 14, 1988, she had not had any injuries to her right 
 
            shoulder.
 
            
 
                 Claimant has sustained her burden, as it is clear from 
 
            the record that she was performing her job duties at Oscar 
 
            Mayer when she was injured, and that her work caused the 
 
            injury.
 
            
 
                 The next issue to be resolved is whether there is a 
 
            causal relationship between the alleged injury and the 
 
            claimed disability.  The burden of proving by a 
 
            preponderance of the evidence that the injury of August 10, 
 
            1988 is causally related to the disability on which she now 
 
            bases her claim rests upon the claimant in these 
 
            proceedings.  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 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            domain of expert testimony.  Bradshaw v. Iowa Methodist 
 
            Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). 
 
            
 
                 However, expert medical evidence must be considered 
 
            with all other evidence introduced bearing on the causal 
 
            connection.  Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion 
 
            of experts need not be couched in definite, positive or 
 
            unequivocal language.  Sondag v. Ferris Hardware, 220 N.W.2d 
 
            903 (Iowa 1974).  And the expert opinion may be accepted or 
 
            rejected, in whole or in part, by the trier of fact.  Id. at 
 
            907.  Further, the weight to be given to such an opinion is 
 
            for the finder of fact, and that may be affected by the 
 
            completeness of the premise given the expert and other 
 
            surrounding circumstances.  Bodish, 257 Iowa 516, 133 N.W.2d 
 
            867.  See also Musselman v. Central Telephone Co., 261 Iowa 
 
            352, 154 N.W.2d 128 (1967).
 
            
 
                 Furthermore, if the available expert testimony is 
 
            insufficient alone to support a finding of causal 
 
            connection, such testimony may be coupled with nonexpert 
 
            testimony to show causation and be sufficient to sustain an 
 
            award.  Giere v. Aase Haugen Homes, Inc., 259 Iowa 1065, 146 
 
            N.W.2d 911, 915 (1966).  Such evidence does not, however, 
 
            compel an award as a matter of law.  Anderson v. Oscar Mayer 
 
            & Co., 217 N.W.2d 531, 536 (Iowa 1974).  To establish 
 
            compensability, the injury need only be a significant 
 
            factor, not be the only factor causing the claimed 
 
            disability.  Blacksmith v. All-American, Inc., 290 N.W.2d 
 
            348, 354 (Iowa 1980).
 
            
 
                 Claimant testified that she had not sustained any 
 
            work-related injuries to her right hand, arm or shoulder 
 
            prior to July 14, 1988.  Both Drs. Wirtz and Bashara opined 
 
            that claimant had impairment to the right upper extremity.
 
            
 
                 Dr. Bashara's evaluation report dated March 23, 1990, 
 
            based upon her history, summarized claimant's condition:
 
            
 
                    Injury to the right rotator cuff, with a 
 
                 chronic rotator cuff tendinitis right shoulder, 
 
                 related to her work using a "whizzer knife" at the 
 
                 Oscar Meyer [sic] plant.
 
            
 
                 I would give the patient a 5% permanent partial 
 
                 physical impairment of her right upper extremity 
 
                 related to the injury
 
            
 
                 To substantiate the above opinion, I would refer 
 
                 to the evidence in the physical therapy notes from 
 
                 the Dallas County Hospital, dated 11-8-88.  The 
 
                 discharge note by the physical therapist that day 
 
                 notes that there was some restriction of external 
 
                 rotation at that time.  This was after the last 
 
                 visit that the patient was seen by Dr. Wirtz in 
 
                 1988 and prior to her work at the Grander [sic] 
 
                 nursing home.
 
            
 
                 Further evidence is related to Dr. Neff's note in 
 
                 which he states her shoulder injury was an old 
 
                 injury and not related to the disc injury which 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
                 she sustained during her work at the Grander [sic] 
 
                 Mannor [sic] on 3-22-89.
 
            
 
            (Joint Exhibit 7, pp. 37-38).
 
            
 
                 Dr. Wirtz voiced this opinion on August 16, 1989:
 
            
 
                 Regarding 7/31/89 correspondence and review of 
 
                 this patient's record, the following would be 
 
                 conclusions.
 
            
 
                 This patient has lost 20 degrees of internal 
 
                 rotation of her right shoulder which would related 
 
                 to a 3% impairment of the right upper extremity.
 
            
 
                 This patient has a chronic tendinitis with the 
 
                 associated muscle weakness which would relate to a 
 
                 further 3% impairment of the upper extremity 
 
                 giving her a total of 6% impairment of the upper 
 
                 extremity.
 
            
 
     
 
            
 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            On October 27, 1989, Dr. Wirtz supplemented his opinion:
 
            
 
                 Regarding 10/13/89 correspondence and review of 
 
                 records made available and this patient's complete 
 
                 record, it would appear that the patient noted 
 
                 10/28/88 examination had full range of motion and 
 
                 no orthopaedic or neurologic restriction.  In the 
 
                 intervening time until 6/29/89, the patient 
 
                 developed a 20 degree loss of motion in the right 
 
                 shoulder.  This would relate to activities 
 
                 following 10/28/88 examination.
 
            
 
                 The 5/31/89 Dr. Neff examination revealed no 
 
                 evidence of restriction in the right shoulder 
 
                 area.  Recommendations were bone scan which on 
 
                 7/7/89 revealed no abnormality to the shoulder 
 
                 area.
 
            
 
                 In review of these records, conclusions would be 
 
                 that her symptoms in the right shoulder were not 
 
                 related to activities at Oscar Mayer and developed 
 
                 following that work activity and would be due to 
 
                 Granger Manor.
 
            
 
            (Jt. Ex. 3, p. 17).
 
            
 
                 William Boulden, M.D., an orthopaedic surgeon, treated 
 
            claimant from April 1989 to June 1989.  During that time, 
 
            she undertook physical therapy to strengthen her back, and 
 
            also indicated she had continuing problems with her right 
 
            shoulder.  (Jt. Ex. 1, pp. 22-23).
 
            
 
                 Physical therapy notes dated May 11, 1989 from Thomas 
 
            Bower, L.P.T., also indicate an "old" shoulder injury.
 
            
 
                 Even though claimant did not complain immediately of 
 
            right shoulder pain, the undersigned finds that subsequent 
 
            references to pain and limited range of motion to her 
 
            shoulder causally link the work she performed at Oscar Mayer 
 
            to her injury.  Claimant has sustained her burden of showing 
 
            a causal connection between her shoulder problems and her 
 
            injury while employed at Oscar Mayer. 
 
            
 
                 The next issue to be addressed is whether claimant is 
 
            entitled to temporary total or healing period benefits from 
 
            August 9, 1988 to November 10, 1988, the day she started 
 
            working for Pure Dry Ice in Des Moines, Iowa.
 
            
 
                 Iowa Code section 85.34(1) states:
 
            
 
                    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 
 
                 he has returned to work or it is medically 
 
                 indicated that significant improvement from the 
 
                 injury is not anticipated or until the employee is 
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
                 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.
 
            
 
                 Healing period benefits are awarded if an employee has 
 
            sustained a permanent injury; temporary total benefits are 
 
            awarded if the employee is expected to make a full recovery 
 
            from the injury.  Two doctors have given claimant a 
 
            functional impairment rating to her right upper extremity, 
 
            converted to body as a whole.  It is clear she has sustained 
 
            a permanent impairment, and is therefore entitled to healing 
 
            period benefits.
 
            
 
                 It is unclear from the record why claimant left her 
 
            employment with Oscar Mayer.  Joint exhibit 3, page 11 does 
 
            indicate that claimant reached maximum medical improvement 
 
            on October 28, 1988.  Therefore, healing period benefits are 
 
            awarded from August 10, 1988 through October 28, 1988.
 
            
 
                 The next issue to be resolved is the extent of 
 
            permanent disability benefits to which claimant is entitled 
 
            and specifically, whether her injury falls within the 
 
            perimeters of 85.34(2)(m), as a scheduled member, or whether 
 
            her disability falls under section 85.34(2)(u), as an injury 
 
            of the body as a whole.  Further, if claimant has sustained 
 
            a whole body injury, the concept of industrial disability, 
 
            or loss of earning capacity, must be addressed.
 
            
 
                 Claimant initially sought medical intervention on July 
 
            14, 1988.  As shown in joint exhibit 1, she complained of 
 
            numbness in her right hand and forearm.  She was treated, 
 
            and returned to work the next day.  Claimant returned to Dr. 
 
            Sohn on September 6, 1988 complaining of pain in the right 
 
            arm.  She was referred to Dr. Wirtz for further evaluation, 
 
            met with Dr. Wirtz on October 6, 1988, and complained of 
 
            symptoms in the shoulder, elbow, forearm and hand on the 
 
            right side.  From that point on, the record is replete with 
 
            complaints of pain in the right shoulder.  At the hearing, 
 
            claimant testified that she did not have any intervening 
 
            accidents or injuries to her right shoulder during the time 
 
            between August 10, 1988 and October 6, 1988.  She also 
 
            stated that her work at Granger Manor Nursing Home has not 
 
            aggravated her condition.  The undersigned finds the 
 
            claimant credible, and finds that the shoulder injury 
 
            naturally flowed from the work performed at Oscar Mayer.
 
            
 
                 Medical evidence indicates rotator cuff tendinitis in 
 
            the right shoulder.  Where the injury and its treatment 
 
            produced impairment affecting claimant's shoulder, the 
 
            disability will be evaluated industrially rather than as a 
 
            scheduled member.  See, Alm v. Morris Barick Cattle Co., 240 
 
            Iowa 1174, 38 N.W.2d 161 (1949).
 
            
 
                 It is concluded that the August 10, 1988 injury is a 
 
            proximate cause of permanent disability affecting claimant's 
 
            right arm and shoulder.  The injury is not limited to 
 
            claimant's arm.
 
            
 
                 The next issue to be determined is to what extent 
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
            claimant has sustained an industrial disability.
 
            
 
                    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 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).
 
            
 
                 Claimant has had a myriad of positions in the work 
 
            force, and has worked as a nurse's aide, ward clerk, 
 
            assembly line worker, retail salesperson, and department 
 
            head.  She has also established and operated several public 
 
            service organizations.  It appears that she has continued 
 
            her educational level, and she has taken classes at Des 
 
            Moines Area Community College in order to obtain a 
 
            certification for a medication aide.  She testified at the 
 
            hearing that she was enrolled in a phlebotomy class 
 
            beginning in the fall.
 
            
 
                 Claimant has been working at Granger Manor Nursing 
 
            Center since February 1989.  Although she has had two work 
 
            related injuries at this place of employment, and continues 
 
            to be a productive employee with the center.  Apparently, 
 
            she primarily uses her left arm when she lifts patients.  
 
            Neither Dr. Bashara nor Dr. Wirtz imposed any restrictions 
 

 
            
 
            Page  11
 
            
 
            
 
            
 
            
 
            other than permanent impairment.  Dr. Bashara noted that she 
 
            continued to have weakness in her arm and an aching 
 
            sensation in her shoulder.  Lifting, pushing and pulling 
 
            aggravate her symptoms.
 
            
 
                 Dr. Wirtz noted she has a lack of 20 degrees of 
 
            internal rotation.  Both impairment ratings equate to three 
 
            percent impairment to the body as a whole.  Considering all 
 
            the factors involved in determining industrial disability, 
 
            and specifically the lack of restrictions and the relatively 
 
            low functional impairment ratings from both doctors, the 
 
            undersigned finds that claimant has sustained an industrial 
 
            disability of five percent.
 
            
 
                 The next issue to be determined is whether claimant is 
 
            entitled to reimbursement for medical expenses under Iowa 
 
            Code section 85.27.  The medical evidence presented, coupled 
 
            with the liability aspects with the claim establishes the 
 
            causal connection between the work injury of August 10, 1988 
 
            and the medical bills submitted in claimant's exhibits 1, 2, 
 
            4, and 5 are to be paid by the defendant.
 
            
 
                 Another issue presented by the parties is defendant's 
 
            entitlement to credit for previous payment of benefits under 
 
            a nonoccupational or group plan.
 
            
 
                 Iowa Code section 85.38(2) provides:
 
            
 
                    In the event the disabled employee shall 
 
                 receive any benefits, ...under any group plan 
 
                 covering nonoccupational disabilities contributed 
 
                 to wholly or partially by the employer, which 
 
                 benefits should not have been paid or payable if 
 
                 any right of recovery existed under this 
 
                 chapter,...then such amounts so paid to said 
 
                 employee from any such group plan shall be 
 
                 credited to or against any compensation 
 
                 payments....
 
            
 
                 No evidence was submitted regarding the issue.  If 
 
            defendants have made such payments as defined in section 
 
            85.38(2), then they are entitled to a credit.
 
            
 
                 Claimant also raises the issue of whether she is 
 
            entitled to reimbursement for Dr. Bashara's independent 
 
            medical evaluation in the amount of $395.00.
 
            
 
                 Iowa Code section 85.39 answers this issue:
 
            
 
                    If an evaluation of permanent disability has 
 
                 been made by a physician retained by the employer 
 
                 and the employee believes this evaluation to be 
 
                 too low, the employee shall upon application to 
 
                 the commissioner and upon delivery of a copy of 
 
                 the application to the employer and its insurance 
 
                 carrier, be reimbursed by the employer the 
 
                 reasonable fee for a subsequent examination by a 
 
                 physician of the employee's own choice, and 
 
                 reasonably necessary transportation expenses 
 
                 incurred for the examination.
 

 
            
 
            Page  12
 
            
 
            
 
            
 
            
 
            
 
                 Drs. Sohn and Wirtz are physicians retained by the 
 
            employer.  Dr. Wirtz rendered an opinion regarding 
 
            permanency.  Claimant sought a second opinion from Dr. 
 
            Bashara, and she is entitled to reimbursement.
 
            
 
                                      order
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 That defendant shall pay unto claimant healing period 
 
            benefits at the rate of one hundred sixty and 06/100 dollars 
 
            ($160.06) for the period beginning August 11, 1988 to and 
 
            including October 28, 1988, which totals eleven point two 
 
            eight six (11.286) weeks.
 
            
 
                 That defendants shall pay unto claimant twenty-five 
 
            (25) weeks of permanent partial disability benefits at the 
 
            rate of one hundred sixty and 06/100 dollars ($160.06), 
 
            beginning October 29, 1988.
 
            
 
                 That defendants shall pay the accrued benefits in a 
 
            lump sum.  Since the defendant has paid no benefits, there 
 
            is no credit due defendant.
 
            
 
                 That defendant shall pay all of claimant's medical 
 
            expenses, related to this work related injury which 
 
            currently total one thousand seven hundred thirty-seven and 
 
            40/100 dollars ($1,737.40).
 
            
 
                 That defendant shall reimburse claimant for expenses 
 
            incurred for an independent medical examination, which 
 
            totals three hundred ninety-five dollars ($395.00).
 
            
 
                 That defendant shall pay interest on benefits awarded 
 
            herein as set forth in Iowa Code section 85.30.
 
            
 
                 That defendant shall pay the costs of this action 
 
            pursuant to Divison of Industrial Services Rule 343-4.33.
 
            
 
                 That defendant shall file an activity report upon 
 
            payment of this award as required by this agency pursuant to 
 
            Division of Industrial Services Rule 343.3-1.
 
            
 
                 Signed and filed this ____ day of December, 1990.
 
            
 
            
 
            
 
            
 
                                          
 
            ________________________________
 
                                          PATRICIA J. LANTZ
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr Robert E McKinney
 
            Attorney at Law
 
            480 6th
 
            PO Box 209
 

 
            
 
            Page  13
 
            
 
            
 
            
 
            
 
            Waukee  Iowa  50263
 
            
 
            Mr Harry W Dahl
 
            Attorney at Law
 
            974 73rd St  Ste 16
 
            Des Moines  Iowa  50312
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                      5-1803; 1803.1
 
                      Filed December 27, 1990
 
                      PATRICIA J. LANTZ
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            MARILYN CHARLET,    :
 
                      :
 
                 Claimant, :       File No. 887899
 
                      :
 
            vs.       :    A R B I T R A T I O N
 
                      :
 
            OSCAR MAYER FOODS CORP., :       D E C I S I O N
 
                      :
 
                 Employer, :
 
                 Self-Insured,  :
 
                 Defendant.     :
 
            ___________________________________________________________
 
            
 
            5-1803; 1803.1
 
            Shoulder injury held compensable industrially.  Claimant, 41 
 
            years old, awarded five percent industrial disability based 
 
            on low functional impairment and minimal lost earning 
 
            capacity.