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 Page 2 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 Page 3 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 Page 4 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. Page 5 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. Page 6 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 Page 7 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 Page 8 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 Page 9 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 Page 10 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.