Page 1 before the iowa industrial commissioner ____________________________________________________________ : WILLIAM F. MEINS, : : Claimant, : : vs. : : File No. 890102 KIND & KNOX GELATIN, INC., : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : PITTSBURGH NATIONAL FIRE : COMPANY, : : Insurance Carrier, : Defendants. : ___________________________________________________________ statement of the case This is a proceeding in arbitration upon the petition of claimant, William F. Meins, against his employer, Kind & Knox Gelatin, Inc., and its insurance carrier, Pittsburgh National Fire Company, defendants. The case was heard on August 13, 1990 in Sioux City, Iowa at the Woodbury County Courthouse. The record consists of the testimony of claimant and the testimony of Jerry Vance, employee. Additionally, the record consists of joint exhibits 1-34. issues The issues to be determined are: 1) whether there is a causal relationship between the injury of May 18, 1988 and the alleged disability; 2) whether claimant is entitled to temporary disability/healing period benefits or permanent partial disability benefits; and, 3) whether claimant is entitled to medical benefits. findings of fact The deputy, having heard the testimony and considered all the evidence, finds: On May 18, 1988, claimant, while working for defendant-employer, slipped from a ladder. He caught himself with his left hand. Claimant described burning pain in the mid neck area, mid spine area and in both shoulders, arms, wrists and fingers with numbness in the right hand. Claimant had experienced previous problems in his shoulders and upper extremities and he had been treating with his own chiropractor, James Smith, D.C., and with Michael Jennings, M.D. Dr. Jennings treated claimant in July of 1987 for Page 2 tenderness in the right forearm, right wrist, flexion of fingers and for a very poor grip. Claimant was restricted from heavy lifting, grasping, or repetitive use of the right hand. He was placed on light duty. Dr. Smith treated claimant for right arm and hand complaints. As of February of 1988, Dr. Smith opined: Pursuant to our conversation today, I would like to restate that Bill has reached the point of maximum medical improvement and he has not recovered from the problem. I am convinced, as he is, that his work is an aggravation then that he will not be able to recover as long as he continues to use the arm and the heavy type of work that he does. With that in mind I have taken the following steps: 1. I gave Bill a maximum lifting restriction of 10 lbs. for 30 days or further notice, and 2. I will be treating him twice weekly with electrical and ultra-sound therapy to the arm and Pronator teres muscle. Also I would like to recommend that he be seen by Jerry Neuman for another EMG to the right arm to confirm my diagnosis of Pronator teres syndrome. I believe that this could potentially be a surgical case and with your and the company doctors approval I believe it would be prudent to go through the above mentioned procedures for a reasonable length of time probably 30 to 60 days and see if we can get Bill's arm back to normal before any surgical intervention may be considered. Of course this all would be necessarily confirmed by the results of Mr. Neumans [sic] EMG examination. (Exhibit 10) Subsequent to the May 18, 1988 work injury, claimant continued treatment with Dr. Smith who opined there was an exacerbation of symptoms. However, the defendant-insurance carrier referred claimant to Kevin J. Liudahl, M.D., an orthopedic surgeon. As of May 24, 1988, Dr. Liudahl opined: EXAM OF RIGHT NECK/SHOULDER: Reveals full ROM. He has moderate tightness of his right trapezius and tenderness over the superior medial corner of the scapula. He is neurologically intact in his right upper extremity. He does have a positive Tinel's at the right carpal tunnel with some radiation into the long finger but he has a negative Phalen's, minimally decreased sensation in the right 3rd thru 5th fingers of approximately 20%. He has good thumb abductor strength and minimal thenar atrophy. He has full ROM of his elbow with good strength and no fullness or tenderness in the cubital tunnel. X RAYS: Reviewed from 10/87 of the neck/shoulder from the chiropractor's office are unremarkable. Page 3 IMPRESSION: Right trapezius syndrome with what sounds like clinically resolved carpal tunnel syndrome. PLAN: I am going to use electrical stimulation and ultrasound on his right shoulder. Gave him a prescription for Motrin 800 mg PO bid. See him back in the clinic in 3 weeks' time. If he is not substantially improved at that time, I may consider repeating the EMG and possible referral to Dr. Blume. (Ex. 14) Dr. Liudahl continued to treat claimant conservatively. As of October 20, 1988, Dr. Liudahl approved a job analysis of the position which claimant had performed for defendant employer. The physician opined claimant could perform the job of maintenance worker. Dr. Liudahl, as of September 6, 1988, had released claimant to return to work. Claimant was notified of the termination of his workers' compensation benefits. Claimant did not return to work. As a result, he received a notice of termination dated November 4, 1988. Pursuant to the union contract, a grievance was filed because of claimant's termination. The matter was arbitrated and Steven Briggs, the arbitrator, awarded an offer of reinstatement without benefits or back pay to claimant. Claimant returned to work in December of 1989. He terminated his position in April of 1990. After September 6, 1988, claimant sought treatment from Tim Luse, D.C. Dr. Luse also treated claimant conservatively. Dr. Luse opined claimant had limited use of his right arm and shoulder and that claimant had a 10 percent impairment to the body as a whole. Dr. Luse restricted claimant from pulling, pushing and lifting over 20 pounds with his right arm and from climbing or lifting over his head. In anticipation of litigation, Dr. Liudahl, as of June 6, 1990, diagnosed claimant as having chronic right trapezius syndrome. The physician opined claimant had a five percent impairment rating due to chronic pain but that claimant was not restricted in his activities. Finally, claimant was examined by a neurosurgeon, Ralph F. Reeder, M.D. He diagnosed claimant as having: Chronic right-sided trapezius, shoulder, arm, and forearm pain. ... IMPRESSION: This patient has a chronic pain situation involving the trapezius muscle, the right shoulder, the right arm and forearm, and involves the wrist. I have in my possession an EMG study from 1988 that suggests that there is a compression of the median nerve at the wrist but I cannot believe that this explains his entire pain Page 4 pattern and at this time would not recommend decompression. I would also like to review the cervical and thoracic spine films and we will attempt to have these sent to the office. I also think the patient should undergo an MRI of the cervical and upper thoracic spine to make certain that he doesn't have an occult tumor here or possibly syrinx. I believe that this will prove to be negative. The patient has no radicular or myelopathic signs. I believe we are left with a chronic pain condition and efforts should be directed at dealing with this. The patient has undergone multiple trigger point injections and various therapies directed at his pain. I think he would benefit from some low dose Nortriptyline and a prescription for Pamelor 25 mg po q hs was given. Side effects and possible problems with the agent were described to the patient. I also feel he would benefit from a nonsteroidal anti-inflammatory and Orudis was prescribed, 75 mg po b.i.d. Once again side effects were described. The patient is going to go on a one month trial of a TENS unit to be applied to the areas affecting him most. The rationale for the unit was described and the patient will give this a trial. I will be rechecking him in 3 weeks to see if these agents have some effect. We will also be reviewing his studies and obtain the EMG studies from Gerald Newman's office. If the patient has no response to the program as outlined, I really have no further suggestions and would recommend that he be seen in a pain clinic in Omaha. Regarding his social situation, I have neither the inclination nor the expertise to rate him as having a permanent partial disability at [sic] the patient's problem is purely subjective in my view. Certainly I believe this patient will not be able to return to any kind of intensive physical labor and I believe he should undergo vocational rehab assessment to see what type of jobs he can fulfill. (Ex. 34, page 3) Dr. Reeder did not rate claimant as having a permanent partial impairment. The neurosurgeon opined claimant had a "subjective problem," and he was released from the physician's care. conclusions of law Having considered all the evidence received, together with the appearance and demeanor of the witnesses, the following conclusions of law are made: This agency has jurisdiction of the subject matter of this proceeding and its parties. In the case at hand, claimant alleges on the face of the petition: "This is a repetitious trauma case with the Page 5 final injury happening on 5/18/88 when Claimant slipped on a ladder at work." In McKeever Custom Cabinets v. Smith, 379 N.W.2d 368 (Iowa 1985), the Iowa Supreme Court upheld this agency's adoption of the cumulative injury rule for application in factually appropriate cases. The McKeever Court cited 1B Larson Workmen's Compensation Law, section 39.50 at 11-350.28 for two general rules as to when the injury occurs for time limitation purposes in cumulative trauma cases. Under Larson, the injury may occur when pain prevents the employee from continuing to work or when pain occasions the need for medical treatment. The Court adopted the view that the injury occurs when pain prevents the employee from continuing work reasoning that "clearly the employee is dis abled and injured when, because of pain or physical disability he can no longer work." McKeever at 374. The McKeever Court then adopted what is commonly called the "last injurious exposure rule" for successive trauma cases, thereby placing full liability upon the carrier covering the risk at the time of the most recent trauma bearing a causal relationship to any disability. McKeever at 376. Claimant, however, is misguided; this is not a cumulative trauma case. Rather, this is a situation where claimant has had a preexisting condition of the right shoulder and right upper extremity. The condition dates back to at least 1979. The injury which has occurred on May 18, 1988, is a specific trauma and not one which repeats itself over time. The issue before the undersigned is whether the specific trauma on May 18, 1988, has aggravated claimant's preexisting condition. Aggravation of a preexisting condition is one form of compensable injury. While a claimant is not entitled to compensation for the results of a preexisting injury or disease, the mere existence at the time of a subsequent injury is not a defense. Rose v. John Deere Ottumwa Works, 247 Iowa 900, 908, 76 N.W.2d 756, 760-61 (1956). If the claimant had a preexisting condition or disability that is aggravated, accelerated, worsened or lighted up so that it results in disability, claimant is entitled to recover. Nicks v. Davenport Produce Co., 254 Iowa 130, 115 N.W.2d 812, 815 (1962). The claimant has the burden of proving by a preponderance of the evidence that the work injury is a cause of the claimed disability. A disability may be either temporary or permanent. In the case of a claim for temporary disability, the claimant must establish that the work injury was a cause of absence from work and lost earnings during a period of recovery from the injury. Generally, a claim of permanent disability invokes an initial determination of whether the work injury was a cause of permanent physical impairment or permanent limitation in work activity. However, in some instances, such as a job transfer caused by a work injury, permanent disability benefits can be awarded without a showing of a causal connection to a physical change of condition. Blacksmith v. All-American, Inc., 290 N.W.2d 348, 354 (Iowa 1980); Page 6 McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980). The question of causal connection is essentially within the domain of expert medical opinion. Bradshaw v. Iowa Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). The opinion of experts need not be couched in definite, positive or unequivocal language and the expert opinion may be accepted or rejected, in whole or in part, by the trier of fact. Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974). 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 v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). Furthermore, if the available expert testimony is insufficient along 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. Asse 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 disabil ity. Blacksmith, 290 N.W.2d 348, 354. In the case of a preexisting condition, an employee is not entitled to recover for the results of a preexisting injury or disease but can recover for an aggravation thereof which resulted in the disability found to exist. Olson v. Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963). Claimant had had difficulties with his right arm and shoulder since 1979. Since December 4, 1979, claimant had reported "numbness in his right arm which radiates from his thumb across his forearm to the ulnar aspect going up over the elbow and up to the middle of the upper arm. He also noticed a bit of numbness in his knuckles. He reported that he had some strength in his right arm but felt that it was only half as strong as it was before this condition began." In 1987, claimant had experienced pain in his right arm and elbow. He did seek medical treatment. Claimant was able to continue working in a light duty position, and to perform his work duties. Claimant exacerbated his symptoms when he fell from the ladder on May 18, 1988. Dr. Smith opined that the ladder incident exacerbated claimant's condition. Dr. Liudahl did not dispute that opinion. As a result, claimant was off work for a period of time. Claimant had aggravated his preexisting condition to the point that he had to be removed from work. His period of disability was temporary in nature. Claimant was diagnosed as having chronic right trapezius syndrome. Dr. Liudahl released claimant to return to his same position as of September 6, 1988. Claimant was released to return to work without temporary or permanent restrictions. While Dr. Liudahl assessed a five percent Page 7 permanent partial impairment rating, his rating was given solely for chronic pain and not because of any objective findings. Claimant had full range of motion. X-rays were unremarkable. Dr. Luse assessed an impairment rating of 10 percent of the whole man. The undersigned deputy is unable to comprehend how Dr. Luse arrived at that rating. His calculations are not given much weight. While claimant stated he was incapable of working as a maintenance worker, it is the determination of the undersigned that claimant has greatly exaggerated his condition. Claimant is less than credible. This deputy has reviewed the surveillance video tape of claimant which was taken on November 2, 1988. Claimant engaged in various activities involving his shoulders and upper extremities. Throughout the course of the tape, claimant did not appear restricted in his movements. Nor did claimant demonstrate any visible distress. Claimant performed carpentry work. He engaged in overhead work using hand tools. Claimant appeared quite capable and not impaired. Additionally, while claimant stated he is unable to work as a maintenance worker, claimant has been able to maintain his own lawn care and small engine repair business. He has not been physically restricted from performing the tasks incidental to running a small business. Therefore, in light of the above, it is the determination of this deputy that claimant has sustained only a temporary disability. Claimant is not permanently disabled. The next issue to address is the amount of temporary total disability benefits to which claimant is entitled. Claimant was off work from June 8, 1988 to May 9, 1990, except that claimant worked from December 13, 1989 through April 16, 1990, the day claimant voluntarily terminated his employment. Dr. Liudahl, the treating orthopedic surgeon, released claimant to return to work on September 6, 1988. On that date, Dr. Liudahl opined claimant had reached maximum medical improvement. No additional treatment was prescribed by him. Claimant refused to return to work. He voluntarily switched his case from Dr. Liudahl to Dr. Luse. Dr. Luse did not release claimant to return to work. It was only after the November 25, 1989 arbitration award was filed that claimant returned to work. Claimant worked four months and then voluntarily terminated his employment. It is the determination of the undersigned that claimant was temporarily and totally disabled from June 8, 1988 to September 6, 1988, a period of 13 weeks. Claimant is entitled to benefits pursuant to section 85.33(1) for the aforementioned period at the stipulated rate of $293.35 per week. The final issue to address is whether claimant is entitled to certain medical benefits under section 85.27. Page 8 Iowa Code section 85.27 provides, in part: For purposes of this section, the employer is obliged to furnish reasonable services and supplies to treat an injured employee, and has the right to choose the care. The treatment must be offered promptly and be reasonably suited to treat the injury without undue inconvenience to the employee. If the employee has reason to be dissatisfied with the care offered, the employee should communicate the basis of such dissatis faction to the employer, in writing if requested, following which the employer and the employee may agree to alternate care reasonably suited to treat the injury. If the employer and employee cannot agree on such alternate care, the commissioner may, upon application and reasonable proofs of the necessity therefor, allow and order other care. In an emergency, the employee may choose the employee's care at the employer's expense, provided the employer or the employer's agent cannot be reached immediately. Dr. Liudahl was the authorized treating physician from May 18, 1988 onward. Treatments by Dr. Luse were not authorized as of November 6, 1988. Claimant testified he was seeing Dr. Luse on his own. Care by Dr. Luse was not authorized. Defendants are not responsible for medical bills incurred by claimant from Dr. Luse after November 6, 1988. order THEREFORE, IT IS ORDERED: Defendants are to pay temporary total disability benefits from June 8, 1988 through September 6, 1988, a period of thirteen (13) weeks at the stipulated rate of two hundred ninety-three and 35/l00 dollars ($293.35) per week. Interest shall be paid pursuant to section 85.30. Defendants shall receive credit for all benefits paid and not previously credited. Costs of the action shall be assessed to defendants pursuant to rule 343 IAC 4.33. Defendants shall file a claim activity report as requested by this division pursuant to rule 343 IAC 3.1. Signed and filed this ____ day of March, 1991. ______________________________ Page 9 MICHELLE A. McGOVERN DEPUTY INDUSTRIAL COMMISSIONER Page 10 Copies To: Mr. Harry H. Smith Attorney at Law P O Box 1194 Sioux City IA 51102 Ms. Judith Ann Higgs Attorney at Law 701 Pierce St STE 200 P O Box 3086 Sioux City IA 51102 5-1801 Filed March 21, 1991 MICHELLE A. McGOVERN before the iowa industrial commissioner ____________________________________________________________ : WILLIAM F. MEINS, : : Claimant, : : vs. : : File No. 890102 KIND & KNOX GELATIN, INC., : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : PITTSBURGH NATIONAL FIRE : COMPANY, : : Insurance Carrier, : Defendants. : ___________________________________________________________ 5-1801 Claimant was only temporarily disabled. He was able to return to his position as a maintenance worker with no restrictions. Claimant was not credible. before the iowa industrial commissioner ____________________________________________________________ : SUSAN RHOADES, : : Claimant, : : vs. : : File No. 890149 COBBS MANUFACTURING COMPANY,: : A P P E A L Employer, : : D E C I S I O N and : : TRAVELERS INSURANCE COMPANY,: : Insurance Carrier, : Defendants. : ___________________________________________________________ The record, including the transcript of the hearing before the deputy and all exhibits admitted into the record, has been reviewed de novo on appeal. The decision of the deputy filed March 27, 1991 is affirmed and is adopted as the final agency action in this case. Claimant shall pay the costs of the appeal, including the preparation of the hearing transcript. Signed and filed this ____ day of October, 1991. ________________________________ BYRON K. ORTON INDUSTRIAL COMMISSIONER Copies To: Mr. Tom Whitney Attorney at Law 900 Two Ruan Center Des Moines, Iowa 50309 Mr. William D. Scherle Attorney at Law 803 Fleming Bldg. 2l8 Sixth Avenue Des Moines, Iowa 50309 9999 Filed October 29, 1991 Byron K. Orton EAN before the iowa industrial commissioner ____________________________________________________________ : SUSAN RHOADES, : : Claimant, : : vs. : : File No. 890149 COBBS MANUFACTURING COMPANY,: : A P P E A L Employer, : : D E C I S I O N and : : TRAVELERS INSURANCE COMPANY,: : Insurance Carrier, : Defendants. : ___________________________________________________________ 9999 Summary affirmance of deputy's decision filed March 27, 1991, with short additional analysis. Page 1 before the iowa industrial commissioner ____________________________________________________________ : SUSAN RHOADES, : : Claimant, : : vs. : : File No. 890149 COBBS MANUFACTURING COMPANY, : : 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. : ___________________________________________________________ This is a proceeding in arbitration brought by Susan Rhoades, claimant, commenced with the filing of a petition on May 16, 1989 against Cobbs Manufacturing (Cobbs), employer, and Cobbs' workers compensation insurance carrier, Travelers Insurance Companies (Travelers), collectively defendants, for worker's compensation benefits as a result of an alleged injury to claimant's finger, hand, shoulder and neck occurring on November 27, 1985. On November 8, 1990 the matter came on for hearing in Des Moines Iowa. The parties appeared as follows: the claimant in person and by her counsel Thomas Whitney of Des Moines, Iowa and the defendants by their counsel William Scherele. The record in this proceeding consisted of the following: 1. The live testimony of claimant, Roger Marquardt, Mona Ryburn and David Mitchell. 2. Joint exhibits I-V 3. Defendants' exhibit 1. At the close of all evidence, the case was deemed fully submitted. Page 2 Stipulations The parties stipulated to the following matters at the time of hearing: 1. An employee-employer relationship existed between the claimant and the employer at the time of the alleged injury. 2. The rate of compensation in the event an award of weekly benefits is made is $98.10. Claimant is single and claims one exemption. 3. In connection with disputed medical benefits, the parties agreed that the fees charged were fair and reasonable and that the expenses were incurred for reasonable and necessary medical treatment. Additionally, Cobbs authorized medical expenses. 4. Defendants have paid 257.071 weeks of worker's compensation benefits to claimant prior to the hearing at the rate of $98.10. 5. The parties have stipulated to the amount of costs in this matter. Issues The issues for resolution are as follows: 1. Whether claimant sustained an injury on November 27, 1985 which arose out of and in the course of her employment with Cobbs. 2. Whether a causal relationship exists between claimant's claimed injuries and the claimed industrial disability. 3. The nature and extent of any entitlement to benefits against Cobbs. 4. 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. Preliminary Matters At the close of all evidence, this writer asked the parties to supply written briefs regarding the issues in this matter. The parties were asked to pay particular attention to describing reflex sympathetic dystrophy, as it was identified as the primary malady suffered by claimant. Indeed this condition is discussed during the deposition of David W. Beck, M.D., who briefly described the condition. Claimant complied and supplied information from medical references. Defendants objected to this request in their brief, arguing that this information was outside the record and should not be considered as evidence in the case. Written argument by the parties is not considered as Page 3 evidence in the case. The parties are free to illustrate the facts of their case with whatever reference material in combination with the facts that they can find to persuade the fact finder to render a favorable ruling. In a worker's compensation proceeding the parties are certainly free to augment the agency's experience, technical competence and specialized knowledge in evaluating the evidence as provided in Iowa Code section 17A.14(1989). Consequently, the objection is overruled. 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 48 years old. She is a life long resident of Des Moines. Claimant attended North High School until the beginning of 11th grade. Claimant left school because it was just too hard for her to learn. Claimant had been in special education classes during her academic career. Claimant was married for approximately 20 years. She was divorced in the mid 1970's. At the time of her divorce she had three children. After her divorce, claimant's only income sources were ADC payments and sporadic child support payments. Claimant is a persistent smoker and is right hand dominant. 2. Claimant's work history since she left high school and until she returned to the competitive labor market in mid 1985 consisted of unskilled jobs at minimum wage. The evidence is in conflict over the precise dates that claimant was employed outside the home both before and after her marriage. The record is clear however, that claimant worked for Iowa Casket Co. as a sewing machine operator sewing pillows for caskets. Additionally, claimant worked as a waitress and a parttime house cleaner. The parttime employment as a house cleaner was claimant's longest employment. She performed this work for almost 17 years. 3. Claimant reentered the job market when her youngest son left home. Claimant obtained a job at Cobbs in July of 1985 as a production worker. Her hourly wage at that time was $3.75 per hour. Cobbs makes automobile accessories. Some of their products include sun visor mirrors, trash bags and registration holders. Claimant was assigned to three different jobs while she worked for Cobbs. She inserted mirrors for the sun visor accessory. She cut slits in the trash bags and she stripped excess plastic from the registration holders. All of these tasks required claimant to use both of her hands in repetitive movements. Claimant worked primarily in the areas of mirror insertion and in the slitting department. She did not work primarily in the area of stripping plastic from the registration holders. The testimony of the plant supervisor is more persuasive on this point. 4. Claimant was not a satisfactory employee. She failed to meet production standards. At the time claimant indicated that she had been injured, she was 61 percent Page 4 below her production standard. Additionally, claimant had been significantly absent from her work. Claimant was paid on a biweekly basis. Between August 23 1985 and November 27, 1985, claimant worked only one 80 hour pay period. The other pay periods indicate that claimant averaged 63.64 hours per pay period. Claimant was warned in writing that she would have to increase her production and reduce her absences on November 20, 1985 or be subject to other action. 5. On November 27, 1985, while stripping excess plastic from the registration holders, claimant felt an electric type shock run through her index finger, through her thumb, up her arm and into her shoulder. She continued to work to the end of her shift. At the end of her shift, she was asked to see Mona Ryburn the assistant supervisor. At that time, Ms. Ryburn advised claimant that she had been terminated due to poor attendance and low production. Thereafter, claimant indicated that she had hurt her hand. Ms Ryburn advised her to go to the emergency room at Lutheran. At Lutheran, claimant complained of a periodic tingling sensation and an electric shock sensation to her left hand. She reported pain in her left hand extending to left arm. The emergency room doctor examined claimant and diagnosed a left thumb and wrist sprain. 6. Prior to claimant's injury, she had a myriad of health problems. At Broadlawns in 1984 claimant was treated for a continuing urinary tract infection. Her treating physician summarized her history of peptic ulcer disease treated with Tagament. Claimant also indicated that she had had numerous surgeries including transabdominal hiatal hernia surgery, an exploratory laparotomy with an incidental appendectomy, a second laparotomy and three Caesarian sections for the birth of her children. Claimant also suffered from hematuria microscopically and macroscopically. She also had some kind of lesion in her left kidney that required removal of the kidney in 1988. Significantly, claimant was able to report these histories accurately every time her history was taken throughout the course of her treatment for her work related injury. Claimant omitted any history in connection with her left hand, left wrist, left shoulder. (Also referred to as left side.) Claimant also failed to disclose pain she had had in her neck. In fact, she denied any prior problems with her left side at the hearing. In a history given to Albert L. Clemens, M.D., on March 12, 1986 she also denied any prior problems with the left side. 7. The records from Broadlawns reflect that as early as March of 1985 claimant was complaining of mild neck pain, left shoulder pain and numbness in the left hand with radiation of pain up into the elbow. Claimant indicated that these symptoms had been present for approximately one month though she indicated that she had some problems off and on for quite some time. Upon examination the doctor diagnosed claimant's left side problems as arthritic changes in left shoulder with possible bursitis. He also felt that she had probable left carpal tunnel syndrome. 8. Claimant returned to Broadlawns on March 13, 1985, Page 5 March 29, 1985 and July 8, 1985. Each time she complained of pain in her left arm, left shoulder, left wrist and left hand. She complained of continuing numbness in her left hand. Her EMG tests were normal but the nerve conduction tests performed at the end of March indicated that she suffered from mild carpal tunnel syndrome on the left side. Additionally, during the March 29 examination, the doctor noted that claimant had significant redness of the midpalm all the way out to the ends of her fingers. Additionally, the doctor noted that her palm was sweating more than the rest of her. Finally, the doctor noted that the other possibility is that claimant could have cervical disease. He noted that claimant suffered from depression and was somewhat histrionic and a lot of her pains may be on that basis. 10. Claimant's other records from Broadlawns are also remarkable for what they don't mention. Throughout the course of claimant's treatment for her left side problems with other doctors she did not mention the constant pain in her hand, wrist, arm shoulder or neck. She returned to Broadlawns approximately 23 times between the injury date and October 10, 1990. During that time period she was seen by 11 separate doctors, had one complete physical examination in July of 1988 and another complete physical examination in May of 1990. During this time period, she discussed her left side problems twice, once in January of 1986 and a second time during her complete physical in May of 1988. During the last physical examination in May of 1990, Michael Bird, M.D., specifically examined her skin and gave particular attention to her left hand and noted that the skin was unremarkable. He also noted that her sensation to light touch was intact throughout. Her reflexes were 2+ at the biceps, knees and ankles bilaterally. Cerebellar testing revealed intact finger to finger to nose coordination. The final Broadlawns record, October 10, 1990 also indicated that claimant's fine motor functions were intact; that she had symmetrical deep tendon reflexes in the upper and lower extremities and that extremity strength was 5/5 in all extremities. There is no record of any physical deficit in connection with claimant's left side. 11. After claimant's injury she was seen by Dr. Anderson and Dr. Giddings of the Easton Clinic. When her pain did not improve, she was referred to William R. Boulden, M.D., for evaluation and treatment. Dr. Boulden first saw claimant on February 26, 1986. He felt that she had a wrist strain with superimposed Raynaud's phenomenon. He also indicated that the Raynaud's phenomenon was not related to the wrist strain she suffered at work. Dr. Boulden saw claimant three more times. Claimant's pain had not resolved and her skin began to show more changes. He referred her on to Scott B. Neff, D.O., for evaluation. 12. Dr. Neff examined claimant on February 17, 1986. He noted that the EMG studies were suspicious for carpal tunnel syndrome. After his examination he felt that claimant had a type of reflex sympathetic dystrophy or shoulder-hand syndrome associated with mild carpal tunnel syndrome and these are the result of her injury. There is Page 6 no evidence in the record that shows that Dr. Neff had the benefit of claimant's records from Broadlawns or that he was aware of any prior problems the claimant had with her left side at the time he reached this conclusion. Since Dr. Neff was unaware of this significant prior history, his statement of causation regarding claimant's hand, wrist, arm, and shoulder will be discounted. 13. Claimant was next seen by Dr. Hurd and by Dr. Clemens. Dr. Hurd found that she had left carpal tunnel syndrome. Dr. Clemens felt she had a reflex sympathetic dystrophy on the left side. Dr. Neff, at that point, concluded claimant suffered from a mixture of problems. However, since claimant definitely had carpal tunnel syndrome, Dr. Neff recommended decompression surgery. A carpal tunnel release was performed on May 2, 1986. 14. After this surgery, Dr. Neff indicated that she still suffered from full blown reflex sympathetic dystrophy in her left arm. Claimant's follow-up visits indicated that she continued to improve and that the changes in her skin on her hand and arm had abated. However, Dr. Neff referred her to Alexander Matthews, M.D., for a cervical sympathectomy and other treatments to completely resolve the reflex sympathetic dystrophy. 15. Dr. Matthews evaluated claimant and decided that it would be necessary to perform a thoracic outlet decompression to relieve thoracic outlet syndrome. This surgery was performed on September 9, 1986. When claimant was seen in follow-up, the pain and numbness in her left upper extremity was no longer present. After the initial follow-up visit, however, claimant again complained of pain and weakness in her left hand along with sweating and color changes to her hand. She also reported a new burning sensation in the left upper arm. 16. Claimant was seen in follow up by Dr. Matthews and Dr. Neff. On December 18, 1986 claimant voiced a new complaint to Dr. Neff regarding pain in her neck. Dr. Neff concluded that because of the complex nature of claimant's problems, she needed to be evaluated by doctors at the University of Iowa Hospitals. 17. In Iowa City, she first met with David Beck, M.D., an assistant professor in the Neurosurgery Outpatient clinic at the University. Claimant saw him on January 21, 1987 for evaluation. Claimant gave history of recent surgeries and described her injury. She did not mention that these conditions had existed prior to the injury at Cobbs. After his examination, Dr. Beck did not know exactly what the claimant's problems were. He indicated that she could have a collagen vascular disease or a problem with her cervical spine. 18. Dr. Beck did a further evaluation and discovered that claimant had a herniated disk in her neck. On March 24, 1987, Dr. Beck did a fusion of C5-6. After surgery, claimant indicated that the hand tingling was gone. Upon her return to the University in May of 1987, she reported Page 7 that she was without neck pain and arm pain. 19. On June 4, 1987 claimant returned to Dr. Neff again complaining of numbness and tingling. Dr. Neff noted that the left hand was still markedly cooler than the right. He also noted that her symptoms in her neck and shoulder had improved. He referred her to Lutheran for therapy for her hand. The course of therapy did not improve claimant's complaints of pain. Therapy was suspended on approximately August 25, 1987. Claimant then returned to the University Hospitals to see Dr. Beck in October. 20. Dr. Beck examined the claimant and was at a loss to explain her continuing hand problems. He indicated that she gave a very poor effort when he tested her and a lot of her difficulties could be a functional overlay. He also noted that her reflexes were intact in her upper extremities. Dr. Beck examined claimant again on November 30, 1987 and noted that her examination was really unremarkable except that she gave no effort on motor testing. He also noted that her EMG and nerve conductions studies were completely normal. 21. On January 27, 1988, Dr. Beck indicated that claimant had reached the point of maximum healing. He placed no restrictions on her, but he did not think there was a lot she could do because of the pain in her left upper extremity. Dr. Beck did not give her a permanent partial rating on this date. 22. On March 4, 1988 Tom Bower, physical therapist and Dr. Neff evaluated claimant for an impairment rating. Based on the claimant's active range of motion they concluded that claimant suffered from a five per cent (5%) impairment to her left wrist based on the range of motion loss. Mr. Bower noted that claimant gave a poor effort on the grip test and that the pinch test was low. 23. On May 24, 1988, in response to a letter from claimant's counsel, Dr. Beck indicated that claimant was suffering from fibromyalgia. He also indicated that she had reached the point of permanent healing. Finally, he concluded that as a result of the fusion and her pain, claimant had a ten percent (10%) functional impairment to her neck. 24. Claimant was seen by Dr. James Blessman on January 22, 1988 for evaluation and treatment for intractable pain in her neck and left upper extremity. He concluded that she has reflex sympathetic dystrophy. He also felt that one of the perpetuating factors in claimant's pain symptoms are secondary to her smoking behavior. 25. Claimant saw Tom Bower for a final functional capacity evaluation on February 13, 1989. The results of this evaluation are inconclusive. Claimant's subjective report of pain was inconsistent with objective observations. Claimant did not have an elevated pulse rate that suggested a person in great distress and there were no visual cues that demonstrated the claimed level of pain. Using claimant's active range of motions prevailing on February Page 8 13,1989, Dr. Neff and Tom Bower agreed that claimant had a 24 percent impairment of the body as a whole. However, this rating was qualified. They reported that: Unfortunately, we cannot be clearly sure whether or not these values are a true indication of the patient's overall present situation based on some of the inconsistencies seen. Therefore, this rating may not be a true reflection of the specific process this time. Since both Dr. Neff and Mr. Bower believe that the final impairment rating was not a true indication of the claimant's condition, and there is no other evidence to support this rating, it will be disregarded. 26. Between February 1989 to March 1990, claimant did not see a medical professional for her left side problem. In March of 1990, she was evaluated by W. Sharp, M.D., in the Vascular Surgery Clinic on March 29, 1990. Dr. Sharp concluded that she suffered from a causalgia or fibromyaligia type of pain symptom complex. He performed a variety of tests that were normal except for a nerve conduction study that showed a decreased response secondary to pain in the left arm. On March 29, 1990, claimant was seen by Patrick W. Hitchon, M.D., in the Neurosurgery Outpatient Clinic. He found that claimant had full range of motion of the shoulders and neck. Additionally, he did not find any weakness, motor or sensory deficits. There was no evidence of myelopathy and the deep tendon reflexes were brisk. Neither physician gave an opinion as to the cause of claimant's pain or its extent. 27. Both claimant and defendants hired rehabilitation specialists to evaluate the claimant. The rehabilitation reports and the testimony given at the time of hearing are in conflict. Each specialist based his conclusions on incomplete information. The only helpful information adduced was the fact that there were seven active job positions available for a one armed person at a minimum wage scale in the Des Moines labor market at the time that Cobbs' rehabilitation specialist was attempting to assist claimant. 28. Dr. Beck, one of claimant's primary treating physicians was the only physician who gave an opinion regarding the causal link between claimant's work injury and her neck pain. Dr.óBeck believes that the work injury caused the cervical disk herniation. Dr. Beck did not think that the claimant's hand and arm problem were work related. He indicated that he did not know what caused the pain in claimant's left side from a medical standpoint. He observed that none of the professionals that had seen claimant knew the cause of her hand and arm problem. He based this conclusion on the diagnosis given by himself, and his review of claimant's files, including her files from Drs. Neff, Hitchon, Boulden and others. Additionally, Dr. Beck did not think claimant's symptoms were consistent with reflex sympathetic dystrophy because her response to the ganglion block had failed. Conclusions of law Page 9 1. Whether claimant received an injury on November 27, 1985 which arose out of and in the course of her employment with Cobbs. Claimant argues that she clearly suffered an injury on November 27, 1985 in the course of her work. Defendants contend that claimant's condition existed before any occurrence at work and that she did not have an injury at work. Defendants urge that at the time she reported the injury she had just been terminated and had no other source of income other than her job, thus motivating claimant to fabricate the entire injury since she knew that she had already had problems with her left hand, wrist, arm and shoulder and her neck. Claimant has the burden of proving by a preponderance of the evidence that she received an injury on November 27, 1985 which arose out of and in the course of her employment. McDowell v. Town of Clarksville, 241 N.W.2d 904, 908 (Iowa 1976); Musselman v. Central Telephone Co., 154 N.W.2d 128, 130 (Iowa 1967). The injury must both arise out of and be in the course of the employment to bring a case within the statute. Crowe v. DeSoto Consolidated School District, 68 N.W.2d 63, 65 (Iowa 1955). See also, Sister Mary Benedict v. St. Mary's Corp., 124 N.W.2d 548, 551 (Iowa 1963); Hansen v. State of Iowa, 91 N.W.2d 555, 557 (Iowa 1958). The words "arising out of" have been interpreted to refer to the cause and origin of the injury. McClure v. Union County, 188 N.W.2d 283, 287 (Iowa 1971); Crowe, 68 N.W.2d at 65 (Iowa 1955). The words "in the course of" refer to the time, place and circumstances of the injury. McClure, 188 N.W.2d at 287; Crowe, 68 N.W.2d at 65. An injury occurs in the course of the employment when it is within the period of employment at a place the employee may reasonably be, and while the employee is doing work assigned by the employer or something incidental to it. Cedar Rapids Community School District v. Cady, 278 N.W.2d 298, 299 (Iowa 1979), McClure 188 N.W.2d at 287; Musselman, 154 N.W.2d at 130. Additionally, while claimant is not entitled to compensation for the results of a preexisting injury or disease, the mere existence at the time of a subsequent injury is not a defense. Rose v. John Deere Ottumwa Works, 76 N.W.2d 756, 760-61 (Iowa 1956). The evidence demonstrates that despite her termination, claimant did in fact suffer an injury on November 27, 1985 that arose out of and in the course of her employment. The medical reports from Lutheran indicate that claimant was not faking the injury. Additionally, the observations of the physicians at the Easton Clinic support the conclusion that something in fact happened to claimant while she was at work on November 27, 1985. Finally, while the prior history regarding claimant's left side is significant for other aspects of claimant's case, the last report of a problem is five months from the date of the injury. There is no evidence in the record that claimant was anything but asymtomatic at the time of her injury in November. 2. Whether a causal relationship exists between Page 10 claimant's claimed injuries and the claimed industrial disability. Even though claimant has shown that she suffered an injury that arose out of and in the course of her employment, she must also demonstrate by a preponderance of evidence that the injury of November 27, 1985 is causally related to the disability on which she now bases her 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 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 Claimant was successful in demonstrating a causal connection between the injury to her neck and the work injury. The claimant did not establish a causal nexus between the work injury and the complaints she had regarding her hand, wrist, arm and shoulder. Nor is there any reliable evidence that the left side problems claimant is experiencing are a natural sequale to the injury to claimant's neck. The evidence of the causal connection between the neck injury and the work injury is undisputed. Dr. Beck gave unequivocal testimony that the neck injury was related to the work injury and this injury caused a 10 percent permanent impairment. Tom Bower and Dr. Neff gave a rating of 24 percent body as a whole impairment. They assigned a 14 percent impairment rating to claimant's neck fusion. However, since Dr. Neff and Mr. Bower themselves questioned the accuracy of the rating, it cannot be relied upon in this instance. Dr. Beck's impairment rating is adopted as the correct rating. Claimant's difficulty with her left hand, wrist, arm and shoulder is more problematical. The evidence is in disarray with regard to the cause of claimant's left side and claimed continuing pain problems. Drs. Boulden, Page 11 Hitchon, Sharp, Beck and the Broadlawns doctors who both treated and examined claimant cannot identify a cause for the pain or why the claimant's hand, wrist, arm and shoulder continue to cause her problems. Both Dr. Boulden and Dr. Beck believe that claimant is suffering from a vascular disease or Raynaud's phenomenon. Dr. Sharp thinks she is suffering from causalgia or fibromyalgia. Dr. Hitchon indicated that claimant did not harbor a surgical disease. Not only can these doctors not agree on a cause for claimant's left side problems, they cannot agree on what to call the condition. Moreover, the objective evidence as recently as October 10, 1990, indicated that claimant's fine motor skills in her extremities were intact. Her extremity strength was symmetrical. Her tests done earlier in 1990 were normal and her physical in May of 1990 noted none of the deficits she complains of now. Basing an award on this type of evidence would be purely speculative and as such is inappropriate for an award of worker's compensation benefits. See, Burt v. John Deere Waterloo Tractor Works, 73 N.W.2d 732, 737-38 (Iowa 1955) (The findings of the commissioner must be based on testimony that tends to establish facts or upon proper inferences that may be drawn therefrom. The findings cannot be predicated upon conjecture, speculation or mere surmise.) Finally, in connection with claimant's pain, there is no medical evidence that supports the claimant's position that she is in such a state of constant pain that she is incapable of finding a job in the competitive labor market. The objective evidence from Drs. Beck, Hitchon, Neff and from physical therapist Bower suggest that claimant was exaggerating her pain claims. Pain that is not substantiated by clinical findings is not a substitute for impairment. Waller v. Chamberlain Manufacturing, II Iowa Industrial Commissioner Report 419, 425 (1981); Franklin W. Goodwin, Jr. v. Hicklin G.M. Power, II Iowa Industrial Commissioner Report 170, 171 (Iowa Ind. Comm'r 1981); Moreover, Dr. Blessman indicated that the claimant herself contributed to her pain level by her persistent smoking behavior. Since claimant has failed to sustain her burden linking her injury to her left side problems and this evidence regarding pain is unsubstantiated, no benefits will be awarded that are attributable to these complaints. 3. The nature and extent of any entitlement to benefits against Cobbs. Resolution of the next issue turns on the questions of when claimant claimant's healing period began, when she reached the maximum healing period for her neck, when her Page 12 entitlement to benefits began, and the nature of her disability. Since claimant has shown that her neck injury is the cause of a permanent disability resulting from a work injury, claimant is entitled to healing period benefits pursuant to Iowa Code section 85.34(1) (1991). A healing period may be characterized as that period during which there is a reasonable expectation of improvement of a disabling condition and ends when maximum medical improvement is reached. Armstrong Tire and Rubber Co. v. Kubli, 312 N.W.2d 60, (Iowa Ct. App., 1981). In discussing the concept of healing period as contemplated by Iowa Code section 85.34(1) (1991), the Kubli Court observed that recuperation refers to that condition in which healing is complete and the extent of the disability can be determined. Kubli, 312 N.W.2d at 65. The healing period begins when claimant is off work due to an injury. Iowa Code Section 85.34(1) (1991). The healing period generally terminates at the time the attending physician determines that the employee has recovered as far as possible from the effects of the injury. Kubli, 312 N.W.2d at 65. In attempting to define the termination point for a healing period, several benchmarks have been used. A claimant's healing period ends when significant medical improvement is no longer anticipated and the only thing further surgery would do is relieve pain rather than improve the individual's functional capacity. Williams v. John Deere Component Works, File No. 771072, Slip op. at 9 (Iowa Ind. Comm'r Appeal Decision, February 29, 1988). Likewise, a healing period ends when active medical treatment ceases. Lemanton v. D.C.S. Sanitation Management, Inc., File No. 910597, Slip op. at 4 (Iowa Ind. Comm'r August 3, 1990). A healing period will not be extended if the ongoing medical treatment is designed to relieve persistent complaints of pain. Phillips v. Iowa Methodist Medical Center, File No. 765826, Slip op. at 6 (Iowa Ind. Comm'r Appeal Decision, July 30, 1990). Phillips, File No. 765826, Slip op. at 6, also stands for the proposition that claimant's healing period ends when a functional impairment rating is given. When a permanent rating is given, it indicates that the physician does not expect the claimant to improve. This conclusion meets the criteria of Iowa Code Section 85.34(1) and Thomas v. William Knudson & Sons, Inc., 349 N.W.2d 124, 126 (Iowa App. 1984). The finding of a termination of healing period necessarily precludes the discussion of a running award. Hoskins v. Quaker Oats, 2 State of Iowa Industrial Commissioner Decisions, No. 1, 181, 185 (Appeal Decision 1985). In this instance, claimant's healing period began when she could not work due to her neck injury. Until the date of claimant's surgery on her neck, she was not working due to the problem with her left side. There is no other evidence in the record that suggests claimant was off work due to her neck before the surgery date. Consequently, the Page 13 surgery date for claimant's neck, March 12, 1987 is the starting point for her healing period. Claimant's healing period ended on May 24, 1988 when Dr. Beck gave claimant a 10 percent functional impairment rating for her neck fusion. Claimant failed to meet her burden of proof with regard to a running healing award since she failed to prove that her continuing complaints of pain were substantiated. Claimant is therefore entitled to 62.71 weeks of healing period benefits.(1) Since claimant has sustained an injury to her neck, she sustained an injury to the body as a whole and is entitled to industrial disability. See Iowa Code section 85.34(u)(1991). If claimant has an impairment to the body as a whole, an industrial disability has been sustained. Industrial disability was defined in Diederich v. Tri-City Railway Co., 258 N.W.2d 899, 902 (Iowa 1935) as loss of earning capacity and not a mere functional disability to be computed in the terms of percentages of the total physical and mental ability of a normal person. The essence of an earning capacity inquiry then, is not how much has the claimant been functionally impaired, but whether that impairment, in combination with the claimant's age, education, work experience, pre and post injury wages, motivation and ability to get a job within her restrictions, if any restrictions have been imposed, have caused a loss of earning capacity. Olson v. Goodyear Service Stores, 125 N.W.2d 251, 257 (Iowa 1963); Diederich v. Tri-City Railway Co., 258 N.W. 899, 902 (Iowa 1935); Peterson v. Truck Haven Cafe, Inc., 1 Iowa Industrial Comm'r Dec. No. 3, 654, 658 (1985); Christening v. Hague, Inc., 1 Iowa Industrial Comm'r Dec. No. 3, 529, 534-535 (1985). 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 the total, motivation five percent of the total, work experience thirty percent of the total etc. Neither does a rating of functional impairment directly correlate to the 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 to the body as a whole. It therefore becomes necessary for the deputy or commissioner to draw upon prior experience, and general and specialized knowledge to make the finding with regard to the degree of industrial (1). If the injury date was used as the beginning point for healing period benefits, the practical result of this conclusion would be the same. The claim is in an overpaid status as a result of the industrial disability award. If claimant were awarded healing period benefits from the date of the injury to May 24, 1988, this would equal 129.86 weeks of benefits. When this amount is added to the 100 weeks of permanent partial disability benefits awarded, claimant was overpaid by 27.211 weeks. Claimant would still take nothing from this proceeding. Page 14 disability. See, Peterson, 1 Iowa Industrial Comm'r Dec. No. 3, at 658; Christening, 1 Iowa Industrial Comm'r Dec. No. 3, at 535. In this instance, claimant was released to return to work with no restrictions for her neck injury. Her left side pain has prevented claimant from working rather than any limitations caused by her neck injury. Claimant has also shown no motivation to return to the competitive job market. However, given her age, skill level, limited manual labor experience, and her ability to compete in a competitive job market claimant has suffered some loss of earning capacity. The evidence in this case supports an award of twenty per cent (20%) or 100 weeks of benefits at the stipulated rate of $98.10 per week. The commencement date for the award is May 25, 1988. The defendants are entitled to a credit for the amounts paid in this matter which total 257.071 weeks of benefits at the rate of $98.10 per week. 4. 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. The last issue for resolution is the extent of claimant's entitlement to medical benefits. The claimant has the burden of demonstrating that the medical services obtained were related to the injury in order to have the expenses reimbursed or paid. Auxier v. Woodward State Hospital, 266 N.W.2d 139, 144 (Iowa 1978). Claimant has shown by a preponderance of the evidence that she sustained an injury while working for Cobbs. As a consequence, the necessary nexus has been established and Cobbs must provide medical benefits to claimant pursuant to Iowa Code section 85.27 (1991). With regard to the amounts, Cobbs must pay, a recent decision of the Industrial Commissioner is instructive. See, Anderson v. High Rise Construction Specialists, Inc., File No. 850096, Slip op. at 3 (Iowa Ind. Comm'r Appeal July 31, 1990). In this decision, the Industrial Commissioner identified one of the issues for appeal as the sufficiency of the proof that items contained in the hospital statement are related to the injury claimant received. The Commissioner held that where the reasonableness and the necessity of claimant's medical bills were put into issue, and claimant offered no evidence of reasonableness, the employer was not liable for the medical expenses incurred. In applying these principals to the case at hand, Cobbs agreed that the fees and expenses were reasonable and necessary even though there was no showing of apportionment between the various surgeries and the neck injury. Since reasonableness of the fees and expenses was not an issue, claimant has satisfied her burden in showing that the medical expenses were causally related to the medical condition upon which she is basing her claim. Order Page 15 THEREFORE, it is ordered: 1. Cobbs Manufacturing Co. and The Travelers shall pay to claimant healing period benefits for the period of time beginning on November 27, 1985 and ending on May 24, 1988 at the rate of ninety-eight and 10/100 dollars ($98.10). As these benefits have accrued, they shall be paid in a lump sum together with statutory interest there on pursuant to Iowa Code section 85.30 (1991). 2. Cobbs Manufacturing Co. and The Travelers shall pay to claimant permanent partial disability benefits in the amount of twenty percent (20%) with payment commencing on May 25, 1988. 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). 3. Cobbs Manufacturing Co. and The Travelers shall have a credit in the amount of two hundred fifty-seven point zero seven one (257.071) weeks against any amounts owed. 4. Since Cobbs Manufacturing Co. and The Travelers have overpaid claimant for her claim, claimant shall take nothing further from this proceeding. 5. The costs of this action shall be assessed to Cobbs Manufacturing Co. and The Travelers pursuant to rule 343 IAC 4.33. 6. Cobbs Manufacturing Co. and The Travelers shall file claim activity reports as required by rule 343 IAC 3.1. Signed and filed this ____ day of March, 1991. ________________________________ ELIZABETH A. NELSON DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr Tom Whitney Attorney at Law 900 Two Ruan Center Des Moines Iowa 50309 Mr William D Scherle Attorney at Law 803 Fleming Building Des Moines Iowa 50309 Page 1 5-1402.20; 5-1404; 5-1802; 5-1803 Filed March 27, 1991 ELIZABETH A. NELSON before the iowa industrial commissioner ____________________________________________________________ : SUSAN RHOADES, : : Claimant, : : vs. : : File No. 890149 COBBS MANUFACTURING COMPANY, : : 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. : ___________________________________________________________ 5-1402.20 Claimant was successful in proving that her neck injury was a work related injury. However, claimant did not prove a causal nexus between the problems that she experienced with her hand, wrist, arm and shoulder and a work injury. 5-1404 Defendants objected to supplying information in their briefs regarding reflex sympathetic dystrophy, one of the conditions the claimant was suffering from on the ground that the information was outside the record. The objection was overruled since argument is not considered evidence in the case. 5-1802 Claimant's healing period began with surgery on her neck. Claimant did not produce any evidence that showed she was off work as a result of her neck injury until the date of the surgery. Healing period benefits ended on the date claimant was assigned a 10% functional impairment for her neck. Page 2 5-1803 Claimant was 48 years old at the time of the hearing. She left high school after she started the 11th grade. Claimant had been in special education programs while in school. Claimant's longest employment was as a part time house cleaner during the time her children were growing up. Claimant worked at minimum wage jobs when she was working full time. Claimant lacks any motivation to return to work. Claimant was awarded 20% permanent partial disability benefits. Page 1 before the iowa industrial commissioner ____________________________________________________________ : M. J. WALSH, : : Claimant, : : vs. : : File No. 890185 SCHNEIDER NATIONAL CARRIERS,: : A P P E A L Employer, : : D E C I S I O N and : : CIGNA INSURANCE COMPANY, : : Insurance Carrier, : Defendants. : ____________________________________________________________ _____ statement of the case Claimant appeals from a ruling on motion for dismissal of claimant's cause of action based upon claimant's failure to comply with a May 1, 1991 order of a deputy industrial commissioner. Both parties filed briefs on appeal. The record on appeal consists of the agency's file in this matter. issues Claimant states the following issues on appeal: 1. The decision of the deputy was arbitrary and capricious. 2. The deputy's was ultra vires. findings of fact The agency's file reveals the following facts: January 6, 1989 An original notice and petition was filed by claimant's first attorney alleging a work-related injury on July 17, 1988. February 14, 1989 Defendants filed an answer. May 5, 1989 A second attorney filed an appearance on claimant's behalf and claimant's first attorney was allowed to withdraw. June 22, 1989 Claimant's second attorney filed an application to withdraw which was granted. July 6, 1989 A third attorney entered an appearance on claimant's behalf. Page 2 October 25, 1989 A prehearing conference was rescheduled as a result of a schedule conflict with defen- dants' attorney. March 20, 1990 Claimant filed an application for additional payment for attendance vocational rehabilitation program. March 28, 1990 Defendants filed a resistance to application for additional payment for attendance of vocational rehabilitation program. April 4, 1990 The prehearing conference was held. April 16, 1990 Claimant filed an application to amend her original notice and petition. April 30, 1990 Ruling was entered denying claimant's application for additional payments. May 29, 1990 Claimant telephoned this office and indicated that she was no longer represented by counsel and request a postponement of her prehearing conference. June 13, 1990 An order of rescheduling claimant's second prehearing conference was filed. July 31, 1990 Claimant's third attorney filed an application to withdraw which was approved. August 24, 1990 Defendants filed a motion to compel discovery. September 6, 1990 An order was entered granting claimant "twenty days in which new counsel may appear or to advise the agency, in writing, of an intention to pursue the prosecution of this matter." Claimant was ordered to supply her current address and telephone number if she intended to proceed pro se. September 17, 1990 Claimant filed a letter indicating that she intended to pursue her claim and has been attempting to obtain new counsel. She provided a current address and telephone number. Page 3 October 5, 1990 A ruling on a motion to compel was entered by this agency sustaining defendants' motion to compel discovery specifically because defendants are entitled to an unrestricted patient's waiver form and to discoverable matters. Claimant was given twenty days to comply with the order and failure to comply could result in sanctions pursuant to rule 343 IAC 4.36. October 24, 1990 Claimant filed a letter constituting a release of medical information. The release was restricted to left shoulder, left arm, left hand, left collar area, left upper back shoulder blade or any back, neck injury or disease. "Any other and all other conformities not relevant to my claim is denied." March 6, 1991 Claimant filed a letter indicating that she was without counsel and requesting a continuance of her March 22, 1991 prehearing conference. March 22, 1991 Prehearing conference held. Deputy industrial commissioner was unable to contact claimant via telephone. March 25, 1991 Prehearing order was filed ordering claimant to file a current address and telephone number within thirty days. Failure to comply with this order shall result in dismissal of claimant's claim pursuant to rule 343 IAC 4.36. March 25, 1991 Defendants filed an application for sanctions- requesting dismissal of claimant's cause of action. Asserting that claimant failed to comply with the October 5, 1990 order requiring claimant to supply an unrestricted patient waiver and to comply with defendants' discovery requests. April 1, 1991 Claimant filed a letter indicating that she was now represented by counsel. April 5, 1991 A fourth attorney filed an appearance on claimant's behalf. Claimant's attorney also filed a motion for extension of time within which to respond to defendants' motion for sanctions. Page 4 April 16, 1991 Claimant filed a letter with her new address but she indicated she has no telephone. April 19, 1991 Defendants' filed a response to claimant's motion for extension of time within which to respond to defendants' motion for sanctions. April 24, 1991 Claimant's resistance to motion for sanctions. May 1, 1991 A deputy industrial commissioner issued a ruling denying defendants' request for sanctions and ordering that claimant comply with discovery within twenty days of the signing and filing of the order. Failure to comply with this order will result in the dismissal without prejudice. July 11, 1991 Defendants filed a motion for sanctions and motion for dismissal asserting that claimant failed to fully comply with the deputy's ruling on the motion to compel. July 18, 1991 Defendants filed a reply to claimant's resistance to defendants' motion for sanctions. July 19, 1991 Claimant filed a resistance to defendants' motion for sanctions and motion for dismissal. July 24, 1991 Claimant filed a supplemental resistance to motion for dismissal/sanctions. July 30, 1991 A deputy ordered claimant's claim dismissed without prejudice as a result of claimant's disregard of all ruling and orders of this agency. applicable law Rule 343 IAC 4.36 provides: If any party to a contested case or an attorney representing such party shall fail to comply with these rules or any order of a deputy commissioner or the industrial commissioner, the deputy commissioner or industrial commissioner may dismiss the action. Such dismissal shall be without prejudice. The deputy commissioner or industrial commissioner may enter an order closing the record to further activity or evidence by any party for failure to comply with these rules or an order of Page 5 a deputy commissioner or the industrial commissioner. Conclusions of Law Claimant asserts that the deputy's order dismissing claimant's cause of action was ultra vires. Rule 343 IAC 4.36 clearly gives a deputy authority to dismiss a claim for failure to comply with ruling and orders of this agency. See also, Konz v. University of Iowa, ___ N.W.2d ___ (Iowa No. 89-1648, July 17, 1991). Next, claimant asserts that the decision of the deputy was arbitrary and capricious. In an action for judicial review of an agency action, a court may reverse, modify or grant other appropriate relief if substantial rights of claimant have been prejudice because the agency action is "unreasonable, arbitrary or capricious." Iowa Code section 17A.19(8). The real issue on appeal is whether the deputy correctly dismissed this matter because claimant failed to comply with rulings and orders of this agency. Rule 343 IAC 4.36 allows this agency to require that parties prosecute contested cases within the jurisdiction of the agency in a timely and orderly manner. In this case, it is clear from the record that claimant has failed to comply with the orders and rulings of this agency and that dismissal without prejudice is proper. On October 5, 1990 claimant was ordered to comply with discovery and to provide defendants with an unrestricted medical release. Claimant failed to comply with this order. Claimant did file a medical release, however, claimant expressly limited its applicability to specific body parts. There is no evidence that claimant provided defendants with discovery information requested in a timely matter. On March 25, 1991, defendants filed a motion for sanctions and a request for dismissal of claimant's claim on the grounds that claimant failed to comply with the October 5, 1990. On May 1, 1991, the deputy industrial commissioner's ruling on the motion stated: Claimant, it seems, has disregarded all rules and orders of this division. However, in fairness to her present attorney, claimant is provided one last 20 day opportunity to comply with the October 5, 1990 ruling on motion to compel. If claimant does not comply within this 20 day period, her case will be dismissed without prejudice, upon motion by defendants. On July 11, 1991, defendants filed another motion for sanctions and a motion to dismiss asserting that claimant again failed to comply with an order of this agency. In support of the motion to dismiss, defendants attached claimant's response to defendants' request for production of documents. Claimant's response failed to produce any documents. Rather it directed defendants to obtain the information through the releases claimant provided or stated that the information would be provided in the future. Claimant provided defendants tax returns in June 1991. Proof of service on claimant's response to defendants' request for production of documents indicates that it was Page 6 served on May 30, 1991, more than twenty days beyond the May 1, 1991 order. Claimant was warned on May 1, 1991 that she had twenty days to comply with the order of this agency and failure to comply would result in dismissal. Claimant failed to demonstrate that she complied with the May 1, 1991 order of the deputy within twenty days. Therefore, this matter should be dismissed without prejudice because claimant failed to comply with an order of a deputy industrial commissioner. WHEREFORE, the decision of the deputy is affirmed. THEREFORE, it is ordered: That this matter is dismissed without prejudice. That claimant's application for reinstatement is denied. That claimant pay all costs of this proceeding. Signed and filed this ____ day of October, 1991. ________________________________ BYRON K. ORTON INDUSTRIAL COMMISSIONER Page 7 Copies To: Mr. Thomas Mann, Jr. Attorney at Law 2901 Douglas Ave., Ste 2F Des Moines, Iowa 50310-5894 Mr. Charles E. Cutler Attorney at Law 729 Insurance Exchange Bldg. Des Moines, Iowa 50309 5-2906 Filed October 28, 1991 Byron K. Orton MAM before the iowa industrial commissioner ____________________________________________________________ : M. J. WALSH, : : Claimant, : : vs. : : File No. 890185 SCHNEIDER NATIONAL CARRIERS,: : A P P E A L Employer, : : D E C I S I O N and : : CIGNA INSURANCE COMPANY, : : Insurance Carrier, : Defendants. : ____________________________________________________________ _____ 5-2906 The deputy's order dismissing claimant's cause of action was not ultra vires. See Rule 343 IAC 4.36 and Konz v. University of Iowa, ___ N.W.2d ___ (Iowa No. 89-1648, July 17, 1991). Rule 343 IAC 4.36 allows this agency to require that parties prosecute contested cases within the jurisdiction of the agency in a timely and orderly manner. In this case, it is clear from the record that claimant has failed to comply with the orders and rulings of this agency and that dismissal without prejudice is proper.