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.