BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
            GREG A. BAIRD,                  :
 
                                            :
 
                 Claimant,                  :
 
                                            :
 
            vs.                             :
 
                                            :       File No. 890188
 
            UNITED PARCEL SERVICE,          :
 
                                            :          A P P E A L
 
                 Employer,                  :
 
                                            :        D E C I S I O N
 
            and                             :
 
                                            :
 
            LIBERTY MUTUAL 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.
 
            
 
                                      ISSUES
 
            
 
                 The issues on appeal are:  Whether claimant has proved 
 
            a causal connection between a work-related injury and his 
 
            alleged disability and the extent of claimant's permanent 
 
            disability, if any.
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 Claimant began working for defendant employer in 
 
            December 1978.  In September and October 1988 he was working 
 
            as a pre-loader.  This job involved taking parcels weighing 
 
            one to eighty pounds from a conveyor belt to a package cart.  
 
            The latter part of September 1988 he slipped and fell at 
 
            work.  He slipped and fell again on October 28, 1988.  In 
 
            these falls he hurt his back.  He has not worked for 
 
            defendant employer since October 28, 1988.  Claimant sought 
 
            medical attention from various doctors for treatment of his 
 
            back injury.
 
            
 
                 Jack W. Brindley, an orthopedic surgeon, testified by 
 
            way of his deposition (Jt. Ex. 24), on October 30, 1989.  He 
 
            first saw claimant on November 4, 1988.  He said a Dr. 
 
            Elliott referred
 
            
 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            claimant to him.  He related the history claimant gave to 
 
            him.  Dr. Brindley understood that D. Dale Emerson, M.D., 
 
            placed a 25 pound weight limit on claimant, but Dr. Brindley 
 
            placed a 40 pound limit on claimant as of December 14, 1988 
 
            with a return-to-work release.  He understood that defendant 
 
            employer would not accept either restrictions so claimant 
 
            wasn't allowed to return to work.  He understood the company 
 
            wanted a 70 pound or more ability for the claimant to lift.  
 
            Dr. Brindley indicated claimant should also limit his 
 
            bending but he wasn't specific.  The doctor opined that 
 
            claimant's October 28, 1988 injury contributed to his 
 
            symptoms.
 
            
 
                 On the date of his testimony, Dr. Brindley did not 
 
            think surgery would benefit claimant but the doctor guarded 
 
            his opinion as things could change in the future.  He felt 
 
            claimant was truthful to him and was an energetic type of 
 
            individual.  The doctor's surgery opinion was guarded 
 
            because claimant was complaining of radicular pain and a 
 
            little weakness in his toe extensors which may indicate a 
 
            potential disc problem.  Dr. Brindley acknowledged that all 
 
            the tests performed on claimant were normal and that 
 
            claimant's six lumbar vertebrae (five are normal) were 
 
            congenital and is of no significance.  The doctor 
 
            acknowledged that claimant was doing some painting at the 
 
            time he was seeing claimant.
 
            
 
                 David J. Boarini, M.D., testified by way of his 
 
            deposition on November 29, 1989 (Jt. Ex. 8).  He saw 
 
            claimant for the first time on July 3, 1989, at the request 
 
            of defendants' attorney.  The doctor had claimant's medical 
 
            records of Dr. Emerson and Dr. Brindley mailed to him.  Dr. 
 
            Boarini said claimant told him he did not return to work 
 
            because his doctor didn't think he could lift 80 pounds, 
 
            which claimant contends the job required.  Claimant's 
 
            neurological examination was normal in all respects, as was 
 
            claimant's CT scan.  The doctor thought claimant had some 
 
            mechanical low back pain that was aggravated by claimant's 
 
            lifting.  He recommended a work hardening program to 
 
            strengthen the claimant's low back and thought claimant 
 
            would at that time have difficulty returning to a heavy 
 
            lifting job.  Although the doctor explained he had not seen 
 
            claimant during the times the other doctors saw him in 1988 
 
            after claimant's alleged injury, he opined that claimant 
 
            would be able to return to work after three to six weeks of 
 
            back strengthening program.  It appears he meant that 
 
            claimant would return to an 80 pound lifting job he had at 
 
            work.
 
            
 
                 Dr. Boarini opined claimant had no permanent 
 
            impairment.  The doctor did conclude claimant should go to a 
 
            back strengthening program and would have only released 
 
            claimant to return to a 40 pound weight restriction on July 
 
            3, 1989 when he saw claimant.  The doctor expected claimant 
 
            to have no weight lifting restrictions four to six weeks 
 
            after this July 1989 examination.  Dr. Boarini said he 
 
            understood from the claimant that defendant employer did not 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            have work that claimant could do within the weight lifting 
 
            limits of Dr. Brindley's release which was around the 40 
 
            pound weight limit.
 
            
 
                 Peter D. Wirtz, M.D., testified by way of his 
 
            deposition (Jt. Ex. 36), on November 2, 1990.  The doctor 
 
            first saw claimant on October 24, 1990 by way of a reference 
 
            to him by the defendants' attorney.  In his examination, he 
 
            found that claimant did have some tenderness in the lumbar 
 
            spine area that was subjective.  Dr. Wirtz concluded that 
 
            claimant's complaints of back difficulties were subjective 
 
            in nature and that the various type of touch tests he put 
 
            claimant through were basically normal.  The doctor further 
 
            opined that based on the physical examination and x-ray 
 
            examination, which included a neurological examination, he 
 
            found no functional condition that would restrict the 
 
            claimant.  The doctor further opined that he believed that 
 
            claimant suffered a musculoskeletal strain to his spine with 
 
            his October or November incident but nothing that would 
 
            relate to a permanent functional limitation (Jt. Ex. 36).
 
            
 
                 The doctor would not confirm whether he felt claimant 
 
            could lift in excess of 70 pound on a regular basis more 
 
            than 50 percent of the time.  Dr. Wirtz did not believe a 
 
            work hardening program would benefit claimant but suggested 
 
            a capacity evaluation would be more meaningful.  The doctor 
 
            believed claimant does have intermittent sharp pain but is 
 
            unable to find a reason why through his physical examination 
 
            (Jt. Ex. 36, p. 24).
 
            
 
                 Claimant was born in February 1956 and was 32 years old 
 
            in October 1988 when the work injury occurred.  He has 
 
            graduated from high school and has no other formal education 
 
            except for a Dale Carnegie course taken in the mid 1970's.  
 
            At the time of the hearing he was working as a self-employed 
 
            painting contractor working 10-20 hours a week.  Prior to 
 
            his work injury he had worked 20-25 hours a week at the 
 
            painting job.
 
            
 
                 Claimant was injured in an automobile accident on April 
 
            20, 1990.  That accident apparently prevented claimant from 
 
            completing a work hardening program he had started.  
 
            Claimant testified that he made several inquiries of the 
 
            employer whether he could return to work.  It was also his 
 
            testimony that he could not return to work unless he had an 
 
            80 pound lifting limit from a doctor.  Claimant's testimony 
 
            in this regards is undisputed.
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the alleged injury 
 
            actually occurred and that it arose out of and in the course 
 
            of employment.  McDowell v. Town of Clarksville, 241 N.W.2d 
 
            904 (Iowa 1976); Musselman v. Cent. Tel. Co., 261 Iowa 352, 
 
            154 N.W.2d 128 (1967).  The words "arising out of" refer to 
 
            the cause or source of the injury.  The words "in the course 
 
            of" refer to the time, place and circumstances of the 
 
            injury.  Sheerin v. Holin Co., 380 N.W.2d 415 (Iowa 1986); 
 
            McClure v. Union County, 188 N.W.2d 283 (Iowa 1971).
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury is a proximate 
 
            cause of the disability on which the claim is based.  A 
 
            cause is proximate if it is a substantial factor in bringing 
 
            about the result; it need not be the only cause.  A 
 
            preponderance of the evidence exists when the causal 
 
            connection is probable rather than merely possible.  
 
            Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa 
 
            1980); Holmes v. Bruce Motor Freight, Inc., 215 N.W.2d 296 
 
            (Iowa 1974).
 
            
 
                 The question of causal connection is essentially within 
 
            the domain of expert testimony.  The expert medical evidence 
 
            must be considered with all other evidence introduced 
 
            bearing on the causal connection between the injury and the 
 
            disability.  The weight to be given to any expert opinion is 
 
            determined by the finder of fact and may be affected by the 
 
            accuracy of the facts relied upon by the expert as well as 
 
            other surrounding circumstances.  The expert opinion may be 
 
            accepted or rejected, in whole or in part.  Sondag v. Ferris 
 
            Hardware, 220 N.W.2d 903 (Iowa 1974); Anderson v. Oscar 
 
            Mayer & Co., 217 N.W.2d 531 (Iowa 1974); Bodish v. Fischer, 
 
            Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).
 
            
 
                 Functional impairment is an element to be considered in 
 
            determining industrial disability which is the reduction of 
 
            earning capacity, but consideration must also be given to 
 
            the injured employee's age, education, qualifications, 
 
            experience and inability to engage in employment for which 
 
            the employee is fitted.  Olson v. Goodyear Serv. Stores, 255 
 
            Iowa 1112, 125 N.W.2d 251 (1963); Barton v. Nevada Poultry, 
 
            253 Iowa 285, 110 N.W.2d 660 (1961).
 
            
 
                 A finding of impairment to the body as a whole found by 
 
            a medical evaluator does not equate to industrial 
 
            disability.  Impairment and disability are not synonymous.  
 
            The degree of industrial disability can be much different 
 
            than the degree of impairment because industrial disability 
 
            references to loss of earning capacity and impairment 
 
            references to anatomical or functional abnormality or loss.  
 
            Although loss of function is to be considered and disability 
 
            can rarely be found without it, it is not so that a degree 
 
            of industrial disability is proportionally related to a 
 
            degree of impairment of bodily function.
 
            
 
                 Factors to be considered in determining industrial dis
 
            ability include the employee's medical condition prior to 
 
            the injury, immediately after the injury, and presently; the 
 
            situs of the injury, its severity and the length of the 
 
            healing period; the work experience of the employee prior to 
 
            the injury and after the injury and the potential for 
 
            rehabilitation; the employee's qualifications 
 
            intellectually, emotionally and physically; earnings prior 
 
            and subsequent to the injury; age; education; motivation; 
 
            functional impairment as a result of the injury; and 
 
            inability because of the injury to engage in employment for 
 
            which the employee is fitted.  Loss of earnings caused by a 
 
            job transfer for reasons related to the injury is also 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            relevant.  Likewise, an employer's refusal to give any sort 
 
            of work to an impaired employee may justify an award of 
 
            disability.  McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 
 
            (Iowa 1980).  These are matters which the finder of fact 
 
            considers collectively in arriving at the determination of 
 
            the degree of industrial disability.
 
            
 
                 There are no weighting guidelines that indicate how 
 
            each of the factors are to be considered.  Neither does a 
 
            rating of functional impairment directly correlate to a 
 
            degree of industrial disability to the body as a whole.  In 
 
            other words, there are no formulae which can be applied and 
 
            then added up to determine the degree of industrial 
 
            disability.  It therefore becomes necessary for the deputy 
 
            or commissioner to draw upon prior experience as well as 
 
            general and specialized knowledge to make the finding with 
 
            regard to degree of industrial disability.  See Christensen 
 
            v. Hagen, Inc., Vol. 1 No. 3 State of Iowa Industrial 
 
            Commissioner Decisions 529 (App. March 26, 1985); Peterson 
 
            v. Truck Haven Cafe, Inc., Vol. 1 No. 3 State of Iowa 
 
            Industrial Commissioner Decisions 654 (App. February 28, 
 
            1985).
 
            
 
                 Compensation for permanent partial disability shall 
 
            begin at the termination of the healing period.  
 
            Compensation shall be paid in relation to 500 weeks as the 
 
            disability bears to the body as a whole.  Iowa Code section 
 
            85.34.
 
            
 
                 The first issue to be resolved is whether claimant has 
 
            proved a causal connection between his work injury and his 
 
            alleged disability.  Defendant employer has not raised as an 
 
            issue on appeal whether claimant sustained an injury from 
 
            his employment.  Claimant sought medical treatment shortly 
 
            after the injury.  Drs. Emerson and Brindley placed lifting 
 
            restrictions on claimant.  (It appears that the lifting 
 
            restrictions placed on claimant by Dr. Emerson may also be 
 
            related to a hernia condition not in question in this 
 
            matter.)  Drs. Brindley, Boarini and Wirtz have all 
 
            indicated that claimant has some lifting
 
            
 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            restriction.  None of the doctors have removed the lifting 
 
            restrictions.  Claimant has a restriction of lifting not 
 
            more than 40-70 pounds.  While no doctor has indicated that 
 
            claimant has a permanent functional limitation, they 
 
            nonetheless have indicated lifting restrictions.  The 
 
            lifting restrictions alone would be sufficient to establish 
 
            a casual connection between the work injury and a permanent 
 
            disability.  In addition, defendant employer's refusal to 
 
            rehire claimant may justify an award of disability.  
 
            Claimant has proved a causal connection between his work 
 
            injury and a permanent disability.
 
            
 
                 The next issue to be resolved is the extent of 
 
            claimant's disability.  Claimant's disability is to the body 
 
            as a whole.  He was 32 years old at the time of the injury.  
 
            He has had a loss of income.  The defendant employer has not 
 
            offered claimant employment subsequent to the injury.  
 
            Claimant has lifting restrictions of 40-70 pounds but has 
 
            not been given a functional impairment rating.  The record 
 
            is silent as to his prior work history (other than the 
 
            part-time painting job) and his potential for vocational 
 
            rehabilitation.  When all relevant factors are considered 
 
            claimant has suffered a 30 percent industrial disability.
 
            
 
                 WHEREFORE, the decision of the deputy is affirmed.
 
            
 
                                      ORDER
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 That defendants shall pay claimant healing period 
 
            benefits at the rate of one hundred fifty-seven and 78/100 
 
            dollars ($157.78) per week for a period beginning October 
 
            28, 1988 to and including August 17, 1989.
 
            
 
                 That defendants shall pay claimant one hundred fifty 
 
            (150) weeks of permanent partial disability benefits at the 
 
            rate of one hundred fifty-seven and 78/100 dollars 
 
            ($157.78), commencing August 18, 1989.
 
            
 
                 That defendants pay claimant's medical expenses.  
 
            
 
                 That defendants shall pay accrued weekly benefits in a 
 
            lump sum and shall receive credit against the award for 
 
            weekly benefits previously paid.  
 
            
 
                 That defendants shall pay interest on benefits awarded 
 
            herein as set forth in Iowa Code section 85.30.
 
            
 
                 That defendants shall pay the costs of this matter 
 
            including transcription of the hearing and shall reimburse 
 
            claimant for the filing fee if previously paid by claimant.
 
            
 
                 That defendant shall file claim activity reports as 
 
            required by this agency pursuant to rule 343 IAC 3.1(2).
 
            
 
                 Signed and filed this ____ day of November, 1992.
 
            
 
            
 
            
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            
 
                                          
 
                                       ________________________________
 
                                                   BYRON K. ORTON
 
                                              INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. H. Edwin Detlie
 
            Attorney at Law
 
            114 N Market St.
 
            Ottumwa, IA 52501
 
            
 
            Mr. Walter F. Johnson
 
            Attorney at Law
 
            111 W Second St.
 
            P.O. Box 716
 
            Ottumwa, IA 52501
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                            5-1402.40; 5-1803
 
                                            Filed November 18, 1992
 
                                            Byron K. Orton
 
            
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                            :
 
            GREG A. BAIRD,                  :
 
                                            :
 
                 Claimant,                  :
 
                                            :
 
            vs.                             :
 
                                            :       File No. 890188
 
            UNITED PARCEL SERVICE,          :
 
                                            :          A P P E A L
 
                 Employer,                  :
 
                                            :        D E C I S I O N
 
            and                             :
 
                                            :
 
            LIBERTY MUTUAL INSURANCE        :
 
            COMPANY,                        :
 
                                            :
 
                 Insurance Carrier,         :
 
                 Defendants.                :
 
            ____________________________________________________________
 
            
 
            5-1402.40
 
            It was found that claimant has a permanent disability.  He 
 
            had lifting restrictions and defendant employer refused to 
 
            rehire.  There was no medical evidence of a functional 
 
            impairment.
 
            
 
            5-1803
 
            Thirty-two year old claimant with lifting restrictions and a 
 
            loss of income was awarded a 30 percent industrial 
 
            disability.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            GREG A. BAIRD,                :
 
                                          :
 
                 Claimant,                :
 
                                          :        File No. 890188
 
            vs.                           :
 
                                          :
 
            UNITED PARCEL SERVICE,        :     A R B I T R A T I O N
 
                                          :
 
                 Employer,                :        D E C I S I O N
 
                                          :
 
            and                           :
 
                                          :
 
            LIBERTY MUTUAL INSURANCE      :
 
            COMPANY,                      ;
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 This case came on for hearing on November 30, 1990, in 
 
            Ottumwa, Iowa.
 
            
 
                 This case was originally set for June 6, 1990, in 
 
            Ottumwa, Iowa, and was proceeding with claimant's testimony 
 
            when claimant indicated he had been in an auto accident 
 
            approximately six weeks prior to hearing.  Defendants moved 
 
            to continue the case based on this additional fact of which 
 
            they were not apprised and said motion was granted by Deputy 
 
            Industrial Commissioner David Rasey.  A transcript was made 
 
            of those proceedings up to the continuance and the parties 
 
            then proceeded with testimony from that point forward on 
 
            November 30, 1990.
 
            
 
                 Claimant is seeking healing period and permanent 
 
            partial disability benefits as a result of an alleged injury 
 
            which occurred on October 28, 1988.  The record in the 
 
            proceedings consists of the testimony of claimant and joint 
 
            exhibits 1, 6 through 36; defendants' exhibits 2, 3, 4 and 
 
            5; and claimant's exhibit A.
 
            
 
                                      issues
 
            
 
                 The issues for resolution are:
 
            
 
                 1.  Whether claimant incurred an injury which arose out 
 
            of and in the course of his employment on October 28, 1988;
 
            
 
                 2.  Whether claimant's alleged injury and disability is 
 
            causally connected to his October 28, 1988 injury;
 
            
 
                 3.  The nature and extent of claimant's disability and 
 
            entitlement to benefits;
 
            
 
                 4.  Whether claimant is entitled to 86.13 penalty 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            benefits; and
 
            
 
                 5.  The taxation of costs.
 
            
 
                                 findings of fact
 
            
 
                 The undersigned deputy having heard the testimony and 
 
            considered all the evidence, finds that:
 
            
 
                 Claimant is a 34-year-old high school graduate.  He has 
 
            no other formal education except he took a Dale Carnegie 
 
            course in or around the mid 1970's.
 
            
 
                 Claimant began working for defendant in December 1978 
 
            as a temporary helper and became full-time on February 20, 
 
            1979.  His basic job from the latter part of 1985 until 
 
            October 28, 1988, was as a pre-loader.  This job involved 
 
            taking parcels from the belt to the package cart.  The 
 
            packages weighed from one to eighty pounds and were of all 
 
            sizes.  Claimant would then arrange these packages in a UPS 
 
            van so that the driver could efficiently deliver them along 
 
            the route in the proper sequence.  Claimant indicated he was 
 
            the "pre-loader of the month" in April 1988.
 
            
 
                 Claimant testified he stepped off a belt and fell on 
 
            his back the latter part of September 1988 and that his back 
 
            kept getting worse.
 
            
 
                 Claimant said that on October 28, 1988, he slipped on 
 
            his way to the package car he was loading while carrying a 
 
            package. Approximately one-half hour before the end of his 
 
            shift on this date, claimant said he asked his supervisor if 
 
            he could see a doctor about his back.  Claimant sought 
 
            medical attention.  Claimant acknowledged he was told to 
 
            return to work by D. Dale Emerson, M.D., who recommended 
 
            claimant have hernia surgery.  Claimant then went to a Dr. 
 
            Elliott for his hernia.  Claimant indicated that Dr. Elliott 
 
            referred him to Jack W. Brindley, M.D., for back treatment.  
 
            Dr. Brindley placed claimant on a 40 pound weight lifting 
 
            limit restriction and Dr. Emerson recommended light duty.  
 
            Claimant related that when defendant employer was informed 
 
            of claimant's limitation, the employer indicated there was 
 
            no such light duty jobs available or jobs within that 
 
            restriction.  Claimant acknowledged that Dr. Brindley gave 
 
            claimant a return-to-work release on December 4, 1988, for 
 
            light duty and no lifting over 40 pounds.
 
            
 
                 Claimant was working about 20 hours per week for 
 
            defendant employer at the time of his alleged October 28, 
 
            1988 injury and was also painting on the side as a 
 
            self-employed contractor.  Claimant emphasized his health 
 
            was good prior to October 28, 1988.
 
            
 
                 Claimant said he was in an automobile accident on April 
 
            20, 1990.  He indicted he has never returned to work since 
 
            October 28, 1988.  He indicated he was authorized to go into 
 
            a work hardening program the first part of April 1990 by 
 
            defendant employer and had only gone a few times before his 
 
            automobile accident.  He said he had not returned to the 
 
            work hardening program since his accident.  Claimant 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            acknowledged that his work hardening program has been 
 
            authorized.  Claimant basically had no excuse for not 
 
            continuing this program but he left the impression his 
 
            medical bills were not being paid by defendant employer and 
 
            he did not have money to pay the bills for any continued 
 
            work hardening program.  Taking the record as a whole, it 
 
            does indicate that the medical bills were not paid as of 
 
            September 11, 1990 (Claimant's Exhibit A) and there is a 
 
            question as to whether they have been paid at this time, but 
 
            defendants have assured the undersigned and claimant in open 
 
            court that they will pay all the medical bills, if not 
 
            already paid.  There seems to have been a dispute as to 
 
            whether defendant actually received the bills, at least 
 
            prior to September 1990.
 
            
 
                 Claimant said he is currently doing painting jobs as a 
 
            self-employed contractor and is also subcontracting with his 
 
            father.  He mostly does commercial jobs.  He related his job 
 
            requires lifting one to two five gallon cans of paint, but 
 
            he emphasized he rarely lifts five gallons.  He said he also 
 
            lifts a ladder.  Claimant indicated he is currently working 
 
            10 to 20 hours per week and contends he worked an average of 
 
            20 to 25 hours per week before his alleged October 1988 
 
            injury.  Claimant contends the drop in his painting hours 
 
            was the result of not being able to lift five gallon buckets 
 
            of paint, but he also admitted he didn't seem to be getting 
 
            the paint jobs in 1989.
 
            
 
                 Claimant indicated that for the last three months he 
 
            has worked approximately 24 to 30 days and lifts between 20 
 
            and 40 pounds, but rarely 40.  Claimant acknowledged he 
 
            hasn't looked for other work but explained he would return 
 
            to defendant employer if Dr. Brindley released him to lift 
 
            70 pounds.  He said UPS has never offered him a return to 
 
            his job since his alleged October 28, 1988 injury.  Claimant 
 
            was certain that he inquired several times of several 
 
            individuals about returning to work in 1989, and possibly in 
 
            1990.  He could not name particular times or date but did 
 
            eventually name certain individuals with whom he inquired.  
 
            Some of the named individuals were in court on behalf of 
 
            defendant employer during the entire hearing.  Claimant's 
 
            testimony was rather confusing as to his recalling his 
 
            accident or accidents, but it appeared to the undersigned 
 
            that claimant is not very intelligent or educated.
 
            
 
                 On cross-examination, claimant indicated he was injured 
 
            in September 1988, when he was stepping off a conveyor belt 
 
            at defendant employer's place of business.  He said that he 
 
            never reported that to anyone, but that this is the accident 
 
            which he has alleged in his petition and for which he is in 
 
            court.  He indicated October 28, 1988 is the first time he 
 
            has gone to the doctor after the accident.  He said he 
 
            missed no time between the September 28 incident and the 
 
            October 28, 1988 incident.  Joint Exhibit 1(ss) reflects 
 
            both the October 28, 1988 and the September 1988 injuries.  
 
            Claimant said he stumbled while carrying a 60 pound package 
 
            in the package car on October 28, 1980 and walked off a 
 
            conveyor belt on September 28, 1988.  Claimant's file 
 
            contains his petition which concerns this decision and 
 
            alleges an October 28, 1988 and indicated the injury 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            occurred when claimant stumbled on the loading platform.  
 
            Claimant indicated that the petition is wrong if it 
 
            indicates he was injured on a date other than September 28, 
 
            1988.  Claimant is a union member at UPS, but acknowledged 
 
            that he has never filed a union grievance concerning getting 
 
            back to work or any reason he feels is unwarranted for not 
 
            being able to return to work.  He acknowledged that he is 
 
            still shown as an employee of UPS.  From the record, it 
 
            appears that claimant is familiar with the union process 
 
            because at one time he had the union file a protest letter 
 
            when defendant employer gave claimant a warning for 
 
            apparently negligent operation of a truck while backing up.  
 
            It appears they were questioning the company's conclusion 
 
            that the accident was avoidable.
 
            
 
                 Claimant acknowledged that he is able to do painting.  
 
            It appears to the undersigned that claimant's current 
 
            painting activity is limited by the extent of his ability to 
 
            obtain jobs but also to the extent of his motivation to 
 
            work.
 
            
 
                 It is difficult to reconcile claimant's testimony with 
 
            Joint Exhibits 1(ss), 1(uu), 1(vv).  Joint Exhibits 1(ss) 
 
            reflects two injuries (September 28, 1988 and October 28, 
 
            1988).  Joint Exhibit 1(vv) indicates the September 28, 1988 
 
            injury resulted from claimant falling to the floor and 
 
            feeling sharp pain in his lower back and right groin.  It 
 
            also indicates that Dr. Elliott was to see claimant about 
 
            hernia surgery on December 1, 1988.  Claimant also testified 
 
            that he had seen the doctor after his October 28, 1988 
 
            injury who discussed the hernia situation with him.  
 
            Claimant emphasized that the hernia problem had nothing to 
 
            do with a work injury or this October 28, 1988 injury.  (Jt. 
 
            Ex. 1(uu) reflects the October 28, 1988 injury in which 
 
            claimant indicated he injured his right side and lower back.  
 
            It also reflects that he was examined by Dr. Emerson at 
 
            Ottumwa Regional Hospital and released to work with no 
 
            restrictions and indicating that there was no cause - no 
 
            injury.  Claimant then testified that the matter before the 
 
            court involving this October 28, 1988 injury is, in fact, 
 
            the same thing as the September 28, 1988 injury.  Claimant 
 
            said that the petition is wrong if it indicates a date other 
 
            than September 28, 1988.  Claimant appeared very confused.  
 
            The undersigned believes this is attributable to claimant's 
 
            mental and educational abilities.
 
            
 
                 Claimant further confuses the record when he seems to 
 
            indicate that the October 28, 1988 date was the first time 
 
            he went to a doctor after his accident and seemed at that 
 
            time in his testimony to be referring to his September 1988 
 
            accident.  He then indicated he never reported the September 
 
            accident to anyone but later filled out an accident report 
 
            after seeing a Des Moines attorney, but he did not have any 
 
            idea who that attorney was or the name of the supervisor he 
 
            had talked with.
 
            
 
                 There is nothing in the record to indicate that 
 
            claimant was having hernia or groin problems prior to 
 
            September 28, 1988 and yet claimant did not see a doctor 
 
            until October 28, 1988, at which time the doctor talked 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            about his hernia.  It would appear that any groin injury or 
 
            hernia may have been caused by the September 28, 1988 
 
            incident and yet claimant said the hernia situation had 
 
            nothing to do with this matter before the court nor was he 
 
            contending at this time that it was a work injury.  Claimant 
 
            doesn't appear to be convinced of this taking all the 
 
            evidence as a whole.  Defendants' denial of workers' 
 
            compensation benefits may have contributed to claimant's 
 
            position.  It appears that at the same time he also 
 
            allegedly injured his low back and yet the first time he saw 
 
            the doctor even concerning that alleged situation was on 
 
            October 28, 1988.  Claimant's answer to interrogatory No. 6, 
 
            reflected in Joint Exhibit 10, pages 5 and 6, indicates 
 
            September 28, 1988 was the date of his injury and he was 
 
            injured on a conveyor belt.
 
            
 
                 Claimant's petition filed on April 11, 1989 indicated 
 
            that he injured his back on October 28, 1988, after 
 
            stumbling on a loading platform.  He indicated that he 
 
            reported this injury to the employer.  In interrogatory No. 
 
            13 of the same exhibit, claimant indicated he had no other 
 
            accidents subsequent to the accident herein.   In reviewing 
 
            the previous question and answer, it would seem that that 
 
            would be referring to the September 28, 1988 injury.  In 
 
            interrogatory No. 14, he indicates the only accident he has 
 
            had is the accident subject to this litigation.  That is 
 
            confusing as these interrogatories were signed on May 22, 
 
            1989 and the petition refers to an October 1988 injury and 
 
            yet the interrogatories seem to be reflecting a September 
 
            28, 1988 injury.  In interrogatory No. 17, it is then 
 
            reflected that claimant is referring to an October 28, 1988 
 
            injury.
 
            
 
                 Joint Exhibit 13 reflects a note of Dr. Emerson.  Dr. 
 
            Emerson's notes indicate that claimant's problems, based on 
 
            his history and findings, were nonoccupational and also 
 
            refers to claimant having a right inguinal hernia.  The 
 
            doctor's note on November 2, 1988 indicates that he 
 
            discussed these similar findings with the patient who agreed 
 
            with him.  Claimant testified that he did painting on the 
 
            side as a self-employed painter.  This doctor's notes 
 
            reflect that claimant also had been painting the day before 
 
            his alleged October 28, 1988 injury.
 
            
 
                 There is evidence that claimant apparently was having 
 
            personal problems around the same time as these alleged 
 
            injury dates which were upsetting the claimant and causing 
 
            anxiety.  Not only does Dr. Emerson's notes in the above 
 
            referred to exhibit reflect this, but Joint Exhibit 4 
 
            reflects various statements of certain employees of 
 
            defendant employer which reflect some problems claimant was 
 
            having with his employer and fellow employees.
 
            
 
                 David J. Boarini, M.D., testified by way of his 
 
            deposition on November 29, 1989 (Jt. Ex. 8).  He saw 
 
            claimant for the first time on July 3, 1989, at the request 
 
            of defendants' attorney.  The doctor had claimant's medical 
 
            records of Dr. Emerson and Dr. Brindley mailed to him.  Dr. 
 
            Boarini said claimant told him he did not return to work 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            because his doctor didn't think he could lift 80 pounds, 
 
            which claimant contends the job required.  Claimant's 
 
            neurological examination was normal in all respects, as was 
 
            claimant's CT scan.  The doctor thought claimant had some 
 
            mechanical low back pain that was aggravated by claimant's 
 
            lifting.  He recommended a work hardening program to 
 
            strengthen the claimant's low back and thought claimant 
 
            would at that time have difficulty returning to a heavy 
 
            lifting job.  Although the doctor explained he had not seen 
 
            claimant during the times the other doctors saw him in 1988 
 
            after claimant's alleged injury, he opined that claimant 
 
            would be able to return to work after three to six weeks of 
 
            back strengthening program.  This was understood to mean 
 
            that claimant would return to an 80 pound lifting job he had 
 
            at work.
 
            
 
                 Dr. Boarini opined claimant had no permanent 
 
            impairment.  The doctor did conclude claimant should go to a 
 
            back strengthening program and would have only released 
 
            claimant to return to a 40 pound weight restriction on July 
 
            3, 1989 when he saw claimant.  The doctor expected claimant 
 
            to have no weight lifting restrictions four to six weeks 
 
            after this July 1989 examination.  The undersigned finds it 
 
            is of interest that defendants did not authorize a work 
 
            hardening program for claimant until April 1990 even though 
 
            in July 1989 their own doctor suggested it.  Dr. Boarini 
 
            said he understood from the claimant that defendant employer 
 
            did not have work that claimant could do within the weight 
 
            lifting limits of Dr. Brindley's release which was around 
 
            the 40 pound weight limit.
 
            
 
                 Jack W. Brindley, an orthopedic surgeon, testified by 
 
            way of his deposition (Jt. Ex. 24), on October 30, 1989.  He 
 
            first saw claimant on November 4, 1988.  He said Dr. Elliott 
 
            referred claimant to him.  He related the history claimant 
 
            gave to him.  Dr. Brindley understood that Dr. Emerson 
 
            placed a 25 pound weight limit on claimant, but Dr. Brindley 
 
            placed a 40 pound limit on claimant as of December 14, 1988 
 
            with a return-to-work release.  He understood that defendant 
 
            employer would not accept either restrictions so claimant 
 
            wasn't allowed to return to work.  He understood the company 
 
            wanted a 70 pound or more ability for the claimant to lift.  
 
            Dr. Brindley indicated claimant should also limit his 
 
            bending but he wasn't specific.  The doctor opined that 
 
            claimant's October 28, 1988 injury contributed to his 
 
            symptoms.
 
            
 
                 On the date of his testimony, Dr. Brindley did not 
 
            think surgery would benefit claimant but the doctor guarded 
 
            his opinion as things could change in the future.  He felt 
 
            claimant was truthful to him and was an energetic type of 
 
            individual.  The doctor's surgery opinion was guarded 
 
            because claimant was complaining of radicular pain and a 
 
            little weakness in his toe extensors which may indicate a 
 
            potential disc problem.  Dr. Brindley acknowledged that all 
 
            the tests performed on claimant were normal and that 
 
            claimant's six lumbar vertebrae (five are normal) were 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            congenital and is of no significance.  The doctor 
 
            acknowledged that claimant was doing some painting at the 
 
            time he was seeing claimant.
 
            
 
                 Peter D. Wirtz, M.D., testified by way of his 
 
            deposition (Jt. Ex. 36), on November 2, 1990.  The doctor 
 
            first saw claimant on October 24, 1990 by way of a reference 
 
            to him by the defendants' attorney.  In his examination, he 
 
            found that claimant did have some tenderness in the lumbar 
 
            spine area that was subjective.  Dr. Wirtz concluded that 
 
            claimant's complaints of back difficulties were subjective 
 
            in nature and that the various type of touch tests he put 
 
            claimant through were basically normal.  The doctor further 
 
            opined that based on the physical examination and x-ray 
 
            examination, which included a neurological examination, he 
 
            found no functional condition that would restrict the 
 
            claimant.  The doctor further opined that he believed that 
 
            claimant suffered a muscuskeletal strain to his spine with 
 
            his October or November incident but nothing that would 
 
            relate to a permanent functional limitation (Jt. Ex. 36).
 
            
 
                 The doctor would not confirm whether he felt claimant 
 
            could lift in excess of 70 pound on a regular basis more 
 
            than 50 percent of the time.  Dr. Wirtz did not believe a 
 
            work hardening program would benefit claimant but suggested 
 
            a capacity evaluation would be more meaningful.  The doctor 
 
            believes claimant does have intermittent sharp pain but is 
 
            unable to find a reason why through his physical examination 
 
            (Jt. Ex. 36, p. 24).
 
            
 
                 There is obvious conflicting medical testimony.  The 
 
            undersigned has also related some confusion and difficulties 
 
            in claimant's testimony.  Claimant has the burden to prove 
 
            his case.  It was apparent that defendants have tried to 
 
            discredit claimant's testimony and inferred he was lying in 
 
            trying to file a phony claim (Jt. Ex. 9, pp. 23, 33, 34, 36 
 
            and 39-41).
 
            
 
                 At the hearing, claimant was extensively questioned as 
 
            to claimant's contact with various personnel at defendant 
 
            employer's place of business.  Although claimant's memory 
 
            was spotty at times, it is apparent claimant is not very 
 
            educated.  Claimant named various company personnel with 
 
            whom he had contact, including his desire to return to work.  
 
            Defendants' questioning left the impression that claimant is 
 
            not to be believed and was making up his testimony.  
 
            Defendants left this impression with the undersigned who 
 
            thought this impression would be satisfied through 
 
            defendants' witnesses who were in court and specifically 
 
            named and pointed to by claimant and defendants' attorney.  
 
            Defendants have raised serious questions regarding 
 
            claimant's credibility.  When the claimant rested, 
 
            defendants asked for a brief recess, at which time they were 
 
            determining as to any witnesses they would present on 
 
            defendants' behalf.  Defendants rested without putting on 
 
            any witnesses or additional testimony.  Defendants obviously 
 
            gambled on the fact that the undersigned was to believe that 
 
            claimant was not credible.  On the other hand, with the 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            credibility of claimant obviously being challenged, many of 
 
            those points that may have been in doubt in the 
 
            undersigned's mind could have been resolved by the 
 
            defendants' personnel who were specifically named by 
 
            claimant and to which defendants wanted the undersigned to 
 
            believe that claimant was either making up his testimony or 
 
            not relating any conversation with them truthfully.  
 
            Defendants' employees who were in court could have denied 
 
            claimant's testimony that was detrimental and harmful to 
 
            defendants or more likely would have to agree with 
 
            claimant's testimony.  The undersigned realizes that 
 
            claimant has the burden of proof, but, likewise, on the 
 
            issue of credibility, the undersigned is not presuming a 
 
            witness (claimant) under oath is lying, especially when 
 
            defendants had witnesses available in court and decided not 
 
            to call them.  See Crosser v. Iowa Department of Public 
 
            Safety, 240 N.W.2d 682 (1976).  Taking the testimony as a 
 
            whole, there is no reason that the undersigned would feel 
 
            that claimant is not being credible or telling the truth.
 
            
 
                 As mentioned earlier, claimant seems to be mixed up on 
 
            his dates to some extent or maybe not as consistent in his 
 
            understanding.  The undersigned believes that claimant was, 
 
            in fact, injured at work in September and/or October 1988, 
 
            both events being within a month of each other.  The 
 
            undersigned can pick a date different than that specifically 
 
            alleged by the claimant if the facts warrant the same and if 
 
            it is obvious the parties are talking about the same time 
 
            frame.  The undersigned finds that claimant did have an 
 
            incident at work on September 28, 1988 that temporarily 
 
            caused claimant some discomfort, but claimant did continue 
 
            to work.  The undersigned finds that on October 28, 1988, 
 
            when claimant was lifting a box and stumbled at work, 
 
            claimant received the actual injury on which he now bases 
 
            his claim and which is the substantial cause of claimant's 
 
            disability.  The undersigned finds that claimant did receive 
 
            an injury on October 28, 1988 that arose out of and in the 
 
            course of his employment and that this injury did cause 
 
            claimant to incur restrictions and a disability.
 
            
 
                 The record indicates as of this time that there has 
 
            been no release for claimant to return to defendant 
 
            employer's place of employment nor lifting of his current 40 
 
            pound lifting restrictions.  It is undisputed on the record 
 
            that defendant employer apparently requires claimant to have 
 
            either no lifting restrictions or at least the ability to 
 
            lift 70 pounds or more before claimant could return to work.  
 
            It appears those restrictions are still in place.
 
            
 
                 There had originally been some dispute among the 
 
            parties as to the doctors the claimant went to but this is 
 
            not an issue and wouldn't be because defendants have 
 
            basically denied liability.  Their own doctor, Dr. Boarini, 
 
            suggested in 1989 a work hardening program for claimant.  It 
 
            was not until April 1990 that defendants agreed to put 
 
            claimant into a work hardening program.  Unfortunately, due 
 
            to an April 1990 auto accident, claimant interrupted his 
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            work hardening and did not continue.  The undersigned finds 
 
            that claimant's April 1990 auto accident did not contribute 
 
            nor has caused any injury to claimant for which he now 
 
            suffers and that said injury was to a different part of 
 
            claimant's body.  Although claimant has not taken the 
 
            initiative he should have, and should have continued his 
 
            work hardening program, the undersigned understands that the 
 
            actions of defendants have been such that, as reflected in 
 
            Claimant's Exhibit A, defendants have in the past not paid 
 
            claimant's medical bills and it is obvious claimant is 
 
            having a hard enough time surviving without incurring 
 
            additional debts.  It would be questionable as to whether 
 
            claimant would be allowed to continue work hardening unless 
 
            he made some indication that he was able to pay for the 
 
            treatment, based on his credit record.  Defendants have 
 
            stated in open court that all of claimant's bills would be 
 
            paid, if not paid.
 
            
 
                 Claimant has testified that he has requested and talked 
 
            to personnel at defendant employer, pointing to one or more 
 
            of defendant employer's personnel that was in court, that he 
 
            would like to return to work but has not been called back by 
 
            defendant employer.  The evidence also indicates that 
 
            claimant is still on defendant employer's records as an 
 
            employee.  The undersigned believes the employer does not 
 
            want claimant back to work, otherwise, it would have taken 
 
            some initiative to call the claimant back, or get the 
 
            restrictions removed, or provide initially some light duty 
 
            work.  Dr. Wirtz, who examined claimant on behalf of the 
 
            defendants, found claimant needed no restrictions and yet 
 
            the record indicates that defendant employer has not 
 
            attempted to call claimant back to work and had an 
 
            opportunity in court to state their position as to why they 
 
            are refusing to call claimant back to work.  Likewise, 
 
            defendants had the opportunity and have not denied the fact 
 
            that claimant requested to be returned to work and, in fact, 
 
            personally made the request to certain people of authority 
 
            with defendant employer, one or more of whom were in court 
 
            at the hearing.
 
            
 
                 There is no medical testimony as to claimant having any 
 
            permanent impairment, yet the record shows that claimant has 
 
            a lifting restriction.  The undersigned believes that this 
 
            is a type of impairment.  Claimant did not have this 
 
            restriction before his October 28, 1988 injury and because 
 
            of this restriction is unable to return to work in the 
 
            position he had before his injury.  It is true claimant is, 
 
            on a more limited basis, painting that he was doing on the 
 
            side at the time of his October 28, 1988 injury.  He can 
 
            work at his own pace at this self-employed job and adjust 
 
            his lifting.  Claimant has not been able to return to his 
 
            job he had with defendant employer because of the lifting 
 
            restriction.
 
            
 
                 Claimant is 34 years old and a high school graduate.  
 
            He has limited skills and is continuing to use his painting 
 
            skills he was using at the time of his injury.  It is 
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
            apparent that claimant's main job and main source of income 
 
            was a job with defendant employer.  The undersigned finds 
 
            that defendant employer has refused to take claimant back 
 
            even though it is apparently keeping him as an employee on 
 
            their records.  It appears at this time to have no economic 
 
            benefit to claimant as he is receiving no income.  It may be 
 
            helping him on seniority but there is no testimony to that 
 
            fact.  It would appear that if claimant had his restrictions 
 
            removed, then claimant would be able to perform his job in 
 
            his former position with defendant employer.  If defendant 
 
            employer would listen to their most recent doctor, who 
 
            indicated there are or should be no restrictions, then it 
 
            would be logical that the defendant employer would be 
 
            calling claimant back to work.  This obviously has not been 
 
            done and does not appear it is going to be done.  The 
 
            undersigned finds that defendant employer has refused to 
 
            rehire claimant or concedes claimant has a legitimate 
 
            restriction preventing him from returning to his former job.
 
            
 
                 The undersigned believes Dr. Brindley's opinions are 
 
            the most accurate and reliable.  He treated claimant 
 
            beginning in November 1988, shortly after the October 28, 
 
            1988 accident, and was able to follow claimant over a 
 
            considerable length of time.  Dr. Boarini and Dr. Wirtz were 
 
            obviously seeing claimant for an evaluation only and 
 
            obviously spent little time with claimant.
 
            
 
                 The extent of claimant's healing period will be 
 
            discussed next.  Although defendants finally listened to one 
 
            of their doctors, Dr. Boarini, and agreed to enter claimant 
 
            in a work hardening program, claimant went to the program 
 
            meetings only a few times before he had his April 1990 
 
            accident.  Dr. Boarini had suggested a work hardening 
 
            program back in July 1989, but defendants did not send 
 
            claimant to the program at that time.
 
            
 
                 Dr. Boarini testified that when he saw claimant on July 
 
            3, 1989, at which time he had a 40 pound lifting 
 
            restriction, he indicated that through the program he 
 
            suggested claimant should be able to return to work without 
 
            any restrictions within three to six weeks after the July 3, 
 
            1989 date.  That would leave the maximum healing period as 
 
            far as Dr. Boarini is concerned to be on or around August 
 
            17, 1989.
 
            
 
                 Dr. Brindley gave claimant a release to return to work 
 
            with a 40 pound limit on December 14, 1988, but it was 
 
            obvious that that release was worthless as far as the 
 
            ability for claimant to return to employment substantially 
 
            similar to the employment for which he was engaged at the 
 
            time of his injury.
 
            
 
                 Claimant contends his healing period begins on October 
 
            28, 1988 to and including October 27, 1989, whereas 
 
            defendants contend that the healing period is three to six 
 
            weeks at the maximum if liability is found.  The undersigned 
 
            finds that taking the medical testimony along with the other 
 
            testimony as a whole, claimant's healing period began on 
 
            October 28, 1988 and ended on August 17, 1989, which amounts 
 

 
            
 
            Page  11
 
            
 
            
 
            
 
            
 
            to 42 weeks of healing period benefits.
 
            
 
                 Taking into consideration claimant's age, medical 
 
            history before and after his October 28, 1988 injury, his 
 
            work history, transferable skills, loss of income, 
 
            restrictions, education, motivation, defendants' refusal to 
 
            take rehire claimant, and all those other factors that are 
 
            to be considered in determining one's industrial disability, 
 
            the undersigned finds that claimant has a 30 percent loss of 
 
            earning capacity.
 
            
 
                 Claimant requests 86.13 penalty benefits.  The 
 
            undersigned finds that taking the facts as a whole, claimant 
 
            is not entitled to penalty benefits.  This is a close issue 
 
            but claimant has failed in his burden to prove a delay in 
 
            the commencement of benefits without reasonable or probable 
 
            cause or excuse.
 
            
 
                 As to the issue of costs, claimant has failed to set 
 
            out the costs that are in dispute.  The undersigned finds 
 
            that defendants will be paying those costs that are set out 
 
            in the Iowa Code.
 
            
 
                                conclusions of law
 
            
 
                 Claimant has the burden of proving by a preponderance 
 
            of the evidence that he received an injury on October 28, 
 
            1988, which arose out of and in the course of his 
 
            employment.  McDowell v. Town of Clarksville, 241 N.W.2d 904 
 
            (Iowa 1976); Musselman v. Central Telephone Co., 261 Iowa 
 
            352, 154 N.W.2d 128 (1967). 
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury of October 28, 
 
            1988 is causally related to the disability on which he now 
 
            bases his claim.  Bodish v. Fischer, Inc., 257 Iowa 516, 133 
 
            N.W.2d 867 (1965).  Lindahl v. L. O. Boggs, 236 Iowa 296, 18 
 
            N.W.2d 607 (1945).  A possibility is insufficient; a 
 
            probability is necessary.  Burt v. John Deere Waterloo 
 
            Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955).  The 
 
            question of causal connection is essentially within the 
 
            domain of expert testimony.  Bradshaw v. Iowa Methodist 
 
            Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). 
 
            
 
                 However, expert medical evidence must be considered 
 
            with all other evidence introduced bearing on the causal 
 
            connection.  Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion 
 
            of experts need not be couched in definite, positive or 
 
            unequivocal language.  Sondag v. Ferris Hardware, 220 N.W.2d 
 
            903 (Iowa 1974).  However, the expert opinion may be 
 
            accepted or rejected, in whole or in part, by the trier of 
 
            fact.  Id. at 907.  Further, the weight to be given to such 
 
            an opinion is for the finder of fact, and that may be 
 
            affected by the completeness of the premise given the expert 
 
            and other surrounding circumstances.  Bodish, 257 Iowa 516, 
 
            133 N.W.2d 867.  See also Musselman, 261 Iowa 352, 154 
 
            N.W.2d 128.
 
            
 
                 If claimant has an impairment to the body as a whole, 
 
            an industrial disability has been sustained.  Industrial 
 

 
            
 
            Page  12
 
            
 
            
 
            
 
            
 
            disability was defined in Diederich v. Tri-City Railway Co., 
 
            219 Iowa 587, 593, 258 N.W.2d 899, 902 (1935) as follows: 
 
            "It is therefore plain that the legislature intended the 
 
            term `disability' to mean `industrial disability' or loss of 
 
            earning capacity and not a mere `functional disability' to 
 
            be computed in the terms of percentages of the total 
 
            physical and mental ability of a normal man."
 
            
 
                 For example, a defendant employer's refusal to give any 
 
            sort of work to a claimant after he suffers his affliction 
 
            may justify an award of disability.  McSpadden v. Big Ben 
 
            Coal Co., 288 N.W.2d 181 (Iowa 1980).
 
            
 
                 Iowa Code section 85.34(1) provides that if an employee 
 
            has suffered a personal injury causing permanent partial 
 
            disability, the employer shall pay compensation for a 
 
            healing period from the day of the injury until (1) the 
 
            employee returns to work; or (2) it is medically indicated 
 
            that significant improvement from the injury is not 
 
            anticipated; or (3) until the employee is medically capable 
 
            of returning to substantially similar employment.
 
            
 
                 It is further concluded that:
 
            
 
                 Claimant incurred a low back injury on October 28, 
 
            1988, which arose out of and in the course of his 
 
            employment.
 
            
 
                 Claimant incurred a work-related injury on October 28, 
 
            1988, that caused claimant to have low back problems 
 
            resulting in a restriction of lifting no more than 40 
 
            pounds.
 
            
 
                 Claimant's 40 pound lifting restriction has resulted in 
 
            claimant being unable to return to his former employment due 
 
            to a requirement that claimant must be able to lift at least 
 
            70 pounds or more.
 
            
 
                 Defendant employer has refused to take claimant back to 
 
            his former position or any position within defendant 
 
            employer's business.
 
            
 
                 Claimant is ready and willing to return to work for 
 
            defendant employer at a position that will comply with any 
 
            work restrictions that he has.
 
            
 
                 Claimant is a credible witness.
 
            
 
                 Claimant has incurred a 30 percent loss of earning 
 
            capacity.
 
            
 
                 Claimant has incurred a healing period beginning 
 
            October 28, 1988 to and including August 17, 1989, which 
 
            amounts to 42 weeks, at the rate of $157.78 per week.
 
            
 
                 Claimant is not entitled to 86.13 penalty benefits as 
 
            there was not a delay in the commencement of benefits 
 
            without reasonable or probable cause or excuse.
 
            
 
                 That defendant has incurred a 30 percent industrial 
 

 
            
 
            Page  13
 
            
 
            
 
            
 
            
 
            disability.
 
            
 
                 Defendants shall pay the costs, pursuant to Rule 343 
 
            IAC 4.33.
 
            
 
                                      order
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 That defendants shall pay unto claimant healing period 
 
            benefits at the rate of one hundred fifty-seven and 78/100 
 
            dollars ($157.78) per week for a period beginning October 
 
            28, 1988 to and including August 17, 1989.
 
            
 
                 That defendants shall pay unto claimant one hundred 
 
            fifty (150) weeks of permanent partial disability benefits 
 
            at the rate of one hundred fifty-seven and 78/100 dollars 
 
            ($157.78), commencing August 18, 1989.
 
            
 
                 That defendants pay all of claimant's medical expenses, 
 
            as defendants assured in court that they would, if they have 
 
            not already been paid by defendants.
 
            
 
                 That defendants shall pay accrued weekly benefits in a 
 
            lump sum and shall receive credit against the award for 
 
            weekly benefits previously paid.  Defendants have paid no 
 
            weekly benefits.
 
            
 
                 That defendants shall pay interest on benefits awarded 
 
            herein as set forth in Iowa Code section 85.30.
 
            
 
                 That defendants shall pay the costs of this action, 
 
            pursuant to Rule 343 IAC 4.33.
 
            
 
                 That defendants shall file an activity report upon
 
            payment of this award as required by this agency, pursuant 
 
            to Rule 343 IAC 3.1
 
            
 
                 Signed and filed this _____ day of December, 1990.
 
            
 
            
 
                                          ______________________________
 
                                          BERNARD J. O'MALLEY
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            
 
            Copies to:
 
            
 
            Mr H Edwin Detlie
 
            Attorney at Law
 
            114 N Market St
 
            Ottumwa IA 52501
 
            
 
            Mr Walter F Johnson
 
            Attorney at Law
 
            111 W Second St
 
            P O Box 716
 
            Ottumwa IA 52501
 
            
 
                 
 

 
            
 
            Page  14
 
            
 
            
 
            
 
            
 
            
 
 
         
 
         Page   1
 
         
 
                   1100; 1108; 1802; 1803
 
                   1807; 1401; 4000
 
                   Filed December 19, 1990
 
                   Bernard J. O'Malley
 
         before the iowa industrial commissioner
 
         ____________________________________________________________
 
                                       :
 
         GREG A. BAIRD,                :
 
                                       :
 
              Claimant,                :
 
                                       :        File No. 890188
 
         vs.                           :
 
                                       :
 
         UNITED PARCEL SERVICE,        :     A R B I T R A T I O N
 
                                       :
 
              Employer,                :        D E C I S I O N
 
                                       :
 
         and                           :
 
                                       :
 
         LIBERTY MUTUAL INSURANCE      :
 
         COMPANY,                      ;
 
                                       :
 
              Insurance Carrier,       :
 
              Defendants.              :
 
         ______________________________________________________________
 
         
 
         1100; 1108; 1802; 1803
 
         Claimant awarded 30% industrial disability and healing period 
 
         benefits.  Arising out of and in the course of and causal 
 
         connection found.
 
         
 
         1807
 
         Claimant willing to return to work but has a 40 pound weight 
 
         lifting limit restriction and his former job requires ability to 
 
         lift 70 pounds or more.
 
         Defendants' lately sought doctor said no problem with claimant 
 
         and no need for weight restriction.  Defendants still refuse to 
 
         rehire claimant at any position.  McSpadden applicable.
 
         
 
         4000
 
         Iowa Code section 86.13 penalty benefits denied
 
         
 
         1401
 
         Claimant's credibility was a big question.  Defendants' 
 
         questioning of claimant inferred he was a liar and fake but 
 
         defendants, after requested recess, decided not to call any 
 
         witnesses even those in court that claimant pointed to and 
 
         referred to and who could have denied or admitted claimant's 
 
         testimony or his conversation with them.  See Crosser v. Iowa 
 
         Department of Public Safety, 240 N.W.2d 681 (1976).  Deputy found 
 
         claimant credible, which was a major consideration in the 
 
         decision.
 
         
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            PAMELA K. REISS (GARNER),     :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :         File No. 890191
 
            FARBER BAG & SUPPLY CO.,      :
 
                                          :      A R B I T R A T I O N
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            THE TRAVELERS INSURANCE CO.,  :
 
                                          :
 
                 Insurance Carrier,       :
 
                                          :
 
            and                           :
 
                                          :
 
            SECOND INJURY FUND OF IOWA,   :
 
                                          :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding in arbitration brought by Pamela 
 
            K. Reiss, against her former employer, Farber Bag & Supply 
 
            Company, and its insurance carrier, The Travelers Insurance 
 
            Company, based upon an alleged injury of September 26, 1988.  
 
            Claimant seeks compensation for permanent partial disability 
 
            and payment of medical expenses.  The primary issues to be 
 
            determined are whether she sustained an injury which arose 
 
            out of and in the course of her employment; whether any 
 
            alleged injury is a proximate cause of any temporary or 
 
            permanent disability; and, whether claimant is entitled to 
 
            recover any expenses of medical treatment which she has 
 
            incurred.  She was paid five weeks of compensation prior to 
 
            hearing at the stipulated rate of $103.35 per week.
 
            
 
                 The case was heard at Dubuque, Iowa, on November 20, 
 
            1991.  The record consists of testimony from Pamela K. 
 
            Reiss, Gary Less, Mary Reynolds, Linda Besler, David Reiss 
 
            and Arthur James Farber.  The record also contains 
 
            claimant's exhibits 1 through 19 and defendants' exhibits 1, 
 
            3, 4, 5, 6 and 7.
 
            
 
                 At the conclusion of the claimant's evidence, the 
 
            Second Injury Fund moved for dismissal.  The evidence in the 
 
            case failed to show a previous loss of one of the members or 
 
            organs identified in section 85.64.  Claimant failed to make 
 
            a prima facie case of liability against the Second Injury 
 
            Fund of Iowa.  Her claim against the Fund was dismissed with 
 
            prejudice.
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
                                 findings of fact
 
            
 
                 Having considered all the evidence received, together 
 
            with the appearance and demeanor of the witnesses, the 
 
            following findings of fact are made.
 
            
 
                 Pamela K. Reiss is a 1973 high school graduate.  She 
 
            grew up near Peosta, Iowa.  Following high school, she 
 
            worked at Kentucky Fried Chicken as a cook and cashier.  She 
 
            has performed cleaning.  She worked as a bartender and cook.  
 
            Since 1977, she has been a part-time school bus driver.
 
            
 
                 Pamela commenced her employment with Farber Bag & 
 
            Supply Company on June 27, 1988.  Pamela worked on sewing 
 
            machines for approximately one week and then moved to a job 
 
            where her primary activity was cleaning burlap bags using a 
 
            vacuum type of device referred to as a "blower."  
 
            Defendants' exhibit 6 is a photograph of the machine.  She 
 
            would hold the mouth of the bag over a spout while the 
 
            vacuum pulled the rest of the bag up into the machine and 
 
            the passage of air removed dust and debris from the bag.  
 
            Pamela began experiencing discomfort in her right hand after 
 
            performing the job for approximately a week.  Approximately 
 
            ten days later, her left hand began having similar symptoms.  
 
            When discussing the matter with coworkers, she was assured 
 
            that the symptoms were typical for someone who was starting 
 
            that job and that they would eventually go away.  Pamela's 
 
            pain did not resolve, in fact it gradually worsened.  It 
 
            progressed to the point that it would awaken her at night 
 
            and disturbed her sleep.
 
            
 
                 In early September, Pamela sought treatment from her 
 
            family doctor and was referred to Dubuque orthopaedic 
 
            surgeon Gerald L. Meester, M.D.  Prior to seeing Dr. 
 
            Meester, electromyographic tests were conducted which were 
 
            interpreted as being abnormal and indicating bilateral 
 
            carpal tunnel syndrome (claimant's exhibit 5).  Dr. Meester 
 
            first saw claimant on September 26, 1988, at which time he 
 
            diagnosed her as having bilateral carpal tunnel syndrome, 
 
            with the right hand being worse than the left (claimant's 
 
            exhibit 1, page 1).  Dr. Meester recommended surgery.  
 
            Pamela reported her condition and the fact that surgery had 
 
            been recommended to her employer Arthur James Farber.  The 
 
            employer's insurance carrier became involved and eventually 
 
            authorized the surgery.  On October 20, 1988, right carpal 
 
            tunnel release surgery was performed.  A similar surgery was 
 
            performed on claimant's left hand on October 31, 1988 
 
            (claimant's exhibit 1, page 1).  Following a relatively 
 
            uneventful course of recovery, Pamela was released to return 
 
            to work effective November 28, 1988 (claimant's exhibit 1, 
 
            page 1; claimant's exhibit 10).  On January 5, 1989, Dr. 
 
            Meester reported that claimant was doing very well, had 
 
            complete and full range of motion and normal sensation in 
 
            her hands.  He assigned an impairment rating of zero 
 
            (claimant's exhibit 1, page 2).  According to Pamela, her 
 
            hand was still tender when she returned to work on October 
 
            28, 1988.  She was assigned to perform sewing rather than 
 
            the bag cleaning job which she had previously performed.
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            
 
                 Pamela left her job at Farber Bag & Supply Company and 
 
            on May 30, 1989, commenced employment with Captive Plastics.  
 
            After working only six weeks, she was laid off for 
 
            approximately two months.  In September 1989, she was 
 
            recalled to work in the warehouse where she now functions 
 
            mostly as a forklift driver.
 
            
 
                 At a follow-up visit with Dr. Meester on October 30, 
 
            1989, Pamela related that she had continuing complaints 
 
            involving her hands.  She complained of continuing 
 
            complaints in the nature of tenderness over the palms of her 
 
            hands, a pulling sensation in her palms, diminished 
 
            sensation in her fingertips and continuing weakness.  
 
            Despite the intervening change of employment, Dr. Meester 
 
            stated in his report, "It may be that there may be enough 
 
            sensory abnormality here that this is not going to get 
 
            better ever.  I think at the present time I still consider 
 
            this a part of her original injury and problems and 
 
            apparently this has been termed W. C. [sic] [interpreted to 
 
            mean workers' compensation] and I think that is reasonable."  
 
            (Claimant's exhibit 1, page 2)
 
            
 
                 On April 4, 1990, repeat electromyographic studies were 
 
            performed which were interpreted as being normal (claimant's 
 
            exhibits 6 and 7).  Pamela was also seen at the University 
 
            of Iowa Hospitals and Clinics.  She was noted to be 
 
            improving and no surgery or other aggressive treatment was 
 
            recommended (claimant's exhibit 4).
 
            
 
                 In a report dated July 25, 1990, Dr. Meester increased 
 
            his original rating of permanent impairment to five percent 
 
            of each hand as a result of the carpal tunnel syndrome 
 
            (claimant's exhibit 1, page 3).
 
            
 
                 Pamela was evaluated by Thomas J. Hughes, M.D., who 
 
            rated her as having a five percent permanent impairment of 
 
            the body as a whole due to the condition of each hand 
 
            (claimant's exhibit 2).
 
            
 
                 Pamela performs her job at Captive Plastics to the 
 
            satisfaction of her supervisor, Mary Reynolds, who testified 
 
            at hearing.  Reynolds noted that Pamela has complained of 
 
            her wrists on occasion.  When applying for the job with 
 
            Captive Plastics, Pamela represented that she had no 
 
            physical limitations which would preclude her from 
 
            performing the work for which she was applying (defendants' 
 
            exhibit 3).  Her representation was apparently correct.  The 
 
            application indicates that she was applying for a position 
 
            as a laborer.  Pamela also continues to drive a school bus, 
 
            sharing a route with her husband, David.  She likewise 
 
            performs that job to the satisfaction of that employer.
 
            
 
                 When Pamela first saw Dr. Meester, she related that she 
 
            was employed by the Western Dubuque School District.  The 
 
            transportation director for the district, Gary G. Less, was 
 
            not aware of claimant having any problems with her hands 
 
            prior to the time of her employment with Farber Bag.  He was 
 
            aware of her surgery.  She was on a leave of absence for 
 
            approximately one year due to her work hours at Farber Bag 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            conflicting with the bus schedules.  The school district 
 
            operates approximately 80 buses and has approximately 100 
 
            employees.  Less was not aware of carpal tunnel syndrome 
 
            being a common ailment for bus drivers.
 
            
 
                 Linda Besler worked with claimant at Farber Bag & 
 
            Supply Company.  Besler was aware of claimant having 
 
            problems with her hands while they worked together.  She 
 
            confirmed that operating the blower makes a person's hands 
 
            sore.
 
            
 
                 David Reiss, claimant's husband, stated that he was 
 
            living with her prior to the time she commenced employment 
 
            with Farber Bag and that she had no hand problems prior to 
 
            commencing the employment at Farber Bag.  He stated that the 
 
            right hand complaints started in the summer of 1988 and that 
 
            they were followed shortly by left hand complaints of a 
 
            similar nature.
 
            
 
                 Arthur James Farber, owner of Farber Bag & Supply 
 
            Company, testified that the blower machine is not difficult 
 
            to operate and that many female employees have operated it 
 
            without any problems with their hands.  He stated that in 
 
            recent years it has been operated predominantly by women 
 
            rather than men.  Farber listed a number of women who had 
 
            operated the machine for long periods of time without 
 
            developing carpal tunnel syndrome.  Farber acknowledged that 
 
            another woman employee had problems with her hands while 
 
            operating the blower and was sent for chiropractic 
 
            treatments.
 
            
 
                 Upon viewing the videotapes entered into evidence, the 
 
            job of cleaning bags on the blower does not appear to be 
 
            particularly strenuous.
 
            
 
                 In obtaining treatment for her hands, claimant incurred 
 
            expenses as follows:  Medical Associates Clinic, P.C., 
 
            (Patrick R. Sterrett, M.D.) (claimant's exhibit 15) -- 
 
            $712.00.  These expenses were incurred in obtaining the 
 
            electromyographic studies.  Pamela also incurred a charge in 
 
            the amount of $35.00 with Dubuque Orthopaedic Surgeons, 
 
            P.C., (Gerald L. Meester, M.D.) for a follow-up visit for 
 
            her hands (claimant's exhibit 17).  She incurred charges in 
 
            the amount of $80.00 in obtaining a second opinion for her 
 
            hands at the University of Iowa Hospitals and Clinics 
 
            (claimant's exhibit 14).  The charges from Dr. Meester as 
 
            shown in exhibits 16 and 17 total $1,732.00.  Of that 
 
            amount, the insurance carrier in this case paid $1,670.00 
 
            and claimant herself paid $62.00.  Claimant has also 
 
            traveled a total of 500 miles in obtaining medical treatment 
 
            for her hands as shown in the attachment to the prehearing 
 
            report.
 
            
 
                 Claimant has incurred costs in the amount of $219.37 as 
 
            shown in her attachment to the prehearing report.
 
            
 
                 It is found that the most recent assessment of this 
 
            case made by Dr. Meester is correct.  He is corroborated by 
 
            Dr. Hughes.  He is contradicted by no one other than 
 
            himself.  It is found that his more recent impairment rating 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            of five percent of each hand is his best assessment rather 
 
            than the earlier rating of zero impairment.  His comments in 
 
            his notes dated October 30, 1989, (claimant's exhibit 1, 
 
            page 2), where he states that the continued symptoms were 
 
            part of the original injury are likewise found to be 
 
            correct.
 
            
 
                 Pamela Reiss has established that she did not have 
 
            symptoms in her hands prior to the time that she commenced 
 
            employment at Farber Bag & Supply Company, that the 
 
            development of hand symptoms is not unusual for persons who 
 
            operate the blower machine, that she did develop symptoms in 
 
            her hands while operating the machine and that those 
 
            symptoms were diagnosed to be bilateral carpal tunnel 
 
            syndrome.  While the work activity does not appear to be as 
 
            stressful to the hands as that often seen in other cases 
 
            where carpal tunnel syndrome has been diagnosed, it is, 
 
            however, apparent that the work did require substantial 
 
            gripping and use of the hands.  It is found that Dr. Meester 
 
            is correct when he relates the carpal tunnel syndrome to the 
 
            employment.
 
            
 
                                conclusions of law
 
            
 
                 Claimant has the burden of proving by a preponderance 
 
            of the evidence that she received an injury on September 26, 
 
            1988, which arose out of and in the course of her 
 
            employment. McDowell v. Town of Clarksville, 241 N.W.2d 904 
 
            (Iowa 1976); Musselman v. Cent. Tel. Co., 261 Iowa 352, 154 
 
            N.W.2d 128 (1967). 
 
            
 
                 Claimant's evidence of a lack of prior problems with 
 
            her hands, the onset of problems while working on the blower 
 
            at Farber Bag and the corroborating opinion of Dr. Meester 
 
            is determined to be sufficient to establish that the injury 
 
            arose out of and in the course of her employment with the 
 
            employer.  The standard of proof is probability.  Holmes v. 
 
            Bruce Motor Freight, Inc., 215 N.W.2d 296, 297 (Iowa 1974); 
 
            Giere v. Aase Haugen Homes, Inc., 259 Iowa 1065, 146 N.W.2d 
 
            911, 915 (1966).
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury of September 
 
            26, 1988, is causally related to the disability on which she 
 
            now bases her claim.  Bodish v. Fischer, Inc., 257 Iowa 516, 
 
            133 N.W.2d 867 (1965).  Lindahl v. L. O. Boggs, 236 Iowa 
 
            296, 18 N.W.2d 607 (1945).  A possibility is insufficient; a 
 
            probability is necessary.  Burt v. John Deere Waterloo 
 
            Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955).  The 
 
            question of causal connection is essentially within the 
 
            domain of expert testimony.  Bradshaw v. Iowa Methodist 
 
            Hosp., 251 Iowa 375, 101 N.W.2d 167 (1960). 
 
            
 
                 However, expert medical evidence must be considered 
 
            with all other evidence introduced bearing on the causal 
 
            connection.  Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion 
 
            of experts need not be couched in definite, positive or 
 
            unequivocal language.  Sondag v. Ferris Hardware, 220 N.W.2d 
 
            903 (Iowa 1974).  However, the expert opinion may be 
 
            accepted or rejected, in whole or in part, by the trier of 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            fact.  Id. at 907.  Further, the weight to be given to such 
 
            an opinion is for the finder of fact, and that may be 
 
            affected by the completeness of the premise given the expert 
 
            and other surrounding circumstances.  Bodish, 257 Iowa 516, 
 
            133 N.W.2d 867.  See also Musselman v. Cent. Tel. Co., 261 
 
            Iowa 352, 154 N.W.2d 128 (1967).
 
            
 
                 When Dr. Meester reported on October 30, 1989, that he 
 
            considered the continuing complaints to be part of her 
 
            original injury and that it was reasonable to term it as 
 
            workers' compensation, he essentially expressed his opinion 
 
            that the condition was work related and that the continuing 
 
            complaints were part of that original work-related injury.  
 
            That assessment having been found to be correct establishes 
 
            that the employment and carpal tunnel syndrome injury was a 
 
            proximate cause of the continuing complaints.  His rating of 
 
            a five percent disability of each hand likewise relates to 
 
            those same complaints and injury.  There is nothing in the 
 
            record which shows that the carpal tunnel syndrome condition 
 
            and disability came from claimant's bus driving activities 
 
            or that it somehow had its origin in the employment at 
 
            Captive Plastics or elsewhere.  The Captive Plastics 
 
            employment and the bus driving activities both appear to be 
 
            less stressful to the hands than the work operating the 
 
            blower at Farber Bag.  They therefore could not be expected 
 
            to have had as significant a contribution toward development 
 
            of the condition and resulting disability as the work at 
 
            Farber Bag.
 
            
 
                 It was stipulated that five weeks of benefits had been 
 
            paid to the claimant prior to hearing and that she was 
 
            seeking no additional healing period benefits.  Her only 
 
            claim was for permanent partial disability and medical 
 
            expenses.  Since she returned to work effective November 28, 
 
            1988, any entitlement to permanent partial disability 
 
            compensation was payable commencing on November 28, 1988.  
 
            Iowa Code section 85.34(2).  The healing period ended 
 
            through the return to work on November 28, 1988.
 
            
 
                 The disability which has been determined to exist by 
 
            Dr. Meester affects both of Pamela's hands.  The 
 
            compensation should therefore be computed in accordance with 
 
            Code section 85.34(2)(s).  A five percent impairment of each 
 
            hand is equivalent to a six percent impairment of the whole 
 
            person.  This entitles Pamela to recover 30 weeks of 
 
            permanent partial disability payable at the rate of $103.35 
 
            per week stipulated in the prehearing report.  The 
 
            compensation is payable commencing November 28, 1988.
 
            
 
                 Claimant also seeks to recover medical expenses 
 
            incurred obtaining treatment for her carpal tunnel syndrome.  
 
            It was stipulated in the prehearing report that the 
 
            providers of the medical services would testify that their 
 
            fees were reasonable.  It was likewise stipulated that the 
 
            providers of services would testify that the treatment was 
 
            reasonable.  Liability was the only bona fide issue in 
 
            dispute.  It having been previously determined that the 
 
            carpal tunnel syndrome was an injury which arose out of and 
 
            in the course of employment, the employer is responsible for 
 
            all treatment.  Reasonable treatment does not, however, 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            include that which is duplicative or excessive.  In that 
 
            regard, it is determined that all treatment provided by Dr. 
 
            Meester, including the electromyographic studies performed 
 
            by Dr. Sterrett are reasonable treatment.  The evaluation by 
 
            Dr. Blair is likewise a second opinion evaluation for 
 
            purposes of determining treatment.  The expenses claimant is 
 
            entitled to recover are those listed in exhibits 14, 15, 16 
 
            and 17.  Claimant's entitlement is therefore as follows:
 
            
 
                 Medical Associates Clinic, P.C.
 
                    (Dr. Sterrett)                           $  712.00
 
                 University of Iowa Hospitals and Clinics
 
                    (Dr. Blair)                                  80.00
 
                 Dubuque Orthopaedic Surgeons, P.C.
 
                    (Dr. Meester)                                97.00
 
                 Total                                       $  889.00
 
            
 
                 Claimant is also entitled to recover at the rate of 
 
            $.21 per mile for the 500 miles she traveled in obtaining 
 
            treatment as listed in the prehearing report.  The 
 
            entitlement computes to $105.00.  The total entitlement 
 
            claimant is to recover under section 85.27 is therefore 
 
            $994.00.
 
            
 
                                      order
 
            
 
                 IT IS THEREFORE ORDERED that defendants Farber Bag & 
 
            Supply Company and Travelers Insurance Company pay Pamela K. 
 
            Reiss thirty (30) weeks of compensation for permanent 
 
            partial disability at the stipulated rate of one hundred 
 
            three and 35/100 dollars ($103.35) per week payable 
 
            commencing November 28, 1988.  The entire amount thereof is 
 
            past due and owing and shall be paid to claimant in a lump 
 
            sum together with interest pursuant to section 85.30.
 
            
 
                 IT IS FURTHER ORDERED that defendants Farber Bag & 
 
            Supply Company and Travelers Insurance Company pay Pamela K. 
 
            Reiss the sum of nine hundred ninety-four and 00/100 dollars 
 
            ($994.00) under the provisions of section 85.27 of The Code.
 
            
 
                 IT IS FURTHER ORDERED that the costs of this action are 
 
            assessed against the defendants Farber Bag & Supply Company 
 
            and Travelers Insurance Company in the amount of two hundred 
 
            nineteen and 37/100 dollars ($219.37) as set forth in the 
 
            prehearing report.
 
            
 
                 IT IS FURTHER ORDERED that the claimant's claim against 
 
            the Second Injury Fund of Iowa has been dismissed with 
 
            prejudice effective November 20, 1991, as shown on the 
 
            record.
 
            
 
                 IT IS FURTHER ORDERED that defendants Farber Bag & 
 
            Supply Company and Travelers Insurance Company file claim 
 
            activity reports as requested by this agency pursuant to 
 
            rule 343 IAC 3.1.
 
            
 
                 Signed and filed this ______ day of ____________, 1992.
 
            
 
                 
 
            
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
                 
 
                 
 
                                          ______________________________
 
                                          MICHAEL G. TRIER
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Leo A. McCarthy
 
            Attorney at Law
 
            222 Fischer Building
 
            P.O. Box 239
 
            Dubuque, Iowa  52004
 
            
 
            Mr. David L. Hammer
 
            Ms. Angela C. Simon
 
            Attorneys at Law
 
            804 CyCare Plaza
 
            Dubuque, Iowa  52001
 
            
 
            Ms. Shirley Ann Steffe
 
            Assistant Attorney General
 
            Tort Claims Division
 
            Hoover State Office Building
 
            Des Moines, Iowa  50319
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                               5-1402.30; 5-1803; 2902
 
                                               3202
 
                                               Filed February 12, 1992
 
                                               MICHAEL G. TRIER
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            PAMELA K. REISS (GARNER),     :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :         File No. 890191
 
            FARBER BAG & SUPPLY CO.,      :
 
                                          :      A R B I T R A T I O N
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            THE TRAVELERS INSURANCE CO.,  :
 
                                          :
 
                 Insurance Carrier,       :
 
                                          :
 
            and                           :
 
                                          :
 
            SECOND INJURY FUND OF IOWA,   :
 
                                          :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
            5-1402.30; 5-1803
 
            Claimant proved injury arising out of and in the course of 
 
            employment (carpal tunnel syndrome) through her testimony of 
 
            the absence of prior symptoms, corroborating witness 
 
            testimony of such lack of prior symptoms, the onset of 
 
            symptoms while working for the employer in a position which 
 
            stressed the hands and the written records of the treating 
 
            orthopaedic surgeon which appeared to relate the condition 
 
            to the work, although not in a direct question and answer 
 
            format.  Claimant, with five percent permanent impairment of 
 
            each hand, awarded 30 weeks of permanent partial disability.
 
            
 
            2902; 3202
 
            The claim against the Second Injury Fund was dismissed at 
 
            the close of the claimant's evidence for lack of any 
 
            evidence showing a previous loss which would lead to Second 
 
            Injury Fund liability.