Page   1
 
            
 
            
 
            
 
            
 
            
 
                     Before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                            :
 
            CATHY DeKEYREL,                 :
 
                                            :
 
                 Claimant,                  :
 
                                            :
 
            vs.                             :
 
                                            :       File No. 892048
 
            MASON & HANGER-SILAS MASON 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 COMPANY,:
 
                                            :
 
                 Insurance Carrier,         :
 
                 Defendants.                :
 
            ___________________________________________________________
 
            
 
            
 
                          STATEMENT OF THE CASE
 
            
 
                 This is a proceeding in arbitration brought by Cathy 
 
            DeKeyrel, claimant, against Mason & Hanger-Silas Mason 
 
            Company, employer (hereinafter referred to as M & H), and 
 
            The Travelers Insurance Company, insurance carrier, defen
 
            dants, for workers' compensation benefits as a result of an 
 
            alleged injury on February 1, 1988.  On January 14, 1992, a 
 
            hearing was held on claimant's petition and the matter was 
 
            considered fully submitted at the close of this hearing.
 
            
 
                 The parties have submitted a prehearing report of con
 
            tested issues and stipulations contained herein which were 
 
            approved and accepted as a part of the record of this case 
 
            at the time of hearing.  The oral testimony and written 
 
            exhibits received during the hearing are set forth in the 
 
            hearing transcript.
 
            
 
                 According to the prehearing report, the parties have 
 
            stipulated to the following matters:
 
            
 
                 1.  On February 1, 1988, claimant received an injury 
 
            arising out of and in the course of employment with M & H.
 
            
 
                 2. Claimant is seeking temporary total or healing 
 
            period benefits from May 20, 1991 through August 15, 1991 
 
            and defendants agree that she was not working at this time.  
 
            Benefits have been paid for time off work prior to 1991.
 
            
 
                 3. Claimant's rate of weekly compensation is $225.58 
 
            based upon a stipulated gross rate of $353.20, three exemp
 
            tions and single status.  (The original stipulated rate was 
 
            not consistent with the commissioner's published rate 
 
            booklet) 
 
            
 
                 4.  All requested medical benefits have been or will be 
 
            paid by defendants.
 

 
            
 
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                                      ISSUES
 
            
 
                 The only issue submitted by the parties for determina
 
            tion in this proceeding is the extent of claimant's entitle
 
            ment to disability benefits.
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 Having heard the testimony and considered all of the 
 
            evidence, the deputy industrial commissioner finds as 
 
            follows:
 
            
 
                 Claimant has worked for M & H at its ammunition plant 
 
            near Burlington, Iowa since September 1986.  Claimant con
 
            tinues to work at this plant at the current time.  During 
 
            her employment, she has always been assigned to production 
 
            labor work.  At the time of the work injury herein, claimant 
 
            had been performing a job called "subdividing" for approxi
 
            mately 14 months.  This job involved the repetitive use of 
 
            her hands and arms in the bagging of "sticks" which are 
 
            approximately the diameter of a lead pencil and one foot 
 
            long.  Plastic bags filled with these sticks are then placed 
 
            into a bucket.  When full, the bucket was placed onto a 
 
            roller conveyor behind claimant's work station.
 
            
 
                 Claimant testified that she was a fast worker and this 
 
            was not challenged by defendants in the record.  At the time 
 
            of her injury, claimant earned approximately $8.80 per hour.  
 
            Claimant currently is paid $9.60 per hour.  Despite imposi
 
            tion of permanent work restrictions, claimant returned to 
 
            work after her injury performing various jobs, including 
 
            janitor work pushing a broom, work in "jay bay" placing 
 
            small parts into a machine, her former job of subdividing, 
 
            inspection work and recently a new job of soldering.  
 
            Claimant's supervisor, during her inspection work, testified 
 
            she was performing the job well but had recently been bumped 
 
            to the soldering job.  At the time of hearing, she has been 
 
            performing this work for only a few days.
 
            
 
                 The injury herein consists of a cumulative trauma or 
 
            overuse syndrome of both of her wrists and arms occurring 
 
            over a long period of time.  However, the injury to both 
 
            wrists occurred simultaneously over the same period of time 
 
            from a single accident or injury process.  The injury is 
 
            limited to the arms and does not extent into the body as a 
 
            whole.  The parties stipulated as to the date of injury.
 
            
 
                 Claimant first began having problems with her wrists 
 
            and arms in January 1987.  This initial event ended and then 
 
            recurred in April 1987.  Then beginning in February 1988, 
 
            claimant's wrist and arm problems began again and became 
 
            chronic.  These problems continue at the present time.
 
            
 
                 Claimant was initially treated by physicians at the 
 
            field hospital at the ammunition plant for bilateral wrist 
 
            and arm pain radiating into the shoulders.  In June 1988, 
 
            she was referred for treatment to an orthopedic surgeon, 
 
            Michael W. Hendricks, M.D.  Upon a diagnosis of bilateral 
 
            carpal tunnel syndrome of the wrists and cubital tunnel syn
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            drome of the elbows, Dr. Hendricks treated claimant conser
 
            vatively at first.  However, in July 1988 he performed a 
 
            surgical carpal tunnel release of the left wrist and trans
 
            position of the ulnar nerve in the left elbow.  A few months 
 
            later he performed a release of the carpal and cubital tun
 
            nels on the right wrist and elbow.  Claimant returned to 
 
            work after recovery from these surgeries on December 12, 
 
            1988, with permanent restrictions against subdividing type 
 
            of work and against repetitive motion of the hands and arms 
 
            without rotation of jobs every two hours.
 
            
 
                 Since her return to work in December 1988, claimant 
 
            continues to experience wrist and arm pain radiating into 
 
            the shoulders and neck.  In February 1989, Dr. Hendricks 
 
            diagnosed bilateral medial epicondylitis or tennis elbow and 
 
            prescribed a splint.  Claimant also wears wrist splints at 
 
            the present time.  In January 1991, Dr. Hendricks diagnosed 
 
            early spondylosis of the cervical spine and prescribed use 
 
            of a neck collar.  At that time, claimant was complaining of 
 
            neck and low back pain with headaches along with her bilat
 
            eral arm pain.  In March 1991, Dr. Hendricks opined that 
 
            claimant suffers from a five percent permanent partial 
 
            impairment to each of her arms as a result of the bilateral 
 
            wrist and elbow problems or a total body as a whole impair
 
            ment of six percent.  Dr. Hendricks states that his rating 
 
            is based upon the AMA guidelines.
 
            
 
                 Claimant reached maximum healing in March 1991 at the 
 
            time she was rated by Dr. Hendricks.  On May 20, 1991, 
 
            claimant was compelled again to leave work as a result of 
 
            her wrist and arm injuries of February 1, 1988, upon the 
 
            advise of Dr. Hendricks.  Although this absence from work 
 
            was due to the work she was performing immediately prior to 
 
            May 20, 1991 and probably constitutes a new work injury, 
 
            this new injury was an aggravation of the prior injury of 
 
            February 1, 1988 and the resulting disability in 1991 is 
 
            causally connected to the February 1, 1988 injury.  Although 
 
            she only saw Dr. Hendricks on a couple of occasions during 
 
            this absence from work, he clearly released her from work 
 
            due to worsened symptoms from the prior bilateral carpal 
 
            tunnel and cubital problems.  Absence from work is a treat
 
            ment modality.  When she improved, claimant was released to 
 
            return to work on August 15, 1991, under the same restric
 
            tions as imposed at the time of her return to work following 
 
            the earlier February 1, 1988 injury. 
 
            
 
                 While she was off work during the summer of 1991, 
 
            claimant was evaluated by physicians at the University of 
 
            Iowa Hospitals and Clinics in May 1991.  These physicians 
 
            confirmed that claimant suffers from a cumulative trauma 
 
            disorder.  In July 1991, claimant was evaluated by a neurol
 
            ogist, Richard F. Neiman, M.D., who opined that claimant has 
 
            overuse syndrome of the left hand.
 
            
 
                 As a result of the work injury of February 1, 1988, 
 
            claimant has a five percent permanent impairment to each arm 
 
            which converts to a total body as a whole impairment of six 
 
            percent.  This finding is based upon the uncontroverted 
 
            views of Dr. Hendricks.  It is clear from the record and the 
 
            additional opinions obtained by claimant that this was an 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            overuse syndrome caused by her repetitive work at M & H.  
 
            Also, due to her injuries claimant is unable to perform 
 
            without significant pain from physical activities consisting 
 
            of repetitive use of her hands and arms.  All of her physi
 
            cians recommend that she no longer engage in factory produc
 
            tion work involving repetitive use of her hands.  In all 
 
            likelihood, these symptoms will continue if she remains in 
 
            production work.
 
            
 
                 However, despite the recommendations of her physicians, 
 
            claimant chooses to continue such work despite the pain.  
 
            She enjoys the work and its compensation.  She has a very 
 
            admirable work ethic.  Unfortunately her disability which 
 
            limits her work and her strong work ethic to continue work
 
            ing has combined to cause her emotional difficulties which 
 
            were apparent during the hearing.  These emotional difficul
 
            ties recognized by her physicians are also work-related and 
 
            probably should receive greater attention by her physicians.
 
            
 
                 There is no opinion in the record from Dr. Hendricks or 
 
            any other physician that claimant suffers permanent impair
 
            ment or injury as a result of the shoulder and neck pain.  
 
            Consequently, it could not be found that the injury of 
 
            February 1, 1988, extends beyond the arm.  In February 1991, 
 
            Michael Paul, D.O., another orthopedic surgeon, opined that 
 
            claimant's condition is thoracic outlet syndrome of the 
 
            upper mid torso rather than a cervical spine problem, appar
 
            ently disagreeing with Dr. Hendricks.  Dr. Hendricks' views 
 
            are given the greater weight due to his greater involvement 
 
            in claimant's case.  Claimant was treated and evaluated by a 
 
            chiropractor on two occasions in April and May 1991 who made 
 
            reference to back problems.  He recommended further 
 
            treatment but claimant did not return to the chiropractor.  
 
            Again, the views of Dr. Hendricks are given greater weight
 
            
 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            over those of the chiropractor.  Dr. Neiman and the physi
 
            cians at the University of Iowa support Dr. Hendricks' 
 
            views.
 
            
 
                 Finally, it could not be found that claimant suffered a 
 
            total loss of earning capacity as a result of her injury on 
 
            February 1, 1988.  Claimant is 34 years of age and has suf
 
            fered no actual loss of earnings as a result of the injury 
 
            other than her absences from work during recovery which were 
 
            compensated above.  Although it may be difficult for 
 
            claimant to continue working at M & H, she continues to do 
 
            so, even working overtime when it is available.
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                 It is not necessary that claimant prove her disability 
 
            results from a sudden unexpected traumatic event.  It is 
 
            sufficient to show that the disability developed gradually 
 
            or progressively from work activity over a period of time.  
 
            McKeever Custom Cabinets v. Smith, 379 N.W.2d 368 (Iowa 
 
            1985).  The McKeever Court also held that the date of injury 
 
            in gradual injury cases is the time when pain prevents the 
 
            employee from continuing to work.  In McKeever the injury 
 
            date coincided with the time claimant was finally compelled 
 
            to give up his job.  This date was then used by the Court to 
 
            determine rate and the timeliness of claimant's claim under 
 
            Iowa Code section 85.26 and notice under Iowa Code section 
 
            85.23.  In the case sub judice, the date of injury was moot 
 
            due to the parties' stipulation.
 
            
 
                 Claimant must establish by a preponderance of the evi
 
            dence the extent of weekly benefits for permanent disability 
 
            to which she is entitled.  As the claimant has shown that 
 
            the work injury involved a permanent impairment to two upper 
 
            extremities from a single accident, the extent of disability 
 
            is measured pursuant to Iowa Code section 85.34(2)(s).  
 
            Measurement of disability under this subsection is peculiar.
 
            
 
                 Normally, if the injury is to only an extremity, the 
 
            amount of disability is measured functionally as a percent
 
            age of loss of use which is then multiplied by the maximum 
 
            allowable weeks of compensation allowed for that scheduled 
 
            member set forth in Iowa Code sections, 85.34(2)(a-r) to 
 
            arrive at the permanent disability benefit entitlement.  
 
            These disabilities are termed a "scheduled member" disabili
 
            ties.  Barton v. Nevada Poultry Company, 253 Iowa 285, 110 
 
            N.W.2d 660 (1961).  "Loss of use" of a member is equivalent 
 
            to "loss" of the member.  Moses v. National Union C.M. Co.,  
 
            184 N.W. 746 (1922).  For all other injuries including those 
 
            to the body as a whole, the degree of permanent disability 
 
            is measured pursuant to Iowa Code section 85.34(2)(u).  
 
            Unlike scheduled member disabilities, the degree of disabil
 
            ity under this provision is not measured solely by the 
 
            extent of a functional impairment or loss of use of a body 
 
            member.  A disability to the body as a whole or an 
 
            "industrial disability" is a loss of earning capacity 
 
            resulting from the work injury.  Diederich v. Tri-City 
 
            Railway Co., 219 Iowa 587, 593, 258 N.W. 899 (1935).  A 
 
            physical impairment or  restriction on work activity may or 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            may not result in such a loss of earning capacity.  The 
 
            extent to which a work injury and a resulting medical condi
 
            tion has resulted in an industrial disability is determined 
 
            from examination of several factors.  These factors include 
 
            the employee's medical condition prior to the injury, imme
 
            diately after the injury and presently; the situs of the 
 
            injury, its severity and the length of healing period; the 
 
            work experience of the employee prior to the injury, after 
 
            the injury and potential for rehabilitation; the employee's 
 
            qualifications intellectually, emotionally and physically; 
 
            earnings prior and subsequent to the injury; age; education; 
 
            motivation; functional impairment as a result of the injury; 
 
            and inability because of the injury to engage in employment 
 
            for which the employee is fitted.  Loss of earnings caused 
 
            by a job transfer for reasons related to the injury is also 
 
            relevant.  Olson v. Goodyear Service Stores, 255 Iowa 1112, 
 
            1121, 125 N.W.2d 251, 257 (1963); Peterson v. Truck Haven 
 
            Cafe, Inc., (Appeal Decision, February 28, 1985).
 
            
 
                 Under Iowa Code section 85.34(2)(s), this agency must 
 
            first determine the extent of industrial disability or loss 
 
            of earning capacity caused by the two simultaneous injuries.  
 
            If the injury caused a loss of earning capacity that is less 
 
            than total or 100 percent, then the extent of the permanent 
 
            disability is measured only functionally as a percentage of 
 
            loss of use for each extremity which is then translated into 
 
            a percentage of the body as a whole and combined together 
 
            into one body as a whole value.  This is accomplished, as 
 
            done in this case by Dr. Hendricks, using the AMA guides.  
 
            If the industrial disability is total or there is a total 
 
            loss of earning capacity, then claimant is entitled to per
 
            manent total disability benefits under Iowa Code section 
 
            85.34(3).  See Simbro v. DeLong's Sportswear 332 N.W.2d 886 
 
            (Iowa 1983); Burgett v. Man An So Corp., 3 Ia Ind Comm Rep 
 
            38 (Appeal Decision 1982).
 
            
 
                 In the case sub judice, it was found that claimant had 
 
            not suffered a total loss of earning capacity, consequently 
 
            her entitlement to permanent disability benefits is measured 
 
            functionally.  Based upon a finding of a combined six 
 
            percent impairment to the body as a whole as a result of 
 
            permanent injury to both arms, claimant is entitled as a 
 
            matter of law to 30 weeks of permanent partial disability 
 
            benefits under Iowa Code section 85.34(2)(s) which is six 
 
            percent of the 500 weeks allowable for a simultaneous injury 
 
            to two extremities in that subsection. 
 
            
 
                 This may appear to be a rather low entitlement to per
 
            manent benefits but Dr. Hendricks' uncontroverted rating was 
 
            low.  This deputy commissioner must give weight to Dr. 
 
            Hendricks' views especially when he states that he used the 
 
            AMA guides to arrive at the rating. 
 
            
 
                 Claimant's entitlement to permanent partial disability 
 
            also entitles her to weekly benefits for healing period 
 
            under Iowa Code section 85.34 from the date of injury until 
 
            claimant returns to work; until claimant is medically 
 
            capable of returning to substantially similar work to the 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            work she was performing at the time of injury; or, until it 
 
            is indicated that significant improvement from the injury is 
 
            not anticipated, whichever occurs first.
 
            
 
                 In the case at bar, claimant was off work a second time 
 
            due to her work-related carpal tunnel and cubital tunnel arm 
 
            problems occurring after more repetitive work at M & H.  
 
            This absence was clearly precipitated by a new injury occur
 
            ring just prior to her absence on May 20, 1991.  However, 
 
            this was an aggravation injury of the February 1, 1988 
 
            injury and causally related to this prior injury and com
 
            pensable as a result of the earlier injury.  See Lawyer & 
 
            Higgs, Iowa Workers' Compensation--Law and Practice, section 
 
            4-4, pp. 23-24.  Whether or not the new injury could affect 
 
            the rate of compensation for this period of absence is moot 
 
            as the parties stipulated as to the applicable rate for the 
 
            claimed disabilities in this case.  Consequently, whether or 
 
            not you consider the absence beginning on May 20, 1991, as a 
 
            new injury or an aggravation of an old injury, the absence 
 
            is compensable at the same weekly rate.  In cumulative 
 
            trauma cases, this agency may choose an injury date in cumu
 
            lative trauma cases different than those alleged.  McCoy v. 
 
            Donaldson Company, Inc., Case No. 752670, (Appeal Decision 
 
            Filed April 28, 1989).
 
            
 
                                      ORDER
 
            
 
                 1.  Defendants shall pay to claimant thirty (30) weeks 
 
            of permanent partial disability benefits at a rate of two 
 
            hundred twenty-five and 58/l00 dollars($225.58) per week 
 
            from December 12, 1988.
 
            
 
                 2.  Defendants shall pay to claimant temporary total 
 
            disability benefits from May 20, 1991 through August 15, 
 
            1991, at the rate of two hundred twenty-five and 58/l00 
 
            dollars ($225.58) per week.
 
            
 
                 3.  Defendants shall pay accrued weekly benefits in a 
 
            lump sum and shall receive credit against this award for 
 
            benefits previously paid.
 
            
 
                 4. Defendants shall pay interest on weekly benefits 
 
            awarded herein as set forth in Iowa Code section 85.30. 
 
            
 
                 5.  Defendants shall pay the costs of this action pur
 
            suant to Rule 343 IAC 4.33 set forth in the prehearing 
 
            report, including reimbursement to claimant for any filing 
 
            fee paid in this matter.
 
            
 
                 6.  Defendants shall file activity reports on the pay
 
            ment of this award as requested by this agency pursuant to 
 
            Rule 343 IAC 3.1.
 
            
 
            
 
            
 
                 Signed and filed this ____ day of February, 1992.
 
            
 
            
 
            
 
            
 

 
            
 
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                                          ______________________________
 
                                          LARRY P. WALSHIRE
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Michael J. Schilling
 
            Attorney at Law
 
            P O Box 821
 
            205 Washington St
 
            Burlington  IA  52601
 
            
 
            Ms. Vicki L. Seeck
 
            Attorney at Law
 
            600 Union Arcade Bldg
 
            Davenport  IA  52801
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                               5-1803
 
                                               Filed February 7, 1992
 
                                               LARRY P. WALSHIRE
 
            Before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                            :
 
            CATHY DeKEYREL,                 :
 
                                            :
 
                 Claimant,                  :
 
                                            :
 
            vs.                             :
 
                                            :       File No. 892048
 
            MASON & HANGER-SILAS MASON 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 COMPANY,:
 
                                            :
 
                 Insurance Carrier,         :
 
                 Defendants.                :
 
            ___________________________________________________________
 
            
 
            
 
            
 
            5-1803
 
            
 
                 Non-precedential, extent of disability case.
 
            
 
 
            
 
            
 
            
 
            
 
            
 
            
 
                      BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            JEAN PETERSEN,                :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 892058
 
            LOUIS RICH COMPANY,           :
 
                                          :     A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            THE HARTFORD,                 :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This is a proceeding in arbitration brought by 
 
            claimant, Jean Petersen, against Louis Rich Company, 
 
            employer, and The Hartford, insurance carrier, both as 
 
            defendants.  Ms. Petersen bases her claim on a work injury 
 
            sustained on February 22, 1988.
 
            
 
                                      ISSUES
 
            
 
                 In accordance with the prehearing report, the parties 
 
            submit the following issues for resolution:
 
            
 
                 1.  The nature and extent of claimant's disability; 
 
            and,
 
            
 
                 2.  Whether claimant is entitled to medical benefits 
 
            pursuant to Iowa Code section 85.27.
 
            
 
                 The case was heard and fully submitted at Cedar Rapids, 
 
            Iowa, on June 25, 1992.  The record consists of testimony 
 
            from the claimant and Linda Riley, the assistant human 
 
            resources manager; joint exhibits A through K; and, 
 
            claimant's exhibits 1 through 4.
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 The undersigned deputy, having reviewed all of the 
 
            evidence received, finds the following facts:
 
            
 
                 At the time of the hearing, claimant was 27 years of 
 
            age.  She graduated from high school in 1983, and has had no 
 
            further training or education.
 
            
 
                 From 1983 until 1987, claimant worked as a 
 
            waitress/cook, and as a grocery store clerk and cashier.
 
            
 
                 In March of 1987, claimant began working on the 
 

 
            
 
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            production line for the defendant, Louis Rich.  Her job 
 
            required her to bend over a table located approximately two 
 
            feet from the floor.  She would grab a piece of meat, and in 
 
            approximately thirty seconds would trim off the gristle, 
 
            feathers and bones.  The trimmed meat was then placed back 
 
            on the conveyer line.
 
            
 
                 She then moved to another production line which 
 
            required her to trim two different cuts of white turkey 
 
            meat.  The job also required her to empty large buckets 
 
            filled with turkey trimmings.
 
            
 
                 Claimant began to experience physical problems when 
 
            production levels increased and she was working six days per 
 
            week.  On February 22, 1988, she felt her right shoulder 
 
            ache, her right arms felt tired, her wrists began to make 
 
            snapping noises, and her fingers were numb.
 
            
 
                 She reported to the company first aid department that 
 
            she was experiencing bilateral wrist and arm pain. Overuse 
 
            syndrome was the initial diagnosis by the company physician, 
 
            William Catalona, M.D.  The following day she continued to 
 
            complain of wrist pain and right shoulder pain.  She 
 
            received "warm pack" treatment to the shoulder, and both 
 
            wrists were wrapped (Joint Exhibit A, pages 13A and 13).  
 
            Claimant was given Advil and was sent back to the production 
 
            line with restrictions of no grasping, flexing, rotating, 
 
            reaching, pulling or pushing with the right upper extremity.  
 
            These restrictions were to be reviewed in one month (Jt. Ex. 
 
            A, p. 16).
 
            
 
                 In March of 1988, claimant requested a second opinion 
 
            and was sent to Walter Hales, M.D., who recommended she 
 
            continue with the restrictions outlined above.  He diagnosed 
 
            early symptoms of carpal tunnel syndrome, prescribed 
 
            anti-inflammatories and a wrist splint (Jt. Ex. B, p. 1).
 
            
 
                 In April of 1988, claimant moved to a different job 
 
            within the plant, a labeling position which required lifting 
 
            boxes weighing approximately 25 pounds.  Her duties worsened 
 
            her condition, and she returned to Dr. Catalona.  His 
 
            examination revealed positive Tinel's test of the right 
 
            hand.  He recommended an EMG and modified work activities.  
 
            There is no mention of shoulder pain (Jt. Ex. A, pp. 13 and 
 
            18).
 
            
 
                 Claimant returned to Dr. Hales in April of 1988 and 
 
            elected to undergo carpal tunnel release surgery, which was 
 
            performed on May 5, 1988 by Dr. Hales at the Mercy Hospital 
 
            in Cedar Rapids, Iowa (Jt. Ex. b, p. 2; Jt. Ex. F, p. 1).  
 
            After the surgery, claimant returned to the trim line and 
 
            was instructed to perform no repetitive motions.
 
            
 
                 During May and July of 1988, claimant participated in 
 
            occupational therapy.  Again, there is no mention of 
 
            shoulder pain or problems in the medical records (Jt. Ex. C, 
 
            pp. 1-2).
 
            
 
                 In July of 1988, claimant was diagnosed as having ulnar 
 
            nerve symptoms at the elbow.  Dr. Hales recommended a splint 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            after a flexion test of the elbow was positive, yet an 
 
            electrophysiological study yielded normal results (Jt. Ex. 
 
            B, pp. 1-2; Jt. Ex. G, pp. 1-2).  In September 1988, 
 
            claimant underwent surgery to release the ulnar nerve at the 
 
            right elbow (Jt. Ex. B, p. 3; Jt. Ex. F, pp. 2-3).
 
            
 
                 Claimant returned to occupational therapy in October of 
 
            1988 and continued her exercises through November 1988, when 
 
            she was transferred to the work injury rehabilitation center 
 
            (WIRC).  Notes from both the occupational therapy and the 
 
            WIRC indicate claimant's satisfactory progress.  Again, 
 
            there is no mention of shoulder pain or problems in either 
 
            set of medical records (Jt. Ex. C, pp. 3-4; Jt. Ex. E, p. 
 
            1).
 
            
 
                 Although claimant sought vocational rehabilitation with 
 
            the state of Iowa, the defendant employer was able to find 
 
            work suitable to meet claimant's work restrictions (Jt. Ex. 
 
            8, pp. 1-5).
 
            
 
                 Claimant eventually returned to work with restrictions 
 
            of no lifting of more than 5 pounds and no repetitive 
 
            movement of the right hand.  She was placed in a job called 
 
            capping casings, which consisted of stapling the casings for 
 
            the meat products.  This position did not require repetitive 
 
            motions, but after a limited time the job was redesigned and 
 
            claimant was replaced by a machine.
 
            
 
                 Claimant continued her follow-up treatment with Dr. 
 
            Hales who noted some tenosynovitis in the fingers a 
 
            condition which was eventually treated with injections.  In 
 
            October of 1989, an associate of Dr. Hales (Dr. Hawkins) 
 
            thought claimant might have a thoracic outlet syndrome, 
 
            although this problem was never formally diagnosed or 
 
            treated.  Range of motion tests performed on the neck and 
 
            right shoulder yielded normal results (Jt. Ex. D, p. 1; Jt. 
 
            Ex. B, p. 6).
 
            
 
                 In December of 1989, claimant received a 6 percent 
 
            permanent partial impairment rating due to the loss of range 
 
            of motion and some loss of grip strength in the right upper 
 
            extremity (Jt. Ex. A, p. 58; Jt. Ex. D, pp. 3-12).
 
            
 
                 In July of 1990, claimant returned to Dr. Hales for 
 
            additional follow-up treatment, and his examination revealed 
 
            some stiffness and soreness of the little and ring finger on 
 
            the right hand, but x-rays were normal.  There is no mention 
 
            of shoulder pain or shoulder problems (Jt. Ex. B, p. 8).
 
            
 
                 After claimant left the capping casings job, she was 
 
            placed in a position that required her to weigh meat, a job 
 
            she held for one month.  Then, claimant was placed in a 
 
            quality control position that required her to test meat by 
 
            placing samples in test tubes.  Claimant experienced 
 
            difficulty when removing the test tube caps.  Apparently, 
 
            the job also required claimant to use and clean a meat 
 
            grinder.  When cleaning the grinder, claimant encountered 
 
            difficulties lifting some of the heavier parts.
 
            
 
                 Claimant, on December 15, 1989, was placed on medical 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            leave because she began to have muscle spasms in her hand 
 
            and arm.
 
            
 
                 The defendants had no other jobs that fit within 
 
            claimant's work restrictions, and she was told to file for 
 
            unemployment benefits.  Claimant stated that when she left 
 
            the employment with defendants, she had muscle spasms and 
 
            pain in her right arm, right shoulder and neck.  Ultimately, 
 
            claimant was denied unemployment benefits.
 
            
 
                 She was unemployed until January of 1991, when she 
 
            secured employment with Wabash Transformers.  Claimant 
 
            started on the production line, where her job consisted of 
 
            putting terminals on lead wires.  She then started a job 
 
            testing terminals, and eventually advanced to the process 
 
            control/inspection department where she became an incoming 
 
            inspector.  As such, she compares parts shipped by vendors 
 
            to the blueprints of the parts prepared by the company.  She 
 
            is required to measure various parts, a job claimant 
 
            performs by lifting the parts with her left hand.  She 
 
            currently earns $5.32 per hour and works 40 hours per week.
 
            
 
                 At the time she left Louis Rich, she was earning $7.49 
 
            per hour.
 
            
 
                 In May 1991, claimant sought treatment from K.A. Ward, 
 
            D.C.  She received chiropractic treatments to the right 
 
            trapezius muscle.  She continued to receive treatments until 
 
            June of 1991, and upon her release was given no impairment 
 
            ratings and no restrictions (Jt. Ex. J, pp. 1-12).  Also 
 
            included in Dr. Ward's notes is a notation that indicates 
 
            that the onset of claimant's symptoms of headache, right 
 
            side neck and right side shoulder pain and upper back pain 
 
            was May 20, 1991.  The notes also state that this is an 
 
            ongoing problem (Jt. Ex. J, p. 9).
 
            
 
                 In March of 1992, claimant went to Richard Neiman, 
 
            M.D., apparently for a second opinion regarding her 
 
            permanent partial impairment, and whether she had sustained 
 
            an injury with resulting impairment to the shoulder.  His 
 
            notes indicate that the history given by claimant was that 
 
            her shoulder hurt while working for the defendant employer.  
 
            Eventually, after various testing, Dr. Neiman provided an 
 
            impairment rating as follows:  "Therefore, impairment rating 
 
            of the upper extremity regarding the shoulder would be 5%.  
 
            Impairment rating of the whole person would therefore amount 
 
            to 10% of the upper extremity." (Jt. Ex. I, p. 2).  These 
 
            figures are based on ratings to the fingers on the right 
 
            hand, the right hand and the right shoulder (Jt. Ex. I, pp. 
 
            1-3).
 
            
 
                 Dr. Neiman attempted to clarify his rating in a 
 
            subsequent letter dated June 8, 1992 (Cl. Ex. 1).
 
            
 
                         ANALYSIS AND CONCLUSIONS OF LAW
 
            
 
                 The first issue to be addressed is the nature and 
 
            extent of claimant's disability.
 
            
 
                 Claimant argues that she has sustained an injury to her 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            shoulder, which caused permanent disability and entitles her 
 
            to an evaluation of her industrial disability.
 
            
 
                 Defendants argue that claimant's injury and any 
 
            resulting impairment or disability is limited to her arm, 
 
            only, and that she is entitled to benefits as the schedule 
 
            allows.
 
            
 
                 When disability is found in the shoulder, a body as a 
 
            whole situation may exist.  Alm v. Morris Barick Cattle Co., 
 
            240 Iowa 1174, 38 N.W.2d 161 (1949).  In Nazarenus v. Oscar 
 
            Mayer & Co., II Iowa Industrial Commissioner Report 281 
 
            (App. 1982), a torn rotator cuff was found to cause 
 
            disability to the body as a whole.
 
            
 
                 The right of an employee to receive compensation for 
 
            injuries sustained is statutory. The statute conferring this 
 
            right can also fix the amount of compensation payable for 
 
            different specific injuries.  The employee is not entitled 
 
            to compensation except as the statute provides.  Soukup v. 
 
            Shores Co., 222 Iowa 272, 268 N.W. 598 (1936).
 
            
 
                 Compensation for permanent partial disability begins at 
 
            termination of the healing period.  Section 85.34(2).  
 
            Permanent partial disabilities are classified as either 
 
            scheduled or unscheduled.  A specific scheduled disability 
 
            is evaluated by the functional method; the industrial method 
 
            is used to evaluate an unscheduled disability. Simbro v. 
 
            Delong's Sportswear, 332 N.W.2d 886 (Iowa 1983); Graves v. 
 
            Eagle Iron Works, 331 N.W.2d 116 (Iowa 1983); Martin v. 
 
            Skelly Oil Co., 252 Iowa 128, 106 N.W.2d 95 (1960).
 
            
 
                 Claimant sustained a work-related injury on February 
 
            22, 1988.  Notes from the company physician and the nurse's 
 
            station show that claimant complained of pain in her 
 
            shoulder, and received treatment for the same over the next 
 
            several days.  No additional references to shoulder pain 
 
            appear in the medical records until a report from Dr. Ward 
 
            dated January of 1992 makes reference to the onset of 
 
            shoulder problems in May of 1991.  Likewise, other than 
 
            initial hot pack treatment to claimant's shoulder, there was 
 
            no treatment to the right shoulder until May of 1991.
 
            
 
                 Claimant has the burden of proving by a preponderance 
 
            of the evidence that her injury of February 22, 1988, is 
 
            causally related to any disability she may have in her 
 
            shoulder.
 
            
 
                 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).
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            
 
                 No physician involved in this case has rendered an 
 
            opinion that claimant's current shoulder problems, if any, 
 
            are related to the work injury in February of 1988.  None of 
 
            the evidence submitted would support a finding that claimant 
 
            sustained a permanent injury to her shoulder in February of 
 
            1988.
 
            
 
                 Claimant has, however, shown that she sustained a 
 
            permanent disability to the right arm.  Her treating 
 
            physician, Dr. Hales, was of the opinion that claimant 
 
            sustained a 6 percent impairment to the arm.  As a result, 
 
            she is entitled to 15 weeks of permanent partial disability 
 
            benefits beginning on January 15, 1990, the date Dr. Hales 
 
            rendered his opinion.
 
            
 
                 The next issue to be addressed is whether claimant is 
 
            entitled to medical benefits as governed by Iowa Code 
 
            section 85.27.
 
            
 
                    The employer, for all injuries compensable 
 
                 under this chapter or chapter 85A, shall furnish 
 
                 reasonable surgical, medical, dental, osteopathic, 
 
                 chiropractic, podiatric, physical rehabilitation, 
 
                 nursing, ambulance and hospital services and 
 
                 supplies therefor and shall allow reasonably 
 
                 necessary transportation expenses incurred for 
 
                 such services....
 
            
 
                    ....
 
            
 
                    For purposes of this section, the employer is 
 
                 obliged to furnish reasonable services and 
 
                 supplies to treat an injured employee, and has the 
 
                 right to choose the care.  The treatment must be 
 
                 offered promptly and be reasonably suited to treat 
 
                 the injury without undue inconvenience to the 
 
                 employee.  If the employee has reason to be 
 
                 dissatisfied with the care offered, the employee 
 
                 should communicate the basis of such 
 
                 dissatisfaction to the employer, in writing if 
 
                 requested, following which the employer and the 
 
                 employee may agree to alternate care reasonably 
 
                 suited to treat the injury.  If the employer and 
 
                 employee cannot agree on such alternate care, the 
 
                 commissioner may, upon application and reasonable 
 
                 proofs of the necessity therefor, allow and order 
 
                 other care.
 
            
 
                 From the record, it  appears that claimant did not 
 
            receive authorization to visit either Dr. Neiman or Dr. 
 
            Ward.  Both doctors treated symptoms that are not related to 
 
            claimant's claim, and therefore defendants are not liable 
 
            for payment of expenses incurred by claimant.
 
            
 
                                      ORDER
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 That defendants shall pay claimant permanent partial 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            disability benefits for fifteen (15) weeks at the rate of 
 
            two hundred four and 20/100 dollars ($204.20) per week 
 
            commencing on January 15, 1990.
 
            
 
                 That defendants shall pay interest on benefits awarded 
 
            herein as set forth in Iowa Code section 85.30.
 
            
 
                 That claimant is responsible for payment of medical 
 
            bills incurred for treatment or examinations rendered by Dr. 
 
            Neiman and Dr. Ward.
 
            
 
                 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 the costs of this action.
 
            
 
                 That defendants shall file an activity report upon 
 
            payment of this award as requested by this agency, pursuant 
 
            to rule 343 IAC 3.1.
 
            
 
                 Signed and filed this ____ day of September, 1992.
 
            
 
            
 
            
 
            
 
                                          
 
                                       ________________________________
 
                                          PATRICIA J. LANTZ
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. J. Richard Johnson
 
            Attorney at Law
 
            1715 First Ave SE
 
            P O Box 607
 
            Cedar Rapids IA 52406
 
            
 
            Mr Greg A Egbers
 
            Attorney at Law
 
            600 Union Arcade Bldg
 
            111 E third St
 
            Davenport IA 52801-1596
 
            
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                             5-1108
 
                                             Filed September 14, 1992
 
                                             Patricia J. Lantz
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            JEAN PETERSEN,                :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 892058
 
            LOUIS RICH COMPANY,           :
 
                                          :     A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            THE HARTFORD,                 :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            5-1108
 
            Claimant failed to prove by a preponderance of the evidence 
 
            that a wrist and arm injury sustained on the job caused 
 
            disability to her shoulder.
 
            
 
 
 
 
 
 
 
 
 
 
       
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
       _________________________________________________________________
 
       JEAN PETERSEN,      
 
                 
 
          Claimant,   
 
                 
 
       vs.                                 File No. 892058
 
       
 
       LOUIS RICH COMPANY,                   A P P E A L
 
          
 
          Employer,   
 
                                            D E C I S I O N
 
       and            
 
                 
 
       THE HARTFORD,       
 
                 
 
          Insurance Carrier,    
 
          Defendants.      
 
       _________________________________________________________________
 
          This case is on remand from a decision by the Iowa District 
 
       Court for Linn County which determined that dismissal of 
 
       claimant's notice of appeal was error and reinstated claimant's 
 
       appeal.
 
       
 
          The record, including the transcript of the hearing before 
 
       the deputy and all exhibits admitted into the record, has been 
 
       reviewed de novo on appeal.  The decision of the deputy filed 
 
       September 14, 1992 is affirmed and is adopted as the final agency 
 
       action in this case.
 
       
 
          Claimant shall pay the costs of the appeal, including the 
 
       preparation of the hearing transcript.
 
            
 
            Signed and filed this ____ day of November, 1994.
 
       
 
       
 
                             ________________________________
 
                                     BYRON K. ORTON
 
                                INDUSTRIAL COMMISSIONER
 
       
 
       Copies To:
 
       
 
       Mr. J. Richard Johnson
 
       Attorney at Law
 
       P.O. Box 607
 
       Cedar Rapids, Iowa 52206
 
       
 
       Mr. Greg A. Egbers
 
       Attorney at Law
 
       600 Union Arcade Bldg.
 
       111 East Third St.
 
       Davenport, Iowa 52801-1596
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                         5-1108
 
                                         Filed November 22, 1994
 
                                         Byron K. Orton
 
                         
 
                   BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
       _________________________________________________________________
 
                 
 
       JEAN PETERSEN,      
 
                 
 
          Claimant,   
 
                 
 
       vs.           
 
                                            File No. 892058
 
       LOUIS RICH COMPANY,      
 
                                             A P P E A L
 
          Employer,   
 
                                           D E C I S I O N
 
       and            
 
                 
 
       THE HARTFORD,       
 
                 
 
          Insurance Carrier,    
 
          Defendants.      
 
       _________________________________________________________________
 
       5-1108
 
       
 
          Claimant failed to prove by a preponderance of the evidence 
 
       that a wrist and arm injury sustained on the job caused 
 
       disability to her shoulder.
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            KEVIN D HOYT,                 :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 892089
 
            CLARINDA EXCAVATING,          :
 
                                          :  A R B I T R A T I O N
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            ROYAL INSURANCE,              :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding in arbitration brought by Kevin D. 
 
            Hoyt, claimant, against Clarinda Excavating, employer, and 
 
            Royal Insurance, insurance carrier, defendants, to recover 
 
            benefits under the Iowa Workers' Compensation Act as a 
 
            result of an injury sustained on May 18, 1988.  This matter 
 
            came on for hearing before the undersigned deputy industrial 
 
            commissioner on February 16, 1993, in Des Moines, Iowa.  The 
 
            record was considered fully submitted at the close of the 
 
            hearing.  The claimant was present and testified.  The 
 
            documentary evidence identified in the record consists of 
 
            joint exhibits 1 through 32.
 
            
 
                                      issues
 
            
 
                 Pursuant to the hearing report and order dated February 
 
            16, 1993, the parties have presented the following issues 
 
            for resolution:
 
            
 
                 1.  Whether claimant is entitled to temporary 
 
            total/healing period benefits from May 23, 1988 through July 
 
            11, 1988 and from November 28, 1988 through February 13, 
 
            1989:
 
            
 
                 2.  Whether claimant's injury on May 18, 1988, is a 
 
            cause of temporary and permanent disability; and
 
            
 
                 3.  Claimant's entitlement to medical expenses under 
 
            Iowa Code section 85.27.
 
            
 
                                findings of fact
 
            
 
                 The undersigned has carefully considered all the 
 
            testimony given at the hearing, arguments made, evidence 
 
            contained in the exhibits herein, and makes the following 
 
            findings:
 
            
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
                 Claimant was born on January 17, 1963, and completed 
 
            the eleventh grade of school in 1982.  He obtained his GED 
 
            certificate in July 1989.  He has worked at various times as 
 
            a laborer, production line worker, truck/trailer washer, 
 
            excavator, furniture/appliance deliverer, and truck driver.  
 
            
 
                 He commenced working for employer in 1988.  On May 18, 
 
            1988, he was injured in an excavation cave-in accident and 
 
            injured his back.  Claimant testified that the other workers 
 
            dug him out with shovels and transported him to the company 
 
            treatment office.  He requested ambulance service to the 
 
            emergency room, but employer refused.  He returned to work 
 
            and completed and eight-hour day.  The next day, his mother 
 
            took him to see David Minard, M.D., orthopedist.  Claimant 
 
            testified that Dr. Minard took him off work for three 
 
            months, from May 19 through September 11, 1988.  He returned 
 
            to work with employer on September 12, 1988.  On November 
 
            28, 1988, he aggravated his back condition while swinging a 
 
            sledgehammer at work.  He saw the company doctor, William J. 
 
            Shelton, M.D., a family practitioner, in Clarinda, Iowa.  
 
            Claimant testified that Dr. Shelton took him off work.  He 
 
            was released him to return to work on February 13, 1989.  
 
            
 
                 Claimant testified that in February 1989 he contacted 
 
            employer and was told that there was no work available.  On 
 
            July 5, 1989, claimant attended a 21-week truck driver 
 
            program which he completed in September 1989.  From May 1990 
 
            through December 1990, he worked for F.C. Grace Furniture 
 
            and Appliance Store delivering furniture and setting up show 
 
            room floors.  He had a disagreement with his boss and quit 
 
            on December 22, 1990.  He then worked for seven weeks in 
 
            Blundt, South Dakota, driving a truck.  He quit this job 
 
            because it aggravated his back condition.  From May 6, 1991 
 
            through February 1992, he worked for D and D Transport 
 
            Company in Silver Creek, Nebraska, as a truck driver.  He 
 
            was in an accident in February 1992 and reinjured his back.  
 
            Claimant testified that he has not been employed since 
 
            February 1992.  
 
            
 
                 The documentary medical evidence in the record reveals 
 
            that claimant was seen by Dr. Minard on May 20, 1988.  He 
 
            presented with generalized soreness.  An examination 
 
            revealed tenderness in the left lower chest and dorsal spine 
 
            region.  X-rays taken of his chest and dorsal spine were 
 
            essentially normal.  He had no extremity pain and full range 
 
            of motion of his neck.  Dr. Minard suggested home rest and 
 
            Tylenol with codeine and Naprosyn.  He was asked to return 
 
            the following Monday if his condition had not improved 
 
            (exhibits 21 & 23).
 
            
 
                 Claimant presented to Dr. Minard for follow-up 
 
            evaluations in June and July 1988.  Due to persistent pain 
 
            he was started on physical therapy with heat and ice, 
 
            ultrasound with cortisone cream and traction.  He had no 
 
            lasting relief of his pain with this treatment.  
 
            
 
                 Dr. Shelton referred claimant to Michael T. O'Neil, 
 
            M.D., orthopedic surgeon, for evaluation.  Dr. O'Neil saw 
 
            claimant at the Clarinda Municipal Hospital Clinic on July 
 
            22, 1988.  After conducting a physical examination, Dr. 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            O'Neil diagnosed acute ligamentous strain and muscle spasm 
 
            of the dorsal and lumbosacral spine.  He felt that claimant 
 
            was not ready to return to work at this time and anticipated 
 
            a healing period of 12-16 weeks from the time of the injury 
 
            (exs. 27 & 28).
 
            
 
                 Claimant testified that in addition to being followed 
 
            by Dr. Minard, he was also followed by Dr. Shelton, company 
 
            physician.  However, Dr. Shelton's office treatment notes 
 
            are not in the record.  In a note dated August 12, 1988, Dr. 
 
            Shelton indicates he last saw claimant on July 22, 1988, and 
 
            he was unable to predict how long it would take claimant to 
 
            recover from his May 1988 injury (ex. 25).
 
            
 
                 Defendant, Royal Insurance Company, referred claimant 
 
            to Career Design, Inc. for a medical management assessment 
 
            on August 9, 1988.  Craig Ferguson, rehabilitation 
 
            specialist, gave a brief summary of claimant's medical 
 
            status, family/social background and educational/vocational 
 
            history.  However, no constructive services were provided at 
 
            this time (ex. 24).  
 
            
 
                 On September 6, 1988, Mr. Ferguson filed a status 
 
            report which again makes no specific recommendations 
 
            regarding claimant's future goals (ex. 26).  
 
            
 
                 On September 8, 1988, claimant saw Dr. Shelton for 
 
            evaluation.  Claimant informed Dr. Shelton that he had 
 
            increased his physical activity and was able to walk a mile 
 
            and one-half, up and down ditches and squirrel hunt.  An 
 
            examination revealed an essentially normal back without 
 
            muscle spasm or tenderness.  Dr. Shelton released claimant 
 
            to return to work and advised minimal twisting and stooping 
 
            (exs. 16 & 31).  
 
            
 
                 Claimant testified that he aggravated his back 
 
            condition on November 28, 1988, while using a sledgehammer.  
 
            He stated that he was sent to Dr. Shelton for evaluation and 
 
            was taken off work.  However, the record does not contain 
 
            any medical reports from Dr. Shelton regarding the November 
 
            28, 1988 incident.  
 
            
 
                 Claimant was seen by Anil K. Agarwal, M.D., on December 
 
            13, 1988, for an independent medical examination at the 
 
            request of defendant, Royal Insurance Company.  After 
 
            conducting a physical examination and reviewing x-rays of 
 
            the cervical, lumbar and dorsal spine, Dr. Agarwal diagnosed 
 
            cervical strain and thoracolumbar strain.  Dr. Agarwal 
 
            prescribed a lumbosacral support and discussed an exercise 
 
            program.  He restricted claimant to lifting no more than 25 
 
            pounds and advised him to avoid prolonged stooping and 
 
            bending (ex. 30).  
 
            
 
                 Claimant presented to Dr. Minard on January 13, 1989, 
 
            with complaints of low back pain since November 28, 1988.  
 
            On examination muscle spasms were evident in the low back 
 
            area and straight leg raising was positive at 60 degrees on 
 
            the right and 70 degrees on the left.  X-rays taken of the 
 
            lumbosacral spine were essentially normal.  Arrangements 
 
            were then made for a CT scan of the lumbar spine (exs. 21 & 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            23).
 
            
 
                 Results of the CT scan were normal.  However, because 
 
            of continued back pain, Dr. Minard referred claimant for a 
 
            caudal injection.  This was performed by David Rosenberg, 
 
            M.D., on January 20, 1989, at Bergan Mercy Hospital in 
 
            Omaha, Nebraska (exs. 2, 21 & 23).
 
            
 
                 Dr. Minard saw claimant for follow-up evaluation on 
 
            January 27, 1989.  Claimant's condition was not improved.  
 
            Therefore, arrangements were made for physical therapy in 
 
            Clarinda, Iowa (exs. 5-7).
 
            
 
                 Dr. Minard saw claimant on February 10, 1989.  At this 
 
            time, claimant complained of pain in the upper dorsal region 
 
            between his shoulder blades.  He related that his low back 
 
            pain had disappeared.  He denied any radicular pain into 
 
            either lower extremity.  An examination of his back revealed 
 
            no abnormalities.  Dr. Minard released him to return to work 
 
            on February 13, 1989.  He stated, "His problem to me 
 
            appeared to be a lumbar strain and parascapular myofascitis.  
 
            I do not see any disability."  (ex. 21, p. 2).
 
            
 
                                conclusions of law
 
            
 
                 The issue to be determined is whether claimant received 
 
            an injury on May 18, 1988, which arose out of and in the 
 
            course of employment.
 
            
 
                 Claimant has the burden of proving by a preponderance 
 
            of the evidence that he received an injury on May 18, 1988, 
 
            which arose out of and in the course of his employment. 
 
            McDowell v. Town of Clarksville, 241 N.W.2d 904, 908 (Iowa 
 
            1976); Musselman v. Central Telephone Co., 154 N.W.2d 128, 
 
            130 (Iowa 1967).  The words "arising out of" have been 
 
            interpreted to refer to the cause and origin of the injury.  
 
            McClure v. Union County, 188 N.W.2d 283, 287 (Iowa 1971);   
 
            Crowe v. DeSoto Consolidated School District, 68 N.W.2d 63, 
 
            65 (Iowa 1955).  The words "in the course of" refer to the 
 
            time, place and circumstances of the injury.  McClure, 188 
 
            N.W.2d at 287; Crowe, 68 N.W.2d at 65.  An injury occurs in 
 
            the course of the employment when it is within the period of 
 
            employment at a place the employee may reasonably be, and 
 
            while the employee is doing work assigned by the employer or 
 
            something incidental to it.  Cedar Rapids Community School 
 
            District v. Cady, 278 N.W.2d 298, 299 (Iowa 1979), McClure, 
 
            188 N.W.2d at 287; Musselman, 154 N.W.2d at 130. 
 
            
 
                 The supreme court has defined a personal injury for the 
 
            purposes of workers' compensation cases.  Almquist v. 
 
            Shenandoah Nurseries, 254 N.W. 35, 38 (Iowa 1934).  In this 
 
            case the court found that a personal injury, is an injury to 
 
            the body, the impairment of health, or a disease, not 
 
            excluded by the Workers Compensation Act, which comes about, 
 
            not through the natural building up and tearing down of the 
 
            human body, but because of a traumatic or other hurt or 
 
            damage to the health or body of an employee.  The injury to 
 
            the human body must be something, whether an accident or 
 
            not, that acts extraneously to the natural processes of 
 
            nature, and thereby impairs the health, overcomes, injures, 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            interrupts, or destroys some function of the body, or 
 
            otherwise damages or injures a part or all of the body.  
 
            
 
                 The Almquist court further observed that while a 
 
            personal injury does not include an occupational disease 
 
            under the Workmen's Compensation Act, yet an injury to the 
 
            health may be a personal injury.  A personal injury includes 
 
            a disease resulting from an injury.  However, the result of 
 
            changes in the human body incident to the general processes 
 
            of nature do not amount to a personal injury.  This is true, 
 
            even though natural change may come about because the life 
 
            has been devoted to labor and hard work.  Results of those 
 
            natural changes do not constitute a personal injury even 
 
            though the same brings about impairment of health or the 
 
            total or partial incapacity of the functions of the human 
 
            body. 
 
            
 
                 The undisputed evidence reveals that on May 18, 1988, 
 
            claimant was laying sewer pipe for employer and a whole pile 
 
            of dirt fell on top of him nearly burying him.  As a result, 
 
            he experienced generalized soreness and considerable 
 
            difficulty with low back pain.  He was advised by Dr. Minard 
 
            to rest at home and take pain medication.  A diagnosis of 
 
            acute ligamentous strain and muscle spasm of the dorsal and 
 
            lumbosacral spine was made by Dr. O'Neil.  Claimant was off 
 
            work from May 19, 1988 through September 9, 1988, when he 
 
            was released to return to work activity by Dr. Shelton.  
 
            
 
                 Claimant testified that he returned to work with 
 
            employer.  He was assigned to work on a water tower project 
 
            at Clarinda Treatment Complex.  While swinging a 
 
            sledgehammer he experienced a flare-up of his back symptoms 
 
            on November 28, 1988.  He was again taken off work and 
 
            participated in conservative therapy.  Dr. Minard released 
 
            him to return to work without restrictions on February 13, 
 
            1989 (ex. 20).
 
            
 
                 Since claimant has suffered an injury, the next 
 
            question to be resolved is whether the injury has caused a 
 
            permanent disability.  The claimant has the burden of 
 
            proving by a preponderance of the evidence that the injury 
 
            of May 18, 1988, is causally related to the disability on 
 
            which he now bases his claim.  Bodish v. Fischer, Inc., 133 
 
            N.W.2d 867, 868 (Iowa 1965);  Lindahl v. L. O. Boggs, 18 
 
            N.W.2d 607, 613-14 (Iowa 1945).  A possibility is 
 
            insufficient; a probability is necessary.  Burt v. John 
 
            Deere Waterloo Tractor Works, 73 N.W.2d 732, 738 (Iowa 
 
            1955).  The question of causal connection is essentially 
 
            within the domain of expert testimony.  Bradshaw v. Iowa 
 
            Methodist Hospital, 101 N.W.2d 167, 171 (Iowa 1960).  Expert 
 
            medical evidence must be considered with all other evidence 
 
            introduced bearing on the causal connection.  Burt, 73 
 
            N.W.2d at 738.  The opinion of the experts need not be 
 
            couched in definite, positive or unequivocal language.  
 
            Sondag v. Ferris Hardware, 220 N.W.2d 903, 907 (Iowa 1974).  
 
            Moreover, the expert opinion may be accepted or rejected, in 
 
            whole or in part, by the trier of fact.  Sondag, 220 N.W.2d 
 
            at 907.  Finally, the weight to be given to such an opinion 
 
            is for the finder of fact, and that may be affected by the 
 
            completeness of the premise given the expert and other 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            material circumstances.  Bodish, 133 N.W.2d at 870; 
 
            Musselman, 154 N.W.2d at 133.  The supreme court has also 
 
            observed that greater deference is ordinarily accorded 
 
            expert testimony where the opinion necessarily rests on 
 
            medical expertise.  Sondag, 220 N.W.2d at 907.
 
            
 
                 Claimant has not met his burden in this regard.  The 
 
            record clearly indicates that claimant's May 18, 1988 
 
            initial injury and his November 28, 1988 aggravation of that 
 
            injury has not resulted in permanent disability.  Dr. O'Neil 
 
            released claimant to return to work on September 14, 1988, 
 
            with no restrictions (ex. 29).  Dr. O'Neil is a highly 
 
            qualified orthopedic surgeon who was asked to examine and 
 
            evaluate claimant by Dr. Shelton, a family practitioner.  
 
            Dr. O'Neil's expertise is entitled to significant weight and 
 
            consideration.  Therefore, it is found that claimant 
 
            incurred no permanent disability as a result of his May 18, 
 
            1988 injury.
 
            
 
                 Claimant returned to manual labor in September 1988 and 
 
            re-aggravated his back condition on November 28, 1988.  
 
            Claimant underwent significant clinic and laboratory testing 
 
            which revealed no abnormalities.  On February 10, 1989, 
 
            claimant reported to Dr. Minard that his low back pain had 
 
            disappeared (ex. 21, p. 2).  On February 10, 1989, Dr. 
 
            Minard released claimant to return to work on February 13, 
 
            1989, with no restrictions (ex. 20).
 
            
 
                 Therefore, claimant has not demonstrated an entitlement 
 
            to any permanent partial disability benefits as a result of 
 
            his work injury on May 18, 1988.  However, claimant is 
 
            entitled to temporary total disability benefits from May 19, 
 
            1988 through September 9, 1988, when he was released to 
 
            return to work by Dr. Shelton.  He is also entitled to 
 
            temporary total disability benefits from November 28, 1988 
 
            through February 13, 1989, when he was released to return to 
 
            work by Dr. Minard.  
 
            
 
                 The next issue to be determined is claimant's 
 
            entitlement to medical benefits under Iowa Code section 
 
            85.27.  
 
            
 
                 The employer shall furnish reasonable surgical, 
 
            medical, dental, osteopathic, chiropractic, podiatric, 
 
            physical rehabilitation, nursing, ambulance and hospital 
 
            services and supplies for all conditions compensable under 
 
            the workers' compensation law.  The employer shall also 
 
            allow reasonable and necessary transportation expenses 
 
            incurred for those services.  The employer has the right to 
 
            choose the provider of care, except where the employer has 
 
            denied liability for the injury.  Section 85.27; Holbert v. 
 
            Townsend Engineering Co., Thirty-second Biennial Report of 
 
            the Industrial Commissioner 78 (Review-reopen 1975).  
 
            Claimant has the burden of proving that the fees charged for 
 
            such services are reasonable.  Anderson v. High Rise 
 
            Construction Specialists, Inc., file number 850096 (App. 
 
            Dec. July 31, 1990).
 
            
 
                 Claimant is not entitled to reimbursement for medical 
 
            bills unless claimant shows they were paid from claimant's 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            funds.  See Caylor v. Employers Mut. Casualty Co., 337 
 
            N.W.2d 890 (Iowa Ct. App. 1983).  
 
            
 
                 When a designated physician refers a patient to another 
 
            physician, that physician acts as the defendant employer's 
 
            agent.  Permission for referral from defendant is not 
 
            necessary.  Kittrell v. Allen Memorial Hospital, 
 
            Thirty-fourth Biennial Report of the Industrial Commissioner 
 
            164 (Arb. Dec. 1979) (aff'd by indus. comm'r).
 
            
 
                 An employer's right to select the provider of medical 
 
            treatment to an injured worker should be diagnosed, 
 
            evaluated, treated or other matters of professional medical 
 
            judgement.  Assman v. Blue Star Foods, Inc., file no. 866389 
 
            (declaratory ruling, May 18, 1988).
 
            
 
                 Claimant contends that he has incurred medical bills in 
 
            the amount of $3143.  To support his contention, claimant 
 
            has submitted copies of the unpaid bills (exs. 1-13).  
 
            Defendants contend that they have paid $2,061.42 in medical 
 
            bills (ex. 32).  Defendants contend that some of claimant's 
 
            medical expenses were unauthorized.  However, they do not 
 
            specifically identify the unauthorized medical expenses.  
 
            Claimant is entitled to medical expenses incurred for 
 
            treatment of his May 18, 1988 injury.  Obviously, this would 
 
            include treatment by Dr. Shelton, the company physician; Dr. 
 
            O'Neil, the orthopedic specialist to whom Dr. Shelton 
 
            referred claimant; assessments at Career Design; and any 
 
            medication, laboratory testing and physical therapy 
 
            undertaken to treat his injury.  
 
            
 
                 Claimant is also entitled to medical benefits for 
 
            treatment of an aggravation of his back condition on 
 
            November 28, 1988.  This would include any treatment 
 
            provided by Dr. Shelton and an independent medical 
 
            examination performed by Dr. Agarwal.  
 
            
 
                 Claimant testified that he conferred with Dr. Minard 
 
            without authorization from employer or insurance carrier.  
 
            Dr. Minard performed laboratory testing of claimant's 
 
            lumbosacral spine to determine the etiology of his 
 
            complaints.  Dr. Minard referred claimant to Dr. Rosenberg 
 
            for a caudal injection to treat his pain.  When this proved 
 
            ineffective, Dr. Minard recommended physical therapy.  On 
 
            February 13, 1989, Dr. Minard released claimant to return to 
 
            work without restrictions.  
 
            
 
                 Unauthorized treatment which improves an employee's 
 
            condition and which ultimately may mitigate the employer's 
 
            liability may subsequently be found reasonable and necessary 
 
            for treatment of an injury.  Tesch v. Sieh Farm Drainage 
 
            Co., file no. 860672 (App. Dec. March 31, 1992).  
 
            Claimant's condition appears to have improved with physical 
 
            therapy because on February 13, 1989, he no longer had any 
 
            back complaints.  Therefore, the medical expenses of Dr. 
 
            Minard, Dr. Rosenberg and physical therapy are awarded to 
 
            claimant.  
 
            
 
                                      order
 
            
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 1.  That defendants pay to claimant temporary total 
 
            disability benefits from May 19, 1988 through September 9, 
 
            1988 and from November 28, 1988 through February 13, 1989, 
 
            at the rate of one hundred forty-nine 35/100 dollars 
 
            ($149.35) per week.  
 
            
 
                 2.  That defendants receive credit for any benefits 
 
            previously paid. 
 
            
 
                 3.  That defendants pay accrued amounts in a lump sum.
 
            
 
                 4.  That defendants pay for all medical and mileage 
 
            expenses incurred for treatment of his back injury.
 
            
 
                 5.  That defendants receive credit for any medical 
 
            benefits previously paid, if applicable.
 
            
 
                 6.  That defendants pay interest pursuant to Iowa Code 
 
            section 85.30.
 
            
 
                 7.  That defendants pay the costs of this action.
 
            
 
                 8.  That defendants file claim activity reports as 
 
            required by the agency pursuant to rule 343 IAC 3.1(2).
 
            
 
                 Signed and filed this ____ day of February, 1993.
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          JEAN M. INGRASSIA
 
                                          DEPUTY INDUSTRIAL COMMISSIONER    
 
            
 
            Copies to:
 
            
 
            Mr. Jon Johnson
 
            Attorney at Law
 
            811 Indiana
 
            PO Box 670
 
            Sidney, Iowa  51652
 
            
 
            Mr. Melvin Hansen
 
            Attorney at Law
 
            800 Exchange Bldg
 
            1905 Harney St
 
            Omaha, NE  68102
 
            
 
            Mr. Richard Crotty
 
            Attorney at Law
 
            311 First Federal Bldg
 
            Council Bluffs, Iowa  51503
 
            
 
            
 
                 
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
                      51801 51803 52500
 
                      Filed February 24, 1993
 
                      Jean M. Ingrassia
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            KEVIN D HOYT,  :
 
                      :
 
                 Claimant, :
 
                      :
 
            vs.       :
 
                      :      File No. 892089
 
            CLARINDA EXCAVATING,     :
 
                      :  A R B I T R A T I O N
 
                 Employer, :
 
                      :      D E C I S I O N
 
            and       :
 
                      :
 
            ROYAL INSURANCE,    :
 
                      :
 
                 Insurance Carrier,  :
 
                 Defendants.    :
 
            ___________________________________________________________
 
            
 
            51801
 
            Claimant is entitled to temporary total disability benefits 
 
            from May 19, 1988 through September 9, 1988 and from 
 
            November 28, 1988 through February 13, 1989.  Claimant was 
 
            off work for treatment of a work-related back injury.
 
            
 
            51803
 
            Claimant has not shown by a preponderance of the evidence 
 
            that a work-related injury caused permanent disability.
 
            
 
            52500
 
            Pursuant to Iowa Code section 85.27 claimant is entitled to 
 
            the costs incurred for treatment of his work-related injury.  
 
            Claimant is also entitled to costs for unauthorized 
 
            treatment which improved his condition.  Tesch v. Sieh Farm 
 
            Drainage Co., file number 860672 (App. Dec. March 31, 1992)
 
            
 
 
            
 
            
 
            
 
            
 
            
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                             :
 
            EUGENE GALLAGHER,                :
 
                                             :
 
                 Claimant,                   :
 
                                             :
 
            vs.                              :
 
                                             :       File No. 892095
 
            GRINNELL MUTUAL REINSURANCE CO., :
 
                                             :    A R B I T R A T I O N
 
                 Employer,                   :
 
                                             :       D E C I S I O N
 
            and                              :
 
                                             :
 
            GRINNELL MUTUAL REINSURANCE CO., :
 
                                             :
 
                 Insurance Carrier,          :
 
                 Defendants.                 :
 
            ___________________________________________________________
 
            
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This is a proceeding in arbitration upon the petition 
 
            of claimant, Eugene Gallagher, against his employer, 
 
            Grinnell Mutual Reinsurance Company, and its insurance 
 
            carrier, Grinnell Mutual Reinsurance Company, defendants.  
 
            The case was set for 8:00 a.m. July 17, 1992 at the Woodbury 
 
            County courthouse in Sioux City, Iowa.
 
            
 
                 On April 15, 1992 claimant's then attorney, David P. 
 
            Jennett, filed an application to withdraw.  Defendants filed 
 
            a resistance to application to withdraw.  Deputy Industrial 
 
            Commissioner David Rasey filed his ruling on May 7, 1992.  
 
            Deputy Rasey denied the application on the basis that:
 
            
 
                 A review of the Application to Withdraw discloses 
 
                 that Mr. Jennett has made no effort to comply with 
 
                 the administrative rule governing withdrawal of 
 
                 appearance, 343 IAC 4.9(8).
 
            
 
                 Subsequent to the ruling, Mr. Jennett filed an 
 
            application to withdraw for the following reasons:
 
            
 
                    1.  There has been a breakdown of the attorney/ 
 
                 client relationship and the client refuses to 
 
                 follow counsel's advice.
 
            
 
                    2.  That the attorney and client have a 
 
                 difference of opinion as to the merits of his 
 
                 case.
 
            
 
                    3.  The development of these problems between 
 
                 Claimant and counsel make it impossible to 
 
                 continue an attorney/client relationship in this 
 
                 matter.
 
            
 
                    4.  That by this notice Eugene Gallagher is 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
                 advised that he may contest the withdrawal by 
 
                 filing objections and a request for hearing in 
 
                 writing to the Division of Industrial Services 
 
                 prior to the date upon which this matter is ruled 
 
                 upon.
 
            
 
                    5.  That this matter has been set for hearing 
 
                 on July 17, 1992.
 
            
 
                    6.  That attached hereto and incorporated by 
 
                 reference is a certified copy of the mailing of 
 
                 this notice of opportunity for hearing.
 
            
 
                 On May 21, 1992, Mr. Jennett filed an amended affidavit 
 
            of mailing whereby Mr. Jennett established that he had 
 
            mailed the application by certified mail.  He provided a 
 
            return receipt, (green card), signed by "Gene Gallagher."  
 
            No resistance was ever filed by claimant with the Division 
 
            of Industrial Services.
 
            
 
                 On July 15, 1992, a telephone hearing was held for 
 
            purposes of ruling on the application.  Thomas Plaza, 
 
            attorney for defendants, waived his right to appear.  
 
            Claimant did not appear or notify the office that he was 
 
            contesting Mr. Jennett's application to withdraw.
 
            
 
                 During the telephone hearing, Mr. Jennett orally 
 
            reasserted his application to withdraw.  The application was 
 
            orally granted by the undersigned.
 
            
 
                 As mentioned previously, the matter was set for July 
 
            17, 1992 at 8:00 a.m. at the Woodbury County Courthouse.  
 
            Claimant failed to appear.  Neither did anyone else appear 
 
            upon claimant's behalf.
 
            
 
                 Claimant failed to present any evidence in support of 
 
            the allegations found in his original notice and petition.
 
            
 
                 Claimant had the burden of proving by a preponderance 
 
            of the evidence that he sustained an injury which arose out 
 
            of and in the course of his employment.  McDowell v. Town of 
 
            Clarksville, 241 N.W.2d 904 (Iowa 1976).
 
            
 
                 Consequently, claimant failed to meet his burden of 
 
            proof that he had sustained an injury which arose out of and 
 
            in the course of his employment.
 
            
 
                                      ORDER
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 Claimant takes nothing from this proceeding.
 
            
 
                 Costs are taxed to the claimant pursuant to rule 343 
 
            IAC 4.33.
 
            
 
            
 
            
 
                 Signed and filed this ____ day of July, 1992.
 
            
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
                                          ______________________________               
 
                                          MICHELLE A. McGOVERN
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. David P. Jennett
 
            Attorney at Law
 
            701 West Main
 
            Sac City, Iowa  50583
 
            
 
            Mr. Thomas M. Plaza
 
            Attorney at Law
 
            701 Pierce Street  STE 200
 
            P O Box 3086
 
            Sioux City, Iowa  51102
 
            
 
            Mr. Eugene Gallagher
 
            RR #1
 
            Vail, Iowa  51465
 
            REGULAR & CERTIFIED MAIL
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                   1400; 1402
 
                                                   Filed July 24, 1992
 
                                                   MICHELLE A. McGOVERN
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                             :
 
            EUGENE GALLAGHER,                :
 
                                             :
 
                 Claimant,                   :
 
                                             :
 
            vs.                              :
 
                                             :       File No. 892095
 
            GRINNELL MUTUAL REINSURANCE CO., :
 
                                             :    A R B I T R A T I O N
 
                 Employer,                   :
 
                                             :       D E C I S I O N
 
            and                              :
 
                                             :
 
            GRINNELL MUTUAL REINSURANCE CO.,:
 
                                             :
 
                 Insurance Carrier,          :
 
                 Defendants.                 :
 
            ___________________________________________________________
 
            
 
            
 
            
 
            1400; 1402
 
            Claimant failed to appear at the hearing.  No evidence in 
 
            support of allegations of a compensable work injury was 
 
            presented and claimant therefore failed to meet his burden 
 
            of proof.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            JOYCE ROMIG,                  :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :       File No. 892128
 
            IMI CORNELIUS COMPANY,        :
 
                                          :     A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            SENTRY INSURANCE COMPANY,     :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This case came on for hearing on October 1, 1991, in 
 
            Des Moines, Iowa.  This is a proceeding in arbitration 
 
            wherein claimant seeks compensation for permanent partial 
 
            disability benefits as a result of an alleged injury 
 
            occurring on July 26, 1988.  The record in the proceedings 
 
            consist of the testimony of the claimant; joint exhibit 1; 
 
            and defendants' exhibits A through D.
 
            
 
                                      issues
 
            
 
                 The issues for resolution are:
 
            
 
                 1.  Whether claimant's alleged July 26, 1988 injury 
 
            arose out of and in the course of her employment;
 
            
 
                 2.  Whether there is a causal connection between 
 
            claimant's alleged disability and the July 26, 1988 alleged 
 
            injury;
 
            
 
                 3.  The nature and extent of claimant's disability and 
 
            entitlement to disability benefits; and, 
 
            
 
                 4.  The commencement date of any benefits.
 
            
 
                                findings of fact:
 
            
 
                 The undersigned deputy, having heard the testimony and 
 
            considered all the evidence, finds that:
 
            
 
                 Claimant is a 47-year-old who quit high school in the 
 
            eleventh grade but obtained a GED in 1987.  She has no other 
 
            formal education.
 
            
 
                 Claimant described her work history prior to beginning 
 
            work for defendant employer in October 1983.  This pre-1983 
 
            work basically involved restaurant work such as being a 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            cook, a waitress, washing dishes, etc.  Claimant's work at 
 
            defendant employer's in July 1988 involved making ice 
 
            machines.  This required lifting parts to place in the metal 
 
            frame and machines and required the use of claimant's 
 
            shoulders and arms.
 
            
 
                 There was a layoff from which claimant returned in 
 
            January 1988.  Claimant alleged her right shoulder began to 
 
            bother her approximately one week after she returned.  
 
            Claimant insisted nothing occurred to injure her shoulder 
 
            during nonwork hours.  Claimant described in part her 
 
            medical treatment and pain.  She was referred to Scott B. 
 
            Neff, D.O., who prescribed tests and eventually performed 
 
            surgery on July 26, 1988, which is the alleged date of 
 
            injury.
 
            
 
                 Claimant said she has loss of motion, the same as 
 
            before surgery, pain, diminished lifting ability, a 25 pound 
 
            lifting restriction, and cannot put her right hand in her 
 
            right back pocket.  Claimant contends she could lift 50 
 
            pounds before the July 26, 1988 injury.
 
            
 
                 Claimant is now working in the literature department 
 
            for defendant employer.  This work involves working with 
 
            catalogs, paper, etc., which is a different position than at 
 
            the time of her alleged July 26, 1988 injury.  The 
 
            difference in pay is her current $7.90 versus her prior pay 
 
            with current updates of $9.15 per hour.  At the time of her 
 
            injury, claimant was making $8.34 per hour.  Claimant has 
 
            made no bids for other jobs within the defendant company.
 
            
 
                 Claimant relates many things she cannot do at home but 
 
            said she has not currently complained at work because the 
 
            employer would put her in the office at $4.15 per hour.  
 
            Claimant said she returned to work on March 14, 1989, so she 
 
            was off work since July 26, 1988.
 
            
 
                 Claimant was asked about her 1986 automobile accident 
 
            and the reference to a neck and right and left shoulder.  
 
            She didn't remember that she indicated her shoulder hurt.  
 
            She was treated for this injury up to May 1987 (Defendants' 
 
            Exhibit D).
 
            
 
                 Claimant discussed the July 24, 1987 incident when she 
 
            was carrying a compressor.  This was the subject of an 
 
            August 2, 1990 decision filed by the undersigned (File No. 
 
            893347).  The undersigned stated that he is taking official 
 
            notice of this decision, as requested by the claimant.  
 
            Eventually, at the end of the hearing, the parties agreed to 
 
            enter this decision as joint exhibit 1.
 
            
 
                 Claimant said she has not seen Dr. Neff since March 
 
            1989, and he released her to work.  She said no doctor has 
 
            given her a prescription.  The undersigned notes there is no 
 
            medical evidence to indicate a release of the claimant by 
 
            Dr. Neff in March 1989.  In fact, there is no evidence of 
 
            any doctor indicating when claimant reached maximum healing 
 
            or was released except for a December 2, 1987 letter from 
 
            Dr. Neff in which he indicated on that date that claimant 
 
            sustained a 15 percent impairment to the right upper 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            extremity.  He also indicated that he did not see a need to 
 
            incorporate this into a body as a whole measurement simply 
 
            because it is an impingement release and not involving a 
 
            rotator cuff group of muscles (Def. Ex. B, p. 2).
 
            
 
                 Claimant feels she has the smarts to take school 
 
            courses but is not pursuing it at the present time.  She 
 
            said her shoulder could cause her problems in a vocational 
 
            setting.
 
            
 
                 On July 11, 1988, Dr. Neff wrote that claimant's 
 
            history indicated she incurred an injury which happened 
 
            approximately one year ago when she fell over a compressor.  
 
            At that time, he indicated claimant had a right carpal 
 
            tunnel syndrome and an impingement syndrome (Def. Ex. A, p. 
 
            1).
 
            
 
                 On September 7, 1988, Dr. Neff indicated claimant was 
 
            not ready to return to work at that time due to her right 
 
            wrist and right shoulder surgery which occurred in July 1988 
 
            (Def. Ex. A, p. 2).
 
            
 
                 On December 2, 1988, Dr. Neff and Thomas Bower, L.P.T., 
 
            wrote that claimant had a 15 percent impairment to the right 
 
            upper extremity that did not go into claimant's body as a 
 
            whole as it did not involve the rotator cuff group of 
 
            muscles (Def. Ex. A, p. 2; Def. Ex. C).
 
            
 
                 There is no medical report which specifically causally 
 
            connects claimant's July 26, 1988 injury, which, in fact, 
 
            was the date of claimant's right shoulder and right carpal 
 
            tunnel syndrome surgeries, to claimant's present impairment 
 
            or disability.  Defendants' exhibit 1 is a decision filed by 
 
            the undersigned in which case the claimant had alleged an 
 
            injury in July 1987, and the undersigned deputy had held 
 
            that claimant's complaints from that injury were only 
 
            temporary and claimant received full recovery as no 
 
            permanency was found.  Claimant returned to work in January 
 
            1988 and developed problems with her right upper extremity 
 
            and right shoulder.  Claimant at that time returned to the 
 
            same type of work she had been doing before the layoff in 
 
            the fall of 1987.  Taking the evidence as a whole, and 
 
            gleaning the decision in file No. 893347, it is apparent to 
 
            the undersigned that the complaints from which claimant now 
 
            complains were caused by claimant's work, and that the 
 
            cumulative effect of her work ultimately resulted in the 
 
            right shoulder and right carpal tunnel syndrome surgery she 
 
            occurred in July 1988.  It would appear that claimant's 
 
            problems may have begun on a limited basis in July 1987, but 
 
            as indicated in the decision filed August 2, 1990 (file No. 
 
            893347), claimant was not suffering any permanency from that 
 
            injury and that any temporary disability or healing period 
 
            had been taken care of already by the defendant employer.  
 
            It was the understanding of the parties and the undersigned 
 
            and there was considerable discussion to the extent that the 
 
            admission of joint exhibit 1 could not result in the 
 
            undersigned's finding that claimant's complaints now are the 
 
            result of a July 24, 1987 injury.  In other words, 
 
            claimant's complaints now were raised in the prior hearing 
 
            and it was found that those were not the result of a July 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            24, 1987 injury and, therefore, claimant did not recover.  
 
            It would seem contrary to law and good judgment to now 
 
            determine and defendants are not so arguing that these 
 
            current complaints are now in fact the result of a prior 
 
            July 24, 1987 injury which would in fact be a reversal of 
 
            defendant employer's position at the prior hearing.  There 
 
            is no evidence that these injuries occurred other than at 
 
            work.  It is obvious the nature of claimant's work is such 
 
            that claimant materially and substantially aggravated and 
 
            developed an increased situation in her right wrist and 
 
            right shoulder that may have begun in July 1987 but had not 
 
            reached any compensable stage or did not at that time result 
 
            in any permanency.  The undersigned finds that claimant did 
 
            incur an injury and the surgery to her right shoulder and 
 
            right wrist which arose out of and in the course of her 
 
            employment and that there is a causal connection between the 
 
            injuries and claimant's current impairment.
 
            
 
                 Claimant incurred a 15 percent impairment to her right 
 
            upper extremity and as opined by Dr. Neff on December 2, 
 
            1988 (Jt. Ex. B, p. 2), this injury was to claimant's right 
 
            upper extremity and did not go to claimant's body as a whole 
 
            simply because it is an impingement release and did not 
 
            involve the rotator cuff group of muscles.
 
            
 
                 Claimant contends that claimant's healing period began 
 
            on July 26, 1988 and ended March 15, 1989.  It is obvious 
 
            that claimant picked that date because that is the date she 
 
            returned to work.  Defendants contend that the date is July 
 
            26, 1988 up to and including December 2, 1988, and they base 
 
            their contention on defendants' exhibit B, page 2, and the 
 
            opinion of Dr. Neff on December 2, 1988, when he opined a 
 
            permanent 15 percent impairment to claimant's right upper 
 
            extremity.  There is no other evidence that would indicate 
 
            claimant was still recovering after said date or that there 
 
            is any other reference to any maximum healing period.  The 
 
            undersigned finds that claimant's healing period began July 
 
            26, 1988 and ended up to and including December 2, 1988.  It 
 
            is surprising to the undersigned that there was no further 
 
            follow-up by claimant that may have clarified this if 
 
            claimant felt there was sufficient support or medical 
 
            evidence available or acquirable to support a March 15, 1989 
 
            date.  The undersigned, therefore, finds that claimant is 
 
            entitled to 18.571 weeks of healing period benefits and 37.5 
 
            weeks of permanent partial disability based on 15 percent of 
 
            250 weeks, as provided by Iowa Code section 85.34(2)(m).
 
            
 
                                conclusions of law
 
            
 
                 Claimant has the burden of proving by a preponderance 
 
            of the evidence that she received an injury on July 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. 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 July 26, 
 
            1988, is causally related to the disability on which she now 
 
            bases her claim.  Bodish v. Fischer, Inc., 257 Iowa 516, 133 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            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 v. Central Telephone 
 
            Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
            
 
                 Our supreme court has stated many times that a claimant 
 
            may recover for a work connected aggravation of a 
 
            preexisting condition.  Almquist v. Shenandoah Nurseries, 
 
            218 Iowa 724, 254 N.W. 35 (1934).  See also Auxier v. 
 
            Woodward State Hosp. Sch., 266 N.W.2d 139 (Iowa 1978); Gosek 
 
            v. Garmer and Stiles Co., 158 N.W.2d 731 (Iowa 1968); Barz 
 
            v. Oler, 257 Iowa 508, 133 N.W.2d 704 (1965); Olson v. 
 
            Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251 
 
            (1963); Yeager v. Firestone Tire & Rubber Co., 253 Iowa 369, 
 
            112 N.W.2d 299 (1961); Ziegler v. United States Gypsum Co., 
 
            252 Iowa 613, 106 N.W.2d 591 (1960).
 
            
 
                 If a claimant contends he has industrial disability he 
 
            has the burden of proving his injury results in an ailment 
 
            extending beyond the scheduled loss.  Kellogg v. Shute and 
 
            Lewis Coal Co., 256 Iowa 1257, 130 N.W.2d 667 (1964).
 
            
 
                 Furthermore, if the available expert testimony is 
 
            insufficient alone to support a finding of causal 
 
            connection, such testimony may be coupled with nonexpert 
 
            testimony to show causation and be sufficient to sustain an 
 
            award.  Giere v. Aase Haugen Homes, Inc., 259 Iowa 1065, 146 
 
            N.W.2d 911, 915 (1966).  Such evidence does not, however, 
 
            compel an award as a matter of law.  Anderson v. Oscar Mayer 
 
            & Co., 217 N.W.2d 531, 536 (Iowa 1974).  To establish 
 
            compensability, the injury need only be a significant 
 
            factor, not be the only factor causing the claimed 
 
            disability.  Blacksmith v. All-American, Inc., 290 N.W.2d 
 
            348, 354 (Iowa 1980).
 
            
 
                 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.
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            
 
                 The Iowa Supreme Court in Simbro v. DeLong's 
 
            Sportswear, 332 N.W.2d 886 (Iowa 1983) explained the two 
 
            methods for evaluating a disability--functional and 
 
            industrial:
 
            
 
                 Functional disability is assessed solely by 
 
                 determining the impairment of the body function of 
 
                 the employee; industrial disability is gauged by 
 
                 determining the loss     to the employee's earning 
 
                 capacity.  Functional disability is limited to the 
 
                 loss of physiological capacity of the body or body 
 
                 part.  Industrial disability is not bound to the 
 
                 organ or body incapacity, but measures the extent 
 
                 to which the injury impairs the employee in the 
 
                 ability to earn wages....
 
            
 
                    ...A specific scheduled disability is evaluated 
 
                 by the functional method; the industrial method is 
 
                 used to evaluate an unscheduled disability.
 
            
 
                 It is further concluded that:
 
            
 
                 Claimant incurred a cumulative injury on July 26, 1988 
 
            which arose out of and in the course of her employment and 
 
            which caused claimant to incur a right carpal tunnel surgery 
 
            and a right shoulder surgery on July 26, 1988.
 
            
 
                 Claimant's work injury on July 26, 1988 involved 
 
            scheduled member injuries to her right upper extremity and 
 
            the shoulder injury did not go into claimant's body as a 
 
            whole.
 
            
 
                 Claimant's work-related injury on July 26, 1988 caused 
 
            claimant to incur a 15 percent impairment to her right upper 
 
            extremity, entitling her to 37.5 weeks of benefits at the 
 
            rate of $227.06 per week.
 
            
 
                 Claimant incurred a healing period beginning July 26, 
 
            1988 up to and including December 2, 1988, which encompasses 
 
            18.571 weeks of healing period benefits at the rate of 
 
            $227.06 per week.
 
            
 
                                        
 
            
 
                                      order
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 That defendants shall pay unto claimant healing period 
 
            benefits at the rate of two hundred twenty-seven and 06/100 
 
            dollars ($227.06) per week beginning July 26, 1988 through 
 
            December 2, 1988, which encompasses eighteen point five 
 
            seven one (18.571) weeks of healing period benefits.
 
            
 
                 That defendants shall pay unto claimant thirty-seven 
 
            point five (37.5) weeks of permanent partial disability 
 
            benefits at the rate of two hundred twenty-seven and 06/100 
 
            dollars ($227.06) per week beginning December 3, 1988.
 
            
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
                 That defendants shall pay accrued weekly benefits in a 
 
            lump sum and shall receive credit against the award for 
 
            weekly benefits previously paid.  The parties stipulated 
 
            that claimant has previously paid ten point five seven one 
 
            (10.571) weeks of benefits at the rate of two hundred thirty 
 
            and 97/100 dollars ($230.97) and twenty-six point eight five 
 
            seven (26.857) weeks at a rate of two hundred twenty-six and 
 
            60/100 dollars ($226.60) per week.
 
            
 
                 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 October, 1991.
 
            
 
            
 
            
 
                                          ______________________________
 
                                          BERNARD J. O'MALLEY
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies to:
 
            
 
            Mr Mark S Pennington
 
            Attorney at Law
 
            620 Fleming Bldg
 
            Des Moines IA 50309
 
            
 
            Mr Harry W Dahl
 
            Attorney at Law
 
            974 73rd St  Ste 16
 
            Des Moines IA 50312
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                      5-1402.30; 5-1108; 5-1803.1
 
                      5-1802; 5-1803
 
                      Filed October 18, 1991
 
                      Bernard J. O'Malley
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            JOYCE ROMIG,                  :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :       File No. 892128
 
            IMI CORNELIUS COMPANY,        :
 
                                          :     A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            SENTRY INSURANCE COMPANY,     :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            5-1402.30; 5-1108; 5-1803
 
            Found injury arose out of and in the course of claimant's 
 
            employment and this work injury caused claimant to incur a 
 
            right carpal tunnel surgery and a right shoulder surgery, 
 
            all limited to claimant's right upper extremity and not to 
 
            the body as a whole.
 
            
 
            5-1802; 5-1803
 
            Claimant awarded permanent partial disability benefits and 
 
            healing period benefits.