Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            JAMES KAY,                    :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :       File No. 910510
 
            UNITED TECHNOLOGIES           :
 
            AUTOMOTIVE (formerly known    :
 
            as SHELLER-GLOBE)             :
 
                                          :     A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            CIGNA,                        :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 This case came on for hearing on June 20, 1991, at 
 
            Burlington, Iowa.  This is a proceeding in arbitration 
 
            wherein claimant seeks compensation for permanent partial 
 
            disability benefits as a result of an injury occurring on 
 
            March 1, 1989.  The record in the proceeding consists of the 
 
            testimony of claimant and claimant's exhibits 1 through 33; 
 
            and defendants' exhibits A, B and C.
 
            
 
                                      issues
 
            
 
                 The only issue for resolution is the extent of 
 
            claimant's industrial disability.
 
            
 
                                 findings of fact
 
            
 
                 The undersigned deputy having heard the testimony and 
 
            considered all the evidence, finds that:
 
            
 
                 Claimant is a 32-year-old high school graduate who has 
 
            no other formal education.  His first meaningful job was 
 
            working for defendant employer or its predecessor, which 
 
            employment began in 1984.  Claimant's current employer is a 
 
            division of a subsequent purchaser of Sheller-Globe and said 
 
            employer is now self-insured.
 
            
 
                 Defendant employer is a production manufacturing 
 
            company which produces vehicle parts, such as dashboards, 
 
            steering wheels, moldings, etc.  Claimant is basically a 
 
            laborer and currently a service operator for defendant 
 
            employer.  Claimant's work experience and skills are 
 
            basically while working with the defendant or its 
 
            predecessor company.  Claimant said his job on March 1, 1989 
 
            required lifting approximately 98 pounds every seven 
 
            minutes.
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
                 On March 1, 1989, claimant was injured at work while 
 
            lifting some packing boxes to put on a table.  He stepped 
 
            over two steps and was ready to put the boxes down and his 
 
            back suddenly hurt and he dropped the boxes.  Claimant 
 
            incurred two surgeries due to this injury, the first being 
 
            in May 1989 which involved excision of a lumbar disc at the 
 
            L5-1 level on the left side and another surgery on August 
 
            10, 1989 which also involved a similar area (L4-L5).  
 
            Claimant was off work all the time between these two 
 
            surgeries.  Claimant said he was no better after the first 
 
            surgery and after his second surgery he still has 
 
            considerable pain and problems with his back, leg and foot.
 
            
 
                 Claimant described in part some of his medical 
 
            treatment by the doctors and his current restrictions which 
 
            he said are a 20 pound lifting limit and no repetitive 
 
            bending or stooping.  Claimant went through a work hardening 
 
            and therapy program and he said eventually he could no 
 
            longer stand the rigors of the program.  Claimant said he is 
 
            no longer able to do the job he was doing with defendant 
 
            employer on March 1, 1989, and that the subsequent job he 
 
            has had upon returning to work has been difficult for him as 
 
            it requires him standing in one spot most of the day 
 
            handling molding and the presses.  He requested 
 
            approximately ten days ago to go to another job he could do 
 
            that complied with his restrictions.  Defendant employer 
 
            accommodated him and he began his job one day before the 
 
            hearing.  Claimant believes this job will suit his 
 
            restrictions and enables him to move around and change 
 
            positions.  He indicated this job will pay approximately 
 
            $1.00 per hour less than he earned on March 1, 1989 as a 
 
            finish operator.  This hourly rate is also less than he was 
 
            earning at the molding press job.
 
            
 
                 Claimant said he is unable to do any other job with 
 
            defendant employer due to his injury except his current 
 
            service operator job and the molding press job.  He 
 
            emphasized he could do the other jobs if available to him 
 
            had he not been injured on March 1, 1989.   Claimant named 
 
            several of the jobs now foreclosed to him due to his work 
 
            injury.
 
            
 
                 Claimant related he has been skipped over as to other 
 
            jobs due to his restrictions notwithstanding his seniority.  
 
            He understands his current job is classified as a temporary 
 
            vacation replacement job but believe it is to be permanent 
 
            in light of his restrictions.  Claimant emphasized he 
 
            intends to keep working for defendant employer.
 
            
 
                 Claimant said he has not worked overtime since his 
 
            injury but did add his work position prior to his March 1, 
 
            1989 injury did involve overtime.
 
            
 
                 Claimant said his health prior to March 1, 1989 was 
 
            good and he has never had any similar prior back problems.
 
            
 
                 Claimant related his continued problems with his back, 
 
            leg and right foot being numb from the top to his toes.  He 
 
            said he has to be careful as he has fallen due to the numb 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            feeling in his foot and is unable to run up and down the 
 
            stairs, ride in a car for a long period of time, climb 
 
            ladders and do the many other types of labor jobs for 
 
            friends that he was able to do prior to March 1, 1989.
 
            
 
                 Claimant was given a prescription by the Iowa City 
 
            doctors to get two pair of Nike, hiking, running shoes for 
 
            work to help his foot condition.  He obtained these and took 
 
            them home to use.  Defendants contend that later a doctor 
 
            reduced this to one pair but claimant said he had already 
 
            worn them and couldn't return a pair.  There is confusing 
 
            testimony as if there was a third pair bought and maybe paid 
 
            for by defendants, but there is no evidence to 
 
            satisfactorily confirm this.  Claimant desires to be 
 
            reimbursed for the $288 for the two pair of prescribed 
 
            shoes.
 
            
 
                 Claimant said he last visited the University of Iowa 
 
            Medical Clinic to see Ernest M. Found, Jr., M.D., around the 
 
            end of 1990.  He was told to lose weight.  He said 260 
 
            pounds was his heaviest and he is now down to 222.
 
            
 
                 Claimant's medical records in February 1985 indicates 
 
            claimant had a strain in his low back but it appears he has 
 
            no residue from this condition in 1989 and is therefore of 
 
            no consequence herein.
 
            
 
                 Claimant treated with William A. Vance, D.C., until 
 
            approximately April 3, 1989, at which time he was referred 
 
            to an orthopedic surgeon.  Claimant was not getting the 
 
            desired results.
 
            
 
                 On April 17, 1989, claimant entered the hospital with a 
 
            diagnosis of a herniated nucleus pulposis L5-S1.  He was 
 
            discharged April 19, 1989, with no noticeable change in his 
 
            condition.
 
            
 
                 Ernest M. Found, Jr., M.D., an orthopedic surgeon, 
 
            testified through his deposition on April 2, 1991 
 
            (Claimant's Exhibit 7) that he followed claimant through the 
 
            two week rehabilitation program in the University of Iowa 
 
            Hospitals and Clinics.  He said claimant was last at the 
 
            clinic on February 28, 1991.  He said claimant had a 
 
            functional capacity test at the conclusion of his 
 
            rehabilitation program.  After claimant had gone through 
 
            this spine and diagnostic clinic in Iowa City, Dr. Found 
 
            found that claimant has a 13 percent body as a whole 
 
            permanent impairment.  This was also stated in a March 31, 
 
            1990 report of the doctor (Cl. Ex. 3, p. 72).  In this 
 
            report the claimant was congratulated by the clinic by the 
 
            gains he made in the program.  It is obvious from claimant's 
 
            exhibit 3 that claimant was very motivated and put in a good 
 
            effort in this program.
 
            
 
                 On January 28, 1991, Dr. Found wrote that claimant's 
 
            restrictions are:  "[H]is one time lifting limit, or lift 
 
            not to be done more than four times per hour, is 20 pounds.  
 
            A repetitive lifting limit for Mr. Kay is 10 pounds.  At the 
 
            present time, he is certainly released to work a full 40-
 
            hour week but is limited to sitting or standing in one 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            position for one half hour at a time." (Cl. Ex. 6, p. 89)  
 
            There appears to have been no change in those restriction to 
 
            the present time.  On June 14, 1991, Dr. Found was given by 
 
            the defendant employer a job description of "servicemen" to 
 
            review.  Since claimant and the employer agreed this job was 
 
            within claimant's restrictions and is something claimant 
 
            wants to do, the doctor okayed claimant trying it 
 
            (Defendants' Exhibit B, p. 38).  This is the job claimant 
 
            currently has as to which claimant testified earlier herein 
 
            that he worked for approximately one day as of the date of 
 
            his trial.
 
            
 
                 The only dispute here is the extent of claimant's 
 
            industrial disability.  Claimant had a healing period of 
 
            62.571 weeks to which the parties stipulated and which has 
 
            been paid.  On the medical records it is obvious claimant's 
 
            pain is real and that claimant has a chronic back injury as 
 
            a result of the March 1, 1989 work injury.  There is no 
 
            evidence that additional surgeries would help claimant and 
 
            it is also evident that the surgeries claimant has had have 
 
            not solved claimant's problems as desired and as it appears 
 
            originally thought would occur because of the surgeries.  
 
            Claimant had surgery on May 22, 1989, involving the excision 
 
            of the L5-S1 disc at the lumbosacral level. (Cl. Ex. 12, p. 
 
            111).  On August 10, 1989, claimant had a hemilaminectomy, 
 
            L4, L5 disc under microscopic technique, revision of L5, S1 
 
            with a foraminotomy extended in the lateral one as well as 
 
            at the L4-5 level (Cl. Ex. 14, p. 122).
 
            
 
                 Claimant has rather severe lifting restrictions and 
 
            also restrictions as to standing or sitting in one position 
 
            for a period longer than one-half hour at a time.  Claimant 
 
            has a 13 percent permanent impairment to his body as a 
 
            whole.  Claimant obviously has been foreclosed from doing 
 
            the particular job that he was doing at the time of his 
 
            injury on March 1, 1989, and certain other jobs with 
 
            defendant employer since that time.  It appears basically 
 
            that the only job he has really been able to do 
 
            satisfactorily at the present time is the job he has worked 
 
            at only one day as a serviceman with defendant employer.  
 
            The job just prior to that was causing him problems because 
 
            of his inability to move from one spot.  Claimant is making 
 
            approximately $1.00 less per hour than he was making at his 
 
            job on March 1, 1989.  This appears to be a difference of 
 
            approximately $10.60 per hour and $11.60 per hour.
 
            
 
                 The employer should be congratulated for making 
 
            sincere, reasonable and a concerted effort to accommodate 
 
            claimant.  This obviously substantially reduces the extent 
 
            of claimant's industrial disability.  This action by the 
 
            employer is beneficial to all parties involved.  The fact 
 
            still remains that claimant has a loss of earning capacity 
 
            and has a back condition that forecloses many types of 
 
            employment from him.  Were it not for defendant employer 
 
            accommodating claimant's condition and restrictions, there 
 
            is a serious question as to claimant's employability taking 
 
            into consideration his age, education, transferable skills, 
 
            etc.  Claimant is hopeful and it appears currently that 
 
            claimant will continue in his employment with defendant 
 
            employer.  Claimant indicated that his job is referred to as 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            a temporary vacation replacement job but that his job seems 
 
            secure as this is a job given to him to accommodate his 
 
            restrictions.  There was no testimony of defendants 
 
            indicating that claimant's job is, in fact, only temporary 
 
            and not a full-time permanent job.
 
            
 
                 Taking into consideration claimant's prior and current 
 
            medical history, work history, limited education, 
 
            transferable skills, nature and location and severity of his 
 
            injury, extent of his healing period, his age, motivation 
 
            and functional impairment, loss of income, and defendants' 
 
            very good efforts to accommodate claimant's restrictions, 
 
            the undersigned finds that claimant has incurred a 30 
 
            percent industrial disability.  The undersigned again must 
 
            emphasize and congratulate defendant employer for the effort 
 
            in accommodating claimant's restrictions due to his March 1, 
 
            1989 work injury.  This effort has had a substantial effect 
 
            on the extent of claimant's industrial disability.
 
            
 
                 Claimant desires reimbursement for $288 for the cost of 
 
            a prescription for Nike shoes.  The undersigned finds that 
 
            claimant should be reimbursed for that amount or reimburse 
 
            the amount he has already paid toward said shoes and pay the 
 
            vendor the balance that is owed on any account regarding the 
 
            same.  The undersigned finds that a prescription was, in 
 
            fact, given for the shoes and although there may have been a 
 
            later retraction, even though it does not appear to be in 
 
            the record as to any exhibits, claimant had already obtained 
 
            the shoes and began wearing them and it would be hard to 
 
            return them.  There is no evidence that defendants have paid 
 
            for a third pair.
 
            
 
                                conclusions of law
 
            
 
                 Functional impairment is an element to be considered in 
 
            determining industrial disability which is the reduction of 
 
            earning capacity, but consideration must also be given to 
 
            the injured employee's age, education, qualifications, expe
 
            rience and inability to engage in employment for which he is 
 
            fitted.  Olson v. Goodyear Service Stores, 255 Iowa 1112, 
 
            125 N.W.2d 251 (1963).  Barton v. Nevada Poultry, 253 Iowa 
 
            285, 110 N.W.2d 660 (1961).
 
            
 
                 A finding of impairment to the body as a whole found by 
 
            a medical evaluator does not equate to industrial disabil
 
            ity.  This is so as impairment and disability are not syn
 
            onymous.  Degree of industrial disability can in fact be 
 
            much different than the degree of impairment because in the 
 
            first instance reference is to loss of earning capacity and 
 
            in the latter to anatomical or functional abnormality or 
 
            loss.  Although loss of function is to be considered and 
 
            disability can rarely be found without it, it is not so that 
 
            a degree of industrial disability is proportionally related 
 
            to a degree of impairment of bodily function.
 
            
 
                 Factors to be considered in determining industrial dis
 
            ability include the employee's medical condition prior to 
 
            the injury, immediately after the injury, and presently; the 
 
            situs of the injury, its severity and the length of healing 
 
            period; the work experience of the employee prior to the 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            injury, after the injury and potential for rehabilitation; 
 
            the employee's qualifications intellectually, emotionally 
 
            and physically; earnings prior and subsequent to the injury; 
 
            age; education; motivation; functional impairment as a 
 
            result of the injury; and inability because of the injury to 
 
            engage in employment for which the employee is fitted.  Loss 
 
            of earnings caused by a job transfer for reasons related to 
 
            the injury is also relevant.  These are matters which the 
 
            finder of fact considers collectively in arriving at the 
 
            determination of the degree of industrial disability.
 
            
 
                 There are no weighting guidelines that indicate how 
 
            each of the factors are to be considered.  There are no 
 
            guidelines which give, for example, age a weighted value of 
 
            ten percent of the total value, education a value of fifteen 
 
            percent of total, motivation - five percent; work experience 
 
            - thirty percent, etc.  Neither does a rating of functional 
 
            impairment directly correlate to a degree of industrial 
 
            disability to the body as a whole.  In other words, there 
 
            are no formulae which can be applied and then added up to 
 
            determine the degree of industrial disability.  It therefore 
 
            becomes necessary for the deputy or commissioner to draw 
 
            upon prior experience, general and specialized knowledge to 
 
            make the finding with regard to degree of industrial dis
 
            ability.  See Peterson v. Truck Haven Cafe, Inc., (Appeal 
 
            Decision, February 28, 1985); Christensen v. Hagen, Inc., 
 
            (Appeal Decision, March 26, l985).
 
            
 
                 It is further concluded that:
 
            
 
                 Claimant has incurred the following restrictions as a 
 
            result of a work-related March 1, 1989 injury: One time 
 
            lifting limit, or lift not to be done more than four times 
 
            per hour, of 20 pounds.  A repetitive lifting limit of 10 
 
            pounds.  Claimant is  limited to sitting or standing in one 
 
            position for one half hour at a time.
 
            
 
                 Claimant has incurred a 13 percent permanent impairment 
 
            rating to the body as whole as a result of his March 1, 1989 
 
            work-related injury.
 
            
 
                 Defendants have accommodated claimant and his medical 
 
            restrictions so as to enable claimant to continue employment 
 
            with defendant employer.
 
            
 
                 Claimant is entitled to be reimbursed or have paid for 
 
            him the sum of $288 for the two medically prescribed shoes.
 
            
 
                 Claimant has incurred a 30 percent industrial 
 
            disability as a result of a March 1, 1989 work-related 
 
            injury. 
 
            
 
                                      order
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 That claimant is entitled to one hundred fifty (150) 
 
            weeks of permanent partial disability benefits at the weekly 
 
            stipulated rate of two hundred sixty-seven and 43/100 
 
            dollars ($267.43) beginning June 11, 1990.
 

 
            
 
            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 have 
 
            stipulated that as of the day of the hearing defendants had 
 
            paid sixty-two point five seven one (62.571) weeks of 
 
            healing period, which period is not in dispute, and have 
 
            paid fifty-four (54) weeks of permanent partial disability 
 
            benefits and two hundred one and 01/100 dollars ($201.01) of 
 
            temporary partial disability benefits.
 
            
 
                 That all of these benefits totaled thirty-one thousand 
 
            three hundred seventy-six and 14/100 dollars ($31,376.14).
 
            
 
                 That defendants shall pay or reimburse claimant in the 
 
            amount of two hundred eighty-eight ($288) for the cost of 
 
            the two pair of medically prescribed shoes.
 
            
 
                 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 June, 1991.
 
            
 
            
 
            
 
                                          ______________________________
 
                                          BERNARD J. O'MALLEY
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            
 
            Copies to:
 
            
 
            Mr James P Hoffman
 
            Attorney at Law
 
            Middle Road
 
            Keokuk IA 52632-1087
 
            
 
            Mr Harry Dahl
 
            Attorney at Law
 
            974 73rd Ste  Ste 16
 
            Des Moines IA 50312
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                      5-1803
 
                      Filed June 28, 1991
 
                      Bernard J. O'Malley
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            JAMES KAY,                    :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :       File No. 910510
 
            UNITED TECHNOLOGIES           :
 
            AUTOMOTIVE (formerly known    :
 
            as SHELLER-GLOBE)             :
 
                                          :     A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            CIGNA,                        :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            5-1803
 
            Found 32-year-old claimant incurred a 30% industrial 
 
            disability.  Claimant had two surgeries L4-5 and L5-S1 and 
 
            restrictions of not lifting over 20 pounds four times an 
 
            hour, no repetitive lifting of over 10 pounds and no 
 
            standing or sitting in one spot for more than one-half hour.
 
            Employer accommodated claimant in a job within his 
 
            restrictions at approximately 10% less hourly wage.
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                      BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
            
 
                        
 
            DONALD PEEK,     
 
                        
 
                 Claimant,   
 
                        
 
            vs.         
 
                                               File No. 910511
 
            SUPER VALU,      
 
                                                 A P P E A L
 
                 Employer,   
 
                                               D E C I S I O N
 
            and         
 
                        
 
            LIBERTY MUTUAL INSURANCE,       
 
                        
 
                 Insurance Carrier,    
 
                 Defendants.      
 
            ____________________________________________________________
 
            
 
            The record, including the transcript of the hearing before 
 
            the deputy and all exhibits admitted into the record, has 
 
            been reviewed de novo on appeal.  The decision of the deputy 
 
            filed July 15, 1991 is affirmed and is adopted as the final 
 
            agency action in this case.
 
            
 
            That claimant and defendants shall share equally the costs 
 
            of the appeal including transcription of the hearing.  
 
            
 
            Signed and filed this ____ day of March, 1993.
 
            
 
            
 
            
 
            
 
                                   ________________________________
 
                                           BYRON K. ORTON
 
                                     INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Harry W. Dahl
 
            Attorney at Law
 
            974 73rd St., Ste 16
 
            Des Moines, Iowa 50312
 
            
 
            Mr. Richard G. Book
 
            Attorney at Law
 
            500 Liberty Bldg.
 
            Des Moines, Iowa 50309
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                              1700; 4000.2
 
                                              Filed March 10, 1993
 
                                              Byron K. Orton
 
                                              PJL
 
            
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                        
 
            DONALD PEEK,     
 
                        
 
                 Claimant,   
 
                        
 
            vs.         
 
                                              File No. 910511
 
            SUPER VALU,      
 
                                               A P P E A L
 
                 Employer,   
 
                                              D E C I S I O N
 
            and         
 
                        
 
            LIBERTY MUTUAL INSURANCE,       
 
                        
 
                 Insurance Carrier,    
 
                 Defendants.      
 
            ____________________________________________________________
 
           
 
            
 
            1700; 4000.2
 
            Defendants had voluntarily paid claimant approximately 
 
            $50,000 in all classifications of benefits (ttd, tpd and 
 
            ppd) on a prior work comp claim.  The case went to hearing 
 
            and claimant was awarded only ttd benefits, resulting in a 
 
            substantial overpayment (approximately $44,000).  
 
            Claimant received another unknown related injury.  
 
            Defendants refused to pay any benefits, claiming credit for 
 
            the previous payments.  Claimant sought penalty benefits.
 
            Credit denied.  Although there is no definitive case law 
 
            regarding credit taken on two or more claims, it was held 
 
            that defendants were not entitled to a "running" credit.
 
            Penalty benefits denied, as the defendants' refusal to pay 
 
            was reasonable, as the claim was fairly debatable.  Dodd v. 
 
            Oscar Mayer Foods Corp., (Penalty Decn. April 27, 1989).
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            DONALD PEEK,                  :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No.  910511
 
            SUPER VALU,                   :
 
                                          :  A R B I T R A T I O N
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            LIBERTY MUTUAL INSURANCE,     :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding in arbitration brought by Donald 
 
            Peek against Super Valu Stores, Inc., employer, and Liberty 
 
            Mutual Insurance Company, insurance carrier. 
 
            
 
                 Claimant alleges that he sustained a compensable injury 
 
            to his back on January 15, 1988.  
 
            
 
                 The case was heard at Des Moines, Iowa, on March 20, 
 
            1991.  The case was considered fully submitted upon 
 
            conclusion of the hearing, although leave was granted so 
 
            that the parties could file briefs.
 
            
 
                 The record in this proceeding consists of the testimony 
 
            of the claimant, Donald Comstock, and Gina Benzshawel; and 
 
            joint exhibits A, A-1, B, B-1, and D through K.  Official 
 
            notice was taken of agency file 784000, which is currently 
 
            on appeal.  
 
            
 
                                      issues
 
            
 
                 The parties presented the following issues for 
 
            resolution:
 
            
 
                 1.  Whether claimant's work-related injury is causally 
 
            related to his permanent disability;
 
            
 
                 2.  Whether claimant is entitled to temporary 
 
            disability or healing period benefits or permanent partial 
 
            or permanent total disability benefits;
 
            
 
                 3.  Claimant's workers' compensation rate;
 
            
 
                 4.  Whether defendants are entitled to a credit against 
 
            any potential award for benefits paid in a prior claim; and
 
            
 
                 5.  Whether defendants are liable for the payment of 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            penalty benefits pursuant to Iowa Code section 86.13(4).
 
            
 
                                 findings of fact
 
            
 
                 The undersigned deputy, having reviewed all of the 
 
            evidence received, finds the following facts:
 
            
 
                 Claimant, Donald Peek, was born July 13, 1935.  He is 
 
            married and completed the ninth grade.  
 
            
 
                 Claimant began working in grocery stores and warehouses 
 
            when he was 16 years of age.  He described his employment as 
 
            heavy, labor intensive type of work and the physical 
 
            requirements mandated that he lift between 20 and 100 
 
            pounds.  
 
            
 
                 On June 5, 1960, claimant became employed at the Super 
 
            Valu Stores in the warehouse.  His first position was as a 
 
            warehouseman and his duties included filling orders, loading 
 
            orders, towing and hauling freight and operating fork lifts 
 
            and jacks.  These duties required claimant to stoop, bend, 
 
            twist and lift weights of between 20 and 100 pounds.
 
            
 
                 At the time of his injury on January 15, 1988, claimant 
 
            was working as a freight hauler.  He described this as the 
 
            easiest job in the warehouse because the position did not 
 
            require as much lifting as other positions.  As a freight 
 
            hauler, claimant sits on a jack, which is similar to a fork 
 
            lift, and hauls pallets.  The operation of a freight hauler 
 
            does require claimant to twist his neck and back to operate 
 
            buttons on the front and back of the machine.  He works 40 
 
            hours per week with overtime on occasion.  He is paid on an 
 
            hourly basis.  
 
            
 
                 On January 15, 1988, claimant was operating a freight 
 
            hauler which was without a protective hood.  As he was 
 
            hauling pallets of paper towels, two boxes fell, one hitting 
 
            him on the head and one hitting him on the hand.  He went 
 
            home early as he was suffering from neck pain with an 
 
            accompanying headache.  Although claimant has suffered from 
 
            headaches in the past, he described this pain as more 
 
            intense, starting from the base of his skull and moving into 
 
            his shoulders.
 
            
 
                 Claimant reported to work on the following Monday and 
 
            told his supervisor about the accident.  He was sent to 
 
            Robert A. Hayne, M.D., a Des Moines neurosurgeon (joint 
 
            exhibit B, 12, page 160; jt. ex. B-1, 4, p. 23).  During 
 
            this time, on or about January 18, 1988, claimant also 
 
            underwent a myelogram for his back condition (jt. ex. B-1, 
 
            4, pp. 24-26).  
 
            
 
                 The first notes from Dr. Hayne which indicate neck pain 
 
            are dated February 22, 1988.  Dr. Hayne diagnosed a neck 
 
            strain and prescribed physiotherapy three times a week for 
 
            three weeks.  Claimant was to be off work until February 29, 
 
            1988 (jt. ex. B-1, 4, p. 27; jt. ex. B, 12, pp. 164-165).  
 
            
 
                 Due to persistent pain after the conservative 
 
            treatment, Dr. Hayne referred claimant to the University of 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            Iowa Hospitals and Clinics (jt. ex. B, 12, p. 168).
 
            
 
                 The company doctor, David Berg, D.O., also treated 
 
            claimant from his initial injury in January of 1988 through 
 
            October 17, 1988 (jt. ex. B-1, 6, pp. 128-132).  At some 
 
            point, Dr. Berg was replaced by Michael Makowsky, M.D., as 
 
            claimant's treating physician.  Dr. Makowsky reported to 
 
            Liberty Mutual that claimant had been missing work due to 
 
            the neck injury since January 15, 1988 (jt. ex. B-1, 6, pp. 
 
            130-131; jt. ex. J, p. 12).  
 
            
 
                 Claimant was referred to the University of Iowa 
 
            Hospitals and Clinics in Iowa City for an evaluation of his 
 
            neck injury on July 14, 1989 (jt. ex. B-1, 1).  In Iowa 
 
            City, claimant was treated by Mark Ross, M.D., and Jeff 
 
            Nicholson, a licensed physical therapist.  Dr. Ross reported 
 
            that upon physical examination claimant presented with 
 
            muscle tension of the neck muscles.  His neurological exam 
 
            was normal and all laboratory data was normal.  Dr. Ross 
 
            prescribed amitriptyline and Disalcid therapy and a repeat 
 
            trial of a TENS unit (jt. ex. B-1, 1, pp. 1-2).  A review of 
 
            the CT/myelogram showed degenerative joint disease at the 
 
            C3-4, C4-5 and C5-6 levels.  Claimant's symptoms were 
 
            considered consistent with a diagnosis of myofascial pain 
 
            syndrome and it was not recommended that he have surgery 
 
            (jt. ex. B-1, 1, pp. 6-7).
 
            
 
                 Claimant continued to suffer from neck pain and Dr. 
 
            Hayne scheduled surgery for October 12, 1989.  The surgery 
 
            was cancelled by defendant insurance company on October 6, 
 
            1989 (jt. ex. B-1).  Claimant returned to work on October 9, 
 
            1989, per Dr. Makowsky's release.  Claimant continued to 
 
            complain of neck pain.  He again saw Dr. Makowsky on 
 
            November 7, 1989.  He referred claimant to Dr. Hayne, who 
 
            finally performed a cervical fusion at the C4-5 level on 
 
            November 16, 1989 (jt. ex. B-1, 6, pp. 133-134).
 
            
 
                 The diagnosis was spondylosis at the fourth and fifth 
 
            cervical interspaces (jt. ex. B-1, 6, pp. 133-134).  
 
            
 
                 Claimant remained off of work until March 15, 1990, 
 
            when he was released to return to his job as a freight 
 
            hauler.  
 
            
 
                 Eventually, Dr. Hayne assessed claimant's condition:
 
            
 
                 I feel that Donald Peek has an 8% of total 
 
                 permanent disability resulting from the January 
 
                 15, 1988, injury and the surgery which was carried 
 
                 out for alleviation of the symptoms referable to 
 
                 the neck.  The symptoms appear to have been 
 
                 precipitated by this injury in January 1988.  
 
                 Probably of this 8% of total disability, perhaps 
 
                 half of it is due to the condition existing before 
 
                 the January 1988 accident.
 
            
 
            (joint exhibit B-1, 4, page 61)
 
            
 
                         analysis and conclusions of law
 
            
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
                 The first issue to be addressed is whether there is a 
 
            causal relationship between claimant's injury of January 15, 
 
            1988, and his permanent disability.
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury of January 15, 
 
            1988, is causally related to the disability on which he now 
 
            bases his claim.  Bodish v. Fischer, Inc., 257 Iowa 516, 133 
 
            N.W.2d 867 (1965).  Lindahl v. L. O. Boggs, 236 Iowa 296, 18 
 
            N.W.2d 607 (1945).  A possibility is insufficient; a 
 
            probability is necessary.  Burt v. John Deere Waterloo 
 
            Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955).  The 
 
            question of causal connection is essentially within the 
 
            domain of expert testimony.  Bradshaw v. Iowa Methodist 
 
            Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). 
 
            
 
                 However, expert medical evidence must be considered 
 
            with all other evidence introduced bearing on the causal 
 
            connection.  Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion 
 
            of experts need not be couched in definite, positive or 
 
            unequivocal language.  Sondag v. Ferris Hardware, 220 N.W.2d 
 
            903 (Iowa 1974).  However, the expert opinion may be 
 
            accepted or rejected, in whole or in part, by the trier of 
 
            fact.  Id., at 907.  Further, the weight to be given to such 
 
            an opinion is for the finder of fact, and that may be 
 
            affected by the completeness of the premise given the expert 
 
            and other surrounding circumstances.  Bodish, 257 Iowa 516, 
 
            133 N.W.2d 867.  See also Musselman v. Central Telephone 
 
            Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
            
 
                 Furthermore, if the available expert testimony is 
 
            insufficient alone to support a finding of causal 
 
            connection, such testimony may be coupled with nonexpert 
 
            testimony to show causation and be sufficient to sustain an 
 
            award.  Giere v. Aase Haugen Homes, Inc., 259 Iowa 1065, 146 
 
            N.W.2d 911, 915 (1966).  Such evidence does not, however, 
 
            compel an award as a matter of law.  Anderson v. Oscar Mayer 
 
            & Co., 217 N.W.2d 531, 536 (Iowa 1974).  To establish 
 
            compensability, the injury need only be a significant 
 
            factor, not be the only factor causing the claimed 
 
            disability.  Blacksmith v. All-American, Inc., 290 N.W.2d 
 
            348, 354 (Iowa 1980).
 
            
 
                 While a claimant is not entitled to compensation for 
 
            the results of a preexisting injury or disease, the mere 
 
            existence at the time of a subsequent injury is not a 
 
            defense.  Rose v. John Deere Ottumwa Works, 247 Iowa 900, 
 
            908, 76 N.W.2d 756, 760-61 (1956).  If the claimant had a 
 
            preexisting condition or disability that is aggravated, 
 
            accelerated, worsened or lighted up so that it results in 
 
            disability, claimant is entitled to recover.  Nicks v. 
 
            Davenport Produce Co., 254 Iowa 130, 115 N.W.2d 812, 815 
 
            (1962).
 
            
 
                 There is no doubt that claimant suffers from 
 
            preexisting problems in his spine.  His past medical history 
 
            of back pain is long-standing and has been treated as a 
 
            chronic condition.  A review of the entire record reveals 
 
            that claimant has had back problems as early as 1972.  He 
 
            has missed work on account of back pain which has been 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            associated with degenerative arthritic conditions.  He has 
 
            undergone numerous tests, including myelograms, CT scans, 
 
            MRI's, and EMG's.  Most of the medical treatment has focused 
 
            on claimant's lumbar spine as opposed to the cervical spine.  
 
            In fact, references to the neck are sparse.  
 
            
 
                 Dr. Hayne, claimant's primary physician, has indicated 
 
            that claimant's neck condition is partially related to the 
 
            injury of January 15, 1988.  In fact, Dr. Hayne assesses 
 
            one-half of the permanency to the injury and the other half 
 
            of the permanency is related to degenerative changes.
 
            
 
                 Claimant's testimony was consistent with the documented 
 
            histories contained in the medical records and Donald 
 
            Comstock, who also testified at the hearing, described the 
 
            incident in the same manner as claimant.  
 
            
 
                 After reviewing all of the evidence, it is found that 
 
            claimant has sustained his burden of proof and has shown 
 
            that the work-related injury is causally related to the 
 
            disability.
 
            
 
                 The next issue to be addressed is whether claimant is 
 
            entitled to temporary total or healing period benefits, or 
 
            permanent partial or permanent total disability benefits.
 
            
 
                 As a general rule, temporary total disability benefits 
 
            are awarded in the event that a claimant sustains an injury 
 
            which does not cause any permanent disability.  Healing 
 
            period benefits are awarded in the event a claimant 
 
            sustained a permanent disability.  See Iowa Code sections 
 
            85.33 and 85.34.
 
            
 
                 As it has been established that claimant sustained a 
 
            permanent disability, claimant is awarded healing period 
 
            benefits for the time he was off work recuperating from his 
 
            neck injury from March 6, 1988 to October 16, 1988 and from 
 
            November 6, 1989 to March 5, 1990, as stipulated by the 
 
            parties in the prehearing report.
 
            
 
                 As claimant has sustained a permanent disability 
 
            entitling him to healing period benefits and because 
 
            claimant has sustained a nonscheduled injury, an analysis of 
 
            claimant's industrial disability is warranted.
 
            
 
                 Functional impairment is an element to be considered in 
 
            determining industrial disability which is the reduction of 
 
            earning capacity, but consideration must also be given to 
 
            the injured employee's age, education, qualifications, expe
 
            rience and inability to engage in employment for which he is 
 
            fitted.  Olson v. Goodyear Service Stores, 255 Iowa 1112, 
 
            125 N.W.2d 251 (1963).  Barton v. Nevada Poultry, 253 Iowa 
 
            285, 110 N.W.2d 660 (1961).
 
            
 
                 A finding of impairment to the body as a whole found by 
 
            a medical evaluator does not equate to industrial disabil
 
            ity.  This is so as impairment and disability are not syn
 
            onymous.  Degree of industrial disability can in fact be 
 
            much different than the degree of impairment because in the 
 
            first instance reference is to loss of earning capacity and 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            in the latter to anatomical or functional abnormality or 
 
            loss.  Although loss of function is to be considered and 
 
            disability can rarely be found without it, it is not so that 
 
            a degree of industrial disability is proportionally related 
 
            to a degree of impairment of bodily function.
 
            
 
                 Factors to be considered in determining industrial dis
 
            ability include the employee's medical condition prior to 
 
            the injury, immediately after the injury, and presently; the 
 
            situs of the injury, its severity and the length of healing 
 
            period; the work experience of the employee prior to the 
 
            injury, after the injury and potential for rehabilitation; 
 
            the employee's qualifications intellectually, emotionally 
 
            and physically; earnings prior and subsequent to the injury; 
 
            age; education; motivation; functional impairment as a 
 
            result of the injury; and inability because of the injury to 
 
            engage in employment for which the employee is fitted.  Loss 
 
            of earnings caused by a job transfer for reasons related to 
 
            the injury is also relevant.  These are matters which the 
 
            finder of fact considers collectively in arriving at the 
 
            determination of the degree of industrial disability.
 
            
 
                 There are no weighting guidelines that indicate how 
 
            each of the factors are to be considered.  There are no 
 
            guidelines which give, for example, age a weighted value of 
 
            ten percent of the total value, education a value of fifteen 
 
            percent of total, motivation - five percent; work experience 
 
            - thirty percent, etc.  Neither does a rating of functional 
 
            impairment directly correlate to a degree of industrial 
 
            disability to the body as a whole.  In other words, there 
 
            are no formulae which can be applied and then added up to 
 
            determine the degree of industrial disability.  It therefore 
 
            becomes necessary for the deputy or commissioner to draw 
 
            upon prior experience, general and specialized knowledge to 
 
            make the finding with regard to degree of industrial dis
 
            ability.   See Peterson v. Truck Haven Cafe, Inc., (Appeal 
 
            Decision, February 28, 1985); Christensen v. Hagen, Inc., 
 
            (Appeal Decision, March 26, l985).
 
            
 
                 At the time of the hearing, claimant was 55 years of 
 
            age.  Claimant quit school after completing the ninth grade 
 
            and went to work for grocery stores and warehouses.  He has 
 
            worked for the defendant employer for more than 30 years.  
 
            As an employee at Super Valu in the warehouse, claimant has 
 
            held many positions and has gained high seniority status.  
 
            The plant has had no significant lay offs since 1952 and 
 
            claimant is unlikely to be laid off because of his seniority 
 
            status.
 
            
 
                 Claimant has returned to his full-time job as a freight 
 
            hauler.  This position was described as one of the easiest 
 
            jobs in the plant.  It requires no repetitive lifting, 
 
            although there is a certain amount of twisting associated 
 
            with the position.
 
            
 
                 Claimant is nearing retirement age and has been able to 
 
            perform the duties required of his position without problem.  
 
            However, it is noted that due to the work injury, claimant 
 
            has sustained a permanent loss.
 
            
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
                 After evaluating all the factors comprise an industrial 
 
            disability, it is found that claimant has sustained a 10 
 
            percent industrial disability.  This is based upon his 
 
            functional impairment rating, motivation to return to work, 
 
            ability to perform the duties required of him, and his 
 
            actual earnings which are indicative of his earning 
 
            potential.
 
            
 
                 The next issue to be addressed is claimant's workers' 
 
            compensation rate.  
 
            
 
                 Iowa Code section 85.36 provides in pertinent part:
 
            
 
                    The basis of compensation shall be the weekly 
 
                 earnings of the injured employee at the time of 
 
                 the injury.  Weekly earnings means gross salary, 
 
                 wages, or earnings of an employee to which such 
 
                 employee would have been entitled had the employee 
 
                 worked the customary hours for the full pay period 
 
                 in which the employee was injured, as regularly 
 
                 required by the employee's employer for the work 
 
                 or employment for which the employee was employed, 
 
                 computed or determined as follows and then rounded 
 
                 to the nearest dollar:
 
            
 
                    1.  In the case of an employee who is paid on a 
 
                 weekly pay period basis, the weekly gross 
 
                 earnings.
 
            
 
                 The evidence submitted by both parties indicates that 
 
            claimant was paid an hourly wage of $12.8150 per hour and 
 
            typically worked a 40-hour week.  As a result, his gross 
 
            weekly earnings for the 13 weeks prior to his injury are 
 
            $6,663.80.  The parties stipulated that claimant is married 
 
            and is entitled to two exemptions and his workers' 
 
            compensation rate is $316.34(1).
 
            
 
                 The next issues to be addressed are whether claimant is 
 
            entitled to penalty benefits as provided for under Iowa Code 
 
            section 86.13(4), and whether defendants should receive a 
 
            credit on this claim for benefits previously paid on a 
 
            different claim.  
 
            
 
                 Iowa Code section 86.13 provides in pertient part:
 
            
 
                    If a delay in commencement or termination of 
 
                 benefits occurs without reasonable or probable 
 
                 cause or excuse, the industrial commissioner shall 
 
                 award benefits in addition to those benefits 
 
                 payable under this chapter, or chapter 85, 85A, or 
 
                 85B, up to fifty percent of the amount of benefits 
 
                 that were unreasonably delayed or denied.
 
            
 
                 Intertwined with the issue of penalty benefits is the 
 
            issue of whether defendants are entitled to credit for 
 
            benefits previously paid pursuant to Iowa Code section 
 
            85.34(4) which provides:
 
            
 
                    If an employee is paid weekly compensation 
 
                 benefits for temporary total disability under 
 
            (1).  Guide to Iowa Workers' Compensation Claim Handling, 
 
            July 1, 1987.
 
            
 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
                 section 85.33, subsection 1, for a healing period 
 
                 under section 85.34, subsection 1, or for 
 
                 temporary partial disability under section 85.33, 
 
                 subsection 2, in excess of that required by this 
 
                 chapter and chapters 85A, 85B, and 86, the excess 
 
                 shall be credited against the liability of the 
 
                 employer for permanent partial disability under 
 
                 section 85.34, subsection 2, provided that the 
 
                 employer or the employer's representative has 
 
                 acted in good faith in determining and notifying 
 
                 an employee when the temporary total disability, 
 
                 healing period, or temporary partial disability 
 
                 benefits are terminated.
 
            
 
                 The facts and circumstances associated with claimant's 
 
            case present an interesting juxtaposition of issues.  
 
            Claimant had previously filed a claim for benefits which 
 
            proceeded to a hearing before the agency on May 11, 1989 
 
            (Peek v. Super Valu Stores, Inc., file number 784000 on 
 
            appeal).  In the prior case, it was found that claimant 
 
            sustained a temporary aggravation of a preexisting 
 
            degenerative disc disease and he was awarded temporary total 
 
            disability benefits for 13 3/7 weeks.  However, prior to the 
 
            hearing, claimant already had been paid a substantial amount 
 
            of workers' compensation benefits -- much more than the 
 
            amount awarded in the arbitration decision.
 
            
 
                 In the case at bar, defendants have refused to pay 
 
            claimant any benefits.  They argue that they are entitled to 
 
            credit for benefits previously paid and are, therefore, 
 
            relieved of responsibility to pay benefits on this claim.
 
            
 
                 As a result, claimant has asked for penalty benefits 
 
            and argue in support thereof that defendants unreasonably 
 
            withheld benefits, not only because no clear directive 
 
            exists as to the credit issue, but also because several 
 
            physicians causally related claimant's disability to the 
 
            work injury of January 15, 1988.
 
            
 
                 To support their position, defendants rely on Wilson 
 
            Food Corp. v. Cherry, 315 N.W.2d 756 (Iowa 1982).  In 
 
            Wilson, defendant sought credit for a mistake of 
 
            overpayments of healing period benefits against its 
 
            obligation to pay permanent partial disability benefits.  
 
            Wilson at 757.  Claimant argued that the employer had 
 
            control over the claim and actual or constructive knowledge 
 
            of claimant's condition.  Id.  And, claimant proposed that 
 
            the employer's negligent failure to efficiently administer 
 
            the claim creates a windfall to the claimant to which he is 
 
            entitled.  Id.
 
            
 
                 The court held that the employer was entitled to the 
 
            credit, even though claimant would be "seriously 
 
            inconvenienced" by allowing defendants the credit.  Id.
 
            
 
                 In so holding, the court stated that by allowing the 
 
            employer to recoup for his own error at the inconvenience to 
 
            the claimant "in the public interest will be better served 
 
            by encouraging employers to freely pay injured workers 
 
            without adversary strictness."  Wilson at 758.  Further, the 
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            court noted that the claimant would still receive every bit 
 
            of the awards to which he was properly and legally entitled, 
 
            Id.
 
            
 
                 The case at bar is distinguishable from the Wilson 
 
            case.  Here, claimant Peek is seeking new weekly benefits 
 
            for a completely separate and distinct injury.  To allow 
 
            defendants to take a credit for benefits previously paid on 
 
            a wholly different claim appears to more than just 
 
            "inconvenience" the claimant in this case; in fact, it has 
 
            forced Peek to receive no type of compensation benefits 
 
            during the time he has been off of work due to the 
 
            subsequent compensable injury.  In fact, defendants were 
 
            aware of the injury at work and did not dispute that 
 
            claimant's mishap arose out of and in the course of his 
 
            employment.  It is noted that claimant was receiving a 
 
            weekly check for the initial injury during the time he was 
 
            temporarily disabled from his job due to the subsequent 
 
            injury; however, there is no prohibition against receiving 
 
            healing period benefits from a recent injury while also 
 
            receiving permanent partial disability from a prior injury.
 
            
 
                 Ictive as to whether credits can be applied to future 
 
            claims, shows that the claim was fairly debatable.  No 
 
            penalty benefits shall be awarded.
 
            
 
                                      order
 
            
 
                 THEREFORE, IT IS ORDERED:
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
            
 
                 That defendants shall pay claimant healing period 
 
            benefits from March 6, 1988 to October 16, 1988 and from 
 
            November 6, 1989 to March 5, 1990, at the rate of three 
 
            hundred sixteen and 34/100 dollars ($316.34).
 
            
 
                 That defendants shall pay claimant permanent partial 
 
            disability benefits for fifty (50) weeks at the rate of 
 
            three hundred sixteen and 34/100 dollars ($316.34) 
 
            commencing on March 6, 1990.
 
            
 
                 That defendants shall paid accrued amounts in a lump 
 
            sum and shall receive credit against the award for weekly 
 
            benefits previously paid with respect to this claim. 
 
            
 
                 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 proceeding 
 
            pursuant to rule 343 IAC 4.33.
 
            
 
                 That defendants shall file a claim activity report as 
 
            requested by the agency pursuant to rule 343 IAC 3.1(2).
 
            
 
                 
 
            
 
                 
 
            
 
                 Signed and filed this ____ day of July, 1991.
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          PATRICIA J. LANTZ
 
                                          DEPUTY INDUSTRIAL COMMISSIONER    
 
            
 
            Copies to:
 
            
 
            Mr. Harry Dahl
 
            Attorney at Law
 
            974 - 73rd St. STE 16
 
            Des Moines, Iowa  50312
 
            
 
            Mr. Richard G. Book
 
            Attorney at Law
 
            500 Liberty Bldg.
 
            Des Moines, Iowa  50309
 
            
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
                      1700
 
                      Filed July 15, 1991
 
                      Patricia J. Lantz
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            DONALD PEEK,                  :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No.  910511
 
            SUPER VALU,                   :
 
                                          :  A R B I T R A T I O N
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            LIBERTY MUTUAL INSURANCE,     :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            1700
 
            Defendants had voluntarily paid claimant approximately 
 
            $50,000 in all classifications of benefits (ttd, tpd and 
 
            ppd) on a prior work comp claim.  The case went to hearing 
 
            and claimant was awarded only ttd benefits, resulting in a 
 
            substantial overpayment (approximately $44,000).  
 
            Claimant received another unknown related injury.  
 
            Defendants refused to pay any benefits, claiming credit for 
 
            the previous payments.  Claimant sought penalty benefits.
 
            Credit denied.  Although there is no definitive case law 
 
            regarding credit taken on two or more claims, it was held 
 
            that defendants were not entitled to a "running" credit.
 
            Penalty benefits denied, as to the defendants refusal to pay 
 
            was reasonable, as the claim was fairly debatable.  Dodd v. 
 
            Oscar Mayer Foods Corp., (Penalty Decn. April 27, 1989).
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            NADINE BALL,                  :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 910523
 
            H. J. HEINZ,                  :
 
                                          :     A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            LIBERTY MUTUAL INSURANCE      :
 
            COMPANY,                      :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This case came on for hearing on July 17, 1991, in 
 
            Davenport, 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 14, 1988.  The record in the proceeding 
 
            consists of the testimony of the claimant, Sharon Rogers, 
 
            Richard Johnson, Randy Sharff, and Kendall Kelly; claimant's 
 
            exhibits 1 and 2; and defendants' exhibits A through O.
 
            
 
                                      issues
 
            
 
                 The issues for resolution are:
 
            
 
                 1.  Whether claimant's alleged injury on July 14, 1988 
 
            arose out of and in the course of her employment;
 
            
 
                 2.  Whether claimant's alleged disability is causally 
 
            connected to a July 14, 1988 alleged work injury;
 
            
 
                 3.  The extent and nature of claimant's disability and 
 
            entitlement to disability benefits;
 
            
 
                 4.  Whether claimant gave timely notice as provided by 
 
            Iowa Code section 85.23; and
 
            
 
                 4.  Claimant's entitlement to 85.27 medical benefits, 
 
            causal connection being the issue.
 
            
 
                     
 
            
 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            findings of fact
 
            
 
                 The undersigned deputy having heard the testimony and 
 
            considered all the evidence, finds that:
 
            
 
                 Claimant is a 33-year-old who finished the ninth grade 
 
            and has not obtained her GED yet after several attempts.  
 
            Because of the nature of this decision discussion of certain 
 
            facts will be skipped or lightly addressed.
 
            
 
                 Claimant related her job history.  She began working at 
 
            defendant employer's on January 7, 1976, and worked there 
 
            until July 14, 1988.  Claimant testified as to her jobs 
 
            while working at defendant employer and their locations 
 
            within the plant.  Claimant related the working conditions 
 
            in regard to the temperature variances, the lack of exhaust 
 
            fans or ventilation, and the fumes caused by welding baskets 
 
            near and around her work locations.  She said the fumes 
 
            caused her nausea, headaches, burned eyes and breathing 
 
            problems.  She first notice this in July 1980.
 
            
 
                 Claimant related some of her various medical history 
 
            with the doctors and her complaints.  After leaving 
 
            defendant employer on July 14, 1988, claimant worked for 
 
            three months at Webbers and quit in December 1990 for a 
 
            better job at which she worked until May 14, 1991.  She has 
 
            not worked anywhere since that date.  Claimant contends she 
 
            has been unable to work because of her lungs and nervous 
 
            spells, all of which she relates to her injury at the 
 
            defendant employer.  She said the report of Paul From, M.D., 
 
            was incorrect as it was based on incorrect information which 
 
            she contends she did not give to the doctor.  She related 
 
            she had a collapsed lung in July 1980 and April 1983.  She 
 
            disagrees with any doctor who says these lung problems are 
 
            not work related.  She recalled the doctor told her her 
 
            condition was congenital.  Claimant acknowledged she started 
 
            smoking at the age of 13 and in her deposition taken on July 
 
            3, 1991, she said she continues to smoke even though the 
 
            doctor said she should stop.  Claimant seemed to downplay 
 
            the extent of smoking, but in the report of Peter S. Jerome, 
 
            M.D., dated July 8, 1991 (Defendants' O, page 3), his 
 
            history indicated she had told him that she denied currently 
 
            smoking but until recently used to smoke one package of 
 
            cigarettes per day since about age 13.
 
            
 
                 Claimant agreed she received $4,208.31 which was from 
 
            defendant employer's disability group plan to which she did 
 
            not contribute.  Claimant collected this for 26 weeks which 
 
            ended around January 12, 1989.  She then applied for social 
 
            security benefits and was denied.
 
            
 
                 Claimant said a psychiatrist took her off her job in 
 
            May 1991.  She said she was depressed because of losing a 
 
            child and a suicide problem with her daughter and claimant's 
 
            molestation as a child.  She does not relate her psychiatric 
 
            problems to her work.
 
            
 
                 Claimant said she had a laminectomy in October 1989 
 
            from unknown causes.
 
            
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
                 Sharon Rogers, an employee with defendant employer for 
 
            the last seventeen years, knows of claimant.  She is 
 
            familiar with the working conditions of defendant employer 
 
            in 1976 through 1988.  She basically affirmed claimant's 
 
            contention of the temperature variation, the ventilation 
 
            problem and fumes from welding.  She said part of this 
 
            period she works side by side with claimant.
 
            
 
                 Richard Johnson, a mechanic with defendant employer, 
 
            did welding in 1976 to 1979.  He said he had no protection 
 
            from the smoke and fumes at defendant employer and there was 
 
            no ventilation.  He said he got sick from the fumes and they 
 
            made him feel like he had the flu.
 
            
 
                 Randy Sharff began working with defendant employer in 
 
            September 1985 and knows claimant.  He said claimant never 
 
            complained to him as to her breathing.  He indicated that if 
 
            there was a problem, one could go to first aid or tell the 
 
            supervisor or lead person.  He said a mask was not needed 
 
            nor were chemicals used that required respiratory apparatus.  
 
            He acknowledged that his office on the third floor where 
 
            claimant worked was air conditioned and closed off from the 
 
            other machine area in which claimant worked.
 
            
 
                 Kendall Kelly, the personnel manager with defendant 
 
            employer, does not know claimant but does know she collected 
 
            accident and sick benefits for 26 weeks for a nonrelated 
 
            work injury.  He said defendants were ready to bring 
 
            claimant back to work but she had not been released by the 
 
            doctor to come to work.  He said it is the employee's 
 
            responsibility to bring the company a work release.  He said 
 
            claimant took severance pay April 6, 1990 of $1,000 plus ten 
 
            weeks' severance pay and claimant signed papers electing to 
 
            sever relationship with defendant employer.
 
            
 
                 Kelly said he never told claimant there was not a job 
 
            available.  He said she could have transferred to another 
 
            department, especially with her seniority.  He said she 
 
            never made a transfer request.  He said there are jobs 
 
            available within her restrictions but the temperature 
 
            changes may still be a problem.
 
            
 
                 Defendants' Exhibit K, page 1, is the only evidence of 
 
            notice in this case.  Claimant never testified as to her 
 
            injury date or whether she had given notice within the 
 
            requirements of 85.23.  Claimant has not disputed 
 
            defendants' exhibit K.  The undersigned finds that claimant 
 
            did not comply with 85.23 or its requirements and did not 
 
            give defendants a notice of this injury.  Taking the 
 
            evidence as a whole, there was no reason for the defendants 
 
            to presume she had an injury.  Although this issue alone 
 
            disposes of the case, the undersigned will address another 
 
            issue upon which claimant has failed in her burden.
 
            
 
                 Claimant's employee first aid medical records are 
 
            reflected in defendants' exhibit D, pages 1 through 100.  
 
            Pages 7 to 10 show various illnesses, releases and return to 
 
            work from 1976 into 1988.  Defendants' Exhibit B, pages 1 
 
            through 14 is claimant's insurance forms for insurance 
 
            payments to claimant under claimant's health or disability 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            plan.  In the years 1980, 1981 and 1983, it is obvious 
 
            claimant was troubled with spontaneous pnemothorax with 
 
            emphezematous blebs and congenital pulmonary blebs 
 
            bilaterally with recurrent pneumothorax.  Also, see 
 
            Defendants' Exhibit C, pages 1 through 7.  There are areas 
 
            checked on these exhibits in which claimant says her 
 
            problems are not work related.
 
            
 
                 On July 19, 1988, claimant filled out a group accident 
 
            sickness claim.  She stated her illness was not due to 
 
            injury (Def. Ex. B., p. 12).
 
            
 
                 On August 17, 1988, claimant filed a disability claim 
 
            for lung problems indicating she first noticed it on July 7, 
 
            1988, and her previous similar problems were in 1980.  On 
 
            February, 1989, she filed a continuing disability claim 
 
            (Def. Ex. B, pp. 13-14).  The undersigned notes that it is 
 
            obvious claimant wasn't considering her problem as a 
 
            workers' compensation injury at that time.  She also did not 
 
            correctly conclude that her only prior lung problems were in 
 
            1980.  These records regarding defendants' exhibits B and C 
 
            are involving V. Warren Swayze, M.D., who was involved with 
 
            her care during those times.
 
            
 
                 Akshay K. Mahadevia, M.D., a pulmonary specialist, gave 
 
            claimant a spirogram and a fiberoptic bronchoscopy in August 
 
            1988, which appeared normal.  His impression was that 
 
            claimant had bullous emphysema (Def. Ex. G, PP. 3 through 
 
            11).  On July 2, 1991, the doctor wrote:
 
            
 
                    It is my opinion with a reasonable degree of 
 
                 medical certainty that Mrs. Ball's condition, 
 
                 which is bullous emphysema, is not caused by her 
 
                 employment at Heinz USA, but to environmental 
 
                 factors that she was exposed to at work could have 
 
                 been one of the aggravating factors.
 
            
 
                    ....
 
            
 
                    You have also requested my opinion as to the 
 
                 degree of permanent impairment that Mrs. Ball has 
 
                 as a result of her condition and what restrictions 
 
                 this condition places upon her ability to earn a 
 
                 living.  Mrs. Ball has a mild degree of pulmonary 
 
                 impairment as a result of her bullous lung 
 
                 disease, but she should be restricted because of 
 
                 the chronicity of her disease.  She was advised by 
 
                 me to avoid (1) lifting greater than 10 lb; (2) 
 
                 any strenuous work; (3) climbing more than 5 
 
                 stairs; (4) working in a temperature greater than 
 
                 100 degrees, or less than 50 degrees and (5) 
 
                 dusty, humid, polluted, chemical environment.
 
            
 
            (Claimant's Exhibit 1)
 
            
 
                 Defendants' Exhibit H, pages 1 through 6 indicates that 
 
            William Chen, M.D., diagnosed claimant also as having 
 
            bullous emphysema in September 1988 and March 1989.  
 
            Defendants' Exhibit I, page 5, is a detailed report from Dr. 
 
            From to which claimant indicated in her testimony that he 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            was incorrect in the facts she had given him.  The 
 
            undersigned does note one area where the doctor said 
 
            claimant wasn't exposed to welding or smoke.  This seems to 
 
            be contrary to claimant's litigation contention.  It would 
 
            seem that the doctor was mistaken or misunderstood the 
 
            claimant as to this particular item.
 
            
 
                 The doctor wrote on May 24, 1991:
 
            
 
                    The pulmonary function study is basically 
 
                 normal.
 
            
 
                    I do not believe that any of her problems or 
 
                 pneumothoraces are related to her work.  They are 
 
                 due to a congenital change in her lungs, and with 
 
                 a so-called spontaneous pneumohotrax on each 
 
                 occasion.  These episodes of pneumothorax were not 
 
                 caused by, aggravated by, lighted up, or hastened 
 
                 by her work or working environment.
 
            
 
                    On the basis of present findings, I do not 
 
                 believe any impairment is present at this time.  
 
                 It is quite satisfactory for her to be working and 
 
                 she could perform the same work as she did prior 
 
                 to any alleged injuries.
 
            
 
                    I believe all of these conclusions are based 
 
                 upon a reasonable degree of medical probability 
 
                 and certainty.
 
            
 
            (Def. Ex. I, p. 6)
 
            
 
                 On July 8, 1991, Dr. Jerome who evaluated claimant in 
 
            December 1989, wrote, in part:
 
            
 
                    It is my feeling that Nadine Ball most likely 
 
                 has had congenital lung blebs which lead to her 
 
                 bilateral pneumothoraces.  She has chronic chest 
 
                 wall pain which can be phenomenon seen after 
 
                 thoracotomies and can also lead to a sensation of 
 
                 dyspnea.  Her pulmonary function tests, however, 
 
                 show good lung mechanics.  She does have an 
 
                 elevated residual volume suggesting some lung 
 
                 hyperinflation which can be seen with congenital 
 
                 blebs.  A normal diffusing capacity excludes the 
 
                 possibility of
 
            
 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            significant pulmonary emphysema despite Dr. 
 
            Mahadevia's conculsions [sic].
 
            
 
            (Def. Ex. 0, p. 4)
 
            
 
                 Claimant has also failed to carry her burden of proof 
 
            to show that her alleged medical condition and permanent 
 
            disability is causally connected to her July 14, 1988 work 
 
            injury.  Claimant has a congenital problem and the 
 
            undersigned finds that whatever occurred at work did not 
 
            materially and substantially aggravate this condition, but 
 
            that her congenital preexisting condition is such that her 
 
            chronic bullous emphysema or respiratory condition is a 
 
            chronic condition of which no doctor, including at least two 
 
            specialists, has causally connected to her employment.
 
            
 
                 The undersigned finds there is no necessity to further 
 
            dwell on the facts in light of this decision nor to cover 
 
            any other issue that may have been raised because of the 
 
            nature of this decision.
 
            
 
                                conclusions of law
 
            
 
                 Claimant has the burden of proving by a preponderance 
 
            of the evidence that she received an injury on July 14, 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 14, 
 
            1988 is causally related to the disability on which she now 
 
            bases her claim.  Bodish v. Fischer, Inc., 257 Iowa 516, 133 
 
            N.W.2d 867 (1965).  Lindahl v. L. O. Boggs, 236 Iowa 296, 18 
 
            N.W.2d 607 (1945).  A possibility is insufficient; a 
 
            probability is necessary.  Burt v. John Deere Waterloo 
 
            Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955).  The 
 
            question of causal connection is essentially within the 
 
            domain of expert testimony.  Bradshaw v. Iowa Methodist 
 
            Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). 
 
            
 
                 The Iowa Supreme Court cites, apparently with approval, 
 
            the C.J.S. statement that the aggravation should be material 
 
            if it is to be compensable.  Yeager v. Firestone Tire & 
 
            Rubber Co., 253 Iowa 369, 112 N.W.2d 299 (1961); 100 C.J.S. 
 
            Workmen's Compensation sec. 555(17)a.
 
            
 
                 Iowa Code section 85.23 provides:
 
            
 
                    Unless the employer or the employer's 
 
                 representative shall have actual knowledge of the 
 
                 occurrence of an injury received within ninety 
 
                 days from the date of the occurrence of the 
 
                 injury, or unless the employee or someone on the 
 
                 employee's behalf or a dependent or someone on the 
 
                 dependent's behalf shall give notice thereof to 
 
                 the employer within ninety days from the date of 
 
                 the occurrence of the injury no compensation shall 
 
                 be allowed.
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            
 
                 It is further found that:
 
            
 
                 Claimant did not incur an injury on July 14, 1988 which 
 
            arose out of and in the course of her employment.
 
            
 
                 Claimant failed to carry her burden to show that her 
 
            alleged medical condition and alleged permanent disability 
 
            is causally connected to a July 14, 1988 injury.
 
            
 
                 Claimant failed to give her employer the required 
 
            ninety day notice from the date of the occurrence of the 
 
            injury nor had the employer had any knowledge of any 
 
            occurrence of an injury within ninety days from the date of 
 
            the occurrence of the injury, as provided in Iowa Code 
 
            section 85.23.
 
            
 
                                      order
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 That claimant takes nothing from these proceedings.
 
            
 
                 That claimant shall pay the costs of this action, 
 
            pursuant to rule 343 IAC 4.33.
 
            
 
                 Signed and filed this ____ day of August, 1991.
 
            
 
            
 
            
 
                                          ______________________________
 
                                          BERNARD J. O'MALLEY
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies to:
 
            
 
            Mr David W. Newell
 
            Attorney at Law
 
            323 E Second St
 
            Muscatine IA 52761
 
            
 
            Mr Greg Egbers
 
            Attorney at Law
 
            600 Union Arcade Bldg
 
            111 E Third St
 
            Davenport IA 52801
 
            
 
            
 
                 
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                      5-1108; 5-2401
 
                      Filed August 2, 1991
 
                      Bernard J. O'Malley
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            NADINE BALL,                  :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 910523
 
            H. J. HEINZ,                  :
 
                                          :     A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            LIBERTY MUTUAL INSURANCE      :
 
            COMPANY,                      :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            5-1108
 
            Claimant failed to show causal connection.
 
            
 
            5-2401
 
            Claimant failed to give notice under 85.23.
 
            
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            NANCY SANDERSON,              :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :         File Nos. 883564
 
                                          :                   910527
 
            K-PRODUCTS, INC.,             :
 
                                          :      A R B I T R A T I O N
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            GENERAL CASUALTY INSURANCE,   :
 
                                          :
 
                 Insurance Carrier,       :
 
                                          :
 
            and                           :
 
                                          :
 
            SECOND INJURY FUND,           :
 
                                          :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 The above captioned matters were consolidated by an 
 
            Order filed February 26, 1990.
 
            
 
                 File number 910527 is a proceeding in arbitration upon 
 
            claimant's petition filed May 18, 1989 and subsequently 
 
            amended.  Claimant alleged a cumulative injury to the right 
 
            shoulder, arm and hand in December 1987, and arising out of 
 
            and in the course of her employment with K-Products, a hat 
 
            manufacturing concern.  She now seeks benefits under the 
 
            Iowa Workers' Compensation Act from that employer and its 
 
            insurance carrier, General Casualty Insurance.
 
            
 
                 File number 883564 is also a proceeding in arbitration 
 
            upon claimant's petition filed May 18, 1989.  She alleges a 
 
            cumulative injury of April 25, 1988 to both shoulders, arms, 
 
            elbows and neck.  She seeks relief from the same employer 
 
            and insurance carrier, and in partial alternative, from the 
 
            Second Injury Fund of Iowa.
 
            
 
                 In essence, claimant alleges that she developed 
 
            symptoms to the right upper extremity in December 1987 and 
 
            further symptoms to the left side which resulted in her 
 
            leaving work on April 25, 1988.  She alleges that the 
 
            injuries extend to the body as a whole and should be 
 
            compensated industrially, but in the alternative, suggests 
 
            that she is entitled to Second Injury Fund benefits if both 
 
            injuries are found limited to scheduled members pursuant to 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
            
 
            Iowa Code section 85.64.
 
            
 
                 Hearing on the arbitration petitions was had in Sioux 
 
            City, Iowa, on June 12, 1990.  The record consists of joint 
 
            exhibits 1 through 26 and 28 through 43, defendants' 
 
            exhibits A and B and the testimony of claimant, Alice Harris 
 
            and Janna Martinson.
 
            
 
                                      issues
 
            
 
                 In case number 910527, the parties have stipulated:  
 
            that an employment relationship existed between claimant and 
 
            employer at the time of the alleged injury; that healing 
 
            period or temporary total disability benefits are not at 
 
            issue; that the commencement date for permanent partial 
 
            disability, if awarded, is January 12, 1989; that defendants 
 
            paid 12 and 1/2 weeks of compensation at the rate of $208.26 
 
            per week prior to hearing.
 
            
 
                 Issues presented for resolution in case number 910527 
 
            include:  whether claimant sustained an injury arising out 
 
            of and in the course of her employment in December 1987; 
 
            whether the injury caused permanent disability and the 
 
            nature and extent thereof; the rate of compensation 
 
            (although it is stipulated that claimant was married, 
 
            entitled to four exemptions, and had average gross weekly 
 
            earnings of $311.50); the extent of claimant's entitlement 
 
            to medical benefits (it is stipulated that the fees charged 
 
            for medical services or supplies are fair and reasonable, 
 
            but the parties dispute whether those expenses were incurred 
 
            for reasonable and necessary medical treatment, whether they 
 
            are causally connected to the work injury, and whether they 
 
            were authorized by defendants); whether claimant is entitled 
 
            to vocational rehabilitation benefits; taxation of costs.
 
            
 
                 In file number 883564, the parties have stipulated:  
 
            that claimant sustained an injury arising out of and in the 
 
            course of her employment with K-Products, Inc., on or about 
 
            April 25, 1988; that defendants paid 12 and 1/2 weeks of 
 
            compensation at the rate of $208.26 prior to hearing.
 
            
 
                 In file number 883564, the following issues are 
 
            presented for resolution:  whether the work injury caused 
 
            permanent disability and the nature and extent thereof; the 
 
            rate of compensation (as per the stipulation set forth 
 
            above); the extent of claimant's entitlement to medical 
 
            benefits (also as per the stipulation set forth above);
 
            
 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            
 
            
 
            whether the Second Injury Fund of Iowa has liability on the 
 
            claim; vocational rehabilitation benefits; taxation of 
 
            costs.
 
            
 
                                 findings of fact
 
            
 
                 The undersigned deputy, having heard the testimony and 
 
            considered all of the evidence, finds:
 
            
 
                 Claimant, a credible witness, was 33 years of age on 
 
            the day of hearing.  She graduated from high school in 1975 
 
            and took a six-month emergency medical technician course in 
 
            1984.  However, she no longer works as an EMT volunteer and 
 
            her certification has expired.  In July 1989, she began a 
 
            paralegal course which she hopes to complete in October 
 
            1991.
 
            
 
                 Claimant's work history essentially consists only of 
 
            working various jobs for defendant K-Products since 1975, 
 
            although she did not work from January 1981 until May 1984 
 
            while raising her children.  She has held numerous jobs, 
 
            essentially all of which have required repetitive motion of 
 
            the arms and hands and frequently awkward posture.  
 
            Defendant manufactures hats, especially baseball caps.
 
            
 
                 When claimant returned to work in 1984, she took a 
 
            position as taper, a position which she held through the 
 
            balance of her tenure.  This position involved taping the 
 
            seams on the inside of hats in a position claimant found 
 
            very stressful.  The work required uncomfortable movements 
 
            of the arm, bending of the arms and hands, and frequent 
 
            leaning over.
 
            
 
                 Claimant normally worked a flex time schedule of about 
 
            32 hours per week.  Beginning in September 1987, K-Products 
 
            required a mandatory 40-hour week.  Shortly thereafter, in 
 
            December 1987, claimant began developing symptoms of pain, 
 
            tingling and numbness mostly to the right arm, but also to 
 
            both shoulders and across the back.  The right arm became 
 
            swollen, the fingers became cold and Ms. Sanderson 
 
            complained of sharp pain in the elbow, wrist and thumb.  She 
 
            also described in her testimony a hesitance, or a gap 
 
            between willing her fingers to move and the onset of motion.
 
            
 
                 Nonetheless, claimant continued to work.  However, she 
 
            tried to compensate by relying more heavily on the left arm, 
 
            but symptoms soon thereafter developed on that side.
 
            
 
                 Defendants referred claimant to Monte J. Harvey, D.O., 
 
            where she was seen on April 25, 1988.  It was on this date 
 
            that she first missed work due to symptoms.
 
            
 
                 Dr. Harvey's chart notes reflect complaints of pain in 
 
            both hands, elbows and wrists, worse on the right.  Initial 
 
            assessment was of extensor-type tendonitis of the right 
 
            hand.
 
            
 
                 Claimant was seen again on May 3.  She continued to 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            
 
            
 
            show inflammation and cysts in the inner aspect of both 
 
            forearms.  Dr. Harvey then concluded that claimant was 
 
            suffering an allergic reaction rather than an overuse 
 
            syndrome.  However, by May 11, claimant continued to 
 
            complain of her fingers, hands and elbows, and showed a lot 
 
            of subcutaneous inflammation.  Assessment then was of 
 
            reactive tendonitis, extensor tendonitis, both hands.  
 
            Claimant was referred to physical therapy.
 
            
 
                 Claimant was also seen by Dr. Harvey on May 23, June 
 
            10, June 15, June 20, June 24, and July 5, 1988.  Her 
 
            problems continued.  On the latter occasion, Dr. Harvey 
 
            observed:  "Upper thoracic-lower cervical imbalance causing 
 
            that outlet syndrome, probably from the way she holds her 
 
            arm at work."  His assessment was of resolving tendonitis 
 
            and thoracic outlet syndrome.  She was twice given 
 
            osteopathic manipulative therapy to the area.  This is the 
 
            first indication in the medical records that claimant's 
 
            symptomatology was not limited to the upper extremities.
 
            
 
                 By July 13, 1988, Dr. Harvey's assessment was of flexor 
 
            tendonitis and medial epicondylitis.  Dr. Harvey then 
 
            referred claimant to David G. Paulsrud, M.D., a 
 
            board-certified orthopaedic surgeon.
 
            
 
                 Dr. Paulsrud testified by deposition taken April 25, 
 
            1990.  He obtained a history from claimant that for the 
 
            three months prior to the first examination on August 2, 
 
            1988, she had suffered aching pain in both upper extremities 
 
            beginning in the elbows and extending into the forearms with 
 
            numbness and tingling over the hands bilaterally.  Claimant 
 
            did not give a history of shoulder or neck complaints, even 
 
            when she marked painful or numb areas on a human figure.  
 
            Dr. Paulsrud diagnosed occupational synovitis or 
 
            occupational overuse of the upper extremities (synovitis was 
 
            defined as an inflammation of the lubricating mechanisms of 
 
            the joints and tendons due to repetitive use).
 
            
 
                 The doctor recommended that claimant change her work 
 
            activities to avoid repetitive motions of the arms and 
 
            elbows.
 
            
 
                 Dr. Paulsrud saw claimant again on August 30 and found 
 
            her unchanged.  He was surprised that claimant had been 
 
            unable to tolerate a trial of light office work "and it made 
 
            me doubt that she had any degree of occupational synovitis 
 
            since she didn't improve.  So I thought perhaps she had some 
 
            underlying medical disorder and suggested that she be seen 
 
            by a rheumatologist."  (Dr. Paulsrud deposition, page 14, 
 
            line 24 through page 15, line 4)  The doctor was unable to 
 
            identify any pathology that might account for claimant's 
 
            symptoms.  Claimant was thereafter referred by defendants to 
 
            rheumatologist Walter Drymalski, M.D.
 
            
 
                 Claimant was seen by Dr. Paulsrud for the final time on 
 
            May 25, 1989.  Her condition was unchanged.  The doctor was 
 
            unable to demonstrate any abnormal physical findings and 
 
            assigned no permanent orthopaedic impairment.  Claimant's 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            
 
            
 
            complaint of shoulder pain was considered a new complaint.  
 
            There were no positive physical findings indicating a 
 
            cervical disc pathology.  Dr. Paulsrud indicated that, even 
 
            if claimant had manifested cervical disc disease through 
 
            complaint or findings, he did not know whether he would have 
 
            ordered additional tests.  He does not utilize the discogram 
 
            test employed by Dr. Blume in his practice.
 
            
 
                 Claimant was evaluated by Dr. Drymalski on September 7, 
 
            1988, giving a history of upper extremity problems, but on 
 
            examination showing, in addition, mild tenderness in the 
 
            mid-portion of the trapezoids, diffusely across the anterior 
 
            chest and mildly across the proximal scapular borders.  Dr. 
 
            Drymalski's impression was of tendonitis, specifically 
 
            deQuervain's tenosynovitis involving the thumbs and 
 
            tendonitis involving other groups in the forearm, 
 
            particularly the pronators along with neurovascular problems 
 
            in both arms which may be caused by nerve compression or by 
 
            a mild form of reflex dystrophy.  He did not specifically 
 
            find evidence for connective tissue disease.  He recommended 
 
            that when claimant returned to work, she should not return 
 
            to the previous job of sewing, etc.
 
            
 
                 Claimant was also referred by defendants to Mel 
 
            Wallinga, M.D., and was first seen on August 26, 1988.  His 
 
            initial assessment was of synovitis and tendonitis.  The 
 
            history indicated that no neck or shoulder complaints were 
 
            made at that time.
 
            
 
                 Dr. Wallinga continued to treat claimant, but wrote on 
 
            January 12, 1989, that claimant's condition had stabilized 
 
            and that she had some partial disability, although he was 
 
            unwilling to determine the degree thereof.  He did recommend 
 
            that claimant not return to any employment involving 
 
            repetitive motion of the arms.  Dr. Wallinga's assessment 
 
            continued to be of tenosynovitis, although it is of note 
 
            that on September 6, 1989, he saw claimant for pain in the 
 
            trapezius muscle region and swelling over the upper thoracic 
 
            area, which he assessed as a bilateral muscle tear of the 
 
            trapezius.
 
            
 
                 Claimant was referred by her attorney for evaluation to 
 
            Richard P. Murphy, M.D.  His impression was of bilateral 
 
            carpal tunnel syndrome, bilateral flexor tenosynovitis in 
 
            the forearms and hands and chronic tendonitis in both 
 
            shoulders.  He believed that each hand had been impaired to 
 
            the extent of three percent and each arm to the extent of 
 
            two percent, but did not believe that claimant had sustained 
 
            any degree of permanent impairment to the shoulders because 
 
            she had a full range of motion with minimal discomfort.  He 
 
            also opined that claimant's residual discomfort was causally 
 
            related to the repetitive work performed at K-Products.
 
            
 
                 Claimant was also referred by her attorney to Horst G. 
 
            Blume, M.D., a board-certified neurologist.  Dr. Blume saw 
 
            claimant on September 12, 1989 and was given a history of 
 
            symptoms developing in the hands, fingers, arms and lower 
 
            neck which gradually worsened.  His impression at that time 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            
 
            
 
            was that claimant suffered from cervical disc pathology, 
 
            most likely at C5-6 with C6 nerve root irritation syndrome 
 
            bilaterally along with mild thoracic outlet syndrome, 
 
            probably scalenus syndrome on both sides.  He suspected 
 
            acromioclavicular joint and shoulder joint pain on the right 
 
            side of unknown etiology and saw bilateral chronic myositis 
 
            of the thenar muscles.
 
            
 
                 On March 8, 1990, Dr. Blume wrote that claimant's work 
 
            activity "could be responsible" for the disc pathology and 
 
            that the myositis of the thenar muscles was directly related 
 
            to work activity.  As he uses the expression "also directly 
 
            related," it appears that he believed that work activity was 
 
            indeed responsible for disc pathology.  In a letter of March 
 
            12, 1990, Dr. Blume clarified his opinion within a 
 
            reasonable degree of medical certainty that claimant's mild 
 
            thoracic outlet syndrome, probably scalenus syndrome, was 
 
            work related.
 
            
 
                 In the March 8 letter, Dr. Blume had suggested a 
 
            discogram be performed to substantiate his impression of 
 
            disc disease.  On April 13, this test was performed.  Dr. 
 
            Blume's findings were of a normal discogram at C6-7, but an 
 
            abnormal discogram at C5-6 which reproduced her original 
 
            pain from the neck into the shoulder girdle and arm.  An EMG 
 
            performed on the same date did not reveal abnormal findings, 
 
            but did not exclude evidence of a ruptured cervical disc.
 
            
 
                 Dr. Blume further opined within a reasonable degree of 
 
            medical probability that what he considered a ruptured 
 
            cervical disc at C5-6 was directly related to the work 
 
            activities, along with irritation of the joint structures of 
 
            the acromioclavicular joint and mild thoracic outlet 
 
            syndrome.  He rated claimant as having sustained a 15-20 
 
            percent permanent partial impairment to the body as a whole 
 
            from these injuries.  Dr. Blume further recommended surgical 
 
            excision of the disc at C5-6 and decompression of the nerve 
 
            structures along with interbody fusion.
 
            
 
                 Obviously, Dr. Blume's opinions are based in part on a 
 
            history of claimant having developed shoulder or neck 
 
            problems by April 1988.  Claimant made no original complaint 
 
            of neck or shoulder problems as shown by the medical records 
 
            and contemporaneous notes of the employer.  Claimant 
 
            testified that she eventually told most of her physicians of 
 
            shoulder and neck problems, but was not initially concerned, 
 
            especially with respect to Dr. Harvey, because her symptoms 
 
            seemed primarily centered in the arms.  However, even if 
 
            claimant did not recognize the significance of shoulder or 
 
            neck complaints, thus leading to an inaccurate history, it 
 
            is noteworthy that a friend and registered nurse, Janna 
 
            Martinson, and a coworker, Alice Harris, both testified that 
 
            claimant made early complaints of shoulder difficulties 
 
            (along with hand and arm problems) during informal 
 
            conversations.
 
            
 
                 The testimony of all three witnesses was credible.  
 
            Claimant did suffer neck and shoulder pains prior to April 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            
 
            
 
            25, 1988, even though she failed to given an accurate 
 
            history to treating and evaluating physicians.  While Dr. 
 
            Paulsrud found no evidence of a cervical disc, he did not 
 
            cause tests to be performed that might have disclosed this 
 
            problem.  He found claimant's complaints to be perhaps 
 
            caused by "some underlying medical disorder" and even 
 
            recommended that she see a rheumatologist.
 
            
 
                 The only neurologist to see claimant initially 
 
            developed an opinion that she suffered from a herniated disc 
 
            at C5-6, and later confirmed that assessment through a 
 
            discogram test.  Based on this clinical evidence and the 
 
            history he was given, Dr. Blume opined that the herniated 
 
            disc and thoracic outlet syndrome were causally related to 
 
            claimant's history of repetitious movement at work.  This is 
 
            the most convincing medical evidence of record.
 
            
 
                 Claimant last worked for a week in August 1988.  
 
            Thereafter, having been advised by essentially all 
 
            physicians not to return to repetitive work, she was 
 
            discharged on January 11, 1989.  She subsequently commenced 
 
            the paralegal training in which she is now enrolled.  
 
            Claimant is not currently looking for work while in school.  
 
            The only other job she has held is a position selling from a 
 
            toy catalog door-to-door.
 
            
 
                 Claimant currently complains that her shoulders always 
 
            ache and that her arms become weak with use.  She is, of 
 
            course, unable to perform repetitive work, and has 
 
            difficulties with such mundane tasks as vacuuming and 
 
            changing storm windows.  She finds herself prone to drop 
 
            items and has given up various athletic activities in which 
 
            she formerly participated.
 
            
 
                 Claimant's exhibit 28 sets forth certain prescription 
 
            expenses for drugs prescribed by Dr. Wallinga, a 
 
            company-authorized physician.  These total $272.85.
 
            
 
                                conclusions of law
 
            
 
                 Claimant asserts that she sustained a "first" injury on 
 
            the right side in December 1987, when symptoms first 
 
            developed.  However, this claimed cumulative injury did not 
 
            cause her to miss work until, in conjunction with the left 
 
            side, April 25, 1988.  In cases of cumulative injury, the 
 
            injury date occurs when, due to pain or physical inability, 
 
            claimant is no longer able to work.  McKeever Custom 
 
            Cabinets v. Smith, 379 N.W.2d 368 (Iowa 1985).  Thus, we 
 
            have not two injuries, but one.  Both "injuries" ripened for 
 
            workers' compensation purposes when claimant left work on 
 
            April 25, 1988.  This alone disposes of any claim against 
 
            the Second Injury Fund, since there is no previous loss of a 
 
            scheduled member within the meaning of Iowa Code section 
 
            85.64.  The same result independently must obtain because 
 
            the bilateral injury is found to extend into the body as a 
 
            whole and is not limited to the statutorily specified 
 
            scheduled members.
 
            
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury of April 25, 
 
            1988 is causally related to the disability on which she now 
 
            bases her claim.  Bodish v. Fischer, Inc., 257 Iowa 516, 133 
 
            N.W.2d 867 (1965).  Lindahl v. L. O. Boggs, 236 Iowa 296, 18 
 
            N.W.2d 607 (1945).  A possibility is insufficient; a 
 
            probability is necessary.  Burt v. John Deere Waterloo 
 
            Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955).  The 
 
            question of causal connection is essentially within the 
 
            domain of expert testimony.  Bradshaw v. Iowa Methodist 
 
            Hosp., 251 Iowa 375, 101 N.W.2d 167 (1960). 
 
            
 
                 However, expert medical evidence must be considered 
 
            with all other evidence introduced bearing on the causal 
 
            connection.  Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion 
 
            of experts need not be couched in definite, positive or 
 
            unequivocal language.  Sondag v. Ferris Hardware, 220 N.W.2d 
 
            903 (Iowa 1974).  However, the expert opinion may be 
 
            accepted or rejected, in whole or in part, by the trier of 
 
            fact.  Id. at 907.  Further, the weight to be given to such 
 
            an opinion is for the finder of fact, and that may be 
 
            affected by the completeness of the premise given the expert 
 
            and other surrounding circumstances.  Bodish, 257 Iowa 516, 
 
            133 N.W.2d 867.  See also Musselman v. Cent. Tel. Co., 261 
 
            Iowa 352, 154 N.W.2d 128 (1967).
 
            
 
                 The parties stipulate that claimant sustained an injury 
 
            of April 25, 1988, but dispute whether a causal nexus exists 
 
            between that injury and claimant's current state of ill 
 
            being.  All of the physicians have pointed to repetitive 
 
            motion as a precipitating cause.  Dr. Blume's assessment of 
 
            claimant's physical problems has been found the most 
 
            persuasive, and that physician has directly opined that a 
 
            causal nexus exists between the work injury and claimant's 
 
            disability.  So has Dr. Murphy.  Contrary medical evidence 
 
            does not appear of record.  Claimant has met her burden of 
 
            proof on this issue.
 
            
 
                 Because claimant's disability extends beyond the arms 
 
            into the body as a whole (neck and shoulders), it is 
 
            compensated industrially rather than pursuant to the 
 
            schedule.
 
            
 
                 Functional impairment is an element to be considered in 
 
            determining industrial disability which is the reduction of 
 
            earning capacity, but consideration must also be given to 
 
            the injured employee's age, education, qualifications, expe
 
            rience and inability to engage in employment for which he is 
 
            fitted.  Olson v. Goodyear Service Stores, 255 Iowa 1112, 
 
            125 N.W.2d 251 (1963).  Barton v. Nevada Poultry, 253 Iowa 
 
            285, 110 N.W.2d 660 (1961).
 
            
 
                 A finding of impairment to the body as a whole found by 
 
            a medical evaluator does not equate to industrial disabil
 
            ity.  This is so as impairment and disability are not syn
 
            onymous.  Degree of industrial disability can in fact be 
 
            much different than the degree of impairment because in the 
 
            first instance reference is to loss of earning capacity and 
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            
 
            
 
            in the latter to anatomical or functional abnormality or 
 
            loss.  Although loss of function is to be considered and 
 
            disability can rarely be found without it, it is not so that 
 
            a degree of industrial disability is proportionally related 
 
            to a degree of impairment of bodily function.
 
            
 
                 Factors to be considered in determining industrial dis
 
            ability include the employee's medical condition prior to 
 
            the injury, immediately after the injury, and presently; the 
 
            situs of the injury, its severity and the length of healing 
 
            period; the work experience of the employee prior to the 
 
            injury, after the injury and potential for rehabilitation; 
 
            the employee's qualifications intellectually, emotionally 
 
            and physically; earnings prior and subsequent to the injury; 
 
            age; education; motivation; functional impairment as a 
 
            result of the injury; and inability because of the injury to 
 
            engage in employment for which the employee is fitted.  Loss 
 
            of earnings caused by a job transfer for reasons related to 
 
            the injury is also relevant.  These are matters which the 
 
            finder of fact considers collectively in arriving at the 
 
            determination of the degree of industrial disability.
 
            
 
                 There are no weighting guidelines that indicate how 
 
            each of the factors are to be considered.  There are no 
 
            guidelines which give, for example, age a weighted value of 
 
            ten percent of the total value, education a value of fifteen 
 
            percent of total, motivation - five percent; work experience 
 
            - thirty percent, etc.  Neither does a rating of functional 
 
            impairment directly correlate to a degree of industrial 
 
            disability to the body as a whole.  In other words, there 
 
            are no formulae which can be applied and then added up to 
 
            determine the degree of industrial disability.  It therefore 
 
            becomes necessary for the deputy or commissioner to draw 
 
            upon prior experience, general and specialized knowledge to 
 
            make the finding with regard to degree of industrial dis
 
            ability.  See Peterson v. Truck Haven Cafe, Inc., (Appeal 
 
            Decision, February 28, 1985); Christensen v. Hagen, Inc., 
 
            (Appeal Decision, March 26, 1985).
 
            
 
                 In essence, the sole restriction having impact upon 
 
            claimant's earning capacity is that she refrain from 
 
            employment involving repetitive motion of the upper 
 
            extremities.  This disables her from continued employment 
 
            with K-Products, as shown by the fact that claimant was 
 
            discharged.  This, in and of itself, justifies an award of 
 
            industrial disability.  McSpadden v. Big Ben Coal Co., 288 
 
            N.W.2d 181 (Iowa 1980).
 
            
 
                 Except for briefly selling from a catalog door-to-door, 
 
            claimant's entire work history since 1975 has been with this 
 
            employer.  It would be speculative to consider whether 
 
            claimant will be successful in her current paralegal 
 
            program, but it does appear that she is of an age and 
 
            intelligence suitable for at least some retraining, even if 
 
            not as a paralegal.  Considering then these factors in 
 
            specific and the record otherwise in general, it is held 
 
            that claimant has sustained an industrial disability 
 
            equivalent to 25 percent of the body as a whole, or 125 
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
            
 
            
 
            weeks.
 
            
 
                 The parties have stipulated to an average gross weekly 
 
            wage of $311.50, a marital status of married and entitlement 
 
            to four exemptions.  The Guide to Iowa Workers' Compensation 
 
            Claim Handling published by this office and effective July 
 
            1, 1987, reflects that an individual so situated is entitled 
 
            to a weekly benefit rate of $209.43.
 
            
 
                 Claimant seeks an award of medical benefits under Iowa 
 
            Code section 85.27.  These include the prescription costs 
 
            set forth in exhibit 28, and various charges relating to Dr. 
 
            Blume's examination.  Dr. Blume was an evaluating physician, 
 
            not a treating physician.  Any award as to his services must 
 
            be based on Iowa Code section 85.39 rather than section 
 
            85.27.  The hearing assignment order filed in this case on 
 
            November 15, 1989, does not list section 85.39 as an issue.  
 
            Therefore, this deputy is without jurisdiction to make any 
 
            award with respect to Dr. Blume's and related charges.  
 
            However, $150.00 of the charge for Dr. Blume's report can be 
 
            and is assessed as court costs under Iowa Code section 
 
            622.72.  However, should claimant elect to undergo surgery 
 
            as per Dr. Blume's recommendation, defendants shall pay the 
 
            reasonable cost thereof.
 
            
 
                 Claimant also seeks an award under Iowa Code section 
 
            85.70 with respect to her paralegal training.  Under that 
 
            section, an employee who has sustained an injury resulting 
 
            in permanent partial disability who cannot return to gainful 
 
            employment because of that disability is entitled to a $20 
 
            weekly payment during each full week, not to exceed 13, in 
 
            which the employee is actively participating in a vocational 
 
            rehabilitation program recognized by the State Board for 
 
            Vocational Education.  The evidence does not show that the 
 
            program in which claimant is currently enrolled is 
 
            recognized by the State Board for Vocational Education.  
 
            Therefore, no award is justified.
 
            
 
                                      order
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 Claimant shall take nothing from the Second Injury Fund 
 
            of Iowa.
 
            
 
                 In file number 910527, claimant shall take nothing.
 
            
 
                 In file number 883564:
 
            
 
                 Defendants K-Products, Inc., and General Casualty 
 
            Insurance shall pay unto claimant one hundred twenty-five 
 
            (125) weeks of permanent partial disability benefits 
 
            commencing January 12, 1989 at the rate of two hundred nine 
 
            and 43/100 dollars ($209.43) per week totalling twenty-six 
 
            thousand one hundred seventy-eight and 75/100 dollars 
 
            ($26,178.75).
 
            
 
                 Defendants shall have credit for all permanent partial 
 

 
            
 
            Page  11
 
            
 
            
 
            
 
            
 
            
 
            
 
            disability benefits voluntarily paid prior to the filing of 
 
            this decision.
 
            
 
                 Defendants shall pay the prescription costs set forth 
 
            in claimant's exhibit 28 totalling two hundred seventy-two 
 
            and 85/100 dollars ($272.85).
 
            
 
                 Defendants shall, at claimant's election, provide the 
 
            surgical treatment recommended by Dr. Blume.
 
            
 
                 All accrued weekly benefits shall be paid in a lump sum 
 
            together with statutory interest thereon pursuant to Iowa 
 
            Code section 85.30.
 
            
 
                 The costs of this action shall be assessed to 
 
            defendants pursuant to rule 343 IAC 4.33.  Defendants shall 
 
            be responsible only for one hundred fifty dollars ($150.00) 
 
            of Dr. Blume's fee for reports.
 
            
 
                 Defendants shall file claim activity reports as 
 
            requested by this agency pursuant to rule 343 IAC 3.1.
 
            
 
                 Signed and filed this ______ day of ____________, 1991.
 
            
 
                 
 
            
 
                 
 
                 
 
                                          ______________________________
 
                                          DAVID RASEY
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Theodore E. Karpuk
 
            Attorney at Law
 
            First National Bank Building
 
            Suite 400
 
            P.O. Box 1768
 
            Sioux City, Iowa  51102
 
            
 
            Mr. Frank T. Harrison
 
            Attorney at Law
 
            Suite 111, Terrace Center
 
            2700 Grand Avenue
 
            Des Moines, Iowa  50312
 
            
 
            Mr. Charles S. Lavorato
 
            Assistant Attorney General
 
            Tort Claims Division
 
            Hoover State Office Building
 
            Des Moines, Iowa  50319
 
            
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            JANICE L. ADAMS,              :
 
                                          :
 
                 Claimant,                :
 
                                          :      File No. 883281
 
            vs.                           :               910528
 
                                          :
 
            K-PRODUCTS, INC.,             :    A R B I T R A T I O N
 
                                          :
 
                 Employer,                :      D E C I S I O N
 
                                          :
 
            and                           :
 
                                          :
 
            GENERAL CASUALTY COMPANIES,   :
 
                                          :
 
                 Insurance Carrier,       :
 
                                          :
 
            SECOND INJURY FUND OF IOWA,   :
 
                                          :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding in arbitration brought by Janice 
 
            L. Adams, claimant, against K-Products, Inc., employer and 
 
            General Casualty Companies, insurance carrier, as 
 
            defendants.
 
            
 
                 The record in the case consists of testimony from the 
 
            claimant, Gayle Feekes, Nancy Sanderson, Betty Dunham, Ken 
 
            Vander Molen, and Karen Vander Stoep; joint exhibits 1-49; 
 
            and, claimant's exhibit A.
 
            
 
                 The matter came on for hearing before the undersigned 
 
            deputy on March 5, 1991 at Sioux City, Iowa.
 
            
 
                 Claimant filed two original notices and petitions, 
 
            agency files 883281 and 910528.  In accordance with the 
 
            hearing assignment order and the prehearing report, the 
 
            following issues are presented by agency file number 883281:
 
            
 
                 1.  Whether there is a causal relationship between the 
 
            alleged injury and the disabilities;
 
            
 
                 2.  Whether claimant is entitled to temporary total 
 
            disability or healing period benefits, or permanent partial 
 
            or permanent total disability benefits;
 
            
 
                 3.  Whether claimant is entitled to medical benefits 
 
            pursuant to Iowa Code section 85.27 or section 85.39; and,
 
            
 
                 4.  Whether defendants are entitled to credit for 
 
            benefits previously paid under Iowa Code section 85.38(2).
 
            
 
                 In addition to the aforementioned issues, the following 
 
            issues are presented for resolution in agency file number 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            910528:
 
            
 
                 1.  Whether claimant received an injury which arose out 
 
            of and in the course of her employment; and,
 
            
 
                 2.  Whether the Second Injury Fund of Iowa is liable 
 
            for payment of benefits.
 
            
 
                                 findings of fact
 
            
 
                 The undersigned deputy, having heard all of the 
 
            testimony and having reviewed all of the evidence received, 
 
            finds the following facts:
 
            
 
                 Claimant, Janice Adams, was 35 years old at the time of 
 
            the hearing.  She graduated in 1973 from West Sioux High 
 
            School in Hawarden, Iowa.  She is married, and has 2 
 
            children.  
 
            
 
                 Before joining K-Products in 1978, claimant worked for 
 
            one to two years at the Otis Radio Shop in Hawarden, Iowa.  
 
            She held various positions, which included soldering and 
 
            gluing coils.  Claimant then sold Avon Products for four to 
 
            five years, and then became a waitress at her parents' 
 
            restaurant, the Sale Barn Cafe.  In 1978, claimant went to 
 
            work for K-Products.
 
            
 
                 Defendant K-Products is a garment manufacturer 
 
            headquartered in Orange City, Iowa, with a production plant 
 
            located in Hawarden, Iowa.
 
            
 
                 Claimant began working at defendant's Hawarden plant in 
 
            1978.  At the time she was hired, she did not have any 
 
            physical conditions that would prevent the company from 
 
            placing her on the production line.  (Joint Exhibit 1)
 
            
 
                 During her ten years of employment with K-Products, 
 
            claimant has worked in several departments within the 
 
            organization, including positions in the tab, button, and 
 
            crown tape departments. 
 
            
 
                 The tab position required claimant to use an industrial 
 
            sewing machine to sew plastic tabs on the back of baseball 
 
            hats, which are used to adjust the hats.  This position 
 
            required her to perform reaching and stretching actions with 
 
            her upper body.
 
            
 
                 After four years, claimant was transferred to the bill 
 
            stuff department.  This job required her to put liners into 
 
            the bills of caps to add stiffness.  She was required to sew 
 
            the bill onto the liner.
 
            
 
                 Claimant also worked in the button department, which 
 
            required her to insert buttons and pompoms on the crown of 
 
            baseball hats.  She also worked in the crown tape area, 
 
            which involved sewing tape to the interior of the seams of 
 
            the hat crown.  Most of these positions required claimant to 
 
            use extensively her hands, arms, and shoulders.
 
            
 
                 In April of 1988, claimant began to notice swelling of 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            the left hand between the thumb and forefinger.  She 
 
            reported her injury to the supervisor, and was sent to the 
 
            company doctor, M. J. Harvey, D.O., on April 13, 1988.  (Jt. 
 
            Ex. 8)  He diagnosed a strained tendon and muscle in the 
 
            thumb area.
 
            
 
                 Claimant returned to Dr. Harvey on April 20, 1988.  His 
 
            notes indicate that claimant was experiencing additional 
 
            symptoms, including secondary extensor tendinitis and 
 
            swelling in the forearm.  Claimant was to return to work on 
 
            a 6-hour per day basis and received some physical therapy.  
 
            (Jt. Ex. 8)
 
            
 
                 One week later, claimant again returned to Dr. Harvey.  
 
            Claimant presented with the same symptoms, although it was 
 
            noted that working did not make the condition any worse.  
 
            Dr. Harvey diagnosed a first compartment syndrome with 
 
            opponens pollicis strain of the left thumb.  She was to 
 
            treat the problem with medication.
 
            
 
                 Claimant continued to treat with Dr. Harvey, and was 
 
            taken off of work from May 3, 1988 through May 23, 1988.
 
            
 
                 Eventually, claimant was given a brace for her thumb, 
 
            which provided little relief.  On May 27, 1988, claimant was 
 
            again taken off of work.  Her symptoms persisted, and on 
 
            June 10, 1988, claimant was referred to Patrick Rodman, M.D.  
 
            Dr. Rodman agreed with the course of treatment being 
 
            provided by Dr. Harvey, and opined that claimant was 
 
            suffering from deQuervain tenosynovitis or carpal/metacarpal 
 
            joint arthritis related to her work in the factory.  (Jt. 
 
            Ex. 13)
 
            
 
                 Claimant was then referred to David G. Paulsrud, M.D., 
 
            on July 28, 1988.  He noted the past diagnosis of deQuervain 
 
            disease, but found no unusual swelling or crepitation upon 
 
            examination.  He noted that claimant was unsuited for doing 
 
            any type of heavy repetitive work with her hands due to the 
 
            propensity for development of synovitis symptoms.  (Jt. Ex. 
 
            15)
 
            
 
                 In August of 1988, the defendant employer attempted to 
 
            accommodate claimant by placing her in other positions.  
 
            Primarily, claimant was placed in the screen print and 
 
            block-out areas.  One position required claimant to apply 
 
            transfers every two to four minutes to garments using an 
 
            iron wand.  The block-out position required her to cover 
 
            holes in the silk screening process with a solution which 
 
            had the consistency of glue.  (Jt. Ex. 3; Jt. Ex. 16)  These 
 
            positions aggravated claimant's condition.
 
            
 
                 On September 12, 1988, Dr. Paulsrud opined that 
 
            claimant reached maximum benefits of medical care, and that 
 
            she was unsuited for work which required repetitive use of 
 
            her hands.  He declined further therapy.  (Jt. Ex. 21)
 
            
 
                 On September 27, 1988, Dr. Paulsrud made the following 
 
            assessment:
 
            
 
                 As you know, Janice Adams was last seen September 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
                 8, 1988.  I would rate her permanency at 15% of 
 
                 the upper extremity.
 
            
 
            (Jt. Ex. 22)
 
            
 
                 Claimant was subsequently terminated on September 28, 
 
            1988.  Claimant was told that due to the work restrictions 
 
            placed upon her by Dr. Paulsrud, the employer was unable to 
 
            accommodate her employment interests.  (Jt. Ex. 23)
 
            
 
                 On December 26, 1988, claimant sought medical treatment 
 
            from Quentin Durward, M.D.  Dr. Durward is a neurologist, 
 
            and declined to give claimant a disability rating due to the 
 
            orthopaedic nature of the problems, and the subsequent 
 
            diagnosis of metacarpal inflammation and tenosynovitis.  
 
            (Jt. Ex. 24, Jt. Ex. 25)  He ordered an EMG.
 
            
 
                 Dr. Durward saw claimant on March 8, 1989, and the 
 
            results of the EMG showed that claimant exhibited positive 
 
            symptoms of bilateral carpal tunnel syndrome.  Dr. Durward 
 
            counseled claimant that if her symptoms became worse, she 
 
            was to return.  Claimant did not return for treatment.  (Jt. 
 
            Ex. 49, pp. 14-16)
 
            
 
                 Claimant sought an impairment rating from Dennis 
 
            Johnson, M.D., an orthopedic specialist in Sioux City, Iowa.  
 
            (Jt. Ex. 26)  On May 31, 1989, Dr. Johnson made the 
 
            following assessment, based upon his examination and review 
 
            of results of prior testing:
 
            
 
                 Ms. Adams' work with her elbows elevated and 
 
                 unsupported gives rise to symptoms in her 
 
                 shoulders and some tenosynovitis in her left first 
 
                 dorsal compartment in in [sic] the MPT [sic] 
 
                 joints of both hands.
 
            
 
                 Examination of the right shoulder showed flexion 
 
                 150 degrees to the right and abduction to the 
 
                 right 120 degrees for a permanent partial physical 
 
                 impairment rating of 5 percent of the right upper 
 
                 extremity equal to 3 percent of the whole person.
 
            
 
                 Examination of the left upper extremity showed 
 
                 shoulder flexion 150 degrees; abduction 130 
 
                 degrees; chronic tenosynovitis of the first dorsal 
 
                 compartment and MPT [sic] joints; and a reflex 
 
                 sympathetic dystrophy for a permanent partial 
 
                 physical impairment rating of 14 percent of the 
 
                 left upper extremity equal to 8 percent of the 
 
                 whole person.
 
            
 
                 Total permanent partial physical impairment then 
 
                 of the whole person is 11 percent.
 
            
 
            (Jt. Ex. 28)
 
            
 
                 Since 1986, claimant has owned and continues to operate 
 
            a dog grooming business.
 
            
 
                         analysis and conclusions of law
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            
 
                 April 4, 1988 - - Left Upper Extremity
 
            
 
                 The parties stipulated that claimant received a 
 
            work-related injury which caused a permanent disability to 
 
            her left upper extremity.  Healing period benefits for time 
 
            off of work have been paid, as have permanent partial 
 
            disability benefits of 37.5 weeks.  (Claimant has received 
 
            two impairment ratings to the left upper extremity due to 
 
            this injury, and defendants have paid the higher of the two 
 
            ratings).
 
            
 
                 The crux of the dispute in this case is whether 
 
            claimant's left extremity injury extends to her shoulder, 
 
            and thereby mandates an industrial disability assessment.
 
            An employee is entitled to compensation for any and all 
 
            personal injuries which arise out of and in the course of 
 
            the employment.  Section 85.3(1).
 
            The injury must both arise out of and be in the course of 
 
            the employment.  Crowe v. DeSoto Consol. Sch. Dist., 246 
 
            Iowa 402, 68 N.W.2d 63 (1955) and cases cited at pp. 405-406 
 
            of the Iowa Report.  See also Sister Mary Benedict v. St. 
 
            Mary's Corp., 255 Iowa 847, 124 N.W.2d 548 (l963) and Hansen 
 
            v. State of Iowa, 249 Iowa 1147, 91 N.W.2d 555 (1958).
 
            The words "out of" refer to the cause or source of the 
 
            injury.  Crowe, 246 Iowa 402, 68 N.W.2d 63. 
 
            The words "in the course of" refer to the time and place and 
 
            circumstances of the injury.  McClure v. Union et al. 
 
            Counties, 188 N.W.2d 283 (Iowa 1971); Crowe, 246 Iowa 402, 
 
            68 N.W.2d 63.
 
            The claimant has the burden of proving by a preponderance of 
 
            the evidence that the injury of April 4, 1988 is causally 
 
            related to the disability on which she now bases her claim.  
 
            Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 
 
            (1965).  Lindahl v. L. O. Boggs, 236 Iowa 296, 18 N.W.2d 607 
 
            (1945).  A possibility is insufficient; a probability is 
 
            necessary.  Burt v. John Deere Waterloo Tractor Works, 247 
 
            Iowa 691, 73 N.W.2d 732 (1955).  The question of causal 
 
            connection is essentially within the domain of expert 
 
            testimony.  Bradshaw v. Iowa Methodist 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).
 
            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, 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            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).
 
            
 
                 If a claimant contends she has industrial disability 
 
            she has the burden of proving her 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).
 
            
 
                 Claimant bases her argument on reports from Dennis 
 
            Johnson, M.D., which indicate claimant has snapping of the 
 
            left shoulder when she raises her arms above her head.  He 
 
            noted left upper extremity reflex sympathetic dystrophy.  
 
            (Jt. Ex. 28)
 
            
 
                 Claimant had regular medical treatment from the date of 
 
            her injury (April 7, 1988), yet she did not complain of any 
 
            shoulder pain prior to Dr. Johnson's evaluation on May 16, 
 
            1989.
 
            
 
                 Claimant had not worked at K-Products since September 
 
            of 1988, yet she continued her dog-grooming business.  No 
 
            physician who had treated claimant had made any notations of 
 
            left shoulder pain.  Dr. Harvey and Dr. Paulsrud, the two 
 
            physicians who navigated claimant's medical care initially, 
 
            made no notations of left or right shoulder problems.  In 
 
            fact, neither physician restricted claimant's use of her 
 
            arms or shoulder, but concentrated on job functions that 
 
            demanded repetitive use of the hands.  And, when claimant 
 
            reached maximum medical healing, Dr. Paulsrud provided only 
 
            an impairment rating to the left upper extremity.  No 
 
            impairment was given to the left or right shoulder.  
 
            Claimant had ample opportunities to receive medical 
 
            attention directed to the left shoulder prior to Dr. 
 
            Johnson's assessment and subsequent functional evaluation, 
 
            more than one year after the initial injury date.  Even Dr. 
 
            Johnson's left upper extremity impairment rating is suspect.  
 
            He based the rating on the reflex sympathetic dystrophy in 
 
            the left upper extremity; chronic tenosynovitis of the first 
 
            dorsal compartment of the left upper extremity; and, 
 
            tenosynovitis of the metacarpal phalangeal joint of the left 
 
            hand.  In his deposition, taken January 24, 1990, 
 
            approximately eight months after the report, Dr. Johnson 
 
            verbally supplemented his report to include in the rating an 
 
            additional diagnosis of tenosynovitis of the left shoulder.  
 
            (Jt. Ex. 30, pp. 15-16)  The undersigned is not persuaded by 
 
            claimant's argument, and finds that Drs. Paulsrud, Harvey 
 
            and Durward provided accurate and reliable medical 
 
            information concerning claimant's condition.  And, although 
 
            it is recognized that after the injury claimant performed 
 
            duties other than those she performed at the time of her 
 
            injury, the other positions she held were not of a 
 
            repetitive and strenuous nature to cause a shoulder injury.  
 
            Claimant has not shown by a preponderance of the evidence 
 
            that the left shoulder complaints are causally related to 
 
            her work activities at K-Products.
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            August 8, 1988 -- Right Upper Extremity
 
            
 
                 Claimant has been paid a total of 37.5 weeks, based on 
 
            15 percent functional impairment to her left upper 
 
            extremity.  The dispute focuses on whether claimant 
 
            sustained a second work related injury to her right 
 
            shoulder, thereby requiring an analysis addressing an 
 
            industrial disability and to what extent, if any, the Second 
 
            Injury Fund of Iowa is liable.
 
            
 
                 The first issue to be addressed is whether claimant 
 
            sustained an injury which arose out of and in the course of 
 
            her employment on August 8, 1988.
 
            
 
                 Previous citations to the law will not be reiterated, 
 
            but are relevant to the issue presented.
 
            
 
                 Claimant argues that due to the condition of her left 
 
            thumb, she over-compensated in using her right upper 
 
            extremity when performing various job duties for the 
 
            defendant, and sustained an injury in so doing.
 
            
 
                 Claimant's argument is conjunctive.  She advances that 
 
            she began having physical problems which affected her right 
 
            hand in August of 1988.  And, she poses that these maladies 
 
            have caused permanent impairment to her right shoulder.
 
            
 
                 The medical reports show that the initial complaint of 
 
            right hand pain came on December 26, 1988, during claimant's 
 
            first of two visits with Dr. Durward.  He noted swelling of 
 
            the right hand, particularly the joints of the second and 
 
            third digits.  (Jt. Ex. 24)
 
            
 
                 Claimant again saw Dr. Durward on March 8, 1989.  An 
 
            EMG had been performed, and although the results showed 
 
            minimal evidence of compressed median nerves of the wrist, 
 
            Dr. Durward felt medical intervention unnecessary at this 
 
            juncture.
 
            
 
                 Again, the record is silent as to right shoulder 
 
            complaints until claimant received an independent medical 
 
            examination from Dr. Johnson on May 16, 1989.
 
            
 
                 The medical records indicate that claimant's first 
 
            complaints of right shoulder, or any shoulder pain are found 
 
            in Dr. Johnson's evaluation, dated March 31, 1989 (although 
 
            the evidence shows the report should be dated May 31, 1989).  
 
            His report specifically states that claimant had "complaints 
 
            of pain and numbness into both hands and forearms, and also 
 
            pain into both shoulders which had been present since a 
 
            work-related injury on 4-17-88."  (Jt. Ex. 28)  Dr. Johnson 
 
            found snapping of the scapulae and scapulo thoracic motion 
 
            on both sides, and provided a permanent impairment rating of 
 
            the left upper extremity of 14 percent.  Dr. Johnson also 
 
            gave claimant a permanent impairment rating of the right 
 
            upper extremity of five percent, based on his examination of 
 
            the right shoulder.  (Jt. Ex. 28)  Collectively, Dr. Johnson 
 
            gave claimant a permanent impairment rating of 11 percent to 
 
            the body as a whole.  (Jt. Ex. 28; Jt. Ex. 29)
 
            
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
                 Claimant was paid temporary total disability benefits 
 
            beginning May 9, 1988 and ending August 17, 1988.  Although 
 
            she was employed by K-Products on August 8, 1988, the 
 
            evidence is unclear as to whether she was not working at the 
 
            plant during this time period.
 
            
 
                 Claimant has owned and operated a dog grooming business 
 
            from December of 1986 through the present.  She testified 
 
            that the business requires her to lift dogs onto a table and 
 
            use an electrical, vibrating clipper to trim the dogs.  She 
 
            bathes the dogs and clips toenails.  Her business has 
 
            increased over the past four years.  (Jt. Ex. 45, 46, 47, 
 
            48)
 
            
 
                 Although other witnesses at the hearing testified that 
 
            claimant had complained of shoulder pain as early as 1988, 
 
            the undersigned is not persuaded and must look to the 
 
            medical evidence for guidance on this issue.  Once again, 
 
            Dr. Johnson's evaluation is rejected.  After claimant's 
 
            initial injury, she was not required to perform any 
 
            repetitive or strenuous tasks at K-Products, although she 
 
            did testify that the blocking and screen print jobs were not 
 
            easily performed.  One of the witnesses who testified 
 
            demonstrated how those particular jobs were performed, and 
 
            it did not appear that repetitive motions were used.  As a 
 
            result, it is found that claimant did not sustain an injury 
 
            which arose out of and in the course of her employment on 
 
            August 8, 1988.
 
            
 
                 Therefore, defendants are not liable compensation other 
 
            than which has been paid for the April 1988 injury.  And, as 
 
            claimant has not sustained a second injury, the Second 
 
            Injury Fund of Iowa is not liable for payment of benefits.
 
            
 
                 The only other issue to be addressed is whether 
 
            claimant is entitled to medical benefits pursuant to Iowa 
 
            Code section 85.27 or Iowa Code section 85.39.
 
            
 
                 Iowa Code section 85.39 provides, in pertinent part:
 
               If an evaluation of permanent disability has been made by 
 
            a physician retained by the employer and the employee 
 
            believes this evaluation to be too low, the employee shall, 
 
            upon application to the commissioner and upon delivery of a 
 
            copy of the application to the employer and its insurance 
 
            carrier, be reimbursed by the employer the reasonable fee 
 
            for a subsequent examination by a physician of the 
 
            employee's own choice, and reasonably necessary 
 
            transportation expenses incurred for the examination.
 
            
 
                 Claimant's initial request for an IME to be performed 
 
            by Dr. Durward was made November 22, 1988, was consented to 
 
            by the defendants on December 20, 1988, and was approved by 
 
            the agency on December 21, 1988.
 
            
 
                 The statute contemplates only an examination; it does 
 
            not authorize claimant to receive additional medical 
 
            treatment.  If that were the case, the entire concept of 
 
            employer-choice and control of care, a staple of Iowa's 
 
            workers' compensation law would be undermined.
 
            
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
                 As a result, defendants are obligated to pay only for 
 
            the costs of the evaluation; claimant must bear the costs of 
 
            any treatment rendered by Dr. Durward.
 
            
 
                 Claimant has also requested reimbursement for Dr. 
 
            Johnson's IME costs.  Claimant is allowed only one IME for 
 
            the left shoulder or upper extremity.  Dr. Johnson evaluated 
 
            and rated both upper extremities.  The prehearing report 
 
            indicates that defendants stipulated to the fairness and 
 
            reasonableness of the medical bills, and therefore did not 
 
            provide apportionment for the IME between the left and right 
 
            shoulders.  And, the evidence reflects that a prior ruling 
 
            approved the IME provided by Dr. Johnson, absent a 
 
            resistance from the defendants.  The undersigned cannot 
 
            overrule a prior ruling by another deputy.  As a result, 
 
            defendants are responsible for payment of the IME provided 
 
            by Dr. Johnson. 
 
            
 
                                      order
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 That claimant is awarded certain medical benefits 
 
            pursuant to Iowa Code section 85.39;
 
            
 
                 That claimant take nothing further from these 
 
            proceedings;
 
            
 
                 That defendants pay the costs of this proceeding.
 
            
 
                 Signed and filed this ____ day of June, 1991.
 
            
 
            
 
            
 
            
 
                                          
 
            ________________________________
 
                                          PATRICIA J. LANTZ
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr Theodore E Karpuk
 
            Attorney at Law
 
            400 1st Natl Bank Bldg
 
            PO Box 1768
 
            Sioux City Iowa 51102
 
            
 
            Mr Frank T Harrison
 
            Attorney at Law
 
            Terrace Center Ste 111
 
            2700 Grand Avenue
 
            Des Moines Iowa 50312
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
            
 
            Mr Greg Knoploh
 
            Assistant Attorney General
 
            Tort Claims Division
 
            Hoover State Office Bldg
 
            Des Moines Iowa 50319
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                      5-1108
 
                      Filed
 
                      PATRICIA J. LANTZ
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            JANICE L. ADAMS,    :
 
                      :
 
                 Claimant, :
 
                      :
 
            vs.       :
 
                      :      File Nos. 883281
 
            K-PRODUCTS, INC.,   :                910528
 
                      :
 
                 Employer, :    A R B I T R A T I O N
 
                      :
 
            and       :       D E C I S I O N
 
                      :
 
            GENERAL CASUALTY COMPANIES,   :
 
                      :
 
                 Insurance Carrier,  :
 
                      :
 
            and       :
 
                      :
 
            SECOND INJURY FUND OF IOWA,   :
 
                      :
 
                 Defendants.    :
 
            ___________________________________________________________
 
            
 
            5-1108
 
            Claimant sustained an injury to her left thumb, and was paid 
 
            permanent partial disability benefits.  One year later, she 
 
            claimed that the left thumb injury caused left and right 
 
            shoulder problems.
 
            Claimant had never complained of these problems until an IME 
 
            was performed one year after the initial injury.
 
            Claimant denied further benefits.