Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            LAURIE A. GEBEL,              :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :         File No. 916790
 
                                          :
 
            KITCHENS OF SARA LEE,         :      A R B I T R A T I O N
 
                                          :
 
                 Employer,                :         D E C I S I O N
 
                                          :
 
            and                           :
 
                                          :
 
            TRAVELERS INSURANCE COMPANY,  :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding in arbitration brought by the 
 
            claimant, Laurie A. Gebel, against her employer, Kitchens of 
 
            Sara Lee, and its insurance carrier, Travelers Insurance 
 
            Company, to recover benefits under the Iowa Workers' 
 
            Compensation Act as a result of an injury sustained on 
 
            October 29, 1988.  This matter came on for hearing before 
 
            the undersigned deputy industrial commissioner at Waterloo, 
 
            Iowa, on November 27, 1991.  A first report of injury has 
 
            been filed.
 
            
 
                 The record consists of claimant's exhibits 1 through 27 
 
            and defendants' exhibits 28 through 36, as well as of the 
 
            testimony of claimant, of Lee Gebel, of Tony J. Gotto, of 
 
            Barbara Bierbaum, and of Kevin Lamphier.
 
            
 
                                      issues
 
            
 
                 Pursuant to the hearing assignment order, the 
 
            prehearing report and the oral stipulation of the parties, 
 
            the parties have stipulated to the following:  that 
 
            claimant's weekly rate is $233.78, given that she was 
 
            married and entitled to three exemptions at the time of her 
 
            injury; that claimant has received all healing period or 
 
            temporary total disability benefits to which she is entitled 
 
            with those beginning on October 29, 1988; and, that the 
 
            commencement date for any permanent disability, should 
 
            permanent partial disability be awarded, would be either 
 
            March 16, 1990, or August 21, 1990.  The parties have 
 
            further stipulated that claimant did receive an injury 
 
            arising out of and in the course of her employment on the 
 
            alleged injury date and that a causal relationship exists 
 
            between that injury and claimed permanent disability as well 
 
            as claimed healing period or temporary total disability.  
 
            Additionally, the parties agree that, under the American 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            Medical Association Guides to the Evaluation of Permanent 
 
            Impairment, the combined value of the ratings of claimant by 
 
            Peter C. Amadio, M.D., is 56 percent of the body as a whole.  
 
            Also, the employer has agreed to pay the section 85.27 
 
            expenses listed in claimant's exhibits 18 and 19.
 
            
 
                 The issue remaining to be decided is the nature and 
 
            extent of claimant's permanent partial disability benefit 
 
            entitlement, if any, including the question of whether 
 
            claimant is an odd-lot worker under the Guyton doctrine.
 
            
 
                                 findings of fact
 
            
 
                 The deputy, having heard the testimony and reviewed the 
 
            documentary evidence, finds:
 
            
 
                 Claimant is a 26-year-old married woman with one child.  
 
            She is a high school graduate who has taken a limited course 
 
            in dietary aide work but otherwise has no specialized 
 
            training.  Her primary work history was as a production 
 
            worker with Kitchens of Sara Lee where she began at a salary 
 
            of $5.39 per hour and left with a salary of $7.04.  At Sara 
 
            Lee, claimant also had a benefit package including vacation 
 
            pay, health and dental insurance and a pension fund.  
 
            Claimant has also worked part time and full time in nursing 
 
            homes as a nurse's aide, dietary aide, laundress and cook.  
 
            Claimant opined that each of those tasks involved a need for 
 
            either repetitious work with the hands or strength in the 
 
            hands and that she would be precluded from doing such work 
 
            today.
 
            
 
                 Claimant began work at Sara Lee in 1985.  She initially 
 
            worked in roll make-up and then worked in the savory 
 
            department.  Each job involved repetitious hand movements 
 
            with claimant generally being required to package 70 items 
 
            per minute.  Claimant worked 8-10 hours per day, 5 or 6 days 
 
            per week.  In October 1988, claimant advised the Sara Lee 
 
            nurse that her hands were swollen.  Other symptoms included 
 
            numbness and throbbing, sharp pain.
 
            
 
                 Claimant saw William W. Eversmann, M.D., in November 
 
            1988.  He advised splints for both work and home activities.  
 
            Claimant's condition did not improve and she had carpal 
 
            tunnel releases performed on April 26, 1989, and May 31, 
 
            1989.  Claimant returned to work on a four-hour-per-day 
 
            basis in July 1989.  Claimant indicated that her condition 
 
            worsened upon her work return.
 
            
 
                 On September 7, 1989, claimant saw Peter C. Amadio, 
 
            M.D., a board-certified hand surgeon with Mayo Clinic.  Dr. 
 
            Amadio again took claimant off work.  Claimant has not since 
 
            returned to work.  Dr. Amadio diagnosed claimant's condition 
 
            as bilateral failed carpal tunnel syndrome and bilateral 
 
            thoracic outlet syndrome.  Thoracic outlet surgery was 
 
            performed on the right in July 1990.  Vascular studies 
 
            showed objective improvement, but claimant had no subjective 
 
            improvement in her symptomatology.  For that reason, left 
 
            thoracic outlet surgery was not performed.
 
            
 
                 Colleen M. Galegher Johnson performed a work capacity 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            evaluation with claimant in July 1990.  In her deposition, 
 
            Johnson reported that claimant's grip strength bilaterally 
 
            was less than one percent of the norm for a 24-year-old 
 
            female and her test was in the lowest possible range, that 
 
            being less than 10 percent of the norm for a 24-year-old 
 
            female.  Fine motor skills also were less than one percent 
 
            of the norm for a 24-year-old female.  Claimant was unable 
 
            to complete three tests of nuts and bolts assembly on 
 
            account of her pain.  She was unable to carry 10 pounds for 
 
            greater than 50 feet and, in the course of doing so, 
 
            complained of pain bilaterally in the arms and shoulders.  
 
            On a push-pull test, claimant could push and pull 15 pounds 
 
            of force to start movement and then 13 pounds to sustain 
 
            movement.  Claimant could lift floor to knuckle 5 pounds and 
 
            knuckle to shoulder 5 pounds.  Her estimated maximum safe 
 
            lifting weight would be no more than 3 pounds between 
 
            knuckle and shoulder level with nothing above the shoulder.  
 
            A functional capacity evaluation was discontinued after 
 
            approximately one hour, that is, two cycles, as claimant 
 
            could not handle the fine motor activities involved.  In her 
 
            deposition of November 15, 1991, Johnson opined that there 
 
            was no level of work claimant would be able to perform, 
 
            given the results of the July 1990 testing and that claimant 
 
            would not be able to perform sedentary level work.  Johnson 
 
            opined that claimant could not operate a computer, use a 
 
            10-key adding machine, make change or carry 5- or 10-pound 
 
            items or lift cooking utensils filled with food.  She also 
 
            indicated claimant could not carry small children for 
 
            extended periods of time.  Johnson also opined that claimant 
 
            would be incapable of washing her car at a self-service car 
 
            wash using a high-pressure hose or using such a hose above 
 
            her head and that claimant would not be able to dry and wash 
 
            a car for an hour and fifteen minutes while using her right 
 
            hand in a circular motion.
 
            
 
                 In his deposition of November 15, 1991, Dr. Amadio 
 
            opined that claimant's symptoms had not subsided since 
 
            September 9, 1991, and he does not anticipate they will 
 
            subside to a point where claimant can be gainfully employed. 
 
            Dr. Amadio further opined that claimant cannot perform 
 
            services of a quality and dependability that would be useful 
 
            in a reasonably stable job market.  Dr. Amadio doubted that 
 
            claimant could serve as a restaurant hostess.
 
            
 
                 Gordon Moore, M.D., a board-certified psychiatrist with 
 
            the Mayo Clinic, evaluated claimant briefly on August 7, 
 
            1990.  He felt claimant had an adjustment disorder with 
 
            mixed features.  He described such as not a preexisting 
 
            psychiatric disorder but as an emotional response based on 
 
            one's coping style to a set of stressors.  Dr. Moore agreed 
 
            that coping style itself is preexisting.  Both Drs. Moore 
 
            and Amadio have recommended that claimant enter the Mayo 
 
            Pain Management Center after her litigation is resolved.
 
            
 
                 Claimant's hands were visibly swollen and distorted at 
 
            time of hearing.  Claimant has difficulty fixing her own 
 
            hair.  Her sister assisted her in doing so on the date of 
 
            hearing.  Claimant can place laundry in a washing machine 
 
            but cannot carry laundry.  Claimant cooks simple meals, but 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            her three-year-old son must assist by operating an electric 
 
            can opener for her.  Claimant and her spouse have purchased 
 
            a dishwasher as claimant is unable to do dishes.  Claimant 
 
            can vacuum with breaks in between.  Claimant's family 
 
            assists with housework.  Claimant can drive approximately 
 
            ten miles.  Grasping a steering wheel causes hand and arm 
 
            numbness.  Claimant lies down approximately 5-10 times per 
 
            day in order to relieve her pain.  Claimant can write one 
 
            check and a small note before experiencing symptoms 
 
            requiring her to stop.  She can hold a telephone to her ear 
 
            with her neck for approximately five minutes.
 
            
 
                 Kevin Lamphier, an investigator formerly with Gordon 
 
            Gratias Private Investigations, observed claimant washing 
 
            her car with a pistol grip sprayer which she held in her 
 
            right hand and controlled with her left on approximately 
 
            November 3, 1991.  Claimant also operated a change machine 
 
            and dried and cleaned the interior of her car for 
 
            approximately one and one-fourth hours subsequent to washing 
 
            it.  Lamphier indicated claimant held both hands above her 
 
            head while using the high-pressure water hose.  Lamphier's 
 
            report indicates that claimant pulled into the car wash at 
 
            10:57 a.m. and left the car wash at 11:06 a.m.  Given that 
 
            claimant had to make change and tend to her preschooler in 
 
            that time, such does not represent a significant period of 
 
            grasping with the hands or reaching overhead.  Claimant 
 
            arrived at her home at 11:09 a.m. and started drying her car 
 
            at 12:10 p.m.  Such represents a break of approximately one 
 
            hour and, while it is likely claimant prepared lunch for 
 
            herself and her child during that time, it is not altogether 
 
            inconsistent with claimant's testimony that claimant needed 
 
            a break prior to starting to dry the car after having washed 
 
            the car.  At hearing, claimant testified that she had been 
 
            indoors for so long that she decided to see if she could 
 
            wash the car.  Claimant indicated that, after drying the 
 
            car, her hands felt heavy and throbbed.  She indicated it 
 
            took a day or two after the car washing for her hands to 
 
            return to normal.  Claimant was a credible witness.
 
            
 
                 Tony J. Gotto, personnel manager at Sara Lee, reported 
 
            that the company's policy is to attempt to return workers to 
 
            work within their medical restrictions.  He indicated that, 
 
            on claimant's work return, work was provided within Dr. 
 
            Eversmann's assigned restrictions.  Gotto indicated he was 
 
            not aware of any restrictions from Dr. Amadio.  Gotto stated 
 
            claimant would be considered for reemployment if she should 
 
            apply, but than agreed that there was no work at Sara Lee 
 
            that does not require use of the hands and arms.  Light-duty 
 
            work at Sara Lee consists of cutting chocolate curls or 
 
            putting chocolate bars into machines and other self-paced 
 
            activities.
 
            
 
                 Barbara Bierbaum, a rehabilitation specialist with a 
 
            background in business but without specialized training as a 
 
            rehabilitation specialist, testified at hearing.  She 
 
            indicated that job possibilities for claimant included 
 
            teacher's aide, group worker, production inspector, office 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            worker, cashier, teller, motel reservationist and day care 
 
            worker.  Bierbaum agreed that she based her job 
 
            considerations on claimant's interests as ascertained 
 
            through an interview with claimant and on a medical note of 
 
            Ann Schutt, M.D., of September 21, 1989, which note stated 
 
            that claimant would be permitted to return to 
 
            non-repetitive, light-duty work without her arms overhead or 
 
            at shoulder level when claimant's symptoms subsided.  
 
            Bierbaum agreed that she had made no determination that 
 
            claimant's symptoms had subsided when she used the report of 
 
            Dr. Schutt as a work release.  Bierbaum further agreed that, 
 
            without knowledge of claimant's current restrictions, she 
 
            does not know if claimant could perform any jobs found or 
 
            perform jobs in the competitive job market.  Bierbaum did 
 
            not know if claimant could make change or count money on a 
 
            regular basis.  She did not believe that claimant could work 
 
            as a full-time computer operator.  Bierbaum was not aware of 
 
            claimant's need for assistance with her own child or of 
 
            claimant's need to rest 5-10 times per day.  Jobs Bierbaum 
 
            located for claimant required drives of 18-40 miles each 
 
            way.  Bierbaum agreed she had not checked with claimant as 
 
            regards claimant's ability to drive long distances prior to 
 
            locating such jobs.  Bierbaum's testimony is given less 
 
            weight, given her lack of understanding of claimant's 
 
            current work restrictions, physical disabilities, and 
 
            inability to drive for sustained periods.  Bierbaum located 
 
            two job openings in group work and nursing homes which 
 
            Bierbaum felt claimant could do.  One involved cleaning and 
 
            the other involved hand work possibly pushing wheelchairs.  
 
            Claimant was advised by the administrator that it was not 
 
            likely she would be able to perform the cleaning work.
 
            
 
                 Thomas W. Magner, a certified rehabilitation counselor, 
 
            evaluated claimant and issued a report on October 28, 1991.  
 
            Magner opined that, given claimant's situation and her lack 
 
            of transferrable skills, claimant would not be able to work 
 
            on a regular competitive basis.  Claimant apparently 
 
            graduated 82nd in a class of 172 students and had received 
 
            grades ranging from A through C in high school.
 
            
 
                 Dr. Amadio last physically examined claimant on March 
 
            27, 1991.  She then had full range of motion in the hands, 
 
            pinch strength of 1.5 kilometers bilaterally and a grip 
 
            strength of 4 kilometers bilaterally without atrophy.  Both 
 
            hands were cool to touch and red and sweating.
 
            
 
                 Dr. Eversmann, in a clinical note of March 6, 1990, 
 
            indicated that claimant had a seven percent permanent 
 
            partial impairment of the right upper extremity and a five 
 
            percent permanent partial impairment of the left upper 
 
            extremity equalling four percent of the body as a whole on 
 
            the right and three percent of the body as a whole on the 
 
            left for, under the combined values chart, seven percent of 
 
            the body as a whole.  Apparently, that amount relates to the 
 
            bilateral carpal tunnel condition only and not to the 
 
            thoracic outlet condition.
 
            
 
                 W. C. Koenig, Jr., M.D., a physical medicine and 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            rehabilitation specialist, evaluated claimant and issued a 
 
            report on November 29, 1990.  His impression was that 
 
            claimant was status post-carpal tunnel release and status 
 
            post-right thoracic outlet surgery.  Dr. Koenig opined that 
 
            claimant had a 5 percent permanent partial impairment of 
 
            each upper extremity as the result of her carpal tunnel 
 
            syndrome and a 30 percent permanent partial impairment of 
 
            the upper extremity as the result of her failed thoracic 
 
            outlet surgery, equalling 40 percent permanent partial 
 
            impairment of the upper extremity or 25 percent partial 
 
            "disability" of the body as a whole.
 
            
 
                    
 
            
 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            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 the 
 
            employee is fitted.  Olson v. Goodyear Serv. Stores, 255 
 
            Iowa 1112, 125 N.W.2d 251 (1963); Barton v. Nevada Poultry, 
 
            253 Iowa 285, 110 N.W.2d 660 (1961).
 
            
 
                 A finding of impairment to the body as a whole found by 
 
            a medical evaluator does not equate to industrial 
 
            disability.  Impairment and disability are not synonymous.  
 
            The degree of industrial disability can be much different 
 
            than the degree of impairment because industrial disability 
 
            references to loss of earning capacity and impairment 
 
            references to anatomical or functional abnormality or loss.  
 
            Although loss of function is to be considered and disability 
 
            can rarely be found without it, it is not so that a degree 
 
            of industrial disability is proportionally related to a 
 
            degree of impairment of bodily function.
 
            
 
                 Factors to be considered in determining industrial dis
 
            ability include the employee's medical condition prior to 
 
            the injury, immediately after the injury, and presently; the 
 
            situs of the injury, its severity and the length of the 
 
            healing period; the work experience of the employee prior to 
 
            the injury and after the injury and the potential for 
 
            rehabilitation; the employee's qualifications 
 
            intellectually, emotionally and physically; earnings prior 
 
            and subsequent to the injury; age; education; motivation; 
 
            functional impairment as a result of the injury; and 
 
            inability because of the injury to engage in employment for 
 
            which the employee is fitted.  Loss of earnings caused by a 
 
            job transfer for reasons related to the injury is also 
 
            relevant.  Likewise, an employer's refusal to give any sort 
 
            of work to an impaired employee may justify an award of 
 
            disability.  McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 
 
            (Iowa 1980).  These are matters which the finder of fact 
 
            considers collectively in arriving at the determination of 
 
            the degree of industrial disability.
 
            
 
                 There are no weighting guidelines that indicate how 
 
            each of the factors are to be considered.  Neither does a 
 
            rating of functional impairment directly correlate to a 
 
            degree of industrial disability to the body as a whole.  In 
 
            other words, there are no formulae which can be applied and 
 
            then added up to determine the degree of industrial 
 
            disability.  It therefore becomes necessary for the deputy 
 
            or commissioner to draw upon prior experience as well as 
 
            general and specialized knowledge to make the finding with 
 
            regard to degree of industrial disability.  See Christensen 
 
            v. Hagen, Inc., Vol. 1 No. 3 State of Iowa Industrial 
 
            Commissioner Decisions 529 (App. March 26, 1985); Peterson 
 
            v. Truck Haven Cafe, Inc., Vol. 1 No. 3 State of Iowa 
 
            Industrial Commissioner Decisions 654 (App. February 28, 
 
            1985).
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            
 
                 Compensation for permanent partial disability shall 
 
            begin at the termination of the healing period.  
 
            Compensation shall be paid in relation to 500 weeks as the 
 
            disability bears to the body as a whole.  Section 85.34.
 
            
 
                 In Guyton v. Irving Jensen Co., 373 N.W.2d 101 (Iowa 
 
            1985), the Iowa court formally adopted the "odd-lot 
 
            doctrine."  Under that doctrine a worker becomes an odd-lot 
 
            employee when an injury makes the worker incapable of 
 
            obtaining employment in any well-known branch of the labor 
 
            market.  An odd-lot worker is thus totally disabled if the 
 
            only services the worker can perform are "so limited in 
 
            quality, dependability, or quantity that a reasonably stable 
 
            market for them does not exist."  Guyton, 373 N.W.2d at 105.
 
            
 
                 The burden of persuasion on the issue of industrial 
 
            disability always remains with the worker.  When a worker 
 
            makes a prima facie case of total disability by producing 
 
            substantial evidence that the worker is not employable in 
 
            the competitive labor market, the burden to produce evidence 
 
            of suitable employment shifts to the employer, however.  If 
 
            the employer fails to produce such evidence and if the trier 
 
            of fact finds the worker does fall in the odd-lot category, 
 
            the worker is entitled to a finding of total disability.  
 
            Guyton, 373 N.W.2d at 106.  Even under the odd-lot 
 
            doctrine, the trier of fact is free to determine the weight 
 
            and credibility of evidence in determining whether the 
 
            worker's burden of persuasion has been carried, and only in 
 
            an exceptional case would evidence be sufficiently strong as 
 
            to compel a finding of total disability as a matter of law.  
 
            Guyton, 373 N.W.2d at 106.
 
            
 
                 Claimant has made a prima facie showing that the only 
 
            services claimant could perform are so limited in quality, 
 
            dependability, or quantity that a reasonably stable market 
 
            for them does not exist.  Claimant has virtually no 
 
            effective use of her upper extremities.  She lives in a 
 
            rural area where the job market is already limited.  She can 
 
            drive for no more than ten miles without experiencing 
 
            difficulties with her upper extremities.  Those facts in 
 
            themselves would seriously limit the job market available 
 
            for claimant.  In addition, claimant cannot perform the 
 
            light-weight maneuvers required to make change, operate a 
 
            keyboard, operate a credit card machine or otherwise perform 
 
            sedentary level clerical tasks.  She has difficulty writing.  
 
            Her advisable lifting and carrying limit is three pounds.  
 
            She has limited education; none of the vocational and 
 
            occupational evaluators who worked with claimant advised 
 
            retraining.  Ms. Galegher Johnson opined that, based on the 
 
            Dictionary of Occupational Titles, there was no sedentary 
 
            level work that claimant could do.  One can conclude then 
 
            that retraining is not advised in that, even with 
 
            retraining, claimant's inability to use her upper 
 
            extremities precludes successful employment.
 
            
 
                 Defendants have not sustained their burden of showing 
 
            that work is available for claimant.  Mr. Gotto testified 
 
            that she would be considered for re-hiring at Kitchens of 
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            Sara Lee, but then conceded that there are no jobs at Sara 
 
            Lee that do not require use of the hands and arms.  Nothing 
 
            in this record suggests that claimant could fairly be 
 
            required to use her hands and arms in sustained work.  
 
            Defendants did observe claimant engaging in an activity 
 
            which required some gripping and some overhead work as well 
 
            as circular movement of the hand.  Claimant's testimony that 
 
            she attempted to wash her car as a result of her frustration 
 
            with her inactivity was credible, however.  Additionally, 
 
            the ability to engage in such an activity on one day at 
 
            one's own pace and with time to recover from the discomfort 
 
            it produces is not fairly comparable to the demands of 
 
            sustained employment in the competitive labor market.  
 
            Likewise, Ms. Bierbaum's testimony did not show that 
 
            claimant had the capacity to enter the labor market 
 
            competitively.  Defendants have failed in their burden to go 
 
            forward and show that competitive employment is actually 
 
            available to claimant.  Given such, and given claimant's 
 
            circumstances as a whole, it is concluded that claimant is 
 
            an odd-lot worker under the Guyton doctrine and is for that 
 
            reason entitled to an award of permanent total disability 
 
            benefits.
 
            
 
                                      order
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 Defendants pay Laurie A. Gebel permanent total 
 
            disability benefits at the rate of two hundred thirty-three 
 
            and 78/100 dollars ($233.78) per week throughout the period 
 
            of her disability with benefits to commence on the date of 
 
            injury.
 
            
 
                 Defendants receive credit for benefits previously paid.
 
            
 
                 Defendants pay accrued amounts in a lump sum together 
 
            with interest pursuant to Iowa Code section 85.30.
 
            
 
                 Costs are assessed against defendants pursuant to rule 
 
            343 IAC 4.33.
 
            
 
                 Defendants file claim activity reports as requested by 
 
            this agency pursuant to rule 343 IAC 3.1.
 
            
 
                 Signed and filed this ______ day of ____________, 1992.
 
            
 
                 
 
            
 
                 
 
                 
 
                                          ______________________________
 
                                          HELENJEAN M. WALLESER
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. John Riccolo
 
            Mr. David L. Baker
 
            Attorneys at Law
 
            Suite 1140, The Center
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
            425 Second Street SE
 
            Cedar Rapids, Iowa  52401
 
            
 
            Mr. John D. Standafer
 
            Attorney at Law
 
            101 East Main Street
 
            West Union, Iowa  52175
 
            
 
            Mr. Rustin T. Davenport
 
            Mr. C. Bradley Price
 
            Mr. Mark A. Wilson
 
            Attorneys at Law
 
            30 4th Street NW
 
            P.O. Box 1953
 
            Mason City, Iowa  50401
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                               1804; 3701; 4100
 
                                               Filed February 28, 1992
 
                                               HELENJEAN M. WALLESER
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            LAURIE A. GEBEL,              :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :         File No. 916790
 
                                          :
 
            KITCHENS OF SARA LEE,         :      A R B I T R A T I O N
 
                                          :
 
                 Employer,                :         D E C I S I O N
 
                                          :
 
            and                           :
 
                                          :
 
            TRAVELERS INSURANCE COMPANY,  :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
            1804; 4100
 
            Twenty-six-year-old female claimant with bilateral carpal 
 
            tunnel syndrome and bilateral thoracic outlet syndrome, 
 
            three-pound lifting restriction below the shoulder, and de 
 
            minimis grip strength found to be an odd-lot worker.
 
            
 
            3701
 
            Surveillance testimony and photos showing claimant using an 
 
            air-powered hose to wash her car and showing claimant wiping 
 
            the car were countered by claimant's testimony regarding 
 
            difficulties she experienced subsequent to engaging in the 
 
            activity.
 
            
 
 
         
 
 
 
 
 
 
 
 
 
 
 
         before the iowa industrial commissioner
 
         ____________________________________________________________
 
                                       :
 
         WILLENE C. TITUS,             :
 
                                       :
 
              Claimant,                :
 
                                       :
 
         vs.                           :
 
                                       :        File No. 916954
 
         HUSH PUPPY SHOES, a/k/a       :                 926960
 
         TODD'S NATURALIZERS,          :
 
                                       :          A P P E A L
 
              Employer,                :
 
                                       :        D E C I S I O N
 
         and                           :
 
                                       :
 
         AMERICAN MOTORISTS 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 25, 1991, is affirmed and is adopted as the final agency 
 
         action in this case. 
 
         Defendants shall pay the costs of the appeal, including the 
 
         preparation of the hearing transcript.
 
         Signed and filed this ____ day of March, 1992.
 
         
 
         
 
         
 
         
 
                   ________________________________
 
                            BYRON K. ORTON
 
                        INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. David D. Drake
 
         Attorney at Law
 
         West Towers Office
 
         1200 35th Street
 
         Suite 500
 
         West Des Moines, Iowa  50265
 
         
 
         Mr. Paul C. Thune
 
         Attorney at Law
 
         218 6th Avenue, Suite 300
 
         P O Box 9130
 
         Des Moines, Iowa  50306
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
            9998
 
            Filed March 20, 1992
 
            BYRON K. ORTON
 
            DRR
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            WILLENE C. TITUS,             :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :        File No. 916954
 
            HUSH PUPPY SHOES, a/k/a       :                 926960
 
            TODD'S NATURALIZERS,          :
 
                                          :          A P P E A L
 
                 Employer,                :
 
                                          :        D E C I S I O N
 
            and                           :
 
                                          :
 
            AMERICAN MOTORISTS INSURANCE, :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
            
 
            9998
 
            Summary affirmance of deputy's decision filed July 25, 1991.
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                               1803
 
                                               Filed February 28, 1992
 
                                               MICHAEL G. TRIER
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            JUDY BANKS,                   :
 
                                          :
 
                 Claimant,                :         File Nos. 898516
 
                                          :                   917001
 
            vs.                           :                   976638
 
                                          :
 
            WOODWARD STATE HOSPITAL       :      A R B I T R A T I O N
 
            SCHOOL,                       :
 
                                          :         D E C I S I O N
 
                 Employer,                :
 
                                          :
 
            and                           :
 
                                          :
 
            STATE OF IOWA,                :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
            1803
 
            Claimant, with admitted injury, awarded 30 percent permanent 
 
            partial disability.  The decision discusses the impact of 
 
            training obtained after the end of the healing period upon 
 
            the employer's permanent partial disability liability.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            MICHAEL M. MORENO,            :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :         File No. 917096
 
            SIPCO,                        :
 
                                          :      A R B I T R A T I O N
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            CITY INSURANCE COMPANY,       :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
                                   introduction
 
            
 
                 This is a proceeding in arbitration brought by the 
 
            claimant, Michael Moreno, against his employer, Swift 
 
            Independent Packing Company, and its insurance carrier, City 
 
            Insurance Company, to recover benefits under the Iowa 
 
            Workers' Compensation Act as a result of an injury sustained 
 
            on April 12, 1989.  This matter came on for hearing before 
 
            the undersigned deputy industrial commissioner at Des 
 
            Moines, Iowa on March 5, 1991.  A first report of injury was 
 
            filed on May 15, 1989.  The record consists of the testimony 
 
            of claimant, of Leona Martin, of William D. Green, and of 
 
            Peter C. Crivara as well as of joint exhibits 1 through 43 
 
            and claimant's exhibit A.
 
            
 
                                      issues
 
            
 
                 Pursuant to the prehearing order and the oral 
 
            stipulations of the parties at hearing, the parties 
 
            stipulated that claimant did receive an injury which arose 
 
            out of and in the course of his employment; that claimant's 
 
            injury was causally related to claimed temporary total or 
 
            healing period disability; that claimant is entitled to 
 
            healing period or temporary total disability benefits from 
 
            April 12, 1989 to February 17, 1990; that any entitlement to 
 
            permanent partial disability benefits would commence on 
 
            February 18, 1990; that claimant's rate of weekly 
 
            compensation is $200.01; and, that costs for claimant's 
 
            medical care were fair and reasonable.
 
            
 
                 Issues remaining to be decided are:  whether a causal 
 
            relationship exists between claimant's injury and claimed 
 
            permanent disability; the extent of any permanent 
 
            disability; whether claimant is an odd-lot worker under the 
 
            Guyton doctrine; and, whether claimant is entitled to 
 
            payment of certain medical costs under section 85.27.
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
                                 findings of fact
 
            
 
                 The deputy, having heard the testimony and considered 
 
            the evidence, finds:
 
            
 
                 Claimant is 58 years old and has completed the tenth 
 
            grade.  He has worked primarily as a heavy laborer, either 
 
            in the steel manufacturing or meat packing industry.  He 
 
            also has experience as a truck driver and in janitorial 
 
            work.  Claimant has attended 21 hours of barber school and 
 
            barbered part-time from approximately 1976 until 1982.  
 
            Claimant left barbering on account of lack of income, 
 
            declining eyesight, and pain in the upper dorsal spine 
 
            region and in the lateral aspect of the right elbow.
 
            
 
                 Claimant began working at Swift Packing on May 31, 
 
            1988.  He worked in the inedible room where he separated 
 
            lungs, spleens, and livers into different tubs.  Claimant 
 
            could have done his job at Swift under a 20-pound weight 
 
            limitation.  The job involves standing and walking 
 
            throughout the day, however.  It involves no above-shoulder 
 
            activity.  All lifting is done with an electric hydraulic 
 
            crawler.
 
            
 
                 Claimant fell on a wet surface at work on April 12, 
 
            1989.  He struck his neck on a metal cart and struck his 
 
            right elbow on another object.  He sustained a 
 
            hyperabduction injury to the elbow and shoulder and as of 
 
            April 14, 1989, had discomfort from the neck going to both 
 
            shoulders and down the right extremity into the right thumb 
 
            (joint exhibit 3).  X-rays of the cervical spine of April 
 
            14, 1989 showed severe degenerative arthritis with a 
 
            reversal of the normal curve, ridging, and marked 
 
            degeneration.  An olecranon spur was found on the right 
 
            elbow.  The right shoulder was essentially normal.
 
            
 
                 Claimant was again seen on April 20, 1989 where the 
 
            impression was of severe cervical degenerative arthritis, 
 
            questionably post-traumatic with radiculopathy, with 
 
            possible superimposed carpal tunnel syndrome and possible 
 
            ulnar tunnel syndrome on the right upper extremity.  
 
            Claimant was referred for physical therapy and to see 
 
            Douglas R. Koontz, M.D., a neurologist.  Plain x-rays showed 
 
            congenital blocked vertebrae at C2-3 with degenerative 
 
            changes at C5, 6 and 7 with fusion.  The x-ray report 
 
            suggested some compression of those vertebrae from old 
 
            trauma as a cause of the fusion.  Abnormal kyphosis was 
 
            apparent at 5, 6 and 7.  An MRI study confirmed the above 
 
            and did not show any cervical stenosis, foraminal 
 
            encroachment or disc rupture.  An EMG showed nerve root 
 
            irritation on the right at the C5-6 level.  Dr. Koontz did 
 
            not believe that claimant's condition could appropriately be 
 
            treated surgically.
 
            
 
                 On May 22, 1989, claimant first reported pain in his 
 
            left shoulder and arm (exhibit 3; exhibit 40).
 
            
 
                 In July 1989, claimant experienced sharp, stabbing pain 
 
            in the mid-thoracic area after he bent over to set down a 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            dish of dog food.  David Berg, D.O., claimant's treating 
 
            physician, characterized the dog dish incident as a new 
 
            injury in that it happened at home and claimant never 
 
            complained of thoracic back pain prior to that incident.
 
            
 
                 On August 18, 1989, claimant could not straighten up 
 
            while attempting to get out of a car.  He was experiencing 
 
            difficulty with straightening up when apparently Dr. Berg 
 
            saw him on August 22, 1989.
 
            
 
                 Dr. Berg opined that claimant's current problems stem 
 
            from the degenerative condition of his neck and upper back 
 
            and that he has neither continuing problems or symptoms nor 
 
            permanent restrictions or impairment as a result of his 
 
            April 12, 1989 incident.  Dr. Berg stated that needed work 
 
            restrictions were due to the degenerative nature of his 
 
            cervical and thoracic spine and that such restrictions would 
 
            be related to what he would tolerate with claimant having 
 
            good days and bad days.  Dr. Berg reported that the 
 
            degenerative changes and fusion found on x-ray on April 17, 
 
            1989 could not possibly have happened in the five days since 
 
            claimant's April 12, 1989 work incident.  Dr. Berg later 
 
            opined claimant had a ten percent impairment to the body as 
 
            a whole as a result of severe degenerative disc disease 
 
            without herniation and that one-half of that impairment was 
 
            due to the April 12, 1989 incident.  Dr. Berg could not 
 
            relate claimant's left side complaints on May 22, 1989 to 
 
            the April 12, 1989 work incident (exhibit 40).
 
            
 
                 On July 12, 1989, Dr. Berg prescribed osteopathic 
 
            therapy for claimant's back and shoulder pain.  Between that 
 
            date and August 2, 1989, claimant received manipulative 
 
            treatment at the University of Osteopathic Medicine with 
 
            David R. Boesler, D.O.  Claimant apparently saw Dr. Boesler 
 
            on 15 separate occasions for manipulative treatment.
 
            
 
                 Peter D. Wirtz, M.D., an orthopedist, initially saw 
 
            claimant on December 27, 1989.  He opined that claimant 
 
            suffered a ligamentous strain to his neck in his April 12, 
 
            1989 injury, which strain had resolved.  He reported that 
 
            the injury had not left claimant with a change in his 
 
            cervical disc condition and indicated that degenerative 
 
            changes in claimant's cervical spine were not in themselves 
 
            limiting to claimant's physical ability to use his upper 
 
            extremities or back in gainful employment.
 
            
 
                 On September 28, 1990, Dr. Wirtz reported that 
 
            ligamentous strains and related aggravation of preexisting 
 
            problems generally resolve over a period of treatment.  He 
 
            stated that repeated symptoms relate to repeated activities 
 
            causing such symptoms.
 
            
 
                 Dr. Wirtz believes that claimant has a five percent 
 
            impairment of the body as a whole based on the fact that 
 
            claimant has a degenerative disc in his cervical spine 
 
            without neurological pressure (exhibit 39).  He also stated 
 
            that, of claimant's present condition, only ten percent 
 
            would relate to the April 12, 1989 incident (exhibit 39).
 
            
 
                 On September 24, 1990, James L. Blessman, M.D., of the 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            Mercy Iowa Occupational Medicine Clinic, opined that 
 
            claimant had a temporary aggravation of quite severe 
 
            preexisting arthritis of the spine in his April 12, 1989 
 
            injury and that claimant had no permanent impairment as a 
 
            result of the injury.
 
            
 
                 Martin S. Rosenfeld, D.O., evaluated claimant 
 
            apparently on January 7, 1991.  Dr. Rosenfeld opined that, 
 
            under the Orthopaedic Academy Guidelines to Physical 
 
            Impairment, claimant had a 20 percent permanent physical 
 
            impairment to the body as a whole as a result of the April 
 
            12, 1989 injury with preexisting factors taken into account 
 
            (exhibit 30).
 
            
 
                 Robert A. Hayne, M.D., saw claimant for examination on 
 
            July 7, 1975, July 29, 1975 and July 12, 1977.  At the time 
 
            of those examinations, claimant presented complaints of pain 
 
            over the top of the shoulders extending into the shoulder 
 
            plain area.  He at times experienced pain in the right upper 
 
            extremity (exhibit 33).  Dr. Hayne saw claimant for 
 
            examination on September 24, 1973.  Claimant gave a history 
 
            of injuring his neck and shoulder regions in an incident in 
 
            1966 where his shoulders were suddenly thrown forward and 
 
            upward in an accident while loading a case of hides on a 
 
            scale.  Symptoms persisted for approximately two weeks.  In 
 
            1968, claimant pulled excessively on a carcass and 
 
            experienced recurrent pain in the shoulders and in the right 
 
            shoulder blade region.  Claimant was off work for 14 weeks 
 
            subsequent to that incident.  During that time, he 
 
            experienced pain in the right upper extremity with 
 
            paresthesia of the fingers of the right hand.  In 1970, 
 
            claimant suddenly twisted his neck region at work and 
 
            experienced recurrent pain in the right scapular region.  He 
 
            was off work for five weeks subsequent to that incident 
 
            (exhibit 33).
 
            
 
                 X-rays of the cervical spine of September 24, 1973 
 
            showed the 5th and 6th cervical interspaces to be narrowed 
 
            with rather advanced degenerative arthritis changes.  
 
            Hypertrophic spurs were present at those levels, which spurs 
 
            encroached upon the right intervertebral foramina at the 
 
            interspace between the 5th and 6th cervical segments.  Mild 
 
            wedging of the 6th cervical segment apparently degenerative 
 
            was also found.  Dr. Hayne, in a letter of October 2, 1973, 
 
            diagnosed claimant's condition then as intervertebral disc 
 
            degeneration at the 5th and 6th cervical interspaces with 
 
            encroachment on the 6th cervical nerve root on the right 
 
            side at the level of the intervertebral foramina at the 5th 
 
            cervical interspace on the right side.  Prognosis was 
 
            guarded.  Dr. Hayne opined that claimant's symptoms appeared 
 
            to be directly related to the accidents he described as 
 
            having occurred dating back to 1966 (exhibit 33).
 
            
 
                 The opinions of Doctors Berg, Blessman and Wirtz that 
 
            claimant's current problems relate to his preexisting 
 
            degenerative condition and do not relate to his April 12, 
 
            1989 work incident which has resolved are accepted as more 
 
            consistent with the objective findings and more consistent 
 
            with claimant's overall medical history as detailed in Dr. 
 
            Hayne's reports.  Dr. Rosenfeld's causation testimony is 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            rejected as inconsistent with the record presented.
 
            
 
                 Claimant had lumbar back surgery in the mid-1960's.  
 
            Claimant has had cataract surgery and has had surgery for a 
 
            detached retina.  Claimant has tinnitus which interferes 
 
            with his ability to discriminate speech.  Claimant does not 
 
            believe that he could now do the work he did at Swift given 
 
            his problems with his back, his neck and his shoulder 
 
            blades.  Claimant performs household duties for his family, 
 
            which consists of himself, his wife, two daughters and 
 
            apparently three grandchildren.  He vacuums, cooks, and 
 
            makes beds.  He also does laundry.  His daughters carry 
 
            laundry to and from the basement for him, however.
 
            
 
                 Claimant made no contact with Monfort while off work.  
 
            Monfort terminated claimant on May 8, 1990 after making a 
 
            decision that claimant voluntarily quit by abandonment by 
 
            not returning to work within two months of his release for 
 
            work.
 
            
 
                 When injured, claimant earned $6.85 per hour and had 
 
            fringe benefits including life insurance, sick and accident 
 
            insurance, dental insurance, paid vacations, raises on a 
 
            six-month basis, and a discount on any meat purchased.  An 
 
            employee at claimant's work status today would earn $7.35 
 
            per hour at Swift/Monfort.  Regular attendance is required 
 
            for all Swift jobs.
 
            
 
                 Leona E. Martin, M.S., a rehabilitation consultant, 
 
            opined that claimant is not able to be employed due to pain 
 
            which distracts his attention and interrupts his activities.  
 
            She believed that the activities in which claimant engages 
 
            to tolerate his constant pain, that is, resting, use of hot 
 
            packs, and pacing the floor, are not permissible in 
 
            competitive employment (exhibit 32).
 
            
 
                                conclusions of law
 
            
 
                 Initially, claimant contends that a causal relationship 
 
            exists between claimant's injury and his claimed permanent 
 
            disability.
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury of April 12, 
 
            1989 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 
 
            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 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            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).
 
            
 
                 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).
 
            
 
                 Claimant has not established the requisite causal 
 
            connection between his work injury and claimed permanent 
 
            disability.  The greater weight of medical evidence supports 
 
            the conclusion that, at best, claimant sustained a temporary 
 
            aggravation of his preexisting condition in his April 12, 
 
            1989 work incident.  His continuing problems and 
 
            reaggravations have their roots in his long-term problems 
 
            initially documented by Dr. Hayne in 1973.  With the 
 
            exception of Dr. Rosenfeld, none of claimant's physicians 
 
            directly relate his current condition to the work incident.  
 
            Dr. Rosenfeld was an examining physician only and his report 
 
            does not document that he had access to all of claimant's 
 
            medical records, including the earlier records of Dr. Hayne.  
 
            Likewise, while Doctors Berg and Wirtz gave opinions as to 
 
            impairment which would appear to infer some relationship 
 
            between the April 12, 1989 work incident and claimant's 
 
            current condition, those ratings are given little weight as 
 
            to the causation issue in that in each case they are 
 
            inconsistent with the overall opinion testimony of the 
 
            physicians as regards causal relationship between the April 
 
            12, 1989 work incident and claimant's continuing problems.
 
            
 
                 Therefore, it is concluded that claimant has not 
 
            established a causal relationship between his April 12, 1989 
 
            work injury and his claimed permanent disability.
 
            
 
                 As claimant has not established a causal relationship 
 
            between the work injury and permanent disability, no 
 
            determination as to the extent of any such disability need 
 
            be made and it need not be determined whether claimant would 
 
            be an odd-lot worker under the Guyton doctrine.
 
            
 
                 We address the section 85.27 question.
 
            
 
                 Claimant seeks reimbursement for mileage expenses in 
 
            the amount of $167.16.  Both section 85.27 and section 85.39 
 
            permit mileage costs for appropriate medical treatment or 
 
            evaluation, respectively.  Given such, claimant is entitled 
 
            to reimbursement for his mileage expenses as outlined.  We 
 
            note that claimant apparently saw Dr. Rosenfeld for 
 
            evaluation and not for treatment.  However, defendants have 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            not objected on that basis and in the absence of any 
 
            objection on the grounds that Dr. Rosenfeld's evaluation of 
 
            claimant is not appropriately reimbursable under section 
 
            85.39, unnumbered paragraph 2, mileage expenses for that 
 
            evaluation are ordered paid.  Similarly, the undersigned 
 
            does not find express references in the record as regards 
 
            treatment by Stephen Eckstat, D.O., and Ronnie Hawkins, M.D.  
 
            Defendants have not objected as regards either the causal 
 
            relationship or the authorization of either physician.  
 
            Therefore, medical mileage related to treatment by such 
 
            physicians is ordered paid.
 
            
 
                 Claimant also seeks payment of costs with the 
 
            University of Osteopathic Medicine and Health Sciences in 
 
            the amount of $592.00.  Such costs relate to claimant's 
 
            manipulative therapy with David R. Boesler, D.O.  Defendants 
 
            apparently object to payment of the costs on the ground that 
 
            the costs were not authorized.  We note that section 85.27 
 
            permits the employer to choose claimant's care where the 
 
            employer has accepted liability for claimant's injury.  We 
 
            find defendants' objection to payment of the costs ill- 
 
            founded on two grounds, however.
 
            
 
                 Initially, the record indicates that whether claimant 
 
            received an injury arising out of and in the course of his 
 
            employment remained an issue until stipulated to at time of 
 
            hearing.  Indeed, the parties did not agree to attempt to 
 
            stipulate on that matter at time of prehearing; the hearing 
 
            assignment order filed October 12, 1990 does not reflect any 
 
            agreement to attempt to stipulate.  Hence, defendants cannot 
 
            argue they had a right to control claimant's medical care 
 
            during a time when they denied liability for his injury.
 
            
 
                 Furthermore, assuming arguendo that defendants did have 
 
            some right to control claimant's care, the record clearly 
 
            establishes that Dr. Berg, who was claimant's treating 
 
            physician, apparently retained by the employer, recommended 
 
            osteopathic manipulation to claimant and referred him to a 
 
            physician at the University of Osteopathic Medicine and 
 
            Health Sciences for manipulative therapy.  When such therapy 
 
            was not available with the originally-designated physician 
 
            at the University, the University set claimant up for 
 
            treatment with Dr. Boesler.  Under the facts presented, 
 
            neither the University nor claimant can be said to have 
 
            acted unreasonably and outside the referral of Dr. Berg.  
 
            For that reason also, defendants are appropriately liable 
 
            for treatment of claimant at the University.
 
            
 
                           
 
            
 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            order
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 Defendants pay claimant medical mileage expenses 
 
            equalling seven hundred ninety-six (796) miles at a rate of 
 
            twenty-one cents ($.21) per mile in a total amount of one 
 
            hundred sixty-seven and 16/100 dollars ($167.16).
 
            
 
                 Defendants pay claimant medical costs with the 
 
            University of Osteopathic Medicine and Health Sciences in 
 
            the amount of five hundred ninety-two and 00/100 dollars 
 
            ($592.00).
 
            
 
                 Claimant take nothing further by way of weekly benefit 
 
            payments from this proceeding.
 
            
 
                 Claimant and defendants share equally costs of this 
 
            action pursuant to rule 343 IAC 4.33.
 
            
 
                 Defendants file claim activity reports as required by 
 
            the agency pursuant to rule 343 IAC 3.1.
 
            
 
                 Signed and filed this ______ day of ____________, 1991.
 
            
 
                 
 
            
 
                 
 
                 
 
                                          ______________________________
 
                                          HELENJEAN WALLESER
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Robert W. Pratt
 
            Attorney at Law
 
            6959 University Avenue
 
            Des Moines, Iowa  50311
 
            
 
            Mr. Stephen W. Spencer
 
            Mr. Timothy W. Wegman
 
            Attorneys at Law
 
            Suite 300, Fleming Building
 
            P.O. Box 9130
 
            Des Moines, Iowa  50306-9130
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                           1108.50; 2500; 2700
 
                           Filed March 28, 1991
 
                           HELENJEAN WALLESER
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            MICHAEL M. MORENO,            :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :         File No. 917096
 
            SIPCO,                        :
 
                                          :      A R B I T R A T I O N
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            CITY INSURANCE COMPANY,       :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
            1108.50
 
            No causation found between claimant's work injury and his 
 
            permanent disability where medical evidence demonstrated the 
 
            permanent condition related to longstanding degenerative 
 
            problems.
 
            
 
            
 
            2500; 2700
 
            Defendants are liable for costs of osteopathic manipulation 
 
            rendered claimant after referral from treating physician.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
            _____
 
                                            :
 
            CHERYL K. GARDNER,              :
 
                                            :
 
                 Claimant,                  :       File No. 917134
 
                                            :
 
            vs.                             :          A P P E A L
 
                                            :
 
            SECOND INJURY FUND,             :        D E C I S I O N
 
                                            :
 
                 Defendant.                 :
 
            ____________________________________________________________
 
            _____
 
            The record, including the transcript of the hearing before 
 
            the deputy and all exhibits admitted into the record, has 
 
            been reviewed de novo on appeal.
 
            issues
 
            Because neither party filed a brief on appeal this matter 
 
            will be considered generally without any specified errors.  
 
            The issues considered by the deputy were:  1)  whether 
 
            claimant is entitled to benefits pursuant to the Second 
 
            Injury Fund Act.
 
            findings of fact
 
            The findings of fact contained in the proposed agency 
 
            decision filed April 30, 1992 are adopted as final agency 
 
            action.
 
            conclusions of law
 
            The conclusions of law contained in the proposed agency 
 
            decision filed April 30, 1992 are adopted as final agency 
 
            action.
 
            WHEREFORE, the decision of the deputy is affirmed.
 
            order
 
            THEREFORE, it is ordered:
 
            
 
                 That defendant is liable for seventy-seven point four 
 
            (77.4) weeks of Fund benefits commencing on July 13, 1991, 
 
            the day after the settlement agreement was filed and at the 
 
            stipulated rate of two hundred thirty-seven and 70/l00 
 
            ($237.70) per week.
 
            
 
                 That accrued benefits are to be paid in a lump sum 
 
            together with statutory interest at the rate of ten percent 
 
            (10%) per year pursuant to section 85.30, Iowa Code, as 
 
            amended, and commencing on the date of this decision.
 
            That defendant, Second Injury Fund, shall pay the costs of 
 
            this matter including the transcription of the hearing.  
 
            
 
                 That defendant shall file a claim activity report as 
 
            requested by this division and pursuant to rule 343 IAC 3.1.
 
            Signed and filed this ____ day of December, 1992.
 
            
 
            
 
            
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
                      ________________________________
 
                               BYRON K. ORTON
 
                          INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. James E. Shipman
 
            Attorney at Law
 
            115 3rd St. SE, Ste 1200
 
            Cedar Rapids, Iowa 52401
 
            
 
            Ms. Joanne Moeller
 
            Assistant Attorney General
 
            Tort Claims Division
 
            Hoover State Office Bldg.
 
            Des Moines, Iowa 50319
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                          9998
 
                                          Filed December 22, 1992
 
                                          BYRON K. ORTON
 
                                          MAM
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
            _____
 
                                            :
 
            CHERYL K. GARDNER,              :
 
                                            :
 
                 Claimant,                  :       File No. 917134
 
                                            :
 
            vs.                             :          A P P E A L
 
                                            :
 
            SECOND INJURY FUND,             :        D E C I S I O N
 
                                            :
 
                 Defendant.                 :
 
            ____________________________________________________________
 
            _____
 
            
 
            
 
            9998
 
            
 
                 Summary affirmance of deputy's decision filed April 30, 
 
            1992.
 
            
 
            
 
 
         
 
         Page   1
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
                     before the iowa industrial commissioner
 
         ____________________________________________________________
 
                                       :
 
         CHERYL K. GARDNER,            :
 
                                       :        File No. 917134
 
              Claimant,                :
 
                                       :     A R B I T R A T I O N
 
         vs.                           :
 
                                       :        D E C I S I O N
 
         SECOND INJURY FUND,           :
 
                                       :
 
              Defendant.               :
 
                                       :
 
         ___________________________________________________________
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              This is a proceeding in arbitration upon the petition of 
 
         claimant, Cheryl K. Gardner, against the Second Injury Fund of 
 
         Iowa.  Claimant had filed a proceeding in arbitration against her 
 
         former employer.  However, claimant and the Iowa Insurance 
 
         Commissioner entered into an agreement for settlement which was 
 
         approved by then Deputy Industrial Commissioner, Deborah Dubik, 
 
         on July 12, 1991.  The case involving the Second Injury Fund was 
 
         heard on April 6, 1992, at the Linn County courthouse.  The 
 
         record consists of the testimony of claimant.  The record also 
 
         consists of the testimony of Carol Myers, manager of the Casey's 
 
         Store in Mechanicsville, Iowa.  Additionally, the record consists 
 
         of joint exhibits 1, 2 and 3 and defendant's exhibit A.
 
         
 
                                      issues
 
         
 
              The issues to be determined are:  1)  whether claimant is 
 
         entitled to benefits pursuant to the Second Injury Fund Act.
 
         
 
                                 findings of fact
 
         
 
              The deputy, having heard the testimony and considered all 
 
         the evidence, finds: 
 
         
 
              Claimant is 51 years old.  She is single and is the owner of 
 
         the farm where she resides.  Claimant rents the farm ground to 
 
         someone who works the land.
 
         
 
              Claimant is a 1959 graduate from high school.  Subsequent to 
 
         her graduation, claimant worked as an assembly line worker.  She 
 
         commenced her employment with Farmstead Foods in 1964.  She con
 
         tinued her employment until March 1, 1990.  On that date, 
 
         Farmstead Foods ceased doing business.  During her employment 
 
         period, claimant held a variety of positions.  For approximately 
 
         one-half of her tenure, claimant trimmed pig cheeks.  She also 
 
         operated the snout wheel.  Both jobs involved the rapid use of 
 
         her hands and arms.
 
         
 
              Defendant acknowledges that claimant sustained bilateral 
 

 
         
 
         Page   2
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         carpal tunnel syndrome on March 15, 1989, and that the injury 
 
         arose out of and in the course of her employment.  Additionally, 
 
         the Fund stipulated that the correct impairment rating equates to 
 
         two percent of each upper extremity.  (Joint Exhibit 1, page 8)
 
         
 
              On March 26, 1985, claimant sustained an injury to her right 
 
         ankle.  John Koch, M.D., opined that claimant's right knee was 
 
         also affected by the ankle injury.  He opined that claimant sus
 
         tained a 33 percent impairment to the right lower extremity.  
 
         Defendant stipulates to this impairment rating.
 
         
 
              Also on July 21, 1987, claimant sustained an injury to her 
 
         left eye.  According to Winthrop S. Risk's, M.D., report of June 
 
         7, 1989, claimant has sustained a 100 percent loss to the left 
 
         eye.
 
         
 
              At the time of the hearing, claimant had been working 
 
         part-time at the Casey's store in Mechanicsville, Iowa.  During 
 
         November of 1990, claimant commenced her employment with the 
 
         store.  She was hired as a pizza maker.  She has performed all 
 
         duties with the exception of cashiering.  Claimant testified that 
 
         her eyesight prevented her from seeing the cash register well 
 
         enough.  Claimant testified she must use a magnifying glass to 
 
         even read a newspaper.  Claimant did not believe she could check 
 
         merchandise because of her eyesight.  She had been requested to 
 
         train on the cash register, but claimant refused.
 
         
 
              Claimant's supervisor, Carol Myers, testified that 
 
         claimant's starting wage was $4.35 per hour and that claimant 
 
         worked 12-13 hours per week.  Ms. Myers also testified that if 
 
         claimant would check items, she could work more hours every week.
 
         
 
              Claimant has testified she is capable of driving to and from 
 
         the Casey's store.  She has also testified the drive is 2-3 
 
         miles.
 
         
 
              According to claimant's testimony, she has applied for sev
 
         eral positions subsequent to her employment at Casey's.  One of 
 
         the positions involves maintenance work at Cornell College.  
 
         Claimant has not contacted the Commission for the Blind for any 
 
         training or assistance.
 
         
 
                       
 
         
 
         
 
         Page   3
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         conclusions of law
 
         
 
              Claimant alleges she is entitled to benefits from the Second 
 
         Injury Fund.
 
         
 
              Section 85.64 governs Second Injury Fund liability.  Before 
 
         liability of the Fund is triggered, three requirements must be 
 
         met.  First, the employee must have lost or lost the use of a 
 
         hand, arm, foot, leg or eye.  Second, the employee must sustain a 
 
         loss or loss of use of another specified member or organ through 
 
         a compensable injury.  Third, permanent disability must exist as 
 
         to both the initial injury and the second injury.  
 
         
 
              The Second Injury Fund Act exists to encourage the hiring of 
 
         handicapped persons by making a current employer responsible only 
 
         for the amount of disability related to an injury occurring while 
 
         that employer employed the handicapped individual as if the indi
 
         vidual had had no preexisting disability.  See Anderson v. Second 
 
         Injury Fund, 262 N.W.2d 789 (Iowa 1978); Lawyer and Higgs, Iowa 
 
         Workers' Compensation-Law and Practice, section 17-1.
 
         
 
              The Fund is responsible for the difference between total 
 
         disability and disability for which the employer at the time of 
 
         the second injury is responsible.  Section 85.64.  Second Injury 
 
         Fund v. Neelans, 436 N.W.2d 335 (Iowa 1989); Second Injury Fund 
 
         v. Mich. Coal Co., 274 N.W.2d 300 (Iowa 1970).
 
         
 
              Interest accrues on benefits the Fund pays commencing on the 
 
         date of the decision.  Second Injury Fund of Iowa v. Braden, 459 
 
         N.W.2d 467 (Iowa 1990).
 
         
 
              A deputy is entitled to determine the nature of claimant's 
 
         injury and entitlement to compensation from the evidence pre
 
         sented, regardless of particular theories pled.  Shank v. Mercy 
 
         Hospital Medical Center, File No. 719627 (Appeal Decision Filed 
 
         August 28, 1989).
 
         
 
              It is the determination of the undersigned that claimant has 
 
         a 60 percent industrial disability.  Claimant now only works 12 
 
         hours per week at minimum wage.  Prior to the closing of the 
 
         plant she had worked 40 hours per week at $9.84 per hour.  
 
         Claimant has lost the use of one eye.  She cannot perform a job 
 
         where there is any reading involved.  Claimant is motivated but 
 
         she lacks transferable skills and training.  Claimant's age is a 
 
         negative factor.
 
         
 
              In the instant case, claimant has sustained three separate 
 
         injuries.  The first injury is to the right ankle and knee.  The 
 
         second injury is a total loss of the left eye.  The third injury 
 
         is a bilateral carpal tunnel injury.  The injuries are all perma
 
         nent in nature.  Section 85.64 is applicable.  The following for
 
         mula is used to determine the Second Injury Fund's liability:
 
         
 
                300 weeks - Industrial Disability from all impairments
 
              -(200 x .33 = 72.6) weeks preexisting disabilities
 
              -(140 x .100 = 140) weeks
 
              -  10 weeks amount of disability for which                       
 

 
         
 
         Page   4
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         _____ defendant employer was responsible
 
               77.4 amount of weeks for which the Fund is responsible.
 
         
 
                The formula as aforementioned is computed as:
 
         
 
               300    weeks
 
              -140    weeks
 
              - 72.6  weeks
 
              - 10    weeks
 
                77.4  amount of weeks for which the Fund is responsible.
 
         
 
              The Fund is properly brought into this suit.
 
         
 
                                      order
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              Defendant is liable for seventy-seven point four (77.4) 
 
         weeks of Fund benefits commencing on July 13, 1991, the day after 
 
         the settlement agreement was filed and at the stipulated rate of 
 
         two hundred thirty-seven and 70/l00 ($237.70) per week.
 
         
 
              Accrued benefits are to be paid in a lump sum together with 
 
         statutory interest at the rate of ten percent (10%) per year pur
 
         suant to section 85.30, Iowa Code, as amended, and commencing on 
 
         the date of the filing of this action.
 
         
 
              Costs are taxed to defendant.
 
         
 
              Defendant shall file a claim activity report as requested by 
 
         this division and pursuant to rule 343 IAC 3.1.
 
         
 
         
 
         
 
              Signed and filed this ____ day of April, 1992.
 
         
 
         
 
         
 
         
 
                                       ______________________________               
 
         MICHELLE A. McGOVERN
 
                                       DEPUTY INDUSTRIAL COMMISSIONER
 

 
         
 
         Page   5
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         Copies To:
 
         
 
         Mr. James E. Shipman
 
         Attorney at Law
 
         1200 MNB Building
 
         Cedar Rapids, Iowa  52401
 
         
 
         Ms. Joanne Moeller
 
         Assistant Attorney General
 
         Tort Claims Division
 
         Hoover State Office Building
 
         Des Moines, Iowa  50319
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
            5-3200; 3202
 
            Filed April 30, 1992
 
            MICHELLE A. McGOVERN
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            CHERYL K. GARDNER,            :
 
                                          :        File No. 917134
 
                 Claimant,                :
 
                                          :     A R B I T R A T I O N
 
            vs.                           :
 
                                          :        D E C I S I O N
 
            SECOND INJURY FUND,           :
 
                                          :
 
                 Defendant.               :
 
                                          :
 
            ___________________________________________________________
 
            
 
            
 
            5-3200; 3202
 
            Claimant was entitled to Second Injury Fund benefits.
 
            
 
 
 
 
 
 
 
 
 
 
 
 
 
 
          BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
____________________________________________________________
 
          
 
DOROTHY HENSON,    
 
          
 
     Claimant, 
 
          
 
vs.       
 
                                      File Nos. 968594
 
CHAMBERLAIN MANUFACTURING                       917346
 
CORPORATION,   
 
                                     A R B I T R A T I O N
 
     Employer, 
 
                                       D E C I S I O N
 
and       
 
          
 
NATIONAL UNION FIRE INS.,    
 
          
 
     Insurance Carrier,  
 
     Defendants.    
 
___________________________________________________________
 
 
 
                     STATEMENT OF THE CASE
 
 
 
These are proceedings in arbitration upon the petition of claimant, 
 
Dorothy Henson, against her employer, Chamberlain Manufacturing 
 
Corporation, and its insurance carrier, National Union Fire Insurance 
 
Company, defendants.  The cases were heard on September 15, 1994 at the 
 
Pinecrest Building in Waterloo, Iowa.  The record consists of the 
 
testimony of claimant.  The record also consists of the testimonies of 
 
Charles Weidman, Max Hool, Christine K. Fidler and Gary Scoggin.  
 
 
 
Additionally, the record consists of certain exhibits.  They are:  
 
joint exhibits 1-17 with the exception of 1-2, 1-6 and 1-7; defendants' 
 
exhibits A-C with the exception of C-5, C-18 and C-21B, and D-1, D-2, 
 
D-4, E, F, G, H, and I.  The deputy industrial commissioner agreed, 
 
upon request, to take official notice of the administrative file of the 
 
Division of Industrial Services.
 
 
 
After reviewing exhibit 20, the deputy industrial commissioner noted 
 
that the pages in the deposition were not placed in numerical sequence. 
 
 
 
 The lack of organization of the deposition made it very difficult to 
 
read.  The attorneys are advised to comply with paragraph 9 of the 
 
hearing assignment order.  Failure to comply may result in sanctions.
 
 
 
                               ISSUES
 
 
 
The issues to be determined are:
 
 
 
With respect to file number 917346 (the parties have stipulated that 
 
claimant sustained a work-related injury on May 16, 1989):  1) whether 
 
there is a causal relationship between the work injury and any 
 
permanent partial disability; 2) whether claimant is entitled to any 
 
temporary or permanent partial disability benefits; and, 3) whether 
 
claimant is entitled to penalty benefits pursuant to section 86.13 of 
 
the Iowa Code.
 
 
 
With respect to file number 968594 (alleged injury date of December 10, 
 
1990):  1) whether claimant sustained a work-related injury which arose 
 
out of and in the course of her employment;  2) whether there is a 
 
causal relationship between the work  injury and any temporary or 
 
permanent partial disability; and,  3) whether claimant is entitled to 
 
any temporary or permanent partial disability benefits.
 
 
 
                            FINDINGS OF FACT
 
 
 
The deputy, having heard the testimony and considered all of the 
 

 
 
 
 
 
 
 
 
 
evidence, finds:
 
 
 
Claimant is a credible witness.  The undersigned deputy industrial 
 
commissioner has had ample time to observe claimant during the course 
 
of the proceedings.
 
 
 
Claimant is a 56-year-old single woman.  She obtained her GED in 1966.  
 
In 1978 claimant attended Hawkeye Technical College where she studied 
 
machine operations.  From 1984-1986, claimant attended Northeast Iowa 
 
Community College where she obtained an Associate of Arts Degree in 
 
clerical skills.  Then in 1992, claimant returned to Hawkeye Technical 
 
College.  There she studied data entry operations.
 
 
 
Claimant has held numerous positions throughout the course of her 
 
employment.  She has worked in the bakery and restaurant business; she 
 
has worked as a bartender; and, she has been the part owner of a 
 
lounge.  In 1978, claimant commenced employment with John Deere in 
 
Waterloo.  
 
 
 
There is no dispute; claimant had experienced previous injuries to her 
 
low back.  The record contains evidence of back problems which date 
 
back to 1980.  After each prior occurrence, claimant returned to her 
 
normal routine and activities.
 
 
 
Claimant commenced her employment with the present defendant-employer 
 
on February 13, 1987.  The parties have stipulated to the various dates 
 
of employment with this employer.  Claimant's employment history is as 
 
follows:
 
        
 
        2-13-87   date of hire
 
         5-8-87   laid off work
 
       10-19-87   recalled to work
 
        2-10-89   laid off work
 
         5-3-89   recalled to work
 
        9-14-89   claimant returned to work per                                   
 
                    physician's   release
 
        9-15-89   laid off
 
        8-26-90   recalled to work
 
        8-16-91   final lay off from work
 
 
 
Initially, claimant was hired for the "blue room" where she was 
 
assigned the task of running presses.  Her duties included pushing 
 
rubber through the various presses and removing parts from the 
 
machines.  Claimant was required to lift weights in excesss of 20 
 
pounds.  Later claimant was transferred to the "Chucker Department."  
 
Her job assignments included securing various parts for the equipment; 
 
checking machines; and, pushing large tubs containing parts.  Claimant 
 
worked on an incentive plan.
 
 
 
On May 16, 1989, claimant sustained an injury to her low back and left 
 
leg.  At the time of the work injury, claimant was pushing a box across 
 
a conveyor line.  She was standing on a platform.  However, she twisted 
 
improperly and fell from the platform.  Immediately after the incident 
 
occurred, claimant was escorted by a foreman from the work station and 
 
transported to the emergency room of the local hospital.
 
 
 
Arnold E. Delbridge, M.D., treated claimant from May 24, 1989 through 
 
September 14, 1989. He released claimant to return to work on that date 
 
(Exhibit B-41, B-42).  At a later point in time, Dr. Delbridge rated 
 
claimant as having a five percent permanent impairment to the body as a 
 
whole (Ex. 7-70).  However, the rating was made after claimant had 
 
sustained a non-work-related injury to her neck.  
 
 
 
The neck injury was to claimant's cervical spine and was the direct 
 
result of a motor vehicle accident.  The medical evidence does not 
 
support a finding that any cervical spine condition is related to 
 
claimant's employment with the present defendant-employer.  
 
 
 
John Milner-Brage, M.D., performed nerve conduction studies relative to 
 
claimant's low back injury.  He noted in his report of May 31, 1989:
 
ELECTRODIAGNOSTIC SUMMARY:  Abnormal F-wave response on the left with a 
 
decreased response rate to 50%.  The EMG revealed increased polyphasics 
 
at the tibialis anterior and flexor hallucis muscles.
 
 
 
ELECTRODIAGNOSTIC IMPRESSION:  Mild chronic left L5 radiculopathy.
 
 
 
(Ex. 11-113)
 
 
 
The evidence shows that defendants paid claimant weekly benefits for 
 

 
 
 
 
 
 
 
 
 
the low back injury from May 17, 1989 through July 2, 1989, and from 
 
July 10, 1989 through September 13, 1989.  The total number of weeks 
 
paid is 15 weeks (Ex. H-133).
 
 
 
Claimant testified that she sustained a work-related injury to her arms 
 
and that the injury occurred on December 10, 1990.  Records kept in the 
 
regular course of business indicate the following, relative to work 
 
injuries in December of 1990:
 
 
 
A. 12-6-90.  "Contusion left index finger.  Went to Dr. Tarr.  
 
Subungual hematoma.  Evacuated.  No lost time."
 
(Ex. 20-12)
 
 
 
A. 12-11-90.  "W/C" stands for work comp.  She went to occupational 
 
health.  "Right lateral epicondylitis, left ulnar nerve impingement.  
 
Lost time."
 
(Ex. 20-13)
 
 
 
The administrative file at the Division of Industrial Services indicate 
 
that the following temporary total disability/healing period benefits 
 
were paid in file number 968594:
 
             
 
             12-11-90 through 12-21-90
 
               1-2-91 through 2-15-91
 
              3-14-91 through 3-28-91
 
              3-30-91 through 5-26-91
 
              5-28-91 through 7-2-91
 
               7-5-91 through 8-8-91
 
 
 
The total number of weekly benefits paid is 28.714 weeks.
 
 
 
In January of 1991, Dr. Milner-Brage also conducted nerve studies of 
 
the left ulnar nerve.  The physician authored a report following the 
 
studies.  Dr. Milner-Brage opined:
 
 
 
Mild left ulnar nerve compression at the Guyon canal (see diagram).
 
   
 
   CLINICAL DISCUSSION:  This ulnar nerve compression represents a 50% 
 
conduction block of motor and sensory fibers.  There is no evidence of 
 
axon loss.  The site of compression is occurring at the distal wrist 
 
crease or the entrance to the Guyon canal.  This injury is consistent 
 
with the activities the patient was carrying out on her job at 
 
Chamberlain.  The patient should avoid all pressure over the ulnar side 
 
of the hand.  She frequently pushes herself to the standing position 
 
using that side of her hand.  She should use a closed fist in the 
 
future.  Complete recovery should be expected and, in fact, the patient 
 
has noted improvement.  She may experience increased paresthesias as 
 
the nerve block resolves.  The recovery period may require an 
 
additional 6 to 8 weeks.
 
(Ex. 11-116)
 
 
 
Claimant sought medical treatment for her upper extremities at Allen 
 
Memorial Hospital.  Kenneth McMains, M.D., diagnosed claimant as 
 
having:
 
         1.  R Lateral epicondylitis
 
         2.  L Ulnar nerve impingement syndrome
 
(Ex. 2-11)
 
 
 
Dr. McMains treated claimant conservatively.  Claimant wore an elbow 
 
splint.  The physician prescribed physical therapy and medications.  He 
 
also began to treat claimant for low back pain and leg pain.  
 
 
 
As of August 12, 1991, Dr. McMains opined:
 
 
 
1. I believe Ms. Henson's back injury is related to her employment 
 
since she has been doing this type of work for five years, and part of 
 
that she worked at John Deere as maintenance.
 
 
 
2. Yes, patient was released to full activity on August 9, 1991.
 
 
 
3. Recommended treatment is using her non-steroidal and her Tagamet 
 
[sic] on a PRN basis.  She is also to continue with her back support 
 
and flexibility exercises.
 
 
 
4. Yes, above.  I do not, at this time, feel she has any permanent work 
 
restrictions or permanency attributed to her work injury.
 
(Ex. 2-34)
 

 
 
 
 
 
 
 
 
 
In 1991 Dr. McMains referred claimant to Jitu D. Kothari, M.D.  He 
 
treated claimant for several months.  Dr. Kothari opined the following 
 
with respect to claimant's condition:
 
   
 
   Work hardening progress was reviewed.  She has really not made any 
 
progress with the work hardening program.  She continues to have back 
 
pain and left leg pain.  On the other hand, based on the present 
 
clinical findings, and her MR Scan, etc., she is not a candidate for 
 
lumbar disc surgery.  Review of her history with the patient indicates 
 
that she has this recurrent problem with back pain and left leg pain 
 
since 1989, and she has lost at least 6-7 months of work on account of 
 
her back problem.  Work hardening program has also not improved her 
 
symptoms.  As mentioned above, in my opinion, she is not a candidate 
 
for any major lumbar back surgery.  My recommendation would be that 
 
either this patient have a permanent work restriction, such as no 
 
lifting beyond 15-20 pounds and no repetitive bending, twisting and 
 
turning, if her employer is willing to work with that, or, she would 
 
benefit from Vocational Rehabilitation.  She will have further 
 
follow-up with Dr. McMains.
 
    ...
 
   Letter to Crawford & company stating that this patient has 7% 
 
permanent impairment and loss of physical function of the whole body on 
 
account of persistent low back pain and left leg pain since 1989.
 
(Ex. 9-92)
 
 
 
Claimant also received several injections for her epicondylitis. The 
 
injections were performed by Scott Marrs, D.O.  (Ex. 10-103).  In 
 
November of 1991, Dr. Maars opined that claimant should be on permanent 
 
light duty work restrictions  (Ex. 10-106).
 
 Also in 1991, claimant sought a medical opinion from Hosung Chung, 
 
M.D.  He examined claimant on November 5, 1991.  His progress note 
 
provided no specific diagnosis.  Rather, he only summarized the 
 
diagnoses of several other treating physicians.  His progress note 
 
contained no additional information relative to claimant's work injury 
 
(Ex. 5-51).
 
 
 
However, Dr. Chung did issue a report on November 5, 1991.  In his 
 
report, he opined:
 
   
 
   Standing posture is straight.  Low back movement is not 
 
significantly limited to any direction.  Romberg is absent.  Hell and 
 
tip-toe walking is well performed with both feet.  She can make a full 
 
squat, but she is not able to get up by herself from squat position.  
 
Paravertebral muscles are not spastic or tender on either side.  
 
Midline tenderness is present at the midlevel of the lumbar spine.  No 
 
tenderness on sacroiliac joint or sciatic notch on either side.  No 
 
tenderness at the coccygeal tip, either.  She has genu valgum deformity 
 
of knees.  Straight leg raising is probably positive at about 60 
 
degrees on the left side.  No Bonnet's phenomenon on either side.  Hip 
 
flexors and knee extensors are quite strong on both side [sic], and 
 
this is rather incongruent with her difficulty in getting up from squat 
 
position.  No sensory loss on either side of lower limbs.  Babinski is 
 
flexor bilaterally.  No ankle clonus on either side.
 
   
 
   In summary, her neurological examination shows bilateral 
 
paracervical muscular spasm and tenderness, equivocal root stretch 
 
signs at the left leg and no discernable neurological deficit on either 
 
side of upper or lower limbs.  She brought a single AP view of cervical 
 
spine, which was obtained at Covenant Medical Center on August 26, 
 
1991.  It shows no obvious bony abnormality.  She also brought MRI of 
 
cervical spine, which was obtained at Covenant Medical Center on 
 
September 5, 1991.  It demonstrates very minimal compromise of anterior 
 
subarachnoid space at C5-6 interspace on the left side.  there [sic] is 
 
no abnormality on the right side of the cervical canal at any level.  
 
Mrs. Henson stated that she had a MRI of lumbar spine, but the films 
 
are not available for my review.
 
   
 
   In essence, this lady has cervical muscular strain and mild root 
 
stretch signs at the left leg.  Her difficulty in getting up from squat 
 
position is somewhat bothersome, although I am not able to elicit 
 
definitive motor weakness of the proximal muscle groups of both lower 
 

 
 
 
 
 
 
 
 
 
extremities on individual muscle testing.  If not yet done, MRI of 
 
lumbar spine might be in order to rule out any remote possibility of 
 
root compression.  However, even if the MRI does demonstrate any 
 
abnormality, I do not think her condition warrants any surgical 
 
intervention at this point of time. I would recommend continuous 
 
conservative treatment.  I will send her back to your care.  I thank 
 
you for your referral.
 
(Ex. A-26, 27)
 
 
 
In 1993 claimant had an EMG which was conducted by Thomas D. Mulakkan, 
 
M.D.  The neurologist determined:
 
 
 
THE ABOVE STUDY IS ABNORMAL AND SHOWS MILD CARPAL TUNNEL SYNDROME OF 
 
THE RIGHT HAND  NO PERIPHERAL NEUROPATHY OR CERVICAL OR LUMBAR 
 
RADICULOPATHY.
 
IF THE PATIENT IS SYMPTOMATIC, A WRIST SPLINT MAY BE USEFUL.
 
(Ex. 16, p. 136)
 
 
 
Claimant returned to work in August of 1991.  She worked for only a few 
 
days.  She was laid off on August 16, 1991.  There is testimony that 
 
claimant experienced difficulties during her final week of employment.  
 
 
 
Charles Weidman, production operations manager, testified there was no 
 
light duty work available within the plant.  He described the work 
 
within the plant as hard physical labor.  He reported he had observed 
 
claimant working in the plant after her work injury in 1989.  It was 
 
his opinion that claimant had difficulties working and making her 
 
incentive pay after her first injury.
 
 
 
Claimant testified that as of the date of the hearing, she was still 
 
experiencing some physical problems as a result of her work injuries.  
 
She reported she is unable to stand for long periods of time.  She is 
 
unable to sit for very long before her left leg becomes numb.  She can 
 
walk but not for great distances.  She has a burning sensation in her 
 
left leg.  She avoids lifting but she is capable of carrying bags of 
 
groceries.  She has difficulties sleeping as her left leg becomes numb. 
 
 
 
Since her layoff from the plant in August of 1991, claimant has 
 
exhibited a strong motivation to return to work.  She enrolled and 
 
completed course work in office skills at Hawkeye Community College.  
 
She also made numerous applications for employment.  In addition, 
 
claimant worked as a temporary office worker at $5.00 per hour.
 
 
 
                       CONCLUSIONS OF LAW
 
 
 
The party who would suffer loss if an issue were not established has 
 
the burden of proving that issue by a preponderance of the evidence.  
 
Iowa R. App. P. 14(f).
 
 
 
The claimant has the burden of proving by a preponderance of the 
 
evidence that the injury is a proximate cause of the disability on 
 
which the claim is based.  A cause is proximate if it is a substantial 
 
factor in bringing about the result; it need not be the only cause.  A 
 
preponderance of the evidence exists when the causal connection is 
 
probable rather than merely possible.  Blacksmith v. All-American, 
 
Inc., 290 N.W.2d 348 (Iowa 1980); Holmes v. Bruce Motor Freight, Inc., 
 
215 N.W.2d 296 (Iowa 1974).
 
 
 
The question of causal connection is essentially within the domain of 
 
expert testimony.  The expert medical evidence must be considered with 
 
all other evidence introduced bearing on the causal connection between 
 
the injury and the disability.  The weight to be given to any expert 
 
opinion is determined by the finder of fact and may be affected by the 
 
accuracy of the facts relied upon by the expert as well as other 
 
surrounding circumstances.  The expert opinion may be accepted or 
 
rejected, in whole or in part.  Sondag v. Ferris Hardware, 220 N.W.2d 
 
903 (Iowa 1974); Anderson v. Oscar Mayer & Co., 217 N.W.2d 531 (Iowa 
 
1974); Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).
 
 
 
There is medical evidence to support a conclusion that claimant's work 
 
injury on May 16, 1989 is causally related to a permanent disability.  
 
Two well respected physicians have rated claimant as having between a 
 
five percent to seven percent functional impairment.  The opinions of 
 

 
 
 
 
 
 
 
 
 
the two physicians are credible.  Claimant has met her burden of proof. 
 
 
 
 Dr. Khotari, the treating orthopedic surgeon, issued permanent 
 
restrictions for claimant.  The permanent restrictions are listed in 
 
the findings of fact and will not be reiterated again.  The 
 
restrictions are quite severe.  Claimant has met her burden of proof.  
 
She has sustained permanent injuries to her low back as a result of her 
 
work injury on May 16, 1989.  
 
 
 
Functional impairment is an element to be considered in determining 
 
industrial disability which is the reduction of earning capacity, but 
 
consideration must also be given to the injured employee's age, 
 
education, qualifications, experience and inability to engage in 
 
employment for which the employee is fitted.  Olson v. Goodyear Serv. 
 
Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963); Barton v. Nevada Poultry, 
 
253 Iowa 285, 110 N.W.2d 660 (1961).
 
 
 
A finding of impairment to the body as a whole found by a medical 
 
evaluator does not equate to industrial disability.  Impairment and 
 
disability are not synonymous.  The degree of industrial disability can 
 
be much different than the degree of impairment because industrial 
 
disability references to loss of earning capacity and impairment 
 
references to anatomical or functional abnormality or loss.  Although 
 
loss of function is to be considered and disability can rarely be found 
 
without it, it is not so that a degree of industrial disability is 
 
proportionally related to a degree of impairment of bodily function.
 
 
 
Factors to be considered in determining industrial disability include 
 
the employee's medical condition prior to the injury, immediately after 
 
the injury, and presently; the situs of the injury, its severity and 
 
the length of the healing period; the work experience of the employee 
 
prior to the injury and after the injury and the potential for 
 
rehabilitation; the employee's qualifications intellectually, 
 
emotionally and physically; earnings prior and subsequent to the 
 
injury; age; education; motivation; functional impairment as a result 
 
of the injury; and inability because of the injury to engage in 
 
employment for which the employee is fitted.  Loss of earnings caused 
 
by a job transfer for reasons related to the injury is also relevant.  
 
 
 
Likewise, an employer's refusal to give any sort of work to an impaired 
 
employee may justify an award of disability.  McSpadden v. Big Ben Coal 
 
Co., 288 N.W.2d 181 (Iowa 1980).  These are matters which the finder of 
 
fact considers collectively in arriving at the determination of the 
 
degree of industrial disability.
 
 
 
There are no weighting guidelines that indicate how each of the factors 
 
are to be considered.  Neither does a rating of functional impairment 
 
directly correlate to a degree of industrial disability to the body as 
 
a whole.  In other words, there are no formulae which can be applied 
 
and then added up to determine the degree of industrial disability.  It 
 
therefore becomes necessary for the deputy or commissioner to draw upon 
 
prior experience as well as general and specialized knowledge to make 
 
the finding with regard to degree of industrial disability.  See 
 
Christensen v. Hagen, Inc., Vol. 1 No. 3 State of Iowa Industrial 
 
Commissioner Decisions 529 (App. March 26, 1985); Peterson v. Truck 
 
Haven Cafe, Inc., Vol. 1 No. 3 State of Iowa Industrial Commissioner 
 
Decisions 654 (App. February 28, 1985).
 
 
 
Compensation for permanent partial disability shall begin at the 
 
termination of the healing period.  Compensation shall be paid in 
 
relation to 500 weeks as the disability bears to the body as a whole.  
 
Section 85.34.
 
 
 
Since claimant's injury is to her low back, and the injury is permanent 
 
in nature, it is the determination of this deputy industrial 
 
commissioner that claimant is entitled to an  industrial disability.  
 
 
 
Claimant, as aforementioned, has permanent restrictions placed upon 
 
her.  They are severe.  She is precluded from lifting more than 15-20 
 
pounds.  She is to avoid repetitive activities.  While claimant had 
 
returned to work for various periods of time, she has had difficulties 
 
meeting her job quotas, and "from pulling her own load."  Her 
 
difficulties were observable by her co-workers.  Claimant was laid off 
 
from her job.  She has never been called to return to work.  Defendants 
 
have been unwilling to accommodate claimant.
 

 
 
 
 
 
 
 
 
 
Claimant's age is a negative factor in finding other employment.  She 
 
is 56-years-old.  It is difficult for workers in her age group to find 
 
competitive employment.  Claimant has made application for many office 
 
type positions.  She has made every effort to seek employment.  She did 
 
obtain employment at Pries Manufacturing and she admitted she 
 
voluntarily quit because the job was too strenuous for her.
 
 
 
Claimant has persisted.  She has found work as a temporary worker.  
 
However, her current wages are substantially less than what she had 
 
earned with the present defendant.  All she earns now is $5.00 to $5.50 
 
per hour.  Formerly, she earned $336.59 per week.  As a temporary 
 
worker, claimant has no fringe benefits.  When she was employed with 
 
the present defendant, she had vacation pay and holiday pay.
 
 
 
It is clear to this deputy that claimant has sustained not only a loss 
 
of actual earnings but she has also sustained a loss of earning 
 
capacity.  It is the determination of the undersigned that claimant is 
 
entitled to a 40 percent permanent partial disability.  Two hundred 
 
weeks of benefits are due to her from August 9, 1991, the date she was 
 
able to finally return to work.  Her weekly benefits are payable at the 
 
stipulated rate of $204.71 per week.
 
 
 
The next issue to address is the issue of healing period benefits.  
 
Section 85.34(1) provides that healing period benefits are payable to 
 
an injured worker who has suffered permanent partial disability until 
 
(1) the worker has returned to work; (2) the worker is medically 
 
capable of returning to substantially similar employment; or (3) the 
 
worker has achieved maximum medical recovery.  The healing period can 
 
be considered the period during which there is a reasonable expectation 
 
of improvement of the disabling condition.  See Armstrong Tire & Rubber 
 
Co. v. Kubli, 312 N.W.2d 60 (Iowa Ct. App. 1981).  Healing period 
 
benefits can be interrupted or intermittent.  Teel v. McCord, 394 
 
N.W.2d 405 (Iowa 1986).
 
 
 
Claimant is entitled to healing period benefits from the period of 
 
March 30, 1991 through August 8, 1991.  Her low back problems at that 
 
time related to her injury in 1989.  Her symptoms were the same.  She 
 
was treated over a course of several months with physical therapy and 
 
work hardening with the goal of a return to work.  Claimant was able to 
 
return to work.  She is entitled to 18.857 weeks of healing period 
 
benefits at the stipulated rate of $204.71 per week.
 
 
 
The final issue to address is the issue of penalty benefits pursuant to 
 
section 86.13 of the Iowa Code, as amended.  Section 86.13 permits an 
 
award of up to 50 percent of the amount of benefits delayed or denied 
 
if a delay in commencement or termination of benefits occurs without 
 
reasonable or probable cause or excuse.  The standard for evaluating 
 
the reasonableness of defendants' delay in commencement or termination 
 
is whether the claim is fairly debatable.  Where a claim is shown to be 
 
fairly debatable, defendants do not act unreasonably in denying 
 
payment.  See Stanley v. Wilson Foods Corp., File No. 753405 (App. 
 
August 23, 1990); Seydel v. Univ. of Iowa Physical Plant, File No. 
 
818849 (App. Decn., November 1, 1989).
 
 
 
Penalty benefits are denied in the present case since there is a fairly 
 
debatable claim.  Not all of the medical providers agreed there was a 
 
permanent impairment.  Claimant is not entitled to penalty benefits.
 
 
 
The parties have stipulated to the costs of litigation.
 
 
 
The remaining issues deal with file number 968594
 
 
 
The first issue to address is whether claimant sustained an injury 
 
which arose out of and in the course of her employment.  The claimant 
 
has the burden of proving by a preponderance of the evidence that the 
 
alleged injury actually occurred and that it arose out of and in the 
 
course of employment.  McDowell v. Town of Clarksville, 241 N.W.2d 904 
 
(Iowa 1976); Musselman v. Cent. Tel. Co., 261 Iowa 352, 154 N.W.2d 128 
 
(1967).  The words "arising out of" refer to the cause or source of the 
 
injury.  The words "in the course of" refer to the time, place and 
 
circumstances of the injury.  Sheerin v. Holin Co., 380 N.W.2d 415 
 
(Iowa 1986); McClure v. Union County, 188 N.W.2d 283 (Iowa 1971).
 
 
 
Claimant engaged in repetitive type activities which necessitated the 
 
use of her right and left upper extremities.  Her diagnoses have been 
 
vague with the exception of the right carpal tunnel syndrome.  There is 
 

 
 
 
 
 
 
 
 
 
objective evidence to establish that she has a mild case of carpal 
 
tunnel syndrome.  She has received no functional impairment ratings 
 
with respect to either upper extremity.  She is restricted to permanent 
 
light duty but light duty is not defined by any medical provider.  This 
 
deputy understands that "light duty work" is a nebulous phrase.  It is 
 
nonspecific.  
 
 
 
It is the determination of the undersigned that claimant has sustained 
 
temporary disabilities to her left upper extremity and to her right 
 
hand and right upper extremity.  She has sustained a permanent partial 
 
disability to her right wrist only.
 
 
 
The right of an employee to receive compensation for injuries sustained 
 
is statutory. The statute conferring this right can also fix the amount 
 
of compensation payable for different specific injuries.  The employee 
 
is not entitled to compensation except as the statute provides.  Soukup 
 
v. Shores Co., 222 Iowa 272, 268 N.W. 598 (1936).
 
 
 
Compensation for permanent partial disability begins at termination of 
 
the healing period.  Section 85.34(2).  Permanent partial disabilities 
 
are classified as either scheduled or unscheduled.  A specific 
 
scheduled disability is evaluated by the functional method; the 
 
industrial method is used to evaluate an unscheduled disability. Simbro 
 
v. Delong's Sportswear, 332 N.W.2d 886 (Iowa 1983); Graves v. Eagle 
 
Iron Works, 331 N.W.2d 116 (Iowa 1983); Martin v. Skelly Oil Co., 252 
 
Iowa 128, 106 N.W.2d 95 (1960).
 
 
 
A wrist injury generally is an injury to the hand, not the upper 
 
extremity.  The hand extends to the distal end of the radius and ulna, 
 
including the carpus or wrist.  Elam v. Midland Mfg., II Iowa 
 
Industrial Commissioner Report 141 (App. 1981).
 
 
 
It is the determination of the undersigned that claimant has sustained 
 
a one percent permanent partial disability to the hand.  Under section 
 
85.34(l).  She is entitled to 19 weeks of permanent partial disability 
 
benefits at the stipulated rate of $270.05 per week.  Said benefits 
 
shall commence as of April 1, 1991.  This is the time when she received 
 
medical treatment for her upper extremities.
 
 
 
Claimant is entitled to temporary total/healing period benefits for the 
 
following periods:
 
          
 
          12-11-90 through 12-21-90
 
            1-2-91 through 2-15-91
 
           3-14-91 through 3-28-91.
 
 
 
She is not entitled to temporary or healing period benefits for: 
 
           
 
           3-30-91 through 5-26-91
 
           5-28-91 through 7-3-91
 
            7-5-91 through 8-8-91
 
 
 
The above periods reflect the time claimant was in the healing period 
 
as a result of the 1989 work injury.
 
 
 
Claimant is entitled to temporary total/healing period benefits for 
 
10.143 weeks at the stipulated rate of $270.05 per week.
 
 
 
With respect to this file, the parties have stipulated to the costs of 
 
the litigation.
 
 
 
                               ORDER
 
 
 
THEREFORE IT IS ORDERED:
 
 
 
With respect to file number 917346:
 
 
 
Defendants shall pay unto claimant two hundred (200) weeks of permanent 
 
partial disability benefits at the stipulated rate of two hundred four 
 
and 71/l00 dollars ($204.71) per week and commencing from August 9, 
 
1991.
 
 
 
Defendants shall also pay unto claimant eighteen point five-seven-one 
 
(18.571) weeks of healing period benefits at the stipulated rate of two 
 
hundred four and 71/l00 dollars ($204.71) per week for the following 
 
periods:
 
           
 
           3-30-91 through 8-8-91
 
 
 
With respect to file number 968594:
 
 
 
Defendants shall pay unto claimant nineteen (19) weeks of permanent 
 
partial disability benefits at the stipulated rate of two hundred 
 
seventy and 05/l00 dollars ($270.05) per week and due and payable from 
 
April 1, 1991.
 
 
 
Defendants shall also pay unto claimant ten point one-four-three 
 

 
 
 
 
 
 
 
 
 
(10.143) weeks of temporary total/healing period benefits at the 
 
stipulated rate of two hundred seventy and 05/l00 dollars ($270.05) per 
 
week and due and payable for the following periods:
 
          
 
          12-11-90 through 12-21-90
 
            1-2-91 through 2-15-91
 
           3-14-91 through 3-28-91.
 
 
 
She is not entitled to temporary total disability/healing period 
 
benefits for:
 
           
 
           3-30-91 through 5-26-91
 
           5-28-91 through 7-3-91
 
            7-5-91 through 8-8-91
 
 
 
Defendants shall take credit for all benefits previously paid to 
 
claimant.
 
 
 
Accrued benefits are to be paid in a lump sum together with statutory 
 
interest at the rate of ten percent (10%) per year.
 
 
 
Costs are taxed to defendants pursuant to rule 343 IAC 4.33.
 
 
 
Defendants shall file a claim activity report as requested by this 
 
division and pursuant to rule 343 IAC 3.1.
 
 
 
 
 
 
 
Signed and filed this ____ day of January, 1995.       
 
                                _____________________________
 
                                 MICHELLE A. McGOVERN          
 
                                 DEPUTY INDUSTRIAL COMMISSIONER
 
 
 
Copies To:
 
 
 
Mr. J. Scott Bayne
 
Mr. Thomas L. Staack
 
Attorneys at Law
 
3151 Brockway Rd
 
PO Box 810
 
Waterloo  IA  50704
 
 
 
Mr. Kevin R. Rogers
 
Mr. Jeffrey J. Greenwood
 
Attorneys at Law
 
528 W Fourth St
 
PO Box 1200
 
Waterloo  IA  50704
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                             5-1800; 5-1803
 
                             Filed January 13, 1995
 
                             MICHELLE A. McGOVERN
 
 
 
         BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
____________________________________________________________
 
          
 
DOROTHY HENSON,    
 
          
 
     Claimant, 
 
          
 
vs.       
 
                                      File No. 968594
 
CHAMBERLAIN MANUFACTURING                      917346
 
CORPORATION,   
 
                                    A R B I T R A T I O N
 
     Employer, 
 
                                       D E C I S I O N
 
and       
 
          
 
NATIONAL UNION FIRE INS.,    
 
          
 
     Insurance Carrier,  
 
     Defendants.    
 
___________________________________________________________
 
5-1800;  5-1803
 
Claimant sustained a permanent partial disability to her back in the 
 
amount of 40 percent.
 
 
 
Claimant sustained a 1 percent permanent partial disability to her hand 
 
as a result of a right carpal tunnel injury.