Page   1
 
            
 
            
 
            
 
            
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
            _____
 
                        :
 
            CATHY JO HELMLE,      :
 
                        :
 
                 Claimant,   :        File No. 918759
 
                        :
 
            vs.         :          A P P E A L
 
                        :
 
            BEATRICE CHEESE, INC.,     :        D E C I S I O N
 
                        :
 
                 Employer,   :
 
                 Self-Insured,    :
 
                 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.  The decision of the deputy 
 
            filed April 22, 1992 is affirmed and is adopted as the final 
 
            agency action in this case with the following additional 
 
            analysis:
 
            In this case the employer terminated temporary benefits on 
 
            November 5, 1989 without reasonable or probable cause or 
 
            viable excuse.  (The prior arbitration decision found that 
 
            healing period benefits ended April 2, 1990.)  The 
 
            employer's assertion that the benefits should cease because 
 
            a job might be available when the doctor had not released 
 
            claimant to work is no excuse for terminating benefits.
 
            In this case the employer unreasonably delayed payment of 
 
            permanent partial disability benefits until January 31, 
 
            1991.  Given the nature of claimant's injury (hand caught in 
 
            an auger) and the extent of medical care, there can be no 
 
            question that claimant was to have a permanent disability.  
 
            The employer even set a reserve for payment of permanent 
 
            disability benefits, increased the reserve and admitted the 
 
            claimant would have a permanent impairment.  The employer 
 
            also unreasonably delayed commencement of claimant's 
 
            permanent disability benefits.
 
            In this case the employer's actions were a gross violation 
 
            of Iowa Code section 86.13.  It is not necessary that a 
 
            violation of Iowa Code section 86.13 be characterized as 
 
            gross before the maximum penalty be imposed.  The maximum 
 
            penalty is warranted in this case.
 
            It is also worth noting that even if the healing period 
 
            would have ended November 5, 1989 as the employer alleges, 
 
            the employer would still have no excuse for failure to 
 
            commence permanent benefits until January 1991.  Even if 
 
            there were to be no penalty for failure to pay healing 
 
            period benefits, there would still be a penalty for failing 
 
            to commence permanent benefits on November 5, 1989.
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            Defendant shall pay the costs of the appeal, including the 
 
            preparation of the hearing transcript.
 
            Signed and filed this ____ day of January, 1993.
 
            
 
            
 
            
 
            
 
                      ________________________________
 
                               BYRON K. ORTON
 
                          INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Douglas M. Henry
 
            Attorney at Law
 
            200 Security Bldg.
 
            Dubuque, Iowa 52001
 
            
 
            Mr. Jay P. Roberts
 
            Attorney at Law
 
            P.O. Box 178
 
            Waterloo, Iowa 50704
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
            4000.2
 
            Filed January 22, 1993
 
            Byron K. Orton
 
            WRM
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
            _____
 
                        :
 
            CATHY JO HELMLE,      :
 
                        :
 
                 Claimant,   :        File No. 918759
 
                        :
 
            vs.         :          A P P E A L
 
                        :
 
            BEATRICE CHEESE, INC.,     :        D E C I S I O N
 
                        :
 
                 Employer,   :
 
                 Self-Insured,    :
 
                 Defendant.       :
 
            ____________________________________________________________
 
            _____
 
            
 
            4000.2
 
            Claimant was awarded 50 percent penalty benefits (1) for the 
 
            premature termination of temporary disability benefits and, 
 
            (2) also for delay in the commencement of permanent 
 
            disability benefits.  In this case the employer unreasonably 
 
            terminated temporary benefits and also unreasonably delayed 
 
            commencement of permanent benefits.  It is not necessary 
 
            that a violation of Iowa Code section 86.13 be characterized 
 
            as gross violation before the maximum benefit be imposed.  
 
            Maximum penalty was warranted.
 
            The employer terminated temporary benefits in November 1989, 
 
            without giving notice and did not make payments for 
 
            permanent disability until January 1991.  The employer's 
 
            alleged offer of employment as an excuse for terminating 
 
            benefits was not convincing.
 
            
 
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
                       BEFORE THE IOWA INDUSTRIAL COMMISSIONER            
 
            ____________________________________________________________
 
                                          :
 
            CATHY JO HELMLE,              :
 
                                          :
 
                 Claimant,                :         File No. 918759
 
                                          :
 
            vs.                           :      A R B I T R A T I O N
 
                                          :
 
            BEATRICE CHEESE, INC.,        :         D E C I S I O N
 
                                          :
 
                 Employer,                :
 
                 Self-Insured,            :
 
                 Defendant.               :
 
            ____________________________________________________________
 
            
 
                                   INTRODUCTION
 
            
 
                 This is a proceeding in arbitration brought by Cathy Jo 
 
            Helmle, claimant, against Beatrice Cheese, Inc., employer 
 
            and self-insured defendant, for penalty benefits as a result 
 
            of an injury which occurred on June 3, 1989.  Claimant's 
 
            entitlement to weekly benefits and medical benefits was 
 
            determined by Deputy Industrial Commissioner Michael G. 
 
            Trier in a decision dated November 27, 1991, after a hearing 
 
            which was held on November 20, 1991.  Official notice is 
 
            taken of this decision.  Iowa Administrative Procedure Act 
 
            section 17A.14(4).  This bifurcated proceeding was held on 
 
            April 7, 1992, at Dubuque, Iowa, and the case was fully 
 
            submitted at the close of the hearing.  Claimant was 
 
            represented by Douglas M. Henry.  Defendant was represented 
 
            by Jay P. Roberts.  The record consists of the testimony of 
 
            Cathy Jo Helmle, claimant; David Lemanski, claimant's former 
 
            attorney; David Bormann, plant manager; and, claimant's 
 
            exhibits 1 through 24.  Claimant's attorney presented an 
 
            excellent trial brief at the time of the hearing.  The 
 
            deputy ordered a transcript of the hearing.  Defendant's 
 
            attorney submitted an excellent post-hearing brief.
 
            
 
                                      ISSUE
 
            
 
                 The sole issue for determination is whether claimant is 
 
            entitled to penalty benefits pursuant to Iowa Code section 
 
            86.13(4) and, if so, the extent of benefits to which she is 
 
            entitled.
 
            
 
                                 FINDINGS OF FACT
 
            
 
                                   ENTITLEMENT
 
            
 
                 It is determined that (1) defendant prematurely 
 
            terminated temporary disability benefits and (2) failed to 
 
            begin permanent disability benefits in a timely manner, both 
 
            in violation of Iowa Code section 86.13(4) without 
 
            reasonable or probable cause or excuse.
 
            
 
                 It is further determined that defendant's unreasonable 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
            
 
            termination of temporary benefits and unreasonable delay in 
 
            the commencement of permanent benefits in this case was a 
 
            gross violation of Iowa Code section 86.13(4) and that, 
 
            therefore, claimant is entitled to 50 percent penalty 
 
            benefits of the amount of benefits that were unreasonably 
 
            denied and delayed.
 
            
 
                 Claimant slipped at work and her hand got caught in an 
 
            auger on June 3, 1989.  The injury was severe.  Emergency 
 
            hand surgery was performed by Curtis M. Steyers, M.D., at 
 
            the University of Iowa Hospitals and Clinics on the date of 
 
            the injury (exhibit 20.108).  On June 6, 1989, skin graft 
 
            surgery was performed by Dr. Steyers (exhibit 20.105).  On 
 
            July 21, 1989, the doctor transplanted a nerve from 
 
            claimant's leg to her right hand (exhibits 20.87 and 20.88; 
 
            transcript, pages 18-20).
 
            
 
                 John M. Thome, defendant's claim representative, 
 
            terminated the payment of claimant's temporary disability 
 
            benefits on November 5, 1989 (exhibit 24, page 15).  Thome 
 
            stated that he made his decision based upon (1) a 
 
            conversation he had with claimant in November of 1989; (2) 
 
            the one medical report he had from Dr. Steyers dated August 
 
            29, 1989; and (3) representations made by the then plant 
 
            manager, Gerald Erickson, that the company had light-duty 
 
            work available as soon as the claim representative had 
 
            obtained medical restrictions from the doctor.  Thome 
 
            testified, "Basically, they said if we could wheel her 
 
            through the door, they'll find work for her; they'll 
 
            accommodate her in any way possible."  (Exhibit 24, page 
 
            16).  At that time, Thome did not have any medical 
 
            restrictions from the doctor (exhibit 24, page 20), but he 
 
            believed that if he had some and employer would furnish a 
 
            job within those restrictions, then he was entitled to 
 
            terminate temporary disability benefits (exhibit 24, pages 
 
            16 and 17).  Thome terminated benefits, then sought 
 
            restrictions.  Thome did not give a thirty (30) day written 
 
            (Auxier) notice as required by Iowa Code section 86.13(2).
 
            
 
                 Thome's application of the workers' compensation law 
 
            with respect to termination of healing period benefits was 
 
            incorrect.  Iowa Code section 85.34(1) specifies three 
 
            events (whichever occurs first) which justify the 
 
            termination of healing period of benefits.  None of those 
 
            existed at the time that Thome terminated temporary 
 
            disability benefits on November 5, 1989:  (1) claimant had 
 
            not returned to work; (2) she was not able to return to 
 
            substantially similar work; and, (3) she had not reached 
 
            maximum medical improvement.  Nor was it demonstrated that 
 
            claimant could "perform other work consistent with the 
 
            employee's disability."  Iowa Code section 85.33(2).
 
            
 
                 In fact, Dr. Steyers had not given any restrictions, 
 
            but on the contrary, the only report which Thome had dated 
 
            August 29, 1989, said that her prognosis for the median 
 
            nerve was only fair; the prognosis on the thumb was only 
 
            fair; additional surgery was possible but that a decision 
 
            about surgery could not be made for at least 6-12 months 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            
 
            
 
            (exhibit 1).
 
            
 
                 Furthermore, when some restrictions were obtained on 
 
            January 10, 1990, and the claim representative attempted to 
 
            force claimant to work, claimant contacted the doctor and 
 
            Dr. Steyers made it clear to Thome on January 22, 1990, that 
 
            she was not released to return to work (exhibit 22).  
 
            Nevertheless, Thome did not restart claimant's temporary 
 
            disability benefits.
 
            
 
                 Thome admitted that the reason he terminated claimant's 
 
            temporary disability benefits was because of the so-called 
 
            job offer he generated in January of 1990, but at that time 
 
            he had no information in his file that she was able to 
 
            return to work (exhibit 24, pages 69 and 70).  Nor did he 
 
            personally investigate to determine whether the job or jobs 
 
            offered by employer were in fact within the doctor's 
 
            restrictions.
 
            
 
                 Therefore, Thome (1) did not have a release to return 
 
            to work by the doctor; and, (2) had not made a satisfactory 
 
            investigation to determine whether the jobs contemplated by 
 
            employer were within the restrictions imposed by the doctor.  
 
            Consequently, his termination of benefits was based upon an 
 
            erroneous application of the workers' compensation law.  
 
            Simply obtaining restrictions from a doctor and telling 
 
            claimant that there is work within those restrictions is not 
 
            sufficient grounds to terminate benefits when the doctor is 
 
            insisting he has not released the claimant to return to work 
 
            and the employer in fact did not have work for claimant 
 
            within her restrictions.  It is not possible to know Thome's 
 
            state of mind when he took this action, but it should be 
 
            stated that persons placed in a position of trust should 
 
            avoid the appearance of evil as well as the evil itself.
 
            
 
                 Thome failed to make a satisfactory investigation for 
 
            the reason that he never verified that the restrictions that 
 
            Dr. Steyers imposed on January 10, 1990, were observed by 
 
            employer in the jobs which they said they had available for 
 
            claimant within her restrictions.  David Bormann, the 
 
            current plant manager, testified both by deposition and at 
 
            the hearing and admitted that the jobs that were supposed to 
 
            be within her restrictions:  (1) the job of pulling trays 
 
            and, (2) the recon job of dumping powder, both exceeded the 
 
            restrictions of Dr. Steyers (transcript, page 53).
 
            
 
                 Furthermore, it was not unreasonable for claimant to 
 
            refuse to return to work when the doctor had never mentioned 
 
            it to her, but on the contrary, was telling her it would be 
 
            six months to find out whether the sensation would return to 
 
            her hand and whether additional surgery would be required.  
 
            Claimant's refusal to perform any kind of work until she was 
 
            examined by the doctor and released to return to work by the 
 
            doctor was not only reasonable but prudent (transcript, page 
 
            24).
 
            
 
                 Moreover, Deputy Trier found in his decision that the 
 
            job which was offered to Helmle by the employer in January 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            
 
            
 
            of 1990 was not appropriate for her in view of her medical 
 
            condition.  Deputy Trier found that employer first provided 
 
            a job which complied with the medical restrictions on April 
 
            2, 1990, and that is when claimant did in fact return to 
 
            work and when healing period ended.
 
            
 
                 Wherefore, it is found that the denial of healing 
 
            period benefits from November 5, 1989, when they were 
 
            wrongfully stopped, until April 2, 1990, when claimant was 
 
            actually released by Dr. Steyers to go to work, constitutes 
 
            a denial of benefits without reasonable or probable cause or 
 
            excuse.
 
            
 
                 It is further found that claimant is entitled to 
 
            penalty benefits of 50 percent for the period from November 
 
            5, 1989, to April 2, 1990, a period of 21.143 weeks, at the 
 
            proper stipulated rate of $158.05 per week in the total 
 
            amount of $3,341.65.  Fifty percent of this figure means 
 
            that claimant's entitlement to penalty benefits for 
 
            unreasonably denied healing period benefits at the 50 
 
            percent rate is $1,670.83.
 
            
 
                 Turning now to permanent benefits, Deputy Trier found 
 
            that it is incumbent upon the employer and its insurance 
 
            carrier or adjuster to make an investigation and assessment 
 
            of the case and to commence permanent partial disability 
 
            benefits reasonably and appropriately.  After claimant 
 
            returned to work on April 2, 1990, the claim representative 
 
            made some telephone calls and wrote some letters but never 
 
            did obtain an impairment rating.  Eventually, claimant's 
 
            attorney, Lemanski, obtained an impairment rating from Dr. 
 
            Steyers on November 21, 1990.  Even then, the insurance 
 
            carrier did not extend healing period benefits; and did not 
 
            begin permanent disability benefits until January 31, 1991 
 
            (exhibit 22).
 
            
 
                 What Deputy Trier said about claimant's entitlement to 
 
            interest for the period from April 2, 1990, when she 
 
            returned to work, until defendant first paid permanent 
 
            disability benefits on January 31, 1991, applies to penalty 
 
            benefits as well.  Deputy Trier stated that it was certainly 
 
            clear to defendant that claimant had sustained a very severe 
 
            residual permanent impairment of her right hand.  Even 
 
            though the precise amount of impairment was not known at the 
 
            end of the healing period when claimant returned to work on 
 
            April 2, 1990, nevertheless, defendant knew there was a 
 
            substantial amount of permanent partial disability present 
 
            in her right hand, even assuming the best of all possible 
 
            outcomes from the three surgeries and extended recovery 
 
            period.  Therefore, defendant had a duty to begin permanent 
 
            partial disability benefits on April 2, 1990, when healing 
 
            period ended.  Iowa Code section 85.34(2).  However, 
 
            employer and the claim representative did not commence 
 
            permanent partial disability benefits until some nine months 
 
            after the end of healing period.  Defendant employer and 
 
            insurance claim representative did not establish any 
 
            reasonable or probable cause or excuse for this delay.
 
            
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            
 
            
 
                 On the contrary, Thome admitted in his testimony 
 
            several times that, initially, he figured claimant would 
 
            receive at least 20 weeks of permanent partial disability 
 
            benefits based upon his own estimated 10 percent impairment 
 
            of the hand.  He not only set a reserve for 20 weeks, but 
 
            also later increased it (exhibit 24, pages 10-15).  Thome 
 
            admitted that he knew claimant was released to return to 
 
            work on April 2, 1990 (exhibit 24, page 19); and he knew 
 
            that she would be having some permanent impairment (exhibit 
 
            24, page 24).  Moreover, in April of 1990, he increased the 
 
            reserve from 10 percent of the hand to 20 percent of the 
 
            hand, thus confirming his knowledge in April of 1990 that 
 
            claimant had sustained a serious permanent injury (exhibit 
 
            24, pages 25 and 27).  Nevertheless, he did not authorize 
 
            the payment of permanent disability benefits on April 2, 
 
            1990 (exhibit 24, page 31), nor did he pay the delinquent 
 
            temporary disability benefits (exhibit 24, page 31).  Thome 
 
            admitted that he did not know that Bormann had testified 
 
            that the jobs offered to claimant in January of 1990 did not 
 
            meet the restrictions imposed by Dr. Steyers (exhibit 24, 
 
            page 44).  This is clear evidence of failure to properly 
 
            investigate the claim before making decisions that severely 
 
            impact on claimant's livelihood following a very severe 
 
            injury.
 
            
 
                 If Thome was unhappy with the information that he was 
 
            receiving from Dr. Steyers, or with the lack of information 
 
            from Dr. Steyers, he could have obtained an independent 
 
            medical examination from one or more other doctors.  Iowa 
 
            Code section 85.39.  He testified that he had considered it 
 
            but never did anything about it (exhibit 24, page 57).
 
            
 
                 Wherefore, it is determined that claimant is entitled 
 
            to penalty benefits for permanent disability benefits which 
 
            were unreasonably delayed from April 2, 1990, at the end of 
 
            the healing period when claimant returned to work, until 
 
            January 31, 1991, when the claim representative issued his 
 
            next payment, which payment he designated as permanent 
 
            partial disability benefits.
 
            
 
                 This period of time is 43.429 weeks times the 
 
            stipulated rate of compensation of $158.05 per week and 
 
            totals $6,863.95, fifty percent of which is $3,431.98.
 
            
 
                 The parties agreed that there was an overpayment of the 
 
            earlier benefits prior to the first hearing, but there is no 
 
            credit due against the penalty benefits because Deputy Trier 
 
            allowed a credit for these overpayments in his award on 
 
            November 27, 1991.
 
            
 
                 Yet, defendant claims an exemption from penalty 
 
            benefits for the overpayment of weekly benefits.
 
            
 
                 Defendant overpaid claimant for the period from June 3, 
 
            1989, to November 5, 1989, when they wrongfully terminated 
 
            weekly benefits prematurely without proper evidence and 
 
            because of their erroneous application of the law and 
 
            failure to properly investigate the facts upon which 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            
 
            
 
            decisions were based which were crucial to the well-being 
 
            and livelihood of claimant during a period of temporary 
 
            total disability from a severe and traumatic injury.
 
            
 
                 Defendant paid claimant at the rate of $180.06 per 
 
            week, whereas it was subsequently determined that the proper 
 
            rate was $158.05, a difference of $22.10 per week for 22.143 
 
            weeks which totals an overpayment of $487.27 as of November 
 
            5, 1989.  As it happened, claimant was overpaid 
 
            approximately three weeks of benefits at the time defendant 
 
            wrongfully terminated claimant's benefits on November 5, 
 
            1989 ($487.27 divided by $158.05).  Is defendant entitled an 
 
            exemption from penalty benefits for these three weeks caused 
 
            by their own erroneous calculation of the rate of 
 
            compensation?  The answer is no.
 
            
 
                 It was the intent of the legislature to provide an 
 
            injured employee with prompt, regular, systematic, reliable 
 
            and correct payments of workers' compensation to provide for 
 
            the basic needs of life during a period of recovery from 
 
            injury.  The employer and the insurance carrier calculate 
 
            the rate and are expected to compute the rate correctly and 
 
            to pay claimant evenly and consistently during the period of 
 
            disability to prevent financial hardship in addition to the 
 
            hardship of recovering from the injury.  Defendant should 
 
            not be permitted to bungle the computation of the rate of 
 
            compensation and then take an advantage from their own error 
 
            not otherwise provided by law.  To rule otherwise would open 
 
            the door to mischief by employers and insurance carriers at 
 
            worst, and to cause employees to suffer for the error of the 
 
            employer or insurance carrier at best.  An employer who 
 
            overpays a claim initially, upon discovering their error, 
 
            could terminate benefits altogether prematurely in order to 
 
            recoup their loss and leave claimant with no compensation 
 
            during a valid period of disability.
 
            
 
                 As a practical matter, most injured employees have no 
 
            idea of what the correct workers' compensation weekly rate 
 
            is or should be.  They do not know how to calculate the rate 
 
            and they do not have the resources to calculate it.  
 
            Therefore, employers and insurance carriers, who are placed 
 
            in a position of trust, have a special duty to calculate the 
 
            rate correctly.  If they error, and the employee is exposed 
 
            to being deprived of reliable, systematic weekly benefits 
 
            during the period of disability through no fault of the 
 
            employee, then the employer and insurance carrier should not 
 
            be entitled to an exemption from penalty benefits for 
 
            benefits which were overpaid by their own error.
 
            
 
                 When the employer failed to pay and the employee failed 
 
            to receive the regular, systematic temporary and permanent 
 
            disability benefits envisioned by the legislature without 
 
            just cause, defendant became liable for and claimant became 
 
            entitled to penalty benefits and defendant is not entitled 
 
            to an exemption for the overpayment of weekly benefits 
 
            brought about by its own miscalculation.  There is no known 
 
            statute or case law to support such an exemption and 
 
            defendant did not cite any such statute or case.
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
                 Defendant subsequently paid a large lump sum on January 
 
            31, 1991, for the permanent impairment to the hand which was 
 
            based on the erroneous higher rate.  Since this amount was 
 
            paid after defendant had unreasonably delayed healing period 
 
            benefits from November 5, 1989, to April 2, 1990, and 
 
            permanent partial disability benefits from April 2, 1990, 
 
            until January 31, 1991, clearly no exemption can be allowed 
 
            against penalty benefits, irrespective of whether it was 
 
            paid at the correct or incorrect rate of compensation.
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                 Wherefore, based upon the foregoing and following 
 
            principles of law, these conclusions of law are made.
 
            
 
                 That claimant has sustained the burden of proof, by a 
 
            preponderance of the evidence, that defendant employer and 
 
            claim representative terminated claimant's healing period 
 
            benefits prematurely and delayed the commencement of his 
 
            permanent partial disability benefits without reasonable or 
 
            probable cause or excuse.
 
            
 
                 That the actions of employer and its claim 
 
            representative were gross violations of Iowa Code section 
 
            86.13(4) and, therefore, claimant is entitled to maximum 
 
            penalty benefits in the amount of 50 percent of the 
 
            unreasonably denied healing period benefits and 50 percent 
 
            of the unreasonably delayed permanent partial disability 
 
            benefits.
 
            
 
                 That defendant is not entitled to an exemption from 
 
            penalty benefits for the erroneous overpayment of weekly 
 
            benefits.
 
            
 
                                      ORDER
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 That defendant pay to claimant one thousand six hundred 
 
            seventy and 83/100 dollars ($1,670.83) in penalty benefits 
 
            for the unreasonably denied healing period benefits.
 
            
 
                 That defendant pay to claimant three thousand four 
 
            hundred thirty-one and 98/100 dollars ($3,431.98) for the 
 
            unreasonable delay in the commencement of the payment of 
 
            permanent disability benefits.
 
            
 
                 That these penalty benefits are to be paid within ten 
 
            (10) days after this decision becomes final.
 
            
 
                 That no further credits or exemptions are due to 
 
            defendant for any previous payments or overpayments which 
 
            have been made.
 
            
 
                 That the costs of this action, including the costs of 
 
            the attendance of the court reporter at hearing and the 
 
            transcript of the hearing, are charged to defendant pursuant 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            
 
            
 
            to rule 343 IAC 4.33 and Iowa Code sections 86.40 and 
 
            86.19(1).
 
            
 
                 That defendant file claim activity reports as requested 
 
            by this agency pursuant to rule 343 IAC 3.1.
 
            
 
                 Signed and filed this ______ day of ____________, 1992.
 
            
 
                 
 
            
 
                 
 
                 
 
                                          ______________________________
 
                                          WALTER R. McMANUS, JR.
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            Copies To:
 
            
 
            Mr. Douglas M. Henry
 
            Attorney at Law
 
            200 Security Building
 
            Dubuque, Iowa  52001
 
            
 
            Mr. Jay P. Roberts
 
            Attorney at Law
 
            620 Lafayette Street
 
            P.O. Box 178
 
            Waterloo, Iowa  50704
 
            
 
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER            
 
            ____________________________________________________________
 
                                          :
 
            CATHY JO HELMLE,              :
 
                                          :
 
                 Claimant,                :         File No. 918759
 
                                          :
 
            vs.                           :      A R B I T R A T I O N
 
                                          :
 
            BEATRICE CHEESE, INC.,        :         D E C I S I O N
 
                                          :
 
                 Employer,                :
 
                 Self-Insured,            :
 
                 Defendant.               :
 
            ____________________________________________________________
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This is a proceeding in arbitration brought by Cathy Jo 
 
            Helmle against her employer, Beatrice Cheese, Inc., based 
 
            upon an injury that occurred on June 3, 1989.  The primary 
 
            issues to be determined are the date that the claimant's 
 
            healing period compensation entitlement ended, interest on 
 
            unpaid or delayed amounts and recovery of $135.00 paid by 
 
            claimant's counsel for a medical report.  The employer seeks 
 
            credit for the difference between payments paid at the rate 
 
            of $180.06 per week and the stipulated rate of $158.05 per 
 
            week.  A primary issue to be determined is whether the 
 
            claimant's refusal to return to work in January 1990 was 
 
            unreasonable.  Claimant's claim for a penalty under section 
 
            86.13(4) has been bifurcated and will not be addressed in 
 
            this decision.
 
            
 
                 The case was heard at Dubuque, Iowa, on November 20, 
 
            1991.  The evidence in the proceeding consists of testimony 
 
            from David Lemanski, Cathy Jo Helmle and David Bormann.  The 
 
            record also contains exhibits 1 through 14.
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 Having considered all the evidence received, together 
 
            with the appearance and demeanor of the witnesses, the 
 
            following findings of fact are made.
 
            
 
                 Cathy Jo Helmle severely injured her right hand when 
 
            she caught it in an auger.  She underwent extensive surgery 
 
            on June 3, 1989 (exhibit 1.97 and 1.98).  On July 21, 1989, 
 
            she underwent further surgery on the hand in which a nerve 
 
            was removed from her leg and placed in the palm of her hand 
 
            in order to replace the median nerve which had been
 
            
 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
            
 
            destroyed in the accident (exhibit 1.27 and 1.28).  In 
 
            clinical notes dated July 31, 1989, the treating surgeon, 
 
            Curtis M. Steyers, M.D., reported that it would be at least 
 
            six months before any sensory return would be evident 
 
            (exhibit 1.35).  In a report dated August 29, 1989, Dr. 
 
            Steyers reported that her prognosis was fair and that no 
 
            decision regarding further surgery would be made for 6-12 
 
            months (exhibit 2).  In a clinical note dated November 13, 
 
            1989, it was noted that claimant was doing well and that it 
 
            could take five or six more months for sensation to return 
 
            to the distal portion of her fingers and that she could 
 
            continue using her right hand.  A follow-up visit was 
 
            scheduled for six months (exhibit 1.36).  On January 10, 
 
            1990, Dr. Steyers issued a report to the adjusting company 
 
            for the employer indicating that claimant has unrestricted 
 
            use of her left hand but that the right hand should not be 
 
            exposed to extremes of hot or cold, machinery with moving 
 
            parts or sharp objects.  He indicated she was unable to 
 
            perform fine motor activities or repetitive pinch or grasp 
 
            activities with the right hand (exhibit 3).  The doctor's 
 
            clinical notes indicate that, on January 22, 1990, Helmle 
 
            telephoned him regarding a proposal to return to work in a 
 
            job which she felt incapable of performing.  The notes 
 
            indicate that the doctor notified the employer that a 
 
            reexamination of Helmle would be required before she should 
 
            actually return to work (exhibit 1.37).
 
            
 
                 On February 28, 1990, Dr. Steyers reevaluated the 
 
            claimant.  His notes indicate that renervation of the hand 
 
            was continuing, that she had not yet reached optimum medical 
 
            recovery and that she should not perform repetitive motion 
 
            or lifting with her right hand (exhibit 1.37).  In a letter 
 
            to claimant's former attorney dated March 6, 1990, Dr. 
 
            Steyers confirmed the restrictions which he had indicated in 
 
            his January 10, 1990, letter and also indicated that she 
 
            should not perform repetitive lifting in excess of five 
 
            pounds (exhibit 4).
 
            
 
                 It is found that the job which was offered to Helmle by 
 
            the employer in January 1990 was not appropriate for her in 
 
            view of her medical condition.  After Helmle notified her 
 
            employer that she would not be returning to work, Helmle did 
 
            not request the employer to consider her for other positions 
 
            and the employer did not offer any other positions to her 
 
            until she provided a release from the doctor on or about 
 
            April 1, 1990.  At that point, the employer found a job 
 
            which complied with the restrictions and Helmle returned to 
 
            work on April 2, 1990.  She has remained employed with this 
 
            employer since that date.
 
            
 
     
 
            
 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            
 
            
 
            Neither the adjusting company nor claimant had received any 
 
            permanent impairment rating from the physician at the time 
 
            when she resumed employment.  Attempts to obtain a final 
 
            rating and report were unsuccessful until claimant's counsel 
 
            requested a report in November 1990.  The adjusting company 
 
            did not voice any objection to claimant's counsel seeking a 
 
            report (exhibits 8-11).
 
            
 
                 Dr. Steyers then issued the report on November 21, 
 
            1990.  In the report, he removed the five-pound lifting 
 
            restriction but retained the other restrictions which he had 
 
            previously applied.  He stated that the healing period had 
 
            ended July 30, 1990, and that Helmle was left with a 41 
 
            percent permanent partial impairment of her right hand 
 
            (exhibit 5).  Dr. Steyers issued a charge in the amount of 
 
            $135.00 for issuing that report, the cost of which was paid 
 
            by claimant's counsel.
 
            
 
                 As shown in the prehearing report, the claimant has 
 
            been paid 99.77 weeks of compensation at the rate of $180.06 
 
            per week.  The prehearing report also stipulates that the 
 
            correct rate of compensation is $158.05 per week.  This 
 
            appears to be based upon the claimant having worked a 
 
            40-hour work week during each of the 13 weeks immediately 
 
            preceding the week in which the injury occurred and having 
 
            been paid at the rate of $6.90 per hour for those weeks.  
 
            Exhibit 7 seems to indicate that claimant did not work a 
 
            40-hour week during each of those weeks.  It appears to 
 
            indicate that she worked more than 40 hours per week which, 
 
            if she did, would result in a higher rate of compensation.  
 
            Exhibit 7 is difficult to understand, however, and the 
 
            stipulation will not be disturbed.  Exhibit 7 likewise does 
 
            not show all 13 weeks preceding the week which included June 
 
            3, 1989.
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                 An injured employee is entitled to receive compensation 
 
            for healing period commencing on the date the injury 
 
            occurred and continuing until the earlier of the three 
 
            events provided in Code section 85.34(1).  According to 
 
            exhibit 5, significant improvement ceased in July 1990.  The 
 
            claimant actually returned to work on April 2, 1990.  If the 
 
            healing period is to be ended at an earlier date, the 
 
            evidence must show that the claimant was medically capable 
 
            of returning to work substantially similar to that in which 
 
            she was engaged at the time of injury prior to April 2, 
 
            1990.  It is likewise appropriate to consider the end of the 
 
            healing period under section 85.33(2) of The Code.  If the 
 
            employer offers the employee suitable work which is 
 
            consistent with the employee's disability and the employee
 
            
 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            
 
            
 
            fails to accept the work, then healing period compensation 
 
            is suspended during the period of the refusal.  Section 
 
            85.33(3), Code of Iowa.  For work to be suitable, it must be 
 
            consistent with the restrictions imposed by the physician, 
 
            consistent with the medical care being provided and not 
 
            detrimental to the employee's recovery.  In this case, Dr. 
 
            Steyers had not actually released Helmle to return to work 
 
            in January of 1990.  As shown in his note dated January 22, 
 
            1990, a reexamination was needed before the claimant could 
 
            return to work.  When he did reevaluate her on February 28, 
 
            1990, he added a five-pound lifting restriction to those 
 
            which he had previously indicated in his letter to the 
 
            adjusting company for the employer.  With that lifting 
 
            restriction, the job which had been offered to the claimant 
 
            clearly was not suitable within the meaning of section 
 
            85.33(3).  It is noted that the statute places the duty upon 
 
            the employer to offer suitable work to the employee.  While 
 
            the employee is required to cooperate, the employee is not 
 
            required to ask the employer to find work.  It is possible 
 
            that the employer could have found a job suitable for the 
 
            claimant, but it chose to not do so until April 2, 1990.  To 
 
            arrange an earlier return to work would have required action 
 
            on the part of the employer and/or its adjusting company in 
 
            order to clarify the doctor's restrictions and find a 
 
            suitable position within the employer's work place and offer 
 
            that position to the claimant.  Those actions were not 
 
            performed.  It is therefore concluded that the claimant's 
 
            healing period terminated April 1, 1990 consistent with her 
 
            release and return to work on April 2, 1990.  She is 
 
            therefore entitled to recover 43 2/7 weeks of healing period 
 
            compensation.
 
            
 
                 Compensation for permanent partial disability is 
 
            payable commencing at the end of the healing period.  In 
 
            this case, however, the claimant's recuperation was not 
 
            completed at the time she returned to work.  Her return to 
 
            work was more in the nature of a temporary partial 
 
            disability return to work under section 85.33 and would be 
 
            considered as such, except for the fact that it appears as 
 
            though she earned as much after returning to work as she did 
 
            prior to the injury.  Under these circumstances, temporary 
 
            partial disability compensation is not payable; instead, the 
 
            healing period is ended with the return to work.  In this 
 
            case, if the employer were to be required to have paid 
 
            permanent partial disability compensation commencing on 
 
            April 2, 1990, it would be required to do so prior to the 
 
            time that the amount of disability or impairment was 
 
            ascertainable since the recuperation had not yet been 
 
            completed.  At first consideration, to require the employer 
 
            to do so would seem unreasonable.  It is, however, no 
 
            different from the case Teel v. McCord, 394 N.W.2d 405 (Iowa
 
            
 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            
 
            
 
            1986), wherein the employer was held responsible for paying 
 
            permanent partial disability compensation commencing at the 
 
            healing period, even though further surgeries were 
 
            anticipated and full recuperation had not yet occurred.  The 
 
            correct rule of law is that the statute is to be literally 
 
            interpreted and permanent partial disability compensation is 
 
            to be commenced beginning at the end of the healing period.  
 
            In this case, the claimant was entitled to receive permanent 
 
            partial disability compensation payable commencing April 2, 
 
            1990.  The fact that no impairment rating had been received 
 
            does not excuse nonpayment.  It is not a defense to a claim 
 
            for interest.  During the time that the claimant was working 
 
            and not being paid permanent partial disability 
 
            compensation, the employer had the use of those funds which 
 
            should have been paid to the claimant.  Interest is merely 
 
            an adjustment made for the time-value of money.  It is not a 
 
            penalty for wrongdoing.  Mohl v. IBP, File No. 801704 (App. 
 
            July 30, 1990).  The claimant is therefore entitled to 
 
            recover interest on the unpaid permanent partial disability 
 
            compensation computed from the date each weekly payment came 
 
            due, commencing with the first payment being due for the 
 
            week commencing April 2, 1990.
 
            
 
                 When an impairment has not been received, it is 
 
            incumbent upon the employer and its insurance carrier or 
 
            adjuster to make an investigation and assessment of the 
 
            case, commence payments and pay the amount which they deem 
 
            reasonable and appropriate.  In this case, it was certainly 
 
            clear that Cathy Jo Helmle had a very severe residual 
 
            impairment of her right hand.  While the precise amount 
 
            might not have been readily determinable in April 1990, 
 
            there was an absolute certainty that a very substantial 
 
            amount of permanent partial disability was present and would 
 
            be present, even assuming the best of possible outcomes from 
 
            her surgery and recovery.  It is therefore concluded that 
 
            the employer is responsible for payment of interest on the 
 
            unpaid permanent partial disability compensation.
 
            
 
                 The employer seeks credit for the excess weekly 
 
            compensation which has been paid.  The difference is $22.01 
 
            per week.  The employer is not to be penalized for the 
 
            erroneous overpayment of weekly benefits.  Wilson Foods 
 
            Corp. v. Cherry, 315 N.W.2d 756 (Iowa 1982).  The 
 
            overpayment is allowable as a credit toward amounts ordered 
 
            to be paid in this decision.
 
            
 
                 Claimant is entitled to recover the cost of the medical 
 
            report under rule 343 IAC 4.36(6).  The amount of $135.00 is 
 
            found to be a reasonable amount for a medical report.
 
            
 
                           
 
            
 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            
 
            
 
                                       ORDER
 
            
 
                 IT IS THEREFORE ORDERED that the employer pay Cathy Jo 
 
            Helmle forty-three and two-sevenths (43 2/7) weeks of 
 
            compensation for healing period at the stipulated rate of 
 
            one hundred fifty-eight and 05/100 dollars ($158.05) per 
 
            week payable commencing June 3, 1989.
 
            
 
                 IT IS FURTHER ORDERED that the employer pay Cathy Jo 
 
            Helmle seventy-seven point nine (77.9) weeks of compensation 
 
            for permanent partial disability at the stipulated rate of 
 
            one hundred fifty-eight and 05/100 dollars ($158.05) per 
 
            week payable commencing April 2, 1990.
 
            
 
                 IT IS FURTHER ORDERED that defendant is entitled to a 
 
            credit in the amount of twenty-two and 01/100 dollars 
 
            ($22.01) per week for ninety-nine point seven seven (99.77) 
 
            weeks resulting in a total credit of two thousand one 
 
            hundred ninety-four and 40/100 dollars ($2,194.40), an 
 
            amount equivalent to thirteen point eight eight four 
 
            (13.884) weeks of compensation at the stipulated rate of one 
 
            hundred fifty-eight and 05/100 dollars ($158.05) per week.
 
            
 
                 IT IS FURTHER ORDERED that all unpaid accrued amounts, 
 
            after applying benefits actually paid and the credit, shall 
 
            be paid to claimant in a lump sum together with interest 
 
            computed pursuant to section 85.30 of The Code from the date 
 
            each weekly payment came due until the date of actual 
 
            payment.
 
            
 
                 IT IS FURTHER ORDERED that the costs of this action are 
 
            assessed against the employer, including one hundred 
 
            thirty-five and 00/100 dollars ($135.00) for the cost of a 
 
            medical report in accordance with rule 343 IAC 4.33(6).
 
            
 
                 IT IS FURTHER ORDERED that defendant file claim 
 
            activity reports as requested by this agency pursuant to 
 
            rule 343 IAC 3.1.
 
            
 
                 IT IS FURTHER ORDERED that this case be assigned for 
 
            prehearing in order to obtain a hearing upon the bifurcated 
 
            claim for penalty under section 86.13(4).
 
            
 
                 Signed and filed this ______ day of ____________, 1991.
 
            
 
                 
 
            
 
                 
 
                 
 
                                          ______________________________
 
                                          MICHAEL G. TRIER
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Douglas M. Henry
 
            Attorney at Law
 
            200 Security Building
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            
 
            
 
            Dubuque, Iowa  52001
 
            
 
            Mr. Jay P. Roberts
 
            Attorney at Law
 
            620 Lafayette Street
 
            P.O. Box 178
 
            Waterloo, Iowa  50704
 
            
 
 
            
 
 
 
 
 
 
 
 
 
                                               4000.2
 
                                               Filed April 22, 1992
 
                                               WALTER R. McMANUS, JR.
 
 
 
                  BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            CATHY JO HELMLE,              :
 
                                          :
 
                 Claimant,                :         File No. 918759
 
                                          :
 
            vs.                           :      A R B I T R A T I O N
 
                                          :
 
            BEATRICE CHEESE, INC.,        :         D E C I S I O N
 
                                          :
 
                 Employer,                :
 
                 Self-Insured,            :
 
                 Defendant.               :
 
            ____________________________________________________________
 
            
 
            4000.2
 
            Claimant was awarded 50 percent penalty benefits (1) for the 
 
            premature termination of temporary disability benefits and, 
 
            (2) also for delay in the commencement of permanent 
 
            disability benefits.
 
            Employer and its claim representative terminated temporary 
 
            benefits before they had any restrictions from the doctor or 
 
            any indication claimant could return to work.  Subsequently, 
 
            defendant obtained restrictions and purportedly offered 
 
            claimant a job within these restrictions; however, when 
 
            claimant called her doctor, the doctor made it clear to 
 
            defendant that claimant was not released to return to work.  
 
            Furthermore, the purported jobs within the restrictions were 
 
            not in fact within the restrictions imposed by the doctor.  
 
            The claim representative did not give a thirty-day written 
 
            (Auxier) notice as required by Iowa Code section 86.13(2).
 
            Defendant was not diligent in obtaining an impairment rating 
 
            at the end of healing period and was assessed penalty 
 
            benefits for not beginning permanent partial disability 
 
            benefits at the end of healing period without an impairment 
 
            rating when defendant knew there definitely was permanent 
 
            impairment but failed to pay it.
 
            Defendant was not entitled to an exemption from penalty 
 
            benefits because of an overpayment of temporary disability 
 
            benefits.  When employer failed to pay and the employee 
 
            failed to receive the regular, systematic temporary and 
 
            permanent disability benefits envisioned by the legislature 
 
            without just cause, then employer became liable for and 
 
            claimant became entitled to penalty benefits and defendant 
 
            is not entitled to an exemption for the overpayment of 
 
            weekly benefits brought about by their own miscalculation.
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                1802; 3800
 
                                                Filed November 27, 1991
 
                                                MICHAEL G. TRIER
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                      
 
            CATHY JO HELMLE,    
 
                      
 
                 Claimant,                      File No. 918759
 
                      
 
            vs.                              A R B I T R A T I O N
 
                      
 
            BEATRICE CHEESE, INC.,             D E C I S I O N
 
                      
 
                 Employer, 
 
                 Self-Insured,  
 
                 Defendant.     
 
            ____________________________________________________________
 
            
 
            1802
 
            Where the employer did not offer suitable work to the 
 
            employee prior to the time the claimant actually returned to 
 
            work and the employee's recuperation was continuing, the 
 
            healing period was held not to terminate until the actual 
 
            return to work.  The employer has the burden of offering 
 
            suitable employment; it is not up to the claimant to request 
 
            suitable employment from the employer prior to the time that 
 
            the employee has received a release to return to work from 
 
            the authorized physician.
 
            
 
            3800
 
            Interest awarded on permanent partial disability from the 
 
            end of the healing period, even though there was not a 
 
            rating.  A very substantial degree of permanent partial 
 
            disability was obvious and the lack of a rating was held not 
 
            to excuse timely payment.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            LISA A. KRIEGEL JOHNSON,      :
 
                                          :
 
                 Claimant,                :
 
                                          :      File Nos. 943939
 
            vs.                           :                918816
 
                                          :
 
            WAL-MART,                     :
 
                                          :     A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            NATIONAL UNION FIRE           :
 
            INSURANCE COMPANY,            :
 
                                          :
 
                 Insurance Carrier,       :
 
                                          :
 
            and                           :
 
                                          :
 
            SECOND INJURY FUND OF IOWA,   :
 
                                          :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 This case came on for hearing on January 21, 1992, in 
 
            Des Moines, Iowa.  This is a proceeding in arbitration 
 
            wherein claimant seeks compensation for permanent partial 
 
            disability benefits as a result of alleged injuries on May 
 
            3, 1989 and February 22, 1990.  The record in the proceeding 
 
            consists of the testimony of the claimant, claimant's 
 
            husband, Laura Blankenfeld, Tom Whitaker, Stephen Vorwerk; 
 
            claimant's exhibits 1 through 3, 5 through 14, and 16 
 
            through 24; and, defendants' exhibits 1 through 9.
 
            
 
                                      issues
 
            
 
                 The issues for resolution regarding both cases are:
 
            
 
                 1.  Whether claimant's injuries arose out of and in the 
 
            course of her employment;
 
            
 
                 2.  Whether there is causal connection as to claimant's 
 
            alleged disability and the alleged injuries; and,
 
            
 
                 3.  The extent of claimant's permanent disability and 
 
            entitlement to disability benefits.
 
            
 
                 An additional issue regarding file No. 943239, the 
 
            February 22, 1990 alleged injury, is whether the Second 
 
            Injury Fund is liable.
 
            
 
                                 findings of fact
 
            
 
                 The undersigned deputy, having heard the testimony and 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            considered all the evidence, finds that:
 
            
 
                 Claimant is a 20-year-old high school graduate who has 
 
            had no other formal education.  Prior to beginning work for 
 
            defendant employer on April 4, 1988, at age 17, as a part-
 
            time worker, claimant worked part-time at a restaurant and 
 
            Hardee's.  Claimant contends she cannot do these jobs today 
 
            because she cannot lift her arms over her shoulders and 
 
            those jobs require that ability and body function.
 
            
 
                 Claimant testified she had no shoulder, arms, upper 
 
            extremities, back, neck or chest problems or any other 
 
            problems prior to May 3, 1989, and had no problems as to her 
 
            left shoulder prior to February 22, 1990.
 
            
 
                 Claimant described her duties at Wal-Mart while she was 
 
            working there.
 
            
 
                 Claimant testified that on May 3, 1989, she was working 
 
            in the receiving department of Wal-Mart when a box was 
 
            knocked off from the loft.  She said that as she went to 
 
            throw it back to the loft, her right shoulder went out and 
 
            popped.  Her arm started hurting and turning blue.  She 
 
            estimated the box weighed from 5 to 10 pounds.  Claimant 
 
            filed a report (Claimant's Exhibit 24).  She said her mother 
 
            had to finish filling it out because her hand was swollen 
 
            and she could not write.
 
            
 
                 Claimant described her treatment which involved 
 
            physical therapy.  She continued to have problems and could 
 
            not return to work.  On August 16, 1989, she had a 
 
            Capsulorrhaphy, posterior right shoulder (Cl. Ex. 1; Dep. 
 
            Ex. 1, page 8).  Claimant indicated that after this surgery, 
 
            her arm no longer turned purple nor was there tingling until 
 
            November 1989.  Claimant said she was doing exercises at the 
 
            hospital under the direction of a physical therapist when 
 
            her shoulder started popping out.
 
            
 
                 Claimant related various instances when she was in the 
 
            store shopping before she returned to work in which she felt 
 
            she was harassed or followed and watched by the employees.  
 
            She related that after she returned to work at defendant 
 
            employer's on January 4, 1990, after being off work since 
 
            May 3, 1989, she felt she was harassed and asked to do 
 
            things contrary to her restrictions which at that time 
 
            included a 5 pound weight limit.  Claimant was not very 
 
            specific as to certain individuals but seemed to be a little 
 
            more specific than when she gave her deposition on June 25, 
 
            1991 (Defendants' Exhibit 7).
 
            
 
                 On February 22, 1990, claimant said she was directed by 
 
            a Mr. Thompson, a supervisor, to return an article and get 
 
            another shelf which she indicated weighed 8 to 10 pounds.  
 
            Mr. Vorwerk testified that shelf weighed approximately 3 
 
            pounds.  Claimant was trying to insert the last end of this 
 
            shelf and was having difficulty when her left arm and 
 
            shoulder popped out.  She said her arm and hand swelled.  
 
            She related nothing like this ever happened before except to 
 
            her right shoulder.
 
            
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
                 Claimant removed her jacket to expose her right and 
 
            left shoulders.  The undersigned noticed the appearance of 
 
            her shoulder bone moving in and out leaving a depression in 
 
            the shoulder as claimant moved her arm at her side back and 
 
            forth.  Claimant related it felt to her as if the shoulder 
 
            pulled out of the socket and then returned, i.e, popping in 
 
            and out.  It appears to the undersigned as if the bone was 
 
            going in and out of something, mostly likely a socket.  It 
 
            was doing this more on the right than the left as far as a 
 
            noticeable depression in claimant's arm.
 
            
 
                 Claimant indicated there is nothing she can do to 
 
            prevent the shoulder from going out and if it does, she 
 
            cannot lift.
 
            
 
                 Claimant was eventually referred by Michael M. Durkee, 
 
            M.D., to James V. Nepola at the University of Iowa, for a 
 
            second opinion.  Claimant indicated the doctor said that 
 
            claimant should look for work somewhere else.  More surgery 
 
            was not recommended.
 
            
 
                 Claimant sent a letter to defendant employer around 
 
            April 1990 regarding her alleged harassment.  She and 
 
            defendant employer tried to work things out.  After meeting 
 
            with the supervisor, things were apparently okay for awhile, 
 
            but claimant said the harassment started up again.  Claimant 
 
            wrote a letter on May 29, 1990, giving the employer two 
 
            weeks notice that she was going to quit her job (Def. Ex. 8, 
 
            p. 15).  Claimant was making approximately $4 per hour at 
 
            the time.
 
            
 
                 Claimant began working for DeLong's Sportswear on 
 
            September 5, 1990, cutting, rolling, making patterns, etc., 
 
            in the computer department.
 
            
 
                 Claimant was referred to her job application with 
 
            DeLong's in which she did not list Wal-Mart as a former 
 
            employer (Def. Ex. 9, p. 2A).  She explained that she knew 
 
            that if DeLong's found out she had a workers' compensation 
 
            injury, they would not have hired her and she needed a job.  
 
            She said she has since told DeLong's of her workers' 
 
            compensation injury.
 
            
 
                 Claimant left DeLong's in September 1991 to move to Des 
 
            Moines with her husband who had a new job.  Claimant 
 
            returned to Grinnell and began working at DeLong's again in 
 
            November 1991 at the same computer department job in which 
 
            she previously worked.  She said this job currently complies 
 
            with her restrictions as full-time work.  She is making 
 
            $5.36 per hour.
 
            
 
                 Claimant indicated she sought work at a couple of 
 
            places between September 1991 and November 1991, but was not 
 
            hired.  She indicated one place, Kelly Services, threw away 
 
            her application when they heard she has a workers' 
 
            compensation injury.  She said she personally witnessed 
 
            this.
 
            
 
                 Claimant mentioned the various household duties or 
 
            other activities she cannot do now or is limited in doing 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            because of her May 1989 and February 1990 injuries.  
 
            Claimant said she is emotionally upset and grouchy if her 
 
            shoulder hurts.  Claimant acknowledged, on 
 
            cross-examination, that prior to working at DeLong's, she 
 
            never had a full-time job including working at Wal-Mart.  
 
            Claimant agreed that defendant employer put her at jobs 
 
            within her restrictions when she returned to work but other 
 
            employees would give her jobs additionally that would be 
 
            contrary to her restrictions.
 
            
 
                 Claimant agreed she missed no work as a result of her 
 
            February 22, 1990 injury.  Claimant is not claiming any more 
 
            healing period than what she has already been paid in 
 
            reference to her May 3, 1989 injury.  Claimant said her 
 
            right shoulder was worse than her left and she had no 
 
            surgery, hospitalization or physical therapy as to her left 
 
            shoulder.
 
            
 
                 Claimant testified she was happy with her Wal-Mart job 
 
            even after the injury.  She thought there were jobs there 
 
            she could do if there was no harassment and they did not 
 
            violate her restrictions.
 
            
 
                 Ted Johnson, claimant's husband, has known claimant 14 
 
            1/2 years since their young school days.  They grew up 
 
            together.  He was not present when any of claimant's other 
 
            witnesses testified.  He said claimant had no upper 
 
            extremity, back or shoulder problems before May 3, 1989, and 
 
            did many activities which she cannot do now and that she is 
 
            limited in what she can do.  He enumerated several things.
 
            
 
                 Laura Blankenfeld was subpoenaed to testify.  She 
 
            related claimant was a good worker.  She did not know of any 
 
            preexisting conditions that claimant had and that claimant 
 
            never complained of pain in her neck, arms or anywhere else.  
 
            It was obvious she was referring to a period prior to May 3, 
 
            1989.  She said she noticed no preexisting condition that 
 
            made it hard for claimant to use her left or right arm or 
 
            exhibit any neck or arm pain or any other pain.  She 
 
            enumerated the many duties claimant had, some of which 
 
            involved lifting various items weighing up to 50 pounds at a 
 
            time.  She knows of no preexisting medical or injury 
 
            condition claimant has.
 
            
 
                 Tom Whitaker has worked for DeLong's Sportswear for the 
 
            last five and one-half years.  He knows claimant through his 
 
            job.  He had contact with claimant at work approximately 20 
 
            times a day between September 1990 and September 1991.  He 
 
            said he never saw claimant lift anything substantial.  He 
 
            said 90 percent of her job is sitting, punching in numbers 
 
            into a computer.  He is the cutting room supervisor and he 
 
            gets his work from the computer room where claimant works.  
 
            He is no longer on the same shift as claimant since her 
 
            return to work in November 1991.  He related claimant is a 
 
            hard worker and never complained to him about doing work.
 
            
 
                 Stephen Vorwerk, defendant employer's store manager 
 
            since October 1987, knows claimant.  He said she returned to 
 
            work part-time in January 1990 with restrictions and 
 
            claimant was given a job.  He had the doctor's notes as to 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            her restrictions.  He explained what he understood happened 
 
            on February 22, 1990, which was consistent with what has 
 
            been testified to earlier.  He said claimant's work 
 
            performance was very satisfactory.  He indicated he 
 
            investigated and asked for names from claimant in reference 
 
            to her alleged harassment.  He said claimant gave him no 
 
            names.  He emphasized that if claimant had given him names, 
 
            he would have followed through.  He testified that when 
 
            claimant left Wal-Mart in May of 1990, claimant never told 
 
            him she left because of her job or work restrictions.  
 
            Defendants' exhibit 8, pages 15 and 16, would seem to 
 
            indicate that Mr. Vorwerk knew or at least was warned of 
 
            certain problems which occurred at work.  It appears from an 
 
            April 1990 letter that he got together with claimant and 
 
            things worked out for awhile.  Mr. Vorwerk said he has seen 
 
            claimant in Wal-Mart recently shopping and she was carrying 
 
            her child in both hands or pushing a cart.  He said that 
 
            there are jobs claimant can do at Wal-Mart notwithstanding 
 
            her two injuries.  He acknowledged that no one knew of any 
 
            problem claimant had prior to May 3, 1989.
 
            
 
                 Jerome A. Wehr, M.D., a family physician, testified 
 
            through his deposition on June 4, 1991, that his first visit 
 
            with claimant was May 4, 1989, as defendant employer's 
 
            workers' compensation doctor (Cl. Ex. 5).  His last visit 
 
            with claimant was May 14, 1990 (Cl. Ex, 5, Dep. Ex. 2, p. 2)
 
            
 
                 His diagnosis on May 4, 1989 was right shoulder injury 
 
            with dislocation.  He said claimant could dislocate the 
 
            shoulder with minimal act of range of motion (Cl. Ex. 5, p. 
 
            7; Dep. Ex. 2, p. 1).  He also indicated there was 
 
            discoloration and coldness (cyanosis).  He then immediately 
 
            referred claimant to an orthopedic specialist, Dr. Reschly.
 
            
 
                 Dr. Wehr received and reviewed several doctors' medical 
 
            records prior to his deposition (Cl. Ex. 5, p. 9).  He said 
 
            based on claimant's history given, he felt her condition was 
 
            related to the May 3, 1989 injury (Cl. Ex. 5, p. 10).  Dr. 
 
            Wehr indicated that claimant had a 5 pound weight 
 
            restriction and was to keep her arms below shoulder height 
 
            when she went back to work after her May 3, 1989 shoulder 
 
            injury.  These restrictions were still in existence on 
 
            February 22, 1990 (Cl. Ex. 5, p. 19).
 
            
 
                 He said claimant was complaining of her left shoulder 
 
            hurting when he examined her on February 24, 1990, and she 
 
            indicated she could feel her shoulder dislocate.  Dr. Wehr 
 
            said he could feel the shoulder subluxing and then it would 
 
            pop back in place (Cl. Ex. 5, p. 20).  Dr. Wehr wasn't clear 
 
            whether claimant was subluxing or dislocating.  He 
 
            acknowledged that on the doctor's report portion of Wal-Mart 
 
            medical form for the claimant, he diagnosed claimant as 
 
            having a left shoulder dislocation (Cl. Ex. 5, p. 23).  His 
 
            uncertainty and claimant's prior right shoulder problem is 
 
            why he referred claimant back to Dr. Nepola.
 
            
 
                 Of interest is rehabilitation consultant Cecelia 
 
            O'Brien's comment to the doctor which the undersigned finds 
 
            baseless under the records.  This tends to taint the 
 
            doctor's relationship with the claimant, and in this case he 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            turned the referral over to her.  The doctor never cared or 
 
            treated the claimant thereafter (Cl. Ex. 5, p. 32, 33).
 
            
 
                 Dr. Wehr said he would defer to Dr. Durkee's diagnosis 
 
            of claimant's right shoulder as subluxation and not 
 
            dislocating of claimant's right shoulder since Dr. Durkee 
 
            was an orthopedic surgeon (Cl. Ex. 5, p. 34).  Dr. Wehr said 
 
            the difference between subluxation and dislocation is that 
 
            dislocation is more severe and involves further movement of 
 
            the head of the humerus out of or beyond the socket and 
 
            perhaps tearing the capsule or strong structures around the 
 
            joint and subluxation is where the head of the humerus can 
 
            be partially moved out and then easily reduced back into the 
 
            joint (Cl. Ex. 5, p. 40).
 
            
 
                 Dr. Wehr said when he saw the claimant on May 14, 1990, 
 
            claimant was not having any problems with the joints 
 
            subluxing but he did not examine her.  She was on pain 
 
            medication (Cl. Ex. 5, pp. 43-45, 58, 59).  The doctor did 
 
            not recall claimant telling him she was somewhat discouraged 
 
            by how her employer saw her work restriction (Cl. Ex. 5, p. 
 
            50).  Dr. Wehr said he knew claimant wanted to return to 
 
            work whether it was Wal-Mart or elsewhere.  He also 
 
            acknowledged Dr. Durkee was telling claimant not to return 
 
            to the same type of work and that he would not contradict an 
 
            orthopedic surgeon's opinion (Cl. Ex. 5, pp. 60-61).  Dr. 
 
            Wehr's notes are attached as deposition exhibit 2, page 1 
 
            through 5, and there is no need to set out their contents as 
 
            the doctor referred to these notes in his testimony.
 
            
 
                 Richard F. Neiman, M.D., a neurologist, testified 
 
            through his deposition on November 13, 1991 (Cl. Ex. 8).  He 
 
            examined claimant on September 25, 1991.  Although he had 
 
            records of all the other doctors, he did a complete physical 
 
            examination outside the pelvic examination.
 
            
 
                 He said the neurological exam was normal but claimant 
 
            had posterior subluxation as to the right shoulder and 
 
            minimally as to the left (Cl. Ex. 8, p. 12).  Claimant had 
 
            hyperlaxity as far as numerous joints allowing them to be 
 
            stretched out beyond the normal range of motion.  Dr. Neiman 
 
            used the description "dislocation of the shoulder" more than 
 
            subluxation.  It is obvious he felt claimant's work injury 
 
            of May 3, 1989 was to the body as a whole (Cl. Ex. 8, pp. 
 
            13, 14 and 15).  He felt there was a preexisting 
 
            predisposition due to hyperlaxity.
 
            
 
                 Dr. Neiman opined a 7.2 percent whole body functional 
 
            impairment.  He felt claimant will have difficulty using 
 
            either arm above the shoulder level.  He felt claimant 
 
            capable of light duty as long as her arms are held down to 
 
            the side.  He said claimant was not to do heavy type lifting 
 
            or activity that brings arms beyond shoulder level.  He 
 
            suggested 15 pounds lifting limit but not above shoulder 
 
            level; otherwise, it could cause subluxation (Cl. Ex. 8, p. 
 
            18).  Dr. Neiman said claimant's left is not as bad as her 
 
            right and wasn't quite as certain as to whether the left 
 
            goes into the body as a whole.  Taking his testimony as a 
 
            whole, it appears the doctor believes claimant's left 
 
            shoulder injury is also into claimant's body as a whole.
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            
 
                 Dr. Neiman opined a 12 percent permanent impairment to 
 
            claimant's left shoulder and converted it to 3 to 4 percent 
 
            body as a whole.  He then opined a combined body as a whole 
 
            impairment of 10 to 11 percent (Cl. Ex. 8, pp. 22-24, Dep. 
 
            3).  Again, it is obvious that even though the doctor 
 
            converted upper extremity impairment to the body as a whole, 
 
            the medical evidence is clear that the doctor believes 
 
            claimant has a body as a whole impairment.  If not, then of 
 
            course the conversion would not be proper as such.  In other 
 
            words if, in fact, you had a scheduled member under the 
 
            facts, then it would not be proper to convert it to a body 
 
            as a whole.
 
            
 
                 Dr. Neiman said claimant's limitation for the left arm 
 
            should be the same as the right (Cl. Ex. 8, p. 24).  He 
 
            further said in claimant's case the difference between 
 
            subluxation and dislocation may be semantic (Cl. Ex. 8, p. 
 
            26).  Dr. Neiman said claimant's shoulder capsule has been 
 
            stretched beyond normal range so that only minor activity 
 
            causes the shoulder to drop causing pain and discomfort 
 
            limiting what claimant can do.  This capsule is composed of 
 
            ligaments that comprise the rotator cuff and those ligaments 
 
            making up the rotator cuff attach the clavicle and scapular.  
 
            He said this condition results in nerve irritation which 
 
            causes pain in the neck and across the top of the shoulders 
 
            (Cl. Ex. 8, pp. 31-33, 35).
 
            
 
                 Michael W. Durkee, M.D., an orthopedic surgeon, first 
 
            saw claimant on May 30, 1989, after her alleged May 3, 1989 
 
            injury.  Claimant felt her right shoulder was popping out of 
 
            place.  He discussed his treatment and claimant's continuing 
 
            problems with her shoulder slipping out of joint.  Because 
 
            of the instability of her shoulder, Dr. Durkee performed 
 
            surgery on claimant on August 16, 1989 (Cl. Ex. 1, p. 7).  
 
            Dr. Durkee was not aware of any subluxation problems 
 
            claimant was having with her right shoulder before May 3, 
 
            1989.  He described claimant's surgery and shoulder joint 
 
            (Cl. Ex. 1, p. 9).  He mentioned the rotator as being 
 
            involved as to the attachments of the muscles, tendons, etc 
 
            (Cl. Ex. 1, p. 13).  Dr. Durkee said claimant was getting 
 
            along very well until December 1989 when the shoulder began 
 
            to slip out of joint.  Claimant had been in therapy and 
 
            doing exercises approximately ten days before.  Dr. Durkee 
 
            then requested claimant to get another opinion since the 
 
            surgery had failed.  Claimant was referred to Dr. Nepola of 
 
            the University of Iowa. He said that they both agreed that 
 
            since claimant's surgery wasn't successful that chance of 
 
            another surgery becoming successful is not good.  Dr. Durkee 
 
            last examined claimant on November 28, 1990.  Claimant had 
 
            told him of left shoulder problems also.  Dr. Durkee 
 
            indicated claimant can't do much when the shoulder subluxes 
 
            out of joint and it is uncomfortable and hurts and that it 
 
            begins to slip out of joint with very little forward flexion 
 
            (Jt. Ex. 1, p. 19).
 
            
 
                 Dr. Durkee opined claimant has a 9 percent permanent 
 
            impairment of the body as a whole, a 15 percent impairment 
 
            of her upper extremity.  It is obvious from the doctor's 
 
            testimony that even though he refers to claimant's upper 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            extremity, claimant has a body as a whole injury.
 
            
 
                 Dr. Durkee related claimant's left shoulder problems 
 
            are similar to her right except it takes a little more force 
 
            to sublux the left out of joint. The doctor opined a 10 
 
            percent permanent impairment to claimant's left upper 
 
            extremity and converted that to 6 percent permanent 
 
            impairment to claimant's body as a whole (Cl. Ex. 1, p. 23).  
 
            As mentioned regarding Dr. Neiman, the undersigned believes 
 
            without question that the doctor felt claimant had a body as 
 
            a whole injury and that the shoulder injury was to the body 
 
            as a whole and that he is not just converting an upper 
 
            extremity injury that actually is only in the upper 
 
            extremity to the body as a whole under the charts.
 
            
 
                 Dr. Durkee did not expect any significant changes in 
 
            claimant's left or right shoulder condition in the future 
 
            and that surgery will not be necessary (Cl. Ex. 1, p. 14).  
 
            Dr. Durkee said he and Dr. Nepola felt claimant must live 
 
            with the subluxation in her right shoulder as the only other 
 
            alternative was surgery.  He dismissed an alternative 
 
            surgery which has a low success rate compared to the surgery 
 
            claimant already had, which surgery wasn't successful, so 
 
            this was one of the reasons more surgery wasn't recommended 
 
            (Cl. Ex. 1, pp. 24, 28-30).  Dr. Durkee's notes reflect 
 
            nothing as to claimant's left shoulder from the first visit 
 
            on May 30, 1989 to August 1990.  His notes appear to 
 
            indicate that nothing was said as to claimant's left 
 
            shoulder until claimant's last visit with Dr. Durkee on 
 
            November 28, 1990.  Nothing was said of a February 22, 1990 
 
            injury at Wal-Mart (Cl. Ex. 1, pp. 31-39).  At the November 
 
            28, 1990 appointment, claimant indicated her left shoulder 
 
            was currently asymptomatic.  He placed no restrictions on 
 
            claimant's left upper extremity.  The doctor did indicate at 
 
            one time that he may not have mentioned the left shoulder 
 
            complaints since the tension and severity was to the right 
 
            (Cl. Ex. 1, pp. 31).  His notes do not reflect back pain but 
 
            he recalled a complaint of neck pain that may have been a 
 
            part of the shoulder problem (Cl. Ex. 1, p. 42).  The doctor 
 
            acknowledged his November 28, 1990 notes do not reflect any 
 
            pain complaints (Cl. Ex. 1, p. 43).
 
            
 
                 The doctor did seem to indicate that pain is part of 
 
            the right shoulder problem and he would not necessarily 
 
            specifically mention it.  He said his rating is based mostly 
 
            on the instability of her shoulder (Cl. Ex. 1, p. 47).
 
            
 
                 Dr. Durkee acknowledged he never treated any injury to 
 
            claimant's left shoulder as far as reflected in his notes 
 
            (Cl. Ex. 1, p. 49).
 
            
 
                 The doctor thought one of the reasons claimant's 
 
            surgery failed was because she is loose jointed (Cl. Ex. 1, 
 
            p. 53).  When her shoulder slips out of the joint, the pain 
 
            becomes the limiting factor.
 
            
 
                 The doctor indicated there is pain in the neck, across 
 
            the shoulder and the chest when the shoulder is out of joint 
 
            (Cl. Ex. 1, pp. 54,54).  He reiterated that claimant has a 
 
            10 pound weight limit and no lifting above mid-chest level 
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            and that there are no restrictions on claimant's left 
 
            shoulder (Cl. Ex. 1, p. 55).
 
            
 
                 On August 29, 1990, the doctor opined a 15 percent 
 
            permanent impairment to claimant's right shoulder as per the 
 
            Orthopedic Surgeon's Manual (Cl. Ex. 1; Dep. Ex. 2, p. 5).  
 
            He explained earlier in his deposition that his 10 percent 
 
            rating in May of 1990 was an estimate.
 
            
 
                 Dr. Durkee wrote on December 21, 1990, that claimant 
 
            had a 10 percent permanent impairment under the Orthopedic 
 
            Surgeon's Manual and the AMA Guides as to claimant's left 
 
            shoulder and that it was unstable.  However, he indicated it 
 
            takes a lot more force to sublux the shoulder on this left 
 
            side posteriorly (C. Ex. 1; Dep. Ex. 3).
 
            
 
                 Defendants' exhibit 2 is a functional capacity test 
 
            done in June 1990.  It would appear to the undersigned that 
 
            those recommendations as to weight are inconsistent with the 
 
            doctors in certain specifics.  The undersigned believes the 
 
            doctors' restrictions are more reliable.
 
            
 
                 Defendants' exhibit 8 reflects claimant was a good 
 
            worker.  Defendants' exhibit 8, page 15, dated May 29, 1990, 
 
            reflects claimant quit Wal-Mart due to stress, headaches and 
 
            shoulder problems.  In April 1990, she attempted to quit but 
 
            was convinced to work things out (Def. Ex. 8, p. 16).  She 
 
            did have a meeting with Stephen Volwerk, the store manager, 
 
            and things appeared to work out for awhile.  She contends 
 
            eventually thereafter the employer and employees (including 
 
            her supervisor) complained of her work limitation.
 
            
 
                 The defendants raised the issue that claimant's two 
 
            alleged injuries did not arise out of and in the course of 
 
            her employment.  The undersigned finds that the overwhelming 
 
            weight of evidence and testimony indicates that claimant did 
 
            incur an injury to her right shoulder on May 3, 1989, and an 
 
            injury to her left shoulder on February 22, 1990, while 
 
            working.  Although there is evidence that claimant may have 
 
            laxed muscles, tendons and joints that would make her 
 
            predisposed to injuries that eventually occurred, there is 
 
            no evidence that prior to those respective dates claimant 
 
            was having problems with the particular shoulder involved 
 
            therein.  The undersigned finds that claimant did incur an 
 
            injury to her right shoulder on May 3, 1989, that arose out 
 
            of and in the course of her employment and that this injury 
 
            did in fact injure her body as a whole, and that injury to 
 
            her shoulder did involve claimant's torso.  The undersigned 
 
            further finds that claimant incurred an injury that arose 
 
            out of and in the course of her employment on February 22, 
 
            1990, to her left shoulder and that that shoulder injury 
 
            also affected and resulted in a body as a whole injury to 
 
            claimant.  The undersigned believes this is supported by not 
 
            only the neurologist's testimony but also the orthopedic 
 
            surgeon.
 
            
 
                 The next question is the extent of claimant's permanent 
 
            partial disability.  Dr. Durkee and Dr. Nepola, orthopedic 
 
            specialists, determined that surgery should not be done.  
 
            The first surgery to claimant's right shoulder was 
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
            unsuccessful.  There was no reason for the doctors to 
 
            conclude further surgery or alternative surgery would be 
 
            anymore successful and odds are it would be less successful 
 
            based on the past experience with this claimant.  Dr. Durkee 
 
            opined that claimant had a 9 percent impairment to her body 
 
            as a whole due to the injury to her right shoulder and 6 
 
            percent impairment to her body as a whole as a result of the 
 
            injury to claimant's left shoulder.  As indicated earlier, 
 
            the undersigned believes the overwhelming medical evidence 
 
            shows that these injuries affected claimant's body as a 
 
            whole.  Dr. Nepola from the University of Iowa did not 
 
            render his own impairments but it is obvious he worked in 
 
            coordination with Dr. Durkee.  The undersigned believes that 
 
            Dr. Durkee's figures would be supported by Dr. Nepola.
 
            
 
                 Dr. Neiman opined that claimant had a 7.2 percent 
 
            impairment to her body as a whole because of her right 
 
            shoulder injury on May 3, 1989.  He opined claimant had a 3 
 
            to 4 percent impairment to her body as a whole as a result 
 
            of her left shoulder injury on February 22, 1990.
 
            
 
                 There was testimony as to whether claimant had 
 
            subluxation or dislocation.  One particular doctor indicated 
 
            it was a matter of semantics.  It appears from Dr. Durkee, 
 
            the orthopedic surgeon, that claimant's condition is a 
 
            subluxation in her shoulders and that isn't quite as bad as 
 
            a dislocation.  The undersigned noticed claimant's shoulder 
 
            bones popping out with little movement.  The undersigned 
 
            believes that the orthopedic surgeons' opinions are more 
 
            accurate and acceptable.  The undersigned finds that 
 
            claimant has a permanent impairment to her body as a whole 
 
            of 9 percent as a result of her May 3, 1989 right shoulder 
 
            injury and has a 6 percent body as a whole injury as a 
 
            result of her February 22, 1990 left shoulder injury.  The 
 
            undersigned finds that if claimant had a predisposed 
 
            condition that made her joints and tendons more laxed, this 
 
            was a condition not affecting claimant's work prior to her 
 
            respective injuries and that any preexisting condition was 
 
            substantially and materially aggravated, lighted up, and 
 
            worsened.
 
            
 
                 The undersigned does not find specifically that 
 
            claimant had a preexisting condition but is only mentioning 
 
            this because it does appear defendants are taking that 
 
            position.  In other words, it would make no difference in 
 
            this decision as to whether there is or isn't a finding of 
 
            her preexisting condition as referred to herein.
 
            
 
                 The claimant is now working and making more money than 
 
            at the time of her injuries but not much more.  Her current 
 
            job is the first full-time job she has had.  It would appear 
 
            the defendants were attempting to attack claimant's 
 
            credibility, particularly where she did not place on her 
 
            application to work at DeLong's that she had previously 
 
            worked for Wal-Mart, and also that she downplayed the extent 
 
            of her injuries or physical condition.
 
            
 
                 Although the undersigned does not condone falsifying in 
 
            reports, the undersigned can also understand with the way 
 
            the world, job market and employer's attitude exists, that 
 

 
            
 
            Page  11
 
            
 
            
 
            
 
            
 
            claimant could be foreclosed from work if she related her 
 
            condition.  This is one example in which the odds most 
 
            likely are that she would not have been hired had she 
 
            properly filled out the application and that since she has 
 
            been hired, she has been able to do the work and apparently 
 
            has had no problems performing the job.  Oftentimes, the 
 
            claimants are in a "catch 22" situation because of the 
 
            attitude of employers.  The undersigned has visually seen 
 
            claimant's bones popping in and out and believes that she 
 
            does, as the doctor say, have a permanent impairment to the 
 
            body as a whole.
 
            
 
                 Claimant has body as a whole injuries resulting from 
 
            left and right shoulder injuries at work on February 22, 
 
            1990 and May 3, 1989, respectively.  Her restrictions 
 
            regarding her right shoulder is not to lift over 10 pounds, 
 
            but no lifting above mid-chest level.  This is a substantial 
 
            restriction, especially considering this claimant's age, 
 
            work history, education, intelligence, etc.  She is 
 
            foreclosed from many jobs to which she would be able to 
 
            perform or in which she could only get employment based on 
 
            her work history education, intelligence, etc.  She is 
 
            making more money now than at the time of her injuries but 
 
            that isn't saying much.  Her future doesn't look bright.  
 
            Because of these injuries, claimant has a considerable loss 
 
            of earning capacity.
 
            
 
                 Taking into consideration all of those criteria, some 
 
            of which have been specifically alluded to above that are 
 
            considered in determining one's industrial disability, the 
 
            undersigned finds claimant has a 30 percent industrial 
 
            disability as to her May 3, 1989 right shoulder body as a 
 
            whole work injury and a 12 percent industrial disability as 
 
            to her February 22, 1990 left shoulder body as a whole work 
 
            injury.
 
            
 
                 The undersigned finds the Second Injury Fund is not 
 
            liable as to the February 22, 1990 injury as claimant did 
 
            not incur an injury to a scheduled member, as provided and 
 
            required in Iowa Code section 85.64.
 
            
 
                                conclusions of law
 
            
 
                 Claimant has the burden of proving by a preponderance 
 
            of the evidence that she received injuries on May 3, 1989 
 
            and February 22, 1990 which arose out of and in the course 
 
            of her employment. McDowell v. Town of Clarksville, 241 
 
            N.W.2d 904 (Iowa 1976); Musselman v. Central Telephone Co., 
 
            261 Iowa 352, 154 N.W.2d 128 (1967). 
 
            
 
                 An employee is entitled to compensation for any and all 
 
            personal injuries which arise out of and in the course of 
 
            the employment.  Section 85.3(1).
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injuries of May 3, 
 
            1989 and February 22, 1990 are causally related to the 
 
            disability on which she now bases her claim.  Bodish v. 
 
            Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).  Lindahl 
 
            v. L. O. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945).  A 
 

 
            
 
            Page  12
 
            
 
            
 
            
 
            
 
            possibility is insufficient; a probability is necessary.  
 
            Burt v. John Deere Waterloo Tractor Works, 247 Iowa 691, 
 
            73 N.W.2d 732 (1955).  The question of causal connection is 
 
            essentially within the domain of expert testimony.  Bradshaw 
 
            v. Iowa Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167 
 
            (1960). 
 
            
 
                 However, expert medical evidence must be considered 
 
            with all other evidence introduced bearing on the causal 
 
            connection.  Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion 
 
            of experts need not be couched in definite, positive or 
 
            unequivocal language.  Sondag v. Ferris Hardware, 220 N.W.2d 
 
            903 (Iowa 1974).  However, the expert opinion may be 
 
            accepted or rejected, in whole or in part, by the trier of 
 
            fact.  Id. at 907.  Further, the weight to be given to such 
 
            an opinion is for the finder of fact, and that may be 
 
            affected by the completeness of the premise given the expert 
 
            and other surrounding circumstances.  Bodish, 257 Iowa 516, 
 
            133 N.W.2d 867.  See also Musselman, 261 Iowa 352, 154 
 
            N.W.2d 128..
 
            
 
                 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).
 
            
 
                 An employer takes an employee subject to any active or 
 
            dormant health impairments, and a work connected injury 
 
            which more than slightly aggravates the condition is 
 
            considered to be a personal injury.  Ziegler v. United 
 
            States Gypsum Co., 252 Iowa 613, 620, 106 N.W.2d 591 (1960), 
 
            and cases cited.
 
            
 
                 If claimant has an impairment to the body as a whole, 
 
            an industrial disability has been sustained.  Industrial 
 
            disability was defined in Diederich v. Tri-City Railway Co., 
 
            219 Iowa 587, 593, 258 N.W.2d 899, 902 (1935) as follows: 
 
            "It is therefore plain that the legislature intended the 
 
            term `disability' to mean `industrial disability' or loss of 
 
            earning capacity and not a mere `functional disability' to 
 
            be computed in the terms of percentages of the total 
 
            physical and mental ability of a normal man."
 
            
 
                 The opinion of the supreme court in Olson v. Goodyear 
 
            Service Stores, 255 Iowa 1112, 1121, 125 N.W.2d 251 (1963), 
 
            cited with approval a decision of the industrial 
 
            commissioner for the following proposition:
 
            
 
                    Disability * * * as defined by the Compensation 
 
                 Act means industrial disability, although 
 
                 functional disability is an element to be 
 
                 considered....In determining industrial 
 
                 disability, consideration may be given to the 
 
                 injured employee's age, education, qualifications, 
 

 
            
 
            Page  13
 
            
 
            
 
            
 
            
 
                 experience and his inability, because of the 
 
                 injury, to engage in employment for which he is 
 
                 fitted. * * * *
 
            
 
                 Before the second injury fund is triggered three 
 
            requirements must be met.  First, the employee must have 
 
            lost or lost the use of a hand, foot, leg or eye.  Second, 
 
            the employee must sustain another loss or loss of use of 
 
            another member or organ through a compensable injury.  
 
            Third, permanent disability must exist as to both the 
 
            initial injury and second injury.  See Allen v. The Second 
 
            Injury Fund, State of Iowa, Thirty-Fourth Biennial Report, 
 
            Iowa Industrial Commissioner 15 (1980); Ross v. Service 
 
            Master-Story Co., Inc., Thirty-Fourth Biennial Rep., Iowa 
 
            Indus. Comm'r 273 (1979).
 
            
 
                 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. Mich. Coal Company, 274 N.W.2d 
 
            300 (Iowa 1970), Second Injury Fund v. John Deere Component 
 
            Works, Iowa Supreme Court Case No. 88-399, filed February 
 
            22, 1989.
 
            
 
                 Apportionment of disability between a preexisting 
 
            condition and an injury is proper only when some 
 
            ascertainable portion of the ultimate industrial disability 
 
            existed independently before an employment-related 
 
            aggravation of disability occurred.  Bearce v. FMC Corp., 
 
            465 N.W.2d 531 (Iowa 1991); Varied Enterprises, Inc. v. 
 
            Sumner, 353 N.W.2d 407 (Iowa 1984).
 
            
 
                 The burden of showing that disability is attributable 
 
            to a preexisting condition is placed upon the defendant.  
 
            Where evidence to establish a proper apportionment is 
 
            absent, the defendant is responsible for the entire 
 
            disability that exists.  Bearce, 465 N.W.2d at 536-37; 
 
            Sumner, 353 N.W.2d at 410-11.
 
            
 
                 It is further concluded that:
 
            
 
                 Claimant incurred an injury on May 3, 1989 to her right 
 
            shoulder that arose out of and in the course of her 
 
            employment that caused a permanent impairment to her body as 
 
            a whole and a 10 pound lifting limit with no lifting above 
 
            the mid-chest level, and resulting in an unsuccessful 
 
            surgery.
 
            
 
                 Claimant's May 3, 1989 work injury caused her to incur 
 
            a 30 percent industrial disability with weekly benefits of 
 
            $68.39, commencing May 15, 1990.
 
            
 
                 Claimant incurred an injury on February 22, 1990 to her 
 
            left shoulder that arose out of and in the course of her 
 
            employment that caused a permanent impairment to her body as 
 
            a whole.
 
            
 
                 Claimant's February 22, 1990 work injury resulted in 
 
            claimant incurring a 12 percent industrial disability with 
 
            weekly benefits of $78.62, commencing on February 22, 1990.
 

 
            
 
            Page  14
 
            
 
            
 
            
 
            
 
            
 
                 The Second Injury Fund is not liable as to claimant's 
 
            February 22, 1990 work injury, file No. 943939.
 
            
 
                                      order
 
            
 
                 As to the May 3, 1989 injury:
 
            
 
                  Defendants shall pay claimant one hundred fifty (150) 
 
            weeks of permanent partial disability benefits at the weekly 
 
            rate of sixty-eight and 39/100 dollars ($68.39), beginning 
 
            May 15, 1990.
 
            
 
                 That defendants shall pay accrued weekly benefits in a 
 
            lump sum and shall receive credit against the award for 
 
            weekly benefits previously paid.  Defendants shall receive 
 
            credit for thirty-seven point five (37.5) weeks of permanent 
 
            partial disability benefits paid at the rate of sixty-eight 
 
            and 39/100 dollars ($68.39).
 
            
 
     
 
            
 
            
 
            Page  15
 
            
 
            
 
            
 
            
 
            As to the February 22, 1990 injury:
 
            
 
                 Defendants shall pay claimant sixty (60) weeks of 
 
            permanent partial disability benefits at the rate of 
 
            seventy-eight and 62/100 dollars ($78.62), beginning 
 
            February 22, 1990.
 
            
 
                 That defendants shall pay accrued weekly benefits in a 
 
            lump sum and shall receive credit against the award for 
 
            weekly benefits previously paid.  Defendants have paid 
 
            nothing as to this injury.
 
            
 
                 The Second Injury Fund is not liable to the claimant 
 
            for any benefits.
 
            
 
                 As to both files:
 
            
 
                 That defendants shall pay interest on benefits awarded 
 
            herein as set forth in Iowa Code section 85.30.
 
            
 
                 That defendants Wal-Mart and National Union Fire 
 
            Insurance Company shall pay the costs of this action, 
 
            pursuant to rule 343 IAC 4.33.  The Second Injury Fund is 
 
            not responsible for any costs.
 
            
 
                 That defendants shall file an activity report upon 
 
            payment of this award as required by this agency, pursuant 
 
            to rule 343 IAC 3.1.
 
            
 
                 Signed and filed this ____ day of February, 1992.
 
            
 
            
 
            
 
                                          ______________________________
 
                                          BERNARD J. O'MALLEY
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies to:
 
            
 
            Mr Paul J McAndrews Jr
 
            Attorney at Law
 
            122 S Linn St
 
            Iowa City IA 52240
 
            
 
            Mr Jeff M Margolin
 
            Attorney at Law
 
            Terrace Center  Ste 111
 
            2700 Grand Ave
 
            Des Moines IA 50312
 
            
 
            Mr Craig Kelinson
 
            Assistant Attorney General
 
            Hoover State Office Building
 
            Tort Claims
 
            LOCAL
 
            
 
            
 
                 
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            MARK S. HUMPHREY,             :
 
                                          :
 
                 Claimant,                :         File No. 919035
 
                                          :
 
            vs.                           :      A R B I T R A T I O N
 
                                          :
 
            CITY OF CEDAR RAPIDS,         :         D E C I S I O N
 
                                          :
 
                 Employer,                :
 
                 Self-Insured,            :
 
                 Defendant.               :
 
            ____________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 Claimant Mark S. Humphrey filed a petition in 
 
            arbitration seeking benefits under the Iowa Workers' 
 
            Compensation Act as the result of an alleged work injury on 
 
            August 1, 1988.  Defendant City of Cedar Rapids is his 
 
            self-insured employer.
 
            
 
                 This cause came on for hearing in Cedar Rapids, Iowa, 
 
            on July 10, 1991.  Claimant testified personally, as did 
 
            Joyce Humphrey, Melody Oltmann and Lora Summerwill.  
 
            Claimant's exhibits 1 through 12 and defendant's exhibits A 
 
            through JJ, both inclusive, were received into evidence.
 
            
 
                                      issues
 
            
 
                 The parties stipulated that an employment relationship 
 
            existed between claimant and defendant on August 1, 1988, to 
 
            the rate of compensation, that certain benefits were paid on 
 
            a voluntary basis, and that entitlement to temporary total 
 
            disability/healing period and medical benefits was no longer 
 
            in dispute.
 
            
 
                 Issues presented for resolution include:
 
            
 
                 1.  Whether claimant sustained an injury arising out of 
 
            and in the course of his employment on August 1, 1988;
 
            
 
                 2.  Whether the alleged injury caused temporary or 
 
            permanent disability;
 
            
 
                 3.  If so, the extent of claimant's entitlement to 
 
            permanent disability, under the odd-lot theory of total 
 
            disability or otherwise; and,
 
            
 
                 4.  Whether claimant is entitled to rehabilitation 
 
            benefits under Iowa Code section 85.70.
 
            
 
                                 findings of fact
 
            
 
                 The undersigned deputy industrial commissioner finds:
 
            
 
                 Mark S. Humphrey, 39 years of age at hearing, left 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            school following the eleventh grade.  His employment history 
 
            includes a substantial sales background, light carpentry, 
 
            light and heavy construction and truck driving.
 
            
 
                 Claimant was a bus driver for the city of Cedar Rapids 
 
            at the time of his alleged injury.  He claims that on August 
 
            1, 1988, while stepping into a bus at the bus garage, he 
 
            turned in response to a shout.  He states that his foot 
 
            slipped and that he "crunched up" as something "let go" in 
 
            his back with a pulling sensation.  As a result, Mr. 
 
            Humphrey is of the view that he is permanently and totally 
 
            disabled.
 
            
 
                 Defendant asserts that no such incident took place and 
 
            is suspicious of claimant's veracity.  This observer 
 
            believes that suspicion to be well founded.
 
            
 
                 Claimant has twice been convicted of operating a motor 
 
            vehicle while under the influence of alcohol, most recently 
 
            on April 21, 1980.  He was sentenced to three days in the 
 
            Linn County jail, ordered to attend drunk driving school and 
 
            subjected to revocation of driving privileges.  Conviction 
 
            of these offenses does not operate to impeach claimant under 
 
            Iowa Rule of Evidence 609 because the crimes do not involve 
 
            dishonesty or false statement and are remote in time.  
 
            However, claimant conceded that he denied having been a 
 
            criminal defendant in his deposition of June 12, 1990, 
 
            certainly an untruth.  While claimant claims that he did not 
 
            know drunk driving was a criminal act, this explanation 
 
            lacks credibility.  A person of reasonable intelligence can 
 
            be expected to recognize that incarceration is a criminal 
 
            consequence.  Claimant signed a waiver of rights and guilty 
 
            plea at the time of his second conviction which made clear 
 
            that the offense was criminal in nature.
 
            
 
                 This nondisclosure is part of a consistent pattern of 
 
            deceit and untruth.  When claimant first applied for work 
 
            with the city of Cedar Rapids, he failed to disclose these 
 
            convictions on the application form, actually denying his 
 
            criminal record.
 
            
 
                 Claimant alleges that up to August 1, 1988 he had no 
 
            permanent back problems and was capable of performing all 
 
            duties of a bus driver.  Yet, in an interesting twist, he 
 
            also claims that he suffered a back injury during the 
 
            previous winter when he slipped on ice in the stairwell of a 
 
            bus and still had not fully recovered by the claimed injury 
 
            date.  He claims that pain prior to August 1 interfered with 
 
            his ability to do his job and that he was working part-time 
 
            hours even though retaining full-time status.  He believed 
 
            that he might still have been on part-time hours as of the 
 
            injury date under review here.  Claimant alleges that he 
 
            filed a claim with respect to the winter injury.
 
            
 
                 Lora Summerwill, Director of Safety and Health Services 
 
            for the city of Cedar Rapids, testified that defendant has 
 
            no record whatsoever of the claimed winter fall and that, 
 
            prior to hearing, claimant had always alleged a fall only on 
 
            August 1, 1988 (although curiously, asserting that he 
 
            slipped and fell on snow despite a recorded high temperature 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            of 102 degrees Fahrenheit).  A search of the records of this 
 
            agency discloses that claimant has not filed a workers' 
 
            compensation claim with respect to the winter 1987-88 fall, 
 
            nor has a first report of injury been filed by defendant 
 
            with respect to that claimed injury.  Official notice is 
 
            hereby taken of that fact pursuant to Iowa Code section 
 
            17A.14(4).  It is found that fairness to the parties does 
 
            not require an opportunity to contest this fact.
 
            
 
                 Claimant alleges that following his "winter" fall, he 
 
            was restricted to driving not more than 40 minutes.  Those 
 
            restrictions do not appear of record.  The chart notes of 
 
            claimant's family physician, Stephen Runde, M.D., show no 
 
            entries between November 3, 1987 and October 7, 1988.
 
            
 
                 There is no doubt but that claimant has suffered a back 
 
            injury.  Magnetic resonance imaging performed on August 7, 
 
            1989 demonstrated a moderate central bulge of the disc at 
 
            L4-5 with mild compression of the thecal sac and a minimal 
 
            bulge at L5-S1 according to treating physician W. J. Robb, 
 
            M.D.  Dr. Robb and James Turner, M.D., another treating 
 
            physician, agree that claimant has a physical impairment.  
 
            Neither have expressly opined that a causal nexus exists 
 
            between the claimed work injury and claimant's current 
 
            condition.
 
            
 
                 However, much doubt remains as to whether claimant's 
 
            injury was actually sustained in the manner he alleges.  An 
 
            outpatient information form apparently completed by claimant 
 
            on January 11, 1989 for Mercy Hospital physical therapy, 
 
            indicates that symptoms began in June 1988, well before the 
 
            claimed injury date.  Claimant's former wife, Joyce 
 
            Humphrey, testified that, prior to the asserted work injury 
 
            in the summer of 1988, Mr. Humphrey went boating with his 
 
            brother on a Sunday, promising to return to perform yard 
 
            work.  Claimant and his sister Kim telephoned later to 
 
            report that claimant had fallen and hurt his back to the 
 
            extent that he could not get up and could not come home to 
 
            do his yard chores.  Claimant specifically denied that such 
 
            an incident occurred or that such a call was made to Joyce 
 
            Humphrey.  He was sufficiently concerned about this 
 
            allegation that, as part of settlement negotiations relative 
 
            the pending dissolution of the Humphreys' marriage, he 
 
            requested Joyce Humphrey to sign an affidavit to the effect 
 
            that she did not know how he had injured his back.  The 
 
            dissolution of marriage action was apparently characterized 
 
            by a degree of rancor on both sides and was still recent 
 
            (June 1991) at the time of hearing.  This observer has 
 
            considered the possibility that Joyce Humphrey invented the 
 
            entire episode out of residual bitterness, but has 
 
            nonetheless concluded that Joyce Humphrey was a more 
 
            credible witness than Mark Humphrey.  This conclusion is 
 
            based partly on the demeanor of the respective witnesses and 
 
            partly on other instances of untruthfulness by claimant.  As 
 
            a witness, claimant displayed a bad memory, was frequently 
 
            unresponsive, and generally impressed this observer as being 
 
            of average to perhaps slightly below average intelligence.  
 
            It is possible that claimant's performance as a witness was 
 
            impaired due to medications (Percodan, Valium).  This might 
 
            explain why rehabilitation consultant Larry Proctor (who 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            testified by deposition on May 30, 1991) concluded that 
 
            claimant was of average to above average intelligence.
 
            
 
                 Note also that claimant could presumably have obtained 
 
            the testimony of his sister Kim to refute Joyce Humphrey's 
 
            allegations.  The fact that he obtained an affidavit as a 
 
            part of the divorce proceedings establishes beyond doubt 
 
            that he was aware of those allegations well before trial.  
 
            It has been held that, if a party has the ability to produce 
 
            more explicit and direct evidence than it does produce, it 
 
            may fairly be presumed that the other evidence would lay 
 
            open deficiencies in that party's case.  Crosser v. Iowa 
 
            Dep't of Public Safety, 240 N.W.2d 682 (Iowa 1976).  While 
 
            the potential testimony of sister Kim is not more explicit 
 
            and direct than the testimony of claimant, this would be 
 
            valuable corroborative evidence on a hotly disputed issue, 
 
            an incident that may very well explain claimant's positive 
 
            findings on magnetic resonance imaging.
 
            
 
                 Claimant and his former wife also directly disagreed on 
 
            another point.  She testified that claimant planned to go to 
 
            Texas with a friend during the summer of 1990 and was gone 
 
            for several days.  Claimant denied making this trip.  The 
 
            significance of whether claimant did or did not make such a 
 
            trip lies in the potential inference that claimant may well 
 
            be able to sit in a vehicle for an extended time if the trip 
 
            was actually made.
 
            
 
                 Claimant was offered various rehabilitation activities, 
 
            including exercise facilities and free swimming.  Those 
 
            individuals with whom he dealt seem rather uniformly to have 
 
            concluded that he lacked motivation and was prone to 
 
            offering excuses for noncompliance with suggested 
 
            rehabilitative activities.
 
            
 
                 Claimant was instructed to appear at a specific 
 
            swimming pool at specific times, as a lifeguard had been 
 
            trained in swim therapy.  When Cedar Rapids Director of 
 
            Safety and Health Services Lora Summerwill discovered that 
 
            claimant had not been going, she confronted him about 
 
            nonattendance, but claimant alleged that the pool records 
 
            were incorrect.  Claimant told several untruths to 
 
            Summerwill.  In June 1989, she first learned that claimant 
 
            intended to take a vacation when Joyce, another city 
 
            employee, so advised her co-workers.  At this point, 
 
            claimant had only just begun a program at the Work Injury 
 
            Rehabilitation Center, so Summerwill denied claimant the 
 
            right to take vacation time as set forth in defendant's 
 
            exhibit T, a letter of June 19.  After receiving that 
 
            letter, claimant expressed his unhappiness to Summerwill, 
 
            claiming that he had received approval for this vacation 
 
            from physical therapist D. Kent Reeves (who testified by 
 
            deposition on May 23, 1991) in advance.  This proved to be 
 
            untrue.  When claimant discontinued attendance at the Work 
 
            Injury Rehabilitation Center, he advised Summerwill that Dr. 
 
            Runde had told him to stay home and rest.  Summerwill then 
 
            called Dr. Runde, who advised that he had not even seen 
 
            claimant.  When she then confronted claimant with this 
 
            untruth, Mr. Humphrey feebly maintained that Dr. Runde would 
 
            have given that advice had he been seen.
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            
 
                 Generally speaking, claimant strongly gives the 
 
            impression of a man who is out to milk the workers' 
 
            compensation system for all he can.  He has consistently 
 
            shown a lack of interest in rehabilitation, shown a lack of 
 
            motivation, and has been shown to frequently be untruthful 
 
            in various contexts surrounding his claimed injury.  
 
            Claimant is the only eyewitness to the claimed injury and, 
 
            pursuant to the testimony of Joyce Humphrey, clearly 
 
            suffered some nature of back injury while boating with his 
 
            family prior to August 1, 1988.
 
            
 
                                conclusions of law
 
            
 
                 Claimant has the burden of proving by a preponderance 
 
            of the evidence that he received an injury on August 1, 1988 
 
            which arose out of and in the course of his employment. 
 
            McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa 
 
            1976); Musselman v. Cent. Tel. Co., 261 Iowa 352, 154 N.W.2d 
 
            128 (1967). 
 
            
 
                 The injury must both arise out of and be in the course 
 
            of the employment.  Crowe v. DeSoto Consol. School Dist., 
 
            246 Iowa 402, 68 N.W.2d 63 (1955) and cases cited at pp. 
 
            405-406 of the Iowa Report.  See also Sister Mary Benedict 
 
            v. St. Mary's Corp., 255 Iowa 847, 124 N.W.2d 548 (1963) and 
 
            Hansen v. State of Iowa, 249 Iowa 1147, 91 N.W.2d 555 
 
            (1958).
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury of August 1, 
 
            1988 is causally related to the disability on which he now 
 
            bases his claim.  Bodish v. Fischer, Inc., 257 Iowa 516, 133 
 
            N.W.2d 867 (1965).  Lindahl v. L. O. Boggs, 236 Iowa 296, 18 
 
            N.W.2d 607 (1945).  A possibility is insufficient; a 
 
            probability is necessary.  Burt v. John Deere Waterloo 
 
            Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955).  The 
 
            question of causal connection is essentially within the 
 
            domain of expert testimony.  Bradshaw v. Iowa Methodist 
 
            Hosp., 251 Iowa 375, 101 N.W.2d 167 (1960). 
 
            
 
                 However, expert medical evidence must be considered 
 
            with all other evidence introduced bearing on the causal 
 
            connection.  Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion 
 
            of experts need not be couched in definite, positive or 
 
            unequivocal language.  Sondag v. Ferris Hardware, 220 N.W.2d 
 
            903 (Iowa 1974).  However, the expert opinion may be 
 
            accepted or rejected, in whole or in part, by the trier of 
 
            fact.  Id. at 907.  Further, the weight to be given to such 
 
            an opinion is for the finder of fact, and that may be 
 
            affected by the completeness of the premise given the expert 
 
            and other surrounding circumstances.  Bodish, 257 Iowa 516, 
 
            133 N.W.2d 867.  See also Musselman v. Cent. Tel. Co., 261 
 
            Iowa 352, 154 N.W.2d 128 (1967).
 
            
 
                 Claimant is not a credible witness.  He has failed to 
 
            meet his burden of proof in establishing that he sustained a 
 
            work injury as he alleges.  Further, he has failed to 
 
            establish by medical evidence that any such work injury is 
 
            causally related to his current disability.  Accordingly, he 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            shall take nothing from this proceeding.
 
            
 
                                      order
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 Claimant shall take nothing from this proceeding.
 
            
 
                 The costs of this action are assessed to claimant 
 
            pursuant to rule 343 IAC 4.33.
 
            
 
                 Signed and filed this ______ day of ____________, 1991.
 
            
 
                 
 
            
 
                 
 
                 
 
                                          ______________________________
 
                                          DAVID RASEY
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Robert J. Todd
 
            Attorney at Law
 
            828 North 7th Street
 
            P.O. Box 1160
 
            Burlington, Iowa  52601
 
            
 
            Mr. Richard A. Pundt
 
            Attorney at Law
 
            330 1st Street SE
 
            Cedar Rapids, Iowa  52401
 
            
 
            Mr. James H. Flitz
 
            Assistant City Attorney
 
            City Hall 7th Floor
 
            Cedar Rapids, Iowa  52401
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                           5-1402.20
 
                           Filed August 26, 1991
 
                           DAVID RASEY
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            MARK S. HUMPHREY,             :
 
                                          :
 
                 Claimant,                :         File No. 919035
 
                                          :
 
            vs.                           :      A R B I T R A T I O N
 
                                          :
 
            CITY OF CEDAR RAPIDS,         :         D E C I S I O N
 
                                          :
 
                 Employer,                :
 
                 Self-Insured,            :
 
                 Defendant.               :
 
            ____________________________________________________________
 
            
 
            1402.20
 
            Claimant failed to present credible evidence that he 
 
            sustained a work injury.
 
            
 
 
 
 
 
 
 
 
 
 
 
 
                  BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
 
 
 HERMAN LOVELL,
 
                                              File No. 919097
 
      Claimant,                
 
 
 
                                               A P P E A L   
 
 
 
 vs.
 
                                             D E C I S I O N   
 
 F. W. NEWCOMB TRUCKING, INC., 
 
 
 
      Employer,                  
 
      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.
 
 
 
                               ISSUE
 
 
 
 Defendant states the following issue on appeal:
 
 
 
      Did the Deputy error [sic] in concluding that claimant was 
 
      entitled to temporary total disability benefits, as opposed 
 
      to temporary partial disability benefits, for the time 
 
      period from August 14, 1989 through September 27, 1989?
 
      
 
                         FINDINGS OF FACT
 
 
 
 The findings of fact contained in the proposed agency
 
 decision filed July 19, 1990 are adopted as final agency action.
 
 
 
                       CONCLUSIONS OF LAW
 
 
 
      The conclusions of law contained in the proposed agency 
 
 decision filed July 19, 1990 are adopted as final agency action, 
 
 with the following additional analysis:
 
 
 
 Although the record is less than clear, it appears from 
 
 claimant's testimony on pages 43-45 of the transcript that 
 
 claimant was still working for defendant employer after his 
 
 injury at a lesser-paying position. Thus, claimant is entitled to 
 
 temporary partial disability benefits under Iowa Code 85.33(2), 
 
 rather than temporary total disability benefits under Iowa Code 
 
 85.33(1). An award of temporary total disability benefits for a 
 
 period of time when claimant was still employed
 

 
 
 
 
 
 
 
 LOVELL V. F. W. NEWCOMB TRUCKING, INC. 
 
 Page 2
 
 
 
 
 
 
 
 and earning wages would result in a double recovery for claimant 
 
 inconsistent with chapter 85.
 
 
 
      Claimant's description of his earnings between the date of 
 
 injury, August 14, 1989, until he was fired for reasons unrelated 
 
 to his injury on September 27, 1989, a period of 6.429 weeks, is 
 
 confusing. However, claimant did acknowledge that he was paid a 
 
 salary of approximately $350 gross wages for each week during this 
 
 period of time. Claimant has acknowledged, on page 45 of the 
 
 transcript, being paid for each of the weeks in question.
 
 
 
 Claimant is therefore not entitled to temporary total disability 
 
 benefits. Claimant is entitled to temporary partial disability 
 
 benefits under Iowa Code 85.33(2), (3), and (4) of two-thirds of 
 
 the difference between his pre-injury wages and his wages from 
 
 August 14, 1989 to September 27, 1989.
 
 
 
 The record establishes, and the parties appear to agree, that 
 
 prior to his injury, claimant's gross weekly wage was $431.00. 
 
 Claimant acknowledges being paid $350 in gross weekly wages for 
 
 the period August 14, 1989 to September 27, 1989. The difference 
 
 is $81 per week. Applying Iowa Code 85.33(4), claimant is entitled 
 
 to $53.95 per week in temporary partial disability benefits for 
 
 each week between August 14, 1989 and September 27, 1989.
 
 
 
 WHEREFORE, the decision of the deputy is affirmed and modified.
 
 
 
                              ORDER
 
 
 
      THEREFORE, it is ordered:
 
 
 
 That defendant is to pay unto claimant six point four-twonine 
 
 (6.429) weeks of temporary partial disability benefits at the rate 
 
 of fifty-three and 95/100 dollars ($53.95) per week from August 
 
 14, 1989 through September 27, 1989.
 
 
 
 Defendant is also liable for the payment of medical expenses in 
 
 the sum of two thousand forty-one and no/100 dollars ($2,041.00) 
 
 and reimbursable expenses to claimant in the sum of thirty and 
 
 47/100 dollars ($30.47).
 
 
 
 Payments that have accrued shall be paid in a lump sum together 
 
 with statutory interest thereon pursuant to Iowa Code section 
 
 85.30.
 
 
 
 That claimant shall pay the costs of the appeal including the 
 
 transcription of the hearing. Defendant shall pay all other costs.
 

 
 
 
 
 
 
 
 LOVELL V. F. W. NEWCOMB TRUCKING, INC.
 
 Page 3
 
 
 
 
 
 
 
 
 
 Defendant shall file a claim activity report as required by 
 
 this division pursuant to Division of Industrial Services Rule 
 
 343-3.1.
 
 
 
 Signed and filed this ------ day of August, 1992.
 
 
 
 
 
 
 
 
 
 
 
                                  BYRON K. ORTON
 
                                  INDUSTRIAL COMNISSIONER
 
 
 
 Copies To:
 
 
 
 Mr. Robert DeKock
 
 Attorney at Law
 
 227 Mulberry Avenue
 
 Muscatine,  Iowa  52761
 
 
 
 Mr. Michael J. Motto
 
 Attorney at Law
 
 1000 First Bank Center
 
 Davenport, Iowa  52801
 
 
 
 
 
 
 
 
 
 
 
 
                                                   1801.1
 
                                                   Filed August 31, 1992
 
                                                   BYRON K. ORTON
 
                               
 
 
 
                BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
 
 
 HERMAN LOVELL,
 
                                                  File No. 919097
 
      Claimant,
 
                                                    A P P E A L
 
 vs.
 
                                                 D E C I S I O N
 
 F. W. NEWCOMB TRUCKING, INC., 
 
 
 
      Employer, 
 
      Defendant.
 
      
 
      
 
      
 
 1801.1
 
 
 
 
 
 Claimant was awarded temporary partial disability benefits 
 
 instead of temporary total disability benefits where the record 
 
 showed he returned to work at a lower paying job after his 
 
 in~ury.
 
 
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            HERMAN LOVELL,                :
 
                                          :        File No. 919097
 
                 Claimant,                :
 
                                          :     A R B I T R A T I O N
 
            vs.                           :
 
                                          :        D E C I S I O N
 
            F. W. NEWCOMB TRUCKING, INC., :
 
                                          :
 
                 Employer,                :
 
                 Defendant.               :
 
            ___________________________________________________________
 
            
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This is a proceeding in arbitration upon the petition 
 
            of claimant, Herman Lovell, against his employer, F. W. 
 
            Newcomb Trucking, uninsured employer, defendant.  The case 
 
            was heard in Davenport, Iowa on May 23, 1990.  The record 
 
            consists of the testimony of claimant and of his wife, 
 
            Marilyn Lovell.  The record also consists of the testimony 
 
            of Floyd Newcomb, Jr., owner and president of defendant.  
 
            Additionally, the record consists of claimant's exhibits 
 
            1-21, defendant's exhibit 1 and for purposes of rebuttal, 
 
            defendant's exhibits 2, 3 and 4.
 
            
 
                                      issues
 
            
 
                 The sole issues to be determined are:  1) whether 
 
            claimant received an injury which arose out of and in the 
 
            course of his employment; 2) whether there is a causal 
 
            relationship between the alleged injury and the disability; 
 
            3) whether claimant is entitled to temporary 
 
            disability/healing period benefits or permanent partial or 
 
            total disability benefits; 4) whether claimant is entitled 
 
            to medical benefits under section 85.27; and, 5) the 
 
            applicable rate, if any, for weekly benefits.
 
            
 
                                 findings of fact
 
            
 
                 The deputy having heard the testimony and considered 
 
            all the evidence, finds:
 
            
 
                 Claimant was employed as an over-the-road truck driver 
 
            for defendant.  He was hired by Floyd Newcomb, Jr., on April 
 
            14, 1989.  Claimant was hired at a rate of 21 percent of the 
 
            gross revenue of the truck.
 
            
 
                 On August 14, 1989, claimant experienced problems with 
 
            his stomach.  He believed he had caught the flu.  He 
 
            informed the dispatcher he needed to return home in order to 
 
            seek medical treatment.  Claimant saw Rolando Alcocer, M.D., 
 
            at his office on the fourteenth.  Dr. Alcocer, in turn 
 
            admitted claimant to Muscatine General Hospital where 
 
            claimant remained until August 17, 1989.  Various tests were 
 
            performed.
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
                 Dr. Alcocer diagnosed claimant's condition as:
 
            
 
                 He was diagnosed with an [sic] spastic colon and 
 
                 cholelithiasis.
 
            
 
                 This problem is work related due to the bouncing, 
 
                 jarring, tension, stress, constant pressure from 
 
                 sitting and fatigue.  He cannot drive a truck 
 
                 because the problem will continue to worsen.
 
            
 
                 Dr. Alcocer released claimant on September 27, 1989.  
 
            Dr. Alcocer's progress note for that date revealed:  
 
            "Patient doing well no particular complaints discharged 
 
            today."
 
            
 
                 Dr. Alcocer also wrote on September 27, 1989:
 
            
 
                 THIS PATIENT WAS SEEN TODAY IN MY OFFICE.-
 
            
 
                 Diagnosis:  POSS:IRRITABLE BOWEL SYNDROME.-
 
                           CHRONIC CHOLELITHIASIS.-
 
            
 
                 Actually the patient is doing well.-
 
                      No particular complaints.-
 
            
 
                 PATIENT IS ABLE TO RETURN TO HIS
 
                    PREVIOUS WORK.-******
 
            
 
                 Claimant testified he was not seeing any medical 
 
            personnel as of the date of the hearing.  He had not seen 
 
            any physician for his chronic cholelithiasis since September 
 
            27, 1989.
 
            
 
                 Subsequent to his hospitalization, claimant was offered 
 
            a desk job with defendant.  He began the latter part of 
 
            September or the early part of October of 1989.  Claimant 
 
            worked a month.  He was terminated for failure to start work 
 
            at the designated time after having been warned.
 
            
 
                                conclusions of law
 
            
 
                 Claimant has the burden of proving by a preponderance 
 
            of the evidence that he received an injury on August 14, 
 
            1989, which arose out of and in the course of his 
 
            employment.  McDowell v. Town of Clarksville, 241 N.W.2d 904 
 
            (Iowa 1976); Musselman v. Central Telephone Co., 261 Iowa 
 
            352, 154 N.W.2d 128 (1967). 
 
            
 
                 An employee is entitled to compensation for any and all 
 
            personal injuries which arise out of and in the course of 
 
            the employment.  Section 85.3(1).
 
            
 
                 The injury must both arise out of and be in the course 
 
            of the employment.  Crowe v. DeSoto Consol. Sch. Dist., 246 
 
            Iowa 402, 68 N.W.2d 63 (1955) and cases cited at pp. 405-406 
 
            of the Iowa Report.  See also Sister Mary Benedict v. St. 
 
            Mary's Corp., 255 Iowa 847, 124 N.W.2d 548 (l963) and Hansen 
 
            v. State of Iowa, 249 Iowa 1147, 91 N.W.2d 555 (1958).
 
            
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
                 The words "out of" refer to the cause or source of the 
 
            injury.  Crowe, 246 Iowa 402, 68 N.W.2d 63 (1955). 
 
            
 
                 The words "in the course of" refer to the time and 
 
            place and circumstances of the injury.  McClure v. Union 
 
            et al. Counties, 188 N.W.2d 283 (Iowa 1971); Crowe, 246 Iowa 
 
            402, 68 N.W.2d 63 (1955).
 
            
 
                 "An injury occurs in the course of the employment when 
 
            it is within the period of employment at a place the 
 
            employee may reasonably be, and while he is doing his work 
 
            or something incidental to it."  Cedar Rapids Comm. Sch. 
 
            Dist. v. Cady, 278 N.W.2d 298 (Iowa 1979), McClure, 188 
 
            N.W.2d 283 (Iowa 1971); Musselman, 261 Iowa 352, 154 N.W.2d 
 
            128 (1967). 
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury of August 14, 
 
            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 
 
            Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). 
 
            
 
                 The opinions of experts need not be couched in 
 
            definite, positive or unequivocal language.  Sondag v. 
 
            Ferris Hardward, 220 N.W.2d 903 (Iowa 1974).  An opinion of 
 
            an expert based upon an incomplete history is not binding 
 
            upon the commissioner, but must be weighed together with the 
 
            other disclosed facts and circumstances.  Bodish, 257 Iowa 
 
            516, 133 N.W.2d 867 (1965).  The expert medical evidence 
 
            must be considered with all other evidence introduced 
 
            bearing on the causal connection between the injury and the 
 
            disability.  Burt, 247 Iowa 691, 73 N.W.2d 732 (1955).  In 
 
            regard to medical testimony, the commissioner is required to 
 
            state the reasons on which testimony is accepted or 
 
            rejected.  Sondag, 220 N.W.2d 903 (1974).
 
            
 
                 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, 220 N.W.2d 903 (Iowa 1974).  
 
            However, the expert opinion may be accepted or rejected, in 
 
            whole or in part, by the trier of fact.  Id. at 907.  
 
            Further, the weight to be given to such an opinion is for 
 
            the finder of fact, and that may be affected by the 
 
            completeness of the premise given the expert and other sur
 
            rounding circumstances.  Bodish, 257 Iowa 516, 133 N.W.2d 
 
            867.  See also Musselman, 261 Iowa 352, 154 N.W.2d 128 
 
            (1967).
 
            
 
                 If claimant has an impairment to the body as a whole, 
 
            an industrial disability has been sustained.  Industrial 
 
            disability was defined in Diederich v. Tri-City Railway Co., 
 
            219 Iowa 587, 593, 258 N.W.2d 899, 902 (1935) as follows: 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            "It is therefore plain that the legislature intended the 
 
            term `disability' to mean `industrial disability' or loss of 
 
            earning capacity and not a mere `functional disability' to 
 
            be computed in the terms of percentages of the total 
 
            physical and mental ability of a normal man."
 
            
 
                 Claimant has proven by a preponderance of the evidence 
 
            that he sustained an injury which arose out of and in the 
 
            course of his employment.  Claimant's description of the 
 
            events leading up to the injury was credible.  Claimant was 
 
            on the road driving defendant's truck when the injury 
 
            occurred.
 
            
 
                 Claimant's treating physician, Dr. Alcocer, causally 
 
            related claimant's chronic cholelithiasis to claimant's 
 
            duties driving a truck where he was engaged in bouncing and 
 
            constant sitting.  Claimant has proven by a preponderance of 
 
            the evidence that his condition was causally connected to 
 
            claimant's employment with defendant.
 
            
 
                 Claimant has not proven that he has any permanent 
 
            partial disability.  No physician has opined there is any 
 
            permanent partial impairment.  Nor has a functional 
 
            impairment rating been provided.  Additionally, claimant has 
 
            been released to return to truck driving by his treating 
 
            physician as of September 27, 1989. No restrictions have 
 
            been placed upon claimant.  He has not required any medical 
 
            attention for his condition since the date of his release.  
 
            Even claimant's spouse has acknowledged her husband has an 
 
            improved condition.
 
            
 
                 Claimant has proven he has a temporary total 
 
            disability.  Section 85.33(1) governs the payment of 
 
            temporary total disability benefits.  The section provides:
 
            
 
                 1.  Except as provided in subsection 2 of this 
 
                 section, the employer shall pay to an employee for 
 
                 injury producing temporary total disability weekly 
 
                 compensation benefits, as provided in section 
 
                 85.32, until the employee has returned to work or 
 
                 is medically capable of returning to employment 
 
                 substantially similar to the employment in which 
 
                 the employee was engaged at the time of injury, 
 
                 whichever occurs first.
 
            
 
                 Claimant was off work as of August 14, 1989.  He was 
 
            indefinite as to the date he returned to the desk position.  
 
            However, he was released to return to work on September 27, 
 
            1989.  Therefore, that date is used as the final date for 
 
            claimant's temporary total disability.  The period involves 
 
            6.429 weeks of benefits.
 
            
 
                 The next issue is the applicable rate for the payment 
 
            of weekly benefits to claimant.  Claimant testified he 
 
            grossed $800 to $1400 per week.  Claimant had no pay records 
 
            to corroborate his testimony.
 
            
 
                 Mr. Newcomb testified claimant grossed $5,599.64 for 
 
            the 13 weeks prior to the date of claimant's injury.  This 
 
            equates to $431.00 per week.  This figure appears to be a 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            more realistic figure for someone in the trucking industry.  
 
            Therefore, it is the determination of the undersigned that 
 
            claimant did gross $431.00 in weekly wages.  Using the 
 
            appropriate rate book for July 1, 1989, this equates to 
 
            $270.11 per week as a weekly benefit rate for a married 
 
            individual with two exemptions.
 
            
 
                 Finally, there is the issue of medical expenses under 
 
            section 85.27.  Claimant has submitted bills as follows:
 
            
 
                 Muscatine Central Hospital           $1,501.00
 
            
 
                 Rolando Alcocer                         290.00
 
            
 
                 Muscatine Radiologists, PC              167.00
 
            
 
                 Muscatine Health Center, PC              83.00
 
            
 
                 Prescriptions (paid by claimant)         30.47
 
            
 
                                     Total            $2,071.47
 
            
 
                 The charges are reasonable and necessary.  They are 
 
            causally related to claimant's condition.  Since defendant 
 
            denied liability, it cannot now raise the issue the charges 
 
            were unauthorized.
 
            
 
                 Therefore, in light of the foregoing, defendant is 
 
            liable for all of the above.  Claimant shall also be 
 
            reimbursed for $30.47 out of pocket prescription charges.
 
            
 
                                      order
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 Defendant is to pay temporary total disability benefits 
 
            for the period from August 14, 1989 to September 27, 1989, a 
 
            period of six point four-two-nine (6.429) weeks at the rate 
 
            of two hundred seventy and 11/l00 dollars ($270.11) per 
 
            week.
 
            
 
                 Defendant is also liable for the payment of medical 
 
            expenses in the sum of two thousand forty-one and no/l00 
 
            dollars ($2,041.00) and reimbursable expenses to claimant in 
 
            the sum of thirty and 47/l00 dollars ($30.47).
 
            
 
                 Payments that have accrued shall be paid in a lump sum 
 
            together with statutory interest thereon pursuant to Iowa 
 
            Code section 85.30.
 
            
 
                 Costs of the action shall be assessed to defendant 
 
            pursuant to Division of Industrial Services Rule 343-4.33.
 
            
 
                 Defendant shall file a claim activity report as 
 
            required by this division pursuant to Division of Industrial 
 
            Services Rule 343-3.1.
 
            
 
            
 
                 Signed and filed this ____ day of July, 1990.
 
            
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            
 
            
 
                                          ______________________________               
 
            MICHELLE A. McGOVERN
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Robert DeKock
 
            Attorney at Law
 
            Suite 103,
 
            101 W Mississippi Dr
 
            Muscatine  IA  52761
 
            
 
            Mr. Michael J. Motto
 
            Attorney at Law
 
            1000 First Bank Center
 
            201 W 2nd St
 
            Davenport  IA  52801
 
            
 
            
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                    5-1801.1
 
                                                    Filed July 19, 1990
 
                                                    MICHELLE A. McGOVERN
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            HERMAN LOVELL,                :
 
                                          :        File No. 919097
 
                 Claimant,                :
 
                                          :     A R B I T R A T I O N
 
            vs.                           :
 
                                          :        D E C I S I O N
 
            F. W. NEWCOMB TRUCKING, INC., :
 
                                          :
 
                 Employer,                :
 
                 Defendant.               :
 
            ___________________________________________________________
 
            
 
            
 
            5-1801.1
 
            Claimant is entitled to temporary total disability benefits 
 
            after he developed spastic colon and cholelithiasis due to 
 
            constant bouncing, jarring, tension, stress and constant 
 
            pressure from driving a truck.
 
            
 
 
            
 
            
 
            
 
            
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                      
 
            STACY L. MONTGOMERY,     
 
                      
 
                 Claimant, 
 
                                           File Nos. 919123, 979225
 
            vs.                                      979226
 
                      
 
            ROLSCREEN,     
 
                                                  A P P E A L
 
                 Employer, 
 
                                               D E C I S I O N
 
            and       
 
                      
 
            EMPLOYERS MUTUAL INS. CO.,    
 
                      
 
                 Insurance Carrier,  
 
                 Defendants.    
 
            ___________________________________________________________
 
                            STATEMENT OF THE CASE
 
            
 
                 Defendants' appeal from an arbitration decision 
 
            awarding claimant 40 percent permanent partial disability 
 
            benefits.  
 
            
 
                 The record on appeal consists of the transcript of the 
 
            arbitration hearing and of joint exhibits A through Q.  Both 
 
            parties filed briefs on appeal.
 
            
 
                                      ISSUES
 
            
 
                 Defendants state the issues on appeal as:
 
            1.  What, if any, of Claimant's conditions are causally 
 
            connected to employment at Rolscreen? 
 
            2.  What conditions are causally connected to Claimant's 
 
            subsequent injury and aggravations sustained at Pleasant 
 
            Park Nursing Home?
 
            3.  Whether Claimant's disability which is found to be 
 
            related to her employment at Rolscreen extends to the body 
 
            as a whole or is limited to Claimant's upper extremity?
 
            4.  Whether all or part of Claimant's disability should be 
 
            apportioned to Claimant's subsequent injury or aggravations 
 
            at Pleasant Park Nursing Home?
 
            5.  In the event it is found that Claimant's disability is 
 
            limited to her upper extremity, what is the appropriate 
 
            award of permanent partial disability benefits [to] which 
 
            Claimant is entitled?
 
            6.  In the event it is found that Claimant's disability 
 
            extends to the body as a whole, what is the appropriate 
 
            award of industrial disability?
 
            7.  What is the extent of Claimant's healing period?
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 Claimant worked for Rolscreen as a temporary employee.  
 
            As a temporary employee, claimant could work no more than 
 
            1,000 hours in any Rolscreen fiscal year.  She initially 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            worked from February 24, 1987 through July 24, 1987; then 
 
            from February 22, 1988 through May 27, 1988; and finally 
 
            from December 19, 1988 through March 10, 1989.  Claimant had 
 
            worked as a nurse's aide at Pleasant Park Nursing Home for 
 
            several years prior to beginning Rolscreen employment.  
 
            Claimant worked at Pleasant Park Nursing Home in 1987 and 
 
            1988 during those periods when she was not working at 
 
            Rolscreen.  Claimant earned $7.00 per hour at Rolscreen; she 
 
            earned $4.95 per hour at Pleasant Park.  
 
            
 
                 Claimant's work at Rolscreen involved repetitive use of 
 
            her wrist, hands and arms.  Claimant at various times worked 
 
            as a window putterer and as an electronic press and radial 
 
            armsaw operator.  After her December 19, 1988 recall, 
 
            claimant worked primarily as a radial armsaw operator.  On 
 
            February 28, 1989, claimant reported to the Rolscreen 
 
            nurse's station complaining of pain and swelling in the 
 
            right wrist and of a small bump on her right wrist.  The 
 
            nurse's notes of that date do not mention any other 
 
            complaints.  At hearing, claimant agreed she would have 
 
            explained any symptoms she was having to the nurse.  On 
 
            March 7, 1989, it was recommended that claimant rest her 
 
            wrist for five to ten days and if that did not improve her 
 
            condition that she see the company physician, a Dr. Adams 
 
            (first name and speciality unknown).  
 
            
 
                 Claimant initially saw Dr. Adams on April 14, 1989.  
 
            Dr. Adams diagnosed claimant as having a right ganglion cyst 
 
            and possible right carpal tunnel syndrome.  The doctor 
 
            scheduled an EMG for April 18, 1989.  The EMG was minimally 
 
            positive for right carpal tunnel syndrome.  On May 5, 1989, 
 
            Dr. Adams reported claimant had pain and numbness along the 
 
            medial nerve distribution at right.  On May 8, 1989, Dr. 
 
            Adams reported that claimant had pain in the volar aspect of 
 
            the right dominant wrist and some numbness of the right 
 
            index finger and right middle finger.  The doctor further 
 
            interpreted claimant's EMG and nerve conduction studies as 
 
            slightly supporting ulnar neuropathy on the right and 
 
            showing minimal right carpal tunnel syndrome.  He expressly 
 
            noted that no other abnormalities were present.  Dr. Adams 
 
            performed a right carpal tunnel release and removal of the 
 
            right ganglion cyst on May 12, 1989.  Dr. Adams released 
 
            claimant for work as of June 23, 1989.  
 
            
 
                 On August 8, 1989, claimant elected to see R. C. 
 
            Bergman, D.O.  On examination, Dr. Bergman noted that 
 
            claimant had a positive Tinel's sign and a positive Phalen's 
 
            as to the right middle and ring fingers.  He noted claimant 
 
            had poor to fair grip strength on the right and stated she 
 
            had had resolution of her carpal tunnel condition.  Dr. 
 
            Bergman ordered another EMG evaluation for claimant.  Those 
 
            studies were within normal limits.  Dr. Bergman diagnosed 
 
            wrist tendonitis and prescribed splinting of the wrist.  On 
 
            October 19, 1989, Dr. Bergman described claimant's condition 
 
            as recurrent carpal tunnel syndrome on the right and 
 
            recommended that claimant undergo an additional right carpal 
 
            tunnel release.  Claimant declined to undergo the 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            recommended surgery.  Dr. Bergman released claimant to 
 
            return as needed on October 19, 1989.  On October 31, 1989, 
 
            Dr. Bergman assigned claimant a three percent permanent 
 
            partial impairment of the right upper extremity as a result 
 
            of decreased [grip] strength on the right.  On January 16, 
 
            1990, Dr. Bergman released claimant to return to work 
 
            without restrictions.  
 
            
 
                 Claimant had returned to work as a nurse's aide at 
 
            Pleasant Park Nursing Home on January 7, 1990.  After 
 
            starting work at Pleasant Park, claimant did not seek 
 
            medical treatment until May 12, 1990 when she visited the 
 
            Mahaska County Hospital emergency room after cutting her 
 
            right hand while washing dishes.
 
            
 
                 On August 8, 1990, claimant saw Scott B. Neff, a board 
 
            certified orthopedic surgeon.  On examination, Dr. Neff 
 
            found that claimant had a negative Tinel's sign at the elbow 
 
            and a positive Phalen's.  He noted that claimant's Roose 
 
            test was subjectively positive for numbness and tingling of 
 
            the right arm.  Claimant had myofascial pain along the 
 
            medial border of the right scapula.  Claimant had no 
 
            supraclavicular pain.  Dr. Neff expressly noted that 
 
            claimant's symptoms were clinically different from her 
 
            symptoms prior to her carpal tunnel release in May 1989.  
 
            Dr. Neff opined that claimant might well have a combination 
 
            of myofascial syndrome and thoracic outlet syndrome.  On 
 
            September 26, 1990, Dr. Neff opined that claimant's then 
 
            current symptoms of shoulder soreness, possible thoracic 
 
            outlet syndrome and myofascial syndrome were not related to 
 
            claimant's Rolscreen employment.  On October 15, 1990, 
 
            claimant's nerve conductive study of the right upper 
 
            extremity was reported as within normal limits.
 
            
 
                 On October 3, 1990, claimant sustained an injury while 
 
            working at Pleasant Park Nursing Home.  Apparently, the 
 
            patient whom claimant was assisting in walking began to fall 
 
            and grabbed claimant's right arm for support.  Claimant had 
 
            complaints of pain in the neck, shoulder and right arm.  
 
            Claimant again saw Dr. Bergman subsequent to this incident.  
 
            On November 14, 1990, Dr. Bergman diagnosed claimant's 
 
            condition as posttraumatic thoracic outlet syndrome and 
 
            recurrent carpal tunnel syndrome.  Claimant left work at 
 
            Pleasant Park Nursing Home on February 28, 1991.  She was 
 
            not working at time of hearing.  Claimant expressed her 
 
            belief that she could neither do the work of a factory 
 
            assembler at Rolscreen or the work of a nurse's aide given 
 
            her complaints at time of hearing.  
 
            
 
                 A. D. Socarras, M.D., a neurologist, saw claimant on or 
 
            about March 14, 1991.  Dr. Socarras found no clinical 
 
            evidence of any cervical radiculopathy or thoracic outlet 
 
            syndrome.  He believed that claimant's then present 
 
            complaints of headaches were on a tension basis.  Conduction 
 
            velocity studies of March 19, 1991 were within normal 
 
            limits.  A medical report of Iowa Orthopaedic Center P.C. of 
 
            March 29, 1991 notes an impression of overuse syndrome in 
 
            the right upper extremity with possible cervical disc 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            disease and possible thoracic outlet syndrome.  
 
            
 
                 Karen Kienker, M.D., a physical medicine and 
 
            rehabilitation physician, first saw claimant on April 10, 
 
            1991 for evaluation of right neck, head, upper back and 
 
            upper extremity pain.  Dr. Kienker stated that claimant gave 
 
            a history of her symptoms beginning at Rolscreen with 
 
            claimant stating that after only a couple of weeks on the 
 
            job, claimant's palm and all fingers of the right hand began 
 
            to go numb.  Claimant also reported to Dr. Kienker that her 
 
            carpal tunnel release did not help her symptoms at all.  
 
            Claimant reported that prior to beginning work at the 
 
            nursing home in January 1990, her hand was falling asleep 
 
            more frequently and she was having pain and tenderness in 
 
            the front of the wrist and pain on the sides of the forearm.  
 
            Claimant also reported to Dr. Kienker that she had right arm 
 
            fatigue upon doing dishes, laundry, mopping, or holding her 
 
            child.  Claimant's youngest child was born on September 9, 
 
            1988.  That child was approximately 15 months old when 
 
            claimant returned to work at Pleasant Park Nursing Home in 
 
            January 1990.  Claimant also had two other preschool age 
 
            children then.  Claimant further reported to Dr. Kienker 
 
            that claimant had noticed her arm becoming progressively 
 
            more tired after working at Pleasant Park for approximately 
 
            three months.  Claimant reported the October 1990 incident, 
 
            indicating that the patient had slipped and caught claimant 
 
            causing strain of the right shoulder and down into the arm.  
 
            
 
                 On April 10, 1991, claimant was reporting pain on the 
 
            right side of the neck; headaches in the right forehead, 
 
            having an onset approximately three months earlier; pain in 
 
            the entire back of the right shoulder and extending to the 
 
            volar surface of the middle finger; and middle pip joint 
 
            tenderness.  Dr. Kienker's impression was of myofascial 
 
            pain, involving the neck and right upper back, and of 
 
            thoracic outlet syndrome.  In the course of her report Dr. 
 
            Kienker stated:  ..."[claimant] is only a fair historian, 
 
            being vague as to the dates and details of her history."  
 
            Dr. Kienker subsequently opined:  "Based on history 
 
            [claimant] gives ... sounds as though she never recovered 
 
            from her initial injury at Rolscreen.  It sounds as though 
 
            most of her symptoms were present prior to her beginning 
 
            work at the nursing home, although her nurse's aide duties 
 
            have exacerbated her symptoms."
 
            
 
                 The workers' compensation adjusting company for 
 
            Pleasant Park Nursing Home hired Ann Anhalt R.N., as a 
 
            rehabilitation consultant, to work with claimant regarding 
 
            her October 1990 injury.  On May 9, 1991, Ms. Anhalt 
 
            described claimant as "a poor historian when it comes to 
 
            sequence of events and dates."
 
            
 
                 Craig R. DuBois, M.D., a neurologist, examined claimant 
 
            on June 27, 1991.  She then had pain in the trapezius and 
 
            upper shoulder girdle.  He believed her findings were not 
 
            typical for thoracic outlet syndrome.  On August 13, 1991, 
 
            Dr. DuBois' impression was that claimant had persistent 
 
            myofascial pain syndrome with loss of motion.  On September 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            6, 1991, Dr. DuBois again described claimant as having 
 
            myofascial pain and as having her symptoms exacerbated on 
 
            account of a depressive condition.  Dr. DuBois felt that 
 
            this had caused a vicious cycle with the depressive 
 
            condition reenforcing the myofascial pain syndrome.  
 
            
 
                 Timothy D. Leonard, M.A., a stress management and bio- 
 
            feedback therapist saw claimant on July 3, 1991.  He then 
 
            described claimant as a "good historian."  
 
            
 
                 James L. Blessman, M.D. also evaluated claimant for 
 
            consideration of her entry into a pain management program.  
 
            On September 24, 1991, Dr. Blessman stated that claimant's 
 
            "full clinical picture does not appear to one of thoracic 
 
            outlet syndrome although that certainty still is a 
 
            possibility."
 
            
 
                 Peter D. Wirtz, M.D., an orthopedist, examined claimant 
 
            at the request of Rehabilitation Consultant Anhalt.  On 
 
            October 30, 1991, Dr. Wirtz stated:
 
            
 
                    The diagnostic studies to include the 
 
                 electromyographic study reveal that there is no 
 
                 continued median nerve neuropraxia nor loss of 
 
                 motion to indicate a postoperative impairment from 
 
                 the carpal tunnel release.  The ganglion removal, 
 
                 likewise has not left the upper extremity with any 
 
                 loss of motion nor functional impairment.  The 
 
                 neck and low back conditions are subjective in 
 
                 nature in that the MRI did not show a condition of 
 
                 degeneration or neurologic impairment; therefore, 
 
                 no functional impairment.
 
            
 
                 Dr. Kienker reevaluated claimant on November 22, 1991.  
 
            Dr. Kienker then opined that claimant had a permanent 
 
            partial impairment of 70 percent of the right upper 
 
            extremity or 42 percent of the body as a whole as a result 
 
            of thoracic outlet syndrome.  Dr. Kienker stated that 
 
            claimant's permanent partial impairment would be 9 percent 
 
            [of the body as a whole] if restricted to neck and shoulder 
 
            range of motion and stated that Dr. Kienker preferred to 
 
            rate for thoracic outlet syndrome.  Dr. Kienker imposed 
 
            restrictions as follows:  Claimant is to alternate sitting, 
 
            standing, and walking at will; claimant is not to lift more 
 
            than ten pounds occasionally and is to avoid tilting her 
 
            head forward or backward; avoid repeated head rotation; 
 
            avoid raising her right arm above shoulder level; avoid 
 
            holding her arms unsupported in front of her; avoid 
 
            repetitive motions of the right shoulder; elbow or wrist; 
 
            avoid bending and twisting; and avoid working in cold 
 
            environments.  Dr. Kienker further stated that claimant 
 
            definitely could not do physical labor or assembly line 
 
            work.  Dr. Kienker further stated:
 
            
 
                    She reports that she did not have any upper 
 
                 back or arm pain prior to working with the 
 
                 rotating saw at Pella Rolscreen.  The cause of her 
 
                 upper back and arm pain was the work at Pella 
 
                 Rolscreen.  Her work at the Pleasant Park Nursing 
 
                 Home lead to an exacerbation of the symptoms, but 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
                 all of her symptoms had been present prior to 
 
                 that.
 
            
 
                 Claimant alleges three specific injury dates.  All her 
 
            claims arise from the same injury process for which claimant 
 
            left her work at Rolscreen on March 10, 1989.  March 10, 
 
            1989 is found to represent the appropriate date of 
 
            claimant's cumulative injury sustained at Rolscreen.
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                 Initially, the following issues shall be considered 
 
            concurrently:
 
            
 
                 1.  What, if any, of claimant's conditions are causally 
 
            connected to her employment at Rolscreen?
 
            
 
                 2.  What conditions are causally connected to 
 
            claimant's subsequent injury and aggravation sustained at 
 
            Pleasant Park Nursing Home?
 
            
 
                 3.  Whether claimant's disability which is found to be 
 
            related to employment at Rolscreen extends to the body as a 
 
            whole or is limited to claimant's upper extremity?  
 
            
 
                 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 circumstan 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).
 
            
 
                 It is expressly found that claimant did receive an 
 
            injury arising out of and in the course of her employment at 
 
            Rolscreen on March 10, 1989.  March 10, 1989, is both the 
 
            date of last injurious exposure and the date on which 
 
            claimant actually left work on account of her disabling 
 
            condition.
 
            
 
                 This decision will address only the question of the 
 
            nature and extent of any of claimant's conditions that are 
 
            causally connected to her employment at Rolscreen.  It is 
 
            not necessary to address the question of whether any of 
 
            claimant's conditions are causally connected to claimant's 
 
            employment at Pleasant Park Nursing Home.  Pleasant Park is 
 
            not a party to this proceeding and any statements of fact or 
 
            conclusions of law relative to Pleasant Park would not have 
 
            any preclusive effect relative to that employer.
 
            
 
                 Initially, it appears clear that claimant's carpal 
 
            tunnel on the right is a condition related to her employment 
 
            at Rolscreen.  Claimant left work to have surgical release 
 
            of the right carpal tunnel and to have a right ganglion cyst 
 
            removed.  She never returned to work.  The greater question 
 
            is whether claimant's other complaints, variously diagnosed 
 
            as thoracic outlet syndrome and myofascial pain syndrome and 
 
            depression, are related to her Rolscreen employment.  The 
 
            record, overall, does not support such a finding and 
 
            conclusion.  Only Dr. Kienker causally connects claimant's 
 
            subsequent problems which Dr. Kienker diagnoses as thoracic 
 
            outlet syndrome as related back to claimant's work at 
 
            Rolscreen.  Dr. Kienker initially saw claimant on April 10, 
 
            1991, that is, some 25 months subsequent to claimant's 
 
            leaving her Rolscreen employment.  Dr. Kienker bases her 
 
            finding of causal connection on the history claimant gave 
 
            Dr. Kienker.  In the same report, Dr. Kienker describes 
 
            claimant as only a fair historian, being vague as to dates 
 
            and details of her history.  Rehabilitation consultant Ann 
 
            Anhalt, a registered nurse, on May 9, 1991, some 26 months 
 
            after claimant left her work at Rolscreen, also 
 
            characterized claimant as a poor historian when it comes to 
 
            sequence of events and dates.  [It is noted that Timothy 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            Leonard, M.A., characterized claimant as a good historian 
 
            without further elaboration on July 3, 1991.  That 
 
            characterization is given lesser weight given that claimant 
 
            had previously developed a history in her discussions with 
 
            both Dr. Kienker and Nurse Anhalt prior to July 3, 1991.  
 
            For that reason, claimant would be expected to more aptly 
 
            recite her then current understanding of her history to Mr. 
 
            Leonard.]  
 
            
 
                 An expert's opinion based on incomplete or inaccurate 
 
            history is not necessarily binding on the commissioner but 
 
            must be weighed with other facts and circumstances.  
 
            Musselman v. Central Telephone Co., 261 Iowa 352, 154 
 
            N.W.2d 128 (1967).  
 
            
 
                 Given that both Dr. Kienker and Nurse Anhalt claimed 
 
            claimant had difficulties dealing with the sequence of dates 
 
            and details of her history, any history given Dr. Kienker 
 
            and Nurse Anhalt must be scrutinized to determine if it is 
 
            consistent with the history and symptomatology found in 
 
            medical reports and notes taken contemporaneously with 
 
            claimant's Rolscreen employment.  Contemporaneous nursing 
 
            notes of February 28, 1989, state only that claimant had 
 
            complaints of pain and swelling in the right wrist and a 
 
            small bump on her right wrist; they do not state other 
 
            complaints or symptoms.  Contemporaneous medical notes of 
 
            Dr. Adams in Spring 1989 report only the ganglion cyst and 
 
            history of pain in the right wrist and numbness involving 
 
            the index and middle finger of the right hand.  They contain 
 
            no reports of claimant having numbness throughout the whole 
 
            palm and all fingers of the right hand as claimant reported 
 
            to Dr. Kienker on April 10, 1991.  Likewise, Dr. Bergman's 
 
            notes of Summer and Fall 1989, contain complaints consistent 
 
            with the right carpal tunnel and not the variety of 
 
            complaints claimant made to Dr. Kienker on April 10, 1991.  
 
            Also, claimant did not seek any medical treatment relative 
 
            to right side symptomatology from October 1989, when Dr. 
 
            Bergman released her August 8, 1990, when she saw Dr. Neff.  
 
            One suspects that had claimant been having the severe 
 
            symptomatology which she recited to Dr. Kienker in this 
 
            interim, claimant would have sought medical care.  
 
            Additionally, Dr. Neff, a board certified orthopedic 
 
            surgeon, has opined that claimant's symptoms recorded in 
 
            August 1990 did not relate to her employment with Rolscreen.  
 
            While the exact nature of Dr. Wirtz's opinions in regards 
 
            causation are not readily apparent, Dr. Wirtz apparently 
 
            does not believe that any of claimant's conditions have left 
 
            functional impairment.  
 
            
 
                 Dr. Neff's opinion that claimant's conditions for which 
 
            he first saw her in August 1990 did not relate back to her 
 
            employment at Rolscreen is accepted over Dr. Kienker's 
 
            opinion that claimant's complaints, variously diagnosed as 
 
            thoracic outlet syndrome and myofascial pain syndrome, 
 
            related back to claimant's employment at Rolscreen.  Dr. 
 
            Neff's opinion is more consistent with the contemporaneous 
 
            nursing notes and medical notes and reports as regards 
 
            claimant's symptomatology and treatment during and 
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            immediately subsequent to her employment at Rolscreen.  
 
            They, therefore, are entitled to greater weight than the 
 
            opinions of Dr. Kienker, whose opinions are based on a 
 
            history inconsistent with the contemporaneous 1989 medical 
 
            notes and reports. Additionally, Dr. Neff's opinion of a 
 
            lack of causal relationship is more consistent with the 
 
            evidence in the record overall.  Claimant had been working 
 
            as a nurse's aide for some eight months when she first saw 
 
            Dr. Neff on August 8, 1990.  That work might have well 
 
            accounted for some of her complaints.  Additionally, while 
 
            claimant did not work outside the home between leaving 
 
            Rolscreen on March 10, 1989 and returning to work at 
 
            Pleasant Park Nursing Home on January 7, 1990, claimant was 
 
            a homemaker and a caregiver for three small children.  
 
            Claimant, in her history to Dr. Kienker, talked of pain and 
 
            right arm fatigue on doing dishes, doing laundry, mopping, 
 
            and holding her child, apparently a reference to her 
 
            toddler, although claimant's other two children also would 
 
            have been preschoolers in 1989.  The activities of running a 
 
            household of five people and caring for an infant and two 
 
            other preschoolers are certainly strenuous enough that they 
 
            might well have produced, of themselves, symptoms such as 
 
            claimant reported to Dr. Neff in August 1990.  
 
            
 
                  For all of the above reasons, the record does not 
 
            support a finding that claimant's conditions other than her 
 
            right carpal tunnel and her right ganglion cyst, apparently 
 
            removed without residuals, are conditions causally related 
 
            to her employment at Rolscreen.  Neither the ganglion cyst 
 
            nor the right carpal tunnel condition are conditions which 
 
            would extend claimant's impairment related to her employment 
 
            at Rolscreen into the body as a whole.  Claimant's condition 
 
            causally related to her employment with Rolscreen is 
 
            expressly found and concluded to be a scheduled member 
 
            impairment.  As claimant's condition related to her 
 
            Rolscreen employment is found to be a scheduled member 
 
            impairment, it is not necessary to address either the issue 
 
            of apportionment of disability between the Rolscreen injury 
 
            and any Pleasant Park Nursing Home injury or the issue of 
 
            the appropriate award for industrial disability.  The record 
 
            does not in any matter suggest that claimant's right carpal 
 
            tunnel condition properly should be apportioned in any part 
 
            to Pleasant Park Nursing Home.  
 
            
 
                 We consider issue five, the appropriate award of 
 
            permanent partial disability benefits for claimant's 
 
            disability attributable to her employment with Rolscreen.  
 
            
 
                 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 
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
            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 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).
 
            
 
                 Dr. Bergman, claimant's own physician, is the only 
 
            physician to have given a permanency rating relative to 
 
            claimant's right carpal tunnel syndrome.  [While Dr. Kienker 
 
            has rated claimant for thoracic outlet syndrome, that rating 
 
            is irrelevant for purposes of determining what permanent 
 
            partial disability is due claimant on account of her 
 
            Rolscreen injury.  As noted above, claimant's symptomatology 
 
            which Dr. Kienker has diagnosed as thoracic outlet syndrome, 
 
            a diagnosis contrary to that of other evaluating and 
 
            treating medical specialists, is not related to claimant's 
 
            work injury at Rolscreen].  Dr. Bergman had opined that 
 
            claimant has a three percent permanent partial impairment of 
 
            the upper extremity on account of her carpal tunnel 
 
            syndrome.  Carpal tunnel syndrome generally represents an 
 
            injury to the wrist; injuries to the wrist are generally 
 
            treated as injuries to the hand.  Under Table 2, page 19, 
 
            Third Edition AMA Guides to Evaluation of Permanent 
 
            Impairment, a three  percent impairment of the upper 
 
            extremity converts to a three percent impairment of the 
 
            hand.  A three percent impairment of the hand would entitle 
 
            claimant to 5.7 weeks of permanent partial disability 
 
            benefits; a three percent impairment of the upper extremity 
 
            would entitle claimant to 7.5 weeks of permanent partial 
 
            disability benefits.  Hence, determination of whether 
 
            claimant's impairment properly attributable to her injury at 
 
            Rolscreen is in the hand or the upper extremity is 
 
            necessary.  The actual situs of the injury appears to have 
 
            been at the wrist.  That, of itself, would constitute an 
 
            injury to the hand.  The record does reflect that claimant 
 
            had symptoms in the right forearm when Dr. Bergman evaluated 
 
            her on August 8, 1989.  Those symptoms may well have been 
 
            sufficient for Dr. Bergman to choose to rate claimant's 
 
            permanent partial impairment on account of her carpal tunnel 
 
            syndrome at an impairment to the upper extremity or arm and 
 
            not simply an impairment to the hand.  While this represents 
 
            a mixed question of law and fact, the doctor's assignation 
 
            of impairment to the upper extremity will not be disturbed.
 
            
 
                 We last consider claimant's entitlement to healing 
 
            period benefits.  
 
            
 
                 Iowa Code 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 
 

 
            
 
            Page  11
 
            
 
            
 
            
 
            
 
            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 has never returned to work with Rolscreen.  
 
            Claimant did return to work with Pleasant Park Nursing Home 
 
            on January 7, 1990.  Prior to that date Dr. Bergman, on 
 
            October 31, 1989, assigned claimant a permanent partial 
 
            impairment.  Subsequently on January 16, 1990, Dr. Bergman 
 
            released claimant for work without restrictions.  Each of 
 
            these dates could be considered a ending point for healing 
 
            period benefits but for the provision under section 85.34(1) 
 
            that the first to occur of the events provides the end point 
 
            for healing period benefits.  Generally, maximum medical 
 
            recovery is considered to have been achieved at least by the 
 
            date of the assignation of a permanency rating.  That date 
 
            is October 31, 1989.  Claimant is entitled to healing period 
 
            benefits from March 10, 1989 through October 31, 1989.  
 
            
 
                 WHEREFORE, the decision of the deputy is affirmed in 
 
            part and reversed in part.  
 
            
 
                                      ORDER
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 Defendants pay claimant seven point five (7.5) weeks of 
 
            permanent partial disability benefits at the rate of one 
 
            hundred ninety-one and 72/100 dollars ($191.72) per week 
 
            commencing November 1, 1989.  
 
            
 
                 Defendants pay claimant healing period benefits from 
 
            March 10, 1989 through October 31, 1989, at the rate of one 
 
            hundred ninety-one and 72/100 dollars ($191.72) per week.  
 
            
 
                 Defendants receive credit for weekly benefits 
 
            previously paid.
 
            
 
                 Defendants pay any accrued weekly benefits in a lump 
 
            sum with interest as set forth in Iowa Code section 85.30.
 
            
 
                 Claimant pay the costs of this appeal, including the 
 
            cost of transcription of the arbitration hearing.  
 
            
 
                 Defendants file claim activity reports pursuant to rule 
 
            343 IAC 3.1(2).  
 
            
 
                 Signed and filed this ____ day of May, 1993.
 
            
 
            
 
            
 
                                          ______________________________
 
                                                 BYRON K. ORTON
 
                                           INDUSTRIAL COMMISSIONER    
 
            
 

 
            
 
            Page  12
 
            
 
            
 
            
 
            
 
            Copies to:
 
            
 
            Mr. Philip F. Miller
 
            Attorney at Law
 
            309 Court Ave., Suite 200
 
            Des Moines, IA  50309
 
            
 
            Mr. D. Brian Scieszinski
 
            Attorney at Law
 
            801 Grand, Suite 3700
 
            Des Moines, IA  50309
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                          1108; 1802; 1803.1; 2600
 
                                          Filed May 26, 1993
 
                                          Byron K. Orton
 
                      
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                      
 
            STACY L. MONTGOMERY,     
 
                      
 
                 Claimant, 
 
                                            File Nos. 919123, 979225
 
            vs.                                       979226
 
                      
 
            ROLSCREEN,     
 
                                                   A P P E A L
 
                 Employer, 
 
                                                 D E C I S I O N
 
            and       
 
                      
 
            EMPLOYERS MUTUAL INS. CO.,    
 
                      
 
                 Insurance Carrier,  
 
                 Defendants.    
 
            ___________________________________________________________
 
            
 
            1108; 1802; 1803.1; 2600
 
            
 
                 Deputy affirmed in part and reversed in part.  Deputy's 
 
            finding of an injury arising out of and in the course of 
 
            employment affirmed.  Medical opinion of physician based on 
 
            claimant's history to that physician which history was given 
 
            some 25 months after claimant actually left work on account 
 
            of the injury rejected.  The physician based her opinion on 
 
            the claimant's history as recorded; the physician and a 
 
            nurse rehabilitation consultant both characterized claimant 
 
            as a fair or poor historian having only a vague recollection 
 
            of the sequence of events and details; the history given the 
 
            opining physician differed substantially from the record of 
 
            claimant's symptoms and findings recorded in medical reports 
 
            and notes made contemporaneously with claimant's initial 
 
            injury and its treatment; claimant had not sought medical 
 
            treatment for one full year before presenting with symptoms 
 
            and complaints differing substantially from those recorded 
 
            immediately prior to and immediately subsequent to her 
 
            actually leaving work with the employer.
 
            
 
 
            
 
            
 
            
 
            
 
            
 
                      BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ------------------------------------------------------------
 
            KRIS CAMPBELL,                :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 919314
 
            JOHN MORRELL AND CO.,         :
 
                                          :  A R B I T R A T I O N
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            NATIONAL UNION FIRE,          :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ------------------------------------------------------------
 
                              STATEMENT OF THE CASE
 
            
 
                 This is a proceeding in arbitration brought by Kris 
 
            Campbell, claimant, as a result of injuries to his low back, 
 
            left hip and body as a whole incurred on May 26, 1989.  The 
 
            employer admitted liability for the injury and numerous 
 
            issues are presented for determination.  
 
            
 
                 This case was heard and fully submitted in Sioux City, 
 
            Iowa, on July 29, 1994.  The record in the proceeding 
 
            consists of joint exhibits 1 through 21 and 23 through 38; 
 
            testimony from claimant, Ronald Haase, Rebecca LaDeaux, 
 
            Gregory Mings, Donna Johnson, Kenneth Surovy, and Angie 
 
            Hradec.  Claimant was represented by Dennis McElwain, 
 
            Attorney at Law.  Defendants were represented by Rita Grimm, 
 
            Attorney at Law. 
 
            
 
                                      ISSUES
 
            
 
                 The issues presented for determination are as follows:
 
            
 
                 .  Whether the May 26, 1989 injury is a cause of 
 
            industrial disability and the extent thereof;
 
            
 
                 .  The commencement date for payment of the permanent 
 
            partial disability; and
 
            
 
                 .  Whether the charges of $325 from Dr. Parsow is a 
 
            compensable aspect of the section 85.39 medical examination.
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 Having heard the testimony of the witnesses and having 
 
            examined all of the evidence in the record, the deputy 
 
            industrial commissioner finds:
 
            
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
                 Claimant, Kris Campbell, began work for the employer on 
 
            September 11, 1987.  On May 26, 1989, claimant suffered a 
 
            crush injury when he was pinned by a fork lift.  Claimant 
 
            was hospitalized through May 30, 1989.  Claimant then 
 
            received treatment from multiple doctors over the period of 
 
            years after the injury.  Claimant's injury was described as 
 
            a linear pubic ramus fracture and a chronic sacroiliac 
 
            strain.  (exhibits 16 and 23). 
 
            
 
                 Claimant did return to work for the employer and 
 
            through the date of hearing was employed in good standing at 
 
            his production job. 
 
            
 
                 Claimant over the course of treatment and discovery in 
 
            this case made a number of inconsistent statements which 
 
            lead to the finding that his testimony concerning his 
 
            physical abilities is not credible.  Based upon the medical 
 
            documentation presented by Dr. Jay Michael Donohue, a board 
 
            certified orthopedic surgeon, and the numerous inconsistent 
 
            statements of physical abilities made by the claimant as 
 
            contradicted by other witnesses indicates a general lack of 
 
            credibility on the part of claimant.  
 
            
 
                 Since the claimant's subjective complaints cannot be 
 
            considered credible, the objective findings must be closely 
 
            evaluated when determining the work restrictions.  Dr. Kevin 
 
            Liudahl, a board certified orthopedic surgeon, indicated on 
 
            June 29, 1989, that claimant had a definite snapping in his 
 
            left hip.  (ex. 16).  Dr. Liudahl also diagnosed a chronic 
 
            back strain on both March 25, 1991 and August 21, 1992.  The 
 
            causal connection to the symptoms was clearly established on 
 
            April 26, 1991.  (ex. 18).  There can be no doubt that 
 
            claimant did incur a linear pubic ramus fracture as a result 
 
            of the May 26, 1989 injury.  This was clearly documented by 
 
            x-rays.  (ex. 23).  
 
            
 
                 Several functional capacity evaluations were performed.  
 
            The first was on August 19, 1992.  (ex. 27).  This 
 
            evaluation demonstrated a consistent effort by the claimant.  
 
            However, Dr. Donohue believed that the test was invalid due 
 
            to observations of claimant, demonstrating significant 
 
            activity, in a surveillance film.  
 
            
 
                 A second functional capacity evaluation was performed 
 
            on May 19, 1993.  This evaluation demonstrated consistent 
 
            efforts and allowed claimant frequent lifting of up to 35 
 
            pounds.  (ex. 29).  It appears that the second functional 
 
            capacity evaluation should be given greater weight as it is 
 
            closer in time to the hearing and termination of medical 
 
            treatment.  Having reviewed all of the medical documentation 
 
            and considered all the evidence, it must be found that 
 
            claimant would be prohibited from performing heavy physical 
 
            labor as a result of the May 26, 1989 injury.  The weight 
 
            restrictions given by the May 19, 1993 evaluation cannot be 
 
            considered accurate due to claimant's numerous inconsistent 
 
            statements concerning his physical ability.  However, 
 
            statements made by Dr. Leonel Herrera, a board certified 
 
            neurologist, indicate that there is a significant problem 
 
            for which restrictions should be imposed.  (ex. 34, page 
 
            27).  It is also noted that as a result of the May 26, 1989 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            injury, claimant should be prohibited from frequent bending 
 
            and lifting at the waist.  
 
            
 
                 The next issue concerns the extent of permanent partial 
 
            impairment.  Jay J. Parsow, M.D., opined that claimant 
 
            suffered a 16 percent permanent partial impairment to the 
 
            body as a whole.  Dr. Parsow is a board certified physical 
 
            medicine and rehabilitation specialist.  
 
            
 
                 Dr. Donohue opined that claimant suffered no permanent 
 
            partial impairment as a result of the work injury.  
 
            
 
                 Dr. Herrera on October 10, 1991, stated that claimant 
 
            had no disability as a result of the work incident.  (ex. 
 
            25).
 
            
 
                 M.L. Wolpert, M.D., a general surgeon, states that 
 
            claimant had suffered no impairment as a result of the May 
 
            26, 1989 injury by reason of a report dated September 6, 
 
            1990.  (ex. 11).
 
            
 
                 Having considered all of the evidence, it is found that 
 
            claimant did suffer a permanent partial impairment to the 
 
            body as a whole in the range of 5 to 10 percent.  This 
 
            rating of impairment would be consistent with the objective 
 
            findings of a palpable snapping in the left hip and a 
 
            chronic low back strain.  
 
            
 
                 Other factual issues which must be determined in order 
 
            to assess industrial disability include age, education and 
 
            work experience.  Claimant was age 22 at the time of injury 
 
            with experience as a manual laborer and general mechanic.  
 
            Claimant had some training in a technical school but did not 
 
            graduate as he completed five semesters out of a 
 
            six-semester course.  Claimant has spent the majority of his 
 
            working career with John Morrell and is still employed in 
 
            good standing making over $10 per hour.  At the time of 
 
            injury claimant was earning approximately $8.50 per hour.
 
            
 
                 It must also be noted that the employer made a good 
 
            faith effort to re-employ claimant.  Claimant is a motivated 
 
            worker.  
 
            
 
                 The claimant chose Dr. Jay Parsow for his independent 
 
            medical examination under section 85.39.  Dr. Parsow charged 
 
            $325 to review evidence which was crucial to claimant's 
 
            case.  Since Dr. Parsow reviewed evidence which was 
 
            eventually offered at the time of trial, it is found that 
 
            the review was reasonable and necessary under the 
 
            circumstances.  Dr. Parsow's charges are reasonable under 
 
            the circumstances since hourly charges of up to $200 are 
 
            common within the medical profession.  (ex. 35).  
 
            
 
                         REASONING AND CONCLUSIONS OF LAW
 
            
 
                 The first issue concerns the causal connection of 
 
            permanent disability to the May 26, 1989 injury and the 
 
            extent of industrial disability.
 
            
 
                 The claimant has the burden of proving by a 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            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).
 
            
 
                 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 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            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.
 
            
 
                 It is held that the permanent disability is a direct 
 
            result of the May 26, 1989 injury.  Objective findings 
 
            indicating palpable left hip snapping and mild sacroiliac 
 
            strain demonstrate that there is a causal connection.  
 
            
 
                 The second question is the extent of entitlement to 
 
            industrial disability as a result of the May 26, 1989 
 
            injury.  It is held that claimant sustained 10 percent 
 
            industrial disability as a result of the May 26, 1989 injury 
 
            which resulted in a chronic low back strain and pain in the 
 
            left hip due to a linear pubic ramus fracture.  Claimant's 
 
            young age, indefinite work restrictions and re-employment at 
 
            a higher rate of pay work to keep the disability low.  
 
            However, claimant has sustained a definite and verifiable 
 
            injury to the low back and left hip which prevents claimant 
 
            from performing heavy manual labor.  Claimant also has some 
 
            permanent functional impairment as a result of chronic pain.  
 
            In summary, the injury and the resulting impairment will 
 
            have a definite and identifiable impact on claimant's access 
 
            to the job market.  It will restrict claimant from 
 
            performing some types of manual labor.  Claimant's education 
 
            and age certainly makeup for that loss of access to the job 
 
            market.  Thus, a 10 percent industrial disability will 
 
            adequately compensate claimant for his loss of earning 
 
            capacity caused by the May 26, 1989 injury.
 
            
 
                 The next issue is the commencement date for the payment 
 
            of permanent partial disability benefits.  This occurs at 
 
            the termination of the healing period which is best 
 
            described as July 11, 1989.  
 
            
 
                 The next issue concerns whether the $325 charge for 
 
            review of documentation in this case by Dr. Parsow is a 
 
            compensable charge under section 85.39 as an independent 
 
            medical examination.  
 
            
 
                 Section 85.39 permits an employee to be reimbursed for 
 
            subsequent examination by a physician of the employee's 
 
            choice where an employer-retained physician has previously 
 
            evaluated "permanent disability" and the employee believes 
 
            that the initial evaluation is too low.  The section also 
 
            permits reimbursement for reasonably necessary 
 
            transportation expenses incurred and for any wage loss 
 
            occasioned by the employee's attending the subsequent 
 
            examination.
 
            
 
                 Defendants are responsible only for reasonable fees 
 
            associated with claimant's independent medical examination.  
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            Claimant has the burden of proving the reasonableness of the 
 
            expenses incurred for the examination.  See Schintgen v. 
 
            Economy Fire & Casualty Co., File No. 855298 (App. April 26, 
 
            1991).  Defendants' liability for claimant's injury must be 
 
            established before defendants are obligated to reimburse 
 
            claimant for independent medical examination.  McSpadden v. 
 
            Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980)
 
            
 
                 It is held that the employer shall pay claimant $325 as 
 
            charged by Dr. Parsow for the review of documentation used 
 
            in the workers' compensation claim.  Since the information 
 
            reviewed by Dr. Parsow was an important part of the 
 
            arbitration hearing, the review of the documentation was 
 
            reasonable and necessary.  Dr. Parsow's charges of $325 are 
 
            not out of line considering the standard rate of orthopedic 
 
            surgeons and other professionals who perform independent 
 
            evaluations for workers' compensation.
 
            
 
                 There is no provision under section 85.39 for payment 
 
            of interest.  Therefore, all charges for accrued interest 
 
            made by Dr. Parsow are denied.  
 
            
 
                           
 
            
 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
                                      ORDER
 
            
 
                 IT IS, THEREFORE, ORDERED:
 
            
 
                 Defendants, John Morrell and Company and National Union 
 
            Fire Insurance Company, are to pay claimant fifty (50) weeks 
 
            of permanent partial disability benefits at the rate of two 
 
            hundred nineteen and 59/100 dollars ($219.59) per week 
 
            commencing July 11, 1989. 
 
            
 
                 It is further ordered that defendants pay claimant 
 
            three hundred twenty-five dollars ($325) for the review of 
 
            medical records performed by Dr. Parsow as part of the 
 
            section 85.39 independent medical examination.
 
            
 
                 It is further ordered that defendants shall receive 
 
            credit for benefits previously paid where applicable.
 
            
 
                 It is further ordered that all accrued benefits are to 
 
            be paid in lump sum.
 
            
 
                 It is further ordered that interest will accrue 
 
            pursuant to Iowa Code section 85.30.
 
            
 
                 It is further ordered that costs of this action are 
 
            assessed against defendants John Morrell and Company and 
 
            National Union Fire Insurance Company pursuant to rule 343 
 
            IAC 4.33.
 
            
 
                 It is further ordered that defendants file claim 
 
            activity reports as requested by this agency pursuant to 
 
            rule 343 IAC 3.1.
 
            
 
                 Signed and filed this __________ day of August, 1994.
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          MARLON D. MORMANN
 
                                          DEPUTY INDUSTRIAL COMMISSIONER    
 
            
 
            Copies to:
 
            
 
            Mr. Dennis McElwain
 
            Attorney at Law
 
            PO Box 1194
 
            Sioux City, Iowa  51102
 
            
 
            Ms. Rita Grimm
 
            Attorney at Law
 
            701 Pierce St, STE 200
 
            PO Box 3086
 
            Sioux City, Iowa  51102-3086
 
            
 
 
            
 
            
 
            
 
            
 
                                           51803 52502
 
                                           Filed August 17, 1994
 
                                           Marlon D. Mormann
 
            
 
                        BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ------------------------------------------------------------
 
            KRIS CAMPBELL, 
 
                      
 
                 Claimant, 
 
                      
 
            vs.       
 
                                               File No. 919314
 
            JOHN MORRELL AND CO.,    
 
                                             A R B I T R A T I O N
 
                 Employer, 
 
                                               D E C I S I O N
 
            and       
 
                      
 
            NATIONAL UNION FIRE,     
 
                      
 
                 Insurance Carrier,  
 
                 Defendants.    
 
            ------------------------------------------------------------
 
            51803 52502
 
            
 
            Claimant was a 22-year-old production laborer working for 
 
            John Morrell and Company when he sustained an injury to his 
 
            pelvic area and low back.  Claimant had engaged in symptom 
 
            magnification over the period of treatment.  Notwithstanding 
 
            the significant number of inconsistencies it was found that 
 
            claimant had work restrictions which prohibited him from 
 
            engaging in heavy manual labor.  Claimant was re-employed by 
 
            the employer in good faith and was in good standing at the 
 
            time of hearing earning a rate of pay higher than what he 
 
            had at the time of injury.  Claimant was found to have 
 
            functional impairment of 5 to 10 percent notwithstanding 
 
            ratings from the employer's doctors of 0 percent and 
 
            claimant's independent examiner of 16 percent.  Functional 
 
            capacity assessments were rejected which determined a 
 
            lifting restriction of between 20 and 35 pounds because of 
 
            claimant's numerous false statements concerning his physical 
 
            ability.  Claimant was held to be 10 percent industrially 
 
            disabled as a result of the injury.  An identifiable loss of 
 
            access to the job market due to an inability to perform 
 
            heavy manual labor justified a small award of benefits.
 
            Claimant's independent medical examiner charged an 
 
            additional $325 in order to review evidence which was to be 
 
            offered at the time of hearing.  The charges were found 
 
            compensable under section 85.39 because the evidence was an 
 
            important aspect of the arbitration claim.  Interest charged 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            by the independent medical examiner was denied as there is 
 
            no provision under section 85.39 for such payments.
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                           5-1803
 
                           Filed April 17, 1991
 
                           DAVID RASEY
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            JAMES D. DUSENBERY, :
 
                      :
 
                 Claimant, :         File Nos. 879532
 
                      :                   892708
 
            vs.       :                   919546
 
                      :                   921011
 
            STONE CONTAINER CORPORATION,  :
 
                      :      A R B I T R A T I O N
 
                 Employer, :
 
                      :         D E C I S I O N
 
            and       :
 
                      :
 
            AMERICAN MOTORISTS INSURANCE  :
 
            COMPANY,  :
 
                      :
 
                 Insurance Carrier,  :
 
                 Defendants.    :
 
            ____________________________________________________________
 
            
 
            5-1803
 
            Claimant suffered broken foot and three stipulated injuries 
 
            to back, neck and shoulder, but failed to prove permanent 
 
            disability as to any injury.