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                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         ____________________________________________________________
 
                                       :
 
         SHEILA SITTERLY,              :
 
                                       :
 
              Claimant,                :      File No. 920200
 
                                       :
 
         vs.                           :
 
                                       :  A R B I T R A T I O N
 
         NORTHWEST FABRICS & CRAFTS,   :
 
                                       :      D E C I S I O N
 
              Employer,                :    
 
              Self-Insured,            :      
 
              Defendant.               :
 
         ___________________________________________________________
 
         
 
              This is a proceeding in arbitration brought by Sheila 
 
         Sitterly, claimant against Northwest Fabrics & Crafts, employer 
 
         and self-insured defendant, for benefits as the result of an 
 
         alleged injury which occurred on January 27, 1989.  A hearing was 
 
         held in Des Moines, Iowa, on April 15, 1992, and the case was 
 
         fully submitted at the close of the hearing.  Claimant was 
 
         represented by Thomas J. Currie.  Defendants were represented by 
 
         E.J. Giovannetti.  The record consists of the testimony of Sheila 
 
         Sitterly, claimant; Elizabeth Buehler, claimant's friend; Nancy 
 
         J. Sauerman, former teacher of claimant; Mary Lou Midcalf, 
 
         claimant's supervisor; LeeAnn Grimley, store manager; joint 
 
         exhibits 1 through 12; claimant's exhibits 1 through 15; and 
 
         defendant's exhibits A and B.  Both attorneys submitted a brief 
 
         description of disputes at the time of the hearing.  The deputy 
 
         ordered a transcript of the hearing.  Both attorneys submitted 
 
         outstanding posthearing briefs.
 
         
 
                              PRELIMINARY MATTERS
 
         
 
              At the time of the hearing, defendant's attorney agreed to 
 
         pay the only outstanding medical which was for treatment of 
 
         claimant and claimant withdrew the issue of medical benefits 
 
         under Iowa Code section 85.27 which was designated as a hearing 
 
         issue on the hearing assignment order.  Defendant withdrew the 
 
         issue of credit for nonoccupational group health plan benefits 
 
         paid to claimant prior to hearing under Iowa Code section 
 
         85.32(2).
 
         
 
                                      ISSUES
 
         
 
              The parties submitted the following issues for determination 
 
         at the time of the hearing:
 
         
 
              Whether claimant sustained an injury on January 27, 1989, 
 
         which arose out of and in the course of employment with employer;
 
         
 
              Whether the injury was a cause of either temporary or 
 
         permanent disability;
 
         
 
              Whether claimant is entitled to permanent disability 
 
         benefits, and if so, the extent of benefits to which she is 
 
         entitled; and
 
         
 

 
         
 
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              Whether claimant is entitled to an independent medical 
 
         examination under Iowa Code section 85.39 and the mileage for the 
 
         transportation expense to and from the examination.
 
         
 
                                 FINDINGS OF FACT
 
         
 
                                      INJURY
 
         
 
              It is determined that claimant sustained a head injury on 
 
         January 27, 1989, which arose out of and in the course of 
 
         employment with employer.
 
         
 
              It is further determined that claimant did not sustain a 
 
         closed head injury, frontal lobe injury or partial complex 
 
         seizures, but rather she sustained a moderate head trauma (joint 
 
         exhibit 10, page 9) which is best described as post-concussive 
 
         syndrome (jt. ex. 5, p. 9).
 
         
 
              Claimant started to work for employer on June 23, 1981, as a 
 
         sales clerk in Rockford, Illinois (ex. 12, p. 69).  Subsequently, 
 
         after some short intervening employment she transferred to one of 
 
         the Cedar Rapids stores on March 15, 1985 (ex. 12, p. 23).  
 
         Claimant continued to work for employer at the time of the 
 
         hearing and thus is an approximate 10-year employee of employer.  
 
         Over the years claimant received numerous, excellent, highly 
 
         favorable and complimentary employee evaluations from her 
 
         supervisors (ex. 12).  After graduating from high school, 
 
         claimant obtained an associate of arts degree from Kirkwood 
 
         Community College in Cedar Rapids where she maintained a high 
 
         grade point average and graduated with honors in December 1991.  
 
         Her transcript indicates that she was on the Dean's list 
 
         (claimant's ex. 12, pp. 1-2).  A faculty member of the 
 
         communication arts department in 1989 nominated claimant for 
 
         recognition at the 1989 Kirkwood Outstanding Students Ceremony.  
 
         Even though claimant was not selected, she was recognized by an 
 
         assistant dean with a letter of commendation on February 28, 
 
         1989, for her academic performance, commitment to learning and 
 
         great promise as a future scholar (cl. ex. 13; transcript p. 68).
 
         
 
              During her entire adult life claimant has worked as a 
 
         homemaker for her husband and adopted son, worked outside her 
 
         home in a wide variety of employments and at the same time 
 
         attended college and achieved high grades and several honors.  
 
         Past employments include work as an assembler on an assembly 
 
         line, dispatcher and bookkeeper with her father in a taxi cab 
 
         company, a shampoo girl in a beauty shop, a sales auditor and 
 
         bookkeeper with a department store, an upholsterer and decorator 
 
         in her husband's family business, a sales clerk in a department 
 
         store, and a bridal clothing, flower and decoration consultant 
 
         (ex. A, pp. 8-11).  Claimant also testified at hearing that she 
 
         worked in the photography business producing high school annuals 
 
         and also performed general printing work.  She has also developed 
 
         an expertise for working with modern day cash registers which can 
 
         be quite complicated (tr. pp. 22-27).  
 
         
 
              For employer, she has served as a customer service 
 
         representative; created several sales promotional ideas and given 
 
         classes on beads, flowers, floral arrangements, bows, ribbons, 
 
         sewing, home decorating, bridal arrangements, as well as painting 
 
         t-shirts and other objects (ex. A, pp. 8-10; tr. pp. 27-31).  
 

 
         
 
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         Claimant also constructed several attractive store displays for 
 
         employer (tr. p. 93).
 
         
 
              Claimant denied and there is no evidence of any prior 
 
         injuries, accidents or physical health problems (tr. pp. 31, 32, 
 
         55-66 & 116). 
 
         
 
              Claimant testified that on January 27, 1989, while 
 
         straightening up and rearranging merchandise on a lower shelf to 
 
         make it look more shopable, that a wooden goose fell 
 
         approximately three feet or four feet and struck her in the back 
 
         left side, towards the top of her head (tr. pp. 32-43).  At the 
 
         time of the injury she heard a big bang but thought it was a 
 
         coemployee in the adjacent frame shop.  Claimant remembers 
 
         feeling sick and having difficulty in standing up from a bent 
 
         over position (tr. p. 34).  She said her head started feeling 
 
         funny and then she felt it was wet from blood (tr. p. 35).  She 
 
         said that she felt like she was going to pass out but did not 
 
         lose consciousness.  She was assisted by customers and 
 
         coemployees when it was discovered she was injured (tr. pp. 
 
         35-37).  
 
         
 
              The wooden goose was introduced into evidence (ex. 1).  No 
 
         evidence was submitted on the weight of the goose anywhere in the 
 
         record.  One doctor estimated that it might weigh ten pounds but 
 
         defendant contended that it weighed less.  The goose measured 
 
         approximately 28 inches from left to right, 9 inches from top to 
 
         bottom and 3/4 of an inch thick.  These measurements are 
 
         illustrated in the photographs (cl. ex. 15, pp. 1-4).  The scene 
 
         of the injury, including the location of the goose and claimant, 
 
         are also shown in the photographs (cl. ex. 15, pp. 5-7).
 
         
 
              It would appear as though when claimant was bent over 
 
         putting gates on the shelves to separate the merchandise (tr. p. 
 
         39), the goose, which was simply standing on the top narrow ledge 
 
         of the entire framework, was disturbed and fell approximately 
 
         four feet and struck claimant on the back left side of her head 
 
         (tr. pp. 39-43; ex. 15, p. 7).
 
         
 
              There were no witnesses to the accident itself.
 
         
 
              Claimant gave substantially the same description of the 
 
         injury on the employee injury report (ex. 12, p. 15).
 
         
 
              Claimant was taken to see Laura Rega, M.D., at MediCenter 
 
         West for emergency care.  Dr. Rega reported on January 27, 1989, 
 
         that a wooden goose fell from a shelf on claimant's head.  She 
 
         suffered no loss of consciousness, nausea or vomiting, but did 
 
         feel light headed initially.  The doctor observed that claimant 
 
         was alert, oriented and neurologically ok.  She recorded a three 
 
         x two centimeter lump on the left posterior scalp and a one and 
 
         one-half centimeter laceration (or hole).  Dr. Rega closed the 
 
         wound with three sutures and gave a tetanus booster.  Claimant 
 
         was directed to be rechecked in one week (jt. ex. 7, p. 1).  
 
         
 
              A CT scan was ordered on January 31, 1989 (jt. ex. 7, p. 3) 
 
         which disclosed the ventricular system was normal in size, 
 
         configuration and position.  No intra or extra axial lesions were 
 
         identified.  Examination of the bone windows disclosed no 
 
         evidence of a fracture.  The results of the examination were 
 

 
         
 
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         shown as normal (jt. ex. 9, p. 2).  Dr. Rega stated that her 
 
         physical examination on several occasions was essentially normal 
 
         but claimant continued to complain of posttraumatic headaches, 
 
         memory loss and problems concentrating.  Dr. Rega advised a 
 
         neurologist and recorded:
 
         
 
              ...We made an appointment from our office for her with 
 
              Dr. Strieb [sic] in Cedar Rapids on February 22, 
 
              however the patient called back later and reported that 
 
              she had set up her own appointment with Dr. Verduyn in 
 
              Waterloo, Iowa on February 20, 1989.  We have not 
 
              received any reports from Dr. Verduyn or seen the 
 
              patient further in followup [sic] since then....
 
         
 
          (jt. ex. 7, pp. 7 & 8).
 
         
 
              On February 20, 1989, claimant saw Deborah N. Kimmel, M.D., 
 
         at Dr. Verduyn's office.  Even though Dr. Kimmel's physical 
 
         examination was essentially normal, and on a mini mental state 
 
         examination, claimant scored 30 out of 30, nevertheless, Dr. 
 
         Kimmel diagnosed a possible closed head injury apparently based 
 
         on claimant's subjective symptoms of poor memory, difficulty 
 
         concentrating and inability to complete her homework.  Dr. Kimmel 
 
         ordered a 24-hour EEG to rule out seizure disorder and a 
 
         neuropsychological evaluation to get a better understanding of 
 
         her current cognitive functioning (cl. ex. 7, pp. 1-2).  The EEG 
 
         ordered by Dr. Kimmel was performed on March 8, 1989, at Covenant 
 
         Medical Center.  M. Eyad Duhly, M.D., reported that this is a 
 
         normal EEG recording.  There are no focal abnormalities and no 
 
         epileptogenic discharges (jt. ex. 4).  The 24-hour EEG was 
 
         essentially normal (ex. ex. 7, p. 4).  Mark E. Hines, M.D., 
 
         reported on March 13, 1989, that the 24-hour ambulatory EEG 
 
         revealed no abnormalities which could not be explained on the 
 
         basis of muscle or artifact (ex. 6, p. 1).
 
         
 
              On March 16, 1989, Dr. Kimmel reported that John D. Bayless, 
 
         Ph.D., gave a neuropsychological evaluation and concluded the 
 
         claimant may have a partial complex seizure disorder (cl. ex. 7, 
 
         p. 4).   Dr. Kimmel prescribed Tegretol, an anticonvulsant 
 
         medication and instructed claimant that she should not be driving 
 
         at that time (cl. ex. 7, p. 4).  On April 26, 1989, claimant 
 
         developed weakness and dizziness and reported on her own volition 
 
         to the emergency room at St. Luke's Hospital where L.M. Lawrence, 
 
         M.D., diagnosed the possible side effect symptoms from Tegretol 
 
         (jt. ex. 9, p. 4).  Two days later, on April 28, 1989, claimant 
 
         felt a sudden onset of weakness and a creepy feeling inside and 
 
         was taken by ambulance again to the emergency room at St. Luke's 
 
         Hospital.  C. Hovda, M.D., stated that claimant has had no 
 
         seizures and he diagnosed probable anxiety reaction (jt. ex. 9, 
 
         p. 7).  Dr. Kimmel discontinued the Tegretol on May 1, 1989, but 
 
         restarted it on a lower dosage on May 22, 1989 (cl. ex. 7, p. 6).
 
         
 
              On May 3, 1989, Dr. Kimmel reported that she received a call 
 
         from Warren Edwards, the psychologist for claimant's husband at 
 
         the VA hospital in Iowa City, who reported that claimant was very 
 
         depressed with an acute affective disorder problem.  Dr. Kimmel 
 
         reported, "Although her husband is schizophrenic, she was always 
 
         able to keep the family unit running well and never decompensated 
 
         like this before."  (cl. ex. 7, p. 7).
 
         
 

 
         
 
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              When claimant saw John D. Bayless, Ph.D., for psychological 
 
         testing on March 8, 1989, he reported, "On interview, the patient 
 
         reports the following changes associated with underlying 
 
         epilepiform disorder; 1. headaches with nausea, 2.  word finding 
 
         difficulties, slurred speech and paraphasias, 3.  confusional 
 
         spells, 4. memory gaps, 5. automatisms, 6. subjective mental 
 
         decline, and 7. anger outbursts."  (cl. ex. 3, pp. 1-2).
 
         
 
              Dr. Bayless concluded:
 
         
 
              IMPRESSION:  1. Multiple cognitive and emotional 
 
              symptoms of a type associated with partial complex 
 
              seizure disorder.  
 
         
 
              2.  Partial anosmia raises the question of frontal lobe 
 
              dysfunction and possible difficulties in returning to 
 
              vocational activity. 
 
         
 
              3.  MMPI suggest depression, probably organic affective 
 
              disorder.  
 
         
 
              4.  Moderate defects in verbal memory functioning 
 
              consistent with the patient's subjective reports.  
 
         
 
              5.  High average intellectual and academic functioning, 
 
              with normal nonverbal memory functioning.
 
         
 
         (claimant's exhibit 3, pages 2-3)
 
         
 
              Strangely, even though it had been reported by Dr. Kimmel 
 
         that claimant had failed a dichotic listening test administered 
 
         by Dr. Varney at the request of Dr. Edwards, nevertheless, Dr. 
 
         Bayless reported, "Surprisingly, readministration of the dichotic 
 
         listening test yielded normal results bilaterally." (cl. ex. 3, 
 
         p. 2).  
 
         
 
              Claimant eventually did see Erich W. Streib, M.D., a 
 
         neurologist, on April 20, 1989, for a complete physical 
 
         examination.  Dr. Streib reported, "When asked why a diagnosis of 
 
         seizures was made, she indicates that the basis for this 
 
         diagnosis was her intermittent inability to concentrate and her 
 
         thoughts would go off.  She, herself, denies that she loses 
 
         consciousness completely and that she ever gets stiff or shakes." 
 
         (jt. ex. 10, p. 1).  Dr. Streib concluded claimant had a blunt 
 
         head trauma without skull fracture but with a laceration which 
 
         needed to be sutured.  He did not hear anything in her history 
 
         which would make him particularly suspicious that she has complex 
 
         partial seizures or other posttraumatic epilepsy.  He recommended 
 
         a repeat EEG and a 24-hour ambulatory EEG and a new 
 
         neuropsychological evaluation (ex. 10, pp. 2-3).  
 
         
 
              On May 11, 1989, Sallie F. Sun, M.D., reported a normal 
 
         awake EEG (jt. ex. 6, p. 1).  On May 19, 1989, Dr. Sun reported 
 
         that portions of patient's waking and sleeping record were all 
 
         normal and that there were no alterations in the ambulatory 
 
         23-hour EEG when claimant pressed the event recorder to denote 
 
         the presence of head pain (jt. ex. 6, p. 2).
 
         
 
              On June 7, 1989, Dr. Streib explained that state laws 
 
         prohibit patients with epilepsy from driving until a patient has 
 

 
         
 
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         been seizure free for six months.  He concluded that since she 
 
         does not have seizures then there is no restriction on her 
 
         driving in this regard (jt. ex. 10, p. 7).  On June 12, 1989, Dr. 
 
         Streib related that a normal 20-lead EEG and normal 24-hour 
 
         ambulatory EEG confirmed there were no symptoms to suggest that 
 
         the patient had seizures.  In his mind their was no evidence of 
 
         seizure disorder, in particular, no evidence of complex partial 
 
         seizures.  He said the two episodes of shortness of breath 
 
         necessitating two visits to the emergency room were diagnosed as 
 
         hyperventilation syndrome.  He said her examination was now 
 
         normal.  
 
         
 
              Dr. Streib's assessment was (1) that as status post head 
 
         trauma.  No evidence to suggest any prolonged complications such 
 
         as seizures (2) possible underlying or residual anxiety and (3) 
 
         otherwise well recovered.  He recommended she discontinue 
 
         Tegretol altogether and she was encouraged to increase her 
 
         physical activities as much as tolerated.  He said that since she 
 
         does not have seizures there is no limitation in her driving 
 
         ability and there is no need for her to have a driver 
 
         re-education training program (jt. ex. 10, p. 4).  
 
         
 
              Dr. Streib released claimant to return to work on June 28, 
 
         1989, without restrictions (jt. ex. 10, p. 5).  On July 11, 1989, 
 
         Dr. Streib said he could not find any history for complex partial 
 
         seizures.  He further stated that a seizure diagnosis is a 
 
         clinical diagnosis that is made on the basis of an evaluation by 
 
         a neurologist.  He questioned that it should not be made on a 
 
         basis of a neuropsychological examination as was done by Dr. 
 
         Kimmel.  He further acknowledged that the normal EEG and 
 
         prolonged EEG does not exclude the possibility of seizures.  Dr. 
 
         Streib concluded:
 
         
 
                 Whenever I saw Mrs. Sitterly she appeared to be very 
 
              pleasant, cooperative and I could find no neurological 
 
              abnormalities.  I am pleased to say that she recovered 
 
              completely and I have released her for full work.  It 
 
              has to be seen whether she will sustain this for the 
 
              initial time.  My tentative diagnosis is status post 
 
              mild to moderate head trauma without neurologic 
 
              sequelae or any suggestion that she sustained seizures.  
 
              She certainly sustained a head trauma initially when 
 
              the wooden goose fell on her head.  Maybe a different 
 
              initial management may have shortened her time of 
 
              disability but this is open to question.  I see no 
 
              sustained permanent or partial impairment as a result 
 
              of this injury at this time.
 
         
 
         (joint exhibit 10, page 9)
 
         
 
              On September 8, 1989, Dr. Streib stated that claimant was 
 
         fully recovered from her head trauma and posttraumatic headaches, 
 
         except that she presently is not able to take physical stress as 
 
         well as previously.  He strongly suggested that she should not 
 
         work a 12-hour shift and she should not work eight hours 
 
         continuously without a break.  He recommended that she work four 
 
         hours and have a one hour break and then work another four hours 
 
         (jt. ex. 10, p. 10).
 
         
 
              Claimant was referred to Ali Safdar, M.D., a psychiatrist, 
 

 
         
 
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         by the Family Service Agency on May 15, 1989, because after the 
 
         Tegretol was stopped, she became depressed, angry and had some 
 
         suicidal thoughts.  Subsequently, she was prescribed some 
 
         amitriptyline and she felt better.  She was on no medications at 
 
         the time of this examination and did not want any medications.  
 
         
 
              Claimant told Dr. Safdar she suffered some memory impairment 
 
         from the head injury in January 1989.  She related that her 
 
         husband was a Viet Nam veteran who suffered from posttraumatic 
 
         stress disorder.  She related that she could handle this a lot 
 
         better before her own memory disturbance and since then she had 
 
         not been handling it as well.  She also related that her adopted 
 
         teenager son suffered from attention deficit disorder with 
 
         hyperactivity and was under the care of a doctor.  Since the 
 
         injury, she has been restricted from working, going to school and 
 
         driving.  She related that she feels upset and panicky when she 
 
         cannot remember things.  
 
         
 
              Dr. Safdar related that her memory seems to be impaired.  
 
         Otherwise, her mental status assessment was not unusual.  He 
 
         diagnosed (1) axis I: adjustment disorder with depressed mood (2) 
 
         axis II: deferred (3) axis III: history of head injuries with 
 
         some memory impairment.  Dr. Safdar saw claimant again on June 2, 
 
         1989, at which time she related the Tegretol made her sick and 
 
         she looked like she was drunk but Dr. Kimmel placed her on it 
 
         again with a reduced dosage.  She was on no medication on June 2, 
 
         1989, and the doctor said the patient seems to be doing fairly 
 
         well at this time (cl. ex. 8, pp. 1-5).  
 
         
 
              Claimant saw Dr. Safdar on August 16, 1989, and even though 
 
         she related a number of everyday problems she had been eating and 
 
         feeling fairly well (cl. ex. 8, p. 6).
 
         
 
              In March 1990, Dr. Streib stated that he could never 
 
         convince himself that claimant had any major sequelae of the head 
 
         trauma and certainly not complex partial seizures and he welcomed 
 
         a second opinion (ex. 10, pp. 11-13) and claimant was sent to see 
 
         Michael L. Cullen, M.D., a neurologist.  
 
         
 
              On April 6, 1990, Dr. Streib told claimant's counsel he did 
 
         not think that her head injury was severe enough to likely cause 
 
         posttraumatic seizures.  He said seizures are more prominent in 
 
         persons who have open head trauma or a depressed skull fracture 
 
         where there is actually damage to the underlying brain.  He said 
 
         there was no clinical or laboratory evidence to suggest she does 
 
         have seizures.  He agreed that she may have some head discomfort 
 
         and dizziness but denied that episodes of inability to function 
 
         and blackouts were related to this injury.  For this reason he 
 
         welcomed a second opinion (jt. ex. 10, pp. 14 & 15).
 
         
 
              Dr. Cullen reported on May 10, 1990, and made a very 
 
         detailed history from the date of the injury on January 27, 1989, 
 
         until the date of his examination.  He reported that she had 
 
         difficulties functioning at work but she was able to go to school 
 
         full time in the fall of 1989 carrying at least 12 hours 
 
         obtaining primarily B grades and one A compared to her previous 
 
         performance of nearly straight A's.  Dr. Cullen performed a 
 
         thorough neurologic examination.  Dr. Cullen arrived at this 
 
         conclusion:
 
         
 

 
         
 
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              Impression:  History of head trauma, January 27, 1989.  
 
              Although the immediate sequelae (i.e. absence of loss 
 
              of consciousness, amnesia, etc.) are not particularly 
 
              striking, certainly the ensuing reported incapacitation 
 
              is striking for a significant neurologic involvement 
 
              related to her head trauma.  I feel that she presents a 
 
              convincing history for post-traumatic [sic] headaches 
 
              and a postconcussive syndrome.  I have no other option 
 
              but to believe that her problems are all related to the 
 
              head trauma of January 27, 1989.
 
         
 
         (joint exhibit 5, page 4)
 
         
 
              On June 29, 1990, Dr. Cullen requested his own 
 
         neuropsychologic examination from the University of Iowa Medical 
 
         Center, Department of Psychology/Neuropsychology (jt. ex. 5, p. 
 
         5).  On August 22, 1990, R. Dallas Jones, Ph.D., wrote to Dr. 
 
         Cullen his psychological testing (MMPI) performed on August 1, 
 
         1990, produced the following results:  (1) Claimant may have some 
 
         residual cognitive impairment related to the head trauma of 
 
         January 27, 1989, however the nature and extent are difficult to 
 
         discern in light of her tendency to focus on physical complaints, 
 
         and the possibility that some of her deficits may be exaggerated; 
 
         (2) The prognosis regarding her current condition is unclear 
 
         since the nature and extent of cognizant deficits are unclear; 
 
         and (3)  That claimant be evaluated by a psychologist or 
 
         psychiatrist regarding pharmacological intervention for her 
 
         current distress.  In addition he recommended a second cognitive 
 
         evaluation when her current distress had subsided to evaluate 
 
         more clearly the nature and extent of any possible cognitive 
 
         dysfunction (jt. ex. 5, p. 7; jt. ex. 11, p. 1).
 
         
 
              At this same general time frame, in the summer of 1990, 
 
         claimant was examined by Frank S. Gersh, Ph.D., a clinical 
 
         psychologist, for a vocational rehabilitation counselor.  
 
         Claimant complained of difficulties trying to work and lower 
 
         grades when she attended school.  Dr. Gersh performed several 
 
         tests.  Claimant reported several difficulties at home, at school 
 
         and in everyday life.  Dr. Gersh made these conclusions:
 
         
 
              Impression:  
 
         
 
              (1) Atypical organic brain syndrome secondary to closed 
 
              head injury.  Frontal and temporal lobe functions 
 
              appear to be affected the most.  Verbal as opposed to 
 
              visual functioning is most significantly impaired.
 
         
 
              (2)  Organic personality syndrome with periods of 
 
              depression, irritability and perplexity. 
 
         
 
              (3)  Symptoms consistent with partial complex seizure 
 
              disorder including headaches, changes in consciousness, 
 
              difficulty in concentrating, tingling sensations and 
 
              others.
 
         
 
              Recommendations:  Although Ms. Sitterly is capable of 
 
              pursuing an art degree at this time, her level of 
 
              discomfort is so severe that she needs to be evaluated 
 
              by a neurologist who specializes in head injury, or by 
 
              a head injury specialist, for possible anticonvulsant 
 

 
         
 
         Page   9
 
         
 
         
 
         
 
         
 
              treatment.
 
         
 
         (claimant's exhibit 5, page 5)
 
         
 
              Dr. Cullen re-examined claimant on February 19, 1991, and 
 
         reported on March 1, 1991, that claimant was now two years status 
 
         posthead injury with the diagnosis of post-concussion syndrome.  
 
         He added that she was dazed but did not experience loss of 
 
         consciousness or amnesia, but early on claimed to have problems 
 
         with memory and concentration.  She had just completed nine hours 
 
         of college level work but was vague as to her performance.  She 
 
         maintained she could not remember specific data about specific 
 
         classes.  Dr. Cullen then commented, "I find it interesting that 
 
         Mrs. Sitterly, at the end of our conversation acknowledging the 
 
         aforementioned difficulties with memory, specifically engages me 
 
         in a discussion regarding medications and recalls details of our 
 
         conversation from nearly a year ago.  I find this somewhat 
 
         incongruous with regard to the aforementioned difficulties." (jt. 
 
         ex. 5, p. 8).  Dr. Cullen said she had seen a psychiatrist in 
 
         Cedar Rapids who felt there was no evidence of a psychiatric 
 
         disorder.  
 
         
 
              Dr. Cullen maintained his diagnosis of postconcussive 
 
         syndrome.  He said she should continue her part-time employment 
 
         and continue her education.  He added that the consensus of all 
 
         the neuropsychiatric evaluations that she has undergone is that 
 
         her difficulties are mild to moderate in character at the worst.  
 
         He graded them as mild in severity.  He requested to see her 
 
         again at the end of the current semester (jt. ex. 5, p. 9).  
 
         
 
              On January 10, 1991, Rick Rinehart, M.D., a psychiatrist, 
 
         wrote that he examined claimant on December 28, 1990.  He related 
 
         that claimant complained of memory loss, cognitive difficulty in 
 
         processing information and word finding, headaches, carsickness, 
 
         and dizziness at times.  He said these symptoms had been slowly 
 
         resolving.  But she still had difficulties at work and at school.  
 
         Her physical symptoms were gradually improving but were still 
 
         present.  
 
         
 
              He noted that Dr. Kimmel had treated claimant for partial 
 
         complex seizures with Tegretol despite the fact that the patient 
 
         had a normal CT scan and that an MMPI done at that time suggested 
 
         depression and probable organic effective disorder.  He noted 
 
         that Dr. Streib disagreed with the diagnosis of seizure disorder 
 
         particularly after a normal EEG and a normal 24-hour monitored 
 
         EEG.  Dr. Rinehart noted that the University of Iowa MMPI 
 
         suggested that claimant focused on physical complaints and may 
 
         have exaggerated her symptoms.  Furthermore, formal 
 
         neuropsychological testing suggested that she only had mild 
 
         cognitive defects related to her head trauma.
 
         
 
              Dr. Rinehart concluded that here is no evidence of any major 
 
         depressive disorder, any anxiety disorder or other types of 
 
         psychiatric problems present or in the past.  Her past social 
 
         history would suggest a stable person and there is no evidence of 
 
         a personality disorder.  Her psychomotor activity was normal.  
 
         Her mood was neutral, affect full and appropriate.  There was no 
 
         evidence of formal thought disorder.  There was no evidence of 
 
         delusions, hallucinations and she had no suicidal ideations.  Her 
 
         insight and judgement were good.  Dr. Rinehart concluded that 
 

 
         
 
         Page  10
 
         
 
         
 
         
 
         
 
         claimant is continuing to have difficulty with memory and 
 
         physical complaints that would suggest a postconcussive syndrome 
 
         which was improving.  He was not able to determine if she would 
 
         have full recovery.  His final statement was that he did not 
 
         believe symptomatic treatment of her physical symptoms should be 
 
         continued (jt. ex. 8, pp. 1-2).
 
         
 
              On April 10, 1991, Dr. Cullen recommended a follow-up 
 
         neuropsychologic examination which had been recommended earlier 
 
         by R. Dallas Jones (jt. ex. 5, pp. 10-11).
 
         
 
              The records show that claimant was examined by John C. 
 
         Brooke, Ph.D., for a neuropsychological assessment.  The dates of 
 
         testing were May 22, 1991 and August 5, 1991.  The test results 
 
         showed (1) significant psychological/emotional pathology; (2) 
 
         mostly average to above average neuropsychological functioning; 
 
         (3) a significant and global decrease of intelligence test 
 
         performance the reason for which is unclear; and (4) compared to 
 
         1990, verbal memory, visual memory scores were similar, 
 
         speech/language orientation remain normal, an executive function 
 
         (ability to change concepts) improved.  Dr. Brooke concluded 
 
         there are some verbal attention and concentration problems, thus 
 
         verbal learning (short-term memory) will be hampered but these 
 
         problems are relatively minor and can be explained as easily by 
 
         the patient's psychological problems as by physical trauma.  The 
 
         drop in IQ scores does not fit any hypotheses of which he was 
 
         aware and remained unexplained (jt. ex. 3, p. 1).  
 
         
 
              In scoring claimant's MMPI Dr. Brooke noted that her profile 
 
         implies a tendency to displace psychological conflict into 
 
         physical symptoms.  These adults tend to be suggestible and they 
 
         focus on their physical well being often simply denying the 
 
         importance of their emotional well being.  Others usually see how 
 
         the physical symptoms could have secondary gain or be symbolic 
 
         representations of psychological conflict, but mention of this to 
 
         the patient can bring an angry response (jt. ex. 3, p. 2).
 
         
 
              Dr. Brooke's comments are quite suggestive of the fact that 
 
         her husband's psychological problems and treatment and her son's 
 
         attention deficit with hyperactivity disorder for which he is 
 
         being treated may well be manifesting themselves in the symptoms 
 
         exhibited by claimant.
 
         
 
              Based upon the evaluation of Dr. John Brooke, Dr. Cullen 
 
         stated that it was his opinion that Sheila Sitterly has a 10 
 
         percent impairment of the whole person based on the history of 
 
         head injury and the subsequent consequences.  He said his opinion 
 
         was based on the AMA Guides to the Evaluation of Permanent 
 
         Impairment (jt. ex. 5, p. 12).
 
         
 
              On January 7, 1992, Dr. Cullen reported that claimant 
 
         related that during the past semester she completed seven to nine 
 
         hours of class credit and was able to drive 45 minutes to and 
 
         from class.  He noted that her thought process was inconsistent 
 
         because she had difficulty remembering the mileage from home to 
 
         Iowa City which she had driven on a daily basis, but could 
 
         quickly recall the classes that she was anticipating taking in 
 
         the upcoming semester.  Claimant reported a blank spell (without 
 
         loss of consciousness) where she almost hit a van and Dr. Cullen 
 
         advised her not to drive for a period of six months (jt. ex. 5, 
 

 
         
 
         Page  11
 
         
 
         
 
         
 
         
 
         pp. 14 & 15).  
 
         
 
              Dr. Cullen's final report on January 16, 1992, to the 
 
         Division of Vocational Rehabilitation Services, stated that 
 
         claimant had a history of a closed head injury of mild 
 
         circumstances.  Her evaluation was nonrevealing save for mild to 
 
         moderate cognitive impairment on neuropsychologic testing.  At 
 
         this juncture her only restriction was that of driving.  He said 
 
         she had mild cognitive difficulties with headaches which are 
 
         treated medicinally (jt. ex. 5, p. 13).
 
         
 
              Claimant was reevaluated by Dr. Jones, the psychologist, at 
 
         the University of Iowa on January 29, 1992.  He noted that 
 
         claimant did not lose consciousness and she denied retrograde or 
 
         anterograde amnesia associated with this event.  He noted that in 
 
         August of 1990 his impression was that there was a possibility of 
 
         cognitive impairments but that psychological factors were also 
 
         playing a role in her complaints.  Dr. Jones noted that claimant 
 
         had neuropsychological tests previously by Dr. John Bayless 
 
         (3-89), Dr. Frank Gersh (7-90) and Dr. John Brooke (8-91) and 
 
         that he had reviewed the results of all of these assessments.  In 
 
         his final report dated February 17, 1992, Dr. Jones concluded:
 
         
 
                 The results of our most recent assessment suggest 
 
              that Ms. Sitterly does not have a clear post-traumatic 
 
              [sic] head injury syndrome.  Although there are 
 
              circumscribed impairments on certain tests, the overall 
 
              configuration of deficits does not clearly conform to 
 
              what would be expected following a mild head injury.  
 
              Additionally and significantly, comparison of our most 
 
              recent exam with previous assessments reveals a course 
 
              of decline in some areas that is inconsistent with the 
 
              expected course of a post-traumatic [sic] head injury.
 
         
 
                 Finally, it is noteworthy that psychological testing 
 
              (MMPI) was suggestive of a tendency to complain of 
 
              multiple somatic symptoms when under stress.  Such 
 
              symptoms are usually vague, difficult to isolate 
 
              medically, and may be anatomically impossible.  In 
 
              individuals with similar profiles, these complaints 
 
              tend to diminish as psychological stress is reduced.
 
         
 
         (joint exhibit 11, pages 2-3)
 
         
 
              An independent medical examination for claimant was 
 
         performed on December 16, 1991 and March 4, 1992, by Mark E. 
 
         Hines, M.D.  On December 16, 1991, Dr. Hines traced the history 
 
         and recorded a number of claimant's subjective complaints.  A 
 
         questionnaire that she completed was consistent with partial 
 
         seizures.  A large number of her symptoms were consistent with 
 
         frontal lobe symptomology.  Nevertheless, the final conclusion of 
 
         Dr. Hines was as follows:
 
         
 
              Neurological Examination
 
         
 
              Mental Status:  The patient was fully oriented.  Her 
 
              memory showed some impairment particularly with regard 
 
              to the examiners name and the Presidents recall.  The 
 
              patient had difficulties with digits forward but this 
 
              was minimal.  The patient had no difficulties otherwise 
 

 
         
 
         Page  12
 
         
 
         
 
         
 
         
 
              with concentration and mental tracking.  Verbal 
 
              cognition and reasoning was not significantly impaired.  
 
              Speech and language was not impaired and visual 
 
              constructive abilities were normal.
 
         
 
         (claimant's exhibit 6, pages 5-6)
 
         
 
              On March 4, 1992, Dr. Hines evaluated claimant again and 
 
         issued an impairment rating.  After listing several subjective 
 
         symptoms, Dr. Hines concluded:
 
         
 
              It is very clear then, in reviewing this patients [sic] 
 
              records and the patients [sic] particular symptoms and 
 
              her performance performance as we have been able to 
 
              assess it, that her greatest problem is increased 
 
              difficulties with fatigue, some difficulties with right 
 
              sided function, problems with cognitive functioning as 
 
              reflected in the inability to process information as 
 
              rapidly, frontal lobe symptomology as described by her 
 
              husband and most particularly, problems with numbers 
 
              and words.
 
         
 
         (claimant's exhibit 6, pages 9 & 10)
 
         
 
              Using the AMA Guides to the Evaluation of Permanent 
 
         Impairment, second edition, Dr. Hines listed six impairments 
 
         which combine to 27 percent.  Actually, they combine to 39 
 
         percent using the combined values chart of the second edition of 
 
         the AMA Guides.
 
         
 
              Dr. Hines stated that the cause of the injuries that he has 
 
         described here and those which are described on December 16, 
 
         1991, were the direct result of a fall of the heavy wooden object 
 
         in the shape of a goose from a shelf that occurred approximately 
 
         three years ago (cl. ex. 6, p. 11).
 
         
 
              Dr.  Hines gave a deposition on April 3, 1992, a few days 
 
         prior to the hearing, in which he acknowledged that diagnosis of 
 
         seizures disorders is the peculiar province of a neurologist and 
 
         that claimant did not have high enough scores on his testing to 
 
         suggest that she had a seizure disorder per se (jt. ex. 2, p. 
 
         10).
 
         
 
              Dr. Hines acknowledged that the questionnaire completed by 
 
         the husband from which Dr. Hines determined that claimant had 
 
         frontal lobe damage could be skewed by the motivation of the 
 
         person completing the questionnaire and that no validity test or 
 
         scale had been developed for the questionnaire (jt. ex. 2, pp. 
 
         14-16).  Dr. Hines acknowledged that there are many side effects 
 
         of Tegretol.  The list is extremely long.  And some of them sound 
 
         very frightening (jt. ex. 2, p. 21).  
 
         
 
              Dr. Hines testified that the majority of her problem was 
 
         related to frontal lobe injury and in order to believe that there 
 
         must have been some contrecoup injury to her frontal lobes with 
 
         the blow.  He acknowledged that generally speaking, most people 
 
         might feel that the goose falling on her head would not lead to 
 
         damage this severe.  He added that in most situations that occurs 
 
         in automobile accident situations where the physics and the 
 
         kinetic energy factors are different.  
 

 
         
 
         Page  13
 
         
 
         
 
         
 
         
 
         
 
              In this case, according to the testimony of claimant, there 
 
         was neither a coup or contrecoup.  She did not feel any forward 
 
         motion of her head when it was struck nor did she feel it move 
 
         backwards again after she was struck.  In fact, claimant did not 
 
         know that she was struck on the head.  She heard a bang, which 
 
         she thought occurred in the adjacent department, felt sick, found 
 
         it difficult to stand up, and then felt the moisture of the blood 
 
         on her head (tr. pp. 33-36).
 
         
 
              Dr. Hines acknowledged that if claimant's husband was a Viet 
 
         Nam veteran suffering from posttraumatic disorder that this could 
 
         be a source of stress for her.  He granted that litigation is a 
 
         source of stress.  Dr. Hines was not able to explain what Dr. 
 
         Gersh meant when he diagnosed atypical organic brain syndrome 
 
         (jt. ex. 2, pp. 33-34).  With respect to frontal lobe injury, Dr. 
 
         Hines acknowledged that claimant told him that she had an 
 
         automobile accident with the van subsequent to this injury (tr. 
 
         p. 39).  
 
         
 
              Dr. Hines agreed that much of his diagnosis was based upon 
 
         what claimant related to him in the way of subjective symptoms 
 
         (jt. ex. 2, pp. 44-45).  The doctor further acknowledged that 
 
         whether the patient lost consciousness and whether there was a 
 
         period of posttraumatic amnesia are also indicators of the degree 
 
         of head injury (jt. ex. 2, pp. 53-54).  Dr. Hines verified that 
 
         he was board certified in neurology in June 1985.  The doctor 
 
         admitted that where he stated that claimant had a 20 percent 
 
         impairment in the report of March 4, 1982, it was a clerical 
 
         error and that it should have been a 27 percent impairment.  Dr. 
 
         Hines repeated that in his opinion all of claimant's symptoms 
 
         were related to the injury of June 27, 1989 (jt. ex. 2, pp. 
 
         64-65).  Dr. Hines agreed that he never actually made a diagnosis 
 
         of partial complex seizure syndrome in this patient (jt. ex. 2, 
 
         p. 78).
 
         
 
              Steven R. Sitterly, claimant's husband of 22 1/2 years, 
 
         testified that prior to the injury claimant was ambitious, 
 
         energetic, active, worked a full-time job and went to school 
 
         part-time and had no problems with headaches, memory or 
 
         concentration.  He is an over-the-road truck driver and was 
 
         delivering a load of meat to Los Angeles, California, at the time 
 
         of the injury.  When he arrived home she was in bed, had 
 
         difficulty in getting up, could not watch television, had 
 
         difficulty reading, had trouble remembering, had a lot of trouble 
 
         with numbers, and she had real bad headaches and neck pains.  
 
         Since the accident she had become moody, has mood swings, gets 
 
         mad real easy, and motion, especially going too fast in a car 
 
         makes her sick (tr. pp. 129-135).  In particular, Sitterly 
 
         testified that claimant had trouble with their checkbook by 
 
         failing to record deposits and checks and how much they were for 
 
         (tr. p. 136).
 
         
 
              Elizabeth America Buehler testified that she met claimant in 
 
         photography class at Kirkwood Community College in 1986.  At that 
 
         time, claimant was outgoing, bright and very artistic.  Since the 
 
         injury, she is still an outgoing person but she seems a little 
 
         more subdued and her memory isn't quite the same as when they 
 
         met.  Since the injury, the witness stated claimant is more vague 
 
         and does not remember things (tr. pp. 139-146).  The witness 
 

 
         
 
         Page  14
 
         
 
         
 
         
 
         
 
         attributed the fact that claimant was not as jovial and bubbly to 
 
         the fact that she had been hurt and was on medication which can 
 
         affect your moods.  The witness testified that claimant now has 
 
         to write down her appointments and on one eating engagement, 
 
         claimant failed to show up at all because she had not written it 
 
         down.  Buehler said that claimant complained to her about her 
 
         difficulty remembering things and told her that she was not able 
 
         to drive because of a memory loss or blackout (tr. pp. 146-149).
 
         
 
              Nancy Jo Sauerman, a college professor at Kirkwood Community 
 
         College in the Social Sciences Department for 12 years, taught 
 
         claimant general psychology in the fall of 1988.  The witness 
 
         testified that claimant was a good student because she stood out 
 
         in her mind from other students over the years because she was a 
 
         leader in class.  She could ask questions and come right to the 
 
         point and make comments that come right to the point whereas 
 
         other students would ramble or give testimonials.  Claimant came 
 
         to her office for extra material.  One such topic was attention 
 
         deficit disorder and hyperactive disorder.  Sauerman testified 
 
         that claimant got an A in her class which is an indication that 
 
         claimant could write well.  In order to get that grade she had to 
 
         acquire a lot of information and retain it coherently.  
 
         
 
              After the injury, claimant told the witness that she had 
 
         headaches and light affected her vision and hurt her eyes.  In 
 
         1989 claimant took the social psychology class from Sauerman.  
 
         She was a good student but different.  She had a hard time 
 
         concentrating in class.  When she spoke a lot of times she would 
 
         ramble.  She had a more difficult time putting ideas together.  
 
         Sometimes she would forget what she was saying, forget what the 
 
         point was. Sauerman testified that claimant told her that she had 
 
         difficulty reading and remembering the material.  There were 
 
         occasions when she did not complete her homework assignments and 
 
         that was unusual for claimant.  Sauerman testified that a friend 
 
         of hers recommended that claimant see a neuropsychologist in 
 
         Ottumwa for an assessment.
 
         
 
              Sauerman said claimant signed up for her developmental 
 
         psychology course in the spring of 1990 but dropped out of that 
 
         class early early on because of a heavy course load and there 
 
         were some things going on in her life (tr. pp. 150-160).  On 
 
         cross-examination the witness acknowledged that claimant also 
 
         received an A in the social psychology class which she completed 
 
         after her injury.  Claimant completed this course in the fall of 
 
         1989.
 
         
 
              Mary Lou Midcalf testified that she had been employed by 
 
         employer for 15 years as a supervisor.  There are three employees 
 
         who work full time, 40 hours a week - herself, the store manager 
 
         and the person who orders the hard crafts.  The other employees 
 
         work approximately 10 to 25 hours per week.  The witness met the 
 
         claimant when she came to work at the Cedar Rapids store in 1985 
 
         and has been under her supervision since that time.  When 
 
         claimant started to Kirkwood in the fall of 1986 employer 
 
         accommodated her hours of work with her school schedule.  As the 
 
         witness recalled, claimant worked about the same number of hours 
 
         before she started school and after she started school.  Midcalf 
 
         testified that claimant ordered the florals and monitored that 
 
         department.  She also taught classes in bow making, flower 
 
         arranging, art, and bridal arrangements.  In art she taught 
 

 
         
 
         Page  15
 
         
 
         
 
         
 
         
 
         painting and decorating of sweatshirts.  
 
         
 
              As a teacher, claimant prepared all of her material ahead of 
 
         time, instructed the classes and has full responsibility for all 
 
         the details required to teach a given class.  She taught these 
 
         classes both before and after her injury and performed her work 
 
         beautifully.  The customers always want to take her classes and 
 
         claimant has done very well teaching them.  There have been no 
 
         complaints about her work.  
 
         
 
              Midcalf has observed claimant and she has demonstrated no 
 
         difficulty in teaching the classes.  Midcalf had observed no 
 
         forgetfulness when she is teaching.  She only complained of 
 
         headaches one time since the injury and she has made no other 
 
         complaints about not feeling well.  The witness has observed 
 
         claimant in conversation with customers and has not observed 
 
         claimant having any problems in remembering in the middle of a 
 
         conversation or finding words in her speech.  Midcalf said 
 
         claimant knows what she's talking about and she's very good with 
 
         the customers.  She has a lot of knowledge.  She testified 
 
         claimant has prepared newspaper ads with no problems of recall or 
 
         memory.  Claimant made a beautiful jumpsuit for a model in their 
 
         store.  Claimant has always been very enthusiastic in performing 
 
         her work.  Claimant makes all of her own clothes and has done 
 
         this since the injury in January 1989.
 
         
 
              The witness observed claimant both before and after the 
 
         injury and testified that claimant can perform every duty that 
 
         she did before, including running the new computerized cash 
 
         registers.  They are hard for some of the girls to operate but 
 
         claimant has been able to operate them without any difficulty.
 
         
 
              Lee Ann Grimley, the store manager since March of 1989, 
 
         testified that claimant was on leave of absence when she arrived 
 
         at the store.  When claimant returned to work near the end of 
 
         June 1989, she performed duties as a sales person and operated 
 
         the cash register.  Grimley did not know of any situation where 
 
         claimant had trouble operating the cash register or remembering 
 
         the SKU's (stock keeping unit numbers).  Grimley testified that 
 
         claimant's specialty was custom floral arranging, bows and a lot 
 
         of displays in different departments.  The witness testified that 
 
         claimant is wonderful at it and does beautiful displays.  Some of 
 
         claimant's art work was displayed in the court room.  Claimant 
 
         orders the florals and maintains that department.  She makes 
 
         displays and teaches bow making, floral arrangements and 
 
         sweatshirt painting and prepares special orders in the bridal 
 
         department.  
 
         
 
              Grimley testified that claimant is able to calculate yardage 
 
         for bridal dresses without any difficulties.  She also makes 
 
         posters for the shop.  The witness testified that claimant is 
 
         looked to for creativity and ingenuity when it is needed to solve 
 
         a problem.  Grimley testified she has accommodated claimant on 
 
         the hours claimant wished to work and that claimant has chosen to 
 
         only work six hours per week on Sundays.  
 
         
 
              The witness testified that she has ridden in a car with 
 
         claimant approximately three times since January of 1989 and 
 
         claimant did not complain of being sick or that the car was going 
 
         to fast or anything of that nature.  Claimant uses both hands in 
 

 
         
 
         Page  16
 
         
 
         
 
         
 
         
 
         her work.  Her penmanship is beautiful (tr. pp. 182-205).  On 
 
         cross-examination, Grimley acknowledged that she didn't know 
 
         claimant prior to the injury.  
 
         
 
              Claimant testified that she still has head pain but it has 
 
         gotten better (tr. p. 53).  Also, she is unable to walk fast.  
 
         Claimant testified, "Well, I just start out walking fast, and it 
 
         just feels like whoosh.  It makes you feel real runny." (tr. p. 
 
         54).  She gets the same feeling in a car if it goes fast.  When 
 
         this occurs she just slows down.  
 
         
 
              Claimant testified that she has difficulties with words and 
 
         cannot read as fast.  She cannot remember what she has read.  To 
 
         correct this, she reads out loud and has maintained index cards.  
 
         A tutor has helped her to learn to read better (tr. p. 55).  She 
 
         has trouble watching television because she looses track of what 
 
         she has watched (tr. p. 56).  She tapes the lectures at school 
 
         and uses memory devices to retain the information (tr. p. 58).  
 
         Claimant complained of impaired sensation on the right side of 
 
         her body - her right hand, her right foot, the right side of her 
 
         vagina, and the right side of her face (tr. pp. 60-61).  
 
         
 
              Claimant testified while driving, a van came on the highway 
 
         from an entry ramp and she found herself real close to the van 
 
         without knowing why (tr. pp. 63 & 72).  Claimant explained it "It 
 
         happened to me several times, but I never had that close a call 
 
         with it.  I never just looked over and the car was right there.  
 
         I always tried to figure it out, you know."  (tr. p. 72).  There 
 
         was no collision with the van (tr. pp. 72 & 73).  
 
         
 
              Claimant contended that on another occasion she had a 
 
         blackout while driving.  She was driving alone and described the 
 
         incident, "I had one in Cedar Rapids at the end of last semester 
 
         on the interstate, and when I came to, there was -- I looked.  
 
         There was like -- I was going towards the side, and there were a 
 
         lot of lights and the cars." (tr. p. 73).  
 
         
 
              Claimant contended she had another blackout a long time ago 
 
         when she was backing out of the driveway and struck the parked 
 
         van of a workman at their house (tr. pp. 75-77).  
 
         
 
              Claimant alleged another blackout while driving near Iowa 
 
         City which she described, "And when I was driving, I remember 
 
         coming around the curve and seeing this billboard, and that was 
 
         the last thing I remembered till I like woke up or something.  
 
         There was a -- I was in the -- cars were coming towards me.  I 
 
         was in their lane, and they were honking at me.  So I figured it 
 
         out and I pulled myself back."  (tr. p. 79).  
 
         
 
              Claimant maintained that she had trouble listening when 
 
         people talked fast (tr. p. 64).  Claimant contended she had 
 
         trouble concentrating which is manifested when she reads because 
 
         she had to break it up into smaller parts and just take one part 
 
         at a time (tr. p. 64-65).  Claimant related that she was much 
 
         slower with the cash registers at work then she was before the 
 
         injury (tr. pp. 83-84).  Claimant acknowledged that she can 
 
         calculate the amount of yardage needed for fabric sales of 
 
         various items (tr. p. 84).  Claimant admitted that she continued 
 
         to go to school after the injury and graduated from Kirkwood in 
 
         the summer of 1991 with honors and then enrolled in college at 
 

 
         
 
         Page  17
 
         
 
         
 
         
 
         
 
         the University of Iowa where she maintained a 3.0 average (tr. 
 
         pp. 69-71).  
 
         
 
              Claimant acknowledged on cross-examination that her son Tony 
 
         had only lived in her home part of the time since January 1989 
 
         because he had been living in a treatment center after he was 
 
         sexually abused in school (tr. pp. 101-102).  Claimant 
 
         acknowledged that prior to hearing her husband was treated at the 
 
         Veteran's Administration Hospital in Iowa City and did take 
 
         medicine (tr. pp. 105-106).  Claimant acknowledged that she was 
 
         not seeing a physician at the present time (tr. p. 112).  
 
         Claimant described her blackouts, "When I think of -- blackout 
 
         means I don't know nothing about what happened.  I don't -- its 
 
         just kind of like waking up and trying to figure out what's going 
 
         on."  (tr. p. 117).  She further described it, "It's just kind of 
 
         like just a little gap.  I don't know what's going on."  (tr. p. 
 
         119).  They were worse at first but have been diminishing.  She 
 
         had one bad one at Christmas time 1991 (tr. p. 116).  Claimant 
 
         related that she reported these spells to Dr. Cullen who told her 
 
         to "cool it," "back off," and try not to do so much at that time.  
 
         She last saw Dr. Cullen on January 7, 1992 (tr. pp. 123-124).  
 
         
 
              From the foregoing evidence it is determined that claimant 
 
         sustained a head injury on January 27, 1989.  This head injury 
 
         has been described as postconcussive syndrome.  
 
         
 
              It is further determined that claimant has not sustained a 
 
         closed head injury.  There was no definite diagnosis of a closed 
 
         head injury.  Dr. Bayless and Dr. Gersh and Dr. Hines indicated 
 
         that claimant's symptoms were suggestive of a closed head injury, 
 
         but there was no firm diagnosis of a closed head injury.  
 
         
 
              It is further determined that claimant did not sustain 
 
         frontal lobe damage as suggested by Dr. Gersh and Dr. Hines.  Dr. 
 
         Hines, the board certified neurologist, testified that such an 
 
         injury requires a coup and a countercoup.  Claimant did not 
 
         testify that her head moved either forward or backward.  She did 
 
         not testify that her head moved at all.  Claimant testified that 
 
         she was unaware that she had been struck on the head.  She heard 
 
         a bang and thought it was in the adjacent department.  She felt 
 
         sick.  She had difficulty standing up.  She felt moisture which 
 
         was blood.  She did not testify that her head went either forward 
 
         or backward.  Furthermore, Dr. Streib, Dr. Cullen and Dr. 
 
         Rinehart did not believe that the blow to claimant's head was 
 
         sufficiently hard enough to cause a closed head injury, frontal 
 
         lobe damage or partial complex seizures.  
 
         
 
              Dr. Hines, a board certified neurologist and claimant's 
 
         independent medical examiner, testified that he did not find 
 
         sufficient evidence to sustain a finding that claimant had in 
 
         fact suffered partial complex seizures.  Furthermore, his 
 
         diagnosis of frontal lobe damage was primarily based upon a 
 
         questionnaire that claimant's husband had completed.  The 
 
         questionnaire had not been validated.  He further acknowledged 
 
         that it could be skewed by the motivation of the person 
 
         completing the questionnaire.  The questionnaire may certainly be 
 
         one element that comprises a diagnosis but certainly should not 
 
         be the primary factor at arriving of a diagnosis of frontal lobe 
 
         damage.  
 
         
 

 
         
 
         Page  18
 
         
 
         
 
         
 
         
 
              The testimony of Dr. Streib, Dr. Cullen, Dr. Rinehart, Dr. 
 
         Jones, and Dr. Brooke are preferred over the testimony of Dr. 
 
         Kimmel, Dr. Bayless, Dr. Gersh and Dr. Hines because it comports 
 
         best with all of the evidence in this case.  Dr. Streib and Dr. 
 
         Cullen were treating physicians who were responsible for the 
 
         ultimate success or failure of claimant's treatment, whereas, Dr. 
 
         Hines was an evaluating physician who examined claimant in order 
 
         to give testimony for her case at hearing.  The testimonies of 
 
         Dr. Streib and Dr. Cullen are found to be more reliable then that 
 
         of Dr. Hines.  
 
         
 
              Wherefore, it is determined that claimant did not receive a  
 
         closed head injury, frontal lobe damage or partial complex 
 
         seizures as a result of this injury.  Rather, it is determined 
 
         that claimant sustained a severe head trauma marked by a 
 
         laceration and a postconcussive syndrome.
 
         
 
                CAUSAL CONNECTION-ENTITLEMENT-TEMPORARY DISABILITY
 
         
 
              All of the physicians; three neurologists, two 
 
         psychiatrists, an internist, the physical medicine doctor, as 
 
         well as four psychologists, all proceeded on the history of the 
 
         accident where claimant was struck on the head by the wooden 
 
         goose at work while working on shelves.  Dr. Streib, Dr. Cullen 
 
         and Dr. Hines all specifically stated that this injury was the 
 
         cause of claimant's postinjury problems.  Wherefore, it is 
 
         determined that the injury was the cause of temporary disability.
 
         
 
              The parties agreed that if defendant was found liable for an 
 
         injury, that claimant was entitled to temporary disability 
 
         benefits from January 28, 1989 through June 27, 1989, a period of 
 
         21.571 weeks and that claimant had been paid benefits for this 
 
         period of time prior to hearing.
 
         
 
                CAUSAL CONNECTION-ENTITLEMENT-TEMPORARY DISABILITY
 
         
 
              It is determined that the injury was the cause of permanent 
 
         disability.  All treating physicians and medical providers 
 
         proceeded on the basis of this injury.  No other cause was 
 
         suggested as the basis for permanent disability.  Dr. Streib, Dr. 
 
         Cullen and Dr. Hines all specifically stated that this injury was 
 
         the cause of claimant's postinjury problems.
 
         
 
              Dr. Streib did not think claimant sustained any permanent 
 
         impairment in any degree.  Dr. Cullen assessed a permanent 
 
         impairment of 10 percent of the body as a whole.  Dr. Hines 
 
         assessed a 27 percent permanent impairment to the body as a whole 
 
         which he also erroneously stated was 20 percent in his final 
 
         report and which, in fact, combines to 39 percent instead of 27 
 
         percent.  
 
         
 
              Dr. Cullen was a treating physician and his impairment 
 
         rating is found to be the most reliable impairment rating.
 
         
 
              Claimant, born June 29, 1951, was 37 years old at the time 
 
         of the injury and 40 years old at the time of the hearing and at 
 
         the time of this decision.  Claimant probably had not reached the 
 
         peak of her earnings career because she had been a part-time 
 
         employee and a part-time student much of her adult working life.  
 
         Becke v. Turner-Busch, Inc., Thirty-fourth Biennial Report of 
 

 
         
 
         Page  19
 
         
 
         
 
         
 
         
 
         the Industrial Commissioner 34 (Appeal Decision  1979); Walton v. 
 
         B & H Tank Corp., II Iowa Industrial Commissioner Report 426 
 
         (1981); McCoy v. Donaldson Company, Inc., file numbers 782670 & 
 
         805200 (App. Dec. 1989).
 
         
 
              Claimant certainly is and was capable of retraining.  She 
 
         was attending college at the time of the injury.  She graduated 
 
         from college with honors with and AA degree after the injury and 
 
         immediately enrolled in Iowa State University where she is 
 
         receiving a 3.0 grade point average at the time of the hearing.  
 
         Claimant can return to her employment at the time of the injury 
 
         and is currently employed by employer in the same capacity.  
 
         Michael v. Harrison County, Thirty-fourth Biennial Report of the 
 
         Industrial Commissioner 218, 220 (Appeal Decision January 30, 
 
         1979); Rohrberg v. Griffin Pipe Products Co., I Iowa Industrial 
 
         Commissioner Report 282 (1984).
 
         
 
              Before the injury, claimant typically worked 15-25 hours per 
 
         week as most employees, but since the injury has only worked six 
 
         hours per week.  The evidence disclosed that claimant has only 
 
         requested six hours of work per week and defendant has 
 
         accommodated claimant's request.  Grimley, the store manager, 
 
         testified that she wished claimant would work more hours per 
 
         week.  None of the doctors testified that claimant should 
 
         restrict her hours to six hours per week.  On the contrary, Dr. 
 
         Streib said that claimant should not work 12 hours per day, but 
 
         could work eight hours per day but suggested she work four be off 
 
         an hour and then four more hours.  Therefore, there is no medical 
 
         restriction that claimant work less hours or days per week then 
 
         previously.  
 
         
 
              It was suggested that claimant can only work one day a week 
 
         on Sunday when her husband can bring her to work and pick her up 
 
         because she is restricted from driving by Dr. Cullen.  At the 
 
         same time it was suggested that claimant only work six hours per 
 
         week so that she could continue with her education at the 
 
         University of Iowa taking as many as 7, 9 and 12 hours per 
 
         semester.  In either event, it is claimant's choice as to how 
 
         many hours she works per week and defendant has been extremely 
 
         accommodating on this point.  Furthermore, it is claimant's 
 
         obligation to find a way to get herself to and from work.
 
         
 
              Dr. Streib determined that claimant did not have partial 
 
         complex seizures and therefore, there was no need to restrict her 
 
         driving.  Later, when claimant continued to complain about losing 
 
         consciousness while driving, he determined she should not drive.  
 
         
 
              Dr. Cullen also determined that claimant should not drive 
 
         after she complained of episodes of loss of consciousness while 
 
         driving.  Neither doctor said that these blackouts were caused by 
 
         this injury.  Moreover, whether claimant truly has blackouts or 
 
         not is questionable.  Her testimony in describing her blackouts 
 
         was nonspecific and vague.  She testified that she has never lost 
 
         consciousness.  She has never fallen down.  The incident where 
 
         she struck the workman's van could have been the result of simple 
 
         negligence as much as any debility from this accident.  The two 
 
         episodes which she described as blackouts while driving did not 
 
         result in accidents.  They were not witnessed.  She was alone 
 
         both times.  She did not strike anything.  She did not lose 
 
         consciousness.  For these reasons it cannot be said that her 
 

 
         
 
         Page  20
 
         
 
         
 
         
 
         
 
         inability to drive, if she truly is unable to drive, was caused 
 
         by this injury.  There is substantial evidence that she has 
 
         driven a great deal since this injury occurred in transporting 
 
         herself to and from school.  Furthermore, Grimley testified she 
 
         has ridden with claimant and did not observe anything unusual, 
 
         nor did claimant complain of anything unusual.  
 
         
 
              In the course of claimant's many evaluations, it came to 
 
         light that she has several other severe problems from her 
 
         personal life which are causing a number of emotional reactions.  
 
         
 
              A CT scan, a few days after the injury, and two subsequent 
 
         EEG's and 24-hour EEG's, produced no evidence of organic or 
 
         physical damage.  At the same time, her MMPI's and other 
 
         neuropsychological examinations produced evidence of depression 
 
         and anxiety.  She related substantial concerns to various doctors 
 
         because of her husband's condition and her son's condition.  
 
         
 
              Dr. Streib determined that claimant had sustained a mild to 
 
         moderate head trauma without neurologic sequelae or any 
 
         suggestion that she had sustained seizures.  He said she 
 
         sustained no permanent impairment.  
 
         
 
              Psychologist Jones found that claimant had a tendency to 
 
         focus on physical complaints with the possibility that some of 
 
         her deficits may be exaggerated.  
 
         
 
              Dr. Safdar and Dr. Rinehart did not find any evidence of a 
 
         psychiatric disorder.  Dr. Rinehart thought that claimant 
 
         suffered from a postconcussive syndrome.  
 
         
 
              Psychologist Brooke stated that claimant has a tendency to 
 
         displace psychological conflict into physical symptoms.  She 
 
         denied her emotional problems and focused on the physical ones.
 
         
 
              On two occasions Dr. Cullen commented that claimant's memory 
 
         problems were suspect.  She claimed to have no memory of several 
 
         current events such as the courses she took in school and the 
 
         grades she received and the distance to and from school but she 
 
         recalled things they had discussed as long as a year previous to 
 
         that.  Dr. Cullen found her memory ability to be incongruous and 
 
         inconsistent.  
 
         
 
              Psychologist Jones on the final neuropsychological testing 
 
         and evaluation on January 29, 1992, found that claimant did not 
 
         have a clear posttraumatic head injury syndrome.  He said the 
 
         overall configuration of deficits does not clearly conform to 
 
         what would be expected following a mild head injury.  Moreover, 
 
         he added that the decline in her condition was inconsistent with 
 
         what would be expected for the normal course of a posttraumatic 
 
         head injury.  He, too, commented that the MMPI was suggestive of 
 
         a tendency to complain of multiple somatic symptoms when under 
 
         stress.  
 
         
 
              Although claimant's friend Buehler and her former professor 
 
         Sauerman, testified that claimant was more subdued since the 
 
         injury and less articulate, it cannot be determined whether this 
 
         was due to the injury or to some of the other psychological 
 
         problems with which claimant has been confronted both before and 
 
         after this injury.  Sauerman testified that she got an A in 
 

 
         
 
         Page  21
 
         
 
         
 
         
 
         
 
         social psychological which she took after the injury. 
 
         
 
              Claimant's supervisor since March of 1985, Midcalf, 
 
         testified that she had not noticed any difference in claimant's 
 
         performance either in the way of memory or concentration.  
 
         Midcalf praised claimant's work and testified that she performed 
 
         "beautifully."  Grimley, the store manager, praised claimant's 
 
         work.  She did not know claimant prior to the injury, but 
 
         testified that her work since the injury was more than 
 
         satisfactory, the only problem Grimley had was that she needed 
 
         claimant to work more hours.
 
         
 
              Dr. Cullen, the primary treating physician, felt that 
 
         claimant's difficulties were mild to moderate in character.  He 
 
         indicated her posttraumatic headaches could be treated with 
 
         medication.  He assessed a 10 percent permanent impairment 
 
         rating.  Dr. Cullen's final remark was "Her evaluation has been 
 
         nonrevealing save for mild to moderate cognitive impairment on 
 
         neuropsychologic testing.  At this juncture her only restriction 
 
         is that of driving.  She has mild cognitive difficulties and 
 
         headaches which are treated medicinally." (jt. ex. 5, p. 13).
 
         
 
              The restriction against driving has never been stated to be 
 
         a permanent restriction.  Nor was it proven to be caused by this 
 
         injury.
 
         
 
              The injury and resulting problems probably exacerbated 
 
         claimant's existing and preexisting emotional or psychological 
 
         problems and concerns about her husband and her son.  This is 
 
         evidenced by Dr. Kimmel who stated that claimant had not 
 
         decompensated like this until after the injury (cl. ex. 7, p. 7).  
 
         Dr. Rega, claimant's family physician and the first doctor to 
 
         treat her early on, recorded memory, concentration and headache 
 
         problems (jt. ex. 7,  pp. 7-8).  Dr. Streib acknowledged that 
 
         claimant could not take physical stress as well as before the 
 
         injury (jt. ex. 10, p. 9).  Dr. Safdar thought claimant did
 
         
 
         
 
         Page  22
 
         
 
         
 
         
 
         
 
         
 
         have memory problems as did Dr. Rinehart the other psychiatrist.  
 
         Dr. Rinehart did not know if she would have fully recovery or not 
 
         (jt. ex. 8, p. 12).  Dr. Cullen acknowledged that claimant had 
 
         mild to moderate cognitive problems on neuropsychological testing 
 
         (jt. ex. 5, p. 13).  Dr. Hines related fatigue and some cognitive 
 
         functional inability to process information as rapidly.  Buehler 
 
         noticed personality changes and forgetfulness.  Sauerman noted 
 
         personality change and that claimant was not as articulate as 
 
         before the injury.  At the same time, Midcalf and Gimley 
 
         testified that claimant demonstrated no memory or concentration 
 
         problem at work, but on the contrary, she performed beautifully.
 
         
 
              Wherefore, based upon all of the foregoing considerations it 
 
         is determined that claimant has sustained a 15 percent industrial 
 
         disability and is entitled to 75 weeks of permanent partial 
 
         disability benefits.
 
         
 
                         INDEPENDENT MEDICAL EXAMINATION
 
         
 
              Claimant is entitled to an independent medical examination 
 
         by Dr. Hines.  However, there was no explanation or justification 
 
         for why she needed two evaluations, one on December 16, 1991 and 
 
         then a second one on March 4, 1992 (cl. ex. 6).  Claimant is 
 
         awarded $150 for the first examination on December 16, 1991 in 
 
         the amount of $150.  There is an itemized statement for that 
 
         examination in the amount of $150 and claimant is awarded $150 
 
         for an independent medical examination.
 
         
 
              Claimant is entitled to medical mileage for one trip to see 
 
         Dr. Hines for 240 miles at the rate of 21 cents per mile in the 
 
         total amount of $50.40.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              Wherefore, based upon the foregoing and following principles 
 
         of law, these conclusions of law are made:
 
         That claimant sustained the burden of proof by a preponderance of 
 
         the evidence that she sustained a head injury, marked by a 
 
         laceration, which caused a postconcussive syndrome.  Claimant did 
 
         not sustain the burden of proof by a preponderance of the 
 
         evidence that she sustained a closed head injury, frontal lobe 
 
         damage or partial complex seizures.  Iowa Code section 85.3(1); 
 
         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).
 
         
 
         Claimant sustained the burden of proof by a preponderance of the 
 
         evidence that the injury was the cause of both temporary and 
 
         permanent disability.  Bodish v. Fischer, Inc., 257 Iowa 516, 133 
 
         N.W.2d 867 (1965); Lindahl v. L.O. Boggs Co., 236 Iowa 296 18 
 
         N.W.2d 607 (1945).
 
         
 
              Claimant is entitled to healing period benefits from January 
 
         28, 1989 through June 27, 1989; a period of 21.571 weeks as 
 
         stipulated to by the parties.  
 
         
 
              Claimant has sustained a 15 percent industrial disability to 
 
         the body as a whole and is entitled to 75 weeks of permanent 
 
         partial disability benefits.  Iowa Code section 85.34(2)(u).
 
         
 

 
         
 
         Page  23
 
         
 
         
 
         
 
         
 
              That claimant is entitled to an independent medical 
 
         examination pursuant to Iowa Code section 85.39.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              That defendant pay to claimant twenty-one point five seven 
 
         one (21.571) weeks of healing period benefits at the stipulated 
 
         rate of eighty-four and 61/100 dollars ($84.61) per week in the 
 
         total amount of one thousand eight hundred twenty-five and 12/100 
 
         dollars ($1,825.12) commencing on January 28, 1989.
 
         
 
              That defendant is entitled a credit for the healing period 
 
         benefits in the amount of one thousand eight hundred twenty-five 
 
         and 12/100 dollars ($1,825.12) as stipulated to by the parties.  
 
         
 
              That defendant pay to claimant seventy-five (75) weeks of 
 
         permanent partial disability benefits at the stipulated rate of 
 
         eighty-four and 61/100 dollars ($84.61) per week in the total 
 
         amount of six thousand three hundred forty-five and 75/100 
 
         dollars ($6,345.75) commencing on June 4, 1991, as stipulated to 
 
         by the parties.
 
         
 
              That all accrued benefits are to be paid in a lump sum.
 
         
 
              That interest will accrue pursuant to Iowa Code section 
 
         85.30.
 
         
 
              That the costs of this action, including the cost of the 
 
         attendance of the court reporter and hearing and the transcript 
 
         of hearing, are charged to defendant pursuant to Iowa Code 
 
         section 86.19(1) and 86.40 and rule 343 IAC 4.33.  In addition, 
 
         defendant is ordered to pay to claimant the filing fee in the 
 
         amount of sixty-five ($65), a medical report from Dr. Streib in 
 
         the amount of one hundred dollars ($100), the transcript of the 
 
         deposition of Dr. Hines in the amount of seventy-four and 70/100 
 
         dollars ($74.70), the witness fee and mileage expense for 
 
         Elizabeth Buehler in the amount of sixty-two and 80/100 dollars 
 
         ($62.80), and the service fee for the subpoena on Elizabeth 
 
         Buehler in the amount of twenty-five dollars ($25) all of which 
 
         total three hundred twenty-seven and 50/100 dollars ($327.50).
 
         
 
              That defendant pay to claimant or the provider of medical 
 
         services one hundred fifty dollars ($150) for the independent 
 
         medical examination on December 16, 1991, performed by Dr. Hines.
 
         
 
              That defendant pay to claimant mileage expense for the 
 
         independent medical examination for two hundred forty (240) miles 
 
         at twenty-one ($.21) cents per mile in the total amount of fifty 
 
         and 40/100 dollars ($50.40).
 
         
 
              That defendant file claim activity reports as requested by 
 
         this agency pursuant to rule 343 IAC 3.1.
 
         
 

 
         
 
         Page  24
 
         
 
         
 
         
 
         
 
              Signed and filed this ____ day of June, 1992.
 
         
 
         
 
         
 
         
 
                                       ______________________________
 
                                       WALTER R. McMANUS, JR.
 
                                       DEPUTY INDUSTRIAL COMMISSIONER    
 
         
 
         Copies to:
 
         
 
         Mr. Thomas J. Currie
 
         Attorney at Law
 
         3401 Williams Blvd SW
 
         Cedar Rapids, Iowa  52406
 
         
 
         Mr. E.J. Giovannetti
 
         Attorney at Law
 
         2700 Grand Ave, STE 111
 
         Des Moines, Iowa  50312
 
         
 
              
 
         
 
 
         
 
         Page   1
 
         
 
         
 
         
 
                                               51106 51802 51803 2502
 
                                               Filed June 29, 1992
 
                                               Walter R. McManus, Jr.
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         ____________________________________________________________
 
                                       :
 
         SHEILA SITTERLY,              :
 
                                       :
 
              Claimant,                :      File No. 920200
 
                                       :
 
         vs.                           :
 
                                       :  A R B I T R A T I O N
 
         NORTHWEST FABRICS & CRAFTS,   :
 
                                       :      D E C I S I O N
 
              Employer,                :    
 
              Self-Insured,            :      
 
              Defendant.               :
 
         ___________________________________________________________
 
         
 
         51106
 
         It was found that claimant sustained an injury of a laceration of 
 
         the head and postconcussive syndrome after a wooden goose fell 
 
         and struck her on the head at work.
 
         It was further determined that claimant did not sustain a closed 
 
         head injury, frontal lobe damage or partial complex seizures.
 
         Opinion of defendant's treating physician was preferred over the 
 
         opinion of claimant's evaluating doctor and some of the other 
 
         psychologists who examined claimant.
 
         
 
         51802
 
         Claimant awarded temporary disability benefits (healing period 
 
         benefits) for the period stipulated to by the parties.
 
         
 
         51803
 
         Claimant awarded 15 percent industrial disability based on a 10 
 
         percent permanent impairment rating of a treating neurologist 
 
         some subsequent mild cognitive memory and concentration problems.
 
         Defendant's demonstrated claimant was under other family stresses 
 
         related to her husband and her son which were significant.
 
         
 
         2502
 
         Claimant entitled to one examination by evaluating physician, but 
 
         not two of them by the same physician as well as medical mileage 
 
         for one trip to that doctor.  Claimant denied second examination 
 
         as no justification for it was presented.
 
         
 
 
            
 
            
 
            
 
            
 
            
 
            
 
                      BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            FRANK D. SMITH,               :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 920272
 
            HUDSON TRUCKING, INC.,        :
 
                                          :     A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            LIBERTY MUTUAL INSURANCE      :
 
            COMPANY,                      :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This is a proceeding in arbitration brought by Frank D. 
 
            Smith against his former employer, Hudson Trucking, Inc., 
 
            and its insurance carrier, Liberty Mutual Insurance Company, 
 
            based upon an alleged injury of May 19, 1989.  Smith seeks 
 
            compensation for permanent total disability.  If he is not 
 
            awarded permanent total disability, he seeks a determination 
 
            of healing period and permanent partial disability benefits.  
 
            The primary issues to be determined are whether Smith 
 
            sustained an injury which arose out of and in the course of 
 
            his employment on or about May 19, 1989 and determination of 
 
            the nature and extent of any disability which resulted from 
 
            that alleged injury.
 
            
 
                 The case was heard at Davenport, Iowa, on March 24, 
 
            1992.  The record in the proceeding consists of testimony 
 
            from John C. Suter, Robert A. King, Mary Smith and Frank D. 
 
            Smith.  The record also contains joint exhibits 1 through 34 
 
            and defendants' exhibit A.
 
            
 
                                 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.
 
            
 
                 Frank D. Smith is a 54-year-old married man who now 
 
            lives in the state of Tennessee.  His current source of 
 
            income is social security disability.
 
            
 
                 Smith dropped out of school after completing the eighth 
 
            grade.  Since leaving high school, he has worked as a 
 
            farmer, carpenter, construction equipment operator, 
 
            construction laborer, truck mechanic, service station 
 
            operator and as a furniture store setup and delivery person.
 
            
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
                 Smith was injured seriously in 1965 when he was shot in 
 
            the back with a shotgun.  He was hospitalized for 
 
            approximately three weeks.  He experienced difficulty moving 
 
            his legs for a period of time but eventually recovered.  In 
 
            1976, Smith injured his back while working for a furniture 
 
            store.  On December 15, 1976, he underwent lumbar 
 
            laminectomy surgery in which disc excision was performed at 
 
            the L5-S1 level on the left side of his spine by Martin 
 
            Roach, M.D., a Cedar Rapids, Iowa, orthopedic surgeon (Jt. 
 
            Ex. 1, pp. 1-5).  Following that surgery, he experienced a 
 
            number of recurrent episodes of increased symptoms (Jt. Ex. 
 
            1, pp. 1, 2, 7 and 8).  The records do not show Smith to 
 
            have sought medical treatment for his back after 1977 until 
 
            May 13, 1988, when he sought care after slipping and falling 
 
            at work while he was employed by West Side Transportation.  
 
            During those intervening years, Smith held a number of 
 
            different jobs.  He worked primarily as a truck mechanic or 
 
            operating construction equipment such as back hoes.   When 
 
            seen on May 13, 1988, the diagnosis was lumbosacral 
 
            decompensation secondary to recent fall.  He improved with 
 
            physical therapy and on May 26, 1988, he was released to 
 
            return to work (Jt. Ex. 1, pp. 12, 13).
 
            
 
                 Smith then obtained employment with Hudson Trucking, 
 
            Inc., as a working shop foreman.  He supervised the work of 
 
            others but also performed normal truck mechanic work 
 
            himself.  On May 19, 1989, Smith injured his back while 
 
            handling a truck brake drum.  He mentioned the injury to 
 
            coworker, Larry Henkel, on the Friday that it occurred.  He 
 
            did not report the injury to any supervisor until the 
 
            following Monday.  Smith normally worked Saturdays but had 
 
            arranged to have May 20 off in order to complete the process 
 
            of moving from Lisbon, Iowa to Mechanicsville, Iowa.  From 
 
            the conflicting evidence which is in the record it cannot be 
 
            determined whether or not Smith engaged in any type of 
 
            moving activities over the weekend of May 20, 1989.
 
            
 
                 There is likewise conflicting evidence regarding 
 
            whether Smith went to work on the following Monday, May 20, 
 
            1989.  There is evidence that he sought, but was unable to 
 
            obtain, any medical treatment over the weekend of May 20 and 
 
            May 21, 1989.  The hospital records show that Smith was 
 
            eventually seen at the Mercy Hospital emergency department 
 
            on May 22, 1989, at 7:40 p.m. (Jt. Ex. 2, p. 1).  There is 
 
            no explanation in the record setting forth why Smith did not 
 
            go to one of the Cedar Rapids hospital emergency departments 
 
            over the weekend or sooner than Monday evening following his 
 
            injury.  It is assumed that they were open.  Since that 
 
            time, Smith has not returned to work and has not sought work 
 
            or any type of work retraining.
 
            
 
                 Smith returned to Dr. Roach on June 12, 1989, and was 
 
            diagnosed as having lumbosacral decompensation secondary to 
 
            a recent injury at work.  The notes indicate that claimant 
 
            was placed on crutches at that time (Jt. Ex. 1, p. 13).  The 
 
            records also note that claimant was using crutches on May 
 
            19, 1988 (Jt. Ex. 1, p. 12).  A note dated July 6, 1989 
 
            shows that claimant had a mildly positive Waddell's test, a 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            test commonly used by physicians to determine whether a 
 
            patient's stated complaints are physiologically consistent.  
 
            An MRI test was conducted on July 13, 1989.  It was 
 
            essentially normal except for residuals from the 1976 
 
            surgery and what appeared to be a very small disc herniation 
 
            at the L4-5 level of claimant's spine on the right side (Jt. 
 
            Ex. 1, pp. 14, 39; Jt. Ex. 4, p. 2).  EMG tests were also 
 
            conducted and showed only residuals from the 1976 surgery 
 
            (Jt. Ex. 1, pp. 15, 40; Jt. Ex. 4, p. 3).
 
            
 
                 Smith was placed into physical therapy from June 14, 
 
            1989 through July 27, 1989.  According to claimant, the 
 
            therapy did not benefit him (Jt. Ex. 1, pp. 20-24).
 
            
 
                 In notes dated September 1, 1989, Dr. Roach noted that 
 
            claimant was still complaining of intermittent pain and 
 
            still using crutches.  He stated that there was some 
 
            functional component to the claimant's symptoms.  He 
 
            assigned a 15 percent permanent partial disability rating 
 
            for the claimant's low back and stated that he would not be 
 
            able to return to his job at Hudson Trucking.  Dr. Roach 
 
            went on to recommend contact with vocational rehabilitation 
 
            and a second opinion from another orthopedic surgeon (Jt. 
 
            Ex. 1, p. 15).6
 
            
 
                 On September 12, 1989, claimant was seen by Orthopedic 
 
            Surgeon John S. Koch, M.D.  The notes indicate that claimant 
 
            was able to move about only with crutches and spent most of 
 
            his time lying in bed.  The notes also indicate that Smith 
 
            made notable displays of being in discomfort.  The physical 
 
            examination found claimant's reflexes to be good except for 
 
            the left ankle jerk, a condition attributed to the 1976 
 
            surgery.  The straight leg raising tests were negative, 
 
            lower extremity strength was normal and no muscle spasm was 
 
            present.  Dr. Koch made the assessment that the claimant 
 
            demonstrated a principally marked overweight situation with 
 
            loss of the supportive mechanism for the trunk of his body 
 
            together with degenerative arthritic changes of the lumbar 
 
            spine of a mild degree and residuals of the previous 
 
            radiculopathy of the left lower extremity.  He felt that 
 
            there was more strong indications of malingering or 
 
            depression and recommended treatment in a pain clinic and an 
 
            MMPI (Jt. Ex. 1, p. 16).
 
            
 
                 Claimant was evaluated for and placed into the pain 
 
            treatment center at Mercy Hospital in October 1989.  After 
 
            attending two weeks of the program, Smith decided to 
 
            discontinue it and, at his request, was discharged.  The 
 
            final report indicates that he had made progress but he 
 
            denied any reduction in his pain.  According to Smith, he 
 
            related that he could use what he had learned at home.  He 
 
            noted the "long drive from Mechanicsville wasn't worth the 
 
            benefits he received...." (Jt. Ex. 5, p. 57).  It is noted 
 
            that the drive from Mechanicsville to Cedar Rapids would be 
 
            somewhere in the range of 25 or 30 miles each way.
 
            
 
                 Thereafter, little occurred in the way of aggressive 
 
            management of the claimant's problems.  He moved to the 
 
            state of Tennessee.  He was also evaluated at the University 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            of Iowa Hospitals Spine Diagnostic and Treatment Center.  As 
 
            with the other physicians who have examined him, no 
 
            particular abnormalities were identified other than those 
 
            associated with the 1976 surgery.  His functional capacity 
 
            assessment was noted as being markedly self-limiting with 
 
            severe pain behavior (Jt. Ex. 6, p. 2).  It was noted that 
 
            he has a 15 percent permanent partial impairment rating of 
 
            the body as a whole, of which 10 percent was preexisting and 
 
            5 percent was attributable to the 1989 injury.  In the 
 
            report of James N. Weinstein, M.D.,  he stated:
 
            
 
                     Despite the fact that your testing was quite 
 
                 limited, in terms of level of functioning, we feel 
 
                 that the basic problem with your lower back 
 
                 continues to be muscular.  There is nothing that 
 
                 we consider to be seriously wrong in terms of 
 
                 structure or function in your lower spine.  This 
 
                 means that with a good exercise program, increased 
 
                 activity and a positive attitude, you will be able 
 
                 to get back to more normal daily activities." 
 
            
 
            (Jt. Ex. 6, p. 3)
 
            
 
                 Claimant was placed into a vocational rehabilitation 
 
            program at the Kirkwood Community College in Cedar Rapids.  
 
            When being evaluated on or about November 29, 1989, claimant 
 
            related that he felt that he was not employable, that he was 
 
            not able to get around, and that he was in too much pain to 
 
            pursue rehabilitation or consider vocational options.  The 
 
            case was then closed.  It is noted that claimant told the 
 
            vocational counselor that he could stay no longer after 
 
            having been there only one and one-half hours.  Claimant 
 
            told the counselor that he was not able to continue sitting 
 
            and needed to lie down.  When offered the opportunity to lie 
 
            down, claimant declined and stated that he had quite a drive 
 
            back to Mechanicsville and did not feel he could continue 
 
            with the testing (Jt. Ex. 34, p. 16).
 
            
 
                 On May 7, 1991, Smith was examined by Dan E. Hale, 
 
            D.O., in Morristown, Tennessee.  The four pertinent medical 
 
            findings from Dr. Hale were:  (1) ruptured lumbar disc; (2) 
 
            mild degenerative changes; (3) obesity; and, (4) 
 
            uncontrolled hypertension.  Quite stringent activity 
 
            restrictions were recommended (Jt. Ex. 7, p. 3).  It it 
 
            noted that in the physical examination no actual objective 
 
            abnormalities were noted (Jt. Ex. 7, pp. 1, 2).  It is 
 
            likewise noted that the EMG and MRI tests have shown that 
 
            claimant did not have a ruptured lumbar disc.
 
            
 
                 In July of 1991, claimant sought evaluation by Richard 
 
            Neiman, M.D., an Iowa City neurologist.  Dr. Neiman found no 
 
            abnormalities in his neurological examination.  He 
 
            recommended that further diagnostic testing be performed 
 
            (Jt. Ex. 10, p. 2; Jt. Ex. 32, pp. 10, 11, 13).  Dr. Neiman 
 
            went on to state that claimant has a 25 percent permanent 
 
            partial impairment of which 10 percent preexisted and 15 
 
            percent was attributable to the May 19, 1989 injury (Jt. Ex. 
 
            32, pp. 17, 18).  He felt that claimant should follow 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            stringent activity restrictions.  Dr. Neiman agreed that 
 
            claimant was severely overweight and that the excess weight 
 
            placed excessive stress on his back (Jt. Ex. 32, pp. 30, 
 
            31).
 
            
 
                 Dr. Roach has been the claimant's primary treating 
 
            physician for his back problems over the years.  In a report 
 
            dated July 15, 1991, Dr. Roach agreed that the lifting 
 
            incident of May 19, 1989 probably did result in a 
 
            lumbosacral sprain which was superimposed on a chronic 
 
            degenerative disc disease but he did not feel it should have 
 
            caused the claimant any further permanent disability.  He 
 
            continued to state that the claimant's symptoms and 
 
            complaints seemed to be excessive in view of his actual 
 
            clinical findings (Jt. Ex. 1, p. 18).  Dr. Roach indicated 
 
            that claimant demonstrated a lot of pain and discomfort as a 
 
            result of certain physical maneuvers which should not have 
 
            caused pain (Jt. Ex. 27, p. 11).  He stated that there was 
 
            no medical reason for claimant to be using crutches as late 
 
            as November 1989 (Jt. Ex. 27, p. 21).  Initially, Dr. Roach 
 
            stated that the May 1989 incident did not cause any 
 
            permanent disability but later stated that there was 
 
            apparently some element of permanency since claimant had not 
 
            recovered (Jt. Ex. 27, pp. 15-17, 29).  Even the 
 
            psychologist's report which indicated claimant was not 
 
            malingering did not change Dr. Roach's opinion that 
 
            claimant's complaints were excessive in relation to the 
 
            clinical findings (Jt. Ex. 27, p. 29).
 
            
 
                 Dr. Roach felt that claimant's failure to return to 
 
            work was disappointing but that it could be understood by 
 
            virtue of the fac that claimant had repeated episodes of 
 
            overloading his spine and that he was probably becoming 
 
            frustrated (Jt. Ex. 27, p. 34).
 
            
 
                 Based upon the objective findings made by the 
 
            physicians who have examined Frank Smith, none have 
 
            identified any particular physiological abnormality or 
 
            condition which can be attributed to the May 19, 1989 
 
            incident.  Those who have prescribed activity restrictions 
 
            have apparently done so on the basis of Smith's complaints 
 
            rather than any objective medical findings.  It is noted 
 
            that Dr. Roach provided a sitting restriction of 20 to 30 
 
            minutes but that claimant demonstrated the ability, on two 
 
            occasions during the hearing, to sit in excess of one hour 
 
            without any appearance of discomfort, even when his attorney 
 
            suggested to him that he might want to stand.  There is 
 
            further evidence in the record as shown in exhibits 29 and A 
 
            of claimant being engaged in activities such as mowing a 
 
            lawn, pushing a lawn mower, handling a ladder, and other 
 
            activities which are absolutely irreconcilable with the 
 
            level of disability the claimant purports to have.
 
            
 
                 It is found that the assessment of this case as made by 
 
            Drs. Roach and Weinstein is correct.  The injury of May 19, 
 
            1989 was not a particularly serious one and should not have 
 
            produced any appreciable increase in the claimant's level of 
 
            disability.  The claimant's present status of being 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            unemployed and appearing to be severely disabled is found to 
 
            not be physiologically induced.  He voluntarily discontinued 
 
            both the vocational retraining and pain center treatment 
 
            which had been provided to him.  He continues to use 
 
            crutches on a regular basis when the same are not medically 
 
            required.  It would be expected that by the time he was 
 
            examined by Dr. Neiman he would have become aware of the 
 
            fact that Drs. Roach and Weinstein had noted the 
 
            inconsistencies in his physical examination.  All the 
 
            foregoing items render the activity restrictions unreliable 
 
            because they are based upon the claimant's symptoms and 
 
            those symptoms have not been shown to be reliable.  They 
 
            have been characterized by Dr. Roach, quite accurately, as 
 
            being excessive in relation to the objective clinical 
 
            findings.
 
            
 
                 It is found that the claimant was injured in the manner 
 
            he described at hearing but that the level of disability 
 
            which resulted from that injury is greatly exaggerated.  
 
            When deposed, Dr. Roach placed the end of claimant's healing 
 
            period in January of 1990 (Jt. Ex. 27, p. 3).  That 
 
            assessment is found as being correct, as is the assessment 
 
            of a 5 percent permanent partial impairment resulting from 
 
            the May 19, 1989 injury.  Since there is some impairment, 
 
            some increase in activity restrictions might be expected.  
 
            This claimant has not, however, cooperated sufficiently with 
 
            the offered medical and vocational assistance to enable an 
 
            accurate determination of his actual capabilities and 
 
            limitations to be made.  It is therefore found that his 
 
            actual ability to function has deteriorated only slightly as 
 
            a result of the 1989 injury.
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury is a proximate 
 
            cause of the disability on which the claim is based.  A 
 
            cause is proximate if it is a substantial factor in bringing 
 
            about the result; it need not be the only cause.  A 
 
            preponderance of the evidence exists when the causal 
 
            connection is probable rather than merely possible.  
 
            Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa 
 
            1980); Holmes v. Bruce Motor Freight, Inc., 215 N.W.2d 296 
 
            (Iowa 1974).
 
            
 
                 Our supreme court has stated many times that a claimant 
 
            may recover for a work connected aggravation of a 
 
            preexisting condition.  Almquist v. Shenandoah Nurseries, 
 
            218 Iowa 724, 254 N.W. 35 (1934).  See also Auxier v. 
 
            Woodward State Hosp. Sch., 266 N.W.2d 139 (Iowa 1978); Gosek 
 
            v. Garmer and Stiles Co., 158 N.W.2d 731 (Iowa 1968); Barz 
 
            v. Oler, 257 Iowa 508, 133 N.W.2d 704 (1965); Olson v. 
 
            Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251 
 
            (1963); Yeager v. Firestone Tire & Rubber Co., 253 Iowa 369, 
 
            112 N.W.2d 299 (1961); Ziegler v. United States Gypsum Co., 
 
            252 Iowa 613, 106 N.W.2d 591 (1960).
 
            
 
                 Since claimant has an impairment to the body as a 
 
            whole, an industrial disability has been sustained.  
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            Industrial disability was defined in Diederich v. Tri-City 
 
            Ry. Co., 219 Iowa 587, 258 N.W.2d 899 (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."
 
            
 
                 Functional impairment is an element to be considered in 
 
            determining industrial disability which is the reduction of 
 
            earning capacity, but consideration must also be given to 
 
            the injured employee's age, education, qualifications, 
 
            experience, motivation, loss of earnings, severity and situs 
 
            of the injury, work restrictions, inability to engage in 
 
            employment for which the employee is fitted and the 
 
            employer's offer of work or failure to so offer.  Olson v. 
 
            Goodyear Serv. Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963); 
 
            McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980); 
 
            Barton v. Nevada Poultry Co., 253 Iowa 285, 110 N.W.2d 660 
 
            (1961).
 
            
 
                 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.
 
            
 
                 Industrial disability or loss of earning capacity is a 
 
            concept that is quite similar to impairment of earning 
 
            capacity, an element of damage in a tort case.  Impairment 
 
            of physical capacity creates an inference of lessened 
 
            earning capacity.  The basic element to be determined, 
 
            however, is the reduction in value of the general earning 
 
            capacity of the person, rather than the loss of wages or 
 
            earnings in a specific occupation.  Post-injury earnings 
 
            create a presumption of earning capacity.  The earnings are 
 
            not synonymous with earning capacity and the presumption may 
 
            be rebutted by evidence showing the earnings to be an 
 
            unreliable indicator.  Bearce v. FMC Corp., 465 N.W.2d 531 
 
            (Iowa 1991); DeWall v. Prentice, 224 N.W.2d 428, 435 (Iowa 
 
            1974); Carradus v. Lange, 203 N.W.2d 565 (Iowa 1973); 
 
            Holmquist v. Volkswagon of America, Inc., 261 N.W.2d 516 
 
            (Iowa App. 1977) A.L.R.3d 143; Michael v. Harrison County, 
 
            Thirty-fourth Biennial Report of the Industrial Commissioner 
 
            218 (1979); 2 Larson Workmen's Compensation Law, sections 
 
            57.21 and 57.31.
 
            
 
                 Frank Smith is very limited educationally.  He has not 
 
            exhibited any bonafide motivation to improve his current 
 
            situation.  His current status of lack of employment 
 
            therefore is not an adequate indicator of his actual earning 
 
            capacity.  When all the pertinent factors of industrial 
 
            disability are considered, it is determined that Frank Smith 
 
            sustained a 25 percent permanent partial disability as a 
 
            result of the May 19, 1989 injury.  This entitles him to 
 
            recover 125 weeks of permanent partial disability 
 
            compensation.
 
            
 
                 Smith's healing period was previously found to end in 
 
            January 1990.  That date is consistent with the claim 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            identified in paragraph 4 of the prehearing report.  It is 
 
            therefore concluded that claimant is entitled to recover 
 
            healing period compensation from May 20, 1989 through 
 
            January 1, 1990, a span of 32.286 weeks.
 
            
 
                                      ORDER
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 That defendants pay Frank D. Smith thirty-two point two 
 
            eighty-six (32.286) weeks of healing period compensation at 
 
            the stipulated rate of two hundred thirty-three and 20/100 
 
            dollars ($233.20) payable commencing May 20, 1989.
 
            
 
                 IT IS FURTHER ORDERED:
 
            
 
                 That defendants pay Frank D. Smith one hundred twenty-
 
            five (125) weeks of compensation for permanent partial 
 
            disability at the stipulated rate of two hundred thirty-
 
            three and 20/100 dollars ($233.20) per week commencing 
 
            January 2, 1990.
 
            
 
                 That defendants shall pay all past due amounts in a 
 
            lump sum together with interest pursuant to Iowa Code 
 
            section 85.30 after credit is given for the permanent 
 
            partial disability compensation which was voluntarily paid 
 
            as shown in the prehearing report.
 
            
 
                 IT IS FURTHER ORDERED:
 
            
 
                 That the costs of this action are assessed against 
 
            defendants pursuant to rule 343 IAC 4.33.
 
            
 
                 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, 1992.
 
            
 
            
 
            
 
            
 
                                          
 
                                      ________________________________
 
                                          MICHAEL G. TRIER
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr J Nicholas Russo
 
            Attorney at Law
 
            615 Iowa State Bank Bldg
 
            Iowa City IA 52240
 
            
 
            Mr Greg A Egbers
 
            Attorney at Law
 
            600 Union Arcade Bldg
 
            111 E 3rd St
 
            Davenport IA 52801
 
            
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                               5-1402.40
 
                                               Filed August 25, 1992
 
                                               Michael G. Trier
 
            
 
                       BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            FRANK D. SMITH,               :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 920272
 
            HUDSON TRUCKING, INC.,        :
 
                                          :     A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            LIBERTY MUTUAL INSURANCE      :
 
            COMPANY,                      :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            5-1402.40
 
            Claimant with exaggerated complaints and little in the way 
 
            of objectively determinable medical abnormalities awarded 
 
            25% permanent partial disability where he had not returned 
 
            to work in over two years following the injury and had been 
 
            awarded social security disability.
 
            
 
 
 
 
 
 
 
 
 
 
 
 
                   BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
 
 
 MILDRED J. SNOW,
 
 
 
      Claimant,
 
 
 
 vs.
 
                                                    File No. 920561
 
 IOWA INDUSTRIES, INC.,
 
                                                     A P P E A L
 
      Employer,
 
                                                   D E C I S I O N
 
 and
 
 
 
 CONTINENTAL INSURANCE COMPANY, 
 
 
 
      Insurance Carrier, 
 
 
 
 and                          
 
 SECOND INJURY FUND OF IOWA, 
 
 
 
      Defendants.
 
      
 
      
 
 The record has been reviewed de novo on appeal. The decision of 
 
 the deputy filed January 31, 1992 is affirmed and is adopted as 
 
 the final agency action in this case, with one following 
 
 additional analysis:
 
 
 
 The only issue raised by claimant on appeal is whether the Second 
 
 Injury Fund's motion for summary judgment was filed in compliance 
 
 with Iowa Rule of Civil Procedure 237(c). During the pendency of 
 
 this proceeding the time in which a motion for summary trial 
 
 should be filed was changed from 10 days to 45 days prior to the 
 
 date a case is set for trial. The motion in this case was filed 
 
 more than 10 days but less than 45 days prior to the date set for 
 
 trial. The Second Injury Fund served the motion the day after 
 
 discovery was to be completed. The change in the rule has created 
 
 a window of time when a motion for summary judgment must be filed 
 
 in certain cases. That is, in a matter set for hearing less than 
 
 45 days after the effective date of current rule 237(c) no motion 
 
 could be filed more than 45 days before the hearing. It is 
 
 reasonable to exercise some discretion during the transitional 
 
 period of the application of the rule. Both parties had the 
 
 opportunity to argue the merits of the motion. This agency 
 
 received the motion in time to consider it prior to the scheduled 
 
 hearing. The Second Injury Fund's arguments are convincing that 
 
 the motion ought to be considered.
 

 
 
 
 
 
 
 
 
 
 SNOW V. IOWA INDUSTRIES, INC. and SECOND INJURY FUND OF IOWA
 
 Page 2
 
 
 
 
 
 
 
 
 
 The motion was clearly filed more than 10 days prior to the 
 
 scheduled hearing.
 
 
 
      THEREFORE, it is ordered that Second Injury Fund's motion 
 
 for summary judgment is granted and claimant's claim against the 
 
 Second Injury Fund is dismissed.
 
 
 
      Claimant shall pay all costs of this motion.
 
 
 
 
 
      Signed and filed this 25th day of August, 1992.
 
 
 
 
 
 
 
 
 
 
 
                                        BYRON K. ORTON
 
                                  INDUSTRIAL COMMISSIONER
 
 
 
 Copies To:
 
 
 
 Mr. William Bauer
 
 Attorney at Law
 
 100 Valley Street
 
 P O Box 517
 
 Burlington, Iowa  52601
 
 
 
 Mr. Craig A. Levien
 
 Attorney at Law
 
 600 Union Arcade Bldg
 
 Davenport, Iowa  52801
 
 
 
 Mr. Stephen Moline
 
 Assistant Attorney General
 
 Tort Claims Division
 
 Hoover State Office Building
 
 Des Moines, Iowa  50319
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                    9998
 
                                                    Filed August 25, 1992
 
                                                    BYRON K. ORTON
 
                               
 
 
 
                BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
                                
 
 MILDRED J. SNOW,
 
                                
 
      Claimant,
 
 
 
 vs.
 
                                                   File No. 920561
 
 IOWA INDUSTRIES, INC.,
 
                                                    A P P E A L
 
      Employer,
 
                                                  D E C I S I O N
 
 and
 
 
 
 CONTINENTAL INSURANCE COMPANY, 
 
 
 
      Insurance Carrier,
 
 
 
 and
 
 
 
 SECOND INJURY FUND OF IOWA,
 
 
 
      Defendants.
 
      
 
      
 
      
 
 9998
 
 
 
 Summary affirmance of deputy's decision filed January 31, 
 
 1992.
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
          BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
________________________________________________________________
 
          
 
TERRY LILES,  
 
          
 
     Claimant, 
 
          
 
vs.       
 
                                        File No. 920709
 
IOWA MALLEABLE IRON CO.,     
 
                                     A R B I T R A T I O N
 
     Employer, 
 
                                         D E C I S I O N
 
and       
 
          
 
ST PAUL FIRE & MARINE,  
 
          
 
     Insurance Carrier,  
 
     Defendants.    
 
________________________________________________________________
 
                        STATEMENT OF THE CASE
 
 
 
This is a proceeding in arbitration brought by Terry Liles against Iowa 
 
Malleable Iron Company, his former employer, and its insurance carrier, 
 
based upon an injury of June 15, 1989.  Claimant seeks compensation for 
 
permanent partial disability and payment of medical expenses in the 
 
amount of $111.
 
 
 
The case was heard at Oskaloosa, Iowa on November 29, 1994.  The record 
 
consists of joint exhibits A, B and C and testimony from Terry Liles.
 
 
 
                          FINDINGS OF FACT
 
 
 
Terry Liles is a 33-year-old man who did not complete high school.  His 
 
description of his reading and writing abilities places them well below 
 
at which would normally be expected of a person with an eleventh grade 
 
education.  Page 4 of exhibit A, a sample of his writing which was made 
 
long before this case entered litigation, shows his writing 
 
capabilities to be in what the undersigned would consider to be lower 
 
to middle elementary school level.  The claimant's appearance and 
 
demeanor exhibited at hearing was consistent with having sophistication 
 
and educational functioning at a level which is no higher than the 
 
eleventh grade.  
 
 
 
Prior to commencing employment with Iowa Malleable Iron Company 
 
claimant had worked at a sawmill, repairing railroad tracks and at the 
 
Bloomfield Foundry.  These were all employments which were heavy labor. 
 
 
 
 He had worked approximately two years operating a spot welding 
 
machine.  
 
 
 
Claimant was injured while employed by Iowa Malleable Iron Company on 
 
June 15, 1989.  He was directed to Donald D. Berg, M.D., an orthopedic 
 
surgeon.  Two herniated discs were found and surgery was performed.  
 
(Exhibit A, pages 13, 16)  Following recuperation from the surgery Dr. 
 
Berg assigned a 10 percent impairment rating.  He reported that 
 
claimant should never do lifting of more than 75 pounds and also that 
 
claimant should avoid doing a lot of repetitive deep flexing or 
 
twisting with his back.  (Ex. A, pp. 18, 23)  In a report dated 
 
December 18, 1989 Dr. Berg stated that claimant could do occasional 
 
lifting of 60 to 70 pounds but only two days later reduced the limit to 
 
35 pounds.  (Ex. A, pp. 19-20)  On June 6, 1990 Dr. Berg placed a 
 
50-pound weight limit upon claimant.  The report does not use the word 
 
"permanent" but it appears as though the restrictions were intended to 
 

 
 
 
 
 
 
 
 
 
be indefinite or long-standing.  (Ex. A, p. 20)  
 
 
 
Following recuperation from the injury claimant resumed work for this 
 
employer.  Initially he was in what he considered to be an easy job.  
 
He later attempted to bid into his original job of pouring iron, but 
 
the personnel manager for the employer would not permit such a move out 
 
of fear of further injury.  Claimant was then placed into a less heavy 
 
job.  Claimant remained employed by Iowa Malleable Iron Company until 
 
the plant closed in 1993.  According to claimant he was earning $9.45 
 
per hour at the time of injury and that after returning to work in the 
 
lighter jobs his pay dropped to $8.80 or $8.90 per hour.  
 
 
 
Since the Iowa Malleable Iron Company plant closed claimant has not 
 
obtained other employment.  He declined an offered position at the 
 
Bloomfield Foundry because he did not feel that the pay was sufficient. 
 
 He declined an opportunity to perform a roofing project for which he 
 
would have been paid $5 per hour.  Claimant has drawn unemployment and 
 
performed the required job search.  He hopes to get a job operating 
 
heavy construction equipment but he has no training for that type of 
 
work.  
 
 
 
Since returning to work at Iowa Malleable Iron claimant returned to Dr. 
 
Berg on at least two separate occasions when he experienced symptoms in 
 
his back.  One was in October 1991.  (Ex. 8, p. 22)  On that occasion 
 
Dr. Berg felt that it was work related but not necessarily caused by 
 
the original injury.  Claimant returned again in September 1993.  (Ex. 
 
A, p. 25)  Dr. Berg reported that it was impossible to state whether 
 
that episode was related to the original injury.  Claimant seeks to 
 
have the bill with Dr. Berg in the amount of $111 paid by defendants.  
 
Thirty-one dollars is shown to have been incurred on September 10, 
 
1993.  The source of the other charges is not in the record.  According 
 
to claimant the entire charge was incurred during his two visits in 
 
September 1993.  There is no indication in the record that the claimant 
 
was ever advised that he was to no longer see Dr. Berg for his back 
 
complaints or that defendants would not be paying the charges of Dr. 
 
Berg for his back care.  
 
 
 
Claimant currently lives on a farm that is owned by his parents.  He 
 
helps with some of the farm work and also helps a neighbor, all without 
 
receiving any actual pay.  
 
 
 
Claimant's back continues to be symptomatic.  He functions quite well 
 
considering the severity of his injury yet still has residual symptoms, 
 
complaints and limitations.  
 
 
 
Claimant was examined by Marc E. Hines, M.D., in October 1994.  Dr. 
 
Hines felt that the degree of impairment laid somewhere between 5 
 
percent and 10 percent.  (Ex. C)  Dr. Hines did not address the issue 
 
of activity restrictions.
 
 
 
                        CONCLUSIONS OF LAW
 
 
 
The claimant has the burden of proving by a preponderance of the 
 
evidence that the injury is a proximate cause of the disability on 
 
which the claim is based.  A cause is proximate if it is a substantial 
 
factor in bringing about the result; it need not be the only cause.  A 
 
preponderance of the evidence exists when the causal connection is 
 
probable rather than merely possible.  Blacksmith v. All-American, 
 
Inc., 290 N.W.2d 348 (Iowa 1980); Holmes v. Bruce Motor Freight, Inc., 
 
215 N.W.2d 296 (Iowa 1974).
 
 
 
The question of causal connection is essentially within the domain of 
 
expert testimony.  The expert medical evidence must be considered with 
 
all other evidence introduced bearing on the causal connection between 
 
the injury and the disability.  The weight to be given to any expert 
 
opinion is determined by the finder of fact and may be affected by the 
 
accuracy of the facts relied upon by the expert as well as other 
 
surrounding circumstances.  The expert opinion may be accepted or 
 
rejected, in whole or in part.  Sondag v. Ferris Hardware, 220 N.W.2d 
 
903 (Iowa 1974); Anderson v. Oscar Mayer & Co., 217 N.W.2d 531 (Iowa 
 
1974); Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).
 
Industrial disability or loss of earning capacity is a concept that is 
 
quite similar to impairment of earning capacity, an element of damage 
 
in a tort case.  Impairment of physical capacity creates an inference 
 
of lessened earning capacity.  The basic element to be determined, 
 

 
 
 
 
 
 
 
 
 
 
 
 
 
however, is the reduction in value of the general earning capacity of 
 
the person, rather than the loss of wages or earnings in a specific 
 
occupation.  Post-injury earnings create a presumption of earning 
 
capacity.  The earnings are not synonymous with earning capacity and 
 
the presumption may be rebutted by evidence showing the earnings to be 
 
an unreliable indicator.  Bearce v. FMC Corp., 465 N.W.2d 531 (Iowa 
 
1991); DeWall v. Prentice, 224 N.W.2d 428, 435 (Iowa 1974); Carradus v. 
 
Lange, 203 N.W.2d 565 (Iowa 1973); Holmquist v. Volkswagon of America, 
 
Inc., 261 N.W.2d 516 (Iowa App. 1977) A.L.R.3d 143; Michael v. Harrison 
 
County, Thirty-fourth Biennial Report of the Industrial Commissioner 
 
218 (1979); 2 Larson Workmen's Compensation Law, sections 57.21 and 
 
57.31.
 
 
 
This claimant has very limited education and very limited academic 
 
functioning.  The greater portion of his work history has involved 
 
heavy labor.  He is restricted from lifting more than 75 pounds.  He is 
 
capable of working with weights in the 50-60 pound range on a regular 
 
basis but he is to avoid repetitive deep flexing or twisting with his 
 
back.  It must be remembered that claimant had a serious injury in the 
 
sense of two levels of his spine which were injured and impaired.  The 
 
fact of the surgeries at two levels creates a considerable weakness in 
 
this claimant's spine.  
 
 
 
Claimant resides near Bloomfield, Iowa.  There is no showing that 
 
stable employment is readily available.  The loss of ability to perform 
 
heavy employment is an important factor, particularly when combined 
 
with this claimant's apparent lack of ability to perform jobs which 
 
require average reading and writing ability.  When all the material 
 
factors of industrial disability are considered, it is determined that 
 
Terry Liles has a 30 percent permanent partial disability as a result 
 
of the June 15, 1989 injury.  This entitles him to receive 150 weeks of 
 
compensation for permanent partial disability.
 
 
 
The employer shall furnish reasonable surgical, medical, dental, 
 
osteopathic, chiropractic, podiatric, physical rehabilitation, nursing, 
 
ambulance and hospital services and supplies for all conditions 
 
compensable under the workers' compensation law.  The employer shall 
 
also allow reasonable and necessary transportation expenses incurred 
 
for those services.  The employer has the right to choose the provider 
 
of care, except where the employer has denied liability for the injury. 
 
 
 
 Section 85.27.  Holbert v. Townsend Engineering Co., Thirty-second 
 
Biennial Report of the Industrial Commissioner 78 (Review-reopen 1975).
 
When an employer chooses to direct the care, the employer is required 
 
to pay for the care that it has directed when the employee acts in 
 
accordance with the employer's directives.  Janssen v. United Parcel 
 
Service, file number 1019753 (App. Decn. April 29, 1994); Schofield v. 
 
W. A. Klinger, Inc., file number 531753 (R.R. Dec. September 28, 1984). 
 
 
 
 In this case the claimant was directed to Dr. Berg as the authorized 
 
physician.  He returned to Dr. Berg in 1991 and again in 1993.  There 
 
is no evidence that he was ever instructed that he should not see Dr. 
 
Berg for his back complaints.  There is nothing in the record to 
 
indicate that when he first saw Dr. Berg in 1993 that he was informed 
 
or instructed that the employer denied liability for claimant's care 
 
with Dr. Berg.  Dr. Berg, as the authorized treating physician, is the 
 
representative of the employer.  There is nothing in the record to 
 
indicate that Dr. Berg informed claimant that the condition was not the 
 
responsibility of the employer.  While the evidence now shows that Dr. 
 
Berg does not consider the 1993 care to have been causally related to 
 
the original injury, there is nothing in the record to indicate that he 
 
informed the claimant of that fact when he was treating the claimant in 
 
September 1993.  This agency has a multitude of cases in which it has 
 
held that individuals who are not physicians do not have the capability 
 
or competence to testify on the issue of causation.  There is no way 
 
that Terry Liles could be held competent to realize on his own whether 
 
or not his back condition in September 1993 was causally related to his 
 
original injury.  He must rely and act based upon what he was told by 
 
Dr. Berg.  Since that did not occur and there is nothing in the record 
 
of this case to show that claimant was ever advised that he should 
 
refrain from seeing Dr. Berg for his back complaints or otherwise given 
 

 
 
 
 
 
 
 
 
 
 
 
 
 
caution or conditions for seeing Dr. Berg.  The workers' compensation 
 
system seeks to achieve a balance between the needs of employees and 
 
the resources of employers.  Employers are given the right to choose 
 
the medical care in order to give them some control over the costs and 
 
effectiveness of the care.  Part of the balance that is contained in 
 
the law is that a contract is imposed by law upon the employer to pay 
 
for the charges that are incurred when the employee obtains care in 
 
accordance with the employer's express authorization and directives.  
 
 
 
An employer cannot, after the fact, seek to renege on its 
 
responsibility to pay for the care which it has chosen.  A directive to 
 
seek care from a particular physician remains in effect until it is 
 
revoked.  Since claimant's authorization to see Dr. Berg for his back 
 
was never revoked or conditioned in any way, defendants remain liable 
 
for the charges incurred when claimant saw Dr. Berg for his back.
 
It is concluded that the employer is estopped from denying payment for 
 
Dr. Berg's charges.  Defendants are therefore liable for paying Dr. 
 
Berg's charges in the amount of $111.  
 
 
 
                                 ORDER
 
 
 
IT IS THEREFORE ORDERED that defendants pay Terry Liles one hundred 
 
fifty (150) weeks of compensation for permanent partial disability at 
 
the stipulated rate of two hundred forty and 57/100 dollars ($240.57) 
 
per week payable commencing October 30, 1989.  Defendants are entitled 
 
to credit for the fifty (50) weeks of benefits previously paid.  The 
 
remaining past due, accrued amount shall be paid in a lump sum together 
 
with interest pursuant to section 85.30 computed from the date each 
 
weekly payment came due until the date of actual payment.
 
 
 
It is further ordered that defendants pay claimant's charges with 
 
Donald D. Berg, M.D., in the amount of one hundred eleven dollars 
 
($111).
 
 
 
It is further ordered that defendants file claim activity reports as 
 
requested by this agency.
 
 
 
It is further ordered that the costs of this proceeding are assessed 
 
against defendants.
 
 
 
Signed and filed this __________ day of January, 1995.
 
                              ______________________________
 
                              MICHAEL G. TRIER
 
                              DEPUTY INDUSTRIAL COMMISSIONER    
 
 
 
Copies to:
 
 
 
Mr. Harold Heslinga
 
Attorney at Law
 
118 N. Market St
 
Oskaloosa, Iowa  52577
 
 
 
Mr. Greg Egbers
 
Ms. Deborah Dubik
 
Attorneys at Law
 
600 Union Arcade Bldg
 
111 E 3rd St
 
Davenport, Iowa  52801-1597
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
     
 
                                   51803 2501
 
                                   Filed January 4, 1995
 
                                   Michael G. Trier
 
 
 
           BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
________________________________________________________________
 
          
 
TERRY LILES,  
 
          
 
     Claimant, 
 
          
 
vs.       
 
                                    File No. 920709
 
IOWA MALLEABLE IRON CO.,     
 
                                A R B I T R A T I O N
 
     Employer, 
 
                                   D E C I S I O N
 
and       
 
          
 
ST PAUL FIRE & MARINE,  
 
          
 
     Insurance Carrier, 
 
     Defendants.    
 
________________________________________________________________
 
 
 
51803
 
Claimant with eleventh grade education and two level diskectomy 
 
awarded 30 percent permanent partial disability.  
 
 
 
2501
 
Employer estopped from denying payment for charges incurred by 
 
the claimant with the authorized physician.  The right to choose 
 
care carries with it the obligation to pay for what is chosen.
 
 
 
 
         
 
 
 
 
 
 
 
 
 
 
 
         before the iowa industrial commissioner
 
         ____________________________________________________________
 
		                   :
 
         GEIL FARGO, 		   :
 
                   		   :
 
              Claimant, 	   :
 
                   		   :
 
		         vs.       :
 
                		   :      File No. 920838
 
         IOWA NATURAL CASINGS,     :
 
 		                   :        A P P E A L
 
              Employer, 	   :
 
		                   :      D E C I S I O N
 
		         and       :
 
                		   :
 
         TRAVELERS INSURANCE CO.,  :
 
                   		   :
 
              Insurance Carrier,   :
 
              Defendants.          :
 
         ___________________________________________________________
 
         The record, including the transcript of the hearing before the 
 
         deputy and all exhibits admitted into the record, has been 
 
         reviewed de novo on appeal.  The decision of the deputy filed May 
 
         8, 1991 is affirmed and is adopted as the final agency action in 
 
         this case. 
 
         Claimant shall pay the costs of the appeal, including the 
 
         preparation of the hearing transcript.
 
         Signed and filed this ____ day of October, 1991.
 
         
 
         
 
         
 
         
 
                   ________________________________
 
                            BYRON K. ORTON
 
                        INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Harry H. Smith
 
         Attorney at Law
 
         P.O. Box 1194
 
         Sioux City, Iowa 51102
 
         
 
         Mr. Thomas M. Plaza
 
         Ms. Rita C. Grimm
 
         Attorneys at Law
 
         P.O. Box 3086
 
         Sioux City, Iowa 51102
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
            9998
 
            Filed October 21, 1991
 
            Byron K. Orton
 
            MDM
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
		                      :
 
            GEIL FARGO,		      :
 
		                      :
 
                 Claimant, 	      :
 
		                      :
 
		            vs.       :
 
                		      :      File No. 920838
 
            IOWA NATURAL CASINGS,     :
 
		                      :        A P P E A L
 
                 Employer,	      :
 
 		                      :      D E C I S I O N
 
        		    and       :
 
                      		      :
 
            TRAVELERS INSURANCE CO.,  :
 
                       		      :
 
                 Insurance Carrier,   :
 
                 Defendants.          :
 
            ___________________________________________________________
 
            
 
            9998
 
            
 
                 Summary affirmance of deputy's decision filed May 8, 
 
            1991.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            GEIL FARGO,                   :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No.  920838
 
            IOWA NATURAL CASINGS,         :
 
                                          :  A R B I T R A T I O N
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            TRAVELERS INSURANCE CO.,      :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding in arbitration brought by Geil 
 
            Fargo as a result of injuries to her left shoulder, upper 
 
            back and neck which occurred on June 5, 1989.  Defendants 
 
            admitted compensability for the injury, paid weekly benefits 
 
            and paid medical expenses.
 
            
 
                 The case was heard and fully submitted at Sioux City, 
 
            Iowa, on April 9, 1991.  The record in the proceeding 
 
            consists of joint exhibits 1 through 36 and testimony from 
 
            claimant and Mike Ybarra.
 
            
 
                                      issues
 
            
 
                 The issues presented for determination are as follows:
 
            
 
                 1.  Whether the work injury is a cause of permanent 
 
            disability and the nature and extent thereof;
 
            
 
                 2.  The commencement date for payment of permanent 
 
            partial disability;
 
            
 
                 3.  The extent of entitlement to weekly compensation 
 
            for temporary total disability or healing period; and
 
            
 
                 4.  Taxation of costs.
 
            
 
                                 findings of fact
 
            
 
                 Having considered all the evidence received the 
 
            following findings of fact are made:
 
            
 
                 Claimant began work for employer in October 1983 as a 
 
            production worker.  Her duties consisted primarily of 
 
            feeding small intestine casings into a machine.  She lifted 
 
            bundles of casings that weighed between 12 and 15 pounds.  
 
            However, most of her work consisted of lifting one casing at 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            a time which weighed a few ounces.
 
            
 
                 During the period of work with employer, claimant 
 
            suffered from numerous health problems both work related and 
 
            nonoccupational.  On July 27, 1988, claimant sustained an 
 
            injury to her left arm.  This matter was settled and 
 
            claimant returned to her regular work with employer in April 
 
            of 1989 (exhibits 12 and 13).
 
            
 
                 Claimant sustained another work injury to her left 
 
            shoulder on June 5, 1989, while manually feeding casings 
 
            into a machine that had malfunctioned.  Prior to the 
 
            breakdown, claimant's duties consisted of repetitive work at 
 
            waist level.  During the period of machine malfunction, she 
 
            was required to perform repetitive work above shoulder 
 
            level.  Claimant testified that the above shoulder work 
 
            caused pain in her left shoulder, neck and upper back.
 
            
 
                 Claimant was treated for the left shoulder pain by D.M. 
 
            Youngblade, M.D.  On June 13, 1989, claimant was given a 
 
            light duty work release by Dr. Youngblade, but no such work 
 
            was made available by employer (exs. 16 & 23).  Dr. 
 
            Youngblade described her work injury as myofascial syndrome 
 
            (ex. 18).  Claimant remained off work due to the left 
 
            shoulder complaints through July 16, 1989.  
 
            
 
                 Claimant attempted to return to work for employer in 
 
            July 1989, but the left shoulder pain returned immediately 
 
            upon performing work above shoulder level (ex. 26).  
 
            Claimant again went off work on July 19, 1989, and has not 
 
            worked for employer since that date.
 
            
 
                 Dr. Youngblade stated on October 4, 1989, that most of 
 
            claimant's left shoulder problems are the result of 
 
            claimant's body conformation and that any mechanical 
 
            activity might cause marked discomfort (ex. 24).  He also 
 
            opined that claimant "should undergo complete recovery" with 
 
            no permanency in the nature of her disability (ex. 24).  It 
 
            was noted that further heavy work would probably cause 
 
            further problems due to claimant's poor muscular build (ex. 
 
            24).  
 
            
 
                 John Dougherty, M.D., is an orthopedic surgeon who 
 
            examined claimant on December 21, 1989.  He concurred with 
 
            Dr. Youngblade's findings of poor muscle tone and no 
 
            permanent impairment (ex. 27).  His primary diagnosis 
 
            appeared to be chronic cervical dorsal strain with some 
 
            fibromyalgia.  He did not specifically state that the strain 
 
            was secondary to the June 5, 1989 injury.
 
            
 
                 It is noted that page one of exhibit 27 in indicates an 
 
            examination date of December 12, 1989, while page three 
 
            reveals an examination date of December 21, 1989.  The 
 
            office note is generally a more reliable record of an 
 
            examination date.  The examination date of December 12, 
 
            1989, as it appears on page one, is an obvious typographical 
 
            error.
 
            
 
                 Claimant stated that Dr. Youngblade's work restrictions 
 
            were never lifted (ex. 22).  Claimant testified that she 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            requested light duty work from employer in August 1989 and 
 
            February 1990, but none was offered.  Defendants also failed 
 
            to offer vocational rehabilitation services.
 
            
 
                 Claimant went back to school in 1990 to be trained as a 
 
            licensed practical nurse.  She graduated from the program, 
 
            but has not yet taken her boards.  Claimant in now employed 
 
            as a general practical nurse at the rate of $6.90 per hour.  
 
            At the time of injury claimant earned $7.90 per hour.
 
            
 
                 Claimant testified at hearing that her shoulder, upper 
 
            back and neck are still painful with physical activity.
 
            
 
                 Claimant was examined by Pat Luse, D.C., on April 30, 
 
            1990, at her attorney's request (ex. 28).  Dr. Luse examined 
 
            claimant with respect to the July 27, 1988 injury.  The 
 
            report did not detail the June 5, 1989 shoulder injury.
 
            
 
                 Mike Ybarra testified that he works as a manager at 
 
            Iowa Natural Casings.  He could not recall any specific 
 
            conversation with claimant in February 1990 concerning 
 
            availability of light duty work.  He stated that his 
 
            department was very small and few light duty jobs were 
 
            available.  He stated that he had told claimant that no 
 
            light duty was available, but he couldn't remember the date.
 
            
 
                 The first issue to be resolved concerns whether 
 
            claimant sustained permanent disability as a result of the 
 
            June 5, 1989 injury.  Both Dr. Youngblade and Dr. Dougherty 
 
            were of the opinion that claimant sustained no permanent 
 
            impairment (exs. 24 and 27).  However, claimant was given 
 
            work restrictions and informed that she should not return to 
 
            the same work that she had previously performed for 
 
            employer.  Both doctors attributed claimant's inability to 
 
            perform physical labor to her lack of muscle. (exs. 24 and 
 
            27, page 3).  No medical evidence was presented which 
 
            specifically linked her work restrictions to the June 5, 
 
            1989, injury.  It was implied in office notes that claimant 
 
            was restricted to light duty because of the June 5, 1989, 
 
            injury (exs. 16-18 and 20-22).  Many of the forms inferred 
 
            that the injury was work related; however, the reports 
 
            marked exhibits 24 and 27 indicate that the work 
 
            restrictions are the direct result of her poor muscular 
 
            stature.  The evidence presented failed to prove permanent 
 
            disability.  It is found that claimant has failed to prove 
 
            by a preponderance of the evidence that the June 5, 1989, 
 
            injury cased permanent disability.  The June 5, 1989, injury 
 
            may have temporarily aggravated a preexisting condition, but 
 
            the evidence is insufficient to prove that permanent 
 
            disability resulted.
 
            
 
                 The next issue concerns claimant's entitlement to 
 
            temporary disability.  Having found that the injury did not 
 
            cause permanent disability, it follows that the lost time 
 
            should be deemed temporary total disability as opposed to 
 
            healing period.
 
            
 
                 The exhibits clearly indicate that claimant was off 
 
            work as a result of the shoulder injury starting June 13, 
 
            1989 through July 16, 1989 (exs. 16 and 33).  It is found 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            that the first period of temporary total disability began 
 
            June 13, 1989, and continued through July 16, 1989.
 
            
 
                 A second period of temporary total disability started 
 
            on July 19, 1989 (ex. 33).  Two possible dates for the end 
 
            of entitlement exist.  The first is Dr. Youngblade's finding 
 
            of no permanent impairment on October 4, 1989 (ex. 24).  The 
 
            second is Dr. Dougherty's assessment of no permanent 
 
            impairment on December 21, 1989 (ex. 27, page 3). 
 
            
 
                 It is found that the point where significant 
 
            improvement in claimant's shoulder condition was no longer 
 
            expected occurred on December 21, 1989.  Dr. Youngblade's 
 
            report indicates that claimant "should undergo complete 
 
            recovery" (ex. 24).  Use of the word "should" indicates that 
 
            complete recovery had not yet been achieved.  Dr. Dougherty 
 
            was specific in his finding of a stable condition which 
 
            resulted in no permanent partial impairment (ex. 27, pp. 2 
 
            and 3).
 
            
 
                 Claimant has proven entitlement to a second period of 
 
            temporary total disability beginning July 19, 1989 through 
 
            December 21, 1989.  The evidence was insufficient to prove 
 
            entitlement to temporary disability after December 21, 1989.
 
            
 
                 The final issue concerns taxation of costs.  Defendants 
 
            contend that the $65 filing fee should not be taxed as a 
 
            cost.  Rule 343 IAC 4.8(2)(f) allows the filing fee to be 
 
            taxed as a cost at the deputy commissioner's discretion.  
 
            Defendants are to pay all costs of this proceeding.
 
            
 
                                conclusions of law
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury of June 5, 
 
            1989, is causally related to the disability on which she now 
 
            bases her claim.  Bodish v. Fischer, Inc., 257 Iowa 516, 133 
 
            N.W.2d 867 (1965).  Lindahl v. L. O. Boggs, 236 Iowa 296, 18 
 
            N.W.2d 607 (1945).  A possibility is insufficient; a 
 
            probability is necessary.  Burt v. John Deere Waterloo 
 
            Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955).  The 
 
            question of causal connection is essentially within the 
 
            domain of expert testimony.  Bradshaw v. Iowa Methodist 
 
            Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). 
 
            
 
                 However, expert medical evidence must be considered 
 
            with all other evidence introduced bearing on the causal 
 
            connection.  Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion 
 
            of experts need not be couched in definite, positive or 
 
            unequivocal language.  Sondag v. Ferris Hardware, 220 N.W.2d 
 
            903 (Iowa 1974).  However, the expert opinion may be 
 
            accepted or rejected, in whole or in part, by the trier of 
 
            fact.  Id., at 907.  Further, the weight to be given to such 
 
            an opinion is for the finder of fact, and that may be 
 
            affected by the completeness of the premise given the expert 
 
            and other surrounding circumstances.  Bodish, 257 Iowa 516, 
 
            133 N.W.2d 867.  See also Musselman v. Central Telephone 
 
            Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
            
 
                 An employee is not entitled to recover for the results 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            of a preexisting injury or disease but can recover for an 
 
            aggravation thereof which resulted in the disability found 
 
            to exist.  Olson v. Goodyear Service Stores, 255 Iowa 1112, 
 
            125 N.W.2d 251 (1963); Yeager v. Firestone Tire & Rubber 
 
            Co., 253 Iowa 369, 112 N.W.2d 299 (1961); Ziegler v. United 
 
            States Gypsum Co., 252 Iowa 613, 106 N.W.2d 591 (1960).  See 
 
            also Barz v. Oler, 257 Iowa 508, 133 N.W.2d 704 (1965); 
 
            Almquist v. Shenandoah Nurseries, 218 Iowa 724, 254 N.W. 35 
 
            (1934).
 
            
 
                 Claimant has failed to prove by a preponderance of the 
 
            evidence that the June 5, 1989, left shoulder injury 
 
            resulted in permanent disability.
 
            
 
                 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.
 
            
 
            [Iowa Code section 85.33(1)]
 
            
 
                 Claimant has proven entitlement to temporary total 
 
            disability for the period June 13, 1989 through July 16, 
 
            1989 and July 19, 1989 through December 21, 1989.
 
            
 
                 All costs incurred in the hearing before the deputy 
 
            commissioner shall be taxed in the discretion of the deputy 
 
            commissioner unless otherwise required by the rule of civil 
 
            procedure governing discovery.  Iowa Code section 86.40.  
 
            Rule 343 IAC 4.33.  Rule 343 IAC 4.8(2)(f).
 
            
 
                 Defendants shall pay all costs of this proceeding 
 
            including the filing fee.
 
            
 
                                        
 
            
 
                                        
 
            
 
                                      order
 
            
 
                 IT IS THEREFORE, ORDERED:
 
            
 
                 Defendants are to pay claimant healing period benefits 
 
            at the rate of one hundred ninety-five and 56/100 dollars 
 
            ($195.56) for the periods June 13, 1989 through July 16, 
 
            1989 and July 19, 1989 through December 21, 1989.
 
            
 
                 It is further ordered that defendants shall receive 
 
            credit for benefits previously paid.
 
            
 
                 It is further ordered that interest will accrue 
 
            pursuant to Iowa Code section 85.30. 
 
            
 
                 It is further ordered that the costs of this action, 
 
            including the filing fee, are assessed against defendants 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            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 May, 1991.
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          MARLON D. MORMANN
 
                                          DEPUTY INDUSTRIAL COMMISSIONER    
 
            
 
            Copies to:
 
            
 
            Mr. Harry Smith
 
            Attorney at Law
 
            632-640 Badgerow Bldg.
 
            PO Box 1194
 
            Sioux City, Iowa  51102
 
            
 
            Mr. Thomas Plaza
 
            Ms. Rita Grimm
 
            700 Pierce St. STE 200
 
            PO Box 3086
 
            Sioux City, Iowa  51102
 
            
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
                      51803 51108 51801
 
                      Filed May 8, 1991
 
                      Marlon D. Mormann
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            GEIL FARGO,                   :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No.  920838
 
            IOWA NATURAL CASINGS,         :
 
                                          :  A R B I T R A T I O N
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            TRAVELERS INSURANCE CO.,      :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            51803 51108
 
            Claimant failed to prove that her permanent work 
 
            restrictions were causally connected to the aggravation 
 
            injury.
 
                 
 
            51801
 
            Claimant awarded temporary total disability for aggravation 
 
            injury.
 
            
 
 
            
 
            
 
            
 
            
 
            
 
                      BEFORE THE IOWA INDUSTRIAL COMMISSIONER 
 
            ____________________________________________________________
 
                                          :
 
            JOHN MCCLAIN,                 :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 920853
 
            BRIDGESTONE/FIRESTONE,        :
 
                                               A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            CIGNA INSURANCE COMPANIES,    :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This is a contested case proceeding under Iowa Code 
 
            chapter 17A.  Claimant John McClain filed a petition in 
 
            arbitration against his employer, Firestone Fire and Rubber 
 
            Company and its insurance carrier, Cigna Insurance 
 
            Companies, on account of a work injury of March 20, 1989.  
 
            Defendants concede that claimant sustained a work injury, 
 
            but dispute the extent.
 
            
 
                 A hearing was accordingly held in Des Moines, Iowa on 
 
            July 18, 1994.  The record consists of claimant's testimony, 
 
            joint exhibit A, defendants' exhibits B and C and claimant's 
 
            exhibit 1.
 
            
 
                                      ISSUES
 
            
 
                 The parties have stipulated to the following:
 
            
 
                    1.  Claimant sustained injury arising out of 
 
                    and in the course of employment on March 20, 
 
                    1989;
 
            
 
                    2.  The injury caused both temporary and 
 
                    permanent disability;
 
            
 
                    3.  Entitlement to healing period benefits 
 
                    is no longer in dispute;
 
            
 
                    4.  Permanent disability is a scheduled 
 
                    member disability either to the hand or the 
 
                    arm;
 
            
 
                    5.  Claimant was single and entitled to 
 
                    three exemptions on the date of injury;
 
            
 
                    6.  No affirmative defenses have been 
 
                    presented;
 

 
            
 
            Page   2
 
            
 
            
 
            
 
                    7.  Entitlement to medical benefits is no 
 
                    longer in dispute; and,
 
            
 
                    8.  Defendants are entitled to credit for 
 
                    benefits voluntarily paid prior to hearing.
 
            
 
                 Defendants paid healing period and 5.7 weeks of 
 
            permanent disability benefits on account of residuals for 
 
            carpal tunnel syndrome surgery in 1989.  Defendant 
 
            Firestone, but not Cigna, also paid certain benefits 
 
            following cubital tunnel surgery in 1993.  Mr. McClain is of 
 
            the view that the cubital tunnel surgery resulted from the 
 
            original injury; defendants insist that it does not.  It was 
 
            ruled that defendants Firestone and Cigna would be entitled 
 
            to credit for the benefits voluntarily paid in 1993 only if 
 
            it is decided that the condition was caused by the original 
 
            1989 injury.
 
            
 
                 Issues presented for resolution include:
 
            
 
                    1.  Nature, extent and commencement date of 
 
                    permanent disability; and,
 
            
 
                    2.  The correct rate of compensation.
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 The undersigned deputy industrial commissioner finds:
 
            
 
                 John McClain, 46 years of age at hearing, began his 
 
            employment with Firestone, a tire manufacturing facility, in 
 
            1971.  At the time of hire, Mr. McClain was in excellent 
 
            health, including both upper extremities.  
 
            
 
                 Claimant has held a number of jobs with Firestone, 
 
            including operating a forklift and trimming, repairing, 
 
            inspecting and classifying tires.  As of 1989, claimant had 
 
            worked as a tire inspector off and on for at least 12 to 14 
 
            years.  Part of this job entailed holding and spinning tires 
 
            with the left hand, while using the right hand to trim with 
 
            a knife.
 
            
 
                 Claimant eventually developed bilateral pain, numbness 
 
            and swelling in the hands and fingers, first making 
 
            complaint on March 20, 1989.  The plant doctor, James L. 
 
            Blessman, M.D., referred claimant to Arnis Grundberg, M.D., 
 
            who performed a right-sided carpal tunnel decompression on 
 
            June 15, 1989.  Dr. Grundberg concluded that "[s]ince the 
 
            problem started at work I think it is work related."  On 
 
            January 16, 1990, Dr. Grundberg assigned a permanent 
 
            impairment rating of three percent of the right hand.
 
            
 
                 Claimant was released to full duty following the carpal 
 
            tunnel decompression.  However, he began developing 
 
            additional symptomatology in June 1991.  By June 9, 1992, 
 
            Dr. Grundberg had an impression of right cubital and ulnar 
 
            tunnel syndromes, although he released claimant to full duty 
 
            as of August 7, 1992.  Dr. Blessman's notes first refer to 
 
            discomfort reaching the elbow in October 1991.  However, 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            nerve conduction studies performed November 12, 1991, showed 
 
            no abnormalities.
 
            
 
                 Claimant was again referred back to Dr. Grundberg and 
 
            underwent a right-sided cubital tunnel release on September 
 
            15, 1993.  He was eventually released to full duty work and 
 
            given a five percent impairment rating to the right arm due 
 
            to mild residuals from cubital tunnel procedure.  He noted 
 
            on May 17, 1994, that this was in addition to the previous 
 
            three percent rating to the hand.  Although claimant has 
 
            also complained of right shoulder bursitis, Dr. Grundberg 
 
            has found no impairment.  Similarly, although claimant at 
 
            one time was diagnosed with left cubital tunnel syndrome, 
 
            Dr. Grundberg found no permanent impairment.
 
            
 
                 Claimant was seen for evaluation by Martin S. 
 
            Rosenfeld, D.O.  Dr. Rosenfeld rated impairment at 11 
 
            percent of the right upper extremity, six percent 
 
            attributable to recurrent carpal tunnel and five percent due 
 
            to cubital tunnel and Guyon canal problems.  Dr. Rosenfeld 
 
            writes: "I feel that these impairments are related to the 
 
            accumulative irritation from work."
 
            
 
                 Mr. McClain was paid an hourly wage.  During the 
 
            thirteen weeks preceding the work injury, his hours and 
 
            straight time earnings were: 
 
            
 
                 W/E DATE     ST HOURS     ST GROSS
 
            
 
                 03/19/89       49.5         631.38
 
                 03/12/89       46.5         593.45
 
                 03/05/89       42.0         535.54
 
                 02/26/89       24.0         306.30
 
                 02/19/89       26.0         331.34
 
                 02/12/89       48.0         612.60
 
                 02/05/89       16.0         204.20
 
                 01/29/89       40.0         510.50
 
                 01/22/89       48.0         605.81
 
                 01/15/89       24.0         302.42
 
                 01/08/89        8.0         102.74
 
                 01/01/89       25.0         318.58
 
                 12/25/88       40.0         510.42
 
            
 
            (Claimant's Exhibit 1)
 
            
 
                 Claimant's testimony and payroll records for calendar 
 
            years 1988 and 1989 establish that he customarily worked at 
 
            least 40 hours per week.  The hours claimant missed during 
 
            the thirteen weeks preceding injury were due to illness or 
 
            vacation.
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                 The party who would suffer loss if an issue were not 
 
            established has the burden of proving that issue by a 
 
            preponderance of the evidence.  Iowa R. App. P. 14(f).
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury is a proximate 
 
            cause of the disability on which the claim is based.  A 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            cause is proximate if it is a substantial factor in bringing 
 
            about the result; it need not be the only cause.  A 
 
            preponderance of the evidence exists when the causal 
 
            connection is probable rather than merely possible.  
 
            Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa 
 
            1980); Holmes v. Bruce Motor Freight, Inc., 215 N.W.2d 296 
 
            (Iowa 1974).
 
            
 
                 The question of causal connection is essentially within 
 
            the domain of expert testimony.  The expert medical evidence 
 
            must be considered with all other evidence introduced 
 
            bearing on the causal connection between the injury and the 
 
            disability.  The weight to be given to any expert opinion is 
 
            determined by the finder of fact and may be affected by the 
 
            accuracy of the facts relied upon by the expert as well as 
 
            other surrounding circumstances.  The expert opinion may be 
 
            accepted or rejected, in whole or in part.  Sondag v. Ferris 
 
            Hardware, 220 N.W.2d 903 (Iowa 1974); Anderson v. Oscar 
 
            Mayer & Co., 217 N.W.2d 531 (Iowa 1974); Bodish v. Fischer, 
 
            Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).
 
            
 
                 When the disability develops gradually over a period of 
 
            time, the "cumulative injury rule" applies.  For time 
 
            limitation purposes, the compensable injury may be held to 
 
            occur when because of pain or physical disability, the 
 
            claimant can no longer work.  McKeever Custom Cabinets v. 
 
            Smith, 379 N.W.2d 368 (Iowa 1985).
 
 
 
                 It is undisputed that disability resulting from 
 
            claimant's right-sided carpal tunnel decompression is 
 
            causally related to the cumulative work injury of March 20, 
 
            1989.  Claimant asserts, and defendants dispute, that he 
 
            currently has bilateral permanent disability and, on the 
 
            right side, disability to the arm (the cubital tunnel 
 
            procedure) and shoulder.
 
            
 
                 Dr. Grundberg, the treating surgeon, has causally 
 
            related the carpal tunnel procedure to the 1989 work injury, 
 
            but no physician has related the cubital tunnel procedure to 
 
            that injury date.  While Dr. Rosenfeld agrees that the 
 
            cubital tunnel problem (and possibly other future 
 
            disability) is due to cumulative trauma, he does not specify 
 
            the 1989 occurrence as opposed to claimant's subsequent work 
 
            history.
 
            
 
                 Determination of the legal injury date can sometimes be 
 
            as much an art as a science.  In McKeever, 379 N.W.2d 368, a 
 
            compensable injury was held to occur when, due to pain or 
 
            physical disability, claimant could no longer work.  In 
 
            Oscar Mayer Foods v. Tasler, 483 N.W.2d 824 (Iowa 1992), 
 
            the injury was held to have manifested itself on the date 
 
            the condition became severe enough to prompt claimant to 
 
            seek medical attention.  See also, Ward v. IBP, Inc., Number 
 
            929589 (App. Dec., March 31, 1993).
 
            
 
                 The undisputed evidence of Dr. Grundberg establishes 
 
            that claimant has no current permanent disability to the 
 
            left arm or either shoulder.  Claimant does have permanent 
 
            disability to the right arm as a residual of his cubital 
 
            tunnel procedure, but this disability is not necessary tied 
 
            to the 1989 injury.  Dr. Grundberg rated the conditions 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            separately, and has assigned only the carpal tunnel rating 
 
            to the 1989 injury.  Following the carpal tunnel procedure, 
 
            claimant was released to full duty and became symptom free.  
 
            Nerve conduction studies were normal.  It is the disability 
 
            that is compensated, not the initial symptoms.  Right arm 
 
            symptoms redeveloped and became severe only long after the 
 
            1989 injury.  On this record, claimant has failed to prove 
 
            that disability resulting from his cubital tunnel procedure 
 
            is causally related to the 1989 injury under review.  This 
 
            decision does not discuss whether the right arm disability 
 
            arose out of and in the course of employment, as only the 
 
            single injury date is presented in this litigation.  
 
            Claimant, of course, is free to litigate the issue of 
 
            whether disability in the arm resulted from a work injury of 
 
            some other, more recent date.
 
            
 
                 It is accordingly held that disability from the injury 
 
            date litigated here is limited to the right hand.  Dr. 
 
            Grundberg's rating of three percent is accepted, as Dr. 
 
            Grundberg was the treating surgeon who saw claimant over an 
 
            extended period of time.  Dr. Grundberg had a better 
 
            opportunity to observe claimant than did Dr. Rosenfeld.
 
            
 
                 Pursuant to Iowa Code section 85.34(2)(l), the loss of 
 
            a hand is compensated during 190 weeks.  Three percent of 
 
            190 weeks is 5.7 weeks.
 
            
 
                 This leaves determination of rate as an issue.  Because 
 
            claimant was paid an hourly wage, his compensation should be 
 
            determined under Iowa Code section 85.36(6).  The statute 
 
            provides that the weekly earnings of such an individual is 
 
            computed by dividing by 13 the straight time earnings during 
 
            the last completed period of 13 consecutive calendar weeks 
 
            immediately preceding the injury.
 
            
 
                 The payroll records demonstrate that claimant worked a 
 
            number of short weeks due to vacation or holiday.  The 
 
            agency has long recognized that nonrepresentive weeks should 
 
            be excluded from rate calculation.  Hardy v. Abell-Howell 
 
            Co., 841126 (App. Dec., December 12, 1990); Davis v. Weitz 
 
            Co., 898933 (App. Dec., November 25, 1992).
 
            
 
                 Defendants have offered the contrary opinion of the 
 
            Hon. Ross A. Walters, Judge of the Fifth Judicial District 
 
            of Iowa, in judicial review of Davis.  There, the Court 
 
            concluded that the commissioner's view on "nonrepresentive" 
 
            weeks is contrary to the statute.  However, Judge Walters' 
 
            opinion is merely persuasive.  A deputy industrial 
 
            commissioner is bound by precedential decisions of the 
 
            commissioner, not those of district judges.  Further 
 
            arguments as to the validity of the agency's position on 
 
            nonrepresentive weeks must be addressed to a higher 
 
            authority.
 
            
 
                 The weeks of February 26, February 19, February 5, 
 
            January 15, January 8 and January 1 are nonrepresentive.  
 
            During the other seven weeks, claimant had total straight 
 
            total earnings of $3,999.70, or a weekly average of $570.39.  
 
            The rate tables published by the commissioner in effect on 
 
            March 20, 1989, show that a single individual with three 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            exemptions and those earnings is entitled to a compensation 
 
            rate of $341.28.  Claimant's permanent partial disability at 
 
            that rate totals $1,945.30.  Defendants have paid only 
 
            $1,765.72.
 
            
 
                 Claimant was released to return to work June 21, 1989, 
 
            which is adopted as the date for commencement of benefits.
 
            
 
                                      ORDER
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 Defendants shall pay five point seven (5.7) weeks of 
 
            permanent partial disability at the rate of three hundred 
 
            forty-one and 28/100 dollars ($341.28) commencing June 21, 
 
            1989.
 
            
 
                 Defendants shall have credit totalling one thousand 
 
            seven hundred sixty-five and 72/100 dollars ($1,765.72).
 
            
 
                 All accrued benefits shall be paid in a lump sum 
 
            together with statutory interest.
 
            
 
                 Costs are assessed to defendants.
 
            
 
                 Signed and filed this ____ day of July, 1994.
 
            
 
            
 
                                          
 
                                           ________________________________
 
                                          DAVID RASEY
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr Robert W Pratt
 
            Attorney at Law
 
            6959 University Avenue
 
            Des Moines Iowa 50311-1540
 
            
 
            Mr Marvin E Duckworth
 
            Attorney at Law
 
            Terrace Center Ste 111
 
            2700 Grand Avenue
 
            Des Moines Iowa 50312
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                 3001; 2906
 
                                                 Filed July 21, 1994
 
                                                DAVID RASEY
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER 
 
            ____________________________________________________________
 
                                          :
 
            JOHN MCCLAIN,                 :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 920853
 
            BRIDGESTONE/FIRESTONE,        :
 
                                              A R B I T R A T I O N
 
                 Employer,                :
 
                                                 D E C I S I O N
 
            and                           :
 
                                          :
 
            CIGNA INSURANCE COMPANIES,    :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            3001; 2906
 
            "Nonrepresentative" weeks (sick days and vacation) were 
 
            excluded from rate calculation based on Davis v. Weitz Co., 
 
            (App. Dec., November 25, 1992), even though that ruling was 
 
            reversed at the district court level.  Deputies are bound by 
 
            precedential decisions of the commissioner, not the district 
 
            courts.
 
            
 
 
            
 
            
 
            
 
                                         52701
 
                                         Filed September 26, 1994
 
                                         Marlon D. Mormann
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ------------------------------------------------------------
 
            JOHN MCCLAIN,                 :
 
                                          :      File No. 920853
 
                 Claimant,                :
 
                                          :
 
            vs.                           :       MEMORANDOM OF
 
                                          :
 
            BRIDGESTONE/FIRESTONE,        :        DECISION ON
 
                                          :
 
                 Employer,                :         ALTERNATE
 
                                          :
 
            and                           :        MEDICAL CARE
 
                                          :
 
            CIGNA,                        :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ------------------------------------------------------------
 
            
 
            Employer's motion for summary judgment denied.  Claimant's 
 
            request to litigate issues of right elbow and right shoulder 
 
            under injury date March 20, 1989, denied.  Claimant allowed 
 
            treatment with Dr. Arnis Grundberg.
 
            
 
            
 
 
            
 
            
 
            
 
            
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ------------------------------------------------------------
 
            JOHN MCCLAIN,                 :
 
                                          :      File No. 920853
 
                 Claimant,                :
 
                                          :
 
            vs.                           :       MEMORANDOM OF
 
                                          :
 
            BRIDGESTONE/FIRESTONE,        :        DECISION ON
 
                                          :
 
                 Employer,                :         ALTERNATE
 
                                          :
 
            and                           :        MEDICAL CARE
 
                                          :
 
            CIGNA,                        :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ------------------------------------------------------------
 
            
 
            Employer's motion for summary judgment denied.  Claimant's 
 
            request to litigate issues of right elbow and right shoulder 
 
            under injury date March 20, 1989, denied.  Claimant allowed 
 
            treatment with Dr. Arnis Grundberg.
 
            
 
                 Signed and filed this __________ day of September, 
 
            1994.
 
            
 
            
 
                                          ______________________________
 
                                          MARLON D. MORMANN
 
                                          DEPUTY INDUSTRIAL COMMISSIONER    
 
            
 
            Copies to:
 
            
 
            Mr. Robert Pratt
 
            Attorney at Law
 
            6959 University Ave.
 
            Des Moines, Iowa  50311-1540
 
            
 
            Mr. Marvin Duckworth
 
            Attorney at Law
 
            2700 Grand Ave STE 111
 
            Des Moines, Iowa  50312