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                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            JAMES D. DUSENBERY,           :
 
                                          :
 
                 Claimant,                :         File Nos. 879532
 
                                          :                   892708
 
            vs.                           :                   919546
 
                                          :                   921011
 
            STONE CONTAINER CORPORATION,  :
 
                                          :      A R B I T R A T I O N
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            AMERICAN MOTORISTS INSURANCE  :
 
            COMPANY,                      :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 Claimant James Dusenbery filed four petitions in 
 
            arbitration on September 18, 1989, seeking benefits under 
 
            the Iowa Workers' Compensation Act from his employer, Stone 
 
            Container Corporation, and its insurance carrier, American 
 
            Motorists Insurance Company.  All actions were consolidated 
 
            by order of August 1, 1990.
 
            
 
                 File number 879532 alleges a back injury of February 
 
            11, 1988.  File number 921011 alleges an injury to the neck 
 
            and left shoulder on March 16, 1988.  File number 892708 
 
            alleges an injury to the right foot of July 20, 1988.  File 
 
            number 919546 alleges injuries to the back and left shoulder 
 
            on April 5, 1989.
 
            
 
                 These cases came on for hearing in Des Moines, Iowa, on 
 
            November 1, 1990.  The record consists of joint exhibits A 
 
            through L and the testimony of claimant, Thomas Riggs and 
 
            Charles Sloan.
 
            
 
                                      issues
 
            
 
                 The parties have stipulated that claimant sustained 
 
            injuries arising out of and in the course of his employment 
 
            with Stone Container Corporation on each date alleged.  It 
 
            is further stipulated that the injury of February 11, 1988 
 
            caused temporary disability from February 15 through 19 and 
 
            from February 25 through 29, 1988; that the injury of March 
 
            16, 1988 caused temporary disability on March 17 and 18 and 
 
            from March 22 through May 4, 1988; that the injury of July 
 
            20, 1988 caused temporary disability from July 21 through 
 
            September 6, 1988; and, that the injury of April 5, 1989 
 
            caused temporary disability from April 20 through May 1, 
 

 
            
 
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            1989.
 
            
 
                 The parties also entered into a stipulation concerning 
 
            the appropriate rate of compensation for each injury, agreed 
 
            that affirmative defenses were not at issue, that all 
 
            requested medical benefits have been or will be paid by 
 
            defendants, and that defendants are entitled to credit for 
 
            benefits paid pursuant to an attachment filed with the 
 
            prehearing report.
 
            
 
                 Issues presented for resolution in each case include:
 
            
 
                 1.  Whether the injury caused permanent disability;
 
            
 
                 2.  The nature and extent of permanent disability, if 
 
            any; and,
 
            
 
                 3.  Claimant's entitlement to penalty benefits under 
 
            Iowa Code section 86.13.
 
            
 
                                 findings of fact
 
            
 
                 The undersigned deputy industrial commissioner, having 
 
            heard the testimony and considered all of the evidence, 
 
            finds:
 
            
 
                 James D. Dusenbery, a credible witness in his own 
 
            behalf, was 41 years of age at hearing.  He is a high school 
 
            graduate with military experience.  Following high school, 
 
            Mr. Dusenbery hunted and trapped and was for a short while 
 
            employed in construction and as a mail room worker.  After 
 
            military service, claimant worked briefly in a canning 
 
            factory before accepting work in March 1972 with a 
 
            predecessor employer, Great Plains Bag Company (Stone 
 
            Container Corporation since 1984).  Claimant has been 
 
            employed as a machine tender since 1972.
 
            
 
                 Stone Container Corporation manufactures paper grocery 
 
            bags.  Claimant's employment with Stone and Great Plains has 
 
            placed substantial physical demands on him.  He maneuvers 
 
            heavy rolls of paper (2,300-2,600 pounds) onto spindles as 
 
            often as a dozen times per shift.  He loads 50-pound bags of 
 
            ink into his machine while manufacturing 400 bags per 
 
            minute.  He must stack 40- to 60-pound bales of paper bags 
 
            on pallets, up to once per minute.
 
            
 
                 The injury of February 11, 1988 occurred when claimant 
 
            strained his lower back while manipulating a heavy roll of 
 
            paper to line it up with a spindle.  Although he felt a 
 
            muscle cramping, he did not at first believe he was injured.
 
            
 
                 Claimant was seen by company doctor James L. Blessman, 
 
            M.D., on February 15.  Initial impression was of acute back 
 
            strain.  Dr. Blessman released claimant to return to work 
 
            with restrictions effective February 22 and to full duty on 
 
            March 8.  X-rays of the lumbar spine on February 26 were 
 
            negative.  In an examination of March 7, Kevin Smith, M.D., 
 
            (of the same office) found claimant to have normal range of 
 

 
            
 
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            motion and feeling improved with no muscle spasms.  
 
            Impression was of low back strain resolving.
 
            
 
                 On March 16, 1988, claimant injured his left shoulder 
 
            and neck while using his weight to bounce on a pry bar 
 
            trying to unjam his machine.  Dr. Smith's chart notes of the 
 
            same date reflect complaints of pain on the left side with 
 
            spasms around the abdominal wall and pain in the arms and 
 
            legs.  Only on the following day, did claimant make mention 
 
            of pain in the left shoulder.  He still had good range of 
 
            motion of the back, except for forward flexion.  Dr. 
 
            Blessman continued in his impression of muscle spasm and 
 
            pain, but released claimant to work with restrictions 
 
            against lifting in excess of 15 pounds and against 
 
            repetitive bending.
 
            
 
                 Claimant was thereupon referred for consultation to 
 
            William R. Boulden, M.D.  Dr. Boulden's examination of March 
 
            29, 1988 resulted in an impression of myofascial pain in the 
 
            left shoulder blade area and low back pain secondary to 
 
            myofascial pain and tightness.  Dr. Boulden found full range 
 
            of motion in the cervical spine and no neurological deficit 
 
            in the upper extremities.  There was no decreased range of 
 
            motion in the lumbar spine, although claimant had some 
 
            tightness on flexion.
 
            
 
                 On May 3, 1988, Dr. Boulden released claimant to return 
 
            to half-days regular duty, half-days light duty for two 
 
            weeks effective May 5.  Dr. Boulden expressed his view that 
 
            claimant's problem was muscular in nature and that he had to 
 
            work through it.
 
            
 
                 Claimant did return to work as per his release.  This 
 
            was his last medical treatment for cervical, shoulder or 
 
            back complaints for nearly a year.  However, Mr. Dusenbery 
 
            testified that he continued to suffer aching in the left 
 
            shoulder and lower back through 1988 and even unto the 
 
            present.
 
            
 
                 On July 20, 1988, claimant suffered a comminuted 
 
            fracture of the distal fifth metatarsal of the right foot 
 
            when he missed a step while walking up stairs at work.  He 
 
            was treated by Dr. Kuhle (also in Dr. Blessman's office) and 
 
            Joshua Kimelman, D.O.  Dr. Kimelman released claimant to 
 
            sedentary work on August 2 and to his regular work without 
 
            limitation on September 7, 1988.  No evidence in this record 
 
            indicates that permanent impairment resulted from this 
 
            incident.
 
            
 
                 On April 5, 1989, claimant suffered the last of the 
 
            four injuries under review.  While pushing a dump cart up a 
 
            steep incline, Mr. Dusenbery slipped on a grease spot and 
 
            fell, using his left arm to fend off the heavy cart.  He 
 
            immediately developed pain in the neck and left shoulder.  
 
            On the following day, he reported numbness in the left elbow 
 
            to Dennis Straubinger, D.O., also of Dr. Blessman's office.  
 
            That physician reported full range of motion of the cervical 
 
            spine, shoulder, elbow and digits without gross limitation.  
 

 
            
 
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            No crepitation was heard.  Muscle strength was appropriate.  
 
            X-rays read by Gregery D. Kienzle, M.D., on the same date 
 
            were normal as to the cervical spine, left shoulder and left 
 
            elbow.  Claimant was released to light duty with a 15-pound 
 
            lifting restriction.
 
            
 
                 Chart notes of April 13 show claimant essentially 
 
            unchanged.  Claimant noted that his previous injury of 
 
            approximately one year before took four weeks to resolve 
 
            (indicating that in his own mind, the problem had resolved).  
 
            Impression was of left neck, shoulder and elbow pain, 
 
            etiology unknown.  Chart notes indicate Dr. Straubinger's 
 
            intent to seek a consultation from Scott B. Neff, D.O., 
 
            although claimant was actually seen by another physician in 
 
            that office, Robert F. Breedlove, M.D.
 
            
 
                 Dr. Straubinger continued to see claimant for his 
 
            cervical and shoulder complaints.  Those continued, range of 
 
            motion diminished in the cervical spine and, on April 28, 
 
            Dr. Straubinger noted low grade crepitation to internal and 
 
            external rotation of the left shoulder.  On May 11, working 
 
            diagnosis was described as myofascial strain mechanism.  
 
            Chart notes of that date indicate that bone scan was 
 
            negative.
 
            
 
                 Magnetic resonance imaging (MRI) studies of the left 
 
            shoulder and cervical spine were performed on May 30, 1989.  
 
            Studies of the left shoulder were negative.  Studies of the 
 
            cervical spine showed slight reversal of the normal cervical 
 
            lordosis at C4-5, suggesting muscle spasm, loss of hydration 
 
            at C2-3 and C3-4 along with C5-6 and marked degenerative 
 
            change at C4-5.  Impression was of multi-level disc 
 
            degeneration without herniated nucleus pulposis.
 
            
 
                 On June 1, Dr. Straubinger found no palpable muscle 
 
            spasm in the paravertebral muscles and full range of motion 
 
            both actively and passively in the left shoulder.
 
            
 
                 On June 15, 1989, Dr. Straubinger found neck pain and 
 
            left shoulder pain in resolution and claimant agreed there 
 
            was marked improvement.  Claimant was released on a "PRN" 
 
            (return as needed) basis to full, unlimited duty.
 
            
 
                 In the meantime, Dr. Breedlove reported on April 26 
 
            that he had seen claimant for his shoulder injury, but not 
 
            neck problems (which Dr. Breedlove does not treat).  His 
 
            impression was of reoccurrence of myofascial pain and 
 
            lateral epicondylitis.  Physical therapy was prescribed.  On 
 
            June 1, 1989, Dr. Breedlove wrote that claimant reported his 
 
            shoulder was somewhat better but not normal.  At his own 
 
            request, claimant was thereupon released "PRN" to his 
 
            regular work.
 
            
 
                 Claimant returned to Dr. Blessman's office on September 
 
            5, 1989, and was seen by physician "DTB," the identity of 
 
            whom is unclear to this writer.  Upon complaints of back 
 
            pain with radiation to the right leg, claimant was taken off 
 
            work and computerized tomography of the lumbar spine was 
 

 
            
 
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            ordered.  On September 8, Tim Grissom, M.D., performed a CT 
 
            scan of the lumbar spine and found it normal with no 
 
            evidence of disc bulge, herniation, central spine stenosis, 
 
            lateral recess or foraminal stenosis from L3 through S1.
 
            
 
                 On September 13, claimant was returned to work with 
 
            restrictions against lifting in excess of 20 pounds or 
 
            working above shoulder level on the left.  Claimant was also 
 
            treated with trigger point injections and a TENS unit 
 
            (electrical stimulation).  On September 27, claimant 
 
            reported that neither therapy was effective.  In addition, 
 
            on that date he began complaining of numbness going down the 
 
            right leg.
 
            
 
                 Claimant was next seen in consultation by Scott C. 
 
            Erwood, M.D., apparently a neurosurgeon.  On October 3, Dr. 
 
            Erwood reported that chronic neck and low back discomfort 
 
            was likely musculoskeletal in etiology and that left upper 
 
            extremity paresthesias were more suggestive of the 
 
            possibility of ulnar neuropathy, so claimant was scheduled 
 
            for an EMG and nerve conduction studies.  On October 6, Dr. 
 
            Erwood reported that EMG and nerve conduction studies were 
 
            negative without evidence of ulnar neuropathy.  He reported 
 
            finding no structural explanation for claimant's pain and 
 
            indicated that a chronic pain management program would be 
 
            the most appropriate course of treatment.  Claimant was 
 
            referred back to Dr. Blessman.
 
            
 
                 Claimant was accordingly seen again by Dr. Blessman on 
 
            October 11, 1989.  Although chart notes are unclear, it 
 
            appears that claimant was released to return to work on that 
 
            date.  Chart notes of November 1 indicate that claimant had 
 
            been on light duty the last week or two and wished to 
 
            continue the same.  Claimant was once again referred to Dr. 
 
            Breedlove for further assessment.
 
            
 
                 On November 8, 1989, Dr. Breedlove reported that 
 
            claimant had limited range of motion in the cervical spine 
 
            and normal range of motion in the left shoulder.  Impression 
 
            was of chronic myofascial pain.  Dr. Breedlove reported that 
 
            he had explained he had nothing to offer claimant 
 
            orthopaedically and that if he was not achieving positive 
 
            results through pain center, it was something he would 
 
            simply have to deal with.
 
            
 
                 Claimant returned to Dr. Blessman on November 22, 1989.  
 
            Chart notes of that date indicate that claimant wished to 
 
            return to his regular duty job and, as the doctor felt it 
 
            was safe for him to do so, he was released.
 
            
 
                 Claimant apparently continued working his regular job 
 
            without problems or medical restrictions for nearly a year 
 
            until September 26, 1990.  He did not seek or receive any 
 
            medical treatment during this interval, although he 
 
            continued taking medications.
 
            
 
                 Dr. Blessman's chart notes of September 26, 1990, 
 
            indicate that claimant had returned for recheck of his low 
 

 
            
 
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            back pain which started the day before at work.  His 
 
            impression was of acute low back strain.  Claimant was taken 
 
            off work.  Due to the possibility that this incident 
 
            constituted yet another compensable injury, this writer 
 
            ruled at hearing that claimant's permanent disability, if 
 
            any, would be calculated based on his condition immediately 
 
            prior thereto.  Claimant was still off work on the date of 
 
            hearing.
 
            
 
                 Claimant was seen for evaluation by two physicians 
 
            subsequent to this incident.  Dr. Breedlove found there was 
 
            no work restriction as the result of claimant's shoulder 
 
            discomfort and no further medical treatment would be 
 
            necessary.  Claimant was described as having no permanent 
 
            impairment as a result of his injury that could be detected 
 
            objectively.  Jerome G. Bashara, M.D., reported on September 
 
            28, 1990 that claimant had suffered an exacerbation of his 
 
            low back pain, severe in nature, on September 26.  Claimant 
 
            was described as suffering numbness and tingling of the left 
 
            upper extremity with loss of grip and strength, limited 
 
            range of motion, stiffness and muscle spasms.  Upon a 
 
            diagnosis of chronic rhomboid tendonitis of the left 
 
            shoulder with a mild restriction of motion, Dr. Bashara 
 
            assessed a three percent permanent impairment of the left 
 
            upper extremity.  No specific physical restrictions were 
 
            suggested.  Although Dr. Bashara also rated impairment to 
 
            the lumbar spine, he did not do so as to the cervical spine.
 
            
 
                                conclusions of law
 
            
 
                 The parties have stipulated that all four injuries 
 
            under review arose out of and in the course of employment.  
 
            They have also stipulated to claimant's entitlement to 
 
            healing period or temporary total disability with respect to 
 
            each injury.  Causal connection to permanent disability and 
 
            the possible extent thereof remains at issue in all four 
 
            contested cases.
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that each injury is causally 
 
            related to the disability on which he now bases his claim.  
 
            Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 
 
            (1965).  Lindahl v. L. O. Boggs, 236 Iowa 296, 18 N.W.2d 607 
 
            (1945).  A possibility is insufficient; a probability is 
 
            necessary.  Burt v. John Deere Waterloo Tractor Works, 247 
 
            Iowa 691, 73 N.W.2d 732 (1955).  The question of causal 
 
            connection is essentially within the domain of expert 
 
            testimony.  Bradshaw v. Iowa Methodist Hosp., 251 Iowa 375, 
 
            101 N.W.2d 167 (1960). 
 
            
 
                 However, expert medical evidence must be considered 
 
            with all other evidence introduced bearing on the causal 
 
            connection.  Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion 
 
            of experts need not be couched in definite, positive or 
 
            unequivocal language.  Sondag v. Ferris Hardware, 220 N.W.2d 
 
            903 (Iowa 1974).  However, the expert opinion may be 
 
            accepted or rejected, in whole or in part, by the trier of 
 
            fact.  Id. at 907.  Further, the weight to be given to such 
 

 
            
 
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            an opinion is for the finder of fact, and that may be 
 
            affected by the completeness of the premise given the expert 
 
            and other surrounding circumstances.  Bodish, 257 Iowa 516, 
 
            133 N.W.2d 867.  See also Musselman v. Cent. Tel. Co., 261 
 
            Iowa 352, 154 N.W.2d 128 (1967).
 
            
 
                 Claimant's comminuted fracture of the right foot on 
 
            July 20, 1988 (892708) shall be first considered.  The foot 
 
            is a scheduled member and disability thereto is compensated 
 
            under Iowa Code section 85.34(2)(n) during 150 weeks.  The 
 
            evidence here shows that claimant returned to work without 
 
            restriction.  The record does not show that any physician 
 
            has concluded that claimant sustained permanent impairment 
 
            from this comminuted fracture.  It is, of course, not 
 
            uncommon for fractures to heal without permanent impairment.  
 
            Claimant has failed to meet his burden of proof in 
 
            establishing entitlement to permanent partial disability to 
 
            his right foot.
 
            
 
                 However, claimant asserts that this injury was 
 
            compensated at an incorrect rate.  According to the 
 
            attachment to the prehearing report stipulated to by the 
 
            parties, defendants paid temporary total disability benefits 
 
            of 6.857 weeks from July 21 through September 6, 1988 at a 
 
            weekly rate of $207.70, totalling $1,424.20.  The parties 
 
            also stipulated that claimant's entitlement to temporary 
 
            disability is from July 21 through September 6, which is 
 
            6.857 weeks.  It is further stipulated that claimant's 
 
            average gross weekly earnings with respect to this case 
 
            averaged $322.00 per week and that he was married and 
 
            entitled to three exemptions at the time.  The Guide to Iowa 
 
            Workers' Compensation Claim Handling published by this 
 
            office and effective July 1, 1988 shows that an individual 
 
            so situated is entitled to a weekly rate of $211.18.  Thus, 
 
            claimant's entitlement to temporary total disability with 
 
            respect to this injury is $1,448.06, or $23.86 over and 
 
            above defendants' credit.  Claimant is entitled to this 
 
            award with appropriate interest under Iowa Code section 
 
            85.30.  The parties seem to be in some confusion as to the 
 
            proper rate, as they stipulated the incorrect figure of 
 
            $215.82 based on average wage, marital status and 
 
            exemptions.  Use of an incorrect rate does not appear so 
 
            unreasonable as to justify penalty benefits.
 
            
 
                 Claimant's back injuries of February 11, 1988 (879532) 
 
            and April 5, 1989 (919546) shall next be considered, 
 
            although the shoulder component of the latter injury is 
 
            reviewed separately, infra.  Because an injury to the back 
 
            is an injury to the body as a whole, compensation is on the 
 
            basis of industrial disability for the loss of earning 
 
            capacity.
 
            
 
                 Functional impairment is an element to be considered in 
 
            determining industrial disability which is the reduction of 
 
            earning capacity, but consideration must also be given to 
 
            the injured employee's age, education, qualifications, expe
 
            rience and inability to engage in employment for which he is 
 
            fitted.  Olson v. Goodyear Service Stores, 255 Iowa 1112, 
 

 
            
 
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            125 N.W.2d 251 (1963).  Barton v. Nevada Poultry, 253 Iowa 
 
            285, 110 N.W.2d 660 (1961).
 
            
 
                 A finding of impairment to the body as a whole found by 
 
            a medical evaluator does not equate to industrial disabil
 
            ity.  This is so as impairment and disability are not syn
 
            onymous.  Degree of industrial disability can in fact be 
 
            much different than the degree of impairment because in the 
 
            first instance reference is to loss of earning capacity and 
 
            in the latter to anatomical or functional abnormality or 
 
            loss.  Although loss of function is to be considered and 
 
            disability can rarely be found without it, it is not so that 
 
            a degree of industrial disability is proportionally related 
 
            to a degree of impairment of bodily function.
 
            
 
                 Factors to be considered in determining industrial dis
 
            ability include the employee's medical condition prior to 
 
            the injury, immediately after the injury, and presently; the 
 
            situs of the injury, its severity and the length of healing 
 
            period; the work experience of the employee prior to the 
 
            injury, after the injury and potential for rehabilitation; 
 
            the employee's qualifications intellectually, emotionally 
 
            and physically; earnings prior and subsequent to the injury; 
 
            age; education; motivation; functional impairment as a 
 
            result of the injury; and inability because of the injury to 
 
            engage in employment for which the employee is fitted.  Loss 
 
            of earnings caused by a job transfer for reasons related to 
 
            the injury is also relevant.  These are matters which the 
 
            finder of fact considers collectively in arriving at the 
 
            determination of the degree of industrial disability.
 
            
 
                 There are no weighting guidelines that indicate how 
 
            each of the factors are to be considered.  There are no 
 
            guidelines which give, for example, age a weighted value of 
 
            ten percent of the total value, education a value of fifteen 
 
            percent of total, motivation - five percent; work experience 
 
            - thirty percent, etc.  Neither does a rating of functional 
 
            impairment directly correlate to a degree of industrial 
 
            disability to the body as a whole.  In other words, there 
 
            are no formulae which can be applied and then added up to 
 
            determine the degree of industrial disability.  It therefore 
 
            becomes necessary for the deputy or commissioner to draw 
 
            upon prior experience, general and specialized knowledge to 
 
            make the finding with regard to degree of industrial dis
 
            ability.  See Peterson v. Truck Haven Cafe, Inc., (Appeal 
 
            Decision, February 28, 1985); Christensen v. Hagen, Inc., 
 
            (Appeal Decision, March 26, 1985).
 
            
 
                 Following the 1988 injury, claimant returned to work 
 
            without restriction on March 7, 1988.  No physician has 
 
            rated impairment, imposed permanent medical restrictions, or 
 
            indicated that any permanent disability is causally related 
 
            to this work injury.  Accordingly, claimant has failed to 
 
            meet his burden of proof in establishing the requisite 
 
            causal nexus to any claimed permanent disability with 
 
            respect to this injury.
 
            
 
                 With respect to the lumbar spine component of the 1989 
 

 
            
 
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            injury, this decision is complicated by the subsequent low 
 
            back injury of September 26, 1990.  It has already been 
 
            ruled that claimant's disability, if any, would be most 
 
            appropriately compensated as per his condition immediately 
 
            prior to the subsequent injury.  As of that time, claimant 
 
            had been working without treatment and without medical 
 
            restriction for nearly one year, although he complains that 
 
            he continued to suffer lower back pain.  X-rays, magnetic 
 
            resonance imaging and CT scans were all negative.  There is 
 
            no objective evidence of any physical defect resulting from 
 
            this injury.  Pain alone is not equivalent to impairment in 
 
            the absence of objective findings.  Waller v. Chamberlain 
 
            Mfg., II Iowa Industrial Commissioner Report 419 (1981).  
 
            Although Dr. Bashara finds permanent impairment based on an 
 
            examination subsequent to September 26, 1990, no physician 
 
            in this record has rated impairment or imposed medical 
 
            restrictions prior to that date.  Claimant continued to work 
 
            his regular job as he has done since 1972, albeit with pain.  
 
            Claimant has failed to establish any diminution of his 
 
            earning capacity with respect to the lumbar spine component 
 
            of the April 5, 1989 injury.
 
            
 
                 It is now appropriate to review claimant's left 
 
            shoulder and cervical spine complaints stemming from the 
 
            injuries of March 16, 1988 (921011) and April 5, 1989 
 
            (919546).
 
            
 
                 The parties stipulated to an entitlement to temporary 
 
            total disability or healing period benefits on March 17 and 
 
            18 and from March 22 through May 4, 1988.  Claimant returned 
 
            to work working half-days regular and half-days light duty 
 
            for two weeks, then to his regular work without restriction.  
 
            Thereafter, he worked without incident (or medical 
 
            restriction) until April 5, 1989.  No physician has opined 
 
            that claimant sustained permanent impairment resulting from 
 
            the March 16, 1988 injury, and no permanent medical 
 
            restrictions were imposed.  There is no showing that 
 
            claimant sustained a diminution of his earning capacity as a 
 
            result of this work injury.  Accordingly, he shall take 
 
            nothing further.
 
            
 
                 The April 5, 1989 incident gave rise to temporary 
 
            disability from April 20 through May 1, 1989 pursuant to the 
 
            parties' stipulation.  Three physicians have considered the 
 
            question of whether claimant sustained permanent disability 
 
            resulting from his left shoulder injury (no physician has 
 
            found permanent impairment to the cervical spine).  Dr. 
 
            Erwood, a treating physician, finds no structural 
 
            explanation for claimant's pain, but finds weakness of 
 
            finger flexors on the left hand, diminished pin prick 
 
            sensation and a positive Tinel's sign at the cubital tunnel.  
 
            Dr. Breedlove, also a treating physician, has concluded that 
 
            no permanent partial impairment as a result of the shoulder 
 
            injury can be detected objectively and proposes no work 
 
            restriction or further medical treatment.  Evaluating 
 
            physician Bashara found mild restriction of the left 
 
            shoulder and diagnosed chronic rhomboid tendonitis with an 
 
            impairment rating of three percent of the left upper 
 

 
            
 
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            extremity.  It is not necessarily true that a treating 
 
            physician's testimony should be given greater weight than 
 
            that of a later evaluating physician; rather, factors such 
 
            as education, compensation, the date of examination and 
 
            experience all go to the weight of that testimony as a 
 
            question of fact, not law.  Rockwell Graphics Systems, Inc. 
 
            v. Prince, 366 N.W.2d 187 (Iowa 1985).  Here though, the 
 
            opinions of the treating physicians are not outweighed by 
 
            the opinion of the evaluating physician.  While Dr. Bashara 
 
            found a mild limitation in claimant's range of motion, other 
 
            physicians had earlier found no such restriction, or 
 
            restriction that was intermittent in nature.  Even if, as 
 
            Dr. Bashara indicates, claimant has a measurable (but small) 
 
            impairment of the upper extremity, there is no showing that 
 
            he now labors under any medical restriction whatsoever with 
 
            respect to the function of his left shoulder.  Prior to the 
 
            lower back injury in 1990, claimant continued to work at his 
 
            regular job, albeit once again with pain.  However, as has 
 
            been seen, pain is not equivalent to industrial disability.  
 
            Claimant has failed to establish that any diminution of his 
 
            earning capacity resulted from the shoulder component of the 
 
            April 5, 1989 work injury.
 
            
 
                 Claimant also asserts entitlement to interest and 
 
            penalty benefits with respect to his time off work in the 
 
            fall of 1989.  However, there is no expert testimony 
 
            causally relating that period of disability to any work 
 
            injury.  As has been seen, this remains claimant's burden of 
 
            proof.  The parties entered into a stipulation concerning 
 
            entitlement to temporary disability, but excluded this 
 
            period from the stipulation.  While defendants did 
 
            eventually voluntarily pay benefits with respect to this 
 
            claim (but not interest or penalty), claimant has failed on 
 
            this record to establish his entitlement to those benefits.  
 
            Therefore, imposition of a penalty is inappropriate.
 
            
 
                                      order
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 In file number 892708, defendants shall pay six point 
 
            eight five seven (6.857) weeks of temporary total disability 
 
            benefits at the weekly rate of two hundred eleven and 18/100 
 
            dollars ($211.18) commencing July 21, 1988, totalling one 
 
            thousand four hundred forty-eight and 06/100 dollars 
 
            ($1,448.06).
 
            
 
                 Defendants shall have credit of one thousand four 
 
            hundred twenty-four and 20/100 dollars ($1,424.20) for 
 
            payments voluntarily made.
 
            
 
                 All such accrued weekly benefits shall be paid in a 
 
            lump sum together with statutory interest thereon pursuant 
 
            to Iowa Code section 85.30.
 
            
 
                 IT IS FURTHER ORDERED that, in file numbers 879532, 
 
            921011 and 919546, claimant shall take nothing further from 
 
            these proceedings.
 

 
            
 
            Page  11
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
                 The costs of all actions shall be assessed to 
 
            defendants pursuant to rule 343 IAC 4.33.  However, expenses 
 
            relating to Dr. Bashara as set forth in claimant's statement 
 
            of expenses shall be limited to a total of one hundred fifty 
 
            and 00/100 dollars ($150.00) as an expert witness fee 
 
            pursuant to Iowa Code section 622.72.
 
            
 
                 Defendants shall file a claim activity report in file 
 
            number 892708 upon payment of this award pursuant to rule 
 
            343 IAC 3.1.
 
            
 
                 Signed and filed this ______ day of ____________, 1991.
 
            
 
                 
 
            
 
                 
 
                 
 
                                          ______________________________
 
                                          DAVID RASEY
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Burns H. Davison II
 
            Attorney at Law
 
            801 Insurance Exchange Building
 
            Des Moines, Iowa  50309
 
            
 
            Mr. Paul C. Thune
 
            Attorney at Law
 
            Suite 300, Fleming Building
 
            P.O. Box 9130
 
            Des Moines, Iowa  50306-9130
 
            
 
 
         
 
         Page   1
 
         
 
         
 
         
 
         
 
         before the iowa industrial commissioner
 
         ____________________________________________________________
 
                                       :
 
         FREDERICK ROBINSON, JR.,      :
 
         Surviving Spouse of Diana     :
 
         Patricia Robinson,            :
 
                                       :       File No. 921019
 
              Claimant,                :
 
                                       :         A P P E A L
 
         vs.                           :
 
                                       :       D E C I S I O N
 
         COVIA,                        :
 
                                       :
 
              Employer,                :
 
                                       :
 
         and                           :
 
                                       :
 
         CHUBB GROUP OF INSURANCE      :
 
         COMPANIES,                    :
 
                                       :
 
              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, as well 
 
         as the prior rulings on the motion for summary judgment and the 
 
         motion to dismiss, are affirmed and are adopted as the final 
 
         agency action in this case, with the following additional 
 
         analysis:
 
         At issue on appeal is whether a penalty should be assessed 
 
         against defendants under Iowa Code section 86.13 for unreasonable 
 
         delay in payment of benefits.  The standard is whether 
 
         defendants' claim is fairly debatable.  Where defendants assert a 
 
         claim that is fairly debatable, they do not act unreasonably in 
 
         the denial of payment.  Seydel v. U of I Physical Plant, Appeal 
 
         Decision, November 1, 1989.  In this case, however, there was no 
 
         factual dispute over the fact that the decedent's death arose out 
 
         of and was in the course of her employment, or that her death was 
 
         causally related to the airline crash.  Rather, the reason 
 
         offered by defendants for their failure to voluntarily pay 
 
         benefits was a constitutional argument that the state of Iowa did 
 
         not have jurisdiction over the decedent's claim.
 
         A challenge to the constitutionality of the statute itself 
 
         differs from a fairly debatable factual dispute concerning the 
 
         evidence.  If challenges to the statutory scheme on 
 
         constitutional grounds were to justify the withholding of 
 
         voluntary payments, it would be an easy matter for any if not all 
 
         defendants to avoid their obligations to make voluntary payments 
 
         by raising attenuated arguments attacking the workers' 
 
         compensation law itself.  Such constitutional objections 
 
         necessarily must be resolved at the judicial review levels, as an 
 
         administrative agency lacks the power to determine the 
 
         constitutional validity of a statute.  Salsbury v. Iowa Dept. of 
 

 
         
 
         Page   2
 
         
 
         
 
         
 
         
 
         Environmental Quality, 276 N.W.2d 830 (Iowa 1979).
 
         Defendants and insurance carriers are free to make whatever 
 
         convoluted arguments their lawyers can create in hopes of 
 
         changing or modifying the law, but in a workers' compensation 
 
         context, they should do so only while paying benefits if 
 
         penalties and interest assessments are to be avoided.
 
         The statute clearly gives this agency jurisdiction over 
 
         decedent's death.  Defendants are free to challenge the 
 
         constitutionality of the statute.  However, when the statute on 
 
         its face imposes liability and imposes a duty to make voluntary 
 
         payments while the case is pending, defendants are obligated to 
 
         do so and their failure to pay voluntary payments while the 
 
         constitutional challenge progressed justifies the imposition of a 
 
         penalty under Iowa Code section 86.13.
 
         Defendants shall pay the costs of the appeal, including the 
 
         preparation of the appeal transcript.
 
         
 
         Signed and filed this ____ day of April, 1992.
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
                   ________________________________
 
                            BYRON K. ORTON
 
                       INDUSTRIAL COMMISSIONER
 
         
 
         
 
         Copies To:
 
         
 
         Mr. Barry Moranville
 
         Attorney at Law
 
         West Bank Building, STE 212
 
         1601 22nd Street
 
         West Des Moines, Iowa  50265
 
         
 
         Mr. Roy M. Irish
 
         Attorney at Law
 
         729 Insurance Exchange Building
 
         Des Moines, Iowa  50309
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
            9999
 
            Filed April 15, 1992
 
            BYRON K. ORTON
 
            BJO
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            FREDERICK ROBINSON, JR.,      :
 
            Surviving Spouse of Diana     :
 
            Patricia Robinson,            :
 
                                          :       File No. 921019
 
                 Claimant,                :
 
                                          :         A P P E A L
 
            vs.                           :
 
                                          :       D E C I S I O N
 
            COVIA,                        :
 
                                          :
 
                 Employer,                :
 
                                          :
 
            and                           :
 
                                          :
 
            CHUBB GROUP OF INSURANCE      :
 
            COMPANIES,                    :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
            9999
 
            Summary affirmance of deputy's decision filed April 5, 1991, 
 
            with short additional analysis.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            FREDERICK ROBINSON, JR.,      :
 
            Surviving Spouse of Diana     :
 
            Patricia Robinson,            :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 921019
 
            COVIA,                        :
 
                                          :     A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            CHUBB GROUP OF INSURANCE      :
 
            COMPANIES,                    :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 This case came on for hearing on March 25, 1991, at Des 
 
            Moines, Iowa.  This is a proceeding in arbitration wherein 
 
            claimant seeks 86.13 penalty benefits as a result of an 
 
            injury occurring on July 19, 1989, in which Diana Robinson 
 
            was killed.  The record in the proceedings consist of the 
 
            testimony of Frederick Robinson, Jr., the surviving spouse 
 
            of Diana Robinson, and defendants' exhibit A.
 
            
 
                                      issues
 
            
 
                 The sole issue for resolution is whether claimant is 
 
            entitled to 86.13 penalty benefits.
 
            
 
                                 findings of fact
 
            
 
                 The undersigned deputy having heard the testimony and 
 
            considered all the evidence, finds that:
 
            
 
                 Diana Robinson was a passenger on United Airlines 
 
            flight 232 from Denver, Colorado to Rosemont, Illinois, on 
 
            July 19, 1989.  During said flight the airplane in which 
 
            Diana Robinson was riding crashed in Sioux City, Iowa, 
 
            resulting in her death.  There is no question or issue as to 
 
            her employment with defendant corporation or that the injury 
 
            arose out of and in the course of her employment.  The only 
 
            issue is whether the defendants delayed the commencement of 
 
            benefits without reasonable or probable cause or excuse.
 
            
 
                 Frederick Robinson testified that had defendant 
 
            employer paid the benefits that would be payable under Iowa 
 
            law, said defendant insurance company would have received 
 
            their money back at the time of the third party settlement 
 
            and would have been totally reimbursed.  Diana Robinson was 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            making approximately $44,000 at the time of her death, which 
 
            was substantially more than her husband was making at the 
 
            time.  It was obvious from the testimony that the loss of 
 
            $44,000 income suddenly did present a substantial financial 
 
            loss to the family of the deceased which relied upon her 
 
            income also for the total family support.  The third party 
 
            settlement appeared to have occurred within the last week or 
 
            ten days of the hearing.  The surviving spouse did receive 
 
            insurance benefits as a result of his wife's death but that 
 
            is immaterial to this matter.  It is not something that can 
 
            be relied upon by the defendants as giving reason for them 
 
            to deny or delay benefits.
 
            
 
                 There is no dispute that benefits were being paid 
 
            reasonably under the Colorado law but the fact is under Iowa 
 
            law the weekly benefits would amount to $293.57 per week 
 
            more, which is a substantial amount.  The defendants take 
 
            the position that they apparently desire to test the 
 
            constitutionality of Iowa law or jurisdictional law and 
 
            contend they have been prevented from doing this by the 
 
            claimant's efforts.  The undersigned is not sure where 
 
            defendants are coming from as to this position other than 
 
            they object to claimant trying to seek his rights that he 
 
            believes he is entitled to under the Iowa law.  Defendants 
 
            seem to desire to take this constitutional issue through the 
 
            federal court and feel that there is reason for them to 
 
            delay benefits until apparently a federal court has decided 
 
            on the constitutional issue.  We are now in Iowa's workers' 
 
            compensation court and the undersigned finds that the Iowa 
 
            Industrial Commissioner does, in fact, have jurisdiction of 
 
            this matter.  The defendants will have an opportunity to 
 
            appeal this to the proper Iowa channels and if they are not 
 
            satisfied, they can decide what else they may do.  It is no 
 
            defense or reason to contend one is reasonable by the fact 
 
            that they desire to appeal an adverse decision to a higher 
 
            court.  They'll have that right in any decision and the 
 
            undersigned will not deny that right but, in fact, the law 
 
            allows them to take the next step upward if they disagree 
 
            with this decision.  The undersigned believes the Iowa 
 
            workers' ort 
 
            law and depending on certain circumstances can also be 
 
            applicable with jurisdiction issues in Iowa.  In the Schmidt 
 
            case cited above, it is clear that "A workman may recover in 
 
            a state in which he sustains harm under the Workmen's 
 
            Compensation Act of that state although the contract of 
 
            employment was made in another state unless the Act provides 
 
            in words or is so interpreted as to apply only when the 
 
            contract of employment is made within the state."  It is 
 
            obvious defendants felt that Colorado had jurisdiction.  The 
 
            fact is that in instances of the case at bar there is multi-
 
            state jurisdiction and entitlement to benefits and there is 
 
            nothing wrong with claimant seeking benefits in the state in 
 
            which the claimant would be entitled to greater benefits.  
 
            It is obvious defendants desire the jurisdiction in which 
 
            the benefits are less.  It so happens that defendants do not 
 
            have the choice of picking the jurisdiction if claimant 
 
            exercises her legal right to pick another jurisdiction that 
 
            happens to be more favorable in paying benefits.  It is the 
 
            claimant that brings the action and not the defendants.
 
            
 
                 The undersigned finds that the surviving spouse of the 
 
            deceased is entitled to benefits under the Iowa Workers 
 
            Compensation Law and that the claimant exercised his rights 
 
            through a legal representative under the Iowa law and 
 
            payments under the Iowa law were delayed in their 
 
            commencement without reasonable or probable cause or excuse 
 
            by the defendants. Frederick Robinson, surviving spouse of 
 
            Diana Robinson, is entitled to penalty benefits.
 
            
 
                 The undersigned further finds that said action of 
 
            defendants is gross in that they could have paid those 
 
            benefits and totally been reimbursed for any payments made 
 
            in an ultimate third party settlement.
 
            
 
                 The undersigned further finds that the Iowa law is 
 
            clear in that there should have been no misunderstanding of 
 
            the right to recover and the fact that one might want to 
 
            challenge the constitutionality of a statute is immaterial.  
 
            The industrial commissioner does not determine the 
 
            constitutionality of the statute.  Until a higher court 
 
            changes the law, the current law and not what one would like 
 
            the law to be, must be applied.
 
            
 
                 The undersigned further finds that claimant is entitled 
 
            to the maximum of 50 percent of the amount of benefits that 
 
            were unreasonably delayed or denied.
 
            
 
                 It was agreed that the effective Iowa compensation rate 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            was $293.57 per week. The amount that has accrued between 
 
            July 19, 1989 and March 27, 1990 is 88 weeks times $293.57 
 
            which equals $25,834.16.  By dividing this figure by 2 to 
 
            obtain the 50 percent penalty, the principal amount of 
 
            penalty benefits for which the defendants are obligated to 
 
            pay to the claimant is $12,917.08.  Claimant is further 
 
            entitled to interest as provided by law.
 
            
 
                                conclusions of law
 
            
 
                 The controlling statutory enactment is section 85.3 of 
 
            The Code of Iowa.  The Iowa Supreme Court has clearly held 
 
            that whenever any employee is injured within the 
 
            geographical boundaries of the state of Iowa, benefits are 
 
            recoverable under the Iowa statute without regard asonable or probable cause or excuse.
 
            
 
                 Claimant's decedent was an employee of defendant 
 
            corporation and her employment arose out of and in the 
 
            course of her employment.  Decedent's death occurred in the 
 
            state of Iowa.
 
            
 
                 Claimant's decedent was performing services for 
 
            defendant employer by the fact that she was flying for the 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            benefit of defendant employer over the state of Iowa, at 
 
            which time the plane in which she was flying crashed.
 
            
 
                                      order
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 That defendants shall pay unto claimant 86.13 penalty 
 
            benefits in the amount of 50 percent of those benefits that 
 
            were unreasonably delayed or denied at the weekly rate of 
 
            two hundred ninety-three and 57/100 dollars ($293.57) which 
 
            amounts to twelve thousand nine hundred seventeen and 08/100 
 
            dollars ($12,917.08).
 
            
 
                 That defendants shall pay interest on benefits awarded 
 
            herein as set forth in Iowa Code section 85.30.
 
            
 
                 That defendants shall pay the costs of this action, 
 
            pursuant to rule 343 IAC 4.33.
 
            
 
                 That defendants shall file an activity report upon 
 
            payment of this award as required by this agency, pursuant 
 
            to rule 343 IAC 3.1.
 
            
 
                 Signed and filed this ____ day of April, 1991.
 
            
 
            
 
            
 
                                          ______________________________
 
                                          BERNARD J. O'MALLEY
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies to:
 
            
 
            Mr Barry Moranville
 
            Attorney at Law
 
            West Bank Bldg  Ste 212
 
            1601 22nd st
 
            W Des Moines IA 50265
 
            
 
            Mr Roy M Irish
 
            Attorney at Law
 
            729 Ins Exch Bldg
 
            Des Moines IA 50309
 
            
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                4000
 
                                Filed April 5, 1991
 
                                Bernard J. O'Malley
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            FREDERICK ROBINSON, JR.,      :
 
            Surviving Spouse of Diana     :
 
            Patricia Robinson,            :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 921019
 
            COVIA,                        :
 
                                          :     A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            CHUBB GROUP OF INSURANCE      :
 
            COMPANIES,                    :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            4000
 
            Only issue:  Claimant's entitlement to 86.13 penalty 
 
            benefits.
 
            Claimant died in United 232 on crash in Sioux City, Iowa.  
 
            Defendants refused to pay claimant's claim under Iowa 
 
            workers' compensation law but were paying under Colorado 
 
            law, place of business of defendant employer.  Iowa weekly 
 
            benefits are $293.57 per week more.  Defendants contend they 
 
            want to test the constitutionality of the Iowa law and, 
 
            therefore, feel they reasonably withheld Iowa payment.  Held 
 
            claimant entitled to 50% penalty benefits.  This amounts to 
 
            $12,917.05.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            THOMAS J. CARRINGTON,         :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :    File Nos. 921023 & 893852
 
            MEISNER ELECTRIC,             :
 
                                          :      A R B I T R A T I O N
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            GENERAL CASUALTY CO.,         :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding in arbitration brought by Thomas 
 
            J. Carrington, claimant, against Meisner Electric, employer 
 
            (hereinafter referred to as Meisner), and General Casualty 
 
            Company, insurance carrier, defendants, for workers' compen
 
            sation benefits as a result of alleged injuries on August 
 
            15, 1988 and December 20, 1988.  On May 22, 1990, a hearing 
 
            was held on claimant's petition and the matter was consid
 
            ered fully submitted at the close of this hearing.
 
            
 
                 The parties have submitted a prehearing report of con
 
            tested issues and stipulations which was approved and 
 
            accepted as a part of the record of this case at the time of 
 
            hearing.  Oral testimony and written exhibits were received 
 
            during the hearing from the parties.  The exhibits offered 
 
            into the evidence are listed in the prehearing report.
 
            
 
                 According to the prehearing report, the parties have 
 
            stipulated to the following matters:
 
            
 
                 1.  An employee-employer relationship existed between 
 
            claimant and Meisner at the time of the alleged injuries.
 
            
 
                 2.  Claimant is seeking temporary total disability/ 
 
            healing period benefits only after March 4, 1990.  Claimant 
 
            admits to being paid a total of 80 6/7 weeks of temporary 
 
            total or healing period benefits prior to March 4, 1989.
 
            
 
                 3.  Claimant's rate of weekly compensation in the event 
 
            of an award of weekly benefits from this proceeding shall be 
 
            $243.63.
 
            
 
                 It should be noted that the issues of entitlement to 
 
            permanent disability and medical benefits have been bifur
 
            cated from this proceeding and will be heard at a later 
 
            date.
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
                                      issues
 
            
 
                 The parties submitted the following issues for determi
 
            nation in this proceeding:
 
            
 
                  I.  Whether claimant suffered an injury arising out of 
 
            and in the course of his employment with Meisner.
 
            
 
                 II.  The extent of claimant's entitlement to temporary 
 
            total disability or healing period benefits.
 
            
 
                                 findings of fact
 
            
 
                 Having heard the testimony and considered all the evi
 
            dence, the deputy industrial commissioner finds as follows:
 
            
 
                 A credibility finding is necessary to this decision as 
 
            defendants place claimant's credibility at issue as to the 
 
            nature and extent of the injury and disability.  From his 
 
            demeanor while testifying and his inconsistent statements at 
 
            hearing and to his physicians, claimant could not be found 
 
            credible.
 
            
 
                 Claimant worked for Meisner approximately four months 
 
            prior to the alleged work injuries.  Claimant came from 
 
            Chicago, Illinois as a journeyman electrician.  According to 
 
            claimant's employment records at Meisner, Meisner management 
 
            had some concern as to claimant's knowledge and abilities as 
 
            a journeyman electrician.  However, claimant continued to 
 
            work as a journeyman electrician until he was laid off on 
 
            January 20, 1989, due to the onset of the winter season.
 
            
 
                 On or about August 15, 1988, claimant injured his right 
 
            shoulder when some pipe or electrical conduit fell onto his 
 
            right shoulder while working as an electrician for Meisner.  
 
            This finding is made despite claimant's lack of credibility 
 
            as his report of the incident was consistent with the 
 
            reports filed with this agency by Meisner and with histories 
 
            claimant provided to the treating orthopedic surgeon, Robert 
 
            Gitchell, M.D.  This injury aggravated a preexisting healed 
 
            fracture of the shoulder which claimant received as a youth.  
 
            However, the injury also separated claimant's shoulder joint 
 
            which Dr. Gitchell eventually felt was permanent and the
 
            
 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            doctor rated claimant as suffering from a three percent per
 
            manent partial impairment to the body as a whole due to the 
 
            injury.
 
            
 
                 Claimant was temporarily totally disabled from work due 
 
            to the injury of August 15, 1988, from the date of injury 
 
            until August 31, 1988.  Claimant was released at that time 
 
            by Dr. Gitchell but claimant did not return to work.  
 
            Claimant returned to Dr. Gitchell on the day he was suppose 
 
            to return to work stating that he had attempted to work but 
 
            had problems with lifting and climbing.  This was not cor
 
            rect as claimant's temporary return to work at or about that 
 
            time was not verified by claimant's attendance records.  Dr. 
 
            Gitchell then imposed a 35 pound restriction and restric
 
            tions against climbing and work above ground based upon 
 
            claimant's history.  However, Dr. Gitchell again released 
 
            claimant to return to work.  Claimant again did not return 
 
            to work and remained off work until December 12, 1988.  
 
            Claimant did not show by credible evidence that he was off 
 
            work between August 31, 1988 and December 12, 1988, as a 
 
            result of the injury.  The restrictions imposed by Dr. 
 
            Gitchell on August 31, 1988, were based upon an incorrect 
 
            history provided by claimant.  Except for holidays and a few 
 
            other days, claimant then worked continuously from December 
 
            12, 1988, until his layoff on January 20, 1989.
 
            
 
                 It could not be found that claimant suffered any other 
 
            injury at Meisner.  Claimant claims to have injured his 
 
            shoulder again on December 20, 1988.  At that time, he 
 
            sought treatment for shoulder pain from a doctor in the same 
 
            clinic as Dr. Gitchell.  The office records from that doctor 
 
            indicate that claimant complained to the doctor of shoulder 
 
            pain after a lifting incident at work.  The doctor then took 
 
            claimant off work for only one day.  Claimant was absent 
 
            from work the next day and this is found to be causally 
 
            related to the original injury of August 15, 1988.  Claimant 
 
            was to see Dr. Gitchell three days later.  Claimant did not 
 
            return to Dr. Gitchell until the time he was laid off on 
 
            January 20, 1989.  At that time he reported to Dr. Gitchell 
 
            another version of the injury to his right shoulder on 
 
            December 20, 1988, in which he slipped from a ladder and 
 
            grabbed a junction box to keep from falling.  This was the 
 
            account of the injury that claimant testified to at hearing.  
 
            After his examination of claimant, Dr. Gitchell released 
 
            claimant to return to work.  The failure of Dr. Gitchell to 
 
            take claimant off work due to the injury upset claimant.  
 
            Claimant stated incorrectly to Dr. Gitchell at that time 
 
            that he had not worked since December 20, 1988.  Claimant 
 
            subsequently accused the doctor of race discrimination.
 
            
 
                 Claimant next sought treatment for his right shoulder 
 
            pain from another orthopedic surgeon, Scott Neff, D.O., in 
 
            February of 1989.  After his examination of claimant, Dr. 
 
            Neff diagnosed a shoulder separation and referred claimant 
 
            to a physiatrist, Karen Kienker, M.D.  Dr. Kienker first saw 
 
            claimant on March 7, 1989.  She states that claimant was 
 
            disabled from work at that time and she began a treatment 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            program for the right shoulder consisting primarily of phys
 
            ical therapy and pain management.  Dr. Kienker attributed 
 
            the pain to the original injury which she believed was in 
 
            July of 1988.  Dr. Neff likewise attributed claimant's obvi
 
            ous shoulder problems to one or both of the claimed injuries 
 
            in 1988.
 
            
 
                 Claimant claims to have injured his low back in both 
 
            the August and December 1988 alleged injuries.  Claimant 
 
            claims to have had back pain since those injuries.  Due to 
 
            claimant's lack of credibility, it could not be found that 
 
            he suffered a back injury while at Meisner.  Although 
 
            claimant was diagnosed in May of 1989, that he suffers from 
 
            a herniated disc at the L4-5 level of his spine, none of the 
 
            orthopedic surgeons involved in the case causally connect 
 
            this condition to any of the 1988 alleged injuries.  All of 
 
            these physicians deny receiving any complaints of back or 
 
            hip problems while treating claimant.  Dr. Kienker causally 
 
            connects claimant's back pain to the original injury in 1988 
 
            but she admits this is only based upon history provided to 
 
            her by claimant at the time of the first examination in 
 
            March of 1989 that he had hip pain since the original 
 
            injury.  In actuality, it was the first time claimant had 
 
            complained to any doctor of such pain.  Even then active 
 
            treatment did not begin by Dr. Kienker until after claimant 
 
            complained of back pain for the last two months to a psy
 
            chologist in April of 1989 as part of a pain management 
 
            program.
 
            
 
                 Claimant received treatment for both his right shoulder 
 
            and low back problems from Dr. Kienker at the same time.  
 
            Dr. Kienker opines that claimant did not reach maximum heal
 
            ing until January 4 of 1990 and she rates claimant as suf
 
            fering from a 19 percent permanent partial impairment to the 
 
            body as a whole as a result of both the right shoulder and 
 
            low back problems.  However, it will be found that claimant 
 
            reached maximum healing for his work related right shoulder 
 
            problems on August 15, 1989.  At this time Dr. Kienker rated 
 
            both the shoulder and low back conditions.  However, accord
 
            ing to Dr. Kienker's deposition testimony, claimant's shoul
 
            der condition leveled off while she continued treating the 
 
            back condition.  Apparently this leveling off occurred on 
 
            August 15, 1989, as the portion of her impairment ratings 
 
            dealing with the right shoulder did not change between 
 
            August 15, 1989 and January 4, 1990.  Dr. Kienker at both 
 
            times rated claimant as suffering from an eight percent per
 
            manent partial impairment to the body as a whole as a result 
 
            of the shoulder problems.
 
            
 
                 Therefore, it will be found that claimant was temporar
 
            ily totally disabled from work due to the August 15, 1988 
 
            injury a third time from March 7, 1989 until August 15, 
 
            1989, during active treatment of the right shoulder injury 
 
            by Dr. Kienker.  It could not be found that claimant is cur
 
            rently temporarily totally disabled from work due to any 
 
            injury he may have received at Meisner.
 
            
 
                                conclusions of law
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            
 
                   I.  Claimant has the burden of proving by a prepon
 
            derance of the evidence that claimant received an injury 
 
            which arose out of and in the course of employment.  The 
 
            words "out of" refer to the cause or source of the injury.  
 
            The words "in the course of" refer to the time and place and 
 
            circumstances of the injury.  See Cedar Rapids Community 
 
            Sch. v. Cady, 278 N.W.2d 298 (Iowa 1979); Crowe v. DeSoto 
 
            Consol. Sch. Dist., 246 Iowa 402, 68 N.W.2d 63 (1955).  An 
 
            employer takes an employee subject to any active or dormant 
 
            health impairments, and a work connected injury which more 
 
            than slightly aggravates the condition is considered to be a 
 
            personal injury.  Ziegler v. United States Gypsum Co., 252 
 
            Iowa 613, 620, 106 N.W.2d 591 (1960) and cases cited 
 
            therein.
 
            
 
                 In the case sub judice, despite claimant's lack of 
 
            credibility, the preponderance of the other evidence estab
 
            lished that the work injury on August 15, 1988, was an 
 
            aggravation of a prior existing shoulder condition.
 
            
 
                  II.  Claimant is entitled to weekly benefits for tem
 
            porary total disability or healing period benefits under 
 
            Iowa Code section 85.33(1) or 85.34(1) from the date of 
 
            injury until claimant returns to work; until claimant is 
 
            medically capable of returning to substantially similar work 
 
            to the work he was performing at the time of the injury; or, 
 
            until it is indicated that significant improvement from the 
 
            injury is not anticipated, whichever occurs first.  The tem
 
            porary return to work following a work injury does not pre
 
            clude the reinstitution of temporary total disability bene
 
            fits when an employee is compelled to leave work a second 
 
            time as a result of the same injury.  See Junge v. Century 
 
            Engineering Corp., II Iowa Indus. Comm'r Rpt. 219 (Appeal 
 
            Dec. 1981).
 
            
 
                 In the case at bar, it was found that claimant was dis
 
            abled and undergoing treatment at three different periods of 
 
            time:  August 15, 1988 through October 31, 1988; December 
 
            21, 1988; and from March 7, 1989 through August 15, 1989.  
 
            This entitles claimant to a total of 34 2/7 weeks of tempo
 
            rary total disability or healing period benefits.  However, 
 
            claimant has been paid by his employer a total of 80 6/7 
 
            weeks of disability benefits.  Claimant has not shown 
 
            entitlement to any further temporary total or healing period 
 
            benefits.
 
            
 
                                      order
 
            
 
                 1.  The portion of claimant's petitions in these mat
 
            ters for temporary total disability or healing period bene
 
            fits is denied.
 
            
 
                 2.  Claimant shall pay the cost of this action pursuant 
 
            to Division of Industrial Services Rule 343-4.33.
 
            
 
                 3.  The matter shall be set back into assignment for 
 
            prehearing and hearing on the extend of permanent disability 
 
            and medical benefits to which claimant may be entitled.
 
            
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            
 
            
 
                 Signed and filed this ____ day of September, 1990.
 
            
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          LARRY P. WALSHIRE
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Joseph M. Bauer
 
            Attorney at Law
 
            309 Court Ave
 
            STE 500
 
            Des Moines  IA  50309
 
            
 
            Mr. Philip H. Dorff, Jr.
 
            Attorney at Law
 
            Terrace Center  STE 111
 
            2700 Grand Ave
 
            Des Moines  IA  50312
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                               5-1801
 
                                               Filed September 20, 1990
 
                                               LARRY P. WALSHIRE
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            THOMAS J. CARRINGTON,         :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :    File Nos. 921023 & 893852
 
            MEISNER ELECTRIC,             :
 
                                          :      A R B I T R A T I O N
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            GENERAL CASUALTY CO.,         :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
            
 
            5-1801
 
            
 
                 Extent of temporary total disability benefits.  
 
            Nonprecedential.  Due to lack of credibility, further 
 
            benefits were denied.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
            
 
                        
 
            REBECCA ANN SIMPSON,       
 
                        
 
                 Claimant,   
 
                        
 
            vs.         
 
                                                  File No. 921025
 
            BURLINGTON BASKET COMPANY,      
 
                                                    A P P E A L
 
                 Employer,   
 
                                                  D E C I S I O N
 
            and         
 
                        
 
            LIBERTY MUTUAL 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.
 
            
 
                                   ISSUES
 
            
 
            Those portions of the proposed agency decision pertaining to 
 
            issues not raised on appeal are adopted as a part of this 
 
            appeal decision.  Defendants state the following issues on 
 
            appeal:
 
            I.  Did the Deputy err in determining that Claimant 
 
            sustained an injury arising out of and in the course of her 
 
            employment that is causally connected to her current 
 
            disability?
 
            II.  Did the Deputy err in ruling that Claimant was entitled 
 
            to healing period benefits from May 8, 1989, through 
 
            November 27, 1989?
 
            Claimant states the following issue on cross-appeal:  "The 
 
            deputy erred in applying apportionment to the claimant's 
 
            disability."
 
            
 
                              FINDINGS OF FACT
 
            
 
            The findings of fact contained in the proposed agency 
 
            decision filed May 10, 1991 are adopted as set forth below.  
 
            Segments designated by asterisks (*****) indicate portions 
 
            of the language from the proposed agency decision that have 
 
            been intentionally deleted and do not form a part of this 
 
            final agency decision.
 
            Claimant worked for Burlington Basket from March 1989 until 
 
            May 8, 1989, as a machine operator.  Her duties consisted of 
 
            taking plastic pieces from a molding machine; cutting off 
 
            the mold tips on these plastic pieces; and, placing the tips 
 
            into a grinder for re-use of the plastic.  Two days after 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            the work injury, claimant was "laid off."  Claimant's 
 
            supervisor explained that he was told by his superiors to 
 
            lay one individual off in his area and management chose 
 
            claimant because claimant was the slowest operator in the 
 
            area.  Claimant admitted to having problems keeping up since 
 
            the date of her hire.
 
            On or about May 3, 1989, claimant injured her left eye when 
 
            it was struck by a piece of plastic that had been thrown 
 
            from a grinder next to her work station.  Although claimant 
 
            was wearing eyeglasses, the projectile entered her left eye 
 
            from the side avoiding the lenses.  There was little 
 
            question that claimant injured herself.  Her supervisor 
 
            allowed her to go to the rest room and to use water on the 
 
            eye.  He stated at hearing that there was little question in 
 
            his mind that the injury occurred.  He stated that this had 
 
            happened before with other employees.
 
            Claimant has had a history of left eye problems since age 
 
            11.  In 1981, she was diagnosed at the University of Iowa 
 
            Hospitals and Clinics as having a pupillary defect in the 
 
            left eye along with right eye problems.  In March 1987, 
 
            claimant complained of night vision problems especially with 
 
            the left eye.  All of the records submitted disclose that 
 
            claimant's corrected vision of the left eye has been worse 
 
            than the vision in her right eye throughout her life.  
 
            Claimant disputed much of these records at hearing in an 
 
            obvious attempt to down play the left eye problems in hopes 
 
            of helping her case.  This effort made it quite difficult to 
 
            render a decision in this case.
 
            Claimant was treated by an ophthalmologist, Kurt Hahn, M.D., 
 
            immediately after the work injury.  Although he noticed a 
 
            loss of visual acuity of the corrected left eye, down to 
 
            20/l00, Dr. Hahn had no explanation for this loss of vision 
 
            and stated that there was no objective findings of an 
 
            injury.  Despite a complaint that the eye had swollen shut 
 
            between the first and second appointments, Dr. Hahn stated 
 
            that he found the left eye normal in all respects.  He 
 
            treated claimant through May 30, 1989, at which time he 
 
            found an improvement in the acuity up to 20/40 and released 
 
            claimant from his care.  Dr. Hahn's diagnosis was "blunt 
 
            injury to the eye" but this diagnosis was based solely upon 
 
            claimant's account of the incident not upon any of his 
 
            objective findings.
 
            Claimant continued to have problems with her left eye and on 
 
            July 11, 1989, she was examined by another ophthalmologist, 
 
            Lyse S. Strnad, M.D.  Dr. Strnad reported that claimant's 
 
            visual acuity was 20/60 on the left side and he found two 
 
            hemorrhages in the left eye.  Dr. Strnad suspected that 
 
            these hemorrhages were due to the blunt injury in May of 
 
            1989.  In September 1989, Dr. Strnad noted a further loss of 
 
            acuity on the left to 21/l00.  At that time he referred 
 
            claimant to the Ophthalmology Department at the University 
 
            of Iowa Hospitals and Clinics and specifically to James C. 
 
            Folk, M.D., a professor of medicine at the university.  Dr. 
 
            Folk found vision acuity on the left down to 20/500 and 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            diagnosed macular pucker of the left eye and surgically 
 
            treated this condition almost immediately.  Claimant's 
 
            vision on the left at the present time is 20/400.  This 
 
            constitutes legal blindness in the left eye.  According to 
 
            Dr. Folk, claimant's vision in the left eye is not expected 
 
            to improve in the future.
 
            As a result of the injury of May 3, 1989, claimant was 
 
            absent from her job at Burlington Basket from May 8, 1989 
 
            through November 27, 1989.  Claimant was released from Dr. 
 
            Folk's care to return to work on November 27, 1989.  
 
            Although the undersigned harbors a suspicion that the work 
 
            injury may have led to her termination from Burlington 
 
            Basket in May of 1989, there is no firm evidence to 
 
            substantiate this suspicion.  A finding cannot be based upon 
 
            a suspicion.  However, there is no question that claimant 
 
            was not working after May 8, 1989, while she was either 
 
            receiving treatment or seeking treatment of her work injury 
 
            from Dr. Hahn and others.  This treatment was continuous 
 
            until she was released from Dr. Folk's care in November.
 
            As a result of the work injury of May 3, 1989, claimant has 
 
            a 75.84 percent permanent partial impairment to the left 
 
            eye.  The fighting issue in this case is the causal 
 
            connection of claimant's eye difficulties first noticed by 
 
            Dr. Strnad and eventually treated by Dr. Folk to a work 
 
            injury.  This finding is based upon the views of Dr. Folk in 
 
            a letter of January 19, 1990.  He stated that the work 
 
            injury caused the loss of vision either through an 
 
            exacerbation of a preexisting macular pucker or a direct 
 
            trauma to the macular.  He based his opinion upon the 
 
            history of a blunt trauma in May 1989 with immediate loss of 
 
            visual acuity.  The history of a blunt trauma is verified by 
 
            claimant's supervisor at work.  The immediate loss of visual 
 
            acuity was verified by Dr. Hahn.  Therefore, this causal 
 
            connection finding is based upon testimony other than 
 
            offered by the claimant.  It does not appear that the 
 
            improvement in the initial loss of acuity after the injury 
 
            as noted by Dr. Hahn and Dr. Strnad in the latter part of 
 
            May and July 1989, affected Dr. Folk's opinion.  There was 
 
            an apportionment of disability based upon the views of Dr. 
 
            Folk who rated claimant's vision impairment at 14.16 percent 
 
            prior to the work injury.
 
            The lack of any finding of objective evidence of injury by 
 
            Dr. Hahn immediately after the injury was troublesome. ***** 
 
            Dr. Hahn appears to be a competent physician with a wealth 
 
            of experience.  However, it is noted that Dr. Hahn did not 
 
            observe some of the abnormalities of the left eye that had 
 
            been noted by eye physicians since 1981.  He stated that he 
 
            observed no abnormalities.  Dr. Hahn also stated that he had 
 
            no explanation for claimant's loss of acuity at the time he 
 
            first examined her.  Finally, Dr. Hahn appears to question 
 
            the work injury itself although there is clear evidence of 
 
            injury given the testimony of claimant's supervisor.  The 
 
            views of Dr. Hahn therefore could not be given much weight.  
 
            It is just not plausible to assume that claimant 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            manufactured the story of the injury of May 3, 1989, in 
 
            order to cover herself in the event that she would receive a 
 
            total loss of her vision three months later.
 
            The disputed medical expenses involve the treatment of Dr. 
 
            Strnad and Dr. Folk at the University Hospitals.  All of 
 
            these expenses are found work related as the underlying 
 
            condition was found work related.  It is also found that Dr. 
 
            Strnad and Dr. Folk are licensed board certified 
 
            ophthalmologists and that their treatment is reasonable.  
 
            Given the stipulation of the parties as to the 
 
            reasonableness of the fees and charges of the University of 
 
            Iowa Hospitals and Clinics and Dr. Strnad, it is found that 
 
            the fees and charges are reasonable as well.
 
            
 
                              CONCLUSIONS OF LAW
 
            
 
            The conclusions of law contained in the proposed agency 
 
            decision filed May 10, 1991 are adopted as set forth below.  
 
            Segments designated by asterisks (*****) indicate portions 
 
            of the language from the proposed agency decision that have 
 
            been intentionally deleted and do not form a part of this 
 
            final agency decision.  Segments designated by brackets ([ 
 
            ]) indicate language that is in addition to the language of 
 
            the proposed agency decision.
 
            I.  Claimant has the burden of proving by a preponderance of 
 
            the evidence that claimant received an injury which arose 
 
            out of and in the course of employment.  The words "out of" 
 
            refer to the cause or source of the injury.  The words "in 
 
            the course of" refer to the time and place and circumstances 
 
            of the injury.  See Cedar Rapids Community Sch. v. Cady, 278 
 
            N.W.2d 298 (Iowa 1979); Crowe v. DeSoto Consol. Sch. Dist., 
 
            246 Iowa 402, 68 N.W.2d 63 (1955).  An employer takes an 
 
            employee subject to any active or dormant health 
 
            impairments, and a work connected injury which more than 
 
            slightly aggravates the condition is considered to be a 
 
            personal injury.  Ziegler v. United States Gypsum Co., 252 
 
            Iowa 613, 620, 106 N.W.2d 591 (1960) and cases cited 
 
            therein.
 
            In the case sub judice, despite a certain lack of 
 
            credibility of claimant with reference to her history, a 
 
            work injury was found.
 
            II.  Claimant must establish by a preponderance of the 
 
            evidence the extent of weekly benefits for permanent 
 
            disability to which claimant is entitled.  Permanent partial 
 
            disabilities are classified as either scheduled or 
 
            unscheduled.  A specific scheduled disability is evaluated 
 
            by the functional method; the industrial method is used to 
 
            evaluate an unscheduled disability.  Martin v. Skelly Oil 
 
            Co., 252 Iowa 128, 133, 106 N.W.2d 95, 98 (1960); Graves v. 
 
            Eagle Iron Works, 331 N.W.2d 116 (Iowa 1983); Simbro v. 
 
            DeLong's Sportswear, 332 N.W.2d 886, 997 (Iowa 1983).  When 
 
            the result of an injury is loss to a scheduled member, the 
 
            compensation payable is limited to that set forth in the 
 
            appropriate subdivision of Code section 85.34(2).  Barton v. 
 
            Nevada Poultry Co., 253 Iowa 285, 110 N.W.2d 660 (1961).  
 
            "Loss of use" of a member is equivalent to 'loss' of the 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            member.  Moses v. National Union C.M. Co., 194 Iowa 819, 184 
 
            N.W. 746 (1922).  Pursuant to Code section 85.34(2)(u) the 
 
            industrial commissioner may equitably prorate compensation 
 
            payable in those cases wherein the loss is something less 
 
            than that provided for in the schedule.  Blizek v. Eagle 
 
            Signal Company, 164 N.W.2d 84 (Iowa 1969).
 
            In the case sub judice, it was found that claimant suffered 
 
            a 75.84 percent permanent partial loss of use of her left 
 
            eye.  Based upon such a finding, claimant is entitled as a 
 
            matter of law to 106.176 weeks of permanent partial 
 
            disability benefits under Iowa Code section 85.34(2)(p) 
 
            which is 75.84 percent of 140 weeks, the maximum allowable 
 
            for an injury to one eye in that Code section.
 
            As claimant has established entitlement to permanent partial 
 
            disability, claimant is entitled to weekly benefits for 
 
            healing period under Iowa Code section 85.34 from the date 
 
            of injury until she returns to work; until she is medically 
 
            capable of returning to substantially similar work to the 
 
            work she was performing at the time of injury; or, until it 
 
            is indicated that significant improvement from the injury is 
 
            not anticipated, whichever occurs first.  Claimant was off 
 
            work from May 8, 1989 and did not reach maximum healing 
 
            until November 27, 1989.  Admittedly, Dr. Folk opined that 
 
            claimant was off work only under his care after September 
 
            12, 1989.  However, the reason why claimant is off work is 
 
            not relevant to the entitlement of healing period if 
 
            claimant is under active treatment of a work injury.  There 
 
            was continuous treatment beginning with the date of injury 
 
            in this case.  The only question is whether claimant was off 
 
            work.  See arbitration decision Chapin v. Firestone Tire & 
 
            Rubber Co., Filed December 23, 1987.  Healing period 
 
            benefits will be awarded from May 8,1989 through November 
 
            27, 1989.
 
            III.  Pursuant to Iowa Code section 85.27, claimant is 
 
            entitled to payment of reasonable medical expenses incurred 
 
            for treatment of a work injury.  However, claimant is 
 
            entitled to an order of reimbursement only if claimant has 
 
            paid those expenses.  Otherwise, claimant is entitled to 
 
            only an order directing responsible defendants to make such 
 
            payments.  See Krohn v. State, 420 N.W.2d 463 (Iowa 1988).
 
            Due to the fact that the medical condition treated by the 
 
            University of Iowa Hospitals and Clinics in the fall and 
 
            winter of 1989 and 1990 were found work related, the 
 
            expenses to treat that condition are found work related as 
 
            well.  *****
 
             IV.  Additional weekly benefits can be awarded for an 
 
            unreasonable denial of benefits under Iowa Code section 
 
            86.13, unnumbered paragraph four.  Claimant was less than 
 
            candid in this proceeding when it came to her past eye 
 
            problems.  Also, defendants' theory of either no injury or 
 
            no causally connected disability was at least arguable given 
 
            the views of Dr. Hahn.  Therefore, claimant is not entitled 
 
            to additional benefits for penalties as defendants have not 
 
            been shown to have acted unreasonably in this matter.
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            [Apportionment of claimant's prior disability is 
 
            appropriate.  Defendant employer is only responsible for 
 
            that portion of claimant's current disability attributable 
 
            to her work injury.  Whether the prior condition was 
 
            disabling or not is irrelevant in a scheduled member case, 
 
            where impairment determines the award for disability.  
 
            Bearce v. FMC Corporation, 465 N.W.2d 531 (Iowa 1991) held 
 
            to apply to industrial disability cases under Iowa Code 
 
            section 85.34(2)(u) only.]
 
            *****
 
            WHEREFORE, the decision of the deputy is affirmed and 
 
            modified.
 
            
 
                                       ORDER
 
            
 
            THEREFORE, it is ordered:
 
            
 
            That defendants shall pay to claimant one hundred six point 
 
            one-seven-six (106.176) weeks of permanent partial 
 
            disability benefits at the rate of one hundred ten and 
 
            25/l00 dollars ($110.25) per week from November 28, 1989.
 
            
 
            That defendants shall pay to claimant healing period 
 
            benefits from May 8, 1989 through November 27, 1989, at the 
 
            rate of one hundred ten and 25/l00 dollars ($110.25) per 
 
            week.
 
            
 
            That defendants shall pay the medical expenses listed in the 
 
            prehearing report.  Claimant shall be reimbursed for any of 
 
            these expenses paid by her.  Otherwise, defendants shall pay 
 
            the provider directly along with any lawful late payment 
 
            penalties imposed upon the account by the provider.
 
            
 
            That defendants shall pay accrued weekly benefits in a lump 
 
            sum and shall receive credit against this award for all 
 
            benefits previously paid.
 
            
 
            That defendants shall pay interest on weekly benefits 
 
            awarded herein as set forth in Iowa Code section 85.30.
 
            
 
            That defendants shall shall pay all costs.
 
            
 
            That defendants shall file activity reports on the payment 
 
            of this award as requested by this agency pursuant to rule 
 
            343 IAC 3.1.
 
            
 
            Signed and filed this ____ day of March, 1993.
 
            
 
            
 
            
 
            
 
                                      ________________________________
 
                                             BYRON K. ORTON
 
                                        INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Craig D. Warner
 
            Attorney at Law
 
            321 N Third St.
 
            P.O. Box 1046
 
            Burlington, Iowa 52601
 
            
 
            Mr. Greg A. Egbers
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            Attorney at Law
 
            600 Union Arcade Bldg.
 
            111 East Third St.
 
            Davenport, Iowa 52801-1596
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                1806; 1702
 
                                                Filed March 19, 1993
 
                                                Byron K. Orton
 
                                                LPW
 
            
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                        
 
            REBECCA ANN SIMPSON,       
 
                        
 
                 Claimant,   
 
                        
 
            vs.         
 
                                               File No. 921025
 
            BURLINGTON BASKET COMPANY,      
 
                                                 A P P E A L
 
                 Employer,   
 
                                              D E C I S I O N
 
            and         
 
                        
 
            LIBERTY MUTUAL INSURANCE CO.,   
 
                        
 
                 Insurance Carrier,    
 
                 Defendants.      
 
            ____________________________________________________________
 
            
 
            
 
            1806; 1702
 
            For purposes of apportionment for prior disability, whether 
 
            the prior condition was disabling or not is irrelevant in a 
 
            scheduled member case, where impairment determines the award 
 
            for disability.  Bearce v. FMC Corporation, 465 N.W.2d 531 
 
            (Iowa 1991) held to apply to industrial disability cases 
 
            only.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            REBECCA ANN SIMPSON,          :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 921025
 
            BURLINGTON BASKET COMPANY,    :
 
                                          :    A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            LIBERTY MUTUAL INSURANCE CO., :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This is a proceeding in arbitration brought by Rebecca 
 
            Ann Simpson, claimant, against Burlington Basket Company, 
 
            employer (hereinafter referred to as Burlington Basket), and 
 
            Liberty Mutual Insurance Company, insurance carrier,  defen
 
            dants, for workers' compensation benefits as a result of an 
 
            alleged injury on May 3, 1989.  On February 28, 1991, a 
 
            hearing was held on claimant's petition and the matter was 
 
            considered fully submitted at the close of this hearing.
 
            
 
                 The parties have submitted a prehearing report of con
 
            tested issues and stipulations which was approved and 
 
            accepted as a part of the record of this case at the time of 
 
            hearing.  Oral testimony and written exhibits were received 
 
            during the hearing from the parties.  The exhibits offered 
 
            into the evidence are listed in the prehearing report.
 
            
 
                 According to the prehearing report, the parties have 
 
            stipulated to the following matters:
 
            
 
                 1.  An employee-employer relationship existed between 
 
            claimant and Burlington Basket at the time of the alleged 
 
            injury.
 
            
 
                 2.  Claimant is seeking temporary total disability or 
 
            healing period benefits after May 8, 1989.  The parties 
 
            agreed that claimant's last day at work was May 8, 1989.
 
            
 
                 3.  If the injury is found to have caused permanent 
 
            disability, the type of disability is a scheduled member 
 
            disability to one eye.
 
            
 
                 4.  Claimant's rate of weekly compensation shall be 
 
            $110.25.
 
            
 
                 5.  It was agreed with reference to the requested 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            medical expenses that the providers would testify that the 
 
            fees and charges contained in these bills were fair and rea
 
            sonable and defendants are not offering contrary evidence.  
 
            It was also agreed that these expenses are causally related 
 
            to the medical condition upon which the claim was based but 
 
            that the issue of their causal connection to a work injury 
 
            remained at issue.
 
            
 
                                      issues
 
            
 
                 The parties submitted the following issues for determi
 
            nation in this proceeding:
 
            
 
                   I.  Whether claimant received an injury arising out 
 
            of and in the course of employment;
 
            
 
                  II.  The extent of claimant's entitlement to disabil
 
            ity benefits;
 
            
 
                 III.  The extent of claimant's entitlement to medical 
 
            benefits; and,
 
            
 
                  IV.  The extent of claimant's entitlement to penalty 
 
            benefits under Iowa Code section 86.13 unnumbered paragraph 
 
            four for an alleged unreasonable denial of benefits.
 
            
 
                                 findings of fact
 
            
 
                 Having heard the testimony and considered all the evi
 
            dence, the deputy industrial commissioner finds as follows:
 
            
 
                 Claimant worked for Burlington Basket from March 1989 
 
            until May 8, 1989, as a machine operator.  Her duties con
 
            sisted of taking plastic pieces from a molding machine; cut
 
            ting off the mold tips on these plastic pieces; and, placing 
 
            the tips into a grinder for re-use of the plastic.  Two days 
 
            after the work injury, claimant was "laid off."  Claimant's 
 
            supervisor explained that he was told by his superiors to 
 
            lay one individual off in his area and management chose 
 
            claimant because claimant was the slowest operator in the 
 
            area.  Claimant admitted to having problems keeping up since 
 
            the date of her hire.
 
            
 
                 On or about May 3, 1989, claimant injured her left eye 
 
            when it was struck by a piece of plastic that had been 
 
            thrown from a grinder next to her work station.  Although 
 
            claimant was wearing eyeglasses, the projectile entered her 
 
            left eye from the side avoiding the lenses.  There was lit
 
            tle question that claimant injured herself.  Her supervisor 
 
            allowed her to go to the rest room and to use water on the 
 
            eye.  He stated at hearing that there was little question in 
 
            his mind that the injury occurred.  He stated that this had 
 
            happened before with other employees.
 
            
 
                 Claimant has had a history of left eye problems since 
 
            age 11.  In 1981, she was diagnosed at the University of 
 
            Iowa Hospitals and Clinics as having a pupillary defect in 
 
            the left eye along with right eye problems.  In March 1987, 
 
            claimant complained of night vision problems especially with 
 
            the left eye.  All of the records submitted disclose that 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            claimant's corrected vision of the left eye has been worse 
 
            than the vision in her right eye throughout her life.  
 
            Claimant disputed much of these records at hearing in an 
 
            obvious attempt to down play the left eye problems in hopes 
 
            of helping her case.  This effort made it quite difficult to 
 
            render a decision in this case.
 
            
 
                 Claimant was treated by an ophthalmologist, Kurt Hahn, 
 
            M.D., immediately after the work injury.  Although he 
 
            noticed a loss of visual acuity of the corrected left eye, 
 
            down to 20/l00, Dr. Hahn had no explanation for this loss of 
 
            vision and stated that there was no objective findings of an 
 
            injury.  Despite a complaint that the eye had swollen shut 
 
            between the first and second appointments, Dr. Hahn stated 
 
            that he found the left eye normal in all respects.  He 
 
            treated claimant through May 30, 1989, at which time he 
 
            found an improvement in the acuity up to 20/40 and released 
 
            claimant from his care.  Dr. Hahn's diagnosis was "blunt 
 
            injury to the eye" but this diagnosis was based solely upon 
 
            claimant's account of the incident not upon any of his 
 
            objective findings.
 
            
 
                 Claimant continued to have problems with her left eye 
 
            and on July 11, 1989, she was examined by another ophthal
 
            mologist, Lyse S. Strnad, M.D.  Dr. Strnad reported that 
 
            claimant's visual acuity was 20/60 on the left side and he 
 
            found two hemorrhages in the left eye.  Dr. Strnad suspected 
 
            that these hemorrhages were due to the blunt injury in May 
 
            of 1989.  In September 1989, Dr. Strnad noted a further loss 
 
            of acuity on the left to 21/l00.  At that time he referred 
 
            claimant to the Ophthalmology Department at the University 
 
            of Iowa Hospitals and Clinics and specifically to James C. 
 
            Folk, M.D., a professor of medicine at the university.  Dr. 
 
            Folk found vision acuity on the left down to 20/500 and 
 
            diagnosed macular pucker of the left eye and surgically 
 
            treated this condition almost immediately.  Claimant's 
 
            vision on the left at the present time is 20/400.  This 
 
            constitutes legal blindness in the left eye.  According to 
 
            Dr. Folk, claimant's vision in the left eye is not expected 
 
            to improve in the future.
 
            
 
                 As a result of the injury of May 3, 1989, claimant was 
 
            absent from her job at Burlington Basket from May 8, 1989 
 
            through November 27, 1989.  Claimant was released from Dr. 
 
            Folk's care to return to work on November 27, 1989.  
 
            Although the undersigned harbors a suspicion that the work 
 
            injury may have led to her termination from Burlington 
 
            Basket in May of 1989, there is no firm evidence to 
 
            substantiate this suspicion.  A finding cannot be based upon 
 
            a suspicion.  However, there is no question that claimant 
 
            was not working after May 8, 1989, while she was either 
 
            receiving treatment or seeking treatment of her work injury 
 
            from Dr. Hahn and others.  This treatment was continuous 
 
            until she was released from Dr. Folk's care in November.
 
            
 
                 As a result of the work injury of May 3, 1989, claimant 
 
            has a 75.84 percent permanent partial impairment to the left 
 
            eye.  The fighting issue in this case is the causal connec
 
            tion of claimant's eye difficulties first noticed by Dr. 
 
            Strnad and eventually treated by Dr. Folk to a work injury.  
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            This finding is based upon the views of Dr. Folk in a letter 
 
            of January 19, 1990.  He stated that the work injury caused 
 
            the loss of vision either through an exacerbation of a pre
 
            existing macular pucker or a direct trauma to the macular.  
 
            He based his opinion upon the history of a blunt trauma in 
 
            May 1989 with immediate loss of visual acuity.  The history 
 
            of a blunt trauma is verified by claimant's supervisor at 
 
            work.  The immediate loss of visual acuity was verified by 
 
            Dr. Hahn.  Therefore, this causal connection finding is 
 
            based upon testimony other than offered by the claimant.  It 
 
            does not appear that the improvement in the initial loss of 
 
            acuity after the injury as noted by Dr. Hahn and Dr. Strnad 
 
            in the latter part of May and July 1989, affected Dr. Folk's 
 
            opinion.  There was an apportionment of disability based 
 
            upon the views of Dr. Folk who rated claimant's vision 
 
            impairment at 14.16 percent prior to the work injury.
 
            
 
                 The lack of any finding of objective evidence of injury 
 
            by Dr. Hahn immediately after the injury was troublesome for 
 
            the undersigned.  Dr. Hahn appears to be a competent physi
 
            cian with a wealth of experience.  However, it is noted that 
 
            Dr. Hahn did not observe some of the abnormalities of the 
 
            left eye that had been noted by eye physicians since 1981.  
 
            He stated that he observed no abnormalities.  Dr. Hahn also 
 
            stated that he had no explanation for claimant's loss of 
 
            acuity at the time he first examined her.  Finally, Dr. Hahn 
 
            appears to question the work injury itself although there is 
 
            clear evidence of injury given the testimony of claimant's 
 
            supervisor.  The views of Dr. Hahn therefore could not be 
 
            given much weight.  It is just not plausible to assume that 
 
            claimant manufactured the story of the injury of May 3, 
 
            1989, in order to cover herself in the event that she would 
 
            receive a total loss of her vision three months later.
 
            
 
                 The disputed medical expenses involve the treatment of 
 
            Dr. Strnad and Dr. Folk at the University Hospitals.  All of 
 
            these expenses are found work related as the underlying con
 
            dition was found work related.  It is also found that Dr. 
 
            Strnad and Dr. Folk are licensed board certified ophthalmol
 
            ogists and that their treatment is reasonable.  Given the 
 
            stipulation of the parties as to the reasonableness of the 
 
            fees and charges of the University of Iowa Hospitals and 
 
            Clinics and Dr. Strnad, it is found that the fees and 
 
            charges are reasonable as well.
 
            
 
                                conclusions of law
 
            
 
                   I.  Claimant has the burden of proving by a prepon
 
            derance of the evidence that claimant received an injury 
 
            which arose out of and in the course of employment.  The 
 
            words "out of" refer to the cause or source of the injury.  
 
            The words "in the course of" refer to the time and place and 
 
            circumstances of the injury.  See Cedar Rapids Community 
 
            Sch. v. Cady, 278 N.W.2d 298 (Iowa 1979); Crowe v. DeSoto 
 
            Consol. Sch. Dist., 246 Iowa 402, 68 N.W.2d 63 (1955).  An 
 
            employer takes an employee subject to any active or dormant 
 
            health impairments, and a work connected injury which more 
 
            than slightly aggravates the condition is considered to be a 
 
            personal injury.  Ziegler v. United States Gypsum Co., 252 
 
            Iowa 613, 620, 106 N.W.2d 591 (1960) and cases cited 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            therein.
 
            
 
                 In the case sub judice, despite a certain lack of cred
 
            ibility of claimant with reference to her history, a work 
 
            injury was found.
 
            
 
                  II.  Claimant must establish by a preponderance of the 
 
            evidence the extent of weekly benefits for permanent dis
 
            ability to which claimant is entitled.  Permanent partial 
 
            disabilities are classified as either scheduled or unsched
 
            uled.  A specific scheduled disability is evaluated by the 
 
            functional method; the industrial method is used to evaluate 
 
            an unscheduled disability.  Martin v. Skelly Oil Co., 252 
 
            Iowa 128, 133, 106 N.W.2d 95, 98 (1960); Graves v. Eagle 
 
            Iron Works, 331 N.W.2d 116 (Iowa 1983); Simbro v. DeLong's 
 
            Sportswear, 332 N.W.2d 886, 997 (Iowa 1983).  When the 
 
            result of an injury is loss to a scheduled member, the com
 
            pensation payable is limited to that set forth in the appro
 
            priate subdivision of Code section 85.34(2).  Barton v. 
 
            Nevada Poultry Co., 253 Iowa 285, 110 N.W.2d 660 (1961).  
 
            "Loss of use" of a member is equivalent to 'loss' of the 
 
            member.  Moses v. National Union C.M. Co., 194 Iowa 819, 184 
 
            N.W. 746 (1922).  Pursuant to Code section 85.34(2)(u) the 
 
            industrial commissioner may equitably prorate compensation 
 
            payable in those cases wherein the loss is something less 
 
            than that provided for in the schedule.  Blizek v. Eagle 
 
            Signal Company, 164 N.W.2d 84 (Iowa 1969).
 
            
 
                 In the case sub judice, it was found that claimant suf
 
            fered a 75.84 percent permanent partial loss of use of her 
 
            left eye.  Based upon such a finding, claimant is entitled 
 
            as a matter of law to 106.176 weeks of permanent partial 
 
            disability benefits under Iowa Code section 85.34(2)(p) 
 
            which is 75.84 percent of 140 weeks, the maximum allowable 
 
            for an injury to one eye in that code section.
 
            
 
                 As claimant has established entitlement to permanent 
 
            partial disability, claimant is entitled to weekly benefits 
 
            for healing period under Iowa Code section 85.34 from the 
 
            date of injury until she returns to work; until she is medi
 
            cally capable of returning to substantially similar work to 
 
            the work she was performing at the time of injury; or, until 
 
            it is indicated that significant improvement from the injury 
 
            is not anticipated, whichever occurs first.  Claimant was 
 
            off work from May 8, 1989 and did not reach maximum healing 
 
            until November 27, 1989.  Admittedly, Dr. Folk opined that 
 
            claimant was off work only under his care after September 
 
            12, 1989.  However, the reason why claimant is off work is 
 
            not relevant to the entitlement of healing period if 
 
            claimant is under active treatment of a work injury.  There 
 
            was continuous treatment beginning with the date of injury 
 
            in this case.  The only question is whether claimant was off 
 
            work.  See arbitration decision Chapin v. Firestone Tire & 
 
            Rubber Co., Filed December 23, 1987.  Healing period 
 
            benefits will be awarded from May 8,1989 through November 
 
            27, 1989.
 
            
 
                 III.  Pursuant to Iowa Code section 85.27, claimant is 
 
            entitled to payment of reasonable medical expenses incurred 
 
            for treatment of a work injury.  However, claimant is enti
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            tled to an order of reimbursement only if claimant has paid 
 
            those expenses.  Otherwise, claimant is entitled to only an 
 
            order directing responsible defendants to make such pay
 
            ments.  See Krohn v. State, 420 N.W.2d 463 (Iowa 1988).
 
            
 
                 Due to the fact that the medical condition treated by 
 
            the University of Iowa Hospitals and Clinics in the fall and 
 
            winter of 1989 and 1990 were found work related, the 
 
            expenses to treat that condition are found work related as 
 
            well.  Furthermore, with reference to the issue of the rea
 
            sonableness of this treatment there is an inference that 
 
            such treatment directed by a licensed physician is reason
 
            able and necessary.  The primary physician in this case, Dr. 
 
            Folk, was not only licensed but board certified in ophthal
 
            mology and a professor at a teaching medical center, the 
 
            University of Iowa Hospitals and Clinics.  Absent contrary 
 
            evidence, this agency should infer the reasonableness of 
 
            treatment administered by Dr. Folk.  The treatment he 
 
            directs is an expression of his professional opinion that 
 
            the treatment is reasonable and necessary.  There is no 
 
            appeal decision from the commissioner on this point of law.  
 
            This view, however, is incurred in by a fellow deputy com
 
            missioner.  See Brown v. Spurlin, Arbitration Decision, File 
 
            No. 916776, filed April 1, 1991.
 
            
 
                  IV.  Additional weekly benefits can be awarded for an 
 
            unreasonable denial of benefits under Iowa Code section 
 
            86.13, unnumbered paragraph four.  Claimant was less than 
 
            candid in this proceeding when it came to her past eye prob
 
            lems.  Also, defendants' theory of either no injury or no 
 
            causally connected disability was at least arguable given 
 
            the views of Dr. Hahn.  Therefore, claimant is not entitled 
 
            to additional benefits for penalties as defendants have not 
 
            been shown to have acted unreasonable in this matter.
 
            
 
                 Finally, costs are denied to the claimant.  Due to her 
 
            lack of credibility as to her past history, this decision 
 
            was complicated.  Therefore, although she did ultimately 
 
            prevail without her own help, claimant is denied the costs 
 
            of this action.  Each party will pay their own costs.
 
            
 
                                      order
 
            
 
                 1.  Defendants shall pay to claimant one hundred six 
 
            point one-seven-six (106.176) weeks of permanent partial 
 
            disability benefits at the rate of one hundred ten and 
 
            25/l00 dollars ($110.25) per week from November 28, 1989.
 
            
 
                 2.  Defendants shall pay to claimant healing period 
 
            benefits from May 8, 1989 through November 27, 1989, at the 
 
            rate of one hundred ten and 25/l00 dollars ($110.25) per 
 
            week.
 
            
 
                 3.  Defendants shall pay the medical expenses listed in 
 
            the prehearing report.  Claimant shall be reimbursed for any 
 
            of these expenses paid by her.  Otherwise, defendants shall 
 
            pay the provider directly along with any lawful late payment 
 
            penalties imposed upon the account by the provider.
 
            
 
                 4.  Defendants shall pay accrued weekly benefits in a 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            lump sum and shall receive credit against this award for all 
 
            benefits previously paid.
 
            
 
                 5.  Defendants shall pay interest on weekly benefits 
 
            awarded herein as set forth in Iowa Code section 85.30.
 
            
 
                 6.  Each party shall pay its own cost of this action 
 
            pursuant to rule 343 IAC 4.33.  Reimbursement to claimant 
 
            for any filing fee paid in this matter is denied.
 
            
 
                 7.  Defendants shall file activity reports on the pay
 
            ment of this award as requested by this agency pursuant to 
 
            rule 343 IAC 3.1.
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
                 Signed and filed this ____ day of May, 1991.
 
            
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          LARRY P. WALSHIRE
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Craig D. Warner
 
            Attorney at Law
 
            321 N Third St
 
            Burlington  IA  52601
 
            
 
            Mr. Greg A. Egbers
 
            Attorney at Law
 
            600 Union Arcade Bldg
 
            111 E 3rd St
 
            Davenport  IA  52801
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            REBECCA ANN SIMPSON,          :
 
                                          :
 
                 Claimant,                :
 
                                          :       File No. 921025
 
            vs.                           :
 
                                          :       D E C I S I O N
 
            BURLINGTON BASKET COMPANY,    :
 
                                          :             O N
 
                 Employer,                :
 
                                          :         R E M A N D
 
            and                           :
 
                                          :
 
            LIBERTY MUTUAL INSURANCE CO., :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
                              statement of the case
 
            
 
                 The undersigned issued an arbitration decision in this 
 
            matter on May 10, 1991.  This decision was appealed.  On 
 
            September 13, 1991, this matter was remanded to the under
 
            signed for further proceedings "limited to reopening the 
 
            record to admit evidence related to claimant's employment 
 
            subsequent to her employment with defendants as it relates 
 
            to the issue of healing period."  The new evidence consists 
 
            of written material attached to defendants' motion on appeal 
 
            to reopen the record and marked exhibits A-F.  In claimant's 
 
            resistance there is no dispute as to the accuracy of the 
 
            proposed defendants' exhibits A-F and in addition offered 
 
            two affidavits executed by claimant's attorney and his legal 
 
            assistant and an expert from the trial testimony of 
 
            claimant.
 
            
 
                 The undersigned sees no need for further evidentiary 
 
            hearing to comply with the remand order as there is no dis
 
            pute as to any of the proposed new material offered by 
 
            defendants and claimant.  Therefore, the record is opened 
 
            and received into the evidence are the proffered exhibits 
 
            submitted by claimant and defendants attached to the motion 
 
            to reopen the record and the resistance thereto.  In light 
 
            of the new evidence, the decision of May 10, 1991, with ref
 
            erence to healing period must be and is modified as follows:
 
            
 
                                 findings of fact
 
            
 
                 The unnumbered first paragraph on page 4 of the arbi
 
            tration decision is stricken and the following inserted in 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
            
 
            lieu thereof:
 
            As a result of the work injury of May 3, 1989, claimant was 
 
            off work and physically unable to perform substantially 
 
            similar work to the work she was performing at the time of 
 
            the May 3, 1989 injury from September 12, 1989 through 
 
            November 27, 1989.  According to evidence submitted after 
 
            hearing, claimant worked briefly for two employers after 
 
            leaving Burlington Basket.  Between May 10, 1989 and June 5, 
 
            1989, she was employed by a company called "Lamont" and 
 
            between June 14, 1989 and August 31, 1989, she was employed 
 
            by a firm called "Metromail."  In each case, claimant left 
 
            employment due to her failure to meet performance expec
 
            tations.  The above finding with reference to claimant's 
 
            healing period is based upon the views of Dr. Folk who 
 
            recommended that claimant refrain from work between 
 
            September 12, 1989 through November 27, 1989 (see joint 
 
            exhibit 5, page 73).  There is nothing in the record that 
 
            claimant did not follow the advice of Dr. Folk.  Dr. Folk 
 
            had opined that the condition for which claimant received 
 
            treatment during this time was causally related to the May 
 
            3, 1989 injury.  As will be explained below, Dr. Folk's 
 
            views were given greater weight in this decision over the 
 
            views of the physician who initially treated claimant, Dr. 
 
            Hahn.
 
            
 
                                conclusions of law
 
            
 
                 The second paragraph on page 6 is stricken and the fol
 
            lowing inserted in lieu thereof:
 
            
 
                 Claimant has established under Iowa Code section 
 
                 85.34 entitlement to healing period benefits dur
 
                 ing the time Dr. Folk recommended that claimant 
 
                 refrain from work from September 12, 1989 through 
 
                 November 27, 1989.  Healing period benefits shall 
 
                 be awarded accordingly.
 
            
 
                                      order
 
            
 
                 Paragraph 2 of the order portion of the decision is 
 
            stricken and the following inserted in lieu thereof:
 
            
 
                 2.  Defendants shall pay to claimant healing 
 
                 period benefits from September 12, 1989 through 
 
                 December 27, 1989, at the rate of one hundred ten 
 
                 and 25/l00 dollars ($110.25) per week.
 
            
 
                 The balance of the arbitration decision of May 10, 1991 
 
            remains unchanged consistent with the remand order which 
 
            pertained only to the issue of healing period.
 
            
 
            
 
            
 
                 Signed and filed this ____ day of September, 1991.
 
            
 
            
 
            
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          LARRY P. WALSHIRE
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Craig D. Warner
 
            Attorney at Law
 
            321 N Third St
 
            P O Box 1046
 
            Burlington  IA  52601
 
            
 
            Mr. Greg A. Egbers
 
            Attorney at Law
 
            600 Union Arcade Bldg
 
            111 East Third St
 
            Davenport  IA  52801-1596
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                           1402.60; 2501; 5-1803
 
                           Filed May 10, 1991
 
                           LARRY P. WALSHIRE
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            REBECCA ANN SIMPSON,          :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 921025
 
            BURLINGTON BASKET COMPANY,    :
 
                                          :    A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            LIBERTY MUTUAL INSURANCE CO., :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
            1402.60; 2501
 
            There is an inference that medical treatment administered by 
 
            a licensed and board certified physician is reasonable and 
 
            necessary.
 
            
 
            
 
            5-1803
 
            Extent of entitlement to weekly benefits.
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                           5-1802
 
                           Filed September 25, 1991
 
                           LARRY P. WALSHIRE
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            REBECCA ANN SIMPSON,          :
 
                                          :
 
                 Claimant,                :
 
                                          :       File No. 921025
 
            vs.                           :
 
                                          :       D E C I S I O N
 
            BURLINGTON BASKET COMPANY,    :
 
                                          :             O N
 
                 Employer,                :
 
                                          :         R E M A N D
 
            and                           :
 
                                          :
 
            LIBERTY MUTUAL INSURANCE CO., :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
            
 
            5-1802
 
            Extent of healing period length.